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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the carrying out of plans to erect a building in the city of Tribune. Judgment was for defendant. Plaintiff appeals.
Plaintiff had passed two ordinances. Ordinance No. 340 prohibited the erection of any building within the city limits the sides of which extended less than eight feet above the ground. Ordinance No. 361 required any person before erecting any building within the city limits to obtain a building permit from the city clerk, approved by the governing body of the city.
Defendants commenced the erection of a building within the city limits without complying with ordinance No. 361. The plans of the proposed building do not comply with ordinance No. 340. Plaintiff brought an injunction to enjoin defendant from proceeding with the erection of the building. The court granted a temporary injunction and on a hearing vacated it. This appeal is from that order. The claim of defendant is that the ordinances are arbitrary and un reasonable, and that no authority is granted to cities to pass such ordinances.
Plaintiff relies on the provision of R. S. 15-426 as conferring authority on the city to pass ordinance No. 340. That statute confers on cities of the third class the authority to make whatever regulations are necessary to prevent fire. The first part of the section deals with “chimneys, stoves, stove pipes, ovens, boilers, kettles or forges.” It also confers authority to prescribe limits within which no building may be built of any but noncombustible material.
The latter part of the section confers authority on the city to purchase fire-fighting equipment. Clearly the section is intended to confer authority on cities to take whatever steps are deemed necessary to prevent the spread of disastrous fires. Ordinances of this type are clearly within the powers conferred by R. S. 15-42.6. Such ordinances are necessary to the safety and well-being of the inhabitants of the city. The trouble with this case, however, is to see how the ordinance in question deals with the matter of fire hazard. It is an outright prohibition against the erection of a building with sides extending less than eight feet above the level of the ground. Nothing is said about chimneys, fireplaces or the material out of which the building must be built. We have therefore concluded that the city had no authority to pass ordinance No. 340. (See Smith v. Hosford, 106 Kan. 363, 187 Pac. 685; also, Julian v. Oil Co., 112 Kan. 671, 212 Pac. 884.)
A different question presents itself in the consideration of ordinance No. 361. That ordinance requires plans to be submitted to and approved by the governing body of the city before any building is erected within the city limits. The ordinance provides that the application "shall state the exact size to be occupied, the material, dimensions, and estimated cost of the proposed building, structure, or addition, the purpose for which the same is intended to be occupied, the number of flues to be constructed within the same, and the probable time in which the work will be completed.”
Plaintiff argues that the authority to pass this ordinance is conferred by R. S. 15-401. That section is as follows:
“The governing body of each city governed by this act shall have the care, management and control of the city and its finances, and shall have power to enact, ordain, alter, modify or repeal any and all ordinances not repugnant to the constitution and laws of the state, and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.”
It will be seen that the ordinance does not provide any requirements to be followed before the permit may be granted but merely provides that no building may be erected within the corporate limits without a permit. On this account the permit should be issued as a matter of course when the application for it is made — otherwise the ordinance would be invalid as conferring arbitrary power on the governing body of the city. (See 43 C. J. 346; 19 R. C. L. 830.)
We have therefore concluded that ordinance No. 361 is valid.
The defendants in this case were going ahead with the erection of this building without making any effort to comply with the provisions of this ordinance. Under such circumstances it was proper for the city to seek to enjoin such action.
The order of the trial court vacating the temporary injunction is therefore reversed with directions to hold that it is necessary for defendant to comply with the terms of ordinance No. 361, although ordinance No. 340 is invalid.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by a board of county commissioners to enjoin defendant from mining coal upon and thereby destroying the value of certain land which had been bid off by the county for delinquent taxes in 1929. Judgment was for defendant. Plaintiff appeals.
The petition alleged that defendant was the owner of the land involved; that the taxes were a first lien on the land; that defendant was mining coal thereon by strip mining, which was destroying the value of the real estate in question, and that if defendant was not enjoined from destroying the land the taxes would be lost; that defendant had no right to do the acts complained of, and that plaintiff had no remedy at law. A demurrer to the petition was sustained. It is from that judgment that this appeal is taken.
It is argued for the county that although there is no statute covering the subject, equity should take a hand and afford the county protection between the time of the attaching of the tax lien and the subsequent disposition of the property. The trouble with this argument is that the procedure for the collection of taxes is prescribed and regulated by statute. The legislature having control of the remedies by which delinquent taxes are to be collected, it is beyond the power of the court to allow any other method. (61 C. J. 1043.)
In Ness County v. Light & Ice Co., 110 Kan. 501, 204 Pac. 536, a case somewhat analogous to this one, the county sought to charge an owner of lots with a personal judgment for damages for removing improvements from the lots, resulting in a loss of taxes. The court held:
“The entire subject of taxation is statutory; the method prescribed for the recovery of delinquent taxes is statutory, and it does not exist apart from the statute.” (Syl. ¶ 2.)
Discussing the question the court said:
“The county board argues that this court, by principles of analogy and deduction, should declare the law to be what the legislature itself could declare, but what the legislature has not yet declared — that where the owner of property willfully damages the realty by removal of improvements therefrom he is personally liable in damages to the county if the realty thus damaged will not sell for enough to pay the county’s lien for taxes.” (p. 502.)
The statute (R. S. 79-2801 et seq.) provides plaintiff an adequate and effective-remedy and a remedy which was available to plaintiff shortly after this suit for an injunction was filed. Under those sections of the statute, when land is bid in by the county and. has remained unredeemed and the certificate of sale untransferred for a period of three and one-fourth years, the county may foreclose its lien by action in the district court. It is the duty of the court in as summary a way as possible to decide the amount of taxes, interest and penalty due and render judgment therefor. The county in this manner acquires title and right to possession. It may then have issued an execution or order of sale and sell the land, or, under R. S. 79-2806, have a receiver appointed who shall qollect rents and profits from the land which shall be applied in payment of the taxes. The petition does not disclose that such steps have been taken.
As it is, the county has neither title nor right to possession such as is necessary to support a suit against the owner to enjoin acts impairing or destroying the value of real property. (Warner v. Pile, 105 Kan. 724, 185 Pac. 1041; Douglass, Guardian, v. Dickson, 31 Kan. 310, 1 Pac. 541; 40 Cyc. 525.)
It is our opinion the demurrer to the petition was rightfully sustained and the judgment should be affirmed. It is so ordered.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injury to person and property when plaintiff’s automobile went off the road at an S curve and into a drainage ditch at the side of the road. Defend ant, the state highway commission, was charged with negligence in suffering a chuck hole, which deflected plaintiff’s automobile, to remain in the road, and in other respects. Defendant, the Shell Petroleum Corporation, was charged with negligence in maintaining an exposed pipe line across the ditch, which plaintiff’s automobile struck. Plaintiff recovered against both defendants, and they appeal.
The curve in question is just west of Oxford, on the highway between Wellington and Oxford. A representation of the curve with some additional data sufficient for present purposes, follows (see page 740):
We shall be principally concerned with what may be called the west curve. The highway was an improved highway, but the sand and gravel with which it had been surfaced were somewhat worn off on the curve. • Going east it was upgrade from the beginning of the curve to the pipe line and some distance beyond. The curve was a slightly banked curve, sloping toward the south. On the north side of the curve was a drainage ditch made in original construction of the highway. Just east of the pipe line the ditch was rather shallow. Just west of the pipe line it was deeper.
In June, 1927, the Shell company installed a four-inch pipe line for transportation of natural gas beneath the highway and below the bottom of the ditch. In 1928 an oil well was located north of the highway, and the pipe line interfered with the cellar pit. Therefore a swing to the right was put in. The old line was cut, and a T was put in, top down. The north end of the T was plugged, and the south end was attached to the pipe under the road. An L was then put on, and a connection was made above the old pipe with a new pipe line which ran underground northeastward to the right of the oil well cellar pit.
There was testimony for plaintiff that, beginning three or four feet east of the pipe line and extending from six to ten feet west of the pipe line, the south bank of the ditch had caved in some two to four feet toward the center of the road,, due to action of water in the ditch. Along the edge of the cave-in were weeds and other vegetation. Next to the weeds on the south was a ridge of sand and gravel thrown up by the road maintainer, which passed over the road several times a week. The morning after the accident this ridge was twelve to fourteen or sixteen inches wide and six to eight inches high.
The accident occurred on November 15, 1930, in the evening after dark. It had been rainy weather, and had rained during the day, but was not raining when the accident occurred. Plaintiff was driving a model A 1930 Ford sedan. The car was equipped with bright lights, and the windshield was clear. Plaintiff’s wife was with him. Plaintiff had been over the road before, the last time perhaps within ten days or two or three weeks, and knew of the curve. On this occasion he approached the curve from the west, and saw the S curve sign. Then he saw standing water ahead of him, probably covering the south side of the highway and extending eastward for a distance variously estimated. The curve in the highway begins 164 feet west of the pipe line. From the beginning of the curve to the pipe line the highway rises five and two-tenths feet, and plaintiff’s brief properly asserts this slope would be a precarious place for, water to stand.
Plaintiff pulled around the pool of water until he was on the left side of the road just a little. It looked like everybody was using the north side of the road, there were tracks all around there, but no approaching headlights were observable. Plaintiff reduced speed to twelve or fifteen miles per hour — Mrs. Elliott said ten or twelve miles per hour — and proceeded eastward, intending to get back on the right-hand side of the road after passing the water. Plaintiff testified that after passing the water the road was not slick, the road had been sanded, and there were sand and gravel there. Mrs. Elliott testified the road was firm, and said she did not know why her husband did not turn back into the south side of the road after passing the water. He testified the right-hand side going east was wet, looked smooth, and a person would have to stay on the upper part to keep from slipping into the (south) ditch.
Plaintiff testified that as he proceeded toward the place where the pipe line crossed the ditch there was no change in appearance of the ground. Mrs. Elliott gave testimony to the same effect. As plaintiff looked through his clear windshield, his bright lights disclosed to him the ridge of gravel and sand at the left side of the road, and grass and weeds. Plaintiff had seen ridges along the sides of highways, made by maintainers. It was a common thing, and he had had experience with them. He had run into the edge of sand and gravel, and had to be careful to keep his car from going sidewise.
After seeing the gravel, plaintiff struck a chuck hole in the road, fifteen feet, or from twleve to fifteen feet, or ten or twelve feet, from the pipe line. In plaintiff’s direct examination appears the following:
“Q. What did you do when you got to that pond of water? A. I pulled to the left to keep out of it.
“Q. And at the same time you hit that hole, is that right? A. Yes.”
As indicated, this was impossible. Turning out for the water and hitting the chuck hole could have seemed to be practically simultaneous only in case plaintiff were driving at a high rate of speed.
The left (front) wheel hit the chuck hole. When plaintiff struck the chuck hole, slush went all over his windshield. It splashed sloppy water all over the windshield and lights; just splashed water everywhere. He felt the car pull to the left. Then he heard a big crash when he struck the ridge of gravel, and he knew he was in the ridge of gravel. Then the car went into the ditch.
Mrs. Elliott said they struck a chuck hole filled with a mushy substance. She said there was no water in the.chuck hole. She did not mention water or slush striking the windshield or lamps, or mention the car pulling to the left while in the chuck hole. She said that immediately there was a kind of shadow which they after-wards discovered was a ridge of gravel, which extended quite a distance down the road. Immediately the car pulled to the left, and there was a terrible crash. She did not inspect the scene of the accident that night, as her husband did, and she explained failure to observe the ridge of gravel under the bright lights of the car by the fact she was not looking for anything like that, and she did not see weeds until the next day.
The morning after the accident witnesses for plaintiff examined the premises where the accident occurred. One of them had a folding rule with him, and proposed they measure the ditch. He said the ditch was forty-eight inches deep, measured from the level of the road to the bottom of the ditch at a point six or eight feet west of the pipe line. The ditch was about eight or ten feet wide at and beneath the lower pipe, and was eight or ten feet wide at the top. The lower pipe was a four- or five-inch pipe, and the top of it was sixteen inches above the bottom of the ditch. Subsequently he said the top of the lower pipe was practically eighteen inches above the bottom of the ditch, and it was twenty-four to twenty-six to twenty-eight inches from the top of it to the top of the road. Eight to ten feet of the lower pipe were exposed in a north-and-south direction. The upper pipe came in on an angle, and three to five feet of it were exposed.
Another witness for plaintiff said the ditch was seven or eight feet wide and about four feet deep. Seven or eight feet of the top pipe were exposed, and a little less of the lower pipe. The lower pipe was a foot from the bottom of the ditch. The upper pipe was about a foot above the lower pipe.
Another witness for plaintiff $aid the ditch was about four and one-half feet deep, the lower pipe was about knee high from the bottom of the ditch, the top of the upper line was about eleven inches higher, and the upper line was about two feet below the level of the road.
There was testimony for defendants which placed the distance from the bottom of the ditch to the top of the upper pipe at twenty-eight and one-half inches.
A witness for plaintiff, who looked the situation over on the night of the accident, after the accident occurred, said he could see the tracks of plaintiff’s car where it hit the sand, pulled over “that way” (to the left), and went from the east side of the chuck hole to the bank of the ditch. He could see where the left wheels of the car had gone to the bottom of the ditch, whether clear down he did not remember.
A witness for plaintiff, who inspected the tracks of the car the morning after the accident, testified the left rear wheel started off into the ditch at a point about five feet west of the pipe line. However, in response to pointed questions, this witness testified the car came into the ditch and got the left front wheel down to the bottom of the ditch. Then with the right front wheel up on the side hill of the ditch (cave-in), the car drove along a distance of four or five feet to the pipe line. The right rear wheel held up on the cave-in until it went over the pipe line.
There was no testimony relating to height of the front wheels of plaintiff’s car. Perhaps it was assumed the jury would know the approximate height. Having no information on the subject, and having some curiosity about it, the court caused inquiry to be made of a dealer, who reported after measurement that the wheels of a 1930 model A Ford were twenty-nine inches high. As will appear later, the information is of no consequence in decision of the case.
Plaintiff testified as follows:
“Q. What part of this car did you say first hit the pipe? A. Both at once.
“Q. Well, what part? A. Both front wheels.
“Q. Both front wheels? A. Yes.”
When asked if the front end of the car struck the pipes, plaintiff retreated to, “I don’t know what happened.” He did, however, purport to know this happened: The car just crashed, there were two big jerks, and it stopped. There was no injury to the front of the car — bumper, fenders, radiator, lamps, axle, wheels, front-wheel brakes, or steering gear.
When the car stopped it was lying on its left side on the left side of the ditch, east, or properly, southeast of the pipe line. Plaintiff examined the scene of the accident with his flashlight soon after the accident occurred. He testified the rear wheels of the car were eight-teen inches east of the pipe line. The shock knocked off Mrs. Elliott’s glasses and, in getting out of the top door, as the car lay on its side, the occupants stepped on the glass of the left door. There was testimony that Mrs. Elliott’s glasses and the broken glass of the left front door were found eleven feet southeast of the pipe line. There were other estimates of distance of the car from the pipe line.
There was testimony there was a mark on the upper pipe line where the car went over it. Beginning at a point about beneath the operator’s feet and extending to the rear, the under side of the car was badly damaged. The following is the list of material used in repairing the car:
“One gear shift, 1 gear-shift housing, 1 running board and 1 fly-wheel housing, 1 clutch housing, 1 transmission case, reverse idle gear, reverse idle-gear housing, 1 snap ring, transmission slide gear, 1 gear-shift plunger, transmission shifting fork, 1 rear axle, 1 rear-axle housing, universal joint-bearing cap, 1 bolt, 1 main leaf, 1 main rear spring, 1 rear spring clip, grease retainers, emergency brake lever, radius rod bolt, 2 running-board arms, brake rod, shift spring, 1 brake cross shaft, 1 brake cross-shaft clamp, 1 door glass, 1 engine support, 2 bolts and nuts.”
There was testimony by the man who made the repairs that the left rear wheel was caved in, but the repair bill did not include wheel replacement or repair. There was testimony the frame of the car was damaged, the expense of repairing it would be about $75, and it was not repaired.
Defendants contend it was physically impossible for the accident to occur in the manner described by plaintiff and his witnesses. Be sides that, defendants have a very simple explanation for plaintiff’s striking the pipe line with the tremendous momentum which the car indisputably displayed — excessive speed. The court does not deem it necessary to discuss these subjects.
The water, extending for some distance to the foot of the curve, had nothing to do with the accident except to furnish occasion for plaintiff to take the north side of the road. If the water had extended some distance to, and then twenty-five or thirty feet up the incline, plaintiff would still have had more than one hundred feet within which to return to the south side of the road, and there was no complaint by plaintiff that the road was too narrow alongside the water. He said that in avoiding it he turned to the center of the road or a little over the center on the left side.
There were various measurements and estimates of the width of the highway. Engineers of the state highway commission, who made measurements at periods after the accident, found the width of the traveled way at the pipe line to be thirty-four feet, and thirty-five feet, and at the west S curve sign to be thirty feet. Nick Carter, an employee of the highway commission, called as a witness for plaintiff, estimated the width of the highway approaching Oxford at twenty-eight to thirty feet. These were standard widths when the highway was improved.
Plaintiff depended largely on two witnesses to establish topographical details, John Binkey and F. C. Deal. Deal testified as follows:
“In my judgment it is a sixty-foot road with a forty-foot grade on it, or a forty-five-foot grade on it, something like that. . . I would say that the chuck hole was about four feet back of the cave-in; that is, from the edge of the ditch to the south side of the chuck hole. I would think that there was about thirty-six feet of highway at this point that was free of any obstruction or defect.”
Binkey testified as follows:
“I have seen ridges of sand and gravel such as was there on other gravel roads during my travels. It was pretty close over on the north side of the highway. I don’t know how wide the road is. It is a good wide road. There is lots of room for travel on the road if there isn’t anything in the way. The ridge of gravel and sand left plenty of room on the highway for travel.”
The jury found the traveled portion of the highway at the point where plaintiff’s car left it was twenty-two feet, a finding not supported by any evidence.
Plaintiff’s brief contains the following statement:
“When the width of this pool of water and the depression is substracted from any width of the traveled portion of the highway sustained by the evidence, there was less than thirteen feet of the traveled highway suitable for public travel.”
The width of the pool of water may not be substracted from width of the highway at the chuck hole, or at the cave-in, or at any place except where the water stood; and the conclusion that there were less than thirteen feet of traveled highway suitable for public travel is not sustained by any evidence.
Having gotten by the water as a supposed factor of the accident, we now reach the chuck hole. The superficial area was variously estimated by plaintiff and his witnesses: twelve to fifteen inches by three or four feet; two feet by two feet; three or four feet by five feet; four feet by five or six feet.
Plaintiff and Mrs. Elliott said that at the time of the accident the chuck hole was the same color as the remainder of the road, and bright lights would not reveal its presence. Mrs. Elliott said it looked to be of the same substance as the road. Deal, who saw the place the morning after the accident, said the chuck hole was no darker than the rest of the road. Some other witnesses for plaintiff said the color was darker than the remainder of the road.
The content of the chuck hole was variously described: mud and slush; slushy, muddy water, more like thin cement; slushy stuff; sloppy water; water and mud; sloppy, thick like mud; like mortar, heavy and gobby. It was plaintiff who said the chuck hole was three or four feet wide and over five feet long. Afterwards he said four feet by five or six feet, and it was plaintiff who said the hole was filled with a substance like mortar, heavy and gobby.
Plaintiff said that when he examined the place with his flashlight immediately after the accident, he had thrown all the water and mud out of the hole, which was quite a feat for two wheels of a Ford car going twelve to fifteen miles per hour. Seeing the hole empty, plaintiff had opportunity to observe whether there were banks, and if so whether they were steep or sloping; what the depth of the place was; and whether the whole area of twenty to twenty-four square feet was of uniform depth. If plaintiff made these observations, he did not condescend to tell the jury about them. He expressed a judgment as to depth of the pond at the foot of the curve, but not as to depth of the chuck hole. Nobody knew the depth of the chuck hole. At first John Binkey, who saw the place the next morning, said the chuck hole was five or six inches deep, but he said he did not measure it or examine it, and did not know whether it was one inch or eight inches deep. Binkey said the chuck hole was about level with the road, and looked like it was just a softer place than the rest of the road.
Deal testified as follows:
“The chuck hole was about three or four feet long and probably fifteen inches wide. It looked more like the trucks had worn it out and got the hole started and knocked it out. It was a low place filled with this slushy stuff. We saw where the car hit it and slushed it out. We couldn’t see the bottom of it, and I don’t know how deep it was.”
“This little chuck hole was there. It was nearly level with the rest of the road, but it was a thin formation of stuff. I didn’t examine the stuff. I didn’t care to. I just looked at it. Cars were going back and forth, and you could see where it had been splashed out.”
Manifestly the place had filled after the accident occurred, and, with cars going back and forth, just how Deal could distinguish a splashing out by a Ford sedan the night before is not apparent and was not explained.
There is no other testimony which adds appreciably to the information the court and the jury possessed concerning this chuck hole. The highway commission contends the testimony did not disclose a defect in the highway, within the meaning of the statute imposing liability for highway defects.
In several cases the court has declined to interfere with a finding by the jury that the highway was defective. In each case the claimed defect was described.
In the case of Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106, there was a rut adjoining the concrete slab with which the highway was paved. The rut was from fifty to seventy-five feet long, perhaps eighty to ninety feet long, was eighteen to twenty inches wide, and was from six to twelve inches deep for its entire length. It was from twelve to fourteen inches deep at the deepest place. It was so deep at the place where the wheels of the Collins car went into it that the tie rod of the car was bent.
In the case of Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, the highway had been surfaced with- sand and gravel, and at the time of the accident was dry. Near the top of a hill were two holes in the surface. One was two and one-half feet long, ten inches wide and five inches deep. Near it was another hole two feet long, ten inches wide and four inches deep. These holes were near the center of the highway. As an automobile was driven down the hill, a front wheel went into the first hole, and the car was deflected to the right. Then a wheel dropped into the other hole, the car was deflected to the left, and the driver lost control.
In the case of Collins v. Highway Comm., 138 Kan. 629, 27 P. 2d 216, the highway was graveled and was dry. About two feet from the center of the traveled way was a hole two or three feet long, eighteen inches wide and six to eight inches deep. As motor vehicles crossed the hole, the jolt would make a noise which could be heard at a nearby farmhouse; and a witness testified that while he was going home the evening before the accident his car went into the hole and was overturned.
In this instance the descriptions of the physical characteristics of the place were such that nothing can be affirmed concerning it except that it was a depression containing soft substance. No witness knew and the jury did not know how much the road surface was depressed, whether slightly, considerably, or deeply. There was enough soft material to splash. That is of such common occurrence in wet weather on roads surfaced with sand and gravel that nobody regards the circumstance as indicating defect. There was no evidence of shock to the car in entering or leaving the depression. Its only effect, if it had any effect, was that plaintiff felt the car pull to the left, something which may occur on any sand and gravel road, wet or dry. Plaintiff said his bright lights did not disclose the depression, and when we turn to characterizations by his witnesses of what they saw, Binkey said it looked like it was just a softer place than the rest of the road; Deal said there was a little low place, a chuck hole, and he called it “this little chuck hole.”
In response to a leading question, plaintiff said hitting the chuck hole pulled him to the left so that he hit the sand (gravel ridge). But before that the following occurred:
“Q. Anyway, something came up out of this hole and so covered your windshield that you couldn’t see the road? A. Yes.
“Q. What did you do then? A. I felt the car pull to the left.
“Q. What do you say now, in your judgment, made your car pull to the left? A. It was in this hole, I suppose; maybe it was part of this rut, or for some unknown reason it went out of the bank and caught this sand.”
Resolving in plaintiff’s favor the doubt in his own mind respecting what caused the car to pull to the left, the court is unable to discover any basis for charging the state highway commission with violation of statutory duty in the matter. The term chuck hole, as used in the United States, means a deep hole in a wagon rut. (Webster’s New International Dictionary, 1933.) It is proper to extend the meaning to include a deep hole in a vehicle rut. Plaintiff advanced his case at the trial by simply calling the place a chuck hole. He made no gain by proof, and the court holds there was no substantial evidence the highway was defective because of existence of the so-called chuck hole.
The road maintainer passed over the curve three times a week, and in the ordinary course of road maintenance threw up a ridge of loose gravel and sand, at the north side of the curve, as it did all along the road. In this instance some of the witnesses said the ridge contained dirt and mud. As indicated above, the ridge was twelve to fourteen or sixteen inches wide, and was six to eight inches high. It would be idle to say this ridge constituted a highway defect, and it cannot be considered with the chuck hole, which was not a defect, to make the highway defective.
Beyond the gravel ridge was the drainage ditch, a necessary feature of highway construction at that place, which had existed since the highway was improved. A drainage ditch does not of itself constitute a highway defect, but plaintiff contends the highway was defective because there was no guard rail or post or other warning sign to indicate plaintiff should keep to the traveled portion of the highway.
There was a difference of opinion among plaintiff’s witnesses regarding nearness of the edge of the cave-in to the gravel ridge. Plaintiff gave some testimony to the effect the ridge curved to the south around the cave-in, but he admitted this was subsequent to time of the accident. Mrs. Elliott said the ridge of gravel followed the contour of the road. John Binkey said the gravel ridge was pretty close over to the north side of the highway and pretty close to the cave-in, practically right up against it. Deal said the ridge of gravel was between three and four feet from the cave-in. Ralph Binkey, son of John, said there were approximately two feet of weeds and vegetation between the traveled part of the road and the shoulder of the road where it commenced to slope off.
Operation of the road maintainer was described. The blade, catches a little of the surfacing, fills depressions, and works the surplus to the side of the road. The court recalls no testimony that grass and weeds could grow any place to which the end of the blade extended. The surplus material, sliding off the end of the blade, forms what is called a windrow at the side of the road. The dimensions of the windrow along the north side of the curve have been stated. The court recalls no testimony that weeds grew from beneath this accumulating ridge composed of gravel and sand and dirt and mud.
If, as plaintiff testified, this windrow was so close to the cave-in that the material trickled down the side of the cave-in, there was no place for Ralph Binkey’s weeds to grow, or for any weeds to grow between the traveled way and the cave-in. Plaintiff said they grew in the cracks of the cave-in. Ralph Binkey testified there were no weeds down the bank of the cave-in. Deal merely said there was some vegetation there.
Plaintiff produced a sketch, not drawn to scale, of what some of his witnesses said was a fair representation of the place, but some of its features were not agreed to. It was used before the jury to aid in the examination of witnesses, and was introduced in evidence. The sketch was on a sheet of paper slightly less than eighteen by twenty-four inches, and was done in colors. It was not signed by the artist, and no one appeared at the trial to claim credit for it. It bore a legend that the red color represented the pipe line, blue represented the pond of water, brown the dirt banks and grading, and yellow the loose gravel. The legend did not mention the chuck hole, but it was in the picture, done in black. There was neither legend nor painting of weeds beyond the gravel The grouping was such that the gaze of a juror across the blue pond, and across a bit of highway between the pond and the chuck hole not as wide as the chuck hole was long, rested on the black chuck hole, the yellow gravel, the brown cave-in, and the red pipe line. The great pipes hung across a chasm of cave-in and ditch, and were lost in the precipice of the north side. They towered to a height practically equal to the distance of the pond from the chuck hole. A length of' the lower pipe was visible for a distance greater than that from the pond to the chuck hole. If that were a fair representation of the place, the cave-in, the ditch, and the pipe line would shout their presence to any automobile driver approaching the curve from the west with bright lights, and installation of any warning barricade, or sign, or red light, would have been a waste of public money.
Perhaps the exaggerations of the travesty by way of sketch which has been referred to may have emphasized the importance of some screen to conceal the ditch, the cave-in, and the pipe line from plaintiff as he approached them, and there was much’ testimony on the subject of weeds. The testimony will not be reviewed. Plaintiff takes this position in his brief: The ditch, cave-in and pipe line were concealed from plaintiff by a rank, luxuriant growth of sunflowers, ragweeds, and horseweeds, on the shoulder and bank of the ditch, and in the cave-in and the ditch. Without interpreting the words “rank” and “luxuriant,” there was testimony warranting an inference there were weeds and other vegetation on the shoulder and bank of the ditch. Plaintiff admitted he saw weeds, but he minimized apprehension of them by saying the gravel ridge cast a shadow. If, as the testimony indicated, some of the weeds rose to a height of two or three feet, and others to a height of one and one-half to two feet, they were several times higher than the ridge of gravel, and plaintiff’s brief in this court says the weeds cast a shadow.
With reference to the subject of shadow, plaintiff testified:
“Q. Then you could see the weeds, couldn’t you? A. The gravel looked like a black bank there.”
There was more equivocation, but plaintiff was chargeable with seeing what he could see, and the weeds were perfectly manifest.
Plaintiff knew about this curve. He knew he was on the north side of the road. He knew the weeds and gravel ridge were on his left hand, and the black bank which he saw, backed by the wall of tall weeds, which in fact unmistakably marked the north limit of the traveled part of the road, gave him all the warning a prudent driver, driving up hill on a banked curve, needed respecting that limit.
Plaintiff contends existence of the cave-in, the pipe line, and the ditch, all concealed by weeds, made the highway defective, under the decision in the case of Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051. In that case the ditch was not a highway drainage ditch at the side of the road. It was a private ditch dug within the limits of the highway. The ditch narrowed the traveled portion of the highway to thirteen and one-half feet. The ditch was deep, and was thickly covered with weeds. While driving his car southward on the west side of the traveled way, Watson became apprehensive of a collision with a car approaching from the south at a high rate of speed, and veered to the right. The ditch was only two feet away, and the car went into it. It was held the question whether the highway was defective was one for determination by the jury. We have no such case here.
