text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
The opinion of the court was delivered by
Prager, J.:
This is an action to recover damages for false imprisonment and slander. The plaintiff, Carolyn A. Codner, was detained for forty minutes in a Hutchinson store of Skaggs Drug Centers, Inc., on a suspicion of shoplifting. The case was tried to a jury which brought in a verdict in favor of the plaintiff in the amount of $5,000 actual damages and $0 punitive damages. The defendants in the case were Skaggs Drug Centers, Inc., and two of its employees, Gordon O. Toone and Erma L. Gilley. The district court entered judgment on the verdict. Defendants have appealed to this court claiming trial errors.
The facts in the case were somewhat in dispute. The plaintiff, a housewife, went to the Skaggs store in Hutchinson on July 29, 1975, to purchase a pair of thinning shears and other items. She obtained a wire basket shopping cart with two levels. She proceeded directly to the cosmetic area and obtained the thinning shears from a store employee. According to that employee, Mrs. Codner placed the shears, which were in a cardboard and plastic carton, in the lower level of the shopping cart. Shortly thereafter, the employee observed that plaintiff had moved the shears to the upper level of the cart close to her open purse. This caused the store employee to become suspicious. She requested another store employee, Mrs. Gilley, to watch the plaintiff. Mrs. Codner then went to another area of the store. Shortly thereafter Mrs. Gilley observed that the thinning shears were no longer in sight in the shopping cart. Then Mrs. Codner checked out of the store without paying for the thinning shears. Plaintiff was apprehended outside the store by the manager, Gordon O. Toone. He asked her where the shears were. Plaintiff stated that she had returned the box and shears to the cosmetic area where she laid them on the counter. Plaintiff agreed to show the manager where she had laid the shears but, when she returned to the cosmetic area, the shears were not there. Toone then requested the plaintiff to accompany him to a back room for the purpose of searching her purse. According to Mrs. Codner, she dumped the contents of her purse on the floor at the request of Toone, showing that she did not have the shears. The store employees testified that the plaintiff voluntarily did so without a prior request from them. Plaintiff was then taken into a back room. She testified that she was compelled to submit to certain indignities, including the partial removal of her clothing, and that she was prevented from going to the rest room. The store employees denied that these indignities occurred. A search of Mrs. Codner failed to disclose the shears. Mr. Toone then called the police, who came to the store. After some discussion with the officers, Mrs. Codner was released. The shears were never found in plaintiff’s possession. That same afternoon a box, identified as that which had contained the shears, was found in the ladies’ rest room of the store. The basic issue of fact to be tried by the jury was whether the store employees acted reasonably within the law under all the circumstances in detaining the plaintiff in the store. The jury resolved the conflict in evidence in favor of the plaintiff.
The defendants raise several points on the appeal. They first contend that the trial court erred in admitting testimony of plaintiff’s good character and reputation in plaintiff’s case-in-chief. We do not find this material error. In this state, as a general rule, evidence of good reputation and character is not admissible in plaintiff’s case-in-chief in an action for libel or slander unless the reputation or character of the plaintiff has first been attacked by the defendant. We have held, however, that the admission of such evidence is not considered as material error, since such evidence only tends to prove a fact which the law will presume. (Conrad v. Roberts, 95 Kan. 180, 147 Pac. 795 [1915].) On the basis of Conrad we hold that the admission of this evidence did not constitute reversible error.
The defendants next maintain that the trial court erred in failing to grant a mistrial because certain testimony, excluded by the court, was published in an article in the Hutchinson News and read by two jurors prior to the verdict. The testimony was offered to show the financial interest of an employee of the drug store who testified in favor of the defendants. In our judgment the excluded testimony mentioned in the news article should have been admitted by the trial court as proper cross-examination and in any event was not of sufficient significance to justify a reversal of the case.
Defendants have numerous complaints as to the instructions given by the court. We have considered all of the instructions carefully and have concluded that, although not artfully drawn, they properly instructed on the basic issues for the jury to determine. The defendants requested an instruction covering the so-called merchant’s defense as set forth in K.S.A. 21-3424(3). The instruction requested was essentially that contained in PIK 2d (Civil) 14.09, Shoplifting, Legal Excuse. The requested instruction was in the language of K.S.A. 21-3424(3) which states as follows:
“21-3424. Unlawful restraint.
“(3) Any merchant, his agent or employee, who has probable cause to believe that a person has actual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandise from a mercantile establishment, may detain such person (a) on the premises or (b) in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor an unlawful restraint.”
We agree with the defendants that such an instruction should have been given by the court. We do not agree with counsel for plaintiff that the merchant’s defense as set forth in K.S.A. 21-3424(3) is not applicable in a civil action for false imprisonment. However, in this case the trial court’s instructions gave to defendants even more protection than they were entitled to under the law. In Instruction No. 7 the jury was instructed that any person, acting as a man of ordinary prudence, who reasonably believes that another has committed a criminal offense has a right to detain that person. In view of this instruction we cannot say that the defendants were prejudiced by the failure of the trial court to give the instructions requested by defendants.
The defendants also complain that the trial court erred in failing to sustain their motion for a directed verdict at the close of the evidence on the issue of slander. We do not agree. Although essentially the action was one for false imprisonment, plaintiff’s evidence showed that she was compelled to empty her purse on the floor in the public area and further that accusations of theft were made against plaintiff by store employees to the police after they were called in. Under all the circumstances we cannot say that the trial court erred in permitting the plaintiff’s claim of slander to go to the jury.
Considering the entire record in the case, we have concluded that the defendants had a fair trial. The matter was submitted to the jury under instructions which reasonably set forth the issues to be tried and stated the applicable legal principles to govern the jury’s deliberations. The verdict of the jury was supported by the evidence and the trial court, being satisfied with it, entered judgment in favor of plaintiff. We find no reason justifying a reversal and a retrial of the case.
Judgment affirmed. | [
-16,
-2,
-39,
-115,
40,
-32,
50,
-102,
2,
-123,
53,
-45,
-95,
-29,
13,
107,
119,
-51,
-12,
97,
-33,
-73,
23,
-21,
-42,
-5,
-72,
-59,
-79,
75,
-12,
-42,
76,
48,
-62,
21,
98,
-128,
-9,
92,
-126,
2,
-87,
-15,
113,
2,
40,
58,
-108,
7,
113,
28,
-77,
40,
22,
-50,
40,
44,
107,
61,
64,
-71,
-101,
29,
109,
19,
-109,
38,
-67,
39,
-38,
15,
-100,
-72,
0,
-24,
115,
-74,
-126,
84,
103,
-71,
4,
102,
98,
32,
53,
-25,
76,
-92,
38,
-1,
-115,
-89,
-104,
72,
73,
15,
-65,
-99,
116,
-110,
8,
-36,
-5,
-34,
31,
108,
-127,
-121,
-44,
-77,
15,
56,
12,
32,
-49,
-89,
48,
97,
-59,
-86,
92,
-59,
49,
-101,
-50,
-42
] |
The opinion of the court was delivered by
Hutchison, J.:
This is a proceeding under the workmen’s compensation law in which the question involved on the appeal is whether the service of the written claim for compensation, sent by ordinary mail with no evidence as to the address of the employer on the envelope but with the presumption of delivery, was sufficient as a matter of law under the statute (R. S. 1931 Supp. 44-520a). The commission dismissed the proceeding because of insufficient service of this required ninety-day notice of claim. Claimant appealed, and the trial court, on review of the evidence, held the service to be sufficient and rendered judgment for the claimant, from which the respondent appeals.
The jurisdiction of the supreme court is limited to questions of law. A number of such questions are mentioned and briefed, but only two will be considered; they are, whether a letter mailed without any evidence as to the name and address of the employer being on the envelope is entitled to the benefit of the presumption of delivery, and whether, under the statute above cited requiring the service and delivery of such written notice, it may be effected by ordinary mail.
On the first question, in order to avoid a possible oversight'in a careful examination of the abstract, counter abstract and transcript, without finding anywhere any reference to there being any name or address on the envelope or what it was, a quotation is here made from the brief of appellee with reference thereto.
“. . . that the court was justified in finding that the letter was received and that Breedlove, a helpless cripple, should not be deprived of compensation on the mere pretext that the proof of the address on the envelope was not gone into to the utmost nicety of technical accuracy.
“When we proved it was mailed, such statement was sufficient to justify the court in finding that the envelope contained the same address as the letter.”
With this statement supplementing our careful examination of the record we can safely say there was no evidence as to the name and address of the employer on the envelope in which the letter was mailed. A copy of the letter inclosed in the envelope |lid contain the name and address of the employer, and appellee urges that it should follow, or be presumed, that the same name and address were on the envelope. It is also said that some courts have held that the regular mailing of a letter with postage prepaid justifies the presumption that it was properly addressed, but we do not need to pursue that discussion further, for it has been held in this state that being properly addressed is one of the prerequisites to its being entitled to the presumption of delivery. It was said in Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062:
“When a letter or other mail matter is shown to have been properly addressed and mailed with postage prepaid, it is a rebuttable presumption of fact that it was received by the. addressee, and an instruction to that effect is not erroneous.” (Syl. ¶ 4.)
The entire absence of evidence as to its being properly addressed deprives it of the presumption of delivery. If this in any way involved a conflict of evidence or any question of fact, this court would be required to accept the finding of the district judge, but the entire absence of any evidence on this question makes it a matter of law and one that requires a reversal, because claimant bases his proof of delivery upon the presumption and not upon service or admission.
With this conclusion it is unnecessary to -go further, except to call attention to the definite and specific language of R. S. 1931 Supp. 44-520a as to the only ways in which such ninety-day claim can be made, which is as follows:
"... a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail.”
The fact that the statute prescribes the delivery of the written claim by registered mail as one of the ways of serving it might very properly and fairly come under the very general rule that it was the intention of the legislature to exclude all other ways of doing it by mail. If not, why designate registered mail?
“A statute that directs a thing to be done in a particular manner ordinarily implies that it shall not be done otherwise.” (25 R. C. L. 982.)
“In accordance with the maxim, ‘expressio unites est exclusio alterius,’ where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned; and where it directs the performance of certain things in a particular manner, or by a particular person, it implies that it shall not be done otherwise nor by a different person. So where it prescribed certain conditions, compliance with which are necessary to the existence of a right, no other conditions need be fulfilled; but the maxim should be applied only as a means of discovering the legislative intent, and should never be permitted to defeat the plainly indicated purpose o'f the legislature.” (59 C. J. 984.)
Appellee cites Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 Pac. 950; Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588; and Horn v. Elliott, 132 Kan. 454, 295 Pac. 719, as instances where the serving of the claim by ordinary mail was recognized and approved, but in the Weaver case the employer answered and acknowledged receipt of the letter making the claim, which admitted both service and delivery thereof, without any resort to a rebuttable presumption, and in the other two cases there was no question raised about the receipt of the letters, and the presumption of delivery was not invoked.
The term “shall be served” calls for consideration" as well as the term “by delivering.” Not everything that comes into one’s possession by mail or otherwise can be said to be served upon him. The legislature in using these terms certainly meant something more formal than what might happen to come to an employer by mail, and, therefore, with an apparently good reason for making a distinction, limited such service, as far as being done by mail, to registered mail.
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendants for costs. | [
-78,
-4,
-12,
-99,
10,
97,
58,
-101,
65,
-95,
39,
115,
-3,
-41,
28,
115,
-9,
45,
-44,
107,
85,
-89,
39,
-53,
-46,
-13,
-13,
-108,
-79,
107,
-26,
-4,
77,
48,
-118,
-42,
-58,
74,
-63,
16,
-18,
7,
33,
-17,
-7,
64,
32,
106,
-40,
79,
117,
-113,
-29,
46,
24,
-45,
-84,
40,
121,
61,
-48,
-15,
-86,
-115,
127,
6,
-80,
54,
-100,
7,
-7,
14,
-120,
49,
0,
-24,
80,
-74,
-121,
116,
43,
-71,
0,
102,
98,
49,
5,
-17,
-4,
-104,
46,
-26,
-97,
-90,
-109,
40,
43,
37,
-108,
-99,
44,
20,
102,
126,
-1,
29,
31,
108,
11,
-113,
-94,
-93,
-33,
108,
58,
-114,
-17,
-79,
16,
116,
-52,
-78,
92,
103,
59,
-101,
-114,
-102
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a balance of money which, according to plaintiff’s second amended petition, had been loaned by plaintiff’s guardian to the late A. W. Long, of Manhattan, and to the Long Oil Company, of which he was president and principal managing officer.
The action was originally begun against Long individually, and, on May 1, 1931, plaintiff filed an amended petition in which she alleged that Long had solicited her to buy fifteen shares of the Long Oil Company stock, and as an inducement thereto he orally agreed to repay the money at any time plaintiff’s guardian might need it for the education of plaintiff, and that plaintiff’s guardian had accepted that offer and “took over fifteen shares of stock of the par value of $100 each and paid therefor the sum of $1,500.” It was also alleged that in January, 1930, the guardian informed Long that she was in need of money and he paid her $200, and in July, 1930, he similarly paid her $300 and $45.50 additional as interest, and that the certificate of stock for fifteen shares was exchanged for one of ten shares. She also alleged that in December, 1930, she called on Long for an additional sum of $200, which he failed and refused to pay, wherefore she prayed judgment for the entire balance of $1,000 due her under the allegations of her first amended petition.
To this petition Long filed an answer which contained a general denial and a specific denial of the agreement alleged by plaintiff. It also alleged that as president of the Long Oil Company he had a transaction with plaintiff’s guardian in which she acquired fifteen shares of the preferred stock of that corporation for $1,500, and that afterwards, through an arrangement with the Long Oil Company, plaintiff had surrendered her certificate for fifteen shares and received one for ten shares in lieu thereof.
Later Long died, and the action was revived in the names of Long’s wife and daughter as executrices of his estate, and the Long Oil Company was made a party defendant.
Following this, plaintiff filed a second amended petition in which she alleged that Long had solicited her guardian to loan $1,500 to the Long Oil Company, and—
“That the Long Oil Company would issue to her fifteen shares of stock of said company of the par value of $100 each and the said A. W. Long agreed that he personally and that the defendant the Long Oil Company would repay to Lena Stuart Tennant for said minor said sum of $1,500 and in the meantime would let her hold the fifteen shares of said stock of said company as security for said payment; that A. W. Long for himself and for the defendant the Long Oil Company further agreed that whenever demand was made upon them for money needed for Wilma Jane Tennant they would pay to her such sum of money with 7 per cent interest; that Lena Stuart Tennant, as guardian, accepted said offer and agreed to make said loan in pursuance thereto and the said Lena Stuart Tennant, as guardian, made said loan in accordance with the offer and acceptance to the said Long Oil Company, and the Long Oil Company caused to be issued to the said plaintiff fifteen shares of its stock at the par value of $100 a share.”
Plaintiff also alleged that, pursuant to this agreement, on January 1, 1930, her guardian called on Long for $200, which demand was complied with, and that she then exchanged her certificate of fifteen shares for one of thirteen shares, and six months later she was paid $300 on her demand and she exchanged her certificate for one of ten shares. In December, 1930, she again called on defendants Long and the Long Oil Company for a further sum of $200, which demand was refused, and that she sold the ten shares for the best price obtainable, $550, and brought this action for the balance of $450 of her original $1,500 investment and for interest thereon.
The Long Oil Company answered with a general denial, and denied that Long had authority to bind it by any such agreement as alleged by plaintiff, and alleged that plaintiff’s original investment of $1,500 in the preferred stock of the company was an ordinary purchase by subscription, and that the subsequent transactions whereby it issued a certificate of thirteen shares to plaintiff and a later certificate of ten shares were the consequence of successive sales of stock by plaintiff with which the company had nothing to do except to register the transfers and issue new certificates therefor to the parties entitled thereto. The Long Oil Company also alleged that it was still regularly bound to the person to whom plaintiff’s guardian had sold the ten shares, and that plaintiff was estopped from asserting any claim on the alleged agreement set out in plaintiff’s second amended petition.
It was agreed by the litigants that the eventual sale of the ten shares by plaintiff’s guardian was made to facilitate some corporate arrangements which had nothing to do with the merits of this action and that no deduction to the advantage or prejudice of either party should be made therefrom.
Jury trial; verdict and judgment against the Long Oil Company; appeal.
1. Error is first assigned on the overruling of the demurrer to plaintiff’s evidence. On that point it must suffice to say that however little credence counsel for defendant may be willing to accord to that evidence, it cannot be gainsaid that both plaintiff and her mother gave testimony which tended to prove that the transaction between plaintiff's guardian and Long was that of a loan and not an investment or purchase of the fifteen shares of stock. Moreover, there was competent evidence to show that Long was not only president but principal managing officer of the company, and that he had authority to borrow money in its behalf.
2. The next error assigned pertains to the trial court’s refusal to instruct the jury that the president or managing officer of a corporation has no authority by virtue of his position to borrow funds on its behalf and to pledge its preferred capital stock as security. But the trial court did offer to give an instruction to the effect that if the jury should find and believe from the evidence that the defendant corporation did borrow the money as alleged by plaintiff and pledged its stock as security therefor, “even though it was unauthorized to do so and that such a transaction was in excess of the powers of the president of the corporation and of the corporation itself, that the corporation cannot avail itself of such a defense if you find that it received and retained the benefits arising from the transaction.”
Counsel for defendant stated to the court that they preferred that no instruction on that point be given rather than one containing such a declaration of law. It is not clear that this situation presents any question for appellate review; but, if it does, we hold that the instruction which the trial court proposed to give was a correct statement of the pertinent law governing this case. In Kelly v. Insurance Co., 101 Kan. 91, 165 Pac. 806, L. R. A. 1918C 1170, is was said:
“There are, indeed,'two schools of jurists and two lines of authority on legal questions relating to ultra vires transactions. The case of Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123, discusses at length both the strict and the liberal view concerning the consequences of ultra vires transactions. A long line of well-considered decisions has committed this court to the liberal view that a corporation may not avoid its obligation on a plea of ultra vires when it has appropriated the consideration or received the benefits of it, and when the party seeking to enforce the obligation has fully performed his share of the undertaking.” (Citing many cases.) (p. 98.)
See, also, Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 208, 237 Pac. 913; Fowler v. Shaw, 119 Kan. 576, 240 Pac. 970.
This court discerns no error in the instructions given or refused, nor can it discover anything further in the record to justify discussion.
The judgment is affirmed. | [
112,
120,
-8,
46,
26,
96,
42,
-70,
81,
-95,
-91,
83,
-23,
82,
4,
125,
-45,
125,
80,
106,
-106,
-77,
6,
48,
-45,
-77,
-71,
-35,
53,
95,
-28,
-43,
12,
50,
-54,
-107,
102,
-110,
-63,
84,
94,
-127,
-71,
-20,
-35,
106,
48,
107,
3,
73,
97,
-98,
-29,
40,
29,
94,
104,
45,
-1,
57,
-48,
-96,
-117,
-123,
111,
18,
-127,
36,
-100,
109,
-56,
62,
-104,
-15,
32,
-32,
122,
-74,
-106,
-12,
39,
-103,
8,
102,
102,
1,
69,
111,
-72,
-120,
47,
-14,
-115,
-89,
-16,
120,
-86,
105,
-68,
30,
-19,
-48,
7,
118,
-4,
-99,
88,
108,
7,
-117,
-106,
-79,
13,
124,
-100,
31,
-29,
-93,
48,
117,
-51,
-94,
92,
87,
122,
-109,
-121,
26
] |
The opinion of the court was delivered by
Smith, J.:
This was an action on a health and accident insurance policy. Judgment was for plaintiff. Defendant appeals.
The plaintiff made application for the policy in writing. Among the questions asked him were the following:
“Are your habits of life correct and temperate and are you in sound condition mentally and physically? Yes. Is your hearing or vision impaired and have you any infirmity, deformity or defect? No. Have you ever had fits of any kind, vertigo,- hernia, paralysis, tuberculosis, or any form of heart trouble or kidney disease? No. Have you in contemplation any special journey or hazardous undertaking? No.
“Have you been disabled by either accident or illness, or received medical or surgical attention during the last five years? Yes. If so, when, for what and duration? In August, 1929, for mashed thumb lasting fourteen days. “Have you ever had or been advised to have a surgical operation? No.”
Plaintiff was injured by being hit by an automobile while getting ready to change a tire on his car.
On the trial the evidence of plaintiff showed the application, the issuance of the policy and the injury. In addition it was shown that within four or five months prior to date of issuance of the policy plaintiff was confined for a period of two weeks in a hospital, where he had a surgical operation by which the first and part of the second phalanges of his thumb and finger were amputated; that he drew compensation for such disability; that from December 27, 1929, to December 30, 1929, plaintiff was confined in the hospital for treatment of a sinus infection; that at that time plaintiff was brought to the hospital in an ambulance and was in great pain and in a serious condition; that plaintiff had had this trouble for about a year before the policy was issued, and that within a few weeks prior to the granting of the policy he had been treated for miner’s knee; and that during the five years prior to making the application he had been treated by various doctors.
Among other questions answered by plaintiff when he applied for the policy was the following:
“Do you understand and agree that the right to recovery under any policy which may be issued upon the basis of this application shall be barred in the event that any of the foregoing statements, material either to the acceptance of the risk or to the hazard assumed by the company, is false [or in the event that any one of the foregoing statements is false], and made with intent to deceive, that the insurance hereby applied for will not be in force until the policy is actually issued and that the company is not bound by any knowledge of or statements made by or to any agent unless written hereon, and that you will pay the monthly premium of two and 90/100 dollars in advance without notice? Answer: Yes.”
At the close of the plaintiff’s case defendant demurred to the evidence of plaintiff. This demurrer was overruled.
After hearing all the evidence the trial court made the following findings which are of interest to us:
“1. The court finds that during September, 1929, plaintiff was in the Girard hospital for a period of two weeks for a surgical operation resulting from an injury in a mine accident, which operation consisted of removing a portion of plaintiff’s thumb, a portion of one finger, and minor cuts on plaintiff’s hand.
“2. The court finds that plaintiff was admitted to the Girard hospital on December 27, 1929, and remained in said hospital until the evening of December 30, 1929, suffering from a sinus infection and was treated medically therefor.
“3. The court finds that on and following December 8, 1930, plaintiff was treated by Dr. C. M. Gibson, of Pittsburg, Kan., for an infection in the frontal sinus, or sinusitis, and that on January 10, 1931, Doctor Gibson performed an operation upon the plaintiff removing said trouble.”
The conclusions of law were:
“1. That the answers made in plaintiff’s application for insurance, in omitting the matter referred to in finding No. 2 herein, and in reference to the injury to the hand referred to in finding No. 1 hereof, were matters of omission and not of misrepresentation, and did not materially affect either the acceptance of the risk or the hazard assumed by the insurer.
“2. That plaintiff be awarded judgment against defendant for the sum of $250 as monthly indemnity for the period of five months from January 15, 1931, to June 15, 1931, at $50 per month, with interest at the rate of six per cent per annum from date of judgment.”
The argument of defendant is that the answers to the questions were false; that they were warranties and hence voided the policy.
Plaintiff relies upon R. S. 1931 Supp. 40-1109, subdiv. (f). That paragraph is as follows:
“(f) The falsity of any statement in the application for any policy covered by this section shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive, or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”
Admitting, for the moment, that this section applies to a policy of this kind, we are not prepared to say the answers to the questions by plaintiff did not materially affect the acceptance of the risk. It is well known that sinus trouble may cause an ordinary injury which would be expected to result in only slight disability, to have a much more harmful effect. This is on account of the danger from focal infection.
The effect of questions and answers such as these was discussed in Poultry Producers Union v. Williams, 58 Wash. 64, 107 Pac. 1040. In that case the court said: ■
“Whether the answers made by the applicant for a policy of indemnity or insurance are warranties or mere representations must depend upon the character of the question and its answer, the opportunity of the insurer to guard against the representation in the light of its consequences, or whether it is material to the risk. A warranty must be strictly true. Rice v. Fidelity & Deposit Co., 103 Fed. 427. A representation need only be substantially true. Missouri, K. & T. Trust Co. v. German Nat. Bank, 77 Fed. 117.” (p.66.)
It would be difficult to describe a case where the above rule would apply .any better than to the case under consideration. We must either conclude that such questions are asked of an applicant for insurance just as a gesture or that it is the intention to make the questions and answers a part of the contract.
It will be noted that one of the conclusions of law in this case was that the statements referred to were matters of omission and not of misrepresentation, and did not materially affect either the acceptance of the risk or the hazard assumed by the insurer. This conclusion is well answered by the language of the court in Ins. Co. v. Box Co., 185 N. C. 543, 117 S. E. 785. In that case the insured had answered falsely as to his having had Spanish influenza and having spit up blood. The action was one to set aside the contract. The statute was as follows:
“All statements or descriptions in any application for a policy of insurance, or in the policy itself, shall be deemed representations and not warranties, and a representation, unless material or fraudulent, will not prevent a recovery on the policy.” (p. 546.)
The court said:
“It is very generally recognized that the spitting of blood always is regarded as a serious symptom and not infrequently indicates the presence or near threat of tuberculosis (the disease of which intestate died), and that Spanish influenza has a tendency, at least for a period following the disease, to weaken the resisting powers of a patient and render him more likely to succumb to an attack of serious illness.” (p. 546.)
The injury of which plaintiff complains is that the blow from the car caused both his legs to be paralyzed. There was evidence that one leg recovered, but the other leg was still partially paralyzed at the time of the trial.
Two doctors testified for the plaintiff as to the extent of his injuries. Their testimony was that the condition was caused by an injury to the sciatic nerve. On cross-examination they both testified that this condition might be caused by a blow,'or might be caused by some focal infection in the body, such as bad tonsils, decayed teeth or sinus trouble. They testified that if the patient was suffering with sinus trouble a short time before the blow occurred they could not be satisfied as to whether the condition observed was caused by the blow or by the sinus infection. Three doctors were called by the defendant and testified to the condition of plaintiff. Their testimony was that plaintiff was suffering from sciatica, and that this condition could have been caused by focal infection from sinus trouble. This evidence is borne out by medical authorities. See Conquering Arthritis, by Margolis, pp. 60, 76; also, Infectious Immunity and Biologic Therapy, by Kolmer, 3d ed., p. 1038.
We are not called upon to decide whether these doctors and medical authorities are correct. The point here is whether plaintiff’s failure to state the truth as to the sinus trouble materially affected the acceptance .of the risk or the hazard assumed by the defendant.
The court held as a matter of law that the false statements with reference to the sinus trouble did not affect either the acceptance of the risk or the hazard assumed by the insurer. This amounts to a holding as a matter of law that the company would not have been affected in its decision to accept plaintiff as a risk by the knowledge he had been afflicted with sinus trouble a short time previously, and notwithstanding the general belief among reputable doctors that sinus trouble may be the means of causing serious injury. To state this proposition is to refute it.
We have concluded that the trial court was in error on this point.
The judgment of the district court is reversed with directions to enter judgment for the defendant. | [
-80,
124,
-12,
-97,
26,
96,
-86,
-102,
117,
-128,
-89,
115,
-67,
67,
5,
63,
-65,
63,
69,
50,
-41,
35,
23,
-86,
-14,
-77,
123,
-59,
-79,
75,
-12,
60,
77,
40,
10,
-41,
-26,
74,
69,
80,
-50,
-124,
-88,
-23,
25,
82,
56,
107,
-48,
71,
117,
-97,
-29,
46,
25,
-45,
41,
40,
107,
-80,
-47,
-15,
-114,
13,
-3,
20,
49,
4,
-98,
-29,
90,
12,
-48,
-79,
8,
-4,
82,
-10,
-122,
52,
111,
-71,
0,
102,
98,
48,
81,
103,
-24,
-72,
47,
78,
31,
-92,
-109,
25,
-87,
4,
-66,
-69,
127,
16,
-121,
124,
-3,
93,
29,
40,
3,
-117,
-106,
-79,
-49,
96,
24,
43,
-1,
19,
36,
113,
-51,
-88,
92,
69,
126,
-111,
62,
-102
] |
The opinion of the court was delivered by
Burch, J.:
The action was one to recover on an insurance policy issued on the life of Albert R. Moss, familiarly known as Raymond Moss, and a son of the plaintiff, Albert Moss. Plaintiff recovered, and defendant appeals. The important questions in the case were, whether a provision of the policy relating to reinstatement after lapse had been waived, and whether the insured was in good health at the time of reinstatement.
Previous to September 22, 1931, the policy had lapsed for nonpayment of monthly premiums. J. C. Towson was defendant's solicitor of insurance and collector of premiums, and had authority to solicit reinstatement of lapsed policies. Raymond lived with his father and his stepmother, Mrs. Moss, and had arranged with Tow-son to pay premiums at his home, rather than at the place where he was employed. In the forenoon of September 22 Towson called at the home for the purpose of procuring reinstatement of the policy. Raymond was not at home, and Towson had a transaction relating to the insurance with Mrs. Moss. Out of money left with her by Raymond to pay premiums, she paid all arrearages, and paid premiums in advance to November 1. On the next day Towson delivered the money to the company. On the morning of September 23 Raymond was very sick with an acute disease which physicians testified may have come on very suddenly while he was asleep the night of September 22. He was taken to a hospital, where he died on September 29. The secretary of the company testified that on September 23 he went to the hospital for the purpose of procuring a health certificate, but a lady at a desk informed him he could not see Raymond. He did not talk to any of the doctors or nurses, and made no further effort. At the time of this visit to the hospital the secretary knew Towson had collected the money paid to him by Mrs. Moss. The morning after Raymond’s death Towson requested Mrs. Moss to furnish proof of death, as they desired to make quick payment.
There was satisfactory evidence that Raymond was in good health on September 22, and attended a dance at Kansas City that night. The company did not return the money which had been received, or offer to return it, and did not indicate to Raymond’s father or stepmother, before Raymond’s death, that the policy had not been effectively reinstated. The secretary testified the intention was to keep the money and see if Raymond recovered sufficiently to sign a “revival of good health.”
The policy contained the following provision:
“If this policy lapses because of nonpayment of premiums when due, this policy may be reinstated by the payment of all defaultéd premiums with interest thereon at the rate of five per cent per annum from date of default, and upon payment of the current premium: Provided, The insured shall furnish the company, upon blanks furnished by it, satisfactory proof of good health.”
On two previous occasions when the policy had lapsed for nonpayment of premium, Raymond had signed applications for reinstatement prepared and presented by the company. If in this instance the company desired proof of good health, it was necessary that it should furnish the blanks indicating what would be satisfactory. When Towson received the money to reinstate the policy, he had blanks in his pocket. He did not mention the fact to Mrs. Moss, did not leave a blank with her to be filled out later, did not suggest proof of good health would be required, and made no inquiry or statement about Raymond’s health. He gave a receipt for the money which stated it was understood the policyholder was in good health and free from injury up to 12 o’clock noon of September 22. He then told Mrs. Moss that it was paid up to November, and said, “He is all right now until November.”
There was conflicting testimony relating to material matters, and the findings of the jury show important testimony for defendant was not believed. The jury were instructed by the trial judge, the late George H. Whitcomb, with his customary fairness, thoroughness and perspicacity, and the instructions are not open to the objections urged by the company. The jury returned the following findings of fact:
“1. Did the insured become ill during the night of September 22, 1931, and if so, state the hour as near as you can. A. Yes, late at night or early the next morning.
“2. Was the insured seriousty ill at 8 o’clock a. m. the morning of September 23, 1931? A. Yes.
“3. If you answer question No. 2 in the affirmative, did that illness continue until the insured died? Á. Yes.
“4. Was the insured in condition to transact business from the morning of September 23, 1931, until the time of his death? A. No.
“5. Did the secretary of the defendant company attempt to see the insured on September 23, 1931, for the purpose of obtaining a revival application or health certificate? A. No.
“6. Did the defendant offer to return the premiums paid to any one within a reasonable time under the circumstances? A. No.
“7. Was the insured in good health when the premiums were paid by his stepmother on September 22, 1931? A. Yes.
"8. Did the insured or his stepmother know he was not in good health at the time the premiums were paid September 22, 1931? A. No.
“9. Do you find the agent Towson was held out by the defendant company as having authority to do what he did in connection with the policy in question? A. Yes.
“10. Did the defendant waive the making of the proof of good health by the insured? A. Yes.”
These findings were well sustained by evidence.
Whether Raymond Moss was in good health on September 22 was a question raised by the pleadings, and strenuously contested at the trial. At the trial the defendant offered in evidence the hospital record of the case, which was admitted without objection, except certain statements in the history of the case purporting to show the patient was in bad health on September 22 and previously. Those statements were properly excluded as hearsay. The company had not investigated the origin of the statements before trial, and was not able to do so immediately after the statements were rejected. On motion for new trial an affidavit was presented to the effect Mrs. Moss had given the history which had been placed on the hospital record. This constituted a belated attempt to add to testimony offered by the company at the trial tending to impeach Mrs. Moss, and new trials are not granted to permit introduction of cumulative impeaching evidence which diligence might have discovered in advance of trial.
The judgment of the district court is affirmed.
Harvey and Hutchison, JJ., not sitting. | [
48,
106,
-108,
-66,
74,
-32,
42,
90,
86,
-64,
-91,
83,
-119,
69,
13,
45,
-46,
109,
112,
97,
-73,
-73,
23,
42,
-46,
-13,
123,
-59,
-72,
-35,
102,
-2,
76,
40,
-54,
85,
-90,
74,
65,
28,
-126,
12,
-96,
-20,
-39,
90,
48,
111,
-128,
89,
85,
-98,
-29,
42,
17,
-41,
13,
40,
123,
-72,
-48,
-32,
-118,
5,
-17,
20,
-79,
-60,
-100,
67,
80,
14,
-104,
113,
8,
-4,
115,
-92,
6,
100,
39,
-103,
9,
98,
103,
117,
37,
-19,
-84,
-104,
47,
-76,
31,
-83,
-74,
121,
-88,
9,
-66,
-99,
126,
28,
-105,
-40,
-4,
-43,
93,
40,
11,
-117,
-74,
-79,
-53,
64,
-100,
43,
-2,
-127,
38,
100,
-33,
-94,
93,
71,
126,
-109,
22,
-108
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action to reform an accident insurance policy and enforce it as reformed. Trial was to the court, with the aid of a jury, and resulted in judgment for plaintiff. Defendant has appealed.
The plaintiff, Joseph E. Noel, was employed by a railroad company at Kansas City as a car oiler. Defendant is a corporation engaged in the business of writing policies of insurance against bodily injuries caused by accident, and perhaps other forms of policies, and advertises itself as “The Railroad Man’s 'Company.” L. W. Dearing was an agent of the defendant at Kansas City and appears to have had authority to solicit insurance for defendant, take applications in writing for insurance, collect the premiums for the policies, and to accept offered applications, although the policies were written at the home office of defendant. Dearing had been acquainted with Noel for about five years. On March 9, 1931, Dearing met Noel at the waiting room at the railroad yards where Noel was employed. Several other railroad men were present. He talked with Noel about making an application for an accident policy and explained the policy. Noel seemed to be interested. Dearing had with him a circular furnished him by defendant to be used for advertising purposes and in soliciting insurance. This circular stated: “The ‘New Pilot’ and ‘New Safety’ policies pay; in event of accident” scheduled losses, including “For the loss of thumb and index finger one-half the principal sum.” It also contained a statement of the amount of accident indemnity and hospital benefits. While soliciting the insurance from Noel, Dearing wrote on this circular the amount, $5,000, the policy would pay in the event of accident for any loss, which was double the principal sum; $2,500 for the full principal sum, and $1,250 for the loss of thumb and index finger, one-half the principal sum. He also wrote thereon the amount of accident indemnity of $80 per month and the maximum hospital benefits, $160, and that the premium was $40 per year, payable in ten monthly payments of $4 each, the first payment to be May 1. He also wrote across the face of the circular “Acc’d offer, 3-9-31,” and signed his name, “L. W. Dearing,” and delivered it to Noel. On the same occasion Noel signed a written application for insurance. This was in the form of questions and answers, but it did not mention any specific kind of insurance applied for. Noel also executed- a “paymaster’s order” to the paymaster of his employer directing him to pay defendant out of his salary or wages, as they became due, $4 per month, beginning May 1,1931, for ten months, in payment of the premium on the policy. Dearing took the application for insurance which Noel had executed and the paymaster’s order, and presumably forwarded them to the home office of defendant. In about ten days plaintiff received from defendant a “New Pilot” accident policy of insurance. The principal sum named in the policy was $2,500. In Part I, paragraph B, of the policy is set out in bold black-face type a schedule of the losses arising from accident, for which double the principal sum, or the principal sum, or one-half the principal sum would be paid. Included in this schedule so printed was “For loss of thumb and index finger of either hand . . . one-half said principal sum.” Directly following this schedule in the policy is a paragraph, printed in much smaller type than the schedule, providing for monthly indemnity for the period between the date of the accident and the actual loss as shown by the schedule, and following that, in the smaller type, is a paragraph which, so far as here pertinent, reads: “Loss, as above used with reference to . . . thumb and index finger, means complete severance at or above the metacarpal-phalangeal joints.”
Part II of the policy provides for annual increase of benefits, not material in this case. Part III provides for monthly accident indemnity where there is total or partial loss of time, when there has not been a complete loss of a member, as set out in the schedule, part I, paragraph B. Part IV of the policy provides for double indemnity, which is not applicable in this case; part V for hospital indemnity, and part VI for surgical operations.
On January 2, 1932, while oiling a moving train, Noel’s foot-caught on a wire and he fell in such a way that a part of his left hand was on the rail and his thumb and index finger were mashed by the wheels of the car. As a consequence of this he had to go to the-hospital, where he remained until the second of February. On January 11 the thumb was amputated back of the first joint and the finger amputated about halfway between the second and third joints. Neither the thumb nor finger was severed at or above the metacarpal-phalangeal joints. Plaintiff was not able to return to work until March 16, 1932.
In this action plaintiff’s principal contention was that the contract of insurance was made on March 9, 1931, when Dearing exhibited the circular and explained its provisions and plaintiff made his application for insurance, which was then accepted, and he gave his paymaster’s order for the payment of the premium; that under this contract, so far as the accidental injury which he sustained is concerned, it provided that the company would pay “for- the loss of thumb and index finger $1,250, one-half the principal sum”; that at the time this contract was made these words were not qualified or limited in their meaning; that the ordinary meaning of such language is that the loss of the thumb and index finger is the loss of their use as useful members of the hand. Plaintiff’s action primarily is based upon the claim that the contract, as made and accepted, did not include what was later contained in the policy, that the “loss of thumb and index finger means complete severance at or above the metacarpal-phalangeal joints,” and that the contract having been made without including those words, the policy should be reformed by striking them out, or considering the policy as though it did not contain those words. Under plaintiff’s interpretation of the contract defendant’s liability was for the loss of the thumb and index finger, $1,250, as provided by part I, paragraph B, of the policy, and the additional benefits provided for hospital and surgical operations provided for by parts V and VI of the policy.
Defendant contended that it had no liability under part I, paragraph B, of the policy, .for the reason that there had not been a complete severance of the index finger and thumb at or above the metacarpal-phalangeal joints, but that its liability to plaintiff was under part III of the policy relating to monthly indemnity for total and partial loss of time, and under parts V and VI of the policy relating to hospital indemnity and surgical operations.
The loss of a member of the body, as used in an accident insurance policy, unless restricted or modified by other language, carries the common meaning of the term “loss,” which is the loss of the beneficial use of the member. Obviously this may occur when there is not a complete severance of the member from the body. (Travelers’ Ins. Co. v. Richmond, [Tex. Civ. App.] 284 S. W. 698; Continental Casualty Co. v. Linn, 226 Ky. 328, 10 S. W. 2d 1079; Jones v. Continental Cas. Co., 189 Ia. 678, 179 N. W. 203; L. E. Mut. L. & A. Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699; Moore v. Ætna Life Ins. Co., 75 Ore. 47, 146 Pac. 151; Bowling v. Life Ins. Co. of Va., 39 Ohio App. 491, 177 N. E. 531; Citizens’ Mut. Life Ass’n v. Kennedy, [Tex. Civ. App.] 57 S. W. 2d 265; Sneck v. Travelers’ Ins. Co., 34 N. Y. Supp. 545; Sheanon v. The Pacific Mutual Life Ins. Co., 77 Wis. 618, 46 N. W. 799; Lord v. The American Mutual Accident Ass’n of Oshkosh, Wis., 89 Wis. 19, 61 N. W. 293; Berset v. New York Life Insurance Co., 175 Minn. 210, 220 N. W. 561; Sisson v. Supreme Court of H., 104 Mo. App. 54, 78 S. W. 297; International Travelers’ Ass’n v. Rogers, [Tex. Civ. App.] 163 S. W. 421.)
At the time the contract of insurance was agreed upon, March 9, 1931, Dearing did not exhibit a sample policy to Noel, but showed him the circular previously described, which used the term, “loss of thumb or index finger,” without qualifying language. He testified that he explained to Noel that the term meant severance back of the metacarpal-phalangeal joint, but there was an abundance of evidence on plaintiff’s behalf that no such explanation was made. The court submitted that controversy to the jury, under proper instructions, and the jury found, in answer to a special question, that no such explanation was made, but on the other hand that Dearing intentionally induced the belief on the part of plaintiff that payment would be made if he sustained a substantial loss of his thumb and index finger as functional members of the body by reason of accident. This finding of the jury is abundantly sustained by the evidence, it was approved by the trial court, and is conclusive on that point here.
Since the contract was made, both with the oral understanding and with the natural meaning of the term as stated in the circular used as the basis for negotiations, that the term should have its ordinary meaning, the trial court was justified in treating the policy as though it did not contain words of limitation upon that liability.
Noel was justified in believing that the circular furnished by defendant and used by Dearing as a basis for their negotiations correctly stated the terms of the policy to be issued. Our statute (R. S. 1931 Supp. 40-235) prohibits the use by an insurance company in a circular of a statement of any sort misrepresenting the terms of the policy to be issued or the benefits promised thereby. If defendant planned to issue a policy containing a definition of loss of thumb and index finger differing from that which the words themselves normally would imply, it should have stated that limitation in its circular.
There is another reason for disregarding this limiting definition in the policy. Our statute (R. S. 1931 Supp. 40-1109) provides, in brief, among other things, that no policy of insurance against loss by accident shall be issued unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply. This was not done in this policy. Appellant contends that the definition of loss printed in smaller type in the policy than the schedule of losses is not an “exception,” hence that the statute does not apply. But this is hardly an accurate analysis of the policy. The words “loss of thumb and index finger,” as used in the schedule of accidents to which benefits apply, as previously pointed out, meant the loss of the beneficial use of those members. When, in a succeeding paragraph and in smaller type, the defendant attempted to limit those benefits to cases only in which there was an actual severance at or above the metacarpal-phalangeal joints, it placed in the policy a limitation or exception to its liability previously embodied therein. We think the statute applicable. (See Stewart v. Mutual Benefit Health & Acc. Ass’n, 135 Kan. 138, 9 P. 2d 977.)
Turning now to the points argued by appellant. It is contended the court erred in overruling its motion for judgment on the pleadings and the opening statement of counsel, and in overruling its objection to the introduction of evidence. The points are not well taken. The arguments are predicated upon the theory that defendant was bound by the provision of the policy defining loss of thumb and index finger to mean severance at or above the metacarpalphalangeal joints. This argument overlooks the allegations of the petition for the reformation of the policy to accord with the contract made between the parties.
Appellant next complains of the introduction of evidence. In part this is predicated upon the same theory, namely, that defendant is bound by the language of the policy; but, since a cause of action for reformation of the policy was stated, evidence tending to support those allegations was proper. The court admitted evidence tending to show plaintiff had lost the beneficial use of the thumb and index finger. This evidence was proper as the issues were framed. Plaintiff testified to pain in an attempted use of the thumb and finger. Defendant objected to that, and the court told the jury this was not an action for damages, hence that nothing could be allowed for pain, and the evidence pertaining thereto should be disregarded.
Appellant contends the demurrer to the evidence should have been sustained; but this was properly overruled. Whether plaintiff lost the beneficial use of his thumb and index finger was a question of fact for the jury. (See cases above cited.) It was submitted to the jury under appropriate instructions. The jury found plaintiff had sustained such loss, and this finding is supported by the evidence.
Some criticism is made of the instructions given by the court and of the form of special questions submitted to the jury. We have examined these and find nothing seriously wrong with them.
Appellant complains because the court allowed plaintiff an attorney’s fee of $400. The statute (R. S. 1931 Supp. 40-256) is applicable to the case and authorizes the allowance. However, the court attempted to reserve authority to allow an additional attorney’s fee to plaintiff in the event the defendant appealed the case to this court, and the judgment of the trial court should be affirmed. Appellant complains of that. The point is well taken. The statute does not give the court such authority. An attorney’s fee in such cases should be allowed at the time of judgment so that defendant may appeal from that as from other parts of the judgment. Appellant raises a question brought out in the evidence concerning the contract for attorney’s fees between plaintiff and his attorneys. The statute allowing attorneys’ fees in these cases is designed, generally speaking and in the ordinary cases, to allow plaintiff to receive for himself the full amount of his loss without having to pay a part of it for attorneys’ fees. Whether the contract between plaintiff and his attorneys is one that is fair and proper is not a matter with which appellant is concerned. Since no one else is complaining of it here, it is not properly before us, and for that reason we decline to pass upon it.
As it pertains to appellant, there is no error in the record, except the reservation of the trial court to allow additional attorneys’ fees. On this point the judgment of the court below is reversed. In all other respects it is affirmed. | [
-80,
120,
-8,
-113,
10,
98,
42,
90,
113,
-32,
-89,
83,
-7,
-59,
13,
39,
-34,
109,
-48,
34,
-9,
-125,
23,
-118,
-102,
83,
-15,
-115,
-80,
95,
102,
-3,
77,
48,
10,
-43,
-90,
74,
69,
-100,
-50,
4,
-88,
-32,
89,
72,
-80,
88,
16,
79,
117,
-98,
-29,
42,
26,
-37,
45,
44,
122,
33,
-47,
-15,
-118,
15,
119,
22,
35,
0,
-100,
35,
88,
28,
-104,
49,
40,
-4,
90,
-90,
-106,
116,
37,
-119,
-128,
-26,
102,
49,
21,
-49,
-20,
-104,
62,
-30,
15,
-91,
-110,
25,
43,
14,
-99,
-101,
123,
20,
7,
124,
-8,
85,
92,
40,
3,
-117,
-76,
-30,
-49,
118,
-99,
-117,
-17,
-121,
38,
84,
-56,
50,
93,
69,
126,
23,
-98,
-98
] |
The opinion of the court was delivered by
Hutchison, J.:
The appellant has filed, by leave of court, a second petition for a rehearing on the ground that the court in its opinion failed to determine the question of the constitutionality of R. S. 1931 Supp. 44-543, but instead did consider the validity and constitutionality of R. S. 1931 Supp. 44-542, the constitutionality of which was not challenged, but appellant claims that to save sections 44-505 and 44-543 from the objection of unconstitutionality there should be read into 44-542 the requirement of a notice of the election of the employer. The petition presented a common-law action for damages for personal injuries. The answer pleaded an election of the employer to come under R. S. 1931 Supp. 44-505 of the workmen’s compensation law long before the accident. The plaintiff replied that sections 44-505 and 44-543, R. S. 1931 Supp. “are, in so far as they deprive plaintiff of her right to maintain this action unconstitutional.” In the journal entry of judgment only these two sections were mentioned, and they were held to be constitutional. The opinion of the trial court, set out in the abstract, shows the question of the necessity of a notice of the election of the employer was the only matter under consideration, and it was held not to be necessary to the validity of the law. The specification of error assigned is in the holding of the trial court that sections 44-505 and 44-543 were constitutional.
The appellant in her brief, as the fourth item under the head of essentials, states:
“That if the defendant’s alleged election was otherwise good, it was not and is not binding upon plaintiff, for the reason that the law of 1927, secs. 44-505, 44-542 and 44-543, R. S. 1931 Supp., did not in terms make any provision for notice to the employees, and that none was given to plaintiff; and unless the statute be construed to require notice, it was not and is not binding upon plaintiff; and was inoperative, void and in violation of sections 1 and 18 of the Bill of Rights of the Constitution of Kansas and the Fourteenth Amendment to the Constitution of the United States, in that its enforcement would illegally deprive plaintiff of her right to maintain this action.”
Aside from the few items as to the form 'of the election document filed with the commissioner, the sole question involved in the case was the failure to give notice of the election of the employer. The arguments pro and con were directed to that question almost exclusively, and the court, after holding that notice was not required, further held that the only two statutes having anything to do with an election by the employer were constitutional — they being sections 44-505 and 44-542.
Section 44-543 concerns the election by the employee. No issue of fact or of law was presented as to an election by the employee.
The second petition for a rehearing is denied. | [
-80,
-18,
-15,
-115,
-120,
96,
50,
-106,
113,
-95,
-91,
83,
-81,
-37,
20,
121,
-37,
45,
-47,
107,
-42,
-93,
22,
-54,
-74,
-13,
-47,
-59,
-65,
75,
-10,
-10,
76,
48,
74,
-43,
70,
-62,
-59,
84,
-118,
6,
73,
-20,
88,
64,
60,
122,
-16,
91,
81,
-66,
-29,
40,
26,
-62,
-88,
44,
-37,
-3,
65,
-15,
-114,
-123,
125,
16,
51,
6,
-100,
-89,
120,
14,
-104,
48,
17,
-8,
82,
-90,
-106,
52,
105,
-71,
8,
102,
106,
1,
61,
-17,
-20,
-72,
30,
118,
29,
-91,
-110,
24,
-21,
9,
-106,
-103,
117,
22,
71,
126,
-25,
21,
21,
60,
0,
-117,
-76,
-73,
-49,
100,
30,
3,
-21,
-128,
16,
97,
-36,
-96,
93,
7,
51,
19,
-49,
-100
] |
The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a mortgage. The case comes here on an appeal from an order of the trial court refusing to set aside the judgment.
The facts were fully set out in the case of Suter Bros. v. Hebert, 133 Kan. 262, 299 Pac. 627. In that case all the questions raised in this case were decided except one, which we will notice later. When the action was filed it was to foreclose a mortgage signed by Fred Hebert and Anita Hebert, his wife. At that time Anita was deceased, so Fred and their five minor children, Rósela N. Hebert, Philip Hebert, Agnes Hebert, Gleva Hebert and Eans Hebert, were made defendants. The return of the sheriff was as follows:
“. . . . December 6, 1921, served the same by leaving a copy thereof duly certified with the indorsements thereon at the usual place of residence of the within-named defendants, Fred Hebert, Philip H. Hebert, Gleva Hebert, Agnes Hebert and Eans Hebert.”
When the motion in this case was heard the sheriff was permitted to amend his return to show that he served the summons by leaving a copy with Rosela, at that time a fifteen-year-old girl, and by leaving with her at the residence of her father two copies for him and a copy for each of the other minor children.
The motion in this case is by Philip Hebert to set the judgment aside for lack of service. He has acquired the interest of his sister, Rósela, and filed a similar motion with reference to service on her. The case of Philip Hebert is settled by the decision in Suter Bros, v. Hebert, 133 Kan. 262, 299 Pac. 627.
The only question is whether the service was good against Rósela, the fifteen-year-old girl who was handed a copy of the summons.
The statute then in force (Gen. Stat. 1915, § 6968; Laws 1909, ch. 182, §77), which has since been revised (R. S. 60-408), read as follows:
“When the defendant is a minor, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, then the manner of service may be the same as in the case of adults ...”
To get service upon Rosela required that summons be served upon her and upon her father in his capacity as father. This was not done. Even giving the most generous interpretation to the testimony of the sheriff there is no evidence that any summons was served upon Hebert in his representative capacity. This was necessary in order to constitute valid service. It follows that the order of the trial court overruling a motion to set aside the judgment must be reversed. It is so ordered.
Hutchison, J., not sitting. | [
-15,
108,
-128,
60,
43,
-32,
42,
-102,
75,
-14,
-93,
83,
-23,
-62,
4,
109,
-9,
47,
85,
96,
-57,
-77,
23,
41,
-46,
-13,
-111,
-35,
63,
77,
-12,
85,
12,
58,
-54,
-43,
102,
-126,
-121,
84,
-114,
-123,
120,
117,
121,
2,
52,
123,
54,
14,
21,
-66,
-13,
46,
-104,
-38,
40,
47,
-37,
61,
-48,
-70,
-101,
5,
127,
19,
-77,
69,
-102,
65,
-8,
-82,
-112,
53,
-128,
-24,
115,
-76,
-122,
52,
109,
25,
40,
54,
102,
16,
29,
-21,
-8,
-104,
38,
-18,
-107,
-90,
-108,
88,
35,
36,
-66,
-103,
109,
80,
2,
-2,
-26,
-123,
29,
-20,
7,
-114,
-42,
-109,
-83,
112,
-120,
27,
-14,
-91,
32,
113,
-116,
48,
94,
67,
59,
-39,
-114,
-35
] |
The opinion of the court was delivered by
Dawson, J.:
Fred Bigler was convicted of murder in the second degree for his participation in the crime of robbery which culminated in the violent death of John Baxter, who lived alone on a farm in the eastern part of Saline county.
Bigler had been reared on a neighboring farm, but in recent years he followed the profession of wrestling. He, too, resided alone on a farm belonging to his father, about a mile and a half from Baxter’s place. Other wrestlers frequented Bigler’s residence. One of these, Aubrey Ogden, made his home with Bigler part of the winter of 1931-1932. Another wrestler, Eldon Sullivan, also came to Bigler’s place frequently. Another young man, James Britt, who resided with his mother on a neighboring farm, was associated with this trio and occasionally drove them to wrestling matches in his automobile.
The most significant facts constituting the state’s case against Bigler were these:
Bigler had repeatedly remarked in the presence of witnesses that it would be a “soft thing” to rob Baxter, because he lived alone and kept money in his house. About two weeks prior to Baxter’s death, which occurred on Sunday night, March 6, 1932, Bigler and Ogden called on Baxter, ostensibly to sell him a “tear” gun to protect himself against robbers. Ogden and Sullivan spent the night preceding the tragedy at Bigler’s. On the following forenoon (Sunday) Ogden and Sullivan did some practice shooting with revolvers and drove past Baxter’s place on a pretended rabbit hunt. They had some car trouble and telephoned Britt to come to their assistance. These three returned to Bigler’s place in the late afternoon. Britt overheard Bigler or Ogden say they had some work to do that night. He asked what kind of work, and Sullivan said, “A holdup.” Britt said they could count him out, whereupon Bigler, Ogden and Sullivan started to “razz” him, called him “yellow” and belittled his courage. Britt started for home to do his chores, and Ogden and Sullivan went along, and about 9 o’clock these three returned to Bigler’s. Shortly afterwards one of them said, “Let’s go,” and all four got into Britt’s car. Bigler gave the order, “Go north.” Thence they went west and turned south to a point near Baxter’s home. Bigler said, “Stop,” and he, Ogden and Sullivan got out of the car. Bigler then told Britt to drive south to a road corner and return, saying by that time the trio would be ready to go.' Britt did as directed, and about the time he returned he heard shots and saw a blaze in the Baxter kitchen. Soon Bigler and Ogden came running to the car, and one of them said, “Let’s go.” Britt said, “My God, where is Sullivan?” One of them responded that Sullivan and Baxter had shot each other. Baxter was an adept in the use of firearms. He kept a rifle and shotgun within easy access, and it developed that Sullivan had received a charge in the chest from a shotgun.
The evidence of what immediately followed the shooting of Sullivan and Baxter is partly circumstantial and partly dependent on the testimony of Ogden. But it was inferable that Bigler and Ogden piled the bodies of the dead robber and his victim on a bed, drenched them with oil from a kerosene lamp, and set the premises on fire. Britt drove Bigler to his home and then took Ogden to Salina pursuant to a prearranged plan to provide an alibi for Ogden and Sullivan which slightly miscarried because of Sullivan’s death.
It did not take long for the officers of the law to solve the probable cause of Baxter’s death; and within two days Bigler, Ogden and Britt were arrested for the crime. Ogden pleaded guilty, but insisted that Sullivan was primarily responsible and that Bigler had nothing whatever to do with the robbery or with its tragic consequences. Ogden also declared that it was himself and Britt who piled the bodies of Sullivan and Baxter on the bed and set fire to the premises. Britt turned state’s evidence and supplied most of the incriminating facts which the jury chose to believe, including many details it seems needless to repeat.
The jury returned a verdict of guilty of murder in the second degree against Bigler, and the latter appeals.
1. (a) The first error assigned relates to the denial of defendant’s application for a change of venue. On his behalf it was shown that the crime was a matter of some notoriety and the subject of much newspaper publicity in Saline county. The state, however, by affidavits of numerous citizens living in various parts of the county, made a strong showing that there was no known hostility to defendant, that the case was not much discussed, and that no expressions were heard indicating that defendant could not have a fair trial in Saline county, and affiants averred their belief that he could have a fair trial. The application was addressed to the trial court’s discretion, and nothing in the record suggests any probability of its abuse. (State v. Mullins, 95 Kan. 280, 147 Pac. 828, syl. ¶ 4; State v. Miller, 131 Kan. 36, 289 Pac. 483.)
(b) The next error is based on the overruling of defendant’s motion to require the state to elect on which of the four counts of homicide and the fifth count of arson charged in the information it would rely for conviction. In the first it was charged with ap propriate recitals that Bigler fired the murderous shot which killed Baxter; the second charged that it was fired by Ogden; the third by Sullivan, and the fourth by Bigler, Ogden and Sullivan, “or some, or all of them, the identical person or persons of them, so holding said pistol or pistols being unknown,” etc. The state had no disinterested eyewitnesses to the homicide. Under the law all who participated in the felonious attempt to rob Baxter and which culminated in his death were alike guilty of murder in the first degree, no matter which of them actually fired the fatal shot. (R. S. 21-401; State v. Roselli, 109 Kan. 33, 198 Pac. 195.) It was therefore mere prudence and good pleading under our criminal code for the prosecuting attorney to incorporate four counts in the information to meet the exigencies of the evidence, it being made clear to defendant and likewise to the jury that only one offense of homicide was intended to be charged against him. In State v. Ricksecker, 73 Kan. 495, 85 Pac. 547, it was held:
“Where an information contains several counts, intended to charge the same substantial offense in different ways, and their allegations are not inconsistent, it is ordinarily not error for the trial court to refuse to require the state to elect upon which one it will rely for a conviction.” (Syl. ¶ 1. See, also, State v. Sanders, 127 Kan. 481, 274 Pac. 223, syl. ¶ 5.)
2. Error is based on the overruling of defendant’s motion to strike out certain evidence touching the firearms which, according to the theory of the state, figured in the crime — Bigler’s two guns, a .38 revolver, and a 4-barrel . 22 gun, and Ogden’s . 25 automatic. Empty shells which would have fitted Bigler’s .22 and Ogden’s .25 were found by the kitchen window of Baxter’s home. After the tragedy Bigler turned over his .38 to Ogden, telling him to get rid of it because it was registered in Salina. Ogden’s automatic was found in Bigler’s locked trunk, although he had told the sheriff he had not seen it since Ogden had gone hunting with it on that Sunday forenoon. From this very brief summary of the evidence touching the firearms it should be apparent that no error was committed in overruling the motion “to disregard all of the testimony with reference to the guns, the .22 and the .25, all exhibits in connection therewith.”
3. Error is also urged on the instructions. ’ These were thirty-three in number and occupy sixteen printed pages of the abstract. The two particularly criticized were Nos. 17 and 19. One of these dealt with the defense of alibi, and the other with the criminal responsibility of defendant, although the crime charged against him was committed by Ogden, Sullivan and Britt, or any of them— “if it be a fact, that he, though not actually present at the time and place of the commission of the crime, either counseled, aided or abetted Aubrey Ogden, James Britt and Eldon Sullivan, or any of them, or conspired with them, to rob John Baxter; and if you find and believe from the evidence, beyond a reasonable doubt, that the crime charged was committed and that the defendant counseled, aided or abetted said other 'defendants, and Eldon Sullivan, or any of them or conspired with them to rob said Baxter, then you will be justified in finding the defendant guilty of the commission of the crime charged in the information.” Defendant argues that these instructions were formulated on the theory that there had been a criminal conspiracy on the part of Bigler and his associates to rob and kill Baxter and that “there was absolutely not an iota of evidence as to any such conspiracy.” As we read this record there was a plethora of evidence to prove a conspiracy to rob. The resultant murder flowed from the execution of that conspiracy. The visit of Bigler and Ogden at Baxter’s two weeks before the murder was evidential that such a conspiracy was being formed. The gathering at Bigler’s on Saturday night and the Sunday revolver practice were evidential. The pretended rabbit hunt of Ogden and Sullivan, to enable them to familiarize themselves with the situation of Baxter’s premises, was inferably a preparatory step to execute such conspiracy. Evidence of conspiracy inhered in the statement of Bigler or Ogden, in the presence of both, that there was work to be done that Sunday night, which, in response to Britt’s inquiry as to what sort of work, brought the information, “a hold-up.” Bigler’s act of taking command and giving directions when the four associates left Bigler’s place that night to go to Baxter’s, and the prearranged plan to provide an alibi for three of their number after the planned robbery should be accomplished, that Bigler should be left at his home and that the other three should hurry to Salina so that they might be seen thereabout and thus provide an alibi if they should be charged with its commission- — -these and other details fully justified the state’s theory of a conspiracy and the court’s instructions pertaining thereto.
The seventeenth instruction which dealt with the alibi offered by defendant was a fair statement of the pertinent law; and the addition thereto, touching defendant’s guilt if he aided, counseled or abetted the others in the crime, notwithstanding his possible absence from the scene of the crime at the time and place it was committed, was also pertinent and correct under the evidence.
Complaint is also made of instruction No. 28. Because it recites the testimony to which it pertained, we copy:
“There is testimony in this case offered by the state, of a certain expression or declaration made by defendant while alone in a cell in the jail of Saline county, it being claimed that such expression or declaration was heard by means of a dictaphone, and the jury are instructed that they cannot consider such testimony for any purpose whatsoever unless they find from the evidence, and are satisfied that the defendant was fully conscious of what he was saying, and that the expression or declaration was voluntary, and that he intended to say it.”
The sheriff testified that when Bigler was alone in a jail cell, walking and talking to himself, he heard defendant say, “I can’t confess, I don’t dare confess, it will kill my father.” Defendant’s criticism of this instruction is that it singled out the evidence of this incident which thereby gave it undue emphasis. We think a fair reading of the instruction tends to depreciate the importance of this incident as evidence, if it did occur, rather than to emphasize it. Without some such precautionary instruction the jury might have given it undue significance. (State v. Warner, 129 Kan. 360, 282 Pac. 735, syl. ¶ 3.)
Complaint is also made of the trial court’s refusal to give certain instructions requested by defendant. One of these would have told the jury that the fact that Ogden had pleaded guilty to the murder of Baxter and had been incarcerated in the penitentiary therefor should only be considered as affecting his credibility and for no other purpose. We think the court’s general instruction touching the weight and credibility of the evidence and the apparent interest or want of interest of any witness in the case was quite sufficient. Requested instruction No. 16 would have told the jury that the evidence of an accomplice, while competent, should be weighed with great caution, and that the jury should not convict on the testimony of an accomplice unless it was corroborated on some material point in issue, and that "under the evidence in this case, the witness, James Britt, is an accomplice, and in weighing his testimony you should consider and apply this instruction.” The record shows that a more accurate instruction on this point was given. Moreover, corroboration of the testimony of an accomplice is not required. In State v. Vandeveer, 119 Kan. 674, 240 Pac. 407, it was said:
“Corroboration of the testimony of an accomplice is not absolutely necessary to its being given effect, although upon proper request a monitory instruction should be given regarding it. (State v. Holton, 111 Kan. 577, 207 Pac. 653.)” (675.)
4. The other arguments suggested by assiduous counsel for defendant have been carefully considered, but these call for no protracted discussion. There is nothing this court can do about the fact that, notwithstanding the array of character witnesses presented by defendant, the jury promptly returned a verdict of guilty. The fact that the verdict was guilty of murder in the second degree, when, of course, he was guilty of murder in the first degree or not guilty of anything, presents nothing for correction on appellate review. (State v. Yargus, 112 Kan. 450, 211 Pac. 121, syl. ¶ 2; State v. Brundige, 114 Kan. 849, 220 Pac. 1039, syl. ¶ 6; State v. Uhls, 121 Kan. 377, 382, 247 Pac. 1050.) A final point urged is that defendant was unfairly subjected to cross-examination which constrained him to admit that he had “been arrested three times, I think.” This inquiry was allowable for whatever it might be worth in determining defendant’s character and credibility, both of which questions were in issue (State v. Pugh, 75 Kan. 792, 90 Pac. 242; State v. Smith, 114 Kan. 186, 217 Pac. 307).
No material error is disclosed by the record, and the judgment is therefore affirmed. | [
112,
-24,
-103,
30,
27,
96,
-114,
122,
-54,
-38,
-79,
22,
-53,
-37,
69,
41,
50,
31,
20,
104,
-68,
-105,
19,
-29,
-30,
-13,
-71,
85,
-77,
77,
-90,
-75,
89,
84,
74,
81,
-90,
44,
-59,
28,
-122,
-128,
-21,
-12,
-54,
64,
56,
111,
86,
30,
5,
15,
-109,
47,
28,
-3,
105,
44,
79,
-81,
56,
49,
-94,
5,
-52,
16,
-125,
-30,
-103,
7,
88,
58,
-99,
17,
-128,
-8,
83,
54,
-110,
116,
35,
12,
-116,
102,
99,
96,
77,
-113,
44,
73,
47,
55,
-103,
-81,
-104,
72,
33,
12,
-65,
-35,
123,
48,
-54,
-54,
-25,
77,
9,
-84,
-91,
-114,
-106,
-77,
-23,
114,
-42,
-40,
-29,
39,
53,
117,
-51,
-30,
117,
68,
-16,
-103,
23,
-48
] |
The opinion of the court was delivered by
Burch, J.:
The appeal is from rulings sustaining demurrers of separate defendants to an amended petition filed by the appellant in which it is alleged that he was severely injured by the explosion of an electrical exhauster caused by the negligence of the Board of Public Utilities of Kansas City, Kan. The city was not a party to the action as originally brought but later was named as a necessary party defendant. Two principal questions are involved — Was the board an independent, legal entity which could be sued alone as such? If not, what was the legal effect of the city, as a necessary party, having had its demurrer to the petition sustained by reason of the appellant’s failure to file with the city clerk a notice or claim in compliance with G. S. 1935, 12-105?
In the amended petition it is alleged that the city was the owner of the water and light department, which was operated by the board, and that no notice was served within the statutory period and “for that reason no cause of action is herein plead against the city . . but that said . . . city is a necessary party for the complete determination of the controversy ... by reason of being the owner of said Water and Light Department.” The demurrer of the city to such petition was sustained on December 13, 1945. The notice of appeal was not filed until May 2, 1946, which was four months and nineteen days after the demurrer was sustained, The statute in effect at the time (now G. S. 1945 Supp. 60-3309) allows only two months. Consequently, the appeal from the order sustaining the city’s demurrer was too late and there can be no question lingering as to the liability of the city, even though appellant asserts in his specifications of error that the ruling was wrong.
From the foregoing it follows that there remains for consideration the question whether the board was an independent, legal entity and was liable alone as such for alleged negligence of its employees. In other words, was the city a necessary or indispensable party to further proceedings in the action? The case is most unusual, perhaps unique, in Kansas in that an alleged necessary party was made a party but is no longer a party to the litigation.
In the case of Seely v. Board of Public Utilities, 143 Kan. 965, 57 P. 2d 471, almost the identical question presented by this appeal was before this court in an action for damages predicated upon alleged negligence of the same defendants in the operation of the same municipal light and power plant. From the cited case the following is quoted:
“The principal question in the appeal and cross-appeal is whether the board of public utilities is independently liable for plaintiff’s injuries, or does that liability rest on the city itself, or should it be imposed on both defendants.” (p. 968.)
The opinion in the cited case refers to four of our cases in which we have considered various phases of the statutes which create a separate office -or board of management, operation and control of the municipal water and light plant of Kansas City and thereafter states as follows:
“Nowhere in the statute do we find a plain legislative declaration which relieves the city of damages to persons or property caused through the negligent operation of the electric-light plant, nor does the statute specifically transfer and impose such liability upon the board of public utilities as a wholly independent legal entity . . .” (Emphasis supplied.) (p. 972.)
The opinion in the cited case also calls attention to the fact that even though the municipal plant was being operated at a profit and had a substantial surplus on hand, nevertheless the city would be liable for the payment of any judgment which might be obtained against the board by reason of the negligent operation and management of the utility on the part of the board. We also held therein that a ruling relieving the city from liability as a separate entity would involve constitutional questions of no little gravity. The opinion closes as follows:
“This court holds that the city of Kansas City was both a proper and a necessary party to this action, and that the board of public utilities was and is a quasi-legal entity properly impleaded in this action and sufficiently qualified to participate in this litigaton (Board of Library Directors v. City of Fort Scott, 134 Kan. 586, 7 P. 2d 533), and to be guided by the judgment to the extent that it may satisfy the same out of its available surplus, failing which the city must provide for. the payment of the judgment as in all cases where liability is judicially imposed on a municipality.” (p. 973.)
The ingenious and industrious counsel for the appellant has called our attention to certain statutes which he contends apparently were not considered by this court in reaching its decision in the case of Seely v. Board of Public Utilities, supra, and to the fact that applicable statutes were amended or enacted by the legislature by chapter 142 of the Laws of 1941 and again by chapter 129 of the Laws of 1945 (now respectively G. S. 1945. Supp. 13-1253, 13-1254, 13-1255, 13-1258, and 13-1269 to 13-1273, inc.). We have carefully considered and analyzed the cited statutes and again are unable to find in them any plain legislative declaration which relieves the city of damages to persons or property caused by the negligent operation of an electric light plant or parts of the system. In view of the language of our decision in the case of Seely v. Board of Public Utilities, supra, surely the legislature would have expressed itself in clear language if it had desired to transfer and impose such liability specifically upon the Board of Public Utilities as a wholly independent legal entity. It has not done so and courts and counsel would not be aided by our considering step by step and word by word the changes and additions made in and to the applicable statutes by the legislature subsequent to our opinion in the Seely case, swpra. We are unable to agree with counsel for the appellant that it has been the desire and intent of the legislature to relieve the city from the liabliity declared by our decision in the cited case.
As a consequence it must follow that if the appellant in the instant case obtained a judgment for the $25,000, which is the amount prayed for, the city would become liable for all or any part of the same which might not be recovered from the board. Consequently, substantial rights of the city are involved which are not separable from the liability which might be imposed upon the board. If the city could be made to pay the entire judgment or any part thereof which might be obtained, it cannot be said that its interests would not be antagonistic to the appellant and that its rights would not be seriously affected by the judgment. In 39 Am. Jur. 902, § 35, it is stated:
“Necessary parties defendant include those who have such an interest in the controversy that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience— those who are classed as indispensable parties, without whom the court will not proceed-.to final decision. ' One whose interest is antagonistic in practically every aspect to interests of other parties must be made a party defendant; otherwise, the action cannot proceed.”
Later in the text will be found the following statement:
“The third class includes all those whose interests in the subject matter, of the suit and the relief sought are so bound up with those of the other parties that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction. In this class, such persons are necessary and indispensable parties.” (p. 905, §36.)
Earlier in the text will be found the following statement:
“The burden of procuring the presence of all such indispensable parties is on the plaintiff.” (p. 884, § 25.)
From 47 C. J. 171, § 317, the following is quoted:
“The effect of an order striking out the name of a defendant is as if such defendant had never been a party.”
In 20 R. C. L. 704, § 44, the rule will be found stated as follows:
“If the interests of those present and those absent are inseparable the obstacle is .insuperable.”
The legal result which must follow is that the appellant is confronted with an insurmountable legal obstacle arising by reason of his inability to maintain the action against the city. Since the city is a necessary and indispensable party, the fact that the appellant can no longer proceed with litigation against the city because of the failure to' appeal within time from the ruling sustaining the city’s • demurrer results in the abatement of the action. As hereinbefore stated, we do not reach for decision in this particular case the question whether the district court’s ruling upon the city’s demurrer was correct.
The rulings of the district courts sustaining the demurrers are affirmed. | [
-16,
98,
-115,
12,
91,
98,
104,
-27,
73,
-111,
-25,
83,
-23,
-64,
21,
125,
-6,
125,
117,
91,
-28,
-73,
7,
66,
-42,
-77,
121,
-43,
-79,
94,
-10,
-2,
76,
49,
10,
-107,
70,
-62,
85,
-36,
-114,
7,
11,
-19,
-47,
-62,
52,
122,
114,
2,
81,
-2,
-13,
42,
24,
-62,
-23,
44,
-3,
-124,
-47,
-79,
-118,
-115,
126,
4,
33,
22,
-104,
-121,
-32,
46,
-100,
57,
1,
-20,
114,
-90,
-122,
-3,
1,
-103,
0,
-26,
98,
33,
37,
-29,
-84,
-120,
62,
-78,
-97,
-92,
-76,
88,
35,
41,
-106,
-103,
125,
22,
7,
126,
-26,
5,
95,
108,
-127,
-118,
-26,
-11,
-113,
-91,
-110,
-111,
-26,
35,
32,
116,
-36,
102,
92,
71,
50,
27,
-114,
-40
] |
The opinion of the court was delivered by
Foth, C.:
Michael Blue (charged for some reason as “Michael Jackson a/k/a Michael Blue”) appeals from a conviction for forgery. He was found guilty of knowingly delivering a forged prescription for Quaalude — a tranquilizer and sleeping tablet — to Consumers Pharmacy in Wichita on the afternoon of July 7, 1975. The primary issue before the jury was whether he knew the prescription was forged when he presented it. On appeal he contends the evidence was insufficient on this issue. His chief complaints here, however, center on the state’s rebuttal evidence.
The prescription, purportedly written by Dr. Daniel Thompson, was presented by the defendant to a clerk at Consumer’s Pharmacy. The clerk could not read the patient’s name, and Blue told him it was Minnie Diaz. The pharmacy had no record of a customer by that name, so the clerk gave him an information card to fill out. The defendant identified himself at that time as Michael Jackson. He scribbled an address, which he later testified he knew to be that of a cemetery, and returned the card. The card and prescription were handed by the clerk to Mary Wittstock, the pharmacist, who was unable to fill the prescription because it lacked dosage directions. She called the office of Dr. Thompson and was told he had no patient named Minnie Diaz. At that point she refused to fill the prescription. The defendant insisted that it be filled, repeatedly saying, “She really needs it. Why can’t she have it.” He then asked to speak with the doctor’s office, and the pharmacist redialed the number. The defendant, while speaking with the doctor’s office, asked to see the prescription. When the pharmacist held it up for him to look at he took it from her hand and subsequently left the store with it.
Waiting for him outside in his car was Paula J. Goodbear, a young woman of American Indian ancestry who lived with him in his house. According to their testimony Paula was totally dependent on defendant for transportation; when she needed to run errands for herself or her friends, Blue drove her. The prescription, according to them, was for a friend of Paula’s. The defendant testified he didn’t know any Minnie Diaz (and hence, of course, couldn’t know whether or not “she really needs it”).
Blue and Goodbear next appeared later that afternoon at Poison’s Pharmacy in the Twin Lakes shopping center. While the defendant looked at magazines and smelled cologne Ms. Good-bear presented the prescription, which was promptly recognized as a probable forgery. The police were called and she was taken into a back room for questioning; the defendant was allowed to go into the back room as well. Both were subsequently charged with forgery. Ms. Goodbear pleaded guilty in a separate proceeding; she testified in this case, “I kind of had an idea that it was forged when I went to Poison’s. I got the idea that it was forged after it wasn’t able to be refilled [sic] at Consumer’s.”
Appellant’s first five points go to rulings surrounding the introduction of rebuttal evidence. Both the defendant and Ms. Good-bear testified that they had not visited any other pharmacies on July 7, but had stayed home that morning picking up the house. On rebuttal the state proposed to present evidence to the contrary. In an abundance of caution the court held a Bly hearing (State v. Bly, 215 Kan. 168, 523 P. 2d 397) outside the hearing of the jury. The preferred evidence was ruled inadmissible under K. S. A. 60-455 (it did not show any other crime or civil wrong) but was admitted as rebuttal evidence going to credibility.
The substance of the rebuttal evidence was that Home Drug East had filled a Quaalude prescription from Dr. Thompson for Paula Goodbear that morning, and that the defendant had been with her.
The pharmacist from Home Drug East could not identify either Ms. Goodbear or the defendant, but did describe the woman who had the prescription filled as short, dark haired with an Indian complexion, wearing a halter top and a wide brimmed straw hat. Ms. Goodbear was wearing a halter top and wide brimmed straw hat when she was arrested that afternoon at Poison’s. The prescription was in the name of Sandra Martinez; Sandra Martinez was the name used by Paula Goodbear when she visited Dr. Thompson. The Home Drug East pharmacist described his customer’s companion as a young black man, about five foot ten and thin — a general description of the defendant.- He was observed looking at magazines in the store while Ms. Goodbear had her prescription filled, and only because they departed together did the pharmacist conclude they had come in together.
Wichita police officer Zora M. Graves testified that she had responded to the call at Poison’s. She questioned Ms. Goodbear, who first said that the fraudulent prescription belonged to her sister-in-law, then changed her story saying it belonged to her sister, Sandra Martinez. A search of Ms. Goodbear’s purse after her arrest revealed two bottles of Quaalude, one dated July 3, the other the bottle dispensed by Home Drug East the morning of July 7. Both bottles plus the prescription form used at Home Drug East the morning of July 7 were admitted into evidence.
In two of his points appellant complains of the admission of all the above — the testimony of the Home Drug East pharmacist and Officer Graves, and the exhibits — on the grounds that it was immaterial and that it violated the intent and purpose of K. S. A. 60-455, the “other crimes” statute. The contention is based primarily on the fact that the Home Drug East pharmacist could not positively identify the defendant.
While the eyewitness identification was not positive the circumstantial evidence was convincing. The descriptions of Ms. Good-bear’s physical appearance and of the clothing she was wearing at the time of her arrest matched those given by the Home Drug East pharmacist and, more importantly, she was in possession of the filled prescription, made out in the name she customarily used in her medical dealings. The conclusion is inescapable that Ms. Goodbear was the person who had the prescription filled at Home Drug East that morning. Further, both Blue and Goodbear testi fied that it was customary for them to run errands together because she had no other means of transportation. This, plus a general description of her companion fitting the defendant, gave rise to a ready inference that he was the man with her that morning.
The rebuttal evidence was competent to show that the testimony of Goodbear and Jackson that they did not visit any other pharmacy that day was false; it was thus admissible to attack their credibility under K. S. A. 60-420.
The trial court has broad discretion in determining the use and extent of relevant evidence in rebuttal (State v. Barnes, 220 Kan. 25, 551 P. 2d 815), and its ruling will not be ground for reversal absent abuse of discretion to the prejudice of the defendant. (State v. Emery, 218 Kan. 423, 543 P. 2d 897.) Admission of the rebuttal evidence, put forward to contradict facts brought forth in the defendant’s evidence, was not error.
Nor did the admission of the evidence violate the spirit of the rule against “other crimes” evidence. K. S. A. 60-455, which precludes evidence of another crime or civil wrong to prove disposition to commit the crime currently charged, is simply not relevant. Although the state made a half-hearted effort in the Bly hearing to show that the prescription filled at Home Drug East was also forged, the pharmacist from that establishment testified that the prescription he filled was valid — he called Dr. Thompson’s office and received the go-ahead. No crime or civil wrong was shown to have been committed, and the trial court correctly ruled that the evidence did not come under 60-455 but was admissible as an attack on credibility.
Appellant also argues that the trial court erred in failing to instruct the jury as to the limited purpose of the rebuttal evidence. The contention is without merit. At the close of the pharmacist’s rebuttal testimony the court stated in the presence of the jury:
“I will advise the jury that this is exactly what it is, rebuttal testimony and this goes to the credibility of the witness, Paula Goodbear. You may call your next witness.”
Appellant misconstrues the statement as a promise to advise the jury in the court’s written instructions; it was in fact an on-the-spot instruction to the jury benefitting the defendant more than would have a delayed instruction. A similar on-the-spot instruction was given as to the limited purpose for which the exhibits were received. If appellant wished a further instruction at the close of the trial it was incumbent upon him to make a request, which he did not do. See K.S. A. 22-3414 ( 3).
Appellant’s final argument on the rebuttal evidence is that the prosecutor in closing argument improperly referred to the Home Drug East and Poison’s incidents as demonstrating a “pattern.” In his argument he described the conduct of the twosome who purchased Quaalude at Home Drug East in the morning, with the woman buying the drugs while the man stayed on the fringe of the activity. The prosecutor then went on:
“The evidence would also show that this is almost exactly the same pattern that was used at Poison’s Pharmacy. Paula Goodbear went in. The Defendant hung around the outskirts, not quite going up to talk to her, according to his testimony. However, one of the clerks said, yes, the reason I noticed him is because he went up and talked or she said, couldn’t remember, didn’t know whether they talked but that they got together. They both deny that.”
Appellant’s argument is that the trial court had specifically ruled that the Home Drug East incident was inadmissible under 60-455, yet the prosecutor was permitted to argue that it showed a pattern of conduct — one of the purposes for which other crimes are admissible under 60-455. The state, however, correctly points out that the impeaching nature of the Home Drug East incident was not self-evident. It was necessaiy to demonstrate to the jury that the couple who purchased the drugs in the morning were Goodbear and Blue — only then would their testimony about staying home that morning be shown to be false. The identification of Blue was uncertain — as he argues here at length. However, the similarity between the conduct of Goodbear and Blue at Poison’s in the afternoon and that of the Indian woman and black man at Home Drug East in the morning was one factor which might reasonably and logically support the conclusion that the two pairs were in fact the same. It was therefore proper for the state to point out the similarity in its closing argument.
Counsel may comment on the credibility of a witness where the comments are based on facts in evidence, and considerable latitude is allowed in that discussion. State v. McClain, 216 Kan. 602, 533 P. 2d 1277. The comments here did not exceed permissible bounds, and the court therefore properly overruled the defendant’s objection and his motion for a new trial based on the alleged impropriety of the argument.
Appellant’s final challenge goes to the sufficiency of the evidence on the element of defendant’s knowledge that the prescription was forged. Our review on this question is limited to looking for evidence supporting guilt to ascertain whether there was a basis for a reasonable inference of guilt, and the verdict will not be disturbed if there was substantial evidence from which the jury could draw that inference. State v. Ritson, 215 Kan. 742, 529 P. 2d 90.
Knowledge, like intent, is a state of mind which may be and most frequently is proven by circumstantial evidence. Cf., State v. Gander, 220 Kan. 88, 551 P. 2d 797. Appellant’s actions while in Consumer’s amply support an inference that he knew the signature to be forged. He falsely identified himself; he filled out an information card with an address he knew to be a cemetery; he insisted that “Minnie Diaz” really needed the drug, even though he did not know such a person; and he grabbed the prescription from the pharmacist just prior to leaving. All this conduct was far more consistent with guilty knowledge than with an innocent belief in the validity of the prescription.
Appellant further urges that while the jury could have inferred that he knew the prescription was invalid because it was incomplete, to then conclude that he knew it to be forged violates the rule against drawing an inference from an inference. See, Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P. 2d 763. The appellant, however, gave the false identification and address, and pleaded for the unknown Minnie Diaz, before he was informed the prescription was incomplete. These facts clearly gave the jury a basis from which it could draw a legitimate concurrent inference that the defendant knew of the forgery when he first presented the prescription. The evidence was sufficient on the issue of knowledge.
Affirmed.
APPROVED BY THE COURT. | [
-80,
-20,
-11,
-65,
56,
-96,
56,
26,
83,
-93,
-75,
-13,
-83,
66,
13,
107,
-11,
63,
-44,
-29,
-14,
-77,
7,
-63,
-14,
-65,
122,
-41,
-79,
74,
-28,
-36,
12,
112,
-126,
85,
98,
90,
-15,
82,
-60,
23,
57,
-31,
90,
-48,
96,
106,
-110,
15,
-15,
-99,
-29,
44,
27,
-54,
-87,
40,
75,
61,
88,
-16,
-119,
7,
-23,
50,
-109,
22,
-71,
7,
-6,
14,
-104,
-79,
2,
120,
121,
-90,
-126,
116,
77,
-103,
-124,
102,
98,
48,
25,
-19,
-32,
-120,
-65,
78,
-99,
-89,
-102,
73,
73,
37,
-76,
-67,
108,
90,
15,
-4,
123,
-106,
21,
44,
8,
-117,
-112,
-111,
15,
48,
30,
123,
-17,
35,
0,
85,
-59,
-16,
92,
117,
122,
19,
-34,
-10
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages under our-guest statute. A demurrer was sustained to the petition of the plaintiff and from that ruling the plaintiff appeals.
The action was instituted for the plaintiff, Jack Don Cecil Leabo, Jr., a minor, by Jack Don Cecil Leabo, his father and next friend, against E. W. Willett, administrator of the estate of William E. Willett, deceased. The deceased was the driver of the car and the son of F. W. Willett. The automobile belonged to the father of the deceased. The deceased had driven the car with the consent and permission of his father and had invited the minor plaintiff and some other boys to ride with him as his guests. They had driven to a farm house near Newton commonly known and designated as the “haunted house.” Thereafter they started to drive to the Newton airport.
In addition to the foregoing facts the petition alleged:
. . that at a point approximately six (6) miles North and East of the City of Newton said William E. Willett, now deceased, who was then and there operating and driving said automobile, lost control thereof and ran off the highway and into and against a telephone pole at the left side of the highway, seriously injuring and damaging said petitioner as hereinafter stated . . . That the road or highway upon which said automobile was being operated by the said William E. Willett at the time said accident occurred was an unimproved dirt highway with crooked wheel ruts or tracks therein, which were approximately eight (8) to ten (10) inches deep. That said accident was the legal result of the gross and wanton acts and misconduct of the said William E. Willett in driving said automobile over said deeply ratted road or highway at a dangerous and excessive rate of speed, to wit: 65 to 70 miles per hour.”
The action was originally filed in the probate court of Harvey county as a claim against the decedent's estáte. Judgment was rendered against the defendant for a portion of the damage claimed and the defendant appealed to the district court. In the district court defendant, upon request, was granted leave to plead. He filed a general demurrer to the petition which was sustained. The sole question presented is whether the petition stated a cause of action under our guest statute, G. S. 1935, 8-122b, which provides:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
It will be'observed the injury must be the result of both grqss and wanton negligence. Do the facts alleged in the petition disclose the operator of the vehicle was guilty of the kind of negligence required by the statute?
In order to .render the operator of a vehicle liable in damages under our guest statute his conduct must be such as to denote conscious or intentional misconduct from which injury to someone is likely to result and with a reckless disregard of such consequences. (Stout v. Gallemore, 138 Kan..385, 26 P. 2d 573; Sayre v. Malcom, 139 Kan. 378, 379, 31 P. 2d 8; Ewing v. Edwards, 140 Kan. 325, 326, 36 P. 2d 1021; Aduddell v. Brighton, 141 Kan. 617, 42 P. 2d 555; Murrell v. Janders, 141 Kan. 906, 44 P. 2d 218; Anderson v. Anderson, 142 Kan. 463, 50 P. 2d 995; Cohee v. Hutson, 143 Kan. 784, 57 P. 2d 135.)
In the Stout case, supra, we quoted with approval the definition of wantonness as contained in 40 Cyc. 294, as follows:
“‘Action without regard to the rights of others; a reckless disregard of the rights of others; reckless sport; willfully unrestrained action, running immoderately into excess; a licentious act by one man towards the person of another, without regard to his rights; a conscious, failure to observe due care; a conscious invasion of the rights of another; an intentional doing of an unlawful act, knowing such act to have been unláwful; the conscious failure of one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure.’ ” (Our emphasis.) (p. 390.)
In the Sayre case, supra, the petition alleged defendant while driving his car took his eyes off the road when about seventy-five feet from a culvert, continued to drive his car at a high rate of speed and struck the culvert. We said:
“There is no allegation that defendant purposely drove his car into the culvert, with a reckless disregard of consequences to his guests, being indifferent as to whether he injured them or how seriously. It is not even alleged that he was conscious of the fact that his car was veering to the left of the highway and against the culvert. The petition alleged nothing more than a momentary lack of attention on the part of defendant, which could be nothing more than lack of due care, or negligence.” (p. 380.)
In the Murrell case, supra, defendant was traveling at a speed of sixty to seventy miles per hour under dangerous conditions. The petition alleged he had knowledge of some of the dangerous conditions he was encountering. The facts are fully narrated in the opinion and need not be repeated here. The petition was held to state a cause of action for negligence only. See, also, allegations of the petition which were held demurrable in the Aduddell case, supra. The earlier -cases have been reviewed in the later cases, above cited, and we deem it unnecessary to extend this opinion by again restating the facts in each of the previous cases.
Appellant does not contend the petition alleged the injury was intentionally or wilfully inflicted. Was it otherwise sufficient? It will be observed the petition does not even allege the operator of the vehicle was familiar with the road or that he knew he was entering upon a dirt road before he did so. It fails to state the operator of the car was conscious of the actual dangers he was about to encounter and that, notwithstanding such knowledge of the hazardous conditions of the road, he intentionally drove onto it with utter disregard of the consequences to his guests. Nor does the petition allege the injury occurred after he had traveled on the road for any definite, or approximate, distance and had thus beeome conscious of its hazardous condition and the inevitable or probable results and nevertheless continued to travel thereon with reckless disregard of the consequences. Construed in its most favorable light, but stripped of all unnecessary verbiage, the petition, in substance, merely alleges the operator of the vehicle drove over the road in its condition as previously described at the rate of sixty-five to seventy miles per hour, lost control of the car and ran into the telephone pole and that such conduct was the legal cause of the injury. From all that appears in the petition the operator may have had no knowledge of the condition of the road whatever and the accident may have occurred after leaving a perfectly smooth highway and immediately upon entering the road in question. On the other hand, the accident may have occurred some time after entering upon the road but before its hazardous condition could be fully realized and before the operator, in the exercise of reasonable care, could have avoided the accident. The petition thus may be entirely sufficient to disclose negligent conduct but we think it clearly fails to state facts disclosing gross and wanton negligence.
Appellee further urges that in order to state a cause of action under the guest statute the petition must allege the guest exercised due care. Our statute does not expressly make that requirement and we think it cannot fairly be said to be included by implication. The failure of the guest to exercise reasonable care for his own protection is, of course, a proper defense if raised by the defendant. (Koster v. Matson, 139 Kan. 124, 30 P. 2d 107.) The failure of the guest to exercise due care for his own protection was carefully treated in the Koster case and such failure was said to satisfy the definition of contributory negligence; The established rule in this jurisdiction is that contributory negligence is an affirmative defense which must be pleaded by the defendant in order to be available to him unless such negligence appears on the face of the petition. (Horton v. Atchison, T.& S. F. Rly. Co., 161 Kan. 403, 416, 168 P. 2d 928, and cases therein cited.) Lack of due care on the part of the guest does not appear on the face of this petition and the demurrer on that point was not good. But as previously indicated herein the demurrer was properly sustained on another ground, and the order is affirmed. | [
-48,
122,
-12,
46,
27,
-32,
0,
26,
83,
-31,
39,
83,
-25,
-24,
0,
51,
-17,
47,
85,
105,
-9,
-73,
86,
-94,
-46,
-77,
-55,
85,
-94,
-53,
102,
-1,
76,
112,
-118,
21,
-91,
72,
-123,
-40,
-50,
13,
-117,
-32,
-103,
18,
52,
56,
6,
15,
-75,
-113,
-9,
42,
58,
99,
109,
42,
123,
47,
-63,
49,
-50,
5,
126,
3,
-95,
4,
-100,
-121,
120,
9,
-108,
57,
40,
-4,
51,
-90,
-128,
-44,
111,
-103,
8,
34,
103,
37,
73,
-95,
-72,
-72,
7,
-86,
45,
-89,
-34,
57,
123,
1,
-97,
31,
115,
48,
13,
116,
-4,
68,
89,
96,
7,
-49,
-108,
-95,
-27,
-96,
28,
10,
-21,
-81,
50,
113,
-55,
-74,
93,
69,
112,
-101,
7,
-72
] |
The opinion of the court was delivered by:
Fatzer, C. J.:
This is an original action in mandamus brought by petitioner Larry Rogers, Senator-elect for the 21st Senatorial District, against respondent, Elwill M. Shanahan, Secretary of State, to compel her to perform the duties of her office 'as set forth in K.S.A. 1975 Supp. 46-142 (b).
The facts are not in dispute. At the general election held on November 2, 1976, petitioner Rogers was elected to the office of Senator for the 21st Senatorial District of the State of Kansas. Subsequent to the general election, the State Board of Canvassers made the final canvass of the election and determined petitioner had been duly elected. In accordance with this determination, the respondent, Secretary of State Elwill M. Shanahan, issued to petitioner a certificate of election dated November 24, 1976, and transmitted to petitioner that certificate and a letter of the same date notifying petitioner of the preorganizational meeting of the Kansas Senate to be held in the Senate Chambers at 10:00 a. m., Monday, December 6, 1976.
On Thursday, December 2, 1976, the incumbent senator for the 21st Senatorial District, Leslie A. Droge, filed a statement of his intention to contest the election of petitioner Rogers. Such notification of intent to contest petitioners election, under respondent’s interpretation of K. S. A. 1975 Supp. 46-143, rendered petitioner ineligible to attend the preorganizational meeting of the Senate. On December 4, 1976, petitioner filed in the Supreme Court a petition for writ of mandamus to compel the Secretary of State to read his name at the preorganizational meeting among the roll of members-elect to the Kansas Senate certified by the State Board of Canvassers. Respondent answered, and both parties filed supporting memorandums.
Because of the pressing public importance of this question, hearing on the matter was set for December 6, 1976, at 8:30 a. m. Oral arguments were heard and the court thereupon issued an order directing the respondent, the Secretary of State Elwill M. Shanahan, to read the name of petitioner Rogers from the roll of members-elect to the Senate at the preorganizational meeting on December 6, 1976, at 10:00 a. m. as required by K. S. A. 1975 Supp. 46-142 (b). This opinion supplements that order.
K. S. A. 1975 Supp. 46-142 and 143 govern preorganizational meetings of members-elect to the Senate. K. S. A. 1975 Supp. 46-142 (b) provides:
“Persons elected to the senate in 1976 for terms to commence in 1977 shall meet at the state capítol in Topeka on the first Monday in December in 1976, and such members-elect shall convene at 10 o’clock a. m. in the senate chamber. The secretary of state or an assistant or deputy assistant designated by the secretary of state shall call the meeting to order, and shall call the roll of the members-elect from the list certified by the state board of canvassers and shall thereupon appoint one of the members-elect to be temporary chairperson of the meeting. Upon adjournment, on the same day, the members-elect of the majority and minority parties of the senate shall caucus and nominate their candidates, respectively, for president and vice-president of the senate for the next ensuing four years and select, respectively, their majority leader, minority leader, and other caucus or party officers. Such bodies of members-elect may determine such other matters as their parties shall deem necessary and proper and as will aid the legislature in organizing and performing its functions as soon as possible after the legislature is convened. In each fourth year after 1976, the members-elect of the senate shall meet and caucus in the same manner and take such actions as hereinbefore indicated.”
K. S. A. 1975 Supp. 46-143 provides:
“When the secretary of state transmits the certificate of election to each of the members-elect to the legislature, there shall be enclosed therewith a notice of the preorganizational session. No candidate involved in an election contest shall be notified of any such meeting, nor shaE any such candidate be eligible to attend.”
As previously noted, respondent reads 46-143 as making petitioner ineligible to attend the preorganizational meeting. The petitioner argues that K. S. A. 1975 Supp. 46-143 has the effect of barring him from the rights and privileges of a senator-elect and denies him and his electorate due process of law as guaranteed by Section 18 of the Bill of Rights of the Kansas Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States, and equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. Petitioner further argues the language of 46-143 is ambiguous and in conflict with 46-142.
When the constitutionality of a statute is challenged, this court is guided in its consideration by certain principles which were recently noted in Leek v. Theis, 217 Kan. 784, 792-93, 539 P. 2d 304, 312-13:
“Long-standing and well estabEshed rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionaEy valid, that should be done. (State, ex rel., v. Fadely, 180 Kan. 652, 658, 659, 308 P. 2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P. 2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P. 2d 506; and 16 Am. Jur. 2d, Constitutional Law, §175, pp. 399-401.)”
Both petitioner and respondent read K. S. A. 1975 Supp. 46-143 as making petitioner ineligible to attend the preorganizational meeting provided for in K. S. A. 1975 Supp. 46-142 because his election has been contested. Petitioner contends the statute is therefore void because it denies him certain constitutionally guaranteed rights. Respondent argues no constitutional rights are involved or violated. From our reading of the statute, we find it unnecessary to reach the constitutional questions raised. We believe neither of the parties has correctly interpreted K. S. A. 1975 Supp. 46-143.
When, as here, the resolution of a question requires construing a statute, the court is guided by certain presumptions. It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute. See 82 C. J. S. Statutes § 316 (b) (1953); See also, Rausch v. Hill, 164 Kan. 505, 190 P. 2d 357.
In Hessell v. Lateral Sewer District, 202 Kan. 499, 502, 449 P. 2d 496, 500, it was said:
“Appellants’ contention depends upon a construction of the statute. In construing a statute words and phrases should be construed according to the context and the approved usage of the language. (K. S. A. 77-201, Second.) Words in common use are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. (Roda v. Williams, 195 Kan. 507, 407 P, 2d 471.)”
In arriving at the meaning of K. S. A. 1975 Supp. 46-143, the terms “member-elect” and “candidate” appear to be the key. The statute reads:
“When the secretary of state transmits the certificate of election to each of the members-elect to the legislature, there shall be enclosed therewith a notice of the preorganizational session. No candidate involved in an election contest shall be notified of any such meeting, nor shall any such candidate be eligible to attend.” (emphasis supplied)
The terms “candidate” and “member-elect” are not synonymous. A “candidate” is one who seeks an office. Black’s Law Dictionary 260 ( 4th ed. 1951); 29 C. J. S. Elections § 1 (10)a (1965). In Tucker v. Raney, 145 Kan. 256, 258, 65 P. 2d 329, 331, it was said:
“The word ‘elect’ when applied to an office is frequently used in the sense of one chosen, or properly chosen, or chosen as provided by law.” (emphasis supplied)
The term “elect” used as an adjective is defined as being chosen for an office, but not yet installed; it is usually used after a noun (as president-elect). Webster’s Third New International Dictionary 731 (1961). “Member-elect” is not defined in the Kansas Statutes Annotated. Neither definition of “candidate” given either adds to or detracts from what has been said above. See, K. S. A. 1975 Supp. 46-221 (b); K. S. A. 1975 Supp. 25-4102 (a).
The Supreme Court of South Dakota long agO' distinguished between a person declared to be elected and a person who is simply a candidate. The words of that court in Bowler v. Eisenhood, 1 S. D. 577, 48 N. W. 136 (1891), are appropriate to the case at bar:
. . [S]ectíon 1489 provides that the notice of contest shall be given ‘in writing to the person whose election he intends to contest.’ What is the meaning of the term ‘election,’ as used in this section? Do the law-makers refer to the candidacy of a person for an office, — one who simply claims that he has received the highest number of legal votes for the office? Or do they mean the person who has been in some manner decided or declared to be elected? We think the legislature intended by that term the person actually determined to have been elected. This view seems to be confirmed by the definition of the term ‘election’ by law writers. Bouvier, in his Law Dictionary, (volume 1, p. 519,) defines ‘election:’ ‘Choice, selection; the selection of one man from amongst more, to discharge the duties in a state, corporation, or society.’ Mr. Anderson, in his Dictionary of Law (page 394) defines the term: ‘A choosing or selecting; also the condition of having been chosen or selected; choice or selection.’ And this term, as generally used, is understood to mean one who has by some legally constituted board been declared elected to an office. We think, therefore, that the expression ‘the person whose election he intends to contest is a person who has been decided or declared to be elected by a board or officer authorized to determine the result of the election, — one no longer simply a candidate voted for or subject to be declared elected, but one so declared or decided to be elected, and who has received, or is found entitled to receive, a certificate of his election.” Id. at 583-84, 48 N. W. at 138. (emphasis supplied)
Since a person running for a senate seat must be “declared duly elected” before his election may be contested (K. S. A. 25-1405), there must necessarily be a “member-elect” involved in any election contest. Another “candidate” or any qualified voter of the county or district to be represented by such “member-elect” may contest his election. Id.
The legislature could have used the term “member-elect” instead of “candidate” in K. S. A. 1975 Supp. 46-143, but it did not. Giving the words the legislature did use their ordinary and common meaning, and being guided by the rules and presumptions of statutory construction noted above, we read the statute as saying “memiberselect” shall receive a certificate of election and notice of the preorganizational meeting from the Secretary of State. Other “candidates” who may be involved in an election contest are not to receive a notice of such meeting nor are they eligible to attend.
This construction of K. S. A. 1975 Supp. 46-143 comports with another presumption in aid of statutory construction. It is presumed the legislature had and acted with full knowledge and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation. 82 C. J. S. Statutes §316 (1953); See, Bayless v. List and Clark Construction Co., 201 Kan. 572, 441 P. 2d 841; Peters v. Peters, 177 Kan. 100, 276 P. 2d 302.
The general principles of law involved are discussed in 26 Am. Jur. 2d Elections § 305:
“A certificate of election is not title to a public office, but a mere muniment of title. It is only prima facie evidence of the holder’s right to the office. Unless so provided by statute, it is not conclusive of an election as against direct attack, yet it entitles the recipient to take the office as against an incumbent whose term has expired, notwithstanding the pendency of a proceeding to contest the election instituted by the incumbent or another. He has- a right to exercise the functions of the office until the true result of the election is determined in the manner authorized by law, or until the certificate is set aside in an appropriate proceeding. In other words, the certificate confers a temporary right subject to destruction by an adverse decision of a tribunal having jurisdiction in the matter.’’
An excellent statement of Kansas law on the subject is found in In re Gunn, 50 Kan. 155, 32 Pac. 470. That controversy involved which of two rival factions was entitled to organize the 1893 session of the Kansas House of Representatives. In reaching its decision, the court discussed the effect and conclusiveness of certificates of eleotion:
“It may seem plausible, without full consideration, to say that only those members of the legislature who are actually elected, whether having certificates or not, are the persons that should organize either house. But some method of organization is necessary; some written evidence of title must be created or exhibited before any person can be regarded as having a prima facie right to a seat in the legislature. Those persons having certificates, and only those, must be permitted to organize, and no authority can change or overthrow that right or prima facie written evidence of title of a member except the house itself; and the members of the house cannot be regarded as a legal or constitutional house until there is some temporary or permanent organization by a majority thereof; that is, by 63 members having certificates of election. The certificates of election give a title to the members holding the same, which must govern their associates until there can be an adjudication by the house itself to the contrary; that is, by a constitutional house having a quorum. (Id. at 177, 32 Pac. at 474)
“. . . The house, after it is organized, ‘is the judge of the elections, returns and qualifications of its own members;’ but, before organizing, the persons having certificates, whether eligible or not, are the members to organize. Before organizing, there is no one — no house — to- reject or oust a member holding a sufficient certificate. There is no one — no house — to pass upon his eligibility or election. Until the house is organized, the certificate is the evidence of the lawful title that controls.” (Id. at 179, 32 Pac. at 475)
While matters of public policy are for the legislature, we would also note that the construction we have given K. S. A. 1975 Supp. 46-143 does have a beneficial effect favoring public interest. It is the accepted view that it is in the public interest for an elected office to be filled, and for the member-elect to exercise all the rights, responsibilities and duties of his office until the appropriate authority decides otherwise.
Judge McCrary, in his work on elections, states:
“Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, it is often necessary to determine which of the claimants shall be permitted to qualify and to exercise the functions of the office, pending such investigation. If the office were to remain vacant pending the contest it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of the services of a public officer. Besides, if the mere institution of a contest was to be deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil disposed person, to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term. And this might be done, by a contest having little or no merit on his side, for it would be impossible to discover, in advance of an investigation, the absence of merit. And again, if the party holding the ordinary credentials to an office, could be kept out of the office by the mere institution of a contest, the organization of a legislative body, such for example as the House of Representatives of the United States, might be altogether prevented, by instituting contests against a majority of the members, or what is more to be apprehended, the relative strength of political parties in such a body might be changed, by instituting contests against members of one or the other of such parties. These considerations have made it necessary to adopt, and to adhere to, the rule, that the person holding the ordinary credentials shall be qualified, and allowed to act pending a contest and until a decision can be had on the merits.” G. McCrary, A Treatise on the American Law of Elections, 227-28 (4th ed. 1897).
The filing of a contest in the Senate and its final determination could conceivably occur long after the election. The meeting of the State Board of Canvassers for making the final canvass of a general election is to be called not later than December 1, and it may be recessed from time to time until the canvass is complete. (K. S. A. 25-3206) The election can be contested up to thirty days after the declaration of the canvassers. (K. S. A. 25-1406) Witnesses may be subpoenaed and deposed in gathering supporting information for the election contest. (K. S. A. 25-1407) After all materials are gathered, they are transmitted to ‘the Secretary of State. (K. S. A. 25-1408) The Secretary of State is to deliver the materials to the presiding officer of the Senate on or before the second day of the session of the legislature next after the taking of the depositions. (K. S. A. 25-1409) Under our construction of K. S. A. 1975 Supp. 46-143, the member-elect performs as a member-elect and then as a senator until such time as the contest is decided.
Looking to the whole act in which the statute in question appears, we find further support for our construction. In Fleming Company v. McDonald, 212 Kan. 11, 16, 509 P. 2d 1162, 1167, we said:
“Another rule for construing statutes is that the legislative intent is to be determined by a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. (Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772.)”
The present wording of K. S. A. 1975 Supp. 46-143 was accomplished by H. B. 2032, an act concerning organization of the legislature which amended K. S. A. 25-3210, 25-3211, 46-142, 46-143 and 46-145. (1975 Kan. Sess. Laws, Ch. 270.) Viewing the whole act, we believe the various provisions are consistent, harmonious and sensible using ‘the meanings we have accorded the two terms in question.
The act provides that the Secretary of State shall record and file each certified statement and determination as made by the State Board of Canvassers and shall transmit without delay a certificate of election to each of the persons declared to be elected. (§ 6; K. S. A. 25-3211) Members-elect to the Senate for terms to commence in 1977 shall meet in Topeka on December 6, 1976. (§ 1; K. S. A. 46-142 [&].) The Secretary of State shall notify each member-elect of this preorganizational session when she transmits the certificate of election. (§2; K. S.A. 46-143) At the Senate preorganizational meeting on December 6, the Secretary of State shall call the meeting to order and shall call the roll of the members-elect from the fist certified by the State Board of Canvassers. (§1; K. S. A. 46-142) Upon adjourning the meeting the same day, the members-elect of the two parties shall caucus and nominate their candidates for Senate officers and party leaders; they may also determine such matters as their parties deem necessary and proper and as will aid the legislature in performing its functions as soon as possible after the legislature is convened. (§ 1; K. S. A. 46-142 [b]) At the time fixed for convening the regular session of the legislature, the Secretary of State shall report to each house the list of members elected thereto in accordance with determinations of the State Board of Canvassers. (§ 5; K. S. A. 25-3210) The Secretary of State shall serve as temporary chairman of the Senate from the moment of convening until the president of the Senate has been duly elected. This election is the first order of business following the administration of oaths to the senators. (§1; K. S. A. 46-142 [d])
Under our construction of K. S. A. 1975 Supp. 46-143, a “member-elect” participates in the preorganizational meeting and is sworn in as a senator at the first regular session. Our statutes provide that the Secretary of State shall, at both the preorganizational meeting and the first regular session, read the roll of members-elect as have been declared elected by the State Board of Canvassers. The filing of an eleotion contest has no effect on this list. The determination of the State Board of Canvassers stands until the Senate rules otherwise. (K. S. A. 1975 Supp. 46-142 [d\; Kan. Const. Art. 2, § 8) This can occur only after the Senate convenes at its first regular session. Giving the term “candidate” as used in K. S. A. 1975 Supp. 46-143 its plain meaning, which is something other than “member-elect,” renders K. S. A. 1975 Supp. 46-143 consistent with the other statutes.
For the reasons as set forth in the foregoing opinion, a peremptory order of mandamus is allowed whereby the Secretary of State is directed to read the petitioner’s name at the Senate preorganizational meeting among the roll of members-elect certified by the State Board of Canvassers as provided by K. S. A. 1975 Supp. 46-142. | [
-75,
-20,
-11,
29,
10,
-64,
-62,
-98,
107,
-79,
-91,
83,
-95,
90,
21,
123,
91,
47,
81,
107,
-60,
-77,
87,
-49,
52,
-77,
-39,
-41,
-77,
90,
-4,
-1,
72,
48,
10,
-43,
-58,
-62,
-121,
-36,
-82,
-126,
73,
-56,
-40,
-128,
60,
43,
18,
75,
81,
126,
-13,
40,
26,
-64,
-23,
32,
-37,
96,
-56,
-71,
-117,
-107,
95,
82,
51,
-122,
-98,
-123,
112,
46,
-40,
48,
24,
-20,
115,
-90,
-106,
102,
109,
-55,
8,
102,
99,
3,
-99,
-83,
-68,
-72,
87,
83,
61,
-26,
-109,
25,
98,
8,
22,
-103,
117,
-110,
11,
114,
-29,
5,
23,
44,
14,
-118,
-42,
-79,
79,
58,
6,
90,
-21,
64,
0,
113,
-51,
-12,
95,
99,
50,
27,
-114,
-108
] |
The opinion of the court was delivered by
Kaul, J.:
This action was brought by the state for the benefit of Crawford County against Gene E. Masterson, county treasurer, and the corporate surety on his official bond, The Western Surety Company, to recover $59,500.00 which Masterson allegedly embezzled from county funds during his tenure of office.
Masterson is not a party to this appeal. For convenience The Western Surety Company will be referred to hereafter as Western.
The issues on appeal concern the application of the applicable statute of limitations (K. S. A. 60-512[2]) to the stipulated facts of the case and the effect of the stipulation entered into by the parties on the posture of the case.
Masterson was first elected county treasurer in November 1966 and assumed the duties of office on October 10, 1967. He was elected to three additional successive terms at the general elections of 1968; 1970; and 1972.
The terms of office for which Masterson was elected are as follows: October 10, 1967 to October 14, 1969; October 14, 1969 to October 12, 1971; October 12, 1971 to October 9, 1973; and October 9, 1973 to October 14, 1975. Western duly executed and supplied an official bond in the amount of $50,000.00 for each term of office pursuant to the provisions of K. S. A. 19-501, et seq. [now 1976 Supp.].
During the last term, on November 5, 1973, Masterson resigned. As a result of a county audit, Masterson was charged with five counts of grand theft. He was charged in count 1 with theft of $5,626.71 for the year ending December 31, 1969; in count 2 in the sum of $25,714.63 for the year ending December 31, 1970; in count 3 in the sum of $15,640.92 for the year ending December 31, 1971; in count 4 in the sum of $9,757.79 for the year ending December 31, 1972; and in count 5 in the sum of $2,759.95 for the year ending December 31, 1973; the sum total amounted to $59,500.00.
Masterson eventually pled guilty to counts 4 and 5 and the state dismissed the first three counts of the information.
The petition in the instant action was filed May 24, 1974, alleging that Masterson had misappropriated the total sum of $59,500.00 during his terms of office and that Western, on its bond, was responsible for these misappropriations. The petition specifically alleged that Masterson through fraud and deceit withheld, at the end of calendar years 1969 through 1973, the sums for each year as recited in the information filed in the criminal case filed against him as set out above. In its answer to plaintiffs petition Western moved to dismiss plaintiffs action as to all sums not accounted for, not settled for, or misappropriated, more than three years preceding commencement of the action on the grounds that the action for such prior sums was barred by K. S. A. 60-512[2] — the three year statute of limitations applicable to actions upon a liability created by statute. In its reply to Western’s answer, plaintiff alleged the cause of action sounded in fraud and that K. S. A. 60-513 was the applicable statute of limitations.
On May 14, 1974, Western tendered the sum of $28,158.66, representing the amounts claimed to have been embezzled during the years 1971; 1972; and 1973. Western offered to confess judgment in this amount. The tender and judgment offered were rejected by plaintiff.
On December 19, 1974, a pretrial conference was held and the parties submitted a stipulation which was accepted and approved by the trial court. The stipulation in part pertinent to the issues herein is recited in the pretrial order as follows:
“The parties stipulate further that the key and only issue for determination at this time is whether K. S. A. 60-512 or 60-513 is the appropriate statute of limitations and that the same is an issue of law for the court’s determination. If K. S. A. 60-513 is the appropriate statute, defendant, Western Surety Company, owes for all alleged shortages; if K. S. A. 60-512 is the appropriate statute, said defendant owes only for the years 1971, 1972 and 1973, the claims for the years 1969 and 1970 being barred by the said statute of limitations.”
On February 20, 1975, the trial court filed its memorandum decision ruling that the action was founded on a liability created by statute; that K. S. A. 60-512 controlled; and that recovery ' against Western for losses sustained in the years 1969 and 1970 was barred by the statute. The trial court further ruled:
“. . . A civil action accrued to Crawford County each time the Treasurer did not truly and accurately account and settle his accounts as required by K. S. A. 19-507 and 19-520. . . .”
Following the trial court’s ruling the plaintiff retained present counsel who filed a motion for rehearing or new trial. In its motion plaintiff took the position that the trial court erred as a matter of law in accepting and approving that portion of the pretrial order which recited that in the event 60-512[2] did apply it was stipulated that 1969 and 1970 were not collectable. Plaintiff contended that, notwithstanding the applicability of 60-512[2], the years 1969 and 1970 were collectable and that the court erred as a matter of law in approving a wrong application of the law rather than merely a stipulation of facts. In its motion for rehearing plaintiff asked that the trial court reverse its decision with respect to the erroneous approval of the stipulation as to when the statute of limitations commenced to run and enter judgment for plaintiff for the shortages in 1970, and further that plaintiff be allowed time to discover when the 1969 shortages occurred. Plaintiff later abandoned any claim for 1969 shortages.
Plaintiff’s motion for rehearing was overruled by the trial court. In this ruling the trial court appeal’s to have adopted the theory that the statute commenced to run whenever the county treasurer first took funds. In this connection the trial court stated in its memorandum:
“I do not understand the cases cited by the parties or in the Memorandum Decision to mean that the statute of limitations only commences to run either at the end of the term of the officer who converts county funds to his own use during that term. The delict occurs when he first takes the funds and at such time the county has an absolute cause of action against the surety to recover the amount taken."
The court further noted the provisions of K. S. A. 19-507 require a county treasurer to meet with the board of commissioners in October of each year and at such other times as they may direct to settle with them his accounts as treasurer and to exhibit his books and accounts. The court also noted K. S. A. 19-212 provides that the board of county commissioners have the power to examine and settle all accounts of the receipts and expenses of the county. Although the court did not specifically say so, reference to the above mentioned statutes indicates that the court believed a cause of action might have accrued each time Masterson violated the provisions of such statute.
In concluding its memorandum, the court stated that it adhered to the position previously taken and overruled plaintiff’s motion for a new trial and rehearing.
This appeal followed.
Appellant specifies three points on appeal in these words:
"1. It was improper for the Trial Court to approve the pretrial order with respect to the Stipulation made between the parties concerning the application and interpretation of K. S. A. 60-512, which application and interpretation made by the parties, approved by the court was erroneous.
“2. The Court erred in finding that the statute of limitations which was K. S. A. 60-512, began to run at the end of each year that the County Treasurer embezzled county funds, rather than at the end of this term of office at which time he was required to turn over to his successor, all monies that he had collected in that office.
“3. The court erred in not allowing plaintiff’s attorney fees pursuant to K.S.A. 40-256.”
Appellant’s first point is that the stipulation of the parties as to the interpretation and application of 60-512 was erroneous and is not binding on the court. Whether the stipulation as to the law, referred to in point one, is erroneous is actually the issue raised in point two. Thus, we shall first consider appellant’s point two.
The question presented in point two is — when did a cause of action accrue for the recovery of the sums taken by Masterson during the year 1970? Appellant claims it was October 12, 1971, when the term of office in question expired, at which time the county treasurer was required to turn over to his successor all moneys belonging to his office. Western, on the other hand, contends a cause of action accrued each time Masterson violated his public trust and statutory duties in failing to make accurate statements for his office on the last business day of January, April, July and October in each year as required by K. S. A. 19-520. Western also cites K. S. A. 19-521 which prescribes the penalty for swearing falsely to quarterly statements and K. S. A. 19-507 which provides that the county treasurer shall settle his accounts with the board of county commissioners at its October meeting each year and at such other times as the board may direct.
Appellant now concedes that the action is upon a liability created by statute and that 60-512[2] is the applicable statute. It is appellant’s contention that even though 60-512[2] is applicable, it does not commence to run until the end of the term of office for which the bond was obligated, i. e.; that the stipulation was erroneous in this regard; and that the trial court erred in not rectifying the error when it was called to the court’s attention by appellant’s motion for rehearing or new trial.
It appears from its memorandum decision, in Western’s motion to dismiss and on appellant’s motion for rehearing, that the trial court relied on the stipulation and on decisions of this court holding that an action against a county treasurer and his surety to be one arising from a liability created by statute. The court cited State, ex rel., v. McKay, 140 Kan. 276, 36 P. 2d 327; City of Leavenworth v. Hathorn, 144 Kan. 340, 58 P. 2d 1160; and Board of Education v. Jones, 151 Kan. 276, 98 P. 2d 120. These cases clearly adhere to the rule that such actions are based upon a liability created by statute and governed by the three year statute of limitations. They support the trial court’s ruling in this regard. They do not, however, support the trial court’s application of the statute as to when a cause of action accrues in a suit to recover embezzled funds from a county treasurer’s corporate surety, such as the case at bar. The Hathorn and Jones cases were based upon specific transactions of the public official in each case which were alleged to be in violation of specific statutes relating to the duties of the office. The McKay case is identical to that at bar in that it was an action brought by the state for the benefit of Cloud County against a former county treasurer and her corporate surety to recover embezzled funds. The key issue was the applicable statute of limitations which depended upon the nature of the action. On this point the McKay court held:
“An action against the county treasurer and the surety on his bond, to recover moneys which it is alleged the treasurer failed to deliver to his successor in office, is an action founded on a liability created by statute and is barred by the three-year statute of limitations.” (Syl. 2.)
In arriving at this holding the court reasoned:
“Now the wrong or delict of the county treasurer, which by the petition is the foundation of this action, was her failure to pay to her successor in office the full amount she should have paid. The petition and its amendment allege inaccuracies in keeping the books and making reports. Whatever these were, and whatever the motive which prompted them, they would not have formed the basis of a civil action against the treasurer or her surety if, notwithstanding them, she had paid over to her successor all that should have been paid. The failure to do this is what hurt, and it is the one wrong or delict of the treasurer which furnishes the basis for this action. The statute (R. S. 19-513) requires the treasurer, upon the termination of his office, to deliver to his successor ‘all the books and papers belonging to his office, and all moneys in his hands by virtue of his office’. . . .” (p. 279.) (Emphasis supplied.)
As in the case at bar, the county attorney initiated the action in McKay as one sounding in fraud. Although the action was commenced under a misapprehension of the law the erroneous theory was not fatal to the cause. On this point the McKay court said:
“. . . This cause of action existed irrespective of whether there were allegations of fraud. Under this situation the allegations of fraud and concealment made in the petition constitute matters of inducement leading up to the real defalcation of the officer which formed the basis of this action, namely, the failure to pay the full amount to her successor. . . .” (p. 280.)
This record is silent as to quarterly statements required by 19-520 or as to annual settlement of accounts with the board of commissioners as required by K. S. A. 19-507. Whether such statements and settlements were made and were inaccurate is not shown. Masterson and his surety were not sued for violating the statutes mentioned, but for the sums misappropriated by Masterson. Master-sons duty was to deliver all moneys belonging to his office to his successor or to any other person legally authorized to receive the same, as well as to render a true account whenever required by the board of commissioners or by any provision of law. The petition alleged the various sums which had been withheld by Masterson. No mention of violations of either 19-520 or 19-507 was made in the petition, the stipulation or the pretrial order.
Even though what was said in McKay may have been dicta as to the specific issue therein, we believe it is applicable to the case at bar. In the context of this case the wrong or delict of Masterson, which is the foundation of this action, was his failure to pay his successor in office the full amount he should have been paid. The fact he was his own successor is of no consequence. (See, State, ex rel., v. McKay, supra.) The relief sought in this action is not to compel Masterson to settle his accounts with the board of commissioners or to make accurate quarterly statements.
The bond provided by Western in this case for each term of office during Masterson’s tenure was a statutory bond as required by K. S. A. 19-502. The obligation clause was in the wording of the statute which reads in pertinent part:
“ . . [N]ow, therefore, the condition of this obligation is such, that if the said _ — _— and his deputy, and all persons employed in his office, shall faithfully and promptly perform the duties of said office, and if the said'_and his deputies shall pay, according to law, all moneys which shall come to his hands as treasurer, and will render a just and true account thereof whenever required by said board of commissioners or by any provision of law, and shall deliver over to his successors in office or to any other person authorized by laws to receive the same, all moneys, books, papers and other things appertaining thereto or belonging to his said office, then the above obligation to be void; otherwise to be in full force and effect.’ ”
Under the terms of the statute and the bond, the surety’s obligation runs to the various statutory liabilities created by the several statutes prescribing the duties of a county treasurer any one of which, if violated, would result in the accrual of a cause of action against the surety.
Under the provisions of K. S. A. 60-510 an action such as this can only be commenced within the period prescribed by the applicable statute after the cause of action shall have accrued. In general, a cause of action accrues so as to commence the running of the statute as soon as the right to maintain a legal action arises, the true test being at what point in time the appellant could first have filed and prosecuted his action to a successful completion. (Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P. 2d 312; and Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 470 P. 2d 797.) On the record presented this lawsuit must be treated as an action for the recovery of funds withheld and not delivered by Masterson to his successor. The first time appellant could have filed and prosecuted this action to a successful conclusion was at the end of a term of office or when a demand was made, followed by a refusal.
The statutes, 19-520 and 19-507, are intended to benefit the county. While a violation thereof would give rise to a cause of action, their purpose is not to work a shortening of the statute of limitations for the benefit of a defaulter and his surety with respect to an action for failure to pay over to a successor in office.
The general rule pertaining to defalcation by a public officer is stated in 63 Am. Jur. 2d, Public Officers and Employees, § 471:
“In case of defalcation or conversion by a public officer, or in case of loss through failure of the bank in which the officer has deposited public funds, the statute of limitations does not commence running against an action on an official bond until the close of the principal’s term of office, or until the time, of the officer’s failure to satisfy a demand therefor, or such other time as he is, by law, required to account. . . .” (p. 917.)
In Pierce County v. Newman, 26 Wash. 2d 63, 173 P. 2d 127, the Supreme Court of Washington was confronted with a limitations issue in an action against a county treasurer and his surety and involved statutes similar to those involved in the case at bar. The delict of the county treasurer was the violation of Washington statutes which prescribed duties pertaining to' the collection of taxes when collectable. The Washington court determined the action was upon a liability created by statute and further held:
“The statute of limitations commences to run against an action on the official bond of a county treasurer at the end of the term of office in which the cause of action arose.” (Syl. 1.)
State v. Cobb, 184 Tenn. 675, 202 S. W. 2d 819, was an action for the benefit of Obion County against the clerk and master of the county and his surety. Although the action involved a county clerk rather than a treasurer the precise issue as to when the cause of action accrued with respect to limitations was the same as that at bar. The county clerk’s delict was the failure to remit twice yearly, as required by statute, certain fees collected during his tenure of office. The Tennessee Supreme Court held that the action accrued, for limitations purposes, on termination of the clerk’s tenure of office and not on the twice yearly dates on which the clerk was required by statute to remit to the county. The court pointed out the distinction between the county’s right to bring suit each six months and the separate right of the county to sue for a final judgment on termination of the clerk’s tenure of office. On this point the Tennessee court said:
“. . . We think the contention of the defendants below as to when these two statutes of limitations began to run is due to their unintentional failure to distinguish the right of the county to bring suit for recovery of a final judgment, as in this case, from the right of the county each six months to bring suit as a means of compelling the clerk to turn fees which are excess at that particular time over to the trustee to be repaid to the clerk when and if necessary during the clerk’s tenure of office. Both rights exist. They are not inconsistent.” (pp. 685-686.)
So in the case at bar the county’s rights to sue Masterson and his surety at the end of each quarter under 19-520 or each October under 19-507 or at other times when Masterson failed to account are separate and independent of the county’s right to bring suit at the end of a term of office under the statutory obligation of 19-502 or under the provisions of 19-513.
Cases from other jurisdictions in accord are collected in an annotation dealing with limitations as to actions against public officers in 137 A. L. R., Anno., p. 674. The author of the annotation makes this pertinent comment:
In the majority of the cases considering the matter, the courts, in view of the circumstances present, have held that the limitation as to an action by a public body against its officer or employee did not begin to run during the term of office or employment, but was suspended until the defendant ceased to be an officer or employee, or at least until the end of the particular term of office during which the alleged liability arose.” (p. 674.)
In cases involving other public officers who, by statute, have a duty to pay over to the county treasurer or other repository funds when received or at a time fixed by statute, it has been held a cause accrued upon such failure. In Cloud County v. Hostetler, 6 Kan. App. 286, 51 Pac. 62, the clerk of the district court failed to pay over to the county treasurer when required by statute. This court’s decision in the City of Leavenworth v. Hathorn, 144 Kan. 340, 58 P. 2d 1160, points up the distinction between McKay and the line of cases following Cloud County v. Hostetler, supra, cited by Western in its brief at bar. City of Leavenworth was an action against the city’s secretary of waterworks and his surety to recover money allegedly collected by him during his term and not paid to the city treasurer as required by statute. Among the secretary’s statutory duties was the obligation to collect moneys due the waterworks department and to deposit the same daily with the city treasurer. The secretary’s term of office ran from April 15,1929, to April 15, 1931, and the petition was filed on May 12, 1934, more than three years after the term had expired. This court held the action was barred and stated:
. . We had that identical question before us in State, ex rel., v. McKay, supra. The only differences in the two cases are that the McKay case involved a county treasurer required by statute to turn over all moneys collected by him at the close of his term, while in this case the officer is the secretary of waterworks required to turn over money collected by him daily, and to make monthly reports thereof, and in this case the fraud charged is alleged in greater detail than it was in the McKay case. The legal principles governing the cases are identical. In this case, as in that, the wrong or delict of the officer was his failure to turn over moneys collected by him to the officer or person and within the time provided by statute. . . .” (p. 342.)
We have examined all of the cases cited by Western and find them to be either not in point or factually distinguishable. In fact, other than what was said in McKay, and the reference thereto in City of Leavenworth, we find no Kansas case which deals with what we believe to be the precise issue herein. It is quite evident from the petition and the position taken by appellant at pretrial conference that this action was instituted as an action based on fraud and on that basis was submitted on stipulation for determination as to the applicable statute of limitations. The trial court correctly ruled the action was upon a liability created by statute and that 60-512 [2] was the applicable statute. In proceeding to apply the statute to the action, however, 'the court was misled by the stipulation of the parties. This action was not based upon Masterson’s failure to make quarterly statements or upon his failure to settle accounts with the commissioners; it is an action to recover moneys withheld or misappropriated by Masterson during his several terms of office and which he failed to pay over to his successor in office under 19-502 and 19-513. We hold that such a cause of action accrues at the end of each term of office, or when the office is relinquished or when a demand is made followed by a refusal. It is a cause of action separate and distinct from, and not inconsistent with, a cause of action arising from a violation of 19-507 or 19-520. In this case it is stipulated that $25,714.63 was misappropriated during calendar year 1970. It follows that such sum was withheld when Mastersons term of office expired on October 12, 1971, when the cause of action accrued. This action was filed on May 24, 1974, well within three years; thus, appellant’s claim for funds misappropriated, during Mastersons term ending October 12, 1971, was not barred by the statute of limitations.
In view of our holding with respect to appellant’s point two, it becomes necessary that we direct our attention to point one concerning the binding effect of the stipulation of the parties. Western emphatically asserts that appellant is bound by the theoiy of recovery stated in the pretrial order and by the stipulation fixed the issues and cannot depart therefrom. Western cities numerous cases in which we have so held, including Fieser v. Stinnett, 212 Kan. 26, 509 P. 2d 1156; Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P. 2d 1; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; and Manhattan Bible College v. Stritesky, 192 Kan. 287, 387 P. 2d 225. Western further asserts that appellant invited the error, if any, by its own stipulation and is estopped from claiming error because of it. (Citing Hawkins v. Wilson, 174 Kan. 602, 257 P. 2d 1110.) It is quite true, as Western points out, that this court has long recognized the invited error rule. On the other hand, where a trial court has been misled into adopting an erroneous rule of law, either by admissions or stipulations of the parties, we have held the so-called invited error rule to be inapplicable. The rule, valid though it may be where questions of fact are concerned, cannot be invoked to bind a court in the determination of questions of law. (In re Estate of Maguire, 204 Kan. 686, 466 P. 2d 358.) Our conclusion that the cause of action in the instant case accrued at the expiration of the term of office in question is directly contrary to the stipulation of the parties on that point. The stipulation in this regard is clearly one of law rather than of fact and it cannot be said to have defined merely an issue.
Appellant did not wait to assert the error until this appeal was taken, 'but changed counsel and presented it to the trial court in definite terms on motion for a new trial. The question is presented in a framework identical to that in Urban Renewal Agency v. Reed, 211 Kan. 705, 508 P. 2d 1227, wherein the 'trial court was said to have been entrapped into an erroneous ruling because of an erroneous concession by appellant’s counsel as to the law. We said:
“. . . We think, however, that the concession could not bind the appellant and that when asked by new counsel within thirty days to reconsider, the court was not only free but bound to do so. . . .” (p. 711.)
We held:
“As a general rule questions of law must be determined by the court, unlimited by agreement of the litigants, and their stipulations as to what the law is are ineffective to bind the court.” (Syl. 4.)
We have held to the same effect in numerous cases. Among the most recent are: State v. Gregory, 218 Kan. 180, 542 P. 2d 1051; In re Estate of Maguire, supra; and Beams v. Werth, 200 Kan. 532, 438 P. 2d 957. Underlying the rule is the rationale that if this court were to be bound by an erroneous stipulation of law, then an erroneous concept of the law espoused by one or more of the parties would compel the court to adopt an erroneous precedent.
Finally, we turn to appellant’s request for the allowance of attorney fees under K. S. A. 40-256, which provides for payment thereof by a losing insurer in a suit brought against it when it appears the insurer has refused without just cause or excuse to pay the full amount of the loss. The statute encompasses 'an insurance company in its capacity as a surety on a bond. (Thompson Transport Co. v. Middlestates Construction Co., 194 Kan. 52, 397 P. 2d 368.) Whether attorney fees are to be allowed must depend upon the faots and circumstances of each particular case. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937.) In view of the manner in which this case was handled by appellant below, we 'think Western has not been unreasonable in its position, though mistaken, and we cannot say it refused without just cause or excuse to pay the full amount of the loss as now determined. Hence, we hold attorney fees are not allowable here.
The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment in accordance with our holding herein.
Owsley, J., not participating. | [
116,
-24,
-3,
29,
10,
-32,
42,
25,
91,
-75,
-95,
83,
-87,
-54,
5,
123,
-13,
61,
-43,
104,
-61,
-73,
83,
-29,
-46,
51,
-56,
-59,
-15,
91,
-68,
-43,
12,
48,
10,
-107,
70,
2,
-57,
92,
-50,
4,
11,
-63,
88,
-120,
50,
11,
32,
75,
-15,
14,
-21,
41,
60,
67,
73,
40,
-37,
9,
64,
-5,
-93,
-107,
95,
22,
-111,
5,
-98,
-59,
104,
46,
-104,
57,
0,
-24,
115,
-90,
-122,
-12,
77,
-103,
44,
-26,
34,
32,
-107,
-17,
-4,
-88,
14,
83,
29,
-89,
-110,
88,
35,
39,
-106,
29,
127,
-108,
3,
-4,
-25,
4,
127,
108,
2,
-50,
-46,
-109,
15,
48,
5,
19,
-1,
-95,
54,
113,
-51,
102,
93,
103,
49,
27,
-26,
112
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was a proceeding to revoke the license of a dentist. We shall refer to the appellant as the board and to appellee by his name. The case was here before (Bohl v. Teall, 155 Kan. 505, 126 P. 2d 216), to review an order of the district court enjoining the. board from conducting a hearing upon the complaint filed with the board against Doctor Bohl. The pertinent portions of the complaint are set out in the opinion. It was held the rules of procedure adopted by the board did not deny the accused the right to be fully heard upon the merits of the complaint. The court reversed the trial court and set aside the temporary injunction. Thereafter the board, having given proper notice, conducted a hearing at which the evidence in support of the complaint was presented and Doctor Bohl ■appeared with counsel and testified, and having considered the evidence the board revoked Doctor Bohl’s license to practice dentistry. The case was here a second time (Bohl v. Teall, 157 Kan. 239, 153 P. 2d 916), to review a temporary injunction granted by the district court against the board, restraining the board from enforcing the order of revocation. The court reversed that order, holding that Doctor Bohl’s remedy was by appeal to the district court and not by an independent action to enjoin the board from enforcing its order. Doctor Bohl then appealed to the district court, where the following judgment was rendered:
“This is an appeal by T>r. Clarence A. Bohl from an order of the Kansas State Board of Dental Examiners, dated November 9, 1942, revoking the appellant’s license to practice dentistry in Kansas. The case having been twice before the Supreme Court (Bohl v. Teall, 155 Kan. 505, and 157 Kan. 239), no further summary will be made.
“The appeal has been submitted by agreement of counsel, without pleadings (other than the Notice of Appeal), upon a transcript of record, including exhibits, made before said Board, together with the proceedihgs, findings and order of said Board of November 9, 1942. No arguments were made nor Briefs filed. There has been no request for specific findings of fact and conclusions of law and therefore none are made.
“After a careful and complete examination of the transcript of evidence, exhibits and pertinent laws, the Court is of the opinion and does find that the order of the State Board of Dental Examiners in this case, dated November 9, 1942, was unreasonable, arbitrary, oppressive and illegal.
“It is therefore Ordered, Adjudged and Decreed that the Order of the Kansas State Board of Dental Examiners in this case, dated November 9, 1942, is unreasonable, arbitrary, oppressive and illegal, and the same is hereby set aside, revoked and declared to be void and of no effect.”
The board filed a motion for a new trial, which was considered by the court and overruled, and the board duly perfected an appeal from the judgment of the court and its order overruling the motion for a new trial.
The pertinent portion of the statute then in force pertaining to the authority of the board to grant or refuse licenses to practice dentistry (G. S. 1935, 65-1407) reads:
“The board may refuse to issue the license provided for' in this act, or may revoke such license if issued to the individuals who have by false or fraudulent representations obtained or sought to obtain said license or money or any other thing of value ... or for any other dishonorable conduct.”
At the time the proceedings were commenced there was also a statute enumerating things which were made unlawful for a dentist to do, section 2 of chapter 280 of the Laws of 1937 (G. S. 1941 Supp. 65-1417), which read as follows:
“It shall be unlawful for any person, firm or corporation engaged in the practice of dentistry to publish, directly or indirectly, or circulate any fraudulent, false, or misleading statements as to skill or method of practice of any person or operator in the practice of dentistry; or, in any way, to advertise to practice dentistry without causing pain; or to advertise in any manner with a view of deceiving the public or in any way that will tend to deceive or defraud the public; or to claim superiority over other dental practitioners; or to publish reports of cases or certificates of same in any advertising media; on to advertise as using any anesthetic, drug, formula, material, medicine, method or system, or to advertise free dental services or examination; or to advertise any amount as a price or fee for the service or services of any person engaged in the practice of dentistry, or for any material or materials whatsoever used or to be used; or to employ ‘cappers’ or ‘steerers’ to obtain patronage or to exhibit or use specimens of dental work, posters, or any other media calling attention of the public to any person engaged in the practice of dentistry; or to give a public demonstration of skill or methods of practicing dentistry' at any place other than his office where he is known to be regularly engaged in the practice of his profession; and every person committing an offense against any of the provisions of this section shall be guilty of a misdemeanor: Provided, That any licensed and registered dentist may display the name and title of the licensee on the premises where engaged in the profession, upon the windows thereof and by a door plate or name and title on office directly: Provided, That the name and title of the registrant shall not be displayed in lettering larger than six inches.”
The next section contains the provision that:
“The board shall have the power to make such rules and regulations as are reasonably necessary to carry out and make effective the provisions and purpose of this act. . . .” (G. S. 1941 Supp. 65-1418.)
Prior to any of the circumstances which gave rise to this proceeding the Kansas Dental Association and the American Dental Association, of which it is a component, adopted codes of ethics, pertinent portions of which are set out in Appendix “A” and Appendix “B” hereto. Also, on March 30, 1939, the board adopted rules, the pertinent portions of which are set out in Appendix “C.”
Early in April, 1941, Doctor Bohl, then practicing dentistry in Kansas City, began running advertisements in the Kansas City Kansan and The Shopper, newspapers in general circulation in Kansas City, of a kind which violated the statute above quoted, the Code of Ethics of the American Dental Association, and the rules of the board. The secretary of the board wrote Doctor Bohl, calling attention to that fact. Doctor Bohl replied, expressing his desire to conduct his business in an ethical way, and asked for specific information as to in what way he was not doing so. The attorney for the board called upon Doctor Bohl and made a full explanation to him of the objectional nature of his advertisements, furnished him copies of the Codes of Ethics, the board’s rules, and referred him to the pertinent statute. Later the attorney wrote Doctor Bohl, referred to their interview, and again detailed the matters which had been discussed. This letter was referred to Mr. Joe E. Burris, a Missouri lawyer, with offices in Kansas City, Mo. He wrote the attorney for the board asking for an interview, which was granted. At the conference the entire matter was gone over and there was later correspondence between the attorneys, with the result that Mr. Burris, on behalf of Doctor Bohl, took the position that while what he was doing was contrary to the rules of the board, the board had no authority to make such rules, and that everything considered Doctor Bohl was not engaged, in unethical or dishonorable conduct in the respect of which complaint was made. The complaint'in this action was filed before the board on November 15, 1941, and a copy of it sent to Doctor Bohl by registered mail, which also fixed a day for an inquiry as to whether or not a hearing should be had upon the complaint. At that hearing Doctor Bohl appeared with his counsel, and after hearing the parties the board concluded the complaint should be investigated. On the date set for the hearing the first injunction suit, mentioned earlier in this opinion, was filed. This tied the hands of the board until it was finally disposed of. Thereafter, the board set the matter for hearing on August 10, 1942, and gave due notice thereof. At that time Doctor Bohl and his attorney appeared and made an offer to cease the objectionable advertising if the complaint were dismissed. A hearing respecting the good faith of Doctor Bohl in making that offer was conducted and the board took that under advisement pending the final hearing. In its decision the board went fully into the complaint and the evidence, the pertinent portions of which are set out in Appendix “D” hereto.