In the Watson case the jury inspected the scene of the accident. In this case the jury inspected the scene of the accident, which occurred November 15, 1930. Plaintiff makes much of the knowledge gained by the jury by view of the premises.
The trial commenced on October 26, 1931, and the verdict was returned November 9, 1931. The resident engineer of the highway commission testified the road had been resurfaced in January, 1931. Deal testified:
“The cave-in has been all filled up to the elbow on the pipe line. The bottom of the ditch has also been filled up to the lower pipe. The chuck hole has been done away with. The road has been sanded where the pool of water was.”
Ralph Binkey testified:
“There has been some change in the condition of the pipe, the ditch, the gravel, the chuck hole, the pool of water, since the night of the accident. Along the cave-in it has been filled up, raised a little perhaps. The pipe still exists there, but it has been filled up around it some, and the chuck hole filled up . . .”
There was testimony concerning recent digging about the pipe line, and there is no contention there were any weeds in sight when the jury was there. Therefore, the jury was obliged to depend on the testimony for information respecting all the conditions relied on as chief factors of the accident.
Plaintiff contends the jury was authorized to find the curve was a dangerous curve by taking into account, in connection with the other evidence, the fact that vehicles frequently went into “the” ditch at that curve.
The fact that an automobile departed from the traveled way means nothing with respect to existence of defect unless the circumstances are known. Always there is the question of speed. In this instance the testimony relating to other cars going into the ditch descended to this level:
“I heard the boys say there was a ear that went into the ditch last night.”
It had been raining for some time before the accident occurred. The general condition of the road was muddy. There was evidence the ground was soft and slippery, and that it was very slippery. On the evening of November 15, and just before plaintiff’s accident occurred, a truck slipped off the south side of the road into the south ditch, and there were some other authentic accounts of vehicles slipping off the road.
The ditch at the south side of the road was not described, and there is no contention it should have been fenced, even if the road were slippery. Deal testified the ditch on the north side of the road east of the pipe line was rather shallow, and there was an abrupt-pitch after the pipe line was passed. There was testimony for defendants that the area drained by the ditch was very small. A witness for defendants testified the ditch east of the pipe line was about a foot deep. Another witness said it was about one and one-half feet deep, and within about 100 yards shallowed out to level. Another said the ditch was a bit shallow east. Another said that east the ditch was not very deep, and shallowed out from there on. There was no rebuttal evidence on the subject, and there was no evidence warranting an inference that the north ditch east of the pipe line constituted such a peril to traffic that it should have been guarded.
It will be recalled that both plaintiff and Mrs. Elliott testified that the north side of the road, which they were using, was not •slippery. It was sanded and graveled and firm. Only the south side of the road was slippery, and Deal said that the next morning after the accident cars were going back and forth. Plaintiff and his wife should have known the condition of the road, and if their testimony was approximately true, the slippery condition of the highway had no causal connection with their going into the ditch. Leaving their testimony at one side, there was no eyewitness to or reliable report of any vehicle slipping upgrade toward the pipe line, up the bank of the curve, over the ridge of gravel, and through the weeds, into the ditch.
The result is, the state highway commission rested under no duty to barricade the ditch in the vicinity of the pipe line because of the slippery condition of the highway in wet weather.
Employees of the Shell company testified that in order to install the T for the pipe-line swing, an excavation was made in the shoulder of the highway to the depth of six to ten inches. The earth was replaced, and was tamped down hard. There was no other evidence on the subject. Plaintiff’s evidence was that action of water flowing down the ditch was affected by the pipe line, and caused the cave-in. If so, the ditch was still a drainage ditch at, the north side of the highway, beyond the traveled portion of the road. The pipe line was not in itself a structure which menaced travel on the highway. It was so located it did not obstruct, inconvenience, or endanger public travel. The chance that travelers from the west, the class to which plaintiff belonged, might get over into the ditch where the pipe line crossed it, was so remote that neither the highway commission nor the Shell company was required, in exercise of ordinary, reasonable foresight, to protect against it.
In support of the verdict against the Shell company, plaintiff cites the case of Durst v. Wareham,, 132 Kan. 785, 297 Pac. 675, a nuisance case. In that case, Wareham maintained on his own land next to an alley an old shed, the roof of which was supported by a post which rested on a concrete floor and was not braced or fastened. The alley was covered with snow and ice. Durst was riding a motorcycle. When opposite the post, the front wheel of the motorcycle dropped into a rut, the rear wheel skidded, and the motorcycle headed for the post. The motorcycle struck the post, knocked it down, and the roof of the shed fell. The peril to users of the alley inhered in the nature of the structure itself. If the post had been a massive stone pillar, as rigid as the pipe line in this case, and if the motorcycle had been demolished and Durst had been injured, he could not have recovered. The distinction was indicated by the following from the opinion:
“It is not the closeness of the pitfall or dangerous structure to the highway that renders the landowner liable; rather it is the danger that the structure affords to travelers upon the highway.” (p. 789.)
In the foregoing the recital of evidence ignores evidence favorable to defendants, except as indicated. The recital is not a complete statement of all of plaintiff’s evidence, and on account of inherent difficulties, may not be perfectly accurate in every detail. It is, however, fairly representative of all there is in plaintiff’s case, and when analyzed the evidence does not sustain the verdict against defendants. This conclusion has been reached after full consideration of the authorities cited in the briefs. It would unduly extend this opinion to review them.
The judgment of the district court is reversed, and the cause is remanded, with direction to enter judgment for defendants.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained when plaintiff fell into a manhole maintained by defendant for access to a conduit forming part of its underground system for distributing electricity. Plaintiff recovered, and defendant appeals.
In Wichita there is an alley or lane connecting two streets. On each side of the alley is a narrow sidewalk. In the walk on the south side of the alley were four manholes, into one of which plaintiff fell. Plaintiff and her husband kept a restaurant in the lane, and there were business places across the lane from the restaurant. Truck deliveries to Kress & Company’s store were made at the place of accident. Automobiles crossed the sidewalk and the manhole into which plaintiff fell, to reach and leave a small parking space, and the alley or lane was a public thoroughfare used for both pedestrian and vehicular traffic. There was evidence persons besides plaintiff had been tripped by the manhole cover, and the next day after the accident to plaintiff it was replaced.
Notice to defendant of the defective condition of the manhole cover was an issue at the trial. The jury found actual notice, and the finding is' not contested here. It is contended, however, that testimony given to prove notice was erroneously admitted.
R. G. Patterson was an employee of Kress & Company, in charge of maintenance of the company’s store building. A man walking on the sidewalk stepped on the manhole cover with his heel, and tripped so that his foot started to go down. He stepped quickly, and avoided a fall, and said, “That is a dangerous manhole; somebody ought to report it.” Patterson told him there was a telephone in the building, and he could use it. The telephone was beside the door, and the door was open. The man turned around, went back, and used the telephone. A few days later, and three or four days before plaintiff fell into the manhole, a small red truck was driven to the place of accident. The truck bore the name of the electric company on the cab. In it were two men in workmen’s clothing, and some tools. The men commenced to inspect the manholes, and Patterson pointed out the one which was giving trouble. The men took off the cover, cleaned the ring or seat of the cover with a tool, and kicked the cover back into place. The men then inspected the other manholes, and drove away. After the men arrived, Patterson and one of the men conversed. When testifying at the trial Patterson would tell, and would be asked to tell, what the man said. The court struck out those portions of Patterson’s narrative, instructed the jury to disregard them, sustained objections to questions, and admonished counsel to find out what the men did. After what the men did had been described, plaintiff’s counsel offered to prove by-Patterson that one of the men said they had had a number of complaints with respect to the manhole being dangerous. Objection was made on the ground the man had no authority to make admissions on behalf of the company. The objection was overruled, and the court admitted the testimony for the purpose of showing the company had notice. The testimony was erroneously admitted.
The objection to the testimony referred to recognized there was room for inference the men were company employees, and was limited to nature of their authority. So far as the evidence disclosed, their authority extended no further than execution of the particular work in which they" engaged. It did not include authority to commit the company by telling about things which had happened in the past in the course of the company’s business. The error, however, could not have been prejudicial. How the employees happened to be at the scene of the accident was not important. They were there, and they inspected the manhole and did work upon it. The cover was bulged and warped; it rocked a little, making a tinkling noise; it had a slight tilt; it did not rest evenly on the seat; it did not fit snugly; there was quite a space- between the rim and cover, and the cover would tilt when a person’s foot was placed on the edge. The jury were asked the following question:
“When and in what manner do you find defendant electric company had notice of the condition of the sidewalk and manhole cover as it existed at the time of the accident?”
The jury ignored notice by report to the company of condition or accident, and gave the following answer:
“Evidence shows three (3) days prior to accident, by electric company employee inspecting and cleaning manhole ring seat.”
Defendant complains the court permitted injury not pleaded to be proved.
Plaintiff went down into the manhole to a depth which would permit her elbows to strike the side of the hole at the top. Her body was in the manhole from her hips down. As she went down she was “kind of doubled over.” The petition alleged that in falling she struck her body on the cover and on the edge of the hole, and bruised each and every part of her body, and especially suffered contusions and lacerations of both legs between her knees and her feet. There was full proof of severe injuries to the legs, and the wounds became infected. Referring to body injuries, plaintiff testified that at first it seemed she was badly hurt all over, and she could not locate any particular place definitely. About the second day trouble with her back seemed to predominate. Her physician examined her back, and he testified he found a black and blue area over the right kidney, with tenderness and limitation of motion in the back and sacro-iliac region. On examination a considerable quantity of blood was found in the urine. Soon afterward pus was found in the urine. Satisfactory evidence was offered that the kidney was injured by the fall, that the blood came from the injured kidney, and that because the kidney was injured it became infected and discharged pus, which it still did at the time of trial.
Defendant objected to proof of injury to the kidney as not within the issues, and asked for an instruction withdrawing that subject from consideration by the jury. Defendant did not ask that the allegation in the petition of injury to the entire body be made more definite. Physicians for defendant examined plaintiff in November, and the trial occurred in the following January. The physicians knew plaintiff complained of her back, and that her kidney was discharging pus. In plaintiff’s opening statement it was said the kidney was injured. At the trial defendant did not complain it was not prepared to meet what it called the enlargement of the issues, and it was prepared to do so. The matter of injury to the kidney was fully tried. Therefore, if it were necessary, which it is not, this court would now treat the petition as amended to include injury to the right kidney.
Defendant contends some medical testimony given by Doctor Misseldine was improperly received.
Doctor Cooper had been plaintiff’s physician for a number of years, and treated her injuries. At the trial he was not available just at the time plaintiff desired to use him as a witness and Doctor Misseldine was called. Doctor Misseldine gave medical testimony based in part on the fact plaintiff was in good health previous to the accident, a fact not yet established and which plaintiff’s attorney said would be proved. The proof was well supplied, and in the proof defendant found what it endeavored to use as a port in a storm. The accident occurred on April 29, 1932. The trial took place in January, 1933. When Doctor Cooper was called, he testi fied that in December, 1928, plaintiff passed a stone from her left kidney, and that kidney became infected and discharged pus. The condition cleared up within a few weeks. Careful observation was made to detect return of the trouble, and it did not return. An examination was made about two months before the accident, and there was no showing of pus. Of course, defendant contended the discharge of pus commencing after the accident did not come from the right kidney as the result of the manhole injury, but did come from the condition resulting from passing a stone from the left kidney some years before the manhole accident, a condition which quickly vanished and never returned. In that connection it is now contended Doctor Misseldine’s testimony based on good health before the accident was erroneously admitted. If so, defendant should have given the district court an opportunity to do something about it at the trial.
Instructions relating to conditions under which defendant would be liable for negligence are criticized. When plaintiff commenced to go down in the manhole a truck driver, unloading merchandise at the Kress & Company store, was within two feet of her. Ten days before he had been tripped by the manhole cover. He could not prevent plaintiff from going down, but he helped her out -of the hole and to the restaurant. He said he saw a good deal of blood gushing from her limbs, and in this appeal accident and injury are not contested. The jury found specially that defendant was negligent in having a defective manhole cover before and at the time of the accident and, as indicated, found defendant had notice of the condition. Therefore it is not now a matter of consequence what the instructions were.
The court instructed the jury that evidence of repair of the manhole might be taken into consideration by the jury as one of the incidents of the case in determining whether the manhole was defective. In this state such evidence may be considered in the manner indicated by the instruction. Defendant admits such is the rule in this state, but contends the court should abandon its position and place itself in harmony with the great majority of courts which have considered the subject. If so, the court should wait until it has before it a case in which evidence of repair might be of sufficient importance to affect the verdict.
Other contentions relating to instructions given and instructions refused are not of sufficient gravity to warrant discussion.
Defendant contends the verdict was excessive. The court has fully considered the evidence, which need not be rehearsed. The conclusion is that, while the amount is large, the verdict will n-ot be disturbed.
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to set aside a judgment.
Emma Nech, one of the defendants, was the guardian of the defendants Ella Novotny and Anna Novotny, minors, and in November, 192,6, had on deposit in the Zurich State Bank the sum of $4,800. To secure her on the deposit, a bond was executed by W. A. Sparks, who was a stockholder of the bank and who is the appellant here, and by M. S. Graham, John Casey and J. A. Hall, alleged to have been officers of the bank, and by Henry Hamel, whose connection with the bank, if any, is not disclosed. The bank failed, and the guardian brought suit on the bond. On January 21, 1930, a settlement was effected between the guardian and defendant Casey and reduced to writing wherein he paid, $1,200 to the guardian and assigned.to her “any rights he may obtain by reason of having paid a portion of the bond.” This settlement was submitted to and approved by the probate court, and on the same day the action in the district court came on for trial, at which defendant Casey appeared by counsel and the above stipulation of settlement was approved. The journal entry of judgment recites that the other defendants made no appearance and offered no defense, and judgment was rendered against them for $3,600 and interest from that date. Subsequent thereto an execution issued, and thereafter a motion to vacate the judgment was filed, and later submitted and denied. Thereafter the present action was filed, the petition alleging a portion of the above facts, which are gathered from it and the plaintiff’s opening statement. Plaintiff alleged that he signed the bond mentioned with the understanding and agreement that the other defendants in the first action were principals and that he was a surety, that the bank was in good financial condition, and that he would never be called upon to pay the amount of the bond or any part of it,' and that the statements concerning the bank were false. He further alleged that he has a good defense to the first action in this: That defendants Casey, Graham and Hall informed him they had provided counsel for him as well as themselves, and his interests would be equally protected, and that he was informed an answer had been filed and relied thereon and had no notice or knowledge of said action coming on for' hearing, was not in default, and had no notice or knowledge except he was informed that Casey had settled the entire matter. As to the claim that he had an understanding with his cosigners on the bond that he was secondarily liable, and that his signature was fraudulently obtained, there is no allegation that the guardian had any knowledge or notice of any kind thereof. It was alleged further that after the settlement made by defendant Casey was approved, the action was dismissed with prejudice as to all parties and that the order of dismissal was never set aside, the judge’s notes on the trial docket reciting:
“Cause dismissed with prejudice to future action as per stipulation signed by counsel for both parties and approved by the court.”
And it was further alleged that the amount of the judgment was undetermined because of the assignment of dividends on the claim.
When the case came on for trial, after plaintiff had made his opening statement, defendant moved for judgment on the pleadings and opening statement, which motion was allowed and judgment was rendered for defendant for costs.
The plaintiff appeals and assigns as error: (1) That the judgment sought to be set aside was void because of the release of Casey before judgment was entered. (2) That the matter was still pending in the probate court and the district court was without jurisdiction. (3) That there was an abandonment of appellant’s case without notice, and (4) That the court erred in allowing the motion for judgment. '
Appellant argues as though the relation of principal and surety existed between himself and his codefendants in the action on the bond. Assuming it did, there is no claim that the guardian, the appellee here, knew anything about that relation. The bond itself shows all of the original defendants signing in the same capacity. Appellant, had he been diligent, might have had his rights determined as between himself and his cosigners, but whatever that determination might have been, it would not have affected the guardian.
It is also argued that when Casey settled with the guardian, it released appellant, and decisions in cases arising in tort actions and authorities having to do with the relation of principal and surety are cited. Under the admitted facts, as between the guardian and the signers of the bond, no question of principal and surety is raised, and we are not here concerned with appellant’s claims as against the other signers. Under R. S. 16-101 the obligation on the bond contract was joint and several, and under R. S. 16-105 the guardian had the right to make the settlement she did with Casey. The judgment was rendered, not for $4,800, the amount of the bond, but for $3,600. Casey’s proportionate share was one-fifth of $4,800 or $960, while credit was given for the full amount which he paid, and appellant was not prejudiced.
With reference to the contention that the cause was dismissed with prejudice, it must first be remarked that the judge’s notes are no part of the record and cannot be used to impeach what is said in the journal entry of judgment. Further, it is apparent that the notation refers solely to the defendant Casey, for the dismissal is “as per stipulation,” and appellant here was not a party to the stipulation.
The contention that the district court was without jurisdiction is without merit. Simply because the bond was given to a guardian of minors, whose estate is subject to supervision by the probate court, the district court, a court of general jurisdiction, is not deprived of power to determine liability on the bond. Under such a situation, the probate court would be without authority to make any effective order to compel the sureties on the bond to respond. Rightmire v. Rightmire, 120 Kan. 95, 242 Pac. 138.
As to abandonment without notice of appellant’s defense on the action on the bond, nothing more need be said than that if he did not get to present his defense fully it was because of his reliance upon promises and assurances of his codefendants. Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133. It is not contended that the guardian prevented him in any manner from showing whatever defense he may have had. It is claimed he had an answer filed, but the nature of its allegations is not disclosed in the record. If it alleged no more than is indicated in the petition in this case, it did not present a defense in so far as the guardian was concerned.
As to the fourth assignment of error, it is apparent that it cannot be sustained. And another and further reason why the appellant must fail is that there is no showing whatever of any unavoidable casualty or misfortune which prevented him from defending the original, action on the bond. He elected to cast his fortunes with his codefendants; he cannot now charge them with fraud and bind the plaintiff, who had no knowledge thereof.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This case involves the interpretation of R. S. 12-105, which provides in substance that no action can be maintained against a city on account of injury to- person or property unless the person or corporation injured shall within three months thereafter file with the city clerk a written statement giving the time and place of the happening of the accident or injury received and the circumstances relating thereto.
In her petition Stella Ray alleged that at 10:30 a. m. on March 7,1932, she was injured when she stepped into a hole in the sidewalk, six inches deep, twelve inches wide, and eighteen inches long, which she did not see because it was covered with loose snow, and by reason of which she fell and suffered serious injuries for which she sought damages caused by the negligence of the city. As seen, the injury was sustained.at 10:30 a. m. on March 7,1932, and her claim was filed with the city clerk on June 8 following, the hour not stated.
On a demurrer the court held that the notice was served in time and overruled the demurrer. The city appeals and contends that the time commenced to run on March 7,1932, and that June 7, 1932, was the last day in the three-months period.
On the other hand, the plaintiff contends that under the statute for the computation of time she had until June 8, the full three-months period, to file her claim.
In the statute relating to claims against a city for damages, it is provided that:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto. Such city shall have thirty days from the time of the filing of such statement to make settlement with the claimant if it so desires.” (R. S. 12-105.)
How shall the three-months period given for the filing of the claim be computed? A statutory rule for computation of time has been prescribed by the legislature. It is:
“The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.” (R. S. 60-3819.)
It would seem that there should be little difficulty in applying so simple a rule to a stated period of time within which an act should be done. But the cases cited and others found in the books show different views as to the counting of time. This has been expressed by Lord Mansfield in Pugh v. Duke of Leeds, 2 Cowper’s Reports, 714. After reviewing many conflicting decisions Lord Mansfield said:
“Thus stood all the authorities down to the year 1743; a period of two hundred years; not much to the honour of the learned in Westminster-hall, to embarrass a point which a plain man of common sense and understanding would have no difficulty in construing.” (p. 722.)
In determining the question he said, among other things, that consideration should be given to the context and subject matter and it should be construed so as to effectuate the deeds of the parties and not to destroy them.
To avoid as far as possible difficulty in the counting of time, the statute quoted was enacted. In the early case of Hook v. Bixby, 13 Kan. 164, where the statute of limitations was involved in the bringing of an action on a claim where lumber was sold on the 19th of February, 1870, on which there was a three-year limitation to sue, it was held under the statute for computation that the plaintiff had until February 19, 1873, in which to commence his action. This was applied on the theory of excluding the first day and including the last, but not by excluding the first and last.
In another case, English v. Williamson, 34 Kan. 212, 8 Pac. 214, the question was again considered where there had been a sale for taxes and that redemption might be made within three years from the date of sale. The sale was made on September 4, 1878, and the statute provided that redemption may be had at any time within three years from the date of sale. Under the statute it was held that plaintiff had all of the 4th day of September within which to redeem his lots from taxes, and that in computing the three-years time the day of sale should be excluded. As the last day of the three-year period was on Sunday, he had the right to redeem until September 5,1881. It was said:
“If Sunday in such a case is not excluded, the owner of the property would not have the full three years given to him by statute within which to redeem his property from the taxes; while the statutes in express terms give him that time, and more than that time. It is three years and until the execution of the tax deed which is given to him by the statute within which to redeem his land from the taxes.” (p. 216.)
In that case the redemption notice required the owner to redeem on September 3, 1881, and hence it was held to be erroneous and did not give him the full time to redeem his property from the taxes. The notice was therefore held to be erroneous.
In Parkhill v. Town of Brighton, 61 Ia. 103, the question arose on. the taking of an appeal which was to be perfected within six months after judgment. The judgment was rendered March 30 and was perfected September 30. As March had thirty-one days it was contended that the appeal had been taken more than six months and was more than the time granted for appeal. The court held that the calendar months are to be computed by reckoning from a given day to a day of the corresponding number, if there is one, and that from the 30th day of March to the 30th day of September was exactly the time given. (See, also, Glore v. Hare, 4 Neb. 131; De Bang v. Scripture, 168 Mass. 91; Briggs v. City of Geneva, 90 N. Y. Supp. 858; Lester v. Garland, 15 Yesey, Jr., 248.) Some of the cases cited were decided on general principles and not on a statute fixing computation of time.
The court concludes that as the accident occurred March 7 and that as the claim statement was not presented and filed with the city clerk until June 8 the claim was not filed within three months, but was one day late, and hence the judgment must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs, Otis Lindenstruth and Eva Lindenstruth, brought this action against F. J. Leveque, to recover damages for the death of their son, Glenn, alleged to have been caused by the negligence of the defendant. The defendant prevailed, and the plaintiffs appeal.
Glenn Lindenstruth was about eight years of age, and the accident which resulted in his death occurred on the outskirts of Neodesha. A man named Anderson was driving a team attached to a farm wagon along a graveled street. The wagon had a floor made of two-inch planks with four-inch planks on the sides of the wagon. The wagon had a coupling pole three inches by three inches, which protruded six or seven feet back of the floor of the wagon. The team was being driven on a walk along the street, and as it passed a store Glenn and another boy, Clarence Kammerer, came out and mounted the projecting coupling pole and rode along a short distance, when Clarence got off the wagon. Glenn rode farther, holding to the hind end of the wagon bed, and when he was near the Lindenstruth home another boy called “Glenn,” whereupon Glenn jumped off the coupling pole and ran across the street behind the wagon. The farm wagon he left was going north on the east side of the traveled street, and at this time the defendant, F. J. Leveque, was driving an automobile going in the opposite direction on the west side of the street at a speed of about thirty miles per hour. The graveled portion of the street at this point was about twenty-five feet wide. When Glenn was going over to the west side of the street he was struck about two feet west of the center of the road by the defendant’s car. Defendant’s automobile was equipped with four-wheel brakes, and the marks in the gravel showed that the brakes were applied about eight feet north of where the boy lay after the accident. With a general verdict in favor of the plaintiffs, the jury returned the following special findings of fact:
“1. Was Glenn Lindenstruth, on the 27th day of August, 1929, a bright, intelligent boy, of the age of eight years, and more than ordinary intelligence? A. No.
“2. Was the injury and death of Glenn Lindenstruth the result of an accident as defined to you in the court’s instructions? A. Yes.
“3. Did Glenn Lindenstruth at the time he went into the highway at the point where he was struck by defendant’s automobile have judgment and intelligence enough to appreciate the danger of coming in contact with a moving automobile of the kind and character there operated by the defendant? A. Yes.
“4. At the instant that Glenn Lindenstruth went into the road in front of defendant’s car, how many feet away was defendant’s automobile? A. Fourteen feet.
“5. At what rate in miles per hour was defendant driving his automobile at the time Glenn Lindenstruth went into the road in front of defendant’s car? A. Thirty miles per hour.
“6. How many feet did defendant’s automobile go after striking Glenn Lindenstruth before it was stopped? A. Twenty-seven feet.
“7. After Glenn Lindenstruth appeared in front of defendant’s car did defendant have sufficient time to avoid striking him? A. Yes.
“8. If you should answer the last question ‘yes,’ then state why defendant failed to avoid striking him. A. Lack of presence of mind.
“9. Was the defendant driving upon the west side of the road as he passed the Anderson team and wagon? A. Yes.
“10. If you find the defendant guilty of negligence causing the death of Glenn Lindenstruth, state the act or acts of negligence of which the defendant was guilty. A. No warning of horn. Too close to center of road.”
Motions were made by defendant to set aside certain answers to special questions, also one for judgment for defendant, notwith standing the general verdict. The motions were argued and taken under advisement, with the request for written briefs on the questions of law involved. These were filed and later the court overruled the motion to set aside the special findings but sustained the defendant’s motion for judgment notwithstanding the general verdict. The general verdict was set aside and judgment was rendered for defendant upon the special findings, and this appeal followed.
Plaintiffs contend that the court erred in giving judgment for defendant on the special findings and discusses at length the evidence which they say tended to show that defendant was driving too near the middle of the road and should have avoided the boy when he ran out from the back of the wagon. According to the findings defendant’s automobile was only fourteen feet away when the boy came into view in the path of defendant. Defendant was driving at a speed of thirty miles per hour, and there is nothing to show that the defendant knew of the presence of the boy on the farm wagon or that he was about to leave it until he trotted in front of the track of the automobile. An automobile with four-wheel brakes traveling at that speed was going forty-four feet per second and, according to approved computations, could be stopped in a distance of forty-five feet.. The distance traveled by the defendant’s car to the point where the boy was struck being only fourteen feet, it is evident that the defendant had only a small fraction of a second to stop his car and avoid striking him. Defendant promptly applied his brakes, and the wheel marks in the street showed that a stop was made in twenty-seven feet from the point of collision. There was no lack of diligence in the effort of defendant to stop his car. On the contrary it shows promptness and care and a very quick stop.
It is argued that the defendant was driving his car close to the center of the road, and that he might have avoided the collision. He was driving on the right side, which was on the tvest side of the street, and was not negligent because he was driving nearer the center than the outside or west side of the road. (Giles v. Ternes, 93 Kan. 140, 143 Pac. 491.) Defendant did not know that the boy was on the wagon or likely to run out from behind it until he came in the path of the automobile, which was only fourteen feet away, and the defendant then applied his brakes in an effort to save him. There was only a split second of time, a tick of a clock, to avoid a collision, and we fail to see what more the defendant could have done to avoid striking the boy than was done by him. It is clear there was nothing approaching negligence in the defendant’s action or omission in his endeavor to avert the lamentable tragedy. Neither do we see any negligence in failing to sound a horn when meeting and passing the approaching wagon. The accident occurred in daylight. The automobile was traveling on the right side of the road as was the wagon, and nothing in the law or the rules of the road requires the useless blowing of the horn in meeting a coming vehicle, each on its own side of the road, where there is no congestion of traffic nor any pedestrian in sight.
In Crutchley v. Bruce, 214 Ia. 731, a defendant driving an automobile on the proper side of the road approached a milk truck standing on the proper side of the road and partly off of the pavement on the proper side of the road, with a driver of the truck standing beside it, when a boy eight years old, hidden from view among milk cans in the truck, emerged suddenly and stepped in front of the oncoming automobile. The driver of the automobile did not sound a horn as he approached, of which complaint was made, and it was said:
“There was not the slightest thing, to indicate to the driver of the automobile in any way that a boy was among the milk cans on the rear portion of the truck or near there, and that he might suddenly dash into the path of appellant’s automobile. A driver could not reasonably be expected, under such circumstances, to anticipate that a person might so appear suddenly in his path, and hence be required to give a signal of his approach.” (p. 736.)
See, also, Zinn v. Updegraff, 113 Kan. 25, 213 Pac. 816; Bishard v. Engelbeck, 180 Ia. 1132; Sullivan v. Smith, 123 Md. 546.
Finding number two of the jury was that under the instructions the injury and death of the boy was the result of an accident, and a reading of the record shows that it was, in fact, an unavoidable accident so far as the defendant was concerned. Whether the jury meant that it was a mere happening and not one that was inevitable and could not be avoided, the findings, together with the evidence, show that it was one that defendant could not have foreseen and avoided by the exercise of ordinary care. The jury found that it was an accident as defined in the court’s instructions. The instructions of the court were not brought up on the appeal and we must assume that the term was properly defined by the court.
We are asked to examine the evidence in construing the findings of the jury. This has been done, and a reading of the evidence satisfies us that the defendant was not negligent nor responsible for the injury and death of the boy. The findings of fact control the general verdict (Jones v. Interurban Railway Co., 92 Kan. 809, 141 Pac. 999), and the only grounds of negligence attributed to the defendant manifestly do not constitute negligence, and under the findings and evidence we are compelled to hold that the district court rightly set aside the general verdict and gave judgment for defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for personal injuries. Judgment was for defendant. Plaintiff appeals.
At the time of the injury complained of plaintiff operated a restaurant in Kansas City, on Tenth street, about 100 feet north of the intersection of Central avenue and Tenth street. South of plaintiff’s restaurant and facing on Central avenue is located a three-story business building owned by S. C. Manne and Marie Manne, his wife. The first floor of this building is divided by a stairway leading to the second floor. The west or corner room was occupied by a drug store. The east room was occupied by a grocery store. This store was owned and operated by Mr. and Mrs. Y. L. Garringer. They leased the building from Mr. and Mrs. Manne. This action was brought against the Mannes and Garringers. The buildings on Tenth street, one of which was occupied by plaintiff, extended back east from Tenth street a little way past the corner room, which was occupied by the drug store. A cement walk had been constructed along the rear of the building occupied by plaintiff and the other buildings between it and the corner. This cement walk led to a door in the rear of the building occupied as a grocery store. Immediately below this rear door on the outside of the building and extending north was the ceilarway, which led to the basement underneath the grocery store. This cellarway was covered by two doors, one of which opened to the east and one of which opened to the west. In order for one to enter the store by the rear door it was necessary to walk over the cellar doors. The west cellar door was equipped with a heavy weight attached to a rope which ran through a pulley to facilitate opening it. There was an electric-light fixture on the outside of the building. This fixture was connected with the wiring of the house and was used for the purpose of lighting the rear-door entrance.
On the day of the injury, at about 6:15 in the evening, plaintiff left his restaurant by the rear door and walked to the rear door of the grocery store. The cellar doors were closed, and plaintiff walked over them and entered the store by the rear entrance. While plaintiff was in the store the west cellar door was opened by some person and allowed to remain open. When plaintiff started to leave the building by the rear door it had become dark and the electric light was not burning. When plaintiff stepped out of the rear door he stumbled into the open cellarway, fell about eight feet, and was injured. This suit followed. The petition alleged facts about as they have been set out here. At the trial an opening statement was made amplifying somewhat the allegations of the petition. At the close of the opening statement a motion was filed by defendants for judgment on the petition and opening statement. This motion was sustained as to the owners of the building and overruled as to the tenants. From that judgment this appeal is taken by the plaintiff. There is no appeal by the tenants.
It is the theory of plaintiff that Mr. and Mrs. Manne, directly or by implication, either invited or induced the plaintiff to go upon their property for the purpose of trading at the store, and that through long usage they had permitted their property to become devoted to public use; that they invited the public to use the premises and that plaintiff was their invitee; that by this invitation they owed those rightfully on the property the duty to warn of latent or concealed perils and to have their property in a reasonably safe condition; and that defendants failed to discharge this duty. Such a situation is set out in the petition except that the premises were in safe condition until some outside human agency intervened and caused the condition to exist which resulted in the injury. As the landlord provided the premises, they were safe. Plaintiff had just walked over the cellar doors a few minutes before the injury and no harm resulted. So far as is pleaded no harm would have resulted had not some person, not under the control of the lessor, left the cellar door open.
This question was passed on in the case of Frischberg v. Hurter, 173 Mass. 22. There the plaintiff was injured by falling through a coal-hole in a sidewalk. In holding that the lessor of the building was not liable, the court said:
“Landlords are not obliged to see that the covers on coal-holes in premises which are in the occupation of a tenant are kept securely fastened, and we think that the cause of the accident in this case was the neglect of the tenant to fasten the cover, rather than the worn condition of the hole.”
In Kirby v. Newman, 239 N. Y. 470, the court said:
“While the owner of a building who maintains an opening in the street in front of his premises unquestionably has a duty towards the public of reasonable care which he cannot transfer or delegate as long as he is in possession and control of the opening, yet he is not liable for the consequences to a stranger of the wanton or careless act of some other person not in his employ.”
In the case of Fehlhauer v. City of St. Louis, 178 Mo. 635, the court considered the liability of the owner of leased premises for damages sustained by plaintiff falling through a cellar door that had been left open by a third party. The court said:
“Where the cellar door in a sidewalk in front of the demised premises was properly constructed and was in good condition at the time of the demise, and at the time a pedestrian fell through the open door, the only ground upon which the landlord can be held liable for the consequent injuries to the pedestrian is, that the cellar door was a nuisance per se in the ordinary use to which it was adapted and for which it was intended.”
To the same effect is Reynolds v. King, 132 N. Y. Supp. 273, where the court held:
“Where a cellarway under the sidewalk was covered with iron doors, which were in perfect condition, and safe so long as closed, and the doors were under the control of a tenant, the owner was not liable for injuries received by a pedestrian because of the falling of the doors, which the tenant opened and left insecurely fastened.”
See, also, Dammeyer v. Vorhis, 63 Ind. App. 427.
It will be seen that the weight of authority is that where the premises are in a reasonably safe condition and only become dangerous when some agency outside the control of the landlord has intervened, the landlord is not liable for the injuries sustained by an invitee of the lessee who is lawfully on the premises.
This action was brought against the tenants and the landlord. On the motion for judgment the trial court gave judgment for the defendant landlord and denied the motion of defendant, the tenant.
Before the motion to dismiss was filed the tenants had filed an answer in which they alleged that the person who left the cellar door open was the agent and servant of the landlord. It is argued by plaintiff that this allegation supplied the lack of such an allegation in the petition.
No statute or authorities are cited holding that an answer of one defendant is binding on another. We have concluded that the point is not good.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Buech, J.:
Otto Metzger was charged as a persistent violator of the liquor law, who maintained and assisted in maintaining a still. He was convicted and appeals. The contention is there was no evidence warranting an inference of guilt.
The still was found on the farm of defendant’s father-in-law, Rudy Kopf. The Kopf farm is south of a road. Defendant lives on a farm on the north side of the road and west of the Kopf farm. Defendant said he lived about half a mile from Kopf.
Defendant and his father-in-law had an illicit-liquor complex. In 1925 defendant was convicted of unlawful possession of liquor, which he said he made to drink because his doctor ordered him to drink wine. (State v. Metzger, 121 Kan. 837, 250 Pac. 258.) In 1929 federal authorities found a still in the barn of defendant’s farm. He said it belonged to others, but he was convicted and served time in the federal penitentiary. He was released in July, 1932. In August a still was found in the silo on Kopf’s farm. The still in question was found on December 2, 1932.
The still was found by the sheriff in Kopf’s barn. The barn was about 100 feet long and 60 feet wide. A driveway extended the full length of the barn, and next to the driveway was a manger. The manger was full of hay. The sheriff had a long iron rod and, while poking the rod into the hay in the manger, he struck something which proved to be a ten-gallon keg of liquor. When the sheriff removed the hay to get at the keg, he found a sort of tunnel, the entrance to which was stuffed with hay. The tunnel went through the manger and was large enough for a man to crawl through it. The sheriff crawled through the tunnel to about the middle of the barn and came out in a room about twenty feet square and six or seven feet high. The room was surrounded with hay five or six feet in thickness and was covered with hay to a depth of some fifteen or twenty feet. The tunnel was the only means of entrance to the room. In the room were fifty or sixty gallons of corn whisky, some mash set, and a complete still, including a burner. A ventilator concealed by the hay extended to the roof of the barn.
When the .sheriff arrived at the Kopf farm, he found defendant and Kopf at the windmill. Kopf had a bucket of water in his hand. The sheriff announced he had a search warrant for the place. Kopf said he would take the water to the house and said something to defendant in German, a language the sheriff did not understand. Defendant started toward the barn, and the sheriff followed him. Defendant entered the driveway at the south door, picked up a pitchfork, and walked to the north end of the barn. As he went along he would pick up a little loose scattered hay and throw it into the manger. At the north end of the bam he climbed to the top of a pile of hay and threw down some hay. Then he went out of the north door, crawled over a wire fence and went toward the road. Afterwards, when the sheriff went to the house, defendant was not there. The premises were searched, the vicinity was searched, de fendant’s premises were searched, and he could not be found. That night the sheriff returned to the Kopf home and at about ten or eleven o’clock found defendant there. Kopf had fled and has not yet been apprehended.
The sheriff arrived at the Kopf farm about noon and, as indicated, found defendant there with Kopf. Defendant explained his presence at Kopf’s. Some bridgework on his teeth had become loose. He was going to Harper to have it fixed. He and his wife drove over to Kopf’s to see if the Kopfs wanted to go also, and defendant and his wife had just arrived when the officers came. There is nothing in the record to show whether those teeth ever have been fixed.
When the sheriff announced his mission, defendant took an immediate interest in the barn and the part of the barn in which the keg of liquor lay and upon which the tunnel to the still opened. He explained why he became interested in the barn. He said Kopf told him in German to throw down some hay for the cattle. This might have been a good explanation but for these facts: The mangers were already filled with hay, and the hay which he threw down was not needed for cattle. Fed cattle leave indications of their presence, and there were no signs that cattle were fed there. In fact, there were no cattle about to be fed, and the hay in the barn concealed a still and a large quantity of liquor.
There was room for inference defendant knew all about the still and the keg of liquor, went to the barn to see if the keg and the tunnel might be insufficiently concealed, and if so, casually to toss hay where it would effect concealment.
Concede that defendant went to the barn at Kop'f’s suggestion. As a practical matter, stills may not be successfully maintained in the open. It is essential to operation that they be well hidden, and he who attends to concealment contributes to maintenance. When defendant went to the barn, the sheriff had discovered nothing. Maintenance of the still had not ceased but was continuing right along, and, if Kopf were principal, defendant was aiding him by acts designed to insure uninterrupted maintenance. One who aids and abets may be charged, tried, and convicted as principal, and the court so informed the jury by an instruction concerning which no complaint is made.
A determined and resourceful sheriff with a search warrant may ferret lurking places and, notwithstanding everything looked all right in the barn, defendant fled. While he did not leave for parts unknown, he quickly left the Kopf place and went into hiding.
Hasty departure indicative of guilt may be explained, and the defendant explained his conduct. It will be recalled he arrived at Kopf’s place near noontime on the way to town to get his teeth fixed. After he left the barn he went to the house. His car was gone. Mrs. Kopf had high blood pressure. After the sheriff came she had a fainting spell, and defendant’s wife took the car to go to her home and get some medicine. Whether fleeing Kopf was picked up on the way does not appear. Apparently defendant could not wait with his stricken mother-in-law until his wife came back with medicine, and could not wait for the car so he could go on to town and get his teeth fixed. So, in utter ignorance of the existence of the still in the barn, and conscious of the rectitude of his conduct in throwing down hay for the cattle, he just started to walk back home.
There was more balderdash, which it is not necessary to relate. There is good reason to believe defendant was interested in maintenance of the nuisance. That he assisted in its maintenance was well proved.
The judgment of the district court is affirmed. | [
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MEMORANDUM
In a petition for modification of the judgment it is shown for the first time that the sheriff paid the taxes on the real estate sold, in the sum of $6.64.71, out of the proceeds of sale. This fact does not affect the inequity of the sale, and the judgment directing that the sale be set aside is adhered to. Since, however, plaintiff has paid defendant’s taxes, the district court, on application, is authorized to award plaintiff a supplemental lien for the amount of the taxes. | [
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The opinion of the court was delivered by
Dawson, J.:
This case presents questions of precedence between materialmen’s liens and those of the holder of mortgages on three town lots in Salina.
On November 18, 1925, one Wyatt, owner of the east half of lot 10, block 10, Riverside Park addition to Salina, sold it to Charles A. McLean. This lot fronts eastward and is bounded thereon by Ohio street, which runs north and south. At the time of the sale Wyatt and McLean had an understanding that McLean should build a house on the lot, that McLean could give the Security Savings & Loan Company a first mortgage on it to obtain funds ($2,275) to build the house, and that Wyatt would accept a second mortgage to secure him for part of the purchase price. Accordingly Wyatt executed a deed to the lot in favor of McLean, dated November 18, 1925, and left it with the loan company pending completion of arrangements for the building loan. McLean went into possession of the lot forthwith and commenced to dig a basement and to construct a garage.
On November 24, 1925, the first and second mortgages as theretofore agreed to were executed; and on December 3, 1925, the deed from Wyatt to McLean and the first and second mortgages were filed for record and recorded by the register of deeds.
On November 24, 1925, the Golden Belt Lumber Company began the delivery of materials for the house. The lumber company furnished further materials as the progress of the work required, and it was paid in full therefor.
In January, 1926, while the above construction work was in progress, McLean purchased the east half of lot 9, and the east half of lot 11, which lay immediately on either side of lot 10. The terms of purchase were substantially the same as those whereby he had acquired lot 10 — that the loan company should have first mortgages on these lots to secure payment of moneys to be advanced to build houses thereon, and that the vendor and former owner, one Snyder, would accept second mortgages to secure him for balance of their purchase price.
Accordingly, on January 22, 1926, Snyder executed a deed to the east half of lots 9' and 11 to McLean, and left it with the loan company to be delivered to him when first and second mortgages were executed. On January 25 McLean executed separate first mortgages of $2,600 each on those two lots to the loan company, and likewise second mortgages to Snyder. On the following day, January 26, 1926, McLean commenced to dig a basement on lot 11 and finished it within two days, and on February 1, 1926, he commenced to dig a basement on lot 9 and finished it by February 6.
On January 27, 1926, McLean entered into a single verbal contract with the Golden Belt Lumber Company for the building materials required for the construction of the two houses, one on lot 9 and the other on lot 11. On February 2 the lumber company began delivering materials on these lots pursuant to that contract and made its last delivery on September 22, 1926. All these were paid for by McLean, except a balance of $237.05. To insure payment of this balance the lumber company accepted McLean’s note, and on December 3, 1926, filed a mechanic’s lien on the three half lots 9,10 and 11.
The deed from Snyder to McLean and the first mortgages executed by McLean to the loan company covering the half lots 9 and 11 were recorded on March 8, 1926. The second mortgages from McLean to Snyder were not recorded until December 15, 1926. The lumber company had neither knowledge nor notice of any of the loan company’s first mortgages until they were recorded.
On September 1, 1926, when the three houses had progressed to the proper stage of completion, McLean entered into a single contract with the Salina Plumbing Company to install water and sewer connections in the three houses and to make the necessary connections at the rear of each house. The plumbing company completed this work by September 17, 1926, and its bill therefor, $285, being unpaid, on January 8,1927, it filed its lien on the three half lots.
Some time in October, 1926, under an oral contract with McLean, R. A. McConnell installed a furnace in the house on the east half of lot 9 and another furnace in the house on -the east half of lot 11. The agreed price of the former was $140, and $135 for the latter. In default of payment, McConnell filed his lien therefor on December 17,1926.
To determine the proper order of precedence for the enforcement of these liens and to 'foreclose them, the Golden Belt Lumber Company, plaintiff, brought this action, impleading as defendants the loan company, the second mortgagees, the Salina Plumbing Company, and McConnell.
The pleadings of the parties and the evidence of the parties developed the facts substantially as outlined above, and the trial court’s findings of fact were to like effect.
The court held that lots 9, 10 and 11 constituted one tract of land for the purpose of the mechanics’ liens and that they attached to the whole of it. These liens were given precedence over the loan company’s mortgages. The second mortgages were placed last of all, but the holders thereof have dropped out of this lawsuit, and that feature of the judgment is of no present concern.
The loan company appeals, contending first that the court erred in its ruling that the three lots constituted a single tract for the purpose of subjecting it to the liens given precedence over the mortgages held by the appellant loan company. On that point counsel for the plaintiff lumber company say in their brief:
“Although the plaintiff filed a lien upon the east half of lots 9, 10 and 11, block 10, Riverside Park Addition to the city of Salina, Kansas, at the trial in the district court it did not insist upon a lien upon the east half of said lot 10, although the other materialmen who had furnished material for the construction of the three houses on said lots did maintain their claims for liens upon all of said lots. Plaintiff does claim a lien on the east half of lots 9 and 11, Riverside Park Addition to the city of Salina, Kansas, and claims that said lien is superior to the liens of the loan association, and that it is entitled to priority over said mortgage liens.”
The lumber company made but one contract with McLean to supply the materials for the houses on lots 9 and 11. All these materials were paid for except a balance of $237.05. Plaintiff filed but one lien on the lots to secure payment of this balance. Why should it file two lien statements? The lumber company had no means of knowing how much of the material delivered under this single contract was used in building the house on lot 9, nor how much in the house on lot 11. It was under no duty to keep track of such details.
This court has held that where a lumber company’s contract for materials for two or more buildings on contiguous lots is single and entire, a single lien to protect the materialman is sufficient. In Mulvane v. Lumber Co., 56 Kan. 675, 678, 44 Pac. 613, it was said:
“And we do not know of any legal objection to a single contract for furnishing materials for two or more buildings on several contiguous lots constituting a single tract or parcel of ground. (Carr v. Hooper, 48 Kan. 253, 257; Van Laer v. Brick Works, ante, p. 545, 43 Pac. 1134; Meizell v. Griest, 1 Kan. App. 145, and cases cited.) This case is distinguishable from Lumber Co. v. Hegwer (1 Kan. App. 623), 42 Pac. 388, where there were four separate contracts for the erection of four dwellings upon four contiguous lots.”
Later cases approving the same rule are Lumber Co. v. Smith, 84 Kan. 190,194, 29 Pac. 398; Lumber Co. v. Russell, 93 Kan. 521, 133 Pac. 819.
In Stoltze v. Hurd, 20 N. D. 412, Ann. Cas. 1912C 871, it was held that where two persons owning adjoining lots made a single contract for the erection of a building thereon, “the lien must follow the contract,” and that a person who supplied materials for the building under a single contract was entitled to a joint lien on the building and on both lots, but was not entitled to separate liens on both lots.
In our own case of Sash & Sales Co. v. Early, 117 Kan. 425, 232 Pac. 232, it was contended that materials furnished under separate contracts for the improvement of a single building might supply the basis for a single lien, but this court held to the contrary, citing authorities.
In Lumber Co. v. Hegwer, 1 Kan. App. 623, 42 Pac. 388, building materials were supplied for four separate houses upon four contiguous lots, under four separate contracts. The lumber company filed a single lien on the four lots for the amount due. In an effort to save the lien it was contended on its behalf that there had been but a single contract for the furnishing of the materials for the four houses. But that vital question of fact was resolved against the lien claimant, and the lien was held invalid.
It does not appear that hitherto this court has been called upon to determine whether a single lien may be imposed upon noncontiguous lots for materials supplied under a single contract. Yet the books are full of such cases, and two views of that question are apparent. (10 A. L. R. 1026 et seq.; 75 A. L. R. 1328 et seq.) In Bohn Sash & Door Co. v. Case, 42 Neb. 281, under a statute not materially different from our own, a contractor undertook to construct fifteen houses' on two separate and noncontiguous tracts of land in Omaha, ten houses on one tract and five on the other. The contract was single and entire. The agreed price was $51,650. The subcontractors who furnished the lumber for the buildings on the two tracts filed a single lien to protect the amount due them. Touching its validity the court said:
“It is insisted, however, that there should have been filed separate claims for liens, in each of which should have appeared a definite description of the property to be affected by such lien, and that a claim for a lien cannot properly be filed in solido against distinct properties not contiguous ... It is the entirety of the contract and not the location of the property which must determine whether a claim or claims shall be filed for a lien or liens. A joint lien upon several buildings, situated upon different lots owned by the same person, could not be maintained where a separate contract had been entered into by the owner and contractor; for by the several contracts the inference would be that a separate account should be kept with each building. Not so when the contract covered several buildings to be erected for á gross sum without regard to the cost of each. It may result to the owner of separate properties to be improved under a joint contract that hardships will be caused incidentally by the fact that a lien may be filed against all the parcels in solido, whereby sales of the several lots separately may be prevented. Against this it is easy to guard by avoiding a joint contract, or, if one is used, the contingency mentioned may be guarded against by requiring that the material to be furnished or labor for each building to be erected shall be shown by distinct accounts kept with that purpose in view. . . . The views above expressed have received approving consideration in Chadbourn v. Williams, 71 N. Car. 444; Sergeant v. Denby, 87 Va. 206; Lewis v. Saylors, 73 Ia. 504; Jones, Liens, sec. 1317, and authorities therein cited.” (pp. 300, 301.)
In Burel v. East Arkansas Lumber Co., 129 Ark. 58, it was held:
“A lien exists in favor of a materialman upon two or more lots, where the materials are furnished under a single contract for buildings to be constructed upon two or more lots which are not contiguous.” (Syl. ¶ 1.)
This court has not overlooked the cases cited by appellant nor those cited in the A. L. R. notes, supra, which hold that a single mechanic’s lien is not sufficient, though work or materials have been furnished under an entire contract, if the lots on which the buildings are erected are not contiguous. We can see no fundamental distinction between a statutory lien and a lien created by a mortgage contract. In the latter sort of lien nothing is more common than a single mortgage lien covering noncontiguous tracts of land. We see no reason to impose a judicial handicap on the business of this state which would have the effect of forbidding mechanics and materialmen from undertaking the construction 'of the improvement of two or more separate projects under a single contract, nor any reason for imposing on them the onerous burden of keeping tab of the amount and value of the materials used on each separate project when they are supplied under one contract. On this point we agree with the supreme court of North Carolina, where a mechanic’s lien claim was attacked on the ground that the lien was on two lots separated by a street.
“We do not see that this is material under the circumstances of this case. If the two lots had been sold or mortgaged to different persons, it might be necessary as between them, and to settle their respective liabilities to contribution, to ascertain, as well as could be, the value of the materials used on each lot. But the lien of the materialman for his whole debt would cover both lots. When materials are furnished under a single contract for buildings put up on two lots, it cannot be expected of the vendor to know how much is used on one of them and how much on the other.” (Chadbourn and another v. Williams & Mechanics’ Buil. & Loan Asso., 71 N. C. 444, 448.)
In our own case of Lumber Co. v. Blanch, 107 Kan. 459, 192 Pac. 742, it was held:
“A single mechanic’s lien may cover adjacent lots on opposite sides of an alley if all the lots on both sides of the alley are used as one property. . . . ” (Syl. ¶ 3.) See, also, 2 Jones on Liens, 3d ed., § 1317, pp. 544, 545.
In view of the foregoing authorities, the appellant loan company’s objections to the judgment can readily be disposed of. The lumber company’s bill for materials for the construction of the two houses on lots 9 and 11, being supplied under a single contract, the balance due thereon was sufficient basis for the imposition of a single lien, notwithstanding those lots were noncontiguous. The inclusion of lot 10 in the lumber company’s lien statement did not affect the validity of the lien on lots 9 and 11. As to lot 10, we construe the observation in appellee’s brief quoted above as conceding that the judgment may be modified so far as it is concerned.
Touching the Salina Plumbing Company’s lien claim, the contract for its services and supplies was single and entire for the three houses on lots 9, 10 and 11, and its single lien therefor was valid and enforceable as filed.
Touching McConnell’s lien claim for the furnaces installed in the houses on lots 9 and 11, it should be noted that while the contract for their installation was single, the subject matter was clearly severable, it being stipulated therein that the furnace to be placed in the house on lot 9 was one valued at $140, and the other for the house on lot 11 at $135, and in consequence the lien award should be apportioned on lots 9 and 11 accordingly. (Hoagland v. Magarrell, 115 Wash. 259.)
Passing to other matters urged against the judgment, the contention is made that McLean did not have permission to go into possession of lot 10 and commence work thereon prior to November 24, 1925, the date he executed the mortgage to the appellant loan company. We think no one but the vendor Wyatt could have complained of McLean’s conduct in that respect; and in any event the rights of these lien claimants were not affected thereby. McLean did take possession and work was begun on lot'10 before appellant’s mortgage was executed, and the statute plainly declares liens for materials and labor furnished or performed in the erection or improvement of land “shall be preferred to all other liens or encumbrances which may attach to or upon said land, building, or im provement, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures, or machinery, the planting of trees, vines, plants or hedge, the building of such fence, footwalk, or sidewalk, or the making of any such repairs or improvements.” (R. S. 60-1401.)
It (cannot be gainsaid that appellant’s mortgage did not attach until after the commencement of the improvement on lot 10; and it likewise appears that appellant’s mortgages did not attach to lots 9 and 11 until after the improvements on those lots were begun. In Kantzer v. Southwest Home Investment Co., 128 Kan. 401, 402, 278 Pac. 53, it was said:
“It is well established, of course, that the liens of mechanics’ lien claimants date from the beginning of the work and are prior to that of a mortgage later executed and recorded. (R. S. 60-1401; Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 340, 29 Pac. 153; Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236.)”
See, also, Security Stove & Mfg. Co. v. Sellards, 133 Kan. 747, 3 P. 2d 401.
The other matters urged against the judgment have been carefully considered but require no further discussion.
The cause will be remanded to the district court for modification in the following respects: The lumber company’s lien should attach to the east half of lots 9 and 11 and not to lot 10. McConnell’s lien for the furnaces should attach to the east half of lots 9 and 11 in the proportions of $140 and $135. The judgment in respect to the plumbing company’s lien against all three of the lots is affirmed in to to. All these liens take precedence in the order of their filing, and so much of the judgment as gives them precedence over the appellant loan company’s first mortgages is affirmed.
When so modified the judgment lyill be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for services as an attorney, rendered to a school district. The defendant’s general demurrer to the petition was overruled, and it appeals.
The allegations of the petition may be summarized as follows: Plaintiff is a practicing attorney. On November 29, 1930, plaintiff was employed by the then director of the defendant school district to look after the interests of the district, as its attorney, in an action then being taken and to come up before the county superintendent, the substance of the agreement, which was oral, being—
“That plaintiff, as attorney for said school district, was to look after its interests as plaintiff deemed right and proper in opposing the action then being taken and to be heard before the county superintendent of Graham county, Kansas, for the changing of the boundaries of said school district No. 58, Graham county, Kansas, and to take and handle appeals from action of said county superintendent or bring action or actions in the courts of the state of Kansas, if it became necessary in plaintiff’s opinion to the interests of said school district, to the end that the territory of said school district should be kept intact.”
The compensation for handling the matter before the county superintendent was fixed and provided for if appeal or action in court became necessary. The employment was afterwards approved by the members of the district board at a regularly called meeting, the minutes of the board meeting reciting:
“Board Members of Dist. 58,
“By the director of board, meeting is called and held for school district No. 58, at the home of the clerk, D. A. Dreiling, on the 29th day of Nov. 1930, present Joe Rohleder, director, Aug. Spies, Tr., and D. A. Dreiling, clerk, after discussion it was moved and carried by majority of said board that they employ W. H. Wagner of Wakeeney, Kansas, attorney-at-law, to look after the interests of said school district in the action now being taken and to come up before the county superintendent of Graham county on December 17, to change the boundaries of said school district by taking away certain of its lands and attaching can to oppose said change and to take appeal from the action of said superintendent if it becomes necessary.
“Dre., Joe Rohleder
“Tr., Aug. Spies
“Clerk, D. A. Dreiling.”
It was further alleged that, pursuant to his agreement, plaintiff appeared before the county superintendent, who made a ruling adverse to the school district; that plaintiff perfected an appeal and also prepared and filed an action in the district court to restrain the superintendent from carrying out his order to detach lands from the defendant district and attaching same to another district, “all of which in the end and at the conclusion of said proceedings and litigation, did preserve the interests of said defendant school district, defeated the unjust ruling made by said superintendent and kept the boundaries and territory of said defendant school district intact.”
The remaining allegations have to do with the amount and value of the services under the contract; that a verified statement and claim was filed therefor with the district board and was rejected. Attached to the petition is a copy of the claim. Later a “supplement” was filed setting out the services rendered and the expenses incurred.
The abstract does not contain a specification of errors, as required by rule five of this court, but appellant’s brief presents two questions: (1) Is the school district board authorized to employ an attorney to resist a petition to change the boundaries of the district? and (2) Does the school district board have authority to employ an attorney to institute or appear in an action in which neither the school board nor the school district is a party, in a case brought by individual taxpayers to enjoin the county superintendent from enforcing an order changing the boundaries of the district?
As to the first question, appellant directs our attention to R. S. 72-302, which provides that every school district shall be a body corporate and shall possess the usual powers of a corporation for public purposes, by name and style set forth and by that name may sue and be sued; to R. S. 72-406, reciting the powers of the district meeting, which include: “Seventh, to give such direction and make such provision as may be deemed necessary in relation to prosecution or defense of any suit or proceedings in which the district may be a party”; and to R. S. 72-1004, which provides that the director shall appear for and in behalf of the district in all suits in which it is a party, unless other directions shall be given at a district meeting. Appellant contends that neither the director nor the board itself is authorized to .employ an attorney in any matter or proceeding to which the district is not a party, and that its demurrer should have been sustained because the petition does not show that the services for which plaintiff was employed were such as the board had a right to incur for the district, and in support thereof cites 56 C. J. 782 and some of the notes thereto. In the notes, School District No. 38 v. Rural High School Dist., 116 Kan. 40, 225 Pac. 732, is cited. An examination of the decision shows that a common-school district was attacking the validity of a rural high-school district whose boundaries included those of the common-school district, and it was held that while a school district may sue and be sued, it is not authorized to bring an action questioning the existence, boundaries or validity of another school district, and that such action can only be brought in the name of the state, and many other decisions holding to the same effect might be cited. But that does not answer the question here. The school district was not attempting to question the existence or boundaries of any other district. It was attempting to preserve its own territorial integrity against what it conceived to be an unlawful change proposed to be made by the county superintendent. The petition alleges it was successful in so doing. Did it have the right so to do? We have no wish or desire to alter the general rule that the existence or validity of a municipal corporation can only be questioned or attacked in an action brought by the state and prosecuted by the attorney-general or county attorney. (See School District No. 38 v. Rural High School District, 116 Kan. 40, 42, 225 Pac. 732, and cases cited therein.) It appears from the petition that such was not the purpose for which plaintiff was hired. There was neither a direct nor collateral attack on the existence or validity of any district.