An examination of the record discloses that competent evidence was before the board to sustain its findings and its final conclusion.
Since the matter was presented to the trial court upon the transcript of the record before the board, with no additional evidence, and there were no briefs filed or arguments made in the trial court, we are in as good position to pass upon this matter as the trial court was. Indeed, here we have briefs of counsel, and to that extent we are better prepared to pass upon it. From our examination of this record we find nothing in it which authorized or justified the trial court to find that the order of the board was unreasonable, arbitrary, oppressive and illegal. Certainly the board had given Doctor Bohl as fair treatment and consideration as anyone could expect to have. The testimony before the .board justified its findings and our statute authorized the board to conduct such a hearing and to make the order revoking the license, if the evidence disclosed that should be done.
Indeed, there is much reason to apply to Doctor Bohl the terms the court applied to the board. A member of a profession which has high ethical standards in order that its members may have the high standing in the community which their education and training justify, and which are beneficial to the health and welfare of those whom they serve, should conform to those standards. Apparently Doctor Bohl violated these standards, and when his attention was called to the matter he professed ignorance. This pro- ■ fession is open to serious doubt; but we pass that. With reasonable promptness he was informed in a personal interview and in writing by the board’s attorney. Doctor Bohl then referred the matter to a Missouri attorney who may have been employed or selected by a Missouri layman, F. E. Cantrell, who had a substantial connection with Doctor Bohl’s business. Doctor Bohl blocked a full inquiry into that connection by refusing to bring before the board his contract and records with Mr. Cantrell. Assuming that he was .legally justified in so doing — a question which is not before us— it may be said that when a professional man’s professional conduct is being-inquired into he should withhold nothing from the inquiring body which is pertinent to his professional conduct. However, enough did get into,the record on this point to tend to show con-'duct on the part of Doctor Bohl which the board might regard as being professionally dishonorable. It is not for this court, nor was it for the trial court, to pass upon the evidence before the board as to whether it established grounds for revoking the license of Doctor Bohl. The court has no authority to substitute its judgment for that of the board.
The legal questions relating to procedure of this kind are well established by former decisions of this court. See State v. Creditor, 44 Kan. 565, 24 Pac. 346; Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128; Winslow v. Board of Dental Examiners, 115 Kan. 450, 223 Pac. 308; Crabb v. Board of Dental Examiners, 118 Kan. 513, 235 Pac. 829; Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P. 2d 597, and the authorities cited therein pertaining to dentists; and Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; Jones v. Board of Medical Examination, 111 Kan. 813, 208 Pac. 639; Brinkley v. Hassig, 130 Kan. 874, 289 Pac. 64, and authorities cited therein pertaining to physicians; and Depew v. Wichita Association of Credit Men, 142 Kan. 403, 49 P. 2d 1041, and authorities cited therein as relating to attorneys.
Counsel for appellee cite Copland v. Board of Dental Examiners, supra, as controlling in behalf of Doctor Bohl here. In that case the board had not made rules authorized by statute, and that point may be said to be the principal reason why the decision went against the board. In this case the rules had been adopted by the board prior to any of the conduct of Doctor Bohl which was complained of, a fact of which he either knew or was promptly informed before the proceedings in this case were started. On behalf of appellee it is argued that because some general definitions of dishonorable conduct were stated in the Capland case the board had no authority to embody in its rules a definition.of dishonorable conduct. The point is not well taken. The general definitions of dishonorable conduct quoted in the opinion did not preclude the board from considering its own profession and making rules defining dishonorable conduct as being that which was opposed to the long standing Codes of Ethics of the profession.
The result is that the judgment of the court below must be reversed with directions to affirm the order of the board revoking the license of Doctor Bohl to practice dentistry in this state. It is so ordered.
APPENDIX “A”
“Code of Ethics of the Kansas State Dental Association
“Note. — The Kansas State Dental Association is a component of the American Dental Association and therefore its members also adhere to the code of ethics of the American Dental Association in addition to the code of ethics of the Kansas State Dental Association.
“Code of Ethics
“Section 1. In his dealings with his patients and with his profession the conduct of the dentist should be in accordance with the Golden Rule, both in its letter and spirit.
“Section 2. It is unprofessional for a dentist to advertise by hand bills, circulars, cards, signs, or. in newspapers or in other publications calling attention to special methods of practice or claiming excellence over other practitioners, or to use display advertisements of any kind. This does not exclude a practitioner from using professional cards of suitable size, with names, titles, address and telephone number printed in modest type, nor having the same character of card in a newspaper or other publication. Neither does it prevent a practitioner who confines himself to a specialty from merely announcing his specialty on his professional card.
“Section 7. The dentist should be morally, mentally and physically clean, and honest in all his dealings with his fellow men, as comports with the dignity of a cultured and professonal gentleman.”
APPENDIX “B''
“Code op Ethics op the American Dental Association
“In order that the dignity and honor of the dental profession may be upheld, its standards exalted, its sphere of usefulness extended, and the advancement of dental science promoted, and that the members of the American Dental Association may understand more clearly their duties and obligations to the dental profession, to their patients, and to the community at large, the following Code of Ethics is prescribed:
“General Deportment
“Sec. 1. It is the duty of every dentist, and it shall be incumbent upon every member of this Association to govern his deportment in accordance with the underlying principles which have motivated the formulation of this Code. It is not assumed that the following articles cover the whole field of dental ethics; the dentist is charged with many duties and obligations in addition to those set forth herein. Briefly, the ‘Golden Rule’ should be conscientiously applied by every member of the dental profession.
“Advertising
“Sec. 2. As an Inducement to Patronage in the Practice of Dentistry, it is unethical and unprofessional for a dentist to employ, or permit the employment of handbills, 'posters, circulars, cards, signs, stereoptican slides, motion pictures, telephone, radio, newspapers, lectures, or any kind of printed or written publications or any other device for the purpose of
“(1) Advertising personal superiority or ability to perform services in a superior manner.
“(2) Advertising definite fixed fees, which in the nature of the professional services rendered must be variable.
“(3) Advertising statements that might be calculated to deceive or mislead the public.
“(4) Advertising any one or more types of dental service, thereby implying either superiority or lower than average fees in these fields.
“(5) Advertising under the name of a corporation, company, institution, clinic, association, parlor or trade name.
“(6) Advertising special or allegedly exclusive methods of practice or peculiar styles of service.
“(7) Advertising reports of cases or the possession of special certificates, diplomas, etc.
“(8) Employing or making use of advertising solicitors, free publicity press agents, radio announcers, entertainers or lecturers.
“(9) Guaranteeing or warranting operations.
“The fact of promulgation of any of the forms of advertising covered in this section shall be held to be satisfactory proof that the dentist named either employed or permitted the employment of the advertising message.
^ “Directory Announcements
“Sec. 3. It is unethical for a dentist to permit the placing of his name in any city, commercial, telephone, or other public directory or directories in public or office buildings, using what is known as display type, or type that is in any way dissimilar from the standard in size, shape or color, or to use any other device tending to give his name visual prominence over other names listed. It is likewise unethical for a dentist to permit the printing of his name in any kind of public directory under a heading such as ‘Specialists,’ ‘Surgeon Dentists’ or any other heading or device that might create in the mind of the reader the impression that the individual so listed is superior to those whose names appear under the simple heading — ‘Dentists.’
“Cards in Press, etc., Specialists
“Sec. 4. In communities in which it is customary for professional men to insert a card in the local press, or in programs for social events, theatres, etc., the same custom may be observed by the dentist, but such cards must be of modest size and type and shall not include more than the dentist’s name, title, address, telephone number and office hours, nor shall it _ include any other device tending to give such announcement visual prominence over other names listed. If he confines himself to the practice of a specialty, he may announce in modest type — -‘practice limited to — ’ (announcing the specialty) but nothing more. ‘ This Association, however, believes the latter custom to be unbecoming to professional men and urges its members to abstain from such practice.”
APPENDIX “O”
“Rules op the Kansas State Boíard op Dental Examiners
Adopted March 30, 1939
“The Code of Ethics as formulated by the American Dental Association and the Kansas State Dental Association is hereby adopted as the standard of honorable conduct for Doctors of Dental Surgery in the State of Kansas.
“The Kansas State Board of Dental Examiners considers the following as dishonorable conduct upon the part of any practicing dentist in the State of Kansas and any dentist may have his or her certificate of registration or license, or both, revoked or suspended by the Kansas State Board of Dental Examiners for any of the following causes:
“1. Violation of the Code of Ethics of the American Dental Association and/or the Code of Ethics of the Kansas State Dental Association.
“4. Dishonorable conduct shall also include, but not by way of limitation, . _. . making use, directly or indirectly, of any advertising statements of a character tending to deceive or mislead the public; advertising, directly or indirectly, professional superiority or the performance of professional services in a superior manner; advertising, directly or indirectly, prices for professional services; advertising, directly or indirectly, by means of large display, glaring light sign, or containing as a part thereof the representation of a tooth, teeth, bridge work or any portion of the human head; employing or making use of, directly or indirectly, advertising solicitors or free publicity press agents; or advertising, directly or indirectly, any free dental work or free examination; or advertising, directly or indirectly, to guarantee any dental service, or to perform-any dental operation painlessly; the use of radió, directly or indirectly, by any dentist to advertise his or her professional qualifications, or fees; or to use specimens of. dental work, posters, or using any other media calling attention to the public to any person engaged in the practice of dentistry; or habitual intemperance or gross immorality; or the continued use of habit-forming drugs. PROVIDED, any dentist licensed may announce by way of professional card containing only the name, title, degree, office location, office hours, phone number, and residence address and phone number, if desired, and, if he limits his practice to a specialty, he may announce it, but such cards shall not be greater in size than three and one-half (3%) inches by two (2) inches, and such information may be inserted in public print when not" more than one column in width and two inches in depth. . '. . ”
APPENDIX “D” ,
“We find that Dr. C. A. Bohl is a resident of Kansas City, Kansas; that he is a graduate of the Kansas City Dental College, having graduated in 1917, and that year was licensed to practice dentistry in the State of Kansas, and since then and now holds a valid license to practice dentistry in the State of Kansas, and for the past three years has been practicing at 606 Minnesota Avenue, Kansas City, Kansas.
“Dr. C. A. Bohl inserted in the newspapers named, in the complaint, on the dates alleged, advertising as alleged and shown by Exhibits ‘A,’ ‘B’ and ‘C.’ He continued that type of- advertising until after the decision of the Supreme Court in the injunction case above referred to, when the advertising was changed by reduction in size to one column wide and two inches high, containing the usual information of the professional card, but the name ‘Dr C. A. Bohl,’ was, in type and arrangement that of a display ad, and was display advertising.
“Exhibit ‘A’ was inserted in the newspapers from August, 1939, when licensee moved into this present location at 606 Minnesota Avenue, until May, 1941. Exhibit ‘B’ was inserted in the newspapers from May, 1941, until July 15, 1941, at which time Exhibit ‘A’ was again inserter! until August 21, 1941. From August 24, 1941, Exhibit ‘C’ was inserted until after the Supreme Court decision in this case.
“Each advertisement was for the purpose of acquainting prospective patrons with licensee, with his location, what he did, and to secure their patronage and business, and to get them to his office for the purpose of determining what type of work they needed, and what service he could render that would ■•be within the prospective client’s-financial capacity to pay.
' “Each advertisement referred to ‘plates’ in display .type and arrangement, ’and Exhibit ‘C’ used the words ‘speciálizing in plate-work.’ From 1939 until June 30, 1942, approximately 75% of licensee’s work was plate-work. His advertising accounted for the fact that a majority of .plaintiff’s business was plate-work.
“Dr. C. A. Bohl is not a specialist, nor was he specializing, nor has he limited his practice to a specialty or to plate-work. He has engaged in the general practice, doing in addition to plate-work, crown work, filling, cleaning, extracting, X-ray, and repairing broken plates. He has not qualified himself as a specialist in plate-work by training, experience or by limitation of practice. The fact that 75% of his business has been plate-work during the last three years, is the result of advertising. While he advertised, as shown in Exhibit ‘C’ that he was ‘specalizing in plate-work,’ he was engaged in the general practice, and was not limiting his practice to a specialty of plate or denture work. This advertising statement contained in Exhibit ‘C’ was not true, and Dr. C. A. Bohl knew it was not true. Through such false and fraudulent statements Dr. C. A. Bohl obtained patronage, business and money, and a major portion of his income, and thus by false- and fraudulent representations obtained money, property and valuable patronage.
“The terms ‘Specialize’ and ‘specializing’ as used in connection with the practice of dentistry, have a definite meaning among doctors of dental surgery, and among the rank and file of laymen. It implies the idea of a dentist whose practice is limited to one branch of dentistry, and who has by training or knowledge special qualifications in that branch of dentistry. There are about thirteen branches of dentistry, in each of which there are specialists. Those who practice more than one branch are regarded as general practitioners by doctors of dental surgery and the lay public. This fact was known to Dr. C. A. Bohl.
“In Exhibits ‘B’ and ‘C,’ Dr. C. A. Bohl used the words ‘moderate prices.’ Price refers to recompense or compensation for a service or commodity. ‘Moderate’ is a relative term meaning to restrain, lessen or reduce. The term ‘moderate price’ as used by Doctor Bohl, indicated a lesser or reduced compensation for his service of usual quality. Most of licensee’s clients were of the lower income group.' His actual charge is based upon the patron’s financial situation, and the doctor’s service is in accordance with their ability to pay. This service includes the materials used. Doctor Bohl had no intention of charging for such services a reduced or lesser price than other dentists charged for like service. The statement ‘moderate price’ contained in Exhibits ‘B’ and ‘C’ were false and fraudulent representation to induce people to come to his office where he could determine the patient’s financial condition, and sell him a service equal to his means of payment, rather than a regular service at a reduced or lesser price, as he represented by his advertisement, and he did thus obtain money, property, business and patronage by false representations.
“The display of a square with the words ‘transparent dental plates’ in black letters with a white and black border so arranged as to appear to illuminate the above words, and showing a set of teeth, as shown in Exhibit ‘A,’ was for the purpose of attracting the attention and the eye df the people who saw it, and to acquaint the public with the material, and Dr. C. A. Bohl, and that he was ready and willing to serve them. The descriptive words in Exhibit ‘A,’ ‘beauty and visible cleanliness, pink material around the teeth, absence of taste and odor, strong and beautiful’ were designed to attract the attention of prospective patients to qualities, desirable in denture work, and to draw their attention to licensee as a dentist who employed these desirable materials. This advertising gives the impression that Dr. C. A. Bohl used material that is new, better or more desirable. It is display advertising. It is advertising containing representation of teeth, and advertising calling attention to Dr. C. A. Bohl, and advertising professional superiority.
“Exhibit ‘B,’ containing a picture of the doctor, and reference to different materials and type of work done, and containing words with large letters, and by the arrangement of'the ad constitutes display advertising. The picture of the licensee calls attention to him as engaged in the practice of dentistry, makes reference to materials to be used, advertises price for professional services, and constitutes statements tending to and did deceive and mislead the public.
“By Exhibit ‘C,’ Dr. C. A. Bohl published statements tending to and did deceive and mislead the public, and which advertised professional superiority, which called attention of "the public to licensee, and by the arrangement of the printing, type and size constituted display advertising.
“Every condition of the mouth -requiring dental treatment requires individual diagnosis and treatment. The ordinary lay public is not competent to judge the type of treatment, nor material that may be required for him for the particular condition that may exist, and no dentist is able to prescribe a material to fit an individual’s case by advertising. There is no connection between materials mentioned in Exhibits ‘A’ and ‘B’ and that material which may be needed in a particular treatment upon a particular patient. Reference to materials in Exhibits ‘A’ and ‘B’ by Dr. C. A. Bohl were for the purpose of enticing prospective patients to the doctor’s office for the purpose of securing their patronage, and to sell them his service whether' the materials advertised were proper in the treatment of such a patient’s case or not, and he did secure patronage by such advertising.
“Advertising tends to lessen and lower the moral responsibility and integrity of the dentists who employ it. Such a dentist relies upon volume of business with less time and work and care upon each case, and at such price for his service as he can get, rather than less patients and better quality of work. As a result of advertising licensee did dental work on a quantity basis.
“The Board is of the opinion that Dr. C. A. Bohl is guilty of dishonorable conduct. By the use of said advertisements, shown in Exhibits ‘A,’ ‘B’ and ‘C,’ he has employed advertising statements of a character tending to and which did deceive and mislead the public, and which advertises professional superiority, and which advertises price for professional services, and which advertising contains representation of teeth, and which makes reference to materials used or to be used, and which advertising calls attention of the public to Dr. C. A. Bohl as being engaged in the practice of dentistry other than by the use -of a professional card limited in size and containing limited information, all contrary to the rules of the State Board of Dental Examiners, adopted March 30, 1939, defining what acts would be considered to constitute dishonorable conduct.”
(After quoting part of section 2, chapter 280, Laws of 1937, continues): “The advertising as contained in Exhibits ‘A,’ ‘B’ and ‘C’ is contrary to the above quoted portion of the statute, which statute declares such acts to be a misdemeanor. The Board is of the opinion that the doing of acts which constitute a violation of the above statute, are below the standard of honesty and morality requisite to honorable conduct. Dr. C. A. Bohl advertised by use of Exhibits ‘A-,’ ‘B’ and ‘C’ with a view to deceiving the public. He did tend to and did deceive and defraud the public. He claimed superiority over other practitioners, and advertised use of certain materials. By reason of this he is also guilty of dishonorable conduct.
“Because Dr. O. A. Bohl has obtained and sought to obtain patronage, business and money by false and fraudulent representations, and because he is guilty of dishonorable conduct, all as hereinbefore set out, his license to practice dentistry in Kansas should be revoked.
“At the beginning of the hearing on August 10th, and during the hearing, ' Doctor Bohl in substance offered to quit all types of advertising, except the professional card, if the Board would dismiss the complaint. Evidence was introduced regarding his sincerity in this respect. Certain evidence was produced relative to his office arrangement, and as to whether or not he was and had been practicing “on his own behalf, or whether or not he was employed by a layman, F. E. Cantrell, of Kansas City, Missouri. The attorney for the Board asked that the doctor be required to produce his books with regard to what they might show upon said question. Upon objection by attorney for Doctor Bohl that such evidence was injecting charges not contained in the complaint, this request was withdrawn. None of this evidence in connection with the doctor’s office arrangement has been considered by the Board in reaching its conclusions as to whether the doctor was guilty of the charges in the complaint; however, such evidence has been given consideration in considering the offer of Doctor Bohl to stop advertising.
“The Board has given considerable thought to this proposition. The Board feels its responsibility in the revocation of the license of a doctor whose livelihood to a large degree will be affected thereby, although the doctor is also licensed to do business in another state. The board also feels its responsibility to the public and the profession. It feels that the law regulating the practice of dentistry, and the requirement that doctors of dental surgery conform to standards of moral conduct recognized and accepted by the profession, are for the protection of the public from unscrupulous^ practitioners and charlatans who would prey upon the unsuspecting public.
“The underlying purpose of the law and the rules requiring these standards is not especially aimed at the honest and honorable member of the profession who may be prone to use unethical means of calling attention to his superiority, and indulge in what is referred to as bait-advertising, truthful in itself. The object and aim of the statute is to strike at the charlatan and unscrupulous practitioner who makes use of the same or similar methods to entice and lure an unsuspecting and credulous public, and by means of which they become -the victims of his unscrupulousness. No law nor rule can be justified which would apply alone to the unscrupulous, but such standards must be general in their application, and rest alike upon all members of the profession, even if some innocent member of the profession, whose advertising statements are truthful, must yield to the necessity for such rules and standards in order to prevent the unscrupulous from preying upon the public.
“We do not believe that one who has committed acts constituting grounds for revoking his license can lawfully relieve himself of the consequences of his acts, when charged with them, by stating that he is then ready to. cease committing such acts. The prohibition is to prevent practices prone to injure the public and the profession, and is not alone for the purpose of guiding some one particular doctor.
“We believe that the real question upon such offer of Dr. C. A. Bohl is to determine whether or not under all the circumstances he had been fairly advised as to the objectionable character of his advertising and whether under all the circumstances it would be unfair to revoke such license. He stated he carried on the type of advertising in question under advice of private counsel that the same was lawful. He was aware of the decision of the Supreme Court of the State of Kansas in the case of Oakland v. Board of Dental Examiners, 149 Kan. 352, and the opinion of Theodore F. Varner, Assistant Attorney General, given prior to that opinion. He was aware of the statute and the rules adopted by the Board following the decision of Capland v. Board of Dental Examiners. He was advised by the Secretary-Treasurer" of the Board, by a letter, to cease such advertising. The attorney for the Board in June, 1941, advised him that such advertising constitutes false and fraudulent representations and dishonorable conduct. The attorney for the Board also discussed the' matter with Doctor Bohl’s attorney, who advised that such acts violated the law and the rules of the Board.
“At the hearing held December 15, 1941, the position taken by Doctor Bohl, and the refusal of the Board to consider it sufficient cause why the complaint should not be heard, was further advice to him that his construction was contrary to the law and rules as interpreted by the Board. Doctor Bohl has never misunderstood the Board’s position. He has taken the position that the Board was without authority and if the Board had authority his acts were not contrary to the rules or the laws. No inclination to stop advertising was shown by Doctor Bohl until the hearing on August 10, 1942. The Board heard evidence as to his good faith upon such offer. Although we do not believe a good faith offer to stop advertising would relieve him of wrongful conduct, we do feel our responsibility in giving due consideration to it. Evidence'was introduced tending to show that from 1939 until January, 1941, there was carried a bank account in the name of Kaw-Mo Dental Company, in which was deposited all income from the doctor’s business; that during these years the doctor had no right to draw on said account, but that his secretary and F. E. Cantrell, a layman connected with the Eastern Dental Company, 1017 Walnut Street, Kansas City, Missouri, were authorized to draw upon said account. Doctor Bohl paid the rent to Cantrell, who had the lease upon the rooms occupied by Bohl, and the equipment in said office was returned for personal property tax by Doctor Bohl as agent for the owner, shown by said tax statement as F. E. Cantrell. The doctor stated that when he moved into his present location he made an arrangement to purchase the equipment from F. E. Cantrell, and that the arrangement regarding the .bank account was to secure to F. E. Cantrell that he would receive his payment. That final payment was finally made about Christmas,' 1940, and since that time Dr. C. A. Bohl has been the sole owner of said equipment; that during said period up until then he had retained about 30% of the income from the office, the balance going to pay overhead and to F. E. Cantrell. However, in March, 1942, Dr. C. A. Bohl again returned said equipment to his office for personal property tax to Wyandotte County as owned by F. E. Cantrell, and that he was authorized to make said return as agent. These tax returns were sworn to and signed by Dr. C. A. Bohl. Doctor Bohl stated that he kept books and had the records'regarding transactions of himself and F. E. Cantrell. The written, sworn tax returns are contrary to his oral explanations. He had it within his power to produce book and office records as evidence to sustain his oral contentions, but did not do so.
“We do not believe the explanation of the doctor with regard to his transactions and arrangement with F. E. Cantrell to be accurate. We are of the opinion that at the time of the hearing Dr. C. A. Bohl was not sincere in his offers to be honorable and ethical in the further conduct of his dental practice.
“We are of the opinion that Dr. C. A. Bohl, during the entire period of his advertising, was fully aware of and fully understood the position of the State Board of Dental Examiners and their interpretation of the statute, and the law applicable to such advertising, and willfully did the acts charged realizing the risk involved.
“We are further of the opinion that even if he was sincere at the time of the hearing, and desiring to then cease advertising of an objectionable character, the Board would not under all the circumstances be justified in dismissing the complaint.
“It Is, Therefore, Ordered by the Board that the license of Dr. C. A. Bohl, 606 Minnesota Avenue, Kansas City, Kansas, be and the same is hereby revoked.” | [
-16,
-22,
-19,
-100,
27,
98,
58,
3,
89,
-21,
39,
83,
-83,
-104,
13,
111,
-110,
61,
48,
122,
-33,
-78,
87,
-119,
-42,
-45,
-37,
-51,
-71,
-6,
-12,
125,
72,
48,
66,
-43,
70,
-53,
69,
84,
-114,
4,
57,
-36,
81,
-128,
52,
58,
114,
11,
-111,
-97,
-13,
42,
30,
-61,
-87,
44,
-37,
-75,
16,
-80,
-118,
-107,
109,
16,
49,
34,
-104,
5,
-36,
-81,
-128,
48,
1,
-3,
51,
118,
2,
116,
79,
-23,
8,
118,
98,
33,
57,
-19,
-8,
-88,
15,
123,
-99,
-89,
-103,
88,
-62,
-127,
-74,
-103,
116,
50,
3,
124,
103,
-121,
31,
44,
8,
-113,
-94,
-109,
-33,
116,
-114,
9,
-5,
-125,
1,
20,
-107,
116,
95,
71,
59,
27,
62,
-92
] |
The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff brought this action for damages for the death of her husband, and in the second cause of action for damages to his truck, all alleged to have resulted from the negligence of defendants. The jury answered special questions and returned a verdict for plaintiff in both causes of action. Defendants have appealed. They do not complain of the amount of the verdicts if plaintiff is entitled to recover but contend a new trial should be granted upon the following grounds: That the court erred (1) in the admission of evidence; (2) in overruling their demurrer to plaintiff’s evidence; (3) in overruling their motion for a directed verdict; (4) in refusing to submit special questions requested; (5) in refusing to give instructions requested; (6) in the instructions given; (7) in overruling motions to set aside answers to certain special questions; (8) for judgment on the special findings notwithstanding the general verdict; and (9) for a new trial.
The general facts shown by the record may be summarized as follows:
Plaintiff, 57 years old, and her husband, Frank Mulich, 62,' were the parents of twelve children. The younger three of them made their home with the parents near Bethel, Kan., a few miles west of Kansas City. The other nine children, seven sons and two daughters, were married and had homes of their own. Frank Mulich was a painter and interior decorator of public and office buildings, the better class of residences, stores, churches, etc. He employed six to eight men, kept busy with the work, usually having four or five jobs going. His part of the work was supervision and the outlining of jobs, and taking material and equipment to the places where the work was to be done. In this work he used a three-fourths-ton truck with a pickup metal body on which there were upright stakes and cross bars for carrying ladders. The bed extended about eighteen inches back of the frame. Between the bed and frame wood blocks had been bolted in. In performing his part of the work and making his plans he frequently worked from eight o’clock in the morning to midnight. He was in good health, sober, industrious, and had a life expectancy of twelve and one-half years. His adult sons were employed by him. They worked on the regular union schedule of wages and hours.
The main highway west from Kansas City is U. S. 40, paved with cement, with four traffic lanes. The two north lanes are for westbound traffic and the two south lanes for eastbound traffic. As the highway leaves the city limits it is, level for a short distance, then down a 3.56 percent grade about 2,000 feet, at the bottom of which is a drain under the pavement; then it is up a 5.48 percent grade past the place where it is intersected by a north and south highway known as Bradish Road, about a mile west of the city limits, near which is a port of entry.
The Graham Ship By Truck'Company, a Missouri corporation with headquarters in Kansas City, Mo., is engaged in operating a fleet of trucks transporting freight upon the highways of Missouri and Kansas, where it has the proper license for such operation. Kenneth D. Logan is one of its truck drivers and during all the time here in question was the agent, servant, and employee of the Graham Ship By Truck Company. On the night in question he was operating a truck consisting of a Ford tractor and Keystone trailer having a combined weight 6f 14,800 pounds and loaded with 18,000 pounds of meat to be transported from Kansas City to Topeka.
About five o’clock the morning of January 13, 1945, Logan, driving the Graham tractor and trailer with his cargo, started from Kansas City to Topeka. Near the city limits was a filling station at which there were two other trucks- which pulled in behind him. It was a foggy morning, the pavement was wet. Logan had all the lights on his truck burning, including the fog lights. The other lights would not penetrate the fog. He moved in the north lane of traffic down the grade to the drain, which he crossed and was driving up the steeper grade when he collided with the Mulich truck. Frank Mulich was killed, his truck was seriously damaged, as were the ladders and other paraphernalia and paint with which his truck was loaded.
In plaintiff’s petition the above matters were alleged more in detail than here and it was further alleged that Mulich was driving west in the north lane of traffic and that defendant’s truck was driven into his with disastrous results. Defendant’s negligence was alleged in detail. The unverified answer admitted allegations of the petition, describing the parties, but alleged that Frank Mulich was driving east and that he negligently drove his truck onto the north side of the highway, and that this negligence, which was detailed, was the real cause of the collision and resulting injury. The reply was a general denial. Further facts will be stated in discussing the questions raised by appellants.
The evidence disclosed that being notified promptly of the collision two deputy sheriffs and two highway patrolmen soon reached the scene. Their testimony disclosed that about forty feet west of the drain under the pavement and in the north lane of traffic, not far from the north edge of the pavement, there was broken glass and debris indicating th,e place of collision. The chassis of the Mulich truck was on its side on the south side of the -pavement perhaps thirty feet west of the point of collision and about that distance farther west was the body of the Mulich truck. The truck had been smashed up and parts of it and its load were scattered over the pavement. The rear bumper had been broken off, also the left front light. The right front light was burning and the left side was crushed, the most damage being toward the left center and front. Frank Mulich was found lying on the pavement in the third lane north from the south, about 168 feet west from the point of collision. He was dead. -His body and clothing were mangled. The Graham truck had moved in a circle.to the west and southwest, left the south edge of the pavement about even with Mulich’s body and traveled southwest about 450 feet and across the Bradish Road into a yard and up an embankment where the ground had been plowed or prepared for seeding, partially up -an embankment that rose twelve and one-half feet in a forty-foot distance, with its front bumper against a tree 6 inches or more in diameter. The radiator and right front fender had been damaged, and sticking to a part of the radiator was the wooden block from the rear left' corner of the Mulich truck. Someone passing in a Ford car had taken Logan from the ground near the Graham truck to the port of entry. There Logan made to a deputy sheriff a written report of the collision. This fixes the time of the accident at 5:55 a. m., its location, describes the trucks involved and the names of the drivers, and a statement by Logan which reads:
“I was going west. I saw a light. I thought it was across the road,— thought it was headed south. I turned to go behind the light. Looked like a stake bed. That’s the last thing I remember. I came to beside my truck.”
The deputy sheriff who took this report testified that the statement was voluntary, made without any questions being asked.
Some one took Logan to his home. Later on one of the officers swore to a complaint charging him with reckless driving. He was arrested on that complaint and taken to the justice of the peace, and from there to jail. (This complaint was later dismissed.) At the jail he was interviewed by an assistant county attorney and made a statement which he signed.. A little later he was taken to the county attorney’s office. Mrs. Mulich had been notified of the tragedy and had called Mr. Mulich’s attorneys who had represented him for years, and who now appeared for her, and one of them went to the county attorney’s office. He talked to Logan and. had prepared another statement of what he said. About that time an attorney for the defendant appeared and told Logan not to sign it. He refused to sign it but stated that it was correct and that he would sign it except for the advice of counsel.
We now turn to the questions argued. Appellants complain of the introduction in evidence of the statements made by Logan, the driver of the Graham truck, to the deputy sheriff soon after the collision. The deputy sheriff testified that it was the duty of Logan to make a report of the accident to him. No objection was made to that testimony and it is not contended now that it was erroneous. The statute (G. S. 1945 Supp. 8-523, 8-524) requires the highway department to prepare and furnish sheriffs forms for accident reports (G. S. 1945 Supp., 8-525). The deputy sheriff testified that when such reports'are obtained they become a part of the records of his office. Such records are admissible in evidence (G. S. 1935, 60-2869). More than that, the statement was made voluntarily by Logan so soon after-the collision that it may properly be regarded as a part of the res gestae. See State v. Funk, 154 Kan. 300, 303,118 P. 2d 562; State v. McCrady, 152 Kan. 566, 568, 106 P. 2d 696, and authorities there cited. This is specifically true here, where the petition alleged that Logan was the driver of the Graham truck “and during all the times herein complained of was its agent, servant, and employee” of the Graham corporation, which allegation was not put in issue by the answer.
Appellants complain also of the introduction in evidence of the statement made by Logan a few hours later to the deputy sheriff and signed by Logan, and the statement made to the attorney for the plaintiff which was not signed. These got into the record during the examination of Logan called as a witness for defendants. In his direct examination he testified to having made the statements but his testimony did not accord in all particulars with them. Upon cross-examination he was interrogated about these discrepancies. Counsel for defendants objected to those questions upon the ground they were “incompetent, irrelevant and immaterial, and hearsay” as to the Graham corporation. That objection was sustained. The court held the examination competent as to the witness as testing his credibility and by reason of the fact that he was a defendant. On redirect examination he was asked about those matters and made such explanations as he desired to make. In part the same material was gone over in recross examination. Near the close of his examination the statements were introduced and received in evidence as they pertained to the witness but not as applying to the Graham corporation. In view of the above we regard it as immaterial whether the statements were introduced in evidence or not. We find no error prejudicial to appellants in the court’s ruling.
Appellants contend the trial court erred in not sustaining their demurrer to plaintiff’s evidence. As the pleadings were framed the fact that there was a collision with resulting damages was conceded. Broadly speaking, the only issue of fact was whether it resulted from the negligence of defendants’ or from the negligence of Frank Mulich. Without reciting this evidence in detail more than has been done hereinbefore it is clear that the evidence presented á jury question. There was no error in the ruling of the court in overruling the demurrer to the evidence, and for the same reason the court did not err in overruling defendants’ motion for a directed verdict.
Appellants complain the court did not submit special questions requested. Near the close of the trial defendants submitted 14 special questions; plaintiff also submitted a list. The trial judge stated that he looked them over that evening and formulated from the lists questions to bé submitted. The next morning he had twelve formulated and submitted them to counsel. Defendant objected only to question 5 (not now complained of) and the objection to that was overruled. Counsel was asked if he had any further objections and stated that he did not. The twelve questions submitted included eight in the words requested by defendants and two slightly modified. The substance of the others was embodied in one. We think this criticism of the court is- not justified.
Appellants complain that the court refused to give instructions requested, and also of instructions given. We have examined with care the arguments upon these points and think it would serve no useful purpose to set the instructions out in full and make a detailed discussion of them. The pertinent portions of instructions requested and which were applicable to the case were embodied in the instructions given and we think the instructions given fairly present the issues and were not erroneous as a matter of law.
The jury was asked and answered special questions as follows:
“1. State what portion of the Chevrolet Pickup Truck, belonging to Frank Mulich, was struck by the Graham tractor. A. Left rear comer and left side.
“2. State the distance the fog extended to the East from the place of the collision, at the time the collision occurred. A. Approx 700'.
“3. State how far, in feet, defendant Logan could see objects ahead, immediately before the collision took place. A. 30'.-
“4. At what rate of speed was the Graham truck proceeding for a distance of 200 feet immediately prior to the collision? A. 35 M.P.H.
“5. Going at the rate of speed set forth in your answer to Question 4, state within what distance, in feet, the defendant’s driver, Kenneth D. Logan, could stop the Graham truck and semi-trailer on super-highway No. 40, under the conditions and with the load shown by the evidence, immediately before the collision? A. 85'.
“6. At what place with reference to the North edge of the pavement did the collision occur? A. 8 feet.
“7. If you find the driver of the Graham truck was guilty of negligence, state what his act or acts of negligence were. A. Failed to apply his brakes or failed to swerve his truck in time to avoid collision due to poor visibility because of fog.
“8. If you find for the plaintiff, state what act or acts of- the defendant, Kenneth D. Logan, was or were the proximate cause of the collision. A. Same as above.
“9. Was Frank Mulich driving his pickup truck in a Southeasterly direction in the north lane of the highway at the time of the collision? A. No.
“10. If you answer Question No. 9 in the negative, state (a) In what lane he was driving his truck? A. North lane, (b) In what direction? A. Westerly.
“11. Was the collision the result of a mere 'accident’ as defined in the Court’s instructions? A. No.
“12. Was the driver of the Graham truck, Kenneth D. Logan, confronted with an emergency as defined in the Court’s instructions? Yes.”
Appellants filed a motion to set aside the answers to special questions 1, 2, 4, 5, 7, 8, 9, subdivision b of question 10, and question 11 upon the ground that they were against the weight of the evidence, and as to some of them upon the ground that the answer was contrary to the evidence. The weight of the evidence is of course for the jury and the trial court. We find ample, competent evidence in the record to sustain the answers given to each of the questions objected to. Appellants specifically complain of the answer to question 4 as not being supported by any evidence. It is true no one testified that Logan was traveling at a rate of thirty-five miles per hour for 200 feet directly before the collision. He estimated his speed at about 25 miles per hour but testified that in going down the grade his tractor and truck would naturally gain momentum; that he frequently wanted it to do so in order for him to make the upgrade of the drain. The force with which the Graham tractor and truck struck the Mulich truck and the distance it carried it along indicates a speed fully as high as might be concluded from Logan’s testimony. The exact speed cannot be determined from the evidence and the estimate of the jury was not so far wrong as to be seriously inaccurate; indeed, it was not very material.
.Appellants complain the court overruled their motion for judgment on the answers to special questions notwithstanding the general verdict and in this specifically stress question 12 and the answer. The court had instructed the jury, in substance, that a modification of the rules given in other instructions as to due care is known as the “emergency doctrine,” to the effect that if the driver of a motor vehicle is confronted by a set of circumstances caused by the fault or negligence of another, and not through his own fault or negligence, which calls for quick action without time for deliberation and he uses his best judgment and follows the course of action which seems best suited to prevent a collision, he cannot be found to have been negligent upon the ground that some other course of action might have been pursued. Since no emergency of this kind was pleaded by defendants the propriety of giving that instruction is open to question ; but we pass that because the record does not clearly show that plaintiff objected to it. Question 12 pertains only to whether an emergency existed. It does not include that feature of the instructions which pointed out that before the emergency doctrine applies to relieve one of negligence the emergency must be one that was not caused by the fault or negligence of the driver of the truck. Here answers to other questions disclosed that the jury found the driver of the Graham truck to be negligent; hence question 12 and its answer did not require judgment for defendants notwithstanding the verdict. In fact, we are unable to see any such conflict between the answers to special questions and the general verdict as would justify the court in setting the general verdict aside.
The motion for a new trial presents all the questions here raised but in view of what we have said the court did not err in denying it.
We find no error in the record of which appellants can complain. The judgment of the trial court is affirmed. | [
-48,
106,
-80,
-36,
8,
-30,
42,
88,
97,
-123,
53,
87,
-115,
-117,
5,
107,
62,
61,
80,
107,
118,
-77,
7,
-117,
-46,
-77,
-79,
-60,
-72,
90,
36,
-2,
76,
48,
74,
85,
38,
74,
69,
84,
-114,
4,
9,
-26,
-39,
18,
48,
122,
118,
14,
-79,
-114,
-45,
42,
28,
-57,
12,
60,
107,
-81,
81,
-80,
-30,
7,
95,
16,
-125,
36,
-100,
3,
88,
63,
-36,
49,
32,
-20,
115,
-74,
-128,
116,
99,
-119,
12,
-90,
98,
48,
29,
-27,
-24,
-104,
15,
-66,
-97,
-89,
24,
24,
27,
101,
-66,
-99,
125,
54,
14,
-6,
-3,
21,
29,
108,
7,
-117,
-12,
-79,
79,
48,
-98,
-118,
-5,
-125,
-95,
113,
-119,
-14,
92,
71,
91,
59,
-97,
-74
] |
The opinion of the court was delivered by
Wedell, J.:
The plaintiff prevailed in an action to recover damages for personal injuries resulting from a collision of motor vehicles in an intersection of highways. The defendant appeals from orders overruling his (1) demurrer to plaintiff’s evidence; (2) motion for a directed verdict; and (3) his motion for a new trial.
It is conceded the principal question presented is whether appellee was guilty of contributory negligence. Appellant concedes the burden of establishing such negligence ordinarily rests on the defendant but he relies upon the equally well-established doctrine that if a plaintiff’s own evidence shows him to be guilty of contributory negligence, as a matter of law, a defendant may take advantage thereof by demurrer, citing Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470; Ray v. Allen, 159 Kan. 167, 152 P. 2d 851.
The question therefore is, did appellee’s own evidence actually convict her of contributory negligence as a matter of law? She was the only eyewitness to testify concerning the collision. The pertinent portion of her direct examination, in substance, disclosed:
She was thirty-four years of age and the owner of a 1941 Mercury sedan coupe automobile; she was operating this car on the date of the collision, July 11, 1942; she had driven a car twelve years; Cleo Revell, who was her husband at that time, was asleep in the back seat; she was traveling west on U. S. highway 50 south, a paved road, at a speed of probably sixty to sixty-five miles per hour; after reaching a point approximately six miles west of Dodge City she observed two trucks on a dirt road approaching the paved road from the north; it was approximately 4:45 p. m., the day was clear and the paved highway was dry and in good condition; it was probably twenty-four feet wide, level, and she could see a long way ahead; the trucks seemed to be coming down a slight incline; she first saw them when she was approximately one-half to three-quarters of a mile east of the intersection; the trucks were then approximately one-fourth mile north of the intersection; the first truck stopped at the stop-sign before entering the intersection; the stop-sign was located north of the main highway; when she saw the first truck stop it made her more or less confident the second one would also stop; after stopping for approximately one second the -first truck passed through the intersection; she was then about a quarter of a mile east of the intersection; the second truck was fairly close behind the first truck; the second truck did not stop at the stop-sign; when she first observed the second truck was not stopping at the stop-sign she was from fifty to seventy-five feet east of the inter section; she lifted her foot from the accelerator; her first thought was to apply the brakes and she thought she did so momentarily; she thought if she applied the brakes the collision would be certain; she then thought she could avoid the collision by pulling to the left and by not applying the brakes; the front end of the truck collided with the right front part of her car; the collision occurred in the south half of the intersection; C. C. Neill was driving the truck which struck her car.
Much of the cross-examination was a repetition of her testimony on direct examination. Other pertinent portions of her cross-examination, in substance, were:
She was not a very good judge of distance but thought it would have required about 600 feet to stop entirely at the speed she was traveling; she was probably nearer a half mile from the intersection when she first observed the trucks; her estimate was the trucks were traveling about twenty-five miles an hour; the second truck seemed to be traveling faster than the first one; she judged that when she first saw the trucks they were something like twenty-five to fifty feet apart; the second truck got closer to the first truck when that truck stopped at the intersection; she was rather sure she was more than a half mile east of the intersection when the first truck stopped at the stop-sign; in attempting to avoid the collision she turned onto the south part of the intersection; the collision occurred a little to «the west of the center of the north and south road; she tried to do what was best under the circumstances; the truck was traveling with the same speed at which it approached the intersection; the first truck stopped about twenty-five feet north of the highway; she was probably nearer three-fourths of'a. mile east of the intersection when she first observed the trucks coming from the north; she was probably fifty to seventy-five feet east of the intersection when she observed the second truck was not stopping; the first truck had gotten safely across the intersection traveling south; she could not state definitely the distance it had traveled south by the time she collided with the second truck; her attention was on the second truck.
It is, of course, elementary that in testing evidence on demurrer courts consider all of the evidence as true, consider the evidence favorable to, and disregard that unfavorable to, the party adducing it. They do not weigh any part of the evidence that is contradictory or any differences between portions thereof adduced on direct and cross-examination. When so considered, if there is any evidence which sustains a cause of action or defense, the demurrer must he overruled. (Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.)
Appellant concedes that to be the rule. Let us apply the rule to the facts. Appellant contends when his track operated by Neill ran through the stop-sign, which sign according to appellee’s testimony was located approximately twenty-five feet north of the paved road, appellee was at least 1,000 feet east of the intersection; that appellee’s conduct in proceeding towards the intersection at sixty to sixty-five miles per hour under these circumstances constituted a reckless disregard of duty and convicted her of contributory negligence as a matter of law.
Appellant arrives at the 1,000-foot distance by an argumentative process. For present purposes let us, however, assume there was evidence which was susceptible of the interpretation that appellee was 1,000 feet east of the intersection when appellant’s track ran through the stop-sign. Appellant’s argument therefor very properly could be, and undoubtedly was, made to the jury. The argument, however, is not good on demurrer. It fails to correctly apply the above-stated rule applicable on demurrer in that it rests on portions of the evidence most unfavorable to appellee instead of portions thereof most favorable to her. The testimony most favorable to her discloses .she was on a paved main highway and approximately fifty to seventy-five feet east of the intersection when she» first observed appellant’s — the second — truck was not stopping at the stop-sign. It was then that appellee was first called upon to act on the truck driver’s negligence. At sixty to. sixty-five miles per hour appellee traveled at the respective distances of eighty-eight feet and 95.3 feet per second. She, therefore, reached the point of collision in less than one second after being apprised of the truck driver’s violation of the law.
After appellee observed that fact what did she do, and did such conduct convict her of contributory negligence as a matter of law? She lifted her foot from the accelerator. Her first thought was to apply the brakes and she thought she had done so momentarily. She then thought if she applied the brakes the collision would be certain, so instead of applying the brakes she attempted to avoid the collision by swinging to the left.
Prior to the enactment of statutes, to be considered presently, giving preference to drivers on a paved road over drivers on unpaved intersecting roads, this court in Kersting v. Reese, 123 Kan. 277, 255 Pac. 74, held:
“In the absence of a legislative provision 'giving motor vehicles moving upon a paved road a preference or right of way at an intersection as against such a vehicle moving upon an unpaved intersecting road, no preference on that ground can be claimed.” (Syl. ¶ 4.)
Following that decision, the lawmakers, in 1931, concluded safety of travelers required the giving of a preference to motor vehicles on certain roads. Accordingly it authorized the state highway commission to erect signs at entrances of intersecting state and federal highways and made it unlawful for a driver to disobey such signs. (R. S. 1931 Supp. 8-122; Keir v. Trager, 134 Kan. 505, 7 P. 2d 49.) In the Keir case it was said:
“The appellee was acting wholly within her rights in assuming that the appellants would stop before entering the highway, and she cannot be charged with negligence in acting upon such assumption. She can only be charged with negligence under such circumstances from the time that she had knowledge that the appellants intended to disobey the stop sign and enter upon the highway. After she had such knowledge she was bound to use the care of an ordinarily prudent person.” (p. 507.)
Following that decision the lawmakers enacted even more stringent preference provisions for the safety of drivers on protected roads. With some minor variations our legislature in 1937 adopted, by the enactment of G. S. 1945 Supp. 8-501 to 8-5,134, the uniform act regulating traffic on highways as recommended by the national conference of commissioners on uniform state laws and the American Bar Association. Certain portions thereof require our attention. G. S. 1945 Supp. 8-550 reads:
“(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection, from a different highway. (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, (c) The foregoing rules are modified at through highways and, otherwise as hereinafter stated in this article.” (Our emphasis.)
G. S. 1945 Supp. 8-552 pertains to stop-signs and rights of way at both through highways and other protected highways. It provides:
“(a) The driver of a vehicle shall stop as required by this act at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute’an immediate hazard, but said driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right of way to the vehicle so proceeding into or across the through highway. (6) The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto, although not a part of a through highway, and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the ■ intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.” (Our emphasis.)
See, also, G. S. 1945 Supp. 8-568 on duty to stop.
In this case we need not debate whether appellee was within the intersection first. Under the testimony most favorable to her she was fifty to seventy-five feet east of the intersection when she first observed the truck was running the stop-sign. Manifestly at that moment she was approaching the intersection so closely as to constitute an immediate hazard. Under these particular circumstances not merely one, but two, provisions of the statute become vital. The first is, the driver of the truck was required to stop. Appellee had the right to assume he would do so. The second and all-important provision is that appellee had the right of way to pass through the intersection. She had the right to assume the truck driver would yield that statutory right to her. In other words, the truck driver was not only required to stop before entering the intersection but was required to remain out of it until the hazard had passed. Under these circumstances and in the absence of a statute limiting the speed in the intersection we cannot say the speed at which appellee was traveling constituted negligence as a matter of law.
In support of the contention appellee’s conduct convicted her of negligence as a matter of law appellant cites McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468; Dildine v. Flynn, 116 Kan. 563, 227 Pac. 340; Koster v. Matson, 139 Kan. 124, 30 P. 2d 107; Cruse v. Dole, 155 Kan. 292, 125 P. 2d 470; Sayeg v. Kansas Gas & Electric Co., 156 Kan. 65, 131 P. 2d 648; Orr v. Hensy, 158 Kan. 303, 147 P. 2d 749; Ray v. Allen, 159 Kan. 167, 152 P. 2d 851. The cases are not controlling. The first two cases involve collisions within the limits of incorporated towns and presented entirely different circumstances. The third was a guest case and had other dissimilar features. In none of the remaining cases was a stop-sign involved. They pertain to open unprotected intersections and the statutes controlling in this case were not involved or applicable there.
For other cases more nearly similar factually and following the principal enunciated in the Keir case, supra, see Jones v. McCul lough, 148 Kan. 561, 83 P. 2d 669; Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583, and cases therein cited.
Appellant further relies on Robinson v. Short, 148 Kan. 134, 79 P. 2d 903. He emphasizes the following statement in the opinion, to wit:
“That she did not correlate her speed with her ability to stop is clear, for she testified that as soon as she saw defendant’s truck she put on her brakes, which were in good condition, but notwithstanding, she simultaneously hit the truck. We do not believe that reasonable minds could come to different conclusions respecting her negligence.” (p. 139.)
The law applicable to that phase of the case was stated as follows:
“It is negligence as a matter of law for an automobile driver, whose range of vision is limited to three feet ahead of his automobile because of a dust storm or dust cloud, to operate his automobile along a public highway at such a speed it cannot be stopped within the distance that objects on the highway ahead of it can be seen.” (Syl. ¶ 3.)
The facts in that case .disclosed plaintiff first drove her car for some distance when visibility was only poor and was limited to three blocks. Plaintiff, however, continued to drive after the dust had become very dense and her visibility of objects in the highway had been reduced to three feet. In the opinion we said, “Because of the dust she drove in about the same circumstances as one would who drove an unlighted car on a dark night.” It clearly appears the 'law of that case was not based on plaintiff’s conduct at the time her visibility extended a distance of three blocks. It was based on her conduct of continuing to drive on a public highway after she kiiewshe could not see objects more than three feet ahead of her and was unable to stop within the range of that vision. Wholly unlike the case at bar plaintiff in the Robinson case did not have a statutory right of way. She was obliged to know other vehicles might be. on the public highway immediately in front of her and was compelled to use that highway with due regard to the rights of others.
Numerous earlier and later cases might be cited in which the genéral rule stated in the Robinson case was followed. The rule has various exceptions which need not be noted here. It would be quite sufficient to say the general rule does not apply in the situation obtaining in the instant case. It may, however, be well to observe this court has clearly stated the general rule does not apply where a driver, otherwise in the exercise of reasonable care, is suddenly and unexpectedly confronted with an unavoidable obstruction. In Menely v. Montgomery, 145 Kan. 109, 64 P. 2d 550, appellants insisted upon applying the general rule. We said:
“To adopt the contention advocated by appellants as conclusive in every situation where an obstruction unexpectedly appears without warning would result in the erection of a legal monstrosity, the effects of which would be too terrible to contemplate. Carried to its logical conclusion, that doctrine would mean that a vehicle approaching from an opposite direction could suddenly and without warning turn squarely in front of a car traveling at a reasonable and proper rate of speed, in its own proper lane, and thereby make the latter guilty of negligence. The contention is untenable.” (p. 113.)
Was it error to overrule appellant’s motion for a directed verdict at the conclusion of the trial? Counsel for appellant candidly concedes the evidence offered on behalf of appellant did uot materially alter the legal question presented on the demurrer to plaintiff’s evidence. In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions-thereon. (,Jones v. McCullough, supra.) It follows the motion was properly overruled.
Appellant argues the petition was insufficient to allege agency of Neill, the truck driver, and hence evidence of such agency was inadmissible. The parties stipulated as follows:
“It is stipulated, subject to the objection of the defendant hereinafter made, by and between the plaintiff and defendant, that:
“1. C. C. Neill was at the time of the accident, driving defendant’s truck.
“2. That said C. C. Neill was the servant and employee of the defendant.
“3. That said O. C. Neill at the time of the accident was acting as servant, employee and agent, and on the business of the said defendant, Tom Bennett.
“The defendant, Tom Bennett, objects to Item 3 set out in the stipulation above for the reason that the same is incompetent, irrevelant, and not within the issues of this case.
“The Court: It will be overruled.”
The material portion of the petition alleged:
“Plaintiff . . . was involved in a collision with a truck which was then and there owned by the defendant and which was at the time being driven by C. C. Neill, who was then the agent, servant and employee of the defendant, Tom Bennett, employed to drive said truck in the hauling of certain feed and was at the time operating said defendant’s truck under the control, guidance and instructions of the defendant, Tom Bennett.”
The answer contained a general denial but was unverified. It therefore admitted such allegations of agency as were well pleaded. (G. S. 1935, 60-729; Olsen v. Lambert, 158 Kan. 94, 145 P. 2d 159.) Appellant argues the allegations of agency were insufficient and cites Willett v. McCormick, 161 Kan. 658,170 P. 2d 821. The petition in that case failed to allege that at the time of the collision the driver of the truck was operating it on business for the defendant. The instant petition is not subject to that defect: It constitutes a sufficient allegation of agency for the purpose here involved.
Our attention is directed to the admission of one item of evidence over appellant’s objection. Counsel for appellant commendably concedes the point is perhaps of minor importance. If appellant is correct the error could not well be said to have affected appellant’s substantial rights. Under such circumstances we cannot reverse the judgment. (G. S. 1935, 60-3317.) The motion for a new trial' was properly overruled.
The judgment is affirmed. | [
-16,
106,
-12,
-113,
11,
98,
34,
-104,
113,
-91,
53,
83,
-81,
-53,
68,
125,
126,
-65,
-48,
42,
-11,
-93,
7,
-29,
-14,
19,
-7,
68,
-125,
-53,
100,
-10,
76,
48,
74,
85,
102,
74,
-43,
88,
-50,
-98,
-120,
-31,
89,
-46,
-80,
56,
52,
13,
-15,
-114,
87,
42,
58,
-57,
41,
44,
107,
-75,
-64,
48,
-56,
5,
95,
2,
-79,
4,
-66,
7,
-40,
27,
-44,
-72,
8,
-4,
115,
-90,
-110,
-44,
107,
-101,
8,
98,
99,
33,
21,
-19,
-68,
-104,
46,
126,
13,
-89,
24,
24,
-55,
9,
-73,
29,
125,
118,
7,
-18,
-2,
77,
93,
96,
5,
-53,
-76,
-79,
-51,
116,
22,
-37,
-53,
-123,
18,
113,
-52,
-30,
92,
69,
83,
-101,
-33,
-110
] |
The opinion of the court was delivered by
Harvey, C. J.:
This is an action on a fire insurance policy. De fendant denied liability upon the ground that it had never issued a policy to plaintiff and by cross petition sought to foreclose a mortgage on the property which it had paid and claimed subrogation. The case was here before (Drewicki v. Fidelity & Guaranty Fire Corp., 157 Kan. 569, 142 P. 2d 806), where the pleadings are much more fully stated and the issues to be tried were determined. A trial by jury was waived. The trial court made findings of fact and conclusions of law, denied plaintiff any relief, and foreclosed the mortgage set up in the cross petition. Plaintiff has appealed.
Briefly stated, the pertinent facts found by the court may be summarized as follows:
Plaintiff’s legal name is Antone Drewicki but he is commonly known as Antone Price. His wife, Pearl Drewicki, is commonly known as Pearl Price or as Mrs. Antone Price. The plaintiff owned a small residence property in Leavenworth which he purchased in 1936 and took the title in his name and since then has continued to own it. .In July, 1936, Mrs. Antone Price applied to the Reilly Insurance Agency of Leavenworth, owned and managed by Edward Reilly, for a fire insurance policy upon the building owned by her husband. At that time Mr. Reilly was the agent for the Dixie Fire Insurance Company of Greensboro, N. C. - He issued a three-year policy in that company to Mrs. Antone Price and she paid the premium thereon. While that policy was in force there was a small loss. Mrs. Antone Price made proof of the loss, which was allowed, and she was paid the amount of the loss by the Dixie Company.
In July, 1939, Mrs. Antone Price went to. the Reilly Insurance Agency and made application for a fire insurance policy upon the same property and its contents. Mr. Reilly at that time was agent for the Fidelity & Guaranty Fire Insurance Corporation. He issued a three-year policy in that company to Mrs. Antone Price, insuring the»building for $500 and the contents for $800 (and other sums on garage, etc., not involved here). Mrs. Antone Price was named as the insured in the policy and she paid the premium thereon. The policy contained the provision, among others, common in such policies and which so far as pertinent here reads:
“This entire policy, unless otherwise provided by agreement hereon [herein] or added hereto, shall be void if the . . . interest of the insured be other than unconditional and sole ownership; and if the subject of insurance be a building on ground not owned by the insured in fee simple . . .”
In November, 1940, plaintiff borrowed $400 from the Citizens Mutual Building & Loan Association of Leavenworth. After the loan was approved in amount plaintiff took the abstract of title and the insurance policy issued to Mrs. Antone Price to the Building and Loan Association. It was there discovered that the insured named in the policy was not the owner of the property. The Building & Loan Association asked the Reilly Insurance Agency to place a standard mortgage clause on the policy and also to place thereon a clause, the wording of which was dictated by a representative of the Building & Loan Association, and which reads as follows:
“Agency at Leavenworth, Kansas -Policy No. MFW-20120
Fidelity & Guaranty Fire Corporation of Baltimore, Md.
Name of Insured Mrs. Antone Price
Location of property No. 1800 South Fifth Street
Leavenworth, Kansas
Property Insured, Dwelling, Household Goods,-Garage,' Chicken House, Small Dwelling and Contents.
Date of Policy, June 7th, 1939, Expiration July 7th, 1942, Amount $1700.00
Notice is hereby accepted that the title to the . property insured Under this policy shows the name of Antone Drewicki. (Lawful name of Antone Price).
All other terms and conditions remain the same.
Date of endorsement, November 21st, 1940.
Ed Reilly’s Agency,
By Ed Reilly, Agent. ” *
While there was some conflict in the testimony on the point, the trial court found that Mr. Reilly did not know that the property was not owned by the insured, Mrs. Antone Price, prior to the request .that he make this ‘endorsement on the policy. This finding was sustained by substantial, competent evidence, and is binding upon us.
On April 5, 1941, Mrs. Antone Price, who was named as the insured in the policy and in the endorsement “intentionally and purposely procured and caused the building and contents therein to be burned.” For this.she was prosecuted and convicted of ar^on. She did not sue on this policy, perhaps for the obvious reason that having intentionally destroyed the insured property by fire she could not have recovered.
Antone Drewicki, the owner of the property, brought this action seeking to recover upon the policy 'because of the endorsement above .set out. The trial court was of the opinion that the-endorsement did not authorize him to sue upon the policy. We concur in that view.
It is well settled in this state and elsewhere that a husband or wife cannot take out a valid insurance policy on -property-owned by the other spouse. The point was specifically ruled upon in Old Colony Ins. Co. v. Kansas Public Service Co., 154 Kan. 643, 121 P. 2d 193, where it was held:
“A husband is not the unconditional and. sole owner of property the title to which is in his wife, even though the property is occupied as a home-, stead; nor does such a title satisfy a provision avoiding an insurance policy if his interest is any other than unconditional and sole ownership. The wife’s property should be insured in her own name where sole and unconditional ownership is essential to the validity of the policy.” (Syl. ¶ 1.)
Many authorities to support this view are set out at page 646 of the opinion. Later cases to the same effect are Huber v. Penn Mutual Fire Ins. Co., 42 Del. 369, 33 A. 2d 729, and Kanefsky v. Nat. Com. Mut. Fire Ins. Co., 154 Pa. Superior Ct. 171, 35 A. 2d 766. The case is reported in 138 A. L. R. 1166, with an annotation on the question of subrogation on facts which are not involved here. The case is also cited, with others to the same effect, in 45 C. J. S. 257, in support of the general rule of the text, which reads:
“In general, separate property of a married person can not be insured as that of his or her spouse without violating the sole and unconditional ownership condition of the policy . . .”
So the policy sued upon in which Mrs. Antone Price was the sole insured and which contained the provision respecting title herein-before quoted was invalid as to her husband’s property when written for the reason that the title to the property stood in the name of her husband.
Appellant does not seriously question this rule but urges that the endorsement attached to the policy in November, 1940, by which the insurer accepted notice that “the title to the property insured under this policy shows the name of Antone Drewicki (lawful name of Antone Price) ” had the effect of making Antone Price the insured in the policy. In appellant’s brief in this court this is made the only question in the appeal and it is said “this is a question of law.” We agree it is the only important question in the appeal and that it is a question of law, but it is clear to us that the endorsement did not have the effect of changing the name of the insured. In the body of the policy as written Mrs. Antone Pxice was the named insux-ed, and that is repeated in the endorsement relied upon by appellant, hence there is no ground upon which it can be said that the endorsement changed the name of the insured. The person insured remained, as it always had been, Mrs. Antone Price.
Quite a little has been said in the brief and arguments of appellant about the meaning of the endorsement if it does not have the effect of changing the name of the insured. Since the only question before us is whether it did change the name of the insured we are not called upon to determine what other meaning it had.
There are some other matters mentioned in the argument. One of them involves a discussion of the policy first written in 1936 and the fact that the insurer paid Mrs. Antone Price a loss thereunder. Whatever may be the proper analysis of that, it cannot affect the appellee in this case. It was not the insurer under the other policy.
On the back of the policy as folded was a space in which data was written showing the term of the policy, the amount of the insurance, and the amount of the premium and name of the insured. As originally written the name of the insured had been typed “Mrs. Antone Price.” When it was offered in evidence that name had been exed out and above it written the name “Antone Drewicki.” There was a conflict in the testimony as to when and by whom that change had been made. Ed Reilly’s secretary testified she had no recollection of making the change, gave it as her opinion she had not done so. We are asked to examine the instrument and see if the change was written by the same typewriter as used in writing the endorsement. We decline to do' so for at least three reasons. We do not profess to be experts in identification of typed v/ords. Second, it is the function of the trial court to find the facts, not this court. Third, .the change of the name on the list of data would be insufficient to change the name of the insured in the policy. That never was changed. The trial court did find specifically that in executing the endorsement relied upon by appellant Mr. Reilly had no intention of changing the name of the insured. There is evidence to sustain that finding.
The appellee here paid the building and loan association and under the terms of the policy and the standard mortgage clause was properly held to have been subrogated to the rights of the mortgagee. That, in effect, was conceded by the appellant. It was not error for the court to foreclose the mortgage.
We find no error in the record. The judgment of the court is affirmed. | [
-12,
124,
-39,
-82,
-120,
-32,
56,
-38,
86,
-96,
-91,
83,
-3,
-64,
37,
111,
-10,
41,
69,
43,
-9,
-73,
23,
34,
-42,
-5,
19,
-59,
-71,
-35,
-10,
-41,
76,
32,
-114,
-43,
-30,
-56,
-123,
84,
-50,
12,
-87,
-43,
-39,
80,
52,
-5,
116,
75,
21,
-113,
-13,
36,
16,
-61,
13,
44,
91,
-95,
-64,
57,
-127,
-113,
127,
17,
49,
38,
-100,
65,
-22,
-114,
-112,
49,
0,
-24,
115,
-90,
-106,
116,
101,
-119,
8,
38,
99,
16,
5,
-21,
-84,
-103,
38,
-41,
-81,
-90,
-106,
24,
2,
32,
-73,
-97,
124,
16,
-73,
88,
-10,
21,
30,
108,
9,
-113,
-106,
-77,
-49,
120,
-100,
-125,
-17,
-109,
-89,
116,
-57,
-80,
92,
87,
127,
-69,
-98,
-34
] |
The opinion of the court was delivered by
Parker, J.:
The appeal in this case is from the order denying the plaintiff a new trial.' The jury returned a verdict for the defendants in the action brought by the plaintiff to recover damages for the wrongful death of her husband resulting from a collision in the intersection of two city streets, of an automobile in which she and he were riding, and a truck.
The first contention of the plaintiff is that the trial court erred in giving an instruction which reads:
“You are further instructed that it is the duty of one in charge of an automobile approaching an intersection to look for other traffic within the range of his vision and' to govern the operation of his vehicle as reasonable prudence may require under the circumstances.
“You are further instructed - that a motorist approaching an intersection will be held to have seen what he should have seen, and what there was nothing to prevent him from seeing, and if he looks and fails to see an oncoming automobile in plain view, and nevertheless proceeds, he is guilty of negligence.
“You are further instructed that, if the driver of the Moyer car did see the Dolese truck in the intersection, and having seen said truck, proceeded forward through the intersection, his conduct fell below the standard to which he should have conformed for his own protection, and he is, therefore, guilty of contributory negligence.” '
The plaintiff asserts that the error incident to the giving of the instruction arises by reason of the wording of the last paragraph thereof and that the inclusion of such paragraph.in the instruction was the equivalent of directing a verdict for the defendants. The plaintiff further contends that for all practical purposes the giving of the instruction No. 14 nullified the other instructions theretofore given relative to the duties of the defendant truck driver and that its language was inconsistent and could not be harmonized with the language used in other instructions.
The instruction complained of was given following the introduction of evidence which disclosed that the plaintiff’s husband was driving east on Douglas avenue in Wichita, Kan., about eight o’clock one morning, accompanied .by the plaintiff. As they approached the intersection of Water street a truck, being driven by the defendant, George E. Blanchat, and owned by the defendant, Dolese Brothers, was approaching Douglas avenue from the north on Water street. Blanchat testified that when he reached the north edge of the intersection the traffic light facing him was green, which testimony was confirmed by two witnesses for the defendants, and denied by two witnesses for the plaintiff who testified that when Blanchat entered the intersection the traffic light facing him had turned amber. The jury was not requested to answer special, questions and consequently we cannot speculate as to which witnesses the jury saw fit to believe. We can only observe that the verdict of the jury resolved all controverted questions of fact in favor of the defendants. The evidence further disclosed that when the defendant truck driver entered the intersection two east-bound cars on Douglas avenue either were or had been waiting for the light facing them to change from red to green and that when the light changed the two cars moved forward a few feet and then stopped to allow the truck driver to complete the passage through the intersection. According to the testimony of the plaintiff, she had observed the two east-bound cars which were waiting at the intersection when she was a half block west of the intersection. She and her husband continued east preparatory to entering the intersection to the south or right side of the waiting cars. Her husband shifted gears and entered the intersection at a speed of ten to fifteen miles per hour. He drove past the two cars which were waiting for the truck to proceed through the intersection, with the result that thé car in which the plaintiff was riding either ran into the truck or was struck by the truck. Conflicting testimony was introduced as to the view being obstructed by the waiting cars and as to the condition of the brakes on, the truck. The defendants’ evidence, which the jury was justified in believing, also was to the effect that the defendant truck driver was traveling south on Water street between twelve and fifteen miles an hour, with good brakes on his truck; that he entered the intersection on the green light, looked east and west before entering the intersection; that the first time he saw the car in which plaintiff was riding was when it pulled out in front of,two parked cars and that he pulled his truck to the left and “slapped” on his brakes.
1. Consideration of the question whether the last paragraph of instruction No. 14 was erroneous leads to analysis of the wording of the instruction. We note that it is predicated upon the jury finding that the driver of the car in which the plaintiff was riding “did see” the truck “in the intersection” and having seen said truck, “proceeded forward through the intersection.” Undoubtedly, the last paragraph would have been improved if the court had repeated the phrase contained in the two preceding paragraphs that it applied to one in charge of an automobile “approaching an intersection” or to one about to enter an intersection.
After giving extended consideration to the question, however, we are unable to conclude that the failure to include in the last paragraph the above-quoted phrase resulted in the jury being misled or confused by the instruction. The paragraph was a part of an instruction all of which applied only to the duty of one about to enter an intersection. The plaintiff’s theory of the case is that the two cars on the left which she and the deceased passed before entering the intersection obscured their view of the truck and that they did not and could nofsee the truck until they were in a position of peril which created an emergency and that, therefore,' neither the plaintiff nor her deceased husband could be charged with contributory negligence because he may not have taken the wisest course. The trial court, however, gave an instruction which covered, in part at least, the plaintiff's theory. Instruction No. 16 reads .as follows:
“You are further instructed that the decedent would not necessarily be guilty of contributoiy negligence as would bar recovery if he could not have and did’not observe the Dolese truck at the time he entered the intersection, if you believe from the evidence that under the circumstances the ordinary prudent person could not have and would not have observed said truck in time to avoid injury.”
The record before us fails to disclose that the plaintiff requested the court to give an additional instruction pertaining to conduct in an emergency. Also, we observe that the giving of instruction No. 16, in substance, made instruction No. 14 inapplicable if the jury had seen fit to accept the plaintiff’s factual theory of the case to the effect that she and the deceased could not have and did not observe the truck in the intersection at the time they entered the same. The court gave the jury twenty-five separate instructions. Examination of the same reveals that the rules of law generally applicable to negligence and contributory negligence in automobile collision cases were covered therein with sufficient accuracy. Also, therefrom it appears that the jury was admonished that all 'the instructions in the case were to be considered with and in the light of all the other instructions. In the case of Hunter v. Greer, 137 Kan. 772, 776, 22 P. 2d 489, we held:
“The instructions given should be considered as a whole, and it is not the rule to single out an instruction as defective because of a missing element if that element is found in another part of that instruction or in other instructions given in the case.”
Instruction No. 14, while not entirely free from ambiguity,nevertheless, by reasonable construction, did not state the law incorrectly and the exception to the application of the instruction was sufficiently set forth in instruction No. 16. (See Sweeney v. Merrill, 38 Kan. 216,16 Pac. 454; Orr v. Hensy, 158 Kan. 303,147 P. 2d 749; and Ray V. Allen, 159 Kan. 167, 152 P. 2d 851.) We cannot agree with counsel for the plaintiff that the inclusion of the last paragraph of instruction No. 14 was the equivalent of directing’a verdict for the defendants or that the giving thereof nullified the other instructions or that it was inconsistent' and could not be harmonized with the language used in other instructions. Consequently, we cannot conclude that the rights of the plaintiff were prejudiced by the giving of the last paragraph of the instruction No. 14 and therefore, the asserted error did not make it mandatory upon the court to grant a new trial.
2. The plaintiff also asserts that a new trial should be granted because the court failed to give two instructions requested by the plaintiff. The requested instructions pertain to the right of way at street intersections and to the effect of an ordinance concerning observance of traffic-light signals. Further examination of the given instructions convinces us that the court adequately covered the substance of the requested instructions in the instructions which were given. It has long been the rule that instructions need not be repeated and that requested instructions may rightly be refused when the subject matter thereof is covered' by other instructions. See Farmer v. Central Mut. Ins. Co., 145 Kan. 951, 67 P. 2d 511; and Sams v. Commercial Standard Ins. Co., 157 Kan. 278,139 P. 2d 859, from'which case the following is quoted:
“This court has repeatedly held it is not error to refuse to give requested instructions, where the instructions given by the trial court cover the same ground.” (p. 284.)
3. Another ground asserted in support of the motion for a new trial is that prejudicial error occurred in permitting the introduction of an affidavit made by one of the defendants’ attorneys. When the case was called for trial the defendants filed a motion for continuance based upon the inability to secure the attendance of a material, witness. At such time plaintiff’s counsel objected to any continuance and asserted that ,an appointment which had been made to take the witness’ deposition had been cancelled by the defendants. It was further shown that the witness had left town after being served with a subpoena. Upon such a showing being made, the court, announced that it would grant a continuance unless the plaintiff’s counsel would consent that the affidavit be used in the form of a deposition for the purpose of showing what the testimony of the absent witness would be if he were present. The record discloses that plaintiff’s counsel thereupon stated:
“We will admit that the testimony set out in the affidavit is approximately' what the man would give if he were here in person. Under the statute, in order to avoid a continuance it might be used as a deposition.”
The objection now made to the affidavit is that it failed to comply with G. S. 1935, 60-2934, in that it did not contain a statement to the effect that the facts set forth in the affidavit were believed by the affiant to be true. The statute does provide that the affidavit shall set forth • “what facts he believes the witness will prove and that he [affiant] believes them, to be true.” The obr jection to the affidavit, however, was not made at the time of the trial. Obviously, the omitted matter could have been inserted if the objection had been made at that time. Moreover, the plaintiff had consented to the use of the affidavit as a deposition and thereby avoided a continuance of the case. In such circumstances the reading of the affidavit did not constitute reversible error or necessitate the granting of a new trial. (See Bremen State Bank v. Loffler, 121 Kan. 6, 245 Pac. 742, and cases therein cited; also St. Louis Rubber Cement Co. v. Cooke, 134 Kan. 38, 4 P. 2d 462.)
4. In support of the motion for a new trial the plaintiff introduced two affidavits. One affidavit, after setting forth some irrelevant and improper matter, concludes as follows:
“We were instructed to read instruction fourteen and it was read to us shortly after we retired to deliberate.”
The other affidavit was made by the foreman of the jury and reads as follows:
“One of the attorneys had told us to be sure to read instruction fourteen. There were two others mentioned. When we got to the jury room instruction fourteen was read to the jury. It was the only one read, and I read it to the jury myself. After this instruction was read we all got started talking.”
We have already decided herein that instruction No. 14 was not an improper instruction. Consequently, no reversible error occurred because a juror re-read a proper instruction. The plaintiff does not contend that the court did not read all of the instructions to the jury or that they were not all given to the jury in compliance with G, S. 1935, 60-2909. Obviously, counsel for the plaintiff could have urged the jury to read certain instructions which supported the plaintiff’s theory of liability. The procedure did not become improper because the request was made by counsel for one of the parties and was not made by counsel for the other. Probably the affidavits were introduced in connection with the motion for a hew trial for the purpose of emphasizing the effect which the asserted erroneous instruction had upon the jury, but the point becomes immaterial when the conclusion is reached that the instruction was not erroneous as a statement of law and could have been properly considered by the jury.
Counsel for the defendants contend upon this appeal that no possible reversible error occurred in the trial of the case which affected the plaintiff’s substantial rights because the court should have sustained the demurrer to the plaintiff’s evidence and the motion for a directed verdict in behalf of the defendants. The argument is based upon the assertion that the record clearly discloses that both the plaintiff and her deceased husband were guilty of contributory negligence as a matter of law. Of course, we do not pass upon the point because of our conclusion that the jury was properly instructed. We have considered, however, additional arguments advanced by the plaintiff in support of the motion for a new trial and find that the same fail to establish that the plaintiff was not afforded a fair trial.
The'judgment of the district court is affirmed. | [
-48,
-22,
-48,
-113,
9,
64,
50,
-104,
117,
-75,
-91,
83,
-83,
-61,
21,
59,
-1,
61,
80,
107,
-11,
-77,
7,
-120,
-14,
115,
-45,
-60,
-106,
-54,
102,
-14,
77,
112,
-54,
-43,
102,
75,
69,
92,
-50,
22,
41,
121,
-39,
26,
-80,
120,
4,
15,
113,
-98,
-61,
42,
26,
-62,
-87,
44,
105,
-91,
-45,
-80,
-23,
15,
127,
6,
-77,
4,
-102,
-91,
120,
24,
-104,
49,
32,
-8,
115,
-90,
-126,
116,
109,
-103,
8,
38,
98,
1,
21,
-17,
-68,
-104,
46,
-6,
21,
-89,
26,
24,
9,
5,
-74,
-99,
117,
54,
7,
122,
-36,
21,
89,
120,
3,
-53,
-76,
-79,
-49,
49,
-112,
88,
-21,
-121,
18,
113,
-56,
-24,
79,
71,
91,
-69,
-114,
-106
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action wherein plaintiff sought to re- ^ cover damages from three alleged joint tortfeasors for personal injuries sustained. The demurrer of the defendants to plaintiff’s amended petition was sustained, and she appeals, assigning the ruling as error.
The amended petition, hereafter called the petition, consumes twelve printed pages in the abstract, and an attached exhibit consumes nine more pages. An analysis of the petition and exhibit discloses the following allegations, as shown by numbered paragraphs:
1. Plaintiff lives in Wichita, Kan.
2. The defendant city of Wichita is a municipal corporation.
3. The defendants Helgerson, Osment and Brazill are partners doing business under the name of The Wichita Catering Company.
4. The defendant, The Thomas Hopkins Post No. 4 of the American Legion, is a corporation.
5. For brevity the defendants are referred to as the city, the partnership and the post.
6. On September 7, 1945, plaintiff filed her written claim for damages in the office of the city clerk of the city and transmitted copies to the partnership and the post. A copy of the claim is attached as an exhibit.
7. The city owned Lawrence Stadium, composed of a large number of concrete seats in vast rows, one above another, seating approximately twelve thousand persons in such manner as to overlook a vast field where entertainments and games may be presented. The city frequently leased the stadium for rent to organizations such as the post.
8. On February 21, 1944, the partnership entered into a contract with the city to engage in selling mild beverages and food to persons congregated in the stadium. Under the agreement the city received 32% percent of the gross sales, and in no event less than $11,000 per year, and during the period the partnership was granted the sale and exclusive privilege of selling such beverages and food. Plaintiff does not have a copy of the contract and more definite detail cannot be set out, but the terms and provisions of the contract are definitely known to all of the defendants.
9. On June 26, 1945, the city leased the stadium to the post for a paid consideration of $72.50 for a fireworks display and entertainment to be held July 3, 1945. The lease was subject to the agreement between the city and the partnership.
10. The post advertised its display and entertainment and invited plaintiff to attend and plaintiff purchased a ticket and attended. Upon presenting her ticket she was admitted and directed to a seat by ushers.
11. As soon as she was seated the post, the city and the partnership carelessly, and negligently began the sale of beverages in large, heavy and dangerous glass bottles weighing from twelve to sixteen ounces, to approximately twelve thousand persons congregated in the stadium, and carelessly and negligently failed to provide the patrons with an adequate and safe means of disposing of the bottles and permitted the patrons to make such disposal thereof as their inclinations might prompt, and negligently and carelessly failed to have their salesmen and agents pour the beverages from the heavy glass bottles into paper cups or similar light containers which could not later fall with terrific force or be thrown by careless and heedless persons upon the head of plaintiff and other patrons of the defendants, thereby endangering the life and limb of plaintiff. The defendants not only failed to dispense the beverages in paper cups, but failed and neglected to immediately collect the heavy glass bottles after the beverages had been consumed by the patrons, and suffered the bottles to become vagrant among the patrons and to collect in large numbers upon the floor and aisles of the stadium, and upon the top ledge of the stadium, which ledge was about eighteen inches wide and forty inches high and adjacent to the exits from the stadium, and defendants negligently failed to foresee and anticipate that the bottles would be knocked from the ledge upon' the head of plaintiff as she made an exit from the stadium and that they would be thrown by heedless and irresponsible patrons over the ledge and upon the head of the plaintiff as she made exit from the stadium.
12. After the entertainment on July 3,1945, was concluded plaintiff started to leave the stadium and was proceeding through an exit in the north part of the stadium when an empty beverage bottle was thrown by a patron of the defendants out of the stadium and over the ledge above where plaintiff was proceeding through the exit, or was knocked off of the ledge by patrons of the defendants passing along the ledge to leave the stadium; that the ledge was about forty feet above, the head of plaintiff and the bottle struck the head of plaintiff with great force, causing her great injuries; that the defendants separately and in conjunction negligently failed to anticipate and expect the occurrence, and tíarelessly failed to provide plaintiff a safe exit from the stadium.
13. That the defendants had long had knowledge of the danger of permitting beverage bottles to become vagrant and unconfined in the stadium and at a previous time had established a rule prohibiting the sale of beverages in bottles and directed by the rule that the same should be sold only in paper cups which could not cause injury, but at some date prior to the accident in question they had negligently removed and abated the rule, and permitted the unlimited sale and dispersal of glass bottles, which might accumulate op 'the seats, aisles and ledge of the stadium, because of defendants’ failure to provide a safe place for patrons to deposit the bottles, and that the defendants, in- manner mentioned, created and maintained a dangerous public nuisance which ultimately resulted ip injury and damage to the plaintiff.
14. In this, paragraph is a repetition of allegations that the defendants had knowledge that sales of bottled. beverages might be expected to produce injuries, and further that in previous years the post, with the city and partnership, had presented the same type of entertainment, and that they knew that, other persons attending entertainments at the stadium had sustained injuries by being struck on the head by bottles in the. same manner in which plaintiff sustained injury.
15. Plaintiff further charged the defendants had negligently permitted her to make an exit from the stadium through a passageway which was inadequately protected and equipped to prevent bottles from falling or being thrown in the manner alleged, and negligently failed to erect a barricade on top of the ledge of the stadium to prevent bottles from being thrown over the top of the stadium or from falling from the ledge, and made the exit dangerous.
16. The remaining paragraphs of the petition treat in detail of plaintiff’s injuries and of the damages sustained by her.
Exhibit “A” attached to the petition is a very detailed statement of plaintiff’s claim against the city, the partnership and the post, and does not have to be reviewed here.
After the petition had been filed defendants filed their motion that the petition be stricken for the reason it did not contain a statement of facts constituting a cause of action in ordinary and concise language and without repetition, and in the event that portion of the motion was not sustained that plaintiff be compelled to make her petition more definite and certain with respect to allegations in the eleventh and twelfth paragraphs, and further that she state how defendants were negligent in permitting plaintiff to make an exit from the stadium, and how they were negligent in failing to erect barricades to prevent bottles from being thrown over the top of the stadium or falling therefrom. Upon hearing, this motion was ■ 'denied in all its parts.
Defendants then demurred on three grounds: (1) That several causes of action, were improperly joined; (2) that the petition does not state facts sufficient to constitute a cause of action; and (3) there is such a confusion of theories, defendants will be unable to properly plead or defend. The trial court sustained the demurrer and plaintiff perfected her appeal.
The briefs cover a rather wide range and. it is well that we clarify matters. In her brief the appellant expresses perplexity as to the ground of the demurrer on which the trial court rested its ruling, but we think it clear from the remarks of the trial court included in the record, that it concluded the petition did not state facts sufficient to constitute a cause of action. In its remarks the trial court made passing reference to another case, but which it did not name, and from those remarks appellant has drawn an inference the doctrine of res ipsa loquitur is involved, and she has presented some argument on that doctrine. From all briefs filed we learn the parties agree the case referred to by the trial court was Sipe v. Helgerson, 159 Kan. 290, 153 P. 2d 934, the defendant there being one of the parties in the instant case. In that case the plaintiff made no contention that his petition stated any cause of action except one for application of. the doctrine of res ipsa loquitur, and it was held the doctrine should, not be applied. .We need not treat that phase here for the appellant states she does not believe the allegations of her amended petition present a case for application of the doctrine. We agree it does not. Appellant has pleaded specific facts which she contends convict the defendants of negligence and the question is whether they are sufficient to constitute a cause of action.
It is clear from the petition that the plaintiff has suffered injury in person and that under our state constitution (Bill of Rights, § 18) she shall have remedy by due course of law. Whether, under the allegations of her petition, the defendants or any of them are responsible for those injuries and whether they or any of them must respond in damages, is the question presented by the demurrer. In discussing this question, we shall make no attempt to draw distinctions between any possible liability of the various defendants. Nor shall we discuss the general rule that as against a demurrer, the plaintiff is entitled not only to the benefit of the facts pleaded but to all reasonable inferences that may be derived therefrom, reserving for further consideration any exception there may be by reason of the overruling of defendants’ motion to a part of plaintiff’s petition.
There are scores of our own decisions and thousands in the reported cases dealing with the law of negligence and reference to any considerable number of them is an impossibility. In the general statements as set forth in textbooks and encyclopaedias may be found long and extended discussions of the various phases of the law of negligence, with exceptions to general rules and similar matters. In the following statement no attempt is made to survey the field, but only to direct attention to a few of the principles applicable to the situation disclosed by the present case, and which we think control our decision.
The ordinary definition of- negligence is “lack of due diligence or care,” and a legal definition is that it is “failure to exercise the care that the circumstances justly demand.” (Webster’s New International Dictionary, 2d ed.) It may be noted, however, that many decisions may be found stating that no comprehensive definition of actionable negligence may be stated, and that it is a broad term, and depends upon the particular circumstances of each case. (38 Am. Jur. 642, 45 C. J. 624 e.t seg.) It is clear, however, that no cause of action for negligence is stated unless it is alleged that there is a duty on the part of one to protect another against injury, a breach of that duty, and that the injury received is the proximate result of that breach. (Jones v. Railway Co., 98 Kan. 133, 157 Pac. 399.) Negligence on the part of one in the use of his own property resulting in injury to another, may make the owner liable therefor, not withstanding the general purpose for which the property is used is lawful. (McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753.) A person who seeks redress does not make out a cause of action by showing only that he suffered injury, but if not willfully done he must show that the act, as to him, had possibilities of danger so apparent as to entitle him to be protected against the doing of it although the harm was unintended. The probability of injury by one to another is the basis for the creation of the duty to avoid injury, and every person is under a duty to exercise his senses and intelligence in his actions to avoid injury to another, and it is no excuse that the one who created the peril did not intend or expect an injury to result. In Shafer v. Keeley Ice Cream Co., 65 Utah 46, 234 Pac. 300, 38 A. L. R. 1523, it was held that such an act as throwing candy from a float in a parade» though innocent in itself, may be negligent in respect to persons on the street, where the act is committed with knowledge it causes a commotion or jostling of persons on the street, with consequent injury, although it would not be actionable, if the result was not foreseen. And see, also, Cory v. Ray, 115 Ind. App. 50, 55 N. E. 2d 117; and Sims v. Strand Theatre, 150 Pa. Superior Ct. 627, 29 A. 2d 208. If the circumstances are such that a person of ordinary common sense who thought about it would recognize at once that if he did not use ordinary care in his own conduct with regard to those circumstances, his act would place another in danger, the duty to use ordinary care to avoid the danger arises. (Aaron v. Telephone Co., 89 Kan. 186,131 Pac. 582.) If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to take such care is negligence. It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained. (Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822.)
The negligence charged must have been the proximate or legal cause of the injury. (Kinderknecht v. Hensley, 160 Kan. 637, 164 P. 2d 105.) And'what is the proximate cause is ordinarily a question for the jury. (Thummel v. State Highway Comm., 160 Kan. 532, 164 P. 2d 72.) In the multitude of decisions there are many definitions of the term “proximate cause” but one of the most widely quoted is that the proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and' without which the injury would not have occurred, The proximate cause is an esséntial element of liability for negligence. Negligence, no matter of what it may consist, cannot create a cause of action, unless it is the proximate cause of the injury of which the complaint is made. (Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663, 31 A. L. R. 721; Fraser v. Railway Co., 101 Kan. 122, 165 Pac. 831, L. R. A. 1917 F 749; Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938, 69 L. R. A. 246, 114 Am. St. Rep. 500; Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402.)
It has been said to be impossible to state an exact rule for determining when a cause is proximate and when it is remote. The Supreme Court of the United States, in Insurance Co. v. Tweed, 74 U. S. 44, 19 L. Ed. 65, said that each case must be decided largely, on the special facts belonging to it, and often on the nicest distinctions. (Jones v. Kansas Public Service Co., 158 Kan. 367, 370, 147 P. 2d 723.) Other courts have said that the inquiry as to natural and proximate cause and consequence is to be answered in accordance with common sense and common understanding. See the discussion in A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan.. 354, 375, 15 Am. Rep. 362. A rule often stated is that the test of proximate cause is that which determines an injury to be the proximate result of negligence only where the injury is the natural and probable, consequence of the wrongful act, an additional condition sometimes stated being that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability. (See Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A. 515; Stephenson v. Corder, supra; Cleghorn v. Thompson, supra.) In Light Co. v. Koepp, 64 Kan. 735, 68 Pac. 608, it was said that the proximate cause of an injury is that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result. Natural and probable consequences. are thos.e which human foresight can anticipate because they happen so frequently they may be expected to recur, while possible consequences are those which happen so infrequently that they are not expected to happen again.
The question of concurrent and intervening cause will be noted briefly. A particular cause may not be said to be concurrent unless without it the injury would not have occurred. It is a concurrent cause if it was a cause which was- operative at the moment of injury and acted contemporaneously with another cause to produce the injury and was an efficient cause in the sense that without it the injury would not have occurred. As bearing hereon see Meecke v. Morguies, 128 Kan. 423, 278 Pac. 45. Our decisions, as well as other authorities, recognize that two or more events may combine to produce a result and both be a proximate cause. See Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614, Acock v. Kansas City Power & Light Co., 135 Kan. 389, 10 P. 2d 877; Pinson v. Young, 100 Kan. 452, 164 Pac. 1102; Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Restatement, Torts, § 439 and comments a and b. And it has been held that where injury to an innocent person would not have occurred except for the concurrent negligence of others, the subject of proximate cause need not be considered, and those whose acts united in producing the injury will be jointly and severally liable to the injured party. See Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924. See, also, Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112.
While it has been held that if two distinct causes are successive and unrelated in operation, they cannot be concurrent (Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469; and Thummel v. State Highway Comm., supra), the rule that the causal connection between an actor’s negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. (Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, L. R. A. 1915 E 479, Ann. Cas. 1917 B 340; Fraser v. Railway Co., supra.) It has also been held that one who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third person may have contributed to the final result. See Crow v. Colson, 123 Kan. 702, 256 Pac. 971, 53 A. L. R. 457, where it was said:
“Where defendant knows or has reasonable means of knowing that consequences not usually resulting from the act are likely to intervene so as to occasion damage, he is liable although it be not an ordinary and natural consequence of the negligence.” (Citing cases.) (1. c. 704.)
Other Kansas cases having some bearing on the question presented are Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658, 10 Am. St. Rep. 186, 2 L. R. A. 56; and Kansas City v. Gilbert, 65 Kan. 469, 70 Pac. 350. And also see Lonatro v. Palace Theatre Co., 5 La. App. 386, principally relied on by appellant because of a somewhat similar state of facts, and where it was alleged by plaintiff that she purchased a seat in a theater conducted by the defendant and while the performance was underway she was struck by a bottle which fell from above; that a prudent management would have foreseen that as a result of selling pop and soft drinks in heavy glass bottles and could easily have guarded against such an accident by requiring the seller to empty the contents of the bottle into a paper cup. The court there held the allegations stated a cause of action, and that if the allegations were not true, it was a matter of defense and the burden was on the defendant to prove that pop in bottles was not sold by it or with its authority, or if so sold that no accident of the sort occurred or could reasonably have been anticipated.
It is not necessary that we repeat the facts as set out in the petition. We think it clear that plaintiff alleged a situation where each of the defendants knew that soft drinks in glass bottles were being sold to patrons in the stadium and the bottles delivered to the pur- ■ chasers and that the bottles became vagrant in the stadium. While we think it is true that a glass bottle is not ordinarily a dangerous instrument, and that ordinarily the sale of a beverage in a glass bottle which is delivered to the purchaser does not in and of itself constitute negligence, the allegation that beverages were so sold cannot be isolated from other allegations and considered alone. In addition to the allegations of sale are other allegations about the physical features of the stadium; that bottled soft drinks had been sold in times past; that bottles so sold had become “vagrant” in the stadium; that at previous times other patrons had been injured by bottles either falling from or being cast ovér the walls of the stadium; that a regulation to prevent such sales had been made and later abated and removed; and that on the particular day when appellant was leaving the stadium she was struck by a beverage bottle which dropped from or was thrown over the stadium wall. Appellees sought by motion to have the latter allegation made more definite and certain by stating whether the bottle was knocked from the wall or thrown over it and this motion was denied. We think the ruling was proper. Under the allegations, the situation giving rise to similar accidents in the past is set forth as is the fact that appellees had notice thereof. Under the decisions reviewed, the appellees owed the patrons in the stadium the duty to exercise care that there be no repetition. Whether the bottle was inadvertently pushed from the wall or was cast over it was not an intervening and superseding cause under the facts as alleged in the petition nor was it the sole, proximate cause of the injury. The negligence of the appellees in permitting the sale and delivery of the bottles and allowing them to become vagrant in the stadium furnished the first' step and the fall of the bottle, whether pushed or thrown, wa§ the second step, not only reasonably to be anticipated but known to the defendants to have occurred previously according to the allegations of the petition. In our opinion the petition stated a cause of action.
In what has been said we have made no reference to certain matters specifically pointed out in the briefs of appellees. The city and the partnership filed one brief and devote some space to the proposition that it is impossible to determine from the petition on just what theory appellant relies, a matter later mentioned, and also to the doctrine of res ipsa loquitur, of which we have already disposed. The gist of their argument otherwise is that the sale of beverages in bottles is not inherently dangerous and that if appellant was injured, her injuries were occasioned by the act of some third person, and their negligence, if any, was not the proximate cause of her injuries. This latter phase has been sufficiently discussed heretofore. The Post, in its brief, also makes some reference to confusion of theories in appellant’s petition and to the doctrine of res ipsa loquitur, and that, under the allegations of the petition, it has no liability, even though the other defendant appellees are properly charged with negligence.
We shall not devote much space to the proposition of the appellees that the petition presents a confusion of theories. In our opinion the petition, although somewhat verbose and repetitious, presents only one theory and that is one that charges all of the defendants with permitting beverages to be sold in glass bottles to patrons in the stadium, the bottles allowed to become vagrant; that defendants 'knew, by reason of past occurrences that the bottles might fall from or be cast over the stadium walls and patrons injured; that such sales were made, a bottle fell or was thrown and plaintiff was injured. After setting out her injuries she asked for damages. Only one theory was presented.
Although appellant in her brief presents some argument on the question of immunity of a municipality from liability for tort, we shall not discuss that phase. In her petition she sets out only a part of the facts as to how the stadium is conducted, and she states further she does not have á copy of the contract between the city and the partnership. The question is not discussed in the briefs of the appellees. We are of the opinion that this question should be decided only as the result of an issue joined and after briefs have been filed which treat the question adequately.
At this time we shall not discuss the question whether one defendant may be liable and another not, for under the allegations of the petition dealing with negligence, each is jointly charged with the others. Upon issues joined a different situation may be presented, but we shall not anticipate it.
The judgment of the trial court is reversed and the cause remanded with instructions to overrule the demurrer.
Burch, J., not participating. | [
-16,
105,
-16,
94,
10,
98,
56,
-102,
41,
-75,
39,
83,
-23,
-56,
5,
121,
-25,
61,
80,
123,
-49,
-77,
7,
-126,
-46,
-109,
-5,
-43,
-80,
111,
-12,
118,
76,
48,
74,
-43,
-58,
-62,
-47,
-98,
-50,
-124,
9,
-15,
-7,
64,
52,
123,
20,
3,
113,
-113,
-5,
40,
28,
67,
-19,
44,
91,
63,
97,
-7,
-63,
-123,
124,
22,
16,
34,
-66,
-121,
88,
42,
-112,
49,
40,
-24,
81,
-74,
-122,
116,
77,
-103,
5,
34,
98,
112,
17,
-25,
-24,
-116,
47,
115,
-115,
-90,
-79,
25,
99,
1,
-66,
29,
53,
16,
3,
90,
-11,
29,
27,
-84,
11,
-118,
-76,
-79,
15,
-12,
-106,
7,
-21,
7,
33,
101,
-51,
38,
93,
-57,
58,
-109,
-82,
-100
] |
The opinion of the court was delivered by
Fromme, J.:
Samuel Kanive appeals from convictions of murder in the first degree (K. S. A. 21-3401) and aggravated robbery (K.S.A. 21-3427).
The charges against Kanive stem from the brutal slaying and robbery of Otis Bomar on a county road north of Topeka in February, 1974. One of Kanive’s companions was separately tried and convicted for his part in these crimes. See State v. Jones, 218 Kan. 720, 545 P. 2d 323.
The present appeal by Kanive concerns the sole question of whether a confession made to the police was admissible in evidence. Nonprocedural question is raised with regard to the pretrial hearing on the motion to suppress this confession. The trial court considered the totality of the circumstances and held the confession was freely and voluntarily made.
To be admissible in evidence, as an exception to the hearsay rule under K. S. A. 60-460 (f), a confession or extrajudicial statement by an accused must have been freely and voluntarily made. In determining the voluntariness of a confession the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. (State v. Milow, 199 Kan. 576, 433 P. 2d 538; State v. Jones, supra.) The voluntary nature of a statement must be established by a preponderance of the evidence (State v. Stephenson, 217 Kan. 169, 535 P. 2d 940) and the burden is on the prosecution to prove the statement is voluntary and admissible (K. S. A. 22-3215 [4]).
Kanive was arrested and taken to police headquarters shortly before two o’clock one afternoon. Questioning began around 2:45 p. m. Detective Ashworth began questioning Kanive about an unrelated rape of Kanive’s grandmother on which no charges had been filed. After 12 minutes of questioning by Ashworth on this subject Kanive advised Detective Ashworth he did not want to talk to him further. Thereupon Ashworth left and took no part in any later interrogation.
Officer Freeman then suggested that Kanive talk to him and to the assistant district attorney and, after Kanive was left alone for a short time, he agreed to Freeman’s suggestion. Interrogation was resumed and around 5:00 p. m. Kanive began to admit his part in the Bomar robbery and murder. A court reporter was called and the statement in question was taken around 6:30 p. m. The total time of all interrogations by Ashworth, Freeman and the assistant district attorney covered approximately three hours and forty-five minutes.
The statement, as taken and transcribed by the court reporter, was conversational in form and followed along this line:
“Q. Now, before the officers started questioning you, did they tell you what your rights were?
“A. Yeah.
“Q. Are you familiar with the Miranda warning and the words that are used in it?
“A. Well, took a while but — yeah.
“Q. All right. Now, did they give you that warning before you answered any questions at all?
“A. Well, I understood them, you know, and all of that.
“Q. At the time they told you what your rights were, did you understand what your rights were?
“A. Yeah.
“Q. And did you voluntarily go ahead and agree to talk to the officers?
“A. Yeah.
“Q. Okay, they didn’t threaten you to talk to you?
“A. No.
“Q. Or make any promises about anything?
“A. No, just normal conversation.
“Q. Well, I mean they didn’t say, you know, I promise you if you tell us what happened out there that, you know, I’ll do something or, you know— I don’t know, I wasn’t here, but I’m asking you if they made a promise to you like that?
“A. No.
“Q. Did anyone coerce you — do you know what I mean by coerce?
“A. You mean bribe?
“Q. Yeah.
“A. No.”
A full and complete statement of Kanive’s participation in these crimes was taken and transcribed thereafter.
Appellant first attacks the statement because it was obtained after he had advised Detective Ashworth that he didn’t want to talk to him further. He does not argue that the advice of rights was not given and understood by him, but he relies on the prohibition against continued in-custody interrogation after he had refused to talk to Ashworth. We recognize the teaching of Miranda v. Arizona, 384 U. S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602,10 A. L. R. 3d 974, and the cases which followed.
It is true the appellant refused to talk to Detective Ashworth concerning the rape of Kanive’s grandmother. Apparently the subject was distasteful to him. However, after the suggestion by Officer Freeman, and a period of reflection, it appears that Kanive voluntarily agreed to talk to others concerning the Otis Bomar robbery and murder. It does not appear from the record that appellants will was overborne at the time of the confession. The confession appears to have been the product of a rational intellect and free will after proper reflection.
The prohibition against continued interrogation in the face of a refusal to talk does not invalidate a statement thereafter given where the right to remain silent has been voluntarily and knowingly waived at a later time. (State v. Law, 214 Kan. 643, 648, 522 P. 2d 320.)
The confession was not inadmissible merely because interrogation was resumed by Officer Freeman and the assistant district attorney.
As a further basis for suppression of the confession appellant contends the confession was improperly induced by the promise of Detective Ashworth that the police would forget about the rape case if Kanive would cooperate with the police on the Otis Bomar murder. Detective Ashworth denied making such a promise, claiming he merely commented at the end of his part in the interrogation that the rape case was the least of Kanive’s worries. The remark by Ashworth, whatever it was, would, at most, be a promise of a collateral benefit (the discontinuance of investigation into the rape of Kanive’s grandmother). At the time in question no charges had been filed and nothing appears in the record as to the part Kanive might have had in that crime.
In considering the effect of a promise made by the police to an accused during an interrogation various factors have been recognized as worthy of consideration in determining the voluntariness of a subsequent confession. To render such a confession involuntary it is generally held that the promise must concern action to be taken by a public official, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute the same. (State v. Stuart, 206 Kan. 11, Syl. 4, 476 P. 2d 975; State v. Harwick, 220 Kan. 572, 576, 552 P. 2d 987; K. S. A. 60-460 [f] [2].) In addition it is generally recognized that a promise of some collateral benefit is less likely to induce a false confession. In the case of a promise concerning a collateral benefit, as distinguished from a promise to relieve the accused of some consequence of the crime charged, a more stringent test is applied. To hold that a promise of some collateral benefit renders a confession involuntary it must appear that the collateral benefit promised was of a nature calculated to produce a confession irrespective of its truth or falsity. (3 Wharton s Criminal Evidence, 13th Ed., § 680, p. 464, n. 11; 29 Am. Jur. 2d, Evidence, § 561, p. 619; 23 C. J. S., Criminal Law, § 825 d, p. 214.)
We have previously considered the probable effect of a promise of collateral benefits. In State v. Pittman, 199 Kan. 591, 433 P. 2d 550, there was evidence that the chief of police told the defendant during questioning that if he was holding back through fear of what would happen to his family, he (the chief) would see that the proper authorities were contacted and the family would be cared for. This court held:
“. . . This is not the sort of promise, either in phraseology or content, which would overcome a defendant’s free and unfettered will. . . .” (p. 596.)
See also Baker v. State, 204 Kan. 607, 464 P. 2d 212.
A confession induced by a promise of a collateral benefit, with no assurance of benefit to accused with respeot to the crime under inquiry, is generally considered voluntary and admissible in evidence, unless the circumstances surrounding the promise of the collateral benefit were such as to render the confession untrustworthy or the promise could reasonably be calculated to produce a confession irrespective of its truth or falsity.
In the present case the promise, if made, assured no benefit to the accused with respect to the crime under inquiry (the Otis Bomar murder). At most it was a promise of some collateral benefit (to discontinue further investigation of the rape of the accused’s grandmother). It seems improbable that such a promise by Ashworth would induce a false confession of more serious crimes when such confession was made to another detective at a later time. In addition it is improbable that the appellant would fabricate his part in the murder and robbery of Otis Bomar in order to obtain a termination of inquiry into the rape of his grandmother, a crime with which appellant had not been charged and on which no charges were filed. We note that appellant advised the assistant district attorney in beginning his statement that no promises had been made to him by the officers.
When a trial court conducts a full pre-trial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence. (State v. Creekmore, 208 Kan. 933, Syl. 2, 495 P. 2d 96; State v. Smith, 216 Kan. 265, Syl. 1, 530 P. 2d 1215.)
After considering all the facts and circumstances surrounding the making of this confession we find there is substantial competent evidence to support the trial court’s finding that the confession was voluntarily made.
Accordingly the judgment on these convictions is affirmed. | [
-80,
-23,
-88,
-97,
41,
96,
56,
36,
-45,
-77,
-14,
115,
109,
-55,
4,
123,
54,
127,
84,
97,
-44,
-105,
31,
-55,
-14,
115,
112,
-43,
-77,
-33,
-12,
-12,
77,
-80,
-54,
-107,
98,
-56,
-75,
92,
-114,
12,
-120,
-16,
82,
64,
36,
37,
114,
10,
-15,
-98,
-13,
42,
18,
-59,
-55,
60,
75,
-81,
120,
112,
-115,
-33,
109,
20,
-93,
36,
-66,
9,
-16,
44,
24,
25,
0,
120,
113,
-92,
-106,
-11,
127,
-117,
-24,
102,
-30,
17,
-103,
-18,
-84,
-123,
62,
122,
-107,
39,
-104,
73,
73,
76,
23,
-3,
89,
48,
42,
-4,
-15,
117,
93,
108,
35,
-53,
-80,
-109,
-115,
116,
18,
8,
-21,
4,
-64,
33,
-51,
98,
92,
83,
114,
-101,
-34,
48
] |
The opinion of the court was delivered by
Harvey, C. J.:
This was a suit to rescind a contract pertaining to the lease and sale of real property upon the ground that defendant had failed to perforin conditions thereof, and particularly those set out in paragraph 8 of the contract. (A copy of the contract is attached hereto as Appendix “A.”) Defendant answered that paragraph 8 of the contract was void, and by cross bill sought a. reformation of the contract to eliminate that paragraph. Fur ther pleadings put those matters in issue. The trial court heard the evidence and made conclusions of fact and of law and rendered judgment for plaintiff. Defendant has appealed.
The plaintiff and the defendant, Thomas C. Perry, were married in December, 1919, and were divorced in February, 1933. Sometime thereafter plaintiff married a Mr. Sykes. The defendant also remarried and at the time this action was brought his wife was Harriett Harper Perry. She died in April, 1946. Hereinafter Thomas C. Perry will be referred to as defendant. Prior to her marriage to defendant, and since, plaintiff has been a beauty parlor operator, which business- over the years made a substantial profit. A year or more before her marriage to defendant she bought two of the lots described in the contract here involved, upon which a residence was situated, for $2,500, and made improvements thereon ■ — put in hardwood floors and bathroom fixtures. At the time of their marriage defendant was a student in Kansas State College, taking a veterinary course. He completed his course and was graduated in 1921. While he was in school his wife remained in Wichita and continued her work. When defendant was graduated he returned to Wichita and began the practice of his profession as a veterinary, confining his work to small animals. A small animal hospital was built upon the two lots owned by plaintiff at a cost of about $300. Later the parties bought four lots adjoining on the north of those owned by plaintiff at a cost of $750. Later improvements were made in the house and a larger animal hospital was built at an expense of about $4,000. This became known as The Perry Small Animal Hospital. Defendant continued to operate the hospital and practice his profession until in June, 1932, when he left the state and did not return until September, 1933. During all this time plaintiff had continued her work of operating a beauty parlor, using the profits to assist in the enlargement and improvement of the hospital. While he was gone she operated the hospital with hired help for a time, and from February, 1933, to December, 1935, rented it for $150 per month. Defendant was not present when the divorce was granted plaintiff, in February, 1933, but he was represented by an attorney. In that action the plaintiff was awarded the six lots, with improvements thereon, as her separate property, she to pay the defendant the sum of $400. After defendant returned to Wichita, in September, 1933, he and plaintiff had several talks about his buying the property, which finally culminated in the contract here in question, which was executed December 23, 1935. The contract was drawn by Mr. Hart, an attorney of Wichita, who was employed for that purpose by the defendant.
Plaintiff and defendant went to the office of the attorney to- ■ gether. Apparently at that time they had agreed on a' price of $8,000 for the property, she having previously asked more and he having offered less. They explained to the attorney what they wanted to do. Plaintiff testified that defendant suggested what was embodied in the eighth paragraph of the contract in lieu of paying interest on the $8,000 purchase price, and stated: “I will pay you 10 percent if you don’t charge me interest, as long as I live and as long as you live.” The attorney explained to her that the accounting and the payments under the eighth paragraph would stop in the event of the death of defendant. She understood that. He inquired if he should die prior to having made all the $75 payments if his estate would have some equity in the property. The attorney told him there would be an equity. She was satisfied with that understanding and said she wanted to know that she would have an income. Defendant testified that the contract was written like the plaintiff wanted it and that he fully understood it. Her testimony was that she understood it. But before she executed it she took it to her attorney, Mr. Gardiner of Wichita, for independent advice. After consulting him she executed the contract. On the same date the deed from plaintiff to defendant was prepared and executed, and a copy of the contract and the deed were left with a bank where the payments were to be made.
Apparently all provisions of the contract which pertained to plaintiff and defendant were performed until about May, 1945. In the meantime and in 1940 defendant had moved the residence property from the south lots to the north lots, rebuilt and enlarged it at a cost of about $5,500, and also made some improvements in the hospital building at a cost of about $600, and had purchased some new equipment. In May, 1945, defendant consulted Mr. Holmes, an attorney of Wichita (Mr. Hart being deceased), concerning the provisions of the eighth paragraph of the contract. He testified that Mr. Holmes advised him that the eighth paragraph of the contract was void and that he need not comply with it; that he should complete making his $75 payments, get the deed from the bank and record it, and then he could convey the property or handle it as he pleased. The balance of the $75 payments was made on June 11, 1945, and a few days later Mr. Holmes got the deed from the bank. The deed was filed for record June 26, 1945, and three days later defendant executed- a deed conveying the property to his then wife, Harriett Harper Perry. Previously he had had some correspondence with Doctor Peterson, of the Tuskegee Institute, of Tuskegee, Ala., and with Doctor Evans, head of the veterinary school of the institute, about going there to teach veterinary surgery. The April, 1945, catalog of the Tuskegee College listed as a member of its faculty “Thomas G. Perry, Head.of the Small Animal Medicine, Surgery, Obstetrics, and Small Animal Clinic,” giving his degree as D.V.M., Kansas State College. His salary there was-to be $4,000 per year. Pie left his wife in charge of the animal hospital in Wichita and went to Fort Collins, Colo., and took some work there preparatory to his going to Tuskegee September 1, 1945. He returned from Colorado and went to Tuskegee about that time, 'but had been there only about a week when hi's wife fell and broke her hip. This caused him to return to Wichita to care for his wife, which he did until her death in April, 1946. He testified that during this time he did not practice as a veterinary surgeon, but that his ,wife continued to .operate the hospital.
On March. 12, 1946, defendant executed a lease of the property, except the residence, for $200 per month, to Doctors Balton and McDonald, who had previously been employed by Harriett H. Perry to operate the hospital. No date was named for the termination of the lease, but it contained a provision for its termination on thirty-days’ written notice of either party thereto. The lease recited that the lessor was the owner of drugs and supplies and accounts receivable in the sum of $5,500, which sum should be paid to the lessor by the lessees before they applied any profits to their own' use, and stipulated that the income from the business should be applied first to (a) the payment of the rent; (b) the payment of accounts, including taxes, incurred'by lessees; (c) payment of $475,per month to the lessees ($250 to one and $225 to the other); and (d) the balance of the profits to be paid to the lessor until the sum of $5,500 was fully paid, and provided a system of accounting and reports with respect to the income of the hospital and the payment. The lease specifically granted the lessees to continue the use of the name “Perry Hospital.”
After finishing the $75 payments in June, 1945, defendant has never made any accounting to plaintiff nor paid her anything from his income as a veterinary surgeon or from the income of the hospital. This is established by the pleadings as well as by the testimony. '
This action was filed in the fall of 1945 (the exact date not shown), but on March 5,1946, an amended petition was filed upon which the action was later tried. On March 11, 1946, Harriett Harper Perry executed a deed reco’nveying the property in question to the defendant. The parties stipulated .that the deed from defendant to his wife in July, 1945, was without consideration and that the deed from Mrs. Perry to defendant in March, 1946,■ for the same property was without consideration.
Other facts will be discussed as they pertain to the legal quéstions involved.
Defendant’s principal contention in the trial court and as appellant here is that the contract is divisible, that paragraph 8 is a separate and entire contract in itself and is severable from the balance .of the contract, and that it is unenforceable because (a) it lacks mutuality, is uncertain and ambiguous; (b) is inequitable and unreasonable and calls for an unconscionable and hard bargain; and (c) is without consideration. The point is not well taken. The legal authors have written quite a little upon the subject of divisibility .of contracts. The later general discussions may be found in 17 C. J. S. 785 to 791; 12 Am. Jur. 870, 875; Williston on Contracts, Rev. ed., sec. 860 et seq. Williston, supra, 860A defines a divisible contract as follows:
“A contract under which the whole performance is divided into two sets of partial performances, each part of each set being the agreed exchange for a corresponding part of the set of performances to be rendered by the other promisor, is called a divisible contract.”
And quotes from Restatement of Contracts, § 266 (3), Comment e, which reads:
"A contract is divisible where by its terms, 1, performance of each party is divided into two or more parts, and 2, the number of pari^ due from each party is the same, and 3, the performance of each part by one party is the agreed exchange for a corresponding part by the other party.”
This definition is in harmony with the general authorities above cited. Under this definition the contract in question is an entire contract and paragraph 8 is not a separable contract which is divisible from the remainder, for it contains no promise of the plaintiff. Stated in another way, the authorities are to the effect that where there is but one promise by one party to the contract and two or more promises by the other party it is an entire indivisible contract. (See the many cases collected on this point in the American Digest System under Contracts, Key No. 171; also, see Becker v. Mason, 30 Kan. 697, 703, 2 Pac. 850.) Broadly speaking, in the contract here involved, as it pertains to the sale of the property, plaintiff promised but one thing — to convey the real property to defendant; while defendant promised two things — to pay $8,000 in payments of $75 per month, without interest; and .thereafter to pay 10 percent of income from his work as a veterinary surgeon and from the hospital. He was obligated to do both of those things. The above stated rule, which we deem applicable here, is not the only rule used by the court in determining .whether a contract is entire or divisible. The above authorities point out that it is difficult to lay down a hard and fast rule applicable to all circumstances. For example, in 12 Am. Jur. 870, it is said:
“No formula has been devised which furnishes a test for determining in“ all cases what contracts are severable and what are entire. The primary criterion for determining the question is the intention of the patties as determined by a fair construction of the terms and provisions of the contract itself, by the subject matter to which it has reference, and by the circumstances of the particular transaction giving rise to the question.”
Our own decisions are in harmony with that view. In Crawford v. Investment Co., 91 Kan. 748,139 Pac. 481, it was held:
“The general rule is that whether or not a contract is entire or divisible is one of construction to be determined by the court according to the intention of the contracting parties as ascertained from the contract itself and upon a consideration of all the circumstances surrounding the making of it.” (p.756.)
The pertinent circumstances here were that when plaintiff and defendant started the hospital she had enough money to buy a home and improve it substantially and had a paying business. He had his education, which included a degree of Doctor of Veterinary Medicine. They built a small hospital on ■ the rear of the lots owned by plaintiff. On the combined income they bought four adjoining lots. They later improved and enlarged the small animal hospital until it covered the rear portion of three of the lots. The trial court found those improvements were made at a cost of $4,000 to $4,500. Appellant complains of the higher figure in that finding upon the ground that it was $200 more than the testimony of any witness. The abstract is not sufficiently complete for us to check that matter, but we regard the discrepancy, -if it exists, as being relatively unimportant. The hospital had been operated under the name of the Perry Hospital or Perry Small Animal Hospital for about fourteen years. Defendant had left the state in June, 1932, and did not return until September, 1933. The plaintiff had the hospital conducted while he was away and from the time of her divorce in February, 1933, she had leased the hospital for $150 per month, retaining the use of the residence. When defendant returned to Wichita in September, 1933, lie leased the hospital for a year at $150 per month. The trial court found that the property covered by the contract was worth more than $8,000 at the time the contract was made. Defendant complains of that finding. He had produced two real-estate agents who had testified the property was worth about $5,000 to $5,500. But that was not the only evidence before the court. The initial cost and improvement of the property was about $7,500. The plaintiff testified that it was worth $10,000 to $12,000. She had offered it to defendant for $10,000. As a small animal hospital it had a going concern value, and for nearly two years, at least, had been rented for $150 per month. It was the function of the trial court to weigh all that evidence and we think there was ample, competent evidence to sustain its finding that at the date of the contract it was worth more than $8,000. Plaintiff had a business of her own. Defendant was a qualified veterinary surgeon and decided to continue the use of the hospital which he had been renting and the business which he had built up and followed for many years. There may have been a sentimental reason, for defendant testified' that plaintiff desired that they be remarried. This was the general situation when the contract was entered into. There is nothing on the face of the contract or of the testimony of either party with respect to the circumstances of its making that indicates any view except that the parties were dealing upon a plane of good faith respecting a matter with which they were familiar, and that they had prepared a contract which they fully understood and to which they agreed. From the oral testimony it appears the principal thought in plaintiff’s mind was that she should have security through the years to come, and one of the thoughts in defendant’s mind was that his outlay for a time would not exceed $75 per month. In short, he did not want to pay that sum plus interest. Counsel for plaintiff has computed the present value of the $8,000 payable without interest at $75 per month to be $5,600. We are not advised the basis of that computation and have not attempted to compute it, but obviously it was substantially léss than $8,000. Plaintiff testified that defendant proposed this provision in lieu of paying the interest. Defendant does not categori'cally deny that, but testified the contract was'written as plaintiff wanted it. The attorney who drew it volunteered information and answered questions of the parties respecting it. They both understood it. Counsel for defendant call our attention to plaintiff’s testimony respecting her interview with her attorney, Mr. Gardiner. It appears they were discussing paragraph 8. The defendant was present and Mr. Gardiner said to him: “You don’t want to sign a contract like this, Doctor Perry, do you?” The abstract does not show Doctor Perry’s answer. The very question, however, discloses that the attorney called his attention to the provisions of paragraph 8. Plaintiff testified that she said: “He is not paying me for the hospital, but paying me what he owes me.” Counsel for defendant construes this statement to mean that plaintiff was seeking pay for money she had advanced to defendant to attend school after their marriage. That was not developed by further questions and we do not care to speculate upon what the witness meant by the statement. Naturally, it was to be weighed by the trial court together with all of the other evidence.
Counsel for defendant interpret paragraph 8 of the contract as giving defendant the liberty of continuing his work as a veterinary surgeon or quitting it if he were pleased to do so. The contention is that having procured the deed under other provisions of the contract he could sell or dispose of the property in any way which suited him ■ and quit his, work as a veterinary surgeon without violating any provision of the contract. We do not so construe it. It is true that the language of the contract does not specifically say.that defendant shall continue his work as a veterinary surgeon nor does it say that he is at liberty to quit his work as a veterinary surgeon. ’ Upon that point the contract is silent. We think, however, that the only reasonable interpretation of the contract is that he would continue his work as a veterinary surgeon and continue to have the small , animal hospital conducted. Otherwise the purpose of the provision would have been frustrated. The obvious interpretation of the provision is that the parties intended plaintiff should have an income, some receipts from the hospital, and from his work as a veterinary surgeon after the deed had been delivered. Since the contract is silent on that point we think it is necessarily implied. The authorities support this view. In 6 R. C. L. 856, § 244, the rule is thus stated:
“Necessary implication, is, beyond doubt, as much a part of an instrument as if that which is so implied were plainly expressed. If it can be plainly seen from all the provisions of the instrument taken together, that the obligation in question was within the contemplation of the parties when making their contract, or is necessary to carry their intention into effect — in other words, if it is a necessary implication from the provisions of the instrument- — the law will imply the obligation and enforce it. The policy of the law is to supply in contracts what is presumed to have been inadvertently omitted by the parties, being supposed to have made those stipulations which as honest, fair and just men they ought to have made. Therefore, whatever may fairly be implied from the terms or nature .of an instrument is, in judgment of law, contained in it. . . . In fact, it may be said that contracts impose on parties, not merely obligations expressed in them, but everything which, by law, equity, and custom, is considered incidental to the particular contract, or necessary to carry it into effect. Implied promises always exist, where equity and justice require the party to do or refrain from doing the thing in question; where the covenant on one side involves some corresponding obligation on the other; where by the relations of the parties and the subject-matter of the contract a duty is owing by one not expressly bound by the» contract to the other party in reference to the subject of it. Whatever the law necessarily implies in a contract is as much a part thereof as if expressly stated therein.....”
Other authorities discuss the question to the same effect. See 5 Williston on Contracts, rev. ed., § 1293 et seq.; 12 Am. Jur. 765 to 769; 17 C. J. S. 778, and authorities cited therein. Our own cases are to the same effect. In Zelleken v. Lynch, 80 Kan. 746, 747, 104 Pac. 563, it was said:
“The defendants say the contract pleaded does not bind the plaintiffs to mine the property to the end of the term; that the plaintiffs are at liberty to discontinue operations and abandon the lease at any time; and that a court of equity will not compel specific performance in a case where, because of a want of mutuality in obligation, the party seeking the relief may render the decree nugatory by the exercise of a discretion which he rightfully possesses. The principle invoked is one of extensive application, but the defendants misinterpret the contract. It is well understood that whatever is necessarily implied by the words used in a contract is as much a part of- the contract as if it had been expressed in elaborate terms. The covenant to mine the lots continuously can have but one rational meaning, and that is: Continuously to the end of the term. The implication is as clear and certain as if the expanding phrase had been expressly inserted. Besides this, correlative obligation sufficient to sustain specific performance may be implied from the situation of the parties and th'e circumstances surrounding the execution of the contract.” (p. 748.)
See, also, Austin v. Trust Co., 112 Kan. 545, 212 Pac. 77; Berg v. Scully, 120 Kan. 637, 245 Pac. 119; Missouri Pac. Rld. Co. v. Chicago Great Western Rld. Co., 137 Kan. 217, 224,19 P. 2d 484; Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807.
Defendant contends that even though paragraph 8 be regarded as a valid part of the contract between the parties that plaintiff had an adequate remedy at law, namely, an action for damages, which should have been pursued. The Restatement of Contracts, section 326, classifies the judicial remedies for breach of contract as, first, an action for damages; second, an action for restitution, which is frequently spoken of as a rescission of the contract; and, third, an action for specific performance. Other general authorities are to the same effect. Which one of these remedies is suitable depends upon the facts and circumstances. Here, in view of defendant’s theory that when he procured the deed he had an absolute title to the property and could convey it to anyone; that he could quit his work as a veterinary surgeon and engage in some other business, or go to some other state; together with the fact that if the action were brought for damages there would be great difficulty in ascertaining the amount of damages, an action for damages here would have been inappropriate and unavailing. For a somewhat similar reason specific performance would not have been a’suitable remedy. Indeed, it seems that restitution or rescission was the only appropriate and effective remedy open to the plaintiff. In addition to that, the injured party is the one who has the selection of the remedy which he thinks is available and appropriate. Here the plaintiff chose the remedy of rescission, that is, to have the contract set aside and to have an appropriate accounting. Her petition was drawn upon that theory.' She alleged that “plaintiff is willing to do equity and is ready, able and willing to make such restitution as the court may adjudge.” The prayer of her petition was that the contract and deed be set aside and plaintiff placed in possession of the property and business, and that defendant account to her for the reasonable rental value of the premises since the date of the contract, less taxes and the sum of $8,000 paid, and that she have such other and further relief as the premises warrant.
Appellant complains that the court ordered an accounting between the parties and ordered the cancellation of the warranty deed. The cancellation of the deed' is the natural result of the rescission of the contract. “Generally speaking, the effect of rescission is to extinguish the contract.” (12 Am. Jur. 1038.) Certainly if the contract is set aside an accounting is proper. “The very idea of rescinding a contract implies that what has been parted with shall be restored on both sides.” (12 Am. Jur. 1031.)
We wish to make ■ it clear that the accounting has not as yet been had, hence that we have not been called upon to pass upon the items of the accounting, and do not do so. If, when the accounting is made, there is any controversy over those items or concerning the accounting as a whole the parties may present their complaints to- the court.
The trial court made detailed conclusions of fact which are criticized or objected to by defendant. Some of the criticism is conceded to be of little importance and some of the objections have been heretofore referred to and not sustained. Others will be discussed. The court found that paragraph 8 was a part of the consideration for the sale of the property and that plaintiff testified she would not have executed the contract without the inclusion of paragraph 8, which she believed to be valid and enforceable. Plaintiff did testify as the court found. Defendant’s objection is to the finding that it was a part of the consideration of the contract, contending that the consideration was the monthly payments. The contract designated the consideration as “the sums of money to be paid, the mutual covenants and agreements herein contained, and other good and sufficient consideration.” This wording is broad enough to cover paragraph 8. The court found the rental value of the property from the date of the contract to July 1, 1945, to be $150 per month. Defendant contends there was no evidence to support that finding. It is true that when the plaintiff was asked the rental value of the property covering that period she stated she did not know. But that is not the only evidence on the subject. The evidence is clear that for almost two years prior to the date of the contract the hospital portion of the property had been leased for $150 per month. Indeed, the defendant was the lessee in one of the leases and had paid that sum for its use. There was testimony also that when defendant deeded the property to his wife in June, 1945, his wife operated the property until in March 1946, and defendant testified that it made an income to her during that time of more than $200 per month. Also there was testimony that on the 12th of March, 1946, the defendant .leased the hospital for $200 per month. We think this evidence justified the finding made, since defendant offered no evidence indicating that the rental value was less.
The trial court made a finding that at the date of the execution of the contract defendant had no intention of complying with paragraph 8, but concealed such intention from the plaintiff, who would not have signed the contract if she had known paragraph 8 would not be performed. Defendant contends there was no evidence to support this finding. There is evidence to support that part of the finding to the effect that the plaintiff thought it valid and, would not have signed the contract if she had known it was not to be performed. There is a lack of evidence as to what defendant’s secret intention was at the time. There is nothing in the contract itself -nor in the testimony of plaintiff or of defendant tending to show that he did not at that time intend to perform it. Just when he formed that intention is not shown with certainty by the evidence. It might be said that it was before April, 1945, when he completed his arrangements to go to Tuskegee Institute to the extent that the officials of that institution included his name in the catalogue. Certainly he had formed the notion by May, 1945, when he went to see the attorney, Mr. Holmes, for he testified he went to see him about that particular phase of the contract. The court may have reached ■ the conclusion stated by reading backward, and may have erred in doing so. We do not regard it important, however, in this case whether defendant had the secret intent not to comply with paragraph 8 at the time the contract was executed, or whether he formed it sometime in April, or.May, or June, 1945. Hence, the error is not material. It seems clear that plaintiff learned nothing of such intention until about July, 1945. Defendant complains of the finding that the defendant at all times attempted to evade the duties and obligations imposed upon him by paragraph 8 of the agreement as not being supported by the evidence. It is conceded that defendant did nothing to comply with the provisions of paragraph 8, but he contends that he was under no obligation to do so. We do not agree with that contention. The trial court made conclusions of law as follows:
“I. Paragraph 8 of Exhibit ‘A’ is valid and enforceable and is an entire indivisible contract.
“II. By reason of defendant’s repudiation of paragraph 8 and deliberate attempt to evade its provisions, the plaintiff is entitled to a cancellation of the deed and an accounting.
“III. Plaintiff is entitled to costs and an accounting.”
Defendant argues that the court in its first conclusion of law determined that “Paragraph 8 ... is an entire indivisible contract.” Such a reading of the statement is not justified. Apparently there is an omission in the wording of the conclusion; that after the word “and,” where last used, the words “the exhibit” or “the conr tract,” should have been inserted. Otherwise, of course, it is contrary to the facts found by the court upon which the conclusions of law are based, to the other conclusions of law, and to the judgment rendered.
Defendant argues that paragraph 8 of the contract should be held invalid because it imposes upon him a hard and unconscionable bargain. Considering the fact that defendant had the use of the property for about nine years at monthly payments which were but little, if any, more than half of its rental value we are unable to concur in that conclusion.
Defendant points out that plaintiff in her petition did not specifically offer to pay him for the money, more than $6,000, he had paid in improving the property, or the increased value of the property by reason of such expenditures. While that item was not specifically mentioned we think the allegation in the petition “that the plaintiff is willing to do equity and is ready, able and willing to make such restitution as the court may adjudge,” is sufficiently broad to authorize the court in making the accounting to take into consideration the item mentioned, or any other items which may be called to' the court’s attention by either party and which would be proper to be considered in determining the equities between the parties. We repeat, that the accounting has not been.had, and we are not now passing upon the items thereof.
We have considered all arguments made and all authorities cited by counsel but deem it unnecessary td make a 'further detailed discussion of them. A few other points are discussed, which we have considered and find no error in'the court’s rulings thereon.
The judgment of the trial court is affirmed.
APPENDIX “A”
"Agreement
“This Agreement made and entered into by and between Alice Perry, ■ herein referred to as first party, and Dr. Thomas G. Perry, herein referred to as second party, both of the city of Wichita, County of Sedgwick and State of Kansas.
“Witnesseth: That Whereas the first party is now the owner of the following described premises, to-wit:
“Lots 17, 19, 21, 23, 25 and 27 on Cleveland Avenue in Burleigh’s
Third Addition to the City of Wichita, Sedgwick County, Kansas, and all improvements located thereon, including the small animal hospital and all equipment belonging thereto, except the personal effects in said hospital belonging to the second party; said described premises being subject to a first mortgage to The Wichita Perpetual Building and Loan Association, on which there is a balance due of approximately Three Hundred Seventy-three and 65/100 ($373.65) Dollars, and the parties hereto are indebted to the Commercial Bank at 143 North Main Street, Wichita, Kansas, in the sum of Sixty-six ($66.00) Dollars, and
“Whereas the second party desire to rent said premises from the first party, and upon the expiration of the rental period to purchase said described premises in accordance with the terms and provisions of this agreement, and the first party is willing to rent and sell said property to the second party in accordance with the terms and provisions of this agreement,
“Now, Therefore, in consideration of the premises, the sums of money to be paid, the mutual covenants-and agreements herein contained, and other good and sufficient consideration, it is agreed by and between the parties hereto as follows:
“First: The first party does hereby let and lease all of the above described premises, including the small animal hospital and all equipment^ and property belonging thereto to the second party, except the house which is located on a part of said premises. The second party agrees to pay to the first party the sum of One Hundred Fifty ($150.00) Dollars per month, the first payment to be made on or before January 15, 1936, and a like payment to be made on or before the 15th day of each and every month during the rental period. From the proceeds of< said One Hundred Fifty ($150.00) Dollars the first party hereby agrees to pay the monthly payments due the said building and loan association amounting to $75.44 until taxes are repaid and then $50.44 until said amount due said building and loan association shall be paid in full, and the first party also agrees to pay from the proceeds of said One Hundred Fifty ($150.00) Dollars at least Ten ($10.00) Dollars each month to the Commercial Bank of Wichita until the indebtedness to said bank shall be paid in full, and when the respective sums due the said building and loan association and the said' bank shall be paid in full, then the rental ’agreed between the parties hereto shall terminate, and the sums thereafter paid by the second party to the first party shall be applied on the purchase price of said described premises as hereinafter provided.
“Second: That first party does hereby agree to sell and convey the above described premises and all improvements and appurtenances thereunto belonging to the second party, and the second party does hereby agree to purchase said described premises on the terms and conditions herein contained. The sale price of said described premises, is Eight Thousand ($8,000.00) Dollars, and the second party agrees to pay said sum to the first party by paying the sum of Seventy-five ($75.00) Dollars per month, the first payment to be made on or before the 15th day of the month following the last pay ment under the aforesaid rental arrangement, and a like payment to be made on or before the 15th day of each and every month thereafter until said sum of Eight Thousand ($8,000.00) Dollars shall have been paid in full. The second party may at any time pay any sum in addition to the said Seventy-five ($75.00) Dollars per month and receive credit therefor on the purchase price.
“Third: Second party agrees that he' will after the expiration of the rental period at all times until the purchase price shall have been paid in full, keep all improvements on said premises insured in a reasonable amount and not less than $5,000.00 against loss by fire, windstorm, and tornado, said policies to be payable to both parties hereto as their interests may appear. The second party shall also pay all taxes levied and assessed against said described premises after the termination of the rental period, and all taxes now due, and all taxes that may become due during the term of the rental period shall be paid by first party.
“Fourth: If second party shall make default for a period of two months or more .in the said monthly payments as herein provided, or if he shall fail to pay the taxes on said premises within two months after the same become due and payable, then and in such event it is agreed by the parties hereto that the first party may at her option terminate and end this agreement, and first party shall be entitled to keep and retain all amounts theretofore paid on said purchase price as liquidated damages and rents. In the event of the cancellation and termination of this agreement as herein provided, the first party shall be entitled to the possession of said described premises and all property, including personal property and equipment, belonging thereto.
“Fifth: The first party agrees to remove from the residence upon said described premises within thirty days after the termination of the rental period above provided for, and the second party shall thereafter be entitled to the exclusive possession of said residence', and may thereafter remove said house if he so desires. The second party shall be entitled to the exclusive possession of all of the above described premises and the small animal hospital, and all equipment and property belonging thereto under this contract of purchase, unless the same shall be canceled on account of defaults of the second party as herein provided.
“Sixth: The first party is this day executing a warranty deed describing said premises to the second'party, and said deed shall be placed in escrow with the Fourth National Bank in Wichita, herein referred to as thg escrow agent, together with an executed copy of this agreement, and the said escrow agent shall hold said deed and make delivery thereof in accordance with the terms and provisions of this agreement. When and if the second party shall make full payment of the purchase' price of said premises as herein provided the escrow agent is hereby authorized and directed to deliver said warranty deed to second party, and he shall thereupon become the absolute owner of all of said described premises and of all improvements and appurtenances belonging thereto, and upon the full payment of the purchase price the second party shall also become the absolute owner of all equipment and appliances in or about or belonging to the said small animal hospital. If the first party shall terminate and end this contract on account of the defaults of the second party as herein provided, the escrow agent is hereby authorized and directed to deliver said de.ed to the first party and the second party shall have no further interest in said premises. If the second party shall pay the full purchase price and submit to the escrow agent canceled checks payable to the first party, or to such persons as she shall direct, or receipts signed by first party or persons authorized by first party to receive such sums aggregating the said stim of eight thousand ($8,000) dollars, the escrow agent upon such evidence is authorized and directed to deliver the warranty deed to the second party.
“Seventh: The payments herein provided for shall be made by the second party to the first party or to such other person, company, or bank in the city of Wichita as the first party may in writing direct.
“Eighth: The second party agrees that he will, commencing the first month after the balance of the purchase price of said premises has been paid, pay monthly to the first party ten percent of his gross income as a veterinary surgeon, which shall include his income from said hospital, and that he will make said payments on or before the 15th day of each month, accompanied by a statement showing his gross income for the previous month, and that he' will continue making said payments as long as he shall continue in the work of a veterinary surgeon.
“In Witness Whereof the parties hereto have executed this agreement in triplicate this 23rd day of December, A. D., 1935.
“(Signed) Alice Perry, First Party.
“(Signed) Dr. Thomas G. Perry, Second Party.” | [
-48,
110,
-43,
77,
24,
100,
10,
-102,
112,
-88,
39,
87,
-19,
-55,
4,
105,
70,
45,
64,
125,
-57,
-77,
66,
-96,
-110,
-37,
-47,
-35,
-71,
77,
-12,
-41,
72,
56,
-54,
21,
-122,
-54,
67,
84,
-50,
5,
-119,
-60,
-39,
-128,
52,
105,
50,
64,
49,
-113,
-13,
42,
29,
71,
108,
46,
-7,
44,
-112,
-79,
-86,
-123,
124,
71,
32,
32,
-100,
-121,
88,
46,
-112,
49,
0,
-84,
115,
-74,
-122,
124,
79,
-117,
12,
38,
98,
34,
1,
-23,
102,
-104,
15,
-5,
-115,
-89,
-80,
88,
-46,
1,
-66,
-99,
124,
18,
3,
90,
-25,
-108,
-99,
-20,
3,
-98,
-42,
-77,
71,
-88,
-106,
1,
-1,
-25,
-79,
80,
-113,
-32,
93,
71,
122,
-101,
-98,
-70
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action in mandamus by a subordinate council, its trustees and some of its members acting for themselves and others, of a fraternal benefit society to restore the charter of the subordinate council which had been suspended and dissolved by defendant’s national executive committee. The trial court, after issues were joined and a trial, granted a peremptory writ, and defendant has appealed.
Defendant is a fraternal benefit society organized and operating under our statutes (R. S. 1931 Supp. 40-701 et seq.). It has a consti tution, by-laws, a national council, a national executive committee, and subordinate councils. Broadly speaking, its purposes are two (Bacon’s Life and Accident Insurance, 4th ed., §§ 11, 12): First, to unite its members into subordinate councils for the promotion of benevolence, charity, social culture, education, care of the sick and needy, to establish and maintain hospitals and homes for its members, and aid its members in obtaining employment. Second, to provide for the payments of sick and accident benefits to members and of death benefits to their beneficiaries. The first of these general purposes is carried out largely by the subordinate councils under the advice and supervision of the national body and officers, and to obtain funds therefor subordinate councils are authorized to collect assessments from their members. The second general purpose is largely a matter of insurance for its members, for which assessments are collected, and is carried out by all units of the society.
By the constitution the national council is the governmental unit of the society and is composed of certain national officers and delegates. It is the law-making body of the society, having authority to amend its constitution and its by-laws. It shall hear and decide appeals, redress grievances, and has power to grant charters to subordinate councils, “also to suspend subordinate councils and to deprive them of their charters for violation of the constitution or laws of the association, or for disobedience to its commands.” The national council shall provide for the national executive committee, composed of the national president, national secretary, and five other members to be elected by the national council. When the national council is not in session the national executive committee shall exercise all powers, rights and privileges of that body except that of amending the constitution and by-laws. An application for membership in the society contains this provision, among others:
“I further agree, if accepted as a member of the order, to be bound by its constitution and laws now in force or as the same may be hereafter amended or enacted, without reservation or exception as to the character or nature of such after-enacted or amended law.”
A by-law (§ 130) provides that an applicant for membership in a subordinate council shall sign a “preliminary application card” in a prescribed form, bearing the recommendation of two members of the society. This should be presented with an initiation fee, if one has been fixed. The secretary shall read the card to the council, whereupon the president shall appoint an investigating committee of three members. If that committee reports favorably the council shall proceed to ballot on the same. “If not more than two blackballs appear the applicant shall be declared elected.” With reference to suspending or dissolving- subordinate councils the by-laws read:
“Sec. 133. Any subordinate council may be suspended or dissolved by the national council, or by the national executive committee, and its charter forfeited for any of the following reasons:
“1. For improper conduct.
“2. For neglecting or refusing to conform to the constitution or the laws of the association, or the rules and regulations of the national executive committee.
“3. For neglecting to hold regular meetings as provided by law, unless prevented from so doing by some unforeseen circumstances.
“4. For neglecting or refusing' to answer a complaint filed against it within a given time to be fixed in the notice.
“5. For printing the secret work, ritual, odes, or any of the supplies of the association, or causing the same to be done.
“6. For neglecting to bring to trial within thirty days any member of the council, when notified of charges by the national secretary or the national executive committee, as provided in section 58, laws of the association.”
And section 133a of the by-laws reads:
“Sec. 133a. Whenever the national executive committee shall 'determine that it will be for the best interests of the association to do so, said national executive committee shall have the right to suspend a council and dissolve its charter for any of the causes set out in section No. 133, or for any other cause. This may be done without notice or hearing to the council or to the individual members thereof, and the executive committee shall be the sole judge as to whether or not the council should have notice and an opportunity to defend itself against said charges.”
The by-law relating to appeals (§ 180) reads:
“Any member of the association may'appeal.to the national executive committee from the decision of the subordinate council upon any trial had, and to the national council from the decision of the national-executive committee or national trustees, where trial is had before such comrdittee or trustees.”
The society has more than 1,600 subordinate councils located in the various states of the union, of which 304 are in Kansas and four are in Sedgwick county. One of these was Wichita Council, No. 120. It had functioned continuously for a number of years and had a membership of about 1,150, who paid monthly subordinate council dues of twenty-five cents each. It held meetings each week. It had an active membership. At several of the meetings in April, 1933, discord developed, largely between the president of the council and four or five of the active members on the one side and the remainder of the active members on the other. Some rulings of the president were appealed from, and he was not sustained by the council. In four of such rulings he appealed, as the by-laws provided, to the national president, who sustained him in two of the rulings and overruled him in two. At the council meetings his conduct was criticized by some of the members, and there was disorder. We shall not state the details of these matters nor make any intimation as to who was to blame. It is sufficient to say that the president of the subordinate council wrote a letter, perhaps more than one, to the national president. The contents of these letters are not disclosed by the record. On April 25, 1933, the national executive committee adopted a resolution, which reads in part:
“The national president called to the attention of the national executive committee communications passing between himself and some of the officers and members of Wichita Council No. 120.