In School District v. Board of Education, 100 Kan. 59, 163 Pac. 800, a situation existed similar to that which caused the employment of plaintiff herein by the defendant district. The board of education sought to annex territory of the plaintiff district, which brought an injunction suit to prevent the annexation proceedings from being carried out. There is no showing that the right of the district to bring the suit in its own name was raised, but it is significant that it received relief in the lower court and, on appeal, in this court. In the case before us it appears that the district board desired to determine the regularity of proceedings by which it would be, not had been, divested of a portion of its territorial limits, and the retaining of plaintiff, as its attorney, was for that purpose.
A different situation was presented in School District v. Board of Education, 102 Kan. 784, 171 Pac. 1154, where, long after the annexation had been made, the school district, sought to test its sufficiency and validity, and it was held that the state alone could challenge the proceedings in an independent action.
It is argued, inferentially, that the director of the school board should have appeared “for and in behalf of the district” (R. S. 72-1004) and that neither he nor the district board was authorized to hire an attorney. If that contention be fully true, appellant’s counsel may be in a precarious situation themselves.
In the absence of statutory restrictions, a school district has power, as a necessary incident of its duties and authority, to employ legal counsel. (See 56 C. J. 362, note 39 (c).)
“The capacity to sue or be sued carries with it all powers that are ordinarily incident to the prosecution or defense of a suit at law or in equity, such as those of employing counsel. . . .” (56 C. J. 779.)
“The question has frequently arisen as to the propriety of the expenditure of school funds in counsel fees. Broadly speaking, a school district having the power to sue and be sued may employ an attorney, if the employment is necessary for the protection of the public interests committed to it. The power to employ includes the power to compensate. But the power to employ counsel exists only where a public interest is concerned which the board is charged by law with the duty to protect, and, of course, school funds cannot be used to pay costs or counsel fees in actions brought ostensibly in relation thereto but in reality for the benefit of private persons.” (24 R. C. L. 597.)
The defendant’s demurrer admits the facts stated in the petition; the district had sufficient interest in its territorial integrity and solidarity that it was warranted in ascertaining that if any part of its territory was to be taken away, it was lawfully done, and if unlawfully attempted, to resist. Having that power, it had the necessary incidental power to retain counsel to look after its interest.
Though not presented at length, appellant seems to contend that what should be done was a matter for a district meeting to determine. The regular annual meeting was held in April. A special meeting could be held only on ten days’ notice (R. S. 1931 Supp. 72-401). There is no showing as to when the matter came up before the county superintendent or that such a meeting could have been held before the hearing. Because at the district meeting the inhabitants had power to give such direction and make such provision as deemed necessary in relation to any proceeding in which it was a party (R. S. 72-406), it does not follow that the board had no duty in the premises. R. S. 72-1004 provides that the director shall perform certain duties and “He shall appear for and in behalf of the district in all suits brought by or against the district, unless other directions shall be given by the voters of such district at a district meeting.” (See Dyer v. School District, 76 Kan. 889, 891, 92 Pac. 1122; School District v. School District, 79 Kan. 407, 409, 99 Pac. 620.) While the proposed proceeding to take away a part of the territory of the district was not a “suit,” we believe the statute shows impliedly that it was the director’s duty to look after the district’s interests in any matter affecting it, and that he and the other members of the board had the duty of protecting the interests of the district.
While not exactly in point here, see Conklin v. School District No. 37, 22 Kan. 521, wherein it was held that a school board was under the duty of keeping the schoolhouse in repair, notwithstanding it had already expended the amount which had been voted for that purpose at the annual meeting, and that the district was bound on its contract for additional repairs.
The district board was acting within its authority in hiring the plaintiff -to represent it, and while in the briefs it is suggested that certain things were done for which the district might not be liable, the petition discloses a contract of employment on which plaintiff is entitled to recover some amount. We are not here concerned with suggested defenses which must be raised by answer.
So far as the second question is concerned, there is no allegation in the petition which warrants it. Appellant includes in its abstract the title of a cause of action said to have been instituted under the above employment, which shows the plaintiffs as individuals and to which action the school district was not a party. In his brief, appellee counters with what seems to be the court’s ruling and opinion on a demurrer to the petition in the last mentioned action, and a statement of why the action was brought as it was and not otherwise, why the county attorney’s name could not be used, etc. The court’s opinion mentioned tends to show there was fraud in the attempt to change the district’s boundaries. Just how these matters could be, or whether they were before the trial court on the demurrer to the petition which does not allege them, is not made to appear; neither does it appear why this court should rule with respect to any matter not presented to the trial court.
The order of the lower court overruling the demurrer to plaintiff’s petition is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding is one for a writ of mandamus to compel the county clerk of Montgomery county to extend on the tax rolls levies certified to him by the city of Independence.. To speed determination of the controversy, no alternative writ was issued, and the hearing was on the application for the writ and the answer to the application.
The application disclosed regular passage of an ordinance levying taxes for itemized city purposes, and directing the county clerk to extend the levies on the tax rolls. The ordinance was duly certified to the county clerk, but the county clerk refused to extend the levies, and announced his intention to extend lower levies. The application contained a statement that the total rate was not excessive, and contained the following paragraph which apparently constituted the gravamen of the action:
“That if said defendant assesses a tax upon the real and personal property in accordance with the rate prescribed by himself, there will be no lawful basis for a tax levy against any property within the city of Independence for the year 1934, and will be wholly unable to exercise the rights, powers, privileges and duties conferred upon said city by law or to levy and collect any taxes. That the only lawful way to assess real and personal property within the city of Independence for taxation purposes, is pursuant to an ordinance regularly and duly passed and adopted by the governing body of said city.”
The answer pleaded the budget which had been adopted by the city, and which had been filed with the county clerk pursuant to the budget law. (Laws 1933, ch. 316, § 6.) The ordinance levies would raise amounts in excess of the budget requirements, and the county clerk proposed to reduce the levies, pursuant to section 21 of chapter 309 of the Laws of 1933, which reads:
“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.”
This statute took effect on April 3, 1933, and the words “existing statutes” included the budget law, chapter 316 of the Laws of 1933, which took effect on March 24, 1933.
A portion of section 6 of the budget law reads:
“The budget filed with the county clerk shall be the budget as finally adopted at the hearing herein referred to which in no event shall exceed the amounts of the various items in the budget as originally published: Provided, The governing body of each taxing subdivision or municipality shall not certify a levy to the county clerk which will raise an amount in excess of that portion of said budget to be derived from said tax levy, or which will exceed the maximum levies prescribed by law: Provided, however, The governing bodies or the electors of the school districts as the case may be, in fixing the amount or rates of levy may take into consideration and make allowance for the taxes which may not be paid and taxes which may be paid under protest, such allowance, however, shall not exceed by more than 5% the percentage of delinquency for the preceding tax year.”
At. the oral argument the city attorney suggested the excessive levies were made pursuant to the last proviso. The only statement contained in the application which could possibly relate to this subject was the pure conclusion referred to above, that the total rate was not excessive.
The city filed its budget and its ordinance with the county clerk. Attempt to apply the ordinance demonstrated the levies violated the budget law. The application to this court for writ of mandamus to compel compliance with the ordinance selected the statute on which the prayer for relief was based. That statute was the provision of the general tax law that the city shall certify its levies and the county clerk shall extend them. (R. S. 79-1801.) The budget law was not pleaded. No facts were pleaded disclosing that the total levy was made under the proviso of the budget law. No request was made to amend the application after the answer to it was filed. Under these circumstances, the court regards the answer as a complete answer to the application, and the levies proposed by the county clerk are lawful levies.
The writ is denied.
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The opinion of the court was délivered by
Harvey, J.:
This is an action to recover for personal injuries sustained in an automobile casualty. The jury answered special questions and returned a general verdict for plaintiff. No judgment was rendered on the verdict. Each of the defendants filed three motions: (1) To set aside the answers to each (except one) of the special questions, on the ground that they were not supported by evidence; (2) for judgment on the answers to the special questions, and on the entire evidence, notwithstanding the- general verdict; and (3) for a new trial. These motions were heard by the court and taken under advisement, and on a later date, within the next term of court, they were decided by the court. The motions to set aside answers to special questions were sustained in part and overruled in part. The motions for judgment for defendants notwithstanding the general verdict were sustained and judgment rendered for defendants. The motions for a new trial were overruled “because the disapproval of the verdict by the court as evidenced by the entry of judgment notwithstanding the general verdict leaves nothing upon which the motions for new trial can operate.” Plaintiff has appealed from the ruling of the court sustaining the motions for judgment for defendants notwithstanding the general verdict, and from the judgment against him. Defendants have filed a cross appeal from the order of the court overruling the motion for a new trial, which, of course, they desire to have considered and passed upon in the event this court is of the opinion that the trial court erred in sustaining their motions for judgment notwithstanding the general verdict.
There is much controversy over some of the facts, but perhaps this much may be stated with certainty: Plaintiff and his wife live at Fort Scott. On May_ 8, 1930, shortly after noon, they started to drive to Kansas City in their almost new sport model Nash automobile. They went to Nevada, then past Rich Hill toward Butler, Mo., on U. S. highway No. 71. This is a well-improved highway having a cement pavement eighteen feet wide, with dirt shoulders seven feet wide on each side, and is much traveled. The casualty occurred on this highway about three miles south of Butler about three o’clock in the afternoon on a clear day. The highway at that point was slightly upgrade to the north for a short distance and then a steeper upgrade for about 900 feet to the top of a hill, where the road was practically level for 400 or 500 feet, then downgrade to the north. A short distance in front of the car in which plaintiff and his wife were riding was a wagon and team being driven north by a Mr. Pahlman. The wagon was on the pavement, but near the east edge thereof. North of this wagon there was a car coming from the north, driven by a Mr. Wiser, on the pavement near the west side thereof. The defendant, Grant, employed by the defendant, The Western-Casualty & Surety Company, came south on the highway over the hill from the north, overtook the Wiser car, turned to the east side of the highway, drove around the Wiser car, turned back to the west side of the highway and drove past the Pahlman team and wagon, and soon thereafter his car collided with that in which plaintiff and his wife were riding. The front portion of the Grant car — -perhaps more of the force on the left of the front — collided with the front part of the car in which plaintiff and his wife were riding, striking it a little to the right of the center of the front part of the radiator, but with more of the force of it at the left part of the front of the car, at such an angle that it appeared to come from the right of directly in front, driving parts of the radiator, lamp and left fender of plaintiff’s car back and some of those parts against a spare tire carried in the left fender, pushing it back against the left door of the car. When the cars came to rest after the collision Mrs. Ward was lying on the ground near the west edge of the pavement, Mr. Ward was on the ground near the east edge of the pavement, plaintiff’s car was standing on the pavement headed in a northeasterly .direction, the left rear wheel being about two feet west of the center of the pavement and the left front wheel about two feet to the right of the center. Grant’s car was in the ditch on the west side of the pavement at a point south of the place of collision and had caught on fire. Grant appears not to have been injured, but both Mr. Ward and his wife were injured. This action involves the injuries to Mr. Ward.
In addition to the above there was evidence on behalf of plaintiff tending to show the following facts: That Mr. Ward was driving the car. Both Mr. and Mrs. Ward testified as to that, also a witness, driving a car passed by the Ward car shortly before the collision, testified that Ward was driving. Perhaps there was other evidence on the point. That as he approached the place where the collision took place he saw, when some little distance back, the wagon and team driven by Mr. Pahlman. He also noticed a number of cars coming, one after the other, down the grade from the north, perhaps five or six cars, the rear one of which was the Wiser car. Some of these were passing the Pahlman wagon as he approached it, for which reason he could not turn out to go around the wagon. He therefore slowed down to a speed of four or five miles an hour, but little faster than the team ahead of him was traveling. The string of cars approaching from the north had all passed the wagon except the Wiser car, which was perhaps 150 feet north of the Pahlman wagon, and plaintiff expected to continue to drive slowly until the Wiser car passed the Pahlman wagon. About that time he saw the defendant Grant coming over the top of the grade north of him, driving rapidly. There was evidence that about the time he reached this grade, or a little before, he passed a car which was traveling about sixty miles per hour. He also overtook and passed a car driven by a Mr. Campbell. He soon overtook and passed the Wiser car, swinging quickly to the east, then back to the west to pass the Pahlman wagon, and in doing so swung so far to the west that his wheels kicked up dust on the shoulder at the side of the pavement; that as he passed the Wiser car and the Pahlman wagon he was going very rapidly, perhaps sixty miles per hour, and his car was weaving; that as he passed the Pahlman wagon he swung to the left in behind it and was getting back toward his right to the west side of the road when the collision occurred; that the Ward car then was about sixty feet south of the Pahlman wagon; that the force of the collision tended to spin plaintiff’s car around, throwing Mrs. Ward out of the right-hand door of the car near the west side of the pavement, and about the time it came to a stop throwing Mr. Ward out near the east side of the pavement, and Grant’s car then angled off toward the right into the ditch, 110 feet south of the point of collision.
The testimony on behalf of defendants tended to show that at no time was Grant driving faster than 40-miles per hour; that he did not see or pass any car he was said to have passed which was going 60 miles per hour; that shortly before he reached the top of the grade he had passed Mr. Campbell, who was driving a car loaded with flour; that he passed Wiser soon after he started down the grade from the north, but after doing so he got his car back on the west side of the road at a point as much as 300 feet north of the Pahlman wagon, and was driving straight, his car not weaving, along the west side of the pavement; that when he got almost even with the Pahlman team plaintiff, whose car was directly behind the Pahlman wagon, turned to the left to go around the wagon; that in an effort to avoid striking plaintiff’s car he pulled to his right until both his right wheels were off the pavement, and while in that position he was struck by plaintiff’s car, and that the effect of the collision was to push plaintiff’s car back a little and angling on the slab facing northeast, and that his own car went into the ditch about 30 feet from the point of collision. Witnesses called by defendant testified that Mrs. Ward, plaintiff’s wife, was driving, but it developed that they reasoned that to be true from the fact that Mrs. Ward was lying on the west side of the pavement and Mr. Ward on the east, their theory being that Mrs. Ward had fallen out of the left door of the car and Mr. Ward out of the right door.
The evidence further tended to show that Mr. Grant was an employee of the Western Casualty & Surety Company, which had its principal offices in the insurance building at Fort Scott, where Mr. Grant had a desk and a stenographer and bookkeeper to help him with his work. The company also had a department office in Chicago, where Mr. Grant had a desk. His position with the company carried the title “assistant secretary in charge of the liability and burglary department.” He did field work as well as office work. He was paid a monthly salary, which was credited each month to his account in a bank. In addition to that he was paid his expenses when in the field. These he kept track of daily on slips provided for that purpose, which he turned in to his company each week and. received payment. On the day of the casualty he was on his way from Chicago to Fort Scott, where there was company business awaiting him. On the trip he had visited Rock Island, 111., and Iowa City and Marshalltown, Iowa, at which latter point he had sent a telegram to the president of the company at Fort Scott 'advising of his whereabouts, the towns he expected to visit and when he would be at Fort Scott. He then went to Des Moines, Iowa, where he transacted business on behalf of the company, and from there to Kansas City, which he reached on the evening of May 7. He stayed there all night at the hotel where he usually stopped, and the next morning, the day of the casualty, left Kansas City for Fort Scott, driving by way of Butler, Mo., where the company had an agency in charge of a Mr. Van Dyke. Soon after the casualty Mr. Grant returned to Butler, Mo. Later the same day a Mr. Hill, who is a clerk in the company’s claim department at Fort Scott, and Mr. Tonnies, assistant secretary of defendant at Fort Scott, went to Butler, Mo., and in company with Mr. Van Dyke called at the home of Mr. Wiser, who was a witness to the casualty, and took from him a statement which, together with his deposition later taken, was used to impeach or weaken the force of Mr. Wiser’s testimony at the trial. At the time of the casualty Mr. Grant had in the car with him a traveling bag and a brief case. The court sustained defendant’s objection to a question designed to elicit information with regard to the contents of the brief case. The company paid Mr. Grant not only his salary for the month of May but his expense account, including the expenses of the trip with his car on the. day of the casualty. On behalf of defendant there was evidence tending to show that the car driven by Grant belonged to him and was kept at Chicago ordinarily, and that he was driving it to Fort Scott with the view of taking his family on a vacation trip. As tending somewhat to refute this, the car bore a Kansas license. On behalf of defendant, also, there was evidence that when Grant was employed by the company, or perhaps when he was given this particular work about a year before the casualty, he was instructed to travel by train in making his trips and not to use an automobile, and that the company, or its officials, did not know that he had violated those instructions. From several of the daily expense slips turned into 'the company by Grant it was not easy to tell whether he had used a train or an automobile. The expense statement for the day of the casualty, however, was paid by the company after its principal officers knew of the casualty and that he had traveled by automobile. Perhaps there were other items of evidence dealing with this phase of the case, but we shall not take space to enumerate them.
The jury answered special questions as follows:
“1. Was the defendant, Charles Grant, operating his automobile at the time of the collision without the knowledge, consent or authoi’ity of the management of The Western Casualty & Surety Co.? A. No.
“2. Did Ray B. Duboc, president, and E. C. Gordon, secretary, respectively, of The Western Casualty & Surety Company, prior to the time of the collision, disapprove the use by Charles Grant of his car in the transaction of business for and on behalf of the company? A. No.
“3. At the time of the collision, was the defendant, Charles Grant, bringing his automobile from Chicago to Fort Scott, Kan., for his own personal convenience and benefit and the convenience and benefit of his wife? A. No.
“4. If you find in favor of the plaintiff, state upon what ground or grounds of negligence you so find. A. Excessive speed.
“5. Did the defendant, Charles Grant, drive his car from Chicago to the point of collision at his own volition and contrary to the instructions of the president and secretary of the Western Casualty & Surety Company that he should use the railroad for his transportation? A. No.
“6. Was the Nash car of the plaintiff driven into the line of travel from the north, on the west half of the pavement at a time when the defendant, Grant, was passing or about to pass the wagon which was proceeding north on the east half of the pavement? A. No.
“7. What portion, if any, of the plaintiff’s car remained west of the center line of the pavement after it came to rest after the collision? A. One-fourth of car.
“S. Did the plaintiff’s observing of the sign to the side of the road at about the point of the collision contribute to the occurrence of the collision? A. No.
“9. Had the defendant Grant been continuing in a straight south direction on the west half of the concrete roadway for a distance of several hundred feet immediately north of the wagon? A. No.
“10. If you answer question No. 9 in the negative, state for what distance, if any, defendant proceeded in a straight south direction on the west half of the concrete roadway immediately north of the wagon. A. None.
“11. Was the defendant’s automobile, at all times after it passed the heads of the horses to the point of the collision, west of the center black line of the pavement? A. No.
“12. If you find in favor of plaintiff, state if you allow him anything for fracture to the bone of his right leg. A. No.
“13. Did the Nash automobile in which plaintiff was riding collide with defendant Grant’s automobile at such an angle that the impact against plaintiff’s car was greater against the right front side of plaintiff’s Nash car than against the left front side of said Nash car? A. No.”
The plaintiff-appellant first argues that the trial court had no jurisdiction to pass on the motions to set aside answers to special questions and for judgment for defendants after the term of court at which the trial was had. On this point J. B. Colt Co. v. Clark, 125 Kan. 722, 724, 266 Pac. 41, and allied cases, are cited. These cases hold that the judgment of the court is deemed to be within its breast during the existence of the term at which it was rendered, and that the court may, for good cause, at any time during that term, modify or vacate it, but after the close of the term the court has no jurisdiction to alter the judgment except by procedure set forth in the statute. The difficulty of applying that principle to this case is that no judgment was rendered on the verdict of the jury at the term of court the verdict was received. More than that, the motions filed by defendants were presented to the court and argued and specifically taken under advisement. This was tantamount to an order specifically continuing the further consideration of the motions and their determination to such time as the court was able to dispose of them, even though that time be at a later term of court. Instead of having a judgment which could not be modified by the court after the term at which it was rendered, unless statutory proceedings were followed, the court had an unfinished trial pending, which had been specifically continued by the order taking the motions under advisement.
The court sustained the motions to set aside answers to questions 1, 2, 3, 5, 6 and 13, and overruled them as to questions 4, 8, 9, 10, 11 and 12. As to the answers to special questions 1, 2, 3, 5 and 6 the trial court took the view there was no evidence to sustain them. In this the court erred. Without restating the evidence, we think it ample to sustain the answers. In a written opinion, filed at the time of the decision, it appears the court was moved largely by the testimony upon defendants’ behalf to the effect that Grant had been given specific instructions by the officials of the defendant company to travel by rail and not by automobile. It was for the jury to say what credence, if any, should be given to that testimony. Aside from that, the defendant company paid Grant’s expense bills for the day of the casualty after its officers knew his expense item for transportation was by automobile and not by rail. A jury might well conclude that if Grant had been given instructions to travel by rail only, such instructions had been modified or waived and his traveling by automobile had been ratified.
From the opinion filed by the trial court it appears the court sustained the motions to set aside the answer to question No. 13 and the motions on behalf of defendants for judgment after an analysis and weighing of the evidence as to how the collision occurred. The plaintiff-appellant complains of this and contends that in doing so the court usurped the functions of the jury with respect to the weight to be given to evidence and the credibility of witnesses. The point is well taken. In an action triable to a jury, under our constitution and statutes, it is the function of the jury to pass upon the credibility of witnesses and the weight to be given the evidence. It is the function of the court to approve or to disapprove the verdict of the jury. Naturally in doing so the court must weigh the evidence and pass on the credibility of witnesses, .bub it is done with the view of determining whether the verdict of the jury shall be approved. Having considered and weighed the evidence and passed on the credibility of witnesses, if the court conscientiously can approve the verdict of the jury, that should be done. If it cannot do so, the verdict should be set aside and a new trial granted. In actions where the parties are entitled to a jury trial as a matter of right, the court is not authorized to take the case away from the jury and decide the same in accordance with its own views respecting the credibility of witnesses and the weight to be given to the evidence. To permit that to be done would be to deny the parties the right to a trial by jury. It is sometimes said the court sits as the thirteenth juror in cases of this character. Such a statement taken literally is inaccurate. The court does not sit as a juror at all. The statement has merit, if used in a figurative sense, when designed to bring out the fact that the court should not sit as an automaton and approve any verdict returned by the jury. (Stroup v. Northeast Oklahoma Rld. Co., 122 Kan. 587, 592, 253 Pac. 242.) With respect to the verdict, the court has a duty to perform independent of the jury, namely, the approval or disapproval of the verdict. In determining what should be done in that respect the court should consider the evidence much as thé'jury is required to consider it; that is, pass upon the credibility of witnesses and the weight to be given to the evidence and give consideration to the fact that twelve jurors have returned a certain verdict. But that is done, not for the purpose of reaching a verdict, but for the purpose of determining whether the verdict should be approved. If the action were one which under the law is triable to the court, and a jury is called in an advisory capacity only, it is within the province of the court to ignore or to set aside the special or general verdicts of a jury and make findings and render judgment in opposition to them (Maddy v. Hock, 134 Kan. 15, 4 P. 2d 408); but we have no such situation here. Even in a case in which the parties are entitled to a jury trial as a matter of right, if the evidence when construed as favorably to plaintiff as reasonably can be done will not support a judgment in his favor, under the rules of law applicable thereto it is the function and duty of the court to sustain a demurrer to the evidence or to sustain defendant’s motion for judgment; but we do not have that situation here. In this case there is competent evidence, substantial in amount, which if construed favorably to plaintiff would sustain a judgment for him. It was error in this case for the court to set aside the verdict and the special findings of the jury and upon the evidence render a judgment for defendants.
Passing now to the cross appeal of defendants. The trial court made it clear, both in rendering judgment for defendants and in passing on the motion for a new trial, that it disapproved the verdict of the jury. In such a case a new trial should have been granted.
The judgment of the court below is reversed with directions to grant a new trial.
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The opinion of the court was delivered, by
Hoch, J.:
The principal question presented by this appeal is whether an order in probate court appointing a “special administrator” in. the estate of a decedent and allowing attorneys’ fees was a valid order. About five months after the order was made, it was vacated upon petition of a creditor. Appellants assert that the original order was valid and that the subsequent order vacating it was invalid. The matter is here upon appeal from an order of the district court overruling appellant’s motion for judgment upon the pleadings. Omitting from the narrative many details recited in the abstract, we shall set out only the facts sufficient to present the issue.
In 1937, Arthur J: Click entered into a contract to purchase certain" real estate in Cherokee county from. John F. Oliver, the deed being placed in escrow to be delivered upon completion of the specified' payments. Before payments had been completed, and on July 23, 1943, Oliver died. On August 14, 1943, Click filed a petition for the appointment of an administrator, in which he named five brothers and one sister as heirs of the decedent. After regular hearing, with notice, Fayette Rowe was appointed administrator on September 14, 1943. On October 27,1943, Rowe asked to be discharged as administrator on the grounds that no funds or property had come into his possession. After hearing, with personal notice to the heirs, to Click, and to one Fred Bever, who is the appellee here, Rowe was dis charged on November 23, 1943, at which time the court found that no assets had come into his- possession. No inventory was ever filed nor was there any final settlement or closing of the estate.
On April 26, 1945, Click and his wife filed a petition asking appointment of a “special administrator,” and asserting that the time for filing and allowance of claims had expired; that he had a special interest by virtue of the contract hereinbefore referred to; that under the contract Oliver had deposited the deed in escrow with Oscar M. Yount, his attorney who had drawn the contract and deed, with direction to deliver it when full payment of the purchase price of $500 had been made; that he had paid $369 under the contract and that there was then unpaid the sum of $131, which amount was then tendered into court; that Yount had the deed and-desired directions from the court in order to “carry out and perform the escrow imposed upon him as aforesaid . . . that there are no persons interested in or affected in the above-entitlgd matter except, themselves and said Oscar M. Yount, and that no necessity exist for giving notice of the time and placé of hearing .of this petition, and that such a notice will serve no good purpose but simply create extra expense and unnecessary delay” and so forth.
Click then prayed “that letters Of special administration be granted to Oscar M. Yount upon the estate of the said John F. Oliver, deceased; that the court make an order for the cost and expense ■herein, for a reasonable attorney fee for petitioners (Click and wife), and for the special administrator appointed, and for such other expenses out of the sum of money tendered herein,” and so forth.
Hearing was held without notice to anyone on April 26, 1945, the day the petition was filed, and a finding made that it was not necessary to give notice of the time and place of the hearing “as there are no persons interested in the matters and things in said petition other than the said petitioners and said Oscar M. Yount, all who are now present in person in open court,” and Oscar. M. Yount was then appointed special administrator and directed to deliver the quitclaim deed to the Clicks. An allowance of $50 was then made to Helen E. Yount as attorney for the Clicks, and $50 to Oscar M. Yount for his services as special administrator, such allowances together with .costs in the proceeding to be paid out of-the $131. No appeal was taken from this order of April 26,1945.
On October 1, 1945, Fred Bever, the appellee herein, filed’ a petition to vacate the order of April 26, 1945, appointing a special ad ministrator and allowing attorneys’ fees. He alleged that the order “was improvidently granted,” that certain statements alleged in the petition upon which said order was granted were untrue in that it was alleged that there were no persons interested in or affected by the matter except such petitioners and Yount; that following the appointment of Rowe as administrator, the petitioner Bever had filed his demand in the sum of $101.25 for the expense of the funeral and burial of the deceased Oliver; that said demand had been set for hearing on September 27, 1943; that notice of such hearing was duly given, and that after hearing at which he appeared and Rowe, the administrator, appeared,. an order was made allowing the demand in the sum of $101.25 as a first-class claim. He further alleged that no part of his claim had been paid, “all of which was well known to said Arthur Jerome Click, Winifred C. Click, Fayette Rowe and to Helen E. Yount and Oscar M. Yount.” Bever then prayed that the order of April 26, 1945, be set aside and that an administrator of the estate be appointed, and that the funds belonging to the estate should be “refunded to said administrator” and applied first to the payment of first-class claims as required by statute.