“After giving consideration to all the papers and documents submitted to the national president, the following resolution was duly moved, seconded, and unanimously adopted, all members of the national executive committee being present:
“Be it resolved, That it is for the best interest of the association that Wichita Council No. 120 shall be suspended and its charter dissolved in accordance with section 133a of our laws for improper conduct of its members and for their refusal and neglect to conform to the constitution and laws, rules and regulations of the association and the rulings and directions of the national president and the national executive committee; and be it further
“Resolved, That it is for the best interests of the association that Council No. 120 be suspended and its charter dissolved without notice or hearing to either the officers or the individual members; . . .”
Other parts of the resolution provided for the transfer of the membership of the dissolved council No. 120, “so that the insurance protection of each member shall be in no way endangered”; provided to whom they should pay assessments until their membership had been placed in some other council; provided for the turning over of the money and other property of the council to some one authorized by the national president to receive it, and the proportionate share of each member to be paid to the council in which his membership was placed. In harmony with that resolution, about 1,100 of the members of Wichita Council No. 120 were transferred by the national officers to a new subordinate council at Wichita, No. 4152, the charter for which had been issued by the national executive committee on April 21, 1933. The other forty or fifty members of Wichita Council No. 120 were transferred to Topeka Council, No. 4, distant about 175 miles from Wichita. The members were notified of the dissolution of Wichita Council No. 120 and to what council their membership had been transferred, and were advised that if they desired their membership in some other council than that to which they had been transferred a national transfer card would be issued which they could present to the other council for the transfer of their membership. On being notified of the order of dissolution, the vice president, on proper request of members, called a meeting of the council, which authorized the employment of attorneys and the bringing of this action.
At the time of the dissolution of Wichita Council No. 120 it was under a written lease for a lodge room by which it was obligated to pay rentals for more than a year, and in addition thereto owned furniture and office and lodge equipment. It also had on hand $341.26 in cash, which, by the direction of the national executive committee, was turned over to the national president for distribution as the by-laws provide. The members of Wichita Council No. 120 whose membership had been transferred to Topeka Council No. 4 attempted to attend some of the meetings of the new Wichita Council No. 4152, but were refused admission.
After the hearing the trial court made findings as follows:
“Neither this court, nor any other court, has any right to interfere with the internal dissensions and strife of an organization of the kind involved as a party in this case. That the only function of the court is to see that the rights of the members are preserved intact, and that under the constitution and laws these rights have been violated. That in this case there was no notice of any charges. That no charges were preferred, nor was any hearing had prior to the passage of the resolution dated April 25, 1933, by which resolution the defendant, the Security Benefit Association, suspended Wichita Council No. 120, and dissolved its charter, pursuant to the terms therein. That this court is of the opinion that said section 133a is void, and that the action of the Security Benefit Association was arbitrary and unreasonable, and that Wichita Council No. 120 was entitled to notice and a hearing on the charges preferred against the council, upon which the action of the national executive committee of the Security Benefit Association is based. That said the Security Benefit Association may then proceed, by proper notice and a trial with a proper hearing, to determine the matters involved in its own organization, in such a way that the plaintiffs may be permitted to exhaust their remedies under the constitution and by-laws of the order. That the defendant, the Security Benefit Association, should be given ten (10) days to comply with this order.”
A peremptory writ, which conformed to these findings, was issued.
Turning now to the legal questions argued. Appellant contends the trial court erred in holding by-law section 133a to be void. This by-law is composed of two sentences. The first authorizes the national executive committee to suspend a council and dissolve its charter “for any of the causes set out in section No. 133, or for any other cause.” This sentence does not authorize the national executive committee to suspend a council or dissolve its charter at the pleasure of the national executive committee. It is authorized to take such action only for cause. It is not contended the action taken was “for any of the causes set out in section No. 133.” The phrase “or for any other cause” still authorizes action only “for . . . cause.” The word “cause” as here used means what is sometimes spoken of as legal cause, or just cause, a substantial, reasonable or just cause, related to matters of a substantial nature pertaining to duties or obligations imposed. (Brokaw v. Burk, 89 N. J. L. 132, 98 Atl. 11; Moulton v. Scully, 111 Me. 428, 89 Atl. 944; Rhea County v. White, 163 Tenn. 388, 45 S. W. 2d 375; People, ex rel. Keech, v. Thompson, 94 N. Y. 451; State v. Common Council, 53 Minn. 238, 55 N. W. 118; State, ex rel., v. Walbridge, 69 Mo. App. 657.)
The word carries with it the necessity of an appropriate charge, or accusation, notice of the charge with an opportunity to present a defense, and a fair hearing before an official or tribunal authorized to conduct such a hearing, and a decision on the merits of the charge. (See authorities supra.) This is the meaning given the word when used in the constitution or by-laws of a social or fraternal society authorizing expelling a member for cause. (Barry v. The Players, 132 N. Y. Supp. 59, 204 N. Y. 669.) In Lindley v. State Board of Administration, 117 Kan. 558, 231 Pac. 1026, this court had before it the distinction between authority to remove for cause, and at pleasure, and it was recognized that removal for cause required a charge, notice and hearing, while removal at pleasure did not.
The second sentence in section 133a purports to authorize the national executive council to suspend a council and dissolve its charter “without notice or hearing to the council or to the individual members thereof.” This is in direct conflict with the first sentence of the section, also with section 133, and attempts to grant power to the national executive council in excess of that granted to the national council by the constitution of the society, which authorizes some action only “for violation of the constitution, the laws of the -asso ciation, or for disobedience to its commands.” When a constitution of a society such as this provides how it shall be amended, it cannot be amended by a by-law (Kirkpatrick v. Abrahams, 98 Kan. 685, 159 Pac. 13). We have here the national executive committee, a body inferior to the national council, purportedly authorized to do something the national council itself could not do. It is important to remember this on the question of the necessity for appeal within the society, later to be discussed. At this point we simply note the conflict and point out the general rule that when there is a conflict between provisions of the laws of a society, such as this, they will be construed as favorably to the member or subordinate council and against the supreme body as can reasonably be done. (United Workmen v. Smith, 76 Kan. 509, 92 Pac. 710; Tucker v. Kirkpatrick, 106 Kan. 881, 189 Pac. 946; Ellis v. Fraternal Aid Union, 108 Kan. 819, 197 Pac. 189; Lawson v. Brotherhood of American Yeomen, 138 Kan. 248, 254, 25 P. 2d 344.)
Passing this thought, we go directly to the question of the validity of a provision in the by-laws of a fraternal benefit society which purports to authorize some superior committee or officers to suspend a subordinate council and dissolve its charter without a charge, notice and hearing. Our statute (R. S. 1931 Supp. 40-705) provides fraternal benefit societies may make by-laws “not inconsistent with the constitution of this state or the United States.”
Generally speaking, both our federal (5th and 14th amendments) and state (bill of rights, § 18) constitutions provide for due process of law. Whatever may be said of the exact definitions of that term, said to be synonymous with “the law of the land” (12 C. J. 1189), it is well settled that its “essential elements . . . are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.” (6 R. C. L. 446.) In 12 C. J. 1190 it is said:
“. . . due process of law means a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial; . . .”
And see cases there cited and those collected, American Digest System, Constitutional Law, section 251.
In Bacon on Life and Accident Insurance, 4th ed., section 106, it is said:
“All by-laws, to be valid, must have three essential and vital qualifications: (1) they must be consistent with the charter or articles of association; (2) they must not be in conflict with any provisions of statute or common law, and lastly (3) they must be reasonable.”
And in section 109 it is said:
“A by-law which provides for the expulsion of a member without notice is void, because unreasonable; and so are provisions for forfeitures without notice or opportunity to be heard; . . .”
The authorities uniformly hold that a member of a benefit society is entitled to notice and a hearing before his suspension or expulsion. See cases collected in the annotation on this point in 27 A. L. R. 1512.
In Harris v. Aiken, 76 Kan. 516, 92 Pac. 534, it was held that such a member may be expelled “if these conditions exist: That he is charged with conduct for which his expulsion is a proper penalty if he be guilty; that he has reasonable notice of the charge and opportunity to defend himself; that he is given a fair hearing; that a decision is rendered against him in good faith; and that he is not denied the benefit of any special rule that may exist relating to the matter.”
There is no distinction in principle between suspending or expelling a member and suspending or dissolving a subordinate council. (Grand Grove A. O. of D. v. Duchein, 105 Cal. 219, 38 Pac. 946.) The charter of the subordinate council and the constitution and by-laws of the parent organization constitute the agreement between them, as similar instruments do between the society and its members. (Knights of the Ku Klux Klan v. Francis, 79 Cal. App. 383, 249 Pac. 539; Scott v. Donahue, 93 Cal. App. 126, 269 Pac. 455.) This has been recognized by this court in Kirkpatrick v. Abrahams, 98 Kan. 685, 159 Pac. 13; Tucker v. Kirkpatrick, 106 Kan. 881, 189 Pac. 946, 107 Kan. 541, 192 Pac. 834, and perhaps other cases.) In Goodman et al. v. Jedidjah Lodge, No. 7, etc., 67 Md. 117, 9 Atl. 13, it was held:
“The courts can never recognize as valid any rule or law (of a benefit society) so made the effect of which is to confiscate property, or arbitrarily to take away property rights from one set of members and give them to another set; . . .”
See, also, Supreme Lodge, etc., v. L. A. Lodge No. 386, 177 Cal. 132, 169 Pac. 1040; State Grand Lodge of Pa. Appel. v. Morrison, 277 Pa. 41, 120 Atl. 869; Hampton v. Supreme Lodge K. of P., 161 S. C. 540, 159 S. E. 923; Hall v. Supreme Lodge Knights of Honor, 24 Fed. 450; Knights of Pythias, etc., v. Grand Lodge, K. P., etc., 258 Fed. 275.
Reexamining the abstracts, we find that the validity of a by-law, in effect the same as the second sentence in section No. 133a, was involved in the case of Tucker v. Kirkpatrick, 106 Kan. 881, 189 Pac. 946; Id. 107 Kan. 541, 192 Pac. 834. The pleadings in that case disclose that the national executive committee, acting under a by-law which purported to give it authority to suspend and dissolve a subordinate council without notice or hearing, passed a resolution suspending and dissolving Topeka Council No. 1, which was One of the subordinate councils of the society. Members of the society went into district court to enjoin the society from carrying out that resolution. Such an order was granted, but it provided that it should “not be held to prevent the defendants herein from proceeding in the manner authorized by the valid provisions of the constitution and by-laws . . . and after notice and an opportunity for hearing as provided in said by-laws, to hear any complaints or charges against said Capital Council No. 1 which may be duly filed, and from forfeiting and canceling the charter of said council if they shall find under the by-laws and the evidence offered at such hearing that said charter should be so forfeited.. . ; .” Thereafter charges were filed against Capital Council No. 1, notice was given and a hearing had,- upon which the national executive committee found the subordinate council to be guilty as. charged, and entered an order suspending and dissolving it. Thereafter members of the subordinate council brought an original proceeding in mandamus in this court to compel the association to restore the charter of the subordinate council. As that proceeding was presented in this court, the validity of the by-law under which the national executive committee acted in dissolving the council without notice in the first instance was not presented for determination. The parties appear to have been satisfied with the ruling of the district court on that question. While the invalidity of the provision of the by-law purporting to authorize the national executive committee to suspend and dissolve a subordinate council without charges, notice or a hearing appears to have been determined by the district court only, and for that reason is not a controlling precedent, it accords with our conclusion here.
Appellant contends that the challenged sentence in section 133a of its by-law should be sustained because it was agreed to by all of the members of Wichita Council No. 120 when they became members of the society. The application of each contained a clause by which the members agreed to the constitution and by-laws as they then existed, or might thereafter be amended. We are not advised whether the by-law in question existed when subordinate council No. 120 was chartered, or whether it has been since added or amended, but perhaps this is not important. Such agreements always carry with them the reservation that such by-laws be reasonable, and necessarily carry with them the further reservation that they are not inconsistent with the constitution of the United States or of this state (R. S. 1931 Supp. 40-705). The question of the extent to which a member is bound by reason of a provision of this kind in his application has been before this court many times. When the by-law in question, as it originally existed or as it was later amended, was one which the society had a right to pass, and was reasonably necessary to carry out its purposes, it was upheld. (Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 533; Miller v. National Council, 69 Kan. 234, 76 Pac. 830; Maccabees v. Nelson, 77 Kan. 629, 95 Pac. 1052; Uhl v. Life Association, 97 Kan. 422, 425, 155 Pac. 926; Dey v. Knights & Ladies of Security, 113 Kan. 86, 213 Pac. 1066; Guy v. Modern Woodmen, 128 Kan. 745, 747, 280 Pac. 756), and where those conditions did not exist it was held invalid. (Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239; Hart v. Annuity Assoc., 86 Kan. 318, 120 Pac. 363; Kirk v. Aid Association, 95 Kan. 707, 149 Pac. 400; Hannon v. United Workmen, 99 Kan. 734, 163 Pac. 169.) In Coffman v. Security Benefit Association, 131 Kan. 328, 291 Pac. 753, it was held that an agreement to a by-law not authorized by statute is ineffectual.
In determining whether a subordinate council should be suspended or dissolved the national executive committee sits in a quasi-judicial capacity. (Grand Grove, etc., v. Garibaldi Grove, 130 Cal. 116, 62 Pac. 486.)
“Hearings of this character are quasi judicial. They ought to be conducted in a spirit of impartiality, without prejudice, and a reasonably full opportunity ought to be given to learn the nature of the charges preferred and to present evidence and arguments in reply.” (Correia v. Portugese Fraternity, 218 Mass. 305, 308, 105 N. E. 977.)
The conduct of such a committee is not to be determined by close adherence to the forms of legal procedure. It is sufficient if those essentials and that procedure are required which are fair and make for justice, rather than form. (Gervasi v. Societa Guisippi Gari baldi, 96 Conn. 50, 112 Atl. 693. See, also, Flynn v. Brotherhood of Railroad Trainmen, 111 Kan. 415, 207 Pac. 829.)
Appellant argues that since the national executive committee and the national officers, in dissolving Wichita Council No. 120, made provision to preserve the insurance benefits of the members, that no property rights are involved, hence that the court should not interfere. It is well settled that courts do not interfere in the internal affairs of benefit societies, particularly with respect to the discipline of its members or of its subordinate councils, when property rights are not involved. But can it be said there were no property rights involved here? On this point appellant cites and relies strongly on the case of Lone Star Lodge K. & L. of H. v. Cole, 62 Tex. Civ. App. 500, 131 S. W. 1180. This was an action by individual members of a local lodge of a benefit society against the officers of the local lodge and of the grand lodge to enjoin them from interfering with the affairs of the lodge, alleging that an order dissolving the lodge was invalid. A verified answer was filed which put in issue all material allegations of the petition other than formal matters. The hearing was had upon the verified pleadings. Plaintiffs introduced no evidence. The trial court denied the injunction. This was held proper under the state, of the proceedings — in fact was the only judgment which could have been entered. What is said in the opinion about property rights is taken from the pleadings only. The only allegation in the petition respecting property rights was in regard to the paraphernalia used in the secret meetings of the lodge, which seems to have been of little or no value for any other purpose. There was no allegation that plaintiffs, as members, had any individual right of ownership in that property, and from the allegations of the verified answer it appeared they had none. In that situation the court properly held that property rights were not involved.
In the case before us the record discloses that Wichita Council No. 120 had an income of about $285 per month from the subordinate council dues of its members. Since there is no intimation to the contrary we assume this money was used as provided by the constitution and by-laws of the society, namely, in payment of the operating expenses of the subordinate council, in caring, for its sick and needy members, and providing for them employment. Its trustees had executed a long-time lease on a council hall, under which they were obligated to pay rent for more than a year after the order of disso lution. It owned lodge and office furniture, paraphernalia and equipment in a substantial amount, although its value was not found; indeed, the record does not disclose what became of it. It had cash on hand, after paying its current obligation, of $341.26. One of the main purposes of the society was to unite all of its members in subordinate councils, not only for the purposes of benevolence, charity, social culture, mental improvement and education, but to “care for the sick and needy . . . and to aid its members in obtaining employment, and to assist each other in business.” The council had a right to exist and function for these purposes (Knights of Ku Klux Klan v. Francis, 79 Cal. App. 383, 249 Pac. 539) until it was lawfully dissolved, and the members of the council, under such rules and regulations as exist in subordinate councils applicable thereto, had a right to material benefits in time of sickness or need or if unemployed, which were, or might be, just as vital and important to them as would be their insurance paid to their beneficiaries in the event of their death. There should be no quibbling over classifying these rights as property rights. The resolution of the national executive committee in this case dissolving the subordinate council did not preserve those rights to the council, nor purport to do so. Neither can it be said it preserved them to those members whose membership was transferred to Topeka Council No. 4, 175 miles from their homes. It is true they were given permission to withdraw their membership from that council, but in presenting that to any other subordinate council they would have to sign and present an application for membership and be recommended by two mem-' bers of that subordinate council, and accompany this with the amount of the initiation fee required by that council. This application would be referred to an investigating committee and, if favorably reported, would be balloted upon. If two blackballs appeared in the ballot the application would be rejected. This would be a troublesome and expensive procedure at the best, and might be futile. The effect of what was done with respect to the members transferred to the Topeka council was to remove or expel them from membership in a subordinate council from which, as a practical matter, they could derive the material benefits accruing under the constitution and laws of the society to members in a subordinate council. A similar question was before the court in Tucker v. Kirkpatrick, supra. After the opinion was handed down (106 Kan. 881, 189 Pac. 946) a motion for rehearing was filed in which complaint was made that the court did not give sufficient consideration to the fact that property rights were involved. In disposing of that question this court said (107 Kan. 543, 192 Pac. 834):
“The case would have been out of court long ago if it had not been recognized that property rights are involved.”
That proceeding involved members only of the subordinate council, not the council itself. This proceeding involves both the council and members. Therefore the more reason in this case to say that property rights are involved.
Appellant contends plaintiffs did not exhaust their right of appeal to the national council of the society. When the constitution and laws of a benefit society require an appeal within the society from the ruling of an inferior officer, committee or unit of the society, and such ruling and the procedure therefor have been had in conformity to valid provisions of such constitution and laws, the party aggrieved must exhaust his remedies within the society before resorting to the courts. (Barthell v. Zachman, 162 Tenn. 336, 36 S. W. 2d 886; Conroy v. Railroad Trainmen, 102 Kan. 757, 171 Pac. 1161.) But where the right of appeal is permissive only, the aggrieved party is not compelled to exhaust his right' of appeal (Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 621; Order Select Friends v. Dey, 58 Kan. 283, 49 Pac. 74), although the court may, in its discretion, require him to do so (Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Tucker v. Kirkpatrick, supra; Flynn v. Brotherhood of Railroad Trainmen, supra), and where the ruling complained of was arbitrarily made and seriously affects substantial rights, contrary to any valid law of the society, the courts are open to an aggrieved party. (Universal Lodge v. Valentine, 134 Md. 505, 107 Atl. 531; Barthell v. Zachman, supra; Hall v. Supreme Lodge Knights of Honor, 24 Fed. 450.) And certainly, where no appeal is provided by the laws of the society from the ruling complained of, the aggrieved party cannot be charged with failure to exhaust his right of appeal. (Horgan v. Metropolitan Mutual Aid Assoc., 202 Mass. 524, 88 N. E. 890; Modern Woodmen v. Taylor, 67 Kan. 368, 71 Pac. 806.) Section 180 of the by-laws, previously quoted, permits aggrieved members to appeal to the national council from a ruling of the national executive committee “where trial is had before such committee.” Here there had been ;no trial before such committee. This distinguishes the case from Tucker v. Kirkpatrick, supra. The by-law gives the subordinate council. no .right of appeal. (See Golden Star Lodge No. 1 v. Watterson, 158 Mich. 696, 123 N. W. 610.) This distinction was pointed out in Tucker v. Kirkpatrick, 107 Kan. 541, 542, 192 Pac. 834. Since no right of appeal was given for the grievance complained of here, plaintiffs cannot be held to have failed to exhaust their right of appeal.
Finally, appellant argues that the individual members of the national executive committee, some of whom are nonresidents of the state, should have been made parties defendant. Since this committee acts only for and on behalf of the society, and the society, being “a body corporate . . . capable of suing and being sued” (R. S. 1931 Supp. 40-705), having appeared and defended the action, the individual members of the committee were not necessary parties defendant.
The judgment of the court below is affirmed.
Hutchison, J., not sitting. | [
52,
-8,
-100,
-100,
10,
98,
58,
26,
64,
-86,
-89,
83,
-87,
-117,
1,
103,
-83,
45,
80,
99,
-43,
-73,
87,
-61,
-42,
-45,
-15,
-59,
-79,
-1,
-10,
-1,
72,
-80,
-118,
-44,
-58,
-30,
-57,
-108,
-114,
15,
-86,
-27,
-39,
78,
52,
114,
22,
79,
85,
-34,
-93,
44,
92,
-62,
40,
40,
88,
45,
88,
-71,
-116,
-115,
123,
7,
5,
34,
-100,
103,
-20,
30,
28,
53,
72,
-32,
113,
-74,
3,
116,
47,
-103,
-116,
102,
98,
-128,
113,
-95,
-88,
-103,
30,
38,
-99,
5,
-110,
25,
42,
73,
-107,
-103,
125,
20,
-85,
124,
-26,
21,
87,
110,
11,
-113,
-10,
-93,
-49,
112,
-100,
-125,
-21,
-95,
48,
116,
-52,
-14,
95,
103,
123,
25,
-114,
-102
] |
Per Curiam:
The original opinion in this case is reported in Barrett v. Hurd, 136 Kan. 799, 18 P. 2d 184. On the motion of appellant a rehearing was allowed and the questions have been re-briefed and reargued. The court again has considered fully the questions involved and is of the opinion the original judgment of affirmance should be adhered to. It is so ordered. | [
-78,
-4,
-43,
-100,
-120,
-32,
50,
-100,
69,
-91,
39,
115,
41,
-102,
-108,
93,
-57,
47,
81,
99,
-42,
-73,
22,
81,
-6,
-45,
-16,
95,
-80,
-50,
-26,
86,
76,
-70,
-62,
-43,
98,
-54,
-57,
86,
-58,
13,
8,
-23,
-47,
122,
52,
121,
-60,
15,
117,
87,
-13,
40,
27,
-61,
41,
44,
-5,
57,
80,
88,
-98,
5,
95,
6,
-77,
-90,
-100,
-57,
90,
46,
12,
49,
1,
-24,
51,
-90,
-122,
86,
107,
-23,
44,
98,
102,
1,
29,
-11,
-72,
-104,
111,
46,
29,
-90,
-69,
88,
-24,
37,
-89,
-3,
117,
112,
7,
120,
-18,
-123,
31,
-20,
29,
-113,
-106,
-109,
-41,
48,
-104,
66,
-29,
-47,
16,
48,
-55,
-94,
94,
71,
19,
-37,
-114,
-70
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action to construe and to recover on certain monetary obligations issued by defendant and designated “accumulative installment certificate,” of which plaintiff had become the owner by assignment from various former holders. Plaintiff presented the certificates to defendant for registration in his name together with the transfer fee prescribed for that service. Defendant registered the certificates in plaintiff’s name but also stamped them “not transferable” for the avowed purpose of preventing their further availability for sale, barter or exchange by assignment.
The certificates were ninety-four in number. They had been serially issued, were of varying tenor, and in denominations of $1,000, $1,500, $2,000, $2,500 and $5,000. Their value depended on stipulated conditions embodied in the instruments and upon the number of periodical installments the owner had paid thereon. The schedule attached to plaintiff’s petition showed that on some of these certificates as many as forty-one installments, aggregating $1,717.88, had been paid by the holder, and on others as little as four and five payments, aggregating $154.30 and $192.90, had been credited.
Just what precise benefits the holders of these certificates would be entitled to if the installments were paid in full is not easy to state, but, fortunately, that matter does not require determination at this time. The terms of each certificate did provide for a cash surrender value after two years, and tabulated values pertaining thereto were set out in the text of the instrument. Other provisions of present concern were these:
“11. Miscellaneous. No person has authority to alter or change the terms of this certificate, or bind the syndicate by any statement, written or oral, not herein contained. . . . The syndicate shall have the right at any time at its option to call in this certificate and take it up by paying the registered owner hereof the full amount paid thereon together with 5½ per cent interest, compounded annually, for the time the syndicate has had the use of the money.
. . . . . . . . . . . .
“9. Assignment. This certificate, if in force and uncanceled on the books of the company, may be assigned, but the assignment or transfer hereof shall not be valid without the consent in writing indorsed hereon by the company and a transfer fee of one dollar paid to the company.”
Forms for use in assignment of each certificate were printed on the instrument together with the rule pertaining thereto, which reads:
“This assignment will not be valid until approved by the syndicate and entered upon its books and a transfer fee of one dollar is paid.”
Plaintiff’s petition alleged his ownership of the certificates; that they had been properly assigned to him; that he had tendered the required transfer fee, but that defendant without right delayed and refused to record the assignments, although eventually defendant did register the transfer of the certificates and at the same time indorsed each of them with the words “not transferable.” Plaintiff also alleged, in substance, that defendant had no right to place such indorsements on the certificates; that when issued they were assignable under their specific terms; that this act of defendant hindered and prevented their sale and transfer, and was in effect an election on the part of defendant to terminate the contract relation theretofore existing between it and the lawful owner, and constituted a calling in of those certificates under the contract provision which reserved to defendant that privilege upon its return of the total amount of installments paid on such certificates together with 5½ per cent interest compounded annually.
This petition was unsuccessfully subjected to a demurrer and motion to strike; and defendant answered with a general denial, certain formal admissions, and an admission of the issuance of the certificates sued on, their dates, serial numbers, and maturity values. Defendant joined issue on the accuracy of a schedule attached to plaintiff’s petition showing payments which had been made on the certificates. The answer also admitted that it had indorsed the certificates “not transferable” but alleged that such indorsement was placed thereon with the consent of plaintiff and under an oral agreement with him to that effect. Defendant also denied that the indorsement of the words “not transferable” upon the certificates hindered or prevented the sale thereof or that it depreciated their value in any respect, and denied that placing such indorsement on the certificates was wrongful.
The cause was tried by the court without a jury. The evidence developed no material dispute of fact. One witness for defendant testified and another deposed that they had a conversation with plaintiff touching defendant’s refusal to register the certificates in plaintiff’s name, at which time he orally agreed that they might be stamped “not transferable.” Defendant’s state manager testified that he told plaintiff—
“That we were not going to transfer them and permit him to resell these certificates, because it was encouraging the Bankers Mortgage Company in taking advantage of our certificate holders and in hurting our business, and we were not going to leave the bars down to that extent any longer, and he said that was all right. We were going to transfer the certificates to Dr. Parkhurst, conditionally. The condition was that they would not be negotiable. We told him that he would not be permitted to sell them any more, and he agreed to that; he said, ‘All right.’”
At the conclusion of the evidence the trial court ruled that the evidence just quoted and other evidence to the same effect was incompetent and would be disregarded. The court made extended findings of fact and conclusions of law, the substance of which was that defendant had no right to stamp the certificates “not transferable”; that plaintiff’s oral assent thereto was without consideration and void under the statute of frauds; that the act of thus stamping the certificates destroyed their value for purposes of barter, sale or exchange, and was in effect a calling in of the certificates for liquidation under defendant’s reserved privilege to that effect on repayment to the holder of the amount defendant had received thereon, together with 5½ per cent interest compounded annually.
Judgment was entered accordingly, and defendant appeals.
Defendant opens its argument with a discussion of the nature of the action — whether it sounded in assumpsit or in conversion. While it is quite correct that an action must be brought on a definite theory (Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619), the cause does not fail for lack of a label nor for a wrong label. The nature of the action is to be determined by its recitals of fact and without regard to the relief demanded. (Eagan v. Murray, 102 Kan. 193, 170 Pac. 389; Wellington v. Insurance Co., 112 Kan. 687, 212 Pac. 892.) Plaintiff’s petition stated the rather peculiar facts constituting the cause of action, in ordinary and concise language and without repetition, and it contained a demand for the relief to which he supposed himself entitled; and a cause so stated sufficiently complied with the rules of good pleading under section 92 of the civil code (R. S. 60-704). Defendant did level at the petition a demurrer and motion to strike, but it acquiesced in the trial court’s adverse rulings thereon, and its answer thereafter filed shows that it did not misconceive the issues it was required to meet.
It is suggested in the brief of defendant that it was justified in its refusal to register the assignment and transfer of plaintiff’s certificates, because some apparently rival concern, the Bankers Mortgage Company, was “hurting defendant’s business,” as if that fact would excuse its failure to perform its duty to record the transfer of plaintiff’s certificates. Defendant had no discretionary privilege to record or not to record the transfer of these certificates. It was bound to record such transfer at the behest of the lawful assignee, upon payment of the prescribed transfer fee. Defendant formulated these specious contracts; it was responsible for their textual contents, and if it had intended that only an assignee who was persona grata to defendant would be entitled* to have assignments in his behalf entered on its transfer record it should have plainly said so in black and white before it sold them to a confiding public. While the pertinent provision declares that an assignment will not be valid without the consent of the company in writing, there is no room for interpretation that this consent might be withheld for mere caprice or without good excuse, and no intimation of good excuse or justification was either pleaded or proved.
It is also contended that the only remedy of plaintiff was to sue for the cash surrender value. The contract had two outstanding provisions quoted above which bear on this point. In substance these were that if the certificate holder desired to terminate his contractual relation with the company he could do so and obtain the cash surrender value; and if the company desired to terminate its contractual relation with the certificate holder it could do so by calling in the certificate and by payment of the amount received thereon with 5½ per cent compound interest.
Now it is perfectly obvious that plaintiff never did anything to signify that he desired to terminate his contractual relation with the company and to accept the cash surrender value. The cer tificates were subject to sale, barter and exchange, and the assignee had the privilege of having transfers recorded on the books of the company on payment of a nominal fee. Plaintiff, as lawful assignee, was standing on his right and proceeding in accordance with the contract terms when he presented his certificates to have the transfers recorded. It was the frustration of that right by defendant which brought on this lawsuit.
On the other hand, defendant’s refusal to record the transfers was not authorized by any specific terms of the contract nor by any fair implication thereof. How, then, could that refusal and the subsequent stamping of plaintiff’s certificates “not transferable” be justified except on the theory that defendant had determined to put an end to whatever contractual obligations it had undertaken toward their lawful holder? It seems just to say, as did the trial court, that such an attitude and course of conduct on defendant’s part was in effect an election to call in the certificates for redemption as stipulated in the contract — by repayment of the sums received thereon plus 5½ per cent compound interest.
But the point is stressed that plaintiff orally assented to the defendant’s act of stamping the certificates “not transferable” to prevent their further assignment. Even so, what did that oral assent amount to? The contracts were written instruments designed to bind the parties for a term in excess of one year, and in consequence plaintiff’s oral assent to a modification of their terms was wholly ineffective under well-established precedents. (Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, syl. ¶ 5; Anno., Statute of Frauds, Modification of Contract, 80 A. L. R. 539-549.)
Another perfectly good answer to the fact of plaintiff’s oral assent to the modification of the contracts is that it was altogether without a valid consideration. (Threshing Machine Co. v. Francisco, 106 Kan. 704, 709, 189 Pac. 981; Ladd v. Foster Inv. Co., 40 F. 2d 497; 13 C. J. 592; 6 R. C. L. 916; also, note in L. R. A. 1915B 3 et seq.)
These salutary rules of law are certainly of as much importance to defendant as to plaintiff in view of the vast number of “accumulative installment certificates” it has succeeded in placing with the investing public.
Still another point urged is that stamping plaintiff’s certificates with the words “not transferable” had no legal effect upon them. In a certain sense one finding of the trial court was to that effect. It is true that as defendant had no right to place the words “not transferable” on the certificates their unauthorized appearance thereon did not technically affect their legality. But in a practical sense, of course, the result was that the certificates could not be bought and sold with that indorsement on them.
The record of this case has been studied with painstaking care; the court is constrained to hold that prejudicial error is not made to appear, and the judgment is therefore affirmed. | [
112,
124,
-112,
-3,
26,
96,
59,
-72,
81,
-63,
-89,
83,
105,
-61,
20,
115,
-14,
125,
112,
104,
118,
-94,
39,
75,
-45,
-77,
-39,
-43,
49,
93,
-20,
-44,
76,
48,
-30,
-43,
102,
74,
-63,
28,
78,
8,
-102,
-27,
-7,
72,
48,
57,
80,
-53,
113,
-45,
-13,
37,
25,
79,
41,
44,
107,
-7,
-64,
-8,
-69,
-123,
127,
21,
49,
36,
-100,
79,
-56,
46,
24,
49,
1,
-55,
122,
54,
-122,
116,
107,
-69,
32,
98,
99,
-128,
85,
-17,
-36,
-104,
47,
126,
-115,
-122,
-46,
88,
11,
43,
-74,
-99,
110,
4,
-122,
-10,
-6,
21,
25,
108,
7,
-50,
-42,
-125,
13,
118,
24,
11,
-17,
-125,
16,
80,
-50,
-30,
92,
67,
58,
-109,
-113,
-45
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a bond.
Plaintiff’s petition alleged that on July 14, 1925, it appointed one James Earl Chostner as its agent at Kanorado, Kan., and at the time of the appointment required the agent to give bond with sufficient sureties in the sum of $500, the conditions of the bond requiring among other things the prompt payment of all moneys received for premiums and the repayment of commissions on all unearned premiums on policies canceled or rebated for any cause; that on the same day Chostner delivered to plaintiff a bond, which plaintiff accepted, signed by Chostner as principal and the defendants George W. O’Neal and Oscar W. Hall as sureties. A statement of account showing Chostner to be indebted in the sum of $311.97 was attached. It was alleged that Chostner left for parts unknown, and that on April 17, 1930, demand was made on the defendant sureties for payment of the amount, which demand was refused. The prayer was for judgment for $311.97 and interest from April 17, 1930, at six per cent, etc. Copy of the bond and a statement of the account were attached to the petition as exhibits.
Defendant Hall answered, admitting execution of the bond and stating he had no information as to liability other than set forth in the petition and, not knowing said facts, denied same. He alleged O’Neal was a cosigner and, if he was held liable and compelled to pay, that he have judgment against O’Neal for one-half thereof.
Shortly thereafter O’Neal filed a verified answer denying execution of the bond.
Some time thereafter Hall filed an amended answer which alleged that Chostner came to him and requested that he sign the bond, at which time it was signed by Chostner but by no one else; that he informed Chostner he would not sign unless some one else signed the bond, and that Chostner left and later returned with the bond purporting to be signed by O’Neal as a surety, and that he then signed the bond, and that shortly after demand was made upon him he learned O’Neal claimed never to have signed or executed the bond. The prayer was that if it be found that O’Neal did not sign that he be relieved of liability, otherwise that he have judgment over against O’Neal in the event he paid the full amount of any judgment.
At the trial, evidence was offered in support of the pleadings. In its instructions to the jury, the court said:
“4. If you shall find by the preponderance of the evidence that the defendant Hall, when the bond in question was first presented to him, and when he was requested to sign the same, refused to sign said bond as surety unless and until the said Chostner had procured and caused some other person to sign the same as surety, and if you shall find from the preponderance of the evidence that said Chostner did take said bond away, and afterward returned with it to defendant Hall, with the representation that he had procured -an additional signer, and if said bond then contained the name of George W. O’Neal, and the defendant Hall then signed said bond as surety, with the understanding and belief that the name of said O’Neal was the genuine signature of said O’Neal, but if you shall find, under the instructions herein given, that the name of said O’Neal was not his genuine signature, but was forged and placed- on said bond without the consent of said O’Neal, then your verdict should be for the defendant Hall for his costs of this action.”
The jury returned two verdicts, one for defendant O’Neal for costs, the other for defendant Hall for costs.
The plaintiff filed its motion for a new trial and also its motion for judgment notwithstanding the verdict, this latter motion being directed against the defendant Hall, the grounds being that Hall’s amended answer does not state a defense and that the evidence did not prove a defense by Hall. Both motions were denied and plaintiff appeals, the specifications of error covering the rulings on the above motion, and error in the giving of the above quoted instruction. Taking up first the matter of the appeal, in so far as defendant Hall is concerned, it may be observed that under the pleadings, under the evidence and in view of the jury’s verdict in favor of O’Neal, the facts must be held to be that Chostner procured Hall to sign a bond, the provisions of which are not disputed, on which the signature of. O’Neal had been forged before its execution by Hall and without his knowledge, which bond was delivered to the plaintiff; and,that Chostner thereby qualified as the agent of plaintiff and represented it thereafter, and collected insurance premiums and retained the same to the damage of the plaintiff in the sum sued for.
Under the circumstances in which the bond was executed and Hall’s signature procured, was Hall released or was plaintiff entitled to judgment as a matter of law?
In Stearns on Suretyship (3d ed., p. 158) is the following:
“A suretyship contract induced by the fraud of the principal is nevertheless valid as against the promisor in all cases in which the creditor has no knowledge of the fraud, and has not by his own conduct assisted in perpetrating the fraud.
“Many cases have arisen in which a surety has refused to sign unless another will sign as cosurety, and the principal, to induce the making of the contract, forges the name of the cosurety. Two theories have obtained respecting the liability of the surety under these circumstances.
“One, that it is the duty of the creditor not to accept an obligation without such investigation as will disclose whether the signatures are genuine, that the surety signs upon the implied condition that no advancements will be made unless the contract is in fact what it purports to be, the valid obligation of all the parties, and that a creditor has no right to remain in passive ignorance as to the character of the contract he is accepting.
“The other, and by far the most generally accepted theory, and the one supported by the most satisfactory reasoning, is, that whether the signing by the surety is before or after the forgery, the paper comes to the creditor bearing a stamp of trust and confidence by the surety in the principal, and the creditor should not suffer because of a breach of this confidence, but the loss should rather fall upon the one who held out the principal as worthy of trust.
“A misrepresentation made to the promisor by the principal cannot prevail against the creditor who parts with a consideration in good faith, relying upon the surety, and without knowledge of the fraud.
“The creditor is not bound to investigate each transaction and ascertain whether the surety or guarantor has been deceived.
“If false representations are made by a third person without the knowledge or procurement of the creditor, the promisor is not thereby released.”
In Arant on Suretyship the rule is stated:
“When the principal’s signature upon an instrument is forged or unauthorized, a surety signing is not liable to the promisee. It is otherwise, however, when another surety’s signature is forged or unauthorized, provided this fact was not known to the promisee.” (p. 160.)
And in the comment thereon appears the following:
“Where the name of a surety has been forged or signed without authority, a few cases have held that the other sureties are not liable. But where a surety signs the instrument at the request of others than the obligee, or elsewhere than in his presence, there is no reason to require him to see that the other signatures upon the instrument are valid. Accordingly, most of the more recent cases hold the surety liable, whether the instrument is a bond or a promissory note and whether the forged signature of the surety precedes or follows that of the surety who actually signs.”
In 21 R. C. L. appears the following:
“In a few cases it has been held that where at the time a surety signs a bond there are other names of sureties signed to it which are in fact forged, he is not liable, unless he knew that the signatures were forged, the theory being that the contract is not the one that he intended to sign, and that the appearance of the forged signature on the bond is sufficient to put the obligee on inquiry. The general rule, however, appears to be that a surety who signs an obligation after the names of others admits the genuineness of those signatures and if the principal’s or the cosureties’ names are forged without his knowledge and without the complicity of the holder, it is no defense to the surety that he believed such signatures were genuine. The basis of such responsibility depends, however, on the fact that the obligee has acted in good faith, that there was nothing on the paper to indicate the character of the prior signatures, and that in such case neither the obligee nor the obligor stands relatively in the position to say that he was misled or deceived by the other, and that there is no reason for discharging the surety and giving the obligee nothing. . . The weight of authority seems also to require a surety to see to the genuineness of subsequent signatures, and to hold him liable notwithstanding the forgery of such a signature. But where a surety signed a bond on the condition that a certain other person should also be procured as surety, and such person’s signature was not obtained, but his name was forged to the instrument, the bond was held void as to the surety signing it conditionally.” (pp. 997, 998.)
In the instant case there was no agreement that any certain person should sign the bond before Hall did. In a note to the last sentence reference is made to 21 R. C. L. 966, wherein it is said:
“Two lines of cases, dealing with variant facts and apparently divergent, but in fact thoroughly harmonious when the distinction between them is kept in mind, control the question as to the validity of a surety’s undertaking which has been delivered conditionally. The principles enunciated by these two currents of authority are as follows: (1) When the surety’s undertaking is complete and regular on its face, and the obligee has no actual notice of conditions imposed by the surety, the latter is bound. (2) An undertaking which is so incomplete on its face as to suggest nonperformance of some condition imposed by a surety carries notice to the obligee, and relieves the surety. It is true that there is a third line of early cases which holds that a condition imposed by a surety on delivery makes the bond an escrow in the hands of the principal obligor or a coobligor, and that, although the bond be regular and complete on its face, and the obligee be without notice of the condition, the surety, in case of delivery, is relieved because of the secret restriction between the parties signatory to the bond. This remarkable doctrine, so fraught with invitation to perjury, and so destructive of the possibility of realizing on bonds given for public and private security, has, however, been generally repudiated.”
In 50 C. J. 62 the matter is treated thus:
“If the obligee accepts the instrument in good faith, without notice of the forgery, it is no defense to a surety that he was induced to sign an instrument on the supposition that a prior signature thereon was genuine; he is bound, although the signature of the principal is a forgery.
“Unless the creditor takes the instrument with notice of the facts, the forgery of the signature of a cosurety will not affect the liability of a surety, as where the forged signature is placed on the instrument after he has executed it. So, also, if the payee or obligee has accepted the instrument without notice of the forgery, a surety will not be relieved from liability merely because he signs the instrument in the belief that the signature of a cosurety already appearing thereon is genuine, when, as a matter of fact, it is a forgery, as in such a case he will be regarded as affirming the genuineness of the previous signature, and this rule has been held to apply, although the forged name is erased before delivery‘of the instrument. Under some statutes, however, the liability of the remaining sureties will be proportionately diminished.”
And, in 71 A. L. R. 1278 appears a note with many citations on “misrepresentations by principal obligor to surety or- guarantor as affecting obligee,” in which it is stated:
“As a general rule, in the United States, when a principal obligor has induced his surety or guarantor to sign an instrument by false or fraudulent representations, such representations may not be set up by the surety or guarantor as a defense to an action on the indorsement or guaranty unless the obligee or guarantee had notice of or participated in such fraud.”
The precise question presented in this appeal does not seem to have been considered by this court. In Doorley v. Lumber Co., 4 Kan. App. 93, 46 Pac. 195, it was held that:
“Where a surety signs a bond and leaves it in the hands of the principal, to be delivered only upon the performance of certain conditions, and the principal delivers the bond to the obligee without such condition being complied with, and the obligee takes it without notice of the conditional agreement, the surety will be bound.” (Syl. ¶ 1.)
In Star Ins. Co. v. Carey, 126 Kan. 205, 267 Pac. 990, the syllabus recites:
“In an action by the obligee against the surety on a fidelity bond of a local recording insurance agent, where the obligee had no part in the matter of inducing the surety to sign the bond, the fact that the agent was behind time with his remittances of moneys belonging to his principal, the obligee of the bond, at the time the bond was required, and that the obligee did not volunteer to inform the surety of that fact, did not constitute a fraud upon the surety nor was such nondisclosure sufficient to release the surety from his obligation.
“A local agent of an insurance company was dilatory, negligent and behind time in the matter of making remittances to his company of its share of the premiums collected by him. The company required him to give bond for the faithful performance of his duties in the future. The agent induced the defendant to sign the bond as surety and mailed the bond to the company. Two months later the agent died, being indebted to his company at the time. In an action against the surety a defense based on the fact that the company had not apprised him that the agent was delinquent in his remittances at the time he was induced to sign the bond, and that he had no knowledge of the fact, held such defense was insufficient to vitiate the bond or to defeat a recovery thereon.” (Syl. ¶¶ 2, 3.)
See, also, Carter v. Moulton, 51 Kan. 9, 32 Pac. 633, and Risse v. Planing Mill Co., 55 Kan. 518, 40 Pac. 904, as bearing on the same question.
The above decisions present facts showing greater reasons for relieving the surety than exist in the instant case. Here the evidence showed that Chostner was an applicant for an appointment as agent of plaintiff; that a bond was required; that Chostner first approached Hall to sign as surety; that Hall stated he would sign only if another surety were obtained; that later the bond bearing O’Neal’s signature was presented to Hall and he then signed. There is no evidence that the plaintiff knew that O’Neal denied signing until he answered in this case. Hall argues that Chostner was designated as agent in the bond, and that therefore he was the agent of the company to procure the bond and the company therefore had notice. The argument is deduced from the bond itself. The evidence was that the blank form of the bond was given Chostner and that he was not appointed until it was returned fully executed. We are impelled to hold that where an applicant for an insurance agency, who is required to give bond as a condition precedent to appointment, procures the signature of two sureties to the bond form submitted, the second of whom was induced to sign by reason of the forged signature of the first, and such bond is delivered to the insurance company which has no knowledge of the fraud, the forgery of the name of the purported surety does not release the surety who admits the execution of the bond, and in an action on the bond where the pleadings and evidence disclose such a state of facts, the insurance company is entitled to judgment as a matter of law against the surety who admits execution of the bond. It follows that the instruction complained of was erroneous.
In so far as the appeal against the defendant O’Neal is concerned, appellant contends that the evidence tending to show O’Neal signed the bond is documentary; that this court is in as good position as the lower court and jury to weigh it and it should be reexamined; and that such examination will disclose that the jury’s finding in favor of O’Neal is not supported by the evidence. The answer to such a contention is that appellant offered oral testimony to prove O’Neal’s handwriting and O’Neal testified personally, and this testimony, with the documentary evidence, was before the court and jury. We have examined the evidence solely to determine whether there was evidence to support the verdict, and it is to be found in O’Neal’s denial. Were we the jury, we might have come to a different conclusion, but that does not warrant a reversal as to O’Neal. (See Converse v. Watts, 127 Kan. 673, 275 Pac. 181.)
It is clear that as to the defendant O’Neal, the judgment must be affirmed, and that as to the defendant Hall it must be reversed. There is no dispute as to the amount due to the plaintiff from the agent Chostner and for which Hall is liable on the bond, and no good purpose would be served by sending the case back for retrial of an issue which is not in dispute.
The cause is remanded with instructions to the trial court to render judgment in favor of plaintiff against defendant Hall for $311.97 with interest thereon from April 17, 1930, at the rate of six per cent.
Hutchison, J., not sitting. | [
-16,
113,
-40,
-98,
10,
96,
62,
26,
119,
-63,
-89,
83,
-55,
-49,
4,
45,
-11,
45,
116,
96,
23,
-77,
23,
13,
-45,
-77,
-53,
-43,
-79,
95,
-26,
-91,
9,
32,
-118,
-41,
-26,
-54,
-43,
26,
-50,
-124,
-56,
-27,
-37,
64,
52,
95,
20,
9,
97,
-114,
-29,
35,
21,
79,
108,
59,
123,
-87,
-64,
-16,
-103,
-121,
-1,
85,
1,
6,
-76,
5,
-40,
62,
-104,
-75,
9,
-24,
114,
-90,
-122,
-44,
111,
9,
12,
102,
38,
48,
117,
-17,
-80,
-104,
46,
-83,
-115,
-90,
22,
88,
-117,
108,
-76,
-97,
113,
17,
7,
120,
-18,
28,
28,
-84,
3,
-117,
-42,
-77,
111,
112,
-100,
-121,
-53,
3,
36,
96,
-51,
-96,
92,
69,
90,
-77,
15,
-115
] |
The opinion of the court was delivered by
Burch, J.:
The action was one by the state on the relation of the attorney-general against a former county treasurer of Gove county and the surety on his bond to recover money paid by the county treasurer to the treasurer of a school district, constituting a portion of the sinking fund for the payment of term bonds issued by the school district. Plaintiff moved for judgment on the pleadings. The motion was denied, and plaintiff appeals.
Defendants contend the answer raised questions of fact, and consequently judgment for plaintiff on the pleadings was not permissible. The .pleadings clearly presented an ultimate question of law, determination of which is decisive of the controversy. The question, in its simplest form, is: Who is custodian of the sinking fund for payment of school-district term bonds, the county treasurer or the school-district treasurer?
In 1868 school districts levied their own taxes, and the treasurer was custodian of the money when collected. On March 14,1877, the following statute took effect:
“Section 1. That all school-district treasurers in the state of Kansas, and all other persons, shall, on or before the first day of May, a. d. eighteen hundred and seventy-seven, be required to pay over to the county treasurers of their respective counties, all moneys in their hands belonging to the sinking funds of their respective districts.
“Sec. 2. That after the said first day of May, a. d. eighteen hundred and seventy-seven, the county treasurers of the several counties of the state of Kansas shall retain in their possession all moneys due or belonging to the sinking funds of the several school districts of their counties, giving to the school-district treasurers a voucher or certificate therefor, which said certificate shall show the amount held -by said county treasurer as sinking fund for the /school district to which it belongs; and the amount of said certificate shall .be by the said • district treasurers taken up and placed upon their annual reports and accounted for the same as other cash disbursed or' expended.” (Laws 1877, ch. 173.)
Section 1 applied to money in the hands of school-district treasurers at the time the act took effect. Section 2 looked to the future, and after May 1, 1877, sinking-fund money was to be held in the county treasury and not paid over to school-district treasurers. School districts, however, were still permitted to levy their own sinking-fund taxes. When the statutes were revised in 1923, section 2 became R. S. 72-1034.
In 1879 the following statute took effect:
“It shall be the duty of the board of county commissioners of each county to levy, annually, upon all the taxable property in each district in such county a tax sufficient to pay the interest accruing upon any bond issued by such district, and to provide a sinking fund for the final redemption of the bonds, such levy to be made with the annual levy of the county, and the taxes collected with other taxes, and when collected shall be and remain in the hands of the county treasurer, a specific fund for the payment of the interest upon such bonds, and for their final payment at maturity: Provided, That moneys in the hands of the county treasurer belonging to the sinking funds of the several school districts in such county shall be invested by the county treasurer — first, in the bonds of the district to which said sinking fund belongs, provided such bonds can be purchased at a price not exceeding their market or par value; second, in the bonds of other school districts of this state maturing before the bonds for which such fund is raised, provided the same can be purchased at a price not exceeding their market or par value; third, in the bonds of the state of Kansas, or of the United States.” (Laws 1879, ch. 49, § 5.)
In 1923 this section was revised by eliminating the proviso and changing the phraseology of the remaining portion. As revised the section became R. S. 72-2004, which reads:
“It shall be the duty of the board of county commissioners of each county to levy annually upon all the taxable property in each district in such county a tax sufficient to pay the interest and the bonds issued by such district as they mature, such levy to be made with the annual levy of the county, and the taxes collected with other taxes, and when collected shall be and remain in the hands of the county treasurer, a specific fund for the payment of the interest upon such bonds and for their payment as they mature."
In 1923 the law relating to bonds issued by municipalities was revised generally. The term “municipality” was defined to' include school districts, and the following sections were enacted:
“Whenever any municipality has issued bonds the entire amount of which become due and payable at the same time, it shall be the duty of the proper officers of such municipality to levy in each year a sinking fund sufficient to pay the said bonds when due, in addition to the tax necessary to pay the interest thereon.” (R. S. 10-118.)
“The officers of any municipality which has levied and collected a sinking fund for the payment of bonds not then due may invest the said sinking fund in any municipal bonds of this state which shall become due prior to the due date of the bonds for which such sinking fund was levied and collected: Provided, No sinking fund shall be invested under this act in the bonds of any county, township, city or school district where the bonded indebtedness thereof shall exceed ten per cent of its total, assessed valuation as shown by the last assessment preceding such investment.” (R. S. 10-122.)
In 1923 two sections of the school-district law of 1876 were continued in force, and became R. S. 72-1017 and 72-1018, which read:
“The treasurer of each district shall pay out, on the order of the clerk, signed by the director of the district, all public moneys which shall come into his hands for the use of the district.
“The county treasurer shall pay to each district treasurer in the county all school moneys in the county treasury belonging to the district, upon the order of the director and clerk of the district: Provided, That said order shall be accompanied by a certificate from the district clerk stating that the treasurer of the district has executed and filed his bond as required by law.”
Of course neither the revisors of the statutes nor the legislature which promulgated the revision of 1923 intended there should be inconsistent provisions'relating to the same subject in the body of the revised statutes. The rule of interpretation usually applied to statutes enacted at the same time is that specific provisions prevail over merely general provisions, and in order that there might be no doubt about it, the general revision of the municipal-bond law concluded with the following section:
“This act shall govern the issuance of all municipal bonds, except where .different provisions are specifically provided by law, in which case the specific provisions shall control only so far as they conflict with this act.” (R. S. 10-125.)
The result is that specific provisions relating to school-district sinking funds control.
Under R. S. 72-2004 the county' commissioners make the levy to pay interest and to pay bonds as they mature, and the county treasurer keeps the money when collected. Under R. S. 72-1034 the county treasurer keeps all school-district sinking-fund money, and gives the district treasurer certificates for accounting purposes.
By the' elimination of the proviso in section 5, chapter 49, Laws of 1879, authorizing the county treasurer to invest school-district sinking-fund money, and by the grant of general authority to officers of municipalities, including school districts, to invest sinking-fund money (R. S. 10-122), school-district officers may invest sinking-fund money in bonds of the kinds designated by statute. The school-district officers, however, invest money not in possession of the district treasurer, but in possession of the county treasurer. He is custodian of the funds, and he remains custodian of the funds until they are in fact used to pay for bonds for the purchase of which the school district has previously negotiated.
R. S. 72-1017 and 72-1018 refer to payment by the county treasurer to the school-district treasurer and disbursement by the school-district treasurer of funds properly belonging to the district for use in ordinary course of conduct of school-district affairs. They do not relate to specific funds held in the county treasury for payment of term bonds when they mature. Construed as indicated, there is no conflict between the various provisions of the Revised Statutes of 1923.
The petition disclosed payment by the county treasurer to the school-district treasurer of $14,489.08 out of the sinking fund created for payment of school-district term bonds. Under R. S. 10-122, the school-district treasurer could not invest sinking-fund money. Investment required official action by the school-district officers. The answer disclosed no resolution of the school-district board to invest sinking-fund money, and no negotiations completed or in contemplation for purchase of bonds with sinking-fund money. The answer merely disclosed payment by the county treasurer to the school-district treasurer of sinking-fund money on ordinary orders, as if the district needed money to buy coal, pay teachers, and the like. The answer also disclosed that the school-district treasurer embezzled the money, and then died.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff on the pleadings.
Hutchison, J., not sitting. | [
53,
-20,
-43,
124,
26,
96,
-85,
-118,
73,
-93,
33,
115,
105,
-52,
17,
125,
-13,
41,
-75,
106,
-57,
-73,
51,
-55,
-110,
-6,
-8,
-41,
-69,
95,
-20,
-33,
76,
48,
34,
-43,
102,
-62,
65,
80,
-114,
2,
-86,
-64,
-35,
-64,
32,
105,
122,
9,
117,
-50,
115,
41,
28,
99,
73,
46,
-39,
-87,
-64,
-15,
-114,
-121,
79,
21,
17,
103,
-98,
-62,
-56,
46,
-104,
51,
0,
-24,
-6,
-90,
-58,
-44,
9,
-115,
-88,
-14,
102,
17,
-75,
-19,
-68,
-120,
14,
-105,
45,
-26,
-105,
89,
34,
45,
-106,
-99,
125,
16,
-121,
118,
-26,
5,
31,
108,
7,
-114,
-26,
-109,
-113,
101,
10,
-53,
-1,
-127,
48,
65,
-52,
48,
92,
71,
58,
19,
78,
-36
] |
The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order quashing an information charging perjury alleged to have been committed by the defendant in falsely stating in an affidavit made by the defendant to the Kansas soldiers’ compensation board, for the purpose of obtaining compensation, that he had not applied for any compensation from any state or country for service in the world war, when in truth and in fact he had applied for and received compensation from the state of Illinois, the question having been properly reserved by the state.
The statute defining perjury is R. S. 21-701, and recites as follows:
“Every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter, upon any oath or affirmation or declaration legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury.”
In support of the court’s ruling, appellee urges that the claimed false statement was not given under an oath “legally administered”; that there is no provision of the statute requiring an oath in the particular circumstances here involved, and even if it be held that false answers to the class of affidavits here involved constitute perjury, the particular question and answer referred to in the information is not as to a material matter, there being only three questions involved in any bonus case: (1) The service of the applicant, (2) that he was a resident of Kansas at the time of entering the service, and (3) that he was honorably discharged.
Taking up first the question as to whether the oath was “legally administered,” it will be observed that the act for compensation for veterans (Laws of 1921, ch. 255, appearing as R. S. 73-101 et seq., as amended) provides in R. S. 73-105:
“There is hereby created a board consisting of . . . who are hereby charged with the administration of this law, and who shall, within thirty days after the taking effect of this act, make, establish and publish rules and regulations providing for the proof of claims under this act, . . .”
Under this act, the board prescribed rules and regulations which included the form of affidavit having as a part thereof the question which it is claimed the defendant falsely answered. The rule with respect to whether an oath required by departmental regulation furnishes adequate basis for a charge of perjury is stated in 48 C. J. 843 as follows:
“Oaths required by regulation of a governmental department, without aid of statute, are not so far authorized by law as to furnish the foundation of a prosecution for perjury. But oaths required by departmental regulation pursuant to statute expressly or by necessary implication authorizing such regulation are so far authorized by law as to furnish adequate basis for a charge of perjury.”
And see, also, 21 R. C. L. 255.
Defendant points out a number of instances where the statutes expressly require oaths in specific instances, and argues that, in the absence of a statute expressly denouncing the particular act here complained of, the oath was voluntary, and in support cites authorities upholding the general rule that perjury cannot be predicated on an oath which is not required by law. Among the cases cited is United States v. George, 228 U. S. 14, 33 Sup. Ct. Rep. 412, 57 L. Ed. 712, which charged perjury in connection with proof of homestead entry. The statutes required proof by two credible witnesses, not the claimant, and it was held that congress had provided the “exact measure” of the claimant’s obligation and the department could not add to it. In United States v. Smull, 236 U. S. 405, 35 Sup. Ct. Rep. 349, 59 L. Ed. 641, however, it was held:
“A charge of perjury under U. S. Crim. Code, § 125, providing that ‘whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered . . . shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury,’ may be based upon false statements in an affidavit required either expressly by an act of congress, or by.an authorized regulation of the general land office.” (59 L. Ed. 641, headnote.)
And United States v. George, supra, was distinguished. See, also, Maryland Casualty Co. v. United. States, 251 U. S. 342, 40 Sup. Ct. Rep. 155, 64 L. Ed. 297, and United States v. Morehead, 243 U. S. 607, 614, 33 Sup. Ct. Rep. 458, 61 L. Ed. 926.
Counsel cite no decisions of this court, nor has our search disclosed any, where the question here presented has been decided. It is ap-. parent from the statute providing for compensation that the legislature intended to leave all machinery for carrying out the act to be supplied by the compensation board through rules and regulations. The very magnitude of the act precluded the board from examining personally each applicant for compensation, and even though it could have done so, we believe it was contemplated by the legislature that the right to compensation was to be determined by examination under oath. The form of application prescribed contained not only a provision for verification by the claimant, but for his identification under oath of disinterested witnesses. Even if it be held that the statute did not expressly authorize a regulation requiring proof under oath, it was necessarily implied by the whole compensation act, and we hold that the regulation requiring proof to be made under oath was within the powers of the compensation board, and that a false answer to a material question contained in a duly verified application for compensation is a proper basis for prosecution fpr perjury as defined in the crimes act.
Did the question asked and the answer given refer to a material matter? There can be no doubt that under the compensation act three principal facts were to be found: That applicant was a resident of Kansas at the time of entering the service; that he served in the world war in some branch of the army, navy or marine corps of the United States prior to November 11, 1918; that he was honorably discharged therefrom. What constitutes materiality and the degree of materiality required is defined in 48 C. J. 833, as follows:
“A statement can be neither material nor immaterial in itself, but its materiality must be determined in accordance with its relation to some extraneous matter. False testimony relative to a nonexistent issue cannot be material. But any statement which is relevant to the matter under investigation is sufficiently material to form the basis of a charge of perjury. The test of materiality is whether a false statement can influence the tribunal — not whether it does.
“Contradiction of a material statement is itself necessarily material.
“The degree of materiality is unimportant. False testimony directly pertinent to the main issue is of course material. But it is not necessary that the false statement should bear directly upon the main issue. It is sufficient if the statement is collaterally, remotely, corroboratively, or circumstantially material, or has a legitimate tendency to prove or disprove any material fact in the chain of evidence, even though not in itself sufficient to establish the issue. False testimony relative to a collateral matter may be perjury irrespective of the truth or falsity of the main fact at issue. But if the false statement is not even circumstantially material it cannot be perjury.”
And the test of materiality is set forth in 21 R. C. L. 259:
“While it is necessary that the false testimony be material to the issue being-tried or to the point of inquiry, it is not necessary that it be material to the main issue. The test is whether the statement made could have influenced the tribunal on the issue before it. It is sufficient if it is material to any proper matter of inquiry, and is calculated and intended to prop or bolster the testimony of a witness on some material point, or to support or attack the credibility of such a witness. It may be laid down as a general rule that any testimony which is relevant in the trial of a ease, whether to the main issue or some collateral issue, is so far material as to render a witness who knowingly and willfully falsifies in giving it guilty of perjury. It is but common knowledge that it frequently occurs in the trial of causes that inquiries are made of witnesses touching matters which do not directly concern the commission of the acts which constitute the offense, yet such inquiries and answers may be material and highly important to the end that the triers of the fact may properly and intelligently weigh the testimony in the cause. If it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material by giving weight or probability to, or detaching from, the testimony of a witness thereto, it is sufficient and makes the testimony material. The degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be but circumstantial.”
And the matter has received attention in our own decisions. In State v. Fail, 121 Kan. 855, 250 Pac. 311, the first paragraph of the syllabus recites:
“In order for false testimony at a trial to be material to the issue, so as to support a charge of perjury, it need not bear immediately and directly upon the ultimate fact to be proved. It is material if it throws light upon any relevant collateral matter, such for instance as the truth of testimony concerning details adapted to give plausibility to the story of a witness. And the materiality of the false testimony is to be determined in view of conditions at the time it is given, although subsequent developments may deprive it of any substantial bearing upon the ultimate question to be decided. Thus perjury may be assigned with respect to testimony concerning the whereabouts at a particular time of one charged with crime, although it may fail utterly to establish an alibi by reason of important intervals not accounted for.”
And in State v. Adams, 119 Kan. 509, 240 Pac. 955, it was said:
“It is of course not necessary in order to be material that the statements claimed to have constituted perjury should bear directly upon the ultimate fact to be proved. It is sufficient that they relate to any collateral matter upon which evidence would have been admissible.” (p. 511.)
And the fourth paragraph of the syllabus in State v. Hoel, 77 Kan. 334, 94 Pac. 267, recites:
“In a prosecution for the crime of perjury the evidence charged to be false will be regarded as material if it tended to prove or disprove a material fact. involved in the trial where the alleged perjury was committed, regardless of the effect which such testimony may have had in the case.” (Syl. ¶ 4.)
One of the elements to be proved was claimant’s residence in Kansas at the time he entered the service. It might well be that owing to the difference in the statutes of different states, a soldier would be entitled to compensation from Kansas as well as some other state, and it might well be that the statutes were so nearly alike that he could not, honestly, receive compensation from Kansas and some other state, and it might also be the fact that he obtained compensation fraudulently from the other state and be legally entitled to it in Kansas, but the compensation board was entitled to a true answer to the question as to whether he had obtained such compensation from the other state. An affirmative answer would have enabled the board to make a full examination of the facts and the possible differences in statutory requirements; a negative answer, relied on by the board, closed the inquiry as to this phase of the matter. Even though the inquiry was collateral to the main issue, it bore directly on one of the elemental matters to be determined and was material to it. Any other conclusion would logically lead to this: The board could ask only the three main questions to be determined. If the legislature had intended that, it would not have said “make, establish and publish rules and regulations providing for the proof of claims under this act.” (R. S. 73-105.)
The order of the trial court in sustaining the motion to quash the information was erroneous, and the cause is remanded with instructions to overrule the motion.
Hutchison, J., not sitting. | [
-112,
-8,
-11,
-99,
8,
-32,
56,
-72,
113,
-123,
39,
115,
111,
-38,
5,
63,
-26,
63,
80,
120,
66,
-77,
119,
-55,
118,
-77,
-7,
-43,
51,
79,
-92,
124,
77,
48,
-94,
-43,
-58,
-54,
-59,
92,
-52,
4,
-120,
-31,
-38,
64,
52,
35,
20,
-117,
49,
-97,
-5,
58,
29,
-61,
-87,
108,
75,
-56,
65,
-48,
-117,
-121,
-3,
4,
-77,
6,
-68,
75,
-40,
38,
26,
49,
1,
-104,
121,
-74,
-126,
116,
107,
-71,
33,
102,
98,
48,
61,
-22,
-4,
-83,
47,
122,
-99,
-90,
-110,
81,
75,
-83,
-106,
-35,
101,
48,
6,
-4,
-30,
20,
93,
108,
11,
-113,
-20,
-77,
29,
116,
-68,
83,
-17,
-127,
-124,
81,
-51,
-14,
92,
67,
114,
-101,
-113,
-78
] |
The opinion of the court was delivered by
Johnston, C. J.:
Herman Zier was charged in two counts with violations of the prohibitory liquor law. One count charged him with unlawfully having intoxicating liquor in his possession on November 11, 1931, and the other with the unlawful sale of the intoxicating liquors on the date mentioned. At a trial with a jury he was found guilty on both charges, and the judgment of the court was that he pay a fine of $100 and costs and serve ninety days in jail on the first count; and $100 fine and costs and adjudged to serve ninety days in jail on the second count, the sentences of imprisonment to run concurrently. He appeals, and assigns as error rulings upon motion to quash the information and dismiss the prosecution, rulings on the admission and exclusion of evidence, the refusal of requested instructions and the overruling of the motion for a new trial.
The first complaint of defendant is the refusal of the trial court to quash the charges made and to dismiss the prosecution, based, as he alleges, upon a complaint previously filed before a justice of the peace charging the same offenses having been dismissed on the motion of the county attorney. It appears that after a raid on the Zier home and the finding of liquor there, and the sale of the liquor, as witnesses for the state testified, a complaint was filed before a justice of the peace charging Zier with the unlawful possession and also of the sale of intoxicating liquors. This complaint pended for a few days, and during that time defendant was released on the giving of a bond. Within a few days, and before the trial or any other steps were taken, the county attorney asked to have the case before the justice of the peace dismissed, which was granted, and immediately the county attorney filed an information in the district court charging the possession and sale of intoxicating liquors by the defendant on November 11,1931, substantially the same charge as was set forth in the original complaint.
The dismissal of the prosecution occurred before defendant had entered any plea to the charge, and it is obvious that it was not a bar to the filing of the information or the subsequent trial thereon. The matter was within the control of the county attorney. He may have thought it best to try the case, a misdemeanor case, in the district court and thus avoid two trials. A trial and conviction before a justice of the peace would have been open to an appeal to the district court, and a retrial there. To meet this contingency, and thus avoid a retrial, may have been the reason for the action of the county attorney. Whatever his reason, the procedure was within his discretion and power, even as against the wishes of the complaining witness. (Foley v. Ham, 102 Kan. 66, 169 Pac. 183. See, also, State v. Finch, 128 Kan. 665, 280 Pac. 910.) If the prosecution had proceeded to the stage where the defendant had been legally charged with a public offense before a court of competent jurisdiction, and the defendant had been arraigned and entered his plea and the trial had begun before a jury, and the case was then dismissed without the consent of the defendant, and without other sufficient reasons, it would ordinarily constitute a bar against a further prosecution.
Here there was no arraignment. The defendant had'not entered his plea to the charge, nor had it been entered for him. No issue had been joined for a trial and no trial had been had. The defendant at that stage had not been put in jeopardy and the dismissal of the case and the institution of a prosecution in the district court did not constitute a bar to a subsequent prosecution for the offense charged before the justice of the peace. Some of the cases touching the stage of the case when jeopardy does or does not attach are the following: State v. Ingham, 16 Kan. 14; State v. Child, 44 Kan. 420, 24 Pac. 952; State v. Reed, 53 Kan. 767, 37 Pac. 174; State v. Allen, 59 Kan. 758, 54 Pac. 1060; State v. Rook, 61 Kan. 382, 59 Pac. 653; State v. Curtis, 108 Kan. 537, 196 Pac. 445; State v. Brick Co. et al., 117 Kan. 192, 230 Pac. 1035; State v. Stiff, 117 Kan. 243, 234 Pac. 700; State v. Hendren, 127 Kan. 497, 274 Pac. 274. (See, also, 16 C. J. 236.) Within the rule of the authorities jeopardy had not attached, and the dismissal of the original charge was no ground for the dismissal of the charge set forth in the information filed in the district court.
It is further alleged that the evidence was insufficient to support the charge alleged in the information and was insufficient to sustain the findings of the jury, that defendant was guilty of the alleged offenses. There was testimony that the deputy sheriff, Davis, accompanied by one Walter, went to the door of the defendant’s home and asked him to sell them whisky. Defendant asked them how much they wanted to buy, a pint or a quart. They, inquired the price of the liquor and defendant told them it would be $1.50 a pint or $3 a quart. They informed him they would take a pint, whereupon the defendant went back into the house and brought out a pint bottle, which he delivered to Davis and Walter. Walter opened the bottle and tasted the liquor and handed it to Davis, who said it was intoxicating liquor, and payment therefor was made. A search of the home of defendant later was made and a bottle of liquor was found in a cupboard of the house. Liquor was also found in a garage of the defendant. These bottles, with the one purchased from defendant, were carefully marked and afterwards submitted to a chemist for analysis. The chemist found that the liquor sold contained 44.75 per cent of grain alcohol, suitable for use as a beverage, while that found in the kitchen and garage of defendant was found to contain over 35 per cent of alcohol suitable to be used as a beverage. The testimony fully sustained the charges on every essential particular, and while some evidence of a contradictory nature was produced by the defendant, the conflicts have been settled by the jury. Such disputes are for the determination of the trier of the facts, with the solution of which a reviewing court may not interfere on appeal. There was no error in overruling defendant’s, demurrer to the evidence of plaintiff.
Some.objections are made to rulings on the admission and exclusion of testimony. These have been examined and are found to be free from anything approaching material error, and are such as do not justify detailed discussion.
There is a further complaint that an instruction requested was not given. The request was for an instruction that the county attorney’s salary is fixed by law, and is $104.15 per month, and he had no authority under the law to employ another attorney to assist him, at the expense of the county. It appears that the county attorney had requested and secured the assistance of another attorney for the trial of the case. This is a common practice and not an improper one. It is immaterial to the defendant whether one or more counsel conducted the prosecution, so long as the trial is fairly conducted under the guidance of the trial court and within the rules of proper procedure. Whether the assisting counsel was paid by the county attorney or by the county for his services at the trial was a matter of no concern in the case, and in no event is it an excuse for the committing of an offense by the defendant.
No error is found in the record, and therefore the judgment is affirmed. | [
-15,
-18,
-36,
-116,
58,
64,
42,
124,
80,
-79,
-74,
83,
-23,
82,
68,
105,
59,
125,
84,
120,
-6,
-74,
19,
-30,
-106,
-45,
64,
-107,
53,
111,
-28,
-27,
13,
-92,
10,
117,
-90,
82,
-47,
86,
-126,
5,
-87,
-55,
115,
90,
52,
27,
114,
14,
117,
-113,
-29,
46,
28,
-33,
73,
44,
-37,
57,
-64,
-71,
-104,
-99,
79,
22,
-77,
34,
-100,
-123,
88,
60,
-104,
49,
-128,
-8,
115,
-76,
-122,
116,
79,
-103,
44,
102,
-26,
1,
93,
-17,
-24,
-119,
44,
110,
-103,
39,
24,
81,
10,
32,
-68,
-67,
126,
82,
7,
-6,
-17,
20,
73,
36,
4,
-98,
-108,
-79,
-113,
120,
-122,
86,
-61,
-91,
37,
97,
-51,
54,
92,
116,
113,
27,
-122,
28
] |
The opinion of the court was delivered by
Johnston, C. J.:
The state board of administration instituted a proceeding before the public service commission to require the’ Chicago, Burlington & Quincy Railroad Company and the Chicago, Rock Island & Pacific Railway Company to build a transfer connection between the two railroads at the state tuberculosis sanatorium, about four and one-half miles east of Norton, where the two railroads parallel each other. On a hearing the public service commission granted the order and fixed the time within which the transfer connection should be made. The order included the provision that cars placed on the connection by one company should be promptly taken up by the other and delivered to the sanatorium. It further provided that each company should install all necessary connections through and over its own tracks and at its own expense.
The Chicago, Burlington & Quincy alone appealed to the district court of Norton county for a review of the order of the public service commission. That appeal was heard, when the court made findings of fact and law and decided that the order of the commission was void, because the public service commission of the state of Kansas was without jurisdiction, power or authority to enter said order. The jurisdiction, power and authority to require interstate railroad companies or railroads engaged in interstate commerce to construct, maintain and operate track connections, transfer tracks or interchange tracks over which carloads may be transferred from one railroad to another is solely and exclusively with the interstate commerce commission, under paragraphs 18, 19 and 20, section 1, U. S. C. A., title 49, and paragraphs 3 and 4, section 3, U. S. C. A., title 49.
In the findings of fact, about which there is no controversy, the Chicago, Burlington & Quincy company operates a railroad through a number of states and is a common carrier of passengers and property in interstate commerce. It has a branch line which extends 77.79 miles from Republican, Neb., to Oberlin, Kan., and passes through the county of Norton, at the point in question. The Chicago, Rock Island & Pacific company owns and operates a line extending through a number of states and is engaged in the transportation of passengers and property as a common carrier in interstate commerce. The sanatorium is located on the north side of the defendant road about four and one-half miles east of Norton, and is served by a spur track owned by the state of Kansas, connecting with the defendant railroad, and by means of which carload freight is transported by the defendant company, but the Chicago, Rock Island & Pacific company has no connection at the sanatorium or in the vicinity by any transfer or interchange track, with the result that cars may not be interchanged-from one railroad to the other except at the town of Norton. The sole question presented on this appeal is whether such a transfer connection as was ordered is beyond the jurisdiction and power of the public service commission and may not be required except by the interstate commerce commission.
The distance between the parallel tracks of the two railroads at the sanatorium is only ninety feet. It is to be noted that the order does not authorize either railroad to enter upon the line of the other, but each is to set cars destined for the sanatorium upon the transfer track to be picked up and carried to the institution by the other company. The transportation act provides that:
“No carrier by railroad subject to this act shall undertake the extension of its line of railroad . . . unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction or operation, or construction and operation of such additional or extended line . . .” (41 U. S'. Stat. ch. 91, sec. 402 [18].)
And then follows the exception that—
“The authority of the commission conferred by paragraphs 18 to 21, both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching or sidetracks located or to be located wholly within one state,” etc. (41 U. S. Stat., ch. 91, sec. 402 [22].)
No order has been made by the interstate commerce commission requiring or authorizing a junction or transfer connection between the lines of the two railroad companies. Each is engaged in interstate as well as intrastate commerce. The provisions of the transportation act cited in the judgment of the trial court confer on the interstate commerce commission power and control over constructions and extensions and the like, between interstate railroads, including the one of terminal facilities and tracks. The only exception or exclusion from its jurisdiction is “spur, industrial, team, switching or sidetracks located or to be located wholly within one state or of street, suburban or interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation.”
The connection in question is a short one designed to make a traffic connection for the interchange of business between the two carriers necessarily affecting interstate commerce. A number of cases cited by counsel approach the question at different angles as to the power of the federal and state commission to control the matter of traffic connections between railroads engaged in intrastate and interstate business, but there is a late decision of the United States supreme court on the subject which is a controlling authority on the interpretation of the transportation act. (Alabama Ry. v. Jackson Ry., 271 U. S. 244.) It was there held that the establishing of a junction or transfer connection which might affect or imperil interstate commerce was exclusively within the jurisdiction of the interstate commerce commission. The court, after considering the purpose of the transportation act relating to the making of physical connections between railroads engaged in interstate commerce, concluded that the matter of danger and the interference with interstate commerce obviously led to the enactment giving the federal commission exclusive jurisdiction. The second syllabus of the decision reads:
“Since the enactment of the transportation act, 1920, the jurisdiction to determine whether a junction may be established between the main lines of two railroads, both engaged in interstate as well as local commerce, is exclusively in the interstate commerce commission.”
The court in effect holds that the power to determine whether or not the state’s action proposed to be taken will obstruct interstate commerce inheres in the United States as an incident of the power to regulate commerce. In the course of the decision the court remarked :
“It was not until .transportation act, 1920, c. 91, 41 Stat. 456, conferred upon the commission additional authority, that it acquired full power over connections between interstate carriers. By paragraphs 18-20, added to section 1, it vested in the commission power to authorize' constructions or extensions of lines, although the railroad is located wholly within one state; and by paragraph 21 authorized the commission to require the carrier ‘to extend its line or lines.’ By paragraph 4 of section 3 it empowered the commission to require one such carrier to permit another to use its terminal facilities ‘including main-line track or tracks for a reasonable distance outside of such terminal.’ ” (p. 249.)
The board of administration of the state contends that the connection required falls within the exceptions in the act, and that the connection should be regarded as a switch rather than an extension. While there must be a switch at each end of the connection, the connection itself cannot be regarded as a mere switch nor a crossing, nor can it be classed as a spur, team or sidetrack or an industrial track. It was really a traffic connection for the interchange of business, a part of which was interstate, and under the federal act the authority to control the matter was exclusively with the federal commission. So far as seen since the decision in the Alabama & Vicksburg case, no courts have held that state commissions have jurisdiction to require the establishment of transfer, interchange or connecting tracks between railroads engaged in interstate commerce. It appears that the Alabama & Vicksburg' case originated in Mississippi, and when the supreme court of that state first passed upon the question it held that the state authority had jurisdiction to order the connection, as the order did not materially affect interstate commerce, but on a rehearing, after the decision of the Alabama & Vicksburg case, it came to a different conclusion and set aside the first decision made, saying;
“When the cause first came before this court, we held that the federal government had not taken exclusive jurisdiction of connections between railroad lines engaged in interstate commerce, and that the connections sought by the Jackson & Eastern Railway Company did not materially affect interstate commerce, and that the state authorities had jurisdiction to order a connection between the lines of railroad. See A. & V. Railway Co. v. Jackson & Eastern Railway Co., 131 Miss. 857, 95 So. 733; also, A. & V. Railway Co. v. Jackson & Eastern Railway Co., 136 Miss. 726, 101 So. 553.
“In the opinion rendered on the 24th day of May, 1926 (271 U. S. 244, 46 S. Ct. 535, 70 L. Ed. 928), the supreme court of the United States held that congress had taken complete control of the subject matter, and that no action could be taken until the approval of the interstate commerce commission had been obtained. Inasmuch as such consent had not been obtained, it follows that the connection could not lawfully be coerced by the state court, and our former ruling is set aside and annulled, and judgment will be entered in accordance with a motion making the injunction perpetual until such connection is ordered by the interstate commerce commission.” (Alabama & V. Ry. Co. v. Jackson & E. Ry. Co., 144 Miss. 702, 703.)
To the same effect is the Citizens of Pipestone v. C. M. & St. P. Ry. Co., 167 Minn. 174, in which it was said:
“As we read this latest utterance of the supreme court the compelling of a junction between two railroads, carriers of interstate commerce, so that cars may be transferred or routed from one to the other, as was petitioned for in the case at bar, comes within the sole jurisdiction of the interstate commerce commission.
“We are unable to see any substantial difference in the situation presented here from that which existed in Alabama & V. Ry. Co. v. Jackson & E. Ry. Co., supra. Therefore, the objection by appellant to our state railroad and warehouse commission assuming jurisdiction to act in the premises should have been sustained.” (p. 178.)
See, also, People v. Public Service Commission, 233 N. Y. 113.
Reference is made by the plaintiff to the decisions made in Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 136 Kan. 166, 13 P. 2d 276, and Missouri Pac. Ry. Co. v. Union Pac. Ry. Co., 60 F. 2d 126, and Missouri Pac. Rld. Co. v. Chicago Great Western Rld. Co., 137 Kan. 217, 19 P. 2d 484, but the crossing proposed to be built in that project was held to be a switch within the meaning of the transportation act, and was excluded from its provisions. Some of the language used in those decisions may be contrary to the decision in Alabama-Jackson case, but the rule of that case must be followed, which necessarily results in the affirmance of the judgment of the district court in the present case.
The judgment is affirmed.
Hutchison, J., not sitting. | [
-76,
106,
-3,
-34,
26,
64,
62,
-104,
99,
-79,
38,
115,
-23,
-54,
-111,
57,
-14,
61,
80,
121,
-32,
-109,
83,
-29,
18,
-45,
-5,
-49,
-77,
-37,
100,
-58,
77,
0,
10,
93,
102,
72,
65,
30,
-114,
36,
-24,
-24,
81,
-64,
60,
111,
22,
78,
49,
15,
-13,
40,
24,
-61,
73,
46,
-7,
41,
-111,
-16,
-102,
-41,
124,
6,
33,
32,
-104,
7,
-28,
58,
-104,
53,
66,
-83,
87,
-26,
-106,
-10,
99,
-7,
8,
34,
99,
33,
4,
-81,
-20,
-104,
14,
-42,
-113,
-26,
-110,
24,
-32,
3,
-98,
29,
84,
86,
7,
-2,
-1,
4,
91,
124,
-127,
-114,
-80,
-125,
-49,
116,
-126,
23,
-53,
-91,
17,
100,
-60,
-78,
93,
71,
50,
27,
-113,
-76
] |
The opinion of the court was delivered by
Smith, J.:
This was an action to recover the amount of a hospital bill. Judgment was for plaintiff. Defendant appeals.
Defendant operates a plant for the business of delivering ice to refrigerator cars. It is under the workmen’s compensation act. Under the provisions of that act it is insured in the Zurich General Accident and Insurance Company. The insurance company had a contractual arrangement with two doctors in the vicinity of the industrial district of Kansas City. Defendant had the names of these two doctors and had been instructed to call one of them in case an employee was injured by accident in the course of his employment.
About two o’clock on the morning of March 29, 1930, an employee was injured. Doctor Clopper, one of those designated by the insurance company, was called. He' found that the back of the injured workman was broken and directed that he be sent to a hospital.
He was taken to a hospital operated by plaintiff, where he lingered till September 14, when he died. The bill of the hospital was $710.45. The insurance company tendered plaintiff a check for $75, which it claimed was plaintiff's proportionate share of the $200 maximum allowance under the compensation act for medical treatment of injured employees. This check was refused, and this action was brought against the defendant for the amount of the bill.
The theory of plaintiff is that on account of the circumstances under which the workman was sent to the. hospital there was an implied contract on the part of the defendant to pay the hospital bill incurred. There is some conflict between the parties as to what occurred at the plant when the workman was sent to the hospital, and for the purpose of our discussion we will take the version most favorable to plaintiff. When the doctor arrived at the plant and found the workman with a broken back he asked someone to call an ambulance and take the man to a hospital. The night engineer at the plant called, and an ambulance was sent. The local manager of defendant testified that the night engineer was in charge of the plant at night. The workman was accepted at the hospital, and care was taken of him there until his death. On June 6,1930, a letter was written to plaintiff upon the letterhead of the insurance company. It was as follows:
“Re: Cecelio Hernandez v. Railways Ice Company.
“Gentlemen: This is to advise you on behalf of the Railways Ice Company and the Zurich Insurance Company, • that they will not be responsible for any services rendered to Cecelio Hernandez in excess of the medical provisions of the Kansas compensation act.
“We are giving you this notice, not because we are assuming responsibility for any bills already created, but because from recent telephone conversations you seem to be of the opinion that because this employee was sent to Providence hospital that the Railways Ice Company and their insurer are liable for unlimited medical service. We want to correct that impression in order that you may take such steps as you may think advisable to protect the hospital for its bills. Yours very truly,
Shughaht & Johnson,
By L. R. Johnson.”
It should be noted that Shughart & Johnson are the attorneys for the insurance company. On July 20, 1930, a bill for $272.40 was sent to the workman, and on September 15, 1930, a bill for $710.45 was made out charging the workman with that amount. It was not delivered to him, on account of his death. This court considered a phase of this case in Clopper v. Railways Ice Co., 136 Kan. 517, 16 P. 2d 512. In that case the doctor who was called to take care of the workman and who looked after him while he was in the hospital sued the ice company for the balance of his fee after he had been paid his proportionate share of the amount allowed for medical attention under the workmen’s compensation act.
There was no doubt in that case but that the doctor was employed by the insurance company. The question was whether there was an implied contract on the part of the ice company to pay the difference between what the compensation law allowed and the reasonable value of the service. The court held that there was no such contract.
The distinction upon which plaintiff relies here is that in this case it is claimed that the night engineer called the ambulance and sent the workman to the hospital, and hence bound the ice company, and that when a workman is brought to the hospital from the ice company the hospital authorities have a right to look to the ice company to pay the bill. The .plaintiff also points to the letter heretofore set-out and argues that the inference from that letter is the hospital authorities had notified the ice company they were looking to it for payment of the bill.
The liability of the ice company, if it is established, must be placed on the ground of implied contract. Was there any such a liability established? In the Clopper case the court in considering this question said: •
“Circumstances might be such that such a contract would be implied, but to do so they should be such as to show the intention and understanding of the parties to that effect. Here it is clear there was no meeting of the minds on the question of the obligation of the defendant to pay for the services. Plaintiff did not expect compensation from defendant at the time the services were rendered, nor did defendant expect to pay for them.” (p. 521.)
The night engineer was not such an employee as to be clothed with authority to bind the ice company to pay a hospital bill. The manager of the plant testified that on the night of the accident he told the night engineer to call the doctor who had been designated by the insurance company to take care of the injured employees. This does not prove that the superintendent directed the engineer to bind the company to pay hospital bills. This court has held that such an employee .has no authority to bind his employer to pay medical or hospital bills. (See A. & P. Rld. Co. v. Reisner, 18 Kan. 458; also, Sevier v. Birmingham, Sheffield & Tenn. River R. R. Co., 92 Ala. 258.) In 14a C. J. 435 it is said:
“Authority to bind the corporation for medical services, etc., either for employees or for others who are injured in the course of the operation of a railroad, is not ordinarily to be inferred from the duties of a subordinate agent or employee, such as a conductor, a station agent, a roadmaster, a yardmaster, an engineer, or an attorney for the company.”
At the close of the plaintiff’s case the defendant demurred to the evidence.
Taking the view of the evidence most favorable to plaintiff, we have concluded that this demurrer should have been sustained.
The judgment of the trial court is reversed with directions to enter judgment for defendant.
Hutchison, J., not sitting. | [
-48,
126,
-80,
-84,
26,
-32,
42,
-102,
81,
-80,
-89,
115,
-51,
23,
13,
103,
-25,
127,
81,
51,
-9,
-93,
23,
43,
-46,
-45,
115,
-115,
-71,
-50,
-28,
-19,
77,
56,
10,
-43,
-26,
-62,
-63,
-44,
-50,
4,
-88,
-24,
121,
0,
-80,
106,
-10,
70,
113,
30,
123,
40,
24,
71,
45,
40,
123,
41,
-31,
-15,
-118,
5,
127,
20,
32,
6,
-100,
39,
-40,
30,
-104,
17,
56,
-24,
80,
-74,
-122,
116,
39,
-71,
0,
98,
102,
-79,
21,
-21,
102,
-72,
30,
-114,
-99,
-91,
-111,
120,
-69,
7,
-66,
25,
120,
0,
7,
122,
-3,
85,
-33,
36,
3,
-117,
-76,
-77,
-33,
100,
-100,
-65,
-18,
-113,
38,
97,
-100,
-94,
92,
-59,
114,
27,
15,
-98
] |
The opinion of the court was delivered by
Dawson, J.:
This appeal presents legal questions involved in the fiscal relationship of the city of Seneca to Nemaha county, growing out of the distribution of certain taxes, illegally exacted from a national bank, which the county was required to refund.
It appears that in the years 1925 and 1926 a national bank in Seneca was assessed for taxation at the current rate for tangible property. Under protest the bank paid the taxes thereby imposed, as follows:
For 1925
December 29, 1925 (first half)........................... $1,575.14
June 20, 1926 (second half)............................. 1,575.14
Total ............................................... $3,150.28
For 1926
December 20, 1926 (first half)........................... $1,303.24
June 24, 1927 (second half)............................. 1,303.24
Total ............................................... 2,606.48
Grand total amount paid under protest...................... $5,756.76
Notwithstanding these tax moneys were paid under protest, the county treasurer distributed them to the various municipalities and other subdivisions of Nemaha county, and the city of Seneca received its proportionate share thereof in successive partial distributions, viz.:
For 1925
December 28, 1925....................................... $720.38
June 26, 1926 ............................................. 720.38
October 29,' 1926.......................................... 360.20
Total ................................................. $1,800.96
For 1926
December 23, 1926, and January 11, 1927................... $592.06
June 23, 1927............................................. 592.06
October 13, 1927.......................................... 296.03
Total .................................................. 1,480.15
Grand total of protested tax moneys received by city of Seneca, $3,281.11
Following an authoritative decision by the United States circuit court of appeals which held that after the adoption of the tax amendment to the constitution of this state (Laws 1923, ch. 255) and the statutes enacted pursuant thereto (Laws 1925, chs. 277 and 278), the exaction of taxes on national bank shares in excess of the intangible rate imposed on other moneyed capital in the hands of individuals was illegal (McFarland v. Central Nat. Bank, 26 F. 2d 890; certiorari denied, 278 U. S. 606), the board of county commissioners refunded to the bank the amount it had paid under protest, less the proper sum due under the intangible tax rate. The amount thus refunded was $5,433.46.
The board of county commissioners brought this action against the city of Seneca to recover the distributive share of these illegal taxes received by the city, reciting with appropriate detail the pertinent facts. , ■
The defendant city filed- an answer at length, admitting various facts alleged in plaintiff’s petition, traversing certain of its allegations of no present concern, and further pleading that the money which the county had to refund to the national bank was paid out of the county general fund,, that the plaintiff board levied a tax of .35 of a mill on all the property, ofi the county to reimburse the general fund, that such tax was paid by all the taxpaying public (except the railroads), and pursuant thereto the general fund had been fully reimbursed and an excess of $266.89 had been thus collected.
The city also pleaded the three years’ bar of the statute of limitations and a set-off as follows:
“8. Further answering and by way of set-off this defendant alleges that said plaintiff did in the year 1930 make a levy of .35 of a mill upon all the tangible property assessed for taxation in Nemaha county, including the city of Seneca, for the purpose of reimbursing the general fund of said county for such payments as hereinbefore set forth; that for the year 1930 the assessed valuation of the tangible property in the city of S'eneca, Kansas, was the sum of $1,627,380, and that said plaintiff herein did raise by such levy in the city of Seneca for the year 1930 for such purpose the sum of $569.58; that if any cause of action ever accrued in favor of said plaintiff and against said defendant as alleged in plaintiff’s amended petition filed herein, then and in that case, by reason of the facts last herein stated, this defendant was and is entitled to a credit 'and off-set thereon in the said sum of $569.58, together with interest thereon at the rate of 6 per cent per annum from January 1, 1931.”
On motion of plaintiff the trial court struck out certain parts of the answer in which were pleaded the matters we have summarized above. ' •
Defendant appeals. We do not find that the answer raises an issue of law on the authority of the county board to maintain an action such as this against the various cities, townships and school districts of the county to recover tax moneys which have been distributed to them by the county treasurer in disregard of the fact that they had been paid into the county treasury under protest. It would not be easy to distinguish between such a case and one where the county treasurer was short in his accounts, so as to justify the maintenance of a hundred lawsuits against the various subdivisions of the county to recoup the county general fund in the one case while denying it in the other. (Vide School District v. Ellis County Comm’rs, 138 Kan. 274, 25 P. 2d 578.) A somewhat analogous situation has recently required the attention of this court in Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229.
Touching the bar of the statute of limitations, arid conceding that this action is otherwise maintainable, it is fundamental that in its capacity as a governmental agency the statute of limitations does not run against the county except where some specific statute so declares. (Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670, and citations.) It seems a reasonable corollary to that rule to hold that where one governmental agency (a city) has received public funds paid to it by mistake by another governmental agency (a county) the statute of limitations has no application; consequently the trial court’s ruling on this point was correct.
In respect to the other matters pleaded in defense to plaintiff’s action, however, it was both proper and pertinent for the city of Seneca to plead — by way of inducement (Phillips on Code Pleading, secs. 192 and 356; 49 C. J. 139) — that the county had already reimbursed its general fund for the amount it paid therefrom to refund the illegal tax exacted from the national bank; and it was proper for the city to plead a set-off based on the facts alleged in paragraph 8 of its answer set out above. The revenues of the city of Seneca are derived from taxes imposed upon the property of its inhabitants. Those inhabitants have already contributed to the reimbursement of the county general fund by paying the tax imposed by plaintiff pursuant to its .35 mill levy. Whether that tax was valid or not, they paid. To require the city to pay plaintiff’s present demand will necessarily result in the taxpayers of the city of Seneca having to pay twice. Such a result would be altogether unjust.
On the questions on which our judgment on appellate review is now invoked, we 'hold that the statute of limitations is no bar to plaintiff’s action, but in so far as the city’s answer pleaded the facts of the levy and collection of a tax to recoup the county general fund and the city’s claim to a set-off against plaintiff’s demand, the trial court’s ruling was erroneous and should be set aside.
The judgment is reversed, and the cause remanded for further, proceedings consistent with the views outlined herein.
Hutchison, J., not sitting. | [
-12,
-8,
-68,
-34,
58,
-32,
42,
-103,
24,
-95,
-95,
119,
-21,
72,
21,
107,
-109,
125,
84,
107,
-58,
-78,
54,
35,
-110,
-14,
-69,
-43,
-79,
-51,
-12,
-33,
12,
33,
-54,
-99,
102,
-30,
-57,
-12,
-50,
-127,
-88,
-51,
-35,
64,
52,
47,
114,
11,
-15,
-114,
-13,
44,
28,
75,
40,
44,
-39,
-69,
16,
-7,
-82,
-99,
79,
6,
49,
34,
-102,
-125,
-56,
46,
-112,
53,
-60,
-8,
123,
-90,
-122,
117,
5,
-87,
-115,
-32,
103,
1,
125,
-49,
-72,
-120,
38,
-6,
-99,
-90,
-76,
24,
2,
-120,
-76,
-97,
108,
80,
-121,
116,
-20,
-107,
89,
108,
-125,
-114,
-90,
-79,
-115,
60,
-118,
22,
-1,
-93,
48,
113,
-123,
122,
92,
71,
58,
59,
-41,
92
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to determine the validity of an order made by the board of county commissioners purporting to create new school districts.
From an order overruling plaintiff’s demurrer to an answer filed by one of the defendants, the plaintiff appeals.
The petition alleges the personnel of the board of county commissioners and of the school district board; that prior to 1921 school district No. 12 contained certain described real estate, had maintained a graded common school and a high school and in 1921 had erected and purchased buildings and equipment valued at $20,000 and located in the city of Long Island, which is a third-class city; that in 1921, under proceedings duly had, school district No. 20 and school district No. 88, whose territorial content is described, consolidated with school district No. 12, and all three became one consolidated school district known as Long Island consolidated school; that later, in 1923, school district No. 101, whose territorial content is described, was consolidated with and became a part of Long Island consolidated school; that at all times since the first consolidation the district has maintained a graded school and a fully accredited class B high school, having the highest rating given that sized high school; that the district has erected and purchased additional buildings and equipment costing about $25,000 and has outstanding bonds amounting to $9,500; that it maintains a bus system for transportation of pupils; that in 1931 it had an assessed value for taxation of $812,516, received $4,000 for tuition from outside pupils, and levied taxes of $17,000 in addition thereto, and that it. would require a total tax of $13,000 for the school year 1932-’33; and that it had four teachers in the grade school and a pupil attendance of about seventy-eight, and five teachers in the high school and a pupil attendance of about sixty-four. The petition further alleged that a petition was filed by some property owners praying that the district be disorganized and dissolved and that out of its territory new districts be formed. A copy of the petition is attached as an exhibit and shows that if granted, four new districts would be formed, whose territorial content, in each case, would be as follows: Original district No. 20 would be completely restored. Original district No. 88 would be completely restored and twenty acres from outside the limits of the present consolidated district would be added to it. The south 1,280 acres of original district No. 12 would be added to original district No. 101, and, as thus altered, the two original districts would be completely restored.
The county superintendent, after giving due notice, held a hearing and ultimately denied the petition. An appeal was taken to the board of county commissioners, which ordered the new districts created. One commissioner voted to sustain thecounty superintendent, and the two others, hereafter referred to, voted to overrule her decision and to grant the prayer of the petition.
The petition also sets up that a consolidated district was likewise formed in another part of the- county; that one of the commissioners lived in one of these districts, another in the other district, and that the two commissioners assisted in the preparation of the petitions to dissolve both consolidated districts, and conspired together to grant said petitions regardless of the vote of the other commissioner or of the decision of the county superintendent, and that in acting upon said petition involved , herein they acted in bad faith, arbitrarily, in a- capricious and prejudicial manner, from selfish motives and without regard to the best interests of the in habitants of the consolidated district. The facts upon which such conclusions are based are pleaded, but in view of the question involved in this .appeal' it is not necessary that they be further set out. On the same, day the petition was filed an order was issued restraining further proceedings dividing up the consolidated school-district territory. None of the parties defendant filed answers, but seventy-four days after the filing of the petition and the granting of the restraining order, one John C. Kats,' on permission, filed an unverified answer on behalf of himself and the other taxpayers who originally instituted the proceedings, in which he admitted among other things that the petition to create the new districts was filed; that a hearing was had before the county superintendent and an appeal taken to the board of county commissioners which overruled the decision of the county superintendent and granted the request of the petitioners, and denied all other allegations of the petition,
To this answer the plaintiff demurred, which demurrer the court overruled, the journal entry reciting “the court finds . . . the board of county commissioners of Phillips county, Kansas, had jurisdiction to make the order complained of, . . .” From this ruling plaintiff' promptly appealed, the error specified being the overruling of the demurrer.
The power of the board of county commissioners to overrule the decision of the county superintendent denying the petitions for the establishment of new districts and to order such districts established has been determined by this court. (State, ex rel., v. School District, 112 Kan. 60, 209 Pac. 974; State, ex rel., v. Cannon et al, 116 Kan. 325, 226 Pac. 777.)
In the last mentioned case the facts are quite like those here involved. In that case it appeared several districts united as a union school district. Trouble arose and petitions were filed for the creation of four new districts out of the territory of the union district. The county superintendent allowed the petitions as to two districts and denied it as to two others. On appeal the board of county commissioners sustained the county superintendent as to the districts created and overruled him as to those denied, and ordered them created. An appeal was taken to this court, and, in disposing of it, it was said:
“The first contention is that in the organization of new districts the county superintendent is not authorized to form them from territory of a consolidated district. A consolidated district is no more than an enlarged school district, and it has been determined that the county superintendent in organizing a new district may form it from territory which is embraced in a consolidated district. (The State, ex rel., v. School District, 112 Kan. 60, 209 Pac. 974.) It is argued that the instant case is distinguishable from the one cited, as the action taken by the county superintendent practically and seriously impairs the efficiency of the consolidated district, which had been formed on the authorization of the electors voting and residing therein. It appears that the organization of the new district left considerable territory in the consolidated district, which in fact included all of the territory of old district 100, and no reason is seen why that district may not carry on. The law provides that school districts may be changed by the county superintendent wheiCthe educational needs and interests of the inhabitants require it. (R. S. 72-213.) While a. consolidated district is organized by the county superintendent after a vote of the people rather than upon the petition of the residents or upon the initiative of the county superintendent, nothing is found in the statute which prevents a change of .a consolidated district in the way provided for a change in an ordinary district.. Both are school districts, and both may be altered when the best interests of the people will be subserved by a change. The power and discretion to make such organizations and changes is vested in the county superintendent, and in case of an appeal in board of county commissioners.” (p. 327.)
That the state alleges facts which, if admitted, would show the action of the board of county commissioners was so arbitrary, oppressive and capricious as to amount to fraud, and sufficient therefore to vitiate its acts, cannot now be considered, for the answer denied those facts. With what remains, we cannot say that''it, appears the board exercised its powers in an unlawful manner. On the trial of this case on the merits, the doctrine of State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 1032, might apply, but from the showing made under the facts admitted by the answer, it does not appear that the court erred in overruling the demurrer, and its judgment is affirmed.
Hutchison, J., not sitting. | [
-16,
124,
-44,
60,
26,
-26,
62,
-104,
80,
-93,
-27,
119,
111,
91,
20,
125,
-29,
125,
64,
122,
-25,
-9,
18,
11,
-111,
-13,
-9,
-33,
-69,
-51,
-26,
-33,
72,
-80,
-22,
-3,
70,
-62,
-63,
80,
-50,
7,
-117,
79,
89,
66,
54,
117,
122,
-114,
53,
74,
-77,
44,
-100,
-61,
8,
44,
89,
57,
5,
-79,
-126,
-113,
117,
6,
-77,
34,
-97,
-125,
-56,
46,
-104,
49,
-124,
-23,
26,
-26,
-106,
119,
3,
-103,
9,
32,
102,
17,
109,
-3,
-16,
-119,
14,
114,
-83,
-28,
-109,
25,
-14,
4,
-99,
31,
113,
82,
7,
118,
-25,
-63,
94,
108,
12,
-126,
-44,
-77,
-52,
-27,
-104,
3,
-29,
51,
48,
49,
-55,
-74,
94,
68,
48,
-101,
78,
-104
] |
The opinion of the court was delivered by
Smith, J.:
These two actions are original proceedings in mandamus — one brought by Norton county against the highway commission and the other brought by the highway commission against Norton county.
The purpose of the two cases is to determine the condition of the county and state road fund of Norton county on April 1, 1929.
The questions arise from the operations of Norton county and the state highway commission during the operative period of chapter 214 of the Laws of 1925. It was this statute that provided that the state highway system should be constructed, reconstructed, improved and maintained by the boards of county commissioners of the several counties subject to the supervision of the state highway commission (sec. 2); also that all contracts should be let by the county commissioners and approved by the state highway commission (sec. 6); also that the construction and maintenance should be subject to the approval of the state highway commission and under the direction of the county commissioners. It was the plan adopted by the legislature to meet the requirements of the federal authorities that they would deal only with states.
The fund in question was called “county and state road fund.” It was made up of gasoline taxes and automobile license fees, and the statute required that the money thus raised from the entire state should be distributed to the counties. Forty per cent of this money was distributed t-o each county equally. Sixty per cent was distributed to the counties on the basis of the assessed valuation of each county.
With some changes not necessary to notice here the business of to ad. building was carried on under this statute until the passage •of chapter 225 of the Laws of 1929, which took effect April 1, 1929. This is the statute that was enacted pursuant to the last highway amendment to the constitution. Under its provision the state itself, .acting through the highway commission, assumed the duty of constructing, reconstructing, improving and maintaining that portion •of the highways of the state in each county designated as a part of the state highway system.
Since the county commissioners had been doing the work under the supervision of the highway commission, when the state itself took over the work it became necessary that there be an adjustment of accounts between the several counties and the commission. The act of 1929 contained the following provision with reference to this:
“That on April 1, 1929, the boards of county commissioners of the various counties shall transfer to the state highway commission and deliver to its authorized representatives all machinery, equipment and road materials which said counties have heretofore purchased from the county and the state road fund of such counties for use on state highways. That on April 1, 1929, the state highway commission shall assume the rights and liabilities of the various counties on all existing contracts for the construction, improvement, reconstruction, or maintenance of state highways and bridges and for the purchase of machinery, equipment or material for use on state highways.” (Laws 1929, ch. 225, sec. 19.)
Under that section it became the duty of the boards of county commissioners and the highway commission to adjust their respective rights and liabilities in reference to the county and state road fund as of April 1, 1929. In the case of Norton county there was an attempt to do this. The result of that attempt was a payment to Norton county by the highway commission of $22,512.30 on July 25,1929. On March 30,1932, the state, on the relation of the county attorney of Norton county, filed one of these actions.. In that action it was claimed that the settlement was not correct. It was sought to compel the highway commission to pay to Norton county $21,137.51 in addition. On June 22, 1932, the state, on the relation of the attorney-general, filed the other mandamus action. In that action it was claimed that Norton county was paid too much in the settlement of July 25, 1929. It seeks to compel Norton county to pay to the state highway commission the sum of $23,515.07. It should be noted here that the settlement of July 25, 1929, was made subject to any changes which it would be found necessary to make under the 'laws of the state. Neither party is seriously urging the matter of accord and satisfaction. As soon as these two actions were filed, expert accountants set to work on the books of the county. The result of this was that the claim of Norton county was reduced to $1,709.24, while the claim of the highway commission remained the same. .
The cases were consolidated, and the parties stipulated as to the facts. It is conceded by both parties that the books of Norton county were not correctly kept, and the questions that arise in these cases go largely to the manner in which both parties claim the county and state road fund should appear on the books of the county.
There are three major questions to be decided in these cases.
The first difference urged concerns an item of $3,624.16, which the county claims it spent on the state highway system in the county and for which it claims it should have credit.
This amount is the total of various warrants drawn by the county engineer against the county and state road fund for the construction and maintenance of roads comprising a part of the state highway system, approved by the board of county commissioners for payment out of the county and state road fund and charged by the county treasurer against the county and state road fund, but not shown on M-6’s as approved charges by the state highway commission.
Just what the known facts are with reference to this fund may best be stated by quoting from the stipulation. There we find the following statement:
“15-D. The M-6’s herein referred to were forms listing approved expenditures' and provided for the purpose of evidencing the approval of charges against the county and state road fund, in conjunction with a form known as M-5. The M-5 was a form on which space was provided for the listing of each voucher approved by the board of county commissioners for funds expended for materials, supplies and labor or other necessary items in connection with the maintenance and betterment work on highways designated as part of the state system of highways. Each month’s expenditure, as listed on form M-5, was summarized on the form M-6, and periodically a representative of the state highway commission would inspect and approve or disapprove the charges as set out by the officials of the county on the forms M-5, and such approval constituted the approval by the state highway commission. The charges thus listed upon the M-6’s constituted the authorized charges to be made against the county and state road fund.
“15-E. The state highway commission contends that inasmuch as said items are not shown on the forms M-6 they were never approved, the practice being to list on the form M-6 only approved charges. That said charges, never having been approved by the state highway commission as a proper charge against the county and state road fund (the 80 per cent of said fund required to be expended subject to the supervision and approval of the state highway commission), should not now be charged against said fund in making a recast of the county treasurer’s ledger for the purpose of ascertaining the true balance remaining in said fund on April 1, 1929. The state highway commission contends that the warrants must be charged against the optional 20 per cent, and in making a recast of the account (Ex. 2, p. 1, line 18, col. G), has charged said sum in the amount of $3,624.16, against the said optional 20 per cent fund.
“Norton county, on the other hand, contends that said sum should be charged against the 80 per cent of the county and state road fund and has therefore included it in the warrant charges shown on exhibit 2, page 1, line 13, column F, making the difference shown on the same line under column H.
“15-F. Norton county contends that inasmuch as said items were for work done upon the state system of highways, that vouchers for such work were approved by the county engineer and the county commissioners and posted by the treasurer as proper charges against the county and state road fund, that said items now constitute a proper charge against the county and state road fund (the 80 per cent of said fund), and that in recasting the said fund the said items should not be eliminated merely because they do not appear upon the forms M-6 as approved charges.”
The county argues that since there is nothing in the record which shows that these items were presented to the commission and rejected, and no reason appears why they would have been rejected had they been presented, the county should have credit for them and should not be penalized by the negligence of its officers.
It will be seen that the method described was the only way the highway commission could supervise or control the building of the state highway system during the operation period of the 1925 act. The authority that controls the purse strings is the authority that controls the work. For this court, seven years after the expenditure of the money, to order the payment of these items out of the county and state road fund would be to say that the items were proper charges against the fund. There are no facts before us upon which we may base such a conclusion. The fact that the vouchers are approved by the county engineer and the county commissioners does not avail the county here, for the reason that twenty per cent of the money sent to Norton county could have been expended on the state highway system if the county commissioners had seen fit to so spend it. In that case the vouchers would have needed the approval of the county engineer and county commissioners, but not that of the highway commission. For all we know, that is what happened here. We know that the approval of the highway commission was not a matter of form, but was necessary before a voucher could properly be paid out of the county and state road fund.
We have concluded that the contention of the highway commission is correct with reference to the item of $3,624.16.
The next item in dispute is $10,168.17, which is the difference in the contentions of the parties as to the twenty per cent of the money that was sent to the county under the act of 1925. After providing for the disbursement to the different counties of the gasoline tax money and the automobile license fees, section 4 of chapter 214 of the Laws of 1925 contained the following provision:
“That not more than twenty per cent (20%) of said fund may be expended on county or township roads or bridges at the option of the county commissioners.”
During the operative period of the 1925 act the state sent $68,-961.68 to Norton county. Of this the county treasurer credited $13,-792.33 to the county road fund. We have seen that $3,624.16 was spent on the state highway system in Norton county but was not approved by the state highway commission, hence could not be charged to the county and state road fund. This leaves $10,168.17 which the county claims was spent on the county and township roads under the optional provision of the law. This subject was treated in State, ex rel., v. State Highway Comm., 132 Kan. 327, 295 Pac. 986. In that case it was held that the provision quoted did not confer authority on the county to set aside twenty per cent of the money received as a separate fund to be used on county and township roads and bridges. In other words, the provision was that the money might be expended, and it was not to be taken out of the county and state road fund until it was expended on county and township roads. The contention of Norton county is that the money was actually expended on county and township roads and that this constituted an exercise of the option. On the other hand, the state highway commission contends the money was not spent on county and township roads and there was no exercise of the option. If the county commissioners did not exercise their option to expend the money on county and township roads and bridges, then the money should still have been in the county and state road fund for Norton county on April 1, 1929. We must base our conclusions on this matter entirely on the agreed statement of facts which the parties have made. It is agreed first that the county treasurer credited the county road and bridge fund with this money. All parties also agree that this does not constitute an exercise of the option.
In paragraph 17-CC. of the agreed statement of facts we find the following:
“The state highway commission further contends that inasmuch as' the journal of the county commissioners for the period in question was not destroyed by the fire in the courthouse above referred to, but is still in existence, and inasmuch as said journal does not show any resolution of the board of county commissioners directing the treasurer to post 20 per cent of the distributions of the county and state road fund as received by the county to the county road fund, and inasmuch as no evidence has been produced indicating even knowledge on the part of the board of county commissioners that such postings had in fact been made, that there is no evidence from which it can be determined that the board of county commissioners attempted to exercise the option given it under the provisions of the 1925 road act to expend 20 per cent of the distributions of the county and state road fund upon county or township roads.”
The presumption to be drawn from the above statement is that the county commissioners did not order the expenditure of this money from the county and state road fund, and that it is doubtful if they knew of such transfer. The warrants drawn on the fund were not marked so that the fund from which they were to be paid might be distinguished in any way. It is certain that money was spent on county and township roads. The question is whether this money was intended by the county commissioners to be spent out of the so-called twenty per cent money or was intended to be spent by them out of the money raised by the regular levy. We can only arrive at a conclusion on this question by a study of the circumstances.
The most persuasive of the circumstances considered is the fact that the county commissioners were using every available dollar to carry on the work of constructing the state highway system. This was done in some instances when it was questionable whether the commissioners or treasurer had any authority or right to make the transfer of funds. Indeed, the next item to be treated in this opinion is one where Norton county claims an illegal diversion of funds.
The county commissioners in this case had the option of using the money in question on the state system or on county and township roads. Since they had this option with reference to the money, it would be a violent assumption on our part to assume that they used this money on county and township roads and used money about which there was a doubt as to their authority on the state highway system.
The holding of this court in State, ex rel., v. State Highway Comm., supra, is relied on by Norton county. In that case the court in treating this question said:
“The board decided to exercise its option and set apart the authorized 20 per cent under the act of 1925, placing it in the county drag fund, but a considerable part of this money was not then needed for local road purposes and was not thus expended.” (p. 334.)
The findings of fact of the commissioner in that case were quite plain on this' point. The commissioner found that the funds were transferred “on the orders of the county commissioners.” There is nothing in the agreed statement of facts in this case that might warrant any conclusion that the commissioners had ordered the transfer of twenty per cent of the county and state road fund from that fund to the county road- fund, or that the commissioners had ordered or knew of the expenditure of any such a fund on the county and township roads. We therefore have concluded that the contention of the highway commission is correct as to this item, and that Norton county should repay to the átate highway commission $10,168.17 in addition to the $3,624.16 heretofore treated in this opinion.
The next item in dispute between the parties is the sum of $7,-869.35 which the county claims was illegally diverted from the county road and bridge fund into the county and state road fund.
During the operative period of the 1925 act the construction of the road which brought about these questions was initiated. The road was contemplated and actually constructed as a federal-aid project. We have seen that during this time the counties carried on the actual work of constructing these roads, but it was done under the supervision and subject to the control of the state highway commission.
We have seen that the state aided in the carrying on of this work with funds raised by means of the gasoline tax and automobile license fees. This money was augmented by what was obtained from the federal government, and in many cases by funds raised in the counties by a regular levy. It was the use of the latter funds that gives rise to this case.
It will not be necessary to give a detailed account of the manner in which this particular project was initiated and finally carried to completion. A brief examination, however, will be helpful.
To initiate the improvement the county commissioners adopted a resolution which provided that the improvement should be made “by the use of county and state road fund and bridge fund.” The resolution found that the improvement in question was of immediate necessity and of general public utility, and stated that there was available the sum of $10,000 “from the bridge fund” to make such improvement. It ordered a survey to be made by the county engineer, and “hereby appropriated and set aside . . . the sum of $10,000 . . . from the bridge fund.”
The county attorney approved these proceedings. The county commissioners passed another resolution resolving the road in question be improved as a federal-aid road, the construction and maintenance to be carried out under the direct supervision of the state highway commission “acting as agent for said county” as required in the federal-aid road act and as authorized in chapter 264 of the Laws of 1917. This resolution contained a proviso “that this board pledges the good faith of said Norton county to construct this improvement and maintain said road as required in the federal-aid road act and the laws of Kansas.” These documents were forwarded to the state highway commission, which adopted a resolution determining to make the improvement as a federal-aid road. In due time the entire project was approved by the bureau of public roads. The arrangement at that time was that the entire project would cost $108,813.10. This included $65,539.30 for earthwork and culverts and $43,273.80 for bridges. The federal government agreed to furnish $32,643.93 of this amount and required the state to furnish $76,169.17. The state highway commission sent this statement to the county. The county commissioners set aside for the purpose of matching federal aid the following:
“(1) From general road and bridge fund (ch. 68, R. S. 1923) ........................... $20,000.00
“ (2) County and state road fund (ch. 214, Laws of 1925) .............................. 47,627.37
“(5) State-aid road fund (ch. 214, Laws of 1925), 8,541.80”
Later a request for $10,000 additional was made on the federal government. This was approved, making fifty per cent of the entire cost of the project to be furnished by federal aid. When the road was finally completed the cost was, earthwork and culverts $61,931.53, bridges $28,996, or a total of $90,927.53. When the affair was finally settled it was found that $7,869.35 of the money that had been raised by a tax levy for the purpose of building bridges in the county had been expended by the county commissioners on bridges located on this portion of the state highway system.
Norton county argues that the county commissioners had no authority to spend this money on the state highway system, and that on this account the amount should not have been paid out of the county bridge fund but should have been paid out of the county and state road fund.
The constitutional provision upon which the county relies is as follows:
“No tax shall be levied except in pursuance of a law which shall distinctly state the object of the same; to which object only such tax shall be applied.” (Const., art. XI, sec. 4.)
The statutes under which the fund in question was raised are 68-1101 et seq. It is there provided that each June the county engineer shall make a survey of the county to determine what bridges in the county need repair and maintenance work done upon them and shall report the result of his inspection with an estimate of the cost to the county commissioners for their July meeting. The statutes also provide that at its June meeting the board of county commissioner’s shall determine what new bridges or culverts shall be built during the next ensuing year and shall furnish a list of them to the county engineer. It is then provided that the engineer shall visit the site of each bridge and shall submit the estimated cost of all of them to the county commissioners at their July meeting. Based upon these recommendations the county commissioners determine the amount necessary to be raised for the repair and construction of bridges. To this they add twenty per cent for an independent bridge fund. The statute then provides for the publication of notice of a public meeting, which notice shall give the location and the estimated cost of each structure to be built or repaired, and that after the public meeting the board shall make an order stating the location of the bridges and culverts to be constructed and repaired and the amount of money to be appropriated for such bridges and culverts. The statute then has the following provision:
“The board of county commissioners at the time prescribed by law for levying county taxes shall levy a tax of -not more than one and one-half mills on the dollar on all taxable property in the county, to be collected as other taxes, and when collected shall be expended for the repairs and construction of bridges and culverts. The board of county commissioners shall not be prohibited from using bridge funds on other bridges than the ones designated when in their judgment necessary.” (R. S. 68-1102.)
Section 2 of chapter 214 of the Laws of 1925 is as follows:
“That the state highway commission, in conjunction with the boards of county commissioners, shall designate in every county in the state certain highways, the total mileage of which shall not exceed 8,690 miles, and the total mileage of which in each county shall not be less than the sum of the north to south and the east to west diameters of the counties and which shall connect the county seats and principal cities and market centers. Which highways shall constitute the state highwaj? system. Said state highway system shall include all roads heretofore approved by the state highway department and the federal government under the federal highway act. The system of roads thus designated shall be constructed, reconstructed, improved and maintained by the boards of county commissioners of the several counties, subject to the supervision of the state highway commission, from funds hereinafter provided.”
Our question is: Was it lawful for the county commissioners to use money raised under the provisions of R. S. 68-1102 to build bridges on a highway which had been designated as part of the state system of roads in the county pursuant to the above section? The answer will require an examination of the statutes relating to highways and bridges.
The argument of the county is that the statute quoted required the highway commission and the county commissioners to set up a system of state highways, and that when this was done these roads became entirely separated from the county as far as taxation is concerned. In this connection the county cites and relies on State, ex rel., v. Saline County Comm’rs, 128 Kan. 437, 278 Pac. 14. In that case an act of the legislature of 1929 gave the counties the authority to use and overdraw the county general fund, sinking fund, bond funds, the twenty per cent road fund and the road and bridge funds for the purpose of constructing part of the state highway system in any county. This court held this to be an attempt to divert funds in violation of the section of the constitution relied on here. It will be noted that the act passed on in the case of State, ex rel., v. Saline County Comm’rs, supra, attempted to confer authority upon the county commissioners to use funds for road-build ing purposes when the statutes creating these funds did not even remotely mention roads, either state or county.
The county in this case points out that R. S. 68-608 authorized the use of county bridge funds on federal-aid projects and was repealed by section 9 of chapter 214 of the Laws of 1925. It should be noted here that R. S. 68-1102 gives authority to county commissioners to make a levy to build bridges on any road in the county, whether part of a state highway or not, as far as any provision in that section is concerned. The question we have is whether later enactments have narrowed the purposes of that statute so that it now only applies to bridges on roads other than those that are now part of the state highway system.
Chapter 214 of the Laws of 1925 provided a comprehensive plan for the cooperation of county, state and federal authorities. It is fair to assume that the authors of the bill were familiar with the statutes then in effect and with the court decisions interpreting them. With this in mind we will examine the provisions of that chapter that bear on our question. In this connection we must note here that it has always been the policy of our state to treat the construction and repair of bridges as a separate and distinct matter from the construction of roads and highways.
In State, ex rel., v. Franklin County, 115 Kan. 531, 223 Pac. 261, this court construed R. S. 68-601. That section provided for a fund in the counties to be known as “the state-aid road fund,” to be raised by the payment of licenses on automobiles. The statute provided that the fund should be used for the purpose of “aiding in the construction, maintenance and improvement of roads and highways.” Franklin county, presuming to proceed pursuant to this act, had constructed a road upon which there still remained a balance unpaid. Considerable money had accumulated in the state-aid road fund for Franklin county, and the county commissioners were about to use a portion of this amount to build a bridge in the county and a portion of it to pay various bills contracted on roads other than permanent roads in the county.
When the right of the county to do this was attacked, this court held that the state-aid road fund could not be used on county roads unless it amounted to enough to more than care for any federal road project then under construction and could not be used for the building of bridges at all. On this point the court said:
“The different sections of the act make it clear that the fund, whether used to meet federal-aid projects or not, must be used for the construction and maintenance of roads. The application of it to the building of bridges is contrary to the terms of the act and against the general policy of the state. In providing for the building of bridges the legislature has drawn a distinct line of demarcation between provisions for bridges and those made for the roads on which they are built. Separate funds are provided for the expense of the construction of each, and different limitations have been prescribed as to the application of the separate funds. A culvert or bridge built at little cost has been treated as a part of a highway, as for instance in the act providing for the permanent improvement of roads, the legislature has enacted that bridges costing less than $2,000 and having a span of less than twenty feet shall be included as a part of the improvement, but those costing more than that amount and of greater span shall be built at the expense of the county under the law providing for the construction of bridges. (R. S. 68-713.) In a provision as to raising funds for the building of county roads, there is a specific declaration that funds so raised shall not be used for the construction or repair of bridges and culverts. (R. S. 68-519.) Throughout the legislation as to bridges there is a manifest purpose that funds shall be raised and kept separate from other funds and many limitations applicable to bridge funds are wholly inapplicable to road funds. (R. S. 68-1101 to 68-1506.) Under the facts and the law the action of the board in using this fund for the building of bridges was unwarranted.” (p. 537.)
Of similar import is the case of State, ex rel., v. Sumner County Comm’rs, 132 Kan. 870, 297 Pac. 658. There the court had under consideration the question of whether it was the duty of the county or the highway commission to build a bridge that was part of a benefit-district road. The bridge in question was part of a project in course of construction when chapter 225 of the Laws of 1929 went into effect. The county argued that when that chapter went into effect it became the duty of the highway commission to build the bridge. The court held the construction of a bridge was a separate matter from the construction of a road, and that it was the duty of the county to build the bridge under the supervision of the highway commission.
■ These cases-are of interest to us because they'hold that the law of this state has always been that a statutory provision raising money for the purpose of the construction of roadg and highways should not be construed to mean that it could be used for the construction of bridges.
Section 2 of chapter 214 of the Laws of 1925 provides in part as follows:
“The system of roads thus designated shall be constructed, reconstructed, improved and maintained by the boards of county commissioners of the several counties subject to the supervision of the state highway commission from funds hereinafter provided.”
Note the section speaks of “system of roads.” Section 3 of the same act is as follows:
“That when the state roads in any county shall have been completed, the board of county commissioners of such county, with the approval of the state highway commission, shall have the power and authority to construct and maintain an additional system of roads, to be improved with the funds provided for by this act, that shall connect with the state highway system already built in such county.”
It is to be noted that the section uses the words “state roads” and is similar to the provision of E. S. 68-601 construed in State, ex rel., v. Franklin County, supra. Section 4 of the same act provides for the raising of the money to be used and for its distribution to the counties. Near the end of the section we find the following language:
“The fund thus created in the various counties shall be known as the county and state road fund and shall be used for the construction, reconstruction, and maintenance of state roads in the counties: Provided, That not more than twenty per cent (20%) of said fund may be expended on county or township roads or bridges at the option of the county commissioners. All money in the state and county-aid road fund at the time this law is adopted shall remain in the county in which said money was collected and shall be credited to said county and state road fund.”
It is to be noted that the “county and state road fund” is to be used for the construction, reconstruction and maintenance of “state roads” in counties, while the twenty per cent money provided for may be spent on county or township “roads or bridges.”
Chapter 255 of the Laws of 1927 covers the same subject matter as chapter 214 of the Laws of 1925. In many respects it is a reenactment of chapter 214. Section 7 of chapter 255 deals with the distribution to the counties of the money raised by the gasoline tax and automobile licenses. It contains this significant language:
“The fund thus created in the various counties shall be known as the county and state road fund, and shall be used for the construction, improvement, reconstruction and maintenance of roads and bridges comprising the state highway system except as hereinafter provided.”
It is to be noted that this section for the first time provides for the use of the county and state road fund in the construction and reconstruction of bridges as well as roads on the state highway system.
If it be held that the legislature by the enactment of chapter 214 of the Laws of 1925 intended .that county bridge funds could not be used to build bridges on a part of the state highway system in the county, then we must conclude that no provision was made by the legislature for funds with which to build such bridges. It is manifest that there is no provision for using the county and state road fund for any such purpose.
The entire history of road-building legislation in the state does not warrant any such a presumption. It would mean the legislature intended to provide for a fine all-weather road through counties, but left the streams without bridges upon which the traveler might cross to continue his journey on the other side of the stream. When confronted with the question of what the legislature intended by its enactments, the conclusion that commends itself most forcibly to the court is .that the money to build the bridges should come from the source from which it had come ever since roads and bridges had been constructed in the state, that is, a tax levy for that purpose on the property in the county. This conclusion is strengthened by the fact that when the act of 1927 was passed there was an apparent change in legislative policy, and the legislature did what it could have done in 1925 had it intended to do what the county argues it did do, that is, it provided for the construction of bridges as well as roads with the county and state road fund.
The federal statute providing for extending federal aid to states for purposes of road building is found in 7477 of U. S. Compiled Statutes of 1918. That section provides that in states where the constitution prohibits the state from engaging in internal improvements the amount to be appropriated' —
“Shall be turned over to the highway department of the state or to the governor of said state to be expended under the provisions of this act and under the rules and regulations of the department of agriculture, when any number of counties in any such state shall appropriate or provide the proportion or share needed to be raised in order to entitle such state to its part of the appropriation apportioned under this act.”
In 1925 Kansas was one of the states whose constitution prohibited it from engaging in internal improvements.
R. S. 68-405 was enacted by the legislature of 1917 and is still in force. That section gives county commissioners authority to enter into all contracts and agreements with the state highway commission as required by the federal-aid act. Norton county acted pursuant to this authority and bound the full faith and credit of the county to furnish the money needed to meet the federal aid. We have seen that the only provision for raising money for the construction of bridges is contained in R. S. 68-1101. Manifestly the legislature would not have provided that counties could enter into contracts for the construction of bridges on a portion of a state highway and have failed to provide means for raising funds with which to carry out the contracts.
We have concluded, therefore, that the use of $7,869.35 of the bridge fund of Norton county in the construction of bridges was on a part of the state system of highways and was not an unlawful diversion of funds.
There is an item of interest on warrants stamped “not paid for want of funds” that is in dispute. These warrants were drawn against the “county and state road” fund for Norton county, and when presented the county claims that fund was overdrawn; hence the interest charge which it seeks to charge against the county and state road fund. From what has been said it will be seen that had the books of the county treasurer been properly kept there would have been money on hand in that fund with which to pay them. Hence, the items of interest are not proper charges against the county and state road fund for Norton county.
The final item in dispute concerns the balance that was on hand in the so-called twenty per cent fund when chapter 255 of the Laws of 1927 went into effect. It will be remembered that chapter 214 of the Laws of 1925 made it optional with county commissioners as to the use of the twenty per cent of the county and state road fund on county and township roads. Chapter 255 of the Laws of 1927 contained the following provision:
“That twenty per cent (20%) of said fund shall be expended on county and township roads and bridges, at the option of the county commissioners.”
It will be seen that this enactment made it the duty of the county commissioners to expend twenty per cent of the county and gtate highway fund on county and township roads and bridges. Under this enactment it was the duty of the county commissioners to set this up as a separate fund. In the case of State, ex rel., v. State Highway Comm., 132 Kan. 327, 296 Pac. 986, it was held that under the 1925 act the county commissioners had no authority to set the twenty per cent money up as a separate fund, but that items should only be charged to it as they were actually expended on county and township roads. Norton county argues that when the fund was set up under the 1927 act the county treasurer should carry into the fund, at the beginning of the operative period of that act, twenty per cent of any balance that was in the county and state road fund of Norton county on that date. To this contention we cannot assent. Section 7 of the 1927 act provided for an entirely new system of apportioning the money raised by means of gasoline tax and automobile license fees. We have concluded that the operation of the proviso with reference to the twenty per cent of the county and state road fund can only extend to funds distributed to the counties under the act of 1927.
From what has been said, the order is that the writ of mandamus in the case of State, ex rel. J. F. Bennett, v. The State Highway Commission, No. 30,839, will be denied, and the writ in the case of State of Kansas, ex rel. Roland Boynton, v. The Board of County Commissioners of Norton County, No. 30,968, will issue directing Norton county to pay to the state highway commission $20,604.65. | [
-12,
108,
-4,
-4,
74,
-64,
18,
-120,
88,
-95,
-76,
91,
-85,
66,
16,
117,
-69,
127,
84,
107,
-59,
-9,
23,
-78,
18,
-77,
-5,
-49,
-73,
-35,
-66,
23,
78,
48,
-118,
29,
102,
64,
-59,
90,
-50,
-122,
-53,
-55,
-59,
-31,
60,
111,
18,
15,
-75,
-113,
-30,
44,
28,
-45,
109,
44,
89,
43,
25,
-31,
-98,
-107,
94,
5,
33,
-96,
-111,
1,
-48,
62,
-104,
53,
72,
-7,
87,
-74,
-106,
-11,
79,
-103,
8,
114,
38,
3,
117,
-49,
-72,
-104,
6,
-14,
-87,
-92,
-110,
89,
-86,
67,
-98,
29,
124,
30,
-122,
126,
-18,
85,
93,
108,
-121,
-117,
-16,
-29,
-51,
108,
-118,
1,
-29,
-117,
16,
101,
-55,
-14,
95,
103,
49,
59,
7,
-80
] |
The opinion of the court was delivered by
Smith, J.:
This was a criminal prosecution wherein the defendant was convicted of embezzlement. He appeals.
Defendant was clerk of the district court for several terms. He retired from that office in January, 1932. At that time his books were audited. He lacked about $10,000 of having money enough to pay the amount that was charged to him as clerk. A more detailed examination was then had. In this examination specific cases were discovered where money had been paid to defendant and had not been paid by him to the persons who were entitled to it. This prosecution followed. The count upon which he was convicted was based on the failure of defendant to pay to the successful litigant the amount of a judgment which had been paid to defendant.
The first error of which defendant complains is that his motion to quash the information should have been sustained, because it failed to state an offense against any law of the state of Kansas, because each count was void for duplicity, and because the informa tion was not sufficient to inform him of the nature of the offense charged against him.
The count of the information in which we are interested is as follows:
“I, the undersigned, county attorney of said county, in the name and by the authority and on behalf of the state of Kansas, give information that on the 12th day of January, A. D., 1931, in said county of Reno and state of Kansas, one Carl A. Richardson, then and there being, did then and there unlawfully, feloniously and willfully, while acting in his official capacity as the clerk of the district court of Reno county, Kansas, embezzle, convert to his own use, take, make away with and secrete, with the intent to convert to his own use, without the assent of his employer or employers, approximately the sum of $611.52, of the value of approximately the sum of $611.52, good and lawful money of the United States of America, which said money or property was received by the said defendant, Carl A. Richardson, in his official capacity as clerk of the district court of Reno county, Kansas, and which said office the said Carl A. Richardson held from January 13, 1917, to January 12, 1931, which said sum was paid to the said Carl A. Richardson on the 25th day of March, 1926, by the Walker Grain Company and is the property of D. W. Ghormley or his son,-Ghormley, and should be in the custody of the said Walter A. Mead as the clerk of the district court of Reno county, Kansas, in case No. 17046, then and there pending in the district court of Reno county, Kansas, which said sum the defendant, Carl A. Richardson, failed and neglected to account for to his successor in office, Walter A. Mead, who is and was the duly elected, qualified and acting clerk of the district court of Reno county, Kansas, since the 12th day of January, 1931, and which embezzlement was concealed by the said defendant, Carl A. Richardson, and was not discovered until on or about the 10th day of March, 1931. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”
The prosecution was had for a violation of R. S. 21-545. That statute, in so far as it relates to public officers, is as follows:
“Any officer of this state or any county, township, city, board of education or school district or road district therein, or any receiver appointed by any court or judge in this state, who shall embezzle or convert to his own use, or shall take, make away with, or secrete, with intent to convert to his own use . . . any money, . . . bank bills, treasury notes, goods, rights in action or valuable security or effects whatsoever, belonging to any such . . . state, county, city, board of education, township or school district, or road district, or the beneficiary of such trust fund, or being a part of the funds, assets or property of such receivership, which shall have come into his possession or under his care by virtue of such employment, office, or trust, shall upon conviction thereof be punished ...”
The argument as to duplicity is that the information charges defendant “did embezzle and convert to his own use” and second “did take, make away with and secrete with the intent to convert to his own use” without the consent of his employers. To meet the complaint of defendant the prosecutor could have made two counts instead of one out of the above language. We fail to see where this would have helped the defendant. Long ago this court held that where different criminal acts have been committed by the same person at the same time they might be coupled together in a single count as constituting a single offense. The court said:
“In such cases each one of the acts may be considered as representing a step or stage in the same offense, and all combined may be set forth in the same count and treated as a single violation of law.” (State v. Meade, 56 Kan. 690, 693, 44 Pac. 619.)
See, also, State v. Briggs, 74 Kan. 377, 86 Pac. 447; State v. Sherman, 81 Kan. 874, 107 Pac. 33. There can be no doubt that the embezzling, converting, taking, making away with and secreting were all performed by defendant and occurred at the same time and as part of the same transaction.
The argument that the information should be quashed because it did not inform defendant of the nature of the offense charged against him is that under the statute in question and the information the defendant could not tell whether he was charged with committing the crime on March 25, 1927, the date when the money in question was paid to defendant as clerk, or on January 12, 1931, the date when he failed to turn the amount to his successor. When the language of the information is examined in connection with the statute, however, we have no difficulty in discovering that the state intended to prove just what it was that happened, that is, that the sum of money was paid to defendant, and that he did not do the only thing with it he could do under the law — pay it to the person who was entitled to it. The defendant cannot be heard to complain because some explanatory statements were set out in the information, the effect of which was to inform him of the exact transaction upon which the state expected to rely.
The argument that the information did not state any offense against the laws of the state of Kansas is that the information charged the defendant with embezzling a sum of money which was the property of D. W. Ghormley or his son, and that a public officer can only be 'convicted of embezzling public funds.
Here again we must examine the entire information and the statute. When we do this we see that the information describes exactly what was done. It is true the fund in question was the property of Ghormley when it was paid to the defendant as clerk, but while it was in the hands of defendant he held it as a public fund. The statute treats moneys so held as a trust fund which the officer holds for the benefit of the person entitled to it. (See Sias v. Territory, 11 Ariz. 175; also, State v. Woodbury, 132 Kan. 22, 294 Pac. 928.) The act condemned by the statute is the converting of the money to his own use by the defendant. The embezzlement did not consist of the failure to turn the money over to his successor. That was the final act which made the discovery of the embezzlement inevitable. It took the failure to account for the money, together with the withdrawal of money equal to the amount charged to have been embezzled, to constitute the commission of the crime. For this reason it cannot be said that the only thing charged here is a failure to turn over the money, and that this is not an offense on the part of an officer under R. S. 21-545.
The defendant argues that the evidence was not sufficient to support a conviction of embezzling this particular fund. The evidence was that when the final audit was made the defendant lacked about $10,000 of having money enough to pay the amount charged to him. It was proven that he kept the money in a certain bank, and that from time to time during a long tenure of office he had drawn on this fund for his own personal benefit. He attempted to account for these checks by claiming he thought he was entitled to certain fees that were deposited with the fund. Evidently the jury did not give credence to the story about fees. There was about $5,000 paid by defendant to his successor when he left the office. As has been stated heretofore, this left about $10,000 that defendant was unable to pay.
The argument of defendant is that for all that the evidence of the state proved, the sum the defendant was charged with embezzling was included in the $5,000 paid over. The answer to that argument is that when defendant turned over the office to his successor he turned over $5,199.45, and at the same time turned over a list of cases with each case specified by number and with the amount of money due set opposite each case. The amounts added up equaled the amount of the check. The case in which was paid the amount defendant is charged with embezzling was not on the list. This amounts almost to an admission that this particular amount was not turned over because it had been used by defendant.
Defendant objects to the introduction of several checks that he had drawn on his official fund for his personal use. He argues that he should have been charged with the embezzlement of the amounts of these checks instead of the amounts paid to him in specific cases, but that since he was not so charged the checks were incompetent and prejudicial. The checks were introduced as a means of showing the manner in which defendant handled the bank account in which the money he was charged with embezzling was carried. They were competent for that purpose. They were admissible for the purpose of showing the intent and plan or system by which defendant carried on his affairs. (See State v. Robinson, 125 Kan. 365, 263 Pac. 1081, and cases there cited.)
After the jury had been in deliberation about three days the following colloquy occurred between the trial judge and the jury:
“By the Court: You wanted to ask me a question you said?
“By Juror Ayres: We would like to ask whether it is for the jury to decide or whether it is the law, when Mr. Richardson testified he thought these checks for $270 on November 13, 1929, and $456 on October 1, 1930, were copy fees, after the supreme court had decided he wasn’t entitled to those fees.
“By the Court: Now, what is the question itself?
“By Juror Ayres: The question we want to know is whether we are to decide whether that is embezzlement, or whether the law has decided that?
“By the Court: That is for you to decide, under all the facts and surrounding circumstances. Was there any other questions?
“(No response.)”
Defendant argues that it was error for the trial court to so instruct the jury. The jury had been fully instructed by the court on all phases of the case. There was no other answer for the court to make under the circumstances.
Sometime after this colloquy occurred the court gave the jury an instruction which defendant argues amounted to a direction by the court for the minority of the jury to yield to the majority, and was erroneous.
This instruction was given in the case of State v. Rieman, 118 Kan. 577, 235 P. 1050. The court said:
“The court gave to the jury the instruction approved in Commonwealth v. Tuey, 8 Cush. (Mass.) 1. To the instruction the court appended an admonition, clearly and forcibly restating the matter carefully expressed at the beginning. Guarded in this way, the instruction contravened no decision of this court, and there is no reason to believe it was prejudicial.” (p. 582.)
We do not regard the giving of this instruction as of sufficient gravity to warrant a reversal, since the record does not permit this court to entertain any misgivings as to the correctness of the result. However, we have reached the conclusion that it is not a well-chosen, careful statement of the law. It places an undue emphasis on the duty of the minority of the jury to yield to the opinion of the majority. The rule is that each member of the jury should pay attention to and consider the opinions, arguments and statements of the other jurors to the end that he may reach the conclusion that to him seems the correct one.