Hearing was duly had on October 19, 1945, after notice to all concerned upon Bever’s petition to- vacate. Oscar M. Yount and Helen E. Yount filed a demurrer to the'petition on the grounds that Bever had no legal capacity to bring the action and that his petition did .not state facts sufficient to constitute a cause of action against them and that any claim or pretended claim that Bever might have against the estate was barred by the statute of limitations and the nonclaim statute. The demurrer being overruled, the Younts filed an answer in which they asserted that the court was without jurisdiction either of the persons or of the subject matter; that the claim of Bever was barred by the statute of limitations and the nonclaim statute; that no inventory or appraisement had ever been had in the estate; that no claims were ever filed or allowed within the time and in the manner provided by the statute; that any administration by Fayette Rowe “was abandoned and never completed more than eighteen months prior to the appointment of .said Oscar M. Yount as special administrator”; that Bever was not a creditor of the deceased and had no legal capacity to prosecute the action; that Oscar M. Yount had been regularly appointed and qualified as special administrator, and had delivered the deed to the Clicks as directed by the court, and that he had then tendered into court the sum of $18.32 remaining in his hands after the attorneys’ fees and other cost items had been paid, and that he was thereupon directed by the probate court “to hold said balance of eighteen dollars and thirty-two cents as aforesaid, as said court did not wish to clutter the records of the court with the same, and that there were no claims- or demands allowed against the said deceased on which said sum could be lawfully applied.” Oscar M. Yount then prayed for discharge as “special administrator.”
Bever offered in evidence the files and records in the estate. Younts, the respondents, offered no evidence. The probate court then found “from the files and records herein and the personal knowledge of the judge of this court” (italics supplied), that Bever had filed his claim for $101.25 for funeral and burial expenses on September 14, 1943; that said claim had been set for hearing on September 27, 1943; that notice of said hearing had been duly served upon the administrator; and that after hearing duly had, the claim had been allowed on September 27, 1943. The court further found that the order of April 26,1945; had been “improvidently and inadvertently granted; that no notice of the hearing of the petition therefor was given to anyone and particularly to the petitioner herein, Fred Bever.” The court then vacated the order of April 26, 1945, and appointed Nellie Swaney as special administrator “to demand, sue for, collect and receipt for” the money paid out to the Younts as attorneys’ fees and for any other amounts remaining in the hands of Oscar M. Yount belonging to the estate of the decedent.”
On October 23, 1945, Fred Bever filed a petition for a nunc pro tunc order asking for the entry of the order of September 27, 1943, allowing his claim for funeral expenses and classifying it as a first-class claim. He alleged that the claim was duly allowed after hearing “but by omission or oversight the same was never entered upon the journal of the court.” The petition for the order nunc pro tunc being granted, order allowing the Bever claim was entered as of September 27,1943.
Oscar M. Yount and Helen E. Yount appealed from the order vacating the order of April 26,1945, and in district court moved for judgment upon the pleadings. The motion being overruled, Bever offered his evidence and the Younts offered no evidence, electing to stand upon the motion for judgment on the pleadings. This appeal followed.
We first take note of appellee’s contentions that the appeal should be dismissed on the grounds that the amount involved is not in excess of $100 (G. S. 1935, 60-3303) and that appellants failed to file a transcript of the stenographic notes of the testimony (G. S. 1935, 60-3311). Neither contention is 'good. The limitation as to the amount is only applicable to a “civil action for the recovery of money.” This was an action to vacate an order involving questions of law quite apart from any financial interest which the Younts may have in the outcome. (Beardsley v. Gas Co., 78 Kan. 571, syl. ¶ 1, 96 Pac. 859; State v. Coler, 75 Kan. 424, syl. ¶ 1, 89 Pac. 693; Green v. Annuity Association, 90 Kan. 523, 531, 135 Pac. 586.) Transcript of the testimony is not essential upon this appeal from an order overruling a motion for judgment on the pleadings. No contention is made that the record is incomplete as to the pleadings.
The situation presented by this somewhat involved narrative is simple enough. The administrator first appointed in the Oliver estate had been discharged but administration of the estate had not been closed. By petition, Click asserted that real estate, record title to which resided in.Oliver, should be conveyed to him under the contract upon payment there tendered of a balance due of $131. Even if it be argued that no creditors were interested since the time for filing claims had elapsed, it is not contended that there were no existing heirs. Appellants contend that Bever was not a creditor when he filed his petition to vacate the order of April 26, 1945, nor when such order was vacated on October 19,1945, for the reason that the nunc pro tunc order was not entered until October 25, 1945, and .that therefore was without capacity to bring the action. The court, however, found that on October 19,1945, “from the files and records herein and the personal knowledge of the judge of this court” that Bever’s claim had in fact been allowed on September 37, 1943, after due hearing with notice. But in vie.w of our conclusion, presently to be stated, it is not necessary to labor this point.
There being assets of the Oliver estate to be administered, the situation clearly called for appointment of an administrator de bonis non, under the provisions of section 59-708, G. S. 1945 Supp., which reads:
“If the authority of the sole or surviving executor or administrator terminates before the estate is fully administered, a new administrator shall be appointed to administer the estate not already administered. Such successor shall have the same powers and duties as his predecessor.”
Is hearing, with notice, required in the case of appointment of an administrator de bonis non? In Barrett v. McMannis, 153 Kan. 420, 110 P. 2d 774, some language appears which seems to imply that the court may make an order dispensing with notice. In that case, administration of the estate had been begun several years before the present probate code went into effect on July 1,1939. In the opinion it was said:
“It would appear that under 59-2204 the filing of a petition for the appointment of an administrator with the will annexed de bonis non was the' commencement of a proceeding, and in a case arising entirely after the code was effective would require observance of all provisions for filing of petitions. But in this case we have to give consideration to the fact the administration of the Maynard estate had been continuing for some years prior to the date of the appointment of Georgs' Barrett as administrator, etc., on July 25, 1939, and that it is provided by 59-2602 the rules of procedure prescribed by the new code and effective July 1, 1939, govern all proceedings after that date ‘except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible,’ etc. There is no provision the probate court must make a specific finding the exception should apply. But it is evident from the recitals in the letters issued the probate court must have so concluded, for it recited therein ‘that upon the petition of Benny Maynard and due hearing thereon in the manner provided by law’ letters'should issue to George Barrett. Under the circumstances disclosed, we cannot say the probate court was without jurisdiction to entertain the petition of Benny Maynard, nor that because no notice was given to the legatees or heirs of Kisarah Maynard, the order of appointment was void.” (p. 424.)
It thus appears that in the McMannis case the proceedings were conducted under the procedure prescribed by the old code rather than under the new code, as in the instant case. In the opinion, attention was called to the fact (p. 423) that under the new code filing of a petition is necessary (G. S. 1945 Supp. 59-2201), and that it must be set for hearing (59-2204). The comment was then made (p. 423) that “it seems implicit from the entire code that notice should be given, unless the court shall make an order to the contrary(Italics supplied.) The words shown in italics were taken from section 59-2222, G. S'. 1945 Supp., the pertinent portion of which reads:
“When a petition for the probate of a will or for administration is filed, t'he court shall fix the time and place for the hearing thereof, notice of which shall be given pursuant to section 185 [59-2209] unless the court shall make an order to the contrary. If notice is by order of the court not required to be given pursuant to section 185 [59-2209], the court shall order notice thereof to be given, such notice, unless waived, shall be 'given' in such manner as the court shall direct.”
Analysis of that section clearly discloses that it was not the intent to permit the court to dispense entirely with hearing upon notice but merely to permit the court to direct the giving of notice in a different manner than that provided for in section 59-2209.
In addition to their interest in administration of assets, the heirs .^ilso have a statutory right in the matter of the appointment of the administrator. Section 59-705, G. S. 1945 Supp., provides:
“Administration of the estate of a person dying intestate shall be granted to one or more of the persons hereinafter mentioned, suitable and competent to discharge the trust, and in the following order: (1) The surviving spouse or next of kin, or both, as the court may determine, or some person or persons selected by them or any of them.”
Unless, therefore, all interested parties enter appearance in writing as provided in section 59-2223, G. S. 1945 Supp., and waive the notice otherwise required, hearing with notice is necessary upon petition for administration. Any contrary construction of any language used in Barrett v. McMannis, supra, is disapproved. Where assets of an estate to be administered are involved, it would violate the very spirit of the probate code to permit action without notice to those having an interest under the law in the disposition of such assets. The fact that the amount of the assets here involved, is not great is of no consequence in determining the fundamental issue.
We need not consider here the question of whether petitions, with hearing after notice, are required for appointment of a “special administrator” provided for in section 59-710, G. S. 1945 Supp., which provides for appointment of a special administrator “to perform duties respecting specific property, or to perform particular acts,” either “pending the appointment of an executor or administrator, .or after the appointment of an executor or administrator without removing the executor or administrator.” Clearly the section was not intended to provide for an administrator to administer assets generally. It must be construed in connection with section 59-708, supra, for appointment of an administrator de bonis non. It was not applicable to the instant situation.
No notice having been given, the order of April 26,1945, was void. In the recent case of In re Estate of Schroeder, 158 Kan. 783, 150 P. 2d 173, it was said:
“It is not clear, however, that these sections confer power on a probate court to have a hearing without notice of a matter wherein the result of the hearing would be to deprive an interested party of a valuable right. To so hold would be to confer power on the probate court which is not conferred on any other tribunal that we know of. Certainly the- framers of the probate code had no ■such intention. See 12 Kansas Judicial Council Bulletin, 102 (July, 1938); also 2 Bartlett’s Kansas Probate Law and Practice, 1015. There are many authorities holding that a judgment entered without notice is void. See Schott v. Linscott, 80 Kan 536, 103 Pac. 997; also Union Central Life Ins. Co. v. Irrigation L. & T. Co., 146 Kan. 550, 73 P.2d 72.” (p. 785.)
Appellants contend that since appellee’s petition to vacate was not filed until several months after the order of April 26, 1945, was entered, the order was not then subject to attack. They call attention to section 59-2213, G. S. 1945 Supp., which reads:
“ . . . The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and- decrees may be vacated or modified as provided by section 605 [G. S. 1935, § 60-3016] of the code of civil procedure.”
But under the code of civil procedure; void judgments may be vacated at any time (G. S. 1935, 60-3009).
Nothing herein said is to be construed to imply that Click, having tendered the balance due under the contract, was not entitled to delivery of the deed, or that his actions indicated any bad faith in the matter.
We find no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for divorce brought by a wife against her husband. Judgment was for the plaintiff granting her a divorce and giving defendant a judgment for a 1938 Dodge Coupe and $715 in money. The plaintiff appeals.
For some reason we do not have the pleadings in this ■ case— hence we are unable to state just what the. issues were. It is a little difficult to tell from the abstract, just what the plaintiff complains about because she says in her notice of appeal that she appeals from the judgment entered May 21, 1946. The record does not disclose any order entered on that day. The motion for a new trial was denied on the 31st day of May, however, so probably that is what counsel had in mind. The trouble is, though, the motion for new trial is not furnished, so we do not know just exactly what it is the plaintiff complained of in her motion for new trial. In her brief, however, she claims the court erred in giving the automobile of the plaintiff to the defendant and in giving defendant a judgment for $715 against her and in failing to grant plaintiff a just share of the property of defendant.
As to the automobile, it appears there is evidence from which the court would have been justified in finding that before the defendant went into the army and before they were married he owned the automobile and gave it to plaintiff. Indeed plaintiff herself testified to that effect. There is some evidence on both sides as to the financial affairs of the two parties. The trial court heard it and was in a better position to reach a just conclusion than we are from reading the record. The fact is the record does not disclose anything much but a dispute as to the facts. In such a case we can find no reason to disturb the conclusion reached by the trial court. See Fox v. Eaglin, 132 Kan. 395, 295 Pac. 662, and Associated Dairies v. Fletcher, 143 Kan. 561, 56 P. 2d 106.
As far as we can tell, there is no evidence to warrant us in concluding that the court abused its discretion in the judgment allowed.
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The opinion of the court was delivered by
Hoch, J.:
This case arose out of the sale of a residence property. The plaintiffs, who had bought the property and made a down payment, sought to rescind the contract on the ground of fraud and to recover the amount paid. The defendants prevailed and the plaintiffs appealed. The principal question presented is whether by their-acts subsequent to knowledge of the alleged fraud, the appellants affirmed the contract and thereby lost any right to rescind which they might have asserted. . '
Kenneth E. Kogle and Eula I. Kogle, his wife, owned a residence property in Wichita which they agreed to sell to Roscoe Morse and Edna G. Morse, his wife, for $3,900. The deal was agreed upon at the home of the Kogles on the evening of March 20, 1946, at which time the Morses paid $50 to bind the bargain. The following evening the parties met, together with J. E. Dorst — a real estate agent representing the Kogles — at which time a written contract was signed and $450 was paid, completing the initial payment of $500 provided for in the contract. On March 25, Morse called upon Dorst and placed the property in his hands for resale at $4,200, at which time he told Dorst that in making the sale the Kogles had made certain misrepresentations — to which reference will presently be made. About two weeks thereafter, Dorst advised the Morses that he had a prospective purchaser, but the terms of payment offered were not satisfactory to them. In the meantime, the Morses had visited the place and had taken room measurements for wallpapering they contemplated having done. On April 18th, this action was filed against the Kogles and Dorst. In the petition it was alleged that the Kogles had represented that the place was not more than six blocks from the bus line, that arrangements had been completed for regrading and putting “black top” on the streets and for a rerouting of the bus line to run directly in front of the place; that these representations were controlling factors which induced them to buy the place, and that they were not true and were known by the Kogles to be untrue.
All three defendants demurred to the petition. The demurrer of Dorst was sustained and that of the Kogles overruled. The order sustaining the demurrer of Dorst, the real estate agent, requires no discussion. It was clearly correct. Nowhere in the petition was there any allegation that Dorst had made or been a party to any misrepresentation.
There is no-need to review the evidence at any length. It developed from plaintiffs’ testimony that on the evening after they had made the deal, they had stopped at the home of their son and that their daughter-in-law then told them that she thought the place was farther than six blocks from the bus line; that this statement made them think that the statements about the blacktop and the prospective change in the bus route might also be untrue; that several days thereafter Morse called at the office of Dorst and made-arrangements for him to offer the place for sale for them for $4,200; that about two weeks later Morse called Dórst to see if he had any prospect of securing a purchaser, and was told about a purchaser who wanted to pay $1,000 down and the balance at $45 a month; that Morse didn’t care to accept that offer; that at the time he told Dorst that the place had been misrepresented in the manner heretofore stated. Subsequently the Morses consulted an attorney who called upon the Kogles, who deniéd making the statements as alleged. During this time the Morses at no time told the Kogles that they had' misrepresented the place, nor were the Kogles informed that action was to be brought to rescind the contract.
At the conclusion of the plaintiffs’ testimony, the defendants demurred and moved for judgment. The demurrer and the motion being sustained, this appeal followed. ■
It is well settled that one who seeks to rescind a contract for fraud must do so promptly upon discovery of the fraud, and that if by words or conduct he treats the contract as binding after having knowledge of the fraud, he thereby affirms the contract and cannot rescind. The Supreme Court of Appeals of Virginia in Dobie v. Sears Roebuck & Co., 164 Va. 464, 180 S. E. 289, 107 A. L. R. 1026, stated the general rule as follows:
“If, after discovery or knowledge of facts which would entitle a party to rescind, he treats the contract as a subsisting obligation and leads the other party to believe that the contract is still in effect, he will have waived his right to rescind. Prompt action is essential when one believes himself entitled to such relief. Max Meadows Land & Imp. Co. v. Brady, 92 Va. 71, 22 S. E. 845; Campbell v. Eastern Building & Loan Association, 98 Va. 729, 37 S. E. 350; Finch v. Garrett, 109 Va. 114, 115, 63 S. E. 417; Barnett v. Barnett, 83 Va. 504, 2 S. E. 733.” (p. 470.)
And see annotations following the Dobie ease in 107 A. L. R. 1035, and, also, 9 C. J. 1198; 12 Am. Jur. 1030, § 449.
In McLean v. Clapp, 141 U. S. 429, 35 L. Ed. 804, it was said:
“Where a party desires to rescind a contract upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the .mistake or fraud had not occurred.” (Syl. ¶ 1.)
In Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429, in which many cases including numerous prior decisions of this court were cited, it was said:
“Rescission is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud or duress. Ordinarily, the nature of relief asked in such cases must be such as to place the parties in their original situation. Where one with knowledge of facts entitling him to a rescission of the contract, afterwards without duress ratifies it, he is not entitled to have it can-celled. Ordinarily an express ratification is not necessary in order to defeat the remedy of rescission. Acts or conduct, inconsistent with an intention to avoid it, or in recognition of the contract, have the effect of an election to affirm it.” (p. 46.)
See, also, Turner v. Jarboe, 151-Kan. 587,100 P. 2d 675; and Wells v. Albers, 122 Kan. 643, 253 Pac. 412.
Appellant Morse testified that the reason he said nothing about the .alleged misrepresentations to the Kogles was that he thought Dorst could sell the place and save them from any loss, and that he saw “no use having any arguments about it, as I was trying to get it over and ended without any trouble.” We may assume that the motive of appellants in saying nothing to the appellees was wholly as stated. The fact remains, however, that by offering the place for sale after full knowledge of the facts, they held themselves out to be the owners, and by their silence and otherwise, as narrated, they permitted the appellees,'during the weeks intervening between the sale and the filing of this action, to continue in the unquestioned belief that the place had been sold. Whether, if ádvised promptly that the appellants were not satisfied with the deal, the appellees might have found another buyer would be mere conjecture. They were at least entitled to the opportunity of doing so.
Under the facts disclosed by their own testimony, the appellants could not maintain an action to rescind the contract, and the motion and the demurrer were properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is-an appeal from an order overruling a motion to vacate and set aside a judgment of revivor.
The facts on which the order in question was. based aré not in ■controversy and,can be stated thus: On December 12, 1917, John and Florence Parr executed and delivered to the Peoples State Bank of Rossville, a certain promissory note; August 12, 1921, the bank brought suit upon the note in the district court of Shawnee county and in due time recovered a default money judgment against the Parrs; April 3, 1926, execution was issued on the judgment and returned on April 5, 1926, wholly.unsatisfied; no further proceedings were had with respect to the judgment until it became dormant on April 5, 1931; February 25, 1933,- the bank filed a motion to revive the dormant judgment; on the same sheet of paper, and just below the motion, was a typewritten notice signed by the attorney for the bank, and addressed to each of the judgment debtors, reciting that a motion for revivor of the judgment had been filed and stating that it would be heard by the district court on March 18, 1933; sometime between February 25, 1933, and March 2, 1933, a copy of such motion and notice was served by the sheriff of Shawnee county upon the Parrs who failed to answer or otherwise plead to the motion and did not appear, either in person or by counsel, on the date it was set for hearing; March 18, 1933, the district court revived the judgment and since that date, if the decree of revivor was valid, it has been kept alive by successive executions.
In the spring of 1946 the bank renewed its efforts to collect the judgment. Thereafter, on June 4, 1946, the Parrs filed a motion to vacate and set aside the revivor order made on March 18, 1933. Allowance of this motion was contested and on July 29, 1946, after a full and complete hearing at which all interested parties were present, it. was overruled by the district court. Subsequently, and in due time, the Parrs perfected their appeal from such ruling.
Counsel for appellants say, and we agree, “The question involved in this case is whether a notice of a motion to revive a dormant judgment, signed and issued by the attorney for the judgment creditor, is a sufficient compliance with G. S. 1935, 60-3210, so as to give the court jurisdiction to render a valid judgment of revivor.”
As indicated by the question just stated section 60-3210, by virtue of another provision of our statute providing dormant judgments may be revived in the same manner as in the case of revivor of actions before judgment, relates specifically to notice of the application for an order to revive a dormant judgment. It reads:
“If the order is made by consent of the parties, the action shall forthwith stand revived; and if not made by consent, notice of the application for such order shall be served in the same manner and returned within the same time as a summons, upon the party adverse to the one making the motion; and if sufficient cause be not shown against the revivor, the order shall be made.”
Before turning to direct consideration of the questions raised by the appeal it is well to note that insofar as they pertain to the contents of the notice of the application for an order of revivor there must be substantial compliance with the requirements of the foregoing section of the statute in order to give the court jurisdiction to revive a dormant judgment. At page 537 of the opinion in Gruble v. Wood, 27 Kan. 535, it was said:
“The terms of a notice for the application of an order of revivor to be served before the order shall be made, are clearly set forth in the statute, and although such notice is to be served in the same manner and returned within the same time as an ordinary summons, yet, to give the court jurisdiction, the notice must be in substantial compliance with the statute. . . .”
Although not involved because it is conceded the instant notice was properly served and returned, it is also of interest to observe that the same rule prevails with respect to service of such a notice upon adverse parties. See Guess v. Briggs, 54 Kan. 32, 37 Pac. 121, where it was held:
“In order to revive an action pending in this court on a petition in error where no consent to such revivor is given, it is necessary that notice of the application shall be served on the adverse party, as required by § 428 of the code, and an order obtained without' either consent or notice is a nullity.” (Syl.)
Appellants’ counsel contend that service of a notice of an application to revive a judgment is invalid unless the notice has been issued by the clerk of the court, under seal of the court. They insist, since it is admitted the notice in the case at bar was signed and issued by the attorney for the appellee, there was no compliance with the termá of the statute and that the rule to which we have just referred requires a reversal of the judgment.
In support of their contention they point to our opinion in Smith v. Henry, 155 Kan. 283, 124 P. 2d 448, where it was said:
“We conclude that the proper procedure under the statute is to have the notice of the application for revivor issued by the clerk as a summons would be issued and delivered to the sheriff and served as prescribed by G. S. 1935, 60-3210. We have no occasion now to determine whether certain defects of that procedure would defeat the court’s jurisdiction to make an order, but when a service is not made in conformity to this procedure we decline to hold the trial court erred in quashing the service upon a prompt and direct attack.” (p. 287.)
and direct our attention to the case of Klema v. Herbel, 156 Kan. 633, 135 P. 2d 557, which holds:
“G. S. 1935, 60-3210, requires that notice to adverse parties of application to revive an action or a dormant judgment be signed and issued by the clerk of the district court, under seal of the court.
“Record examined in action to revive a personal judgment for money, against the estate of the judgment debtor, deceased, and in which the notice of the application for revivor was signed and delivered to the sheriff by attorney for the judgment creditor instead of by the clerk, and held, under rule stated in paragraph two above, the trial court erred in overruling the motion to quash the service and in entering an order reviving the judgment.” (Syl. Hit 2, 3.)
We believe counsel’s conception of the import to be placed upon the two decisions on which they rely is justified and we frankly concede the construction given the language to be found in tlie involved section of the statute by. such decisions sustains their contention and would require a reversal of the judgment if they are to be followed.
What has just been stated, regardless of the issue specifically raised by the appeal, makes it obvious that the principal question before us is whether the two decisions last mentioned were properly decided, whether they should be adhered to or overruled.
It should now be said that we have not been and are not now satisfied with our construction of section 60-3210 as outlined in such decisions. Under those conditions we are not only willing to reexamine previous decisions and correct them if convinced we are in error, but we conceive it our duty to do so.
In the' opinion in Smith v. Henry, supra, so far as our search discloses, all pertinent decisions dealing with the legal sufficiency of a notice of an application for an order of revivor were reviewed and it is not necessary to now repeat what was there, or in Klema v. Herbel, supra, said regarding them.
Nor will it serve any useful purpose to go into detail regarding our reasons for the conclusion to be presently stated. It will suffice to say our reexamination of the statute convinces us that the construction given its provisions as indicated in Smith v. Henry, supra, and as finally announced in Klema v. Herbel, supra, was erroneous. The error as we view it came about from placing too much emphasis on the elementary rule of statutory construction that the terms of a statute dealing with a specific subject are controlling as against divergent provisions of a statute having general application and resulted in our reading into the statute something which is not to be found there, either expresslyl or by inference. It fol-, lows the two decisions just mentioned must be and they are overruled.
Having abrogated the construction heretofore given to the terms of G. S. 1935, 60-3210, we now hold the fact an attorney for and in' behalf of his client signs and issues the notice of an application to revive a dormant judgment does not deprive the court in which. that judgment was originally rendered of jurisdiction to revive it..
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action for divorce and related relief. No issues have been joined in that action and it remains wholly untried.
The defendant husband appeals from (1) an order overruling his motion to strike from the files a pleading denominated “Affidavit and Pétition of Intervention” filed by plaintiff’s mother; (2) from the order overruling defendant’s demurrer to the intervening petition; and (3) from an order granting intervenor leave to file an amended affidavit and petition of intervention after defendant’s demurrer was overruled.
The plaintiff sought a divorce on the alleged grounds of extreme cruelty and gross neglect of duty. She also sought the. care, custody and control of a four-year-old son, a division of the real and personal property, temporary and permanent alimony, attorney fees, costs and other relief that might seem proper. The real property consisted of an undivided equity in a quarter section of land. The personal property consisted of household goods and furnishings, certain farming equipment, some cattle and horses, an automobile and a one-third interest in certain crops. The petition alléged the interest in the real property and the personal property was.accumulated in the course of the marriage and that plaintiff and defendant were the owners of the personal property.
In a general way it may be stated the petition of intervention alleged intervenor had furnished plaintiff and defendant with sums of money from time to time; that she was the owner of certain items of the personal property and the equitable owner of the land described in plaintiff’s petition.
The grounds of appellant’s motion now relied upon to strike the intervening petition were: Lack of authority to file the petition; the court lacked jurisdiction to hear the intervenor; the intervenor was not a proper party; defendant had no notice of the filing of intervenor’s petition; the intervention would.clutter up the record, prevent an issue being reached in the case, uselessly complicate the issues and present an intolerable burden to the defendant in the divorce case.
The grounds of appellants demurrer to the petition of intervention were that: 1. The court had. no jurisdiction of the subject of the action. . 2. The intervenor had no legal capacity to sue as intervenor. 3. Several causes of action were improperly joined. 4. The affidavit and petition of intervention did not state facts sufficient to constitute a cause of action.
The motion and demurrer were overruled. No answer having been filed appellee, notwithstanding the demurrer to her petition was overruled, asked and obtained leave over appellant’s objection to file an amended petition of intervention. She was allowed ten days within which to file such amended pleading. We are informed that pleading has been filed.
As previously stated, appellant appeals from the three adverse rulings.
Before considering the appeal on its merits we are confronted with the motion of appellee to dismiss the appeal for the alleged reasons the orders complained of are not appealable and that the issues presented are moot.
Counsel for appellant concedes ground four of the demurrer is probably not reviewable now. He, however, contends he is entitled to a review of the trial court’s ruling on the right of a third party to intervene in a divorce action, on the question of the court’s jurisdiction of the subject of intervenor’s petition and whether several causes of action are properly joined. It is clear a pleading may be attacked by demurrer upon the two grounds last mentioned (G. S. 1935, 60-705) and the ruling thereon constitutes a final and appeal-able order. (G.S. 1935, 60-3302; 60-3303.) Of course, the court had no jurisdiction of the subject matter, intervenor’s claim to the property involved, if a third party is prevented as a matter of law from intervening. On the other hand, if the court has power, statutory or discretionary, to consider the claim of a third party in and to the property sought to be divided by the parties to a divorce action, then the court acquired jurisdiction of the subject matter.
The fundamental question presented, whether considered from the standpoint of the motion to strike or the demurrer, is therefore, whether intervention lies in a divorce action. Ordinarily a third person has no legal interest in or right to interfere with a divorce action for the purpose of opposing the granting of a decree of divorce. The dissolution of the marital relation ordinarily concerns only the parties thereto. (Howell v. Heriff, 87 Kan. 389, 124 Pac. 168.) The right of the state to intervene is not here involved.
But what about the power of a court in a divorce action to consider the claim of a third party in and to the property sought to be divided between the parties to a divorce action? In the case of Rumsey v. Rumsey, 150 Kan. 49, 90 P. 2d 1093, an action for alimony without divorce, a third party was granted leave to inter vene to claim an interest in the property involved. Plaintiff in her answer to the intervenor’s petition alleged the latter acquired the property with full knowledge of the fraudulent intent of her husband and another person to deprive her of the property. It, however, appears the right to intervene was not questioned in the case. While the decision, therefore, cannot be said to' be determinative of the question here at issue, the case clearly illustrates the frequent need of a third person becoming a party to the action by intervention or otherwise. This case exemplifies numerous cases from other jurisdictions in which the right to intervene was allowed without being questioned.
Except for a few scattered decisions which seem to limit, under certain circumstances, the right of a court to consider the claim of a third party in and to such property, it is generally held third parties are proper parties for that particular purpose in a divorce action. In 27 C. J. S., Divorce, § 91, it is said:
“Ordinarily a third person cannot intervene in a suit for divorce for the purpose of opposing the granting of a decree, although to secure justice third persons have been allowed to intervene. Where property rights are involved in divorce proceedings, it is generally held, however, that a third person, whose interests may be adversely affected, may intervene, and it has been held that one whose property interests are involved in the proceedings can be heard only by way of intervention. Under such circumstances, the intervenor takes the case as he finds it and cannot interfere with the principal litigants.”
In Elms v. Elms, 4 Cal. 2d 681, 52 P. 2d. 223, 102 A. L. R. 811, it was held:
“In an action for divorce the court not only severs the marital tie, but divides the community property and makes provision for the support of the wife; and either party to the action may bring in third parties who claim an interest in property alleged to be community, and adjudicate the claims of such parties in the divorce action; and if neither party to the divorce action names as defendants the third parties who claim rights in property alleged to be community, such third parties may themselves intervene in the divorce action and establish their rights.
“When one of the parties to an action for divorce alleges that certain real property is community property, and third parties seek to intervene claiming an interest in said property against the spouses, the fact that said third parties may protect their interests by bringing a separate action does not defeat their right to intervene.