Other instructions are criticized by defendant, but we see nothing wrong with them.
The judgment of the trial court is affirmed.
Hutchison, J., not sitting. | [
-16,
-20,
-88,
92,
10,
-32,
42,
-98,
81,
-93,
-91,
83,
-23,
66,
0,
121,
99,
29,
85,
104,
-58,
-109,
23,
-23,
-14,
-77,
-39,
-43,
-68,
73,
-28,
-43,
77,
48,
2,
-107,
38,
-62,
-57,
-100,
-114,
4,
-88,
-48,
-21,
0,
52,
43,
39,
11,
113,
30,
-5,
42,
28,
83,
9,
44,
-1,
-69,
-48,
-13,
-70,
13,
79,
20,
-95,
6,
-98,
79,
-48,
46,
-100,
57,
0,
104,
123,
-90,
6,
116,
111,
-119,
44,
110,
98,
32,
-107,
-81,
36,
-120,
47,
-1,
-99,
-89,
-110,
88,
75,
47,
-98,
-103,
119,
22,
15,
-12,
-23,
21,
57,
108,
-125,
-34,
-10,
-109,
-113,
60,
12,
27,
-17,
-96,
16,
112,
-51,
-30,
92,
119,
114,
-101,
-49,
-76
] |
The opinion of the court was delivered by
Smith, J.:
This action was brought to enjoin defendants from maintaining a liquor nuisance. Judgment was for plaintiff. Defendants appeal.
Defendants own and operate two sandwich stands in Reno county. On June 17, 1933, they began selling a beverage commonly known as 3.2 per cent beer. On June 22, 1933, the state obtained a temporary injunction enjoining defendants from keeping or selling intoxicating liquors at the stands in question.
The defendants filed a verified answer in which they denied that they kept, sold or bartered any intoxicating liquor on the premises, or had ever kept or sold intoxicating liquor. The answer further alleged that the maintenance of the premises in question, a sandwich and soft-drink stand, was the sole means of livelihood of defendants, and that the attempt on the part of the state to enjoin its continued maintenance and operation was in violation of their privileges and immunities as citizens of the United States, and in contravention of the fourteenth amendment to the constitution of the United States.
Hearing was had on the pleadings thus made up and a permanent. injunction was granted.
The proof was that defendants sold some bottles of a beverage. One bottle contained 2.3 per cent alcohol by weight and 2.9 per cent by volume; the other contained 2.47 per cent of alcohol by weight and 3.1 per cent of alcohol by volume. The bottles had labels on as follows:
“Does not contain more than 4- npr centum nf man a per centum oi alcohol by
Contents 12 fluld ounces Permit Dist. No. 7-U-712
Tax paid at the rate prescribed by internal revenue law
BLATZ OLD HEIDELBERG BEER
Blatz Brewing Co., Milwaukee, Wis.
Prosit
Trade Mark Keg. U. S. Pat. Off.
BREWED UNDER THE FORMULA OF A FAMOUS OLD GERMAN BEER
Blatz Brewing Co.”
It was agreed that the beverage contained in the bottles was a malt beverage commonly designated as 3.2 beer by a recent act of congress.
At the conclusion of the state’s case the defendants demurred to the state’s evidence. This demurrer was overruled. They then offered to prove that the beverage in question was not intoxicating as a matter of fact. This offer was rejected. The trial court held the sale of the beverage in question, it being a malt beverage, was in violation of the prohibitory law of Kansas, and particularly R. S. 21-2101 and R. S. 21-2109, and that it was not competent for defendants to show that it was not intoxicating as a matter of fact.
It is from that ruling that this appeal is taken. At the outset of our discussion of this case it should be borne in mind that the sole question to be decided is whether defendants had a right to introduce this evidence. This question will be answered when we have decided whether the sale of any malt liquor, regardless of its intoxicating qualities, is forbidden by the Kansas statutes.
R. S. 21-2101 is-as follows:
“It shall be unlawful for any person to directly or indirectly manufacture, sell, barter, or give away, furnish or keep or have in his possession for personal use, or otherwise any spirituous, malt, vinous, fermented or other intoxicating liquors . . .”
R. S. 21-2109 is as follows:
“All liquors mentioned in Laws of 1917, ch. 215, sec. 1, as amended, shall be construed and held to be intoxicating liquors within the meaning of this act.”
R. S. 21-2101 was first enacted in 1881, when the business of regulating the liquor traffic was in its infancy. It was section 1 of chapter 128, Laws of 1881, and read as follows:
“Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be guilty of a misdemeanor and punished as hereinafter provided: Provided, however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act.”
R. S. 21-2109 has descended from section 10 of chapter 128 of the Session Laws of 1881. That section was as follows:
“All liquors mentioned in section one of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning of this act.”
The first change that was made in section 1 of chapter 128 was in 1909. The legislature of that year took out the proviso that such liquors might be sold for medical, scientific and mechanical purposes as provided in the act (Laws 1909, ch. 164, § 1).
In 1917 the legislature passed chapter 215 of the Session Laws of 1917. That chapter is known as the “bone-dry law.” It is in part as follows:
“It shall be unlawful for any person to keep or have in his possession, for personal use or otherwise, any intoxicating liquors, or permit another to have or keep or use intoxicating liquors on any premises owned or controlled by him, or to give away or furnish intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided. . . .” (§ 1.)
When the statutes were revised in 1923, section 1 of chapter 164 of the Laws of 1909 was combined with section 1 of chapter 215 of the Laws of 1917 to make R. S. 21-2101. It is worthy of note that when the bone-dry law was enacted the legislature simply used the term “intoxicating liquors” and did not use the description “spirituous, vinous, malt or fermented” as had been used in earlier acts. It has been seen that R. S. 21-2109 was originally section 10 of chapter 128 of the Session Laws of 1881. It was next enacted as section 4 of chapter 164 of the Laws of 1909, as follows:
“All liquors mentioned in section 1 of this act shall be construed and held to be intoxicating liquors within the meaning of this act.” (§ 4.)
When it was written into the revision of 1923 the legislature referred to the words as used in section 1 of chapter 215 of the Session Laws for 1917. We have seen that this section simply used the term “intoxicating liquors.”
These sections have been interpreted many times.
In State v. Teissedre, 30 Kan. 476, the state brought a prosecution under section 13 of chapter 128 of the Session Laws for 1881. This was the section that provided for injunctions. The court said:
“It was no error for the court below to instruct the jury ‘that beer is presumed to be intoxicating, until the contrary is proved.’ In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor.” (p. 484.)
See, also, State v. Jenkins, 32 Kan. 477, 4 Pac. 809, to the same effect.
In the opinion in the Teissedre case, supra, the case of State v. Volmer, 6 Kan. 371, was cited. That was a prosecution for a violation of section 3 of chapter 35 of the General Statutes of 1868. The language of that section is as follows:
“Any person, without taking out and having a license as grocer, dramshop keeper or tavern keeper, who shall, directly or indirectly, sell any spirituous, vinous or fermented or other intoxicating liquors . . .”
It will be noted that this act says “spirituous, vinous, fermented or other intoxicating liquors.” The proof was of a sale of “lager beer.” The court said:
“Under the statutes of this state all fermented liquor is presumed to be intoxicating. If the defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of the law by evidence.”
It will be seen that this early in the history of regulating the liquor traffic, the uniform judicial interpretation was that what was sought to be regulated at first and what was later forbidden was traffic in liquor that was intoxicating as a matter of fact.
As far as the question we are considering is concerned, a comparison of section 13 of chapter 35 of the General Statutes of 1868, with section 1 of chapter 128 of the Session Laws for 1881, and an examination of the cases interpreting them, will show that the addition of the word “malt” to the language in the act of 1881 did not bring any liquor within the act that would not have been in it if the language of the act of 1868 had been used.
The act of 1881 was interpreted for the first time in the Intoxicating Liquor Cases, 25 Kan. 751. The question there considered in the main was whether certain toilet preparations came within the act and whether the act covered certain preparations which the court denominated “bitters, cordials, tonics, et cetera.” The opinion was written by Justice Brewer, and the language used by him could hardly be improved upon. The opinion said:
“Now the cases before us group themselves into three classes; and the same division is far-reaching and of general application. The first embraces what are generally and popularly known as intoxicating liquors, unmixed with any other substances. Thus in one case the sale of brandy is charged. The second includes articles equally well known, standard articles, and which, while containing alcohol, are never classed as intoxicating beverages. Their uses are culinary, medical, or for the toilet. They are named in the United States dispensatory and other similar standard authorities; the formuke for their preparation are there given; their uses and character are as well recognized and known by their names as those of a horse, a spade or an arithmetic. The possibility of a different and occasional use does not change their recognized and established character. A particular spade may be fixed up for a parlor ornament, but the spade does not belong there. So, essence of lemon may contain enough alcohol to produce intoxication — more alcohol proportionately than many kinds of wine or beer. It is possible that a man may get drunk upon it, but it is not intoxicating liquor. Bay rum, cologne, paregoric, tinctures generally, all contain alcohol, but in no fair or reasonable sense are they intoxicating liquors or mixtures thereof. The third class-embraces compounds —preparations—in which the alcoholic stimulant is present, which are not of established name and character, which are not found in the United States dispensatory, or other like standard authorities, and which may be purely medicinal in their purpose and effect, or mere substitutes for the usual intoxicating beverages. If not intoxicating liquors, they may be ‘mixtures thereof’ within the scope of the statute. Here belong many of the patent medicines — the bitters, cordials, and tonics of the day. Here also are such compounds as that charged in one of the informations before us — a compound of whisky, tolu, and wild cherry.
“Now, in reference to these several classes, we think these rules may be laid down: The first class is within and the second class without the statute; and the court, as a matter of law, may so declare. It is unnecessary, in charging the sale of whisky or brandy, etc., to allege that it will produce intoxication; nor will it bring the sale of essence of lemon within the statute to allege that such essence will produce intoxication. The courts will take judicial notice of the uses and character of these articles. You need not prove what bread is, or for what purposes it is used. No more need you in respect to whisky or gin on the one hand, or cologne or bay rum on the other. They are all articles of established name and character. In reference to the third class, the question is one of fact, and must be referred to a jury. If the compound or preparation be such that the distinctive character'and effect of intoxicating liquor are gone, that its use as an intoxicating beverage is practically impossible by reason of the other ingredients, it is not within the statute.” (p. 766.)
It was this language that gave rise to the division of the liquors upon which the statute operates into three classes. What is more interesting to us, however, are the statements made throughout the opinion, some of which read:
“Now, what was the evil sought to be remedied by this statute, and the constitutional amendment of which it was an outgrowth? It was the use of intoxicating liquors as a beverage.”
“The use of intoxicating liquors as a beverage was the evil, and the statute must be read in the light thereof. It is intended to put a stop to such use, and limit the use to the necessities of medicine.”
“The courts may not say as a matter of law that the presence of a certain per cent of alcohol brings the compound within the prohibition, or that any particular ingredient does or does not destroy the intoxicating influence of the alcohol, or prevent it from ever becoming an intoxicating beverage.” (pp. 764, 766, 768.)
It would seem that this case leads to the conclusion that the prohibitory law when passed was intended to place a ban on traffic in beverages that were intoxicating as a matter of fact. With this picture in our minds of what the courts thought about the law when it was first enacted and put into effect, let us examine the march of events as the decisions of this court have recorded it. The court had the question before it in the case of City of Topeka v. Zufall, 40 Kan. 47, 19 Pac. 359. This was a prosecution for a violation of a city ordinance against the sale of intoxicating liquor. The following instruction was given:
“There has been some. evidence tending to prove that the liquor called peach cider taken away from the defendant’s place of business, about the time of the defendant’s arrest in this case, contained about six per cent of alcohol. This evidence is competent to be considered with the other evidence in the case for the purpose of enabling the jury to determine whether the liquor called peach cider contained alcohol sufficient to produce intoxication when used as a beverage. I however instruct you that if you find from the evidence, beyond a reasonable doubt, that the liquor sold by defendant to Stone (if you find any such liquor was sold to him by defendant) contained six per cent of alcohol, then I instruct you that such liquor or fluid is intoxicating within the meaning of this ordinance.” (p. 48.)
The instruction was held bad and the following language was used:
“Can the instruction be justified on the theory that the presence of a certain per cent of alcohol makes the compound intoxicating, and that the per cent is within the common knowledge? There are a few general considerations and established propositions that seem to negative such a claim, and among them are the following: That the courts of this country will take judicial notice of all facts of common knowledge, is a rule which has the authority of Greenleaf and all other text-writers on the law of evidence, and is to be often found in the reported cases; but what are facts of common knowledge is often difficult of solution, because they are of such variety and diversity, and from this cause it may be safely said that there is no general rule yet established which governs all phases of the subject.” (p. 49.)
That opinion was written in 1888. In 1890 the same question was before this court in State v. Schaefer, 44 Kan. 90, 24 Pac. 92. That case involved a sale of hard cider. There was evidence as to the amount of alcohol in the cider in question. The defense was that it was not intoxicating. The court said:
“Hard cider is cider excessively fermented; and, therefore, presumptively, hard cider is not only a fermented liquor, but intoxicating. Whatever is generally and popularly known as intoxicating liquor may be so declared as a matter of law by the courts. Under the statute, all fermented liquor is presumed to be intoxicating; and if a defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of law by evidence.” (p. 94.)
To the same effect and written about the same time is State v. McLafferty, 47 Kan. 140, 27 Pac. 843; and State v. Lindgrove, 1 Kan. App. 51.
In 1893 the question was again before this court in State v. May, 52 Kan. 53, 34 Pac. 407. The evidence in that case was that defendant sold “hop tea” and “B. B.” in bottles. The court gave the jury the following instruction:
“4. There is no dispute in this case but that the defendant sold bottles of liquor called ‘hop tea’ and ‘B. B.,’ and the question for the jury to determine in this case is, whether or not the liquors so sold were intoxicating liquors.
“5. I instruct you that the statute makes spirituous, malt, vinous and fermented liquors intoxicating; and if you believe from the evidence in this case, beyond a reasonable doubt, that the said liquors known as ‘hop tea’ and ‘B.B.’ are either spirituous, malt, vinous or fermented liquors, it is your duty to find such liquors intoxicating, whether they produce actual drunkenness or not.
“6. Beer is a malt liquor, and intoxicating within the meaning of the law; and if you believe from the evidence, beyond a reasonable doubt, that the liquors sold were made from beer and water, the principal part thereof being beer, or enough beer used to cause an infusion of malt into the liquor sold, and so much so that the said liquor becomes a malt liquor, it is your duty to find that it is an intoxicating liquor, within the meaning of the law.” (p. 54.)
The court held the instruction to be erroneous and said:
“These instructions do not correctly state the law. The statute does not make any liquor intoxicating, but prescribes the punishment for the sale of those that are really so. The presence of malt in any compound does not necessarily make it an intoxicating liquor at all. It is not the presence or absence of any one particular ingredient that brings the compound within the prohibition of the statute, as was said by this court in Intoxicating Liquor Cases, 25 Kan. 767:
. . . . . . . . . . . .
“If the article sold was beer, it was not incumbent on the state in the first instance to show that it was intoxicating; but the defendant had a right to show, if he could, that it was not intoxicating. If it was not beer, or any other liquor presumed to be intoxicating, it was incumbent on the state to show in the first instance the intoxicating qualities of the liquor sold.” (pp. 55, 56.)
In 1897 the court of appeals dealt with this question in City of Fontana v. Grant, 6 Kan. App. 462. The city of Fontana had passed an ordinance in which the following paragraph appeared:
“It shall be unlawful for any person, within the corporate limits of the city of Fontana, Kan., to sell or barter hop tea, hop tonic, hop tea tonic, or any other liquors containing alcohol in insufficient quantities to intoxicate and commonly used as a beverage.” (p. 462.)
It will be noted thafthe ordinance forbids the sale of malt liquor regardless of whether it was intoxicating. The court held that the city received its authority to regulate such things from the legislature ; that the legislature did not have power to forbid the sale of nonintoxicating beverages. Hence, the city should not do so.
There never was in this state a more untiring and zealous advocate of prohibition than the late lamented John Marshall. Among his outstanding contributions to the cause of prohibitory-law enforce ment was a book he wrote in 1912. It was a compilation and instructive commentary upon prohibition in Kansas. He had this to say about the question with which we are dealing:
“Beer is presumed to be intoxicating. (State v. May, 52 Kan. 53, 34 Pac. 407; State v. Teissedre, 30 Kan. 476, 2 Pac. 650; State v. Jenkins, 32 Kan. 477, 4 Pac. 809.) And in the absence of evidence to the contrary, it will always be presumed to be intoxicating liquor. (State v. Teissedre, 30 Kan. 476, 2 Pac. 650.) This presumption may be overcome by evidence.” (See Marshall’s Kansas Intoxicating Liquors Laws, p. 228.)
The next outstanding pronouncement on this question is State v. Miller, 92 Kan. 994, 142 Pac. 979. The state argues in this case that the opinion in State v. Miller sustains its position because it holds that the classification of liquors as laid down in Intoxicating Liquor Cases, 25 Kan. 751, was abrogated by the act of 1909 heretofore cited. The actions in the Miller case were brought to restrain defendants from maintaining liquor nuisances. The evidence was that the defendants were making and selling Jamaica ginger, and that this was being widely used as an intoxicating liquor. That is, people were buying it and getting drunk on it. The court pointed out that in the Intoxicating Liquor Cases the court had held that such tinctures belonged in what that opinion designated as the second class of liquors, which the statute did not cover. It then held that Jamaica ginger was.included in the words in the act as follows: “spirituous, vinous or fermented liquor.” The language upon which the state relies is as follows:
“Liquors belonging to the first class there described, such as whisky, brandy, gin, wine, beer, and the like, are still to be construed to be intoxicating.” (p. 1004.)
However, the court, in the Miller case, was not discussing the question we have here. The defendant in that case was asking the court to overlook what everybody knew — that is, that Jamaica ginger was commonly sold and used as an intoxicating liquor, just because in 1881, some thirty years previously, the court had predicted that tinctures such as Jamaica ginger would never be used as beverages. The court refused to do this and simply held that plain whisky, brandy, gin, wine or beer or other spirituous, malt, vinous or fermented liquors of the kind specifically mentioned in the statute shall be construed and held to be intoxicating. At the time that opinion was written the beer commonly sold was intoxicating, and every grown person knew it. That opinion, however, could not be cited as an authority that a defendant charged with selling beer could not offer evidence to prove that what he sold was not intoxicating.
In State v. Trione, 97 Kan. 365, 155 Pac. 29, this question was considered. It was a liquor injunction case. The defendant argued that the evidence was not sufficient to sustain a finding that what was sold was intoxicating. Witnesses testified that it looked like beer, tasted like beer, and the witness believed it was beer. The court held that the evidence was sufficient. Justice Marshall, speaking for the court, said:
“This was sufficient to justify the court in finding it was an intoxicating liquor under the law of this state. Malt liquors are presumed to be intoxicating.” (p. 366.)
In State v. Walbridge, 123 Kan. 386, 255 Pac. 83, the court again passed on this question.' The argument was that the evidence was not sufficient to prove that the liquor which defendant had in his possession was intoxicating. The court said:
“The statute provides that malt fermented liquor shall be presumed to be intoxicating. (R. S. 21-2109, 21-2101.) The liquor which defendants made was malt fermented liquor, one sample contained more than five per cent grain alcohol, and when the undersheriff asked Walbridge what he had been making he said he had been making beer for his own use.” (p. 386.)
The state cites and relies upon City of Topeka v. Heberling, 134 Kan. 330, 5 P. 2d 816. That was a prosecution for having home brew in possession. The particular batch of home brew that was found tested 4.9 per cent alcohol. The defendant argued that this liquor was not intoxicating when seized, because it had just been made, but became so afterwards.
The point relied upon for reversal was the following instruction:
“A liquid such as that offered in evidence in this case, and called ‘home brew,’ is an intoxicating liquor within the meaning of the city ordinance when it may be taken in sufficient quantity to produce intoxication, when used as a beverage. Such a liquid, when containing three or more per cent of alcohol, would be considered as intoxicating. You will bear in mind that one of the claims of the defendant is that the ‘home brew,’ when taken possession of by the officers, was not intoxicating, but if intoxicating at all at any time, became so after the same was taken from the possession of the defendant. If, therefore, you find that the ‘home brew’ was not intoxicating at the time seized by the officers, although it became so afterwards, then you would have to find the defendant not guilty.” (p. 330.)
The state calls special attention to the following language: “Such a liquid, when containing three or more per cent of alcohol, would be considered as intoxicating.”
This sentence should be considered in connection with the sentence just preceding it, as follows:
“A liquid such as that offered in evidence in this case, and called ‘home brew,’ is an intoxicating liquor within the meaning of the city ordinance when it may be taken in sufficient quantity to produce intoxication, when used as a beverage.”
It was not intended by the district court or by this court to fix a percentage standard for determining intoxicating quality without regard to fact. What the sentence meant was that, for the purposes of the case on trial, such a liquid, when containing three or more per cent of alcohol, would be considered — that is, presumed — to be intoxicating, in the absence of proof to the contrary.
We have concluded after an examination of the authorities here cited' — an examination that has taken us through the history of prohibition in this state' — that what the legislature had in mind when it started in to regulate dramshops in 1868 and when it enacted the prohibitory law of 1881 was first, the regulation, and, eventually, the prohibition, of trafile in liquor that was intoxicating as a matter of fact. Many cases have been cited wherein it has been held that beer was presumed to be intoxicating, but never one that has held that this presumption 'could not be contradicted by evidence. Throughout the years this has been the law as announced by this court. It has been seen that the question was squarely passed on by this court when it was held that the instructions which took this question of fact from the jury were erroneous. Had the legislature been dissatisfied with that interpretation of the statute it would have been changed before this. The .matter could have been settled by the legislature providing just what per cent of alcoholic content would render a beverage intoxicating. The legislature could easily have provided that any malt liquor should not be sold regardless of whether it was intoxicating. Neither has been done.
What has been said in this opinion must not be construed as being a holding that 3.2 beer may be sold in this state. It may very well be that the trier of the facts will hear evidence as to the alcoholic content of the beer and then will hear other evidence as to whether or not it is intoxicating and will determine, as a conclusion of fact, the beer offered in evidence is intoxicating. To determine that question of fact is the duty of the trier of the facts.
All this opinion holds is that in a prosecution for the sale of beer, or in an action to enjoin the maintenance of a liquor nuisance on account of the sale of beer, the defendant has a right to introduce evidence tending to prove that what he sold was not intoxicating as a matter of fact.
The judgment of the trial court is reversed with directions to grant the defendant a new trial in accordance with the views herein expressed. It is so ordered. | [
-15,
-18,
-4,
-98,
42,
112,
56,
-97,
67,
-89,
-9,
19,
-23,
82,
21,
57,
-85,
93,
85,
122,
-46,
-90,
23,
65,
-42,
-5,
-38,
-41,
-79,
79,
68,
-12,
12,
-76,
66,
-11,
118,
-38,
-63,
-98,
-114,
5,
57,
-23,
113,
16,
56,
107,
118,
75,
97,
-113,
-25,
44,
28,
-53,
41,
44,
73,
61,
-32,
-72,
-112,
-115,
77,
6,
33,
18,
-120,
-57,
-40,
26,
-104,
49,
-119,
-24,
115,
-76,
2,
-76,
15,
-71,
-92,
98,
98,
-96,
49,
-21,
-24,
-72,
47,
-1,
-99,
-92,
-47,
88,
66,
-32,
-68,
-99,
52,
16,
-122,
90,
-17,
85,
-39,
124,
6,
-62,
-26,
-77,
-125,
56,
-124,
23,
-53,
-89,
48,
117,
-45,
92,
94,
-59,
112,
25,
-50,
-44
] |
The opinion of the court was delivered by
Busch, J.:
The proceeding was one by motion to offset one judgment against another. The relief prayed for was denied, and the moving party appeals.
Bouchey sued Gillilan, as sheriff, for wrongful seizure of Bouchey’s property on a writ directing seizure of property of another. Bouchey prevailed, and on September 4, 1930, judgment was rendered in his favor against the sheriff for $469. On appeal to this court judgment was reversed for determination of a single issue of fact and rendition of judgment accordingly. (Bouchey v. Gillilan, 134 Kan. 29, 4 P. 2d 412.) Gillilan paid costs in this court to the amount of $99.70. At the second trial Bouchey again prevailed, and on April 2, 1932, judgment was again rendered in his favor for $469.
On the day the first judgment was rendered Bouchey’s attorney perfected an attorney’s lien for $200. The notice of lien reads:
"In the District Court of Rooks County, Kansas.
“Al Bouchey, Plaintiff, v. A. C. Gillilan, Defendant.
“Comes now F. E. Young and notifies the court and all officers of said court and all others who may be interested in said cause, that he claims a lien upon the judgment rendered in favor of the plaintiff in the sum of $200, same being the attorney’s fee owing to him by the judgment creditor therein.
“F. E. Young, Claimant.”
Immediately on rendition of the judgment Bouchey assigned it to Lid Anderson, subject to the attorney’s lien, to apply on a debt to Anderson of $400.
On September 14, 1930, Mermis and Schwaller recovered a judgment against Bouchey for $5,084. Just before the second judgment was„rendered against Gillilan in Bouchey’s favor, the Mermis and Schwaller judgment was assigned to Gillilan. After the second judgment was rendered against Gillilan in favor of Bouchey, Gillilan filed a motion alleging Bouchey was insolvent, and praying that the costs paid by Gillilan in the appeal to this court, and the Mermis and Schwaller judgment, should be offset against Bouchey’s judgment for $469. The court offset the cost item in the sum of $99.70, and nobody complains of that. The court allowed the lien of Bouchey’s attorney in the sum of $200, and Gillilan complains. The court also allowed Anderson a lien in the sum of $400, and Gillilan complains.
Gillilan contends the attorney's lien was not supported by sufficient evidence, apparently because a lien was claimed on the first judgment. The statute gives the lien. The statute gives the lien from time of service of notice of lien. The statute gives the lien on money due the client in any action or proceeding in which the attorney was employed. (R. S. 7-108.) The notice of lien is not to be technically construed. All that is necessary is that the adverse party may have sufficient information that he may protect himself. (Carter v. McPherson, 104 Kan. 59,177 Pac. 533.) In this instance the notice given was sufficient for that purpose.
When the appeal was taken from the judgment referred to in the notice, the action did not abate. When the judgment was reversed, and a partial new trial was had, the action was the same action as before. The sum of $469 was due the client all the time, as was established by the second judgment, and the attorney’s lien continued to exist from the time notice was given.
Since the attorney’s lien was in existence before the Mermis and Schwaller judgment was rendered, and long before it was assigned to Gillilan, the lien could not be superseded or defeated by the proceeding to offset judgments:
After the court offset the cost item and allowed the attorney’s lien, there remained a portion of Bouchey’s judgment against Gillilan in the sum of $169.30. Gillilan contends the Mermis and Schwaller judgment assigned to him should be applied in payment of that sum. There are two answers to the contention.
The evidence disclosed Gillilan is not the beneficial assignee of the Mermis and Schwaller judgment. He paid nothing for it, and knew nothing about how the assignment came to be made except what he was told. As a matter of fact, the surety on a bond given to indemnify Gillilan as sheriff for making the wrongful levy, paid $25 to have the judgment assigned to Gillilan. It is too well known to require citation of authority that a proceeding to offset judgments, whether by motion or action, is equitable in character. Equity looks through form to substance, and in this instance the sole party to be benefited by the assignment was an outsider, the surety whom the sheriff could call upon to pay the judgment for damages for wrongful levy.
The second answer to Gillilan’s contention is that when the first judgment in favor of Bouehey was rendered, it was assigned to Anderson. True, the assignment specified the judgment, but the intention of the parties prevails, and the manifest intention was that Anderson should have the benefit of Bouchey’s claim against Gillilan. Gillilan .contends Bouchey’s claim was one for damages for tort, and such a claim is not assignable. The contention is unsound. The claim was one for injury to Bouchey’s estate, the wrongful taking of his personal property, and such a claim is assignable. (5 C. J. 890.)
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
-16,
-24,
-7,
125,
10,
64,
42,
-118,
113,
-93,
49,
83,
-21,
-47,
1,
109,
-29,
93,
117,
104,
-9,
-73,
23,
-119,
-46,
-78,
-45,
-43,
-67,
-51,
-12,
-41,
76,
32,
-126,
-107,
-25,
-54,
-123,
84,
-114,
4,
57,
-4,
-35,
41,
48,
122,
22,
11,
113,
-66,
-13,
42,
24,
74,
104,
44,
127,
-67,
88,
-80,
-13,
-123,
125,
20,
16,
0,
-104,
71,
80,
25,
-100,
53,
17,
-32,
114,
-90,
7,
-11,
1,
25,
12,
118,
99,
33,
21,
-17,
-32,
-72,
46,
-65,
-107,
-90,
-110,
84,
10,
9,
-74,
-103,
116,
2,
7,
-16,
-18,
-107,
61,
44,
3,
-53,
-76,
-109,
-113,
52,
-108,
31,
-45,
-125,
52,
97,
-51,
-58,
92,
71,
122,
-69,
-98,
-43
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action for divorce. Plaintiff prevailed, and defendant brings the case here for review.
It appears that these litigants were married in 1924. Plaintiff was a Rice county farmer. It was defendant’s fourth matrimonial adventure, and it soon showed signs of an early breakdown. Defendant left her husband in 1927, and a property settlement was effected between the parties whereby plaintiff paid defendant $500. After living apart for a year and a half they effected a reconciliation. Plaintiff bought a small house in Sterling for $675 and furnished it, so they might have a city home as well as the farm house in the country. Title to the town house was taken in the names of both parties. However, marital discord soon reappeared; defendant left a second time; and in 1930 she brought suit for a divorce and alimony and division of property. This cause was tried to a conclusion in April, 1931. The court denied a divorce and made a property settlement between the parties, taking into consideration the $500 plaintiff had already paid defendant in their private settlement of 1926. The court awarded.her an additional $200, a share of the household goods, and $50 as attorney’s fee. All other property, including the small house in Sterling which stood in the names of both' parties, and which had cost about $675, was separately decreed to him. Mrs. Williams, plaintiff in that action and defendant herein, did. not appeal from that judgment and accepted the $200 award allowed her by that judgment.
In this action the husband took the initiative. He charged defendant with extreme cruelty, and that she had withheld possession of the house in Sterling which had been decreed to him by the judgment of April, 1931.
Defendant answered with a general denial and cross petition in which she charged plaintiff with various marital delinquencies and alleged that the judgment of April, 1931, which had decreed a final property settlement between the parties, was procured by fraud. ■
The cause was tried in the same court and before the same judge as in the prior case. The record of the prior case was introduced in evidence. The parties adduced evidence at length. The trial court filed a written opinion, finding all the issues in favor of plaintiff, and finding specifically that no fraud had inhered in the earlier judgment, and that defendant had accepted and retained the money and chattel property awarded by its terms, and was bound by it.
Judgment was entered awarding a divorce to the plaintiff, and defendant appeals.
Having set down as briefly as possible the controlling features of this action and of the prior litigation, it should be obvious that this appeal presents practically nothing this court can lay hold of. Noting, however, the matters discussed in defendant’s brief, the point is urged that she was badly advised by her counsel in the first case, who had told her she had no further recourse, and who did not file a motion for a new trial in that case nor appeal. But it does not appear that she was badly advised. Mayhap the advice was excellent, and that neither a motion for a new trial nor an appeal would have done her any good. Be that as it may, a judgment unappealed is just as conclusive as one affirmed on appeal.
In her brief she discusses the matter of fraud, which she contends inhered in the first judgment. To that there are two answers. If there was fraud, it was intrinsic, and could only be corrected in that case or by supplementary proceedings pertaining thereto. (Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306.) In Putnam v. Putnam, 126 Kan. 479, 268 Pac. 797, it was said:
"Where the court in the original case denied the divorce but divided the property after hearing evidence as to its existence, extent and value, any concealment of property by the defendant from the plaintiff and the court prior to and at the time of the trial, if it amounted to fraud, would be intrinsic fraud.” (Syl. ¶ 3.)
The second answer to defendant’s contention is that she is foreclosed by the trial court’s pertinent finding of fact which, in part, reads:
“In the first place, the court finds no fraud was practiced by the defendant upon the court in case No. 6090.”
It is also contended that in the first action the court had no power to deprive her of her interest in the jointly owned Sterling house. A careful scrutiny of the statute, however, will show the fallacy of that contention. Indeed the court’s power to apportion and divide the property of discordant spouses is broader, in some respects, when a divorce is refused than it is where it is granted on account of the fault or aggression of the wife. (Compare R. S. 60-1506 with R. S. 60-1511.) R. S. 60-1506 provides:
“. . . .In any other [divorce] case where a divorce is refused, the court may for good cause shown make such order as may be proper . . . for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties, and in such case the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other.”
Defendant also complains because she was given no share of plaintiff's property by the present judgment. But the property rights of the parties were determined conclusively and for all time in the first action, and the court in the present action had no concern therewith, especially as defendant acquiesced in the first judgment and failed entirely in this action to support her charge that there was any fraud, intrinsic or extrinsic, in the first judgment.
Nothing approaching the semblance of error in the record is made to appear, and the judgment is therefore affirmed.
Hutchison, J., not sitting. | [
-79,
104,
-104,
111,
10,
96,
42,
-36,
114,
-95,
-95,
87,
-95,
67,
24,
105,
50,
109,
69,
104,
-41,
-77,
23,
-94,
-14,
-13,
-47,
-35,
-71,
-35,
-12,
-41,
76,
32,
-62,
-35,
102,
-62,
-123,
84,
-58,
-110,
-71,
108,
-35,
66,
52,
123,
66,
9,
85,
-114,
-13,
44,
61,
95,
104,
45,
-53,
57,
-48,
-95,
6,
13,
111,
6,
-79,
38,
-98,
69,
-56,
14,
-104,
53,
0,
-23,
115,
-90,
22,
116,
109,
-101,
8,
100,
102,
1,
69,
-17,
-40,
-104,
38,
122,
-115,
-89,
-112,
88,
-118,
72,
-68,
-99,
125,
80,
-121,
116,
-20,
29,
57,
108,
15,
-113,
-106,
-79,
-115,
58,
-104,
27,
-29,
-29,
48,
113,
-51,
-94,
77,
6,
57,
-69,
-121,
-98
] |
The opinion of the court was delivered by
Johnston, C. J.:
'This action was brought by Arthur Worley, administrator of the estate of Wilbur Davis, deceased, against the Kansas Electric Power Company to recover damages for the death of Davis, who'was killed by coming in contact with a high-tension transmission line owned and operated by the defendant. At a trial with a jury a verdict was returned finding that the defendant was negligent and liable for the death of Davis, and the damages found were fixed at $7,200. The following special findings were returned by the jury:
“1. Was the line as originally built by the three cities (Admire, Allen and Bushong) in conformity with the rules and regulations and standards required by the public service commission of the state of Kansas? A. No.
“2. After the defendant took over the line above referred to did it maintain it in accordance with the rules and regulations of the public service commission? A. No.
“3. Is it customary amongst those companies engaged in the business to attempt to insulate wires exposed to the weather, carrying 13,000 volts or more? A. No.
“4. Is it reasonable or practicable to attempt to insulate such wires? A. No.
“5. Unanswered.
“6. When was the silo upon which deceased was standing at the time of the accident built? A. About two or three days prior to day Davis met his death.
“7. Did the defendant company have any knowledge or notice that the silo upon which deceased was standing at the time of his death had been erected? A. No.
“8. Was the deceased, when tramping the ensilage in close proximity to the wires of the defendant, exercising due care for his own safety? A. Yes.
“9. If you find that the defendant was guilty of negligence, state what act or acts constituted such negligence. A. (1) No warning signs of danger. (2) Wires not sufficiently taut to prevent undue sagging, according to standards of public service commission of Kansas.”
Defendant appeals and contends that negligence was not established by the evidence, and that its demurrer to plaintiff’s evidence, which was overruled, should have been sustained.
It contends, also, that there was error in the rejection of evidence offered by defendant and error in the instructions given to the jury, also error in refusing to set aside special findings of the jury, and that the findings of the jury, as made, failed to show negligence on the part of the defendant.
It appears that the power line was not originally built by the defendant. It had a central station at Emporia and a line to Americus. The towns of Bushong, Allen and Admire desired to obtain electric energy from defendant’s central station, and these towns contracted with defendant to furnish energy over a transmission line to be built by themselves. The extension line, which was about nineteen miles long, was built by the three towns, and the poles were thirty feet long, set five feet in the ground, and the line consisted of three steel wires carrying a current of 13,200 volts. Before the extension was built application had been made to the public utilities commission for permission to build the line, stating the plans and specifications upon which it was to be built, and the application was approved by the commission. Shortly after it was built the extension line was acquired by the defendant and was operated by it at the time that Davis was killed. The place of the accident was near the city of Allen, on a farm of 160 acres, bounded on the east and north by public highways, and the line in question ran east and west along the north edge of the farm. A tenant named Wheat, had rented the farm from the owner, and two or three days prior to the accident had constructed a silo near the power line.
The power line, it appears, was built according to plans submitted to the commission, except that it was built on the south side of the highway instead of the north side, as planned, and that the poles were planted on the adjoining farm instead of on the highway. The employee who laid out the line testified that he intended it to be in the highway. Although there is some dispute in the evidence as to how far it encroached on private property, there was testimony showing that the corner pole near the place of the accident was two feet and seven inches over the property line and on the farm, and that the cross-arm carrying the wires on the next pole extended 3.95 feet inside the property line. On the corner pole the wires were 24.7 feet from the ground, and on the next pole, which was 295 feet away from the corner pole, they were 23.3 feet from the ground. Between these poles there was a considerable sag of the wires. The silo was eighteen feet high and had been built within the property line and about two feet and two inches from the south wire. It appears that the extension line was built about six years before the accident, and shortly after it was built by the three towns named it was acquired by the defendant, and since that time and when the accident occurred it was operated by the defendant. The place of the accident was on the north edge of the farm, the line running east and west on the north edge of the farm. Jeff Wheat had rented the farm from the owner and had grown cane thereon for ensilage. He built the silo on the north side of the farm and, as stated, close to the power line, about two or three days prior to the accident.
It does not appear that the defendant had any notice of the building or location of the silo until after the accident. The day before the accident ensilage had been placed in the silo. Wheat, the tenant, had brought Davis from town to assist him in filling the silo. On the morning of the accident Davis went up on the top of the silo, which was nearly filled, and was tramping down the loose, damp cane which had been placed in the silo the previous day, and while doing so the accident occurred. No one saw him at the moment he was electrocuted. A witness near the silo said he heard Davis gasp and looked up and saw that he was stiff and was falling on the wires. Whether he touched the wires inadvertently or purposely, or had accidentally fallen against them, or had been shocked by his proximity to the wires without actual contact, was not shown by the evidence. There was testimony to the effect that electricity is a magnet, and that there is danger in going within three feet of a wire carrying a voltage of 13,200 volts. Some witnesses said there was danger when being within ten or twelve feet, especially if the person is standing on a damp footing. The ensilage on which Davis was walking was green and, necessarily, somewhat damp. There were no burns or bruises on the hands of Davis, but there were burns on his arm about two inches above the wrist, from which it is naturally inferred that he fell on the wires instead of grasping one of them with his hand.
Defendant’s principal contention is that the evidence does not establish negligence on its part. It is said that the line had been maintained for a period of six years on the place in which it was originally built, and it had never occurred to anyone that it was in a dangerous condition other than the inherent danger that exists in every power line; that it is not usual to insulate such wires in rural districts, and the jury has found that it is not customary among such companies to insulate their wires; that while the power line was on and over the farm, it had no reason to anticipate that anyone would erect a structure so close to the highway and to the power line as to endanger the lives or safety of persons working on such a structure; that it had no notice or knowledge that the silo had been built so close to the wires and that this was specifically found by the jury. So far as warning signs of danger are concerned, defendant contends that the line itself is a warning sign, and if there had been a warning sign, even on the nearest pole, it cannot be said that Davis would have seen it or that he would have been led to stay out of proximity to the wires. Further, it is said that it is not the practice of companies operating such lines to place notices of the fact that they are carrying high voltage and are dangerous, and so, it is urged, the defendant was not bound to anticipate that persons employed on the farm would come within the danger line of the wires, and hence it was not liable for the injury that resulted in the accident, and its demurrer to the evidence should have been sustained, and further that at the end its motion for a directed judgment and for a new trial should have been sustained.
The evidence shows clearly enough that the line was over on the farm. The defendant had authority to build the line in the highway but never was granted power to build over the farm. Although defendant may not have known that the line was built outside of the highway and on private property, it was, nevertheless, a trespasser. It is true that the line had been there six years, apparently without complaint, but it was incumbent on the defendant to ascertain the location of its wires and to maintain them so as not to interfere with the use of private property over which it was built. While the tenant may have been unwise in building his silo so close to the power line, he had the right to the use of the property up to the boundary line. He testified that he did not know that the silo was so close as to be within the danger zone. He knew that the wires carried electricity, and states that he would not have built it so close if he had known of the danger. It is true that the day before the accident his nephew received a shock when he touched a wire. However, it was not Wheat that was injured, and there is no evidence that Davis, the victim, knew that the wires were carrying 13,200 volts or that proximity to them was dangerous, and, besides, it is not claimed that he was guilty of contributory negligence or even knew that the wires were other than telephone wires carrying a current free from danger by reason of proximity to them. There were no tags or notices on the line warning him or anyone else, unacquainted with the fact, that they carried a high and deadly voltage. As stated, the jury found that the lack of warning signs was one ground of negligence which it attributed to the defendant. The defendant’s claim that it was not usually done in rural districts is no excuse or release from liability, if it was necessary for the protection of the public or abutting owners or their employees, especially those not familiar with electricity and the danger of electric wires bearing a high voltage.
Where a company has built a power line which extends over private property and is carrying a killing voltage, it is its duty to exercise the highest degree of care that it shall not injure owners of the property or their employees lawfully engaged in the use of the property, and who may not have knowledge of the danger. We think it is not an unreasonable requirement that such a company should place warning signs of danger for the protection of those coming within the danger zone. Such warnings might have saved the life of Davis. Under the facts of the case and the well-recognized rule of the high degree of care required of those transmitting so dangerous a force, we cannot hold that the placing of warning signs was an unreasonable requirement nor that the failure to place them did not amount to negligence on the part of the defendant.
Another ground of negligence found by the jury was the allowance of the undue sagging of the wires. There was a span of about 290 feet between the corner pole and the one next in the line, and the evidence was that the normal sag in such a span would be about forty inches. The silo, as stated, was about fifty feet from the comer pole, and at that point the normal sag would be about fourteen inches. The silo was eighteen feet high, and the testimony is that the sagged wire was about two feet above the top of the silo. Davis was about five feet six inches tall, and his head was about two feet above the wire, and the wire about opposite Davis’ hips. Under defendant’s evidence the required height would be about twenty-two feet nine inches. If the wire had been taut and placed where -it should have been, it would have been twenty-three feet high at the silo and about two feet above Davis’ head, and the jury has determined that there was negligence of the defendant in not keeping the wires sufficiently taut to prevent undue sagging, and if it had been sufficiently taut Davis would have escaped the injury.
The question of whether there was undue sagging of the wire and that it contributed to the injury of Davis was one for the determination of the jury. In Interstate Power Co. v. Thomas, 51 F. 2d 964, a-sagging-wire case, where the wire was suspended over a highway and in which it was held to be the duty of the company to exercise the highest degree of care, in speaking of the care the court quoted with approval the rule that—
“ ‘Those engaged in transmitting such a dangerous force as electricity, which gives no warning of its presence and is not apparent to the senses, are required to exercise a degree of care in constructing and maintaining the wires over which it is transmitted commensurate with the danger to be apprehended from contact with such wires or the escape of electricity therefrom; but they are not insurers against accidents or injuries.’ (Bunten v. Eastern Minn. Power Co., 178 Minn. 604.)” (p.967.)
And, also, quoting from Joyce on Electric Law, section 445:
“ ‘A company maintaining electric wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury.’ ” (p.967.)
In Logan v. Electric Co., 99 Kan. 381, 161 Pac. 659, where there was suspended a low wire over a highway, by which a person in attempting to move a house under the wire was killed by contact with a high-tension wire, it was held that the company should have anticipated the moving of buildings along the highway and have elevated the high-voltage wire to an extent that would not interfere with the lawful use of the highway. In that case it was further held that the impracticability of insulating the wires carrying more than 6,000 volts of electricity, .and the expense of making it safe, would not excuse the failure of the defendant nor preclude the plaintiff from recovering damages for the injury and loss. (See, also, Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197.)
In the Walmsley case a person was riding on a wagon along a road and had a loaded gun and other articles thereon. A low telephone wire caught the load, upset the wagon and discharged the gun, with the result that the bullet struck the driver. In considering the matter of probable cause and what the defendant should have reasonably anticipated, it was said:
“Damage of some sort was natural and probable, almost inevitable. That somebody would be shot through defendant’s negligence would not have been anticipated. But the law does not say that if the particular injury arising from the negligence cannot be anticipated a recovery cannot be had. That some damage, some injury, would probably arise from the existing negligence, and that it could reasonably have been expected, is all that the law requires to justify a recovery.” (p. 143.)
An examination of the facts and circumstances disclosed in the record leads us to the opinion that the grounds of negligence found by the jury were sufficiently sustained by the evidence, and that there was no error in denying defendant’s demurrer to plaintiff’s evidence.
There is a complaint of the exclusion of a document of the public utilities commission, which, it is said, tended to show that the line was built in conformity with the requirements of the commission. The document might have been received in evidence on general principles, but the matter of what was required was so fully brought out, as well as the manner of construction, that even if it should be classed as error it cannot be considered as material.
Some of the instructions of the court are criticised, but an examination of the same discloses that there is nothing in them of which the defendant has good reason to complain.
The conclusion of the court is that the judgment should be, and it is, affirmed. | [
-16,
104,
-72,
-97,
24,
-32,
58,
-40,
49,
-80,
-76,
83,
-117,
-55,
-99,
99,
-46,
125,
-48,
33,
100,
-77,
3,
-29,
-98,
-45,
-79,
-59,
-79,
94,
-12,
-34,
73,
32,
74,
21,
-26,
66,
69,
-34,
-50,
4,
-55,
-15,
-39,
32,
54,
125,
54,
-33,
81,
30,
-13,
42,
24,
-61,
73,
46,
123,
-84,
65,
-15,
-94,
-121,
125,
22,
50,
-122,
-98,
-89,
92,
60,
-40,
53,
8,
-20,
115,
-90,
-106,
-12,
97,
-119,
76,
-26,
99,
32,
29,
-17,
-20,
-120,
39,
-74,
-115,
-90,
14,
24,
-29,
7,
-98,
-99,
107,
116,
-121,
126,
-9,
93,
95,
108,
5,
-114,
-92,
-13,
-49,
100,
-110,
-98,
-53,
-95,
16,
101,
-35,
-94,
95,
7,
91,
31,
-49,
-98
] |
The opinion of the court was delivered by
Burch, J.;
These appeals present a single question; May the mayor and commissioners of a city of the first class having commission form of'government authorize by resolution a contract with a natural-gas company providing for purchase by the city of gas for its owii use, in its private, proprietary capacity, and granting the gas company privilege to use the streets and alleys to lay pipes to deliver the gas within the city?
The city owns an electric-light plant, and uses natural gas for fuel to operate the plant and to heat two city buildings, one of which houses the fire department. The city had a contract with the Independent Industrial Gas Company to supply gas. The contract-expired. Being .able to buy gas much cheaper of the Trinity Oil and Gas Company, the mayor and commissioners,: eptered into a contract with the Trinity company to supply gas for all the city’s requirements for five years. As a part of the contract-the Trinity company was given privilege to lay pipes in the streets and alleys for the purpose of delivering the gas: This was done pursuant to resolution, the same as had been done with the Independent company. Power of the city to contract by resolution instead of by ordinance was then questioned, and the county, attorney, using the' name - of the- state, brought an action of quo warranto for the purpose of settling the question.
The proceedings resulting in these appeals, and proceeding before. the public utilities commission resulting in a correct finding that the Trinity company is not a public-utility, need not be recited. It may be observed, however, that after work of installing the pipes was virtually completed, this court obtained jurisdiction and stayed the work. The stay order was subsequently vacated, the connections with the city plant and buildings have been made, and the city has been'taking gas from the'Trinity company.
The contract with the Trinity company contained- the following provision:
“The gas company is hereby granted the permission and a right of way, to extend its gas main into the city to said light plant, the city hall, the old city hall and fire department, and the right to use such streets, alleys and public places as may be necessary or convenient to lay its pipe line for that purpose, and in .consideration of such grant the gas company agrees to save the city harmless by reason of its operation in laying said pipe line, and agrees to restore the streets, alleys and public places so used in as good condition as they were before such use, and to save the city harmless from the presence or use of natural gas at any point up to the meter, provided that the meters are to be set outside the buildings.”
R. S. 66-133 was pleaded by the state. That section of the statutes relates to contract of a city with a public utility or common carrier, .and the Trinity company is neither. It is a producer of natural gas having one customer only, the city of Coffeyville. It is not engaged in general commercial distribution of natural gas, and it does not have a pipe line long enough to bring it within the statutory definition'of a public utility. (R. S. 66-104.)
The state pleaded R. S. 13-2801 relating to franchises. The section begins as follows:
“The board of commissioners of any city governed and controlled by the provisions of this act may permit any person, firm or corporation to manufacture, sell and furnish artificial or natural gas, light and heat, electric light, power or heat, or steam heat to the inhabitants, and to build street railways, to be operated over and along the streets and public grounds of such city, and may permit the construction -and operation of telegraph and telephone lines, and the laying of pipes, conduits, cables, and all appliances necessary for the construction and operation of gas and electric-light and steam-heat plants and electric railways over and along the streets and alleys of such city, upon the express conditions hereinafter imposed, and not otherwise, in this act, to wit:
“First. All contracts granting or giving any such original franchise, right, or privilege, or extending or renewing or amending any existing grant, right, privilege, or franchise, '-shall be made by ordinance, and not otherwise.”
Subdivision second of the section limits grants to not more than twenty years. Subdivision third prohibits exclusive grants. Subdivision fourth provides for fixing schedules of rates to be charged to the city and its inhabitants. Subdivision fifth provides for adequate compensation or consideration to be paid to the city for a franchise. Subdivision sixth provides that a franchise ordinance must be read in full at three regular meetings of the board of commissioners; must be published after final passage once a week for three weeks; and shall not take effect until sixty days after final passage. It then contains provisions for a referendum to determine whether the ordinance shall become effective. Subdivision seventh reads as follows:
“All contracts, grants, rights, privileges or franchises for the use of the streets and alleys of such city, not herein mentioned, shall be governed by all the provisions of this act, and all amendments, extensions or enlargements of any contract, right, privilege or franchise previously granted to any person, firm or corporation for the use of the streets and alleys of such city shall be subject to all the conditions herein provided for in this act for the making of original grants and franchises: Provided, however, That the provisions of this section shall not apply to the granting of side-track or switch privileges to railway companies for the purpose of reaching and affording railway connections and switch privileges to the owners or users of any industrial plants.” (R. S. 13-2801.)
It is perfectly plain that the first part of this section relates to grants of privilege to use streets and alleys in connection with some service to the inhabitants of the city, as by furnishing them with artificial or natural gas, with electric current, with transportation facilities, and with facilities for communication. Privilege to serve the public is the subject of the grant, and use of streets and alleys for construction and maintenance of appliances necessary to furnish the service is merely an incident to that subject. In granting such privileges the city acts through its mayor and commissioners in its public, governmental capacity. In this instance the city acted through its mayor and commissioners in its private, corporate capacity to make contracts necessary to execution of its administrative powers. (R. S. 12-101.) What the city did was to buy gas, .just as it might buy coal, and as an incident to delivery of the fuel it authorized the piping of the gas to the meters at the city light plant and city buildings. The distinction between exercise of public, governmental power, and private, administrative power, has been drawn so often it is not necessary to do so again.
Corporate action of a public, governmental character must be by ordinance. Ordinary administrative contracts may be authorized by resolution unless the legislature forbids. The requirement of an ordinance in the first subdivision of R. S. 13-2801 does not apply, and there is no prohibition against making a contract of the character finder consideration by resolution.
The state urges that subdivision seventh closes the door against all grants of use of streets except by ordinance.
Subdivision seventh in effect declares that if the previous enumeration of grants for use of streets is not complete, other grants shall be subject to all the conditions attending grants for the enumerated purposes. That must necessarily mean if the conditions are appropriate. To be appropriate, the purpose must be of a public nature, and not administrative merely.
In this instance the city contracted to purchase gas for all its requirements for five years, for a stipulated price, delivery to be made within the city by pipe lines permitted to be laid in the streets and alleys. Applying subdivision seventh, a contract for an adequate fuel supply for five years is within the language but is not within the sense of subdivision second. The contract once made,, the service is not exposed to competition. The price is not a rate open to regulation. A franchise charge would simply be added to price in the formation of the contract. Purchase by the city of fuel for its own use does not affect the inhabitants in the way a franchise to furnish gas to the inhabitants affects them. Purchase of fuel is purely administrative business, use of the streets merely facilitated delivery, and. to avoid absurdity it is necessary to hold that subdivision seventh operates in the same field as the remainder of the section, the field of public, governmental activity.
The judgments of the district court are affirmed.
Johnston, C. J., dissenting.
Hutchison, J., not sitting. | [
-80,
120,
-36,
-82,
62,
96,
26,
-103,
76,
-77,
-25,
119,
-83,
-40,
21,
105,
-101,
125,
-12,
107,
-15,
-78,
7,
99,
-36,
-5,
115,
-51,
-15,
94,
-10,
79,
76,
32,
-54,
-107,
-58,
66,
85,
92,
-122,
-91,
-87,
-24,
-39,
66,
36,
58,
114,
-53,
85,
14,
-13,
40,
24,
-61,
-20,
44,
-7,
33,
-45,
-7,
40,
-123,
127,
4,
0,
100,
-108,
-121,
-24,
46,
-104,
57,
24,
-24,
115,
-90,
-122,
-4,
15,
-69,
-120,
34,
99,
1,
69,
-17,
-22,
-8,
4,
-98,
-115,
-90,
-12,
57,
35,
2,
-73,
31,
104,
22,
-89,
126,
-26,
-107,
95,
108,
3,
-122,
-46,
-93,
75,
-20,
-102,
1,
-18,
39,
48,
100,
-50,
-68,
92,
103,
54,
95,
14,
-8
] |
The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal by defendant from his conviction of aggravated robbery (K. S. A. 21-3427).
The charges against defendant arose from an armed robbery of a filling station in Kansas City, Kansas, on January 24, 1975. About midnight the attendant, Joseph Dobson, observed a late model car pull into the island area of the station. Three or four Negro males were in the car and Dobson testified defendant was one of the occupants. When another customer drove into the station, the first car drove away. A few minutes later, a lone Negro male walked into the station and asked for change. After a brief conversation, the man pulled a revolver and relieved Dobson of thirty-five dollars and a 12-inch black and white television set. The gunman then ran west, making good his escape in the same late model automobile which had previously entered and left the station.
When the police arrived, Dobson was shown a series of police photographs and he identified a photograph of defendant as the gunman. Police then proceeded to defendant’s home address in north Kansas City, Kansas, but received no response to their request for admission to the premises.
At approximately nine o’clock the next morning defendant was arrested at a grocery store near his home.
On January 28, 1975, a line-up was conducted at the Kansas City, Kansas, police department. The victim again identified defendant as the robber. During the course of the trial, Dobson made an in-court identification of defendant.
During cross-examination, defense counsel asked the victim if he had ever recovered his television set and he received an affirmative reply. At this time defense counsel and the prosecutor first learned the set had been recovered. Under further questioning, Dobson indicated the set was returned by the police, but he did not know the officer’s name. Defense counsel questioned each of the officers involved with the investigation as to the recovery of the television set. Detective Gerald Gander testified he had no knowledge of the recovery. Detective Lee Simmons testified one of the investigating officers told him the television had been recovered. Defense counsel’s cross-examination of each subsequent police officer revealed no additional information about the recovery of the set. During recess of the trial the assistant district attorney attempted to track down information on the recovery and return of the television set, but he found no evidence which would tend to unravel the mystery.
At oral argument before this court the assistant district attorney admitted he had no knowledge of the recovery of the television set until the victim made the revelation at trial. He further stated he had no evidence of the recovery in his file which had been shown to defense counsel pursuant to a court discovery order.
Although the source of the recovered television set was never produced, the evidence established that it did not come from the person of defendant or his home.
Defendant took the stand and presented a defense of alibi. At the time of the robbery he indicated he was at home babysitting with his sister’s children because his mother was unable to care for them due to recent surgery. His mother appeared as a witness on his behalf.
The record further indicates defendant testified the police told him during interrogation that the television set was recovered “somewhere.” Apparently, defendant did not relay this information to counsel.
The jury returned a guilty verdict. Defendant made a motion for a new trial alleging, among other grounds, that his motion should be granted because the state failed to disclose the manner and place of discovery of the television set. The motion was overruled on the basis that the police departments knowledge of the set was not known by the district attorney and was not imputable to him. It is this ruling which forms defendant’s sole point on appeal.
Both parties approach this issue as one involving suppression of evidence. Defendant relies on Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; and its progeny, United States v. Keogh, 391 F. 2d 138 (2d Cir. 1968). These cases recognized that failure to disclose evidence favorable to the defense may violate due process and require granting of a new trial, even if the failure was negligent or passive and not intentional. The Keogh case established three categories of failure to disclose. They were set forth in State v. Hill, 211 Kan. 287, 507 P. 2d 342:
“. . . (1) Deliberate bad faith suppression for the very purpose of obstructing the defense or the intentional failure to disclose evidence whose highly probative value to the defense could not have escaped the prosecutor’s attention; (2) deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment irrespective of the prosecutor’s good faith or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses it was so material that the defense could have put the evidence to significant use.” (p. 292.)
The state, in turn, recognizes the rule set forth in the above cited cases, but argues information in possession of the police should not be imputed to the prosecutor. The mere fact that a prosecutor may not have actual knowledge of evidence which is in the possession of law enforcement officials does not prevent the imputation of such knowledge to the prosecutor in the interest of justice. (See, State v. Wilkins, 220 Kan. 735, 556 P. 2d 424; State v. Humphrey, 217 Kan. 352, 537 P. 2d 155.)
The arguments of both parties fail to reach the heart of the issue. This is not a case involving the suppression of evidence. Defendant was aware the television set had been recovered by the police well before trial. Furthermore, defense counsel learned of the recovery during trial. Evidence is not suppressed or withheld if the accused has knowledge of the facts or circumstances, or if the facts become available to him during trial. (United States v. Dye, 221 F. 2d 763, 767 [3d Cir. 1955]; United States v. Rutkin, 212 F. 2d 641 [3d Cir. 1954]; People v. Rosenberg, 59 Misc. 2d 1, 297 N. Y. S. 2d 860, aff’d without opinion, 32 App. Div. 2d 1030, 303 N. Y. S. 2d 1005.)
Other states have held the Brady rule does not apply when the defendant or his counsel knew of the exculpatory evidence either before or during trial. (See, e. g., Lawrence v. State, 244 So. 2d 446 [Fla. App. 1971]; The People v. Hudson, 38 Ill. 2d 616, 233 N. E. 2d 403 [1968]. See also, In re Razutis, 35 Cal. 2d 532, 219 P. 2d 15 [1950], cert. denied, 340 U. S. 842, 95 L. Ed. 617, 71 S. Ct. 32.)
Although not explicitly recognized, the rule seems to have support in this jurisdiction. In State v. Kelly, 216 Kan. 31, 531 P. 2d 60, the defendant alleged prior inconsistent statements had been suppressed by the state. The trial court disagreed. This court stated:
"In the present case the circumstances of the alleged withholding were examined by the trial court on the motion for new trial. The trial court found that the prosecution did not withhold or suppress the evidence. We agree with that finding.
“The prosecutor upon learning of these prior inconsistent statements, during the progress of the trial, immediately rectified this oversight by placing the investigating officers on the witness stand. The officers were questioned and they testified fully and frankly concerning the extra-judicial statements of Ruppelius [the witness] concerning his sexual activities on the morning in question. The jury was given all evidence available to the prosecution before it retired to consider the verdict. The questionable reliability of the testimony of Ruppelius at the trial was fully exposed to the jury by the prosecutor.” (p. 36.)
In People v. Rosenberg, supra, the defendant petitioned for a writ of coram nobis. He alleged his right to a fair trial was violated by the prosecution’s suppression of the negative result of an ultraviolet light test of a towel. The effect of the test was a failure to connect the defendant to an ink-stained towel used in a murder-robbery. When the defendant was taken into custody 'two detectives ran the ultraviolet test on him and informed him of the test results. Apparently, defendant failed to inform his counsel of the test. The court rejected the petition, stating:
"Evidence is not suppressed or withheld if the accused has knowledge of the facts and circumstances, or if they otherwise become available to him during the trial (United States v. Dye, supra).
“The defendant states that he did not make disclosure to his attorneys concerning the test and its result because he ‘did not know the law’. The court rejects this as an excuse. He was represented upon the trial by four experienced criminal lawyers. ... If the defendant did not inform his attorneys, then it is his responsibility and he must bear the legal consequences. He may not now complain about the suppression of evidence of which he had knowledge but which he did not communicate to counsel.” (pp. 2, 3.)
There is a further basis for rejecting defendants appeal. If the prosecution had failed to comply with the pretrial discovery order, defendant had a remedy under K. S.A. 22-3212 ( 7). The subsection states:
“If subsequent to compliance with an order issued pursuant to this section, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under this section, he shall promptly notify the other party or his attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
The use and purpose of this subsection have been discussed at length in previous cases. The first of these is State v. Jones, 209 Kan. 526, 498 P. 2d 65. There we ruled a trial court is given a wide range of discretion as to the imposition of sanctions for the failure to comply with a discovery order. One remedy was the use of a continuance. We stated:
“We are impressed that in furtherance of just and expeditious determination of cases, as stated in the ABA Standards, requests for continuance should be utilized where necessary if a party is surprised because of his adversary’s failure to disclose in compliance with a discovery order. Such procedure will enable a court more validly to distinguish the good faith request for help from the development of a mere ploy to be used later upon appeal if needed.” (p. 531.)
See also, State v. Morin, 217 Kan. 646, 538 P. 2d 684; State v. Sullivan & Smith, 210 Kan. 842, 504 P. 2d 190.
If defense counsel felt the revelation concerning the television set was critical, it was incumbent on him to move the court to grant a continuance or invoke some other sanction. He failed to do so. In addition, it is clear defendant failed to undertake any posttrial investigation and made no attempt to subpoena and question police officials on the motion for a new trial.
The judgment is affirmed. | [
-80,
-20,
-8,
31,
24,
-30,
42,
56,
-13,
-77,
-30,
83,
-91,
75,
21,
107,
-38,
93,
-44,
105,
-34,
-105,
71,
11,
-38,
-13,
89,
-59,
-79,
-53,
-84,
-44,
75,
112,
-54,
21,
102,
72,
69,
84,
-114,
37,
-23,
-46,
119,
72,
-96,
40,
-84,
11,
-15,
30,
-13,
42,
16,
-57,
105,
40,
75,
-71,
-48,
-16,
-61,
87,
-49,
22,
-93,
36,
-102,
5,
-8,
63,
-103,
-111,
48,
-88,
-13,
-92,
-126,
116,
101,
-119,
4,
102,
98,
36,
25,
-18,
-20,
-120,
46,
-5,
-105,
-121,
-98,
80,
73,
45,
-106,
-99,
127,
20,
15,
-4,
-13,
20,
91,
108,
-121,
-33,
-80,
-109,
109,
124,
-102,
122,
-21,
-127,
32,
48,
-51,
-30,
93,
84,
122,
-65,
-113,
-75
] |
The opinion of the court was delivered by
Thiele, J.:
The plaintiffs, who are hereafter referred to as Butler and the company, brought action against the members of the State Board of Embalming, hereafter referred to as the board, to enjoin the board from enforcing one of its rules, to enjoin it from adopting certain rules and for the construction of a statute. The board demurred to the petition, and that demurrer was overruled and an appeal to .this court followed.
In view of the contentions made and hereafter discussed, the allegations of the petition may be stated summarily.
Butler is a licensed embalmer and funeral director and has a place of business in Kansas City, Kan., and has licensed funeral directors and embalmers in his employ. The company is a corporation under G. S. 1935, 40-801 et seq., and authorized to solicit for and issue policies of burial insurance and a form of the policy it proposes to sell is attached as an exhibit. In 1945, the legislature enacted chapter 256 of the session laws, which now appears as G. S. 1945 Supp. 74-1707, and which reads as follows:
“The state board of embalming is hereby authorized and empowered to ■ adopt and enforce rules and regulations relative to the selling and servicing of insurance or contracts of the burial or funeral benefit type and the collection of premiums and assessments thereon by embalmers, funeral directors, and assistant funeral directors, and to‘ also adopt and enforce rules and regulations relative to prearranged funeral contracts made by or with embalmers, funeral directors and assistant funeral directors: Provided, That before any such rules or regulations are promulgated the same must be submitted to and approved by the state commissioner of insurance.”
On October 8, 1945, the board adopted and caused to be published certain rules and regulations, and announced its intention of enforcing them. Copies of the rules are attached to the petition as an exhibit.
In a summary way it may be said that under the heading “Prefinanced Services Prohibited,” prefinanced funerals are defined to be transactions made prior to death in which an embalmer or funeral director accepts a consideration ‘in advance for a burial or funeral service and it is stated that such contracts have been found to be unsatisfactory and impractical and are considered financially unsafe and unsound from the standpoint of the public and the embalmer and funeral director, and violate the ethics of the funeral profession, and that in the public interest no such contract shall hereafter be made, and that .advertising for and soliciting such contracts are considered unethical practices and the solicitation of funeral business, and are prohibited. Under the heading “Insurance,” is a long definition of contracts of the burial or funeral-benefit type, under which companies, for a consideration provide the members assured, or other designated person in case of death, with a funeral service, and it is stated that since the selling and servicing of such contracts result in unethical practices and undesirable conditions, attempt to control the placing of funeral business and destroy freedom of choice by the next of kin in the selection of a funeral director or embalmer, it is declared to be an unethical practice against the public interest and to constitute the solicitation of business, and no embalmer or funeral director or anyone connected with the funeral business shall, directly or indirectly, represent an insurance company selling burial insurance or permit his establishment or services to be used therefor.
The petition then alleges at length that Butler proposes, if legally entitled to do so, to represent the company and sell burial insurance, and to become a member and officer of the company or similar companies, and the company proposes to use Butler's services. Butler and the company deny that the sale of burial insurance contracts results in unethical acts and practices, and they also deny other conclusions stated in the rules mentioned. Similar allegations are made with reference to prefinanced funeral contracts. It is further alleged that plaintiffs are informed and believe that the board intends to enforce its rule and to revoke or refuse to renew the licenses of funeral directors and embalmers who participate in any way in consummating such contracts. Butler and the company further allege that the rule is invalid, unconstitutional and beyond the power of the board to legally adopt and enforce for ten separately stated reasons, included in which is that the rule is not an attempt to regulate the business of funeral directors or embalmers, but an absolute prohibition against the lawful right of a citizen to enter into business relationships with other persons. Other reasons will be noted later if need be.
The demurrer lodged against the above petition asserted three grounds: (1) Plaintiffs have no legal capacity to sue; (2) several causes of action are improperly joined; and (3) the petition does not state facts sufficient to constitute a cause of action.
This demurrer was submitted to the trial court on oral argument and briefs and thereafter the trial court overruled the demurrer and the appeal to this court followed. In our consideration of the appeal we follow generally the subject matter and order of presentation as contained in the appellant board’s brief.
The board first contends that the action is prematurely brought, and in support it says there are no allegations that the board has taken any steps against plaintiffs, but only a mere allegation Butler is informed the board intends to enforce the rules; that there is no allegation the board has made a complaint or that the acts of Butler are contrary to the rule; that the court has no right to assume the board will act unlawfully in either the interpretation or enforcement of its rules, and that the court cannot anticipate such unlawful action and is without power to enjoin the board. In general support the board relies on Bohl v. Teall, 155 Kan. 505, 126 P. 2d 216. In that case it was held that administrative bodies may not be enjoined from discharging in a lawful manner the duties which the law imposes upon them (see syllabus ¶ 1), and in the opinion it was said that it is well settled that courts may not interfere with lawfully constituted administrative agencies in the lawful performance of their lawful duties, authorities in support being cited (1. c. 508). As we view the situation, a part of the board’s premise is not correct. Butler is not challenging the board’s authority to make a rule under the statute above quoted. What he challenges is the power of the board to make the particular rule it has made. The case is not one where an attempt is made to interfere with a lawfully constituted administrative agency in the lawful performance of its lawful duties, or to enjoin the making of the rule. The contention advanced by the pleading is that the rule adopted is not authorized by the statute and as adopted is an unlawful exercise of power. It is not necessary that we proceed in a negative way and discuss our many cases holding that attempt was being made to enjoin lawfully constituted administrative agencies in the lawful performance of their lawful duties. In a positive way we direct attention to the following cases, where on the facts relief was not always allowed, but where the rule was recognized that there are types of cases where actions may be maintained. In Silven v. Osage County, 76 Kan. 687, 92 Pac. 604 (appeal from assessment), it was said that if the legislature should violate a constitutional limitation- in the enactment of a tax law the judicial power of the courts might be invoked to determine its validity and prevent its enforcement. “And if the officers or agencies provided by the legislature for administering the tax laws were not proceeding in a legal manner their hands might be stayed by appropriate proceedings in the courts, . . .” (l. c. 689.)
State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408, was in mandamus to test validity of a statute. Tn discussing administrative power, it was said:
' “The exercise of such power is merely the exercise of administrative discretion. If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and.prerogative remedies of injunction or mandamus.” (1. e. 472.)
In Photo Play Corporation v. Board of Review, 102 Kan. 356,169 Pac. 1154, the action was one to compel approval of a motion picture by the defendant board. There was no claim of invalidity of the statute under which the board had refused approval, nor was there any allegation that the members of the board acted arbitrarily or in bad faith. In discussing the question of the right of the court to substitute its judgment for that of an administrative board it was said:
“If the board should act fraudulently, or so arbitrarily and capriciously as to amount to fraud, a resort to the courts may be had, and as against such action an aggrieved party may have redress.” (1. c. 359.)
After referring to the two cases last mentioned, and making some comment, the court continued:
“In respect to the powers conferred on a municipal body it has been said that ‘the courts have no supervisory power 'over the policy of municipal legislation. They can only interfere to curb action which is ultra vires because of some constitutional impediment or lack of antecedent legislative authority, or because the action is so arbitrary, capricious, unreasonable and subversive of private right as to indicate a clear abuse rather than a bona fide exercise of power.’ ” (l. c. 359.)
In support, nine of our cases are cited.
In Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P. 2d 597, the action was one to enjoin.the board’s order revoking plaintiff’s license. The right of plaintiff to maintain the action was not challenged as in the instant case, but an interesting and well sup ported discussion of the powers, duties and responsibilities of an administrative board may be found therein. It was held:
“While courts are not permitted to substitute their judgment for that of administrative bodies, they are definitely charged with the duty of determining whether the' judgment rendered is unreasonable, arbitrary, oppressive, discriminatory or in excess of administrative powers.” (Syl. If 2.)
In.our opinion, Butler was not compelled to await action by the board suspending his license, or refusing to issue or renew his license, in order to test the board’s power to adopt the particular rule on the ground that the adoption of the particular rule was not authorized by statute.
The board further contends that if injunction is available at the proper time as a remedy to Butler and the company, the board , cannot be enjoined at this time because statutes, other than G. S. 1945 Supp. 74-1707, quoted above, give the board original, exclusive jurisdiction to determine qualifications and standards of conduct of its licensees, and our attention is directed to the certain sections in G. S. 1945 Supp., all of which, however, were enacted prior to the section quoted above and as follows: 65-1711a which authorizes the board to refuse to issue or renew licenses of embalmers for (2) paying- directly or indirectly any money or thing of value for the securing of business, (3) solicitation of business by agents or persons commonly known as “cappers” or “steerers,” (6) unprofessional, unethical or dishonorable conduct, and to make rules and regulations defining, construing and interpreting the above grounds for suspension or revocation of licenses: 65-1722 and 65-1723 which make similar provisions with respect to funeral .directors, and 74-1704 which gives the board power to make rules and regulations establishing ethical standards and practices. The board argues that even though the rule challenged may not be authorized or justified by 74-1707, it is authorized by the other sections mentioned. The contention as made cannot be sustained. The last act of the legislature was 74-1707, and in it the legislature dealt specifically with burial insurance contracts and prearranged funeral contracts. Under well-recognized rules of statutory construction this specific legislation controls rather than general legislation which might otherwise be applicable. The question presented is whether the rule complained of may be justified under 74-1707. Under that statute the board was authorized and empowered to adopt and enforce rules and regulations relative to the two types of contracts and the allegation is that it duly adopted the rules of which complaint is made. The remedy of injunction was available to plaintiffs. In ruling on the demurrer the trial court had no occasion to determine the correctness of the plaintiffs’ contention that the rule adopted by the board was not a regulation but a prohibition, and beyond the board’s power and authority, and that phase we shall not discuss.
Under a third heading the board contends that the court may not usurp the fact-finding authority delegated to it by the legislature, and in support it cites Bohl v. Teall, supra; Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1; Murphy v. Hobbs, 139 Kan. 799, 33 P. 2d 135; Brinkley v. Hassig, 130 Kan. 874, 289 Pac. 64, and other cases which it .may be said support the contention. However, they do not control the present situation for, as has been observed, in dealing with the board’s first contention, the challenge is not to the power of the board to make rules generally, nor an attempt to interfere with its enforcement of lawful rules lawfully made, but to test the board’s authority and power to make the particular rule attacked.
The board also contends that no case or controversy exists upon which a declaratory judgment can be founded, and states that the petition is not in form one asking for a declaratory judgment, but that at the hearing in the district court the appellees had stated such a judgment was sought. It may be said that whether the allegations of the petition were sufficient or not, the appellees did pray for such relief. Our attention is directed to a number of our decisions treating of the declaratory judgment statute and its application, but we shall not review them. It seems quite clear the gist of the action is to enjoin the enforcement of an allegedly invalid rule and that the only questions of law involved or upon which the court could rule would be those implicit in determining the proposition of invalidity.
The board finally contends that the petition contains no allegation which discloses the company has any interest; that it is a burial insurance corporation and there is no allegation its rights will be infringed in any way, nor that if Butler does what he alleges he proposes to do, the interest of the company will be disturbed or changed in any way; that the company is not a licensee of the board, and the rule of the board does not prevent the company from carrying on its business with other agents who have no connection with the funeral business, and that it is evident no cause of action in favor of the company is stated. It may be observed that both plaintiffs transact their separate businesses under authority granted by the state. Under the allegations the company proposes to sell a particular policy of insurance, and to have the services of Butler in so doing. We need not now examine the policy, a form of which is attached as an exhibit, to determine whether it is such a policy as the company is authorized to write, or a mere life insurance policy, but assuming it is a burial insurance policy, the effect of the rule is to stop its sale by embalmers and funeral directors, and to prevent its being used in connection with a prearranged or prefinanced funeral. If the rule stands, the company’s interests will be affected. In such circumstance, we cannot say the .company has no interest in the action.
In this opinion no attempt is made to tréat each reason assigned in the petition that the rule complained of is invalid. If any reason presents a ground — and we hold the one discussed does — for asking injunctive relief, the demurrer was properly overruled. At a hearing on the merits the plaintiffs may or may not rely on all reasons stated. For us to discuss fully each reason assigned would, in a manner, result in our determining the merits of the action on a petition to which no answer has yet been made.
The trial court did not err in ruling on the demurrer, and its judgment thereon is affirmed. | [
-16,
108,
-36,
61,
25,
99,
58,
58,
85,
-80,
37,
83,
-19,
-40,
5,
43,
-5,
13,
81,
98,
-9,
-125,
83,
40,
-106,
-45,
-11,
-43,
-79,
79,
-74,
127,
76,
32,
106,
-59,
-58,
-118,
77,
-34,
78,
4,
-120,
-31,
-39,
83,
48,
-7,
-10,
23,
-47,
11,
-77,
40,
27,
-57,
105,
110,
-5,
41,
-48,
-79,
-86,
-121,
125,
23,
17,
38,
-104,
-89,
-40,
62,
16,
17,
-128,
-56,
81,
-74,
-122,
116,
75,
89,
8,
98,
103,
32,
1,
-25,
-100,
-68,
15,
-106,
29,
-89,
-74,
121,
34,
9,
-106,
-99,
112,
16,
7,
122,
-10,
85,
30,
-84,
9,
-114,
-90,
-73,
-65,
-27,
-100,
3,
-29,
-25,
32,
113,
-119,
48,
93,
-57,
58,
83,
-122,
-72
] |
The opinion of the court was delivered by
Fromme, J.:
O’Charles E. Dunlap appeals from an order denying post-conviction relief by the sentencing court in a proceeding filed under K. S. A. 60-1507. Dunlap was convicted by a jury of first degree robbery and he was sentenced in 1970. No appeal was taken.
A motion to vacate under K. S. A. 60-1507 was filed in 1972 on two grounds. First, Dunlap claimed the failure to-place him in a line-up for identification prior to trial was prejudicial error, and second he claimed the jurors were coerced by the trial court when they were required to return to the jury room for further deliberation after it was disclosed one juror felt he was not guilty. A unanimous verdict was returned later.
On the 1972 motion filed both the sentencing court and this court on appeal denied relief. See Dunlap v. State, 212 Kan. 822, 512 P. 2d 484.
A second motion was filed by Dunlap in 1974. This is the motion with which we are now concerned. The sentencing court, after considering the motion and the files in the case, found that the motion was Dunlap’s second motion, that no unusual circumstances or intervening changes in the law justifying the court to entertain such a motion were alleged and that the motion should be denied as an abuse of remedy.
Dunlap has again appealed to this court. He sets forth five separate points on appeal. His first two points are identical to those disposed of in the appeal on his first motion and are treated in Dunlap v. State, supra. His third point alleges a failure to instruct the jury at his trial that he did not have to take the witness stand. This instruction was given in substance as the court’s instruction No. 16. As his fourth point he alleges error in submitting an instruction on aiding and abetting. He objects, “not so much in the wording” of the instruction but objects to the manner in which it was given. As his fifth point he claims error in the admission of evidence of prior crimes. The record indicates these crimes were stipulated and used only to enhance the penalty under the habitual criminal statute. The prior crimes were not admitted in evidence to establish guilt.
Trial errors are to be corrected by direct appeal. See Dunlap v. State, supra, and cases cited therein. When there are exceptional circumstances excusing the failure to appeal, trial errors affecting constitutional rights may be raised by proceeding in accordance with K. S. A. 60-1507, even though the errors could have been raised by appeal. (Rules of the Supreme Court, Rule No. 121 [c].)
The proceedings authorized by K. S. A. 60-1507 provide a vehicle when no direct appeal has been taken for examining trial proceedings in those cases where it appears there may have been errors affecting constitutional rights and resulting in a miscarriage of justice. K. S. A. 60-1507 (c) provides:
“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
A second motion has been entertained in a few cases under limited circumstances. The sentencing court should not entertain a second or successive motion for relief under K. S. A. 60-1507 on behalf of the same person unless the errors affect constitutional rights and there are exceptional circumstances which justify entertaining a second or successive motion. (Rules of the Supreme Court, Rule No. 121 [d].)
Exceptional circumstances as required to justify entertaining a second or successive motion are those unusual events or intervening changes in the law which prevented the movant from being aware of and raising all of his alleged trial errors in his first post-conviction proceeding, and they must be such that the ends of justice can only be served by reaching the merits of the subsequent application. (Hacker v. State, 207 Kan. 195, 483 P. 2d 484.) Unless exceptional circumstances are shown the sentencing court may properly dismiss a second or successive motion filed under K. S. A. 60-1507 on the ground its use constitutes an abuse of remedy. (K. S. A. 60-1507 [c]; Lee v. State, 207 Kan. 185, 483 P. 2d 482. See also Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989, 44 S. Ct. 519, and Wong Doo v. United States, 265 U. S. 239, 68 L. Ed 999,44 S. Ct. 524.)
It is clear from a review of the record in this case that the errors claimed are no more than possible trial errors. They do not affect the constitutional rights and no exceptional circumstances were alleged in the motion to justify entertaining this second post-conviction motion. Some degree of finality in the criminal appeal process must be achieved to prevent endless piecemeal litigation in both the state and federal courts. The time consumed and wasted by piecemeal litigation impedes the dispatch of business in the courts. Under the facts and circumstances appearing in this record the filing of the second successive motion constituted an abuse of remedy and the district court was justified in denying the motion for abuse of the remedy as authorized in K. S. A. 60-1507 (c) and the rules of this court, Rule No. 121 (d). The order of the trial court denying the motion is affirmed. | [
48,
-24,
-11,
63,
41,
96,
42,
-36,
1,
-79,
38,
83,
111,
-38,
1,
123,
-45,
61,
85,
121,
-56,
-73,
23,
-31,
-94,
-13,
-45,
-43,
-80,
91,
-18,
-73,
8,
-30,
-126,
53,
-26,
72,
71,
92,
-82,
4,
-104,
-45,
64,
10,
48,
46,
20,
11,
-79,
-98,
-13,
43,
26,
74,
-55,
44,
75,
62,
96,
-71,
-69,
15,
111,
4,
-77,
4,
-102,
-122,
120,
46,
-40,
17,
0,
-24,
51,
-90,
-126,
-11,
111,
-102,
44,
102,
99,
1,
29,
-17,
-88,
-87,
31,
63,
-67,
38,
-38,
64,
98,
12,
-106,
-35,
112,
52,
14,
124,
-18,
-124,
84,
108,
-118,
-33,
-72,
-109,
11,
60,
-122,
-48,
-5,
-123,
-112,
53,
-52,
-30,
78,
87,
121,
23,
-26,
-75
] |
The opinion of the court was delivered by
Fromme, J.:
Bill Reese Wilson and James Michael Wentworth were convicted of burglary (K. S. A. 21-3715) and felony theft (K. S. A. 21-3701) by a jury in Cherokee County, Kansas. They appeal from their convictions and each raises separate points on appeal.
On January 5, 1975, McGee Drug Store in Columbus, Kansas, was broken into and drugs were taken. A citizen living in that area heard noises emanating from the drugstore and alerted the police. The chief of police went to the location. He parked his police oar in the alley, approximately 50' from the back entrance to the drugstore, leaving the headlights on. A large street light was located in the alley near the car. While he was in the alley he observed two men running from the back entrance of the drugstore into the alley. One of the men was carrying a yellow sack which was later identified as containing drugs taken from the store. The sack and its contents were introduced into evidence at the •trial. The chief of police pursued the two men and secured Kenneth R. Griffin in handcuffs. He then searched the alley where the second man bad disappeared into the shadows. He discovered the form of a body covered with a coat lying beside a downspout. The chief of police removed the coat and the person underneath turned out to be James Michael Wentworth. The yellow sack containing the drugs was located on the roof of a one story building near the place where the two men had first disappeared into the shadows. Both Griffin and Wentworth were positively identified by the chief of police at the trial. Later investigation established that entry had been gained through a hole in the roof of the drugstore building. A screwdriver, tire tool, black stocking cap and gloves were discovered inside the drugstore. Wentworth and Griffin were booked at the police station and a search of the area was made for a vehicle. A car with an Oklahoma license tag was found parked one block east of the drugstore. The investigating officer became suspicious of this car because it was parked in a parking lot so the license plate was obscured against a building. Bill Reese Wilson was found in the back seat of this car. Wilson was questioned. He then told a story about having taken his girl friend to Wichita, becoming tired on the way home to Tulsa, Oklahoma, and pulling into the parking lot to sleep. The officers became suspicious of Wilson because Columbus, Kansas, is not enroute between Wichita and Tulsa. A search warrant was obtained and a search was made of this car. Wentworth, Griffin and Wilson were charged and convicted of burglary and theft of property valued at over $50.00. Further facts will be developed as we examine specific points on appeal.
Kenneth R. Griffin did not appeal from his conviction and he is not involved in this appeal. Wilson and Wentworth were tried together but each raises separate points on appeal. Their appeals must be considered separately.
James Michael Wentworth
Appellant Wentworth filed a motion at the conclusion of the state’s case in chief attacking the sufficiency of the evidence to support his conviction. On appeal he argues that the state failed to introduce evidence that the crimes occurred in Cherokee County, Kansas, as charged in the information. This was not one of the bases for the motion argued in the trial court. No mention of the jurisdictional question was made during the trial. We can find no mention in the testimony of the witnesses that the crimes occurred in Cherokee County; however, there is repeated testimony that McGee Drug Store, the scene of the crimes, was located in the city of Columbus, Kansas.
K. S. A. 60-409 (a) in pertinent part provides:
“Judicial notice shall be taken without request by a party, ... of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.”
The city of Columbus is located in Cherokee County and both the jury and the trial court, no doubt, took judicial notice of that fact. There was no evidence that these crimes took place outside of Cherokee County, Kansas. The contention is without merit.
Wentworth argues on the motion that the evidence at the close of the state’s case-in-chief was wholly insufficient to establish a prima facie case of guilt beyond a reasonable doubt. His motion must be treated as a motion for judgment of acquittal.
In State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, it is held:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
It is the prerogative of the jury to determine the credibility of witnesses, the weight to- be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence; so, a trial judge in passing on a motion for directed verdict of acquittal should consider the evidence, keeping in mind the prerogative of the jury, and if he concludes a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt of the crime charged, he must submit the case to the jury. See State v. Holloway, 219 Kan. 245, 255, 547 P. 2d 741.
Considering the evidence in the above light there is no doubt that the evidence was sufficient to require the trial judge to submit the case to the jury.
Appellant’s next contention is that the evidence was insufficient to support a charge of felony theft, in that the state failed to prove that the value of the drugs taken exceeded $50.00 in value. The druggist McGee testified there were 18 containers of drugs taken in the burglary. The druggist further testified the wholesale value of 'the 18 containers was $50.21, and the retail value of these drugts was $83.00. Two of the containers had broken seals, and on cross-examination it was brought out that the total value would have been a “little bit less” than the figures previously given by McGee. The exact value of the drugs was not further explored on cross-examination. The law is clear that the retail price of stolen property may be admitted into evidence to show the value of the property taken so as to establish the degree of the crime. (Clinton v. State, 210 Kan. 327, 502 P. 2d 852; State v. Rogers, 217 Kan. 462, 467, 537 P. 2d 222.) There was sufficient evidence of value to support the verdict and the matter was properly left up to the jury. The jury in this case determined that the value of the drugs stolen exceeded $50.00. The point is without merit.
Wentworth’s next point on appeal is that the trial court erred in overruling the motion to quash a search warrant which was issued to authorize an examination of the contents of the car. Evidence used at the trial as a result of this search included a driver’s license and certain other credentials showing that Wentworth was the owner of the oar which was found in the parking lot near the scene of the crime. The appellant contends no probable cause existed for the issuance of the search warrant. He argues the testimony supporting the warrant related only to the burglary and in no way connected the automobile with the burglary. He further argues this testimony merely raised questions as to what the car was doing in Columbus, Kansas, on the night of the burglary.
Although the designation of record includes a request for the transcript of testimony on which the search warrant was issued, this testimony does not appear in the record, nor is it included in the transcript. This court is unable to determine on appeal whether the absent testimony supported the issuance of the warrant. It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim for relief. Since the appellant has failed to include the portion of the record necessary for us to examine this point we are unable to do so. (State v. Farris, 218 Kan. 136, 138, 542 P. 2d 725.)
As appellant’s next point on appeal he argues that the trial court committed reversible error in overruling a motion for mistrial which followed the testimony of Allen Jones. Mr. Jones participated in the investigation of the burglary and examined the inside of the oar. He testified that he found a photo card holder above the visor on the driver’s side of 'the car which contained Wentworth’s driver’s license and other items. When asked to recite the items found he testified they included a credential of ministry in the Universal Life Church issued to James Wentworth, several photographs, a portion of a $1.00 bill, a scrap of paper containing tele phone numbers, and a business card bearing the name of Mr. Isaacs, probation and parole officer, Tulsa, Oklahoma. At this point counsel for appellant approached the bench and moved for a mistrial contending the state had introduced evidence of prior criminal activity. The motion for mistrial was overruled.
It is obvious the state did not intend to offer the testimony as evidence of prior crimes as limited in K. S. A. 60-455. It came during the trial as an inadvertent statement of a witness. It could have been stricken on a proper objection for want of relevancy, but no such objection was made. The admission of the testimony may have been erroneous but our inquiry does not end there. The granting of a mistrial under K. S. A. 22-3423 is discretionary with the trial court. (State v. Culbertson, 214 Kan. 884, 885, 522 P. 2d 391.) Its decision should not be overturned absent an abuse of discretion. No abuse of discretion has been shown here. The presence in defendant’s car of the card of a probation officer, along with the other identification cards, cannot be considered as proof of a prior crime. In view of the nature of the comment and the overwhelming evidence adduced at the trial supporting the convictions, the error does not affect constitutional rights and is harmless under K. S. A. 60-261.
Appellant’s next point relates to the endorsement of three additional witnesses by the state prior to and during the trial of this case. These witnesses were Ken Knight, an agent of the KBI, Albert Jones, a deputy policeman, and Jim McGee, proprietor of the drugstore which had been burglarized. There were objections lodged to each endorsement. The district com! advised the defendant he would be given time to interview each of these witnesses. No request for any additional continuance was made by the defendant.
K. S. A. 22-3201 (6) provides:
“The prosecuting attorney shall endorse the names of all witnesses known to him upon the complaint, information and indictment at the time of filing the same. He may endorse thereon the names of other witnesses as may afterward become known to him, at such times as the court may by rule or otherwise prescribe.”
We have held the late endorsement of witnesses rests in the sound discretion of the trial court, and, absent an abuse of discretion, its ruling will not be disturbed on appeal. (State v. Rogers, supra, p. 465; State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967.) An abuse of discretion may occur when the use of such a witness results in surprise or material prejudice to the defendant preventing a fair preparation of his defense. (State v. Robertson, 203 Kan. 647, 648, 455 P. 2d 570.) The endorsement requirement is a safeguard in order to prevent surprise and to give the defendant an opportunity to examine the witnesses for the state in advance of the trial. There must be some showing of prejudice to the defendant to constitute reversible error. Here the defendant was given an opportunity to examine the witnesses. The defendant requested no additional continuance of the trial and there is no showing that defendant was surprised by the testimony or that he was required to change his trial strategy as a result thereof. A trial court should not give blanket approval for the late endorsement of witnesses. It is apparent the county attorney was ill-prepared to try this case and the trial court would have been justified in refusing late endorsement. However, permission for late endorsement is discretionary and we do not think that the appellant has sustained his burden of establishing prejudice in this particular case.
The appellant Wentworth’s final point on appeal concerns a statement by the prosecutor made during closing argument. The appellants produced no witnesses and introduced no testimony in the case. The prosecutor’s statement was as follows:
“. . . These gentlemen have had a fair hearing. They have had every opportunity to cross-examine each and every witness we have presented. They had every opportunity to do whatever they wanted in their oton defense, . . .” (Emphasis supplied.)
The issue here presented by appellant was discussed in State v. Johnson, 219 Kan. 847, 549 P. 2d 1370:
“Fifth amendment rights are, of course, violated when a prosecutor comments on a defendant’s failure to take the stand. Griffin v. California, 380 U. S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; United States v. Nolan, 416 F. 2d 588 (10th Cir. 1969). But not all comment on failure to present a defense constitutes a comment on the defendant’s failure to testify. ‘It is permissible for the prosecutor to call the jury’s attention to the fact that the evidence against the defendant is uncontradicted, especially when the facts in issue could have been controverted by persons other than the defendant.’ (United States v. Lepiscopo, 458 F. 2d 977, 979 [10th Cir. 1972].) See also, State v. Erhart, 176 Kan. 589, 272 P. 2d 1097; Anno., Accused’s Failure to Testify—Comment, 14 A. L. R. 3rd 723. . . .” (p. 850.)
We do not believe that the statement of the prosecutor can be interpreted as a comment on the defendants’ failure to testify in this case. The comment which was offensive to the defendant-appellant was preceded by a statement that the defendants had every opportunity to cross-examine each and every witness. This statement was proper. The further statement that they had every opportunity to do whatever they wanted in their own defense was not directed toward failure of the defendants to testify. Following the comment, the prosecutor went on to say that the testimony of the state’s witnesses remained uncontradicted. Defendant Wilson, who was tried along with Wentworth, had told the police about driving his girl friend to Wichita. The girl friend was not produced in support of Wilson’s story. The comment of the prosecutor may have been directed toward a failure to produce this girl friend of Wilson.
The prosecuting attorney should not refer to the failure of a defendant to testify. In this case it does not appear that he did so. He merely stated that defendants had had the opportunity to present their case. Here, no defense whatever was presented. Thus the comment does not lead to a conclusion that the prosecution was referring to the defendants’ failure to testify. We have carefully examined all of the points raised by the appellant Wentworth and find no reversible error. Judgment as to Wentworth is affirmed.
Bill Reese Wilson
Appellant Wilson attacks the sufficiency of the evidence to sustain his eonviotion. In separate points he argues, (1) there was no evidence that he took part in the burglary or the theft, (2) there was no evidence to establish criminal intent on his part, and (3) there was no evidence to establish his liability for the crimes of another in accordance with K. S. A. 21-3205. These will be treated as one point, since all pertain to the sufficiency of the evidence.
K. S. A. 21-3205 (1) provides:
“A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
In cases of robbery and burglary it is a common practice for the principal participants at the scene of these crimes to have a “wheel man”, one who stays with the car in which the main participants plan to make their “get-a-way”. The “wheel man” intentionally aids and abets in the commission of the crime and he may be charged with and convicted of the crime although he did not participate at the scene of the crime. See K. S. A. 21-3205 ( 3); State v. Turner, 193 Kan. 189, 392 P. 2d 863; State v. White, 211 Kan. 862, 508 P. 2d 842; and State v. Edwards, 209 Kan. 681, 498 P. 2d 48.
In State v. Edwards, supra, it is stated:
“The existence of criminal intent in aiding or abetting another to commit a crime may be presumed or inferred from circumstances surrounding the perpetration of the crime and is a fact question for jury determination.
. . Once a reasonable inference arises, . . . from all the circumstances that defendant was a participant with two others in the commission of the crime of theft at that time and place, defendant’s guilt is sufficiently established. This inference is a fact question for jury determination, and the jury found, as it could, that he was such a participant.’ . . .” (p. 686.)
On appeal from a jury verdict the issue is not whether the evidence establishes guilt beyond a reasonable doubt, but whether it is sufficient to form a reasonable inference of guilt when viewed in the light most favorable to the state. (State v. Wilson, 220 Kan. 341, Syl. 1, 552 P. 2d 931; State v. Ritson, 215 Kan. 742, 744, 529 P. 2d 90.)
Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is fmthering the success of the venture, such evidence of guilt is sufficient to go to the jury. (State v. Schriner, 215 Kan. 86, 523 P. 2d 703; State v. Irving, 217 Kan. 735, 538 P. 2d 670.)
In the present case the evidence established the burglary and •theft were committed by Wentworth and Griffin. They were seen running from the drugstore in possession of the drugs after an unlawful entry had been made through the roof of the store. Went-worth, Griffin and Wilson were residents of Tulsa, Oklahoma. The crimes occurred in Columbus, Kansas. A car bearing an Oklahoma license plate was discovered in a parking lot one block from the scene of the crime. It had been parked with the back of the car against a building, thus obscuring the license plate. The car was owned by Wentworth and contained his driver’s license. After Wentworth and Griffin were arrested, the appellant Wilson was found lying on the back seat of the Wentworth car. The officer who discovered Wilson testified he appeared to be asleep. The time was around 8:00 p. m. He could not be seen until the officer was next to the car and peered through the back window. Wilson admitted driving the car and parking it in its location at the parking lot. He disavowed any acquaintance with Wentworth and Griffin and advised the police he had driven a girl friend to Wichita, Kansas, and was returning to his home in Tulsa. He explained that he became tired and pulled into the parking lot to sleep. Columbus, Kansas, is over 36 miles east of any highway connecting Wichita and Tulsa. At the outset of the investigation Wentworth gave his name to the police as Thomas J. Sanders. When it was later established that Sanders’ correct name was James Michael Wentworth, Wilson was informed of this. Officer Jones testified that when Wilson was advised of this fact, “Mr. Wilson smiled and said, well, I thought you knew that all the time anyway.” From such a statement the jury might infer he was acquainted with Wentworth.
It is the collective judgment of this court that the foregoing evidence gives rise to a reasonable inference that Bill Reese Wilson did knowingly associate himself with the unlawful venture and was participating as the driver of the Wentworth car. From his acts in driving, parking and remaining in the Wentworth car it oan reasonably be inferred he willfully intended to further the success of the unlawful venture.
The judgment and conviction of Bill Reese Wilson of burglary and felony theft is affirmed. | [
48,
-20,
-4,
62,
58,
98,
59,
62,
75,
-93,
116,
115,
-19,
-55,
5,
105,
-45,
109,
-44,
105,
-16,
-73,
99,
-94,
-126,
-13,
123,
-59,
-77,
-53,
-84,
-44,
72,
116,
-118,
21,
-122,
72,
101,
95,
-114,
5,
-96,
82,
116,
64,
-82,
58,
-88,
10,
-15,
30,
-25,
42,
16,
-50,
-23,
40,
75,
60,
-112,
-7,
-53,
21,
-49,
20,
-93,
10,
-69,
13,
-8,
14,
-104,
48,
16,
-8,
-7,
-92,
-126,
101,
69,
-97,
-116,
102,
98,
32,
25,
-81,
-76,
-115,
30,
75,
-121,
-121,
-102,
72,
96,
5,
-65,
-99,
101,
18,
6,
-4,
-29,
52,
93,
112,
-92,
-54,
-80,
-111,
-55,
56,
10,
122,
-5,
33,
34,
113,
-59,
-94,
93,
117,
112,
-109,
74,
-47
] |
The opinion of the oourt was delivered by
Habman, C.:
This is an interlocutory appeal by the state from an order suppressing evidence obtained under search warrants.
The state charged defendant Ersel F. Gordon with sixteen counts of felonious theft and two counts of forgery. The investigation which led to these charges involved issuance of two search warrants which, with the resulting searches, are the focus of this appeal.
The parties stipulated to the facts at the hearing of the defendant’s motion to suppress. At the time of the alleged crimes defendant Gordon was 'administrator of a local retirement housing project known as “Lakeview Village”, operated by Evangelical Village and Bible Conference, Inc., which was the victim of the alleged crimes. The village, located on approximately seventy-five acres in Lenexa, Kansas, encompassed a highrise building, with the address 9100 Park Avenue, Lenexa, Kansas, which contained 189 apartments, twenty-four four-plex living units, lounges, dining rooms, shops of various kinds, storage areas for tenants and business offices. Each resident of Lakeview Village had a lifetime right of occupancy of certain quarters. Each occupant of a garden apartment had an individual mailing address. Approximately 189 persons resided in Lakeview Village in October, 1974, of which about 159 shared the 9100 Park Avenue address. As administrator defendant Gordon was responsible to the board of directors of Evangelical Village and Bible Conference, Inc., for all the Village’s operations and property.
The administrative offices consisted of two adjoining rooms, one a large office containing secretarial and sale personnel desks with no private offices, designated by the parties as office A, and the second, designated office B, a slightly smaller room which contained a conference table and defendant’s private desk, credenza and file cabinet. During October, 1974, there was normally no restriction during business horns on ingress and egress between the two rooms as to administrative employees at the village. Both rooms were customarily locked except during business hours. As administrator defendant Gordon used office B as his office and kept therein certain property and documents not related to the operation of Lakeview Village.
On October 25, 1974, Johnson county law enforcement officers obtained the first of the search warrants in question. It directed seizure of “All records pertaining to Lakeview Village Checking Accounts and records and books of account and business of Lake-view Village”. The locations to be searched were stated to be in Johnson county, Kansas, as follows: “Lenexa State Bank; Lakeview Village, 9100 Park Avenue., Lenexa, Kansas; and Southgate State Bank, Prairie Village, Kansas.”
Upon arrival at Lakeview Village the officers proceeded directly to the administrative offices in the highrise building. They entered or searched no other rooms, areas or residences. In the offices they obtained certain items of personal property listed on the return to the warrant. After a discussion with the attorney for Lakeview Village the officers returned to the magistrate court and obtained an additional search warrant. This warrant was identical to the first except that it contained an additional directive to seize “personal papers and property of Ersel F. Gordon”. The officers then returned to Lakeview Village and seized personal property as shown in the return of the second warrant. The seized items were taken from office A, office B and a records storage area in the basement of the highrise building. We are told the seizure included a bank book, tape recording and personal items taken from defendant s desk, credenza and file cabinet.
The trial oourt ruled that defendant Gordon had standing to challenge the searches and seizures and that they were unlawful because the warrants authorizing them were facially invalid for overbroadness as to the area to be searched inasmuch as a multiple occupancy structure was involved.
We consider first the standing issue as it relates to office A and the basement storage area. The state concedes in its brief and in oral argument that defendant does have standing to challenge the search of his private desk, credenza and file cabinet located in office B and we need not be further concerned with the standing issue as to items taken from them. The stipulation of facts does refer to these depositories as defendant’s private desk, credenza and file cabinet and it states that in office B he maintained certain property and documents not related to the operations and property of Lakeview Village. (The state says a written record was made by the officers at the time of the search as to the exact location from which each seized article was taken.)
The fourth amendment to the federal constitution and section 15 of the Kansas bill of rights secure the people against unreasonable searches and seizures of their property. These guaranties protect an aggrieved person s property, not property in which he neither has nor claims any ownership or interest. To protect this interest one must have standing to object to the use of evidence in a criminal proceeding against him on the ground of an illegal search and seizure (State v. Boster, 217 Kan. 618, 539 P. 2d 294). In State v. Sumner, 210 Kan. 802, 504 P. 2d 239, we recognized three bases for obtaining standing to challenge a search warrant: (1) Ownership or possessory interest in the property seized; (2) ownership or possessory interest in the premises searched; or (3) reasonable expectation of freedom from governmental intrusion on the premises.
Defendant Gordon asserts he has the necessary standing under precedent stated in Mancusi v. DeForte, 392 U. S. 364, 20 L. ed. 2d 1154, 88 S. Ct. 2120. There DeForte, a vice-president of a local union, was indicted on charges of conspiracy, coercion and extortion in that he had misused his union office to “organize” owners of juke boxes and compel them to pay tribute. The union had refused to comply with a subpoena duces tecum whereupon law enforcement officers, without a search warrant, conducted a search of the union’s office and seized papers from an office shared by DeForte and other union officials. DeForte did not claim that the office was reserved for his personal use but he did have custody of the papers at the moment of their seizure. In discussing whether DeForte had fourth amendment standing, the court first recognized that since the papers seized did not belong to DeForte he could have personal standing only if, as to him, the search violated the “right of the people to be secure in their . . . houses.....” The word “houses” is not to be taken literally, the court explained, and the constitutional protection may extend to commercial establishments (392 U. S. at 367). The court continued:
“Furthermore, the Amendment does not shield only those who have title to the searched premises. It was settled even before our decision in Jones v. United States, 362 U. S. 257, that one with a possessory interest in the premises might have standing. See, e. g., United States v. Jeffers, 342 U. S. 48. In Jones, even that requirement was loosened, and we held that ‘anyone legitimately on premises where a search occurs may challenge its legality . . . when its fruits are proposed to be used against him.’ 362 U. S., at 267. The Court’s recent decision in Katz v. United States, 389 U. S. 347, also makes it clear that capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. See 389 U. S., at 352. The crucial issue, therefore, is whether, in light of all the circumstances, DeForte’s office was such a place.” (pp. 367-368.)
The court held that DeForte had standing to object to the seizure, saying:
“. . ■ it seems clear that if DeForte had occupied a ‘private’ office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have standing. ... In such a ‘private’ office, DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors. It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups. This expectation was inevitably defeated by the entrance of state officials, their conduct of a general search, and their removal of records which were in DeForte’s custody. It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte’s wishes, for it is not claimed that any such consent was given, either expressly or by implication.” (pp. 369-370.)
We think defendant Gordon’s reliance upon Mancusi is misplaced insofar as the seizure of records from office A and the storage area is concerned. There the owner or proprietor of the premises, the union, did not consent to the search. It was not the victim of the crimes being investigated and in fact it objected to surrender of the papers. Here the proprietor of the property, Lakeview Village, the victim of the crimes for which evidence was being gathered, initiated the search. The areas which were searched were its own property and included nothing reserved for defendant’s exclusive use. Its attorney gave directions for the search. Defendant Gordon was neither an officer nor shareholder of the corporation as was the case in authority relied upon by him (e. g., Henzel v. United States, 296 F. 2d 650, in which defendant was the organizer, sole stockholder and president of the corporation and United States v. Morton Provision Company, 294 F. Supp. 385, where defendants were officers of corporations which were essentially one or two man operations). His status was that of an em ployee of the corporation. As against him his employer could have preempted its own property and his privacy would not have been invaded. Under these circumstances there simply was no- expectation of freedom from intrusion instigated and directed by that employer and no standing to object to search and seizure existed. Our bolding is that as to records removed from office A and the basement storage area defendant Gordon had no standing to obj’ect on the basis of illegal search or seizure and that part of the judgment must be reversed.
We turn now to the issue of overbreadth in the description of the 'area to be searched, with reference to the search and seizure of items from defendant’s private desk, credenza 'and file cabinet. Both warrants directed a search of three locations: Lenexa State Bank; Lakeview Village, 9100 Park Avenue, Lenexa, Kansas; and Southgate State Bank, Prairie Village, Kansas. Defendant’s contention of invalidity is two-fold: First, the warrants direct the officers to three different Iooafions owned and occupied by separate persons, and second, Lakeview Village is a multiple occupancy structure and the warrants failed to specify the subunit or area to be searched. Both contentions have merit.
It is constitutionally required that a search warrant shall “particularly” describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden. The general rule respecting multiple locations is stated in 68 Am. Jur. 2d, Searches and Seizures, § 78, as follows:
“The very purpose of the constitutional requirement of particularity in. describing the place to be searched, to wit, the prohibition of general warrants, leads to the conclusion that a warrant may not ordinarily authorize the search of multiple premises owned or occupied by different persons.” (p. 732).
There are no facts present in the instant case which appear to justify departure from the foregoing rules. Of greater significance is the fact that one of the places to be and which was searched under that warrant was a highrise multiple occupancy structure occupied by a number of persons and the location was described simply as 9100 Park Avenue, Lenexa, Kansas. No subunit or specific designation or location within the structure was given. The only direction was an address used in common by at least 159 residents of Lakeview Village and for several shops as well. In an annotation at 11 ALR 3d 1330, Search Warrant — Apartment or Room, this statement appears:
. . Where the area under suspicion is located in a structure divided into more than one occupancy unit such as a hotel, apartment house, or similar multiunit dwelling, the question is presented whether the description set forth in the warrant is sufficient to comply with the constitutional requirement. . . . the courts are agreed that a warrant is invalid if it contains no description of the subunit to be searched but refers merely to the larger multiple-occupancy structure. The insufficiency of such a warrant has been recognized in a number of cases where the premises were described merely by the street or municipal number assigned the larger structure and used in common to designate all the occupancy units therein contained.” (p. 1332.)
The foregoing principle has 'been applied to commercial buildings (see e. g., In re Calandra, 332 F. Supp. 737, affirmed sub nom United States v. Calandra, 465 F. 2d 1218, reversed on other grounds, 414 U. S. 338, 38 L. ed. 2d 561, 94 S. Ct. 613). Thu's a search warrant directed against a multiple occupancy structure generally will be held invalid if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units (see cases cited at 68 Am. Jur. 2d, Searches and Seizures, §77, note 39). Here again a few courts have declared exceptions to this rule but none of them, even if recognized, is applicable under the facts in this case. (These exceptions include those summarized in Perez v. State, 249 Ark. 1111, 463 S. W. 2d 394: [1] Where the warrant adequately identifies the subunit by naming the occupant; [2] where the description of the subunit is sufficient to enable the executing officer to locate the premises with reasonable certainty, in spite of a slight omission or inaccuracy; [3] where the deficiency in the warrant may be cured by a proper description in the supporting affidavit, although it is usually required that the affidavit be annexed or attached to the warrant; see also Anno: 11 ALR 3d 1330, supra, III Exceptions and Qualifications, §§5-10, pp. 1340-1347.)
Here the search warrants were general in their terms in that they did not describe the particular area in a large multiple occupancy structure which was to be searched. The only description given was common to many subunits in the building. The effect was to leave the area to be searched to the discretion or option of the executing officers. This is constitutionally forbidden and the trial court correctly ruled as to the items taken from defendant’s private desk, credenza and file cabinet.
Accordingly as to items taken from office A and the basement storage area the judgment is reversed. As to items taken from defendant’s personal desk, credenza and file cabinet in office B it is affirmed. The cause is remanded to the trial court for further proceedings in harmony with this opinion.
approved by the court. | [
49,
-20,
-8,
-100,
10,
-29,
58,
58,
115,
-77,
-29,
83,
-19,
-54,
0,
123,
-6,
61,
-12,
121,
-53,
-74,
87,
-13,
-10,
-69,
-13,
-43,
-71,
77,
-12,
-44,
8,
-96,
-118,
-107,
70,
-120,
-89,
-48,
-114,
7,
-103,
-14,
-39,
64,
36,
59,
-76,
15,
113,
30,
-13,
108,
20,
-61,
-119,
44,
-49,
-83,
112,
-46,
-69,
13,
79,
22,
-126,
6,
-104,
5,
-72,
63,
-112,
48,
-94,
-24,
115,
-78,
-106,
116,
75,
-101,
13,
38,
-62,
65,
-48,
-82,
-32,
-103,
31,
122,
-115,
35,
-102,
24,
32,
37,
-106,
-99,
117,
18,
3,
126,
-25,
4,
31,
108,
-118,
-50,
-60,
-111,
13,
48,
-124,
59,
-21,
33,
16,
112,
-51,
102,
92,
102,
51,
-71,
-50,
-48
] |
The opinion of the court was delivered by
Smith, J.:
This is an action for divorce and to determine property rights brought by a husband against his wife. A judgment was given plaintiff. Defendant appeals.
The petition alleged the marriage and the birth of a daughter who was about seventeen years old at the.time the petition was filed. The petition further alleged that the couple owned jointly a described lot in Parsons, with a twó-story dwelling house on it of the fair market value of $5,500, household goods of the value of $1,430, and an automobile worth about $250. The petition then alleged that defendant had been guilty of extreme cruelty toward plaintiff and had abandoned him for a year before the action was begun.
The prayer was for a divorce and a settlement of property rights of the parties.
The answer admitted the allegations about the marriage, the child ' and the ownership of the property. The answer further stated the automobile was purchased by the couple and a down payment was made by obtaining a loan of $300 on a life insurance policy owned by defendant. The allegations of the petition with reference to cruelty and desertion were denied. The prayer was that plaintiff take nothing by his petition, and for a reasonable attorney fee.
In a bill of particulars plaintiff alleged that defendant had at one time commenced an action against plaintiff for separate maintenance based upon allegations of extreme cruelty and adultery; that the charges were false and unwarranted and the action was later dismissed; that she subsequently charged plaintiff with the crime of failing to support her and the child; that this charge was false and was dismissed by the county attorney at the cost of the county; that subsequent to the filing of the above charge she instituted an action for divorce, based upon extreme cruelty and gross neglect of duty, and testified on' the stand that she did not want a divorce, whereupon the court upon its own motion dismissed the action; that she had made many inquiries of friends of plaintiff as to his whereabouts, had on one 'occasion seen a friend in plaintiff’s automobile and complained about it; that she on one occasion took officers to a hotel and inquired for plaintiff and when she saw plaintiff at home committed acts of violence upon him; that on three different occasions defendant had locked the door of plaintiff’s home at night so that plaintiff could not enter; that on one occasion defendant had, in the presence of her parents, stated that plaintiff had been guilty of immoral association with other women, which was untrue.
The bill of particulars also stated that the ground for his general allegation of abandonment was that defendant totally neglected plaintiff for more than one year by failing to live with him.
At the trial the plaintiff established by the records the filing of the various actions. He also testified as to the other specific acts alleged. There was evidence introduced by plaintiff as to the plan of financing the buying of the house, furniture and automobile as well as other financial transactions of plaintiff and defendant.
The defendant offered evidence tending to explain the various actions she had commenced and the other evidence of plaintiff. Defendant offered testimony as to the joint financial affairs of the couple, including transactions relating to the home, the furniture and the car.
The trial court found the facts generally in favor of plaintiff and against defendant. On June 21, 1946, on the above finding plaintiff was granted a divorce. Judgment as to the property rights was reserved. On June 27, 1946, the court found that defendant should be decreed to be the sole owner of the house and lot that had been the home, and all household goods located on the premises; that defendant had in her possession $700 in money and bonds, which should be decreed to be her separately acquired fund free of any claims of plaintiff. The court also found that plaintiff should be decreed to be the owner of the automobile, and should be given judgment against defendant for $1,500, which should be a lien upon the house and lot, subject only to the mortgage of $1,300 upon it. The costs were divided between the parties, each to pay one-half.
Judgment was entered accordingly.
The defendant filed a motion for a new trial on the grounds 'that the trial court had abused its discretion; that the decision was given under the influence of passion and prejudice; that it was in whole-or in part contrary to the evidence; and that the division of the property was' unfair and inequitable. This motion was overruled.
Defendant gave' notice that she appealed from the judgments rendered on June 21 and June 27, 1946, as well as from the order overruling her motion for a new trial.
The specifications of error are that the court erred in granting plaintiff a divorce from defendant for the reason that plaintiff’s evidence did not. support his alleged grounds for divorce; that the court abused its discretion in making an unfair and inequitable division of the property, and that the court erred in overruling defendant’s motion for a new trial.
No specific findings were requested or made. The court simply made a general finding in favor of the plaintiff and- against the defendant.' Such a finding carries with it as established all the facts necessary to support the judgment. (See Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 56 P. 2d 76, also Fidelity Savings State Bank v. Grundeman, 158 Kan. 656, 149 P. 2d 340.) We will not weigh evidence where a general finding is supported by substantial testimony. (See Stanley v. Stanley, 131 Kan. 71, 289 Pac. 406.) A corollary of this rule is that it is the business of the trial court to draw inferences and conclusions from the established facts as long as they are reasonable. There can be no doubt at all about the filing of the three actions and their dismissal. Plaintiff testified these actions were filed without any good ground. ■ Defendant denied this but if the trial court believed the testimony of plaintiff that they were groundless and without justification they would amount to a course of conduct that would constitute extreme cruelty. Coupled with this was the testimony offered by the plaintiff that on various occasions the door of his home was locked when he returned at night and he was compelled to find shelter elsewhere. This course of conduct, coupled with accusations of defendant that he had been consorting with other women all night, and other statements of the same general nature, manifested a suspicious and malicious attitude of defendant toward plaintiff. The defendant on the stand denied and explained many of these occurrences. However, it was the duty of the trial court to weigh the evidence under all the circumstances and reach conclusions as to the facts. Once that conclusion was reached we cannot disturb it on appeal.
In Hayn v. Hayn, ante, p. 189,175 P. 2d 127, we said:
“Extreme ■ cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physical violence. The modern and better considered cases have repudiated the ancient doctrine requiring physical violence as too' low and sensual a view of the marriage relation. It is now generally held, and in this state it has long been the rule, that any unjustifiable and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted, or threatened. (Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122; Stegmeir v. Stegmeir, 158 Kan. 511, 518, 148 P. 2d 755, and cases therein cited.) Under some circumstances it may not be necessary that such conduct should continue over a long period to constitute extreme cruelty.” (p. 193.)
The above statement of the law is especially apropos on this record. The court was amply justified in concluding from the evidence that the course of conduct of the defendant had entirely destroyed the prospect of a happy married life between herself and her husband.
In specification of error No. 2 the defendant argues that the court abused its discretion in making an unfair and inequitable division of the property owned by plaintiff and defendant. The pertinent statute is G. S. 1945 Supp. 60-1511. It reads as follows:
“If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her of the whole of her property, lands, tenements and hereditaments owned by her before, or by her separately acquired after such marriage, and not previously disposed of, and also the court may award the wife such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable; and she shall be barred of all right in all the remaining lands of which her husband may at any time have been seized. And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. But in case of a finding by the court, that such divorce should be granted on account of the fault or aggression of the wife, the court may in its discretion set apart such a portion of the wife’s separate estate as may seem proper for the support of the children, issue of the marriage. When a divorce shall be granted on account of the fault or aggression of the wife, the wife may be restored to her maiden or former name.”
Evidence was offered by both parties as to their financial trans^ actions. They had been married twenty-three years, their latest transaction had bepn the acquisition of the real property in which they were making their home, at the time their disagreements began. This property seems to have been valued at about $5,500. As the case" was finally decided, the wife received the real property with liens of $1,300 and $1,500 against it — $2,800 against a $5,500 property. She was given the household goods, which seems to have been valued at about $1,430, and $700 in money and bonds. The plaintiff was awarded the $250 car and judgment .for $1,500. The trial court heard this evidence and had an opportunity to examine the witnesses with reference to it. The record is not in such a shape that we can take the figures to which the parties testified and make a finding that some other amount would have been equitable. .
Defendant next argues that the trial court erred in overruling her motion for a new trial. The argument on this point is a repetition in a large measure of the evidence offered on the second- specification of error.' 'Defendant argues especially that there was no corroboration of the evidence upon which the plaintiff relied. We have examined the record with reference to this point and find that there was. corroboration of sufficient material eviden'ce to warrant the court in making the finding it did make.
The judgment of the trial court is affirmed. | [
-48,
124,
84,
-19,
10,
-32,
-86,
-99,
113,
-95,
-89,
-45,
-19,
74,
0,
107,
42,
27,
64,
107,
-41,
-77,
95,
-32,
-78,
-77,
-13,
-35,
-79,
-49,
-12,
118,
76,
32,
-126,
-43,
102,
-102,
-57,
80,
14,
-127,
9,
-19,
-39,
74,
-76,
59,
82,
11,
117,
-97,
-13,
44,
125,
66,
40,
44,
91,
40,
-44,
-8,
-114,
-99,
95,
46,
-77,
36,
-98,
-32,
-56,
42,
-104,
49,
0,
-23,
115,
-90,
-106,
116,
77,
-101,
8,
52,
98,
0,
69,
-1,
72,
-104,
15,
126,
-99,
38,
-110,
88,
9,
68,
-66,
-99,
109,
16,
43,
126,
-21,
29,
92,
104,
3,
-53,
-106,
-71,
-123,
56,
-102,
3,
-29,
-93,
0,
113,
-53,
34,
92,
103,
57,
-103,
-49,
-70
] |
The opinion of the court was delivered by
Burch, J.:
This appeal necessitates a construction of our statute requiring that when the title to minerals is severed from the fee to the surface, the mineral rights shall be valued and listed separately from the fee of such land and that the land itself and the right to the minerals shall be separately taxed to the respective owners thereof. The involved statute (G. S. 1935, 79-420), will be set forth subsequently herein. The precise question to be considered is whether a grantor must list the mineral rights separately for taxation in the event the grantee fails to record a deed, in which the grantor excepted and reserved the mineral interests, within ninety days after its execution. The trial court held that it was incumbent upon the grantor to record or list for taxation the reserved or excepted oil, gas and mineral rights and that the failure to do so within the statutory period resulted in the grantor having conveyed full fee title to the grantee and that his successor in interest obtained such title. The stipulated and otherwise admitted facts follow.
During the month of July, 1944, the trustees of Park College executed a warranty deed to Charlie J. Kallman covering the land in controversy. For some reason, not now material, the deed was placed in escrow on July 31, 1944. The escrow holder delivered the deed to Kallman on or about August 21, 1944. It contained the following provision:
“Party of the first part excepts and reserves all oil, gas and all other minerals for the benefit of itself, its successors and assigns, with the right at all times to prospect for, mine, extract and remove same from the land by any and all methods; . . .”
Nothing more was done by Park College or by Kallman which affected the title to any part of the property until on or about March 6, 1945, when Kallman executed a quitclaim deed covering the land to the appellee, Sam Medford. On March 15, Med-ford caused to be filed for record the warranty deed from Park College to Kallman and also the quitclaim deed from Kallman to Medford. On June 22, 1945, Medford filed an action to quiet title to the involved land. In his petition it was alleged that the exception or reservation hereinbefore set forth amounted to a severance of the minerals from the land and that because of the failure to record the severance within the ninety days or to list the same for taxation the exception or reservation became absolutely void and that Medford was, therefore, entitled to have his title quieted and be declared the sole and unconditional owner of the entire fee title in and to the land described in the deed. The amended answer filed by Park College set forth that the deed to Kallman conveyed to him only the surface rights; that Kallman had sole possession of the deed at all times subsequent to its delivery by the escrow holder and that, therefore, Kallman could have at any time thereafter filed the deed for record; that any delay in filing the same was chargeable exclusively to Kallman or his assigns; that Kallman and his successor in interest are not entitled to derive any benefit to the’ prejudice of Park College from the delay in filing the deed for record; that Kallman is estopped from asserting any interest in the oil, gas or minerals under the described real estate; that Medford did not acquire any interest in the same; that Park College owns all of the oil, gas or mineral rights; that if the involved statute purports to forfeit, invalidate or otherwise deprive Park College of its title to the oil, gas or minerals under the described real estate, the same is unconstitutional and void in that Park College would thereby be deprived of its property without just compensation and without due process of law and would be denied equal protection of the laws. In its answer Park College also alleged that the failure to record the deed to Kallman within the ninety-day period in compliance with the statute resulted in the entire deed being vpid and that Park College should be decreed to be the sole owner and entitled to the immediate possession of the real estate. Medford’s- reply consisted of a general denial. The case was tried to the court upon the issues joined by the pleadings and upon the stipulation of facts which, in addition to the foregoing, set forth that there had been no separate listing of or offer to list for taxation the mineral estate by Park College for the taxable years 1944 and 1945; that Park College acquired complete 'fee title to the real estate in 1939 and that the deed showing such title in Park College was recorded on June 13, 1939. It was further stipulated that there had been no production of oil, gas or other valuable minerals from land within a radius of twenty miles of the land in controversy and that it was the policy of Park College to insert in all of its deeds of farm land a similar reservation of the oil, gas and valuable mineral rights. The trial court found that the quoted exception or reservation in the deed was equivalent to a severance of the oil, gas and other minerals in place and that the. reservation was null and void because it was not. recorded within. ninety days or listed for taxation in accordance with the statute and adjudged that Medford was the owner in fee simple of the real estate and further that Park College and all parties claiming as its successors in interest, should be barred from asserting any interest in the property. A motion for a new trial was overruled and appeal followed.
The. orbit of the action.is around our statute, G. S. 1935, 79-420, supra, which reads:
“That where the fee to the'surface of any tract, parcel or lot of land is in any person or persons, naturál or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the .fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to’the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and' are a matter 'of record, a certified description of all such reserves: Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.’’
Counsel for Park College contend that the statute should not apply where the mineral rights are excepted from or reserved in a deed conveying only the surface rights. Counsel for Medford assert that this court definitely has held to- the' contrary in the case of Johnson v. Johnson, 150 Kan. 541, 95 P. 2d 329. In the cited case the record title owner of real estate conveyed the same by a deed which reserved all the oil, gas and other minerals in the land. The deed was recorded in a few days. Consequently, no controversy arose by reason of the failure to record the deed within the ninety days after its execution. The question for decision in the case was whether such a recording of the deed was a sufficient, separate listing for taxation of the mineral interests so that it was unnecessary for subsequent purchasers or holders of the mineral interests also to record the instruments conveying the mineral interests to them within ninety days or otherwise list them for separate taxation. The holding was to the effect that the subsequent conveyances of the mineral interests were of no importance since a severance of the mineral rights from the title to the surface was made by the original conveyance, which had been recorded in compliance with the statute. In other words, we held that where a severance of the mineral interests has been made and recording thereof has followed ,in compliance with the statute that it is not necessary thereafter to record or list separately for taxation other conveyances of integral interests in and to the mineral rights. As before stated, since there had been a compliance in the cited case with the statute in connection with the recording of the original deed, no question actually arose in the case which necessitated a decision determining whether the failure to record or list for taxation a reservation or an exception by the grantor of mineral interests resulted in the reservation or exception becoming void. Therefore, the question before us in the instant case was not settled or determined by the decision in Johnson v. Johnson, supra. In justice to the trial court, however, it must be said that mudr of the dicta in the opinion sustains the conclusion reached by the trial court in the instant case. Dictum often develops in opinions from comments upon arguments advanced by counsel for the respective parties. Dicta and obiter dicta which go beyond the case may be respected but should not control a judgment in a subsequent case when the precise point is presented, argued and considered by the entire court. (See Express Co. v. Foley, 46 Kan. 457, at 464, 26 Pac. 665.) Nobody is bound by. dictum (State v. Mercantile Co., 103 Kan. 896, 176 Pac. 670), “not even . . .■ the court itself when it may be further enlightened by briefs and arguments of counsel and mature consideration and when it becomes a question squarely presented for decision.” (Putnam v. City of Salina, 137 Kan. 731, at 733, 22 P. 2d 957). See, also, Burke v. State Board of Canvassers, 152 Kan. 826, at 836,107 P. 2d 773. Moreover, none of the cases cited in Johnson v. Johnson, supra, pass upon or consider the exact question presented by this appeal. Insofar as thé briefs and our research have disclosed, the question now presented is one of first impression in this court. As a result we are required again to give consideration to the confusing, confounding, perplexing language found in the statute in an effort to determine whether it was the intent of the legislature to require a grantor, who did not convey but who excepted mineral rights from a conveyance, to record the instrument of conveyance withimninety days or otherwise list the mineral interests for taxation.
The statute originally was enacted in 1897. It contained the . present provision reading as follows: “That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.” (Emphasis supplied.) Subsequent to the enactment of the statute this court held, in January, 1905, that an exception or reservation in a deed, reading very, similar to the one involved in the instant case, constituted an exception and not a reservation. From the case of Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150, the first syllabus is quoted as follows:
“A deed'to real estate contained the following provision: ‘This deed is made subject to the following exceptions, reservations, and conditions, to-wit: . . . The said party of the first part hereby reserves the coal and all other mineral underlying said land.’ Held, that this constituted an exception, not a reservation. The title to the coal remained in the grantor; not a mere easement to go upon the land to mine it.”
Again, in November of the same year, to wit, 1905, this court in Moore v. Griffin, 72 Kan. 164, 83 Pac. 395, construed a similar designated reservation in a deed as an exception as distinguished from a true reservation. In addition, later this court in March, 1907, called attention to the inadequate and inaccurate language of the statute in the opinion written in the case of Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750, from which the following is quoted:
“The confusion of thought and inaccuracy of expression so frequently exhibited in legislative enactments are quite apparent in this one, and the precise purpose to be accomplished is somewhat difficult of discernment.” (p. 337.)
Notwithstanding the admonitions on the part of this court in the cited cases -and also in others, the legislature, in 1911, reenacted the statute without changing its wording in any respect. Consequently, it is very difficult to conclude that the legislature in 1911 intended that the word “reserves” used in the statute should be construed by the courts to include “exceptions.” Apparently the legislature was satisfied not to include within the operation of the statute conveyances which contained exceptions of the mineral rights regardless of whether they were designated as reservations or exceptions.
Perhaps, however, it may be properly asserted that because the modern tendency of courts has been to brush aside fine distinctions and look to the character and effect of the provision, the legislature intended that the word “reserves” should be construed to include all exceptions. Such a conclusion is hardly warranted in view of the warning given the legislature by our decisions but possibly it is sufficient to necessitate further analysis of the statute in order to determine the legislative intent. Shortly before the reenactment of the statute in 1911 this court, in July, 1910, filed its opinion in the case of Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. 1002, which considered the effect of the statute and in substance stated that it was the duty of the owner of the instrument which conveyed the property to record it within the time specified by the statute and also to see that it was listed for taxation in the proper time. Thus the statute was construed as applying to conveyances rather than to reservations or exceptions. Although the distinction was not emphasized in the opinion, such case, when considered with our prior decisions, should have prompted the legislature to change the, statute if it so desired.
It should be noted that the deed involved in the instant case did not convey any interest in and to the minerals to the grantee. The legal effect of a true exception in a deed is the same as if no conveyance had been made of the property excepted from the deed. As a result, the mineral interests, together with the surface interests, remained listed for taxation as an entirety in the name of the grantor until such time as the grantee saw fit to record the deed. The theory has been often expressed in our own and other decisions that assessors, in fixing the valuation of land, take into consideration the value of all parts of the real estate and all improvements thereon for all purposes. It was said in Richards v. Shearer, 145 Kan. 88, at 93, 64 P. 2d 56, that “the entire tax would properly have been assessed against the property of the grantor.” Thus the grantor in the presen! case was in no different position, from the standpoint of taxation, than he would have been if he had conveyed a described portion of the fee of the property in its entirety to the grantee and the grantee had failed to record the instrument. This court has recognized again and again that fractions of land located in Kansas can be conveyed either vertically or horizontally. If an owner of the fee conveys to another any part thereof, the title to the part not conveyed remains vested in the owner, and if any inequality results from the failure of the grantee to record the conveyance for tax purposes, the original fee owner can pay the taxes upon the entire property, under protest, and apply to the county board of equalization for a rebate, as was stated in Mining Co. v. Crawford County, 71 Kan. 276, at 278, 80 Pac. 601, which case was cited with approval in Hushaw v. Kansas Farmers Union Royalty Co., 149 Kan. 64, 86 P. 2d 559. The legislature has not seen fit to enact any clear exception in case a farmer or other landowner sells a part or all of the minerals under his land. Therefore, a presumption arises that the legislature has not desired to do so, and we are of the opinion that the statute under consideration does not require such a construction.
In the cited case of Hushaw v. Kansas Farmers Union Royalty Co., supra, the opinion, in considering the constitutionality of the statute here involved, set forth that “Manifestly this is not the forfeiture of a vested title, but a condition precedent to the vesting of title in the transferee. This was the construction of the statute as given in Gas Co. v. Oil Co., supra, and we adhere to the view there expressed.” (p. 74.) (Emphasis supplied.) The case before us presents an instance wherein the title to the mineral interests has not been transferred but has been and remained vested at all times in the grantor.
We are not now departing from our decisions which hold that a severance of the mineral interests can be effected within the purview of the statute by a reservation or exception of the mineral interests in an instrument of conveyance in such manner that thereafter the mineral interests and the surface rights can and should be separately listed for taxation. It is not necessary for us to disrupt or set aside our decisions to such effect 'in reaching our conclusion that it was not the intent of the legislature to require vested interests to be recorded a second time or separately listed by the grantors for taxation in the event all or any part of the surface rights only were conveyed. The statute- does not provide that a conveyance of the surface rights must be recorded within a designated time or separately listed for taxation.
To hold that the legislature intended that grantors excepting mineral rights from conveyances or conveying mineral interests should record the conveyances and separately list the interests for taxation would result in a ridiculous and impractical construction of the statute. Our decisions uniformly hold that where the involved instrument creates a present vested interest in the minerals in place' as distinguished from a mere lease which is in the nature of a license to enter.and explore, the grantee must record the conveyance of the mineral interests or separately list the mineral interests for taxation in compliance with the statute but we have never held that the legislature contemplated that a grantor named in such an instrument must also see that it is recorded or that the mineral interests ■are separately listed for taxation. What is the result if we so hold? For the purpose of illustration, let it be assumed that a grantor con veys to another an undivided one-half interest in and to the oil,, .gas and other mineral rights, as frequently happens. Add to the assumption the fact that the grantee does not record the instrument or separately list the interest for taxation, as contemplated by the statute. As a result the conveyance to the grantee becomes void by reason of the operation of the statute and in the event the fee owner brings an action for such a purpose, a forfeiture of the conveyed mineral interests will be decreed and the instrument creating them will become a nullity for all purposes under our decisions. Suppose, however, that the named grantee asserts in the same action that the grantor failed to record or list for taxation the undi- ' vided oñe-half interest in and to the mineral rights which ■ he retained, reserved or excepted, would this court hold in such circumstances that the grantor had forfeited his one-half interest in the mineral rights and that the grantee likewise had forfeited the other one-half interest which had been conveyed to' him? If so, who would own the mineral interests and in what proportions? If each forfeited to the other in such a case, neither would have to comply with the statute in order to obtain a half interest in the minerals. But what would be the result if the mineral interests had been transferred in unequal proportions? Surely, the legislature never intended that such uncontemplated, complicated consequences should result from a legal construction of the statutory language. We hold that a grantor retaining by, or excepting from, a conveyance, a vested and recorded title to any minerals is not required to record the instrument executed by him within ninety days after its execution or to list separately such mineral interests for taxation under and by reason of G. S. 1935, 79-420.
The foregoing conclusion makes it unnecessary for us to consider the constitutional and other questions raised by the answer filed in behalf of Park College. We are unable to agree with the contention asserted in such answer that the failure of the grantee to record the deed to the surface of the land resulted in such instrument being void in its entirety. As hereinbefore stated, we do not have a statute which requires a deed conveying surface rights only to be recorded by the grantor within a specified period. Neither do we have one which requires a grantee to do so.
The judgment of the district court is reversed and the cause is remanded with instructions to quiet the title to the surface of the land in Sam Medford and the title to all oil, gas and other minerals in the board of trustees of Park College, and also the title to such incidental rights as are set forth in the exception clause of the involved deed.
Harvey, C. J., dissents. | [
116,
122,
-43,
28,
59,
96,
10,
-103,
105,
-115,
-91,
83,
45,
66,
-108,
37,
-94,
45,
117,
107,
-58,
-77,
6,
-63,
2,
-13,
113,
-43,
117,
92,
-12,
87,
76,
32,
-54,
21,
70,
-128,
77,
88,
-114,
-123,
-71,
77,
-39,
16,
52,
43,
114,
75,
81,
-98,
-13,
44,
28,
71,
8,
44,
-5,
-71,
81,
-72,
-85,
-116,
127,
70,
17,
3,
-72,
-123,
-40,
10,
-104,
48,
0,
-24,
127,
-90,
-58,
-12,
11,
-103,
-88,
46,
102,
49,
117,
-25,
-22,
-104,
46,
-78,
13,
-92,
-42,
88,
34,
-32,
-98,
-99,
121,
16,
67,
126,
-30,
-107,
93,
45,
23,
-49,
-46,
-93,
15,
124,
-99,
1,
-13,
35,
52,
112,
-50,
-18,
92,
71,
123,
19,
-122,
-39
] |
Per Curiam:
The petitioner, Robert Green, is the appellant from a district court judgment denying his motion to set aside a first-degree murder conviction under K. S. A. 60-1507. In the district court counsel was appointed and he was given a hearing.
On December 16, 1970, Green was convicted by a jury of first-degree murder for the death of Glenda Kay Williams. He was sentenced to life imprisonment and subsequently appealed. In State v. Green, 211 Kan. 887, 508 P. 2d 883, petitioner’s conviction was affirmed and it was held the trial court did not abuse its discretion in refusing to give credence to the recanting testimony of the state’s prime witness in the murder prosecution or in overruling Green’s motion for a new trial.
In his post-conviction motion filed on December 7, 1973, Green sought to vacate the sentence, alleging that the trial court lacked jurisdiction, and contending that he was denied his constitutional rights to a fair and impartial trial. The district court heard and denied Green’s motion in a careful, well-reasoned memorandum decision.
It is first argued that pretrial publicity so prejudiced the community where the petitioner was tried as to render selection of an impartial jury impossible. Petitioner points to two mistrials forced by publicity preceding his conviction and contends the trial court erred by refusing his motion for a change of venue. The only evidence petitioner has produced in support of his claim of prejudicial publicity at the trial which resulted in his conviction is a series of newspaper articles which detailed the murder and petitioner’s arrest.
The rule in Kansas is that a change of venue in a criminal case lies within the sound discretion of the trial court. (State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255; State v. Randol, 212 Kan. 461, 513 P. 2d 248.) The burden of proof is cast upon the accused to show prejudice in the 'community not as a matter of speculation but as a demonstrable reality in support of a motion for a change of venue. (State v. McCorgary, 218 Kan. 358, 543 P. 2d 952.) The mere publication of news articles does not establish prejudice per se which would deny the defendant a fair and impartial trial in the community. (State v. McCorgary, supra; State v. Randol, supra.) Even though a criminal matter is widely covered and reported by the news media, it does not follow, without further evidence, that such prejudice exists as might reasonably prevent a fair trial. (State v. Lamb, 209 Kan. 453, 497 P. 2d 275.)
In State v. Frames, 213 Kan. 113, 515 P. 2d 751, this court reviewed the same newspaper articles which petitioner contends are prejudicial. It was held that petitioner’s accomplice in the murder was not prejudiced by the news accounts and his conviction was affirmed. In the present case the record discloses that sixty-three jurors were examined on voir dire, but only thirteen were challenged and excused because of knowledge of the case. The examination of prospective jurors demonstrates that the community was not saturated with prejudice. (See, State v. Cameron & Bentley, supra at p. 647.) The case is easily distinguished from Sheppard v. Maxwell, 384 U. S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507, and other decisions cited by the appellant.
The petitioner contends that he was denied a representative jury because the trial court excused jurors who were opposed to the death penalty. It has been held that a death sentence cannot be constitutionally imposed by a jury from which jurors have been removed because they have an aversion to capital punishment. (Maxwell v. Bishop, 398 U. S. 262, 26 L. Ed. 2d 221, 90 S. Ct. 1578; Bumper v. North Carolina, 391 U. S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788; Witherspoon v. Illinois, 391 U. S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770; State v. Theus, 207 Kan. 571, 485 P. 2d 1327; Zimmer v. State, 206 Kan. 304, 477 P. 2d 971.)
But the petitioner in this case was not sentenced to death. However, he argues that because jurors were excluded who had conscientious scruples against imposing the death penalty, the jury selected was unrepresentative on the issue of guilt and as such increased his risk of conviction. An identical contention was reviewed and rejected in State v. Campbell, 210 Kan. 265, 270, 271, 500 P. 2d 21. Campbell held that the Witherspoon decision is not applicable where the death penalty is not imposed. There is no presumption that a jury which has been stripped of members opposed to the death penalty is unrepresentative on the issue of guilt and the burden is on the defendant to prove such an allegation. (Also, see, Turner v. State, 208 Kan. 865, 494 P. 2d 1130; Zimmer v. State, supra.) Petitioner in this case offered no evidence beyond a mere assertion that the jury was unrepresentative and his attack against the jury must be rejected.
The petitioner contends that he was denied a jury which represented á fair cross-section of the community by virtue of certain statutes in effect at the time of his trial which provided women an excuse from jury duty upon their request. There is no evidence that petitioner was prejudiced by the statutes he questions. The record does not reveal whether any women requested an excuse. Additionally, women were adequately represented on the jury which convicted petitioner; five female jurors sat on the jury and one of two alternate jurors was a woman.
The petitioner also claims that the law disqualifying convicted felons from jury service denied him an impartial jury. The record does not disclose whether any prospective juror was a felon, and no exemptions were claimed on that ground. The claim is without merit.
The petitioner next contends that the state of Kansas was without jurisdiction in this action. He argues that because the murder was committed on a stream it was incumbent on the state to show the body of water to be non-navigable, since state courts lack jurisdiction in matters involving navigable waterways. This claim is without merit. There was substantial, competent, unrebutted evidence presented at the trial which established that the killing occurred on the banks of a small stream in Johnson County, Kansas. We adopt the trial court’s careful and sensible analysis of this issue.
Finally the petitioner argues that the trial court erred by failing to instruct the jury on the lesser included offenses of second-degree murder and manslaughter. This court has held that while K. S. A. 21-3107 (3) requires instructions on lesser included offenses where there is support for such instructions in the evidence, failure to instruct on lesser degrees of the offense charged is not error where the evidence negatives a lesser degree of guilt. (State v. Cameron & Bentley, supra; State v. Hollaway, 214 Kan. 636, 522 P. 2d 364.)
In this case the evidence of premeditation and malice was overwhelming and undisputed. The evidence presented by petitioner at trial did not proceed upon a theory that he had committed a lesser offense, since he claimed solely that he took no part in the killing. Under these circumstances it was not incumbent on the trial court to instruct on lesser included offenses. Furthermore, the claim does not involve a constitutional question. Error in the instructions could and should have been raised on appeal from the conviction.
We find no merit in any of appellant’s claims that he was denied due process of law. The case was well and carefully tried and the district court judgment must be and is affirmed. | [
-112,
-22,
-15,
94,
9,
-31,
50,
-72,
96,
-29,
37,
113,
101,
-38,
4,
107,
58,
109,
85,
121,
-59,
-73,
87,
-55,
-78,
-77,
-55,
-43,
-9,
-33,
102,
-3,
12,
-16,
74,
117,
102,
-54,
-123,
90,
-114,
8,
-104,
-47,
-48,
0,
48,
99,
90,
31,
65,
126,
-77,
40,
17,
-59,
-55,
60,
91,
-81,
80,
-47,
-103,
7,
-1,
6,
35,
-75,
-108,
3,
88,
39,
-40,
57,
0,
-24,
55,
-90,
6,
117,
107,
-103,
40,
102,
66,
32,
36,
-113,
33,
-107,
-17,
20,
13,
-25,
-102,
72,
105,
41,
-106,
-3,
112,
52,
47,
116,
-20,
21,
29,
44,
11,
-50,
-112,
-77,
-113,
60,
-82,
83,
-21,
16,
-112,
33,
-51,
98,
94,
-29,
121,
-5,
-99,
-75
] |
The opinion of the court was delivered by
Schboeder, J.:
This is an appeal wherein the surviving dependents of a deceased workman were awarded workmen’s compensation benefits against Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., the workman’s direct employer who had just two weeks prior to the fatal aircraft accident purchased a flight training school from Mid-Continent Aviation, Inc. Unable to collect the award from the deceased workman’s direct employer, the surviving dependents brought an action against the insurance carrier, the insurance agent and the agency which had previously written workmen’s compensation insurance on Mid-Continent Aviation, Inc., the entity from which Mr. Fairchild had purchased his business. (The action was also against the deceased workman’s direct employer, but he was dismissed by the trial court without prejudice to the plaintiffs, and this appeal does not concern him.) The trial court found against the plaintiffs and refused to permit recovery against the insurance defendants.
On appeal the surviving dependents of the deceased workman seek to establish a relationship which will render the insurance defendants liable for the award against Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc. They contend there was either a lessor/lessee or a contractor/subcontractor relationship, as provided by K. S. A. 44-508 (h) or K. S. A. 44-503 (a), which makes the workmen’s compensation insurance carrier of Mid-Continent Aviation, Inc., liable for the award.
Nancee K. Elli's, Randal Scott Ellis 'and Jeffery Charles Ellis (plaintiffs-appellants) are, respectively, the wife and minor children of Charles Lindell Ellis, a deceased employee of Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc. (Kenneth Fairchild repeatedly denied that he was incorporated. However, the trial court used “incorporated” in its journal entry.) Southeastern Aviation Underwriters, Inc., Insurance Company of the State of Pennsylvania, Mann-Kline, Inc., Division of Marsh & McLennan, and Corky Nason, agent for Mann-Kline, Inc., (defendants-appellees) are, respectively, the insurance carriers, insurance agency and insurance agent which procured, brokered, underwrote or issued a policy of workmen’s compensation insurance covering Mid-Continent Aviation, Inc. By court order dated November 21, 1973, American Home Assurance Company, subsequent to the filing of the action, was added as a party defendant.
Mid-Continent Aviation, Inc., (hereafter also referred to as Mid-Continent) leased land at the Fairfax Airfield from the Board of Public Utilities of Kansas City, Kansas. Mid-Continent conducted two different aircraft schools, a “flight” school which trained pilots and a “ground” school which trained aviation mechanics.
Prior to October of 1968, Kenneth Fairchild and Charles Lindell Ellis worked as flight instructors for Mid-Continent’s “flight” school.
On October 1, 1968, Kenneth Fairchild and his financial backer, Mr. Horridge, entered into a purchase agreement with Mid-Continent, to buy the “flight” school. Mid-Continent retained the “ground” school. Mr. Fairchild’s name was used in the business name of the newly acquired “flight” school business, which was named Kenneth Fairchild Mid-Continent Aviation, Inc., because it was well-known in aviation circles.
Under the purchase agreement, Mid-Continent sold, transferred and assigned to Kenneth Fairchild:
"[T]he right to train the current active flight school students of Mid-Continent, seventy-five percent (75%) of the existing prepaid receipts of Mid-Continent for active flight school students . . ., the right to the telephone numbers FAirfax 1-3035, 3036, and 3037, and the right to use the name ‘Mid-Continent Aviation Flight’ in connection with the operation of a flight school.”
The above assets were the only assets included in the sale and transferred. Mid-Continent continued to operate the “ground” school. Mr. Fairchild continued to use the same premises for the “flight” school as before, but he did not report or answer to anyone at Mid-Continent. Mr. Horridge had no connection with Mid-Continent.
Nothing in the purchase agreement mentioned workmen’s compensation. Mr. Fairchild testified he thought he was covered by workmen’s compensation insurance for his employees, and he had never received any notice of cancellation by the insurance company. He testified Mr. Horridge took care of all the paper work.
Nothing in the purchase agreement mentioned renting facilities from the Board of Public Utilities. Although Mr. Fairchild was not clear about whether he leased facilities from the Board of Public Utilities or from Mid-Continent, cross-examination produced the following exchange:
“Q. Did you ever execute a lease with the City of Kansas City, Kansas or the Board of Public Utilities yourself with regard to the premises? Yes or no?
“A. I believe so, yes, sir.”
Mr. Fairchild employed Charles Ellis as a pilot instructor for Kenneth Fairchild Mid-Continent Aviation, Inc. Mr. Fairchild testified he never told Mr. Ellis of the change in employer status. The last check Mr. Ellis received while living was signed by Mid-Continent.
On October 14, 1968, Charles Ellis died in an aircraft accident while working for Kenneth Fairchild Mid-Continent Aviation, Inc. On November 22, 1968, Kenneth Fairchild Mid-Continent Aviation, Inc., issued its first and last check to Mrs. Ellis to pay for Mr. Ellis’ work. Mrs. Ellis testified this was the first time she became aware that Mr. Fairchild had become Kenneth Fairchild Mid-Continent Aviation, Inc.
Approximately a year later, Mrs. Ellis filed a workmen’s compensation claim. On May 14, 1971, Duane E. West, examiner, made a workmen’s compensation award in favor of the claimants in the sum of $17,250. From the record it appears that Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., was the only respondent in the workmen’s compensation action. Apparently Kenneth Fairchild Mid-Continent Aviation, Inc., never acquired workmen’s compensation insurance and claimed insolvency.
On October 18, 1972, the plaintiffs filed a direct action in the district court of Wyandotte County. The petition alleged the compensation award in favor of the plaintiffs, demand upon Kenneth Fairchild Mid-Continent Aviation, Inc., and Southeastern Aviation Underwriters, Inc., and their refusal to pay. It then alleged:
“That by reason of the refusal and failure of the defendants to pay the plaintiff in accordance with the award, the entire balance of the award in the amount of $17,250.00 together with interest has become due and payable.”
On March 26, 1973, and December 7, 1973, the plaintiffs filed their first and second amended petitions respectively. The petition and the amended petitions alleged:
"That defendant Kenneth Fairchild d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., is the same corporation or a successor corporation or the alter ego of Mid-Continent Aviation, Inc. that was the employer of the above-named deceased.”
The plaintiffs claimed the Board of Public Utilities of Kansas City, Kansas, was the principal within the meaning of K. S. A. 44-503 dealing with subcontracting, but no claim is made in the petition or amended petitions that the plaintiffs were attempting to hold Mid-Continent Aviation, Inc., on a similar theory. This claim was first asserted in the November 21, 1975, motion for a new trial. On December 1, 1975, the Board of Public Utilities was dismissed from the action without prejudice. No appeal has been taken from this order.
The defendants in their answers raised many defenses. Among other things they alleged no policy of insurance was ever written covering Kenneth Fairchild Mid-Continent Aviation, Inc., and the statute of limitations had run.
On November 13, 1975, the trial court ruled in favor of the defendants. The trial court found the defendants had only insured Mid-Continent Aviation, Inc., which was a different entity from Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc. The court also found:
". . . [T]hat none of these defendants either procured, brokered, underwrote, or issued any policies of insurance covering Kenneth Fairchild d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc.
“. . . [T]hat none of the foregoing defendants, either issued, brokered, placed or had any insurance that would be applicable to the award of compensation which was introduced into evidence by plaintiff’s counsel.”
The trial court found the deceased workman, Charles Ellis, died during the time he was working for Kenneth Fairchild d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., and there was no liability on the part of the defendants. It also found Kenneth Fairchild and others entered into a purchase of a portion of the Mid-Continent business on October 1, 1968.
The trial court concluded that the plaintiffs failed to sustain their burden of proof in showing that there was any applicable insurance, either issued, placed, brokered, or underwritten on Kenneth Fair-child d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., which would be applicable to the award of compensation previously entered.
On November 21, 1975, the plaintiffs moved for a new trial contending, for the first time, the court erred in ruling that Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., and Mid-Continent Aviation, Inc., were not joint employers of the claimants’ decedent under the Kansas Workmen’s Compensation Act, pursuant to K. S. A. 44-508 (h), K. S. A. 44-503 (a) and K. S. A. 40-2212.
The motion for a new trial was denied, and after some dispute over settling the journal entry, appeal was duly perfected.
All points asserted by the appellants are founded upon the existence of a certain relationship between Kenneth Fairchild d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., and the entity referred to as Mid-Continent Aviation, Inc. The appellees contend the trial court’s findings preclude all such arguments, and that its findings cannot be disturbed on appeal because there has been no showing of arbitrary or capricious disregard of undisputed evidence, or other extrinsic considerations such as bias, passion or prejudice on the part of the trial judge.
The appellees cite the numerous affirmative findings made by the trial court, heretofore quoted, and argue that these findings serve as a basis for a rejection of each and every point advanced by the appellants.
The appellants first contend the trial court erred in not finding from the evidence that there was a lessor/lessee relationship between Kenneth Fairchild Mid-Continent Aviation, Inc., and Mid-Continent Aviation, Inc., which made them joint employers under K. S. A. 44-508 (h) [Weeks] (L. 1968, ch. 102, § 2).
This section of the statute provided:
“ ‘Employer’ includes any person or body of persons, corporate or unincorporate, and the legal representative of a deceased employer or the receiver or trustee of a person, corporation, association or partnership; and when any mine, quarry, factory, or other place covered by the provisions of this act in which work is being or to be performed, is leased or let to any lessee or lessees under any form of contract or agreement other than on a royalty basis, then and in all such cases the lessee or lessees and the lessor or lessors shall be deemed to be operating said mine, quarry, factory, or other place described above as employers jointly.” (Emphasis added.)
This section of the statute pertaining to the definition of “employer” was amended by the Laws of 1974, ch. 203, § 7 and the lessor/lessee provisions deleted.
The record establishes that Mid-Continent Aviation, Inc. is a corporate entity which elected to come under the Workmen’s Compensation Act.
On this point the appellants cite Jennings v. Kansas Power & Light Co., 152 Kan. 469, 105 P. 2d 882, where the court, applying the above section of the statute, said:
“The petition disclosed this situation. Appellee owned a leasehold. The contracts granted rights in the lease to the Shell Petroleum Corporation. As between the two corporations, the appellee was the lessor and the Shell Petroleum Corporation was the lessee. There was no allegation the agreement by which the Shell Petroleum Corporation operated was on a royalty basis. Lacking such an allegation, the statute applied, with the necessary conclusion that as to the appellant the two corporations were operating the lease as employers jointly.' ” (Emphasis added.) (p. 472.)
The appellants cite the record where Kenneth Fairchild testified that he did pay rent on a lease basis to Mid-Continent Aviation, Inc., for the premises used in conducting the flight school which he purchased. On this theory the appellants argue that lacking allegations the terms of the lease were on a royalty basis, the legislature's imperative use of language requires a conclusion, under the authority of Jennings, that Kenneth Fairchild Mid-Continent Aviation, Inc., was a lessee and thus a joint employer with Mid-Continent Aviation, Inc.
Initially, it must be recognized the record is not clear whether the lessor/lessee issue' was fairly presented to the trial court. The record discloses the appellants first raised this issue in the trial court on their motion for new trial and in their supporting memorandum. Assuming the issue was properly presented to the trial court by the motion for a new trial (see, Becker v. McFadden, 221 Kan. 552, 561 P. 2d 416), the record does not conclusively establish that Kenneth Fairchild Mid-Continent Aviation, Inc., had a lease with Mid-Continent Aviation, Inc. The appellees argue, in substance, the affirmative findings made by the trial court are tantamount to a negative finding by the trial court, the effect of which was that the lessor/lessee relationship between Mid-Continent Aviation, Inc., and Kenneth Fairchild Mid-Continent Aviation, Inc., was not established. (See Union National Bank & Trust Co. v. Aker, 213 Kan. 491, 516 P. 2d 999; Fox v. Wilson, 211 Kan. 563, 507 P. 2d 252; and Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 500 P. 2d 39.)
To resolve the question it may be assumed the lessor/lessee issue was presented to the trial court, and it may further be assumed that Kenneth Fairchild Mid-Continent Aviation, Inc., did have a lease for the continued use of the premises of Mid-Continent Aviation, Inc., to conduct the flight school business. At this point careful analysis of the decision in Jennings v. Kansas Power & Light Co., supra, is imperative. This is the only Kansas case applying the lessor/lessee provisions of 44-508 (h), supra. The legal proposition stated in Syllabus Para. 2 of Jennings has not been cited in any subsequent Kansas case. No earlier decisions deal with leases under 44-508 (h), supra. In Jennings the plaintiff, an employee of Shell Oil Company, was injured on an oil and gas tract leased by Kansas Power & Light to Shell. Kansas Power & Light, the lessor, operated the wells for gas on the lease and Shell, the lessee, operated the wells for oil production. Kansas Power & Light maintained the road on which the accident occurred for itself and Shell. The court concluded (without citation) 44-508 (h), supra, applied and the lessor was said to be liable under the Workmen s Compensation Act. Therefore, the common-law action brought by the plaintiff for negligence failed; his remedy for relief was said to be found under the Workmen’s Compensation Act.
The court, however, was not content to base its decision solely upon the application of 44-508 (h), supra. In the opinion the court said:
“Even if the above statute 144-508 (h)] did not apply, it would not follow the appellant could maintain the action. It clearly appears from the petition that appellee [K. P. & L.], as lessee of an oil and gas lease, undertook by contract to have its wells drilled by another, and that after wells were produced, appellee operated them for gas and Shell Petroleum Corporation operated for oil, the two using the facilities of the lease jointly for those purposes. . . . It does appear that appellee as principal had contracted with the appellant’s employer to perform work which appellee had undertaken. Under such circumstances, by reason of G. S. 1935, 44-503, appellee was liable to pay to the workman employed any compensation which it would have been liable to pay if the workman had been immediately employed by it. The allegations of the petition disclose a situation where appellant was under the workmen’s compensation act insofar as Shell Petroleum Corporation was concerned, and it follows by reason of the contract between that corporation and the appellee, he was under the same act insofar as appellee was concerned. That being true, appellant could not maintain a common-law action for damages for negligence. He must find his relief under the workmen’s compensation act.” (Emphasis added.) (p. 473.)
Prior to 1927, when 44-508 (h), supra, was enacted, the supreme court had difficulty with leasing situations under the Workmen’s Compensation Act. (See Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907; and Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120.)
When in force and effect, 44-508 (h), supra, served as the definition for the term “employer” under the Kansas Workmen’s Compensation Law. The definition represented the legislature’s vehicle to enlarge the common-law definition of the term “employer” so as to enable a wider application of the compensation principle to the employment relationship. The definition in force at the time of the accident herein included a reference to lessees under any form of contract or agreement, other than on a royalty basis.
In Jennings it was alleged the claimant was injured upon a road maintained by the lessor and that the claimant was on that road on the particular day in question as a result of the lessor’s direction. Hence, contrary to the factual situation presented in the instant case, the elements of control were clearly in existence. For an earlier case in which the Kansas Supreme Court stressed the elements of control as the crucial test of liability in a similar lessor/ lessee relationship arising out of a factual background dealing with an oil and gas lease see Maughlelle v. Mining Co., supra.
The claimant in a workmen’s compensation case must establish more than the mere existence of a lease between two parties prior to the imposition of liability on the ground that they are "employers jointly” under K. S. A. 44-508 (h). The mere leasing of property does not of itself make the lessor liable for injuries to the employees of the lessee, particularly where the employer-employee relationship does not exist between the lessor and the injured workman.
Colorado has a similar statute dealing with the lessor/lessee relation. Colorado Rev. Stat. Ann. [1975 Supp.] 8-48-101 provides:
“(1) Any person, company, or corporation operating or engaged in or conducting any business by leasing or contracting out any part or all of the work thereof to any lessee, sublessee, contractor, or subcontractor, irrespective of the number of employees engaged in such work, shall be construed to be an employer . . . and shall be liable as provided in said articles to pay compensation for injury or death re/ulting therefrom to said lessees, sub-lessees, contractors, and subcontractors and their employees or employees’ dependents. . . .”
The Colorado statute is designed to prevent evasion of their workmen’s compensation insurance scheme. (Industrial Com. v. Bracken, 83 Colo. 72, 76, 262 Pac. 521 [1927]; and Zimmerman v. Industrial Com., 109 Colo. 533, 540, 127 P. 2d 878 [1942].) However, the Colorado statute does not make every lessor automatically liable for compensation to the lessee’s employees. To make the lessor liable there must be facts showing he was operating, engaged in or conducting his business by leasing; not merely that he was a lessor. (Index M. Co. v. Industrial Com., 82 Colo. 272, 274, 259 Pac. 1036 [1927]; and Continental Co. v. Sirhall, 122 Colo. 332, 334, 222 P. 2d 612 [1950].) In Industrial Com. v. Vancil, 133 Colo. 238, 293 P. 2d 641 (1956), the Colorado Supreme Court held the lessor who leased automotive and transportation equipment to another did not become the statutory employer of the lessee’s employees. In the opinion the court said:
“. . . Surely it cannot reasonably be contended that the owner of such equipment upon leasing or renting it to another becomes, by operation of law, the employer of the employees of the user of such machine. The statute involved is limited in application to that person, company, or corporation which conducts his or its own business by leasing or contracting out any part or all of his or its work. He who conducts his own business in such manner, by operation of law becomes the employer of those engaged in the conduct of that business; but one who leases equipment to another that it may be used only in that other business, in which the lessor has no interest, is not an employer under the statute. . . .
“Instances where liability has been imposed by operation of law under the statute arise only in those cases where it has been clearly shown the company or person charged has actually been conducting its own business through some system of leasing or contracting. Typical of such instances is Continental Oil Co. v. Sirhall, 122 Colo. 332, 222 P. 2d 612.” (p. 242.)
Similarly, K. S. A. 44-508 (h) cannot be applied to all lessor/ lessee situations.
Jennings must be distinguished from the present case. The claimants have the burden of proving the conditions upon which recovery depends. (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521.) Here the claimants did not prove Mid-Continent Aviation, Inc., maintained or supported the “flight” facilities in question. The claimants in no way show any attempt by Mid-Continent Aviation, Inc., to evade the Workmen’s Compensation Act. A lessor who merely leases a building or facilities for the lessee’s business should not be liable under 44-508 (h), supra, of the Kansas Workmen’s Compensation Act.
Accordingly, the trial court’s refusal, on the record here presented, to recognize the lessor/lessee relationship as a vehicle to impose liability pursuant to 44-508 (h), supra, was proper.
Next the appellants contend the trial court erred in not finding from the evidence a contractor/subcontractor relationship which imposes liability on Mid-Continent Aviation, Inc., as the contractor under K. S. A. 44-503 (a). (Now K. S. A. 1976 Supp. 44-503 [a].)
This section is designed to prevent employers from evading liability under the Workmen’s Compensation Act by the device of contracting with outsiders to do work which they would have undertaken to do as a part of tiheir trade or business. (Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; and Durnil v. Grant, 187 Kan. 327, 333, 356 P. 2d 872.)
The appellant contends Mid-Continent Aviation, Inc., contracted with students to perform work, and subcontracted that work to Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc. For this proposition they rely on the Assets Purchase Agreement and Bill of Sale in the record.
The test to be applied in resolving cases of this nature was recently restated in Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P. 2d 900, where the court stated:
“In connection with K. S. A. 44-503 (a) under the Workmen’s Compensation Act, this court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal’s trade or business, i. e: (1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s ‘trade or business,’ and the injured employee’s sole remedy against the principal is under the Workmen’s Compensation Act.” (Syl. 2.)
(See also Hanna v. CRA, Inc., 196 Kan. 156, 409 P. 2d 786; and Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10.)
The fundamental premise upon which liability is predicated in the Workmen’s Compensation Act under 44-503 (a), supra, is the existence of a contract between the two employers. (Schafer v. Kansas Soya Products Co., 187 Kan. 590, 597, 358 P. 2d 737.)
Here there is no contract covering any employment aspects between Kenneth Fairchild Mid-Continent Aviation, Inc., and the separate entity of Mid-Continent Aviation, Inc., which would support a contractor/subcontractor relationship under 44-503 (a), supra. To the contrary, the findings of the trial court, which are supported by the evidence, establish that the business of the flight school was purchased by Kenneth Fairchild from Mid-Continent Aviation, Inc. After the sale Mid-Continent Aviation, Inc., continued to run the ground school while Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., ran the flight school. Mid-Continent Aviation, Inc., did not retain or exercise any control over the flight school which it sold to Kenneth Fairchild.
The work of the deceased, a flight instructor, was not a necessary or integral part of Mid-Continent Aviation, Inc.’s training of aviation mechanics at the “ground” school, which was its business after the sale was made to Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc.
After the sale the flight instruction work performed by the deceased would not ordinarily have been done by any employee of Mid-Continent Aviation, Inc., as part of their training of aviation mechanics at their "ground” school.
If workmen’s compensation liability is imposed in accordance with the desires of the appellants on the record here presented, our decision would foreclose the legitimate sale of a business. In other words, a contract for the sale of a business is not the kind of contract contemplated by 44-503 (a), supra.
The last point asserted by the appellants is that notice, service and judgment against Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., the employer, is notice, service and judgment against the insurers named in this suit, pursuant to K. S. A. 40-2212.
This point is immaterial in view of our conclusion that Mid-Continent Aviation, Inc., and Kenneth Fairchild, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., have not been established to be joint employers. In this situation the workmen’s compensation insurance carrier of Mid-Continent Aviation, Inc., is not rendered liable for the workmen’s compensation award against Kenneth Fair-child, d/b/a Kenneth Fairchild Mid-Continent Aviation, Inc., by the provision of K. S. A. 40-2212.
Six years after the accident the legislature enacted K. S. A. 1976 Supp. 44-532a (L. 1974, ch. 203, § 32). This section of the Workmen’s Compensation Act indicates where an employer fails to provide workmen’s compensation insurance as required by law, the Workmen’s Compensation Fund may pay an award or part of the award. This section may provide relief in similar situations in the future. The statute of limitations and other considerations may bar relief to the claimants here. It is a question we leave open because insufficient information in the record precludes its pursuit. The appellees raised the statute of limitations defense in the trial court, but the basis for it is not disclosed. The trial court did not decide the issue, and there is nothing in the briefs filed on appeal.
The judgment of the lower court is affirmed. | [
80,
56,
-43,
-100,
8,
98,
122,
-46,
81,
-27,
39,
83,
-33,
-17,
21,
123,
-32,
15,
65,
42,
-1,
-77,
55,
-102,
-37,
-77,
-5,
-60,
-16,
75,
-1,
-10,
77,
34,
10,
85,
-90,
-122,
69,
24,
-50,
4,
-85,
-3,
89,
22,
52,
122,
-80,
77,
80,
-97,
-70,
56,
24,
-61,
44,
44,
123,
-29,
-63,
-72,
-85,
5,
-1,
25,
-109,
0,
-104,
47,
88,
14,
-104,
-80,
40,
-55,
26,
-90,
-42,
-28,
35,
-103,
13,
102,
-29,
36,
-112,
-19,
-20,
-104,
6,
-2,
29,
-91,
-122,
120,
58,
77,
-97,
31,
122,
31,
5,
124,
-20,
20,
28,
-32,
-125,
-57,
-42,
-79,
-49,
100,
-100,
-102,
-17,
-113,
50,
112,
-40,
-96,
94,
71,
115,
-97,
-42,
-108
] |
The opinion of the court was delivered by
Miller, J.:
This is a "revocation of acceptance” case under the Uniform Commercial Code. Suit was brought by the purchaser of a Winnebago motor home against the seller to enforce a written revocation of acceptance, pursuant to K. S. A. 84-2-608. The seller prevailed in the trial court, and the purchaser appeals.
The plaintiff, Norris V. McGilbray, purchased a Winnebago motor vehicle (WMV) from defendant Scholfield Winnebago, Inc. and took delivery at Wichita on January 2, 1973. He bought the vehicle for use on family trips and vacations, and to travel to various band engagements. He hauled band equipment in it, and used the vehicle as a dressing room and as a place to rest between performances.
Sixteen different things required repair or attention during the first year. These varied in seriousness from items which required but minor adjustment to the replacement of a water pump and repairs to the air conditioner, refrigerator, ignition wiring and the power plant. The warranty was honored by Scholfield and effective repairs were made as requested. The plaintiff testified that the vehicle was in the garage for repairs two weeks out of every month and that this substantially impaired its value to him. In support of this claim he submitted an itemized list showing the repairs made and the time required for each one. This shows that repairs took a total of 19-weeks. However, it is apparent that the time for repairs includes time it took the dealer to order, receive and install replacement parts, such as replacement seat cover (two weeks) and replacement screens (one month). From the evidence it appears that the vehicle was serviceable and was used during much of this time. Plaintiff lists five weeks to repair the air conditioner, but says he took three trips in the vehicle during that time. Additionally, we note that during the 59-day period from July 18 to September 15, the plaintiff charges the defendant took a total of 79 days to make four different repairs, and the record indicates that during that time plaintiff took at least one, and possibly two trips, and used the vehicle during that time.
The plaintiff conferred with a representative of Winnebago Industries, the manufacturer, in September and on November 20, 1973, and requested that Winnebago extend the warranty for another ten months. Winnebago refused to do so. Plaintiff testified that he was quite willing to keep the vehicle and accept it as being satisfactory if Winnebago would have extended its warranty. After the conference with Winnebago’s representative the plaintiff had but one additional problem of any consequence with the vehicle, and that was a leaking rear wheel seal. Plaintiff’s total out-of-pocket expense for repairs, incurred while he was away from Wichita, was $20.
On December 21, 1973, counsel for the plaintiff wrote to the defendant, revoking “McGilbray’s acceptance of the WMV because of non-conformities in the WMV which were not apparent and could not be discovered at the time of delivery.” Thereafter the vehicle was returned to the defendant. The defendant accepted the vehicle and treated the surrender not as a revocation but as a voluntary repossession. The defendant, an endorser with recourse, paid the balance due on plaintiff’s note, and then resold the vehicle. The motor home was “in immaculate shape” when it was returned to Scholfield; the only repair required was the replacement of a rear wheel seal. The parties stipulated that the new owner, who purchased the vehicle from the defendant after its return, had no trouble with it. At the time of surrender the defendant had owned the vehicle for 50 weeks and had driven it 8700 miles. The original purchase price of the motor home was approximately $10,200. The vehicle was resold, after surrender, for approximately $6700.
The trial court made extensive findings of fact and conclusions of law, the pertinent portions of which are as follows:
“Plaintiff experienced difficulties with the motor home . . . commencing in January of 1973 and continuing at least into September of 1973. On some occasions, Plaintiff returned the vehicle to Defendant for repair, which was either accomplished by Defendant or other repair shops to which it was assigned by Defendant. Other problems were corrected by Plaintiff himself, i. e., thawing frozen pipes, installation of screws in seat, tightening faucets, etc. Some of the problems with the vehicle were more serious such as a malfunctioning air conditioner, a malfunctioning refrigerator, and some faulty ignition wiring beneath the dash.
“Plaintiff made the monthly payments to Union National Bank . . . and kept the account current. He also used the motor home notwithstanding the problems he experienced with it.
“In September and November of 1973, Plaintiff met with representatives of Winnebago Industries and Defendant and voiced his dissatisfaction with the mechanical problems and servicing that the vehicle had required. . . . [T]he evidence does not disclose that Defendant ever refused service under the warranties of any defect, when repair of a defect was requested by Plaintiff.
“On December 21, 1973, the Plaintiff, through his counsel, served a written revocation of acceptance, pursuant to 84-2-608 of the Uniform Commercial Code upon the Defendant, and surrendered the vehicle back to the Defendant. Defendant accepted the surrender of the vehicle, but did not acknowledge it as a justifiable revocation of acceptance by Plaintiff, but as a voluntary repossession. Thereafter, Defendant, under Recourse Agreement with the Union National Bank, paid that institution the balance due on the bank loan to Plaintiff for the purchase of the vehicle.
“At the time the vehicle was surrendered back to Defendant by Plaintiff, the odometer showed that it had been driven approximately eighty-seven hundred miles. Defendant thereafter resold said vehicle to another individual for [about $6,700] . . . The evidence discloses that the new owner of the Winnebago Motor home has not complained of any defect, or expressed any dissatisfaction with such unit.
“It is Plaintiff’s contention that Plaintiff, under provisions of 84-2-608 of the U. C. C. is entitled to recover from Defendant the full amount of his down payment, including the reasonable value of his trade-in, together with the full amount of his monthly payments to Union National Bank, as well as incidental damages, such as a $15.00 tow-in charge, $5.00 labor charge in the Qzarks, etc., from the Defendant, and has brought this action seeking judgment in the amount of $6,000.00.
“It is the contention of the Defendant that the Defendant complied with the terms of the warranty and performed such repairs as were necessary, and that the vehicle, like all new vehicles, requires corrective service during the warranty period, that it was not defective, and that Plaintiff is entitled to recover nothing from Defendant . . .
“It is Plaintiff’s theory that Section (1) of 84-2-608 provides that a buyer may revoke his acceptance of merchandise whose nonconformity substantially impairs its value to him, which is a subjective rather than an objective test, and that it is immaterial if a defect would cause no impairment of value to an average buyer or to a reasonable man, but that the criteria is whether the defect impairs its value to the particular buyer.
CONCLUSIONS OF LAW
“It appears clear from the U. C. C. comment in paragraph number 2 that Section (2) of 84-2-608 does establish a subjective test as to whether a nonconformity in merchandise substantially impairs its value to a particular buyer, whether or not the seller is aware of the buyer’s particular circumstances. . . .
“It is likewise clear that in order to revoke acceptance pursuant to this subjective test, it is necessary for a buyer to establish by evidence that his particular circumstances differ in some respect from those of the average buyer, or reasonable person, so as to demonstrate objectively why an alleged nonconformity or defect substantially impairs the product’s value to him. Plaintiff has failed to sustain his burden of proving this in this case.
“84-2-608 also provides in Section (2) that the revocation must occur within a reasonable time after the buyer discovers or should have discovered the grounds for it, and before any substantial change in condition of the goods which is not caused by their own defects.
“A purchaser of a Winnebago motor home who drives the same for eighty-seven hundred miles over a period of approximately eleven months, and experiences several mechanical or service problems, which the dealer does correct or cause to be corrected pursuant to the warranty, may not, because he is disillusioned with his purchase, invoke the revocation of acceptance provided for in that Section, and recover back from the seller all amounts he has paid towards the purchase price upon his return of the vehicle, that he had used to that extent and for that period of time.
“The judgment should be entered for the Defendant upon the Plaintiff’s petition . . .”
The plaintiff lists six separate points on appeal but in reality only raises two issues: (1) whether the evidence established nonconformity of the motor home sufficient to justify the buyer’s action, and (2) whether the buyer’s revocation of acceptance was timely.
The statute involved has not been previously before this court. It reads, in applicable part, as follows:
K. S. A. 84-2-608. “(1) The buyer may revoke his acceptance of a . . . commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
“(b) without discovery of such nonconformity if his acceptance was reasonably induced ... by the difficulty of discovery before acceptance . . .
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”
Jorgensen v. Pressnall, 274 Ore. 285, 545 P. 2d 1382 (1976) is an action by the purchaser of a mobile home against the seller to enforce revocation of acceptance, brought under ORS 72.6080 which, like our K. S. A. 84-2-608, is a verbatim enactment of § 2-608 of the Uniform Commercial Code. Numerous defects in the home were claimed, and both the seller and the manufacturer attempted repairs but water leakage and other serious problems remained. The seller contended on appeal that the buyer did not prove facts sufficient to justify rescission, asserting inter alia that there was no evidence that the uncorrected defects were material. The Oregon Supreme Court said:
“Whether plaintiffs proved nonconformities sufficiently serious to justify revocation of acceptance is a two-step inquiry under the code. Since ORS 72.6080 (1) provides that the buyer may revoke acceptance of goods whose nonconformity substantially impairs its value to him,’ the value of conforming goods to the plaintiff must first be determined. This is a subjective question in the sense that it calls for a consideration of the needs and circumstances of the plaintiff who seeks to revoke; not the needs and circumstances of an average buyer. The second inquiry is whether the nonconformity in fact substantially impairs the value of the goods to the buyer, having in mind his particular needs. This is an objective question in the sense that it calls for evidence of something more than plaintiff’s assertion that the nonconformity impaired the value to him; it requires evidence from which it can be inferred that plaintiff’s needs were not met because of the nonconformity. In short, the nonconformity must substantially impair the value of the goods to the plaintiff buyer. The existence of substantial impairment depends upon the facts and circumstances in each case.” (Footnotes omitted.) (545 P. 2d at 1384-1385.)
We agree. Nonconformity, the needs and circumstances of a purchaser, and impairment of value to a purchaser, are all questions of fact to be established by the evidence.
Plaintiff claims that the court disregarded the only evidence on the issue of whether the nonconformity of the vehicle substantially impaired its value to him. While the plaintiff testified that the vehicle was in the shop for repairs two weeks out of each month and this substantially impaired its value to him, the court was entitled to review all of the evidence. As we noted above, plaintiff submitted an itemized statement to support his claim, and in that statement he listed the length of time it took for each repair. Taken at face value, the itemized statement shows that repairs required about 19 weeks, or 38% of the time the plaintiff owned the vehicle. Examined carefully, the statement and the evidence indicate that during much of that time the vehicle was serviceable and was in fact in use.
Plaintiff claims that the court erred in finding that the defendant made all of the repairs requested, and that plaintiff had no mechanical difficulties after the middle of September. Again, plaintiffs evidence was that a large number of repairs, many minor and some more serious, were satisfactorily remedied by the defendant. Both parties agree that an oil seal on a rear wheel was leaking at the time the vehicle was returned to the seller, but there is no evidence that the defendant was given an opportunity to replace the seal or refused to do so. Plaintiff also complains that there were other mechanical defects with the vehicle at the time it was returned (example: the front door latch needed tightening), but there is no evidence that these minor adjustments were requested or that the defendant failed or refused to take care of them.
The statute provides for revocation of acceptance only where the nonconformity of a unit substantially impairs its value. We have examined carefully all the cases cited by the plaintiff in his brief. Whether premised upon breach of warranty, rescission, or revocation of acceptance under the UCC, there is a common thread running through each of these cases which is entirely absent here: the seller in each case failed to remedy major defects in the vehicle. In none of the cases were repairs satisfactorily made.
Typical of these cases is General Motors Corporation v. Earnest, 279 Ala. 299, 184 So. 2d 811 (1966). The automobile vibrated badly, the motor knocked, the engine block was cracked, and there were various other defects. Although the car was returned some fifteen times to the dealer, satisfactory repairs were never made, and the car was in the same defective condition when the purchaser returned it as when he bought it. In Tiger Motor Company v. McMurtry, 284 Ala. 283, 224 So. 2d 638 (1969), the purchaser was in almost constant touch with the seller concerning the condition of the vehicle. The car used oil in such excessive quantities that the purchaser was forced to buy it by the case. Oil was blown out from under a gasket. The condition was never repaired satisfactorily. We have found many similar cases; but we have found no case in which a purchaser has successfully revoked acceptance after the seller satisfactorily repaired the vehicle.
What constitutes substantial impairment of value to a purchaser is a factual determination to be made by the trier of fact. Schumaker v. Ivers,_S. D__, 238 N. W. 2d 284, 18 UCC Rep. Serv. 923 (1976). There, in an action for revocation of acceptance of an electric organ which malfunctioned and was never adequately repaired, the court said:
“. . . Although there were conflicts in the testimony concerning the exact nature of the defects in the organ, it was for the trial court to weigh this testimony and determine whether the defects were of such magnitude as to warrant plaintiffs in revoking their acceptance of the organ.” (238 N. W. 2d at 288.)
There was no evidence here before the trial court that repairs were inadequate or unsatisfactory. None of the defects discovered earlier remained when the acceptance was revoked. The vehicle was in immaculate condition and for all practical purposes the only repair needed was quite minor. There was no evidence that the plaintiff missed business trips with his. band or would do so in the future because of lingering defects which the seller was unwilling or unable to repair.
There was substantial, competent evidence to support the findings of the trial court. Such findings are conclusive on appeal. Kaw Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, 549 P. 2d 927.
We conclude that the nonconformity of the vehicle at the time of surrender did not substantially impair its value to the purchaser and did not justify his action in attempting to revoke his acceptance, and that the district court did not err in its findings and conclusions. Having so ruled, we need not reach the second point raised, i. e., whether the revocation was timely.
The judgment of the trial court is affirmed. | [
-48,
106,
-40,
-34,
12,
96,
58,
-38,
119,
-75,
37,
83,
-81,
-62,
21,
105,
-1,
125,
100,
122,
-41,
-77,
71,
-30,
-46,
-77,
-5,
77,
-7,
77,
112,
126,
92,
32,
-62,
-107,
-126,
-64,
-59,
-36,
-62,
6,
25,
-20,
-39,
67,
52,
-72,
16,
-119,
65,
-113,
-29,
46,
25,
75,
105,
40,
-85,
-87,
-47,
-16,
-29,
7,
127,
22,
-126,
4,
-98,
-89,
88,
14,
-112,
-72,
56,
-24,
115,
-74,
-122,
-12,
109,
-117,
32,
38,
99,
34,
25,
-19,
-4,
-104,
6,
-102,
-113,
-92,
-8,
120,
43,
97,
-74,
28,
120,
18,
77,
122,
-2,
21,
31,
-32,
6,
-54,
-106,
-127,
-113,
114,
-116,
10,
-17,
-89,
-75,
117,
-49,
-16,
93,
71,
57,
19,
-106,
-70
] |
Per Curiam:
This is an appeal from a judgment of the district court of Douglas County summarily refusing to grant relief on a motion filed pursuant to K. S. A. 60-1507, wherein Lloyd Wayne Estes, petitioner-appellant, seeks to vacate his sentence on conviction of aggravated robbery. (K. S. A. 1972 Supp. 21-3427.)
The facts surrounding this case are fully reported in State v. Estes, 216 Kan. 382, 532 P. 2d 1283, a direct appeal to this court in which the conviction was upheld. The legal issues considered in the direct appeal are not raised here.
Basically the petitioner argues the trial court erred in admitting into evidence, over his objection, the record of his conviction for armed robbery twelve years earlier.
The petitioner’s contention involves a trial error which should be corrected by direct appeal. (K. S. A. 60-2702a, Supreme Court Rule No. 183 [c] [3], formerly K. S. A. 1975 Supp. 60-2702, Supreme Court Rule No. 121 [c] [3]; Melton v. State, 220 Kan. 516, 552 P. 2d 969; Tillman v. State, 215 Kan. 365, 524 P. 2d 772; and Dunlap v. State, 212 Kan. 822, 512 P. 2d 484.) But trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal. (K. S. A. 60-2702a, Supreme Court Rule No. 183 [c] [3]; Melton v. State, supra; and Tillman v. State, supra.)
Specifically the petitioner contends (a) the introduction into evidence of the twelve-year-old conviction was trial error affecting his constitutional right to a fair trial and due process of law; and (b) an intervening change in the law took place between the time his appeal from his conviction had been perfected and the papers filed in this court, by the decision of this court in State v. Bly, 215 Kan. 168, 523 P. 2d 397. He asserts this constitutes “exceptional circumstances” and thereby excused his failure to raise the issue in his direct appeal.
We first examine petitioner s “trial error affecting constitutional rights” argument. The trial court’s jury instruction said: “This evidence may be considered solely for the purpose of proving the defendant’s motive, intent, or absence of mistake.” If this was erroneous, it hardly affects constitutional rights in view of the strong identification presented in State v. Estes, supra. State v. Bly, supra, upon which the petitioner places primary reliance, held the erroneous admission of evidence was harmless error. (See also State v. Farris, 218 Kan. 136, 542 P. 2d 725; State v. Fennell, 218 Kan. 170, 542 P. 2d 686; and State v. Bradford, 219 Kan. 336, 548 P. 2d 812.)
We next examine petitioner’s “exceptional circumstances” argument. Petitioner argues our opinion in State v. Bly, supra, changed our law. The Bly opinion was filed June 15, 1974. The petitioner filed the statement of points on his direct appeal April 1, 1974. This court heard oral arguments on petitioner’s direct appeal on January 21, 1975. If petitioner considered Bly a significant change in the law he had ample time to argue the point on his direct appeal but did not do so. (See Supreme Court Rule No. 6 [d], 214 Kan. xxiii.)
Furthermore, the Bly opinion did not formulate new law but rather summarized certain basic principles established by previous decisions interpreting K. S. A. 60-455. (State v. Donnelson, 219 Kan. 772, 776, 549 P. 2d 964; compare Barnes v. State, 204 Kan. 344, 461 P. 2d 782.) Bly recognized the principles pronounced by earlier decisions that K. S. A. 60-455 is to be strictly enforced, and that relevancy is not the only test to be applied in determining whether or not evidence of other crimes has probative value. Bly further quoted previous cases dealing with remoteness in time of a prior conviction and the quality of sameness as criteria to prove identity, all of which was relevant to the petitioner’s position, but none of which was new law.
Thus no “trial errors affecting constitutional rights” or “exceptional circumstances excusing the failure to appeal” exist.
The petitioner further contends the trial court erred in not appointing counsel to represent him for a hearing on his 1507 motion. The trial court found the 1507 motion did not present substantial questions of law or triable issues of fact. This finding is within the discretion of the trial court and no error is present. (K. S. A. 60-2702a, Supreme Court Rule No. 183 [f] and [i]; Van Bebber v. State, 220 Kan. 3, 551 P. 2d 878; and Rhone v. State, 211 Kan. 206, 505 P. 2d 673.) Furthermore, the trial court indicated the 1507 motion and an accompanying memorandum were prepared and filed for the petitioner by Hugh R. McCullough, staff attorney for Legal Services for Prisoners.
The judgment of the lower court is affirmed. | [
-48,
-22,
-7,
61,
9,
-32,
35,
12,
67,
-29,
103,
83,
-81,
-54,
4,
121,
-37,
13,
77,
97,
-55,
-73,
119,
-63,
-78,
-69,
89,
85,
115,
93,
-26,
-12,
76,
-48,
-54,
117,
70,
-56,
3,
20,
-114,
-124,
25,
-64,
64,
10,
56,
106,
80,
6,
-79,
62,
-13,
42,
26,
-61,
73,
44,
-53,
-66,
80,
-112,
-126,
93,
94,
20,
-95,
16,
-100,
7,
84,
-82,
-104,
57,
1,
-24,
114,
-90,
-122,
116,
101,
-103,
-87,
102,
98,
32,
29,
-49,
-88,
-87,
14,
126,
-99,
-89,
-110,
80,
107,
45,
-106,
-35,
113,
20,
47,
124,
-32,
12,
21,
108,
-122,
-34,
-112,
-109,
-113,
52,
-122,
-13,
-5,
5,
-76,
113,
-98,
-30,
92,
87,
49,
-98,
-50,
-75
] |
The opinion of the court was delivered by
Kaul, J.:
Petitioner, Robert Sherman Oswald, appeals from a ruling of the trial court denying relief in proceedings under K. S. A. 60-1507. The principal issue raised in his 60-1507 motion involves the adequacy of counsel afforded petitioner nearly twelve years ago when he was tried and convicted of grand larceny in the District Court of Sedgwick County.
On February 16, 1965, petitioner was arrested in Jackson County, Missouri, in possession of thirty-five tires allegedly taken from a Goodyear tire store in Wichita. He was charged with felony theft of the tires, and was subsequently tried and convicted on this charge. He was represented through the preliminary hearing and the jury trial by his retained counsel, Cliff W. Ratner, an experienced attorney practicing in Wichita.
Petitioner retained different counsel and took a direct appeal from the conviction which resulted in an affirmance of the judgment. (State v. Oswald, 197 Kan. 251, 417 P. 2d 261.) It should be noted the adequacy of representation afforded petitioner at trial was not raised or considered in this direct appeal.
Subsequent to the disposition of the direct appeal petitioner filed his first 60-1507 motion pro se on April 26, 1968. Apparently, this motion was summarily denied and petitioner filed a notice of appeal from the adverse determination. However, this appeal was never perfected. The state’s brief asserts that “inadequate counsel” was specified as a ground for relief in this 60-1507 motion and the trial court overruled the motion, as further set out in the state’s brief:
“. . . specifically finding that the defendant had been represented by trial counsel of his own choice and that no complaints with respect to that trial counsel had been raised by defendant at his trial, in his motion for new trial or in his direct appeal. . . .”
Unfortunately, as was the case when this appeal was last before this court (Oswald v. State, 214 Kan. 162, 519 P. 2d 624), there is nothing included in the record to show what issues were raised and determined in this first 60-1507 motion.
On July 15, 1971, petitioner filed a second 60-1507 motion, the primary ground of which was inadequate representation. This second motion is the subject of the present appeal. At the first evidentiary hearing on the motion, petitioner was represented by Stephen B. Millin of the Missouri Bar and by Ernest McRae of Wichita who was associated as local counsel only. For reasons not of record, the hearing was recessed and continued several times and was conducted in piecemeal fashion over several months. On December 2, 1971, Mr. McRae was permitted to withdraw and Orval Fisher was appointed as local counsel. The hearing was reconvened on December 29, 1971. Although notified of the hearing, Missouri counsel failed to appear. Mr. Fisher was, of record, local counsel only, and, thus, not prepared to actively represent the petitioner. The sentencing court denied Mr. Fisher s motion for a continuance and permitted the state to proceed. Fisher neither cross-examined witnesses nor presented any closing argument. At the conclusion of the hearing, the trial court held that petitioner was not entitled to relief.
Petitioner subsequently filed a motion for a new hearing or discharge. Both Millin and Fisher participated in the hearing on this motion, held on January 21, 1972. After this motion was denied, petitioner wished to appeal the adverse ruling and Laurence R. Hollis of Wichita was appointed to prosecute the appeal.
On appeal this court held the trial court abused its discretion in, inter alia, refusing to grant a continuance when petitioner’s local counsel appeared alone and admittedly unprepared. (Oswald v. State, supra.) This court reversed with directions to grant a new hearing on the motion.
Prior to this new hearing, several preliminary motions were filed, the disposition of which gives rise to the petitioner’s first point on appeal. On July 9, 1974, petitioner’s appointed counsel, Mr. Hollis, filed a motion to withdraw as counsel for the 60-1507 hearing. On August 14, 1974, petitioner filed a motion for change of judge, pursuant to K. S. A. 20-311d, with an affidavit attached averring that Judge Raum was biased and prejudiced against his case. Judge Raum presided at petitioner’s jury trial, pronounced sentence and also heard and decided petitioner’s first 60-1507 motion.
The matter was later returned to Judge Raum’s court where, after a three-day evidentiary hearing, the court found in pertinent part:
“. . . [T]he petitioner has not met his burden of proof and that petitioner’s counsel in the criminal trial number CR 1729 afforded petitioner effective assistance of counsel. The Court further finds that this motion should be denied.”
Thereafter this appeal was perfected.
Petitioner specifies two points on appeal, the first of which is directed at rulings on the three preliminary motions filed by petitioner. The preliminary rulings complained of were made by the Honorable Howard Kline, administrative judge of the district court.
Petitioner’s first contention concerns Judge Kline’s denial of petitioner’s motion for a change of judge, pursuant to K. S. A. 20-311d. The thrust of the motion was to remove Judge Tom Raum from the 60-1507 proceedings. Judge Raum, as previously indicated, was the “sentencing judge” and he had presided at petitioner’s trial. In support of his motion, petitioner filed an affidavit which reads in part:
“3. This affiant firmly, sincerely, honestly and in good faith believes that Judge Tom Raum is personally biased and prejudiced against my case and myself and that any further proceedings I might have in front of said Honorable Tom Raum would result in an adverse ruling concerning my case and cause and, further, I sincerely and honestly believe that I will not be afforded a fair and impartial hearing if Judge Raum is allowed to preside at the said hearing."
The remainder of petitioner’s affidavit consists of a recitation of Judge Raum’s adverse rulings in connection with petitioner’s jury trial and prior 60-1507 proceedings which we have described above.
Petitioner first argues that Judge Kline should not have heard the motion for change of judge. K. S. A. 20-311d provides the procedure for a change of judge, sets forth the grounds to effect such change and the requirement that a legally sufficient affidavit be filed. Upon the filing of an affidavit for a change of judge in a multidivision district court such as Sedgwick, subsection (a) of the statute provides in pertinent part:
“(a) If either party to an action in a district court files an affidavit alleging any of the grounds specified in subsection (b) the administrative judge shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of another judicial district be assigned to preside in such cause. . . .” (Emphasis supplied.)
Petitioner took the position below and maintains it on appeal that when an affidavit for change of judge comes before an administrative judge in a multidivision district, he must immediately assign the matter to “another” division for the determination of the legal sufficiency of the affidavit. Petitioner projects this argument by extracting the phrase “to another division” from its context and argues that it means that transfer must be to a division other than that of the administrative judge. We cannot agree. Where an affidavit of prejudice is filed against a judge of a multidivision district and comes before the administrative judge for determination of the legal sufficiency of such affidavit, the secondary transfer to still another judge would serve no useful purpose, and it is not required by the statute.
The transcript of the proceedings, which we have at hand, discloses that in answer to petitioner’s argument, Judge Kline responded:
“Well, the Court has consistently held that the Administrative Judge or the acting Administrative Judge if the Administrative Judge is gone, then that particular Judge shall hear motions to disqualify other members of this Court unless there has been an affidavit filed to disqualify the Administrative Judge for some reason other than administrative functions. So, I’m going to overrule your motion to have some other Judge hear the motion.”
All of the provisions of 20-311d were considered in Hulme v. Woleslagel, 208 Kan. 385, 493 P. 2d 541. With reference to the question of a transfer as raised herein we said:
“. . . Transfer to another judge is the statute’s first command and we believe the legislature intended by the use of such imperative that transfer is to be automatic upon filing of an affidavit. With this in mind we further believe the hearing proviso contemplates the use of a second judge — the one to whom the case is transferred or assigned. In reaching this conclusion we note the obvious dissatisfaction arising from the somewhat incongruous federal practice of having the challenged judge sit in judgment on the legal sufficiency of the challenge against him. . . .” (p.393.)
We believe, in accord with what was said in Hulme, that, unless the administrative judge is also challenged, his administrative division falls within the phrase “another division,” as it is employed in the statute. The intent of the statute, as interpreted in Hulme, is to prevent the challenged judge from determining the legal sufficiency of the affidavit. The assuming of jurisdiction, by the administrative judge, to determine the legal sufficiency of an affidavit filed against a judge in a multidivision district, is, in effect, a transfer to another division. We believe such procedure accords with the statute, and where an affidavit has not been filed against the administrative judge, it is the most orderly and efficient method to effect the statutory mandate. We find no error in the procedure employed in this regard.
On the merits of the question whether the affidavit was legally sufficient, we believe Judge Kline’s ruling was correct. Examination of the averments of petitioner’s affidavit reveals that his only basis for claiming prejudice was the fact that Judge Raum had previously ruled adversely to him and that on one occasion a decision had been reversed. Prior adverse rulings, standing alone, are insufficient to disqualify a judge. In our analysis of 20-311d in Hulme v. Woleslagel, supra, we held:
“. . . (10) previous adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him as judge; . . .” (Syl.)
See, also, Sheldon v. Board, of Education, 134 Kan. 135, 4 P. 2d 430.
We turn next to Judge Kline’s refusal to grant a change of venue. Assuming, but not deciding, the availability of a motion for. a change of venue in connection with a nonjury 60-1507 motion, the record is insufficient to support a change of venue. The controlling rule is set forth in our holding in State v. Anderson, 202 Kan. 52, 446 P. 2d 844:
“In a criminal action on a motion for change of venue the burden of proof is upon the defendant to make it affirmatively appear that such prejudice exists in the community that it will be reasonably certain he could not obtain a fair trial. Failing in such proof the defendant cannot be heard to complain of the trial court’s order overruling his motion.” (Syl. 1.)
On this issue we further held in State v. Lamb, 209 Kan. 453, 497 P. 2d 275:
“The trial court may, in its discretion, properly deny a motion to change venue, when the defendant in a criminal action fails to present affirmative evidence that prejudice exists so as to make it reasonably certain he cannot obtain a fair trial.” (Syl. 2.)
See, also, State v. Colin, 214 Kan. 193, 519 P. 2d 629; and State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.
The thrust of petitioner’s argument for a change of venue, as in the case of his motion for change of judge, goes to the previous adverse rulings by Judge Raum. Petitioner failed to present any other affirmative evidence that prejudice existed so as to make it reasonably certain that he could not obtain a fair hearing. As in the case of a motion for a change of judge, previous adverse rulings, standing alone, are insufficient to support a motion for change of venue. We find no abuse of discretion by Judge Kline in this regard.
We turn now to Judge Kline’s denial of petitioner’s present appointed counsel’s motion to withdraw. This motion alleged, in brief, that counsel had little experience in criminal law and that in view of petitioner’s “attitude toward attorneys” it would be better for all concerned if more “experienced” counsel were appointed. At the hearing on the motion, the transcript of which we have examined, however, counsel merely argued that representation of a 60-1507 petitioner, who was attacking the competency of a fellow attorney, was a distasteful matter. We sympathize with counsel’s feelings in this regard, but we cannot agree with his premise that distasteful representation is sufficient grounds for withdrawal from the case. After arguments on the motion, Judge Kline ruled:
“If I were to relieve you of this representation, it would mean that I will have to appoint some other attorney to represent Mr. Oswald, and Mr. Oswald, I’m sure, is very satisfactory with you up to this point at least, and any other attorney I might appoint might be very critical of the appointment. The Court is going to deny your request for withdrawal as counsel of record in this case. I understand your position and I appreciate it, but I’m just going to deny it. Now, with reference to the question of incompetency of counsel, if I were to relieve you of your duty because it’s distasteful to you to raise that question, I’m sure it would be true in most of the 1507’s that are filed here. As Mr. Hollingsworth [deputy district attorney] has said, they always or almost always complain about inadequacy of counsel after they have been convicted, never before. Of course, if I relieve you on that basis, I’ll have to relieve practically every member of the Bar that’s appointed on a 1507 here, so your application to withdraw will be denied.”
Whether to discharge an indigent defendant’s present counsel and appoint new counsel is a matter vested in the sound discretion of the trial court. (State v. Way, 204 Kan. 375, 461 P. 2d 820.)
General Standard 8.6 of ABA Standards, The Defense Function [Approved Draft 1971, p. 170], defines the duties of a defense attorney when faced with a client’s claim of ineffectiveness of previous counsel. The Commentary on Standard 8.6 (a) in pertinent part reads as follows:
“. . . The traditional position of the bar that a lawyer must stand ready to challenge the conduct of a colleague where that is necessary to the protection of his client’s rights is an essential of our system of justice. Nothing would be more destructive of the goals of effective assistance of counsel and justice for each defendant than to immunize the misconduct of a lawyer by the unwillingness of his brother lawyers to expose his inadequacy. Lawyers must be especially careful to avoid permitting their personal regard for a fellow lawyer to blind them to his failure to provide the effective assistance to which every defendant is entitled as a matter of constitutional right. Of course, a lawyer owes it to the lawyer attacked, as he would to the person who is the object of any legal attack, not to proceed in a matter which is not grounded in fact and law and is merely vindictive and intended to harass the accused lawyer or the courts. . . .” (pp. 307-308.)
Under the circumstances we do not find an abuse of discretion in Judge Kline’s ruling and it accords with the standard quoted. After his motion to withdraw, counselor Hollis preceeded to conscientiously represent his client. Our examination of the transcript of the three-day hearing reflects a vigorous and skillful, albeit unsuccessful representation of petitioner.
In his second and final point on appeal petitioner contends the trial court erred in failing to find that the representation 'afforded him at trial was constitutionally inadequate 'and in failing 'to grant relief on that issue. In view of this contention we have carefully examined the two volume transcript of the 1965 trial. It reflects a vigorous cross-examination of all of the state’s witnesses and a presentation of the defense in the best light possible under the circumstances. We also learned that Mr. Ratner was successful, at preliminary hearing, in disposing of a burglary count which had been lodged against petitioner in the original complaint. Mr. Jack Focht, an experienced criminal attorney in both prosecution and defense, was the prosecutor at trial and was called as a witness in the 60-1507 hearing. Mr. Focht, when asked for his opinion of Mr. Ratner’s conduct of the 'trial, testified:
“Q. All right, and what is that opinion?
“A. My opinion is that it was an excellent defense, and I would like to explain.
“Q. All right, would you please?
“A. We started out charging Mr. Oswald with Burglary and Larceny. At the preliminary hearing, as I recall, and I might be mistaken there, 'Mr. Ratner got knocked out, beat me on the burglary charge, so the only thing we went to a jury with was Larceny, and I thought he did a fine job of it, of handling his defense.”
Petitioner’s primary complaint in this 60-1507 proceeding is 'that Mr. Ratner did not make adequate efforts toward procuring the testimony at trial of Arthur McKenna, Jr., who was the assistant manager of 'the Goodyear tire store at the time the tires were stolen. Petitioner claimed that McKenna would testify 'that the tire transaction was legitimate and, thus, would vindicate petitioner. However, petitioner vacillated to a considerable degree on this point in his testimony at the 60-1507 hearing.
Mr. Ratner testified the Oswalds told him that McKenna was somehow involved in the transaction, but that he was unable to get 'any clear or positive statements from the Oswalds in this regard. Mr. Ratner learned that Mr. E. Lael Alkire was McKenna’s attorney. Ratner had several conferences with Mr. Alkire prior to trial and was informed that McKenna was out of the state and would not 'be available for trial. Alkire also told Ratner that if McKenna “. . . should be caught by a subpoena he would not testify as to any of the facts in the case. If he was put on the stand, he’d take the Fifth Amendment.” Nevertheless, Mr. Ratner made further attempts to locate McKenna. He inquired at the Goodyear store and contacted other persons. At 'the suggestion of Oswald he attempted to telephone McKenna at his mother’s home in Junction City. Mr. Ratner also testified that as a result of his experience in criminal cases, McKenna’s assertion of his Fifth Amendment rights before the jury would severely hurt petitioner’s chances of acquittal.
The testimony of petitioner and his wife was, on some points, in conflict with that of Mr. Ratner. Petitioner never clearly explained his relationship with McKenna or precisely how his testimony would have helped the case. It is difficult to ascertain from petitioner’s transcript testimony whether he actually wanted Mc-Kenna located and put on the stand.
In recent years 'this court has had a good deal to say on 'the subject of effective counsel, the sum total of which has been that before it can be said there has been a denial of the constitutional right to counsel, it must clearly appear that the representation afforded an accused was wholly ineffective and inadequate. (Trotter v. State, 218 Kan. 266, 543 P. 2d 1023; Peterson v. State, 215 Kan. 253, 524 P. 2d 740; and Reid v. State, 213 Kan. 298, 515 P. 2d 1040.)
In the case at bar the trial court made a specific finding that petitioner was adequately represented by competent counsel. There is ample evidence in the record presented to support the finding. The burden of establishing the ineffective 'assistance of counsel to the extent necessary to overcome 'the presumption of regularity of a conviction is upon the petitioner. (Burns v. State, 215 Kan. 497, 524 P. 2d 737; and Baker v. State, 204 Kan. 607, 464 P. 2d 212.) We have also said on frequent occasions that 'the adequacy of an attorney’s services to his client must be gauged by the totality of his representation. (Reid v. State, supra; and Johnson v. State, 210 Kan. 498, 502 P. 2d 838.)
Petitioner’s present counsel, in the lengthy evidentiary hearing below, thoroughly examined Mr. Ratner’s representation of petitioner before and during his trial. On appeal, counsel has meticulously combed the transcripts of the trial and the evidentiary hearing and picked at every move of Mr. Ratner that might be suspect. In an abundance of caution, we, likewise, have scrutinized with care the transcripts which have been submitted to us, only to arrive at the same conclusion 'as the trial court, that Mr. Ratner adequately and competently represented the petitioner. Mr. Ratner effected a dismissal of the burglary charge at preliminary hearing and his investigation of the case and strategy at trial cannot be faulted under the circumstances shown to exist. The representation •afforded petitioner, before and during trial, certainly could not be described as token representation.
The judgment is affirmed. | [
112,
-22,
-23,
61,
10,
-32,
58,
-104,
65,
-13,
54,
83,
-19,
-118,
0,
57,
-6,
13,
85,
113,
-50,
-105,
115,
-47,
-14,
-5,
-7,
-43,
-77,
90,
100,
20,
76,
-16,
10,
85,
70,
-56,
5,
30,
-114,
0,
-72,
-41,
88,
40,
48,
11,
22,
31,
-47,
-98,
-5,
40,
24,
-64,
9,
44,
27,
-65,
80,
-80,
-85,
-107,
-33,
18,
-77,
36,
-102,
7,
92,
47,
-104,
49,
3,
-24,
50,
-90,
-122,
84,
97,
-103,
12,
102,
66,
37,
57,
-49,
-24,
-119,
14,
23,
-115,
-25,
-112,
25,
97,
45,
-106,
-99,
113,
22,
38,
-4,
-15,
21,
23,
108,
11,
-117,
-108,
-79,
79,
114,
-97,
-117,
-21,
-123,
20,
49,
-115,
-30,
84,
55,
91,
-69,
-50,
-76
] |
Per Curiam:
This is an appeal from the trial court’s order in a “no-fault” insurance case after settlement of a personal injury claim, holding that an insurance carrier of the insured plaintiff was entitled to reimbursement to the full extent of personal injury protection benefits paid to the plaintiff without deduction of a proportionate share of the attorneys’ fees and expenses incurred in effecting the recovery out of which such reimbursement was made.
The appellant’s basic contention is the trial court erred in awarding full reimbursement of personal injury protection (PIP) benefits without deducting attorneys’ fees. The same issue is presented in Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P. 2d 117, and Davis v. Western Insurance Companies, 221 Kan. 441, 560 P. 2d 133.
On May 5, 1974, the automobile of Betty J. Jaremko (plaintiff-appellant) was struck from behind as it attempted to enter Interstate 70 by a bus owned by Kenneth R. Benskin, d/b/a Benskin Bus Service (defendant-appellee), and driven by William F. Jones (defendant-appellee). Betty Jaremko’s insurance carrier, EMCASCO Insurance Company (referred to as Employers Mutual Companies) paid her $5,315 in PIP benefits. ($2,000 medical and $3,315 wage benefits.)
On December 4, 1974, the plaintiff, who had contracted with the law firm of Scott, Daily & Vasos for legal representation on a contingency basis on one-third (Ji) of the recovery, filed suit against the defendants and sought $50,000 damages. On May 13, 1976, before the case was tried, the parties settled for $35,315 which was deposited in the registry of the clerk of Wyandotte County district court. On May 17, 1976, the court ordered $30,000 distributed to Betty Jaremko and her attorneys. The remaining $5,315 was retained by the clerk of the court. The plaintiff’s attorneys claimed a lien for attorneys’ fees and expenses of one-third (&) of this $5,315, or a lien on $1,771.67. EMCASCO Insurance Company, through its agent, intervened and denied that it was required to pay attorneys’ fees citing the interpretation of Insurance Commissioner Fletcher Bell.
On July 6, 1976, the trial court examined the language of K. S. A. 1975 Supp. 40-3113 and held EMCASCO Insurance Company was entitled to the full reimbursement of the $5,315 PIP benefits it paid Betty Jaremko. Thus, of the $35,315 recovery, the plaintiff’s attorneys got one-third (Já) or $11,771.67, EMCASCO Insurance Company got $5,315, and Mrs. Jaremko got the balance of $18,228.33. Appeal has been duly perfected from, the trial court’s order denying plaintiff’s claim for attorneys’ fees and expenses in the sum of $1,771.67.
The decision on appeal herein is controlled by the court’s opinion in Easom v. Farmers Insurance Co., supra. The court there held where an injured plaintiff recovered damages against a tortfeasor, which were in excess of personal injury protection (PIP) benefits paid to the plaintiff by the plaintiffs insurance carrier pursuant to the no-fault insurance law (K. S. A. 1975 Supp. 40-3101, etseq.), plus reasonable attorney’s fees and expenses, the plaintiffs insurer was entitled to full reimbursement of PIP benefits paid to the plaintiff out of the plaintiff’s recovery of damages without deduction of a proportionate share of the attorney fees and expenses incurred in effecting the recovery.
Accordingly, the judgment of the lower court is affirmed. | [
-48,
-20,
-16,
-67,
13,
34,
56,
10,
17,
-95,
53,
83,
-81,
-27,
1,
41,
-25,
61,
-31,
98,
-41,
-93,
87,
-126,
-10,
-69,
57,
-60,
-88,
-53,
100,
-2,
76,
56,
74,
-43,
6,
66,
-123,
16,
-50,
-124,
-87,
-20,
-39,
3,
-80,
121,
80,
87,
113,
-121,
74,
44,
17,
67,
45,
44,
123,
-87,
-64,
-72,
-117,
5,
95,
18,
49,
4,
-104,
-93,
88,
14,
-112,
-71,
40,
-24,
114,
-90,
-122,
117,
101,
-103,
-128,
-26,
103,
49,
17,
-51,
-20,
-68,
54,
-38,
15,
-122,
18,
24,
91,
15,
-74,
-97,
123,
28,
7,
124,
-4,
29,
31,
32,
5,
-114,
-108,
-77,
-17,
96,
20,
-122,
-17,
7,
-74,
65,
-55,
114,
92,
-59,
123,
51,
-121,
-74
] |
The opinion of the court was delivered by
Schroeder, J.:
Our opinion in this case was filed March 5, 1977. On page 670, it was said:
“Accordingly, the decision here announced will control the rights of the parties to this litigation, the rights of all taxpayers who have paid taxes pursuant to 79-3603(p), supra, under protest and have pending actions before the Director of Revenue, the Board of Tax Appeals or in the courts of this state challenging the validity of the tax on the date our decision herein is announced, but in all other cases it shall be applied prospectively. All other taxes paid and received by the Department of Revenue pursuant to 79-3603 (p), supra, prior to the date our decision herein is announced shall be retained by the Department of Revenue. All taxes collected pursuant to 79-3603 (p), supra, but not received by the Department of Revenue prior to the date our decision herein is announced, shall be refunded to the consumer.”
The appellant has filed a motion seeking modification to eliminate ambiguity in the first sentence and to cover the application of tax warrants filed against taxpayers for taxes collected, but not received, by the Department of Revenue since July 1, 1970 (the effective date of K.S.A. 79-3603 [p]), in accordance with K.S.A. 79-3617 (now K.S.A. 1976 Supp. 79-3617). The appellant’s argument has merit. Accordingly, the above quoted material is stricken from the opinion and the following is inserted in its place:
“Accordingly,the decision here announced will control the rights of the parties to this litigation, the rights of all taxpayers having pending actions before the Director of Taxation, the Board of Tax Appeals or in the courts of this state challenging the validity of the tax on the date our decision herein is announced, but in all other cases it shall be applied prospectively. All taxes paid and received by the Department of Revenue pursuant to 79-3603 (p), supra, by taxpayers whose available remedies have been exhausted under K.S.A. 79-3610 prior to the date our decision herein is announced shall be retained by the Department of Revenue. All taxes assessed against taxpayers pursuant to 79-3603 (p), supra, for which tax warrants have been filed in accordance with K.S.A. 79-3617 (now K.S.A. 1976 Supp. 79-3617) and who do not have pending actions before the Director of Taxation, Board of Tax Appeals or the courts of this state challenging the validity of this tax prior to the date our decision herein is .announced may be collected by the Department of Revenue. All other taxes collected pursuant to 79-3603 (p), supra, but not received by the Department of Revenue prior to the date our decision herein is announced, shall be refunded to the consumer.”
We adhere to the original opinion in all other respects. | [
-112,
-18,
-11,
28,
42,
-64,
51,
-109,
81,
-75,
38,
83,
9,
-6,
20,
127,
-5,
61,
84,
106,
-58,
-78,
39,
-127,
-90,
-77,
-40,
-35,
-5,
78,
-84,
20,
12,
-79,
74,
-107,
102,
-126,
5,
28,
-82,
-122,
9,
-19,
-15,
-61,
52,
105,
-14,
11,
-15,
-50,
99,
40,
24,
-45,
-20,
44,
-7,
1,
-122,
-16,
-85,
5,
95,
22,
51,
20,
-98,
-123,
-64,
-85,
-102,
57,
0,
-23,
123,
54,
-122,
116,
47,
-71,
40,
38,
96,
32,
5,
-17,
-68,
-104,
46,
-37,
-99,
-28,
-47,
88,
34,
9,
-106,
-99,
116,
18,
7,
-2,
-26,
-108,
31,
-4,
30,
-34,
-46,
-79,
15,
116,
-117,
67,
-17,
-95,
48,
49,
-49,
32,
92,
71,
58,
-93,
-58,
-36
] |
The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from a jury verdict wherein defendant was found guilty of impairing a security interest by failing to account for the proceeds of the sale of secured personal property, in violation of K. S. A. 21-3734 (1) (c).
The scanty record reveals defendant Tom Ferguson had previously done business with the complainant, Admire State Bank (hereinafter called bank). On April 2, 1974, defendant went to the bank and borrowed money allegedly to purchase a 1973 Yamaha motorcycle. The loan totaled $919.62 ($800.00 plus interest) and listed a 1973 Yamaha and a 1967 Fury III as collateral. The first payment of $51.10 was due May 12, 1974.
Defendant did not purchase the Yamaha. Instead, on April 4, 1974, he purchased a 1972 Suzuki for $400.00. Title to the Suzuki was placed in the name of his wife, allegedly because defendant lacked a drivers license and could not get insurance or tags. The bank was not listed as a secured party on the vehicle title.
On April 24, 1974, defendant borrowed more money from the bank for a Ranchero automobile, as his Fury III had broken down. According to defendant, he informed the bank at that time that he had purchased a 1972 Suzuki instead of a 1973 Yamaha. Stack Cowgill, bank vice-president, testified the bank was not informed of the change until May 3 or 4, 1974, when defendant borrowed money to move to Ellinwood, Kansas. Dispute over these dates has no bearing on the outcome of the case.
On May 24, 1974, the bank received the first payment. No payments were received in June or July. In July the bank discovered defendant had sold the Suzuki to Larry Ravenstein on May 21, for $300.00. Ravenstein paid a $50.00 down payment, which apparently comprised the bulk of the May 24th payment to the bank.
At trial defendant testified the bank told him to sell both the Ranchero and the Suzuki and apply the proceeds to the note. He further stated Cowgill gave him permission to apply the June payment to the cost of ads for the sale of the car and motorcycle. Cowgill did not recall giving such permission. Defendant also testified Cowgill gave him permission to change the payment dates. Again, Cowgill had no recollection of such an agreement, although a handwritten note to this effect appears on the bank’s copy of the loan. It appeared the bank was not concerned with the sale of the motorcycle as long as the note was paid.
On October 24, 1974, Cowgill went to Ellinwood to recover the motorcycle since the bank hadn’t received further payments. He located Ravenstein, who did not know the bank had a security interest in the Suzuki. Ravenstein told Cowgill he had paid $150.00 of the purchase price directly to defendant and was told by defendant to pay the remainder to the Ellinwood city court for a fine incurred by defendant for driving without a license.
The bank, through its president, swore out a complaint charging defendant with selling secured property without the secured party’s consent, in violation of K. S. A. 21-3734 (1) (h). At the preliminary hearing this was amended to reflect a violation of 21-3734 (1) (c).
Although defendant stated he intended to meet all his obligations to the bank, the jury found him guilty.
Defendant first contends K. S. A. 21-3734 is unconstitutionally vague and uncertain. At oral argument counsel for both parties agreed the issue had never been raised at any proceeding below. This court will not consider the constitutionality of a- statute when the issue has not been presented to the trial court. (Vaughn v. Murray, 214 Kan. 456, 521 P. 2d 262; National Van Lines v. Jones, 192 Kan. 338, 388 P. 2d 660; Newson v. City of Wichita, 186 Kan. 444, 351 P. 2d 10.)
Defendant next contends the court improperly and prejudicially instructed the jury. He argues instruction No. 8 led the jury to assume the bank required an accounting. The record does not reveal that defendant objected to the court’s instruction, although it does show defendant proposed an instruction similar to the one given by the court. An instruction to which no objection was interposed at trial will not be reviewed on appeal unless it is clearly erroneous. (K. S. A. 22-3414 [3]; State v. Collins, 217 Kan. 418, 419, 536 P. 2d 1382; State v. Rosier, 216 Kan. 582, 586, 533 P. 2d 1262; State v. Gidings, 216 Kan. 14, 26, 531 P. 2d 445.) The instruction given by the court was patterned after PIK (Criminal) 59.43. We do not view the instruction as being clearly erroneous.
As his third point, defendant alleges the trial court erred in permitting amendment of the information during the course of the trial. The information charged defendant with a violation of K.S.A. 21-3734 (1) (c) on or about July 1, 1974. At trial the state moved to amend the date of the violation to on or about May 21, 1974, and on or about June 7, 1974. At defendant’s request the trial was continued until the next day. At the conclusion of defendant’s evidence and prior to jury instruction, the state amended the information to delete the reference to May 21, 1974.
Defendant admits none of the amendments changed the basic charge against him, but argues they occurred with such frequency during the course of the proceedings that even after the defense had rested, the jury and others present must have beoome confused as to the necessity of the amendments, the importance of the dates, and which date was applicable at which portion of the proceedings.
Amending an information during the course of trial is governed by K. S. A. 22-3201 (4), which states:
“The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The fact the dates were amended to conform with the evidence is not prejudicial. It was not a critical issue. No statute of limitations was involved. Alibi was not a defense to make dates important. Time was not an element of the offense. (State v. Sisson, 217 Kan. 475, 536 P. 2d 1369.) This court has approved amending dates in an information where such factors are not critical. (State v. Reed, 214 Kan. 562, 565, 520 P. 2d 1314; State v. Osbey, 213 Kan. 564, 569, 517 P. 2d 141.) Furthermore, a continuance was granted to defendant when the dates were first amended. There is nothing in the record to support his allegation the jury was confused.
As defendant’s fourth and fifth points, he contends the trial court committed prejudicial error in permitting the state to disclose defendant’s other financial affairs in his cross-examination and in rebuttal testimony.
Defendant’s counsel cross-examined Cowgill as to defendant’s prior loans with the bank. During questioning defense counsel asked:
“Q. Prior to that time, did Mr. Ferguson have any loans outstanding with the bank?
“A. He had before, and they were paid.
“Q. They were paid. How were they paid?
“A. Paid in full. They were paid early.”
When defendant took the stand, he was cross-examined as to his late payments on three loans with the bank. Over objection he was also questioned as to his extensive debts with a finance company and another bank, and late payments on those accounts.
In rebuttal the state called defendant’s brother. He testified he had co-signed a $3,000 note with a finance company on behalf of defendant. Because defendant made only two payments on the loan, the witness was still making the payments at the time of trial.
Defendant objects to the admissibility of the cross-examination and rebuttal evidence as an effort to make him appear to be a “deadbeat,” thereby prejudicing the jury against him. Irrespective of the effect of the testimony, defendant cannot claim error. The state is entitled to cross-examine on matters brought before the jury by a defendant. (See, State v. Burnett, 221 Kan. 40, 558 P. 2d 1087, and authorities cited therein.) Defendant asserted he had always intended to meet all his financial obligations with the bank. Defendant’s counsel questioned the bank on independent financial transactions with defendant, showing the jury defendant had paid the loans early. The state was entitled to test the defense through rebuttal and cross-examination.
In order to bolster his argument defendant analogizes the state’s action as a violation of K. S. A. 60-421 and 60-455. K. S. A. 60-421 imposes no limitations on the scope of cross-examination or upon affirmative evidence offered for impeachment purposes except as to evidence of former convictions. (Gard, Kansas Code of Civil Procedure Annotated, § 60-421, p. 392.) K. S. A. 60-455 does not automatically bar the evidence simply because it shows other or different crimes or, in this case, civil wrongs. (See, State v. Burnett, supra.)
Finally, defendant contends there was insufficient evidence to support a guilty verdict. This court has consistently held that before a verdict of guilty may be set aside because of insufficient evidence it must be clearly shown that upon no hypothesis is there substantial evidence to reach the conclusion reached by the trial court. (State v. Harwick, 220 Kan. 572, 578, 552 P. 2d 987; State v. Thomas, 220 Kan. 104, 551 P. 2d 873; State v. Edwards, 209 Kan. 681, 686-87, 498 P. 2d 48 State v. Scoggins, 199 Kan. 108, 111, 427 P. 2d 603, and cases cited therein.)
K. S. A, 21-3734 is a progeny of K. S. A. 1965 Supp. 21-652 (repealed L. 1969, ch. 180, § 21-4701).. K. S. A. 1965 Supp. 21-652 was modeled after K. S. A. 58-315b and K. S. A. 58-318 (both repealed L. 1965, ch. 342, § 12). These statutes have even earlier predecessors. (See, e. g., G. S. 1939 Supp. 58-315b; L. 1901, ch. 105, § 1, 2; L. 1911, ch. 226, § 1; R. S. 1923, § 58-318.) The purpose of these statutes w'as to protect a mortgagee from disposal of mortgaged property by making it a crime for the mortgagor to do so. (State v. Wilfong, 114 Kan. 689, 220 Pac. 250; State v. Taylor, 90 Kan. 438, 133 Pac. 861; 15 Am. Jur. 2d, Chattel Mortgages, § 242, p. 400; 14 C. J. S. Chattel Mortgages, § 279, p. 907.)
The repeal of K. S. A. 58-315b and 58-318 was brought about because of the enactment of the Uniform Commercial Code. (Thompson v. General Finance Co., Inc., 205 Kan. 76, 90, 468 P. 2d 269.) K. S. A. 1965 Supp. 21-652 was enacted to complement commercial practices dealt with by the UCC (Vernon’s Kansas Statutes Annotated, Criminal Code, § 21-3734, p. 80.) K. S. A. 21-3734 (1.) (c) (formerly K. S. A. 1965 Supp. 21-652 [3]) was added to protect the mortgagee in commercial dealings where a mortgagor is allowed to sell personal property with the understanding the proceeds will make its way into the hands of the mortgagee. (See, K. S. A. 84-9-205 and 84-9-306.) Thus, K. S. A. 21-3734 (1) (c) makes it a crime to1 fail to account for the proceeds of a sale, exchange or other disposition of property in cases where such property is subject to a security interest, where the sale of the property is authorized by the mortgagee and an accounting by the mortgagor to the mortgagee is required. The consent for sale and requirement for accounting may be contained in the security agreement or in some other manner, including oral declarations by the mortgagee. This is true notwithstanding the fact the security interest requires written consent. (State v. Burton, 101 Kan. 62, 165 Pac. 847.) Defendant testified the bank had given him consent to sell the Ranchero and Suzuki to pay off the outstanding loan. The essence of the bank’s testimony was that it was not concerned with defendant’s acts as long as it received its money. The record reveals the collateral was sold but the bank was not paid.
A review of the record discloses there is substantial competent evidence to support the conviction.
The judgment is affirmed. | [
-16,
104,
-40,
60,
26,
96,
42,
26,
24,
-115,
55,
-45,
-87,
-54,
68,
105,
-10,
61,
100,
106,
-57,
-77,
119,
67,
-46,
-69,
-39,
-51,
-75,
75,
-10,
118,
12,
48,
-54,
21,
38,
-54,
-59,
84,
-114,
-124,
-86,
65,
-39,
8,
52,
127,
5,
13,
97,
-115,
99,
46,
21,
74,
109,
40,
107,
57,
-64,
-15,
-53,
5,
95,
16,
-79,
4,
-116,
5,
-48,
42,
-112,
-71,
16,
-87,
114,
-74,
-122,
116,
109,
-117,
9,
102,
102,
34,
53,
-55,
-4,
-120,
14,
-34,
-97,
-121,
-106,
89,
1,
41,
-97,
-97,
114,
19,
7,
-4,
-6,
28,
31,
-20,
23,
-54,
-110,
-109,
-19,
118,
26,
9,
-9,
-125,
50,
97,
-49,
-94,
92,
69,
122,
-101,
-121,
-3
] |
Per Curiam:
This is a direct appeal by defendant from a jury verdict of guilty on one count of aggravated robbery (K. S. A. 21-3427).
On August 9, 1974, a Kansas City, Kansas, market was robbed. During the course of the robbery the culprits pointed a revolver at a store employee and relieved her of an undetermined amount of money and a cash register tray. Defendant was later apprehended riding in an automobile resembling the getaway car. Two handguns fitting the description of those used in the robbery were recovered from the glove compartment of the car. Defendant was arrested and taken to police headquarters where the store clerk identified him as one of the robbers from a line-up.
On September 21, 1974, after being advised of his constitutional rights and signing a waiver, defendant gave a handwritten statement in which he admitted participation in the holdup.
At trial, the state presented testimony of the store employees and police officers, weapons recovered from the automobile, and defendant’s confession. Defendant was found guilty and sentenced to a term of not less than fifteen years nor more than life.
Defendant appeals, alleging the information was defective in that it did not charge a crime or allege the property taken was not his property, and that the court erred in failing to instruct that intent was an essential element of the crime.
The information charges that defendant:
“. . . [D]id unlawfully, feloniously and wilfully take property, to-wit: money from the presence of Bernice Jones and Eugene Marshal . . . contrary to K. S. A. 21-3427.”
The sufficiency of indictments and informations is now governed by the guidelines of K. S. A. 22-3201 (2). This court has repeatedly held that an information which charges an offense in the language of the statute or its equivalent is sufficient. (State v. Barry, 216 Kan. 609, 619, 533 P. 2d 1308; State v. Hill, 211 Kan. 287, 296, 507 P. 2d 342; Carithers v. State, 207 Kan. 607, 608, 485 P. 2d 1368; State v. Chuning, 199 Kan. 215, 219, 428 P. 2d 843.) The exact statutory words need not be used in the information if the meaning is clear. (State v. Hart, 33 Kan. 218, 6 Pac. 288; State v. Hazen, 160 Kan. 733, 165 P. 2d 234; 67 Am. Jur. 2d, Robbery, § 33, p. 49; 77 C. J. S., Robbery, §34, pp. 472-73.)
Defendant first claims the information was fatally defective in that it failed to adequately and precisely describe the money alleged to have been taken. Defendant relies on a number of older cases where the court required a high degree of precision in the description of the money that was taken in a robbery. (State v. Tilney, 38 Kan. 714, 17 Pac. 606; State v. Ready, 44 Kan. 697, 26 Pac. 58; State v. Collins, 79 Kan. 411, 99 Pac. 817; State v. Ferron, 122 Kan. 845, 253 Pac. 402; State v. Ross, 152 Kan. 495, 105 P. 2d 879.) The authority of these decisions has been considerably eroded by the modern rationale for pleading in criminal cases. K. S. A. 21-3426 states that robbery is the taking of “property” from the person or presence of another. Modern cases support the view that the allegation the defendant took “money” or “U. S. Currency” sufficiently describes the nature and character of the property taken. (Gray v. Hand, 186 Kan. 668, 669, 352 P. 2d 3; Kienlen v. United States, 379 F. 2d 20 [10th Cir. 1967]; 67 Am. Jur. 2d, Robbery, § 42, p. 53.) In Gray, this court upheld an information which alleged that the defendant had taken “‘property, to-wit: one billfold and $1.00 in United States money . . . .’” (p. 669.)
Courts of other states have held that a description of property taken as “U. S. Currency” or “legal money and currency of the United States of America” is sufficient. (People v. Smith, 66 Ill. App. 2d 257, 213 N. E. 2d 135 [1966]; Roberts v. State, 172 Tex. Crim. 500, 360 S. W. 2d 883 [1961], cert. denied 371 U. S. 846, 9 L. Ed. 2d 83, 83 S. Ct. 83.)
Defendant does not indicate he was misled or disadvantaged. A full preliminary examination was held and he was aware of the state’s evidence. The record indicates no request by defendant for disclosure of the amount of money claimed by way of discovery and no request for a bill of particulars. We conclude the allegation of the information that defendant took “property, to-wit: money” by robbery is sufficient and within the guidelines of K. S. A. 22-3201 (2).
The ownership of property taken is not an element of the offense. Taking any property from the person or presence of another by threat of bodily harm is robbery. Neither the robbery statute, K. S. A. 21-3426, nor the statute defining aggravated robbery, K. S. A. 21-3427, requires the property be that “of another.” In the instant case, the information charged defendant with taking money “from the presence of Rernice Jones and Eugene Marshal.” The state was not required to allege that the money was not the property of defendant. Our former statute, K. S. A. 21-527, defined robbery in the first degree as “taking the property of another from his person . . . and against his will, by violence. . . .” The phrase, “of another,” is not found in K. S. A. 21-3427. Under the circumstances, we conclude the information was not defective for failure to allege ownership of the money.
Defendant further challenges the sufficiency of the information, since it did not allege the acts were committed with criminal intent. Because defendant failed to challenge the information prior to trial, as required by K. S. A. 22-3208 ( 3), any defects in the pleadings are deemed to be waived; (State v. Smith, 209 Kan. 664, 665, 498 P. 2d 78.) Nonetheless, we find the information sufficient. The information charged defendant in the words of the aggravated robbery statute. It further alleged the act was committed “feloniously,” which infers the acts were done with criminal intent.
As defendant’s third point he alleges the trial court erred because it did not include an intent requirement in the instructions. Criminal intent is an essential element of every crime under the criminal code. (K. S. A. 21-3201.) Proof of such may be established by willfulness or wantonness. In the present case clear proof of intent was established by defendant’s use of a deadly weapon. Since defendant’s intent was never made an issue in the case and he failed to lodge an objection to the instructions given, we hold it was not reversible error to fail to instruct on intent. It would be better practice, however, to include the element of intent as suggested in the 1975 Supplement to PIK Criminal, 56.30 and 56.31, pp. 28, 29.
In State v. Clingerman, 213 Kan. 525, 516 P. 2d 1022, this court held it was reversible error to fail to instruct on intent as an element of a crime. Limited to the conditions set out above, Clingerman is hereby modified.
The judgment is affirmed. | [
-16,
-25,
-23,
61,
24,
-32,
58,
-70,
65,
-91,
54,
19,
109,
-54,
5,
121,
86,
127,
84,
113,
-60,
-73,
127,
-63,
-14,
-77,
-101,
-59,
-77,
91,
-25,
-44,
77,
-16,
-86,
85,
102,
-56,
-59,
28,
-118,
1,
-88,
81,
88,
72,
36,
42,
100,
6,
-79,
28,
-21,
42,
26,
-60,
73,
40,
75,
-66,
-15,
-16,
-85,
69,
125,
22,
-93,
36,
-67,
7,
-40,
13,
-100,
57,
0,
-24,
114,
-122,
-122,
116,
111,
-117,
-124,
106,
98,
34,
16,
-53,
-68,
-87,
-82,
83,
-81,
-57,
-100,
0,
65,
45,
-106,
-99,
125,
20,
6,
-4,
-15,
20,
31,
124,
3,
-34,
-80,
-109,
13,
116,
30,
57,
-5,
-121,
-80,
113,
-52,
-26,
92,
83,
114,
-109,
-114,
-12
] |
The opinion of the court was delivered by
Bxjrch, J.:
The above-entitled cases have been consolidated on appeal by agreement of counsel for the respective parties. Case No. 36,705 is an action in which a permanent injunction was sought against certain named officials of the city of South Hutchinson, Kan., for the purpose of preventing such officials from registering and disposing of certain general improvement bonds. The district court, after making certain preliminary rulings, sustained a demurrer to the amended petition seeking the permanent injunction. The second case is a mandamus action seeking a writ requiring the mayor and the councilmen of the city of South Hutchinson to pass an initiatory ordinance without alteration or in the alternative to call an election for the purpose of submitting the proposed ordinance to the vote of the electors of the city. The district court sustained a motion to quash the alternative writ. Appeals followed in due course. In a general way the cases involve the right of the designated' officials to continue proceedings in furtherance of the construction of a waterworks system.
The first question which will be considered is whether the demurrer to the amended petition in the injunction action was properly sustained. Consequently, it is necessary to analyze the allegations of the amended petition. Such petition alleges that the plaintiffs are electors and taxpayers of the city; that they are aggrieved by the result of an election held upon a question of issuing certain bonds and of extending the credit of the city; that the questions involved in the action are of common or general interest to many persons and that the suit is brought for the benefit of all persons even though it is impractical to bring all of them before the court; that the named individual defendants are respectively the members of the city council and the clerk and the treasurer and constitute the governing body of the city. The petition alleges that an election was held on June 3, 1946, for the purpose of issuing general obligation bonds of the city in the principal sum of $115,000, and that the proceeds from such bonds were to be used for the construction of a waterworks system and appurtenances thereto “for the purpose of supplying the city of South Hutchinson and its inhabitants with water for all proper purposes”; that on June 4, 1946, and before any official canvass of the votes had been made or could be made, the defendants either did, or attempted to, accept a bid of a group or combination of five bonding companies for the sale of the bonds, and attempted to. authorize the mayor and the city clerk to sign a contract for the sale of the bonds at par and accrued interest, with denominations, due dates and interest rates as set out in the petition. The petition further alleges that no ordinance providing or purporting to provide for the issuance of the bonds was passed or adopted until June 10, 1946, and that no purported ordinance was published in the official city paper until June 14, 1946, and that the governing body of the city was acting with all possible speed in the preparation of a transcript and the registering of the bonds and in doing and attempting to do all such things as were necessary to making said bonds the outstanding obligations of the city; that all such acts were being done before such time as the legality of the creation of such bonds might be investigated and tested and that the city officials were proceeding without giving time or opportunity to the plaintiffs and other electors and taxpayers similarly situated to ascertain whether said election was had and the results declared according to the laws and authorities applicable thereto.
The foregoing, in substance, sets forth all of the allegations contained in the first four paragraphs of the appellants’ amended petition. The question before us is whether a cause of action was pleaded in any part of or in the entire petition. In considering such question, certain factors should be noted. The allegations referred to assert that an election was held for the stated purpose but the allegations contain no assertion that the election was invalid. The allegations do not set forth that the officials were acting fraudulently or in bad faith in accepting the bid of the bond purchasers. The allegations are simply to the effect that the negotiations for the sale of the bonds were made before any official canvass of the votes had been made and before any ordinance providing for the issuance of said bonds had been passed and also before any purported ordinance was published in the official city paper, and also before the appellants had time and opportunity to investigate and to ascertain whether the election was had and its result declared according to the laws and the authorities applicable thereto. It should be observed also that the allegations thus far considered do not set forth or refer to any statute or statutes which prohibit the defendants from negotiating or selling the bonds without an official canvass having been made of the votes at the election or unless an ordinance providing for the issuance of the bonds had been passed or published, and no statute has been referred to which prohibits the appellees from negotiating for or selling the bonds before electors and taxpayers had an opportunity to determine whether the election was had according to the laws applicable thereto.
The next and fifth paragraph of the amended petition sets forth that no detailed plans and specifications for the waterworks system had been prepared other than a rough or preliminary plan and estimate and that under such preliminary plan the estimate is slightly in excess of the sum of $115,000: Following such allegations is another to the effect that the preliminary plan is wholly inadequate for the purpose of constructing the waterworks; that said inadequate system of waterworks cannot be constructed except at a cost greatly in excess of the amount which could be realized from any sale of the bonds for the reason that no -manufacturers and distributors of the necessary materials, in quoting current prices therefor, would quote firm prices but would only quote current prices which would be subject to increase to the extent that prices might be in effect at the time of delivery; that by reason of such unprecedented situation, contractors could not be expected to make a guaranteed or firm bid for any completed waterworks system except at an exorbitant and an unreasonably high and excessive cost but could be reasonably expected to bid only by the insertion of a so-called “escalator” clause providing, in substance, that the cost and aggregate contract price for the completed work would be increased to the extent that labor and material costs-increased above current prices. In other words, the fifth paragraph of the amended petition alleges, in substance, that it is’impractical and hazardous for the defendants to proceed in furtherance of the construction of the ' waterworks system for the city because in the opinion of the plaintiffs the city officials will not be able to execute a satisfactory contract with a reliable contractor. Thus, it will be seen that the plaintiffs seek to have their speculative prediction in regard to such questions accepted and the defendants enjoined from exercising their own judgment in regard to the subject matter.
The sixth paragraph of the amended petition sets forth that the city of South Hutchinson covers a wide area and that the houses constructed therein are not close together and that many houses and other improvements therein are separated from others by considerable distance and that a sizeable portion of the city is made up of land which is used for farming purposes and has never been platted; that the city includes one industry which is separated from the residence and improved portions of the' city and that about such industry several residences are grouped. The petition thereafter alleges that the industrial property and the several houses grouped about such property are assessed at approximately 46 percent of the total assessed value of all of the property within the area. Paragraph 6 closes with the following allegation: “Said proposed plan of waterworks system does riot extend to or include said territory as well as other territory and improvements located within said area, and all of such territory representing substantially more than one-half of the total valuation of said area will be wholly unserviced by ' said proposed system and will be dependent for domestic water, fire protection water and process water solely upon its own resources, as it is at this time.” (Emphasis supplied.)
’ The seventh paragraph of the petition consists of estimates as to the cost of operating the proposed waterworks system and a statement is made therein that the annual operating deficit would be in excess of $2,900 exclusive of bond interest and retirement require ments. The paragraph also- sets forth that a conservative estimate of the cost of constructing a reasonably adequate waterworks system would be not less than $155,000 and'that a conservative estimate of the operating deficit in such event would be in excess of $3,900 exclusive of bond interest and retirement requirements. The paragraph also contains an allegation that if the- anticipated waterworks system included the servicing of process water the estimate of the cost would be $217,000 and that all of the aforesaid estimates are based on current quoted prices which would be subject to increase at the time of actual delivery.
Paragraph 8 of the petition contains allegations as to the proper interest rates which should be paid upon bonds. Comparison of the alleged proper rates with the rates set forth in paragraph 4, which are the interest rates at which it is alleged the city officials are about to sell the bonds, discloses that the plaintiffs, in substance, contend that approximately one-half of the bonds are about to be sold bearing interest rates which are three-fourths of one percent too high.
Paragraph 9 of the petition consists of an assertion that the statutory limitation as to the gross amount of bonds which may be issued for the involved purpose would be insufficient for the construction and installation of any waterworks system which would be reasonably adequate and that, therefore, the sale of the authorized bonds would create an unjust, illegal and useless burden upon the property and the taxpayers of the area and that any reasonably adequate system could not be constructed for an amount equivalent to the proceeds of the sale of the proposed bonds.
Paragraph 10, contains allegations asserting that because *of the character of the area and the scattered population, the cost per person of installing an adequate waterworks system would be from three to six times the average cost, and that the cost of operating the alleged inadequate proposed system would be not less than three times the average normal cost, and further that the investment necessarily would be so great and disproportionate as to make it impossible for such waterworks system to be self-supporting. The paragraph continues by alleging that a logical result of the installation of the waterworks system would be the subsequent installation of a sewer system and that the cost of the sewer system would be greater than the cost of the waterworks system and that it would be impossible to construct both systems within the aggregate statutory bond limitation; that, therefore, the objectives could not be legally and lawfully attained but that irreparable injury and waste would result, for which the plaintiffs would have no adequate remedy at law. The paragraph closes with an allegation that inquiries made at 167 homes in the city out of a total of approximately 227 reveal that 70 percent are being served by private water systems and that the'commercial industry referred to in the petition now has its own private water system.
Paragraph 11 of the petition sets forth that the statutes of the state of Kansas (no particular statute being cited) provide that all municipal bonds of the kind and character involved in the action must be first offered for sale to the state school fund commission, which commission has a right to elect to purchase the same for a period of ten days thereafter and that such statutes further provide that if the commission does not purchase the bonds they may be advertised in the official paper and sold for cash at not less than par, or that the same shall be sold at public sale on ten days’ publication and the obtaining of sealed bids; that the defendants have ignored the provisions of such statutes in attempting to contract for the sale of said bonds and are about to and will dispose of the bonds unless restrained from so doing.
Paragraph 12 consists of allegations asserting that the proposed bonds contain the recitals described in G. S. 1935, 10-112, and that, therefore, when such bonds have been duly registered they will import conclusive verity in favor of all persons purchasing the bonds; that they will be negotiable; that the defendants intend to register them as authorized by law and sell them and cause them to become a binding obligation and lien, to the irreparable loss and damage of the plaintiffs and other property owners and taxpayers of the city.
Paragraph 13 concerns the attempt of the plainitiffs to have an initiatory petition for a proposed ordinance either adopted or submitted to a vote of the people. The subject matter referred to in the paragraph is the same as that which forms the basis for the mandamus action and will be treated subsequently in this opinion.
Paragraph 14 of the petition alleges that unless an injunction is granted the defendants will violate section 5 of article 12 of the constitution of the state of Kansas, which provides that the power of taxation by city authorities shall be so restricted as to prevent the abuse of such power.
The final paragraph of the petition alleges that the attempt of the defendants to cause the bonds to become an obligation of the city constitutes a clear abuse of discretion, an exercise of bad faith, and will be illegal unless the defendants are restrained and enjoined.
1. The allegations of the amended petition disclose that a controversy has arisen between minority electors of the city and the city officials who are proceeding to follow the will of the maj ority of the electors as expressed in the election, by issuing bonds for the purpose of constructing the waterworks system. The plaintiffs contend that an adequate system cannot be built for the amount of the bonds authorized by the election, to wit, $115,000, and that, therefore, the bonds should not be sold. The question at once arises — -Can minority electors enjoin the necessary and normal result of a bond election by contending that the amount of bonds authorized is insufficient for the proposed purpose? The question has been squarely answered in the negative by this court in the.case of Kansas Power Co. v. City of Washington, 145 Kan. 962, 67 P. 2d 1095. The first subparagraph of the syllabus of the case reads as follows:
“The question whether an adequate municipal plant can be constructed for the amount of money which can be realized from a specified bond issue authorized by popular election does not present an issue which the courts have jurisdiction to determine.”
The cited case is in point as to many of the contentions advanced by the plaintiffs. From the body of the opinion, by Mr. Chief Justice Dawson, the following is quoted:
“It is first contended that the city is without right to issue bonds to erect an inadequate municipal light and power plant.
“Who is to decide whether a proposed municipal utility will be adequate to serve the municipality? 'Is that a justiciable question to be decided on the opinion testimony of expert witnesses? Where shall we find in the law-books any sanction for the substitution of the judgment of a judicial tribunal for that of an administrative tribunal on such a question as the requisite capacity of a proposed municipal utility to serve the needs of the community? No such case is cited. The nearest analogous cases in our own reports are the paving cases. In Fairchild v. City of Holton, 101 Kan. 330, 166 Pac. 503, taxpayers sought to enjoin the paving of three blocks of a street on various grounds, one of which was that the paving was unnecessary. The trial court found otherwise, and made a finding that the best interests of the city would be served by paving the three blocks in controversy. In affirming the judgment, this court said:
“ ‘That was further than the court needed to go, for that matter was vested in the city and not in the court, and so long as the court failed to find that the city had abused its power, there could be no judicial interference, even if the court itself had thought the paving unnecessary.’ (p. 333.)
“In Warner v. City of Independence, 121 Kan. 551, 247 Pac. 871, the action was by taxpayers to challenge the regularity of certain proceedings undertaken by the city to pave a street and highway. In the petition, among other matters, it was alleged that the city’s plan for the improvement of the street and road was ill-advised, that the quality of the materials to be used was poor, and that the proposed improvement— •
“ ‘Would only result in said street having to be repaved within five years, and that to proceed to pave said street in such a manner would be to deprive the taxpayers in the benefit district and in the city and county at large of their property in the way of taxes.’ (p. 555.)
“The trial court -ruled that it had no jurisdiction ‘to hear and determine the kind or quality of paving.’ On appeal this court said:
“ ‘We note what plaintiffs have to say about defendants’ plans and specifications for the improvement. It will be a pity, indeed, if plaintiffs’ prophecy comes true that the specifications are so defective that the street and road will have “to be repaved within five years,” but discretion and responsibility on such matters must be vested somewhere. Under this statute they are vested in the city and county governing bodies, not in these plaintiffs, and not hin the courts. The courts cannot interfere with the exercise of that discretion and responsibility where, as here, no substantial showing of fraud is disclosed by the record.’ (p. 558.)
“In State, ex rel., v. Younkin, 108 Kan. 634, 639, 196 Pac. 620, where the acts of public officials in respect to road building were called in question, this court said:
“ ‘When the legislature confers power in general terms upon an official body, without prescribing the details for the exercise of that power, the courts Will not be officious to interfere with the official body’s discretionary methods of performing the public duty intended by the legislature in granting such powers.’
“In 32 C. J., 260-261, it is said:
“ ‘A court of equity will not interfere with the exercise of discretionary powers on the part of a municipal corporation or its officers so long as the limits of those powers are not exceeded, and no. fraud, malice, bad faith or improper motives are shown, for otherwise this would be an assumption by the court of the right to exercise the powers delegated only to the corporation or its officers. The court has no authority to enjoin the corporation from doing what the law authorizes it to do. So long as they have acted honestly, the fact that a mistake has been made in the exercise of this discretion, or that the acts are hasty and ill-advised and not for the best interests of the inhabitants, constitutes no ground for an injunction. . . . It-is only where it is clearly shown that the municipal corporation or its officers has transcended the powers vested in them, or that there has.been an abuse of discretion, that a court of equity will interfere.’
“To the same general effect were Hessin v. Manhattan, 81 Kan. 153, 105 Pac. 44; Stevenson v. Shawnee County, 98 Kan. 671, 678, 159 Pac. 5, and syl. ¶ 5. (See, also, State, ex rel., v. Board of Education, 122 Kan. 701, 253 Pac. 251.)
“Incidental to appellant’s contention which we have just considered, it is also urged that the court erred in its refusal to make a finding of fact on the question whether the proposed municipal plant would be adequate to serve †-he needs of the city and its inhabitants. As we have seen, however, the adequacy of the plant was not a justiciable question between plaintiff and the city, so the trial court’s failure to make a finding of fact on this point was not error.
“Plaintiff next contends that it was entitled to an injunction as a taxpayer because the governing body was induced to inaugurate the proceedings looking to the establishment of a municipal power plant by misrepresentations of fact and fallacious estimates of the cost of such a plant submitted to the city by a private firm of engineers. To this contention there are at least two answers. This record does not demonstrate that the estimates were fallacious, nor that the advice of the 'engineers who enjoyed the confidence of the city officials was false. Furthermore, the validity of proceedings undertaken by statutory authority cannot be judicially set at naught because phblic officials and the electors for whom they act may have been over-persuaded by false or fallacious arguments to adopt the course of action they eventually chose to pursue. In City of Oswego v. Davis, 97 Kan. 371, 154 Pac..ll24, a proposed bond issue was challenged on the ground that the city and its officials had been misled as to the amount of bonds it would require to extend and improve the municipal water plant. This court held that the point did not present a justiciable question. We said:
“‘But this objection is no more true as to a bond election than to any other election. In any free government the wise and the foolish, the vain and the venal, the radical and the conservative, may and do exercise the liberty of persuading their fellows to adopt their views; and all sorts of reasons, logical and illogical, serious, trivial and absurd, are given by electioneering •advocates in their endeavors to win the support of the voters. A bond election in Oswego is no more likely to be illegally affected by the misrepresentations, wheedling, or cajolery of the promoters of' the bond issue than are elections elsewhere or on any other proposition submitted for'the suffrage of the people.’ (p.374.)” (p.965.)
With the foregoing general principles in mind, additional con.sideration will be given to the allegations of the petition. Complaint is made therein that the defendants have accepted the bid of a group or combination of five bonding companies for the sale of the bonds and that such acceptance occurred before any official canvass of the votes had been made and before any ordinance providing or purporting to provide for the issuance of bonds had been passed or published in the official city paper and that the city officials were acting with all possible speed in the preparation of a transcript and the registering of the bonds. • The plaintiffs do not cite any statute or statutes which require compliance with any of the conditions which they assert should be complied with before arrangements are made for the sale of bonds. We have statutes which require compliance with some of such conditions when a waterworks system is to be extended but they do not apply to the purchase or construction of a waterworks system following an elec tion authorizing the same. In the absence of any statutory regulations to the contrary, the general rule is that the question of when it is advantageous to sell bonds is one for determination by an administrative tribunal rather than for the judgment of a judicial tribunal and the only limitation which courts ordinarily place upon the exercise of discretion on the part of the administrative authorities arises in circumstances where the purposes for which the bonds were originally voted have so changed that it would be inequitable to allow the bonds to be issued. In support of such a rule see the case of State, ex rel., v. City of Topeka, 141 Kan. 309, 41 P. 2d 260, and see, also, Rowland v. Reno County, 108 Kan. 440, 195 Pac. 868.
The fifth paragraph of the petition alleges that no detailed plans or specifications of the proposed waterworks system had been prepared but it confesses that a rough or preliminary plan and estimate had been prepared although it is contended that such preliminary plan is inadequate. From what has been heretofore set forth, it clearly appears that even if the city officials had been misled by inadequate plans and by improper estimates, nevertheless, the proceedings undertaken by the city officials cannot be enjoined by the courts because the public officials may have been incorrectly persuaded to adopt the course of action they chose to follow. (See Kansas Power Co. v. City of Washington, supra.)
The statement is made in the petition that the alleged inadequate plant was estimated to cost “slightly in excess of the sum of $115,000.” Clearly such an indefinite, weak allegation would not justify a court in interfering with the administrative discretion even in the absence of a motion to make the allegation more definite and certain. A small change in the specifications might bring the estimate within the amount of the bond issue. The difference' may have been inconsequential and the plaintiffs had the burden of alleging that they would sustain a substantial loss. Counsel for the plaintiffs abandon the point in the briefs filed in this court. We find nothing in the additional allegations of the fifth paragraph which would justify our departing from the rule announced in Kansas Power Co. v. City of Washington, supra. As hereinbefore stated, the plaintiffs in paragraph 5 seek only to have the court adopt the opinion of the plaintiffs as a basis for a finding by the court which would be contrary to the conclusion of the administrative officials.
The allegations in the sixth paragraph of the amended petition, relative to the area, the wide separation of the houses, the fact that a portion of the city is made up of land which is used for farming purposes, and that the city includes one large industry which is separated from the improved portions of the city, add nothing which states a cause of action. It is alleged therein also that 46 percent of the total assessed valuation of all of the property in the city is on property located within an area to which the proposed water system will not extend. The paragraph closes with an indefinite allegation to the effect that the system will not extend to territory representing substantially more than one-half of the total valuation of said area. It is not clear whether the use of the phrase “of said area” refers to the entire area of the city or to the area separated from the residential and improved portions of the city. In construing the pleading most favorable to the pleader, we will assume that the allegation asserts that over 50 percent of the entire area of the city will be wholly unserviced by the proposed water system. Nevertheless, it must also be assumed because of the election result, confessed by the petition, that a majority of the electors in the city were in favor of constructing a waterworks system. Surely, there must have been very few, if any, instances wherein a proposed plan of a water system originally contemplated that water service would be extended to the property of each and every landowner in the city. If the legislature intended that such should always be true before a waterworks system could be installed within a city area, then it is difficult to understand why it was necessary for the legislature to have passed many statutes which provide for the extension of waterworks systems -within city areas. (For example, see G. S. 1945 Supp., 12-836 and G. S. 1935, 15-806.) Again it should be noted that the legislature has not seen fit to require that, before a water system can be constructed within a city, any certain percent of its area or any certain percent of the total assessed value of the property within the city must be served by the proposed water system. At least we have been cited no statute or statutes to such effect by counsel for plaintiffs. Perhaps the members of the legislature are of the opinion that business districts and densely-populated sections of a city should be able to have water service and fire protection regardless of whether the system extends to the city limits in all directions or serves a large industry which, because of necessity, would have its own water system. In the absence of statutory limitations upon the power of the municipal authorities, courts ordinarily will not create or impose restrictions and limitations which interfere with the discretion of administrative authorities unless a clear and convincing showing is made that the proposed action of the officers of the municipality constitutes an arbitrary abuse of power equivalent, in most instances, to actual fraud or bad faith. In similar circumstances this court has held that a body of land 'within the limits of a city, although not divided into blocks, lots, streets and alleys, is, nevertheless, subject to city taxation even though a part of it is used for agricultural purposes. (Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558, and Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 143.) Likewise, this court has held that the extent of the value of the ownership is not to be considered in the absence of statutory requirements to such effect. (Clarke v. Lawrence, 75 Kan. 26, 88 Pac. 735.)
The seventh paragraph of the petition consists of estimates as to the cost of operation of the alleged inadequate waterworks system. It is clearly another instance of an attempt to induce a court to substitute its opinion for a conclusion to the contrary which may-be reached by administrative officers. The allegations of paragraph 8, as to the proposed interest rates being too high, are likewise an effort to induce a court to accept the opinion of the plaintiffs rather than to permit the administrative officers to exercise 'their own judgment. Paragraph 9 is, in substance, a repetition of the contention that the municipal officers should be enjoined because the amount of the bonds which may be issued for the proposed purpose would be insufficient for the construction of an adequate waterworks system. The contention cannot be the basis for an injunction. Paragraph 10 also seeks only to induce the court to assert its judgment in the place of the considered opinion of the municipal authorities.
The allegations of paragraph 11 of the petition are to the effect that the officers of a city cannot enter into a contract for the sale of improvement bonds before such bonds have been offered to the school fund commission. Probably counsel for plaintiffs have in mind that- the proposed sale is being made in violation of G. S. 1935, 10-106, although the petition does not specifically plead a violation of such section or any other statute. Mor'epver, the petition does not set forth or attach thereto a copy of the contract which it is alleged was entered into between the bond buyers and the city. In the case of City of Washington v. Investment Co., 117 Kan. 15, 230 Pac. 311, the contract for the purchase of bonds was subject to the preferential right of the state school fund commission to purchase the bonds, and such was true also in the case of Grecian v. Hill City, 123 Kan. 542, 256 Pac. 163. In each of such cases this court held that the contract was not void and unenforceable because the bonds had not been offered to the school fund commission before the contract had been entered into. We cannot determine from the petition, therefore, that the contract entered into between the defendants and the bond buyers was void because of the failure to offer the bonds to the state school fund commission. If the plaintiffs desired to contend that the contract was void because of the failure to make any provision for the bonds being offered to the school fund commission, it was incumbent upon the plaintiffs to plead the contract and to attach a copy of the same to their petition. Also it should be noted that the plaintiffs in paragraph 11 do not allege that they will suffer financial loss by reason of increased taxes or otherwise because of the alleged failure of the municipal authorities to offer the bonds to the state school fund commission. In the absence of any allegation to such effect, the failure to offer the bonds to the commission would constitute merely an irregularity in the proceedings of the municipal officials, which could be questioned only by the state at the instance of the attorney general or the county attorney and not by a private citizen or taxpayer. Such rule applies also to the alleged failure of the defendants to pass an ordinance before selling the bonds as required by G. S. 1935, 12-801, and possibly by G. S. 1935, 12-802, as so contended by the plaintiffs.- (See Grecian v. Hill City, supra, p. 548.)
Paragraph 12 of the petition alleges nothing more than that the proposed bonds will become conclusively valid, negotiable obligations of the city unless the defendants are restrained from proceeding to register the bonds as authorized by law. Of course, the allegations to such effect state no reason which would justify the restraint of the defendants. The 13th paragraph of the petition, which pertains to the initiation of a petition for a proposed ordinance, which would in effect prohibit the defendants from proceeding with the construction of the proposed waterworks system, will be considered in the second part of this opinion.
It is asserted in paragraph 14 of the petition that unless the defendants are restrained from proceeding with the issuance of the bonds and from performing other acts in furtherance of the construction of the waterworks system, such activity on their part will constitute a violation of section 5 of article 12 of the constitution of the state of Kansas. The section under consideration reads as follows:
“Provision shall be made by general law for the organization of cities, towns and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power.”
It should be noted, in considering the sufficiency of the petition, that the plaintiffs do not contend that the state legislature has violated the admonition contained in the statute by the passage of any particular statute or statutes, the compliance with which results in the city officials being clothed with authority to abuse the power of taxation. All that the plaintiffs contend is that the defendants will abuse such power unless they are restrained from doing certain authorized acts. Time after time this court has held that the constitutional provision is an admonition to the legislative branch of our government. From the opinion in State, ex rel., v. Kansas City, 149 Kan. 252, 86 P. 2d 476, the following is quoted:
“This provision has been the subject of judicial exposition ever since the foundation of the state. It scarcely states a rule of constitutional law that a court can, lay hold of. It is largely admonitory and was intended by the framers of our constitution to be addressed to the wisdom and conscience of the legislative branch of our state government. (Hines, et al., v. City of Leavenworth, et al., 3 Kan. 186, 203-204; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288; Wulf v. Kansas City, 77 Kan. 358, 362, 94 Pac. 207; State v. Keener, 78 Kan. 649, 651, 97 Pac. 860; State, ex rel., v. Kansas City, 125 Kan. 88, 90, 262 Pac. 1032.)
“Speaking of this clause of the constitution in Hines, et al, v. City of Leavenworth, et al., supra, Mr. Chief Justice Crozier said:
“‘It is not a subject proper for judicial cognizance but belongs to another tribunal. It would involve the exercise of a discretion that the framers of the constitution never intended should be deposited in any court. It would in effect constitute the-court a lawmaker rather than a law expounder. When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It is a subject wholly under the control of the political department of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final.’ (p. 203.)
“An examination of the statute under which the challenged proceedings are being undertaken will reveal a number of restrictions which the legislature must have deemed sufficient to prevent the defendant city from abusing the corporate powers vested in it, and the legislative wisdom on this subject is not open to judicial review.” (p. 255.)
Again, it should be noted that the plaintiffs do not allege that the defendants have violated any particular statutory restrictions upon the power of the city officials to proceed with the establishment of the proposed waterworks except such as have been heretofore considered. Perhaps we should consider what restrictions the legislature has seen fit to enact which have for their purpose the prevention of an, abuse of the taxing power. In G. S. 1935, 12-801, the legislature provided that if a majority of the electors voted in favor of the issuance of bonds for the purpose of supplying the city with water or other utilities, -it should be lawful for the governing body of the city, by ordinance duly passed, to direct the issuance of the bonds so voted as provided by law. In section 12-802, the legislature admonished the governing bodies of cities to pass an ordinance directing the calling of the election for the submission of the question to the electors. In G. S. 1935,12-803, in order to protect against an abuse of the power of taxation, the legislature provided that no bonds should be issued in excess of 15 percent of the assessed valuation of the city. In substance, the same restrictions were embodied by the legislature in G. S. 1935, 12-834 and 12-843. There is no contention on the part of the plaintiffs in the instant case that the defendants did not comply with such restrictive requirements except the alleged failure to pass an ordinance directing the issuance of the bonds. Possibly the legislature has passed other acts which may be now in full force and effect.and that may be applicable to actions which have been taken or may be taken by the public officials in this case, but the plaintiffs have not set forth in their petition or in their brief filed in this court any such other statute or statutes which they contend the defendants have violated or are about to violate unless they are restrained from so doing. We find no basis in the petition for the contention that the alleged action on the part of the defendants constitutes a violation of section 5 of article 12 of the constitution of Kansas.
The petition concludes by asserting that the action on the part of the defendants constitutes a clear abuse of discretion and an exercise of bad faith. At best, the allegation is only a conclusion which must be predicated upon definite acts or omissions alleged in the petition. The petition contains not a single allegation -of an act or of an omission to act which alone would justify a court in issuing, an injunction to prevent the defendants from performing their administrative duties; neither would all of the allegations of the petition when combined entitle a court to conclude that the defendants are acting in bad faith or that they are arbitrarily abusing their discretion. There being no foundation alleged for the conclusion,'the baseless conclusion alone does not constitute an allegation of a cause of action. There is ever a legal presumption “that public officers do their duty, that they act fairly, from good motives, and with the purpose and intention of obeying the law. Suspicion, surmise, insinuation and innuendo are not enough to overthrow this presumption.” (Ray v. Miller, 78 Kan. 843, 98 Pac. 239.)
Counsel for the plaintiffs vigorously contend that the petition sets forth sufficient facts to justify the issuance of a permanent injunction because of alleged inequitable conduct and alleged waste of public funds. In support of the contention such counsel have cited statements from textbooks and many cases from other jurisdictions pertaining to the abuse of power by municipal authorities, fraudulent and ultra vires acts and unjust discrimination on the part of municipal officers. Time and space will not permit us to review the authorities cited and distinguish them from the present case. The court is unanimously of the opinion that the allegations of the petition are insufficient for the purpose of asserting that the defendants have abused their power, acted fraudulently, or that their acts have been ultra vires. Likewise, the court is of the opinion that the allegations of the petition do not justify a court in assuming that the defendants ultimately will waste the public funds which may be derived from the sale of the bonds. Also, as before stated, we are unable to find in the allegations any facts which would permit a court to conclude that the defendants have exercised any unjust discrimination, or necessarily will do so. The allegations disclose only that the defendants are attempting to proceed in compliance with the mandate of the majority of the electors and in substantial compliance with all statutory safeguards. If the statutes do not afford the plaintiffs adequate protection, the remedy ordinarily is a problem for the legislature and the instant case does not present an exception, The defendants simply are subject to the old rule that the will of the majority controls within the limitations prescribed by the legislature. It follows that the demurrer to the amended petition for the permanent injunction was properly sustained unless the alleged failure on the- part of the defendants to pass the proposed ordinance in compliance with the initiatory petition or submit such ordinance to a vote constituted -such a violation of statutory regulation as would justify the issuance of the permanent injunction. Consideration of such question follows.
2. The petition in the mandamus action, after asserting the same preliminary matters as are set forth in the injunction action, alleges that the election was held for the purpose of issuing general obligation bonds in furtherance of the construction of a waterworks system, in the amount of $115,000, and that as a result of the.election the defendants as a governing and canvassing board of the city declared that the propositions submitted to the electors had carried by more than a majority of the votes cast. The petition also alleges that prior to the election no detailed plans and specifications had been made for the contemplated waterworks system and that no definite cost of the same had been ascertained, but that after the purported election detailed plans and specifications had been compiled and were available to the electors, and further that such plans and specifications disclosed that the proposed waterworks system, if constructed, would be wholly inadequate for the purpose of supplying the city and its inhabitants with water for all purposes. In the petition it is alleged that the proposed plans and specifications disclosed that no more than 42 percent of the area of the city would be served by the proposed system and that the waterworks system would serve less than 40 percent of the total value of the property .contained in the city area; that such property would be subject to pro rata taxation for the cost of the proposed waterworks system upon the basis of the assessed valuation. It is specifically alleged in the petition that a greater proportion of the area and the property subject to assessed valuation would be wholly unserviced by the proposed waterworks system and, therefore, dependent upon some other water supply' for fire protection and other purposes. The petition also alleges that on June 13,1946, which was ten days after the election, was held, there was filed with the city clerk for submission to the defendants, who are the mayor and the members of the council of the city of South Hutchinson and who are also sued individually, a petition signed by electors of the city equal in number to more, than 80 percent of the entire vote' cast for all candidates, for mayor and council in the last preceding municipal general election; that said initiatory petition referred to a proposed ordinance, which ordinance pbrtained to and governed the issuance of the bonds which were about to be sold and which ordinance also pertained to and governed the plan and policy of the city in the construction of a waterworks system and provided, in substance, that the intended bond indebtedness should not be incurred until and unless the authorities of the city could be assured that an adequate waterworks and fire protection system could be obtained within the amount of the proposed issue of bonds. The petition also alleges that the ordinance would prohibit the construction of a waterworks system until such time as the city authorities could be assured that such a system might proceed to completion without interruption due to lack of materials. A copy of the proposed ordinance is marked Exhibit “A” and made a part of the petition. The petition further alleges that the city clerk has found such petition to be sufficient and has issued a certificate of sufficiency and that compliance has been made with all statutory and other legal requirements but that notwithstanding such facts and circumstances and though more than twenty days have expired since the submission of the initiatory petition the defendants have taken no action for the adoption of the proposed ordinance or for the calling of an election to submit such ordinance to the electors for adoption or rejection, and that the defendants refuse and continue to refuse to take any action in regard thereto. The petition also alleges that since the submission of the initiatory petition, the defendants as the governing body of the city have entered into a purported contract for the construction of an inadequate system of waterworks' conditioned upon the result of certain litigation then pending and that the -defendants will make no effort to comply with the initiatory petition unless compelled to do so by the issuance of a writ of mandamus. The petition concludes by alleging that 'the plaintiffs have no- adequate remedy at law and are entitled to a writ of mandamus directing the defendants either to adopt the proposed ordinance without change, or to submit the same to the electors of the city for adoption or rejection. The initiatory petition and the proposed ordinance read as follows :
“We, the undersigned, legally qualified voters and electors of the City of South Hutchinson, Kansas, do respectfully request that the following Ordinance be passed by you as the governing body of such City, without alteration, or submitted without alteration, by such governing body to a vote of the electors of said City as and within the time provided by law, for adoption or rejection, said Ordinance being in words and figures as follows, to-wit:
ORDINANCE No.....
“An Ordinance Governing the Issuance of Bonds of the City of South Hutchinson, Kansas, for the Purpose of Constructing and Completing a Waterworks System for Said City.
“Whereas, questions have been raised as to whether an adequate Water works System can be constructed and completed under present conditions, for the amount of the proceeds from the sale of bonds of the City of South Hutchinson in the principal sum of $115,000.00.
“Now Therefobe,
“Be It Ordained by the Mayos and Council of the City of South Hutchinson, Kansas;
“Section 1. That no bonds of the City of South Hutchinson, Kansas, shall be registered with the Auditor of State or sold or delivered or otherwise caused to become a valid obligation of said City until and unless (a) complete plans and specifications for a waterworks and fire protection system adequate to properly serve said City, the inhabitants and property owners thereof, be had, obtained and made available to the public and a contract let for the construction and completion of such system for not to exceed the amount of the proceeds obtainable from the sale of bonds of the City of South Hutchinson, Kansas, in the principal sum of $115,000.00; and (b) materials are available on the market so as to enable such construction to commence within not more than sixty days after such contract is let, and to proceed to completion thereafter without interruption due to lack of materials
Observation should be made that the allegations of the petition in the mandamus action set forth no facts other than those which have been considered in connection with the action for the injunction except in regard to the initiatory petition for the proposed ordinance and that the defendants actually have entered into a purported contract for the construction of an inadequate waterworks system conditioned upon the result of certain litigation. The allegation that the defendants have entered into such a contract rather than that they are about to enter into the same adds no new element which would necessitate a ruling contrary to that made by the trial court in sustaining the demurrer to the petition for an injunction. In asserting that the contract entered into is inadequate, the plaintiffs are merely again seeking to induce the trial court to substitute its judgment for the-judgment of the administrative officials. Therefore, our reasons for affirming the trial court’s ruling in the injunction action apply also to the petition for the writ of mandamus with the result that we are required to consider only the legal effect of the initiatory petition requesting the passage of the proposed ordinance. Such an initiatory petition was filed pursuant to the authority of G. S. 1935, 12-107. The statute is too long to be reprinted herein. It provides, in substance, that if a petition signed by 40 percent of the electors in a city of the third class who cast votes-for all candidates for the office 'of mayor or commissioner at the last preceding general municipal election, shall be filed with the city clerk, that such a petition may request a proposed ordinance be passed by the governing body of the city without alteration, within twenty days after the attachment of the clerk’s certificate accompanying the petition, and if not so passed the governing body shall call a special election for the purpose of submitting the proposed ordinance, without alteration, to a vote of the electors of the city.
In construing the above-referred-to statute, this court has held that a distinction always is to be made between proposed legislative and administrative ordinances. From the case of State, ex rel., v. Jacobs, 135 Kan. 513, 11 P. 2d 739, the following is quoted:
“A clear distinction was made in the case of State, ex rel., v. City of King-man, 123 Kan. 207, 255 Pac. 645, between legislative and administrative ordL nances. In that case it was held, after a resolution, instead of an ordinance, had been adopted and published by the commissioners declaring the improvement of a street to be necessary, that the later ordinance, providing for the details of paving the same, was administrative and not subject to the referendum statute. (See, also, Palmer v. Munro, 123 Kan. 387, 255 Pac. 67.) In the case of State, ex rel., v. Morton, 128 Kan. 125, 276 Pac. 62, it was held that the cooperation of the city governing body with the federal and state authorities in establishing a connecting road through the city was an administrative detail and not subject to the control of the referendum statute relating to legislation by ordinance.” (p. 516.)
If the ordinance proposed under the authority of G. S. 1935, 12-107, swpra, is administrative or 'executive in character as distinguished from legislative, the city officials may ignore the petition and proceed to perform their official duties without being subject to a writ of mandamus compelling them either to pass the ordinance or submit it to the electors for adoption or rejection. (See State, ex rel., v. Morton, 128 Kan. 125, 276 Pac. 62.) Consequently, the question before us narrows itself to a determination of whether the proposed ordinance is administrative or legislative in character.
Whether a proposed ordinance is administrative or legislative is frequently a question which is difficult to answer. The courts have not agreed upon a definite rule which tests an ordinance in all circumstances and have at times disagreed as to what tests should be controlling in various circumstances. The question has been before this court in a limited number of cases. While the exact question was not commented upon in the case of State, ex rel., v. City of Pratt, 92 Kan. 247, 139 Pac. 1191, the circumstances in the cited case were somewhat analogous to those in the present case. The electors of the city had voted to issue bonds to construct an electric-light plant. Shortly thereafter an initiatory petition, signed by the required number of qualified voters, was filed, which petition contained a request that an ordinance therewith submitted be passed which entirely repealed the ordinance providing for the execution of the bonds. A writ of mandamus was allowed compelling the board of commissioners either to repeal the ordinance or to submit the ordinance to popular vote. Obviously, the original ordinance authorizing the issuance of a designated amount of bonds to provide funds for the construction and equipment of an electric-light plant was legislative in character. Consequently, the proposed repealing ordinance was also legislative in character. In the instant case the proposed ordinance clearly does. not' seek to repeal the original ordinance and it follows that the character of the proposed ordinance in the instant case cannot be determined by the sug.gested test. No definite test for determination of the question was enunciated by the court in the case of State, ex rel., v. City of King-man, 123 Kan. 207, 255 Pac. 645, but the general question was considered and the opinion quoted with approval the following from 7 McQuillin on Municipal Corporations, § 351c:
“ ‘The referendum is usually held “applicable to all ordinances and resolutions which constitute an exercise of legislative power.” That is, it was designed to be directed against “supposed evils of legislation alone.” “To allow it to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city. In many cases it would entirely- prevent the exercise of the executive power necessary to carry out the acts determined upon by the legislative department. In the absence of a very clear declaration to the contraary it must be presumed that the power of referendum was intended to apply solely to the legislative powers of the city.” An act purely executive in character, unmixed with the exercise of legislative power, is not subject to the referendum.’ ” (p. 209.)
After citing the text, the opinion continues by stating, “The tendency seems to be to confine the operation of similar referendum statutes with a considerable degree of strictnéss to measures which are quite clearly and fully legislative and not principally executive or administrative.” (Emphasis supplied.)
Another Kansas case dealing with the subject is State, ex rel., v. Morton, supra. In the cited case the city governing body agreed to a certain route for a proposed connecting link in the state highway. Thereafter dissatisfied residents petitioned the governing body to enact or submit to a vote a formulative ordinance disapproving a portion of the selected route and substituting a different route for that portion. It was held that the location of the route of a highway was essentially an engineering detail in connection with the execution of a highway project and that in locating the route the governing body of the city was acting in an administrative capacity. Since the governing body'was acting in such a capacity, it was held not subject to a writ of mandamus compelling it to exercise its authority in a different manner. The case is significant in that it holds that the locating of a route of a highway is essentially an engineering detail which is administrative in character. In the instant case the plaintiffs seek to effect the location, or at least to determine the extent, of the proposed water system. The last-cited case was followed by State, ex ml., v. Jacobs, supra. In the cited case the original proposed ordinance pertained to the widening of an avenue and the payment of the cost thereof. Consequently, the original ordinance clearly was legislative in character. A referendum petition was filed with the city clerk seeking to compel the city commissioners either to repeal the original ordinance or submit the matter to a vote of the electors. Thus, it will be seen that in the cited case we again have an instance wherein it is sought to repeal a legislative ordinance and that consequently, the repealing ordinance was also legislative in character. No definite test, however, was declared in the cited case as to when an ordinance is administrative or legislative.
The last Kansas case which has been cited touching upon the question is that of State, ex rel., v. Charles, 136 Kan. 875, 18 P. 2d 149. The plaintiffs insist that the application of the principles set forth in the cited case definitely establish that the ordinance under consideration is legislative in character. In such case the town of Hugoton had voted bonds for the building and equipment of a municipal gas plant and after the construction contract therefor had been let an initiatory petition was submitted to the governing body requesting that all such proceedings be 'cancelled and that a franchise be given to a private utility for the purpose of supplying gas to the city of Iiugoton. The syllabus and the opinion clearly develop that the initiatory petition filed in the cited case requested the officers of the city to call an election for the purpose of repealing the original ordinance and to annul the entire proceedings occurring subsequent to its passage. Not only did the initiatory petition seek to repeal the original ordinance but it sought to clothe the municipal officers with authority to enter into a contract with the pipeline company for the purpose of serving the city with gas. In such circumstances, there could have been no question, under our decisions, but that the original ordinance and the proposed repealing ordinance were legislative in character. In the opinion, however, it was said:
“Here the question involved is plainly a matter of public policy. It is, Shall the city build and equip a municipal gas plant to be paid for by the issue of bonds by the city, or obtain gas under a contract from a private party? The project is one in which the public is vitally interested, and the proposal involves a matter of public policy or the method of financing the securing of gas for the people. The general rule has been stated as follows:
“ ‘Acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power.' (43 C. J. 585.) [Citation of cases.]
“The proposition we have here is distinctly and mainly legislative in character and, we think, a proper one for referendum. It is a subject of general and permanent character and the accomplishment of a public purpose.” (p. 877.)
Counsel for the plaintiffs stress the part of the opinion relative to a declaration of a public purpose and the making of provisions for ways and means of its accomplishment as being determinative of when an ordinance is legislative in character. In considering the contention, we note first that the proposed ordinance in the instant case does not repeal the original ordinance. The next question’ is whether it declares a public purpose which was contrary to or conflicted with the original purpose, as was true in the cited case. According to the allegations of the petition the original ordinance set forth the purpose of issuing general obligation bonds in the principal sum of $115,000 as being for the construction of a waterworks system. The ballots and other proceedings pursuant to the election specified that the bonds would be used “for the purpose of supplying the city of South Hutchinson and its inhabitants with water for all purposes.” Therefore, it must follow that the original ordinance stated the public purpose or policy. The proposed ordinance does not depart from the public purpose specified in the original ordinance. Neither does the proposed ordinance seek to change or alter the ways and means of accomplishing the public purpose. The proposed ordinance does not suggest any other method of acquiring the waterworks system nor does it suggest a change in the amount of the bonds to be issued. It only specifies that the bonds shall not be made valid obligations of the city until (a) complete plans and specifications for an adequate system have been obtained and mad'e available to the public and a contract let for the construction and completion of the system; (b) materials are available on the market so that construction can commence within not more than sixty days and can proceed to completion without interruption. Obviously, sec tions (a) and (b) are administrative or executive in character; they concern engineering details and suggestions for managerial policy. The suggestions are not general and permanent in character but are to apply only in connection with the issuance of certain bonds and the construction of a particular public improvement. Consequently, the court is of the opinion that the application of the tests referred to in the case of State, ex rel., v. Charles, supra, does not result in a determination that the proposed ordinance was legislative.
Counsel for the plaintiffs call our attention to certain cases from other states and particularly request that we consider the opinion in the case of Keigley v. Bench, 97 Utah 69, 89 P. 2d 480, also reported in 122 A. L. R. 756, with annotations beginning at page 769. In addition to observing the tests hereinbefore considered, the cited opinion quotes, with approval, the following from the case of Whitbeck v. Funk, 140 Ore. 70,12 P. 2d 1020:
“ ‘The crucial test for determining what is legislative and what is administrative -is whether the ordinance is one making a new law, or one executing a law already in existence.’/’
In applying such test to the instant case we have no difficulty in concluding that the proposed ordinance only provided for the execution of an ordinance already in existence and, consequently, was administrative in character. In the cited case a proposed ordinance sought to change an original ordinance in many respects and in particular it sought to vary the terms of the original ordinance by providing that the bonds should continue as an obligation upon the city for a period of twenty years rather than fifteen years as was provided in the original ordinance. It was held that such a material departure from the original ordinance was such as to constitute a change of policy and that it was not within the evident intent of the voters and that, therefore, the ordinance in such particular was legislative in character. We have no such question before us in the instant case and the decision in the cited case in all other respects is in harmony with the conclusion we have reached. The cases which are annotated in A. L. R. following the cited case clearly support the conclusion we have reached that the proposed ordinance was administrative in character. (See, also, the later cases of Read v. City of Scottsbluff, 139 Neb. 418, 297 N. W. 669; State, ex rel., Nelson, v. Butler, 145 Neb. 638,17 N. W. 2d 683, and Seaton, Mayor, v. Lackey, 298 Ky. 188, 182 S. W. 2d 336.)
The rulings of the district court sustaining the demurrer to the amended petition for an injunction and in sustaining the motion to quash the alternative writ in the mandamus action are affirmed. | [
-16,
-20,
-80,
79,
10,
-32,
18,
-98,
73,
-71,
-28,
83,
-19,
-37,
4,
125,
-97,
125,
-44,
107,
-61,
-74,
111,
106,
-78,
-45,
-55,
-35,
-5,
125,
-10,
-41,
72,
53,
2,
-107,
70,
-126,
71,
92,
-122,
-127,
-117,
-59,
-55,
66,
52,
122,
112,
3,
117,
110,
-13,
41,
24,
-30,
105,
44,
-37,
37,
81,
-79,
-84,
-123,
125,
7,
1,
4,
-100,
-57,
-32,
46,
-104,
49,
-112,
104,
115,
-90,
-122,
116,
15,
-37,
44,
-30,
98,
3,
-91,
-17,
-8,
-87,
14,
-33,
-115,
-90,
-109,
88,
106,
32,
-74,
-99,
117,
22,
5,
-2,
-1,
5,
27,
108,
-121,
-54,
-12,
-77,
79,
56,
7,
65,
-17,
-32,
48,
117,
-52,
-76,
92,
103,
16,
19,
-121,
-72
] |
The opinion of the court was delivered by
Miller, J.:
Antonio H. Palacio appeals from a conviction of voluntary manslaughter in violation of K. S. A. 21-3403, and from the sentence of imprisonment for not less than five nor more than twenty years which was imposed upon him pursuant to K. S. A. 21-4501 (c).
The defendant raises but one issue on appeal. He contends that the trial court should have instructed the jury on involuntary intoxication, pursuant to K. S. A. 21-3208 (1).
Palacio lived with Hazel Lawson for about three years. He warned her about seeing other men, and he threatened to kill her and any man she went out with. On the night of May 19, 1975, he went to various locations in Wichita, Kansas, looking for Hazel Lawson. Her eleven-year-old son, Marty, accompanied him. The defendant had been drinking. After visiting several taverns, he proceeded to the home of Martha Duer. Marty remained outside while defendant entered the apartment. An argument ensued. Martha sustained cuts to her arms which later required 30 stitches. The defendant left her apartment hastily, carrying a butcher knife. He proceeded directly into the next door apartment of Robert W. Wolfenbarger (the deceased), whom defendant suspected Hazel had been seeing. He and Wolfenbarger argued and came out onto the porch, where they fought. Wolfenbarger pushed the defendant off of the porch and kicked at him; defendant then produced the knife; Wolfenbarger jumped from the porch and attempted to escape; the defendant pursued him, caught him, and stabbed him with the butcher knife twelve times.
Palacio then ran some distance to the home of friends. He told them that he thought he’d just killed a man. There was blood all over his shirt and on the knife he carried in his hand. Accompanied by the friends, he returned to the place where Wolfenbarger lay. Police and an ambulance arrived shortly, and defendant was taken into custody. Wolfenbarger died as the result of a stab wound to the heart.
Two brothers of the defendant testified that he had been an alcoholic for over thirty years. They stated that he was drawn to alcohol like steel to a magnet; he was compelled by something like an irresistible force to drink. A physician who had treated the defendant, and who treats alcoholics regularly in his practice, testified that Palacio is a chronic alcoholic, is unable to control his impulse to drink, and is irresistibly compelled, once he starts, to drink until he is “bombed.” One employer testified that Palacio’s employment record indicated that he was terminated as “not dependable (alcoholic).” Another stated that most of the time Palacio worked, he did not appear to have been drinking. A third stated that during the majority of the time Palacio worked for him, he had not been drinking.