“If reasons exist why the marriage bonds should be severed promptly before an adjudication of property rights can be had, it is within the discretion of the court to grant the divorce, reserving the question of property rights for subsequent adjudication; and intervention should not be denied on the ground that undue delay will result from taking cognizance of the claims of third parties to property alleged to be community.” (Syl. Hj[ 1, 3, 4.) .
See, also, 20 R. C. L., Parties, §26, and an excellent annotation following the Elms case in 102 A. L. R. 811, 814, in which numerous cases are reviewed and the reasons for concluding such third parties are proper, if not necessary parties, are fully discussed.
A decree of alimony rendered at the time a divorce is granted is a finality. All of the property involved, and nothing more, might be awarded to a wife as alimony in a divorce or alimony action. If thereafter some third party brought a separate and independent action against her and succeeded in establishing an equity in such property, or in having it all set aside to him as his own, the wife would'be stripped of all alimony. Had the court been advised of the rights of suc.h third party in and to such property at the time it rendered the alimony judgment it manifestly would have made other provisions for the wife. Various other examples indicating the importance of the rights to intervene may be found in the annotation in 102 A. L. R. 814.
We need not here determine whether under the broad provisions óf our civil code such as G. S. 1935, 60-411, 60-412, pertaining to the joinder of parties claiming an interest in property, such parties may not .also be made parties defendant in the action. Under the numerous authorities cited in the above annotation from A. L. R. it is clear that if such parties are not made parties defendant they generally have a right to intervene. The precise procedure to be adopted with respect to the trial of the divorce action and the adjudication of the property rights rests in the sound judicial discretion , of- .the trial court. Its discretion should be exercised in such" manner as will least interfere with the orderly and efficient trial of the divorce action.
Our intervention statute, G. S. 1935,'60-417, provides:
“When in an action for the recovery of real or personal property any person having an interest in the property applies to be made a party, the court or judge may order it to be done.”
Appellant contends this statute limits the right of. intervention to an action brought . . for the recovery of real or personal property. . . .” (Our italics.) He insists plaintiff’s action, insofar as the property issue was concerned, was not one for the recovery of property but for a division of the property of the spouses between them. We agree with appellant’s contention relative to the nature of plaintiff’s action but disagree that the right of intervention is limited to the particular kind of case authorized by the statute. In other words, the statute expressly authorizes intervention in the kind of case-therein mentioned. It does not, however, deny the right to intervene in all other actions, There are many situations in which reason dictates and the prevention of multiplicity of suits requires courts to exercise judicial discretion in determining whether intervention should be allowed. (Gibson v. Ferrell, 77 Kan. 454, 94 Pac. 783; Beren v. Marshall Oil & Gas Corp., 122 Kan. 134, 251 Pac. 192; McBath v. Loose-Wiles Biscuit Co., 142 Kan. 197,199, 46 P. 2d 624.) Illustrative of these decisions is the Beren case in which the intervention statute was under consideration and where it was said that:
“Intervention may in many situations be allowed without express statutory authority, in the discretion of the court/’ (p. 135.)
In the instant case intervention was had early and before appellant had answered plaintiff’s petition. Appellant does not contend the intervention was too late, if otherwise permissible. While the timé element is not an issue in the instant case we pause to refer to an instructive annotation in 127 A. -L. R. 668 relative to the time within which the right to intervene generally may be exercised.
Appellant directs attention to certain language in Watts v. Watts, 158 Kan. 59, 64, 145 P. 2d 128, relative to making any person other than the‘spouse a party defendant in a divorce action.' We, however, stated the point was neither mentioned' nor relied upon in the briefs and that our consideration of the appeal should not be interpreted as full approval or binding in a case where that subject and another to which we called attention would be fully presented. What was there said was not intended to be, and is not, a binding adjudication of plaintiff’s right to join á third party as defendant or of a third party's right to intervene in a divorce action for the sole purpose of obtaining a determination of property rights.
Appellant argues the intervening petition when considered with plaintiff’s petition constitutes a misjoinder of causes of action as the intervenor is not interested in that branch of plaintiff’s cause of action which pertains to a divorce. The third party did not join as a party plaintiff in this action. As previously indicated a third party ordinarily has no legal interest in the marital relation of the parties or in its dissolution. That, however, does not alter the fact all parties in this case, are interested in the branch of. plaintiff’s case which pertains to property rights.
Appellant also contends there is a misjoinder of causes of action in the intervening petition when considered by itself. The trouble with that contention is that an amended intervening petition has been filed with leave of court. The defects of the original intervening petition, if any, are therefore no longer an issue in the case and the ruling thereon is not now reviewable.
Appellant’s final contention the court committed error in permitting the filing of an amended intervening petition is based upon the same theory previously advanced, but not sustained, that intervention does not lie in a divorce action.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Janice A. Seelke, was charged with second-degree murder (K. S. A. 21-3402) and convicted of voluntary manslaughter (K. S. A. 21-3403). At the trial the factual circumstances were not greatly in dispute and essentially were as follows: In the early morning hours of January 25, 1975, the defendant shot and killed her husband, Hubert J. Seelke. The couple had been married for some 15 months and had been experiencing marital difficulties. At the time of the shooting their twin babies were three-months old and were lying in a crib in the room adjacent to where Mr. Seelke was killed. At the time of the shooting the defendant weighed approximately 104 pounds; the decedent weighed approximately 200 pounds and was 6'2" tall. Hubert J. Seelke had been released from the psychiatric ward of St. Francis Hospital in Wichita on the afternoon prior to the shooting. On the way home he became upset with the defendant, got out of the car, and immediately starting drinking. He first went to a friend’s house and then to two private clubs. From there Hubert and two companions drove to the Seelke residence at approximately 11:00 p. m.
The evidence was undisputed that Hubert was a mean drunk at the time he arrived home. The defendant was asleep when the trio arrived at the Seelke home but awoke upon hearing a banging at the door. She looked out and saw her husband with two persons whom she described as “hippies” who were jumping up and down making a lot of noise. Defendant refused to let her husband’s companions into the house and they departed. The state’s evidence indicated that the defendant threatened her husband and friends if they did not leave. One of his drinking companions testified he saw a silhouette of the defendant inside the house holding a shotgun.
From this point the circumstances of the shooting and the events immediately prior thereto came from the lips of the defendant, Janice A. Seelke. After Hubert’s companions left the area, he entered the house. He obviously had been drinking heavily and his eyes were glassy. She criticized him for drinking. He referred to her friends as “whores” and “bitches.” She then went back to bed. Hubert followed her into bed and demanded that she have intercourse with him. She refused. He jumped on top of her and began beating her. He struck her under her right breast and then continued hitting her as hard as he could. During the beating he advised her that if she and the babies were not going to New York with him he was “going to kill all three of you.” He hit her on the head, bit her on the leg, pulled a portion of her clothing off, and forced her to have intercourse. He then forced her to have anal intercourse. According to defendant during the episode Hubert strangled her and she passed out on three separate occasions.
She jumped out of bed. He threatened her again with anal intercourse and stated that he intended to kill her and the babies. She grabbed a shotgun which was standing next to the bed. Pie again threatened to kill her and the babies and she shot him three times. He was still threatening her when she reloaded the gun and fired a fourth shot.
The defendant testified in detail as to her state of mind at the time the shots were fired. She stated that she did not know where any of the shots went. She was frightened, scared, and hurting. She did not want to kill, or hurt, or shoot him. But also she did not want to die or have her babies die. If she had wanted to kill him, she would have aimed at his heart or brain or temple. She only wanted to prevent him from coming after her and from killing her and the babies like he said he was going to do. Medical evidence indicated that three of the shots struck Hubert, with the fatal shot hitting him in the right side of the chest. There was evidence that no fragment from the fourth shot entered his body. At the time she fired the fourth shot he was raising up, continuing to threaten to kill her and the babies. The entire shooting incident took a matter of seconds.
The Seelke home where the shooting occurred was located in rural Sedgwick county. Defendant had no car, no telephone, and the nearest neighbor was one-half mile away. After the shooting the defendant ran to the neighbor’s residence and requested that she call the police and an ambulance. Later, because of her physical condition, defendant was taken to the emergency room of St. Francis Hospital. A physician testified as to defendant’s condition, substantiating the beating she suffered from her husband. One of the defendant’s eyes was swollen half shut and discolored. There was discoloration across the bridge of her nose, her lip was swollen and cut, and there were innumerable bruises over the ribs on her left side. There was a tear of her vagina and her abdomen was very tender. She complained of severe headaches and the doctor referred her to a neurologist.
At the trial the defendant offered testimony as to the stormy marital relationship of the Seelkes. Hubert Seelke was described as a “Dr. Jekyll and Mr. Hyde.” He was a diabetic, and when drinking became an explosive and abusive personality. He would physically abuse his wife, threaten his own life and the lives of his wife and infant children, break windows and black out for periods of time. The couple sought psychiatric help for Hubert from the psychiatric ward of St. Francis Hospital. Both the defendant and Hubert were concerned about his erratic behavior, his heavy drinking, and his physical mistreatment of defendant. The doctor warned Hubert in the presence of his wife that drinking alcohol would be like “lighting a match to a gasoline can.”
Following the shooting the defendant gave statements to the police both that evening and several days later. Although there were some inconsistencies between these statements and her testimony at the trial, defendant consistently denied having any intention to kill her husband, stating that she shot him only to protect the lives of herself and the babies.
The testimony at the trial was not all in defendant’s favor. The state’s evidence indicated that when Hubert knocked at the door of the home, she stated “You can’t come in and if you do I will shoot you.” The evidence further established that the physical characteristics of the shotgun required the defendant to pump the second and third shells into the chamber before firing them and required her to reload the gun before firing the fourth shot. Defendant first denied that she had reloaded the shotgun but later changed her story, saying that she did reload the gun because he was still moving. She also stated that Hubert had told her if she shot him she had better kill him. As noted above the defendant was convicted of voluntary manslaughter and she now appeals from that conviction.
The primary issue raised by the defendant on this appeal is that the trial court erred in failing to instruct the jury on involuntary manslaughter (K. S. A. 21-3404) as a lesser degree of the crime of murder. The duties of a trial court to instruct on lesser included crimes is governed by K. S. A. 21-3107 (2) and (3) which provide:
“21-3107. . . .
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or “(d) A crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime it is- the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
Where a person is charged with murder in the first degree (21-3401), the crimes of murder in the second degree (21-3402), voluntary manslaughter (21-3403), and involuntary manslaughter (21-3404) are considered to be lesser degrees of the crime charged. However, under 21-3107 (3) the court’s duty to instruct on a lesser degree of a crime arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. In order for such an instruction to be required some evidence must be presented tending to show that defendant should be convicted of the lesser included offense. If no evidence of the lesser offense is presented, an instruction on the lesser offense should not be given. (State v. Burrow & Dohlmar, 221 Kan. 745, 561 P. 2d 864; State v. Masqua, 210 Kan. 419, 502 P. 2d 728.)
The duty to instruct on lesser included offenses is stated in State v. Clark, 214 Kan. 293, 521 P. 2d 298, in syllabus ¶ 4 and 5 as follows:
“It is the duty of .a trial court to instruct the jury not only as to the crime specifically charged in the information but also with respect to such lesser offenses included therein as the evidence may justify, even though such instructions have not been requested or have even been the basis of objections. (Syl. tf4.)
"The accused has the right to have his theory of the case presented to the jury under appropriate instructions, where there is support in the evidence therefor, even though the evidence may be weak and not conclusive and the testimony of the defendant alone, if tending to show a lesser degree of crime, is sufficient to require the court so to instruct.” (Syl. ¶ 5.)
For an excellent analysis of the subject see Adam and Dupre, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L. T. 40 (1976).
The question of whether there should be given an instruction on the lesser included offense of involuntary manslaughter in a particular murder case has caused the trial courts of this state some difficulty during the past five years. (State v. Weyer, 210 Kan. 721, 504 P. 2d 178; State v. Clark, supra; State v. Childers, 217 Kan. 410, 536 P. 2d 1349.) It would be helpful to review some of the murder cases and note the general principles which have been applied in resolving the issue. In some cases the undisputed factual circumstances showed no mitigating circumstances which justified the trial court in instructing the jury on the lesser degree of involuntary manslaughter. Examples are cases where the defendant was charged with felony murder and the undisputed evidence established the commission of the homicide during the perpetration of a felony. In State v. Masqua, supra, the homicide was committed during the perpetration of a forcible rape. The defenses were that (1) the defendant did not commit the offense and (2) if he did he was intoxicated. It was held that failure to give instructions on the lesser included offenses of second-degree murder and manslaughter was not error since there was nothing in the evidence to justify such instructions. The court held that if the defendant was present at the rape, the mere participation in that felony would supply the elements of deliberation and premeditation and he would be guilty under the felony-murder rule. Either the rape was perpetrated by the defendant and he necessarily was responsible for the murder, or he was not present at the rape where the killing occurred and not guilty of any degree of homicide.
In State v. Reed, 214 Kan. 562, 520 P. 2d 1314, the homicide occurred during a robbery. The defendant denied that he was present when the robbery occurred. It was held that instructions on lesser degrees of the crime of murder would have been improper under the circumstances of the case. In State v. King, 219 Kan. 508, 548 P. 2d 803, two men entered the hóme of the victim and advised his wife that they had a $3,000 contract to kill her and her husband. When her husband arrived home he was confronted by the intruders and shot in the back. Defendant was later charged with first-degree murder. The defense was alibi — a denial of participation in the crime. It was held that instructions on the lesser degrees of homicide were properly refused because the undisputed evidence showed a malicious, premeditated murder. In State v. Goodseal, 220 Kan. 487, 553 P. 2d 279, the homicide occurred during the commission of a felony, possession of a firearm in violation of K. S. A. 21-4204 (1) (b). Instructions on second-degree murder and involuntary manslaughter were held to be unnecessary. In State v. Bradford, 219 Kan. 336, 548 P. 2d 812, there was conflicting evidence as to the commission of a robbery and a legitimate issue of fact was raised as to whether the homicide was committed with premeditation and deliberation. Hence, it was held that the evidence in the case justified instructions on the lessor degrees of homicide.
In some cases the homicide occurred under factual circumstances where there was no evidence of provocation or explanation or excuse and the evidence established that the defendant was either guilty of murder or nothing at all. An example is State v. Stafford, 213 Kan. 152, 515 P. 2d 769, where the state’s evidence showed that defendant wife in the course of a family row squirted her husband in the eyes with a paralyzer spray from a pressurized can rendering him helpless. She wrapped the cord from an electric tea kettle around his neck and choked him with it. She threw him down on the floor in a dazed condition and then proceeded to strangle him. The defendant offered no evidence in her defense. It was held that the evidence was insufficient to warrant an instruction on voluntary manslaughter. Although there was some evidence of a prior quarrel and even a blow being struck by the deceased husband, the court held that insufficient provocation existed to reduce to voluntary manslaughter the eventual strangulation of one flat on his back in a disabled condition.
In State v. Wilson, 215 Kan. 437, 524 P. 2d 224, the defendant, an inmate of the Kansas penitentiary, was accused of intentionally pushing another inmate from the fourth tier of cells at the penitentiary, thus causing his death. The defendant was charged with second-degree murder. The defense was that the fall was an accident. The defendant did not testify. The jury was instructed on second-degree murder and on voluntary manslaughter since there was evidence of a killing in a heat of passion. It was held that an instruction on involuntary manslaughter was properly refused since there was no evidence from which the jury could reasonably conclude that the defendant killed his fellow inmate but did not intend his death.
In some cases the evidence presented at the trial has tended to show some provocation or mitigating circumstances providing an explanation for the killing or raising a legitimate issue as to whether the defendant had the intention to kill the decedent. An intent to kill is a necessary element of murder in the first degree (K. S. A. 21-3401 [1]), murder in the second degree (K. S. A. 21-3402) and voluntary manslaughter (K. S. A. 21-3403). Under certain circumstances in a murder case where a defendant asserts the defense of voluntary intoxication an instruction may be required on the lesser offense of involuntary manslaughter which does not require the specific intent to kill. K. S. A. 21-3208 provides in substance that an act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind. In State v. Rumble, 81 Kan. 16, 105 Pac. 1, this court held that drunkenness may reduce a homicide from morder to manslaughter if it is so extreme as to prevent the existence of an intention to kill. In that case a new trial was granted to the defendant who was charged with murder where the court failed to instruct on the effect of voluntary intoxication. State v. Rumble, supra, is cited with approval in State v. Harden, 206 Kan. 365, 480 P. 2d 53.
An instruction on involuntary manslaughter may be required where there is some evidence in the case showing that the deceased provoked the defendant to commit the act so as to support a claim of self-defense or a killing without intent to kill. Examples of such cases are the following: In State v. Weyer, supra, a shootout occurred between a young man and the relatives of his girlfriend. The girls relatives pursued the defendant’s vehicle, intercepted the same and threatened the defendant. The defendant admitted that he had fired a weapon but denied any intention to kill his girlfriend’s brother. The evidence was disputed as to when and under what circumstances the lethal shot was fired. The defendant claimed that he fired in self-defense. Under these circumstances it was held that the trial court erred in failing to instruct on involuntary manslaughter. In State v. Clark, supra, a fatal fracas occurred between the defendant and his girlfriend in which the defendant beat her up with his fists and she died. It was held that there was sufficient evidence before the court to require instructions on second-degree manslaughter and fourth-degree manslaughter. The defendant testified that the decedent lunged at him with a butcher knife, repeating that she was going to kill him. Under the circumstances this court held that instructions on the lesser degrees of homicide should have been given and ordered a new trial. In State v. Childers, supra, a heated controversy existed between the defendant and a neighboring family. The defendant fired a gun out the window of his residence at his neighbor who was in defendant’s yard in the nighttime. At the trial the defendant testified that he was afraid the deceased was going to hurt him or possibly his wife and that he thought the deceased had a gun. The defendant further testified that he was firing into the ground into the dark only for the purpose of scaring him away. He denied an intent to kill. On appeal it was held that the trial court erred in failing to instruct the jury on involuntary manslaughter and a new trial was ordered.
Another recent case is State v. Gregory, 218 Kan. 180, 542 P. 2d 1051. There the defendant and the deceased had a heated argument in a tavern. The deceased was ejected from the tavern by the owner at the point of a sawed-off shotgun. Later the deceased called the defendant outside. A shot was heard. Others inside the tavern immediately went to the door and observed the defendant on the tavern steps, pistol in hand, and the deceased’s body on the ground ten to twenty feet away. Defendant was charged with second-degree murder and he claimed self-defense. He testified that the deceased came at him with an open knife threatening to kill him. He retreated to the tavern door, tried to open it, and found it was locked. He fired at the deceased in order “to stop him,” but not intending to kill him. There were no other witnesses to the shooting. At the trial the defendant objected to an instruction on involuntary manslaughter. This court held that it was not error to give such an instruction since involuntary manslaughter was a lesser degree of murder and under the evidence the jury could reasonably have convicted the defendant of the lesser offense. In the opinion we stated that whether the shooting was intentional is not the important factor; what controls under the statute is whether the killing was intentional. Although it was undisputed that the defendant intentionally shot his victim, the jury might well have believed that he did not intend to kill him but only, in his words, “to stop him.”
In its brief the state takes the position that an involuntary manslaughter instruction is not proper in a murder trial where the defendant claims self-defense. As noted above our cases hold otherwise. In fact an instruction on involuntary manslaughter may be most appropriate in a case where the defendant admits that he used a weapon and killed the decedent but states that he did so only in self-defense. Quite often in such cases the defendant’s life is threatened by the deceased and as a result the defendant is placed in a position of extreme fear or severe mental stress so that the defendant acts impulsively without an opportunity to reflect. In those cases, where the defendant denies an intent to kill, an instruction on involuntary manslaughter is required.
State v. Clark, 218 Kan. 18, 542 P. 2d 291, is a case with factual circumstances quite similar to those of the case at bar. The defendant Clark had had a stormy marriage. The defendant received a package from his ex-wife and children in Germany. He and his present wife, the deceased, found in the package several tape recordings made by the children of the previous marriage. His wife, after listening to the tapes, became extremely upset and called her mother stating she was going to get a divorce. Shortly thereafter the defendant heard his wife say something that startled him. He turned around, saw his wife pointing a gun at him and he panicked. He testified that he reached for his own gun, but that he could not remember firing at his wife. The wife later died of three gunshot wounds fired by the defendant. The defendant was later tried and found guilty of voluntary manslaughter by a jury. The court refused to instruct on involuntary manslaughter. On appeal we held that failure to so instruct was error. By his testimony the defendant raised a factual issue as to his intent to kill his wife. We stated that, although the evidence of an unintentional killing was weak and inconclusive, the jury might have concluded from the defendant’s account of the incident that he did not intend to kill his wife and therefore an instruction on involuntary manslaughter was required.
We must now consider the facts as shown by the record in this case to determine whether the trial court erred in denying defendant an instruction on involuntary manslaughter. We have concluded that the trial court erred and that a new trial should be granted. Here the evidence was undisputed that the defendant Janice A. Seelke was subjected to a vicious and brutal attack by her husband. Defendant testified that he threatened not only her life but the lives of her babies. He sexually abused and beat her about the head and body. The defendant testified that she fired the weapon only to save her life and to protect herself and her children. She fired aimlessly, not knowing where the shots were going. She testified clearly and unequivocally that she was only trying to stop her deceased husband and had no intention of killing him. The defendant was obviously placed in a mental state of great fear and severe stress where it would be extremely difficult for her to act calmly and with reflection. The evidence showed circumstances of provocation which gave rise to a legitimate claim of self-defense. The defendant’s testimony raised a legitimate issue as to whether she had an intent to kill her husband and thus the trial court erred in failing to give an appropriate instruction on involuntary manslaughter. On this point the case must be reversed and a new trial granted.
The second point raised by the defendant on the appeal is that the court erred by severely limiting the testimony of certain defense witnesses. The defendant contends that the trial court erred in refusing to permit certain testimony of Dr. Frank M. Tilton, who examined the defendant some two months following the shooting. According to the proffer, Dr. Tilton would have testified that two months after defendant was beaten by her husband, the defendant was still suffering severe and continuing headaches. The trial court refused to permit the testimony, stating in essence that it was immaterial to the claim of self-defense because there was testimony from other physicians who examined defendant within 24 hours after the shooting and testified in detail as to her condition. In view of this other testimony we cannot say that the trial court abused its discretion in excluding Dr. Tilton’s testimony since the evidence was cumulative. However, we must say that the trial court was somewhat restrictive in its ruling since the state had offered evidence tending to minimize the injury suffered by the defendant during the beating.
The trial court also excluded the testimony of Ralph Draper which was in the form of a transcript taken at the preliminary hearing. At the time of the trial Draper’s whereabouts were unknown and he was unable to testify. His testimony at the preliminary hearing was to the effect that he had three drinks with Hubert Seelke on the afternoon preceding the shooting and then drove Hubert to a tavern later that evening. The state objected to the admission of the evidence on the grounds that the defense had failed to show that Draper was unavailable and further on the basis that the evidence was immaterial. The trial court denied admission of Draper’s testimony because it was cumulative in view of the testimony of Hubert Seelke’s drinking companions that he had been drinking between 8:00 and 10:00 on the evening of the killing. Furthermore, the autopsy report indicated that the deceased had sufficient alcohol in his system to be declared to be under the influence of alcohol if he were driving an automobile. Under the circumstances we do not see how the defendant could have been prejudiced by the denial of admission of Draper’s testimony, although we do not understand why its admission was so vehemently opposed by the prosecutor.
The defendant claims the trial court excluded certain proffered testimony of Dr. John Lester. We have examined the record and find no testimony of that witness excluded over the objection of the defendant. It appears to us that Dr. Lester was permitted to tell the jury everything he knew on the subject of the deceased’s mental state. We also have read the testimony of Dr. Thomas F. Morrow in the record. Dr. Morrow was permitted to testify concerning the harm alcohol could cause Hubert Seelke and also his potential for erratic and violent behavior. Any restriction of his testimony by the court in our judgment was harmless.
The defendant also maintains that the trial court erred in excluding proffered testimony of Glenda Sigars, Helen Brockway, and Jacqueline Webber. These witnesses would have testified as to statements made by the decedent a few days prior to the shooting concerning the effect of alcohol upon him and the fact that such statements were subsequently relayed to the defendant. They would have further testified as to defendants expressions of fear of her husband prior to the shooting and other incidents of violence of the decedent toward his wife prior to the shooting. The trial court excluded this testimony as immaterial to the trial of the case. We agree with the defendant that such rulings were in error. One of the important issues in the case was the defendant’s state of mind and such evidence was relevant on that issue. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Blocker, 211 Kan. 185, 505 P. 2d 1099.) We have concluded from a reading of the entire record that the trial judge by its rulings unduly restricted the defendant in the presentation of her defense. The defendant in this case is entitled to a new trial on a charge of voluntary manslaughter since she has been acquitted of second-degree murder. (K. S. A. 21-3108 [5].)
For the reasons set forth above the judgment of the district court is reversed and the case is remanded to the district court with directions to grant the defendant a new trial on a charge of voluntary manslaughter (K. S. A. 21-3403) in accordance with the views expressed in this opinion. | [
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Per Curiam.
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Per Curiam:
John H. Schierenberg, Jr., appeals from an order entering summary judgment for the defendants, Oral Hodges and The First National Bank of Oswego, Kansas, in an action to recover money which plaintiff claims was fraudulently withdrawn from one “joint savings account” and deposited in another. For the most part the facts are not disputed.
John H. Schierenberg, Jr., and Aleñe Schierenberg were husband and wife. They were separated and lived apart during the last ten years of Alene’s life. On January 16, 1970, and during the separation, John and Aleñe opened a “joint savings account,” No. 3499, in the First National Bank of Oswego. The signature card was headed “Mr. or Mrs. John H. Schierenberg, Jr.” It was signed only by John. On December 15, 1971, Aleñe opened another “joint savings account,” No. 3819, in the same bank. The signature card was headed “Aleñe Schierenberg or Oral Hodges.” It was signed only by Alene. Oral Hodges was a brother of Aleñe Schierenberg.
Aleñe filed suit for divorce from John on June 19, 1974. On August 14 she withdrew $1000 from account No. 3499 and deposited that amount in account No. 3819. On August 30, Aleñe died. The balances in the accounts were then approximately equal, about $5000 in each.
John filed this action against Hodges and the bank on October 21. He alleged that both savings accounts were “joint”; that Aleñe withdrew money from account No. 3499 and deposited it in account No. 3819; and that such action was wrongful, unlawful, and fraudulent. He secured a temporary order restraining the bank from paying any of the moneys in account No. 3819 to Hodges. The bank is, in effect, a stake holder; it has taken no active part in this lawsuit.
Hodges, answered, admitting that the accounts were “joint,” and that Aleñe withdrew some money from account No. 3499 and deposited it in account No. 3819. He alleged that she had the lawful right to do so, and he claimed that Aleñe was employed during the ten-year period and that she deposited some of her earnings in account No. 3819. He denied that any of her actions were wrongful, unlawful, or fraudulent. Hodges next moved for summary judgment, claiming that there were no issues of material fact, and that the pleadings and bank records commanded judgment in his favor. At the hearing on this motion he called a bank officer, who identified the signature cards, deposit and withdrawal slips, and other bank records pertaining to the accounts. Plaintiff offered no opposing evidence, but made an oral motion for leave to amend his petition. The court took both motions under advisement.
Several weeks later, and before the court decided the motion, plaintiff filed a written motion seeking leave to file an amended petition, which was attached. The first cause of action of the proposed amended petition alleges that account No. 3819 was the sole and separate property of Alene, and that upon her death the account passed to John as Alene’s sole heir. The second cause of action alleges that both accounts were “savings accounts,” and that Aleñe wrongfully, unlawfully, and fraudulently withdrew funds from account No. 3499 and deposited them in account No. 3819. Plaintiff seeks to have the court declare account No. 3819 the sole property of Aleñe at the time of her death, determine plaintiff to be Alene’s sole heir, award to him the funds remaining in the account, quiet his title to the aocount and bar Hodges therefrom. In the alternative, he prays for judgment against Hodges for the amount of money remaining in the account.
The trial court found that both accounts were “joint” accounts; that Alene had the right to withdraw funds from account No. 3499; that the funds she withdrew from it were her funds; that the funds remaining in account No. 3819 are the property of the survivor, Oral Hodges; and that on the undisputed facts Hodges is entitled to judgment. The court overruled plaintiff’s motion to amend and sustained defendant’s motion for summary judgment.
The first issue is whether the allegations of fraud in the original petition, and defendant’s denial thereof, sufficiently raised a ma terial question of fact precluding summary judgment. Defendant points out under K. S. A. 60-209 (b) it is required that in all averments of fraud, the circumstances constituting fraud shall be stated in particularity. Sade v. Hemstrom, 205 Kan. 514, 471 P. 2d 340. However, in Dawson v. Dawson, 212 Kan. 711, 512 P. 2d 522, this court had before it on appeal from an order granting summary judgment, pleadings not dissimilar from those encountered in the case at bar. These pleadings were held sufficient to allege fraud, and the trial court’s summary judgment was held to be premature and improvidently granted. We make the same ruling here.
It is well established in this jurisdiction that, absent fraud, one spouse may make an inter vivos transfer of his or her own personal property to another person outright or to himself and another person in joint tenancy without contravening the statutory rights of a surviving spouse under K. S. A. 59-602. Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647; In re Estate of Fast, 169 Kan. 238, 218 P. 2d 184; Eastman, Administrator v. Mendrick, 218 Kan. 78, 542 P. 2d 347. The plaintiff’s deceased spouse may well have lawfully transferred the funds in question; the funds may have come from her earnings, or they may have been accumulated solely by the plaintiff. Such questions have not been litigated or determined. We conclude that the court should not have sustained the motion for summary judgment.