Defendant did not testify, but a tape recorded statement which he made on the date of the occurrence was introduced into evidence. Palacio there stated that he “had three or four bottles of vodka in a two-hour period” on the date of the occurrence. The arresting officer stated that Palacio was intoxicated.
The trial court gave instructions to the jury on voluntary intoxication pursuant to K. S. A. 21-3208 (2) and on intent, but refused to give an instruction on involuntary intoxication. In its oral ruling upon the request for such an instruction, the court said:
“. . . After reading [State v. Seely, 212 Kan. 195, 510 P. 2d 115, and Powell v. Texas, 392 U. S. 514, 20 L. Ed. 2d 1254, 88 S. Ct. 2145] I . . . hold that [K. S. A.] 21-3208 was not an expression by the legislature of an intent to . . . carve a category of individuals who were immune to prosecution for their criminal conduct because of their addiction to any drug or narcotic including alcohol. . . .
“To be involuntarily intoxicated ... a person must either have become intoxicated unknowingly either by accident or by the act of another without the knowledge of the person who became intoxicated, or else must have had a sufficient mental defect or impairment that he or she, while becoming intoxicated, [was] not aware of the consequences of their actions in so doing. And it is the ruling of this Court that any person, including the chronic alcoholic who, as in the case before the Court at the present time, was shown to be sane and rational when sober, and who thereafter became intoxicated by consuming alcoholic beverages ... is voluntarily intoxicated within the meaning of [K. S. A.] 21-3208 . . . rather than involuntarily intoxicated. And the Court is specifically rejecting the notion that an alcoholic may be under a sufficient desire for alcohol . . . that he will be compelled by that addiction to consume or absorb the same to the point of intoxication . . .
“. . . [T]he evidence submitted to support the theory that the defendant was involuntarily intoxicated does not support such theory, but in fact shows that he was voluntarily intoxicated as this Court interprets [K. S. A.] 21-3208.”
Defendant places primary reliance upon the case of State v. Seely, supra, wherein we said:
“. . . [B]efore intoxication may be said to be ‘involuntary’ a defendant must show an irresistible force, which is something more than a strong urge or ‘compulsion’ to drink. . . .” (p. 202.)
Defendant contends that the evidence before the court established that he was a chronic alcoholic, that he was thus compelled by an “irresistible force” to partake of alcoholic beverages, that his intoxication was therefore involuntary, and that the court erred in failing to so instruct the jury. We disagree.
The “irresistible force” mentioned in Seely does not mean habit, desire, or any other type of internal compulsion. It means that intoxicants or drugs were forcibly, unwittingly or unknowingly ingested by or administered to the defendant. “Irresistible force” means physical compulsion by another, trickery, deception, or other type of external force. As a matter of law, the defendant, a chronic alcoholic but a person of average intelligence and mental capacity and whose actions were rational when he was sober, was not involuntarily intoxicated. The district court was correct in its interpretation of the law and in the instructions which it gave to the jury.
The judgment is affirmed. | [
-15,
-18,
-39,
-65,
26,
96,
42,
88,
102,
-29,
-12,
115,
-55,
-21,
69,
105,
19,
45,
85,
105,
-74,
-73,
87,
65,
-77,
115,
113,
-44,
-77,
78,
-26,
-41,
15,
96,
74,
21,
-26,
-118,
-47,
-44,
-118,
21,
-55,
-16,
89,
18,
48,
127,
-106,
10,
53,
30,
-13,
42,
30,
-50,
-116,
44,
90,
45,
72,
-71,
-55,
-99,
-49,
18,
-93,
34,
-100,
39,
80,
62,
-103,
49,
8,
-20,
115,
-90,
-122,
116,
111,
-119,
12,
102,
66,
37,
93,
-51,
-32,
-119,
63,
110,
-107,
-89,
24,
81,
96,
36,
-108,
-39,
60,
116,
3,
-4,
-19,
30,
79,
-20,
-124,
-97,
-112,
-79,
-53,
112,
26,
-16,
-21,
45,
32,
117,
-51,
-94,
86,
69,
122,
-37,
-114,
-108
] |
The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in which petitioner seeks a writ of habeas corpus to procure his release from the state penitentiary where he is presently confined under a sentence rendered September 15, 1922, following his plea of guilty of the crime of murder in the first degree.
Petitioner states five contentions that his imprisonment is unlawful. They are (1) that the trial court failed to acquire jurisdiction over the subject matter before rendering judgment; (2) that the trial court failed to appoint counsel for him; (3) that there was a failure to produce the necessary and substantial evidence required for a valid conviction; (4) that there were no witnesses who corroborated the evidence; and (5) that, the court failed to state what specific and definite statute was violated. These various contentions will be discussed, but not in the order presented.
Assuming that contentions 3 and 4 may properly be raised in a habeas corpus proceeding, it is too clear for argument that where a plea of guilty to the offense charged is entered by the defendant, there can be no question of sufficiency of the proof. See Fairce v. Amrine, 154 Kan. 618, 121 P. 2d 256. With reference to contention 5, it may be noted that although the statute now in force (G. S. .1945 Supp. 62-1516) does require a statement in the journal entry of judgment of the statute under which the sentence is ren dered or imposed, that was not required prior to its enactment in 1941. The journal entry of judgment discloses that in the district court of Butler county on September 15, 1922, the defendant appeared in person and was not represented by an attorney; that he was informed in open court that an information had been filed against him charging him with murder in the first degree and that he entered a plea of guilty to the charge as contained in the information; that thereafter the court inquired if he had any reason to show why sentence should not be pronounced and he stated he had none, and the court rendered judgment that he be taken to the state penitentiary and kept for the remainder of his life. The information filed against the petitioner was in full compliance with our criminal code (G. S. 1935, 62-1004), and properly charged murder in the first degree in express words. It fully specified the degree of the offense and had he stood trial and been convicted the jury would have had no difficulty in specifying that degree as required by 62-1510, and upon his statement that he had no cause he was sentenced under 62-1511. The above sections of our criminal code were all in effect at the time petitioner was sentenced, and under them he was properly sentenced. It was not then required that the journal entry state the statute under which defendant was charged and pleaded guilty, nor the statute under which he was sentenced, and petitioner is not entitled to the writ for that reason.
We shall treat contentions 1 and 2 together, for apparently petitioner contends that the court lacked jurisdiction to sentence him because it failed to appoint counsel for him. We here note that petitioner has attached a sworn statement to his pleading. We treat it as his deposition. In that statement he states he. was not permitted to talk with other inmates of the jail or any outside persoq other than the officers, and that'he was not permitted to write letters or receive mail. He further states he had no knowledge of law and legal proceedings and was permitted to go before Judge A. T. Ayres unaided by counsel and unadvised as to his constitutional rights, and was sentenced “without so much as mention of counsel,” and that at no time was he asked if he desired or did not desire counsel. This court is aware that Honorable A. T. Ayres, who presided at petitioner’s trial, and A. F. Williams, who was then county attorney of. Butler county; are deceased, and it has been informed 'that Newt Purcell, who was then sheriff, is also deceased. The respondent however has furnished affidavits which are noted briefly.
The affidavit of McKnight states that he was undersheriff under Purcell and at times acted as jailer; that he remembered Crisp’s being in the Butler county jail; that he had read Crisp’s petition in the instant case; that when Crisp was in jail he was deprived of no privilege and was given the same rights and consideration all prisoners were given and was mistreated in no way, and that Crisp’s statements as to mistreatment are totally untrue.
The affidavit of Taylor’ states he was deputy county attorney at the time Crisp was sentenced to the penitentiary. His statements as to the offense will not be detailed. He does not state he was present when Crisp was tried and sentenced, but does say he knows it was the custom of Judge Ayres to advise an accused of his right to a trial by jury and his right to the appointment of counsel to represent him precedent to acceptance of a plea of guilt and imposition of sentence.
There is also an affidavit from W. N. Calkins, now a judge of the same district court, stating he had been a deputy county attorney of Butler county; that he had practiced twenty years before Judge Ayres and that it was the practice of Judge Ayres to explain fully to a defendant his right to have counsel appointed for him if he was unable to employ any for himself.
In the very nature of things, the facts vary in the different habeas corpus proceedings instituted in this court, but the substance of the present petitioner’s contentions has been presented and discussed in other eases. In considering petitioner’s contentions we follow the rule often stated, that where a petitioner in a habeas corpus proceeding attacks the judgment against him on the ground his constitutional rights have been violated, the burden of proof is upon him to establish the facts relied upon as having that effect. See Bissell v. Amrine, 159 Kan. 358, syl. ¶ 2,155 P. 2d 413, certiorari denied 324 U. S. 875, 65 S. Ct. 1013, 89 L. Ed. 1428, rehearing denied 325 U. S. 894, 65 S. Ct. 1190, 89 L. Ed. 2005. See, also, the opinion in Downs v. Hudspeth, this day decided (post, p. 575). And it has also been held that where a person accused of a crime has been sentenced following his plea of guilty, the judgment, when collaterally attacked, carries with it a presumption of regularity. See Brewer v. Amrine, 155 Kan. 525,127 P. 2d 447, certiorari denied 317 U. S. 702, 63 S. Ct. 525, 87 L. Ed. 561. We nóte also our decisions to the effect that the mere fact a journal entry of judgment, in a case tried prior to the change in the criminal code in 1941, may have recited that defendant was without counsel, is not to be held to show that he was deprived of counsel. See Garrison v. Amrine, 155 Kan. 509, 126 P. 2d 228, certiorari denied 317 U. S. 630, 63 S. Ct. 51, 87 L. Ed. 509; Hill v. Hudspeth, 161 Kan. 376,168 P. 2d 922.
As we understand petitioner, his contention, in part, is that the trial court was compelled to advise him of his right to counsel, and that the journal entry of judgment shows it did not do so. Insofar as the statutes of Kansas are concerned, the statute in effect at the time petitioner was tried was that if he be without counsel to conduct his defense and be unable to employ any, it was the duty of the trial court to assign him counsel at his request (G. S. 1935, 62-1304). There is no showing whatever that petitioner’s rights’ under this statute were violated, but over and beyond any requirement of the statute, we are satisfied from the showing made that the trial court did, as a matter of fact, explain to petitioner the charge against him and did advise him of his right to counsel. Petitioner’s charge that he was mistreated in the county jail is disproved by the record, and his unsupported charge that the court failed to advise him of his right to counsel and appoint counsel for him is in dispute, and we are not convinced of its truth, and we find that he was advised as to his rights.
We think it may not be said that petitioner’s rights under the constitution and statutes of Kansas or under the constitution of the United States were violated in any particular. Petitioner is not entitled to the writ prayed for, and it is denied. ■ | [
-16,
-32,
-7,
63,
11,
-31,
42,
24,
112,
-77,
-28,
115,
-19,
-34,
0,
51,
123,
115,
85,
121,
77,
-73,
119,
81,
-14,
-13,
-55,
-43,
51,
75,
-68,
116,
77,
-96,
-118,
-11,
-26,
-54,
-47,
30,
-50,
5,
-88,
-15,
90,
0,
52,
127,
92,
15,
-79,
-113,
-29,
42,
18,
-61,
73,
44,
-53,
-17,
96,
-72,
-113,
-113,
-35,
6,
-93,
-122,
-100,
-89,
88,
46,
-104,
21,
3,
-24,
81,
-106,
-122,
116,
111,
73,
44,
102,
98,
1,
77,
-22,
-96,
-119,
14,
126,
-107,
-89,
-104,
80,
67,
5,
-106,
-67,
113,
116,
38,
122,
-27,
4,
121,
108,
9,
-114,
-76,
-79,
13,
124,
-118,
32,
-29,
1,
64,
113,
-115,
-42,
92,
71,
121,
-101,
-82,
-10
] |
The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus, brought by the state of Kansas on the relation of the attorney-general of the state and the county attorney of Riley county, for a writ requiring the board of county commissioners of Riley county to issue the funding bonds of the county in the sum of $103,671.76 and dispose of them in the manner prescribed by chapter 319 of the Session Laws of 1933, for the purpose of discharging and refunding the indebtedness specified in sections 3-B and 3-C of the amended notice and financial statement posted and published by the defendant board on June 19,1933. An alternative writ was issued, and the defendant members of the board have returned the writ according to the command thereof and filed a motion to quash the writ.
Chapter 319 of the Laws of 1933 is what is generally known as the cash-basis law. In the recent opinion rendered in the case of State, ex rel., v. Board of Education, 137 Kan. 451, 21 P. 2d 295, holding this act constitutional and valid, this law was described as follows:
“The act pertains to the indebtedness of subdivisions of the state authorized by law to raise money by taxation and to expend the money so raised in performing their respective governmental functions. Broadly speaking, it is designed to have such governmental units operate their respective functions on a cash basis — not to spend money they do not have or incur obligations they cannot meet promptly.” (p. 452.)
The items involved in this proceeding specified as above in sections 3-B and 3-C are described as being amounts overdrawn as therein stated, viz., county general fund $44,028.22, county poor fund, $39,355.54, and five road and benefit-district projects in the sum of $20,288, making the total of $103,671.76. These overdrafts have all been paid by the county out of two other funds in which there was money in excess of the immediate demand therefor, namely, the county road fund and the county bridge fund. There is, therefore, no outside third party holding any warrant or other evidence of indebtedness against the county or claiming anything from the county on account of such overdraft. The outside indebtedness has been paid by borrowing the funds necessary therefor from the county road fund and the county bridge fund.
It is contended by the defendants that -there is no authority vested in the board to replenish such overdrawn accounts or create a new indebtedness; that chapter 319 of the Laws of 1933 is not a revenue-raising measure, but it limits the power and authority of defendants to paying legal debts and obligations; that overdrawn funds are not debts or obligations within the meaning of the act; that a debt or obligation must be predicated upon some sort of a contract, express or implied, in which connection there must be at least two persons or parties, whereas here we have only one involved, viz., the county.
There can be no serious contention as to the usual and general meaning of the words, “debt” and “obligation,” or the fact that they are predicated upon an express or implied contract, yet when one by check overdraws his account at the bank to satisfy an existing indebtedness, the debt is paid when the bank honors the check, but impliedly a new debt to the amount of the overdraft is immediately created, and it lacks none of the elements of an implied contract. When the debt or obligation of the poor fund in this case was by the county satisfied and paid out of the bridge fund in its hands, was a new debt or obligation created? Two strong arguments are presented in the negative, viz., that there is only one party handling the transaction, and that the constitution, article 11, section 4, requires that “no tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.”
We are here confronted with the fact that the county bridge and the county road taxes have been misapplied. Is there anything wrong in now trying to correct that mistake? If it were a clerical mistake, it would be corrected immediately upon discovery. Here it is a deliberate misapplication attempted to be exonerated by the excuse of dire necessity. If the issuance of these bonds will make it possible to restore to these two funds the amounts wrongfully borrowed or taken therefrom, it will be in obedience to the constitutional inhibition that the funds be applied to the proper purposes only.
We think it is not clear or conclusive that there is only one party here concerned, or that the county has been dealing with itself in reaching the present status of the several funds here concerned, three of them being overdrawn to the amount here involved, the overdraft being taken from two others having a surplus. Are not each of these separate funds integral units of the whole financial system of the county? They are each sustained by separate proportions of the general levy, or by specifically separate levies, and each, while a part of the whole, is a separate unit.
In the recent case of State, ex rel., v. State Highway Comm., 132 Kan. 327, 295 Pac. 986, where the state highway commission objected to reimbursing McPherson and other counties for funds paid out by them for the construction of highways, because the outstanding debts and obligations had already been paid by the counties, it was held:
"... A resulting duty devolved upon that body to adjust and settle with the counties for moneys expended by them on roads of the state system, which moneys had been advanced from miscellaneous county funds when the fund properly chargeable therewith was temporarily depleted. . .” (Syl. ¶ 1.)
This was not by way of approval of such misappropriation of funds, but was only to uphold the new highway act as a means to avoid the predicament in which many counties found themselves with temporary overdrafts in some of their funds to pay warrants properly chargeable to other funds. This decision frequently refers to these previous transactions as resulting in the making of overdrafts, oi” borrowing from one fund'for the use of another. In the case at bar, as in that case, we cannot and do not approve such misappropriation of funds, but this refunding act, like the highway act, seeks to remedy the present existing situation in which these funds are found and prevent the recurrence of such a predicament.
If there has been a borrowing of one fund for the payment of the debts of another fund, there is certainly such a separate entity in the right to the use of the particular fund as to support the relation of one to the other as that of borrower and lender and create a debt or obligation, although doné irregularly and without legal authority. We cannot, therefore, concur in the contention of the defendants that the overdraft sought to be paid or refunded in this case by the issuance of bonds is not a debt or obligation within the general meaning of those words.
It was said in the case of State, ex rel., v. Saline County Comm’rs, 128 Kan. 437, 278 Pac. 54, that “each of the funds is distinct from the others.” At the same time the court condemned and disapproved the practice of loaning to or borrowing from one or the other as being in violation of the constitutional provision above cited.
Under the provisions of this act we are not confined to the matter of simply paying or refunding these debts and obligations, for in the second and seventh sections of the act there are provisions for refinancing them, which is more comprehensive and permits and embraces the readjusting of the financial relations between the several funds covering, as in the case of State, ex rel., v. State Highway Comm., supra, the matter of overdrafts and borrowings, without justifying such.
Again, the act itself distinctly recognizes the existence of these irregularities of which we are speaking, by requiring, in section 3, under three different headings, that the municipality set out as a part of its outstanding indebtedness—
“(B) Amount of overdrawn funds other than bond funds,” etc.;
“(C) Amount of overdrawn bond funds,” etc.;
“(D) Amount of overdrawn funds for which no tax levy was made for the current year. .
It is true that some of these references to overdrawn funds may relate to cases where warrants have been issued, registered and not paid for want of funds, but they are not all of this kind or character.
The act requires the listing by the board of all these matters of indebtedness, overdrafts included, and posting the same. It also provides for the amendment or correction of any of the "items and for an appeal from such amended list, and then provides that—
“Any municipality which has complied with all the provisions of this act is hereby authorized to fund such indebtedness (viz., the indebtedness as shown on the final published statement of the municipality), including the accrued interest thereon, if any, to July 1, 1933, and to issue bonds of the municipality for the purpose of paying or refinancing said indebtedness.” (Sec. 7.)
The three items here in question, totaling 1103,671.76, were included in the final published statement; they passed the scrutiny of the defendant board of county commissioners, and any ten taxpayers of the county had the right to appeal to the district court, and also to the supreme court, if any objection was had to the statement or any of the items therein. No appeal was taken, and by. such authorization, above quoted, the refunding to be done is of the indebtedness shown in the published statement.
But, aside from the detailed provisions of the act permitting and authorizing the doing of certain things, the duty of the defendant members of the board in this case must be learned from a careful construction of the act as a whole so as to give effect to the evident intent and purpose of the legislature. As was said in 59 C. J. 961—
“In construing a statute to give effect to the intent or purpose of the legislature, the object of the statute must be kept in mind, and such construction placed upon it as will, if possible, effect its purpose, and render it valid, even though it be somewhat indefinite. To this end it should be given a reasonable or liberal construction.”
The act itself provides, in section 9, that “this act shall be liberally construed for the achievement of said objectives.” The title of the act is—
“An act in reference to indebtedness of cities, counties, townships, boards of education, municipal universities, school districts, high-school districts, drainage districts, and other municipalities, and providing for the funding of the same, and prohibiting the drawing of warrants or making of contracts under certain circumstances, and providing penalties for the violation of this act.”
Section 2 of the act plainly and definitely states the two-fold purpose of the act, first, to pay or refinance the valid indebtedness of the municipality, and then provides for the future operation of all financial affairs to be upon a cash basis. It is as follows:
“All municipalities are required to pay or refinance their valid indebtedness as in this act provided, in the manner and at the times herein set forth, and to contract no indebtedness after May 1, 1933, except as herein provided. It is hereby declared that the purpose of this act is to provide for the funding and payment of all legal debts and obligations except present bonded indebtedness of all municipalities and for the future conduct of the financial affairs of such municipality upon a cash basis.”
Sections 12 and 13 specifically limit all financial transactions of the future to a cash basis in the following language:
“Unless otherwise provided in this act, it shall be unlawful after May 1, 1933, for the governing body of any municipality to create any indebtedness in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose, or to authorize the issuance of any order, warrant, or check, or other evidence of such indebtedness of such municipality in excess of the funds actually on hand in the treasury of such municipality at the time for such purpose.” (Sec. 12.)
“Unless otherwise provided in this act, it shall be unlawful after May 1, 1933, for any member of any governing body of any municipality to knowingly vote for or in any manner aid or promote the passage or adoption of any order, motion, ordinance, resolution, legislation or other act of said governing body, creating an indebtedness in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose, or to knowingly vote for the drawing of any order, warrant or check, or other evidence of such indebtedness on the treasury of said municipality, in payment of any such indebtedness, in excess of the amount of funds actually on hand in the treasury at the time for such purpose.” (Sec. 13.)
Sections 14, 15, 17 and 18 prescribe the duties of the secretary and treasurer of such municipalities in carrying out the purpose of the act as expressed in the previous sections. Section 20 imposes a punishment upon all officers who violate any of the provisions of the act.
It is admitted by all parties hereto that the cash basis in Riley county would be an impossibility under the provisions of this act without the refunding or refinancing of the three overdrawn items here under consideration. With the cash basis as the ultimate purpose of this act, made possible only by the refunding or refinancing of debts and obligations of the municipality, as authorized and permitted in the act, we have no difficulty in concluding that such necessary refunding and refinancing was as much the evident intention and purpose of the legislature as the cash-basis feature thereof, and, in this particular case, that it would include and authorize the refund-ng and refinancing of the overdrafts in the three funds which had previously, irregularly and even without authority, been met and paid out of two other different and separate funds.
“As the intention, of the legislature, embodied in a statute, is the law, the fundamental rule of construction, to which all other rules are subordinate, is that the court shall, by all aids available, ascertain and give effect, unless it is in conflict with constitutional provisions or is inconsistent with the organic law of the state, to the intention or purpose of the legislature as expressed in the statute.” (59 C. J. 948.)
“In the interpretation and construction of statutes the primary rule is to ascertain and give effect to the intention of the legislature. As has frequently been stated in effect, the intention of the legislature constitutes the law. All rules for the interpretation and construction of statutes of doubtful meaning have for their sole object the discovery of the legislative intent, and they arc valuable only in so far as, in their application, they enable us the better to ascertain and give effect to that intent.” (25 R. C. L. 960.)
“A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to the obvious purpose the court should follow the intent as expressed by the words used and is not warranted in looking beyond them in search of some other legislative purpose or of extending the meaning beyond the plain terms of the act.” (Alter v. Johnson, 127 Kan. 443, syl. ¶ 1, 273 Pac. 474.)
“In construing a statute the court may look to the history of the times, to the causes which induced its enactment and to the object sought to be attained.” (State, ex rel., v. Davis, 114 Kan. 283, 287, 217 Pac. 905.)
All the reasons assigned by the defendants as to why they should not be required to refund or refinance the indebtedness mentioned in the application for the writ have been fully considered and overruled.
The motion to quash the alternative writ should be denied and a peremptory writ allowed. It is so ordered.
Johnston, C. J., not sitting. | [
-10,
-20,
-79,
124,
-54,
96,
2,
26,
89,
-79,
-75,
87,
-83,
-54,
5,
123,
-10,
45,
80,
104,
103,
-77,
55,
-23,
-42,
-77,
-35,
-35,
-67,
79,
-10,
-41,
72,
-16,
10,
-99,
70,
-62,
-57,
84,
-114,
6,
-117,
65,
-47,
72,
52,
111,
50,
9,
49,
-82,
115,
40,
24,
99,
72,
44,
-39,
-81,
5,
-15,
-102,
-105,
127,
87,
1,
-124,
-100,
7,
-56,
42,
-104,
57,
8,
-24,
122,
-90,
-106,
116,
73,
-103,
40,
114,
98,
3,
-76,
-17,
-76,
-119,
30,
-45,
-99,
-90,
-109,
89,
34,
9,
-106,
-103,
117,
22,
7,
118,
-18,
5,
91,
108,
15,
-50,
-16,
19,
-113,
100,
10,
18,
-25,
33,
48,
97,
-115,
-10,
94,
-25,
58,
-101,
-113,
-104
] |
The opinion of the court was delivered by
Btjrch, J.:
The petition asserted plaintiff was the owner of an undivided one-fourth interest in a section of land in Greenwood county, and in form was one for possession and partition. The issue, as finally framed, was whether plaintiff’s interest had been lawfully sold and conveyed by administrator’s deed, to pay debts of plaintiff’s father, from whom., sha derived title by descent. The court returned findings of fact and a conclusion of law on which judgment was rendered for plaintiff. Defendants appeal.
It may be helpful to introduce the findings by a preliminary statement.
Edward E. Dodge and Mary E. Dodge were husband and wife. They had four children, Edward H., Edith, Anna and Alice. Edward E., owner-of the land, made a will devising the land to his wife for life, remainder to his four children in equal parts. The testator died, his will was duly probated, and each of the children became owner of an undivided one-fourth interest in the land, subject to the mother’s life estate.
Edward H. Dodge married Pearl Bentley, and one of his sisters testified there was no rejoicing over the marriage by members of the family. Edward H. and Pearl had one child, Grace, now Grace Eaton, the plaintiff. Edward Ii. and his wife were divorced, custody of Grace was given to her mother, and her existence was ignored by her father’s sisters.
Edward EL died intestate in Colorado, leaving his daughter Grace as his sole heir. His sister Anna had married C. M. Winebright, and Winebright was appointed administrator. Winebright filed a personal claim against the estate, which was allowed. Winebright then petitioned the probate court of Greenwood county for an order of sale of the land, to pay debts of the deceased. Edith Dodge married C. C. Koontz, and Winebright reported a sale of the land to Koontz, but Mrs. Winebright, Mrs. Koontz, and their sister, Alice Dodge, soon appeared as owners. Mary E. Dodge, owner of the overlying life estate, died, and on the face of the court records the daughter of Edward H. had been excluded from all interest in the land. In due time she discovered what had occurred, and brought the action which terminated in her favor. The findings of fact, which tell the story in detail, and the conclusion of law on which the judgment rests, follow:
“Findings op Fact.
“First. Edward H. Dodge died intestate in Delta county, Colorado, on September 13, 1926, seized of an undivided one-fourth interest in and to all of section No. 4, township No. 23, range No. 12 east, Greenwood county, Kansas, subject to a life estate in his mother, Mary E. Dodge.
“Second. The plaintiff herein was a daughter of said Edward H. Dodge, and his sole and only heir.
“Third. G. M. Winebright and the defendants, and Mary E. Dodge, mother of the defendants and of Edward H. Dodge, knew of the fact stated in finding No. 2, at all times.
“Fourth. On September 15, 1926, C. M. Winebright filed his verified petition in the county court of Delta county, Colorado, for letters of administration on the estate of. Edward H. Dodge, and therein made the false statement that Mary E. Dodge, Alice E. Dodge, Mrs. C. C. Koontz and Mrs. C. M. Wine-bright were the sole and only heirs of Edward H. Dodge, deceased, which statement was known to be incorrect by all of said parties. In another affidavit made by Winebright and filed in said proceeding he also stated that Mary E. Dodge, mother of Edward H. Dodge, was his sole and only heir, which statement was false. ■ ■ •
“Fifth. C. M. Winebright was appointed administrator of this estate by the clerk of the county court of Delta county, Colorado, on September 15, 1926. The clerk, Frank M. Goddard, however, was also the county' judge. No seal of the court was affixed to the order of appointment.
“Sixth. This appointment of Winebright as such administrator was procured as the result of an agreement made therefor by said Winebright, Mary E. Dodge, and the defendants herein.
“Seventh. On October 26, 1926, C. M. Winebright filed his claim against said estate and procured the allowance thereof. At the time said claim was filed a very large portion of it was barred by the statute of limitations of the state of Colorado, and thereafter there came into the hands of Winebright, as administrator, for the payment of claims against said estate, an amount amply sufficient to pay all claims, except such of his claim as was so barred by the statute of limitations, without any necessity for the sale of the land in Greenwood county, Kansas, heretofore described and herein in controversy.
. “Eighth. Sec. 5335 of Compiled Laws of Colorado, 1921, is as follows:
“ ‘5335. Claims filed, within six months — Notice—Sec. 185. Persons having claims against estates may file the same at any time within six months after the granting of any letters of executorship, and administratorship or guardianship, and upon giving the executor, administrator or conservator ten days’ notice of the time they intend to present the same for allowance, may present for allowance such claim so filed against the estate, at any term of the court after adjustment day and before the final settlement of the estate.’
“Ninth. Sec.'5338 of Compiled Laws of Colorado, 1921, is as follows:
. “ ‘5338. When executor, etc., has claim against estate — Sec. 188. When any executor, administrator or conservator shall have any demand against his testator’s, intestate’s or ward’s estate, he shall be required to file his demand with the county co.urt as other persons, and the court shall appoint some discreet person to appear and manage the defense for the estate, and upon a final hearing said court shall allow said demand, or such part thereof as shall be legally established, or reject the same, as to said court shall appear just; should an executor, administrator or conservator appeal in such case, the county court shall appoint some person to defend as aforesaid.’
“Tenth. Sec. 5342 of Compiled Laws of Colorado, 1921, is as follows:
“ ‘5342. Proof of Claim — Sec. 198. No person making a claim against the estate of any testator, intestate, or mental incompetent, shall be permitted to prove the same by his or her own oath, but said court shall, before giving judgment against any executor, administrator, or conservator, require the claimant to make oath that such claim is just and unpaid; provided, that the amount of such judgment shall not be increased on the affidavit of the claimant; and provided further, that every demand shall be proven in the same manner and by like evidence as would be required in other cases where one defends as an administrator.’
“Eleventh. The court appointed as the ‘discreet’ person to defend the estate, as required by section 5338 above, one Walter H. Beckley. He appears to have been a janitor at the courthouse, and his services in and about the matter were entirely perfunctory. No notice was ever given him of the hearing upon said claims as provided by section 5335 above quoted, and the claim was never presented to him and was never approved by him. No proof was ever made of said claim as required by section 5342 above, except the verified statement of the account, nor was any other evidence offered to support the same. ,
“Twelfth. The mother of Edward H. Dodge, deceased, and the defendants herein, each voluntarily contributed $500, or a total of $2,000, the proceeds of an insurance policy upon the life of Edward H. Dodge, to pay the debts of the deceased. This $2,000 is not accounted for in receipts of Winebright in his statement of receipts and disbursements.
“Thirteenth. This voluntary contribution was made prior to any proceedings had towards selling the land hereinafter referred to.
“Fourteenth. On September 28, 1929, Winebright, administrator, filed in the probate court of Greenwood county, Kansas, his petition to sell the undivided interest of the deceased in the section of land heretofore described, alleging therein that there was no personal estate of deceased, and that unpaid debts, with charges of administering the estate, were approximately $7,000.
“Fifteenth. Except for the payment of that part of the claim of Wine-bright which was barred by the statute of limitations, there was no necessity or legal basis for the sale of this land by him as administrator.
“Sixteenth. Pursuant to this petition so presented by the said Winebright as administrator, said real estate was sold on November 27, 1929, for the purported sum of $5,500 cash in hand.
“Seventeenth. Said Winebright, administrator, reported to the probate court of Greenwood county, and procured its approval thereof, that he had sold said real estate to one C. C. Koontz for $5,500 cash in hand, and that he did not directly or indirectly purchase the same, and that he was not interested in the property. The fact is that Koontz did not in reality purchase said real estate. He paid no money therefor. Immediately after receiving the administrator’s deed to said real estate from Winebright, administrator, he conveyed the same back to Winebright, and vested him with title thereto, and this deed was afterwards lost or destroyed. Koontz thereafter, by prearrangement, conveyed by quit-claim deed the real estate described to the defendants herein. There was paid to said Winebright, as administrator, by Mary E. Dodge, the mother, the sum of $5,200. By a prior understanding between all the parties, the title to this real estate was by this proceeding intended to be vested in Anna Winebright, wife of the administrator, and the other defendants herein.
“Eighteenth. C. M. Winebright, administrator, is the husband of Anna Winebright, one of the defendants herein. Mary E. Dodge was the mother of said Anna Winebright and of the other defendants, Alice E. Dodge and Mrs. C. C. Koontz. C. C. Koontz was the husband of the defendant, Mrs. O. C. Koo'ntz.
“Nineteenth. The proceedings in the sale of said land was a subterfuge for the purpose of divesting the plaintiff of her interest in said real estate, and the scheme to so divest her of such title was participated in by all the defendants, Mary E. Dodge, C. C. Koontz, and Winebright as administrator.
“Twentieth. The defendants and Mary E. Dodge and Winebright purposely concealed from the county court of Delta county, Colorado, the existence of this plaintiff.
“Twenty-first. The plaintiff herein had no knowledge or actual notice of any of the proceedings hereinbefore cited, or of the death of her father, until shortly before the commencement of this action.”
“Conclusion op Law.
“All proceedings had in the probate court of Greenwood county, Kansas, for, and the sale of the land in controversy, should be set aside, and the plaintiff restored to her undivided interest in said land.”
The findings of fact were sustained by the evidence. That the action was maintainable in the district court, and that the action constituted a direct attack on the validity of the proceeding culminating in the administrator’s deed, are propositions too well settled to require printing of another list of authorities.
The attitude of defendants is perfectly simple. The probate court of Colorado had jurisdiction over the subject of allowance of claims against the Dodge estate, and allowed them. The Kansas court had jurisdiction over the subject of sale of land to pay debts. Notice of hearing of the application to sell was given by publication, and in contemplation of law, plaintiff had her day in court. The order of allowance of claims by the Colorado court was prima fade evidence of the existence of debts. The Kansas court ordered the land sold, and approved the sale which was reported. The forms of the law having been observed, plaintiff is remediless. True, plaintiff charged fraud; but relief on the ground of fraud may be granted only for extrinsic fraud in fact. If there was fraud, it related to determination of the issues, existence of debts, and necessity to sell land to pay debts. Such fraud is intrinsic, and the district court was powerless to do anything about it.
When Dodge died, the persons other than plaintiff who would be interested in sale of the land to pay debts, gave Winebright money to pay provable debts. Debts of the decedent barred by statute of limitations were not provable because they were not valid and enforceable claims against his estate. Therefore, as the district court found, there never in fact existed any necessity or legal basis for an administrator’s sale of the land.
Winebright, administrator, took the role of creditor of the estate, and presented a large claim barred by the statute of limitations, and consequently no debt of the estate. The law of Colorado provided the way by which the validity of this claim might be established. A dummy was designated to defend against the claim. He had no authority to waive bar of the statute of limitations, patent on the face of the claim filed, but Winebright ignored him, and procured allowance of the claim without proof which the statute required. Paraphrasing the language of the opinion of this court by Dawson, J., in the case of Leslie v. Manufacturing Co., 102 Kan. 159, at 162, 169 Pac. 193, there was no judgment of allowance of the claim in any proper sense, but merely a mummery of form in an effort to give colorable judicial approval of Winebright’s claim.
The judgment allowing the claim was brought to Kansas, and a proceeding was instituted in the proper probate court, nominally to sell the land to pay debts. Winebright deceived the court by returning a sale he did not make, and an administrator’s deed was issued. The proceedings were collusive, and were resorted to as a subterfuge to divest plaintiff of her one-fourth interest in a section of land, and vest that interest in the administrator’s wife, the purported purchaser’s wife, and their sister.
The court has distinguished between extrinsic fraud and intrinsic fraud occurring in the course of a proceeding. The distinction is sound, and is adhered to. Extrinsic fraud consists in preventing fair presentation of issues. Intrinsic fraud relates to fair' determination of issues. (Potts v. West, 124 Kan. 815, 262 Pac. 569.) Some of the conduct displayed in the proceedings under consideration may be classified as extrinsic fraud, but it is not necessary to catalogue what was extrinsic and what was intrinsic. Practical application of the distinction is often difficult, and the court does not propose to become so involved in rules and distinctions and categories of its own making or recognition that it becomes impotent to deal in a forthright manner, when necessary, with that most persistent of all baleful practices, the practice of fraud.
In the case of McAdow v. Boten, 67 Kan. 136, 72 Pac. 529, a claim was allowed by a probate court, which was used as a basis for an administrator’s sale and conveyance of land. The decedent in fact owed nothing for which a sale could legally be made, an intrinsic matter for determination of the probate court when the claim was allowed. Whether a sale of the land was necessary to pay debts, and whether authority to sell was properly carried out, were likewise matters for the court to adjudicate in granting the order of sale and in confirming the sale and ordering deed. The whole proceeding, however, was collusive, and was instituted and carried out to deprive heirs of their land. The court did not parley over the nature of the fraud, whether extrinsic or intrinsic, but in effect held land may not be stolen in that way. The syllabus reads:
“Where a fraudulent claim is presented to the probate court against the estate of a deceased person, and the administrator and claimant conspire together to secure its allowance, and land is sold to satisfy the demand and bid in by the claimant', the sale approved, and the administrator discharged, the district court has jurisdiction of an action to set aside the proceedings and to annul the deed.”
The decision was sound, and is sufficient authority, if authority be needed, for the judgment of the district court in this case.
An extended review of the cases, multifarious in their facts, is not necessary. Generally, when the court is called on to review a proceeding which was instituted by collusion in furtherance of a scheme to prostitute the court and its processes to fraudulent ends, and the proceeding has culminated in a judgment or order apparently regular and valid which would effectuate the iniquitous design, the court should not hesitate to nullify the judgment or order.
The judgment of the district court is affirmed. | [
-15,
108,
-35,
62,
-86,
96,
42,
-8,
120,
-119,
-79,
95,
-23,
73,
20,
41,
-13,
15,
81,
106,
-10,
-77,
23,
-125,
82,
-77,
-77,
-36,
49,
89,
-27,
-42,
76,
32,
-126,
85,
-26,
106,
-59,
18,
-52,
-126,
-101,
101,
25,
-46,
52,
123,
114,
77,
-43,
-113,
-13,
46,
61,
-61,
108,
46,
-37,
-67,
80,
48,
-85,
5,
95,
22,
17,
7,
-104,
-121,
-56,
8,
-104,
49,
9,
-24,
51,
54,
-122,
-12,
99,
-103,
8,
102,
-25,
113,
-43,
-17,
-88,
-104,
14,
114,
13,
-89,
-106,
88,
11,
105,
-76,
-99,
121,
96,
2,
-12,
-18,
13,
68,
-4,
4,
-118,
-106,
-95,
-121,
120,
-120,
3,
-29,
-27,
48,
112,
-49,
66,
92,
68,
49,
-101,
-113,
-74
] |
The opinion of the court was delivered by
Smith, J.:
This action was instituted in probate court to collect a promissory note. The probate court gave judgment for the holder of the note. An appeal was taken to the district court, which gave judgment for the maker of the note. The appeal is from that judgment.
The first question raised is that a motion to dismiss the appeal to the district court should have been sustained. This motion was filed on the ground that no affidavit of proof of service of the notice, of appeal and no affidavit for appeal had been filed as required by R. S. 22-1102. A hearing was had on this motion. The evidence disclosed that the docket of the probate court did not show any record of the filing of such an affidavit. Counsel for the holder of the note, together with the probate judge, searched the files of the case every few days during the thirty-day period allowed for perfecting the appeal and found no affidavit. A few days after the thirty-day period had elapsed counsel for the holder of the note called at the office of counsel for the executor and advised the stenographer in that office that he held a final judgment against the estate and that no affidavit for appeal had been filed in the probate court. Within a few days an affidavit for appeal was discovered in the files of the case, with no filing mark on it.
At a hearing on the motion to dismiss the appeal in the district court the evidence of plaintiff was substantially as outlined above. While no denial of that motion was filed at the hearing, it was treated as though it had been denied. Counsel for the executrix, his stenographer and notary, who had prepared the affidavit and taken the acknowledgment to it, testified that the affidavit was prepared in time; that a complete file consisting of carbon copies of all papers in the case was kept in the office; that carbon copies of the notice of appeal and affidavit for appeal were in the file; that neither of them had any distinct recollection of having taken them to the office of the probate court; that neither had seen the affidavit and notice after filing until the time of the hearing, and that the papers had not been in their office since. There was testimony that occasionally, when some one came into the office to file papers and found the probate judge out, the papers would be left on the desk of the judge to be filed by him on his return. The trial court heard the evidence on the motion to dismiss the appeal and held against dismissal. This amounts to a finding of fact that the affidavit was in fact filed. It will be seen that this finding was based on conflicting evidence. It will not be disturbed on appeal.
The trial of the case on its merits was by the court. The note was for $3,500, dated July 27, 1920, payable in six months from that date. On the back appeared the following:
“Oct. 25, 1920........................... ... $250
May 1, 1927............................ ... $320
Feb. 27, 1929........................... ... $72
“Indorsed without recourse to R. C. Eastman by C A. Sealey.”
The hearing in probate court was on May 12, 1931, so it will be seen that the statute of limitations would have run but for the payments on May 1, 1927, and February 27, 1929.
Plaintiff endeavored to establish that these payments were made by the maker of the note, on the dates written on it, by the testimony of one Mahoney that Morrow told him that he had spent more on a trip to New Mexico with Sealey than he had expected to spend and that he “had put that much on the Sealey note.” The plaintiff attempted to prove the execution of the note and the making of the payments by the testimony of Sealey, the payee of the note who had assigned it to Eastman. An objection to this evidence was sustained under the terms of R. S. 60-2804. The following offer of proof was then made:
“Mr. Eastman : The claimant now offers to show by Mr. Sealey that the indorsements on the back of claimant’s exhibit No. 1, except as to where the date ‘May 1, 1927’ is written, that all of the rest of the writing on the back of it, including October 25, 1920, $250; paid $320; February 27, 1929, $72; that all of those matters that I have just enumerated represent credits for the claimant’s exhibit No. 1, were all placed there in the presence of Mr. Morrow and with his consent and approval, and some of them written by him. I believe the word — the figures ‘May 1, 1927’ was put on there by either Mr. Morrow or Mr. Morrow’s attorney; I am not sure or the estate’s attorney, I am not sure just which that is. We offer to make that showing by Mr. Sealey.”
An objection to this offer of proof was sustained. The plaintiff then rested his case. A demurrer to the evidence of plaintiff was then offered by defendant. This was taken under advisement by the court. The defendant did not introduce any evidence.
The court took the case under advisement and made the following finding:
“Now on this 22d day of January, a. d. 1932, the court finds that respondent’s demurrer to evidence should be overruled, that respondent’s objection to testimony introduced by claimant should be overruled, that the testimony offered is not sufficient to establish a voluntary payment by deceased upon the note in suit after the running of the statute of limitations, therefore, the court finds in favor of respondent for costs.”
Judgment was accordingly entered in favor of defendant.
The error upon which plaintiff places the most stress is the order denying his motion for a new trial. He complains that evidence was rejected by the court which would have been sufficient to sustain a finding that the credits in question were put there by the maker of the note. The record discloses that this evidence was not offered to the trial court in any record form. On this account the refusal of the court to admit it cannot be urged here as error. (See R. S. 60-3004; also, Leach v. Urschel, 112 Kan. 629, 212 Pac. 111; also, State, ex rel., v. State Highway Comm., 136 Kan. 297,15 P. 2d 449.)
The plaintiff argues further that the uncontradicted evidence tended to prove that the indorsements on the note were put there by the maker on the dates named. The record shows that the trial court was of this opinion when the demurrer to the evidence of the plaintiff was overruled. The trouble is, however, that evidently the court did not believe this evidence, even though it was uncontradicted by any direct evidence. This court cannot compel the trial court to believe witnesses when it appears that tribunal did not believe them. Neither can it reverse a judgment because offered evidence was not believed. (See Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 234 Pac. 77; also, Peoples National Bank v. Diven, 135 Kan. 400,10 P. 2d 883, and cases there cited.)
The judgment of the trial court is affirmed. | [
-16,
108,
100,
-98,
-86,
-31,
-70,
-102,
-47,
67,
39,
83,
-19,
-62,
28,
47,
-29,
13,
113,
123,
-58,
51,
118,
65,
114,
-77,
-16,
-35,
-79,
-19,
-28,
23,
76,
52,
-22,
-43,
70,
-120,
-57,
82,
-50,
1,
-119,
-19,
121,
-24,
52,
35,
86,
13,
85,
-34,
-13,
41,
61,
-61,
9,
44,
-39,
-75,
-64,
-80,
-117,
-99,
95,
23,
-77,
86,
-98,
-56,
88,
42,
8,
57,
1,
-24,
48,
-74,
6,
116,
107,
57,
40,
98,
98,
1,
-107,
-21,
-72,
-120,
15,
62,
30,
38,
-109,
25,
105,
37,
-106,
-103,
125,
16,
7,
-2,
-18,
-107,
31,
108,
2,
-117,
-106,
-95,
31,
104,
12,
11,
-21,
-77,
16,
113,
-51,
-64,
92,
71,
57,
-101,
-50,
-78
] |
The opinion of the court was delivered by
Burch, J.:
The proceeding was one by an employee for compensation. Compensation was awarded by the compensation commissioner. On appeal the district court approved the award. The employer appeals.
The examiner stated the case clearly and succinctly as follows:
“Claimant is a married woman 30 years of age, who, on the 25th day of February, 1932, while passing another employee emptying a truck, was struck on the right breast by the handle of the truck as it came down, resulting in discoloration of the breast and swelling therein, pain in her breast and arm to such an extent that it was at first feared that ribs had been fractured. However, an X-ray disclosed that there was no bony injury, but the pain continued to be so severe that claimant was off work until March 2, 1932, when she returned to work and worked in spite of her pain until May 16, 1932, when she was forced to quit her employment because of pain in her breast, coupled with some sinus disturbance, which had no relation to the injuiy. The breast was lanced on June 10, 1932, and claimant returned to work on about June 13, 1932, and continued to have pain, however, both in the breast and arm. She continued to work until August 26, 1932, when another operation was performed on the breast, and since that time claimant has been unable to work because of pain in the breast and arm.
“Respondent contends that written claim for compensation was not made within the statutory time. An admission was made in the record that the first written claim to be made on respondent was that mailed to the commissioner, which was received by him September 9, 1932; within the ninety days previous, respondent had made two payments of compensation, each of them being in the form of medical and hospital attention furnished. The operation on June 10, 1932, was performed by Dr. Luke, whose bill was paid by respondent. The operation of August 26, 1932, was paid for by respondent. It is respondent’s contention that that operation was furnished h^r as a matter of charity and should not operate to toll the ninety-day period within which she might make claim. Dr. Sterrett was the physician regularly employed by the company to take 'care of all injured workmen. Arrangements were made for him to perform the operation, and he was at the hospital about to commence when he was stricken with illness, and another doctor who happened to be present volunteered to perform the operation for him and did perform the operation for him. The hospital bill was paid by respondent, and Dr. Sterrett’s wages were continued during his illness. Dr. Sterrett had seen the claimant during the trouble resulting from this blow off and on during all the time from February to August and had had charge of the treatment of her condition during all of that time.”
The examiner’s statement concluded as follows:
“This state of facts constituted a payment of compensation within the meaning of the act, and claimant had ninety days from August 26, 1932, within which to file a claim.”
As indicated, the employer contends statutory duty to furnish medical and hospital service is limited in time to the period of sixty days from date of injury. (R. S. 1931 Supp. § 44-510.) After that the furnishing of such service is a mere gratuity, and the ninety-day period within which written claim for compensation must be made is not enlarged. The furnishing of medical and hospital treatment is payment of compensation, and written claim for compensation may be made within ninety days after medical and hospital aid is last furnished. (Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131.) To continue, after expiration of the sixty-day period, to furnish medical and hospital treatment, as an uncured injury demands, is to continue to pay compensation, at least up to the amount allowed by statute for that particular service.
The statute requires that an award shall be made within thirty days after submission unless the time be extended by agreement. (R. S. 1931 Supp. § 44-523.) In this instance the hearing occurred and the cause was submitted on October 12, and the award was made on November 16. It is contended the commissioner lost jurisdiction. The statute is designed to secure prompt action, but it does not impose a time limitation upon jurisdiction to make an award.
The award which was made was sustained by the evidence.
The judgment of the district court is affirmed. | [
-16,
106,
-47,
-83,
42,
-32,
34,
26,
117,
-123,
39,
-13,
-83,
111,
29,
109,
-1,
61,
69,
123,
-5,
-77,
23,
40,
-6,
83,
123,
-41,
-71,
107,
-28,
-4,
79,
48,
-118,
-43,
-26,
74,
69,
16,
-52,
-108,
-21,
-24,
89,
80,
56,
58,
-8,
79,
49,
-34,
-29,
42,
28,
-41,
44,
40,
123,
-72,
-48,
-31,
-126,
13,
127,
16,
-96,
2,
-100,
39,
-40,
30,
-104,
-79,
0,
-24,
50,
-74,
-62,
116,
99,
-119,
4,
34,
98,
48,
21,
-27,
-24,
-72,
46,
-2,
-113,
-92,
-103,
57,
-86,
11,
-108,
-103,
124,
4,
5,
124,
-2,
85,
30,
36,
-117,
-101,
-108,
-77,
-49,
100,
-100,
10,
-21,
-121,
50,
97,
-52,
-78,
92,
69,
122,
19,
-45,
-70
] |
The opinion of the court was delivered by
Smith, J.:
This action was to recover damages for fraud and misrepresentation in the sale of a note and mortgage by defendant to plaintiff. Judgment was for defendant. Plaintiff appeals.
The petition alleged that defendant was an automobile dealer; that plaintiff was in the business of buying automobile paper; that defendant offered plaintiff a note in the amount of $1,444.68, secured by a chattel mortgage on an Auburn automobile; that at the time of making the offer defendant represented to plaintiff that the car was new; that it was being sold for $1,820, and that the buyer was paying $620 cash and that the balance due on the automobile was $1,200. The petition further alleged that subsequently defendant represented in writing that the car was new, that he was receiving $620 in cash, and that the car was selling for $1,820. It was then alleged that plaintiff relied upon the truth of these statements and purchased the note, and that the statements were false and known by defendant to be false and made for the sole purpose of inducing plaintiff to buy the note.
The petition further alleged that, in fact, the car was sold for $1,400; that the purchaser did not pay $620 in cash but gave his note for $200; that the car was not new but was a demonstrator, and that plaintiff was induced by these false representations to buy the note, and by reason of these things plaintiff was damaged in the amount of $584.16.
The answer of defendant was a general denial. It alleged further that plaintiff had knowledge that the car in question was a demonstrator; that plaintiff solicited the purchase of the note; prepared all the papers and had knowledge of all the details of the sale of the car. The answer denied that plaintiff was damaged.
Among other things the evidence shows that the person to whom the car was sold made only two payments on the note, and plaintiff repossessed the car and sold it for $700.
The jury found generally for the defendant, and judgment was entered accordingly. The appeal is from that judgment and from the order denying a new trial. The plaintiff complains first of the giving of instruction No. 3. In the brief of plaintiff that instruction is divided into two parts. The first part is as follows:
“You are further advised that if the plaintiff had knowledge of all of the circumstances surrounding the condition of the said Auburn car, and of its sale, and that with such knowledge it accepted said note indorsed ‘Without recourse’ as to the payee, who is the defendant herein, then in that event it cannot charge the defendant for any loss it may have sustained by reason of the failure of the purchaser of said car to make the payments on said note in accordance with its terms, and loss sustained by the plaintiff after it has repossessed said car and sold the same under said chattel mortgage, for the indorsement of said note by the defendant ‘Without recourse’ and the acceptance thereof by the plaintiff in the absence of fraud on defendant’s part, relieves said defendant from any and all liability on said note.”
The objection of plaintiff to this instruction is that it makes a reference to the fact that the note was indorsed without recourse and instructs the jury that under such circumstances recovery cannot be had on the note. Plaintiff urges that this confused the jury, because the action was one in tort and not on the note. The tort upon which the action was brought was the fraud with reference to the sale of the note. This could not very well be described to the jury without reference to the note. There was more likelihood that the jury would be confused and return a verdict in favor of plaintiff on account of defendant’s indorsement of the note if such an instruction had not been given than that they were confused by this instruction. We see nothing wrong with this much of the instruction.
The second part of the instruction is as follows:
“Yon are further advised that if the defendant Weber accepted an equivalent of cash for the down payment on the sale of said car that such acceptance is not a matter about which the plaintiff can complain.”
Plaintiff argues that this instruction was wrong because defendant in this case had testified that he accepted the $200 note and two diamond rings for the first payment in place of cash. Plaintiff urges that it was entitled to know whether defendant received cash or something in lieu of cash for the first payment.
About the first question a money lender asks when he is contemplating the making of a loan on a piece of security is — How much cash does the borrower have invested? If the borrower has no cash invested then there is not so much inducement for him to make the payments on the loan. If he has a considerable amount of cash invested then he will be more apt to keep up the payments. The above consideration is as important as the more obvious one that the more cash the borrower has invested the less the loan in proportion to the value of the property and the more likelihood of being able to repossess the property and sell it for enough to pay the loan. In this case the lender said, How much cash does the borrower have invested in this car? Defendant answered $620. In fact, he did not have any cash. He had diamond rings. Diamond rings are not cash. If the answer had been $620 cash or its equivalent the lender would, no doubt, have investigated what the equivalent was. It was deprived of any opportunity to do this by the statement of defendant that the buyer of the car had paid $620 cash. This was a misrepresentation of a present existing material fact, and the plaintiff relied on it. We cannot say that plaintiff would have bought the note anyway even if it had known that the first payment was in diamond rings rather than cash. The point is, it had a right to know this before it bought the note. The rule as to what constitutes actionable fraud is set out in 12 R. C. L. 240. It is as follows:
“The essential elements required to sustain an action for deceit are that the representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injuiy or damage.”
The statement that $620 cash had been paid was not substantiated by proof that an equivalent amount had been paid in diamond rings. The portion of the instruction which so advised the jury was erroneous.
As has been seen, plaintiff relied on three items of misrepresentation — that the car was new when it was not; that the purchase price for the car had been $1,820 when in fact this price had been only $1,400; and that $620 cash had been paid when only a note for $200 had been given. The answer alleged that plaintiff knew of the first two items when it bought the note and that as to the third item the equivalent of $620 had been paid. Plaintiff requested instructions on each of these items. The requested instructions were refused and apparently the court attempted to cover the situation in general instructions. These general instructions have been examined and we have not been able to find where the jury was instructed on any phase of the case except the claimed misrepresentation about the car being new.
Any one of the claimed instances of misrepresentation would have been sufficient to allow plaintiff to recover. They were each statements of material present-existing facts. Such statements, when false and relied on by another to his damage, constitute actionable fraud. (See rule from 12 R. C. L., supra.)
We have concluded that the jury should have been instructed as to all three of the claimed instances of misrepresentation.
The judgment of the trial court is reversed with directions to grant plaintiff a new trial in accordance with the views herein expressed. | [
-14,
124,
96,
-84,
27,
96,
42,
-102,
-47,
1,
-89,
-45,
-19,
66,
20,
43,
-28,
57,
117,
98,
85,
-77,
7,
75,
-14,
-77,
-5,
93,
-67,
-49,
-28,
20,
76,
48,
-62,
-107,
102,
-118,
-59,
82,
78,
-125,
41,
101,
-7,
72,
116,
59,
20,
73,
97,
-114,
-29,
46,
57,
74,
105,
40,
107,
-71,
-64,
-7,
-119,
-123,
-35,
23,
-77,
52,
-98,
105,
-38,
10,
-112,
49,
0,
-23,
114,
-74,
-122,
116,
107,
-101,
8,
38,
102,
0,
69,
73,
-8,
-120,
46,
-2,
14,
-90,
81,
89,
9,
97,
-66,
-98,
124,
16,
7,
-10,
-6,
29,
25,
108,
3,
-21,
-106,
-111,
-51,
118,
26,
11,
-18,
-109,
16,
96,
-51,
112,
92,
85,
63,
-103,
-50,
-73
] |
The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment in a suit to foreclose a mortgage which covered a 240-acre farm. Judgment was taken against the principal obligor, who was record title holder, but foreclosure was denied as to one eighty-acre tract of the farm because a son of the mortgagor, who occupied the farm at the time the mortgage was executed, held an unrecorded deed to eighty acres of the mortgaged premises.
It appears that in 1918 and for many -years prior thereto the principal defendant, John T. Chinn, owned a 240-acre farm in Pratt county: On May 14, 1918, Chinn and wife executed a deed of general warranty conveying to certain of his children and grandchildren specific parcels of this farm and other lands not involved herein. To his son Oscar Chinn, who was then his tenant on the farm of present concern, the deed conveyed title to eighty acres of it. By its terms, possession and life use of this farm and the other lands conveyed by the deed were reserved in behalf of the grantor’s wife. This deed was placed in an envelope with the following notation thereon:
“This envelope 'contains a deed conveying lands and city property by John T. Chinn and wife, Lillie Chinn, to their children and certain grandchildren, subject to certain reservations in favor of Lillie Chinn. In case of the death of John T. Chinn, these papers herein contained shall be- delivered to Lillie Chinn, if she be then alive and if the said Lillie Chinn be dead, then the papers shall be delivered to my oldest living child. (Signed) J.T. Chinn.”
The grantor, John T. Chinn, handed the envelope and its contents to Oscar Chinn, who retained it until after his mother’s death, and afterwards, without recording it,' he delivered the envelope and deed to a trust company in Wichita which retained it until this lawsuit was instituted. Nobody outside the Chinn family and its Wichita custodian knew of its existence or contents. The grantor’s wife died some time prior to November 16, 1926.
Notwithstanding this, deed, in 1923 John T. Chinn mortgaged the farm to G. W. Hastings to secure a debt of $5,700. Again -on November 16, 1926, John T. Chinn, the record title holder, executed a mortgage covering this 240-acre farm to the Warren Mortgage Company to secure a loan of $7,000, the proceeds of which were applied to pay off the Hastings mortgage. This later mortgage, which is the one with which we have to deal, was filed for record on November 29, 1926, and the Hastings mortgage was released two days later. On December 8, 1928, this mortgage and the $7,000 obligation for which it was security were assigned to plaintiff and the assignment was duly and timely recorded.
This mortgage fell due -on January 1, 1932. Default had already occurred in respect to the payment of interest and taxes; and this action was begun to recover the principal and accrued interest, and taxes paid by plaintiff. The principal obligor, John T. Chinn, and other defendants failed to appear or answer, but Oscar Chinn, who had been impleaded as a defendant, filed an answer in which he denied that the mortgage was a first and prior lien on a certain described eighty-acre tract of the farm covered by plaintiff’s mortgage. In an amended answer this defendant, Oscar Chinn, again denied that plaintiff’s mortgage covered the described eighty acres. He also pleaded the facts, of the execution of the deed of 1918 by John T. Chinn and Wife' conveying this farm and other lands in specified ^parcels to various grantees and that the described parcel of eighty acres was thereby conveyed to him, Oscar Chinn; that this deed was delivered to him on May 14’, 1918; and—
“Since the delivery of the said deed the defendant, Oscar Chinn, has been in open, notorious and continuous possession of said property and was in open, notorious and continuous possession of said property at the time the alleged mortgages and bonds, as set out by the plaintiff in its petition, were executed.”
A photostatic copy of the deed was attached, and it was further alleged—
“The said Lillie Chinn, who held a life estate in the above premises, departed this life in the year 1923, the defendant herein is the owner in fee of the above-described 80 acres free and clear of all encumbrances, and is entitled to full possession.”
Plaintiff filed a reply which was a general denial of the facts pleaded in Oscar Chinn’s answer, and later filed an amended reply, reiterating its denial and also denying the execution and delivery of the deed described in defendant’s amended answer.
A jury was waived; the cause was tried at length; a first lien on 160 acres of the farm was declared in favor of plaintiff and foreclosure was decreed thereon. The court found that as to eighty acres (described) of this farm, title was vested in Oscar Chinn and that he had been in possession of the eighty acres previous to and at the time of the execution and delivery of plaintiff’s mortgage, and that Oscar Chinn held such possession by virtue of the unrecorded deed of 1918 executed by his parents. The court also found that John T. Chinn held a life interest in the eighty acres in dispute and decreed that that interest should likewise be foreclosed to satisfy the judgment awarded to plaintiff in this action, but it decreed that the remainder interest of the defendant, Oscar Chinn, was free from the lien of plaintiff’s mortgage. Other details of the judgment and the rights and liabilities of other parties to the action are of no present concern.
Plaintiff appeals, raising various objections to the judgment, only one of which will require our attention. Was there a completed de livery of the deed of 1918 to Oscar Chinn prior to the execution of plaintiff’s mortgage? The facts upon which that question necessarily turns are not in dispute. The envelope which inclosed the deed bore a notation signed by the grantor that in case of his death the papers (deed) were to be delivered to Lillie Chinn if she were then alive and if not they were to be delivered to his oldest living child. The significant and controlling direction of the notation was that delivery was only to occur in case of John T. Chinn’s death. John T. Chinn is still alive. He did not intend that the deed should be delivered while he was alive, and his conduct throughout all the years which have followed has been consistent with that intention. He has exercised the same dominion over the land that he did before; he has twice mortgaged it, paid taxes and insurance on the property, collected rents, and indeed he has collected the equivalent of the customary rent on the eighty acres claimed by Oscar (although the latter swears it was for a debt and not for rent). Oscar’s own testimony does not fairly indicate a completed delivery of the deed to him. He testified:
“I first saw the deed sometime in 1918, before my mother died, at my home. My father handed it to me in an envelope.
. . . . . . . . . .
“Q. When did you first make any pretense or claim to take this property? A. After my mother died.”
It is thus too plain for cavil that when plaintiff’s father handed Oscar the envelope and deed in 1918 defendant himself did not-consider that a completed and irrevocable delivery of the deed to him had been effected. Not until his mother’s death five years later did he presume that he had any claim to the property founded on the deed of 1918; and nothing the grantor of the deed of 1918 did in 1923 or later completed any delivery of the deed to Oscar. On the contrary, the notation on the envelope plainly advised Oscar that it was to be delivered “in case of death of John T. Chinn.” When that happens the delivery of the deed can be made to Oscar if he is the grantor’s oldest living child, and not otherwise.
The other matters discussed in the briefs require no attention. The judgment is reversed and the cause remanded with instructions to' set aside so much of its decree in foreclosure as excludes therefrom! a remainder interest in eighty acres of the mortgaged property in favor of defendant Oscar Chinn.
It is so ordered.
Hutchison, J., not sitting. | [
-15,
108,
-12,
44,
-120,
-32,
42,
-104,
106,
-92,
-29,
83,
-49,
-46,
5,
45,
116,
13,
-59,
105,
87,
-77,
55,
-127,
-46,
-13,
-39,
-36,
-7,
89,
-28,
-41,
76,
32,
-54,
-105,
-26,
-96,
-57,
92,
-50,
71,
-119,
76,
-35,
64,
60,
107,
54,
76,
117,
55,
-13,
43,
61,
99,
73,
44,
-37,
41,
0,
-7,
-85,
-122,
-1,
18,
-111,
36,
-110,
69,
74,
-82,
-112,
49,
-120,
-24,
115,
38,
-106,
116,
7,
9,
45,
38,
102,
25,
69,
-17,
-8,
-104,
15,
119,
-115,
-90,
-112,
88,
10,
33,
-98,
-99,
109,
16,
70,
-2,
-17,
5,
76,
104,
7,
-113,
-44,
-109,
11,
120,
-104,
3,
-25,
-73,
32,
97,
-51,
-30,
125,
99,
48,
-69,
-114,
120
] |
The opinion of the court was delivered by
Burch, J.:
The actions were instituted to determine whether voluntary express trusts created in connection with transfers of land inter vivos were testamentary in character and consequently revocable by subsequent will of the settlor. Judgments were rendered in favor of the beneficiaries of the trusts, and the adverse parties appeal.
In November, 1914, Alexander Mitchell and his wife, Mary Mitchell, executed a deed of eighty acres of land to Leffa M. Hayes, reserving use, rents and profits during their lives and so long as either should live. At the same time and as part of the same transaction the grantors executed a written statement that the grantee should hold the land in trust for the benefit of Marie Spence, now Marie Shive, the daughter of a deceased daughter of the grantors. The instruments were recorded on May 9, 1916. Marie was then sixteen years old. In April, 1916, the same grantors executed another deed conveying another tract of eighty acres to Leffa M. Hayes, containing the same reservation as the previous deed. At the same time the grantors executed another statement that the grantee should hold the land in trust for the benefit of Barbara Mitchell, now Barbara Moore, daughter of a deceased son of the grantors. The instruments were recorded on May 9, 1916. Barbara was then twenty years old.
Mrs. Mitchell died in 1916. In August, 1921, Alexander Mitchell made a will. He died in April, 1931, and the will was duly probated. The will gave a dollar each to Marie and Barbara, and gave the land to Leffa M. Hayes. The will contained a request that Leffa M. Hayes be not required to perform the conditions in the statements which accompanied the deeds. At the death of the testator Marie and Barbara were living, and each had attained the age of thirty years.
The deeds which have been referred to were identical, except with respect to date and description of property, and the instruments accompanying the deeds were identical except with respect to date, description of property, and name of beneficiary. The deed of 1914 was in form a general warranty deed, which contained the following reservation:
“And the said parties of the first part hereby expressly reserve to themselves and their assigns the full use and benefit of the above described premises, and the rents, issues and profits thereof during the term of their natural lives and so long as either of said grantors shall live.”
The accompanying statement read as follows:
“To Whom it May Concern: This is to certify that we, Alexander Mitchell and Mary Mitchell, husband and wife, this 25th day of November, 1914, deeded' unto Leffa M. Hayes the following property: All of the north % of the southwest % of section 13, township 25, range 9, Reno county, Kansas, to be held by her, and it is our wish and desire that it be held or disposed of in the manner hereinafter set forth: That the rents and proceeds of said property, after paying the taxes or other legal assessments levied against said property and the necessary expenses incurred in looking after the same, shall be used for the sole benefit of Marie Spence, a minor, and that if there should be an amount received more than necessary for her support and education, that the same be held in trust for her till she be twenty-one (21) years of age. After she is twenty-one years of age, that she receive all the rents and proceeds of said property, and that when she be thirty (30) years of age, she shall be given a deed to said property, or sooner if deemed advisable by Leffa M. Hayes, and in the event of the death of said Marie Spence, should said event occur before her reaching the age of thirty (30) years, should she have any children, that the rents and proceeds of said property be used for the support and education of said children until the youngest is twenty-one (21) years of age, and then said property be equally divided between said children if any there be. And if the said Marie Spence should not live to be thirty (30) years, and should die without children, then the said Leffa M. Hayes may hold herself or dispose of said property as in her judgment is best, without let or hindrance.”
These instruments were construed in the case of Shive v. Hayes, 132 Kan. 137, 294 Pac. 935, and it was held they created an express trust relating to land, for the benefit of Marie Spence. The court is satisfied with the decision, and it follows that the other deed and accompanying statement created an express trust for the benefit of Barbara Moore.
Reluctantly yielding to the decision in the Shive case, Leffa M. Hayes now contends the trusts were testamentary in character, that the settlor had power to revoke them, and that he did revoke them by his will. It is sufficient to consider the instruments in the Shive case.
Reading the deed and the accompanying statement as one trust instrument, it contained its own reservation and, except for reservation of use and benefit for life, the last vestige of interest passed from the grantors without control over future devolution and without possibility of reverter. The trustee immediately took full legal title. The beneficiary took an interest, not to arise on death of the settlor, but a present vested interest to come into enjoyment on death of the settlor. Under certain conditions, none of which were dependent on the subsequent act or will of the settlor, the interest progressively enlarged until at the age of thirty it became a full beneficial interest. In case of the beneficiary’s death, grants over were made over which the settlor had no control.
When the conveyances became effective by recording, all interest of the settlor in the land and all power over the land passed from him, except his life interest, whether he lived one day or ten years. Reservation of the life interest did not make the trust testamentary or prevent immediate vesting of the remainder. (Restatement, Trusts, § 64, comment a to subsection 1. See, also, § 63 and comments.) The remainder did pass precisely as if no trust had been interposed and the beneficiary were to come into full possession and enjoyment on death of the grantor. The beneficiary was a girl and a minor, and the trustee was to hold title and manage until the notions of the settlor regarding ability of the beneficiary to do for herself were fulfilled; but the beneficiary’s interest was vested in her by the conveyance, enjoyment being only postponed. (See Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, and Miles v. Miles, 78 Kan. 382, 96 Pac. 481.)
When a voluntary trust has been created without express reservation of power to revoke, it cannot be revoked. (Diller v. Kilgore, 135 Kan. 200, 205, 9 P. 2d 643.) It is of no consequence that the settlor may subsequently change his mind, or that the situation or circumstances of the trustee or of the beneficiaries may change.
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
-13,
108,
-40,
-82,
42,
96,
-70,
-102,
104,
-72,
35,
123,
-23,
-39,
21,
109,
103,
45,
97,
107,
-41,
-78,
22,
1,
-45,
-13,
-47,
-59,
-75,
93,
119,
94,
76,
32,
74,
-43,
-26,
-50,
-59,
24,
-114,
65,
40,
111,
-39,
80,
52,
123,
84,
73,
117,
-102,
-77,
41,
61,
118,
44,
46,
105,
57,
112,
-8,
-81,
-124,
91,
19,
17,
5,
-48,
-61,
-56,
10,
-104,
53,
9,
-24,
50,
-74,
-106,
-12,
79,
9,
8,
118,
102,
16,
100,
103,
-104,
-104,
6,
-14,
-83,
-90,
-44,
88,
-96,
104,
-67,
-99,
88,
16,
103,
118,
-18,
-35,
28,
36,
5,
-117,
-42,
-127,
13,
-68,
-102,
7,
-5,
-29,
50,
113,
-118,
10,
76,
99,
114,
19,
-114,
-102
] |
The opinion of the court was delivered by
Smith, J.:
This is an action to collect the statutory liability on stock in a Minnesota corporation owned by a resident of Kansas. A demurrer to the petition was overruled. Defendant appeals.
The petition alleged that on the 23d day of January, 1929, an action was commenced in the United States district court for Minnesota, claiming insolvency of the Diamond-Motor Parts Company, a Minnesota corporation, and praying for the appointment of a receiver. The petition then alleged the appointment of a receiver on the same date; that on.or about July 10, 1931, the receiver prayed the United States district court for an order making an assessment upon all persons liable as stockholders of the corporation, as provided for in the constitution of Minnesota; that notice of a hearing upon the application was served upon the stockholders, including this defendant, and that the United States district court made an order, a copy of which was attached to the petition. It should be noted that this order recited the facts and made a levy upon each stockholder of one dollar a share. The petition then alleged that a copy of the order was mailed to each stockholder. The petition then alleged that plaintiff was authorized to bring suit against all the stockholders by reason of the statutes of Minnesota as set out in Mason’s Minnesota Statutes, 1927, in sections 8027 and 8028 as amended in part by chapter 205 of the Session Laws of Minnesota for 1931. The petition then quoted the statute. The statute provided that the order should authorize the receiver to bring suit against the stockholders to collect the assessment wherever found. Section 8028 provided for the bringing of the suit unless the receiver should report to the court that a stockholder was insolvent. The section then contained the following language:
“Provided that no action shall be commenced to collect the amount of any such assessment, unless commenced within two years after the insolvency of the corporation, and the appointment of a receiver or assignee, or in the event that the insolvency of such corporation, and the appointment of such receiver or assignee occurred more than eighteen months prior to the passage of this act then within six months after the passage of this act.”
This action was commenced on the 15th day of October, 1931. The receiver for the Diamond Motor Company was appointed on January 23,1929. It will be noted that more than two years elapsed after the appointment of the receiver. This is pointed out by defendant and is relied upon as a reason the demurrer should be sustained. And as to the provision that where the appointment of the receiver occurred more than eighteen months prior to the passage of the act the action could be commenced within six months after the passage of the act, defendant argues that where a plaintiff seeks to take advantage of an exception in a statute he must plead facts sufficient to show that his cause of action falls within the exception. The petition does not allege the date of the passage of the act under which the action is brought except to state that it was passed by the session of the legislature of 1931.
It does not appear on the face of the petition in this case that the action is barred. It was not incumbent on the plaintiff to plead any certain matter that prevented the running of the statute. Such a defense is a proper one to be raised by way of answer or by a special plea. In Walker v. Fleming, 37 Kan. 171, 14 Pac. 470, this court held:
“Before a demurrer can be sustained to a petition upon the ground that the plaintiff’s action is barred by the statute of limitation, the court must be able to find by an examination of the petition that the cause of action is so barred; and if said petition does not so show upon its face, the demurrer must be overruled.” (Syl. ¶ 1.)
In the case at bar the trial court was not able to find by an examination of the petition that the action was barred. It required an examination of the Session Laws of Minnesota for 1931 to ascertain the date of the passage of the act. As a matter of fact, this examination would have disclosed that the action was filed within six months of the passage of the act and was not barred. This court discussed and considered the question of whether facts bringing the case within the exception must be pleaded in the petition in the case of Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390. There the court said:
“There are many eases holding that exceptional conditions relied upon as tolling the statute must be strictly pleaded, but they are ordinarily cases in which the question arose upon demurrer to the reply, or in which the distinction pointed out was not noted. On the other hand, there are well-considered cases holding that averments in the petition suggesting matters that might prevent the running of the statute are subject to the same rule as those regarding the time when the cause of action arose, and that although it is distinctly shown that the statutory period has expired, and is not shown that facts exist to take the case out of the statute, yet the pleading is good against demurrer if it point out some circumstance which miay have prevented its running.” (p. 157.)
To the same effect is the holding of this court in Bernard v. Davidson, 112 Kan. 31, 209 Pac. 668.
In harmony with the authorities cited we have concluded that the petition in this case did not show upon its face that the statute of limitations had run against the cause of action stated in the petition and that the petition was not demurrable on that ground.
Defendant argues that the petition does not state a cause of action because it- does not set out the constitutional provision of Minnesota upon which the statute creating the liability is based and because no notice of the hearing for the order levying the assessment in Minnesota was served on defendant. The petition did set out the statute of Minnesota and attached copies of the order of assessment. There is no allegation in the petition that notice was given defendant. Courts of this state are bound to give full faith and credit to the statute and judicial proceedings of another state. (See Converse, Receiver, v. Hamilton, 224 U. S. 243, 56 L. Ed. 729.) There is a presumption that the United States district court had authority and jurisdiction to make the order in question.
The judgment of the trial court is affirmed.
Hutchison, J., not sitting. | [
-74,
-12,
-8,
-116,
27,
-32,
42,
-70,
81,
-31,
37,
83,
-87,
90,
5,
109,
75,
-67,
81,
122,
-42,
-93,
23,
-86,
-42,
-77,
-39,
-51,
-75,
79,
116,
92,
76,
48,
10,
-107,
-26,
-112,
-59,
30,
-34,
5,
41,
-20,
-39,
56,
58,
-21,
23,
75,
81,
-34,
-13,
44,
-104,
79,
105,
43,
-5,
-84,
-64,
-16,
-119,
-123,
127,
22,
49,
4,
-104,
37,
-8,
14,
-120,
48,
8,
-24,
82,
-74,
6,
-12,
43,
25,
40,
46,
103,
-111,
5,
-17,
-40,
-104,
62,
-102,
-99,
-59,
-112,
88,
-94,
65,
-65,
27,
125,
22,
6,
124,
-18,
85,
21,
108,
7,
-117,
-74,
-111,
-123,
114,
-103,
11,
-22,
-125,
48,
113,
-36,
-94,
94,
71,
122,
27,
-121,
-40
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action to recover sums of money alleged to be due for wheat delivered at defendants’ elevator in Minneola in the years 1927 and 1928. A full statement of the case will be found in Tawzer v. McAdam,, 134 Kan. 596, 7 P. 2d 516. For trial errors, the judgment in favor of plaintiff was reversed and the cause remanded for a new trial. That has since been had before a jury charged only with the duty of answering certain special questions, it having been agreed that judgment should be rendered on the pleadings, admissions and evidence, and on such of the jury’s findings as the court approved.
The main dispute between the parties was concerning the nature of the contracts under which the wheat was delivered to defendants. Plaintiff alleged that he was to be paid the “door price” on whatever day he choose to sell, defendants being duly notified thereof. Defendants’ claim was that the wheat was placed with them on option, with an advance payment of sixty cents per bushel, and that they were to pay whatever balance would accrue to plaintiff whenever he should elect to close the option and settle, with the further’ understanding that if no dates were selected by him the options were to be considered as closed within a reasonable time, which should not be later than May 31 of each year following the delivery of the wheat.
Touching the persons named in the jury’s findings, it may suffice to state that R. E. Kirk was the manager of defendants’ elevator where the wheat was delivered, and Wallace Boucher was cashier of the local bank and financial disbursing agent for the owners of the elevator, James McAdam and G. B. Rooney.
The special findings read:
“1. Did C. C. Tawzer demand settlement of R. E. Kirk for the 1927 wheat on April 28, 1928? A. Yes.
“2. If you answer question No. 1 in the affirmative, did R. E. Kirk tell C. C. Tawzer that he would have to see James McAdam for any settlement? A. Yes.
“3. Did C. C. Tawzer ever demand from James McAdam a settlement for the 1927 wheat as of April 28, 1928? A. Yes.
“4. If you answer question No. 3 in the affirmative, state when such demand was made. A. About three weeks after April 28, 1928.
“5. Did C. C. Tawzer demand from R. E. Kirk a settlement for the 1928 wheat on February 15, 1929? A. Yes.
“6. If you answer question No. 5 in the affirmative, did R. E. Kirk inform him that Wallace Boucher was the only man who could make payment for the wheat? A. Yes.
“7. Did C. C. Tawzer, prior to June 1, 1929, ever inform Wallace Boucher, James McAdam or G. B. Rooney that he had selected February 15, 1929, as a date for settlement of the 1928 wheat? A. Yes.
“8. If you answer question No. 7 in the affirmative, of whom did he make the demand and when? A. Wallace Boucher on or after the 15th of February, 1929.
“9. Was the contract under which the 1928 wheat was placed in the elevator on the option basis or door-price basis? A. Door-price basis.”
Defendants filed motions to set aside these findings, and for judgment on them, and for a new trial. These were overruled, and judgment was entered in favor of plaintiff.
Defendants appeal, contending first that findings 2 and 6 do not authorize a finding in favor of plaintiff on the issues covered by findings 1, 2, 5 and 6, but do compel a finding for defendants on these issues. According to our view, however, the vital issues in this lawsuit are those determined by special findings 1, 5 and 9. Kirk was the manager of the elevator. He was in charge when Tawzer and his sons delivered those -large quantities of wheat in 1927 and 1928. He was the proper person to be notified when Tawzer fixed the dates of April 28, 1928, and February 15, 1929, on which he elected to sell his wheat. It is of no consequence that Kirk was not authorized to pay for the wheat nor that he did not pay, nor that Kirk told Tawzer he would have to see McAdam for any settlement for the 1927 wheat, and that Wallace Boucher was the only man who could make payment for the wheat of the 1928 crop. Tawzer’s choice of dates on which he elected to sell and his notification of those facts, to Kirk was all that was necessary to perfect his right and defendants’ liability for the wheat, since the other vital question which concerned the nature of the contract was settled in plaintiff’s favor by the jury’s finding No. 9.
It is also contended that finding No. 4 is in favor of defendants. We think not. It was of no material importance when Tawzer demanded payment from McAdam. And the same observation holds true as to the jury’s findings Nos. 7 and 8. Moreover, the evidence clearly showed that if Tawzer had been willing to accept settlement for his wheat on the option basis, Kirk had ample authority to pay him without referring him to McAdam or Boucher. It was only because of the sharply controverted question of “door-price” or “option” between plaintiff and Kirk’s employers that Kirk told Tawzer to see McAdam in 1928 and Boucher in 1929. Defendants argue that the circumstances were potent corroboration of their version of the facts. But the fact-finding tribunal — the jury — has effectively disposed of that argument. (Glenn v. Railroad Co., 94 Kan. 83, 145 Pac. 865; Maynard v. Schulte, 119 Kan. 391, 239 Pac. 770; Barker v. Missouri-K.-T. Rld: Co., 134 Kan. 256, 259-260, 5 P. 2d 811.) There is nothing in this record which would permit the jury’s findings to be disturbed (Fox v. Eaglin, 132 Kan. 395, 295 Pac. 662, syl. ¶ 5). And since the trial court approved those findings (Bell v. Skinner, 119 Kan. 286, 239 Pac. 965), the judgment will have to stand.
The judgment is affirmed.
Hutchison, J., not sitting. | [
-15,
-24,
-72,
-115,
74,
-32,
42,
-40,
84,
-95,
39,
83,
-23,
86,
20,
105,
55,
93,
80,
106,
86,
-89,
3,
-37,
-61,
-13,
-45,
-59,
-79,
-53,
-28,
118,
76,
48,
66,
-107,
-30,
-62,
-63,
28,
-52,
-124,
40,
102,
125,
64,
52,
59,
20,
75,
117,
30,
-13,
43,
31,
-57,
77,
44,
-21,
57,
-15,
-16,
-118,
13,
127,
22,
-125,
34,
-102,
71,
-8,
30,
-104,
53,
11,
-88,
122,
-90,
-122,
116,
43,
-103,
44,
102,
102,
33,
13,
-18,
-72,
-116,
46,
-1,
-81,
-90,
-108,
74,
-119,
76,
-66,
-99,
122,
64,
6,
-4,
-7,
21,
-97,
124,
3,
-114,
-44,
-109,
-85,
126,
-100,
-101,
-5,
-125,
48,
113,
-115,
-94,
93,
70,
122,
-101,
-57,
-76
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover an amount paid by appellees for taxes which it is claimed were unlawfully exacted.
The Trego County Farmers Union Bank, a private bank, was assessed in March, 1928, on a valuation of $22,000, and thereafter tax was extended at the general ad valorem rate in the amount of $1,062.60. In November of 1928 the bank voted to go into liquidation, and in carrying out its liquidation scheme it assigned to individuals in Wakeeney most of its assets to secure payment to its creditors, and elected as a trustee the plaintiff Fabrizius, under the liquidating contract. Later plaintiff Dorman was elected as a trustee to assist Fabrizius.
The above personal-property tax not having been paid, on March 11, 1929, the county treasurer issued and delivered to the sheriff a tax warrant, calling for the original tax of $1,062.60, plus penalties of $53.13 and plus the treasurer’s fee of $0.10, making a total of $1,115.83. The warrant was returned by the sheriff on April 29, 1929, and was then by the county treasurer redated and redelivered to the sheriff. The sheriff sent a written notice to Fabrizius and later saw him personally, on occasions, with reference to the payment of these taxes. On May 25, 1929, Fabrizius paid the sheriff the sum of $800, and on June 4, 1929, the further sum of $200, and on June 17, 1929, the remainder of $115.83. At about the time of the second payment Fabrizius stated to the sheriff that he believed the taxes levied against the bank were excessive, but, aside from this statement, neither trustee ever made any protest, either oral or in writing, against paying the taxes. On March 3, 1930, Fabrizius, as trustee, filed his verified claim for refund of taxes in the sum of $1,000.23 with the county clerk, and the defendant board refused the claim. Thereafter, this suit was brought.
It is conceded that the tax was extended at an unlawful rate, i. e., the general ad valorem rate, instead of at the intangible-tax rate. Plaintiffs bring the suit on their own behalf and on behalf of the other owners of the bank, setting up by appropriate allegations their claims as to the total amount paid, the amount which they should properly pay, the amount unlawfully exacted, and allege that said bank refused to pay the taxes so levied and assessed because said taxes were unlawful, being excessive in an amount equal to the difference between the sum of $1,062.60 as extended and $110 as extended at the intangible-tax rate, and that the payments made as hereinbefore noted were made because of the statement of the sheriff that if payment were not made he would levy upon and sell the assets of the bank under duress and to prevent such sale.
A trial was had to the court, which made conclusions of fact and of law which were subsequently modified in certain particulars. Not all of the conclusions need_ be noticed. The eleventh and twelfth conclusions of fact are as follows:
“11. At about the same time that John Fabrizius, trustee, made the second of said payments to the sheriff of Trego county, Kansas, he stated to the sheriff that he believed the taxes levied against said bank were excessive, but aside from this statement he never made any protest against the payment of the taxes, either oral or in writing.
“12. Neither John Fabrizius as trustee nor G. A. Dorman as trustee ever made any protest either in writing or orally against the payment of said taxes to the county treasurer nor to the sheriff of Trego county, Kansas.”
And the fourth conclusion of law is as follows:
“4. The payment of said illegal amount of taxes by plaintiffs having been involuntary and been made under duress, no protest of any kind was necessary in order to enable the plaintiffs to recover herein.”
Judgment was rendered in favor of plaintiffs. Defendant’s motion for a new trial was overruled, and this appeal followed.
Although the briefs discuss the question of voluntary payment, the question, of the validity of the tax warrant after April 19, 1929, and incidental questions, we need not treat them here, for the appeal must be disposed of on the proposition that defendants did not pay under an effective protest. On March 19, 1929, chapter 291 of the Laws of 1929 (R. S. 1931 Supp. 79-2005) became effective. It provides:
“Any person, association, partnership or corporation, before protesting the payment of his taxes, shall be required, at the time of paying said taxes, to make and file a written statement with the county treasurer clearly stating the grounds on which the whole or any part of said taxes are protested, and shall further cite any law, statute or facts on which such taxpayer relies in protesting the whole or any part of such taxes, and shall further state the exact portion of said tax which is being protested: Provided, That the county treasurer is authorized to disburse to the proper county funds all portions of such taxes not protested.”
Appellee argues that the above statute has no application where the tax is collected by the sheriff by virtue of a tax warrant, but comprehends a voluntary payment by the taxpayer to the county treasurer, and apparently the lower court was of a similar opinion.
In our view, the legislature, in enacting the above statute, recognized the fact that where protests were made orally there could be and frequently was dispute as to the extent and sufficiency of the protest, and even as to whether there was in fact any protest. To do away with all such controversy and doubt, it provided that the protest should be in writing and filed with the county treasurer. Under such statute, taxes unlawfully exacted may be recovered back when their payment is accompanied by formal written protest against the validity of the tax, and against being compelled to pay, and not otherwise. To hold that the statute refers only to a payment to the county treasurer would in a large measure frustrate the will of the legislature. It will be noted that the county treasurer is authorized to disburse all portions of tax not protested. If plaintiff’s contention is good, all moneys collected by the sheriff on tax warrants would have to be held until the statute of limitations had run on actions which could be brought for their recovery.
There is and could be no essential difference in actions to recover taxes unlawfully exacted, whether they had been paid to the county treasurer or to the sheriff, and we do not believe it was intended that there should be a greater burden in one case than in the other. And further, if plaintiff’s contention is good, there is a material distinction necessarily to be made between taxes on real and on personal property, a distinction not even hinted at in the statute. It is evident from a reading of the statute that it was not contemplated that if a payment to the county treasurer were to be made, 'a detailed written statement is required, but if the taxpayer delay until the sheriff come, it is not required. The purpose of the legislature in passing the statute in question was to make certain the ground of protest and the extent of the tax protested, and there being no exceptions contained in the act, we hold it applies not only to payments made to the county treasurer, but also to payments made to the sheriff to satisfy tax warrants in his hands.
The judgment of the lower court is reversed and the cause remanded with instructions to render judgment for the defendants. | [
-12,
-20,
-48,
-116,
-70,
96,
42,
-102,
83,
-91,
-75,
115,
-21,
99,
16,
109,
103,
125,
116,
88,
-57,
-77,
35,
35,
-70,
-77,
-63,
-43,
-80,
-49,
-12,
-59,
12,
48,
-54,
-107,
-26,
-78,
-63,
-42,
-52,
-124,
-87,
76,
-39,
4,
52,
13,
116,
75,
81,
-82,
99,
58,
60,
75,
72,
44,
-37,
51,
112,
-71,
-82,
-123,
95,
7,
17,
54,
-120,
-125,
-56,
46,
-112,
117,
0,
-56,
123,
-74,
-122,
-44,
45,
-103,
13,
102,
38,
19,
101,
-17,
-16,
-119,
6,
-34,
-99,
-89,
-47,
88,
18,
14,
-74,
29,
116,
82,
70,
-4,
-28,
-99,
29,
108,
29,
-50,
-106,
-77,
-113,
-4,
-98,
3,
-45,
35,
48,
113,
-113,
-64,
92,
-121,
58,
-101,
7,
-35
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action to enjoin defendants from entering into an agreement for the reorganization of a failed bank. The trial court made findings of fact-and rendered judgment for defendants. Plaintiffs have appealed.
It appears from the record that the Kansas State Bank of Holton bad been designated as a depository by the board of county com missioners of Jackson county and had given bonds with personal sureties for $100,000 to secure the deposit. On March 4, 1933, the bank was closed by the bank commissioner and found to be insolvent and placed in charge of one of his deputies. At that time Jackson county, by deposits of the county treasurer, had a deposit in the bank of $49,689.28. It was then discovered that the sureties on the bonds to secure the deposit would be able to respond for not more than $10,000. A reorganization agreement was proposed. Certain taxpayers of Jackson county brought an action in the nature of a declaratory judgment questioning the right of the board of county commissioners of the county to enter into the reorganization agreement. Upon a hearing on that action it was adjudged that the board of county commissioners had such authority. No appeal was taken from that adjudication, although the time for doing so has not expired.
Thereafter this action was brought by the city of Holton and by three taxpayers of the city and county to enjoin the county and its board of county commissioners from entering into the proposed reorganization agreement. Broadly speaking, the county claims the right to enter into the proposed reorganization agreement for three reasons: First, because of the first proviso in chapter 80 of the Laws of 1933, which, briefly, provides that a failed bank in charge of a deputy bank commissioner and its creditors may formulate a reorganization plan which, if subscribed to in writing by eighty per cent in amount of the general creditors and approved by the bank commissioner, is binding upon all general creditors. Prior to this statute perhaps such an agreement would be binding only on those who subscribed to the plan, and a few creditors might defeat a reorganization by declining to subscribe. Second, it is contended that some of the subdivisions of R. S. 19-212, relating to. the powers and duties of boards of county commissioners, are broad enough to authorize the board of county commissioners to enter into this reorganization agreement. Third, that the question is res judicata, having been determined in the declaratory-judgment action previously mentioned.
Defendants also raised the question that plaintiffs in this action have no authority or capacity to maintain it; that from its nature it is one which can be maintained only by the state on the relation of the attorney-general or county attorney. This last point is well taken and precludes us from determining the other questions raised. The three individual taxpayers who are plaintiffs claim the right to maintain the action under R. S. 60-1121; but it has been repeatedly held that individual taxpayers cannot maintain an action under this section to enjoin public officials from entering into a contract, alleged to be unauthorized, unless their burdens as taxpayers may be increased by the threatened unauthorized contract. (Warner v. City of Independence, 121 Kan. 551, 247 Pac. 871; Grecian v. Hill City, 123 Kan. 542, 256 Pac. 163; Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 267 Pac. 996.) In this action plaintiffs do not allege facts tending to show that their burdens as taxpayers will be increased by the threatened allegedly unauthorized action of the board of county commissioners, and there is no evidence in the record tending to show that such will be the result. Under our system of laws it is provided that the regularity or legality of the transactions of boards of county commissioners and other governing bodies of subdivisions of the state may be questioned only by the state on the relation of the attorney-general or the county attorney, and that individual citizens, even though they be taxpayers, cannot question such actions unless their burden as taxpayers may be increased thereby. The plaintiff, the city of Holton, is not a taxpayer. It claims the right to maintain the action for the reason and upon the ground that its governing body duly levied taxes for city purposes, which levy was certified to the county clerk, by him entered on the tax roll and taxes collected thereunder by the county treasurer, a part of which tax money so collected may have been in the deposit of the county treasurer in the bank at the time it failed. On the date the bank failed the county treasurer’s records show that he had on hand tax moneys collected under levies made by the city of Holton amounting to $3,610.71. Of that amount $3,500 was withdrawn before this action was brought, leaving $110.71 undistributed. Whether this sum was in the deposit of the failed bank is not disclosed by the evidence. But, irrespective of that fact, or of the amount, money collected by the county treasurer and by him deposited in a depository designated by the board of county commissioners is to be regarded as county money before it is distributed or disbursed to the taxing units, even though a taxing unit might have such an interest therein that, in a proper case, it could compel a distribution. (City of Frankfort v. Warders, 119 Kan. 652, 240 Pac. 589.) More than that, the record discloses that in proceeding under the recent cash-basis law (Laws 1933, ch. 319), the county had treated this deposit, which had been tied up in the failed bank, as not available to pay its obligations and issued and sold bonds therefor. Hence, if any money raised by the city levy and collected by the county treasurer was in the deposit when the bank failed, the county has provided means of paying it. Then the city has been given no authority to inquire into the regularity or legality of county business. Such inquiry may be made by the state on the relation of the attorney-general or the county attorney.
The result is there is no one who is a plaintiff in this action who has any capacity to maintain it, either in this court or in the trial court. The judgment of the trial court will be reversed with directions that the action be dismissed for the lack of a proper party plaintiff. It is so ordered. | [
-80,
-19,
-16,
-36,
74,
-32,
46,
-102,
91,
-95,
53,
115,
-87,
78,
4,
127,
118,
61,
-44,
121,
-59,
-78,
23,
-101,
-46,
-13,
-43,
-59,
-78,
95,
-12,
95,
72,
48,
74,
-43,
-90,
-128,
-61,
30,
-114,
-123,
-71,
64,
-36,
8,
48,
105,
54,
10,
85,
29,
51,
40,
28,
-29,
105,
44,
89,
57,
80,
-79,
-86,
-59,
125,
21,
-95,
-64,
-104,
7,
-48,
62,
-104,
53,
25,
-8,
83,
54,
-122,
52,
79,
27,
13,
110,
98,
3,
-12,
-49,
-124,
-72,
6,
-77,
-67,
-90,
-111,
88,
32,
3,
-66,
-99,
-36,
23,
6,
-4,
-17,
-123,
31,
108,
5,
-54,
-10,
19,
-113,
117,
-111,
11,
-5,
-128,
48,
113,
-53,
-12,
95,
-42,
122,
59,
-98,
-104
] |
The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus to compel the issuance of bonds under the cash-basis law (Laws 1933, ch. 319).
The motion for the writ of mandamus, among other allegations, shows that on July 25, 1931, The Citizens Bank of Weir recovered judgment against Cherokee township in Cherokee county in the Cherokee county district court for $9,057.50 with interest at six per cent, from which no appeal was taken; that payments were subsequently made on the judgment, and that on May 15, 1933, there remained due on the judgment the sum of $4,288 and interest from January 1, 1933; that on May 15, 1933, in accordance with the provisions of chapter 319 of the Laws of 1933, the bank filed with the governing body of Cherokee township its duly verified voucher, covering the balance due on said judgment, and was thereafter informed that the claim had been passed and allowed on May 17, 1933. On or about September 16, 1933, the petitioner discovered that the governing body of Cherokee township had taken no steps whatever to comply with the provisions of chapter 319 of the Laws of 1933, no meetings having been held, no notices given and no resolutions passed as required by said act. After the apportionment of tax moneys in June, the township made payment of principal and interest on said judgment on June 30,1933, leaving a balance due of $3,533 with interest from June 30, 1933.
The petitioner further alleges that the governing body of Cherokee township, through a mistake as to its duties and obligations, concluded that compliance with the cash-basis law was discretionary with it and not mandatory; that the claim here involved was the only claim against the township, and to save trouble and expense it would not take steps to issue bonds but would continue to treat the claim as a judgment and continue its payment by levy of a tax for such purpose, as had been done theretofore; that the governing body of Cherokee township, on June 26, 1933, met and levied a tax of three mills on the dollar, to apply on the above judgment, and on August 7, 1933, certified the levy to the defendant county clerk, who at first refused to extend said levy in any amount exceeding one mill, but later refused to extend it in any amount. Petitioner further alleges:
“Defendant Cherokee township, and the defendants Arthur Mathis, John Wright and Frank Bowen, as the governing body thereof, claim that they are willing to pay said claim if legally possible for them to do so, but claim that by reason of their failure to take the necessary steps prescribed by said L. 1933, ch. 319, within the times and in the manner therein prescribed, they are no longer legally empowered to avail themselves of the refunding provisions of said law or to issue bonds of said township for the payment of plaintiff’s claim; said defendants further claim that by reason of their failure to come under and comply with such provisions of said law, plaintiff’s said claim remains in full force and effect the same, and to all intents and purposes in the same status as it was before the passage of said L. 1933, ch. 319, to wit: a valid, final and enforceable judgment in favor of plaintiff and against said defendant township, to be paid by the levy of a tax for such purpose as provided by law.”
There are other allegations in the motion which need not be noticed. The prayer is in the alternative — to compel issuance of bonds on the part of Cherokee township or the extension of the tax levy on the tax rolls of the county.
All parties defendant have filed entries of appearance and stipulations that the facts set forth in the motion are true and correct; that the motion may be treated as an alternative writ, and further, that in case the court finds the law governing the cause to be in favor of the plaintiff, they will abide the judgment, and in case of failure a peremptory writ may be awarded against them.
The first question presented is whether the judgment here involved is such a claim that it must have been paid or refinanced under the provisions of the cash-basis law (Laws 1933, ch. 319). Section 1 of the act defines “claim” as follows:
“(d) The word ‘claim’ shall be construed and held to mean any claim arising on contract express or implied, or a claim determined by final judgment, but shall not include claims arising from alleged tort or negligence on the part of the municipality.” (Italics ours.)
Section 2 requires all municipalities to pay or refinance their indebtedness and states:
“It is hereby declared that the purpose of this act is to provide for the funding and payment of all legal debts and obligations except present bonded indebtedness of all municipalities,” etc.
Section 3 requires compilation of a detailed financial statement, the classes of indebtedness being specified and itemized. Item “G” includes “amounts of all other indebtedness of such municipality not secured by bonds and not enumerated above which were valid obligations of the municipality at the close of business on the last day of April, 1933,” etc. Section 4 provides for notices, for publication of financial statements, for filing of claims, for passage of bond resolutions, and requires the filing of claims as provided, and concludes :
“All claims not presented as above provided (except unliquidated claims for damages) shall be barred and shall no longer constitute a valid and existing indebtedness of the municipality.”
It clearly appears that plaintiff’s claim was such a claim as had to be paid or refinanced under the act.
What of the claim of the governing body of the township that action by it under the act was discretionary and not mandatory? Section 2 provides:
“All municipalities are required to pay or refinance their valid indebtedness as in this act provided, in the manner and at the times herein set forth,” etc.
Section 3 requires the compiling of the financial statement. The provisions of section 4 have been referred to. Section 20 provides that any member of any governing body who knowingly violates any provision of the act shall be subject to removal from office and in addition, for violation of any provision of the act or neglect or refusal to perform any duty imposed, upon conviction shall be subject to fine of not less than $10 nor more than $1,000.
We have no difficulty in deciding that compliance with the provisions of the act is mandatory and obligatory and is not discretionary with the governing body.
Determination of the above leaves for consideration only the question that the governing body, having failed to take the requisite steps provided by the act at the time and in the manner prescribed, is no longer legally empowered to issue the bonds of the township.
The cash-basis law sets up a specific machinery to accomplish a specific purpose, namely: to put all municipalities on a cash basis by paying up all existing outstanding indebtedness as defined in the act by the issuance of bonds, the proceeds of the sale of the bonds or the bonds themselves being used therefor. While the act itself allows some -leeway for the performance of duties thereunder, limits are set in which the duties are to be performed. There is practically no discretion to be exercised by governing bodies in carrying out the provisions of the act and, in general, performance of their duties is obligatory and mandatory, and in the event of their failure to perform, mandamus is the only remedy. Neither can it be assumed in advance that the governing body, or the officers constituting it, will not perform the duties enjoined upon it or them, and it therefore follows that, unless there is a positive statement it or they will not perform, the writ would not issue prior to its or their default of duty. But if it or they do so fail to perform, the failure cannot be set up as a defense. The statute was enacted for certain definite purposes expressed in it and cannot be nullified either by the willful refusal of the governing body to perform or its misconception of its duty.
In 38 C. J. 555 it is said:
“Ordinarily it is no objection to the issuance of the writ that the time for the performance of the duty is past, since it is only in case of default in performance at this time that the writ can issue.”
In State, ex rel., v. Holcomb et al., 81 Kan. 879, 106 Pac. 1030, the first paragraph of the syllabus recites:
“Mandamus is an appropriate remedy to compel a county clerk to enter upon the tax rolls taxable property omitted from the assessor’s returns, where such officer admits the existence and value of the property but declines to correct the assessment and enter it upon the tax rolls because of a contention that the property is not taxable and because he is in doubt as to his power in the premises.”
And in the opinion it was said:
“A party cannot escape taxation by contesting the right of officers to impose a tax and keeping it in litigation beyond the time fixed by law for making the assessment. Nor is an officer justified in setting up the excuse in a mandamus proceeding that the time fixed by statute to do the act has passed, when it was his own failure to perform the duty within the statutory time which made it necessary to bring the mandamus proceeding. An officer cannot by failure to perform a duty nullify the statute imposing it nor defeat the public in compelling performance where it takes reasonably prompt action to enforce performance.” (p. 882.)
In the case of Anderson v. Haslett, 81 Kan. 532, 106 Pac. 296, it was held that the failure of the judge of a city court to approve an appeal bond within the time required by statute could not deprive the appellant of his rights when he had done all that was required of him to perfect his appeal. In the opinion it was said:
“This court has compelled the approval of similar bonds, even after the time for approval had expired. In The State, ex rel. Ayres, v. Stockwell, 7 Kan. 98, where the clerk of the district court refused to approve a good and sufficient bond in the contest of a county-seat election, he was compelled by mandamus to approve it long after the twenty days within which it should have been approved in order to perfect the proceedings had expired. Again, in Cox v. Rich, 24 Kan. 20, the same question was before the court. The syllabus in that case reads:
“ ‘Where the party appealing from the final judgment of a justice of the peace to the district court of the county where the judgment is rendered shall, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party, conditioned as required by law, with good and sufficient surety, in a sum double the amount of the judgment and costs, it is the duty of the justice of the peace to file and approve the undertaking; and held, that the performance of this duty may be enforced by mandamus.’ ” (p. 534.)
In Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129, this court said:
“Where a canvassing board wrongfully neglects and refuses to canvass returns which are regular in form, as a general rule the courts may, by mandamus, compel the board to canvass and declare the result upon the face of the returns; and if a canvass has been wrongfully or improperly made, and the board has adjourned sine die, this court may compel it to reassemble and make a correct canvass of all the returns before it at the time of the first canvass.” (p. 133.)
And as bearing upon mandamus in other election cases, see Lewis v. Comm’rs of Marshall Co., 16 Kan. 102; In re Gunn, Petitioner, 50 Kan. 155, 32 Pac. 470; Board of Education v. Welch, 51 Kan. 792, 32 Pac. 654.
Under the facts of this case we have a claimant who properly-filed and presented its claim and who did all that was required of it in the premises. The board, under a misapprehension of its powers and duties, made an abortive attempt to allow the claim. Under certain circumstances, were a writ to issue, it should command the township board to comply fully with the provisions of sections 3 and 4 of chapter 319 of the Laws of 1933, by doing each act therein specified, but here we have a situation in which the claimant is the sole claimant, and a claimant whose claim, by reason of having been reduced to judgment in a court of competent jurisdiction, is not open to attack by the taxpayers of the township. In this case no good purpose would be subserved by now compelling the governing body to make publications, give notice, and pass resolutions as required by the above act. The governing body of Cherokee township has agreed that in case the court finds the law governing this cause to be in favor of the petitioner, it will abide the judgment, and in case it fails to so comply with said judgment after rendition, a peremptory writ may be awarded. Such an order would leave doubt as to just what proceedings should be had and done, and in order that no doubt may exist a peremptory writ of mandamus will issue directed to the governing body of Cherokee township in Cherokee county, that it issue its bonds bearing interest from July 1, 1933, at the rate of not more than five per cent per annum, and in an amount sufficient to pay or satisfy the claim of the petitioner of $3,533 with interest thereon at the rate of six per cent from June 30, 1933, and in the manner provided by chapter 319 of the Laws of 1933, satisfy the claim.
In view of the above, it will not be necessary to discuss the question of the validity, in whole or in part, of the attempted tax levy of three mills. The cause is dismissed as to the defendants the board of county commissioners of Cherokee county, and H. Carter Brookhart, as county clerk of Cherokee county.
Hutchison, J., not sitting. | [
-12,
-32,
-72,
-2,
74,
-32,
56,
26,
90,
-79,
-79,
115,
-23,
-62,
5,
127,
-34,
121,
80,
105,
-25,
-77,
39,
107,
-78,
-77,
-51,
-11,
-80,
79,
-76,
-41,
8,
48,
-54,
-99,
-26,
-110,
-59,
-66,
-50,
-116,
41,
-63,
-39,
65,
52,
95,
114,
9,
49,
-114,
98,
46,
84,
75,
104,
44,
89,
-70,
80,
-15,
-117,
-60,
77,
20,
17,
6,
-104,
7,
-24,
58,
-108,
49,
33,
-24,
120,
-90,
-122,
116,
9,
25,
9,
96,
34,
33,
53,
-51,
-80,
-55,
6,
-2,
-99,
-90,
-46,
89,
2,
40,
-74,
-99,
124,
82,
7,
-12,
104,
5,
25,
108,
13,
-114,
-10,
51,
-113,
100,
26,
3,
-25,
41,
112,
65,
-49,
82,
93,
71,
122,
27,
-33,
-39
] |
The opinion of the court was delivered by
Johnston, C. J.:
This is the second appearance of this case in this court. (Fourth National Bank v. First Presbyterian Church, 134 Kan. 643, 7 P. 2d 81.) That appeal involved the validity of a contract made by Howard E. Case with the First Presbyterian Church of Wichita for the erection and maintenance of a memorial to the deceased wife of Case, to be designated as “The Sara Blair Case Memorial.” By the contract Case was to provide $100,000 for the purpose, and the church was to provide an equal amount. Case then provided and deposited with the Fourth National Bank the $100,000, and the church raised and pledged an amount of over $100,000, and the pledges made by the church were to be applied and certified by the bank to be a compliance of the provision on the part of the church. On March 30, 1931, the bank approved the provision made for the memorial by the church. Among other things it was provided in the contract that the bank should act as trustee. The bank received the money promised and provided by Case, and it also approved the contribution pledged by the church, but on April 4, 1931, the bank filed an action in which the church, minor heirs and others were made parties. Answers and cross petitions were filed and questions were raised that the contract was invalid in that it conflicted with provisions of a joint and mutual will made by Case and his wife, and that Case had no power to use the property mentioned in the wills for a memorial, and that it was a violation of the trust arising from the joint and mutual will that had been made.
The judgment of the district court on the issues raised was brought to this court on appeal, and the decision of this court reversing that of the district court was to the effect that the contract for the erection and maintenance of the memorial was not a violation of the wills nor of the trust created by the wills, but was valid and enforceable. The mandate of this court was spread of record in the district court on April 5, 1932, and on April 23, 1932, the bank and the heirs were given thirty days in which to plead, Cross petitions and other pleadings were filed on July 13, 1932, by the bank as executor and trustee, and also by minor heirs and devisees. They raised the question that the limitation of time in which to commence the erection of the memorial as specified in the contract had elapsed, and that, therefore, the money provided could not be expended for that purpose. Demurrer was filed by the church to these pleadings.
In the contract it was stated:
“It is a further condition of this gift that the funds to be raised by said church shall have been raised by funds available for that purpose by the said church or by good and valid pledges and promises, as herein provided, and certified to the bank as herein provided, and work on the commencement of the building of said structure started all within fifteen months from the date of this instrument, and in case these conditions shall not have been performed within that time, then the entire sum shall be paid and turned over to the trustees of the said trust estate of Howard E. Case and Sara Blair Case, and the said gift as herein provided shall fail.”
The appellee contended and the trial court held that the failure of the church to begin the construction of the memorial within fifteen months from November 13, 1930, deprives the church of the use of the money held by the bank to construct the building, and bars it entirely from its use, while the appellant contends that as the appellees interfered, and by their litigation prevented performance, the ground of nonperformance was not available to them. This question is the one presented upon this appeal.
It would appear that the church could hardly be expected to commence the structure when the bank and other claimants of the money had begun the action to have the contract declared void and were urging that the money provided by Case, and held by the bank, could not be used in building the memorial but belonged to the Case heirs and devisees under the will. As we have seen, the contract was made November 13, 1930. The money provided by Case had been deposited in the bank, and the pledges to be provided by the church were provided to the satisfaction of the bank, as trustee, on March 30, 1931. Twenty-five days later, and on April 24, 1931, the bank began the action alleging that the contract was invalid and that no part of the money could be used for the construction of the Sara Blair Case memorial. The heirs and devisees of Case came into the action in September, 1931, and by cross petition and answers challenged the validity of the contract and the right to use the money provided to carry it out. That action proceeded to judgment in the district court, which was rendered on October 14, 1931. An appeal was taken from that decision to the supreme court and was decided by this court on January 30, 1932, the mandate of the court went down, whereupon the bank and the contending heirs and devisees asked and were granted leave to file supplemental pleadings within thirty days and this was clone. On these pleadings, to which a demurrer was filed by appellant, the question was determined on December 27,1932, and this appeal was promptly taken.
It thus appears that the interference and action of appellees have been persistent and continuous since April 24, 1930, when the bank certified that compliance had been made by the church with the provisions of the contract under which the $100,000 was paid to the bank by Case. The appellees are still here contending that the money provided for the structure cannot be used to build the Sara Blair Case memorial.
The question is presented whether the interference of appellees and the litigation has delayed the church and practically rendered performance impossible within the time stated in the contract, and whether such conduct estops them from invoking the rule of nonperformance which they occasioned. There is a well-recognized rule, “That one who prevents a thing may not avail himself of the nonperformance which he has occasioned.” (McDonald v. Wyant, 167 Wash. 49.)
The general rule is that where a party by his contract charges himself with an obligation possible to be performed, he must perform it unless performance is rendered impossible by the act of God, by the law or by the other party. (13 C. J. 635.) Here the appellees (the other parties) employed the processes of the law to prevent the use of the fund provided for the memorial. It has been determined that the action brought by the appellees and the claims made by them were unjustifiable and wrong. Shall parties who wrongfully interfere and make performance practically impossible be allowed to take advantage of their own wrong? It is true that no injunction was asked or granted, but the proceedings were of such, a nature that they were as effective, almost, as an injunction could have been.
A case which is quite analogous to the one at bar is Peek v. Woman’s Home Miss. Society, 304 Ill. 427. There Mrs. Martha E. Peek, in a will, gave a farm of 150 acres to the missionary society for the establishment and maintenance of an orphans’ home. One of the provisions of the will was that the orphanage should be established within three years after the death of the testatrix, and while the missionary society accepted the gift within a year after the death, the heirs of the testatrix in the following years brought a number of suits denying the validity of the devise to the missionary society and claiming that the heirs were entitled to the farm. It appears that the missionary society was called upon to defend its claim of title in various courts for a number of years, and the contention was carried before the supreme court in various phases — three times before the case in which it was finally decided. This interference and opposition was continued much longer than the three-year period, and finally it was contended, as here, that the failure of the missionary society to establish the orphanage within the three years mentioned in the will forfeited its right to the farm. The court, in one of the appeals, speaking of the litigation and the delay caused by the heirs, said:
“From all the testimony it appears to us that there was, in the exercise of good judgment by appellant, good reason for not taking the risk of the expenditure of a large amount of money in converting the premises into a home for orphan children while its title was disputed by the heirs. Appellant was at no time enjoined from establishing an orphanage on the farm, but under the circumstances even a society not organized for charitable purposes and with plenty of money and resources could hardly have been expected to risk the expenditure of money in preparing the farm for the use to which the testatrix desired it put, while its right to the property was denied and a considerable part of the time was being litigated. It is true the will made no provision for any such contingency but required the orphanage to be established within three years after testatrix’s death, but this provision should receive a reasonable construction. As we have said, it was not in contemplation of the testatrix that the heirs, who are all collateral heirs, would obstruct appellant in carrying out her intention and purpose by denying the title of appellant, talking about attacking it by litigation and actually bringing suit to defeat it, until the three years had expired, and then claim and obtain the property on the ground that appellant had not appropriated the property to use as an orphans’ home within three years. . . . Signifying its acceptance of the gift within a year by appellant was imperative, but the condition as to the three years given for establishing the orphanage should receive a reasonable construction, especially in view of the nature and character of the devise and the devisee, and in determining whether the delay was reasonable and prudent or negligent and unreasonable all evidence throwing light on the question should be admitted and considered. If the heirs seeking to profit by the delay in establishing the orphanage by their own acts and conduct materially contributed to produce the delay, it would seem most unconscionable to allow them to benefit by such acts and conduct.” (Peek v. Woman’s Home Miss. Society, 293 Ill. 337, 346, 348.)
The conclusion of the court was that the heirs could not take advantage of the delay which they had occasioned and that the Missionary Society was entitled to the farm, citing a number of authorities.
In the contract made by Mr. Case with the church he was to provide one-half of the cost of the memorial, and he set that sum apart and deposited it with the bank for the purpose of erecting the memorial. The church made provision for the other half of the cost, and while Case fixed the time of the commencement of the structure — the time deemed necessary for organization and preparation to begin such a project and which would have been sufficient if there had been no obstruction or delay caused by the appellees — the time would have been ample. Evidently Mr. Case did not contemplate that the appellees would drag the church into court to defend the validity of the contract he had made in order to secure the building of a memorial. The principal object of Mr. Case was the construction of a memorial in honor of his wife, the cost of which was to be paid in equal proportions by the two parties. Time of the commencement of the construction within a specified time was not the essential part of the contract, and if it had been known that appellees would contest the validity' of the contract and institute litigation to defeat the purpose which was a natural, beneficent and commendable one, Mr. Case would have provided for such a contingency. Because of the opposition and litigation the appellant has not had fifteen months in which to begin the construction. The litigation was begun about five months after the contract was made and has been persisted in up to the present time. The appellant is entitled to the specified time outside of that in which appellees prevented the performance of the condition.
Appellees cite and rely on Zinc Co. v. Burtiss, 72 Kan. 441, 83 Pac. 989. The facts in that case, however, are quite dissimilar to those of the present case. A lessee of an oil and gas lease brought an action to enjoin the lessor from interfering with leased premises and, also, to extend the lease for a period because the lessor had brought an action to have the lease declared void for the reason that the term of the oil and gas lease had expired and that no oil or gas had been produced by the lessee. In that case the decision was in favor of the lessee. From the record it appeared that the lessor had not agreed to do anything towards development of the property or to contribute towards the cost thereof. That burden rested wholly upon the lessee. In the action to cancel the lease for nondevelopment, the lessee could not urge that its failure to develop had been caused by the failure of the lessor to advance money or to do something towards the development work. The relations between the respective parties and the obligations were unlike those of the present case, as here the cost of the memorial was to be paid by both parties in equal proportions, and yet the appellees have withheld the money provided for the purpose and prosecuted an action to prevent the use of the money for the memorial.
The cited case of Salvation Army v. Watts, 130 Kan. 714, 288 Pac. 764, is inapplicable and in no sense an authority in the question involved here. There a gift had been made by a testatrix to erect a building for the Salvation Army, to be commenced within two years after the death of the testatrix. The Salvation Army undertook to have the gift appropriated to pay for a building erected three years before her death, and it was held that a building erected years before that time did not comply with the condition to erect a building two years after her death.
As authorities supporting features of the questions involved in the case and the contentions of the appellant, see Hamilton v. Empire Gas & Fuel Co., 297 Fed. 422; Harris v. Wright, 118 N. C. 422; Trustees of Cory Universalist Society v. Beatty, 28 N. J. Eq. 570. It is suggested that the Peek case cited was based upon a will and not a contract as in this case, and that the decision is therefore not applicable.
We discover no difference in the application of the principle to a contract as well as a will, that a party who prevents the performance of a condition cannot avail himself of nonperformance which he had occasioned.
The pleadings fairly raise the point which counsel have argued and which the court has decided, and our judgment is that the decision of the court overruling the demurrer shall be set aside, with the direction to sustain the same. | [
-76,
60,
-36,
110,
10,
-30,
58,
26,
51,
-96,
-91,
83,
41,
91,
5,
107,
51,
61,
80,
105,
-42,
-77,
23,
-120,
-46,
-77,
121,
-43,
-80,
-35,
-76,
-33,
76,
32,
74,
-99,
98,
-118,
-63,
-108,
-50,
-123,
28,
-67,
-35,
73,
52,
114,
-74,
79,
-43,
-98,
-77,
32,
28,
66,
108,
46,
127,
41,
80,
-79,
-128,
-124,
125,
23,
17,
32,
-98,
67,
-56,
62,
-104,
49,
0,
-32,
81,
-90,
18,
116,
99,
41,
9,
118,
98,
0,
125,
-21,
-72,
-104,
6,
70,
-107,
-25,
-106,
89,
-96,
5,
-74,
29,
-11,
20,
7,
118,
-26,
21,
29,
44,
73,
-49,
-10,
-79,
-61,
56,
-101,
7,
-5,
-127,
48,
97,
-51,
98,
92,
-13,
59,
19,
-121,
-72
] |
The opinion of the court was delivered by
Johnston, C. J.:
This case involves the right of the city of Kansas City to levy special assessments on the lots and lands of C. A. Alber and others, who have been named as plaintiffs, for the construction of a sewer in the northeast part of Kansas City. That part of the city adjoins the Fairfax drainage district, which lies mostly outside of the corporate limits of Kansas City, and the city and the district entered into a contract to unite in the joint project of sewering and draining a strip of territory on the northeast side of the city, and the drainage district lying between the city and the Missouri river. The city created sewer district No. 31, of somewhat irregular lines, adjoining the drainage district, which had already done considerable work in ditching and draining the territory in that district, which it appears comprised more than 1,700 acres. The drainage district had begun the improvement by an open ditch construction which was opposed by the city on the ground that it would be deleterious and a menace to the health of the people contiguous to the impi’ovement, including the people of the city. In May, 1924, the city and the drainage district entered into the following contract for the sewering and draining of the territory in both districts:
“Whereas, The city of Kansas City, Kansas, deems it necessary and has provided for the construction of a main storm and sanitary sewer in sewer district No. 31, to provide proper facilities for a fast-growing community, and in order to reach an outlet and discharge for said sewer, it is necessary to cross lands In the Fairfax drainage district of Wyandotte county, Kansas, outside the corporate limits of said city; and,
“Whereas, A sewer constructed as aforesaid would be of use and benefit to the Fairfax drainage district and a joint sewer would meet the needs of said city and drainage district and make the construction of the same more economical and satisfactory by use of same pump house and pumping machinery ; and,
“Whereas, The Fairfax drainage district has heretofore let contracts for the building of an open ditch at the exact location of the sewer and provided a right of way therefor from North Ninth street and Missouri Pacific railroad tracks, to north bank of Jersey creek near the Missouri river, and has also heretofore let contract for pump house, pumps and necessary machinery to operate said pumps, all at the sole cost and expense of said drainage district; and,
“Whereas, All of said improvements so contracted for and now under construction by the Fairfax drainage district will be necessary for the completion of the plan for disposal of sewage in said sewer district No. 31; and,
“Whereas, At meeting and confirmances heretofore had between the city and its representatives and the Fairfax drainage district and its representatives, it has been verbally agreed between the parties that inasmuch as said sewer will be beneficial to sewer district No. 31 of said city and also to the Fairfax drainage district, that each should bear the following proportion of the expenses of the construction of said sewer plan and improvements, namely:
“The city to pay twenty-six forty-sixths (2%gths) and the drainage district twenty forty-sixths (2%gths) of the entire cost thereof, and the Fairfax drainage district to be credited on its twenty forty-sixths (2%gths) of the cost of said sewer and plan with the actual cost of the construction of the open ditch herein mentioned, pump house and necessary machinery therein.
“Now, therefore, in consideration of the premises and the mutual agreements of the parties hereto, one to the other, it is hereby stipulated and agreed by and between the city of Kansas City, Kansas, a municipal corporation, and the Fairfax drainage district of Wyandotte county, Kansas, a public corporation existing according to law, as follows:
“(1) A right of way for said sewer shall be provided by the Fairfax drainage district without cost or expense to the city, and the drainage district will also give the city any easement or right of way it may have for lateral sewers.
“(2) The sewer shall be so designed and constructed as to serve the interests of both parties.
“(3) The city shall advertise for bids for the construction of said sewer and let the1 contract to the lowest and best responsible bidder.
“(4) The cost of said improvement shall be paid by the parties hereto in the following proportions, namely: Twenty-six forty-sixths (2%gths) shall"be paid by the city and twenty forty-sixths (2%gths) shall be paid by the drainage district in addition to furnishing the right of way for said sewer, it being understood that the drainage district shall be credited with the actual cost of the work authorized and performed by it in excavating open ditch for sewer, construction of pump house and installation of necessary machinery and ap pliances in the pump house, for which itemized and detailed statements of the cost thereof shall be furnished and approved by the city before credit shall be given on said joint project as herein provided.
“(5) The drainage district reserves the right to construct such portions of said sewer under public roads and railroad rights of way as may be necessary or expedient prior to the letting of the contract by the city, in which event the drainage district shall be credited for such amount only as said sections of the. sewer may proportionately represent of the entire sewer, the price of which shall be determined by the city when contract is let. for the construction of the sewer on unit basis or otherwise.
“(6) The Fairfax drainage district specifically agrees that it will pay such additional sum as may be necessary to fully share and pay twenty forty-sixths (2%6ths) of the entire cost of said improvements when the same is completed or at such time as the city may require and the exact cost thereof is determined.
“(7) When said sewer and improvements are completed, the drainage district agrees to operate and maintain the pumps at times of high water at its own cost and expense.
“(8) Each party hereto pledges its full faith and credit to pass necessary resolutions and take the proper legal steps to give performance and effect to this agreement.
“In witness whereof, the parties hereto have signed the above agreement this 27th day of May, 1924. (Signed) _”
The contract, as well as the evidence, discloses that the project was undertaken and carried out as a joint enterprise, with a view of lessening the cost of a system which would serve both districts and at the same time be more economical than if each constructed a separate independent improvement. An ordinance was passed by the city defining the boundaries of sewer district No. 31, and was later amended in several particulars by subsequent ordinances. Estimates were made by engineers, which were approved by the controlling authorities, and contracts were let for the project in July, 1924, and the work proceeded from that time to the completion of the project, which was about July, 1925. At that time a settlement was made with the contractors on the basis that the city was liable for and would pay twenty-six forty-sixths (26/46ths) of the cost of the entire construction, and the drainage district would pay twenty forty-sixths (20/46ths) of it.
The improvement, as we have seen, was begun in 1924 and was completed in July, 1925. The work was approved and accepted by the authorities, and the compensation to the contractors was paid in 1925. This action to enjoin the levy of special assessments on the lots and tracts of land owned by plaintiffs within the sewer district was begun on February 2, 1928. The plaintiffs sought to enjoin the levy upon various grounds, the principal ones being that the contract between the city and the drainage district was unauthorized by law and therefore void; that sewer district No. 31 was not legally created; that the city was without authority to contract for the improvement or to create a liability against plaintiffs’ property for its construction; that the ordinances enacted providing for the improvement were invalid; that the construction contracts were illegal; that the procedure for the valuation of the plaintiffs’ property for special assessment was contrary to law; that the temporary notes issued in payment of the improvement were illegal; that the bonds issued to take up the notes could not be legally issued by the city, and that the assessments made upon plaintiffs’ property were unjust and invalid.
The answer of the defendants alleged that the steps they had taken from the initiation of the improvement until its completion and the levies made in pursuance of the ordinance passed were in conformity with law. They further alleged that in a former action brought by J. C. Looker and other owners and taxpayers similarly situated, the questions involved in this action were considered and decided in January, 1926; that in that case the court expressly held that the various steps taken in the making of the contract for the joint enterprise, the creation of the sewer district, the ordinances enacted pertaining to the improvement, were valid, and that that judgment bars the maintenance of this action.
A motion was made to dismiss this appeal on the ground that the notice of appeal was not signed by L. S. Harvey, who was city attorney when service of the notice was made. It appears that prior to his appointment and the trial of the cause Mr. Harvey had been consulted and employed by some of the plaintiffs, and therefore deemed himself disqualified to take part in the trial of the cause. It was tried by two assistant city attorneys, aided by special counsel employed by the city for that purpose. The notice of appeal was signed by the two assistant city attorneys who tried the case, and it is so manifestly sufficient as a notice of appeal as to make discussion unnecessary. No question is raised as to the right and authority of these officers to represent the city in the litigation, and they were unquestionably competent to give the notice of appeal.
One of the many questions argued in the case is that the contract between the city and the Fairfax drainage district for the joint con struction of the sewer as designed would operate to serve parts of the city as well as the adjoining territory of the Fairfax drainage district. It may be noted that part of the drainage district extended within the boundaries of the city, but the greater part of it lies outside. The drainage district is a municipal organization created by law, and has been recognized as a municipal entity, with power and discretion in the matter of constructing sewers and drains and the enforcement of assessments to pay for the same. (Drainage District v. Reimer, 114 Kan. 473, 219 Pac. 268.) By statute the governing body of the district is authorized to —
“Contract or otherwise cooperate with any city or other municipal corporation in which the same may be situated, or with any corporation or person, for the construction and maintenance of sewers, drains or ditches for the drainage of any drainage district or portion thereof, or to prevent the same from being overflowed by surface waters from adjoining lands, and to levy taxes and issue bonds in accordance with and subject to the provisions of chapter 215 of the Session Laws of 1905, and acts amendatory thereof to pay for the cost of such improvements.” (R. S. 21-408.)
When the district was organized and the directors chosen they had authority to contract with corporations and individuals for sewers, drains and dikes, and the judgment and discretion vested in them could, in the absence of fraud or bad faith, be exercised without interference or control of individuals or even by the courts. In exercising this governmental function they could determine the location, size and character of the sewers and drains, and even though they made mistakes in the plan or construction the court was not authorized to interfere or substitute its judgment for that of the directors. (Drainage District v. Drainage District, 104 Kan. 233, 178 Pac. 433.) There it was said that the directors—
“To accomplish the purpose, its authority and operations are not confined to the district, as it is authorized to contract with individuals and private corporations owning lands outside of the district. The defendant, therefore, had a right to relocate the channel of the creek, to make dikes and ditches, and to drain the land and dispose of the water in the way which the directors in their judgment might deem best, and to that end they could make contracts with landowners outside of the boundaries of the district. The directors of the district being invested with the discretion, judgment and authority as to the best means of accomplishing the purpose, may exercise such discretion, judgment and authority without interference or control by the courts, unless bad faith or fraud enters into their action.” (p. 235.)
Touching the powers of the drainage district, see Jefferson County v. Drainage District, 97 Kan. 302,155 Pac. 54; Shrag v. Blaze Fork Drainage District, 119 Kan. 169, 237 Pac. 1047; State, ex rel., v. North Topeka Drainage District, 133 Kan. 274, 299 Pac. 637. It is manifest that there was power in the drainage district to contract and cooperate with the city as to the joint project of building a sewer designed to serve and benefit the territory of the district as well as a part of the territory of the cityoadjoining the district, and which discharged the sewage through a common outlet into the Missouri river.
The city, a municipal corporation, is given broad general powers in the matter of construction of sewers. These have been defined in R. S. 13-1013,13-1014,13-1015, 13-1016 and 13-1029, which authorizes the city to provide a system of sewers and to contract with others in the construction of sewers, even with those beyond the corporate limits. Although there is no specific provision stating in terms that the city may unite with a drainage district in such a project, the general powers conferred upon cities, together with the provisions authorizing drainage districts to contract with corporations and individuals in such a project, appear to be amply sufficient to authorize the city to join in the making of the contract. We have no hesitation in holding that the parties named had the power to enter into the contract, and no fraud being shown the contract must be held to be valid.
An ordinance was passed defining the boundaries of sewer district No. 31, and subsequently other ordinances were enacted amending and repealing the early ordinance which slightly changed the boundaries of the district. Some criticisms are made of the validity of these ordinances, but we discover no substantial defect in them.
There was delay and futile attempts in making the assessment on the lots and parcels of land for the improvement within the district. Finally, on January 1, 1928, ordinance No. 24,010 was passed, levying special assessments on the plaintiffs’ property and other property within the district towards the payment of the sewer construction. That ordinance is attacked as invalid on the technical ground that the title thereto contains more than one subject, and that the subject is not clearly expressed in the title. The title is:
“An ordinance apportioning and levying special assessments for the cost of the construction of sewers in sewer district No. 31, upon the lots and tracts of land liable for the payment thereof.”
The ordinance provides that the commissioners of the city, having contracted for the construction of a sewer in district No. 31, and the cost of the improvement having been ascertained to be an amount which is stated, and the appraisers having appraised the lots and tracts of land situated in the district and the benefits accruing to each of the tracts by reason of the construction of the sewer, and the appraisement having been returned in writing, due notice of which has been given as provided by law, and the board of commissioners having equalized, approved and confirmed the appraisement and report of special benefits, thereupon levied specific amounts upon each tract. The subject is a single and comprehensive one which is fairly expressed in the title, being that of levying assessments for the cost of the construction of the sewer, which is sufficiently described. The limitation is not to be construed in any narrow or technical sense. It is not necessary to lumber up the title with the details of the act. It has been held to be enough to state in general terms the provisions of the ordinance. (Taneyhill v. City of Kansas City, 133 Kan. 725, 3 P. 2d 645.) We think the title of the ordinance measures up to this standard.
We still have the question of benefits to the owners of the lots and tracts of land assessed for the cost of the improvement. The district, it appears, comprises a large territory, some of it of a rough and rugged character, much of it sparsely settled, and it appears that some of the owners who are plaintiffs have no access to the sewer so far as it has been constructed. The sewer is no more than a main or trunk sewer. The general scheme for the sewering and draining of the district contemplates the further building of subsewers and laterals to supply drainage and sewerage to all residents within the district. These subsewers and laterals have not been constructed. Upon the evidence the court found:
“The Fairfax sewer will be -available to all of the lots and tracts of land included in sewer district No. 31, and will serve all of the territory therein for sanitary sewerage, and flood-water drainage, if and when a system of lateral and subsewers is constructed and maintained in said sewer district No. 31, and the same are joined and connected up with the Fairfax sewer, and that all of said territory then will be specially benefited thereby.”
Until the plan is so far carried out that owners of property in the district have access to the sewer and may derive benefit therefrom, their property cannot be assessed to pay for sewer construction. Special benefits are essential to the validity of an assessment in such a case. No lawful assessment can be levied against a lot owner who is not specially benefited. His property cannot be assessed for a general benefit shared in by the public, at large. Of course any landowner who has access to the sewer now built and to whom special benefits are available, may be required to pay for such benefits. If within a reasonable time subsewers or laterals are built in completion of the system which will afford the lot owner sewer benefits, assessments may then be made upon his property. It is not necessary that a sewer shall be completed in a brief time. It may be built in sections. As fast as a section of the plan is completed assessment may be made on the property then benefited. On this question it was said in City of Atchison v. Price, 45 Kan. 296, 25 Pac. 605:
“The fact that a sewer constructed in one district or portion of the city connects with or is an extension of another already constructed, does not make the territory drained by both a single and distinct district, nor does it require that all the property within that territory shall be assessed for the sewer last constructed. It is for the city to determine how early and rapidly the system shall be completed, and any section or extension of the system may be built whenever it is deemed necessary and expedient. When a section or extension is made, the territory drained and specially benefited by the construction of an extension or section, however small, may be regarded as a district. A lateral running through an alley of a single block, and connected with another sewer, may be constructed by the city, and the territory specially benefited will alone constitute a district upon which the entire cost of the lateral may be assessed.” (p. 312.)
See, also, Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781; Atchison v. Price, supra; Botts v. City of Valley Center, 124 Kan. 9, 257 Pac. 226.
It therefore seems that such assessments may be made when the improvement is extended and so constructed as to be available to the landowner and be of special benefit to his property, after the city has taken proper steps in determining and declaring the amount of the assessment upon each lot or tract within the extension. It must be held that there was error in the granting of a perpetual injunction against the levy of assessments on property specially benefited by the present construction, and also against the levy of future assessments on lots and tracts which may be later afforded special benefits when the plan is completed and sewer privileges are available to the owners.
It may be noted here that the trial court was in error in holding that the contract for the joint project between the city and Fairfax drainage district was void, and also in holding that the assessment ordinance was invalid and unenforceable because of a defect in the title.
It is contended on the part of the city that the delay of the plaintiffs in failing to bring the action of injunction against the carrying out of the project until after the sewer was built, constituted laches which barred them from the relief asked. It is said that the proposed project was a matter of notoriety, was discussed in the press and among the citizens generally, and must have been well known to the plaintiffs, and yet they did not move to enjoin the construction of the sewer until after it was completed, and the city had paid for the same by temporary notes, obligations which it issued, and a small amount of cash. The action was brought by the plaintiffs about twenty-five days after the passage and first publication of the final assessment ordinance. The city, as we have seen, had changed its ordinances fixing the boundaries of the city a number of times, and also those levying assessments for the sewer construction. It may be said that the taxpayer could not well know what his assessment would be until it was finally made, nor could he be sure that still another assessment ordinance would not be passed. The law contemplates that controversies as to the levy of special assessments for constructing public improvements shall be promptly determined. It has provided that no suit to enjoin the levy of a special assessment for such an improvement may be maintained after the expiration of thirty days from the time the amount due on each lot liable for assessment is ascertained. (R. S. 13-906.) ' There is a plain implication in the statute that up to that time an action to enjoin may ordinarily be maintained. This action was brought within the limitation mentioned, and, under the circumstances, we cannot hold that the action was barred by the lapse of time.
There is another contention by the city that plaintiffs were concluded by the judgment rendered in a former action. That action was brought by a lot owner of' the district, J. C. Looker, in November, 1924, against the city, its commissioners, the Fairfax drainage district, and construction companies which had obtained contracts for the making of the sewer. He was the only plaintiff named in the title to the petition, and after alleging the making of the contract between the city and the Fairfax drainage district, which' he alleged was invalid, and that certain ordinances were passed as to the creation of the sewer district, authorizing the construction of the sewer, the letting of contracts for the building of the sewer alleged to be illegal, Looker alleged that he was the owner of a lot in the sewer district, and unless prevented the city would levy assessments thereon for the payment of the cost of the sewer. He also alleged that defendants will certify assessments to the county clerk for the collection of taxes against his property and that of other persons similarly situated, “and plaintiff brings, this action in behalf of himself and others similarly situated, whose property and real estate is to be taxed to pay for the construction of said sewer.” This is the only averment relating to the representation of others. Before that case came to trial Looker sold and. disposed of his real estate in the district and did not appear at the trial of the case, and in effect he abandoned the prosecution of the action. The attorney employed by him did appear, and it seems that he then first learned of the disposition of the property by Looker, and that he was no longer interested in the action. However, the fact-was distinctly brought to the attention of the court, and because of the representative character of Looker, the trial was allowed to go forward. In that trial evidence was produced, findings and judgment for the city and other defendants were rendered, the court holding that the preliminary proceedings, contracts and ordinances and other steps taken pertaining to the sewer, were valid and that Looker was denied the relief asked, and that defendants should go hence without day with their costs.
The ground of the invalidity asserted by Looker and the relief asked were mainly those alleged by plaintiffs in the present action, and defendants insist that adjudication is binding on plaintiff and estops him from maintaining the present action. The parties represented by Looker were not named, and no attempt was made to allege or show that the consent of others alleged to be similarly situated for the bringing of that action was obtained. It does appear that one of the plaintiffs in this action was a witness in that case, and Looker has said that he represented four or five other persons. In this case there are 189 plaintiffs who are landowners and against whom assessments have been levied, and they are insisting that the judgment in the Looker case is not res ad judicata as to them. The code provides that every action must be prosecuted by the real party in interest. (R. S. 60-401.) There is a code provision that:
“When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (R. S. 60-413.)
Another statute provides for enjoining the governing body of a municipality from enforcing an illegal tax or assessment upon the property of a person, or from threatening to do so, and that such person may maintain an action of injunction against the officers, and it then provides:
“Any number of persons -whose property or rights may be charged or affected-injuriously by such threatened illegal or unauthorized act may join as parties in the .application to obtain such injunction.” (R. S. 13-1403.)
Nothing in the petition or in that case alleged the knowledge or consent of the parties other than the actual plaintiff. It may be said that each taxpayer has a separate and individual right to protect, and no one of them has a direct interest in the relief granted to another owner of individual property. It is true that some of the wrongs charged by Looker against defendants would apply to and might be effective in procuring injunctive relief to others. It has been held that the code provision (R. S. 60-413) is applicable where there are a large number of taxpayers affected and having a general or common interest in a question at issue, and in the remedy, and that they may join together, and therefore that there was no misjoinder of parties. (Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569.) But as to the binding effect of a judgment in an action involving a large number of parties not named, where their consent was not obtained, nor even knowledge of the action shown, persons who have not accepted the representation of the actual party or participated in the trial or received benefits of the judgment, a different question arises. It has been decided:
“Where one plaintiff belonging to a numerous class of persons brings an action in behalf of himself and all others similarly situated, the judgment which may be rendered is binding on others of the class who accept the representation, and who connect themselves with the litigation, either by coming into the suit or seeking to share in the fruits of the judgment, or by acquiescing in it. But it is not binding upon those who do not participate in the proceeding or otherwise join in it.” (Haese v. Heitzeg, 159 Cal. 569, syl. U 3.)
There is some conflict in the authorities as to the effect of a judgment obtained by an actual defendant who claims to represent others similarly situated. In Pomeroy’s Code Remedies, 5th ed., §§ 296, 297, the subject is discussed as to whether a person is bound by a former judgment, and it is said:
“Of course he is not bound unless he was practically a party to the proceeding; the plainest principles of common justice refuse to hold a man concluded if he has not had ‘a day in court.’ . . .
“If, however, the prior suit has been terminated, and the question arises in a subsequent controversy, and iiivolves the conclusive effect of the former adjudication upon the class of persons represented by the actual parties, in order that such judgment should be conclusive upon any particular person of the class either in his favor or against him, there must have been the previous formal act on his part of applying to the court, and an order thereon making him a party to the action, so that his name should have appeared in some manner upon the record; or it must be shown that he had notice of the proceedings, and an opportunity to unite in them of which he neglected or refused to avail himself. These views and conclusions reconcile the decisions which at first sight appear to be conflicting, and they present a practical and harmonious rule of procedure.” (See, also, Stevens v. Brooks, 22 Wis. 695.)
The Looker case is exceptional in that the only actual party who undertook to represent others similarly situated, transferred his lot and rid himself of any interest which would give him a right to maintain the action. He did this before the trial of the case, at which he did not appear. When he became disqualified and went out of the case, did he go out in both his personal and representative capacities? His only claim had been that he asked relief for himself and those similarly situated. Persons who owned lots in the sewer district were not similarly situated with one who at the time of trial and judgment had no property in the district subject to assessment. The question must be decided on the facts peculiar to the present case. Our conclusion is that under the circumstances mentioned, the plaintiffs have not had their day in court on the issues involved, and that the former judgment is not a bar to the maintenance of the present action of the plaintiffs. In view of the conclusions we have reached on the principal points in the case, it is not necessary to comment on other angles of the many questions discussed.