We next consider whether the court abused its discretion in denying plaintiff leave to file an amended petition. The case was not an old one on the court’s docket but came before the court on the motion for summary judgment with reasonable dispatch. Plaintiff contended that he did not examine the bank records until they were introduced in evidence at the hearing on the motion for summary judgment. K. S. A. (now 1975 Supp.) 60-215 (a) provides in applicable part that after a responsive pleading is served, “a party may amend his pleading only by leave of court . . . [which] shall be freely given when justice so requires.” We conclude that under the circumstances disclosed by this record, the amendment should have been permitted.
For the reasons stated above, the judgment is reversed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a subrogation action brought by an automobile insurance carrier for its own benefit and that of its insureds seeking to recover property damage and personal injury damages arising out of an automobile addent which occurred July 11, 1972. The trial court ruled that the action was barred by a discharge, previ ously obtained, in a voluntary bankruptcy proceeding instituted by the defendant, Harland Cecil Hall.
The automobile accident involved the plaintiffs, Malcolm M. Nicholson and Goldie M. Nicholson, and defendant Hall. Soon after the accident the Nicholsons sued Hall praying for $31,925.00 in damages. This lawsuit was filed in the District Court of Seward County and was eventually dismissed for lack of prosecution on January 14, 1974.
The instant action was filed on June 10, 1974, after State Farm Mutual Automobile Insurance Company (hereafter referred to as State Farm) had paid the Nicholsons under their automobile policy and taken a trust receipt from them. Defendant was served with a summons in the instant action on either July 11 or 13, 1974, but was in default on his answer date and the plaintiffs filed a motion for judgment on August 22, 1974. Thereafter, on September 11, 1974, defendant filed a motion to dismiss the aotion on the ground it was barred 'by an order of discharge in bankruptcy filed April 13, 1973. In his motion to dismiss defendant attached excerpts from bankruptcy proceedings in which he was the petitioner. Defendant alleged that even though State Farm was not named in the bankruptcy proceedings it was, likewise, barred from proceeding to judgment against this defendant in the instant action because its rights herein stemmed from subrogation to the rights of the Nicholsons and was limited to such rights.
At the trial court hearing on defendant’s motion to dismiss, the plaintiffs submitted affidavits and proffered testimony to the effect that neither the Nicholsons nor their attorney ever received notice or had actual knowledge of defendant’s bankruptcy proceedings until his motion to dismiss the action was filed.
Following the accident a driver’s license hearing was held concerning defendant’s driving privileges. The record discloses that during such hearing defendant’s lawyer did tell the Nicholsons’ lawyer, who was in attendance at the hearing, that should defendant lose his driver’s license he would have to file bankruptcy. Three days later, on September 14, 1972, defendant Hall filed his voluntary petition in bankruptcy. On Schedule A(3), which provides for the listing of unsecured creditors and gives instructions in connection therewith, defendant listed a description of the lawsuit filed against defendant by the Nicholsons. Defendant did not list Nicholsons’ lawyer’s name or the address of either the Nicholsons or their lawyer. The pertinent portion of Schedule A(3) is reproduced in the record as follows:
“Amount Due or Claimed”
“Personal injury claim;
Malcolm Nicholson and Goldie M. Nicholson, plaintiffs, vs. Harland Hall, defendant, in the District Court of Seward County, Kansas, case No. 10742, prayer $31,925.00 this is contingent, unliquidated and disputed; and plaintiff’s liability insurance carrier, whose name is unknown.
$31,925.00”
The record discloses that a copy of the notice of first meeting of creditors and a copy of the notice of the entry of defendant’s discharge in bankruptcy were mailed to the District Court of Seward County. Neither of these documents ever became a part of the court file in the District Court of Seward County, nor did the court records reflect that either of such notices from the bankruptcy court had been received as of the time of the hearing on the motion to dismiss in the instant case. The bankruptcy court proceedings disclosed that defendant received a discharge on April 13,1973.
Plaintiffs objected to the filing of defendant’s motion to dismiss as being out of time, but the trial court overruled the objection and proceeded to hear the matter on October 14, 1974, and after hearing the arguments of counsel and examining the affidavits and exhibits, submitted by the parties, the proceedings concluded as follows:
“Mr. Geeding (attorney for State Farm): Nothing shows we had notice or actual knowledge of the bankruptcy before this court at this time.
“The Court: Well, you are correct as to that point. However, it is 12:25 and I am going to go to lunch and continue this matter until after lunch.”
After lunch, the court indicated it reserved a decision on the motion to dismiss, and then proceeded to hear evidence on plaintiffs’ motion for judgment. The trial court did not make any rulings concerning the motion for judgment. On March 21, 1975, the trial court, in a letter addressed to all counsel, stated as follows:
“I am granting the defendant’s motion to dismiss on the grounds the record reflects the obligation to have been discharged by the bankruptcy court and I am directing Mr. Braun to file a journal entry of my order to be submitted to me after circulation of same to counsel for approval.”
After hearing plaintiffs’ motion to alter or amend, which was denied, the court on March 21, 1975, entered its written order which read in pertinent part:
“The Court finds from the pleadings and the files, affidavits on file, and letter briefs of the attorneys for plaintiff and defendant that the motion to dismiss filed by the defendant herein on the grounds the record reflects the obligation to have been discharged by the bankruptcy court be and the same is hereby sustained.”
This appeal followed.
Plaintiffs assert two points of error on appeal: (1) The trial court erred in ruling that defendant’s discharge in bankruptcy barred the present action; and (2) the trial court erred and abused its discretion in permitting defendant to file his motion to dismiss out of time.
Point 2 may be summarily disposed of. The trial court under K. S. A. 60-255 (b) and 60-260 (b) is given discretion in allowing pleadings to be filed out of time. In the case at bar, there is no showing that intervening rights of the parties were affected and the period of time involved was not unreasonably long. Under such circumstances, we are unable to say the trial court abused its discretion in this regard.
Point 1 cannot be so readily disposed of. At the outset, it is noted the trial court failed to make findings of fact and conclusions of law. The record indicates the trial court considered the issue whether notice of the bankruptcy had been received, but failed to specifically find whether plaintiffs, or either of them, had actual knowledge or notice. We are unable to ascertain from the language of the court’s order whether it was based on a finding the scheduling was proper and, therefore, notice was irrelevant or whether plaintiffs had actual knowledge of the proceedings which would have cured defective scheduling.
It is plaintiffs’ position that defendant failed to properly schedule the claim in question in conformance with mandatory provisions of the Bankruptcy Act and that, as a result of such improper scheduling, plaintiffs received no notice of such proceedings and under specific language of the Bankruptcy Act defendant’s discharge is not a bar to the instant action.
No question was raised in the trial court nor on appeal as to the state court being the proper forum for determining the question of dischargeability of the obligation in question.
The duties of a bankrupt are set forth in the Bankruptcy Act, § 7a, 11 U. S. C. A. § 25(a). Subdivision (8) of § 7a, provides in pertinent part that a voluntary bankrupt shall file with his petition: Cases dealing with the requirements of subdivision (8) that a bankrupt file a list of creditors showing their residences and addresses or declaring the fact that such addresses are unknown, consistently hold that the subdivision must be strictly complied with. (Bucci v. LaRocca, 21 N. J. Misc. 316, 33 A. 2d 878; Marlowe v. Pott, 277 N. Y. App. Div. 806, 96 N. Y. S. 2d 725; and Van Gilder v. Barnes, 288 Mich. 492, 285 N. W. 35.)
“. . . [A] list of all his creditors, including all persons asserting contingent, unliquidated, or disputed claims, showing their residences or places of business, if known, or if unknown that fact to be stated. . . .” (p. 661.)
In an analysis of §7a(8), appearing in 1(A) Collier on Bankruptcy [14th Edition, 1975], we find these pertinent comments:
“The provisions of clause (8) are imperative, and relate to one of the most important duties of the bankrupt’s attorney. Forms have been prescribed by the Supreme Court for use in preparation of the schedules and these forms should be followed as closely as possible. The value of a discharge in bankruptcy thereafter obtained may well depend upon the care with which the schedules are prepared and the requirements of § 7a(8) and the relevant rules, particularly Rule 108, are fulfilled. This is particularly true with regard to setting forth the names and addresses of the creditors. A discharge in bankruptcy does not release a bankrupt from a debt that has not been scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.
“. . . Omitted creditors, without notice or actual knowledge of the bankruptcy, can still enforce their claims against him as though he had not been discharged in bankruptcy. . . .” (pp. 984-985.)
Bankruptcy Rule 108 (a) (U. S. C. A. Bankruptcy Rules and Official Bankruptcy Forms, 1975 Pamphlet) directs that the bankrupt file schedules of his debts in the manner prescribed by Official Bankruptcy Form 6, pertaining to Schedule A-3 (unsecured creditors). Official Form 6, U. S. C. A. 1975 Pamphlet, directs that a creditor’s residence or place of business is to be listed and if such address is unknown, that fact must be stated. Further directions concerning creditor schedules are spelled out in Local Bankruptcy Rule 8F (Bankruptcy Rules of the United States District Court for the District of Kansas), which provides in pertinent part-:
“F. Creditor schedules. In each schedule of creditors, their names shall be listed alphabetically and the listing shall include the full and complete post office address of each creditor, including post office box or street number, ZIP code, and the city or town and state. . . .” (p. 65.)
Debts excepted from release by a discharge in bankruptcy are delineated in Bankruptcy Act § 17 a, 11 U. S. C. A. § 35, subdivision (3) pertaining to debts not duly scheduled. It reads:
“. . . [H]ave not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; . . .” (P 271.)
In the case at bar, defendant Hall listed the earlier Seward County District Court case by title and case number on his Schedule A-3. He listed the Nicholsons by name, but did not list their address nor the fact that such address was unknown, nor did he list the name or address of Nicholsons’ attorney. As counsel for plaintiffs point out, if defendant had looked at the pleadings, which he must have done in order to copy the title, case number and prayer for relief, he would have seen that the Nicholsons lived in Ulysses. Defendant would have also seen the name and address of Nicholsons’ attorney.
It has been held to be immaterial whether failure to properly . schedule a creditor was innocent or fraudulent, willful or careless. It is the fact of such failure, not the intent that controls. (See Bucci v. LaRocca, supra.)
From our examination of the pertinent sections of the Act, and numerous cases annotated in 11 U. S. C. A., we have concluded the debt in question was not properly scheduled in the instant case. The case of Venson v. Housing Authority of the City of Atlanta, (Fifth Circuit, 1964), 337 F. 2d 616, appears to be squarely in point. The district court’s decision (In re Venson, 234 F. Supp. 271) that the debt in Venson was improperly scheduled and that the bankrupt had the burden of showing the creditor’s actual knowledge was affirmed.
In Venson (234 F. Supp. 271) the Housing Authority debt had been scheduled by the bankrupt as follows:
“Judgment Superior Court of Fulton County, Georgia, Case No. A-88440, The Housing Authority of the City of Atlanta, dated February 18, 1963
“$7200.00” (p. 272.)
There, as here, the clerk of the bankruptcy court sent notices to the court in which the action had been filed rather than to the creditor. Under these circumstances the Circuit Court of Appeals held the debt was not duly scheduled. The court said:
“. . . Venson not only failed to indicate the creditor’s address as required by the Act, but also listed the debt in a manner likely to confuse the bankruptcy clerk as to whether the creditor was the Housing Authority or the Superior Court. The debt being thus improperly scheduled, in order to secure a discharge Venson had the burden of proving that nevertheless the Authority had actual knowledge of the bankruptcy proceedings. . . .” (p. 617.)
It is to be noted that the title of Venson’s creditor included the name of the city and state wherein it was located, but the court, nevertheless, found the scheduling insufficient.
In the case at bar, the debt, as to the Nicholsons, was not duly scheduled, but this leaves the question of the creditors actual knowledge to be resolved. It is a firmly established rule that a debt not duly scheduled survives a discharge in bankruptcy unless the creditor had notice or actual knowledge of the proceedings in bankruptcy. (See Van Gilder v. Barnes, 288 Mich. 492, 285 N. W. 35; Quilici v. Thompson, 61 Nev. 118, 119 P. 2d 710; and other cases collected in note 281, 11 U. S. C. A. § 35, commencing at page 346.)
Whether a creditor had actual knowledge of bankruptcy proceedings is a question of fact and the burden of proof by a preponderance of evidence is upon the bankrupt. (Venson v. Housing Authority of the City of Atlanta, supra.)
In the instant case, the trial court in its comments from the bench indicated that plaintiffs were correct in their assertion that they had had no notice or actual knowledge of the bankruptcy proceedings. The record appears to support plaintiffs in this regard. However, the court’s letter to counsel and the journal entry of its order on defendant’s motion to dismiss merely shows its ruling to have been that the “obligation” was discharged by the bankruptcy court. As previously indicated, the trial court failed to state the controlling facts and legal principles controlling its decision. (See Supreme Court Rule No. 116, 214 Kan. xxxvii, now Rule No. 165, 220 Kan.) On this state of the record the cause must be remanded.
The order of the trial court sustaining defendant’s motion to dismiss is set aside and the cause is remanded for further proceedings in harmony with this opinion. | [
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The opinion of the court was delivered by
Fromme, J.:
The Corporation Commission of the State of Kansas (KCC) appeals from an order of the District Court of Graham County, Kansas. The district court set aside an order of the KCC which denied in part a rate increase request filed by Central Kansas Power Company (CKP). The district court held that the method of allocation used by KCC in determining the value of the utility’s property for rate-mating purposes was unreasonable and that the method suggested in the application for rate increase by CKP should be approved and adopted by KCC.
At the outset it is noted that a rate of return of '8.75% was authorized by the KCC, and CKP does not question the reasonableness of this rate of return. In the appeal to the distinct court CKP questioned the adjusted rate base ($15,571,086) determined by KCC, which base was used in place of the rate base suggested by CKP ($17,521,078). The rate base as adjusted by KCC permitted CKP to increase its revenues by $460,978 in place of $640,432 as requested in the application of CKP.
K. S. A. 66-118a, et seq., provide for the procedure to -be followed and the scope of judicial review permitted in reviewing orders of the KCC. No procedural questions are presented in this appeal. No question is raised as to the lawfulness of the order. K. S. A. 66-118d covers the scope of judicial review of such orders and in part provides:
“. . . Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined, and the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable. . . .”
Appellee states on appeal:
“. . . [W]e suggest that this is really not an issue of sufficiency of the evidence, but involves the more basic and fundamental question of whether or not a rational and logical basis exists for the Commission decision and order, and whether it is fair, wise and just.”
The question of the scope of judicial review of orders of the KCC was addressed in Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515, as follows:
“The district court in reviewing an order of the Commission acts in an appellate capacity,
“This court, on appeal from the district court in such cases, is reviewing the propriety of the decision of an inferior appellate tribunal. The legisla ture has not defined the limits or responsibility of this court on appeal. However, its responsibility is apparent. It must review the record for the purpose of determining whether the district court observed the requirements and restrictions placed upon it by statute. (Thompson v. Commerce Com., 1 Ill. 2d 350, 115 N. E. 2d 622.)
“The statute providing for proceedings on appeal from an order of the Commission is a directive to the district court as to the nature and extent of its review, and on appeal to the Supreme Court it must determine whether the district court has properly determined the matters to which its powers and duties extend; (Birmingham Electric Co. v. Alabama Pub. Serv. Com’n., 254 Ala. 140, 47 So. 2d 455.)” (p.49.)
The above statement in the Southwestern Bell Tel. Co. case was more recently quoted and approved in Missouri Pacific Rld. Co. v. State Corporation Commission, 205 Kan. 610, 624, 470 P. 2d 767.
In Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P. 2d 1, it is said:
“The need for supervision and control of electric public utilities was recognized by the legislature and by statute the legislature authorized a considerable degree of discretion to be exercised in the public interest. The discretionary authority was delegated to the commission, not to the courts. The power of review does not give the courts authority to substitute their judgment for that of the commission. . . .” (p.675.)
In Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 538 P. 2d 702, this court observes:
“. . . An order of the corporation commission based upon substantial competent evidence will generally be considered reasonable. On review of an order of the state corporation commission, the district court may not vacate or set aside such order merely on the ground that such court would have arrived at a different conclusion had it been the trier of facts. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. (Graves Truck Line, Inc., v. State Corporation Commission, 215 Kan. 565, Syl. ¶5, 527 P. 2d 1065.)” (pp. 616-617.)
We turn now to the present case. The differences in the amounts of the rate base as proposed by CKP and as later adjusted by KCC arose from the different treatment afforded one of eighteen electric generating units utilized by CKP. This one generating unit, located at Hill City, Kansas, was built with money from the United States Government. The money was made available by a rural electrification loan obtained by Sunflower Electric Cooperative, Inc., of WaKeeney, Kansas. The generating unit is referred to by the parties as the Ross Beach No. 2 plant. During the base year used to determine a fair rate of return CKP generated approximately 75% and purchased 25% of its electric energy requirements. The electric energy purchased was obtained from another generating utility, Kansas Power and Light Company.
CKP furnishes electric service to retail customers in the State of Kansas. These are referred to as the Kansas jurisdictional customers and the rates for suoh service are under the control of KCC. It is these rates with which we are presently concerned.
In addition CKP furnishes electric energy to Sunflower Electric Cooperative, Inc. (Sunflower), a wholesale customer, and the rates for that service are under the control of the Federal Power Commission. Sunflower is referred to as a federal jurisdictional customer. We are not concerned with federal jurisdictional rates in the present application.
Since CKP and its generating and transmitting facilities serve both Kansas jurisdictional customers and federal jurisdictional customers it becomes necessary in determining rates for Kansas jurisdictional customers to utilize some method which will allocate the total investment and operation expense, and maintenance expenses associated with the production and transmission function, between the two classes of service. It was a difference in the method used by KCC in making an allocation which resulted in reducing the request for increase in revenue.
The method used in support of the $640,432 increase proposed by CKP was based on a separation of the Ross Beach No. 2 plant from the rest of the generating and transmitting facilities. CKP assigned that plant’s investment, operation and maintenance expenses, including principal and interest paid by CKP on the REA loan, to federal jurisdictional service. In addition a fractional percentage (10.20%) of the balance of the CKP generating and transmitting facilities was allocated to federal jurisdictional service. Justification for CKP’s method of allocation was based in large part on two facts: (1) Legal title to the Ross Beach No. 2 plant was held by Sunflower subject to a contract; and (2) energy requirements and service to Sunflower more than equaled the generating capability of that particular plant.
In support of the reduction of income KCC treated the Ross Beach No. 2 plant as an integral part of the entire generating and transmitting facilities of CKP. Using a formula based upon the relative use of the entire facility, KCC made allocation between the Kansas and the federal jurisdictional customers. In order to understand some of the reasons behind the two different positions taken it is necessary to set out some background facts regarding con struction, ownership and operation of the Ross Beach No. 2 plant.
The Ross Beach No. 2 plant was constructed in 1957. For many years prior to 1957, CKP had provided electric energy to four distribution cooperatives in northwestern Kansas. The demands of these cooperatives were increasing along with the demands of the Kansas jurisdictional customers. Additional capacity was needed to satisfy the load demands. The four distribution cooperatives plus two other cooperatives in southwestern Kansas banded together to form Sunflower Electric Cooperative, Inc., for the purpose of obtaining funds through the Rural Electrification Administration to finance construction of a new generating plant. The loan was at 2% interest and was for the construction of a 22,000 kilowatt plant to be located adjacent to an existing generating plant of CKP at Hill City, Kansas. The rate of interest on the loan was much lower than CKP could have obtained from other sources.
Contemporaneous with an application for the loan Sunflower and CKP entered into a contract for the construction and operation of the Ross Beach No. 2 plant “in order to make electric power and energy available to the Cooperative for the Member Cooperatives”. The contract obligated CKP to cause the project to be constructed in accordance with specifications in the contract. The parties agreed “[s]team and electric generating equipment shall be housed in a steel and concrete structure with steel panel siding, as an extension to the present power plant structure” owned by CKP. The project was to be located on land to be sold by CKP to Sunflower for a nominal purchase price of $500.
The project was to be constructed so its net output could either be delivered into the transmission system of CKP and operated in parallel with other power production facilities or the unit could be operated by the cooperative separately from CKP’s power station. The cost of the project was $5,675,000. CKP was to be in complete control of the planning and construction of the plant, subject to the rights of the parties under the contract. The contract provided:
“. . . [I]t being agreed that the Project shall be operated by the Company [CKP] as an integral part of the Company’s generating and transmission system during the term of this contract.”
During fhe initial 40 year term of the contract CKP is to operate, maintain and furnish replacement for the project. It is to pay all expenses and “taxes of any kind or character that may now or hereafter be chargeable to the Cooperative because of its ownership of the Project”. It is to pay all premiums for liability, for fire and extended coverage on the plant and equipment and for owners protective liability insurance. CKP is obligated to pay the cooperative “rent in an amount equal to the interest on and principal of the Cooperative’s indebtedness to the United States . . . until such time as such indebtedness shall have been paid in full.” In addition $400 per month is to be paid for the cooperative’s administrative and related expenses, commencing with the date of operations. The contract further provides:
“Section 3. Disposition of Project Output. All of the electric power and energy produced by the Project shall belong to the Company [CKP] to be used and distributed by it .as it may determine, subject to the provisions of Article III hereof, and Section 1 of Article IV hereof.”
Under Article III CKP agrees to sell and the cooperative agrees to purchase “all of the electric power and energy which the Cooperative shall require during the term of this contract up to a maximum demand of 18,700 KW. This maximum demand may, at the option of the Cooperative, be increased to 22,000 KW.” In this regard the contract specifically provides:
“For the purpose of calculations hereunder, it shall be understood that the Cooperatives maximum demand shall be the arithmetical sum of the non-coincidental monthly billing demands of the various Member Cooperatives at their respective delivery points, it being assumed for purposes of this contract that diversity factors offset transmission losses.”
The electric energy to be received by the cooperative hereunder is to be delivered by CKP to thirty (30) specified delivery points in communities served by CKP. These diverse points of delivery include the communities of St. Francis, Phillips County, Goodland, Wallace and WaKeeney which are scattered in the service area of CKP.
The term of the contract is for a term of 40 years or until the rental payments equal the interest on and principal of the cooperative’s indebtedness to the United States in respect to the project. The contract further provides it will continue “thereafter from year to year unless terminated by either party’s giving notice of termination in writing”. The rights of CKP on termination are provided as follows:
“. . . Upon such termination of this contract the Company [CKP] shall have and is hereby given the right and privilege to remove the Project or any part thereof at the Company’s expense.
“Upon such termination the Cooperative shall convey to the Company the tract of land herein designated as the plant site and all improvements thereon by warranty deed . . . upon payment by the Company to the Cooperative of the amount of Five Hundred Dollars ($500).’’
The parties have continued under this contract without interruption during the past 19 years. Approximately 21 years remain on the initial term of the contract. We are informed on oral argument that this application for general rate increase is the first since the construction of the Ross Beach No. 2 plant. So the method adopted by the KCC staff of including the Ross Beach No. 2 plant as an integral part of the system, rather than segregating it and assigning it to federal jurisdictional customers, does not indicate any change in treatment by KCC.
CKP in its brief on appeal narrows and defines the primary issue which confronts us in this case as follows:
“. . . Here no question exists regarding the sufficiency of the evidence to support any Commission finding of the basic facts. There is no question of the credibility of any witness, or of any need to ‘weigh the evidence’. The facts are not in dispute. It has been established without dispute that the Sunflower Plant is owned by Sunflower, that it was constructed with a low-cost, 2% interest REA loan, that it is the largest and most economical generating plant operated by CKP, and that the peak electric demands of Sunflower have for many years exceeded the generating capacity of this plant.
“The only question is whether the costs and economic benefits of the Sunflower Plant should be directly assigned to Sunflower, or shared by the other (retail) customers of CKP by rolling-in or pooling the costs of the Sunflower Plant together with the costs of CKP’s other production facilities. The Commission determined that the costs of the Sunflower Plant should be rolled-in or pooled with those of CKP’s other facilities, and its benefits shared proportionately by all of CKP’s customers. . . .”
We must remain mindful that the corporation commission has been vested by the legislature with wide discretion (General Communication System, Inc. v. State Corporation Commission, 216 Kan. 410, 418, 532 P. 2d 1341) and the commission’s findings have a presumption of validity on review. (Class 1 Rail Carriers v. State Corporation Commission, 191 Kan. 201, 207, 380 P. 2d 396.) The scope of judicial review of an order of the corporation commission is set forth in K. S. A. 66-118d and such review is limited to a determination of the lawfulness and reasonableness of the order. An order is lawful if it is within the statutory authority of the commission and if the prescribed statutory and procedural rules are followed in making the order; it is generally considered reasonable when based upon substantial competent evidence. (Kansas-Nebraska Natural Gas Co. v. Corporation Commission, supra.) The power and scope of judicial review provided in K. S. A. 66-118d does not give the courts authority to substitute their judgment for that of the commission. It is only when the commission’s determina tion is so wide of the mark as to be outside the realm of fair debate that a court can nullify it. (Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. 5, 527 P. 2d 1065.)
The parties do not cite any cases in which a court has considered the reasonableness of commission action in refusing to separate a base generating plant being operated under a contract similar to the one in this case. We have little doubt a separation of facilities may be a proper step in determining the cost allocable to the various classes of services rendered by a utility. Likewise, an integration of facilities owned by separate entities, but operated by a single utility, may be a step in determining the cost properly allocable to the various classes of service rendered by the utility. The method to be used by the corporation commission in allocating the cost of service between two classes of customers served by an electric generating utility must depend largely upon the facts and circumstances of each particular case.
In Colorado Interstate Co. v. Comm'n., 324 U. S. 581, 89 L. Ed. 1206, 65 S. Ct. 829, the question of separation of properties was discussed. The pipeline there involved served three classes of customers. The Federal Power Commission had jurisdiction over only part of these services. In discussing the proper allocation of properties between different classes of services the court said:
“. . . If Congress had prescribed a formula it would be the duty of the Commission to follow it. But we cannot say that under the Natural Gas Act the Commission can employ only one allocation formula and that that formula must entail a segregation of property. A separation of properties is merely a step in the determination of costs properly allocable to the various classes of services rendered by a utility. But where, as here, several classes of services have a common use of the same property, difficulties of separation are obvious. Allocation of costs is not a matter for the slide-rule. It involves judgment on a myriad of facts. It has no claim to an exact science. Hamilton, Cost as a Standard for Price, 4 Law & Cont. Prob. 321. But neither does the separation of properties which are not in fact separable because they function as an integrated whole. Mr. Justice Brandéis, speaking for the Court in Groesbeck v. Duluth, S. S. & A. R. Co., 250 U. S. 607, 614-615, noted that ‘it is much easier to reject.formulas presented as being misleading than to find one apparently adequate.’ Under this Act the appropriateness of the formula employed by the Commission in a given case raises questions of fact, not of law.” (324 U. S. pp. 589-590.)
On examining the statutes of Kansas we find no specific formula prescribed for rate proceedings which the KCC is directed to follow. So the same observations made in Colorado Interstate case would seem to be equally valid for proceedings before the state commission. Later in the Colorado Interstate opinion the high court observed:
“. . . [W]e are not convinced that the direct industrial sales were saddled with greater costs than they would have been had the laterals been segregated. The gravamen of this complaint is that the industrial sales are being burdened with costs of a part of the system which the direct industrial gas never uses. That contention points up our earlier observation that judgment and discretion control both the separation of property and the allocation of costs when it is sought to reduce to its component parts a business which functions as an integrated whole. . . .” (324 U. S. p. 591.)
In Re Sierra Pacific Power Company, 5 PUR4th 486, a proposal to adopt a rolled-in method of cost allocation and rate design for a cooperative subsidiary of a parent power company was rejected where the necessary connections did not exist to enable the parent to deliver power to the subsidiary before the completion of the subsidiary’s direct connection with the parent. However, the case would indicate that rolled-in costs may be appropriate in setting rates for a physically integrated or interconnected system when all the power available to the system is used interchangeably to supply its requirements as a whole and thereby enhance the reliability and adequacy of service to each class of customer served.
Appellant and appellee both cite Re Wisconsin Michigan Power Company, 54 PUR3d 321, for our enlightenment. The case involves a parentrsubsidiary relationship not present here. The two companies had distinct and separate service areas, their systems were not thoroughly integrated and the computation of the oost of service to wholesale customers could be made on a separate company basis without unusual technical problems. The case is not persuasive with regard to the position taken by either of the parties here. The case merely recognizes that the propriety of separation or the rolling-in of properties of separate companies depends upon the characteristics of the system or systems supplying the energy requirements of a particular class of customer.
A general guideline for valuation of utility property by the commission is contained in K. S. A. 66-128; however, this particular Kansas statute is not helpful here because the problem in the present case does not arise over the determination of the total value to be assigned to the entire system. The problem here is one of allocating a proper portion of the total value after it has been determined.
In public utility rate cases the proper method of allocation should recognize the value of the property devoted to a particular service and should result in a rate base which will bring a just and reasonable return on the property used in furnishing that particular service. (See K. S. A. 66-113.)