Something is said about the issue of temporary notes payable to the contractors for the construction of the sewer because of the limitation then existing and applicable on the issue of bonds. The issue of these notes, for which bonds were later substituted, did not affect the legality of the contracts. The bonds are valid obligations of the city, which it must pay, regardless of the validity of the special assessments. The city may recoup from the owners of lots and lands within the district to the extent that such property is specially benefited by the improvement.
Our conclusion is that the judgment be reversed with directions to ascertain those who now have access to the sewer as constructed and to whom benefits are available. Such, parties are adjudged to be liable for the assessment. It is further directed that those who shall receive special benefits when the system is extended and completed by the building of subsewers and laterals, and are thereby specially benefited, shall then be held liable for assessments made for such benefits, but will not be liable to such assessments until the construction has proceeded to the extent of furnishing them sewer privileges, which are of special benefit to their lots and tracts of land.
Harvey, J., not sitting. | [
-16,
74,
-68,
-18,
-102,
-54,
8,
-103,
89,
-79,
-12,
115,
73,
-54,
12,
101,
-29,
125,
-48,
121,
-28,
-77,
35,
-54,
-106,
115,
-5,
-51,
-70,
125,
-12,
70,
76,
0,
-54,
-99,
-58,
74,
85,
-36,
-114,
5,
-120,
-63,
-33,
66,
52,
42,
50,
78,
21,
61,
-5,
40,
21,
-61,
41,
60,
-39,
41,
80,
-48,
-120,
-107,
92,
20,
48,
38,
-108,
3,
64,
62,
-40,
53,
12,
-20,
119,
-90,
-106,
-10,
103,
-101,
40,
114,
102,
3,
53,
-53,
-8,
-39,
14,
-34,
-113,
-90,
-107,
25,
98,
-94,
-76,
-99,
124,
22,
7,
126,
-17,
-123,
95,
44,
3,
-117,
-12,
-15,
-53,
-75,
-126,
3,
-33,
33,
32,
96,
-121,
-14,
79,
87,
50,
27,
-97,
-71
] |
The opinion of the court was delivered by
Johnston, C. J.:
An accusation of contempt of the supreme court was filed by the attorney-general, charging Frank Arnold, W. H. Hazelton and J. A. Cook with having committed a fraud and imposition upon the court by procuring a stay of judgment and the release of a convict who had taken an appeal upon a worthless bond.
It appears that on April 19, 1930, B. A. Turner was found guilty of the crime of murder and was sentenced by the court to serve the remainder of his life in the state penitentiary. An appeal was taken to this court by Turner, and upon an application Turner obtained an order staying the execution of the judgment upon the giving of a good and sufficient bond in the sum of $20,000, to be approved by the clerk of the court, and that upon approval Turner was to be released from the custody of the warden of the state penitentiary. Fraudulent representations in procuring the release were charged 'against respondents. After the accusation was filed the court appointed Howard T. Fleeson as commissioner to take the testimony upon the charge and to make findings of fact and law in the case. The testimony of more than forty witnesses was taken, and findings of fact and conclusions of law were reported by the commissioner to the court. It was found that Arnold, Hazelton and Cook were all guilty of criminal contempt. As to the facts the commissioner found, among other things, that Frank Arnold, a professional bondsman, undertook to procure Turner’s release and presented to the clerk of the court a bond in the stated amount of $20,000 and procured Hazelton and Cook to qualify as sureties in reply to inquiries by the clerk as to their qualifications. Hazelton represented that he owned a bottling works property in Wichita worth from $35,000 to $40,000, and Arnold corroborated the statement of Hazelton in respect to the property and its value. Some papers were presented, made by officers of Sedgwick county, certifying that the property had been conveyed to Hazelton and that it was worth $30,000. Arnold stated to the clerk that he was well acquainted with Hazelton and would vouch for anything he qualified for. £t the time these representations were made Hazelton could not qualify on a bond for any amount. He .owned a property in Wichita, which was his homestead and was exempt from execution. He had only an equity of redemption in what is spoken of as the bottling works property. The reasonable market value of that property was shown to be $16,500. It had been sold in a foreclosure proceeding in May, 1930, to a purchaser for $12,338.11, and the period of redemption expired November 14, 1931.
In addition to the foreclosure proceedings there were sixteen unpaid judgments in the district court of Sedgwick county against Hazelton, amounting in all to $8,323.71, and some of these judgments were on bond forfeitures on bonds which Hazelton had given.
The commissioner found that Hazelton had full knowledge of the fact that he could not qualify on a bond for any amount, and that less than a year before he was before the court in proceedings in aid of execution, and his own testimony there disclosed that he had no property subject to execution.
As to Cook, there was a requirement that one of the sureties on the bond should be a citizen of Harper county, where the conviction was obtained, and Cook undertook to qualify as a citizen of Harper county. It was shown, however, and the court found that he was not a resident of that county and never had been, but had been a resident and voter of Sedgwick county for eight years. The property which he listed and claimed to own was situate in Hutchinson, and he represented that it was worth at least $10,000. That property consisted of eight lots situated in the vicinity of an industrial part of the city and was assessed at a valuation of $40 each, the taxes on which had not been paid for three years and, further, had been conveyed by Cook to another in September, 1930. Arnold verified the statement made by Cook with reference to the property and its value, and said he knew the value of the property since he had sold it to Cook in January, 1929, taking back a mortgage in the amount of $628. There had been a release of this mortgage June 16, 1930, which was not filed of record until November 3, 1931, and Cook did not appear to know that the mortgage had been released, as he had later conveyed the property subject to this mortgage. As in the case of Hazelton, Arnold stated that he was well acquainted with Cook and vouched for his statements in regard to his qualifications.
The finding made by the commissioner is that the bond was made at the solicitation of Arnold, and that he procured the sureties to sign the bond with full knowledge of their lack of financial responsibility, was in charge of the trip to Topeka to secure the approval of the bond, and had conceived the fraud and had vouched for the statements of Hazelton and Cook, well knowing the falsity of their statements.
The evidence fully supports the findings and conclusions of the commissioner. The conduct of the three parties charged appears to be nothing less than a willful and intentional purpose to procure the approval of a worthless bond and thus obtain the release from custody of the convict, Turner. It constituted a fraud upon the court and a plain case of contempt. There can be no doubt of the power of the court to take cognizance of such conduct or to impose punishment therefor. It has been held that there is inherent power in the court to punish for contempt, and the accused parties have had due notice and ample opportunity to explain or defend against the charge. (State v. Rose, 74 Kan. 262, 86 Pac. 296; State v. Marshall, 95 Kan. 628, 148 Pac. 675.)
It is hardly necessary to cite authorities that the deceit and fraud practiced by the defendants in this proceeding was a contempt of court, but see In re Woods, 119 N. Y. Supp. 69, 71, where it was said:
“That a person who justifies as a surety on a judicial bond when he is in fact worthless, is guilty of misconduct and may be punished as for a contempt of court, there is no doubt.” (Citing authorities.)
See, also, Eagan v. Lynch, 3 N. Y. Civ. Pro. Rep. 236; In re Westminster Realty Corporation, 108 N. Y. Supp. 551.
The fact that Turner was afterwards produced and was returned to the custody of the warden of the state penitentiary does not lessen the gravity of the contemptuous conduct of the accused.
Nothing remains but to determine what punishment shall be imposed, and the judgment of the court is that Frank Arnold be imprisoned in the county jail of Shawnee county, Kansas, for a term of thirty days, and pay a fine of $500 ; that W. H. Hazelton and J. A. Cook each be imprisoned in the county jail of Shawnee county, Kansas, for a term of thirty days, and each of them shall pay a fine of $250. | [
-16,
104,
-8,
31,
10,
-32,
58,
-72,
83,
-79,
-80,
83,
-119,
95,
5,
107,
89,
125,
92,
105,
-92,
-73,
18,
-63,
-46,
-13,
-37,
-59,
51,
-33,
-12,
-35,
72,
36,
10,
85,
-90,
-56,
-47,
92,
-50,
-121,
-87,
-14,
-33,
0,
50,
125,
48,
14,
-11,
62,
-13,
106,
28,
-37,
73,
40,
91,
45,
0,
-79,
-88,
-123,
-3,
86,
35,
34,
-120,
7,
-40,
46,
-104,
17,
-128,
-8,
115,
-122,
6,
116,
15,
-101,
108,
118,
66,
33,
-35,
-21,
40,
-55,
15,
-85,
-99,
-89,
-70,
81,
2,
101,
-106,
-103,
97,
18,
34,
116,
-17,
4,
93,
108,
-127,
-113,
-108,
-111,
-115,
126,
-102,
26,
-53,
-91,
32,
97,
-51,
-94,
93,
-89,
120,
59,
-113,
-12
] |
The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiff as assignee of a school-district warrant to recover on the warrant. Set-off of a demand of the school district against plaintiff’s assignor, existing while the assignor held the warrant, was not allowed, and defendant appeals.
By order of the district board, the director and clerk of a school district drew an order on the treasurer payable to the order of Goff Rural High School for $811.25. The order was dated March 30, 1931. On that day the order was presented to the treasurer, who indorsed it, “Presented for payment, but not paid for want of funds,” and registered it as No. 119. The payee indorsed the warrant as assigned and payable to bearer, and for value delivered the warrant to the Home State Bank. 'Before the warrant was issued the Home State Bank orally agreed with the school district.to purchase such warrants and carry them until such time as the school district had funds with which to pay them. The bank was depositary of the school district’s funds, and between April 7, 1931, and January 14, 1932, the district deposited with the bank more than $3,700. On February 14, 1932, the balance in favor of the district was $836.92. On that day the bank closed its doors on account of insolvency, and a receiver was appointed. The school district presented a claim for the balance of its account, and the claim was allowed as a common claim. On January 24, 1932, and without notice to the school district, the Home State Bank transferred the warrant to plaintiff, ;fche Produce Exchange Bank, which brought the suit against the school district.
The petition was in form and substance appropriate to the nature of the action. The answer pleaded the facts which have been recited, claimed a set-off of $836.92, with interest, and tendered an assignment to plaintiff of the claim certificate issued by the receiver. Other warrants were sued on in separate causes of action of the petition. For simplicity they have not been referred to. The school district offered to confess judgment for the excess above the offset. Judgment was rendered on the pleadings in favor of plaintiff for the sum of the warrants.
The code of civil procedure contains the following provisions:
“In. the ease of an assignment of a thing in action the action of the assignee shall be without prejudice to any set-off or other defense now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith and upon good consideration before due.” (R. S. 60-402.)
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.” (R. S. 60-715.)
Set-off was not allowed at common law. Other states have statutes relating to set-off and counterclaim. In some the statutes have been narrowly interpreted to apply to those set-offs only which the original debtor might have asserted against the original creditor. In other states the statutes have been liberally interpreted and have been held to authorize any set-off which the debtor had against any intermediate assignee.
R. S. 77-109 reads:
“The common law, as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.”
Under the law of this state the warrant was a nonnegotiable instrument, and indorsement of it as payable to bearer neither enlarged nor restricted effect of the assignment by the payee. Because the original debtor and creditor were two school organizations, and the assignees were two banks, it may simplify description of the precise situation disclosed by the pleadings to designate the various organizations by letters of the alphabet.
A was indebted to B on a nonnegotiable instrument transferable by assignment and delivery. B assigned to C. While C held the instrument, a demand accrued in favor of A against C. C assigned to D, who sued A. The court unhesitatingly rejects the view that A’s privilegé of set-off was limited to demands against B, because to accept that view would be to emasculate R. S. 60-715.
It is suggested that if the legislature intended the statute should permit set-off of a demand against an intermediate assignee, the intention should have been expressed in language appropriate to that end. The obvious response is, the phraseology of the statute is appropriate to that end, and if the legislature intended set-off should be limited to.a demand of the original debtor against the original creditor, the intention should have been expressed in language appropriate to that end.
If in this instance C, the Home State Bank, had sued A, the school district, on the warrant, it would be idle to say A could not offset the amount of its. deposit with C. A and C were persons between whom cross demands existed under such circumstances that if C sued A the set-off could be pleaded. The statute declares that under these circumstances A may not be deprived of benefit of the set-off by an assignment of C to D.
Plaintiff cites an early Alabama case in which it was predicted that if privilege of set-off against an intermediate assignee were permitted, it would put an end to assignment of choses in action, something which the law encourages. There are no statistics to show the prediction has been fulfilled in states which have long permitted set-off against intermediate assignees, and in those states neither-the courts nor the legislatures have seen fit to withdraw the privilege.
When B assigned to C, C took subject to A’s privilege to set off a demand against B. C took that risk. . If that risk hampers assignment of choses in action, it does so only in accordance with the dictates of justice and equity. If C desired to protect himself, he could inquire of A. Any prospective assignee may do the same thing with respect to possible set-off against his immediate assignor. Should he take the risk, it is a risk of the same character as that which the first assignee took.
In this instance C was a bank, and A’s demand against C consisted of a deposit with the bank. It is suggested that if generally a demand in favor of the debtor against an intermediate assignee may be used as an offset, the demand must be a matured demand, and in this instance A had not matured his demand by drawing a check, or otherwise. The statute is that if cross demands exist between A and C under such circumstances that if C should sue A, A could set up his demand, etc. In this instance the situation was such that if the Home State Bank had sued the school district, the school district could have set up its deposit as an offset without drawing a check or doing anything else to mature payment of the sum on deposit, in advance of pleading it.
Restatement, Contracts, section 167, lends no aid to interpretation of the Kansas statutes .by which this case is governed.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment on the merits of the controversy in accordance with the prayer of the answer.
Hutchison, J., not sitting. | [
-80,
-4,
-31,
-84,
26,
96,
58,
-102,
81,
-127,
53,
-45,
-23,
66,
5,
109,
119,
45,
116,
120,
-60,
-77,
3,
-56,
-38,
-14,
-3,
-43,
62,
-18,
-28,
-33,
11,
-80,
-62,
-43,
102,
-62,
-59,
80,
-114,
-96,
-69,
105,
-39,
72,
56,
121,
50,
8,
113,
-50,
-29,
46,
24,
67,
104,
46,
-7,
-71,
-60,
-13,
-70,
-123,
111,
86,
-111,
35,
-102,
65,
-56,
46,
-104,
51,
1,
-7,
58,
-90,
2,
84,
65,
25,
-120,
102,
102,
83,
-76,
-55,
-68,
-120,
38,
-101,
-97,
-90,
-109,
89,
-94,
44,
-66,
-99,
117,
18,
-121,
-4,
-29,
-123,
31,
108,
15,
-50,
-26,
19,
-114,
100,
-102,
11,
-25,
35,
48,
97,
-50,
-30,
92,
71,
58,
-109,
-50,
-35
] |
The opinion of the court was delivered by
Dawson, J.:
These cases are original proceedings in which a peremptory writ of mandamus is sought to compel the county clerk of Wyandotte county to extend on the tax rolls a levy of 2.5 mills on the dollar on all property within the Kaw Valley Drainage District which was ordered by resolution of its board of directors on August 25, 1933.
The county clerk promptly notified the board that from his examination of its levy and budget his opinion was that the levy was unlawful and illegal and he would not extend it. Following that notification the board of directors conferred with the county clerk, but he steadfastly adhered to his first position, and the matter was allowed to drift until September 19,1933, at which time the plaintiff Frank Hawkins, a private citizen and taxpayer who owned property within the drainage district, brought the first of these cases, No. 31.620, praying for a writ of mandamus directing the county clerk to spread this 2.5-mill levy on the tax roll.
At a hearing in the chambers of the Chief Justice on the application for an alternative writ, the court raised a question of plaintiff’s right to maintain the action, and ordered that question briefed. While counsel were exploring the law on that subject, on October 28,1933, the county attorney of Wyandotte county instituted a similar action in the name of the state to the end that an adjudication of the validity of this questioned tax levy should not fail for want of a proper party plaintiff. However, unless he was dissatisfied with the substance of the pleading in the first case, No. 31,520, it would have simplified matters if he had intervened in that case in the name of the state, rather than clutter our dockets with another case. Such procedure would have been in accord with precedent and good practice. (State, ex rel., v. Public Service Comm., 135 Kan. 491, 492, 11 P. 2d 999.)
By order of court, however, these cases have been consolidated, and owing to the urgency of an early determination an alternative writ in the second case was dispensed with. Counsel for the litigants appeared and argued the cause at length. The applications for the writ and the written objections to its granting developed no dispute of fact of present importance.
The allegations of both applications for the writ, much abridged, are that the Kaw Valley Drainage District was organized under authority of the statute of 1905 (R. S. 24-401 et seq.); that dikes have been constructed on each side of the Kaw for a number of miles upstream from its confluence with the Missouri river, at a cost of $1,750,000, for which the district still has a bonded indebtedness of $1,225,000; that these dikes are 30 feet in height above low-water level.
In July, 1915, the board of directors adopted a resolution to raise the dikes to an additional elevation of 5½ feet, and considerable work has been done on the left bank of the Kaw to carry that resolution into effect; but no work of that sort has been done on the right bank of the stream, leaving property on that side of the river open to inundation whenever a 30-foot rise occurs in the river. (It should be interpolated here that the electors of the district have never sanctioned the construction of dikes above the 30-foot level, and have disapproved a proposal to raise the dikes to a height of 35½ feet.)
It is also alleged that on August 25, 1933, in due form, the board of directors adopted a resolution imposing taxes for a general fund and for interest and sinking funds. That part of it of present concern reads:
“That pursuant to the authority conferred upon said district by chapter 215 of the Session Laws of the state of Kansas for 1905, and amendments thereto, The Kaw Valley Drainage District of Wyandotte county, Kansas, by and through its board of directors, does now and hereby levy a tax upon all taxable property within said district for the ensuing year, as follows:
“1. A tax of .0025 mills [2.5 mills intended] on the dollar to create a general fund.”
Accompanying the state’s application for the writ is a copy of the drainage district’s “budget and financial statement” for the current year, duly certified by the officers of the district and reciting—
“That it is necessary to levy .0025 per dollar, [2.5 mills intended] to raise $107,500 for the general fund.”
The financial statement also shows that the drainage district treasurer’s balance, July 1, 1933, in the general fund is $58,611.64.
The budget for the ensuing year contains the following, among other items:
Proposed Adopted
“7. Improvement projects . .$110,000 $75,000.”
Repeatedly in the state’s application for the writ the allegation is made that the purpose of this 2.5-mill levy for the general fund is to provide money to raise the dike on the south bank of the Kaw 5½ feet. A typical excerpt from the application reads:
“11. That the present drainage board intended to use the funds received from the tax of 2.5 mills on the dollar to create a general fund for the purpose of repairing the dike or levee on the right bank of said river to raise the height of said levee on the south side of said river.”
The application also alleges that in order to collaborate with the federal government and with railroads owning adjacent lands “to raise the height and repair the levees,” this money is needed, and that the federal government is ready to furnish $120,000 for these purposes upon condition that the drainage board provide $75,000 for the same purpose, and that the board is anxious to take advantage of this liberal offer of the United States government.
Most important of all the allegations and admissions of the state’s application for the writ is the following:
“17. That the drainage board did not follow the requirements of R. S. 24-418 and 24-422, for the reason that said drainage board decided that the raising of the dike on the south bank of said river and the other work to be carried on with the funds to be raised from the levy of 2.5 mills did not constitute new construction work, but did decide that the same constituted repair work and decided that the same should be paid for by the levy of a tax, the proceeds of which were to constitute and be placed in the general fund.”
To the alternative writ issued in case No. 31,620, defendant filed an answer, the substance of which is included in his objections to the issuance of a writ in case No. 31,682. We pass by matters of historical and financial interest concerning this drainage district’s affairs included in defendant’s answer and objections, and note with particularity certain provisions of statute which seem to control this controversy. We may also ignore such secondary considerations as the impleading of the members of the board of directors of the drainage district in these proceedings.
In the first place it should be obvious that the plaintiff, a private citizen, cannot maintain the action instituted by him in case No. 31,620. He has no special interest apart from the general run of citizens and property owners of the drainage district which would justify his assumption of the functions of a public prosecutor to compel the county clerk to extend this tax levy. As this court has many times observed, this state is adequately provided with officers to attend to matters of this sort, and even neglect of or inattention to such duties by public officials does not warrant their assumption by private litigants except where the statutes so provide. In the early case of Bobbett v. State, 10 Kan. 9, where private litigants sought to compel a board of county commissioners to order an election for the relocation of a county seat, it was held that the action could not be maintained by private citizens. The syllabus reads:
“1. Mandamus will not lie at the instance of a private citizen to compel the performance of a purely public duty.
“2. Such a suit must be brought in the name of the state, and the county attorney and the attorney-general are the officers .authorized to use the name of the state in legal proceedings to enforce the performance of public duties.
“3. Where a private citizen sues out a mandamus, he must show an interest specific and peculiar in himself, and not one that he shares with the community in general.”
In Gormley v. School Board, 110 Kan. 600, 601, 204 Pac. 741, mandamus at the instance of private litigants was denied, the court saying:
“The extraordinary remedy of mandamus is given to compel the performance of public duties, and ordinarily where public rights are to be subserved the remedy can only be invoked by the county attorney or attorney-general, the officers intrusted with the discretion and authority to represent the public in the courts. [Citations.]”
In Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 348, 267 Pac. 996, it was said:
“Early in the history of this state it was determined that ‘. . . for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character . . (Craft v. Jackson Co., 5 Kan. 518, 521; and see Clark v. George, 118 Kan. 667, 669, 236 Pac. 543.) This principle applies not only in injunction, but in mandamus (Bobbett v. State, ex rel. Dresher, 10 Kan. 9; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556) and other forms of action, many examples of which are found in our reports."
Passing next to the legal questions projected in the state’s application for the writ, it will be noted that it frankly avows the purpose of the tax of 2.5 mills to be to provide money to raise the dike on the right bank of the river to a height of 35½ feet. This admission squarely raises the question whether the increase of 5½ feet in the height of the dike is repair work or new and additional construction work which the taxpayers themselves must authorize before it is undertaken. The statute authorizes the drainage board to levy an annual tax of not more than 5 mills on the dollar to create a general fund. (R. S. 24-407, subparagraph 11.) The statute also authorizes the board to levy assessments and special taxes to -defray the costs of the construction of levees or other works or improvements to prevent inundation and kindred purposes. (R. S. 24-407, subparagraph 12.)
Subsequent sections of the same statute go into minute detail touching the powers of the drainage board. R. S. 24-418 provides that notwithstanding its authority to determine what improvements should be constructed to accomplish the purposes of the act, such improvements shall not be undertaken “until the same shall have been authorized by a vote of the taxpayers of such district at a special election to be called and held for that purpose.”
Moreover, the statute clearly indicates that improvements are to be paid for, not out of the general fund, but out of the proceeds of a special levy for that purpose (R. S. 24-407, 12th par.; R. S. 24-419) or from the proceeds of a bond issue (R. S. 24-419, 24-420). Such an improvement as the raising of the elevation of a dike from 30 feet to 35½ feet cannot be regarded as repairing the dike, incurring merely an incidental expense which could properly be paid for out of the general fund of the district. In State, ex rel., v. Thomas County Comm’rs, 122 Kan. 850, 854, 253 Pac. 406, it was said:
“The principal purposes of the county general fund are well understood. It is the fund out of which the ordinary current expenses of conducting the county government are met. (Railway Co. v. City of Topeka, 95 Kan. 747, 749, 149 Pac. 697, and citations.) Incidental expenses pertaining thereto are likewise properly paid out of this fund, subject, of course, to statutory mandates and inhibitions. Of necessity some discretion touching what are inci dental expenses is vested in the county commissioners, since they are the financial and business managers of .the county.”
In Smith v. Haney, 73 Kan. 506, 509, 85 Pac. 550, it was said:
“The phrase ‘general fund,’ as applied to the fiscal management of a Kansas county, has a definite and well-recognized meaning. It covers the proceeds of a tax levied to provide for the usual current expenses.”
In the oral argument it was asserted and not controverted that the existing balance of $58,611.64 in the general fund is ample to meet salaries and miscellaneous incidental expenses if the proposed expenditure to raise the dike to the 35½ foot level must be met by a special levy or a bond issue.
In view of the explicit provisions of the statute, it would be the sheerest verbal legerdemain to characterize the proposed improvement as mere repair work which can be paid for out of the general fund. The wherewithal to accomplish it must await a compliance with the statutory provisions pertaining thereto.
And this conclusion logically leads to the question of the county clerk’s duty in the premises. It is suggested that he is a mere ministerial officer who has no concern with the legal questions involved. Even if so, however, he could nevertheless decline to perform a ministerial act requisite to effectuate an illegal act or purpose which other officers vested with discretion were seeking to accomplish. In State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620, it was said:
“A county clerk will not be required by mandamus to perform a ministerial duty when its performance is necessary to give effect to an unlawful act which the board of county commissioners has undertaken, although the board has full responsibility therefor and the county clerk has none.” (Syl. ¶ 1.)
But the statute of 1933 (ch. 309) has imposed upon the county clerk an imperative duty to scrutinize the levies of all taxing authorities. It reads:
“Sec. 21. Any levy which may be certified to the county clerk which is in violation of the provisions of existing statutes, shall be unlawful, and in any such case it shall be unlawful for the county clerk of any county within the state to enter upon the tax roll of the county any such excessive levy; and in case of any such excess in any levy it is hereby made the duty of the county clerk and he is hereby required to reduce such levy and to extend upon the tax roll only such part thereof as will comply with the provisions of existing statutes.”
Section 22 of the same statute declares a breach of this statute by the county clerk (or by any officer of a taxing district) to be a misdemeanor subjecting him to a fine, and'likewise liable to removal from office by a civil action.
In conformity with the duty thus imposed on the county clerk, it became necessary for him to scrutinize with care the budget of the drainage district filed with him. And this budget plainly showed that it was irregular in its inclusion of the item of $75,000 for “improvement projects” which is admittedly intended to pay for the construction of the additional 5½ feet of dike as a charge on the general fund. It is also irregular in that the balance of $58,-611.64 in the general fund was not “carried forward to the credit of said fund for the ensuing year,” as directed by the budget law of 1933. (Ch. 316, § 10.) It is also illegal, as we have already determined, in that this improvement project budgeted at $75,000 should have been provided for by a special tax or bond issue and. not out of the general fund. A tax so fraught with irregularity and illegality cannot be spread on the tax rolls by mandate of this court. (State, ex rel., v. Comm’rs of Phillips County, 26 Kan. 419, 425, and syl. ¶ 2.)
In view of the foregoing, it follows that case No. 31,620 should be dismissed, and in case No. 31,682 the writ prayed for should be denied.
It is so ordered.
Hutchison, J., not sitting. | [
-12,
-24,
-68,
93,
72,
-62,
56,
38,
89,
-79,
-92,
83,
-59,
-126,
12,
125,
-13,
61,
113,
121,
-57,
-74,
39,
106,
-74,
-13,
-7,
-43,
-3,
93,
-12,
-42,
76,
49,
10,
-107,
70,
2,
-121,
-36,
-50,
2,
9,
-58,
-47,
64,
60,
105,
114,
75,
117,
46,
-13,
42,
28,
-61,
104,
44,
75,
-86,
80,
-77,
-66,
-107,
95,
22,
33,
-122,
-104,
-61,
64,
-86,
-104,
49,
0,
-20,
115,
-90,
-122,
117,
45,
-39,
44,
-6,
98,
67,
-75,
-17,
-72,
-120,
46,
-45,
-103,
-25,
-110,
88,
42,
-87,
-106,
-99,
125,
84,
71,
-10,
-18,
5,
95,
108,
7,
-114,
-44,
-93,
-113,
52,
-116,
19,
-21,
35,
48,
112,
-115,
-30,
92,
71,
51,
59,
-41,
-107
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose mechanics’ liens and mortgages and to determine priorities. The trial court held the mechanic’s lien to be prior to the mortgages, and the mortgagee appeals.
Evidence was offered which tended to show the following: The real estate here involved is lots 7 and 8, block 10, Lincoln Heights addition to Wichita. Prior to July 9, 1931, one W. L. Morris was the record owner of the lots. On April 2, 1930, the Fisher-Moore Investment Company, the predecessor of the Noble Mortgage Company, acquired title to property at 719 South Lawrence avenue in Wichita subject to encumbrance. John I. Graham, a contractor and builder in Wichita, was the actual owner of this property, but the investment company held the title to secure it on a note of $2,250. About July 1,1931, Graham was approached by the investment company on a proposition that the lots first mentioned be acquired and houses built thereon. The consideration for the lots was to be paid by the investment company paying Morris $400 and conveying the South Lawrence avenue property free and clear except a mortgage to Wheeler, Kelly, Hagny Investment Company. The title to the lots was to be taken in Graham’s name, and two mortgages of $4,800 each were to be placed on the lots, the mortgages to be first liens. Out of the total amount of $9,600 the investment company was to pay itself the $2,250 note above mentioned and the following October was to pay Morris the sum of $400. The South Lawrence avenue property was conveyed to Harriet Morris, a sister of W. L. Morris, by a deed dated April 9, 1931, and recorded July 14, 1931. The grantee is a sister-in-law of Max A. Noble, president of the defendant mortgage company. When the exchange was first mentioned it was agreed that two houses should be erected on the lots to be acquired, at a cost of $7,500 each, the general plan of the houses being suggested by Graham, but the cost to be determined by the investment company. The investment company was to finance the deal. Graham never put in any money of his own, and all sums expended were furnished by the investment company. After the arrangement was agreed on, time was taken to bring abstracts of title to date, etc., and on July 9, 1931, the lots were transferred to Graham, who at the time executed the mortgages, and at the same time Graham conveyed the lots by warranty deed to the Fisher-Moore Investment Company, subject to the mortgages, as security that he would go ahead and build the houses. On July 7, 1931, without any express consent of Morris or the investment company, Graham started excavation of the first cellar and the con struction thereafter proceeded, the bills, in so far as they were taken care of, being paid by the investment company.
The properties were never fully completed; many mechanics’ lien statements were filed, and the suit was instituted by one lienholder, who made Graham, the other mechanics’ lien claimants and the Noble Mortgage Company, formerly the Fisher-Moore Investment Company, defendants. Issues were joined and the cause was tried. In the court below the principal controversy of fact was as to whether the work was commenced before the mortgages were recorded, and the controversies of law were as to the sufficiency of a part of the lien statements and as to the priority of liens. The trial court refused the appellants’ requested findings of fact and conclusions, and made the following
“Findings of Fact
“1. Prior to July 9, 1931, W. L. Morris was the record owner of the property in question. Following negotiations he sold this property to John I. Graham and on July 9, 1931, executed a deed to the property.
“2. John I. Graham was at and prior to this time a contractor and builder in the city of Wichita. Previous to the execution of the deed he had made plans and arrangements to build two houses upon the property in question and about July 3 had the basement for the north house staked out. At or near that time he contracted with Overstreet & Wilson for excavation of the basements for the two houses. They began work on the excavation for the first, or north house, on the 7th day of July, 1931, and completed that excavation, also the excavation for the south house. The work for both was done under one contract.
“3. Contracts for other work were let by John I. Graham and the work done, material and labor being furnished as set up by the various claimants in this action. In each case there was one contract for the two houses.
“4. At the time of the purchase of lots by Graham there was an exchange of property and adjustment of loans as between Graham and the investment company. The deed was executed to Graham on July 9, 1931, and following that John I. Graham and his wife, Charlotte Graham, made applications for two loans in the sum of $4,800 each, one on the south half of lots 7 and 8 and one on the north half of lots 7 and 8. They executed notes and mortgages for the same on July 9, which were recorded with the register of deeds on July 10, 1931. No part of the principal or interest has been paid. The investment company, in the arrangement, paid $400 in cash to Morris for Graham upon the lots in question. The company credited itself with $2,250 payment of a mortgage held on the property known as the South Lawrence avenue property, which entered into the deal by which Graham.purchased the lots in question from Morris. Following that, the investment company advanced money from time to time as work progressed upon the two houses built by Graham upon the lots in question. The investment company also held, as collateral, a deed to the property from Graham and wife, which was never recorded, but returned to Graham.
“5. Statements for liens as amended and as filed are made a part of these findings.
“6. A lien is claimed by W. A. Cunningham for linoleum and shade's furnished in the two houses. The shades were made to order in special sizes for the various windows, were set back in a recess of the window and were held in place by brackets nailed to the building. The linoleum was an inlaid linoleum cut to fit the rooms and cemented to the floor.
“Conclusions op Law
“1. Construction of the two houses was one enterprise, and the liens claimed should be allowed as first and prior liens upon the entire property and judgment entered foreclosing the same.
“2. The Fisher-Moore Investment Company, now The Noble Mortgage Company, is entitled to judgment foreclosing its mortgages and judgment against John I. Graham and Charlotte Graham, his wife, on the notes for the principal and interest now due; to have a lien upon the premises, inferior only to the liens for material and labor herein allowed.
“3. The property to be sold as provided by law, the proceeds to be applied, first, to the payment of the costs of the action; second, to the payment of taxes lawfully levied against the property in question; third, to the payment of the amounts of the various liens for the material and labor, or if there be insufficient to pay the entire amount, then pro rata upon said amounts; fourth, the balance paid to the owners of the mortgage and notes, or if an excess remain after the payment of same, then that said amount to be paid into court to abide the further order of the court.”.
Judgment was rendered accordingly. The appellant moved the court to set aside certain of the findings of fact and conclusions of law and for a new trial, all of which motions were overruled, and this appeal followed.
Appellant presents and argues five principal questions, which will be noticed.
The first is that the trial court’s finding that work started on the improvement prior to the recording of the mortgages is based on recollection of appellees’ witnesses, unsupported by documentary evidence, while the testimony of appellant’s witnesses is supported by documentary evidence. It is true that appellant’s witnesses in fixing dates made reference to certain documents which enabled them to fix dates, but, with the exception of an assistant building inspector’s notice, the documents had no further bearing. As to the building inspector, he testified as to service of a notice with respect to the contractors doing no more work until a permit was obtained from the city. The abstracts contain photostatic copies of this no tice, showing the dates to have been written over. In addition thereto, cross-examination tended to discredit his testimony. Taken at its best, it showed that the work was under way whenever the notice was served. The appellees supported a part of their testimony in somewhat the same way, although to a lesser degree. Various men employed on the work fixed dates by reference to extraneous matters, some of which were in writing. There was conflict in the evidence which the court resolved against the appellant, there was evidence which supports the finding the work started on July 7,1931, and before the mortgages were recorded. That finding is conclusive here, and the cases so holding are too numerous to mention. (See West’s Kan. Dig. App. & Error, 1010 and 1011. Hatcher’s Digest, App. & Error, 507 and 508.)
The second question discussed is that the lien statements of the plaintiff and of the defendants Cook Paint & Varnish Company and Advance Furnace Company are void because they have not been itemized. No assignment of error is directed against the allowance of the furnace company’s lien, and it need not be reviewed. (See Baden v. Bertenshaw, 68 Kan. 32, 74 Pac. 639; also, rule 5 of this court.) As the claimed error presents substantially the same question as to the others named, it will, however, be considered. The plaintiff’s lien statement did not show his whole account but merely a balance due for brick, in the amount of $360. At the trial he was permitted to amend his lien to show that he furnished 18,000 brick at $20 per thousand, $360. The paint company’s lien statement showed “To Mdse. S. Terrace D'rive Job” and then set out dates and amounts without specifying, whether paint, varnish, putty or whatnot was furnished. At the trial it was likewise permitted to amend to show the specific items. The furnace company’s statement showed a total amount for installation of warm-air registers and wall stacks. Permission was given to itemize the statement by showing hours of labor and unit prices of materials.
Appellant contends that the lien statements could not be amended after four months from the time of furnishing the last materials; that the lien statements prior to the attempted amendments were fatally defective, citing Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236, in support. That case’does not support the contention. There a large amount was claimed, and the balance due was stated merely as a conclusion. In the statements here there was some detailing of items. In the plaintiff’s statement it is true the word “balance” was used, but the proof showed that the claim was for all brick furnished; in the other claims no one could be or was misled. As was said in Nixon v. Cydon Lodge, supra:
“The same objection is made against the statement filed by August Nelson & Co. Their work was done under a contract, and was substantially completed before work on the building was suspended. The materials which they furnished and the work which they did came within the contract price, and there was no necessity for them to separate and state the different elements which entered into their claim.” (p. 303.)
We think the statements as originally filed were so sufficiently itemized that they were not fatally defective; that they were properly amended, and that the trial court committed no error with respect to the allowance of the liens.
The third question discussed is that Graham did not acquire any interest in the property so that mechanics’ liens could attach prior to July 9,1931. In support of its contention that Graham’s interest-in the real estate prior to his receiving the deed and giving the mortgage to appellant was not sufficient to support the liens, appellant relies on Huff v. Jolly, 41 Kan. 537, 21 Pac. 646; Getto v. Friend, 46 Kan. 24, 26 Pac. 473; and White v. Kincade, 95 Kan. 466, 148 Pac. 607. In Huff v. Jolly, supra, Jolly entered into an arrangement with the agent of the owner of the lot to purchase it, the contract to be sent the owner for approval. The contract was without force until approved. Jolly started work and the agent called his attention to the fact no contract was made. The particular contract was never completed and the owner sold to another person, defendant in the action. It was said in the opinion:
“The possession was not taken by them (proposed purchasers) with the consent of the company, nor does it appear that it had knowledge of the possession, or that the improvement was being made. We are not disposed to place a narrow or illiberal interpretation upon the ownership necessary to the creation of a mechanic’s lien (Lumber Co. v. Osborne, 40 Kan. 168), but such a lien can only be created by the voluntary act or sanction of one who is either a legal or equitable owner.” (p. 539.)
In Getto v. Friend, supra, Getto sold a lot to Peavy, who paid $50 cash and agreed to give his note for the balance, secured by a mortgage. It was agreed that Peavy should build a house and give a first mortgage and that Getto’s mortgage should be subject thereto. In so far as attachment of the liens is concerned, the court held that possession of the lot in pursuance of the purchase contract was sufficient to sustain the priority of the mechanics’ liens. The ques tion of the purchase-money mortgage will be later discussed. White v. Kincade, 95 Kan. 466, 148 Pac. 607, is also later discussed.
In Lumber Co. v. Fretz, 51 Kan. 134, 32 Pac. 908, Fretz commenced work on April 26, but did not obtain title until June 2. On June 1 Fretz had executed mortgages. In the opinion a review of earlier decisions is made. It was held that a party in open undisputed possession of real estate, who afterwards received a conveyance of the legal title thereto from the owner, has such title as will enable him to create a mechanic’s lien thereon as against mortgagees and grantees of himself. The question of the priority of the mortgages as purchase-money mortgages was not involved.
In Lumber Co. v. Arnold, 88 Kan. 465, 129 Pac. 178, the sufficiency of title to sustain a mechanic’s lien was again considered, a review of earlier decisions was made, and it was held that where a purchaser of vacant lots under an oral contract by which he agreed to pay part of the purchase price in cash, the balance when the deed was delivered, with the understanding that he was to erect houses on the lots, and took possession of the lots before making the payment and started work, he had such title as would sustain a mechanic’s lien, and Bond v. Westine, 128 Kan. 370, 278 Pac. 12, and Golden Belt Lbr. Co. v. McLean, 138 Kan. 351, 26 P. 2d 274, are to the same effect. (See, also, 40 C. J. 62; 18 R. C. L. 884 et seq.)
It appears here that prior to receiving his deed from Morris, but at a time after the negotiations started, and a considerable time after the date of the deed to the South Lawrence avenue property to Harriet Morris, Graham went into possession and started work on or before July 7, 1931. We are not here concerned that evidence from which a contrary conclusion might be drawn was also offered. The court’s conclusion of law holding in effect that Graham had sufficient title to support the liens from the time he started work was correct.
The fourth question raised by appellant is that the transaction wherein Graham acquired the title to the lots and gave the mortgages was one transaction, and the mechanics’ liens, if they ever attached, attached subject to the mortgages. What has been said above is a sufficient answer.
The fifth question is that appellant’s mortgagés are purchase-money mortgages and are superior to the mechanics’ liens for that reason.
The general rule is that a mortgage given for the unpaid part of the purchase price, simultaneously with a deed for the property and as a part of the same transaction, takes precedence of prior judgments and all other existing and subsequent claims and liens of every kind against the mortgagor. (Foster v. Bank, 71 Kan. 158, 80 Pac. 49, 114 A. S. R. 470, 6 Ann. Cas. 44; Mortgage Co. v. Winters, 94 Kan. 615, 146 Pac. 1012, Ann. Cas. 1916C 956; Kuehn v. National Bank, 117 Kan. 717, 232 Pac. 1060; 41 C. J. 528; 19 R. C. L. 416.) Although it has been held in some cases that purchase-money mortgages are subordinate to liens for work authorized by the vendor or done with his knowledge or consent. (See White v. Kincade, 95 Kan. 466, 148 Pac. 607, Ann. Cas. 1916B 667.) For a note on priority as between mechanics’ liens and purchase-money mortgage, see 72 A. L. R. 1516.
In support of the judgment appellees rely on Shearer v. Wilder, 56 Kan. 252, 43 Pac. 224, and White v. Kincade, supra. In the Shearer case the owner, desiring houses to be built, agreed with a prospective purchaser as to such building, the agreement being that after they were built they would be conveyed free and clear, and a mortgage taken back for the price of the lots and the cost of the improvements. The proposed purchaser built the houses, but did not pay for the materials and labor, and the lots were never conveyed. It was there held that under the contract the purchaser was authorized to contract for the labor and materials and that the laborers and materialmen were entitled to a lien against the property and all the legal and equitable interest of the owner therein. As was said in the opinion:
“The lienors furnished the material and labor which were used in carrying out Wilder’s purpose. He never parted with the legal or equitable title to the land upon which the houses were erected, and now, after they had been erected in accordance with the plans and specifications, and after McCann has surrendered all his rights under the contract to Wilder, it would be a great injustice to allow Wilder to hold the property enhanced in value by the labor and materials of the lienors without paying for such labor and material.” (p. 262.)
While in this case appellees claimed that Graham had conveyed the lots to the investment company, the court found the deed was given as collateral security, was never recorded and was returned to Graham.
In the White case Wiley held a blank unrecorded deed dated December 17, 1910. Kincade, who had been in possession from March, 1911, hesitated about drilling a well which, it was estimated, would cost $4,000, as he had only $1,000 to put in the improvement. Wiley advised him to go ahead and said he would see Kincade through with it or provide for finishing it. The work was started on September 8 and completed October 19, 1911. On October 21, 1911, Kincade’s name was' inserted in the blank deed, and he gave notes totaling $10,776.20, secured by a mortgage on the land, which it was claimed were entitled to priority as a purchase-money lien. In disposing of the contention the court said:
“While the testimony is to the effect that Wiley purchased the land from Dierlcs and had an equitable title to it when the purchase was made by Kincade, and while there is room for an inference from the testimony that the secured notes were given as part of the price of the land, Wiley, according to the evidence, effectually estopped himself to claim priority over the mechanic’s lien. He not only eliminated himself so far as the record title is concerned, but after contracting to sell the land and before the conveyance was made he not only consented, but procured Kincade to make an expensive, improvement on the land. ... A vendor of land who induces one who has contracted to purchase it to expend labor and material in improving the land cannot defeat the claims for a lien of those who contribute their labor and material to enhance the value of this property. In such a case, in the absence of a controlling agreement, he cannot insist that the mechanic’s lien shall be subordinate to his mortgage subsequently given for the unpaid purchase price of the land when the sale is completed and the title transferred. (Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019; Shearer v. Wilder, 56 Kan. 252, 43 Pac. 224; Lumber Co. v. Band Co., 89 Kan. 788, 132 Pac. 992; Hill v. Gill, 40 Minn. 441, 42 N. W. 294; Pickens v. Plattsmouth Inv. Co., 37 Neb. 272, 55 N. W. 947.)” (pp. 468, 469.)
The answers and cross petitions of defendant mechanics’ lien-holders alleged joint enterprise between Graham and the investment company and that the investment company induced, caused and authorized Graham to commence building said houses; that Graham had no money; that the investment company did nothing to prevent Graham from going ahead with the construction, and that it was now estopped from claiming priority of lien. The court made findings of fact, but did not find that there was any such agreement or authorization to commence the building, nor did it make any finding that the investment company was estopped.
In Snodgrass v. Carlson, 117 Kan. 353, 232 Pac. 241, it was said:
“We regard it as well established that when a court sits as a trier of facts and is asked to make findings of fact and does so, in accordance with R. S. 60-2921, he is presumed to make findings of facts upon all questions necessary to sustain the judgment rendered. In such a case the facts found will be pre sumed by this court to embrace all of the facts of the controversy established by proof. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264.) No finding having been made on the question of waiver, and no request for one having been made by appellee, the question was no longer in the case.”
And see, also, State, ex rel., v. Riverside Drainage Dist., 123 Kan. 46, syl. ¶ 5, 254 Pac. 366.
While there was evidence which might have warranted a finding favorable to the contention of the mechanics’ lienholders, there was also evidence to the contrary, and it must be held that the court, having failed to find the facts to be as alleged by the mechanics’ lien claimants and that the investment company was estopped, found to the contrary. It is held that the investment company mortgages, so far as they) are purchase-money mortgages, are superior to the mechanics’ liens.
Directing attention to the question of purchase money, the evidence is undisputed that the lots were purchased for a total consideration made up of $400 cash paid by the investment company to Morris, and representing an agreed equity in the South Lawrence avenue property and the satisfaction of a note for $2,250 owed by Graham to the investment company and secured by a deed to that property held by the investment company. It appears from the record that when the deal was closed and the lots in question were deeded to Graham, the amount due on the $2,250 note was $2,490.62, and this sum plus the $400 cash paid, or $2,890.62, represented the purchase price included in the two mortgages.
In Bond v. Westine, 128 Kan. 370, 278 Pac. 12, it was said:
“It has been held that a mortgage may be divided; that so far as it is a purchase-money mortgage it constitutes a lien on the property prior to other liens, while the part which does not represent purchase money does not. (Pratt v. Topeka Bank, 12 Kan. 670; Greeno v. Barnard, 18 Kan. 518.)” (p. 373.)
And see note 72 A. L. R. 1531, where priority of mortgage for purchase money and additional sum is discussed.
The appellant argues that because a part of its mortgage' represented purchase price, it is entitled to priority on the whole amount advanced, and relies on Martsolf v. Barnwell, 15 Kan. 612, in which case there was no question but that the mortgage was recorded before the work started, and on Seitz v. U. P. Railway Co., 16 Kan. 133, which is not in point here, and on Kantzer v. Southwest Home Investment Co., 128 Kan. 401, 278 Pac. 58. Owing to the way in which that case reached this court, it cannot be said to be controlling here. The plaintiff brought an action to foreclose a mechanic’s lien, a mortgagee asserted priority of mortgage, the court split the mortgage, which was not a purchase-money mortgage, allowed part as a first lien, the mechanics’ liens as a second lien, and the balance of the mortgage as a third lien. The mortgagee appealed and the plaintiff filed no cross appeal. In disposing of the matter the court said:
“In the view that the building was commenced before the mortgage was executed and recorded, there is nothing wrong with this decree of which the mortgagee can complain. Perhaps the first and second liens should have been made coordinate, but there is no cross appeal on that point, and as a practical question it is said to be immaterial.” (p. 402.)
The judgment of the lower court allowing the mechanics’ liens priority was erroneous. The appellant should have been allowed a first lien in so far as the purchase price included in its mortgages is concerned, the mechanics’ liens should have, been allowed as coordinate second liens, and the balance of appellants’ mortgages should have been allowed as a third lien.
The judgment of the lower court is reversed and the cause remanded for further proceedings consistent herewith.
Hutchison, J., not sitting. | [
-12,
25,
-8,
78,
74,
-32,
42,
-39,
120,
-80,
-25,
87,
109,
-49,
5,
109,
-58,
93,
-48,
107,
-91,
-77,
39,
-101,
-46,
115,
-15,
-51,
-71,
-35,
-12,
-41,
76,
32,
74,
-99,
-122,
-128,
68,
28,
-50,
-123,
10,
101,
-35,
64,
52,
123,
100,
73,
17,
-82,
-13,
104,
24,
-54,
76,
46,
-5,
41,
-48,
-7,
-117,
-124,
95,
23,
32,
36,
-102,
69,
88,
10,
-112,
20,
8,
-24,
83,
-26,
-42,
100,
69,
11,
9,
102,
98,
17,
69,
-21,
-16,
-104,
15,
-41,
-115,
-92,
-78,
88,
-126,
41,
-65,
-101,
109,
16,
71,
-10,
-26,
-99,
25,
104,
3,
-113,
-12,
-45,
15,
82,
-103,
-117,
-5,
7,
32,
97,
-53,
34,
95,
2,
123,
59,
-114,
-72
] |
The opinion of the court was delivered by
Thiele, J.:
On May 9, 1931, the defendant E. H. Morrissey executed and delivered his note due in six months to T. I. Mayfield. In the interval between the giving of the note and November 6,1931, defendant Mary Gray, then Mrs. T. I. Mayfield, signed the note. On November 6, 1931, a suit for divorce brought by T. I. Mayfield against his wife, Mary A. Mayfield, was tried in the district court of Barber county, and as a result he was granted a divorce and was ordered to pay the clerk of that court an additional sum of $500 as permanent alimony and $150 as attorneys’ fees within twenty days. On November 9,1931, the due date of the note, or the day thereafter, T. I. Mayfield sold the note to the First National Bank of Medicine Lodge, and on November 23, 1931, an action was brought in the name of the bank against Mary Gray, formerly Mrs. T. I. Mayfield, and E. H. Morrissey, in the city court of Wichita, and garnishment summons was served upon T. I. Mayfield. As a result of adverse rulings, defendant Mary Gray appealed to the district court of Sedgwick county. Before trial there, Wesley Hospital was permitted to intervene and set up a claim based on an assignment of a part of Mary Gray’s judgment. It was also stipulated that the action should be consolidated for trial with another action pending against Mary Gray. On April 30, 1932, the consolidated causes came on for hearing on Mary Gray’s motion to quash the garnishment order, and the court, after hearing the evidence, allowed the motion and quashed the garnishment. From that order and from the order allowing Wesley Hospital to intervene, the bank appealed to this court (No. 30,965). Thereafter the cause was_ tried on the merits, the trial being held in June of 1932 and January of 1933. At the hearing in June, 1932, it developed that the bank had charged the note back to T. I. Mayfield, who was substituted as plaintiff. Other evidence was taken and the cause continued to permit procuring of a transcript of the record in the divorce suit. At the hearing in January, 1933, the transcript was read in evidence, other testimony was heard and the parties given time to file briefs. On March 10, 1933, the cause came on for decision, and the court found in favor of the defendants and against plaintiff and further found that the matters and issues were or should have been adjudicated in the divorce action. T. I. Mayfield appealed from the decisions, orders and judgments to this court (No. 31,388). The appeals are submitted together.
In the first appeal are two specifications of error: (1) quashing of garnishment, (2) permitting Wesley Hospital to intervene. In the second, appellant fails to make any specifications of error, and under rule No. 5 the appeal might well be dismissed.
It may be observed, first, that the court found generally against the substituted plaintiff, T. I. Mayfield, and owing to the fact that there was no consideration shown for Mrs. T. I. Mayfield, now Mary Gray, signing the note long after it was executed and delivered by defendant Morrissey, we cannot say the judgment in her favor was not properly rendered. Appellant argues the matter, though, as if it had been decided on account of the binding force and effect of the judgment in the divorce action. It is clear from the record that he owned the note at the time the divorce action was tried, and that he sold it thereafter and after it was due. He contends that the note represented a separate cause of action and was not taken into consideration by the court or parties when the divorce case was tried and adjudicated.
In Pinkerton v. Pinkerton, 122 Kan. 131, 133, 251 Pac. 416, it was stated:
“In the action for divorce matters of alimony and of the division of property were open to consideration, and if any question was to be raised relating to property they should have been presented and adjusted at that time. In Roe v. Roe, 52 Kan. 724, 728, 35 Pac. 808, it was held that when a divorce is granted dissolving the marriage relation any orders with reference to alimony or division of property desired by either party may then be determined, and the court added:
“ ‘If they may be so considered and determined, and a party neglects to require such determination, the judgment is as full and complete a bar as if the question had been fully tried and determined.’ (See, also, McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546, and cases there cited.)”
The matter was again considered in Noonan v. Noonan, 127 Kan. 287, 289, 273 Pac. 409, and it was said:
“We have frequently held that a judgment of divorce settles all the property rights and obligations of the parties toward each other, and after the divorce is granted no award of alimony can be made or changed; and this rule holds true notwithstanding the circumstances of the parties may have changed. (Mitchell v. Mitchell, 20 Kan. 665; Roe v. Roe, 52 Kan. 724, 35 Pac. 808; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Fusselman v. Fusselman, 122 Kan. 515, 253 Pac. 411. See, also, Pinkerton v. Pinkerton, 122 Kan. 131, 133, 251 Pac. 246; Pague v. Pague, 126 Kan. 405, 267 Pac. 988.) ”
See, also, 1 R. C. L. 940, dealing with conclusiveness of the judgment in a divorce action.
If the appellant wanted the matter of his note considered, he should have presented the matter when the divorce suit was tried. The appellant having failed on the merits of his claim, any error there may have been with respect to the garnishment proceedings is immaterial.
The judgment of the lower court is affirmed. | [
-80,
88,
-12,
29,
10,
-32,
46,
-104,
104,
-79,
-93,
83,
-23,
71,
5,
105,
34,
13,
80,
105,
102,
-77,
39,
-64,
-62,
-13,
-9,
-44,
-71,
-35,
-10,
-41,
77,
32,
66,
29,
-122,
-54,
-57,
24,
-50,
-115,
-87,
-27,
-40,
-118,
52,
107,
-14,
13,
113,
-114,
-73,
43,
61,
67,
107,
45,
-5,
40,
80,
-79,
-117,
4,
125,
22,
-77,
-124,
-108,
7,
-40,
6,
-104,
53,
0,
-24,
18,
-90,
-122,
116,
111,
-119,
9,
118,
98,
49,
5,
-19,
-72,
-116,
47,
-25,
-99,
-89,
-80,
104,
65,
109,
-66,
-99,
119,
17,
-122,
-40,
-23,
29,
25,
100,
0,
-117,
-106,
-109,
31,
126,
-104,
27,
-21,
7,
33,
81,
-113,
-74,
92,
68,
122,
-101,
-34,
-80
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action for wrongful death. The jury answered special questions and returned a verdict for plaintiffs. Defendants moved for judgment in their favor on the answers to spécial questions notwithstanding the general verdict. The trial court sustained this motion, and plaintiffs have appealed.
In their petition plaintiffs allege that their son, Dee M. Dye, a boy of intelligence, in good health, and able-bodied, on the evening of January 9, 1932, was fatally burned by an explosion of denatured alcohol, or some other highly inflammable substance, at a filling station owned and operated by defendants through their employees and agents; that at the time of his death he was working and contributing from his earnings about $10 a week to the support of plaintiffs; that at the gasoline filling station so owned and operated by defendants there were stored highly inflammable and explosive liquids, including gasoline and denatured alcohol, which were stored in tanks or drums; that a part of the service station was a small room about eight feet by eight feet which contained a stove heated by an oil burner with an open flame, in which room were drums or tanks of lubricating oil and a similar drum or tank of denatured alcohol, which containers occupied a large part'of the room; that the filling station attendant carried pop, candies, and similar merchandise; that the deceased on several occasions had visited the premises for the purpose of buying such merchandise, and at the time of the explosion which caused his fatal injuries was on the premises as an invitee; that defendants invited the public to use the premises, including the building in which denatured alcohol and other explosive liquids were stored; that near the building was stored liquid of a highly inflammable and explosive nature; that defendants and their attendants and employees were aware of the dangerous character of the denatured alcohol and other liquids, and that it was dangerous to permit any of such liquids to be exposed where they might come in contact with flame, or permit them to leak out, or to be exposed, and that by reason of the nature of such liquids and their dangerous character the duty rested upon defendants and their employees to use the highest degree of care in protecting the public, including the deceased; that in violation of such duty the servants and agents of defendants, particularly one Bruce Romac, permitted denatured alcohol or other highly explosive liquids, to run out upon the floor while the deceased was in the room; that such servant and agent knew the liquid was upon the floor and other exposed surface and neglected to wipe up or remove the same, but permitted it to remain and throw off gas fumes in the air; and shortly thereafter,' while deceased was present, the attendant lighted a cigarette, from which open flame, or the open flame in the stove, an explosion occurred, which explosion enveloped the deceased in flames, from which he was fatally burned; that defendants were negligent in failing to keep such explosive liquids in proper containers safe and free from open flames, in failing to prohibit smoking on the premises, in maintaining a fire with an open flame in the building, in failing to wipe up and remove exposed denatured alcohol or other inflammable liquid from the floor or other exposed surfaces, in striking a match and lighting a cigarette on .the premises while the highly explosive and dangerous liquid was exposed and giving off gas fumes, and in failing to maintain a safe place to which the public had been invited by defendants to come.
The answer denied the negligence alleged by plaintiffs, and expressly denied that the deceased at the time of the explosion was on the premises of. defendants by reason of any invitation by the defendants or .their servants, either express or implied, but alleged that he was there without right, invitation, permission, or license, and for his own pleasure and convenience; that he had come upon the premises to loaf, and was loafing, contrary to rules of defendants, of which the deceased had knowledge. The answer further pleaded specific acts of negligence of the deceased which caused the-explosion and resulted in his injury. The reply was a general denial:
The jury returned a general verdict for plaintiffs for $750 and answered special questions as follows:
“1. State whether the defendants had a rule forbidding filling station attendants to allow persons to loaf in the defendants’ station. A. Yes.
“2. If you answer question No. 1 in the affirmative, state whether Dee Dye had knowledge that loafing was not allowed in defendants’ station. A. Yes.
“3. If you answer question No. 2 in the affirmative, state whether the death of the deceased was the result of his violation of said rule. A. Yes.
“4. On the night of the accident, was Dee Dye at the filling station of defendants on any business connected with the business carried on there by the defendants? A. No. . . .
“6. At the time of the accident, did the defendants have for sale at this station, soda pop, candy, gum confections or neckties? A. No.
“7. State whether Dee Dye became aware that denatured alcohol had been spilled on the top of an alcohol drum or on the floor in the station shortly before the accident. A. Yes.
“8. If you answer question No. 7 in the affirmative, state whether Dee Dye had been smoking a pipe in the station after becoming aware of the spilled alcohol. A. No.
“9. State what caused the explosion. A. Combustion of fumes from exposed denatured or radiator alcohol caused by lighted match.
“10. If you find that the explosion was caused by the act of some person, state: (a) Who that person was. A. Bruce Romac. (b) What that person did. A. Lighted a match.
“11. Do you find that the defendants were guilty of any negligence? A. Yes.
“12. If you answer question No. 11 in the affirmative, state what that negligence consisted of. A. Attendant’s neglect in not wiping up spilled alcohol.
“13. State whether the defendants had a rule forbidding persons to smoke in the defendants’ stations. A. Yes.
“14. If you answer question No. 13 in the affirmative, state whether Dee Dye had knowledge that smoking was not allowed in the defendants’ station. A. Yes.
“15. If you answer question No. 14 in the affirmative, state whether the death of the deceased was the result of his violation of said rule. A. No.”
As this case is presented to us, broadly speaking, there is but one question for our determination, namely, Are the special questions and answers thereto so in conflict with the general verdict that the latter cannot stand? (R. S. 60-2918; Commerce Trust Co. v. Pioneer Cattle Loan Co., 120 Kan. 712, 244 Pac. 840; Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611.) In determining that question we look to the pleadings, the special questions with their answers, and the general verdict. (Atyeo v. Leidigh & Havens Lbr. Co., 136 Kan. 818, 819, 18 P. 2d. 118.) The transcript and abstract of the testimony are not important (Richards v. Kansas Electric Power Co., 126 Kan. 521, 526, 268 Pac. 847), for the facts are to be considered ;as having been found by the jury in so far as questions relating to such facts were submitted to the jury. The controversy raised by the pleadings as to who caused the explosion is answered by the finding that it was caused by defendants’ employee, Bruce Romac, by lighting a match. It is also determined that the explosion was a combustion of the fumes of exposed denatured or radiator alcohol, and that defendants were negligent in that their employee neglected to wipe up spilléd alcohol.
The answers further show that defendants had a rule forbidding persons to smoke in the station; that the deceased, Dee M. Dye, knew smoking was not allowed there, and he also knew that depastured alcohol had been spilled on the drum and floor of the station-shortly before the accident.
The, jury further found that defendants did not have for sale at the station soda pop, candy, or similar merchandise. It further found that defendant? fiafipa, rule forbidding their attendants to allow persons to loaf-.ip thg»,filling station; that the deceased had knowledge that loafing-was not allowed there, and that his death was the result of his violation of that rule; and further specifically found that the deceased was not at the filling station on any business there conducted by defendants. This finding disposes of appellants’ contention that the deceased was on the premises as an invitee. (Kurre v. Graham Ship By Truck Co., 136 Kan. 356, 15 P. 2d 463.) He was there, in fact, in opposition to the wish of defendants, of which opposition he was well aware.
In the law relating to liability for negligence it is fundamental that one, even though negligent, is not liable to another to whom he owed no duty. (45 C. J. 639; 20 R. C. L. 9-11.) Certainly, under the situation here found, defendants owed the deceased no duty on which a liability for their negligence could be predicated. In order to conduct the business in which they were engaged the defendants necessarily carried in stock highly inflammable fluids. They prepared a small room in which to keep some of these, and to avoid possibility of injury to others had made it known that loafing -on the premises or in this room was .not permitted, and the- deceased was well' aware of that rule. The deceased was an intelligent boy seventeen years of age. There is no- intimation in the pleadings or the findings that he did not know the dangerous character of these fluids, and it is specifically found that he did know he was not permitted to loaf on those premises. We are unable to see that defendants owed to the deceased any duty that would make them liable, even though they were negligent. In determining this specific question we are dealing with negligence, not with willful injury, for there is no question of willful injury in this case.
It is argued by appellants that notwithstanding what has been said defendants’ employee, the station attendant, permitted the deceased to loaf on the premises and in the room wherein inflammable liquids were stored; that defendants’ employee, Bruce Romac, permitted the deceased to loaf there, although both of them knew it was in violation of defendants’ rule, and that defendants’ employee lighted a cigarette knowing it was against the rules of defendants to smoke on the premises, a fact which the deceased also knew; and it is argued that the violation by the defendants’ employee of these provisions imposes a liability upon defendants. With this contention we cannot agree. This action is not against the attendant, Bruce Romac-; it is against the owners of the filling station and the employers of Romac. It is not contended nor found that the defendants knew the deceased was loafing on the premises in violation of their rules, or that Romac was smoking cigarettes on the premises in violation of their rules. In this respect the rule announced in Mayhew v. DeCoursey, 135 Kan. 184, 10 P. 2d 10, applies. It was held:
“Where a truck driver without authority from his employer so to do permits one not employed to ride his truck, and the one permitted to ride is injured by the negligence of the driver, the employer of the truck driver is not liable even though the negligence of the driver was wanton.” (Syl. ¶ 2.)
In the Restatement of the Law of Agency of the American Law Institute, section 242, the rule is thus stated:
“A master is not subject to liability for the conduct of a servant towards a person harmed as the result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master’s premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant’s employment.”
And in the comment thereon it was said:
“The rule stated in this section is applied most frequently where a servant intrusted with the custody of a vehicle, without authority or apparent authority to do so, permits or invites persons to ride thereon. The rule applies also, however, to persons entering land with the permission of an employee. It applies as well to persons who, although not upon the employer’s land or vehicle, are harmed because they have solicited or accepted the unauthorized invitation of the servant.”
So, even if the record of this case disclosed that the employee, Romac, permitted the deceased to loaf on the premises, that permission was unauthorized by his employers, the defendants in this case; and, more than that, the deceased knew it was unauthorized. In this case the facts found by the jury show as a further reason for nonliability of the employers the fact that the act of the attendant which caused the éxplosion was one which was unauthorized and forbidden by his employers, the defendants here, a fact well known to the deceased.
Appellants argue that denatured-alcohol is so inflammable and explosive that it should be put upon the same plane with reference to the care with which it is handl<=!jl as nitroglycerine and other high explosives and high-power .electric .currents; hence, that defendants were under the duty of exercising the highest degree of care with respect to its storage and. handling. Cases are cited by appellees in opposition to. this view. We do not regard the argument as especially important in this case, nor find a necessity for a careful determination of it. For the purposes of this case it may well be conceded that whatever the degree of inflammability of denatured alcphol or other fluids kept by defendants may have been, it was the duty of defendants to use that degree of care commensurate with the 'danger involved in their storage and use. The findings disclose that defendants used that care, at least to the extent of forbidding loafing on the premises or smoking thereon — facts well known to the deceased. This explosion and. resulting injury did not occur because defendants had not taken that care, but rather because the deceased would not conform to the safety measures provided by defendants. In answer to question 3 the jury specifically found that the death of the deceased was the result of his failure or refusal to conform to rules made-by defendants designed for the safety of himself and others.
In view of the facts found by, the jury, and the law applicable thereto, there was no liability “on defendants, and the trial court correctly entered judgment for them on the answers to the special questions notwithstanding the general verdict.
The judgment of the court below is affirmed.
Hutchison, J., not sitting. | [
-16,
-20,
124,
-115,
58,
97,
122,
-102,
87,
-95,
-91,
115,
-23,
-37,
13,
39,
-1,
125,
80,
121,
-93,
-73,
23,
74,
-38,
-13,
57,
-59,
-79,
73,
126,
-33,
12,
32,
10,
-107,
-26,
64,
-57,
-34,
-126,
29,
-87,
-32,
91,
18,
52,
122,
102,
15,
113,
14,
-29,
42,
30,
-49,
73,
60,
121,
-81,
64,
-79,
-127,
-123,
-81,
18,
-96,
66,
-98,
-27,
-40,
26,
-103,
-79,
48,
-24,
51,
-92,
-121,
-12,
39,
-119,
12,
-32,
-29,
1,
5,
-17,
-20,
-119,
47,
-114,
-115,
-89,
56,
89,
43,
42,
-100,
-99,
122,
48,
-97,
112,
-6,
85,
95,
44,
3,
-113,
-74,
-79,
-49,
56,
-100,
-117,
-53,
-89,
50,
117,
-35,
-88,
92,
69,
86,
91,
-57,
-102
] |
The opinion of the court was delivered by
Johnston, C. J.:
This is an action to recover damages under the federal employers’ liability act. Harvey J. Harper was an employee of the C. R. I. & P. Rly. Co., an interstate railway operating through several states. He was a section man and worked on a section which had its headquarters in Kanorado and included a track extending into both Kansas and Colorado. The track gang worked in pairs, and on August 14, 1931, Harper and a coemployee named Harold Ingram were engaged in taking out old and defective ties and replacing them with new ones, one of them using a pick to loosen the gravel, chat or ballast, in order to remove the old tie, and the other using a shovel for moving the loosened ballast. While so engaged, Ingram using the pick and Harper the shovel, Ingram struck a blow with the pick which caused a piece of chat or gravel to fly out and strike the plaintiff in his right eye, which was so bruised and infected that it had to be removed on August 29, 1931. It is alleged that the work was done carelessly and negligently, which entitled the plaintiff to maintain an action against the company for the injury sustained.
In his petition plaintiff, after stating the occurrence of the accident, alleged in substance that while engaged in the regular course of his duties in cleaning out with a shovel a place where an old crosstie had been removed, so that a new crosstie could be laid under the rails in its place, his coworker, carelessly and ' negligently and without warning, struck a pick into the chat or gravel of the roadbed, precipitating a piece of chat, or gravel, which struck plaintiff’s right eye. He further alleged that while he was so at work he was in a position of peril, and that Ingram, by the exercise of ordinary care, should have known that when he struck a pick into the chat or gravel it would cause injury.
In its answer the railway company states that Harper was experienced in the work in which he was engaged at the time of the injury, and that the risks as stated by plaintiff were well known to plaintiff and incident to his employment. Further, the plaintiff knew of the conditions surrounding his employment and the work upon which he was engaged, and by the exercise of care on his part he knew or could have known of the dangers to which he was exposed and thereby assumed the risks of the employment. Defend ant added, also, that the accident resulted solely and proximately through the want of ordinary care on the part of plaintiff himself.
Upon the evidence submitted on the issues so formed by plaintiff, defendant interposed a demurrer to the evidence upon the principal ground that it and all inferences properly deducible therefrom failed to show a cause of action in favor of plaintiff and against defendant. The demurrer was sustained, and the plaintiff brings the case here upon appeal.
The main question raised is whether by the character of the work and the way it was conducted, in which the plaintiff was injured, the defendant became liable for damages by reason of negligence of a coemployee, or whether under the federal employers’ liability act the risk of the employment was assumed by the plaintiff. Under the federal act an employee ordinarily assumes the usual and obvious risks incidental to his employment, and the assumption of the usual risks of his employment is ordinarily not a jury question. It is a matter of law. (Lively v. Railway Co., 115 Kan. 784, 788, 225 Pac. 103.)
Only two witnesses were produced by the plaintiff, that is, himself and his coworker. The plaintiff testified in substance that he and Ingram alternated at their work — part of the time he used the pick and part of the time the shovel, and when he used the pick Ingram used the shovel. The plaintiff was using the shovel at the time of the accident, and Ingram the pick. They were replacing an old tie with a new one. He said that Ingram was standing astride the north rail while he was using the pick to loosen the ballast, and plaintiff was astride of the south rail. The rails were four feet and eight and one-half inches apart, and at the time the two workmen were only about two and one-half feet apart. Plaintiff said that Ingram'had been using the pick for a time and that he appeared to stop and straighten up as if to rest, and when he stooped over to use the shovel Ingram again struck into the ballast without saying anything to him or giving any warning that he was going to resume the use of the pick, and that a particle of the chat or gravel struck his eye and caused the injury for which the action was brought. At another time in his evidence he said that Ingram seemed to stop to get his breath or to rest before plaintiff leaned over to use the shovel, when Ingram resumed his work and the fragment struck his eye.
Ingram testified that he didn’t remember that he stopped to rest and that he was doing his work in the usual way, but did say that he might have done so. He stated that before starting to use the pick, if the coworker was too close, he would tell him to get out of the way, and that it was the custom that if a coworker was in a place of danger, to give him warning. While the workmen were very close together the pick did not strike or touch the plaintiff. Ingram further testified that to a certain extent the man using the shovel should watch the man handling the pick, and that it was not the custom for the man handling the pick to look around towards the other man every time he drove the pick into the track. He further said that when he actually stopped to rest he would, before starting again, look to see if it was safe to proceed, but that he was unable to recall that he stopped to rest at the time of the injury to plaintiff. He further testified that fragments fly when a pick is struck into the gravel and chat, and that he had been struck frequently by fragments when his coworker was using the pick and he following with the shovel.
This case having been brought under the federal employers’ liability act, the federal rule as to the assumption of risk must be applied. In such a case the defense of assumed risk is permissible, and under that rule the plaintiff assumes the risks ordinarily incident to his employment, and where the risks are open and obvious and can be seen at a glance or are fully known he assumes the extraordinary risks as well. (Delaware, &c., R. R. Co. v. Koske, 279 U. S. 7, and cases cited.) Where the facts are disclosed by the evidence of plaintiff, it is ordinarily not a jury question, but is one of law for the determination of the court.
Plaintiff was shown to be a man of mature years and of abundant experience in the work he was engaged in at the time of the injury. He and Kis coworker admitted that fragments would fly when the pick was driven into the hard ballast of the track, and both had been struck frequently by such fragments. Besides it was a matter of common knowledge that a pick driven against a hard roadbed would cause particles of the ballast to fly around. ’ The work itself was of the simplest kind and the tools used were primitive and simple. It would be hard to find tools or plan of work in any human activity more free from complexity or intricacy than those involved in this case.
In Darbe v. Crystal Ice & Fuel Co., 129 Kan. 727, 284 Pac. 596, involving the simple-tools doctrine, a pair of tongs for handling ice were said to be not sharp pointed and therefore defective, so that the cake of ice slipped and caused injury. The decision was that:
“The proceedings considered in an action for damages for personal injuries resulting from use of dull ice tongs, and held, the tool was so simple and the claimed condition was so obvious that plaintiff, having the experience and capacity for comprehension disclosed by the record, should have known and appreciated the risk.” (Syl.)
Where a plaintiff working as the helper of a machinist was injured while holding a torch for the machinist, in that he was struck in the eye by a chip of steel which flew from the chisel used by the machinist, and the plaintiff contended that the failure of the employer to inform him of the danger of the process and of the work at the place was negligence, it was held that the plaintiff was familiar with the tools and place of work, and the fact that chips or particles of steel would fly from a chisel could not have escaped his observation, and that the risk was assumed by plaintiff. (Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720.)
Plaintiff contends that Ingram was negligent in not having warned him that he was about to use the pick. However, he was in the place he had occupied when Ingram had been using the pick and appears to have' remained there until the fragment struck him. Regardless of whether Ingram actually straightened up and momentarily ceased to swing the pick, the plaintiff, who was within two* and one-half feet of him, could easily have observed that Ingram was about to swing it again and, as we have seen, the one using the pick was not expected to look about for the shoveler and issue a warning to him every time he swung the pick. The workmen were in such close proximity to each other that if plaintiff had been giving any attention to the work or had exercised any prudence for his own protection, he could not have failed to observe that Ingram was still using the pick.
Under the testimony produced by plaintiff, the risks, such as they were, were incidental to the employment and were assumed by plaintiff. The trial court rightly held that plaintiff had failed to establish a cause of action against defendant, and its ruling sustaining the demurrer to plaintiff’s evidence and in giving judgment for defendant is affirmed.
Hutchison, J., not sitting. | [
-76,
122,
-76,
-115,
24,
98,
58,
26,
81,
-95,
-89,
83,
-83,
-113,
9,
99,
-29,
63,
-47,
43,
-10,
-77,
87,
-6,
-110,
-109,
113,
-57,
-103,
90,
-28,
86,
76,
48,
10,
21,
-26,
-54,
-59,
28,
-118,
36,
-86,
-18,
57,
64,
60,
122,
-106,
95,
17,
-98,
-13,
42,
28,
-57,
12,
61,
-1,
-88,
-48,
113,
-109,
5,
116,
16,
35,
0,
-100,
39,
-48,
63,
-104,
-79,
-127,
-24,
114,
-90,
-45,
-12,
37,
-103,
64,
98,
98,
33,
21,
-89,
44,
-104,
14,
-70,
-113,
-27,
-80,
24,
51,
15,
-99,
-99,
-102,
22,
6,
110,
-21,
77,
29,
44,
-127,
-117,
-76,
-93,
-113,
36,
-100,
59,
-53,
33,
20,
100,
-60,
-94,
94,
7,
-46,
31,
-97,
-98
] |
The opinion of the court was delivered by
Smith, J.:
This was a petition for a writ of habeas corpus brought originally in the district court. Judgment was for the respondent denying the writ. The petitioner has appealed.
About many of the facts there is no dispute. On July 16, 1941, petitioner was incarcerated in the Missouri state penitentiary following his conviction of burglary and grand larceny and his sentence to be confined there for a term of eight years. While serving that sentence he was taken before the federal court in Missouri, where he entered a plea of guilty to a violation of the Dyer Act. He was then sentenced to a term of fiv’e years in a United States penitentiary with a provision that this sentence should be served concurrently with the sentence to the Missouri state penitentiary. On October 27, 1942, petitioner was taken from the Missouri state penitentiary and brought into federal district court in Kansas, where he pleaded guilty to three indictments charging violations of federal statutes.
On Indictment No. 2222 he was sentenced to serve a term of confinement of one year and one day, the term to be consecutive to the eight-year term in the Missouri state penitentiary. On Indictment No. 2223 he was sentenced to a term of five years, this sentence to run consecutively to' the term of one year imposed in Case No. 2222. This sentence was suspended and petitioner placed on probation. On Indictment No. 2260 petitioner was sentenced to a five-year term in the federal penitentiary at Leavenworth on each of two counts, the sentences to run concurrently with each other and concurrently with the sentence in Case No. 2223. Execution of that sentence was suspended and petitioner was placed on probation.
It will 'be seen that the net result of the sentences in Kansas as far as actual confinement is concerned was to provide for confinement in the federal penitentiary at Leavenworth for a year and a day, which confinement was to begin at the end of the sentence then being served by petitioner in the Missouri penitentiary. In addition for a period of ten years defendant would be on probation by the federal court of Kansas after he finished serving the sentence of a year and a day.
Immediately following these sentences petitioner was returned to the penitentiary in Missouri to finish his sentence there. While the petitioner was serving this term a complaint was filed by the prosecuting attorney of Greene county, Missouri, charging petitioner with an assault upon the jailer of the Greene county jail with a deadly weapon with intent to kill while in the act of escaping from the county jail. It was charged that the crime was committed May 17, 1941, while petitioner wa's in the jail for safe keeping awaiting trial of the burglary and larceny charge. The warrant on the charge of assault with a deadly weapon was issued by a justice of the peace of -Greene county on March 13, 1945, almost four years after the crime of assault with intent to kill was alleged to have been committed. It was sent to the warden of the Missouri penitentiary shortly after its issue, that is, March 13, 1945, and was by the warden of that institution served upon petitioner. No other steps were taken under it to afford petitioner a preliminary examination or trial and he has never had a preliminary examination on that charge. While petitioner was serving the eight-year sentence in the Missouri penitentiary the governor of Missouri gave him a conditional commutation of it so that it would end December 8, 1945. On the day that he was to have been released from the Missouri penitentiary he was delivered to the United States marshal and taken to the penitentiary at Leavenworth to serve the sentence of a year and a day which had been imposed by the federal court of Kansas. This incarceration began December 8, 1945, and with good time 'earned in that institution he was released on a conditional parole September 1, 1946. At the door of the federal penitentiary he was arrested by the sheriff of Leavenworth county, Kansas, by virtue of the warrant from the justice of the peace of Greene county, Missouri. Later a governor’s warrant was issued by the governor of Kansas in response to a request for such by the governor of Missouri.
It will be remembered that ‘the sentence of a year and a day was given petitioner by the federal court of Kansas upon the first indictment and that sentences aggregating ten years were imposed on the other two indictments but it was ordered that petitioner should be placed upon probation in each of those cases so that upon the completion of the sentence of a year and a day., which occurred September 1, 1946, the status of petitioner was changed from being confined in the federal penitentiary to being on probation under the supervision from the federal court for Kansas.
Application was made by petitioner to the district court of Leavenworth county, Kansas, for release on the ground that he was being wrongfully held by the sheriff. That application for a writ was denied by the judge of the district court of Leavenworth and the petitioner has been held in the county jail at Leavenworth awaiting the outcome of this appeal.
The purpose of the petitioner asking for this writ is to prevent his being returned to Missouri to be tried on the charge of assault with a deadly -weapon with intent to kill. It will be remembered that the governor of Missouri commuted petitioner’s eight-year sentence so it would expire December 8, 1945, and that following this commutation he was delivered into the hands of the United States marshal and taken to be incarcerated in the United States penitentiary at Leavenworth under the sentence of the federal judge for Kansas. Petitioner contends in. this proceeding that when the governor of Missouri commuted his sentence and permitted the federal authorities to take him from Missouri to Kansas that he was not a fugitive from justice in Kansas. We are unable to agree with the argument of petitioner in that respect.
In re Martin, 142 Kan. 907, 52 P. 2d 1196, involves a situation somewhat analogous to this. There the petitioner sought to prevent his return to Texas to stand trial on a state charge. He alleged he had been held by the authorities in Texas and had been delivered to the federal authorities for trial and later for incarceration in Kansas, and that at the end of the incarceration in Kansas, Texas desired to have him returned there for trial upon an indictment found before his being delivered to Kansas. In dealing with the question we are here discussing we said:
“There is no showing that petitioner was pardoned by the governor of Texas previous to his removal to Kailas by the federal authorities; it is claimed only that the mere fact he was tried in the federal court after being convicted in the state court amounted to a waiver to further prosecute him ' on a pending indictment in the state court of Texas. That result certainly does not follow, for had he been confined in Texas under the federal sentence, upon his release the state authorities could have held him for trial on the indictment on which he had not been tried. As we view the matter, to constitute petitioner a fugitive from justice, it was not necessary to show he had voluntarily fled from the state of Texas to avoid prosecution on an outstanding indictment. Unless he was released from further prosecution by pardon of the governor of that state, or as a necessary consequence of some requirement of law, the cause of his leaving and the manner in which he left were immaterial, if in fact an offense had been committed within the demanding state and he kept himself out of that state. There is no showing that he ever was taken from the state of Texas under such circumstances that that state could not at an appropriate time demand his return.” (p. 912.)
See, also, State, ex rel. Shapiro, v. Wall, 187 Minn. 246, 244 N. W. 811, 85 A. L. R. 114.
Petitioner cites and relies on In re Jones, 154 Kan. 589, 121 P. 2d 219. The case is not in point here because there the petitioner was delivered to the federal authorities for incarceration in . another state after his sentence to the state penitentiary had been commuted by the governor ¡of the state. When he finished his sentence in Kansas, Louisiana sought to have him returned there to finish serving the sentence, which had been commuted. In referring to In re Martin we said:
“Since, however, appellants so strenuously contend the decision in the Martin case is controlling in the instant case, we shall observe one outstanding fact which clearly distinguishes that case from the instant one. While in the Martin case the state of Texas was demanding Martin’s return from this state after his federal sentence, imposed in Texas, had been served in the federal penitentiary of this state, that state was demanding Martin’s return for trial in Texas upon an alleged offense against the laws of that state, which offense was entirely separate and distinct from the state offense for which Martin previously had been sentenced to the state penitentiary by the state of Texas.” (p. 596.)
Petitioner next argues that under the Missouri statute he should have been tried during the two terms .of court next following the date on which'the warrant was served upon him and the fact that he was then in the Missouri penitentiary is immaterial under the statutes of the state. In that connection the petitioner points out that the statutes of Missouri as requiring a speedy trial are somewhat similar to our statutes upon which we passed in Nicolay v. Kill, 161 Kan. 667, 170 P. 2d. 823. Respondent points out here this point is raised in this court for the first time; that it was not raised in the court below, and hence the trial court had no opportunity to pass upon it and it cannot be raised in this court for the first time on appeal. We note that the only specification of error made by the petitioner is that the court erred in not sus-' taining his petition “for his discharge from the illegal retention and restraint of the liberty” by the respondent. Moreover, the statute in question is a statute of limitations. See State, ex rel. Stevens v. Wurdeman, 295 Mo. 566. Whether or not it has run so as to prevent the trial of petitioner is a matter of defense, which should be raised by him on his trial. In Biddinger v. Commissioner of Police, 245 U. S. 128, the court said:
“The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases, United States v. Cook, 17 Wall. 168; and the form of the statute in Illinois, which the appellant seeks to rely upon, makes it especially necessary that the claimed defense of it should be heard and decided by the courts of that State.” (p. 135.)
See, also, State ex rel., Kollman v: Johnson, 184 Minn. 309, 238 N. W. 490, 77 A. L. R. 899.
Following the foregoing and analogous authorities we refrain from passing on this question.
Petitioner next argues that when he finished his sentence of a year and a day in the federal penitentiary of Kansas he was then at liberty on probation from the federal court of Kansas and cannot be prosecuted for any other crime while he is thus under the wing of the federal court. In this connection he relies upon Grant v. Guernsey, 63 F. 2d 163. That was a case where a party in Kansas pleaded guilty in federal court to a violation of the federal banking laws and was sentenced upon the charge and released upon probation. While he was thus at liberty on probation the county attorney of the county where the crime had been committed sought to prosecute him for violation of the state statutes. The federal court held that he could not be so prosecuted. The Guernsey case seems to turn upon the fact that no request had been made to the federal court for release of its jurisdiction and control over Guernsey so that he could be tried by the state court. The court also pointed out that it was not clear as to whether the federal court would be compelled to release or whether it was discretionary. Regardless of the holding in the Guernsey case we prefer the rule announced in In re Andrews, 236 Fed. 300, where it was held that the question of which •court should have the custody of a defendant was one of comity Between the two governments and not a personal right of the prisoner and could not be raised by him.
See, also, Wall v. Hudspeth, 108 F. 2d 865, where it was said:
“When the court of one sovereign takes a person into its custody on a ■criminal charge he remains in the jurisdiction of that sovereign until it has been exhausted, to the exclusion of the courts of the other sovereign. That rule rests upon principles of comity, and it exists between federal and state •courts. Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879; Grant v. Guernsey, 10 Cir., 63 F. 2d 163, certiorari denied 289 U. S. 744, 53 S. Ct. 688, 77 L. Ed 1491. But either the federal or a state government may voluntarily surrender its prisoner to the other without the consent of the prisoner, and in such circumstances the question of jurisdiction and custody is purely one of comity between the two sovereigns, not a personal right of the prisoner which he can assert in a proceeding of this kind. Ponzi v. Fessenden, supra; In re Andrews, D. C., 236 F. 300.
“The record is silent in respect to the manner in which petitioner passed ■from the custody of the state into that of the federal government. Petitioner invokes the rule that once a condition is established it is presumed to continue until the contrary is shown. He argues that since at the time the sentence here in question was passed upon him he was serving a long sentence in the state penitentiary, it must be presumed that he was still serving that sentence when the commitment issued out of the United States Court and he was taken into custody under it. But that general presumption must yield to another which has specific and controlling application here. Public officials are presumed to do their duty, not to act in an unauthorized manner. It must be presumed that the federal officers secured custody of petitioner in a lawful manner, not that they took him by force or otherwise violated the rights of the state in respect to its custody of him. It must be presumed that the state voluntarily surrendered him in some manner. If so, the question of his custody is one of comity between the two governments, and petitioner has no voice in it.” (p. 866.)
There is no record here as to the manner in which the custody of the prisoner passed from the warden of the state penitentiary of Missouri to the federal authorities. It has all the appearances of a cooperative plan between the officers of two governments to see that there should be orderly prosecution of the petitioner. Furthermore, he appears to have been delivered'by the authorities at the federal penitentiary at Leavenworth to the agent of the governor of Missouri.
We find there is no error in the record and the judgment of the trial court is affirmed. | [
48,
-22,
-7,
126,
10,
-63,
42,
-104,
122,
-5,
-28,
115,
-23,
30,
5,
121,
59,
43,
81,
121,
-62,
-105,
87,
-63,
-110,
-13,
-39,
-43,
59,
95,
-12,
-44,
76,
116,
10,
-107,
38,
-46,
71,
92,
-50,
5,
-119,
-47,
-47,
0,
56,
107,
30,
14,
-111,
30,
-21,
46,
24,
-38,
-95,
44,
-37,
-87,
-39,
-71,
-101,
31,
-7,
54,
-95,
-126,
-108,
7,
80,
46,
-104,
17,
1,
-24,
-47,
-112,
-122,
116,
103,
-87,
44,
38,
98,
-93,
-3,
-50,
-88,
-88,
30,
114,
-115,
-89,
-112,
88,
66,
-28,
-98,
-103,
127,
20,
47,
-8,
-27,
37,
85,
108,
15,
-113,
-72,
-111,
15,
121,
-118,
-5,
-13,
33,
-96,
97,
-52,
-94,
92,
71,
123,
-103,
-114,
-104
] |
Prager, J.
Affirmed. | [
116,
110,
-75,
-33,
74,
32,
8,
-100,
-30,
-52,
6,
115,
-21,
-30,
20,
81,
50,
-33,
-108,
-29,
-106,
50,
-13,
-111,
-9,
-13,
-72,
-43,
-79,
92,
-89,
-52,
76,
-80,
-61,
-35,
102,
-54,
-51,
4,
-58,
15,
-72,
121,
-40,
65,
52,
99,
-44,
-53,
49,
-106,
-61,
108,
27,
-57,
-84,
52,
106,
-67,
2,
-7,
-103,
-114,
-55,
5,
-109,
38,
56,
66,
-48,
14,
28,
57,
12,
-120,
115,
-74,
-46,
-44,
51,
-24,
-120,
100,
104,
51,
60,
-28,
32,
-111,
79,
-33,
-113,
-114,
59,
89,
-56,
58,
-66,
-65,
-96,
-80,
15,
46,
-15,
-42,
63,
-84,
26,
-113,
-42,
33,
-57,
124,
-100,
-57,
-17,
65,
-112,
52,
-63,
16,
92,
-42,
81,
-21,
-33,
-90
] |
The opinion of the court was delivered by
Wbdell, J.:
This is an appeal by the defendant from a conviction of murder in the second degree.
The charge was that appellant committed the murder of one Roy Meredith Cole by means of a firearm, to wit, a shotgun. This is the second appearance of the case in this court. (State v. Owen, 161 Kan. 361,168 P. 2d 917.) Following our opinion on the first appeal the appellant, upon request, was given leave to file an amended abstract in order to show he had filed a motion for a new trial. Having made that showing here this court allowed a rehearing. In their former brief and oral argument before this court counsel for appellant claimed certain errors including the admission of testimony and misconduct of the county attorney on cross-examination of appellant and in his argument to the jury. The motion for a new trial discloses alleged misconduct of the county attorney was not included as a ground for a new trial.
Counsel for appellant who argued the case here frankly conceded the only contention he was now making was that the trial court erroneously admitted in the state’s case in chief, over his objection, evidence of appellant’s conviction of the'murder of a woman with a revolver twenty-eight years previously. Appellant’s counsel objected to the testimony when offered by the state in its case in chief on the grounds (1) it was incompetent, irrelevant and immaterial and highly prejudicial because the offenses were not similar; and (2) the testimony was incompetent in the state’s case in chief in any event and could be introduced only on cross-examination of appellant to impeach his credibility in the event appellant testified in his own defense. In the brief it is, however, also asserted the instruction to the jury touching the. purpose for which evidence of the former offense could be considered was erroneous for the reason it improperly included the word “motive.”
On the other hand, counsel for appellee, 'in substance, contend (1) the jury was fully informed concerning the previous offense by counsel for appellant on the voir dire examination; the jurors were individually and collectively interrogated relative to whether they would permit the previous conviction to prejudice them in this case; they uniformly stated they would not and appellant did not exhaust his jury challenges; (2) aside from the foregoing facts the evidence was competent and properly admitted in the state’s case in chief for the limited purpose stated in the court’s instruction; (3) appellant took the witness stand and evidence of the former conviction and the manner in which that offense was committed was admitted on his cross-examination without objection; (4) appellant is not entitled to a new trial on the ground the jury was prejudiced; and (5) the instruction was in conformity with the established law of , this state. " .
Appellant did not deny that he shot Cole with a twelve-gauge, single-barrel shotgun as charged, but contended he did so in self-defense. Cole died immediately with the result that his version of the shooting is lacking. Appellant was the only eye-witness to the shooting. There was, however, evidence of other witnesses that Cole had threatened to take appellant’s life. Appellant’s own testimony, if believed, was ample to establish the claim he shot Cole in self-defense. On the other hand, the sheriff, of Sedgwick county, appellee’s witness, testified appellant told him, after the shooting of Cole, that he (appellant) had decided two weeks previously to put an end to all this and had borrowed the shotgun used in the killing for that purpose. This was denied by appellant, and, of course, joined a factual issue on the subject of self-defense which was for the determination of the jury.
Since appellant does not contend there was no competent evidence to support the verdict of guilty only a brief general statement of the facts out of which the controversy arose is deemed necessary. According to appellant’s version the trouble between him and the deceased arose out of an alleged relationship between the deceased and a woman who occupied an apartment adjoining appellant’s. Her husband was in the service and according to the testimony of appellant the deceased called on her frequently both day and night. A hole had been bored in the plaster wall between the apartments and appellant could hear and see what transpired in the woman’s room. Appellant testified the hole was there when he moved into the apartment. Appellant claimed the deceased had threatened to take his life by reason of gossip in which the deceased contended appellant had engaged concerning the deceased and this woman. According to appellant’s testimony there had been previous quarrels between him, the deceased and the woman, which resulted in appellant having been beaten by both the woman and the deceased. Appellant testified that on the day of assault Cole came to his apartment with something in his hand which was concealed behind him and threatened to kill appellant. The concealed article was a skillet. Appellant stated he warned Cole not to advance any farther, but Cole continued to advance in a threatening manner and he shot him.
In the state’s case in chief it offered, over appellant’s objection, a record of appellant’s conviction of the previous murder in the state of Oklahoma, a mandate of the Oklahoma Criminal Court of Appeals affirming the conviction but reducing the sentence to life imprisonment and a fingerprint record from the state penitentiary of Okla homa. The transcript discloses the trial court took the offer under advisement and admitted only such portion thereof as showed the final decree and the nature of the offense. Counsel for appellant, at the trial, conceded that evidence would be competent on cross-examination of the appellant but contended it was inadmissible as a part of the state’s case in chief. Appellant also contended there was no similarity in the offenses. The state contended it was a similar offense and as such the conviction'was competent solely for the purpose of showing motive, intent, inclination and method of the commission of the crime. Touching the similarity of offenses the trial court stated:
“Whether he took a gun or a pistol or a shotgun, I don’t think it makes any difference; they are similar offenses.”
The court stated at the time that it would admit it only for the purpose indicated by the state. The court further stated, at that time, it would instruct the jury in writing relative to the limited purpose for which it could be considered.
The cross-examination of appellant relative to the Oklahoma mur- . der had been limited by the court to the fact appellant had shot a woman in Oklahoma by the name of Lizzie A. Morgan and to the method he employed in committing that murder, namely, by means of a .38 Colt, a six-shooter. Counsel for the state contended the court was too narrowly restricting the cross-examination and continued to ask questions, to some of which the court previously had sustained objections. In the course of the cross-examination appellant volunteered the statement that the crime for which he had been convicted in Oklahoma was an accident. Thereupon counsel for the state inquired, “How many times did you shoot her?” Notwithstanding the fact the court had previously sustained an objection to that question appellant nevertheless answered it as follows: “I think it was twice.” The court permitted the last answer to stand for the reason the witness had already answered it. There was no motion to strike the answer. Without objection appellant was further asked and stated:
“Q. Were you convicted of that crime, Mr. Owen? A. What crime is that? Of killing a woman?
“Q. Yes. A. Certainly.”
The trial court ruled out all other questions touching the Oklahoma offense. Touching the purpose for which the evidence of the Oklahoma offense could be considered the jury was instructed as follows:
“Evidence has been introduced of facts and circumstances relating to other similar transactions, not for the purpose of showing the defendant’s guilt in the transactions referred to, but for the purpose of showing his inclination, tendency, attitude, motive and intent, and is limited to that purpose.”
Evidence of similar offenses, when competent, may be introduced as a part of the state’s evidence in chief. (State v. Robinson, 125 Kan. 365, 263 Pac. 1081.)
Appellant contends the only purpose for which evidence of similar offenses is competent, under exceptions to the general rule, is to prove the identity of the person who is alleged to have committed the crime for which he is then on trial, to show system and plan and possibly also to rebut special defenses and cites State v. Frizzel, 132 Kan. 261, 295 Pac. 658. The contention is too narrow. The opinion in that case states the various purposes for which evidence of similar offenses is admissible under exceptions to the general rule. The purposes mentioned by appellant are only three of them. In that opinion (citing Wharton’s Criminal Evidence, 10th ed., p. 59) it was said, with approval, evidence of similar offenses is admissible under proper instructions when such offenses are relevant . . to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show motive, to prove system, to prove malice and to rebut special defenses. . (p. 264.)
The general rule, however, is that the commission of the offense for which a person is on trial cannot be proved by evidence that such person committed another but independent offense although it be of the same sort. The basic rule is well stated in 22 C. J. S., Criminal Law, § 682, as follows:
“The general rule, which is subject to exceptions stated in §§ 683-690, infra, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible, and such evidence of an independent crime is inadmissible for the reason, among others, that it ordinarily does not tend to establish the commission by accused of the offense charged, that accused must be tried for one offense at a time, and that, in accordance with the more extensive general rule, which applies to all cases, civil or criminal, the evidence must be confined to the point in issue. Questions regarding the admissibility of such evidence have been said to be within the wise discretion of the trial court, whose rulings thereon should not be interfered with on review except where such discretion is abused, or unless it is clear that the questioned evidence has no bearing on any of the issues involved in the charge.”
Evidence of a similar offense is competent only, under the exceptions to the general rule, as tending to show the elements of the of-i fense for which a person is on trial. A majority of this court believes that the conviction of the former offense had no probative value with reference to any element of crime for which appellant was on trial. The evidence was prejudicial and its admission over appellant’s objection constituted an abuse of sound judicial discretion. Counsel for the state also placed too much emphasis on the former offense in his cross-examination of -'appellant. In view of this conclusion we need not determine whether the former- offense was a similar offense or whether the instruction requires a reversal. It is sufficient to say the instruction did not cure the erroneous admission of the testimony.
In support of the admissibility of the testimony, under the exceptions to the general rule, appellee cites State v. King, 111 Kan. 140, 206 Pac. 883; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Hendren, 127 Kan. 497, 274 Pac. 274; State v. Dunkerton, 128 Kan. 374, 278 Pac. 57; State v. Turner, 128 Kan. 376, 278 Pac. 58; State v. Marr, 136 Kan. 602, 16 P. 2d 469; State v. Gwynne, 142 Kan. 13, 45 P. 2d 849; State v. W. H. France, 146 Kan. 651, 72 P. 2d 1001. We do not deem it necessary to repeat the facts in those cases. Unlike the present case the evidence of other similar offenses had probative value in those cases touching some element of the offense for which the defendant was on trial.
Appellant also directs .our attention to the fact the evidence of the Oklahoma murder was introduced by the state before any evidence with respect to the instant alleged offense was offered and contends such procedure was prejudicial. The procedure was irregular but counsel for appellant virtually agreed on oral argument with counsel for appellee that the procedure was adopted by agreement of counsel to accommodate a witness. Under such circumstances appellant is not in a good position to complain.
Appellee stoutly contends if appellant was prejudiced by the admission of evidence of the Oklahoma offense, which it denies, appellant cannot complain for the reason his counsel advised the jury concerning that offense at length in his voir dire examination. Appellee further calls attention to the record which indicates counsel for appellant interrogated the jurors individually and collectively whether they would permit evidence of the former conviction to prejudice appellant’s cause and that the answers of the jurors were in the negative. Counsel for appellant reply the trial court had admitted the evidence in a former trial which resulted in a hung jury; they were certain the court would do so again and they were, therefore, obliged to interrogate the jury on that point for appellant’s protection. The procedure adopted by counsel for appellant did not prevent him from objecting to the testimony when it was offered or relieve the court of ruling properly thereon.
' The cause is remanded with directions to grant appellant a new trial in conformity with the views herein expressed.
Thiele, J., dissents. | [
-16,
-22,
-20,
-99,
-120,
-32,
32,
-72,
64,
-29,
-89,
115,
45,
-54,
9,
59,
-70,
125,
84,
105,
-60,
-73,
55,
-55,
54,
-77,
59,
-41,
-73,
-54,
-10,
127,
9,
-16,
74,
-43,
102,
72,
-61,
84,
-114,
14,
-119,
-60,
-62,
2,
52,
98,
118,
15,
117,
30,
-13,
42,
31,
-61,
73,
44,
74,
-83,
16,
-72,
-118,
-121,
-33,
20,
-77,
-90,
-98,
-121,
120,
46,
-104,
49,
0,
-20,
115,
-106,
-126,
84,
107,
-119,
12,
102,
99,
32,
-103,
-17,
40,
-119,
62,
111,
29,
-89,
-104,
80,
75,
40,
-106,
-33,
116,
54,
39,
-4,
-21,
85,
89,
108,
4,
-41,
-80,
-109,
75,
36,
-110,
90,
-29,
-123,
20,
117,
-51,
98,
92,
69,
17,
-37,
-118,
-76
] |
The opinion of the court was delivered by
Parker, J.:
This appeal is the anticlimax of a controversy considered and determined by this court in Geiman-Herthel Furniture Co. v. Geiman, 160 Kan. 346, 161 P. 2d 504. Numbered and docketed as a single case and an independent action it really involves two different judgments pertaining to matters disposed of by the court below after the original case had been remanded back to it with directions to appoint a receiver and liquidate the corporation in the event contending stockholders failed to agree upon a settlement within sixty days from the date of our decree. As filed and presented the first phase of t the present proceeding requires disposition of an appeal by A. I. Geiman from a judgment allowing part of a claim made by the Herthels against him and a cross-appeal from a refusal to allow such claim in its entirety while the second necessitates consideration of an appeal by attorneys from a judgment refusing to allow them a fee for services claimed to have been rendered the corporation.
To fully comprehend the issues here involved, although dependent upon facts arising subsequent to its rendition, it is, of course, advisable that readers of this opinion understand the facts, events, circumstances and conditions responsible for and resulting in our decision in Geiman-Herthel Furniture Co. v. Geiman, supra. They are clearly and. succinctly set forth in the opinion in that case. We shall make no attempt to repeat them in detail since by reference ‘they can be found there when required for elucidatory purposes.
By way of explanation it should, however, be here stated the original action was commenced by three of the corporation’s stockholders in the district court of Barton county, in their names as individuals and in the name of the Geiman-Herthel Furniture Company, a corporation, without authority of its directors, for the purpose of having it judicially declared such stockholders, hereinafter in the interest of brevity referred to as the Herthels, had voting control of the corporation or in the alternative to obtain the appointment of a receiver and to liquidate the corporation. In June, 1944, the district court found the Herthels did not have voting control and refused to appoipt a receiver on the ground the corporation was solvent, making money and in no danger of insolvency. Upon appeal this court on August 4, 1945, affirmed the trial court’s judgment with respect to the Herthels’ voting rights but directed the appointment of a receiver for the corporation because dissention among the stockholders was defeating its corporate objects. Thereafter a receiver was appointed. The record fails to disclose the exact date of the appointment but we are told, and the statement is not denied, it was made at the expiration of sixty days from the date of the announcement of our decision.
Thus it appears at the outset in our consideration of the rights of the parties, the very purpose of the litigation responsible for the present action was to rule or destroy the corporation. Also, that from its commencement until on or about October 3, 1945, the direction and supervision of the corporation’s business was not taken from it by the courts but left to the control of its directors who, under the statute (G. S. 1945 Supp., 17-3101), had the general management of its affairs.
Shortly after the receiver was appointed the court directed him to advertise that all claims against the receivership be filed in court on or before October 23, 1945. So far as pertinent here three were so filed.
One claim was by the Herthels in the form of a petition wherein they alleged: (1) That on November 10, 1944, Geiman caused to be paid from the assets of the corporation the sum of $750 to Oscar Ostrum, his attorney of record, and $750 to'R. C. Russell, also his attorney of record, which payments were for services rendered to Geiman personally and were not proper charges against the corporation; (2) that notwithstanding the trial court had fixed Geiman’s salary at $150 per month (see finding No. 5, 160 Kan. 346, 359, 161 P. 2d 504),'he had paid himself salary in excess of that amount from November, 1944, to October 22, 1945, amounting to $1,240 from funds of the corporation; (3) that Geiman had taken certain items of personal property belonging to the corporation without accounting to the corporation for its value. The prayer of the petition was that Geiman be charged with $1,500 for the attorney fees, the $1,240 excess in salary, the reasonable value of the personal property and that such amounts be deducted from his share of the corporate assets. On consideration of this petition item 1 was allowed and items 2 and 3 were denied.
The second claim was by Geiman who sought to charge the corporation with 24 months’ garage rental at $5 per month and storage on an elevator at $2 per month for a period of 24 months, amounting to the total sum of $168. Both of its items were allowed.
The two claims to which we have just referred are involved in the first phase of this proceeding. Geiman appeals from rulings adverse to 'him and the Herthels from those against them.
The third claim is involved in the second phase of this appeal. It was filed by Russell, Lewis and Obee, attorneys of Great Bend, and Oscar Ostrum, an attorney of Russell, and reads:
“To fees for legal services rendered in the following cases, to wit: No. 15338, 15808 and 15936, together with long distance calls, trips from Russell to Great Bend, Kansas and from Hoismgton, Kansas to Great Bend; conferences in connection with the operation of the business of the corporation; and the defense of said suits, $2,500.00.”
It was denied by the trial court on the uncontradicted evidence adduced by the claimants upon the ground the services rendered by the attorneys were for Geiman as an individual and not for the corporation.
Having, outlined proceedings and judgments in the court below we turn to the record on which such judgments depend, but as we do so, pause to state that from this point throughout the remainder of this opinion we shall, in an effort to avoid confusion, refer to the first phase of this proceeding as the Geiman appeal and the second as the Ostrum appeal.
Certain matters pertain to and affect the judgment in each appeal. They are: (1) The case filed by the Herthels in the district court of Barton county and resulting in our decision in Geiman-Herthel Furniture Co. v. Geiman, supra; (2) the filing by the same persons, in their name and in the name of the corporation without authority of its managing officers, of an independent action in the district court of Barton county for the purpose of obtaining reversal of the judgment in the case last mentioned and liquidation of the corporation, which case was lost by them in the lower court and on appeal (see Herthel v. Geiman, 160 Kan. 368, 161 P. 2d 518); (3) prosecution and loss by the Herthels of a third suit, in the same district court in their names and also in the name of the corporation without consent of the corporate officers, against the depository bank of the corporation to compel it to pay off their preferred stock in the amount of $6,000 out of the corporation’s funds under illegal action taken by the corporation at a. meeting on February 16, 1943 (see Geiman-Herthel Furniture Co. v. Geiman, supra, 352, 353); (4) the fact that soon after June 29, 1944, the date on which the district court handed down its decision, and prior to October 30,1944, the corporation elected new directors consisting of Geiman, Mrs. Geiman, John Henry Lewis, Franklin Herthel and Mrs. Franklin Herthel; (5) the additional fact that under management of such directors between the date of their election and the appointment of the receiver, the corporation accumulated an additional surplus of $6,000.
Portions of the record are pertinent only to disposition of the Geiman appeal and will be briefly noted.
With respect to item 1 of Herthel’s petition, heretofore referred to as the first claim, the evidence consists of testimony on the part of three witnesses which can be summarized as follows: (1) Geiman stated that as general manager of the corporation he had employed the attorneys therein named and in November, 1944, after the appeal had been taken to the supreme court had paid them pursuant to a resolution by the board of directors the $1,500 therein described out of the corporate assets; (2) Ostrum stated that he and the Russell firm had been employed under a definite agreement to perform services for the corporation in suits pending ¡against it and in November, 1944, such attorneys .were paid $1,500 on account in three cases, which amount did not include any part of the fee due them for services rendered Geiman personally in such actions; (3) Herthel testified that “during the past several years the Geiman-Herthel Furniture Company had not been engaged in any litigation, other than such as the corporation may be said to be engaged in this litigation that is involved here, and neither Mr. Ostrum nor Mr. Russell nor any other attorneys have performed any services for or on behalf of the corporation, except as it may be said that services were performed for the corporation in the defense of this suit and the two suits that were incident to this suit, and such attorneys have done nothing for the corporation so far as I know in the way of legal services.”
It consists also of minutes of a directors’ meeting held on November 6, 1944, wherein such directors recognized the litigation as instituted involved the substantive right of the corporation to continue its existence, accepted the services rendered by the attorneys pursuant to their employment by Geiman on the basis the corporation had received benefits therefrom, ratified their' employment by Geiman, and directed its officers to pay them for such services by issuance of checks drawn on the corporate account.
Applicable to item 2 there is testimony Geiman had been 'employed, after rendition of the decision in district court, by the board of directors at a salary of $225 part of the time and $300 per month thereafter. The only evidence in refutation of such testimony is a statement by Herthel that none of the Herthels had ever consented that Geiman’s salary be increased above $150 per month.
Regarding item 3 the evidence is in hopeless conflict, Geiman testifying one way and Herthel the other.
As to the second claim (Geiman’s) the Herthels allege and Gei man does not deny the storage charges claimed for both the truck and the elevator had been made, and were passed upon by the court, in finding 10, Geiman-Herthel Furniture Co. v. Geiman, supra. Moreover, Geiman himself admits the claim involves the same truck and storage charges on the same elevator for the identical period of time covered by such finding.
The record so far as it relates to the Ostrum appeal depends solely upon evidence offered by the claimants. It consists of: (1) Minutes of a directors’ meeting held on February 9, 1945, which in part read':
“The following motion was made, seconded and unanimously carried:
“Moved, that the General Manager be directed to continue to employ as legal counsel the firm of Russell, Lewis & Obee of Great Bend, Kansas and Oscar Ostrum of Russell, Kansas, and that the officers of the corporation be and they are herebjr directed to pay said firms for legal services rendered upon presentation of their statements of account therefor.”
(2) Testimony by Geiman in substance that as managing officer of the corporation, and pursuant to authority given by the board of directors, he agreed to pay the claimant attorneys a balance 'of $2,500 for their legal services in taking care of the corporation in the three cases brought by Herthels, and (3) testimony by Ostrum to the effect the claimant attorneys had been in the employ of the furniture company in all suits pending and that after payment of the $1,500 on account was received in November, 1944, a contract was made with Geiman for additional fees in the sum of $2,500 as compensation to be paid for continued services in those actions; that such fee was fair and reasonable, had not been paid, and that no part of it represented a charge for representation of Geiman personally.
The pleadings, the evidence and the argument make it perfectly plain the all-important issue presented for appellate review is the propriety of the trial court’s ruling with respect to payment and allowance of attorney fees. On that account we first direct our attention to such question as involved in each appeal.
In support of the judgment appellees quote at length from the opinion in Geiman-Herthel Furniture Co. v. Geiman, supra, and argue that statements to be found there are decisive of the question now presented. We do not so interpret them. In that case after determination of questions’ relating to voting rights of stockholders we were dealing with the subject of whether on account of internal dissention a receiver should be appointed. What was said in the opinion had reference to a decision of those matters and nothing to be found therein is to be construed as prejudging the right of the corporation to either employ counsel to resist an attempt to throw it into receivership and destroy its corporate entity or, after that attempt was made, to manage its own affairs up to the time a receiver was appointed.
So that the present issue may be clarified and made as simple as possible it should be stated at the outset its solution does not depend on how the litigation responsible for its being here was instituted, who were named parties plaintiff and defendant therein or whether in its inception its cause was a contest between individuals as to their corporate voting rights, but upon the proposition of whether under all the facts and circumstances of such litigation the corporation had a right to defend its interests and employ and pay counsel for that purpose.
What has just been stated, since it is conceded the Geiman-Herthel Furniture Company on all dates in question was a duly organized and existing corporation, requires an examination of the general corporation code of this state for as long as it continued in that status without legal restraint it possessed certain rights, powers, and privileges.
G. S. 1945 Supp., 17-3001, in part reads:
“Every corporation created under the provisions of this act shall have the power and capacity possessed by natural persons to perform all acfs within or without this state. Subject to any limitations or restrictions which may be imposed thereon by the articles of incorporation, every private corporation shall have power and authority:
“B. To sue and be sued, complain and defend in any judicial proceedings, and to contract and be contracted with.
“F. To appoint such officers and agents as the business of the corporation shall require and to allow them suitable compensation.”
The powers conferred upon a corporation by the preceding section are exercised by and through a board of directors (G. S. 1945 Supp. 17-3101).
What were the prevailing facts and circumstances so far as this corporation was concerned at the time it paid the $1,500 attorney fee and agreed to pay $2,500 thereafter? One suit had been filed by Herthels to give them control of its affairs or in the alternative to end its existence.' Failing to achieve their purpose in that suit the Herthels had instituted and there was then pending in the district court, another action which sought the identical relief prayed for in the first one and was in effect an attempt to obtain a reversal of the judgment theretofore rendered. The Herthels had also filed, and there was then pending, another action which if it had been allowed to go by default, would have resulted, under the trial court’s judgment — and it may be added the judgment of this court on appeal — in the illegal payment of corporate funds by the corporation’s depository.
In view of the conditions just related we believe — so far as provisions of bur corporation code are concerned — the corporation was involved in three separate judicial proceedings which it had power to defend. The fact a proceeding to appoint a receiver is essentially a proceeding against the corporation (19 C. J. S. 1184, § 1417 [2] ) makes our conclusion inescapable as to the first two actions. With respect to the third the reason for it is so obvious as to do away with the necessity of additional comment.
Having concluded the corporation had authority to defend,, it necessarily follows it also had the power to employ attorneys for that purpose and pay them for their services unless the record reveals something which precludes it from exercising that power.
As we approach consideration of matters claimed to have that effect it should be remembered that soon after the district court’s decision the corporation elected a new board of directors and until on or about October 3, 1945, operated under its management. Likewise kept in mind, it was during that same period of time the board of directors ratified the action of Geiman — as it had a right to do if legally in control of the corporation’s affairs (13 Am. Jur. 933, § 981) — in employing attorneys for the corporation, authorized payment of the $1,500 fee and directed the general manager to continue to employ the appellant attorneys — -as it also had power to do if in control (13 Am. Jur. 899, § 936) — and directed its officers to pay for the legal services involved in the Ostrum appeal upon presentation of statements of account therefor.
We now give our attention to the question of who was i-n charge of the business affairs of the Geiman-Herthel Furniture Company during the interim of the refusal of the district court to appoint a receiver and the rendition of our decree in Geiman-Herthel Furniture Co. v. Geiman, supra.
On the question just stated appellees’ position, when analyzed, is that the filing of the initial litigation, followed by the appeal from the judgment refusing to appoint a receiver, resulted in taking control of the corporation out of the hands of its directors and placing it under the supervision and direction of the court.’ We do not agree. The rule to which we subscribe is to be found in 19 C. J. S. 1208, § 1494, where it is stated thus:
“Until the appointment of a receiver, the management of the affairs of a corporation remains in the hands of the directors, although suits therefor have been instituted, and their acts, unless prejudicial to the then existing rights of creditors, are binding.”
See, also, Hammond v. Carthage Sulphite Pulp & Paper Co., 34 F. 2d 155, holding:
“Acts of officers of corporation subsequent to issuance of order to show cause why receiver should not be appointed and prior to appointment of receiver are binding upon corporation and receiver, unless prejudicial to then existing rights of then existing creditors.” (Headnote 5).
And Planters Bank of Farmville v. Whittle and Als., 78 Va. 737, where it was held:
“Until the appointment of a receiver and the award of the injunction, the management of the affairs of 'the company remains in the hands of the directors, and assignments by them in payment of the company’s debts may be lawfully made.” (Syl. ¶ 6.)
At this point it should perhaps be stated that inasmuch as it is conceded the corporation was a solvent concern it cannot be urged its actions with respect to attorney fees was prejudicial to the right of creditors.
In addition appellees urge the board of directors had no power to take the action heretofore related because the matter of voting rights, involved in the original action, was lis pendens and that until such question was eventually determined the corporation could not legally elect a board of directors. Again we disagree. At the time the directors were elected the corporation was in control of its affairs and it cannot be denied the election of the board was important to transaction of its business. Moreover, this contention entirely overlooks the fact that the board was elected by the vote of stockholders, who were ultimately decreed to have the legal voting rights. The very most that can be said for it is that it might have had some weight in determining the rights of the parties had our final decision of that question upheld appellees’ claim with respect thereto.
Next it is claimed all questions pertaining to attorney fees are res judicata by reason of our decision in Geiman-Herthel Furniture Co. v. Geiman, supra. The record does not sustain such a contention. All we decided in that action in that regard was that long distance calls made by Geiman in consulting with his attorneys in the defense of such case were not proper charges against the corporation. The fees now under consideration are for services alleged to have been rehdered the corporation, and, as has been heretofore indicated, were not there involved.
Finally, it is urged such fees are not obligations of the corporation because the legal services on which they are based were actually performed on behalf of Geiman and not the corporate entity. The determination of this contention is a factual one for, as we have seen, undér existing conditions the corporation had power to contract and pay for services rendered in defending its interests in the three suits brought by Herthel. With respect to the $1,500 item the journal entry of judgment recites the basis for the judgment as rendered. It reads:
“That the sum of $1,500.00 which was heretofore and on or about November 10, 1944, caused to be paid from the assets of the corporation to Oscar Ostrum and R. C. Russell, were partial payments of compensation to said persons for services rendered by them to the said A. I. Geiman, and were not proper charges against the corporation, but were the personal indebtedness and obligation of the said A. I. Geiman; and that accordingly said sum is due and owing from the said A. I. Geiman to the corporation or to the fund in the hands of the Receiver for distribution in liquidation.”
As to the $2,500 item the trial court' in announcing its decision made the following statement:
“And the $2,500 additional attorney fees will be disallowed — not on the ground that it was not earned, but on the ground that Mr. Geiman should pay his attorney fee.”
From what has just been related, inasmuch as there is nothing in the pleadings charging bad faith or fraudulent conduct on the part of the board of directors in allowing and paying the fees in question and no evidence in the record to sustain such a charge even if one had been alleged and, since there was no evidence to refute testimony in the Ostrum appeal, the fee claimed was fair and reasonable, it becomes crystal clear the sole question for decision is: Does the record disclose any evidence to sustain the trial court’s judgment and if not does the evidence compel a judgment denying the $1,500 claim as made in the Geiman appeal and allowing the claim in the Ostrum appeal?
Briefly reviewing the evidence it will be noted that as to each claim both Geiman and Ostrum testified positively the fees involved were for services performed for the corporation and not for Geiman. Each stated Geiman was indebted to the attorneys for services rendered to him personally in the -litigation. Ostrum testified that no personal fees were included in the sums charged against or collected from the corporation. In the Ostrum appeal the only evidence offered by appellees was Herthel’s testimony to the effect the attorneys had not performed services except as it may be said they were performed for the corporation in the three actions brought by him. In view of our conclusion the corporation had a right to defend those actions such testimony was not contradictory of that offered by the claimants. If anything, it was corroborative.
With the record in condition as heretofore related we are forced to conclude: (1) In the Geiman appeal there is no evidence to sustain the trial court’s judgment as set forth in its journal entry, and since the fee therein involved had been paid prior to the date of the appointment of the receiver that portion of the claim as made by Herthel should have been disallowed; (2) with respect to the Ostrum appeal where the undisputed evidence is that the amount claimed was for services rendered the corporation and the fee charged was fair and reasonable the claim should have been allowed.
In passing it should be said we are not unmindful of a rule relied upon by both appellees and appellants in support- of their respective positions. It is found in 45 Am. Jur 217, § 279 (Receivers), and reads:
“It is a general rule that where an application has been made for the ap•pointment of a receiver for a corporation, attorneys’ fees and expenses in resisting such application, if made in good faith and upon reasonable grounds, may become a valid) claim against the receiver. Whether such attorneys’ fee and expenses are to be allowed rests in the sound discretion of the court, in view of all the facts and circumstances.”
Many decisions can be found wherein the foregoing rule is recognized and quoted, but an examination of the great majority of such decisions discloses that it has been applied under circumstances where a receiver has been appointed at or shortly after -the institution of a receivership action and the services of attorneys have been performed on -behalf of the corporation with the receiver in control under the direction and supervision of the court. If limited to conditions just mentioned we recognize it' as sound authority. However, if construed to mean that it is applicable to obligations incurred by a solvent corporation under facts and circumstances disclosed by the opinion in this case we hold that such rule is too broadly stated and refuse to apply- it.
Even so, we feel constrained to remark that had this case been one involving appointment of a receiver under circumstances where the principle would be applicable we would be disposed to hold it constituted abuse of discretion to deny the Ost-rum claim under the other conditions existing and having to do with the propriety of its allowance. Relief by way of receivership is equitable in its nature and is controlled by and administered upon equitable principles. To say the least the result of the employment of the attorneys for the corporation resulted in delaying the appointment of a receiver a considerable period of time- during which the corporation accumulated an additional surplus of $6,000 which eventually will go to all stockholders in proportion to their respective interests. Much could be said upon the subject of the appellees’ willingness to accept the benefits of that circumstance and their reluctance to assume its burdens. As it is, we dismiss it with the statement that to us it seems inequitable to charge one stockholder with the entire expense of legal services inuring to the benefit of all others having an interest in the assets of the corporation.
All that remains for decision are questions raised by the cross appeal. They are not strenuously argued and do not present the difficulties encountered in the disposition of the principal issue.
One is that the trial court erred in refusing to require Geiman to repay the receiver salary paid him by the corporation in excess of $150 per month during the period of time described, in the Herthel claim. This question is determined by what has beep heretofore concluded with respect to powers of the board of directors. There is nothing in the record to show the compensation paid Geiman was unreasonable or excessive and it was paid pursuant to resolutions of the board during the time that body had the general management of the corporation’s affairs. Under the statute (G. S. 1945 Supp., 17-3001) the board had power to allow its general manager suitable compensation. It follows the trial court’s decision with respect thereto must be affirmed.
Another is that it was error to refuse to require Geiman to pay the receiver the reasonable value of corporation property alleged by Herthel to have been wrongfully appropriated by the former. On this question the trial court’s decision was based upon conflicting evidence. Under such circumstances- this court will not weigh the evidence or disturb the judgment.
Lastly, it is contended that portion of the judgment allowing Geiman garage rental and storage charges on an elevator is erroneous because such claim was disposed of in the initial action and is now res judicata. The contention has merit. The record is indefinite and we cannot be certain what evidence the trial court had before it. Conceding there was ample evidence to support the judgment we are inclined to the view Geiman’s admissions as heretofore set forth in this opinion and the failure to deny crossappellees’ statement that the identical claim was involved and determined in the former action justifies the sustaining of the contention on the grounds relied upon.
The judgment is affirmed in part and reversed in part and the trial court is instructed to render judgment in accordance with the views expressed in this opinion. | [
52,
-2,
-104,
28,
26,
98,
50,
-38,
97,
-95,
39,
115,
-23,
-48,
21,
127,
-13,
63,
113,
107,
-25,
-77,
19,
-85,
-42,
-109,
-39,
-99,
-80,
76,
-11,
119,
77,
32,
-54,
-123,
-58,
-128,
-63,
22,
-114,
-127,
59,
105,
121,
64,
48,
43,
54,
75,
-47,
14,
-5,
44,
-103,
71,
105,
44,
-17,
57,
-48,
-8,
-85,
15,
127,
22,
51,
36,
-100,
-89,
-40,
46,
-128,
48,
0,
-24,
80,
-74,
6,
116,
41,
89,
8,
38,
99,
19,
9,
-17,
-40,
-104,
46,
22,
29,
-89,
-106,
28,
10,
97,
-75,
-99,
85,
18,
3,
126,
-18,
29,
28,
108,
-117,
-114,
-26,
-77,
7,
125,
-100,
1,
-17,
-93,
49,
112,
-56,
-88,
93,
86,
27,
27,
-114,
-16
] |
The opinion of the court was delivered by
Kaul, J.:
Following a joint trial to a jury defendant-appellant, Kenneth D. Colbert, and a codefendant, Harold L. White, were each convicted of aggravated robbery (K. S. A. 21-3427), conspiracy (K. S. A. 21-3302), and kidnapping (K. S. A. 21-3420). The sentences imposed were ordered to run concurrently.
The points on appeal go to the sufficiency of the evidence to sustain the conspiracy and kidnapping convictions and the trial court’s refusal to instruct on lesser offenses in connection with the aggravated robbery charge.
The state’s evidence disclosed that on February 5, 1975, Harold L. White, a codefendant in the instant case, and Andrew Davis, the complaining witness, were employed by Boeing Aircraft Company in Wichita. Both men were working the second shift, from 4:30 p. m. to 1 a. m.
Davis testified that on or about February 2, 1975, he promised to lend White the sum of $25.00. At the time Davis explained to White that he was going to get a loan with which to make a payment on a car.
On February 5 Davis drove himself to work, arriving about 4 p. m. By 4:10 he had obtained his loan from the Boeing Credit Union and immediately cashed the check at a supermarket and reported for work at 4:30 p. m. At approximately 5:50 p. m., before the first break at work, he made the $25.00 loan to White as promised. Davis further testified that between 7 and 8 p. m. White asked him for a ride home from work, which request was refused by Davis. Subsequently, White repeated the request three of four times — finally Davis reluctantly agreed to take White home.
Davis testified that because of White’s persistence in requesting a ride and learning about the loan proceeds, he became apprehensive about the trip home. With this suspicion in mind, Davis removed part of the money from his billfold and put it in his front pocket, leaving $193.00 in the billfold. Davis further testified that he saw White leave the area in which both worked three or four times during the evening to go to a tool crib near a telephone.
At 1 a. m. the following morning both Davis and White got off work. Davis said he tried to leave without White “. . . because I didn’t really want to take him. I kind of figured he had something up his sleeve. . . .” However, as he was leaving the plant Davis ran into White on the stairs. Concerning this encounter, Davis testified:
“When I was about to come back up the stairs, I happened to find him and he was very desperate when he saw me and he asked me what was I trying to do, go off and leave him? I told him I wasn’t.”
The two men then went to Davis’s car and set out for White’s home in the Plainview area of Wichita.
From the Boeing plant Davis was directed by White down Oliver Street and from there he was told to turn on Fees Street. Suspecting he was being led astray, Davis asked White, “Are you sure this is the Plainview vicinity? And he told me yes.” After turning onto Fees Street, Davis drove by an automobile which had its hood raised and a man standing nearby. According to Davis, White said, “That looks like my car,” and then asked Davis if he would turn around and help start the car with battery jumper cables. Davis agreed and drove back to the scene, parking his car facing White’s car so the jumper cables would reach. White then told Davis to turn off his car lights, but Davis declined. At this time the individual who had been standing beside White’s automobile (later identified as defendant) approached with a mask over his face and a gun in his hand which he pointed at Davis. According to Davis he was forced to get out of the automobile, turn around and put his hands up. Defendant then went through Davis’s pockets, removing the billfold containing $193.00, but apparently overlooking the money in the witness’s front pocket.
White exited from the car and stated to defendant, “. . . Man, what are you doing? We are trying to help you and you want to do us that way. . . .” Thereupon defendant checked White’s pockets.
At this point Officers Roland Meyers and Don Knard of the Wichita Police Department drove by in a patrol car. The officers were on routine patrol, but stopped when they were alerted by the fact the stalled car had a rag over the license tag, obscuring the numbers. Davis heard White say, “. . . Aw, shoot, here comes the cops. . . .” White then approached the officers and fielded their initial questions, responding that nothing was going on, they were just having car trouble. Defendant ran from the scene, but was apprehended by Officer Meyers, handcuffed and returned to the police car.
Meyers testified that as he first approached defendant near the stalled car he heard something drop. Meyers looked down and saw defendant kick what appeared to be a gun. A .38 caliber Smith & Wesson revolver was located by the officers in the snow by the right front tire of White’s automobile.
Officer J. W. Harper, who was also patrolling the area, arrived at the scene within a few minutes after the arrival of Knard and Meyers. Harper joined the interrogation of Davis, White and defendant. The confusing explanations given by White caused the officers to become suspicious. A Miranda warning was given to White and defendant and interrogation was pursued by the officers. Harper testified that White said Davis was driving him home when they saw a person having car trouble and when they pulled over to help, someone had robbed them and that the gun, which had been discovered by the officers, belonged to the robber. This statement of White’s to Harper was entirely different from White’s previous statement to Knard and Meyers when they first arrived at the scene.
After the officers unraveled the stories of Davis, White and Colbert, White and Colbert were arrested and taken to the police station.
At the police station an inventory search of defendant’s person revealed he was in possession of an envelope containing an employee’s statement of earnings from Boeing which had the name of Harold White on it, a twenty dollar bill and two one dollar bills. Also recovered from defendant was Davis’s billfold containing $193.00.
White and Colbert were placed in the same jail cell where they spent the rest of the night.
The testimony of White and Colbert at trial was further discredited by the testimony of Detective Jerry Fraipont, who, after a Miranda warning, questioned both men the following morning. At this time, after spending the rest of the night in a jail cell with defendant, White again changed some aspects of his previous statements so that his story corresponded with defendant’s attempted explanation of the affair. In response to questions by Fraipont, concerning his statements to Officers Knard, Meyers and Harper, White stated, “. . . Well, those officers were lying. I never said anything of such a kind to them. . . .” Davis also changed his version to some extent from that given to the officers the previous night. The variances and inconsistencies of the stories of defendant and White were all brought out at trial through the testimony of the police officers.
In his first point on appeal, defendant claims the trial court erred in refusing to give instructions on theft (PIK 1975 Supp. [Criminal] 59.01, K. S. A. 21-3701) and theft of lost or mislaid property (PIK [Criminal] 59.02, K. S. A. 21-3703). Defendant requested that the instructions mentioned be given. The trial court responded by ruling:
“. . . Well, the Court’s not going to give either of those instructions, primarily because the instruction on theft, lost or mislaid property from the Statutes says that the defendant must know or learn the identity of the owner thereof and under the evidence in this case, the defendant Colbert has denied that all the way through even by his own testimony that he knew or ever learned the identity of the owner of the property. I don’t think there is any evidence here that would support an instruction on just plain theft.”
The record supports the trial court’s ruling. One of the elements of theft of lost or mislaid property is that it be committed by a person “. . . who knows or learns the identity of the owner thereof, . . .” (K. S. A. 21-3703). Defendant’s own testimony excludes a theory of guilt on this lesser offense. On direct examination defendant testified:
“. . . I did not know whose wallet it was. I figured if it was his [Davis’s] he would have asked for it back. . . .”
Where evidence negates a lesser degree of guilt an instruction thereon need not be given. On this point we held in State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255:
“A trial court is required to instruct on lesser included offenses where there is support therefor in the evidence, but the failure to instruct on a lesser degree of an offense charged does not constitute error where the evidence negatives a lesser degree of guilt. (Following State v. Hollaway, 214 Kan. 636, [Syl. 4], 522 P. 2d 364.)” (Syl. 5.)
For a similar reason, we find no error in the trial court’s refusal to submit defendant’s requested instruction on theft. Defendant’s defense was that he had committed no crimes at all. Defendant’s own testimony refutes his purported theory of simple theft. In giving his version of what occurred at the time of his arrest, defendant testified at trial:
“. . . [A]t that time I told the police that I had picked up a wallet and the dude just started saying that he was robbed when all he had to do was ask me for the billfold I would have given it to him.”
The remainder of defendant’s trial testimony was consistent with this statement, thereby negating the existence of an intent to permanently deprive — a necessary element of theft as defined in 21-3701. Under the evidence presented by both the prosecution and the defense, the defendant was either guilty of aggravated robbery or he was innocent of any crime.
In points two and three defendant challenges the sufficiency of the evidence to sustain the conspiracy and kidnapping convictions. Defendant claims error in the trial court’s refusal to dismiss these two charges at the conclusion of the evidence on the grounds that the evidence failed to establish a prima facie case of either conspiracy or kidnapping. As to point three, concerning the kidnapping count, defendant asserts that the only way defendant could be found guilty of kidnapping is through and by the results of the conspiracy charge. The only argument made by defendant on this point is that if error is found in the conspiracy count then it follows the kidnapping conviction must also fall. We agree with defendant’s position that the kidnapping must stand or fall on the state’s proof of conspiracy. The kidnapping charge was based on deception (K. S. A. 21-3420) which, in this case, was intertwined with and depended upon proof of conspiracy. However, we do not agree with defendant that the state failed to make out a prima facie case on the conspiracy charge.
The essence of our new code conspiracy statute (K. S. A. 21-3302) is an agreement to commit a crime coupled with an overt act in furtherance of the agreement. (State v. Campbell, 217 Kan. 756, 539 P. 2d 329, cert. den. 423 U. S. 1017, 46 L. Ed. 2d 389, 96 S. Ct. 453.) See, also, discussion appearing in Vol. 19 Kansas Law Review, “Kansas’ New Conspiracy Law,” p. 799. The trial court’s instructions on the elements of conspiracy accorded with the statute and defendant has lodged no complaint in this regard.
The state’s theory of the case was that White learned several days in advance through asking Davis for a $25.00 loan that Davis was going to obtain a substantial sum of money for a payment on an automobile. As a result of receiving this information, White and defendant conceived a plan whereby Davis, after he had obtained the money would, by deception, be led onto a lightly traveled street where a robbery by defendant would be staged and that when White learned that Davis had the money the plan would be finalized by a telephone call from White to defendant. Reduced to its essentials, the conspiracy charge was that White and defendant (1) agreed (2) to kidnap Davis by deception and in furtherance of the agreement (3) persuaded Davis to drive to a place where (4) the defendant could, and did, rob Davis. The direct testimony of Davis, corroborated by that of the officers, established elements (3) and (4). We believe the record reflects ample circumstantial evidence to establish (1) and (2).
First, the state presented evidence that during the evening in question codefendant White made three or four trips to the tool crib where a telephone was located. At this time White knew Davis had secured the loan. White finally prevailed upon Davis to take him home from work after asking several times without success. Davis, the state’s principal witness, gave no indication that he was told that he was taking White to his car instead of his home. However, on the way home, they happened to pass White’s car, which had conveniently stalled on the route which White had directed Davis to take. White had not disclosed to Davis that his car was in the area. The most incriminating fact of all was that the stalled automobile had a rag over the license tag so as to obstruct the view of the license number. Finally, White expressed disappointment at the arrival of the police and tried to get rid of them when they made their timely arrival on the scene during the commission of the armed robbery.
We believe the evidence is subject to a reasonable interpretation that a well-planned “setup” had been arranged between White and defendant.
Viewed in the light required by our rules of appellate review, we believe the circumstantial evidence recited, coupled with the testimony of the officers pointing out the conflicts and confusion in the statements made by defendant and codefendant White, is ample to sustain the conspiracy and kidnapping convictions.
The fact that Davis did not know, at the time, that he was being kidnapped appears to be of no consequence in view of the fact that our kidnapping statute (K. S. A. 21-3420) proscribes inter alia the taking of a person by deception. The word deception, as used in the statute, necessarily implies that the victim be unaware that he was being kidnapped.
In reviewing a trial court’s denial of a motion for acquittal under K. S. A. 22-3419, the tests to be applied were set out in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, wherein we held:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
Our holding in Gustin has been followed in the recent cases of State v. Holloway, 219 Kan. 245, 547 P. 2d 741; State v. McCorgary, 218 Kan. 358, 543 P. 2d 952, cert. denied, 429 U. S. 867, 50 L. Ed. 2d 147, 97 S. Ct. 177; and State v. Rasler, 216 Kan. 582, 533 P. 2d 1262.
It has long been the rule of this court that a conviction of even the gravest offenses may be sustained by circumstantial evidence. (State v. Ritson, 215 Kan. 742, 529 P. 2d 90; State v. Hale, 207 Kan. 446, 485 P. 2d 1338; and State v. Kennedy, 124 Kan. 119, 257 Pac. 726.) More recently we have concluded that the probative values of direct and circumstantial evidence are intrinsically similar and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. (State v. Wilkins, 215 Kan. 145, 523 P. 2d 728.) In criminal cases, based upon circumstantial evidence, the test on appellate review is whether there is a basis in the evidence for a reasonable inference of guilt. (See State v. Ritson, supra, and cases cited therein.)
We believe the record, viewed in the light required by our rules of appellate review, supports the trial court’s denial of defendant’s motions because the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, is sufficient to warrant that a reasonable mind might fairly conclude guilt beyond a reasonable doubt. (State v. Holloway, supra.)
The judgment is affirmed. | [
112,
106,
-7,
63,
26,
96,
58,
-70,
53,
-27,
55,
83,
-23,
-25,
5,
121,
-43,
29,
84,
97,
-51,
-105,
39,
-23,
-14,
-77,
89,
-59,
-79,
-53,
-20,
-44,
12,
48,
2,
-43,
102,
8,
71,
-44,
-50,
4,
-78,
96,
-39,
0,
32,
107,
-76,
11,
-15,
-98,
-29,
42,
24,
90,
73,
44,
75,
-83,
-128,
-7,
-117,
-121,
-17,
54,
-93,
4,
-70,
39,
-8,
63,
24,
49,
48,
-24,
58,
-90,
-122,
124,
109,
-119,
13,
98,
98,
4,
93,
-19,
-4,
-119,
46,
-9,
-113,
-121,
28,
104,
0,
37,
-98,
-97,
111,
20,
6,
-16,
-5,
30,
19,
100,
-121,
-49,
-12,
-111,
77,
116,
-98,
-102,
-53,
37,
3,
113,
-52,
-94,
76,
118,
123,
-69,
-58,
-106
] |
The opinion of the court was delivered by
Owsley, J.:
The plaintiff, E. Gene Schulze, was principal of the elementary school in Humboldt, Kansas, and was employed by the defendant school board. The board, after complaint and hearing, issued a letter of reprimand and placed it in plaintiffs personnel file. Plaintiff filed suit seeking an injunction against the action of the board and damages for malicious prosecution, libel and slander. The trial court sustained defendant’s motion for summary judgment. Plaintiff appeals. We conclude the trial court was correct in sustaining the summary judgment and the case should be affirmed.
Plaintiff alleges Richard Coykendall, a patron of the Humboldt school district, made various libelous and slanderous statements about him to members of the community. These allegations made their way to the defendant board in a complaint filed by Coykendall and other school patrons on July 2, 1973.
As a result of the complaint the board sent a letter to plaintiff requesting he resign as principal of Humboldt Elementary School. This action was taken without a hearing and violated the board’s policy handbook which stated:
“. . . Neither the Board as a whole or any individual member will entertain or consider communications and/or complaints from teachers, parents, or patrons, until they have first been referred to the Superintendent. Only in case satisfactory adjustment cannot be made by the Superintendent and his assistants, shall communications and/or complaints be referred in writing to the Board. The Superintendent shall report complaints to the Board, and persons complaining shall be requested to put the complaint in writing. In such event, the Board will, after considering the evidence submitted by the Superintendent, if it deems advisable, grant a hearing to the parties interested. Such a hearing will be in executive session.”
Plaintiff refused to resign and requested a public hearing when advised the matter would be set for an executive hearing.
On August 9, 1973, the school district held a public hearing. Plaintiff had notice of this hearing and appeared with his attorney. Although he protested the hearing was unlawful and in violation of the policy handbook, plaintiff participated in the hearing by calling witnesses on his behalf.
On November 6, 1973, the board announced its ruling. It found that the plaintiff had engaged in acts amounting to unprofessional and unbecoming conduct and that he had violated provisions of the policy handbook. It found no basis for “discontinuance of the contract of the said E. Gene Schulze,” but issued the letter of reprimand.
On February 8, 1974, plaintiff filed an action alleging defendant held an unlawful public meeting which resulted in the issuance of findings which were widely published, all in violation of the handbook. Plaintiff further alleged defendant had publicized the illegal findings or alleged orders of defendant, causing irreparable injury to plaintiff’s status as a principal, and defendant should be enjoined from making any further publications. Because defendant had been guilty of malicious prosecution, libel, slander, defamation and violation of rights of privacy, plaintiff prayed for $100,000 in damages. Defendant answered, admitting the facts heretofore set forth, but denied liability on the basis the petition failed to state a claim upon which relief could be granted, governmental immunity, and absolute privilege in the performance of official acts.
On July 23, 1975, the district court granted summary judgment in favor of defendant. Its memorandum opinion stated:
“The failure to comply with the policy in the handbook is a matter to be raised in the proceeding. The exclusive remedy from the proceedings before the Board of Education is by appeal under K. S. A. 60-2101 (a). (Thompson v. Amis, 208 Kan. 658) The plaintiff .agreed and requested that the hearing before the Board should be open and public and cannot complain about adverse publicity resulting.
“Furthermore, proceedings before the Board of Education are quasi-judicial and, as such, such communications are therefor absolutely privileged. (Froelich v. Adair, 213 Kan. [357], 360; Clear Water Truck Co., Inc., v. Bruenger & Co., Inc., 214 Kan. 139.)”
Plaintiff urges this court to find that the actions of the board were void as it had no jurisdiction because it failed to follow its policy handbook. Using this as a point of departure, he further argues that since the board had no jurisdiction there was no decision to appeal under K. S. A. 60-2101 (a) [Corrick] (now K. S. A. 60-2101 [d] [Weeks]), and filing an independent action for an injunction and damages was his only remedy. Plaintiff concludes damages are in order because defendant did not act in a quasi-judicial atmosphere and its actions were malicious.
The pivotal issues in this case are whether the board had jurisdiction to conduct .the hearing on the complaint against plaintiff and whether the hearing was a quasi-judicial function. If so, the board had the power to conduct the hearing and issue a reprimand, protected from liability for civil suits, and plaintiff’s only recourse was an appeal pursuant to K. S. A. 60-2101 (a).
The right to hire, fire, and discipline employees is within the authority granted to a school board by statute. (K. S. A. 72-8205.) The board, however, must provide due process. (Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P. 2d 339, and cases cited therein.) The essential elements of due process of law are notice and an opportunity to be heard, and to defend in an orderly proceeding adapted to the nature of the case. (Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239; Carrigg v. Anderson, 167 Kan. 238, 205 P. 2d 1004; Endicott v. Van Petten, 330 F. Supp. 878 [D. C. Kan. 1971].)
We have no hesitancy in holding that a public employee who has received notice of a hearing and has appeared with benefit of counsel to present evidence in his defense has waived any technical defects in the procedure and has been accorded due process. (Million v. Board of Education, 181 Kan. 230, 310 P. 2d 917; Van Peursem v. Consolidated Ind. Sch. Dist., 240 Iowa 1100, 38 N. W. 2d 615 [1949]; Chadwick v. Grant Ind. Sch. Dist., 238 Iowa 498, 28 N. W. 2d 32 [1947]; Schrader v. Cameron Twp. Sch. Dist., 221 Iowa 799, 266 N. W. 473 [1936].)
The test for determining whether the acts of an administrative board are ministerial or quasi-judicial is set forth in Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966:
“There is a distinction between the types of decisions rendered by different administrative agencies; and some such agencies perform judicial or quasi-judicial functions while others do not.
“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to1 the creation of the administrative body.
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.
“In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determines its character as judicial or otherwise.” (Syl. 1, 2, 3, 4.)
In Thompson v. Amis, 208 Kan. 658, 663, 493 P. 2d 1259, cert. denied 409 U. S. 847, 34 L. Ed. 2d 88, 93 S. Ct. 53, we stated:
“It may be added that quasi-judicial is .a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.”
(See also; Stephens v. Unified School District, 218 Kan. 220, 546 P. 2d 197, and eases cited therein.)
Applying the test to the instant case, we hold that the board functioned in a quasi-judicial manner when it administered a reprimand to its employee as a result of a complaint filed by a patron.
Since defendant had jurisdiction to hold the hearing and it was quasi-judicial in nature, plaintiff’s action for injunction is precluded by K. S. A. 60-2101 (a). Under this statute the judgment or final order of a tribunal, board or officer exercising judicial or quasi-judicial functions must be appealed to the district court for review. Failure to comply with the statute prohibits a collateral attack by an independent action. In Thompson v. Amis, supra, we held:
“The Civil Service Board of Kansas exercises quasi-judicial functions and if a party is aggrieved by its order, the remedy is by appeal pursuant to K. S. A. 60-2101 (a), which remedy is exclusive.” (Syl. 7.)
In Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489, it was said:
“‘When so acting (as a quasi-judicial officer), he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision, provided the acts complained of are done within the scope of the officer’s authority.’ (22 R. C. L. 485.)
“ ‘The general rule protecting judges from civil liability for acts within the limits of their jurisdiction applies to officers exercising quasi-judicial powers. . . .’ (46 C. J. 1043.)” (p. 696.)
Professor Prosser, when speaking of absolute privilege in defamation suits, agrees that the privilege given to judges also applies to officers in quasi-judicial proceedings:
“The ‘judicial proceeding’ to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial, or ‘quasi-judicial,’ in character. . . .” (Prosser, Law of Torts [4th Ed.], § 114, pp. 779-80.)
In Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 519 P. 2d 682, quoting from Hanson, Libel and Related Torts, Absolute Privilege (Vol. 1), § 109, p. 86, we stated:
“ ‘In addition to regular judicial proceedings, an absolute privilege attaches also to administrative proceedings which are quasi-judicial in nature, such as hearings by licensing agencies or workman’s compensation boards, proceedings to remove public officers or employees, and other similar activities.’ ” (p. 142.)
The underlying principle upon which the doctrine of privileged communications rests is public policy. This is especially the case with absolute privilege. Judicial officials and administrative officials acting in a quasi-judicial capacity are charged with the responsi bility of protecting the best interests of the public by hearing and weighing evidence and rendering a decision. It is in the interest of the public that the best qualified persons serve in that capacity and that they be exposed to all the facts. But it becomes impossible for such officers to act if they must fear civil action for the exercise of judicial judgment. The public good therefore requires the cloak of absolute immunity for these officials. As Judge Learned Hand stated in Gregoire v. Biddle, 177 F. 2d 579 (2d Cir. 1949), cert. denied 339 U. S. 949, 94 L. Ed. 1363, 70 S. Ct. 803:
“. • . [I]t is impossible to know whether the claim is well founded until the case has been tried, and ... to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. ... In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . (p. 581.)
(See also, Froelich v. Adair, 213 Kan. 357, 360, 516 P. 2d 993; Munsell v. Ideal Food Stores, 208 Kan. 909, 920, 494 P. 2d 1063; Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 64, 340 P. 2d 396.)
Plaintiff argues the issue is answered by what we said in Schulze v. Coykendall, 218 Kan. 653, 545 P. 2d 392. This was a companion case which involved the school patron who brought the complaint before the school board in the instant case. Notwithstanding the dictum in Coykendall that the action of the board was ministerial, we believe the weight of authority as shown by the cases herein cited is to the contrary. In disapproving the statement in Coykendall, we recognize the issue was not briefed or argued in that case and our attention was not directed to the plethora of authority cited herein.
For the reasons set forth in the opinion the judgment of the trial court is affirmed. | [
-76,
-20,
-52,
-116,
10,
-95,
58,
-126,
89,
-93,
38,
-45,
-19,
-39,
13,
125,
-13,
45,
80,
122,
-41,
-78,
67,
65,
-122,
-13,
-6,
-43,
-69,
-34,
-12,
93,
77,
-80,
-118,
-43,
-26,
-54,
-59,
20,
-122,
7,
-87,
-46,
89,
-58,
48,
127,
26,
79,
49,
94,
-77,
40,
12,
67,
-88,
41,
-5,
-25,
68,
-79,
26,
-121,
69,
66,
-77,
36,
-98,
-121,
-16,
42,
24,
49,
-119,
-24,
51,
-74,
-126,
-12,
73,
-119,
8,
96,
98,
51,
-84,
-25,
-16,
-120,
78,
121,
13,
-25,
-97,
88,
35,
5,
-98,
-98,
112,
86,
7,
124,
-25,
-116,
18,
36,
10,
-54,
-124,
-79,
-113,
52,
-98,
6,
-21,
35,
0,
5,
-119,
-80,
94,
-57,
59,
95,
-58,
-76
] |
The opinion of the court was delivered by
Burch, J.:
In this case a tenant in a farm lease brought an action against his landlord for damages resulting from án alleged breach of contract. The landlord filed an answer which denied the breach of contract and asserted that the tenant was indebted to him for certain specified items. The case was submitted to a jury, which rendered a verdict in favor of the tenant for $393.29. The landlord filed a motion for a new trial. After the jury had been discharged the tenant filed a motion for leave to amend his petition by increasing the sum for which judgment was prayed and for an order increasing the amount of the verdict so that it would conform to the facts pleaded in the petition and the evidence introduced in support of the same. The trial court overruled the motion for a new trial; sustained the motion for leave to amend, and increased the amount of the verdict and the judgment thereon to the amount of $568.54, The landlord has appealed and contends that his motion - for 'a new trial should have been sustained and that the court erred in increasing the amount of the verdict and in entering judgment for the increased amount.
1. The first question to be considered is whether the landlord is entitled to a new trial. The landlord contends that the trial court erred in the admission of certain testimony; that the judgment in favor of the tenant was excessive, and that the verdict of the jury was not supported by the evidence. This is not a case in which it is asserted that the verdict of the jury was not supported by any evidence so that the question became a matter of law but it is only contended that the competent evidence considered by the jury does not justify the amount of its verdict. The record in this court must be sufficient to present the specified errors. The abstract does not set forth a copy of the motion for new trial. The record does not disclose whether the asserted trial errors relative to the admission of evidence were called’ to the attention of the trial court at the time of the argument on the motion for a new trial. The record is also silent as to whether the contention that the judgment was not supported by sufficient competent evidence was called to the attention of the trial court in connection with the motion for a new trial. We cannot determine whether such alleged errors were asserted in the motion for a new trial. The abstract only discloses that at the time the motion for a new trial was argued the landlord presented his affidavit that a certain witness, if called, would testify as to having paid the tenant the sum of $20 for kaffir corn. No showing was made establishing due diligence on the part of the landlord in attempting to have the witness present at the trial. The journal entry of judgment discloses that the trial court disposed of the contention by holding that the casé had been pending for more than two years and that, therefore, the landlord had failed to show reasonable diligence. The journal entry of judgment also discloses that the landlord, in presenting bis argument for a new, trial, asserted that the verdict was in whole or in part contrary to the evidence. In overruling the motion for a new trial on such ground, the court found that the discrepancy presented was too small to warrant the expense of a new trial and further that counsel for plaintiff had agreed to accept a remittitur to correct any variance. If any evidence was introduced pertaining to the question it is not included in the record before us. Also, we are wholly unable to learn from the record what items may have been referred to in argument of counsel in furtherance of the motion for a new trial and whether the contentions set forth in the brief filed by the landlord in this court were presented to and considered by the trial court at the time the motion for a new trial was argued. All trial errors and irregularities must be shown by the record to have been presented to the trial court on a motion for a new trial before they can be considered by this court on appeal. The rule is so well settled that it needs no citation of authorities, but see Anderson v. Shannon, 146 Kan. 704, 73 P. 2d 5, 114 A. L. R. 200; Finley v. Standley, 151 Kan. 520, 99 P. 2d 746, and Lish v. Wehmeyer, 158 Kan. 339, 147 P. 2d 712. Also, a contention that the amount of a judgment or verdict is not supported by sufficient competent evidence must affirmatively appear to have been asserted to the trial court in connection w'ith a motion for a new trial before it can be considered in this court. (See Decker v. House, 30 Kan. 614, 1 Pac. 584; McNally v. Keplinger, 37 Kan. 556,15 Pac. 534; Anderson v. Insurance Co., 55 Kan. 81, 39 Pac. 1038; Weaver v. City of Cherryvale, 102 Kan. 475, 170 Pac. 997; and Kinear v. Guthrie, 113 Kan. 692, 216 Pac. 280.) It follows that the record before us is insufficient to justify our reversing the ruling of the trial court denying the landlord a new trial.
2. The second question is whether the trial court was justified in increasing the amount of the verdict rendered by the jury and entering judgment for the increased amount long after the jury had been discharged. The motion to amend the petition by increasing the sum for which judgment was prayed was predicated upon the contention that the evidence introduced at the trial disclosed without contradiction that the landlord should pay the tenant for one-half of the value of the livestock increase under the terms of the written lease and that the landlord in his answer admitted that he had not accounted to the tenant for such sum. The motion also set forth that both parties to the action had introduced evidence to establish the value of the livestock increase and that there was no conflict in the testimony as to the value thereof. However, it is quite clear ' that the evidence may have been considered by the jury in determining the amount of the verdict returned in favor of the tenant. It is asserted by the tenant in the motion that an exhibit in the nature of a compilation of items of damages, which was attached to the the petition, inadvertently omitted the value of the increase in the livestock. From our examination of the exhibit, however, it appears that the value of the increase of the livestock was estimated and included in the exhibit and that the jury may have considered the value of such increase in determining the amount of its verdict.
The record in this case would not justify us in holding that the action was one for an accounting, in which, for some strange reason, a jury was called in an advisory capacity and that the court was justified in increasing the amount of the judgment to include an item which had been unintentionally overlooked in summarizing the .debits and credits of the respective parties. We can find no justification whatever for the trial court having increased the amount of the verdict and the judgment in the instant case. This is not a case wherein the jury’s verdiGt might be corrected by mathematical calculation or by merely determining interest which the jury failed to figure; neither is it an instance wherein the answers of the jury to special questions require that the amount of the general verdict be changed and it cannot be said in this case that no controversy existed as to the amount of recovery, as was true, for example, in the case of Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437. The rule applicable will be found stated in 53 Am. Jur. 758, § 1094, as follows:
“The judge cannot, under the guise of amending the verdict, invade the province of the juiy or substitute his verdict for theirs. After the amendment the verdict must be not what the judge thinks it ought to have been, but what the jury intended it to be.” ■
See, also, 64 C. J. 1094, § 894 et seq. If the court was dissatisfied with the amount of the verdict in the present case, it became the court’s duty to set the verdict aside and grant a new trial.
Apparently the district court was of the opinion that a new trial should not be granted. The appellee did not request a- new trial. This court is convinced that the evidence as to the value of the increase of the livestock could have been and probably was considered by the jury. The appellee should have asked leave to amend the prayer to his petition by increasing the amount set forth therein before the case was submitted to the jury. Consequently, the order of the district court increasing the amount of the verdict is set aside and the case is remanded with instructions to enter judgment in behalf of the tenant for the amount of the verdict returned by the jury less the undisclosed amount of the remittitur. | [
-14,
-6,
-3,
-113,
8,
96,
42,
-36,
105,
-127,
54,
87,
101,
-45,
4,
107,
-14,
125,
69,
107,
76,
-77,
6,
65,
-10,
-13,
-29,
-43,
-79,
111,
-27,
94,
78,
52,
-62,
-41,
-58,
-38,
-63,
92,
-114,
-113,
-103,
-27,
-23,
80,
48,
57,
84,
9,
37,
-34,
-13,
44,
57,
-61,
10,
40,
91,
61,
-16,
-7,
-102,
13,
107,
3,
-80,
54,
-100,
-58,
88,
44,
-106,
49,
1,
-24,
115,
-74,
-122,
20,
3,
-101,
45,
38,
98,
33,
69,
-17,
-8,
-104,
39,
126,
-113,
-90,
-111,
72,
75,
36,
-74,
-67,
116,
118,
39,
118,
-27,
-107,
25,
108,
3,
-57,
-42,
-77,
15,
100,
-110,
-120,
-21,
-93,
16,
97,
-116,
-32,
92,
103,
91,
-37,
-113,
-99
] |
The opinion of the court was delivered by
Wedell, J.:
This was an action for divorce, custody of minor children and division of property. Plaintiff prevailed and defendant appeals.’
The action for divorce was based upon appellant’s alleged gross neglect of duty and extreme cruelty. The court refused to grant a divorce on the latter ground but granted it on the former. It gave appellee the care, custody and control of two minor children, a boy twelve years of age and a girl ten years of age. It ordered appellant to pay $20 per month for their support and gave appellant the privilege of visiting the children at any and all reasonable times. It awarded the home, the furniture and household goods to appellee and gave a 1935 Chevrolet automobile to appellant. The costs of the action were taxed to the appellant but each party was required to pay his own attorneys’ fees.
Appellant complains of the judgment, contending: (1) Appellee’s bill of particulars was insufficient to constitute a cause of action for divorce on the ground of gross neglect of duty; (2) the evidence did not support a divorce on that ground; (3) the trial court was prejudiced in favor of appellee; (4) the division of property was inequitable; and (5) the court erred in overruling the motion for a new trial.
Appellee’s petition in substance alleged:
Appellant was guilty of gross neglect of duty and extreme cruelty; the parties were married at Wichita, November 17, 1930; two children were born of the marriage, a son and a daughter who had reached the respective ages of twelve and ten years; the property accumulated by the parties consisted of a home located at Haysville and household goods, two war bonds and a 1935 Chevrolet automobile.
Pursuant to the provisions of G. S. 1935, 60-1519, 'appellee, at appellant’s request, filed a bill of particulars and later an amended bill of particulars which with respect to gross neglect of duty alleged:
“First, that the defendant has filed [failed] for the past three years to support the plaintiff and their minor children and that the defendant has refused to work when he could have worked. That the plaintiff has furnished practically all of the support for herself and their minor children for the past three years by buying the necessary food and clothing. That the plaintiff paid $31 for a new set of false teeth for the defendant on March 17, 1945. That the plaintiff purchased a suit of clothing that the defendant was wearing in court on December 19, 1945, at the Davis Clothing Company and to the best of .the plaintiff’s recollection said suit was bought in the fall of 1944. And the said plaintiff purchased the defendant a pair of shoes in the summer of 1945 at Legan’s Shoe Store on East Douglas Street.. That the plaintiff gave the defendant cash from time to time, the exact amounts plaintiff can not state, but it has been within the past three years. That the plaintiff paid repair bills on the 'defendant’s automobile in the following amounts: On November 4, 1944, $8.20; June 23, 1944, $59.40; March 24, 1944, $2.75; August 7, 1944, $5.00; August 19, 1944, $7.75 and on March 24, 1945, $12.50.”
Appellant demurred to the bill of particulars. He contends the first two sentences thereof are not statements of fact but constitute mere conclusions of the pleader. The contention is not good. Moreover, other specific facts are alleged indicating appellee contributed also to appellant’s .maintenance. G. S. 1935, 60-1519, which provides for the filing of a bill of particulars in actions for divorce, or for alimony, or both divorce and alimony, makes no provision for the filing of a demurrer to the bill of particulars but ■if such a demurrer could be held perhiissible it was properly overruled in this case.
The second complaint is appellee’s evidence was not corroborated as required by G. S. 1935, 60-1509, and the demurrer thereto should have been sustained. For the purpose of the demurrer all evidence adduced on behalf of appellee was admitted to be true. It will serve no useful purpose to narrate the evidence in detail. The evidence supported the allegations of the petition and it was corroborated. This action was filed August 17, 1945. The petition alleged failure to support during the past three years. Accordingly such failure would have commenced in August, 1942. Some of the corroborating evidence disclosed appellant’s failure to support the family as early as November, 1941, and during the three-year period alleged.
Appellee’s own testimony further disclosed:
She borrowed $417 from her brothers which she was obliged to use’for the support of the family; appellant had done some work at Boeing’s but appellee did not know what he had done with his money; appellee also went to work at Boeing’s on appellant’s suggestion in December, 1942; she had purchased all clothing for the children with her own earnings since December, 1942; appellant’s failure to support the family was not due to inability to work or to lack of opportunity to do so.
The demurrer to appellee’s evidence was properly overruled.
Appellant insists the trial court erred in' overruling his motion for a new trial. He argues the weight of the testimony was contrary to the court’s finding of gross neglect of duty and discloses the court was prejudiced in appellee’s favor. Appellant’s evidence was highly conflicting with that of appellee. Portions of testimony adduced in support of appellant’s motion for a new trial likewise contradicted, or tended to contradict, appellee’s testimony. The court resolved the conflict. It stated:
“Disinterested parties have come in and testified on both sides and in the opinion of the court, the weight of the evidence is in favor of Mrs. Irwin.”
It is not our function but the duty of the trier of the facts to determine .both the credibility and the weight of the conflicting testimony. When they have been so resolved our responsibility is limited to determining whether there is substantial evidence, which if believed supports or tends to support the finding made. (Kelley v. Kelley, 158 Kan. 719, 728, 150 P. 2d 347.) Here the evidence does so.
Our attention is directed to appellant’s testimony touching appellee’s attentions to another man in July and later in 1945. The evidence does not appear to have weighed heavily in the judgment of the trial court, if the testimony was trúe it did not justify appellant’s failure to support the family in the preceding years.
Appellant also complains of the judgment pertaining to the custody of the children and the division of the property. While there is some evidence tending to show indiscretions and perhaps improper conduct of both parties, we think the record would not justify our disturbing the judgment granting the custody of the children to the mother. It would serve no legal or good purpose and would be of no benefit to the parties or their innocent children to include in this public record evidence of accusations the parties made against each other.
The record does not indicate the amount appellant paid for the little home at Haysville when he purchased it in 1939. Nor does it show the cost of the household furnishings. There was testimony appellee paid $700 • on improvements of the place including the raising of the house, putting a basement under a portion thereof, adding one room, a porch and bath thereto and the building of a chicken house on the premises. These were all proper subjects for the trial court’s consideration and exercise of discretion under the provisions of G. S. 1945 Supp. 60-1511. Appellee’s evidence further disclosed she was indebted in the sum of $417 for money she had borrowed from her brothers and spent for the support of the family. This, too, was a proper consideration in determining a just and equitable division of property rights. We do not think -we would be justified in saying the trial court abused sound judicial discretion in this respect.
The judgment is affirmed. | [
-48,
106,
-12,
76,
10,
98,
10,
-120,
114,
-95,
39,
83,
-21,
-57,
0,
105,
58,
45,
81,
104,
-63,
-73,
3,
114,
-110,
-77,
-7,
-51,
-79,
75,
-91,
-41,
76,
48,
-54,
-35,
-26,
-62,
-59,
20,
-50,
-124,
-85,
-20,
-40,
6,
52,
121,
114,
73,
21,
-82,
-9,
46,
60,
-45,
74,
46,
-33,
48,
-112,
-87,
-118,
-123,
95,
82,
-79,
0,
-98,
-91,
64,
58,
-104,
48,
0,
-20,
123,
-90,
-110,
116,
69,
-101,
9,
118,
103,
35,
-91,
-21,
-8,
-120,
14,
-9,
-113,
-89,
-102,
88,
2,
9,
-74,
-67,
116,
18,
15,
126,
-33,
-115,
125,
100,
11,
-113,
-106,
-69,
-115,
56,
-98,
26,
-21,
-93,
1,
113,
-53,
-94,
93,
7,
122,
-101,
-121,
-98
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action by a school teacher to recover salary under an alleged written contract of employment.
In his petition plaintiff alleged his qualifications as a teacher; that on April 9, 1932, at a regular meeting of the school district board held at the office of the county superintendent of Coffey county, a contract, in writing, was entered into whereby plaintiff was employed as a teacher for a period of eight months commencing September 5, 1932, and ending with the school year in 1933, at a salary of $72.50 per month; that on September 5,1932, plaintiff presented himself at the schoolhouse of the district prepared to teach the school and was informed that he would not be permitted to do so and that the contract was not recognized. Plaintiff claimed damages by reason of the breach of the alleged contract covering his salary at the rate of $72.50 per month with interest at 6 per cent upon each monthly payment as it became due.
The defendant’s answer admitted the plaintiff’s qualifications as a teacher, but denied execution of the contract and that it ever hired plaintiff as a teacher for school district No. 72 in Coffey county.
Evidence was introduced showing that there had been some discussion of the employment of a teacher at meetings of the district board held within the district, but nothing was concluded therein. Plaintiff and two members of the board went to see the third' member in regard to hiring plaintiff, but on a question being raised as to the regularity of the school meeting, all of the parties went to the county seat and consulted the county superintendent and the county attorney. Following such consultation a meeting was held in the halls of the courthouse and a teacher agreed on, and thereafter contract blanks were procured from the county superintendent and filled out and signed by the plaintiff and two members of the board. Although appellant argues there was an oral agreement made by the plaintiff and the two members of the board, if so, it was before the meeting with the third member, .and prior to the time when they all went to the county seat to see the county superintendent.
. At the close of plaintiff’s evidence defendant interposed a demurrer, which was overruled. At the conclusion of the trial the jury rendered a general verdict for the plaintiff and answered special questions submitted. The defendant filed proper motions therefor, and the court on hearing found that certain of the answers to special questions should be set aside; that defendant’s demurrer should have been sustained; that the verdict of the jury should be set aside for the reason that there was no competent legal evidence to support it, and that the verdict was contrary to the evidence; that plaintiff is bound by the allegations of his petition; that the contract sued on was made outside the geographical limits of the school district and was void and unenforceable. Defendant was permitted to withdraw its motion for a new trial and judgment was rendered in its favor.
Appellant contends that a verbal contract was made in the district and reduced to writing at the county seat, and that the board had power to contract outside the geographical limits of the district. Although there is contention about the oral contract, it clearly appears from the testimony that if any oral agreement was made between plaintiff and two members of the board, it was before the meeting with the third member, and when they came to his home, and as soon as the question of regularity of the school meeting and of their power to act was raised, the plaintiff and the members of the board, without agreeing on plaintiff’s employment or anything else so far as the record shows, went to the county seat and had the meeting as above mentioned. The only evidence of an oral contract is that, prior to the meeting with the third member, plaintiff and two members of the board agreed upon plaintiff’s employment. At the time there was no meeting of the board and no notice to the third member, and a binding contract could not be made (Aikman v. School District, 27 Kan. 129), even if it had been reduced to writing as required by statute (R. S. 72-1026). Had there been an oral contract, otherwise binding, that is not the contract plaintiff sued on. He declared on a written contract, and recovery could not be had on proof of a verbal contract (13 C. J. 753), especially where the statute prescribes that the contract must be in writing.
It was the contention of the appellee in the trial court that the contract was void by reason of the fact the board has no power to act outside its territorial limits, unless such power is specifically conferred by statute. Appellant contended that the contract was valid because there is no requirement of law that it must be entered into within the limits of the district. In. 56 C. J. 336, the rule is stated:
“In the absence of a statute permitting it, a meeting cannot validly be held outside the geographical limits of the district'for which the board acts.”
It has been held by this court that a justice of the peace must exercise his jurisdiction within the territorial limits of that jurisdiction. (Phillips v. Thralls, 26 Kan. 780.) In the case of Morrell v. Ingle, 23 Kan. 32, it was said:
“. . . the powers of any officer are limited to the territory of which he is an officer. He who affirms the existence of powers beyond such limits must show a grant of such powers. It is not enough to show that there is no express denial of them.” (p. 36.)
Likewise, it was held in the case of Comm’rs of Marion Co. v. Barker, 25 Kan. 258:
“The commissioners are officers of the county and in the absence of express provision their powers do not go beyond the territorial limits of their county.” (p. 260.)
The rule was applied as to county commissioners in State v. Scott Co., 58 Kan. 491, 49 Pac. 663:
“County commissioners are officers of the county and they cannot convene as a board, or exercise the powers conferred upon the board, outside the territorial limits of the county. Indeed, the order authorizing the compromise of the debt and the issue of refunding bonds could only be made when the commissioners were convened as a board in the courthouse at Scott City. It follows that the board had no jurisdiction to transact county business at Topeka; and the action there taken was clearly irregular and invalid.” (p. 495.)
The latest statement of the rule is in Markham v. Cornell, 136 Kan. 884, 18 P. 2d 158, the first paragraph of the syllabus reciting:
“Ordinarily an officer who holds an office for a particular political subdivision is powerless to perform an official act when beyond the territorial limits of the political subdivision for which he was elected.”
See, also, 19 R. C. L. 885 and 33 L. R. A. 86 with note.
If the powers of the governing bodies of municipal corporations are classified, boards of common-school districts will be in the lowest classification. They have no powers except such as are expressly granted or necessarily implied, and all persons who deal with them are presumed to have knowledge of their powers and the manner in which they may or must be exercised. (56 C. J. 331.) . In the absence of a statute permitting it, a meeting cannot be held outside the geographical limits of the district for which the- board acts. (56 C. J. 336.)
There being no statute authorizing the meeting of the board at the county seat and outside the geographical limits of the district, its action at such meeting was invalid and the contract was a nullity.
The judgment of the lower court is affirmed..
Hutchison, J., not sitting. | [
-112,
-8,
-80,
45,
10,
97,
58,
-102,
121,
-93,
39,
119,
-23,
-97,
4,
125,
83,
109,
80,
106,
-29,
-77,
34,
8,
-112,
-13,
-39,
-51,
-71,
75,
-76,
85,
77,
48,
-62,
-43,
-90,
66,
-63,
16,
-54,
-124,
-87,
-26,
-38,
0,
52,
81,
112,
11,
49,
-114,
115,
40,
29,
71,
-20,
60,
-37,
33,
64,
-15,
18,
-121,
127,
7,
-109,
36,
-98,
7,
-40,
46,
-104,
61,
-119,
-40,
26,
-90,
-58,
116,
5,
-119,
8,
100,
102,
50,
-68,
-51,
-12,
-55,
47,
-13,
-115,
-90,
-77,
88,
-94,
13,
-98,
-99,
116,
86,
7,
118,
-31,
5,
27,
44,
15,
-113,
-12,
51,
15,
108,
-98,
11,
-29,
2,
49,
65,
-49,
-90,
93,
71,
58,
-109,
111,
-100
] |
The opinion of the court was delivered by
Smith, J.:
This was an action by a materialman on a public contractor’s bond. Judgment was for plaintiff. Defendant appeals.
The contractor entered into a contract December 13,1930, to build certain sewers. This job was No. 59. The date of the contract was October 13, 1930. He gave the bond under R. S. 60-1413, and entered into a contract with plaintiff for certain materials. The materials were shipped, and Snyder agreed to pay $2,100.22 for them. He paid $1,000 but did not pay the balance. This suit was started June 25, 1931, against the surety company to collect the balance. At the trial of the case evidence disclosed that Snyder had entered into another contract with the city under date of October 27, or about fifteen days later than the date of the contract above mentioned, for the construction of certain other sewers, which job was described as job No. 63. A bond was given under date of November 3, 1930, for the completion of this contract. The evidence also disclosed that two items for which suit was brought on June 25, 1931, were not used on job No. 59, but were used on job No. 63. When this fact was disclosed by the evidence it became apparent that plaintiff could not recover for those two items in a suit based on the bond given to secure the performance of job No. 59. On this account plaintiff asked and was given permission to amend its petition to set out the execution of the contract for job No. 63, the giving of the bond thereunder and the default. The making of this amendment to the petition occurred more than six months after the completion of the contract. Defendant raised, by proper motion, and urges here that the third count, which set out the facts with reference to job No. 63, was a new cause of action and barred by the statute of limitations with reference to suits against bonding companies. The part of R. S. 60-1414 upon which defendant relies is as follows:
“Provided, That no action shall be brought on said bond after six months from the completion of said public improvements or public buildings.”
Appellee urges that the evidence showed that the two contracts were for the same general purpose; that is, the building of sewers, and between the same parties, and that the making of this amendment was within the discretion of the court.
It will be seen that the amendment was an attempt to state a cause of action growing out of a different contract for a different job and on a different bond than that upon which the original suit was based. There was no liability whatever upon the defendant except that growing out of the bond. In order to enforce liability on this bond it was necessary that suit should be brought within six months of the completion of the job. This was not done with reference to job No. 63. No suit was filed on that bond until much more time than that had elapsed. Now if the suit on the bond that was given with reference to job No. 59 had not been filed, no one would argue that the suit on the bond given with reference to job No. 63 had been filed in time. The question is, then, Does the fact that there was an action pending between the parties in connection with the same sort of work, but based on an altogether different-contract than that pleaded in an amendment of the petition in the pending action, bring such amendment within the time limit by reason of the original petition having been filed in time? The latest discussion of this subject is in Burger v. First Nat’l Bank, 124 Kan. 23, 254 Pac. 979. In that case the syllabus is as follows:
“When the petition, in stating a cause of action, sets forth a contract and its violation, an amendment to the petition which sets forth as a basis for the cause of action a new and different contract than that relied on in the original petition should not ordinarily be permitted to be filed, and if filed, it must be treated as though a new action was then filed on the cause of action therein stated.”
The opinion contains a discussion of other cases of this court.
In Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657, this court held:
“Amendments which only amplify or make more specific the averments of the original petition, or which state the wrong suffered or right relied on, are ordinarily permissible and will relate back to the beginning of the action; but where the amendment sets forth a new and different cause of action the statute of limitations continues to run until the amendment is filed.” (Syl. ¶ 1.)
And the application of the rule, as there stated, is as follows:
“In an action to recover damages for the negligent setting out of a fire which destroyed the plaintiff’s trees the original petition alleged that the fire was negligently set out at a certain time and place, and after the period of limitation had expired the plaintiff obtained leave to amend his petition so as to aver that the damage resulted from another and different fire, which was started five miles distant from the one relied on in the original petition. Held, that the amendment set out a distinct and different tort and a new cause of action, upon which a recovery was barred by the statute of limitations.” (Syl. ¶ 2.)
Other cases which have decided this question to the same effect are Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516, and Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932.
The third cause of action was an attempt to amend a petition that stated a cause of action as to certain items, to state a new cause of action as to these items under an entirely different contract and after limitations had run on the cause stated in the amendment. To permit this would be to nullify the statute of limitations. In line with the authorities quoted and cited we have concluded that this cannot be done.
The second cause of action was dismissed.
This leaves the first cause of action for our consideration. This count was based on the bond given to secure performance of job No. 59. The evidence disclosed that the city inspected the job and accepted it December 12, 1930. If this was the date of the completion of the contract, then this suit was brought too late and would be barred because it would have to be brought before June 12 in order to be within six months after the completion of the job. However, there was evidence that along about the 5th or 6th of January, 1931, the contractor did some work by way of a coat of plaster on a flush tank. If that is the date when the contract was completed, then the suit was brought in time.
The jury answered special questions as follows:
“1. Was the work done in the alley between 8th street and Otis avenue between January 3 and January 6, 1931, a part of the original contract, designated job No. 59? A. Yes.
“2. Was the work mentioned in the preceding question done by the defendant, Snyder, in good faith to comply with his contract with the city of Salina? A. Yes.
“3. Was it necessary that the work mentioned in the preceding question be done in order to complete the job according to the terms of the contract between Snyder and the city of Salina? A. Yes.
“4. On what date was the work completed by Snyder under the contract mentioned in the first count of the petition? A. January 6.
“5. Was any work done after December 12, 1930, by Snyder in connection with such Contract, which was reasonably required to be done in connection with the completion of such contract? A. Yes.
“6. If you answer the preceding question ‘yes,’ state what work was done after such date. A. Coat flush tank.”
The appellant argues that the contract was substantially finished December 12,1930, and that the small amount of work necessary to be done to this flush tank on January, 1931, was not sufficient to extend the time for filing suit. This argument is settled by the answers to the special questions, if there is evidence to sustain them. The argument of defendant is that the answers to questions 1, 2, 3 and 4, as above quoted, were really matters of law which the court should have determined rather than questions of fact to be submitted to the jury, and that the answers to these special questions should have been set aside on that ground.
Without going into a lengthy discussion of the evidence it is sufficient to state that it showed that flush tanks, including this one, were a part of job No. 59. Flush tanks are useless unless they hold water. The flush tank in question did not hold water when it was inspected by the city engineer. The contractor did some work on this flush tank between January 3 and 6, 1931. This work made the flush tank watertight. The specifications required flush tanks built of brick to be plastered with cement mortar not less than one-half inch thick. Prior to January 5 there was no cement mortar one-half inch thick on the inside of the flush tank in question. The evidence is clear that the city demanded that the contractor do the work in question. It was a part of the original contract and was necessary in order to complete the job and comply with the provisions of the contract. This question was treated in Citizens First Nat’l Bank v. Jefferson County Comm’rs, 126 Kan. 90, 267 Pac. 12. There the work in question was painting some guard rails. The court said:
“Regardless of the amount of work done, the matter is determined by the fact of whether the unfinished work was a part of the original contract, necessary to be done to complete the job and comply with the requirements of that contract.” (p. 92.)
See, also, Badger v. Parker, 85 Kan. 134, 116 Pac. 242; Dickey v. Guaranty Co., 107 Kan. 605, 193 Pac. 346; Sonner v. Mollohan, 112 Kan. 148, 210 Pac. 649; White Lumber Co. v. Fulton, Adm’r, 116 Kan. 694, 229 Pac. 363; Sash & Sales Co. v. Early et al., 117 Kan. 425, 232 Pac. 232.
The questions submitted to the jury were all questions of fact properly submitted and are sustained by the evidence.
Defendant argues that there was no allegation in the petition that the amount claimed was the fair and reasonable value of the material furnished. The petition alleged the contract between the contractor and plaintiff. It alleged and defendant admitted that plaintiff sold the materials in question, for which the contractor agreed to pay $2,100.22. Defendant did not controvert the agreement of plaintiff with the contractor and did not introduce any evidence that the amount claimed by plaintiff was for more than the materials were worth. Apparently this point is raised by the defendant for the first time by its brief in this court. We have heretofore held that this cannot be done. See Insurance Co. v. Baer, 94 Kan. 777, 147 Pac. 840; also, Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, where this court said:
“Unless the record shows that the matter was specifically and unequivocally brought to the attention of the trial court while it had possession of the case and power to dispose of it as justice required, this court will regard the issue as abandoned. It would be gross abuse of procedure for a defendant to veil an oversight in making proof under a general demurrer to the evidence and a general motion for a new trial, and then appeal to this court for a new trial when the evidence is all the time lying in a public office barely outside the reach of judicial knowledge, and when the new trial, if granted, would extend to that issue alone.” (p. 372.)
It is too late for defendant to raise the point that there was no allegation as to the reasonable value of the materials furnished, for the first time in this court. The trial court should have been given an opportunity to pass on it.
There is still another reason why this point is not good, as indicated by the rule laid down in 18 R. C. L. 938, as follows:
“The price agreed upon for labor or materials between a subcontractor and contractor, is, ‘prima fado, the reasonable value, and if a contract is entered into for a specific sum for labor or material, and is complete within itself, a detailed statement of the account is unnecessary.”
The case at bar comes within the rule above laid down.
Plaintiff filed a motion to dismiss the appeal in this court. Plaintiff points out that final judgment in this case was entered on July 28,1932. The notice of appeal was served January 27, 1933. This was more than three months after the judgment. Plaintiff argues that under the provisions of R. S. 1931 Supp. 40-219 the time for appeal was only three months instead of the six months provided by the appeal statute. The statute relied on is as follows:
“Whenever any insurance company shall become liable to pay any loss to any person in this state, and shall neglect or refuse for three months after final judgment to pay the same, there being no appeal pending, and no supersedeas bond filed, the company may be enjoined from doing any business in this state until the judgment is fully paid.”
It is argued that the appeal should suffer the same fate as the appeal in Ashworth v. Ancient Order of United Workmen, 135 Kan. 320, 10 P. 2d 857. There a somewhat similar statute was held to be a statute of limitations on the right to appeal. The statute there construed was R. S. 1931 Supp. 40-713. It is as follows:
“Any society authorized to do business under the provisions of this article refusing or neglecting to make the reports provided in this code, or which shall exceed its powers, or shall conduct its business fraudulently, or which shall fail to pay any judgment rendered against it in any court in this state, there being no appeal pending, within sixty days of the rendition of such judgment, or which shall fail to comply with any of the provisions of this act, shall be excluded from doing business within this state.”
It will be seen that the one statute provides that in case of a failure to appeal within three months “the company may be enjoined from doing business in this state” while the other says “shall be excluded from doing business within this state.” We are all of the opinion that the court went the limit in dismissing the appeal in the Ashworth case. We have, therefore, concluded that there is a difference in these two statutes and that the one we are considering contemplates that some affirmative action must be taken against the company before the statute will operate to bar a company from doing business, and that the appeal should not be dismissed.
The judgment of the trial court with reference to the third cause of action is reversed with directions to enter judgment for the defendant on that cause, and with reference to the first cause of action the judgment is affirmed. | [
-48,
120,
-36,
-2,
10,
64,
26,
-104,
89,
-96,
-27,
87,
-19,
70,
4,
97,
-15,
125,
112,
122,
-12,
-109,
35,
107,
-46,
-13,
-69,
-59,
57,
93,
-28,
-49,
76,
52,
66,
-99,
102,
-102,
-43,
94,
-54,
-124,
-87,
-19,
-39,
64,
52,
30,
112,
79,
53,
-36,
-29,
44,
25,
-57,
45,
58,
-21,
41,
-48,
-15,
-99,
-123,
127,
20,
-79,
69,
-100,
-63,
-48,
30,
-104,
49,
-128,
104,
114,
-90,
-58,
-10,
103,
-101,
40,
98,
98,
0,
-11,
-45,
-8,
-40,
37,
-98,
-115,
-90,
17,
88,
27,
32,
-74,
-99,
125,
16,
-90,
126,
-26,
21,
-33,
108,
3,
-113,
-14,
-13,
79,
112,
-102,
-127,
-18,
33,
16,
96,
-49,
-96,
92,
103,
51,
91,
15,
-104
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action in form to construe a will, actually to determine the amount in acreage of lands going to certain devisees under decedent’s will.
Timothy Hoyne by patent from the United States obtained title to the south half of the southwest quarter of section 18, township 14, range 3, Saline county, containing 85.11 acres. He also by patent from the United States obtained title to the north half of the above southwest quarter containing 85.09 acres. He also obtained title to other real estate not involved in this action.
Timothy Hoyne died May 24, 1915, leaving a last will which was thereafter admitted to probate in Saline county, Kansas. So far as is necessary to note here, the will devises lands as follows:
1. To his son John the W½ of the SW¼ of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
2. To his son William the E½ of the SW¼ of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
3. To his son Tim the W½ of the SE¼ of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
4. To his son Thomas the E½ of the SE¼ of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
The name of the county where the -land lies is not given, although preceding the above devises he gives his son Phillip other land in section 19, township 14, range 3 west of the 6th P. M., Saline county, Kansas.
Subsequent to the death of his father, William Hoyne died intestate, leaving as his heirs the plantiffs in this action. In their petition plaintiffs allege that the said southwest quarter contains 170.20 acres according to government survey; that under the terms of the will of Tim Hoyne they are the owners of the east 85.10 acres of the said southwest quarter and that the defendant Eleanora M. .Schneider claims to own the west 90.20 acres of said southwest quarter, and that a controversy has arisen between plaintiffs and the defendants as to the true construction of the will of said Tim Hoyne; that immediately after the death of Tim Hoyne, the son William took open and notorious possession of the east 85.10 acres of said southwest quarter and since that time he and the plaintiffs have been in open and exclusive possession of said 85.10 acres. The prayer is for a judgment construing said will and a determination of the rights of the parties in and to said lands so that each will know just how many of the acres in said quarter sections are owned by plaintiffs and the defendant, etc.
The defendant admits that Tim Hoyne owned the lands in question and left a will as above outlined. She alleges that she owns the west half of said southwest quarter and that it contains not less than 90.20 acres and that no part thereof is the property of the plaintiffs; that she is entitled to the immediate possession of the whole of the west half of said southwest quarter and the acreage thereof as determined by the government survey and that plaintiffs unlawfully keep her out of possession of a small part thereof. She asks that she be adjudged to be the legal owner of and entitled to the immediate possession of the west 90.20 acres of the southwest quarter of section 18, etc.
The evidence offered showed the facts recited. The county engineer was called as a witness and testified concerning a survey he had made. He produced from his office records the government field notes, map and official plat of section 18, all of which were duly identified and admitted. These documents show that the sec tion contains 660.32 acres; that the northwest quarter of the northwest quarter contains 45.05 acres; the southwest quarter of the northwest quarter 45.07 acres; the northwest quarter of the southwest quarter 45.09 acres, and the southwest quarter of the southwest quarter 45.11 acres. (Addition will show that these fractional tracts total 180.32 acres, which, subtracted from the total of 660.32 acres, leaves 480 acres for the remainder of the section.) The west half of the southeast quarter contains 80 acres and the east half of the southeast quarter contains 80 acres. The county engineer further testified with reference to making a survey, to finding stones at appropriate places, that all section corner stones were found, as well as the quarter corners on the north and west, the others being established, and explained that this section is on the west side of the township and in a government survey any shortage or overrun is on the west and north of the township; that the government in making the survey set the section corner and quarter corners, but did not set other corners in the field though it did in the field notes. In making the survey he found the southwest quarter actually contained 170.52 acres rather than the 170.20 acres called for by the government survey, and that according to the regulations he had prorated the excess, which gave, the east half of the southwest quarter 80.18 acres and the west half of the southwest quarter 90.34 acres. Defendant also offered a book put out by the General Land Office entitled “Lost or Obliterated Corners and Subdivisions of Sections,” and, among others, the following quotation therefrom:
“80. Subdivision of Quarter Sections Into Quarter Quarters. — Preliminary to the subdivision of quarter sections, the quarter quarter corners will be established at points midway between the section and quarter section corners, and between quarter corners and the center of the section, except on the last half mile of the lines closing on the north or west boundaries of a township, where they should be placed at 20 chains, proportionate measurement, to the north or west of the quarter section corner.’’ (p. 22.) (Italics ours.)
In addition to the above, it was shown William Hoyne contracted to sell his land. He described himself as an heir under the last will of Timothy Hoyne and contracted to sell the east half of the southwest quarter of section 18, township 14, range 3, according to the government survey. This contract was never carried out. It was shown John Hoyne sold the west half of said southwest quarter to Thomas Hoyne, who in turn sold it to the .National Bank of America, which in turn sold to Eleanora M. Schneider, whose deed states the description contained 90 acres more or less.
The trial court found for the plaintiffs and ordered that the boundary line between the east half and the west half of said southwest quarter should be and is at a point equidistant between the east line and the west line of said quarter section, and that plaintiffs are owners of 85.29 acres and defendant is the owner of the west 85.28 acres of said quarter section and barring each of the parties from land set off to the other. Defendant’s motion for a new trial was overruled, and she appeals.
Before taking up appellant’s contentions, the reason given by appellees to justify the correctness of the court’s order will be noticed briefly. They say that Timothy Hoyne in his will gave John Hoyne the west half and William Hoyne the east half of said quarter section, and that each took one-half in quantity, and—
“As we understand the rule, the words, ‘one-half’ is construed to mean one-half in quantity, unless the context of the instrument in which it is used, or other surrounding circumstances, changes the construction so that' the words in question were used in some other meaning.”
On the other hand, the appellant contends that the terms “east half” and “west half” had reference to the government survey, and that what John Hoyne and William Hoyne received under their father’s will is to be determined by reference to such survey. It will be noted that there is no dispute about what the government survey shows; that there is a total of 170.20 acres called for by the field notes, and that owing to some overrun on the ground the county engineer computed the total acreage as 170.52 aci*es. Neither is there any dispute that according to the government survey there is in the west half of said southwest quarter 90.20 acres as called for in the notes, and in the east half of said southwest quarter 80 acres as' called for in the notes, and that in the west half of the southeast quarter there is 80 acres and in the east half of the southeast quarter there is 80 acres, and that the field notes specify the east- and-west widths of the respective tracts on their southern boundaries as 22.56, 20, 20 and 20 chains. It may be remarked that appellees have appealed from the survey, although they offered it in evidence in this case. The proposition is solely what lands plaintiffs’ ancestor William received from his father and what lands defendant’s mesne grantor, John Hoyne, received, under the description used in the will of the father.
As appears from the Manual of Surveying Instructions for the Survey of Public Lands of the United States, and Private Land Claims, published as of January 1, 1902, Congress in 1805 directed the subdivision of public lands into quarter sections, and in 1820 provided for the sale of public lands in half quarter-sections, the act providing:
“In every case of the division of a quarter section the line for the division thereof shall run north and south . . . and fractional sections, containing 160 acres and upward, shall, in like manner, as nearly as practicable, be subdivided into half quarter-sections, under such rules and regulations as may be prescribed by the secretary of the treasury, . . .” (p.7.)
In 1832 provision was made directing the subdivision of the public-lands into quarter quarters, the act providing that fractional sections should be subdivided under rules and regulations prescribed by the secretary of the treasury. In 1849 the department of the interior was established and the land office was transferred from the treasury department to the department of the interior.
The first statute of the United States with reference to the survey of the public lands was enacted in 1796, but prior thereto and in 1784 the Continental Congress had made provisions for locating and disposing of lands in the western territory. Title 43 U. S. C. A., ch. 18, contains the law with reference to survey of public lands.
The 5th paragraph of section 751 of that title provides that—
“Where the exterior lines of the townships which may be subdivided into sections or half-sections exceed, or do not extend six miles, the excess or deficiency shall be specially noted, and added to or deducted from the western and northern ranges of sections or half-sections in- such township, according as the error may be in running the lines from east to west, or from north to south; the sections and half-sections bounded on the northern and western lines of such townships shall be sold as containing only the quantity expressed in the returns and plats respectively, and all others as containing the complete legal quantity.”
The second and third paragraphs of section 752 recite as follows:
“The boundary lines, actually run and marked in the surveys returned by the Field Surveying Service, shall be established as the proper boundary lines of the sections, or subdivisions, for which they were intended, and the length of such lines, as returned, shall be held and considered as the true length thereof. And the boundary lines which have not been actually run and marked shall be ascertained by running straight lines from the established comers to the opposite corresponding comers; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established comers due north and south or east and west lines, as the case may be, to the watercourse, Indian boundary line, or other external boundary of such fractional township.
“Each section or subdivision of section, the contents whereof have been returned by the Field Surveying Service, shall be held and considered as containing the exact quantity expressed in such return; and the half-sections and quarter-sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part, respectively, of the returned contents of the section of which they may make part.”
And section 753 recites as follows:
“In every case of the division of a quarter-section the line for the division thereof shall run north and south, and the corners and contents of half quarter-sections which may thereafter be sold, shall be ascertained in the manner and on the principles directed and prescribed by the section preceding, and fractional sections containing one hundred and sixty acres or upwards shall in like manner as nearly as practicable be subdivided into half quarter-sections, under such rules and regulations as may be prescribed by the secretary of the interior, and in every case of a division of a half quarter-section, the line for the division thereof shall run east and west, and the corners and contents of quarter quarter-sections, which may thereafter be sold, shall be ascertained as nearly as may be, in the manner, and on the principles, directed and prescribed by the section preceding; and fractional sections containing fewer or more than one hundred and sixty acres shall in like manner, as nearly as may be practicable, be subdivided into quarter quarter-sections, under such rules and regulations as may be prescribed by the secretary of the interior.”
In the above-mentioned Manual of Surveying Instructions promulgated under authority of the public lands acts of the United States, provision is made under section 233 for official township plats and for the marking by number in all cases where lots cannot properly be designated as quarter quarters, and recites:
“Those fractional lots which are not susceptible of being described according to relative local position will be numbered in a regular series; those bordering on the closing boundaries of a township to be numbered progressively from east to west or from north to south in each regular section.”
The federal statutes likewise make provision for certified copies of the surveyor’s field notes, the surveys and plats being made a part of the records of the state. The survey in the present case was made in 1858. The dates the particular patents above referred to were issued were May 1,1873, as to the south half and May 15,1880, as to the north half of the particular quarter section involved. It is well known that all of the lands in Kansas were surveyed by the United States and were practically all opened for preemption and later for homestead entry. In the greater number of conveyances of rural lands which have been made, the descriptions of the lands conveyed have used the nomenclature commonly used in describing the lands according to the government surveys. The particular question in this case is whether Timothy Hoyne intended by his will to divide the southwest quarter in controversy in equal quantitative shares or whether he intended it to go according to the government surveys.
In 4 Thompson on Real Property, section 3153, is the following:
“The word ‘half’ when used in describing land, should be construed as meaning ‘half in quantity,’ unless the context or surrounding facts and circumstances show a contrary intention. It was so held in a case where two tenants in common of a parcel of land, -which could not be equally divided by a north-and-south line drawn equidistant from its east-and-west lines, conveyed to each other the ‘east half’ and ‘west half’ respectively of said parcel, containing an equal number of acres, and without reference to the ‘government survey.’
“But in government surveys of the public lands the terms ‘east half’ and ‘west half’ are used, not with reference to quantity, but to a line equidistant from the boundary lines of the parcel subdivided, and those terms have the same signification in patents issued by the government; and this is true because so provided by act of congress. A deed of the ‘east half’ of a parcel of land ‘according to the United States survey’ is definite, and excludes the idea of two equal quantities, and fixes the dividing line equidistant from the boundary lines of the parcel thus subdivided.
“In the description of land under government surveys, if part of a section or of a quarter section be described as the ‘north side’ or the ‘north end,’ the words may be taken to mean the north half of the section or quarter section. ‘The term “eastern one-half,” in a deed conveying one-half of a tract of land, in the absence of admissible parol evidence disclosing a different intention, would mean the eastern half, formed by a line to be run due north and south through the tract; but if it appears that before the deed was executed a division into two parts, supposedly equal in area, had been made by a line, having a different bearing actually marked on the ground by stakes and fences, according to which possession had been held for a number of years, and the parties have since held possession according to such line, the words must be taken to mean the eastern one-half as so laid off and held in severalty.’ ”
18 C. J. 292, section 269, recites as follows:
“Ordinarily a conveyance of half of a tract of land will be construed as a conveyance of a half in quantity, but there is no universal rule that it shall be so interpreted; and where the intent of the parties to employ the term ‘half’ as describing a particular tract other than a half in quantity is apparent from the context or surrounding facts and circumstances, it will be given such meaning. So where a tract has previously been in some manner divided into two parts of approximately equal size, the usual presumption is that one of these parts is referred to. Where the description of a parcel forming part of a larger tract is otherwise sufficient, an inaccuracy in the statement of the proportion between the area of the parcel and that of the entire tract does not affect the title conveyed.
“Where a tract is divided by a line of the government survey, the term ‘half’ will ordinarily be referred to one of the parts so made. A conveyance of one half of a lot or forty-acre tract formed by the government survey will not, however, be presumed to intend a further subdivision of such lot by an extension of the method of subdivision by which it was created. And further, where the entire description is given effect by this construction, the word ‘half’ may be taken as meaning half in quantit.y without regard to the half as determined by the government survey.”
In 4 R. C. L. 120 it is said:
“Whenever land is described as the fraction of any subdivision — as, for instance, the southeast fractional quarter of a section — the rule of the construction which is applied will prohibit any extension of the grant beyond the lines of such southeast quarter irrespective of any extension which otherwise would have been permitted. And where land is conveyed in sections or subdivisions of sections, in areas which have been surveyed by the United States government, a presumption arises that reference is made to the public surveys of the United States. Where, however, land was conveyed in fractions of sections, as the south half of a certain section, extrinsic evidence has been held to be admissible to show that one-half in actual area of the section was intended.”
In a note as to the legal meaning of the word “half” in Annotated Cases 1913E, 1013, it is said that—
“The literal significance of the word ‘half’ is one of two equal parts into which anything may be divided.”
An examination of the cases cited shows that where the tracts refer to government descriptions, in most of the cases the lands are irregularly shaped, as where they border on a lake or a stream. The note states that—
“Where the term is used with reference to a section or other subdivision of a government survey, it will ordinarily be held to intend the half according to the lines of such survey though inequality of quantity results therefrom.”
The precise question involved in this case has not been before this court, but in the case of Gunn v. Brower, 81 Kan. 242, 105 Pac. 702, the question of the sufficiency of a description in a tax deed conveying a part of a fractional quarter section was the point in issue. In discussing the question the court said:
“But the language of the deed where it speaks of ‘the south half’ of this quarter section is open to two possible constructions. It may refer to the exact south half according to the actual acreage, or it may refer to one of the two substantially equal parts into which the quarter section is divided by the east-and-west line of the government survey. If it' is impossible to tell which is intended the deed may be void for indefiniteness. Where there is nothing to suggest the contrary the word ‘half,’ in connection with the con veyance of a part of a tract of land, is interpreted as meaning half in quantity. (Owen v. Henderson, 16 Wash. 39; Cogan v. Cook, 22 Minn. 137, 142; Hartford Mining Co. v. Cambria Mining Co., 80 Mich. 491; Jones v. Pashby, 62 Mich. 614.) But where a tract has previously been in some manner divided into two parts of approximately equal size the usual presumption is that one of these parts is referred to.
“ ‘The words “east half” and “west half” in a deed, while naturally importing an equal division, may lose that effect when it appears that at the time some fixed line or known boundary or monument divides the premises somewhere near the center, so that the expression more properly refers to one of such parts than to a mathematical division which never has been made. The expression in the deed is controlled by the situation existing upon the premises themselves, and the manner of their use, and the monuments and boundaries existing.’ (People v. Hall, 88 N. Y. Supp. 276, 279.)
“(See, also, Grandry v. Casey, 93 Mo. 595; Schmitz v. Schmitz, 19 Wis. [*207] 222.)
“This principle is applied where one of the lines of the government survey effects such a division. (Prentiss v. Brewer, 17 Wis. 635. See, also, Eddinger v. Woodke, 127 Mich. 41; Kinsey et al. v. Satterwaite, 88 Ind. 342; Turner v. The Union Pacific Ry. Co., 112 Mo. 542, 545.) It is not carried so far, however, as to involve an assumption that one who conveys the half of one of the smallest governmental subdivisions — a lot or a ‘forty’ — intends anything else than a division into equal parts. He is not presumed to have in mind a further partition of this surveyor’s unit — the smallest 'legal subdivision’ (Hopper v. Nation, 78 Kan. 198) — by an extension of the method by which it was created. (Cogan v. Cook, 22 Minn. 137, 142; Jones v. Pashby, 62 Mich. 614.) Possibly the rule referred to ought not to apply to tracts that are ‘fractional’ in the sense that they are irregular in shape because of the existence of a body of water or some other like obstacle, so that they can conform to no general rule. (Goltermann v. Schiermeyer, 111 Mo. 404, 416.) But it is rightly invoked in such a case as this, where the only irregularity is that common to practically all tracts along the northern and western boundaries of a township. Lot 4 of section 7 is commonly and intelligibly described as ‘the southwest quarter of the southwest quarter,’ just as the ‘southwest quarter’ itself is designated by that term notwithstanding its area is less than 160 acres. We hold that the deed to 'the south half of the southwest quarter’ passed title to lot 4 and the south half of the east half of the southwest quarter.” (p. 243.)
As has been noted, appellants contend that the will intended to convey the lands according to government survey and appellees contend an equal division was intended. The testator owned all of the land in the south half of section 18, and under the devises to his four sons, had the half-section contained exactly 320 acres, each would have received 80 acres. If it be held that he intended to give each of them the same quantity of land, then to be fully consistent the excess in the west side would have to be apportioned among the four sons, not merely between the two taking lands in the southwest quarter. And, if it be so held, no one would have taken according to the government survey, and the boundaries of what they received would, in no case, have coincided with the points fixed by such survey. As called for by the government plat, the south half of the section contains 330.20 acres and the southwest quarter of the section contains 170.20 acres. Appellees, however, make no argument about the lands in the southeast quarter, possibly for the reason that if the same be taken into consideration, they would receive only one-fourth of 330.20 acres or 82.55 acres, rather than one-half of 170.20 acres or 85.10 acres. There is nothing about the will that indicates the father intended that the entire south half should be divided into four equal quantitative parts. Can it be said that he intended the southwest quarter to be divided into two equal quantitative parts? Attention has been directed to the fact that in his will he described the lands according to United States survey terminology. That terminology furnishes a guide for determining what lands he devised and their location. He did not say the lands were in Saline county — he described them by a section, township and range west of the sixth principal meridian. Perhaps it might be said that the use of such descriptions did not indicate his intention with reference to division. However, he had obtained patents to the lands which showed that on the west side of the south half of the section there were excess lands, and he could not be ignorant of the fact that when the lands were surveyed and plats prepared the west half of the southwest quarter was shown to contain 90.20 acres and the east half to contain 80 acres, and that the field notes set forth figures as to distances which would contain such acreage. Had he intended to divide the entire south half of the section quantitatively equally among his four sons, or the southwest quarter quantitatively equally between his two sons, he could easily have expressed that intention. Under all the facts we are of the opinion that Timothy Hoyne intended, by the descriptions of real estate used in the various devises in his will, to refer to subdivisions according to the government survey, and that as to his sons John Hoyne and William Hoyne he did not intend an equal quantitative division of the southwest quarter of section 18. While not conclusive here, evidently the plaintiffs’ ancestor, William Hoyne, believed that he took according to the government survey, otherwise he would not, in a contract of sale of it, have said:
“By said will said William Hoyne inherits the east half of the southwest quarter of section eighteen (18), township fourteen (14), range three (3) west of the sixth p.m. in Saline county, Kansas, according to the government survey.” (Italic ours.)
Appellees call our attention to Wood v. Mandrilla, 167 Cal. 607, 140 Pac. 279, wherein a different conclusion was reached. In that case the court held there was no survey dividing o.r segregating the fractional quarter section into any lesser subdivisions and that the field notes showed a continuous, unbroken line of survey along the south line of the fractional quarter from the southeast to the southwest quarter, and the absence of any monuments or corners established thereon; that there was no provision in the law requiring the subdivision of a quarter section, and that if it were subdivided it was not properly so done, and that no tract of land known and designated as the east half of the quarter section was ever surveyed or segregated by a government survey. Under the facts as they appear in our case, a different conclusion must be and has been reached.
To sum up, we hold that under the facts, in devising the west half of the southwest quarter of section 18 to his son John, and the east half of the southwest quarter to his son William, Timothy Hoyne intended they should take the lands as indicated by the field notes and plat of the government survey, and did not intend an equal quantitative division between them.
It appears from the record that an appeal to the district court has been taken from a survey made in December of 1931. The matter of such survey, the correctness thereof, a determination that there is land in the southwest quarter in excess of that called for by the field notes and plat is not before us. When that appeal is disposed of, a disposition must, if the appeal is denied, be made of such excess lands.
The judgment of. the lower court is reversed, and the cause remanded for further proceedings consistent herewith.
Hutchison, J., not sitting. | [
-10,
108,
-100,
28,
10,
96,
104,
24,
81,
-13,
-25,
83,
79,
-102,
5,
63,
-29,
13,
-47,
106,
-25,
-77,
6,
-119,
-48,
-13,
-15,
-35,
-77,
-55,
54,
-41,
77,
32,
-54,
-107,
-58,
-54,
-59,
-108,
-50,
4,
11,
-15,
-53,
0,
52,
107,
86,
71,
81,
10,
-77,
42,
61,
-29,
-88,
46,
-37,
57,
9,
-72,
-113,
-121,
125,
23,
16,
2,
-112,
-121,
72,
42,
-112,
49,
-119,
-20,
91,
-90,
-106,
-12,
13,
-119,
40,
102,
103,
48,
29,
-17,
-16,
-120,
15,
90,
5,
-90,
-106,
88,
66,
109,
-74,
-103,
117,
48,
7,
-10,
-25,
13,
28,
-23,
4,
-113,
-42,
-127,
15,
124,
-120,
19,
-5,
45,
32,
112,
-119,
98,
92,
67,
57,
-109,
-113,
-104
] |
The opinion of the court was delivered by
Hutchison, J.:
This is a workmen’s compensation case which the commissioner, and later the trial judge on appeal, both held was barred by the three-year statute of limitations, and the claimant appeals from that ruling to this court.
The claimant was injured on May 1, 1929, made his claim on the employer for compensation on June 13, 1929, and filed his application with the commissioner on June 30, 1932, which was three years, and two months after the injury. The respondent filed a motion to dismiss the proceedings because the application showed upon its face that the proceeding was barred by the three-year statute of limitations (R. S. 60-306).
Appellant claims the workmen’s compensation law, as amended in 1927, is a special proceeding and is complete in itself, and the general statute of limitations does not apply to it nor control its proceedings. In this connection our attention is called to the many changes made in the law by the recent enactment of 1927, chapter 232, among others the elimination of the provisions in the earlier acts relating to trials in district courts and substituting therefor, in R. S. 193] Supp. 44-534 and other sections, a hearing before the commission, thus changing the proceeding for arriving at a determination of right to and amount of compensation from an action to a special proceeding. Appellant directs attention to a number of recent decisions of this court which show consideration of these changes and hold the commission to be an administrative body or agency, and that the new act is complete in itself and exclusive, and such as will not warrant the borrowing from the code any rules not included in the act itself. Some of these decisions are as follows:
“Previous to June 30, 1927, the workmen’s compensation act permitted civil actions to recover compensation. On that date a new act took effect, under which a proceeding to obtain compensation is administrative . . .” (Frary v. Roxana Petroleum Corp., 135 Kan. 216, 217, 9 P. 2d 652.)
“In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. . . . The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of the act for the methods of administration. We are not warranted in borrowing rules and methods from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provided a substitute.” (Norman v. Consolidated Cement Co., 127 Kan. 643, 649, 274 Pac. 233.)
“The commission provided for in the workmen’s compensation act is an administrative agency with some quasi-judicial functions, and the hearing and determination of claims presented to the commission are governed by the provisions of the compensation act itself, rather than by the rules prescribed in the code of civil procedure and the rules applicable in trials in courts of common-law actions.” (Holt v. Peterson Construction Co., 134 Kan. 149, syl. ¶ 1, 4 P. 2d 428.)
“The legislature has provided an administrative method of passing upon claims before the workmen’s compensation commission, one that is substantial, complete and exclusive, a summary and inexpensive remedy with special procedure, quite unlike that of the civil code, and we are not warranted in borrowing rules from the civil code not included in the act itself.” (Willis v. Skelly Oil Co., 135 Kan. 543, syl. ¶ 2, 11 P. 2d 980.)
“The workmen’s compensation act prescribes its own procedure for a judicial review of proceedings had before the compensation commission. . . .” (Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, syl. ¶ 1, 286 Pac. 396.)
There can be no question, from these decisions, that it has been the position of this court since the enactment of the 1927 law that it is regarded as being complete in itself, and no resort can be made to the code to supplement its provisions and no borrowing from the code is warranted to supply that which may be lacking in the act.
Respondent cites Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516, and Kasper v. Railway Co., 115 Kan. 610, 223 Pac. 1106, where it was held that subdivision two of R. S. 60-306, the three-year statute of limitations, applied to and governed actions under the workmen’s compensation law, and delayed actions would be barred by such limitation. This situation was, however, entirely changed by the reenactment and revision of the compensation law in 1927, as stated in most of the later decisions above cited. The change in the law, of course, makes these earlier decisions based on the old law inapplicable.
While it may not be necessary to go further than what was said in the recent decisions of this court, as above cited and quoted, with reference to the conclusion that the provisions of the general statute of limitations cannot be used to bar a proceeding under the present compensation law, yet it may properly be observed, as urged by the claimant, that most of those later decisions declare the proceeding under the present law to be a special proceeding and not an action, and, also, that it was plainly stated in Thomas v. Williams, 80 Kan. 632, 103 Pac. 772, that our statute of limitations was not made applicable to special proceedings.
Claimant insists that respondent could have forced a hearing under the arbitration provisions of the act, but that it would be quite unreasonable for the claimant to be granted limitless time because the respondent did not urge a hearing in a claim against himself.
Both claimant and respondent direct our attention to decisions in other states on the questions here involved, but they are not controlling, because their statutes differ. The case of Baur v. Common Pleas of Essex, 88 N. J. L. 128, 'is helpful in that it shows a step of progress in the way of adding to the compensation law of that state a section fixing a limitation of one year as to the time of commencing such special proceeding, admitting that prior to such amendment there was no . statute of limitations applicable, and holding that the amendment was not retroactive.
It is admitted that there is no specific provision in our present compensation act limiting the time for filing proceedings with the compensation commissioner, and appellant claims the giving of notice of claim, as prescribed by R. S. 1931 Supp. 44-520a, is all that is required, and if compliance with that requirement is made the claimant has unlimited time for commencing his special proceeding.
It is generally recognized, as stated in 37 C. J. 732 and held in McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247, that the workmen’s compensation law furnishes a remedy that did not exist at common law.
With the fundamental basis that the law is complete in itself and free from the control of limitations named in other statutes, and with the well-known purpose and design of the legislative undertaking in the enactment of this law, can we discern therein any plan or intention of the legislature with reference to any limitation of the delay in bringing such special proceedings? While the act has no specific limitation as to the commencement of special proceedings, it does have other limitations and supporting provisions for such, other than the ninety-day notice of claim. In section 520a of the compensation law (R. S. 1931 Supp., ch. 44) we find, in addition to the ninety-day limitation above mentioned, the following modification thereof: . . or within six (6) months after the death of the injured employee if death result from the injury within three (3) years after the date of the accident.” This section also refers to a limitation provision in section 509, which is as follows: “. . . and no limitation of time, in this act provided for, shall run, so long as such incompetent has no guardian.” Section 535 is as follows:
“The right to compensation shall be deemed in every case, including cases where death results from the injury, to have accrued to the injured workman or his dependents or legal representatives at the time of the accident, and the time limit in which to commence proceedings for compensation therefor shall run as against him, his legal representatives and dependents from the date of the accident.”
It will be observed that the legislature had in mind another time limit besides the ninety-day one, because it specifically refers to “the time limit in which to commence proceedings for compensation.” A limit is therefore contemplated and intended, although not expressed. To hold otherwise would be to entirely ignore the provisions of this last section and to give to the intelligent living workman an unlimited time for commencing his special proceeding, whereas for the insane it is unlimited only until the appointment of a guardian, as stated in section 509, and is three years for dependents of deceased workmen, as stated in section 520a.
It was said in the Norman case, supra, that the compensation law provided for the obtaining of compensation “in a quick, easy and inexpensive way.” Section 520 requires notice to the employer of the injury within ten days after the accident. Section 522 limits the action of the committee on settlement, to thirty days to make the settlement, or the matter must pass on under another provision. Section 523 fixes thirty days as the limit for the committee, arbitrator or commission to make the award after the matter has been submitted. Section 556 limits the taking of an appeal from the finding and award of the commission to twenty days, and the same length of time is allowed for filing notice of appeal from the decision in the district court to the supreme court.
By analogy and comparison a committee, arbitrator, commission or court can readily determine what a maximum limitation should be or would have been if the same legislature had gone the one step farther and definitely named a limitation, as it does state in section 535 there should be. The fact that three years was held under the old law to be the proper limit, and the fact that three years is the limit now in section 520a in case of .the death of the workman with reference to the six-months written claim, is sufficient to justify the conclusion that three years would afford a reasonable opportunity to commence this special proceeding, and any time beyond such period would certainly appear to be unreasonable. Section 523 of this same chapter provides that “The committee, arbitrator, commission or court, shall not be bound by technical rules of procedure, but shall give the parties reasonable opportunity to be heard and to present evidence.” Under ordinary circumstances, by comparison with similar provisions in this as well as other jurisdictions, three years is more than reasonable for such purpose where quick, easy and inexpensive service is expected and designed. It may become necessary in some cases for the committee, arbitrator or commission to hear the peculiar circumstances of a particular case and determine what a reasonable time would be. We are supported in this conclusion by the decision in Thomas v. Williams, 80 Kan. 632, 103 Pac. 772, where it was held in a special proceeding case that —
"The provision that an action for relief not otherwise provided for in the statute of limitation can only be brought within five years after the cause of action shall have accrued has no application to a proceeding instituted in the probate court by an executor for the sale of real estate to pay debts of the testator.
“There being no statute of limitation relating to the matter, the requirement of the law is that such a proceeding can be maintained only if begun within a reasonable time, in view of all the circumstances of the case.” (Syl. ¶¶ 1, 2.)
The proceeding in this case should be barred because three years is more than a reasonable time to commence it, but because it was barred for another reason and on the strength of a statute which is not applicable, the decision of the district court must be reversed, which holding also reverses the ruling of the commissioner. And as this court, as well as the district court, has no authority to remand with instructions or directions to the commissioner, our conclusion leaves the matter just where it was before the commission acted upon the motion to dismiss. It is so ordered. | [
-16,
122,
-4,
-99,
-117,
99,
2,
-110,
65,
-93,
37,
81,
-17,
-42,
21,
125,
75,
109,
81,
43,
-14,
-93,
19,
26,
-78,
-73,
89,
-49,
-67,
79,
-10,
118,
13,
48,
74,
-107,
-26,
-48,
65,
86,
-118,
-128,
-7,
-20,
89,
0,
52,
106,
-110,
31,
17,
-82,
-29,
43,
24,
-57,
44,
44,
91,
47,
-48,
-31,
-125,
13,
127,
16,
-95,
4,
-100,
5,
120,
30,
-104,
57,
48,
-20,
80,
-74,
-42,
116,
103,
-103,
0,
102,
98,
32,
17,
-25,
-8,
-72,
22,
-46,
-97,
-92,
-111,
88,
43,
3,
-100,
-103,
116,
20,
6,
126,
-12,
29,
85,
-84,
3,
-113,
-76,
-79,
-57,
100,
-84,
10,
-21,
-89,
-78,
113,
-50,
-26,
92,
103,
51,
-101,
-105,
-104
] |
The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of violation of the liquor law and appeals. The sole ground of appeal is, the county attorney was guilty of misconduct in his opening statement to the jury.
One afternoon defendant took two ladies riding in an automobile. The ladies sat in the front seat with him. They went west of town four or five miles and stopped at a house. After leaving the house defendant produced coca cola and alcohol, mixed them, and the members of the party all drank. After returning to town they had two more drinks, and defendant gave the husband of one of his guests a drink of alcohol. On the same day defendant told a wit ness for the state he had been out to a bootlegger’s, had gotten some liquor, and had a few drinks. Afterwards he told one of his guests to tell a different story, or her reputation would not amount to anything. She did not have money enough to leave the state. Defendant said the money could be raised, and told her where she could get it. She went to the designated place, got the money, and went to Kansas City, Mo.
In his opening statement to the jury the county attorney said:
“We will also show that he sent messengers to the different witnesses and told them that if they didn’t testify to a wrong statement of facts, other than was true, he would see that they were taken care of; . . . that Mr. Welsh sent word to the sheriff that if he prosecuted him, he would see that he was taken care of; that Mr. Welsh personally came to me and told me, before he was even arrested, that if I prosecuted him for any offense, he would see that I was beaten for reelection, and that affidavits were filed in the attorney-general’s office and I would be removed from office; that Mr. Welsh went to one witness and sent word to her after she' was in the hospital, that if she would keep quiet the fact that there was liquor in the party, he would pay her hospital expenses, ...”
There is no hint these statements were not made in good faith, they were all indicative of guilt, and so far as this record discloses, the county attorney was not guilty of misconduct in making the statements, which affected propriety of the conviction.
At the trial the county attorney rested on the evidence which has been outlined and did not extend the proof to cover assertions made in the opening statement. The court instructed the jury it should confine its deliberations to the evidence submitted from the witness stand and should not go beyond the facts proved. So far as the record shows, there was no defense to the action, guilt was fully proved by the evidence, and there is no basis for as much as a conjecture by this court that the jury did go beyond the evidence in finding defendant guilty.
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
49,
-22,
-99,
-67,
40,
-32,
42,
-36,
64,
-125,
-73,
115,
-23,
-64,
9,
43,
-70,
-17,
84,
105,
-42,
-73,
23,
1,
-10,
-77,
56,
-43,
-75,
79,
-28,
-4,
77,
48,
-54,
-11,
102,
74,
-57,
88,
-118,
4,
-101,
-56,
80,
-38,
52,
59,
71,
11,
117,
31,
-29,
40,
28,
67,
105,
44,
75,
62,
80,
-16,
10,
-107,
77,
20,
-125,
4,
-100,
-127,
-8,
46,
-104,
49,
1,
-8,
115,
-74,
-122,
116,
79,
-119,
-116,
38,
98,
33,
29,
-21,
-88,
-119,
47,
62,
-99,
-89,
88,
89,
75,
72,
-74,
-35,
126,
16,
6,
-8,
-21,
84,
121,
108,
4,
-53,
-106,
-79,
11,
36,
18,
90,
-17,
37,
21,
97,
-59,
102,
92,
85,
50,
27,
-120,
-108
] |
The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiff to recover his share of profits accruing from transactions with defendant relating to purchase and sale of land. The petition disclosed relations between the parties with respect to two tracts only. The answer disclosed relations with respect to eight other tracts, and an accounting became necessary. The court stated the account, found a balance due defendant, and rendered judgment accordingly. Plaintiff appeals.
The petition was filed in August, 1930. The answer, which contained a counterclaim, was filed March 28, 1931, and the reply was filed April 23, 1931. The abstract shows an amended petition filed June 22, 1931. The nature of the amendment is not disclosed. On April 1, 1931, plaintiff filed a written motion for reference of the cause to a referee for trial. The motion was denied, and the trial was before the court. The trial commenced on June 8, 1931. There were some continuances, and the trial was concluded on January 10, 1932. On February 15, 1932, the court submitted what was called a statement of the McKibben-Byers account. This statement consisted of a sort of balance-sheet summary which showed plaintiff indebted to defendant in the sum of $11,393.10. Nobody could tell how or why the court arrived at the items of the statement, or what the court’s views might be with respect to various law questions necessarily involved in stating the account. On March 7, 1932, plaintiff filed a motion requesting clarification of the tentative findings, and filed a motion requesting certain conclusions of law. On March 12 the motions were denied except as to a portion of one of them, the statement of account referred to was placed on file, and judgment was rendered in favor of defendant against plaintiff for $11,393.10. A motion for new trial was duly filed, and overruled. On September 8, 1932, four days before time for appeal expired, plaintiff served notice of appeal. On September 21,1932, the journal entry of judgment, containing the court’s findings of fact, was filed. It occupies 38 printed pages of the abstract.
As indicated, the controversy arose over dealings regarding land. Plaintiff resided in Dodge City, Kan., and for some years previous to 1917 was engaged in the general real-estate business, buying and selling real estate, both on his- own account and as agent or broker for others. Defendant was an investor who resided in Kansas City, Mo. The petition pleaded an oral agreement that whenever plaintiff found land he considered a bargain, defendant would finance the purchase, take title in his own name, and when the land was sold the profit would be divided equally between plaintiff and defendant. The answer pleaded an oral agreement that plaintiff would discover and investigate opportunities for acquisition of tracts of land, report to defendant, and if defendant approved, defendant would furnish the money and take title in his own name; plaintiff would oversee and manage improvement and operation of the land, all revenue to be property of defendant; plaintiff would exercise diligent effort to find purchasers for the land; when a purchaser on terms acceptable to defendant was found, the land would be sold; as compensation to plaintiff for his services rendered in acquiring, holding and selling the land, defendant would pay plaintiff one-half the net profit, computed according to a method described.
There is no testimony purporting to give the facts concerning what occurred which led to plaintiff and defendant having relations regarding land. Tracing the relations historically, in 1916 or 1917 they arranged to purchase about 52 quarter sections of land in Baca county, Colorado. Before that they had no agreement or understanding about handling land. Defendant testified the agreement with reference to that land was, they would buy the land together, defendant would furnish, the funds and take title, and net profits were to be divided equally. Net profit was to be computed by taking out interest on mortgages on the land, taxes, abstract and incidental expenditures, and six per cent interest to defendant on his investment. The land was raw, unfenced, scattered land. There was nothing to be done in the matter of looking after it, except to sell it, and there was no' further agreement respecting it. The arrangement did not contemplate improving the land, or using it for farming or ranching, but was confined to buying and selling the land.
Subsequently other tracts of land were purchased, and the relations of the parties broadened. Raw land was fenced, and other improvements were made. One tract was hay land, and hay was cut each year. Improved land was purchased, and it became necessary to procure tenants, look after crops, market crops, and in general to conduct farming operations. The result was, there came into the relation of the parties the new element of use of land pending sale, involving management, income and expenditure, not foreseen or considered when the relation concerning the Baca county land was formed.
Defendant testified he was in full active charge of use of land, and plaintiff was resident supervisor. Part of the time it might have been as nearly descriptive if defendant had said he was nonresident supervisor, with plaintiff in active charge. Plaintiff testified he did nothing except what defendant directed him to do. This was true in a general sense, but there was undisputed evidence that he in fact exercised independent judgment and discretion with respect to important matters. The testimony of each with respect to division and comparison of function is not important, because it is clear what acts each one performed. These need not be detailed.
Considering the evidence realistically, uncolored by legal theoiy, and uncolored by fudging statements and conclusions designed to sustain or oppose legal theory, the actual relations between the parties were simple enough. Plaintiff discovered land, which was purchased and held to be sold. Defendant furnished the purchase money and other money necessary to finance the project, and took title. When plaintiff found a buyer and the land was sold, defendant’s expenditures and interest on his advancements were deducted, and the net profit was divided equally. When the relation ship was extended to meet new conditions, the parties agreed respecting the conditions. Defendant advanced funds and took title as before. From gross- receipts, which included income from land, expenditures by and interest to defendant were deducted as before, and net profit was divided equally. Whenever a new tract was purchased there was an understanding with respect to how it would be handled, and that it was purchased under the plan pursuant to which plaintiff and defendant had been operating. Ultimately there was an agreement that loss on one venture might be deducted from profit on another.
In presenting the appeal the parties are not content to accept the facts and discuss legal consequences on the basis of actualities of the relationship. The facts must be cast into some legal mold having a recognized name, and rights and liabilities must be deduced from the name. Plaintiff says the relation was one of joint adventure. Defendant says the relation was one of master and servant. The district court in effect adopted the method of the parties and the theory of defendant. The court found that defendant Byers employed plaintiff McKibben to assist Byers in the acquisition, holding and disposition of various tracts of land in Kansas, Oklahoma and Colorado, and as compensation for McKibben’s services, Byers agreed to pay McKibben one-half the net profits realized by Byers. McKibben thus became Byers’ hired man, who was to get a share of what Byers made.
There is no substantial evidence to sustain the court’s finding. The business of buying and selling land, and later buying, using and selling land, was not Byers’ business alone. McKibben was associated with Byers in the business. McKibben put in his effort as an experienced real-estate man, and later his effort as supervisor in the field. Byers put in his money, and later his managerial effort. The combination was designed to produce a profit, which the contributors were to divide. While Byers held title to land, and McKibben had no interest in the sense of owner, McKibben had a power over every tract purchased. Every tract was bought to be sold, and when McKibben produced a purchaser, Byers could not stand on his rights as owner and refuse to sell. If his refusal were arbitrary or unfair, McKibben was privileged to treat him as converting to his own use the source of mutual profit. While money received by Byers from use of land was his money, when a land transaction was closed and a balance was struck showing a profit, McKibben shared that profit, not as a wage due from Byers, but as a product of the enterprise.
It might be a matter of interest to compare the status of the parties with that of partners, joint adventurers, principal and agent, master and servant, etc., but it is neither desirable nor proper to force the relationship into any of the standard categories. Justice will be accomplished by maintaining fidelity to the facts; and in any event, the elaborate findings of fact were framed on the basis of a relationship which did not exist.
After the trial, and while all plaintiff knew was that judgment against him for a large sum was impending, he requested certain declarations of law. The first and second follow:
“1. I find that the relation of the defendant to the plaintiff in the transactions involved in this case was that of trustee to the plaintiff who. was cestui que trust, it appearing that the defendant had the sole possession and control of all the property and funds involved herein and was bound to account to the plaintiff for any profit from the various transactions. That he occupied the position of trustee, and as such was held to the utmost good faith and fair dealing with the plaintiff and bound from time to time to make' proper and full statements of the various trusts.
“2. I find that the burden of proof throughout this case is on the defendant to prove all disbursements or payments made on account of the transactions here involved by preponderance of the evidence, and by the' best evidence available. The plaintiff is not bound to prove that payments in question herein were not made, but the defendant must prove the same before' he receives credit for them.”
When the facts of the relationship have been ascertained, the law imposes certain duties upon Byers. He had title to the source of all revenue; he paid and received all money; he was headquarters man at Kansas City, Mo., and kept all the accounts; and his first duty was loyalty and good faith.
Confusion in the law results from inaccurate terminology. The term “trustee” applies primarily to transactions in which a settlor transfers property to a trustee for the benefit of a third person, the beneficiary. The term, however, has been freely used by the courts for the purpose of indicating fiduciary and confidential relationships in which trusteeship proper was not involved. Defendant was a trustee for plaintiff in the common and popular sense that defendant bore a fiduciary relation to plaintiff. Such a relation does not exist between employer and employee. If the employee is to be paid from a share of profits, the business must be fairly conducted to make a profit, and an incidental accounting may be had to ascertain profits. But generally, relation of employer and employee is governed by legal principles, while fiduciary relationship is governed by equitable principles. In denying plaintiff’s first request, the court evidently did not stand on phraseology, but on the fact MeKibben was hired by Byers to assist Byers in Byers’ business, and was to be paid out of Byers’ profit. In such cases the burden rests on the employee to show the amount of profit.
Byers rested under a duty to MeKibben to keep and render clear and accurate accounts with respect to conduct of the business in which they were engaged. The burden of proof was on Byers to show he was entitled to each credit he claimed. Mere failure to keep proper accounts and to preserve vouchers may result in failure to establish claimed credits; and failure to produce vouchers may require application of the presumption that if the best evidence were produced it would be against allowance of the credit.
The court found that the various transactions between the parties had been kept and regarded by them as one mutual, open, running, continuous account. The finding gives a cast to the keeping of accounts by Byers not warranted by the evidence.
Byers kept books. Years ago MeKibben would from time to time ask for an accounting. He was frequently in Kansas City. Byers would show him how the books were kept; they would go over them, and Byers would show him debits and credits. At that time most transactions were unclosed, and the question was investment and expenditure. Byers had correspondence with MeKibben relating to how MeKibben stood, and Byers made some statements, the nature of which was not disclosed. Byers told MeKibben any time Mc-Kibben was in Kansas City they could go over the books, and Byers would show him in detail how the account stood. In recent years MeKibben did not make any demand for a general accounting. These are the facts according to Byers’ testimony. There is indisputable evidence that in May, 1924, MeKibben suggested to Byers that they “square some day,” and that in May, 1925, MeKibben asked for a statement concerning the Guymon ranch.
The books reached such a condition that the expert accountants employed by the parties could not agree. Under a contract between the parties, loss on one tract was chargeable against profit on another, and there can be no doubt that whenever the transactions relating to one tract were closed, Byers rested under a duty, growing out of his relation to McKibben, to render McKibben an account with respect to that tract. That was never done.
There was fair ground for holding Byers to strict proof. He inserted in his cross petition an utterly groundless claim against Mc-Kibben for $25,000, when the proof of falsity of the claim was in his own knowledge and possession. That was his attitude when called to account. The books themselves were not correctly kept, to Mc-Kibben’s prejudice. Item: The sum of $1,526 on which interest amounting to $1,274 was claimed. Item: On the farm books of one tract, Byers’ interest was carried as a half interest, and McKibben’s interest as half of that, or one-fourth. Byers acquired another one-fourth interest, but he concealed the purchase, and presented to the court an audit of his own books which showed Byers’ interest to be one-half, instead of three-quarters. Item: The sum of $4,052.12 for which no voucher could be produced, and which Byers could not explain. This item was allowed by the court on conjectures of Byers respecting what it was for.
The transcript is voluminous, and only a part of the record is before the court. The court does not propose to review the proceedings generally. The district court had a conception of the case fundamentally wrong, and this court is satisfied the erroneous view affected the decision.
The district court stated the account as of December 18, 1931, as near to the time of final decree as possible. This is the rule in a variety of accounting cases, but the rule was not applicable to the facts of this case. The answer alleged that since the year 1919 plaintiff and defendant had treated their agreement as virtually at an end, and had totally abandoned it. There was no truth in the allegation, but there was a discontinuance of relations previous to commencement of the suit. The petition was filed on August 17, 1930, and the relation of the parties under their previous agreements was definitely and indisputably ended on that date. McKibben had no further power over unsold land in Byers’ possession. Whatever Byers did with it was on his own account, and of no concern to Mc-Kibben. Byers was not obliged to account to McKibben for profits on subsequent sales, or profits from subsequent use of land or chattels, and Byers had no privilege to charge McKibben with subsequent expense, depreciation, or loss. Therefore, the account should have been stated as of the date of filing the petition. For reasons which need not be set forth at length, these observations apply to the unsold portion of the Minor ranch.
• The district court stated the following finding:
“That, under the original contract between plaintiff and defendant, the business was to consist of buying and selling of lands and fitting them for sale by proper improvements necessary to the sale; that it did not involve or contemplate any dealing in live stock or any other kind of business except the buying and selling of land; that subsequently, as lands were acquired, the contract was modified by mutual agreement and understanding that, while the lands were being held for resale, they should be used and such farming and ranching operations as were adaptable to said lands should be carried on thereon, in an effort to realize a profit from said lands while being so held.”
As indicated, the “original” contract related to the Baca county land, and did not include any agreement with respect to fitting it for sale. That contract never was modified by any general agreement that while lands were held for resale they should be used for farming or ranching operations to. which they were adapted, in an effort to realize a profit. There were agreements with respect to what should be done with particular tracts. To illustrate: When the Guymon, Okla., land was purchased, there was a definite agreement that it would be fenced and some wells would be dug, with the idea of making it a cattle ranch.
Byers testified concerning the agreement respecting the Powell ranch as follows:
“Q. Aside from division of profits after returning to you your investment and expenses, interest and so on; aside from the interest Mr. McKibben would have in each transaction, were there any other additional arrangements, additional conditions, put in your contract? A. Yes, there was.
“Q. When was that done? A. Well, when we took over the Powell ranch.
“Q. What year was that? A. 1918 I think.
“Q. What was that agreement? What did you do then? A. That was a piece of ground that was improved more or less; it was hay land, and had, I don’t know, I think — and the hay was cut every year, averaged from three to four hundred tons of hay, and we had an agreement whereby Mr. McKibben was to look after that place in that he was to see that we had — I don’t know, make an effort to lease the place, know what the' crop was, handle, take charge of the measuring of the hay, report to me what it was, possibly sell the hay from year to year, look after the new tenants on the place. . . .
“It was understood that he was to share in the crops as they came in, that was to be credited to the hay ranch; any crops that came in were' to be credited; he would share in the crop in that way; his share would be- one-half of the crop.
“Q. That would be considered income from the land? A. That would be considered income from the land.”
McKibben looked after the Powell ranch for several years. In 1922 an offer to purchase at a satisfactory price was received, but the deal was not consummated.
Hay became unsalable on account of the state of the cattle business, a tenant on the ranch was about to leave, and in 1929 Byers spent $10,768 in the purchase of sheep, which were placed on the ranch. Baled hay was used to make sheep sheds and pens, and hay was fed to the sheep. Late in the trial Byers disclosed for the first time a claim for loss on the sheep transaction. Byers testified as follows:
“Q. Before you went into the sheep speculation, did you consult with Mc-Kibben, get'his consent? A. No, sir.
“Q. He didn’t know anything about it? A. I don’t know whether he did or not.
“Q. You didn’t report it to him, did you? A. No, sir.
“Q. Never gave him any account of the sheep transaction? A. No, sir.
“Q. Why didn’t you report this sheep transaction as far as it had gone in the' audit of October 1, 1930, on your ranch? A. It wasn’t my habit to report any of my operations to him on any of the tracts of land; that wasn’t my custom, habit, or practice, in any way to report how I was operating the places.
“Q. You expended money on the place after that time? A. Certainly.
“Q. For instance, take the Minor ranch, you close that as of October 1, 1930; you gave your expenses from January 1, 1930, down to October 1, 1930, showing a loss of about $4,000; you take an inventory October 1, 1930, for the stuff you had on hand; why didn’t you do the same thing with the' Powell ranch? A. Because I had the Powell ranch those — the sheep at that time— when this audit was made, had been on hand such a short time that it was practically — I thought no object in taking an inventory, I wouldn’t want to buy sheep at one time and take an inventory in two or three months.
“Q. That the only explanation you want to make to the court? A. That is the only explanation there is.”
The court made the following finding:
“The court finds that the stocking of said lands with sheep was within the modified terms of the contract between plaintiff and defendant as hereinbefore set forth, and that the losses on the handling of the sheep is a proper charge against the profits of the transactions carried on under said contract; but at the request of the plaintiff the court finds that the losses incurred in the handling of said sheep on the Powell ranch was and is the sum of $7,934.87, one-half of which is charged against the plaintiff’s share of the profits of the transactions carried on under said contract.”
The finding that stocking the land with sheep was within the modified terms of the contract between the parties was in accordance with the finding of a general agreement that lands were to be used for purposes for which they were adapted. There was no such agree ment. The agreement upon which the Powell ranch was purchased and operated has been set out above. The result is, a share of the loss on the sheep transaction could not be charged against McKibben on the ground stated by the court.
The court found that Byers in good faith endeavored to make the handling of the sheep and use of hay and pasture profitable, but because of adverse conditions loss resulted. What he should have done was to act in good faith with McKibben in going into the sheep business. He did not base his conduct on the fact his contract with McKibben was at an end. In that event he purchased the sheep on his own account. He deviated from the contract with McKibben in utter disregard of McKibben, and if he had made money on wool and mutton he was in a position to account to McKibben for appropriation of unsalable hay.
The authorities with respect to deviation by a trustee are not harmonious, and it is not necessary to review them here. In this instance there was no emergency requiring Byers to act quickly. He did not pretend that anything stood in the way of consulting Mc-Kibben about converting the ranch into' a sheep ranch. He made no effort to secure McKibben’s consent, and he was utterly indifferent to what McKibben’s attitude toward the project might be. After he had expended a large sum of money in a speculative enterprise,-, he gave McKibben no opportunity to approve or disapprove. He closed an audit of his books to be used in .aiding the court as of October 1, 1930, without showing the sheep account, which originated in 1929. The audit was presented in court on June 22, 1931. In December, 1931, he proposed to charge McKibben with half the loss. There are good grounds to believe Byers always regarded the sheep transaction as his own affair. In any event, his conduct was such that, as one occupying a fiduciary relation, he had no standing in equity to charge half the loss to McKibben, and in the accounting the sheep venture should have been disregarded.
The nature of the case is such that this court cannot correct the findings generally and order judgment. A new statement of the account is necessary, which shall be arrived at in accordance with the views respecting the facts and the views respecting the law which have been announced. In the accounting the parties shall be confined to transactions embraced in the former accounting. Items not determined by what has been said are open to fresh investigation.
The judgment of the district court is reversed, and the cause is remanded with direction to proceed as indicated. | [
-12,
106,
-71,
47,
-118,
96,
40,
-38,
72,
-95,
37,
127,
-23,
74,
4,
109,
-38,
45,
85,
104,
-28,
-77,
7,
-64,
-46,
-13,
-37,
-43,
-75,
93,
-28,
-41,
77,
48,
-62,
-107,
-58,
-62,
69,
30,
-114,
-124,
41,
-52,
-39,
64,
52,
107,
21,
8,
113,
-81,
-13,
40,
29,
66,
105,
46,
-1,
-72,
-47,
-16,
-85,
5,
127,
22,
1,
0,
-104,
65,
-56,
42,
-112,
48,
33,
-56,
119,
-90,
-106,
116,
7,
-103,
40,
38,
102,
33,
49,
-17,
-104,
-104,
15,
-5,
-99,
-25,
-16,
88,
-126,
40,
-66,
-103,
117,
16,
7,
-4,
-24,
-107,
29,
108,
7,
-118,
-10,
-109,
-113,
118,
-103,
11,
-21,
-93,
48,
96,
-115,
2,
92,
71,
122,
-109,
-97,
-40
] |
The opinion of the court was delivered by
Smith, J.:
This was an action in justice court. The appeal from the justice court to the district court was dismissed. Defendant appeals.
Judgment was given in justice court for plaintiff. The defendant served upon counsel for plaintiff a notice of appeal to the district court. At the same time a deposit of $15 was deposited with the justice of the peace to secure the costs of appeal. No appeal bond was filed. Plaintiff filed a motion to dismiss the appeal. This motion was sustained. It is from that order that this appeal is taken.
The section providing for appeals from justice court prior to the enactment of chapter 229 of the Laws of 1931 was R. S. 61-1002. It provided as follows:
“The party appealing shall, within ten days from the rendition of judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned, first, that the appellant will prosecute the appeal to effect and without unnecessary delay; and second, that if judgment be rendered against him on the appeal he will satisfy such judgment and costs; said undertaking need not be signed by the appellant.”
In Beckwith v. K. C. & O. Rld. Co., 28 Kan. 484, this court passed on an attempt to appeal under this statute by making a deposit in lieu of an appeal bond. In that case it was held:
“The statute does not authorize a party attempting to appeal from the award of commissioners condemning the right of way through real estate for a railroad company to deposit money with the county clerk in lieu of entering into a written undertaking, as prescribed by the statute; and where a party attempting to appeal from the award fails, within the period specified by the statute, to enter into a written undertaking to the adverse party, the court commits no error in dismissing the appeal for want of an appeal undertaking.”
In considering the matter the court said that since the statute had not been complied with no appeal had been taken, and since no bond had been filed it could not be urged that the bond was simply insufficient or irregular. The conclusion was that nothing whatever had been done toward perfecting an appeal until after the time for taking an appeal had passed.
Defendant urges upon our attention an amendment to R. S. 61-1002. It is R. S. 1931 Supp. 61-1002, and is as follows:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal, unless, by reason of his poverty, he is unable to give security for costs, which fact shall be shown by affidavit filed in said court at the time the appeal is taken. And thereupon the appeal shall be deemed perfected.”
Also, R. S. 1931 Supp. 61-1001, which is as follows:
“All appeals from justice of the peace and city and county courts in civil cases shall be by notice of appeal specifying the order,' ruling, decision or judgment complained of, and shall be filed in the court from which the ap peal is taken within ten days from the date of such order, ruling, decision or judgment.”
It is argued by defendant that when he filed the notice his appeal was perfected and that he should have been permitted to file a bond for costs when he filed his motion for permission to do so. We have concluded, however, that there is only one way to take an appeal. Two things must be done. A notice must be filed and an appeal bond given. There is no provision for a deposit of cash in lieu of a bond. The two sections must be construed together. When so construed both sections must be complied with within ten days. This was not done. Therefore, the motion to dismiss the appeal was properly sustained.
The judgment of the trial court is affirmed.
Hutchison, J., not sitting. | [
-44,
-8,
-4,
28,
-54,
-32,
50,
-97,
67,
-29,
-25,
83,
-83,
66,
0,
59,
-37,
45,
101,
104,
-34,
-77,
23,
67,
-14,
-77,
27,
-35,
-67,
93,
-12,
-42,
72,
48,
74,
21,
70,
-56,
69,
28,
-114,
-127,
9,
-20,
105,
105,
48,
-29,
22,
15,
117,
-2,
-13,
40,
24,
-29,
-55,
41,
-53,
-89,
-48,
-15,
-125,
-115,
127,
20,
-95,
-63,
-36,
7,
112,
-66,
-104,
49,
1,
-24,
114,
-90,
-122,
-12,
109,
-117,
8,
-18,
98,
33,
-107,
-21,
-88,
-88,
14,
-106,
-99,
-25,
-109,
24,
106,
37,
-106,
-103,
125,
22,
-122,
-4,
-30,
4,
91,
108,
1,
-53,
-80,
-77,
-113,
124,
-128,
73,
-21,
-127,
48,
96,
-51,
-30,
94,
71,
113,
27,
-50,
-72
] |
The opinion of the court was delivered by
Dawson, J.:
These appeals, which have been consolidated for review, pertain to separate convictions of defendant for felonious assaults committed on his wife and brother-in-law.
Case No. 31,226 presents the record of the trial in the district court of Douglas county for the assault on defendant’s brother-in-law; and case No. 31,411 presents the record of the trial in the district court of Franklin county, upon a change of venue, for the assault on his wife.
It appears that the defendant, George F. Taylor, and Bessie Christenson Taylor were married in 1921. Four children were born to them. At the time of the incidents narrated below, these were Ellard Wesley, aged 11; Edgar, 7; George Earl, 5, and Herbert, 2. The family lived for a time in Missouri, then in Iowa, again in Missouri, and eventually in Lawrence, Kan. The domestic life of husband and wife was not a happy one. The wife testified that on various occasions defendant threatened to kill her. In January, 1932, he chased her out of the house with a gun. She called the police and he was locked up for two days. About May 1, 1932, the discordant couple finally separated. Mrs. Taylor took her children to the residence of her brother, Everett Christenson, in Lawrence, and they have made their home with him since that time. Taylor traveled about the country — to Wichita, to Kansas City and elsewhere.
On July 6, 1932, while en route from Wichita to Kansas City, Taylor called at the Christenson home about 9 o’clock at night. Mrs. Taylor and the children were eating supper. He spoke to his wife through the window, saying, “Bessie, can I come in and see the children?” She said, “Yes, come in.” He came in and kissed the children. Mrs. Taylor began to search his pockets to discover if he was armed. He drew out $10 and gave it to her, saying, “Here, take this, if that’s what you’re wanting.” He also said he had a watch in his automobile for Edgar and went out to get it. The mother and two oldest children went along. About that time the brother-in-law, Everett Christenson, came home and found the two youngest children at the supper table. He took the baby on his arm and George Earl by the hand and went outside and in the semidarkness saw his sister talking to defendant. Taylor said, “Let me see little George Earl,” and picked him up. Then he said, “I think I will take little George Earl with me,” and set the child down in the seat of his automobile. The mother screamed and rushed to recover it. Christenson, who still held the baby in his arms, put one foot on the running board and said, “Listen, George, you can’t do that; you shouldn’t do that.” Taylor backed out of the car with a gun. Christenson beat a rapid retreat. When he had gotten about fifteen feet away Taylor shot him in the back. This caused Christenson to let the baby fall, but he continued to run. When he was about ten feet farther away another bullet from Taylor’s gun struck him in the back and he fell. Taylor then turned his attention to his wife. He shot at but missed her; then he seized her and shot her in the left breast. She testified:
“I remember seeing him turn and shoot at me. It seemed to me that a furnace must have grazed me. I remember that he grabbed me. It felt like a furnace or red hot poker, wonderful sensation just like a red hot poker going through me. I remember distinctly that it was Everett Christenson that was shot first. He shot him twice. He didn’t grab me until he shot once and missed me, and then pointed here (indicating), here (indicating), and here (indicating). He wanted to be sure he got the right place. Finally I had that wonderful sensation to go through me; just like fire. I didn’t see any fight there between my brother and George Taylor. There wasn’t any such fight. I distinctly remember that. I was in the hospital nearly eight months.”
Taylor then fled, taking the child with him. He changed automobile license numbers in Ottawa. At Arkansas City next day he cashed a $1,000 bond and withdrew a deposit of $250 from a local bank there, and was arrested in Laredo, Tex., three days later.
Separate prosecutions for the shooting of the two persons were instituted against defendant in Douglas county. Separate motions for a change of venue were filed. The trial court took these under advisement, and eventually overruled the application in case No. 31,226, and granted it in case No. 31,411. The jury returned a verdict of guilty of assault with intent to commit manslaughter in the case tried in Douglas county, and in Franklin county the jury returned a verdict of guilty of assault with intent to kill.
Judgment in each case was entered accordingly, and defendant assigns various errors, the first of which relates to the overruling of the application for a change of venue in case No. 31,226. In support of the application defendant submitted nine affidavits identical in terms, and which obviously had been prepared with blank spaces for affiants’ names, occupations and addresses ready to be filled in upon obtaining the signatures of whatever persons were complaisant enough to sign them. This showing was supplemented by excerpts from newspapers published in Lawrence and Kansas City purporting to give the facts of the shooting of defendant’s wife and brother-in-law; of their slow progress toward recovery in a hospital, and of defendant’s flight and capture. This showing was also supplemented by the affidavit of one of defendant’s attorneys who averred that he had talked with a great many citizens residing in different parts of the county, and —
"With two exceptions all of said persons expressed their opinion that they did not believe that the defendant could have a fair and impartial trial in this cause in Douglas county, Kansas, because of the prejudice of the citizens thereof. That said persons further stated that they believed that the citizens of Douglas county, Kansas, have already made up their minds that the defendant, George F. Taylor, is guilty as charged in this cause and further that there is considerable feeling in Douglas county, Kansas, against said defendant. This affiant has talked to several female citizens of this county, all of whom stated that they believed and that they thought every other citizen of the county believed that said defendant was guilty and that they did not believe that a change of venue should be granted, for the reason that said George F. Taylor should be sent to the penitentiary and that he should be given no chance to escape by reason of said cause being transferred to another county.”
A perusal of the circularized affidavits is not persuasive. The newspaper excerpts were ordinary news items rehashed with unimportant additions from time to time in accordance with the familiar practice of publishers when they get hold of a story of crime which they deem to be of continuing interest to their readers. There was nothing inflammatory in the excerpts, nothing likely to provoke public opinion hostile to defendant or to create a condition which would prevent a fair trial in Douglas county. And so far as the Kansas City newspaper comments were concerned, they could not be given such significance as to compel a change of venue, since those newspapers have a state-wide circulation, and any hostility they might provoke ip Douglas county might be as potent in any other county to which a change of-venue would be granted.
Touching the affidavit of the attorney, since it was designed to supply evidence on a matter other than one of mere formality, the trial court, without impropriety, may have ignored it altogether. (Rule 19, Canons of Professional Ethics, 135 Kan. vii.)
But the point is stressed that the state did not even take the trouble to file counter affidavits opposing the application for a change of venue. What the state did do was to submit the question on the showing made by defendant. The trial court withheld its ruling on the application for a change of venue until the jury was called and examined on their voir dire. When the court had heard their responses and had noted the short time required to qualify a jury, it ruled:
“There is "an application for a change of venue in this case. The application is denied.”
In view of the foregoing, this court must hold that prejudicial error in refusing to grant a change of venue does not appear. (State v. Furbeck, 29 Kan. 532; State v. Knadler, 40 Kan. 359, 19 Pac. 923; State v. Parmenter, 70 Kan. 513, 79 Pac. 123; State v. Bassnett, 80 Kan. 392, 102 Pac. 401; State v. Tawney, 83 Kan. 603, 604, 112 Pac. 161; State v. Welch, 121 Kan. 369, 372, 247 Pac. 1053; State v. Harris, 126 Kan. 710, 271 Pac. 316.)
Defendant cites the recent case of State v. Taylor, 137 Kan. 280, 20 P. 2d 628. But in that case this court did not hold that the application for a change of venue should have been granted, but merely that it was error to dispose of the motion on nonjudicial considerations. (State v. Taylor, supra, p. 284.)
Error in this case, No. 31,226, is also based on instructions given and refused. Those given are criticized on the ground that they did not give proper significance to the principles of Kansas law that under ordinary circumstances the father and mother of minor children born in lawful wedlock have an equal and joint right to their possession, custody and control, and neither parent has a superior right to that of the other. (Miller v. Morrison, 43 Kan. 446, 448, 23 Pac. 612.) The inclusion of the matter of self-defense in the instructions grew out of defendant’s own testimony that Everett Christenson struck him three times as he was putting the child in the automobile. Defendant’s version of the episode which led to the double shooting reads:
“As I handed the watch to Edgar, I looked up and Everett was standing north of me, just a few feet, with the baby in his arms and George Earl was standing beside him. I said, ‘Hello, Everett,’ and I reached down and picked up little George Earl and kissed him. As I did this Everett said, ‘What’s going on? Put that kid down.’ Everett then advanced toward me and my wife screamed, ‘Look out, Everett has got a gun.’ I swung around and set George Earl on the unpacked suitcase, under the wheel. As I did this, Everett hit me in the right temple. The door kept me from falling. My wife tried to run between Everett and myself. I was hit three times. I got my hands on the gun and as I did my wife screamed and grabbed it, about the time I was hit the third blow. I thrust the gun over my left shoulder and was pushing my wife away with my left hand. Everett was behind me. My wife had her arms around my waist, pinning my left arm down. The hammer snapped down on the safety and Everett grabbed my arm and the gun was discharged in front of my wife. I swung around and pulled the trigger three more times. Everett was about three feet away from me and started to run towards the house. The last I saw of Everett he was probably fifteen, feet- away. I looked around then and my wife had slumped down in the alley to the north of me. I said, ‘Bessie, Bessie!’ and she didn’t answer me. I was pretty excited. I got in the car and drove away. I drove to Arkansas City next morning and ended up in Laredo, Texas.”
Although this testimony was altogether at variance with the evidence given by the state’s three witnesses — the wife, the eleven-year-old son and Christenson — the trial court treated it with impartial fairness in its instructions, which read:
“10. The defendant, as has already been suggested, has entered a plea of not guilty to the charge against him. He also claims that whatever he may have done, in connection with the shooting and wounding of Everett Christenson, was done by him in the lawful defense of his person. In connection with the defendant’s claim of self-defense, I have to advise you that a person who is set upon or attacked is not required to back away or flee, but is justified and warranted in standing his ground and "using such force as seems at the time to him to be reasonably necessary to repel the other party’s aggression. You will see from this statement that the defendant may have shot Everett Christenson and still be innocent of any offense against the law of this state, if in shooting and wounding Christenson he was actuated and acting with a view to a lawful defense of his person and using only such a degree of force as may have appeared to him to be reasonably necessary at the time. If, from all the facts and circumstances gleaned from the evidence, including alleged threats on the part of Christenson, you arrive at the conclusion that he was attacked by Christenson and honestly believed that Christenson intended to harm him or do him some great bodily injury, he would then be justified in acting upon the facts as they appeared to him at the time. No one is justified in using any more force than reasonably appears to him at the time to be necessary to get rid of his assailant, but if he does not bring on the difficulty or provoke it, or voluntarily engage in it, he is not bound to run away to avoid it, and may resist with adequate and necessary force until he is safe.
“11. The defendant, George Taylor, and Bessie Taylor, his wife, ordinarily would have an equal right to the custody of their children, and either one of them would have the right to repel, reasonably, any invasion of their right to such custody; however, I believe that if the defendant, George Taylor, and his wife were estranged, and Bessie Taylor had for some time had the unopposed possession of her children, and there was an attempt on the part of George Taylor to take one or more of his children from her by force, over her objections, then her brother, Everett Christenson, would be justified in rendering her such reasonable assistance as might be necessary to prevent George Taylor from taking any of the children away from her. On the other hand, Everett Christenson had no right to the care, custody or control of the Taylors’ children, independent of the desires or wishes of his sister, Bessie Taylor, and if, of his own motion, he interfered with George Taylor in his parental control over one of his children and resorted to force against Taylor, then Taylor would be justified in enforcing his right to the custody of the children and the defense of his person, as set out in another instruction with reference to the element of self-defense.”
Defendant inveighs against these instructions in many particulars. We think they were a fair statement of pertinent law. Defendant’s objections to them are predicated, in part, on the theory that under the general principle of parents’ equality of right to the possession of their minor children defendant had a right to take this child, in spite of its mother’s screams, and that her brother, who was then giving her and her children the shelter and protection of a home, could not raise a finger to help her. The rule of the parents’ equal right to the custody of their children under our law is predicated on the theory that there is a family and that the family is living together. In such a situation the rule of parents’ equal right is practical and just. But when the family is broken up, and the mother must find a home for her children under the roof tree of a kinsman, and the estranged husband and father takes up his abode elsewhere, he has no right to invade the peace of his family at a late hour in the night for the purpose of snatching away one of his children regardless of its mother’s screams and carrying it off to some unknown destination. Nor has he a right under such circumstances to shoot those who protest against such turbulent conduct. That there are limitations on the equal right of each parent to the custody of his minor child should be perfectly obvious in a case like the present where defendant’s insistence on what he calls his equal right to his child’s custody was to give him its exclusive custody, deprive its frantic and screaming mother of her equal right, to say nothing of the tragic consequences to herself and her brother which sent them both to the hospital to hover between life and death for weeks and months.
The textbooks do not help much on this subject, because the Kansas rule has its basis in the mandate of our constitution (art. 15, § 6), which has abrogated so much of the common law governing the rights of husband and wife. (Harrington v. Lowe, 73 Kan. 1, 19, 20, 84 Pac. 570. Vide Woerner’s American Law of Guardianship, § 7; 1 Schouler’s Marriage, Divorce, Separation and Domestic Relations, 6th ed., §§ 743, 751, 752; 46 C. J. 1225; 20 R. C. L. 634, 635.)
Defendant also contends that he had effected peaceable possession of his five-year-old son when he picked him up and set him in the seat of the automobile. That act was only a part of the whole in cident. The mother was screaming and still frantic at defendant’s threat to take the child away, to deprive her completely of her equal right to it. We think it clear that there was a disturbance of the peace caused by defendant, and that it had not ended when the child was placed in the automobile.
The requested instructions were formulated in harmony with the theory advanced in defendant’s criticisms of the instructions which the court did give. We hold that those given were fair and sufficient for the jury’s guidance, and the court’s refusal to give those requested constituted no error.
Turning next to case No. 31,411, defendant first assigns error in the giving of this instruction:
“7. The defendant has, as already been suggested, entered a plea of not guilty to the charge against him. He claims that if a shot fired by him from a revolver took effect upon his wife, that it was unintentional on his part; that he did not shoot at his wife and did not intend that any shot fired by him should hit her. He admits, I think, that he fired shots from his weapon, intending that they should take effect upon one Everett Christenson, and that if his wife was hit it was by a missile not intended for her but for Everett Christenson.
“In this connection, I have to advise you that if, under all the circumstances, you believe that Taylor fired at Everett Christenson with intent to commit some one of the crimes defined in the foregoing instructions, and the shot hit Bessie Taylor, then and in such a situation you will be warranted in convicting the defendant in this case of such crime as you are satisfied beyond a reasonable doubt he would have committed had the bullet hit Christenson instead of Bessie Taylor. And such conviction would be justified under such circumstances even though he did not intend the shot to hit Bessie Taylor.”
It is not easy to state defendant’s objections to this instruction further than to note his contention that “when he was tried (in Douglas county) on the information charging him with shooting Everett Christenson, he was tried for the entire assault and all the assaults, if any, that he had committed.” That contention is not tenable. Conceding, without deciding, that if he had fired but one shot and the bullet had wounded his two victims, his act would have constituted but a single offense (2 A. L. R. 606; State v. Schmidt, 92 Kan. 457, 140 Pac. 843), all the evidence here is that defendant fired several shots and that his victims were wounded by different shots; and the prevailing rule of law in such circumstances is that each shot is a separate and distinct criminal offense which renders the shooter liable to separate and distinct prosecutions, convictions and punishments. (State v. Horneman, 16 Kan. 452.) In cases where .two persons are wounded by separate shots fired in quick succession, although the circumstances leading up to the affray may have been identical, the separate shots do not constitute a single offense so that conviction, acquittal or jeopardy for the felonious wounding of one of the victims would bar a prosecution for the felonious assault on the other.
In Commonwealth v. Anderson, 169 Ky. 372, it was held:
“Where, in the same affray, the defendant shot and killed two persons with separate shots, the killing of one of them is not included in the killing of the other, the offenses not being identical, and the plea of former jeopardy will not be allowed upon a second trial on one of the indictments after a previous trial upon the other.” (Syl. ¶ 2.)
In 16 C. J. 283, 284, the rule is stated:
"Although crimes are not usually identical if committed against different persons, yet by the weight of authority where the same act or stroke results in the death of two persons an acquittal or a conviction of the murder of one bars a subsequent prosecution for the killing of the other, because the killing is but one crime and cannot be divided. This rule also has been applied where the same blow produces a separate assault and battery on two different persons. On the other hand, it has been held in some jurisdictions that the murder of two persons by the same act constitutes two offenses, for each of which a separate prosecution will lie, and a conviction or an acquittal in one case does not bar a prosecution in the other. And where one assaults or kills two persons by separate shots or strokes, although in the same riot or affray, an acquittal or a conviction of one assault or homicide is no bar to an indictment for the other, as they are distinct acts.”
In 8 R. C. L. 151 it is said:
“A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed. Based on this rule it has been held that if the killing of two persons is by distinct and separate acts, though done at the same time and as part of the same transaction, an acquittal for the killing of one is not a bar to a prosecution of the same person for the killing of the other.”
See, also, Gunter v. The State, 111 Ala. 23, 56 A. S. R. 17; Bell v. State, 120 Ark. 530; People v. Ochotski, 115 Mich. 601; State v. Labbee, 134 Wash. 55; 20 A. L. R. 341; 1 Bishop on Criminal Law, 9th ed., § 1061.
From the foregoing it appears that the instructions excepted to were in accord with the pertinent law. Defendant’s next specification of error involves substantially the same point as that urged in his appeal in case No. 31,266, and which relates to the trial court’s refusal to give certain requested instructions. As we have seen, those given were correct and sufficient, and the refusal of those requested constituted no error.
The judgments in both cases are affirmed.
Hutchison, J., not sitting. | [
-15,
72,
-7,
95,
24,
-93,
-118,
-24,
50,
-109,
-78,
115,
-87,
-35,
1,
121,
90,
109,
85,
105,
-107,
-73,
22,
-127,
-78,
115,
-71,
-43,
-71,
89,
-91,
-33,
89,
96,
10,
81,
98,
74,
-59,
28,
-116,
0,
-87,
-32,
82,
-110,
36,
105,
86,
14,
-75,
-82,
-13,
43,
60,
-1,
72,
46,
75,
-88,
-112,
49,
-119,
87,
124,
84,
-93,
36,
-104,
5,
80,
55,
-104,
49,
32,
-84,
115,
-126,
-126,
125,
93,
-115,
77,
102,
102,
33,
-99,
-50,
-8,
-120,
15,
114,
-99,
39,
24,
72,
33,
12,
-66,
-103,
117,
84,
14,
-16,
-19,
30,
61,
104,
-123,
-113,
-108,
-127,
-115,
58,
-102,
26,
-13,
7,
32,
113,
-55,
-94,
76,
69,
122,
49,
-98,
-80
] |
The opinion of the court was delivered by
Burch, J.:
In the original opinion it was said the legal effect of the deed to James Anderson and Richard Anderson and their heirs was to convey equal interests to each, and that the legal effect prevails unless the grantees entered, into a written agreement with respect to quantity of interest each should hold, or entered into an agreement sanctioned by the statute of trusts. Plaintiffs amended their petition in a belated effort to state an agreement good under the statute of trusts. The amendment was insufficient for the reason stated in the original opinion (Anderson v. Anderson, 137 Kan. 833, 838, 22 P. 2d 471). In a petition for rehearing plaintiffs call attention to the fact they offered a further amendment which would have met the defect pointed out by this court, but the district court refused leave further to amend. It is said leave to amend was not refused as a matter of discretion, and was refused for the erroneous reason the action was barred.
Whether the reason for refusing leave further to amend was good or bad, the court did not err in its judgment, the reasons given being no part of the judgment. Treating the last proposed amendment as made, the petition did not state an agreement sanctioned by the statute of trusts.
Under the statute of trusts, when a conveyance is made to one person and the consideration is paid by another, title vests in the former, unless it be made to appear that by agreement and without fraudulent intent the party to whom the conveyance was made was to hold the land or some interest therein in trust for the party paying the consideration or some part thereof. (R. S. 67-406, 67-408.) Such an agreement must be made when title is taken, and if it does not relate to the entire tract, must relate to some definite share of the land. In this instance there was nothing remotely resembling an agreement between James and Richard that Richard was to hold an aliquot part of half of the land on any terms for anybody.
The petition for rehearing is denied. | [
-16,
-18,
-47,
45,
-88,
-28,
-85,
-104,
97,
-87,
39,
83,
79,
-38,
16,
41,
-10,
-83,
-15,
123,
68,
-77,
22,
-128,
-14,
-13,
-45,
93,
-79,
77,
-26,
86,
76,
32,
2,
-11,
-26,
-128,
-53,
20,
-114,
7,
8,
110,
-39,
66,
52,
107,
84,
11,
117,
-33,
-13,
36,
57,
67,
104,
44,
75,
-95,
-111,
-72,
-70,
5,
123,
7,
-80,
53,
-104,
-63,
74,
42,
-112,
49,
9,
-24,
23,
-74,
-106,
116,
11,
-69,
41,
34,
103,
1,
-11,
-17,
-120,
-104,
14,
-34,
-83,
-89,
-46,
88,
-86,
96,
-74,
-97,
117,
20,
71,
116,
-26,
21,
21,
44,
4,
-53,
-42,
-109,
-115,
56,
-128,
3,
-13,
3,
48,
112,
-49,
-93,
92,
67,
18,
19,
-114,
-8
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff when struck by defendant’s automobile at a street crossing in Concordia.
The locus in quo was near the center of the west side of the intersection of Broadway, which runs north and south, and Sixth street, which runs east and west. In the middle of Sixth street and in line with the sidewalk on the west side of Broadway is. a safety zone over which motorists are forbidden to drive, under penalty of a city ordinance. This ordinance also requires careful driving and moderate speed at street crossings.
On November 4, 1930, plaintiff was walking south across Sixth street on the west side of Broadway, and just as he was within a step of the safety zone, defendant came from the east driving his automobile negligently and at high speed and struck the plaintiff, tossing him into the air and causing him to fall to the pavement, whereby he sustained various injuries.
The defense was a general denial and a plea of contributory negligence.
Jury trial; verdict for plaintiff in the sum of $400; and special findings of the jury as follows:
“1. What, if anything, was there to prevent plaintiff from seeing defendant’s ear approaching? A. Nothing.
“2. After defendant saw plaintiff in the street and in a dangerous position, did he use his best judgment and efforts in trying to avoid the accident? A. Yes.
“3. Did plaintiff, after starting south in his effort to cross Sixth street, look east to see if vehicles or automobiles were coming from that direction? A. No.
“4. Was the plaintiff guilty of negligence which proximately contributed to his injury? A. Yes.
“5. If you find the defendant' was negligent and that such negligence caused the injury complained of, state what particular act or acts, omission or omissions on the part of the defendant caused the injury. A. Defendant-was negligent by his failure to see plaintiff or sound warning in time to avoid striking plaintiff.
"6. Would any injury have occurred if plaintiff had exercised ordinary or reasonable care in protecting himself? A. No.
“7. If defendant had operated his car at the legal rate of speed, could he have stopped it in time to prevent the injury? A. Yes.”
Defendant filed a motion to set aside the general verdict and for judgment on the special findings, and also a motion for a new trial. The first motion was denied, and the second motion was allowed on the specific ground “that the findings are inconsistent with each other and with the general verdict and not because the findings are not sufficiently supported by the evidence.”
Defendant appeals, assigning error on the overruling of his motion for judgment on the special findings. Plaintiff challenges his right to have this question reviewed because defendant’s motion for a new trial was sustained, in consequence of which he now has nothing about which to complain.
It appears to us that this technical point raised by plaintiff must be considered in the light of the peculiar disposition which the trial court made of defendant’s motion for judgment on the special findings. It is perfectly apparent that these special findings convicted the plaintiff of contributory negligence. It is also perfectly clear that the special findings were consistent with each other. Moreover, the trial court expressly ruled that the special findings were not without support in the evidence. The trial court’s ruling does seem to be that the special findings were inconsistent with each other, in which case, of course, they could not stand, and a new trial would have to be ordered. But this court is in as good a position to construe those findings as was the trial court, and we are bound to hold that inconsistency in the special findings does not appear. It is therefore obvious that it was the unavoidable duty of the trial court to set aside the general verdict and to enter judgment for defendant on the special findings. (R. S. 60-2918; Nichols v. Weaver, 7 Kan. 373; Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620.)
This court cannot assume that the trial court willfully disregarded its duty to follow the law — which required it to enter judgment on the special findings. Moreover, it seems clear that the trial court did understand the controlling legal questions involved, because it instructed the jury quite aptly as follows:
“No. 11. One of the defenses set up in this case is that the plaintiff in the incident in question was guilty of contributory negligence . . . and even though you should find from the evidence in the case that the defendant was negligent in some respects, as claimed by the plaintiff, yet if you should find that the plaintiff himself was guilty of some act of negligence that contributed to his claimed injuries and damage and without this negligence on the part of the plaintiff such injury would not have resulted, then the plaintiff would not be entitled to recover and your verdict would be in favor of the defendant.”
A majority of this court, therefore, concludes that the granting of a new trial was a mere inadvertence and not the result of the trial court’s considerate judgment. We choose rather to believe that in some unexplained fashion the wrong judgment was entered. We also believe that the new trial ordered would serve no purpose, and that final judgment should be entered as permitted and directed by section 581 of the civil code, R. S. 60-3317.
The judgment is reversed, with instructions to enter judgment for defendant on the special findings of the jury. | [
-14,
88,
-48,
-18,
26,
96,
58,
-40,
113,
-111,
-76,
59,
-83,
-55,
13,
33,
-1,
-3,
-48,
43,
-11,
-94,
23,
-109,
-78,
-13,
-13,
-59,
-77,
-51,
118,
53,
76,
48,
-54,
-107,
102,
75,
69,
-34,
-58,
-66,
-88,
-23,
-103,
50,
-16,
122,
0,
15,
113,
-97,
-29,
46,
24,
-53,
-84,
41,
91,
-87,
-95,
-8,
-56,
21,
-2,
22,
-93,
36,
-98,
33,
120,
8,
-40,
53,
-60,
-8,
51,
-26,
-106,
-12,
97,
-71,
12,
98,
102,
1,
21,
111,
-8,
-104,
46,
-22,
13,
-91,
24,
89,
-127,
4,
-105,
-101,
93,
0,
14,
110,
-36,
93,
91,
-88,
7,
-113,
-108,
-79,
-17,
114,
-76,
-60,
-37,
-113,
48,
113,
-50,
-92,
94,
85,
22,
-101,
-97,
-106
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action for damages for fraud in the sale of bonds.
The petition alleged that defendant Steinmann-McCord & Company was a Missouri corporation authorized to carry on a general bond and stock-investment and security business and engaged in such business in Kansas, and that it, as principal, and the defendant Fidelity and Deposit Company of Maryland, as surety, executed and delivered a requisite broker’s bond to comply with the laws of Kansas with reference to buying and selling securities within the state of Kansas (R. S. 1931 Supp. 17-1230); that on August 25, 1930, one Kuykendall, agent of Steinmann-McCord & Company, sold plaintiff a $1,000 Clyde Manor bond for $1,011.67, and on December 16, 1931, exchanged said Clyde Manor bond for an Edison Place Subdivision bond. The petition further recited:
“5. That the bonds above referred to, and particularly the bond described as Gold Bond M147, Edison Place Subdivision, were sold, exchanged and were purchased by plaintiffs solely upon the representations of the defendant Steinmann-McCord & Company, its officer, agent, servant and employee, C. L. Kuykendall, as to the value of said bonds and as to the value and extent of the property securing said bonds; that such representations as to the value of such bonds and as to the value and extent of the property securing said bonds were fraudulently and deceitfully made by the defendant Steinmann-McCord & Company, its officer, agent, servant and employee, C. L. Kuykendall, and that plaintiffs were unaware of such fraud, deceit and misrepresentation at the time such bonds aforesaid were purchased and exchanged.”
Paragraph 6 of the petition charged that such bonds were sold to plaintiff without having been registered as provided by the laws of Kansas, and paragraph 7 recited;
“7. That the herein described Edison Place Subdivision Gold Bond, a copy of which is attached hereto, is worthless and without value, and that by reason of the fraud, deceit and misrepresentations of the defendant Steinmann-McCord & Company, and of the failure of said company to register said bond and alleged security with the. commissioner of banking, as provided by law, plaintiffs have been damaged in the sum of $1,011.67.”
Defendant Fidelity and Deposit Company filed a motion, which may be stated briefly to have been in the alternative, to strike out certain words for the reason they were conclusions and not statements of facts, or to compel the plaintiff to set out specifically what representations Steinmann-McCord & Company or its agents made to plaintiff in connection with the sale and exchange of the bonds. So far as pertains to this appeal, the motion was denied. The Fidelity and Deposit Company then filed a general demurrer, which the court overruled, from which ruling the company appealed.
An examination of the petition shows that plaintiffs seek to recover damages for fraud, and the only question presented by the appeal is the sufficiency of the allegations to charge fraud.
The general rule with respect to pleading fraud is stated in 12 R. C. L. 416 as follows:
“Ordinarily, fraud must be alleged not only specially but specifically. It is not sufficient to allege fraud in general terms, such an allegation being considered to be of a mere conclusion which the pleader is not permitted to draw, but which, so far as concerns the pleading, is a matter for the court to determine from the facts alleged. ...”
In La Harpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, 8 P. 2d 354, the third paragraph of the syllabus recites:
“Where a recovery is sought upon grounds of fraud, dishonesty or illegality, the specific facts constituting such fraud, dishonesty or illegality must be set forth in the pleading. A mere general averment that such grounds exist without stating the particular facts upon which the charge is based does not state a cause of action.”
And in the opinion it was said:
“Aside from the defect as to notice there is a manifest lack of particulars in the petition of facts which would constitute a sufficient charge of fraud and dishonesty. The defendant only bound itself to pay plaintiff for losses sustained by acts of fraud, dishonesty, theft, forgery, embezzlement, wrongful abstraction or willful misapplication committed by the employee. The charge made against Roberts in the petition is that he made untrue reports of the business done, and is only the equivalent of a charge that plaintiff had been defrauded by fraudulent representations.* Wherein the reports were fraudulent so as to cause plaintiff to suffer a pecuniary loss is not stated. Did he make false entries in the books as to goods purchased or as to goods sold, or did he wrongfully make false entries of expenses incurred or fail to enter all the expenses in the books that were incurred and payable? This question is not answered by the reports or the allegations in the petition. It is not enough to employ epithets or general averments of fraud, but the particular facts constituting the fraud must be set out to make a good pleading. In State, ex rel., v. Williams, 39 Kan. 517, 18 Pac. 727, it was said:
“ ‘Where fraud and illegality are charged as grounds for the cancellation of a contract, the specific facts constituting the fraud' and illegality must be set forth. A mere general averment of fraud and illegality, without stating the facts on which the charge is based, presents no issue, and no proof is admissible thereunder.’ (Syl. ¶ 1.)
“In Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985, the same rule was announced, and in the opinion it was said:
“ ‘It will be observed that the last two of the above-quoted allegations of fraud were of the most general character. No specific facts and circumstances were stated in them, and therefore no issue was presented by such parts of the petition. The decisions are full to the effect that general averments of fraud and illegality, without stating the facts upon which the charges are based, present no issue, and evidence thereunder is not admissible.’
“See, also, Houser v. Smith, 80 Kan. 260, 101 Pac. 1001; Dowell v. Railway Co., 83 Kan. 562, 568, 112 Pac. 136; Gundelfinger v. Thiele, 133 Kan. 31, 298 Pac. 769.” (p. 830.)
Appellees urge in support of the lower court’s ruling that they have alleged the elements of fraud, and that were they to plead more they would be pleading evidence and not ultimate facts, and cite decisions affirming the rule that one should plead his facts and not his evidence. Among these decisions is Circle v. Potter, 83 Kan. 363, 111 Pac. 479. An examination of the opinion shows, however, that the facts relied on as constituting fraud were pleaded.
The allegations of the petition charging fraud were that the bonds were sold by Steinmann-McCord & Company and were purchased by plaintiff upon representations as to the value of the bonds and the value and extent of the property securing the bonds. Testing these allegations by the above authorities, it must be held that there is such a lack of definite statements of fact that what is said is merely the pleader’s conclusion and, therefore, the allegations are insufficient. The demurrer should have been sustained.
The cause is reversed and remanded with instructions to sustain the appellant’s demurrer.
Hutchison, J., not sitting. | [
-16,
104,
120,
-18,
26,
-30,
56,
-118,
113,
-96,
-91,
115,
-23,
78,
0,
63,
-42,
45,
112,
104,
-28,
-77,
23,
-117,
-46,
-109,
-7,
-51,
-79,
95,
-10,
85,
76,
48,
10,
-107,
-58,
-82,
-43,
30,
-50,
-120,
-87,
-28,
-39,
64,
52,
-17,
84,
3,
65,
-98,
-17,
40,
29,
74,
76,
46,
-21,
25,
-47,
-15,
-87,
69,
-3,
23,
1,
4,
-100,
37,
-40,
46,
-104,
-80,
9,
-87,
50,
-122,
-58,
52,
107,
9,
8,
34,
98,
48,
-111,
-19,
-80,
-120,
47,
-25,
-115,
-89,
-78,
88,
-125,
36,
-66,
-99,
112,
18,
7,
-12,
-30,
29,
25,
108,
1,
-117,
-110,
-125,
45,
118,
-100,
11,
-14,
-123,
17,
112,
-51,
32,
92,
87,
56,
-109,
15,
-83
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action in ejectment and for partition, and is here on plaintiff’s appeal from an order striking out .parts of an amendment to her petition. The defendants have a cross appeal on account of the court’s ruling on their demurrer to the petition and amendment thereto.
The original petition, filed January 5, 1931, contains two causes of action: In the first, plaintiff alleges her residence, that she is the owner and entitled to the possession of an undivided one-half interest in certain described real estate, and that the defendants unlawfully keep her out of possession. In the second cause of action, plaintiff repeats by reference pertinent parts of the first cause, and alleges that the defendant, Marks, is executrix of the last will of M. E. Marks, deceased, and has collected rents arising from the real estate; that the estate of M. E. Marks is solvent, and there is sufficient personal property to pay the obligations of the estate and the legacies under the will. The prayer is for ejectment and for partition. To'this petition defendants filed a motion that plaintiff make her first cause of action more definite and certain by stating whether her claim of ownership was based upon a legal or equitable estate, and on August 11, 1931, she filed an amendment to her petition, alleging that M. F. Marks died April 24, 1930, leaving as heirs at law the plaintiff, his daughter, and the defendant, Phoebe Ashley Marks, his widow; that on May 13, 1930, his purported will was admitted to probate by the probate court of Jefferson county, and “that at the time the testator executed his will, he had a child absent and reported to be dead, said child being the plaintiff herein.” Then follow allegations of lack of mental capacity of the testator, and that the will was executed under undue influence and its execution procured through fraudulent conduct of Phoebe Ashley Marks, and that the will should not be upheld but should be set aside and held to be of no force or effect in law. A copy of the will, dated November 29, 1929, and of a codicil, dated January 11, 1930, were attached to the amendment.
The defendants moved to strike all allegations of mental incapacity and undue influence, and all allegations and facts upon which plaintiff relies to contest and set aside the will, on the grounds of irrelevancy, redundancy and immateriality, and that the allegations of mental incapacity and undue' influence constitute a new cause of action to contest the will, which is barred by the statute of limitations. At the same time a demurrer was filed. The court allowed the motion and overruled the demurrer.
On behalf of plaintiff it is urged that her first cause of action being in ejectment, under R. S. 60-2001, her petition is good in that she has stated all that the statute requires, and that under decisions of this court (Taylor v. Danley, 83 Kan. 646, 112 Pac. 595; Pope v. Nichols, 61 Kan. 230, 59 Pac. 257) she is entitled to prove any fact which would tend to strengthen her title or defeat her adversary, and that the amendment is not in conflict with the original petition and is only an amplification thereof and not the statement of a new cause of action, and decisions of this court in support of that general rule are cited. See Custer v. Royse, 110 Kan. 397, 402, 204 Pac. 995; Wilber v. Ronnau, 82 Kan. 171, 107 Pac. 772; Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837, and Taylor v. Swift & Co., 114 Kan. 431, 435, 219 Pac. 516.
In New v. Smith, 86 Kan. 1, 7, 119 Pac. 380, it was said:
“The action in form is ejectment, but, as was shown by the undisputed evidence, to obtain the relief sought for the plaintiff must show that a deed of record from herself to one Schultz was fraudulently obtained from her. Looking beyond the mere form of the action to the real issue therein, we hold that the action is an action for relief on the ground of fraud and that the two-year limitation applies.”
R. S. 22-218 provides for admission of a will to probate, and R. S. 1931 Supp. 22-222 provides:
“If no person interested . . . shall appear within one year from the time of the making of any order by a probate court, probating or refusing to probate the will and contest the same, such order shall be forever binding, . . .”
and by R. S. 1931 Supp. 22-223 it is provided that the mode of contest shall be by civil action in the district court. It was said in Ferrier v. Ferrier, 108 Kan. 130, 132, 193 Pac. 1071:
“The right to challenge the validity of the will by an independent action in the district court (as distinguished from an appeal, as to which see Durant v. Durant, 89 Kan. 347, 131 Pac. 613) existed solely by reason of the statute. The requirement that such an action, if maintained at all, must be begun within three years of the order of probate was not a mere statute of limitation applicable to a case of that kind; it was a condition upon which the right to bring such a proceeding was granted. (Medill v. Snyder, 71 Kan. 690, 694, 81 Pac. 216; see, also, 40 Oyc. 1240, note 99.)”
It should be noted that the limitation is now one year.
In R. S. 60-759 it is provided that the court or judge may amend any pleading by inserting other allegations material to the case “when such amendment does not change substantially the claim or defense.”
To review briefly, the testator’s will was admitted to probate May 13, 1930, the action in ejectment was filed January 5, 1931, and not until August 11, 1931, was the petition amended to contest the will. Up to the time the amendment was filed the petition stated two causes of action — in ejectment and in partition. The force and effect of the amendment was to introduce a new and distinct cause of action — a contest of the will. It might be noted that the only reference to the will in the original petition was in the cause of action for partition, and the only construction which can be placed upon the allegations therein is that the will be sustained. The effect of the amendment is just the contrary. Had the amendment been made within one year from the order admitting the will to probate, it would haim been in time, but under the circumstances here it was too late, and the court properly sustained the motion striking out the allegations setting up a contest of the will.
Interlarded with other allegations of the amendment to the petition is the allegation with respect to plaintiff being absent and reported dead at the time of the execution of the will. This was not an allegation of any fact upon which plaintiff relies to contest the will. As a different period of limitation applies thereto, and as it states a basis for plaintiff’s claim of ownership, it is proper that it remain a part of the petition as amended. (Williams v. Campbell, 85 Kan. 631, 633, 118 Pac. 1074.)
In so far as the demurrer is concerned, defendants argue that as the time to contest the will has expired plaintiff is precluded from claiming, and rely upon R. S. 1931 Supp. 22-222 and decisions of this court interpreting that statute as it existed before it was amended, especially Medill v. Snyder, 71 Kan. 590, 81 Pac. 216. The difficulty with this argument is that it assumes that the rights of the absent child depend upon a contest of the will, which is not true (Spiker v. Burns, 113 Kan. 572, 214 Pac. 426). The child may be well content with every provision of the will with the single exception that, owing to his being absent and reported dead, he was given nothing. The statute (R. S. 22-243) provides:
“When a testator at the time of executing his will shall have a child absent and reported to be dead, . . . the absent child . . . shall take the same share of the estate, both real and personal, that it would have been entitled to if the testator had died intestate . . .”
and makes provision for contribution. Under its terms the rights of such child absent and reported to be dead are not dependent upon the will being contested (9 R. C. L. 41, 28 R. C. L. 81, 18 C. J. 838), and the trial court properly overruled the demurrer.
The judgment of the lower court is affirmed. | [
-13,
88,
-8,
60,
10,
96,
42,
-102,
115,
-31,
-73,
115,
107,
90,
16,
41,
107,
61,
81,
123,
-25,
-77,
23,
35,
-10,
-13,
-79,
85,
-80,
-35,
100,
87,
76,
96,
2,
85,
-57,
-62,
-59,
24,
-50,
-115,
40,
-27,
-37,
72,
48,
123,
82,
15,
85,
-97,
-13,
43,
29,
-41,
73,
43,
91,
-68,
68,
-72,
-117,
-115,
89,
2,
-111,
6,
-100,
-63,
-56,
10,
-112,
48,
-128,
-24,
51,
-74,
-106,
-44,
99,
25,
8,
102,
102,
17,
77,
-17,
-72,
-120,
14,
58,
-115,
-89,
18,
81,
73,
9,
-76,
-103,
117,
16,
7,
124,
-20,
-121,
28,
-20,
4,
-53,
-42,
-111,
15,
112,
-100,
11,
-29,
-117,
48,
112,
-55,
6,
92,
-57,
123,
-109,
-113,
-102
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.