The commission employed Elmer Fox & Company, an accounting firm of Wichita, Kansas, to conduct the necessary investigation of applicant’s (CKP’s) records and inform the commission on the issues to be determined on the application. (See K. S. A. 66-1501.) After becoming aware of the background facts set forth in this opinion and examining the applicant’s records, the manager of the firm, a certified public accountant, prepared schedules for the commission which were used as a basis for reducing the requested increase to $460,978. The decrease in income requested occurred as a result of treating Ross Beach No. 2 plant as an integral part of applicant’s entire electric system.
Mr. Auten, a partner in Arthur Young & Company, a firm of public accountants, testified in support of the application filed by CKP. He stated that in view of the contractual arrangements and the operating circumstances he considered it appropriate to divide the production plant between the Ross Beach No. 2 unit and the balance of the system. Since the REA cooperatives have contractual rights with respect to the Ross Beach No. 2 unit and since their maximum demand substantially exceeds the capacity of that plant he assigned the capacity costs of that plant to the cooperatives. Because the company has no investment in that plant but does pay a rental in lieu of that investment, he assigned the rental costs on that plant to the cooperatives. To the extent that the cooperatives’ maximum demand plus their share of the system reserve requirements exceed the capacity of the Ross Beech No. 2 unit he allocated a portion of the other system production plant investment to the cooperatives in the ratio of their demand in excess of the Ross Beach No. 2 capacity to the total system demand plus reserve requirements. The Kansas jurisdictional customers were allocated the remainder of the production plant investment.
At the conclusion of the rate proceeding the commission refused to adopt the method of allocation espoused by Mr. Auten. It adopted generally the method of allocation suggested by Mr. Moor-man of Elmer Fox & Company. It set forth in its findings six reasons why it determined Ross Beach No. 2 plant should be treated as an integral part of CKFs entire system rather than separating and allocating it as a separate unit to the federal jurisdictional customer, Sunflower. The district court in reversing the order of the commis sion found each of these six reasons unreasonable. We will consider the six reasons later in this opinion.
The commission found that Ross Beach No. 2 plant should be allocated on the method which “most closely reflects the operating characteristics of that plant within the total system” and that the proposed adjustment “most nearly reflects the actual operation of applicant’s system.” In entering its final order the commission accepted certain suggested staff adjustments and rejected others. The rate of return was increased from 7.93% to 8.75%. (The applicant had used a rate of return of 8.76%.) The commission made certain changes in allocation ratios, increased operating expenses and made adjustments in projected income taxes.
Now let us turn back to the six reasons given by the commission for holding that the Ross Beach. No. 2 plant should be treated as an integral part of CKP’s entire system in allocating the total rate base between the two classes of service.
Reason 1. CKP essentially has all incidents of ownership in the Ross Beach No. 2 plant except legal title.
The district court found that the above statement was incorrect, not supported by evidence and not a valid reason for treating the Ross Beach No. 2 plant as an integral part of the system. The court stated that under the contract CKP owns only a leasehold interest with a remaining term of 22 years and that Sunflower is a bona fide owner of the plant subject to the leasehold interest. The court went on to say that Sunflower provided the lower cost financing and CKP was benefiting from the lower cost rental payments. If CKP had borrowed the money the fixed cost to the Kansas jurisdictional customers would have been higher and the rates for electricity would be higher. On appeal CKP supports this position and indicates that the commission disregarded the lease. It argues that it would be unreasonable not to assign the benefits of the Sunflower-financed plant to Sunflower, that neither CKP nor its retail customers could have obtained the REA loan and that the benefits of the low cost plant should be assigned to Sunflower for the benefit of its customers.
There is substantial appeal to this argument and the commission’s statement that CKP essentially has all incidents of ownership would seem to be too broad. However, incidents of ownership in property generally include the right to its possession, use and the enjoyment of its products, in addition to legal title and the right to sell or otherwise dispose of it. (73 C. J. S., Property, § 13, p. 192; 63 Am. Jur. 2d, Property, § 36, p. 321.)
The commission, no doubt, was considering the limitations placed on the property by the contract. Under this contract the Ross Beach No. 2 plant is to be constructed by CKP using REA funds in order to make electric energy available to Sunflower for the member cooperatives. The project is to be situated on land adjacent to the site of CKFs existing power station. The land was sold by CKP to Sunflower for a nominal sum of $500. The generating equipment is housed in an extension to an existing power plant structure of CKP in Hill City, Kansas.
The contract further provides that CKP is to take possession of the plant when constructed and operate it “as an integral part of the Company’s generating and transmission system”. CKP is to pay all taxes and insurance premiums. This would normally be the obligation of the owner-cooperative. The amount of rent to be paid covers the exact principal and interest on the REA loan, plus $400 to cover the cooperative’s administrative expenses. Under the agreement all the electric energy produced belongs to CKP, not to Sunflower. Sunflower is assured of receiving 22,000 kilowatts of energy from CKP but that energy does not have to be generated by the Ross Beach No. 2 plant. The energy to be furnished is transmitted to various member cooperatives at 30 different delivery points which are in most cases closer to other base generating plants owned and being operated by CKP.
Another interesting provision of the contract concerns what is to be done at the end of the 40 year term when the contract expires. If the contract is then terminated Sunflower agrees to convey to CKP the tract of land designated as the plant site “and all improvements thereon” by warranty deed. CKP is to pay Sunflower $500 therefor. This amount equals the original cost of the land purchased by Sunflower from CKP before the plant was located thereon.
It should also be noted that the rates to be paid by Sunflower for the energy delivered by CKP are specified in a rate schedule which is attached to the contract. The contract provides if these rates shall be increased by any regulatory body having jurisdiction, Sunflower has the option on proper notice to take possession of the project. In such case all obligations of CKP under the contract shall cease and determine. Thereupon Sunflower is to pay all taxes, interest, principal and all insurance costs. In that event Sunflower will be entitled to the entire output of the project. This provision of the contract has not come into play and Sunflower has not taken possession of the project nor is it entitled at this time to the output.
Considering the respective rights of CKP and Sunflower under this contract it does not appear that the commission’s view of the incidents of ownership in the project was so wide of the mark as to be outside the realm of fair debate. The contract does include a sale arrangement. At the end of the 40 year term CKP might well become the purchaser of Ross Beach No. 2 plant on payment of a nominal sum, rather than to continue as lessee of the facilities involved, (cf. Kansas City Power & Light Co. v. McKay, 115 F. Supp. 402. [D. D. C. 1953].)
Reason 2. Ross Beach No. 2 plant is one of the base load generating plants for the entire CKP system.
Reason 3. The summed peak demand of the RECs (the Sunflower member rural electric cooperatives) is substantially in excess of the monthly generating peaks of Ross Beach No. 2; therefore, the RECs are placing a substantial demand on the entire system because Ross Beach No. 2 is not capable of supplying the total demand of the RECs.
These two reasons for not separating the Ross Beach No. 2 plant from the CKP system appear to be interrelated and we will consider them together. The plant in question was one of three major electric generating plants being used by CKP. These base load plants are located at Hays, Hill City and Colby. Small generating plants are located at Hoxie, Atwood, Bird City and WaKeeney. The net capability of all of CKP’s generating units is 87,000 kilowatts. The generating capability of the Ross Beach No. 2 plant is 22,000 kilowatts. The district court found that base load usage of this plant did not constitute an adequate reason to integrate it into the entire CKP system for rate making purposes. CKP in its brief on appeal agrees with the district court’s assessment of the matter and points out that Sunflower’s energy demands exceed the capability of this plant, that this plant is the largest plant in the system, that it operates more efficiently and that Sunflower should receive the benefits of the lower fixed costs by separating the plant and allocating it to federal jurisdictional service (Sunflower).
We note from an exhibit in the present record that the generated kilowatt peaks at the Ross Beach No. 2 plant are not pronounced and run somewhere near 22,000 kilowatts, the capacity of the plant'. In comparison, the monthly peak demand of the member coopera tives receiving electrical energy from this CKP system runs somewhere near 23,000 kilowatts, but jumps to 31,000 kilowatts in the warmer months of June, July and August. It is readily apparent that during these warmer months almost one-third of the cooperative’s demand load has to come from some generating source other than Ross Beach No. 2 plant.
The district court and CKP agree with the two basic statements, set forth in Reasons No. 2 and 3 but state they are not reasons which justify a refusal to separate the Ross Beach No. 2 plant from the balance of the system. CKFs argument boils down to saying that the method of allocation used by CKP in its application is more reasonable than the method of allocation determined by the commission.
It appears that the commission did attach significance to the fact that Ross Beach No. 2 plant is a base load plant and that the sum peak demand of the member cooperatives is substantially in excess of the generating peaks of this particular plant, thus substantial demand load was placed on the generating capabilities of the balance of the system during the warmer summer months. We are not prepared to say that these are not proper considerations or that the commission acted unreasonably in considering these matters in arriving at its method of allocating the proper cost of service to the Kansas jurisdictional customers.
Reason 4. There is no direct relationship between the monthly or daily Kwh sales to the RECs (the Sunflower member rural electric cooperatives) and the net Kwh’s generated at the Ross Beach No. 2 Plant.
Reason 5. The contractual agreement between CKP and Sunflower does not specify that energy must come from Ross Beach No. 2 Plant, but only that 18,700 Kw or 22,000 Kw under certain conditions will be available to the RECs from the total system.
Reason 6. The geographical location of Ross Beach No. 2 Plant does not allow that generating plant to serve all the RECs at each of the distribution points, because various switches are normally open.
The three foregoing reasons set forth by the commission are considered together by both the district court and CKP in its brief. CKP agrees, as factual statements, the reasons are correct but again it states these facts do not support a conclusion that the Ross Beach No. 2 plant should be considered an integrated part of the entire sytsem of CKP for rate making purposes. Weighing these plant characteristics against Sunflower’s part in obtaining the financing it argues the commission’s order deprives Sunflower of the economic benefits of its own plant.
Again it appears to us that the judgment and discretion of the commission must control the method of allocating costs of a business which functions as an integrated whole and then seeks to separate a component part of that business in order to have it assigned for the benefit of a particular class of service. See Colorado Interstate Co. v. Comm'n., supra. In Southwestern Bell Tel. Co. v. State Corporation Commission, supra, we held:
“A public utility has no vested right in any one particular formula or method, and the State Corporation Commission is not bound to use any particular formula, or combination of formulae, in valuing a public utility’s property for rate making purposes. The State Corporation Commission should receive and consider all evidence which has a relevant bearing on reasonable value and then determine, what formula, or combination of formulae, it believes should be used under the facts and circumstances of the case to arrive at a reasonable value of the property for rate making purposes.” (192 Kan. 39, Syl. 3.)
Ross Beach No. 2 plant was operated in parallel with other power production facilities of CKP. The plant was physically integrated with the entire system and was interconnected. All generating plants functioned in a single system. All the power available to that system was used interchangeably to supply all energy demand requirements and thereby enhance the reliability and adequacy of service to all classes of customers served. These factors were properly considered by the commission in deciding on a proper method of allocating the cost of service received by Kansas jurisdictional customers.
Next we examine some additional matters set forth by CKP in its brief to support the judgment of the district court. CKP states that the commission must make findings of essential basic facts that support its decision so a reviewing court can perform its function and determine whether the commission’s decision is reasonable. The statement is correct and finds support in many cases cited. However, CKP fails to point out how this principle of law applies to the findings of fact and conclusions of law, or lack of them, in this case. In reviewing the commission order the reasons set forth by the commission appear rational and logical and tend to support the ultimate decision reached. The commission determined, on the basis of all the facts surrounding the construction, operation and use of the Ross Beach No. 2 plant, that it was an integral part of an entire system and should be treated as such in allocating the rate base between the different classes of customers served by the entire system. The commission was aware of and considered the argument of CKP on behalf of Sunflower that the costs and economic benefits of the plant should be assigned directly to Sunflower. However, when the contract for the construction and operation of the plant was entered into the parties agreed that the plant was to become an integral part of the CKP system. All electric energy produced and transmitted therefrom was to belong to CKP, not to Sunflower. Looking at the factual findings it does not appear that the commission acted in an arbitrary or unreasonable manner. It appears to us on judicial review that the commission did articulate a rational connection between the facts found and the choice of method of allocation.
CKP states that in a rate proceeding the commission must make a fair and reasonable determination of each element of the rate base, the rate of return and the operating expenses. Upon judicial review the court must then consider the evidence applicable to each such element to determine the reasonableness of the order. It argues that the commission failed in this duty and made a material error in allocating a just portion of the rate base to the Kansas jurisdictional customers.
In reviewing this position taken by CKP it appears there was no great dispute as to the fixed production cost of the entire system and nothing is said about the reasonableness of the 8.75% rate of return allowed. There appears only one difference of opinion and that is over the basis for the arithmetical determination of the allocation to Kansas jurisdictional and federal jurisdictional service, assuming it was proper to treat the system as an integrated whole. That difference occurred when the commission used non-coincident annual peak demand in its formula. Using non-coincident annual peak demand the commission allocated 67.80% to the Kansas jurisdictional service. If coincident demand had been used this would have resulted in a 71.78% allocation to Kansas jurisdictional service, assuming CKP is correct in its figures. Neither the district court nor CKP discussed the effect of using non-coinddent annual peak demand as against coincident demand, or the reasoning behind such usages. We note that the parties provided in the contract that the maximum demand of the cooperatives shall be the arithmetical sum of the non-coincidental monthly billing demands of the various member cooperatives. We believe this is an area where the expertise of the commission and its staff must be recognized. It is not a question to be determined by the courts on judicial review. The mere statement that it is unreasonable, without further support, does not make it so.
One final argument by CKP should be noted. The company filed an application which is now pending before the Federal Power Commission (FPC) requesting a rate increase sufficient to recover the costs which it allocated to Sunflower, its federal jurisdictional customer. The allocation method used in its application to FPC is the same method of allocation which it now urges. CKP points out that if the KCC order is approved by this court the federal jurisdictional rate base will be insufficient and a deficiency in annual income of $141,200 will occur. Accordingly, it will be denied the right to recover its total cost of federal jurisdictional service because of the resulting regulatory gap.
It would appear this unfair result should be avoided, if possible; however, the KCC in fixing rates for Kansas jurisdictional customer service cannot be controlled by what the FPC may or may not do in its rate proceeding. If the method of allocation adopted by KCC with respect to Kansas jurisdictional customer service is reasonable, and we believe it is, it cannot be rendered unreasonable by possible action of the FPC in regard to federal jurisdictional customer service. As previously pointed out this is the first general application for increase in income filed since the Ross Beach No. 2 plant was put on the line. The method of allocation adopted by KCC does not change a previously established practice. The KCC should not be required by this court to increase the cost of service to Kansas jurisdictional customers merely because the FPC may not allow CKP sufficient cost of service to federal jurisdictional customers. Since the application is still pending before the FPC it may be that an amendment of the FPC application should be filed.
In reversing the order of the district court we are not holding that the commission would have acted unreasonably had it adopted some other method; or that in all cases the method here adopted by the commission will be reasonable; or that if we had been the commission, we would have chosen the same method. We merely hold in this case that the method of allocation adopted by the commission was not shown to be unreasonable, and that the dis trict court went beyond the proper scope of its judicial review by substituting its judgment for that of the commission.
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by Donald B. Rinsley (plaintiff-appellant) from the trial court’s dismissal of an notion for failure to state a claim pursuant to K. S. A. 60-212 (b) (6) of his amended petition, which seeks to allege defamation and invasion of privacy against Louis Frydman (defendant-appellee) who allegedly made false statements about the plaintiff.
The appellant raises three points on appeal. He contends (1) the case should have been considered under our summary judgment statute, K. S. A. 60-256; (2) he is not a high public official within the meaning of New York Times Co. v. Sullivan, 376 U. S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A. L. R. 2d 1412; and (3) criticism of his professional practices as Director of the Children’s Section at Topeka State Hospital is aotionable
Donald B. Rinsley, a psychiatrist, directs the children’s section of the Topeka State Hospital. He is also a member of the Executive and Training Faculty in Child Psychiatry of the Menninger Foundation and an Associate Clinical Professor of Psychiatry at the University of Kansas Medical Center. Dr. Rinsley’s 'amended petition, filed May 9, 1975, further describes himself as “nationally recognized as an expert in the diagnosis and treatment of adolescent children.” Louis Frydman is an Associate Professor of Social Welfare at the University of Kansas.
Dr. Rinsley’s amended petition alleged that the defendant had (1) willfully and maliciously meddled in an attempt to disrupt the patient-physician and client-therapist relationships; (2) caused to be published or broadcast wholly erroneous and false remarks which have tended to damage plaintiff’s good name and professional standing and reputation; and (3) interfered with plaintiff’s right not to be subjected to mental suffering, shame or humiliation and with plaintiff’s right to be free from unwarranted appropriation of one’s personality to matters that are primarily private and that are subject to legitimate checks and limitations, [and to be free from publicity which places him before the public in a false light of a kind highly offensive to a reasonable man]. (The portion above in brackets is the only addition made by the amendment of the original petition.)
Dr. Rinsley prayed for an injunction to enjoin Dr. Frydman from unwarranted interference with his work and further breach of physician-patient contract and client-therapist relationship. He sought $200,000 actual damages and $200,000 punitive damages.
The original petition, not included in the record, was filed August 28, 1974. The defendant’s answer, filed September 4, 1974, denied any legal wrongdoing. For affirmative defenses, the defendant relied upon the free speech provisions of the First Amendment to the United States Constitution and upon the public official doctrine of New York Times Co. v. Sullivan, supra.
On May 9, 1975, the plaintiffs amended petition was filed. There is no showing in the record that the appellant had leave of court or written consent by the adverse party to' file this amended petition. (K. S. A. 60-215 [a].)
On September 4, 1974, the defendant moved for an order dismissing the plaintiffs petition under K. S. A. 60-212 (b) (6), for failure to state a claim upon which relief can be granted. No motion for a more definite statement, pursuant to K. S. A. 60-212 (e), was filed in the trial court by the appellee.
The motion to dismiss languished in the district court for some reason neither explained by counsel nor the record. The record is barren as to what transpired in the trial court until June 23, 1975, when answers to interrogatories were filed, and the trial court announced its decision by filing its memorandum of decision on June 30, 1975, consisting of 28 pages in the record.
The journal entry counter-designated by the appellee is not in the record, and there is no indication whether it has been filed. In short, counsel for the respective parties have ignored the Rules of the Supreme Court. We shall therefore dispose of this case solely upon what does appear in the record, and upon admissions made by counsel in argument to this court at the hearing on appeal.
A lengthy deposition taken of Dr. Rinsley was certified on October 11, 1974, by a “Certified Shorthand Reporter.” The deposition appears in the record set forth in full, but there is no indication that it was filed with the clerk of the district court or that it was ever submitted to the trial court.
In the deposition Dr. Rinsley’s background was discussed and his alleged status as a public official was explored.
Dr. Rinsley alleged Dr. Frydman had contacted patients, relatives or guardians and recommended termination of treatment or removal of the patient from Topeka State Hospital without due and proper contact with the professionals involved in the case thereby violating the code of professional ethics. Two patients who left Topeka State Hospital were named although the surrounding facts are at best vague. Dr. Rinsley thought it would be tortious for an individual to advise removing a patient from Topeka State Hospital if “there is no evidence that the person making such a statement, . . . has taken proper action to secure information from the concerned professionals involved, . . . and is running around denigrating and disparaging the work of dedicated professionals.”
Dr. Rinsley also introduced a report to the Joint Commission on Accreditation of Hospitals concerning Topeka State Hospital presented by Dr. Frydman to the Joint Commission survey team on June 3, 1974. In this report, which was not included in the record, Dr. Frydman allegedly denied that individual treatment exists in Topeka State Hospital. Dr. Frydman is alleged to have stated, “a truly individualized plan would be a myth regardless of what appears in the records.”
Dr. Rinsley’s deposition alleged Dr. Frydmans activities had rendered the administration of the childrens section of Topeka State Hospital more difficult. Two lawsuits had been filed against Dr. Rinsley which he believed were an outgrowth of Dr. Frydman’s activities. The need for Dr. Rinsley s patients to trust him was also discussed.
In the answers to interrogatories filed on June 23, 1975, Dr. Rinsley was asked to set forth all publicity which placed him before the public in a false light. He answered as follows:
“(a) Statement by Defendant Louis Frydman to the survey team of the Joint Commission of Accreditation of Hospitals, 1974.
“(b) Statements made by Defendant Louis Frydman to William Hickman, a former patient in the Adolescent Unit of (he Children’s Section, Topeka State Hospital, reported by the latter to me, to the effect that I had been mentally ill, hospitalized in a mental hospital for two years, and had had my license to practice medicine revoked, and that the patient had been treated while in the Adolescent Unit by persons as sick as the patient.
“(c) Similar statements to Michael Reedy, another former Adolescent Unit inpatient.
“(d) Similar statements to Cindy McDonald, another former Adolescent Unit inpatient.
“(e) There are undoubtedly a number of press releases, and radio and television releases which could be cited, but the five-part television program presented by WDAF-TV, Channel 4, Kansas City, Missouri late in August, 1973, entitled ‘Captive Children,’ in the inception and .presentation of which Defendant Louis Frydman played an instrumental role, cast me and the work of the hospital clinical service, which I directed at that time in false light. Such false light included: wholly false statements concerning the operation, philosophy and service delivery of the Adolescent Unit; biased and slanted statements concerning the same; wholly false and inaccurate claims and statements alleging abuse and neglect of Adolescent Unit patients; wholly false, slanted and inaccurate claims and statements concerning the operation of the Adolescent Unit calculated to induce doubt and, indeed, horror in the public mind in general, and in the minds of the patients’ parents and guardians, and of the patients themselves in specific.”
The trial 'court: in its decision on June 30, 1975, sustained the appellee’s motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to K. S. A. 60-212 (b) (6). It is clear from the trial court’s memorandum opinion that neither the deposition nor 'the answers to the plaintiff’s interrogatories were considered by the trial court in making its decision. The trial court comprehensively examined the law regarding defamation and concluded: (1) the facts do not constitute libel per se; (2) the plaintiff failed to allege or show special damages; (3) the statements of the defendant are conditionally privileged because of the plaintiff’s position as a public official; (4) • there were no factual allegations of either actual malice or recklessness which might destroy the defendant’s use of privilege; and (5) the defendant’s statements before legislative committees and commissions were made in an atmosphere of absolute privilege. The court then comprehensively examined the tort action known as invasion of privacy and con- eluded that the plaintiff in his amended petition had not stated a claim upon which relief could be granted. The court concluded by saying:
“More importantly, the torts of defamation and invasion of privacy as applied to the instant facts, do not cover meddling. In all truthfulness, it appears that the plaintiff is sorely upset because the defendant has become an activist on behalf of mental patients, has made them more aware of some of their rights .and has brought public attention to their problems through the legislature and the news media.”
On July 9, 1975, the plaintiff filed what he labeled a motion to amend, and moved the court under K. S. A. 60-252 (b) to clarify its June 30, 1975, judgment to determine if the court considered the statements set out in the answers to interrogatories. On September 22, 1975, the court overruled the motion -as being improper. Appeal has been duly perfected.
We turn to the appellant’s first procedural point, that the trial court erred in not treating this case as a motion for summary judgment. K. S. A. 60-212 (b) states in part:
“. . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K. S. A. 60-256, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K. S. A. 60-256.” (Emphasis added.)
On the record here presented the appellant has utterly failed to show that the trial court should have treated the motion to dismiss as one for summary judgment. Accordingly, this point has no merit.
The appellee relies upon Schulze v. Coykendall, 218 Kan. 653, 545 P. 2d 392, for the proposition that a petition for libel and slander must set forth the alleged defamatory words spoken or published, the names of those persons to whom they were spoken or published and the time and place of their publication.
In the opinion of Schulze v. Coykendall, supra, the court recognized that with the advent of the rules of civil procedure on January 1, 1964, notice pleading was authorized. That is, a pleading need only contain “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled.” (K. S. A. 60-208 [a]; and Malone v. University of Kansas Medical Center, 220 Kan. 371, 373, 552 P. 2d 885.) There is no requirement to state facts sufficient to constitute a cause of action. (See 2A Moore’s Federal Practice, para. 8.13 [2d Ed. 1976].) All the rules require is a short and plain statement of a claim that will give the defendant fair notice of what the plaintiffs claim is and the ground upon which it rests. (Conley v. Gibson, 355 U. S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99.)
A different rule is applied when one pleads special matters. K. S. A. 60-209 (/) provides in part:
“In an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the claim arose, but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be not controverted in the answer, it shall not be necessary to prove it on the trial; in other cases it shall be necessary.
The court in Schulze v. Coykendall, supra, was careful to set out the provisions of K. S. A. 60-212 (e), which provides:
“If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within ten (10) days after notice of the order or within such time as the court may fix, the judge may strike the pleading to which the motion was directed or make such order as he deems just.”
While the rule asserted by the appellee is correct, it requires a motion by the defendant under 60-212 (e), supra, to give it substance and compel compliance. This requirement was met in Schulze v. Coykendall, supra, where the court said:
“In the present case the motion for summary judgment had the effect of a motion for a more definite statement authorized by K. S. A. 1975 Supp. 60-212 (e) in that plaintiff was directed to furnish the necessary information within 15 days after the order on the renewed motion for summary judgment. An examination of both the plaintiff’s deposition and the memorandum indicates that plaintiff failed or refused to disclose this necessary information. . . .” (p. 658.)
On this point see 5 Wright and Miller, Federal Practice and Procedure, § 1309, p. 440 [1969].
On the record here the appellee did not file a motion pursuant to 60-212 (e), supra, directed at the petition or “amended petition,” and there is no substitute for it in the record.
Counsel for the appellant at the hearing before this court admitted, by categorically stating, the appellant was not proceeding against the appellee on a theory of defamation, either libel or slander. The theory, then, upon which the appellant seems to be proceeding can best be stated by quoting from his brief, where it is stated:
“The activities of Defendant complained of in Plaintiffs Amended Petition and described more fully in Plaintiffs answers to Defendant’s Interrogatories can be conceptualized as ranging on a continuum from tortious interference with confidential contractual relations, through the intrusion, appropriation, and false light forms of invasion of privacy. . . .”
Counsel for the appellant concedes he has found no authorities which support a theory of “tortious intermeddling,” and we see no point in pursuing an academic discussion concerning a tort of “intermeddling” on the present posture of this case. (See Prossor on Torts, § 4, p. 21 [4th Ed. 1971].)
Our court has recognized invasion of the right of privacy as a tort upon which a cause of action may be based in Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993, and authorities cited therein. There the court adopted the Restatement of the Law Second, Torts, Tentative Draft No. 13, § 652. The authorities there cited disclose the invasion of the right of privacy comprises four distinct kinds of tort: (1) intrusion upon seclusion; (2) appropriation of name or likeness; (3) publicity given to private life; and (4) publicity placing person in false light.
The Restatement of the Law Second, Torts, Tentative Draft No. 13, § 652E, PUBLICITY PLACING PERSON IN FALSE LIGHT, reads:
“One who gives to another publicity which places him before the public in a false light of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.” (p. 120.)
On the posture of the amended petition as set forth in the record, subject only to the rules of notice pleading at this point, it is sufficient to withstand attack, under the appellee’s motion to dismiss, based on the theory of an invasion of privacy. It follows the action of the district court sustaining the motion was premature.
The entire costs of the record on appeal in the sum of $410.38 are assessed against the appellant for failure to comply with the Rules of the Supreme Court on appellate practice.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Parker, J.:
In this, an original proceeding, Harry Downs, who is serving two life sentences in the state penitentiary for murder committed in the perpetration of a robbery under separate and distinct judgments of the district court of Labette county rendered on November 2, 1942, seeks a writ of habeas corpus to secure his release from prison.
The petitioner’s claim of illegal imprisonment, which ignores the fact he is incarcerated under two commitments, is based upon the following grounds:
(1) That he is not guilty of murder committed in the perpetration of a robbery as charged in the information.
(2) That he was taken from Labette county into Montgomery county within two hours after his arrest without any charge having been filed against him.
(3) That he was held incommunicado in the Montgomery county jail for sixty-six days before an information was filed against him.
(4) That he was denied the right of counsel.
(5) That for three months while being held in the Montgomery county jail he was coerced and threatened by the county attorney of that county.
(6) That during such period he was denied his constitutional right of a speedy, fair and impartial trial by jury.
(7) That as a result of the coercion and threats of the prosecuting attorneys of both Montgomery county and Labette county he was forced, through fear, to enter a plea of guilty to the crimes with which he had been charged.
(8) That he was accused of murder while in the perpetration of a robbery although no robbery was shown.
(9) That counsel cannot be intelligently waived by a person charged with first degree murder.
(10) That the journal entry of judgment on its face shows (a) intimidation and coercion, and (b), lack of jurisdiction to impose sentence.-
(11) That intimidation and coercion by the county attorney of Labette county is conclusively established from the fact the infor-' mation was positively verified by such officer.
Shortly after receipt of the petitioner’s application for a writ of habeas corpus in form as heretofore summarized this court ordered that it be filed without a deposit for costs and directed that the respondent be given thirty days in which to file an answer thereto. Within time an answer and return was filed by the attorney general on behalf of the respondent. It contained a general denial and alleged the petitioner was legally in respondent’s custody by virtue of valid judgments and sentences of the district court of Labette county. Attached to such answer were certified copies of the information, a waiver of appointment of counsel, the journal entry of judgment, and the commitment in case No. 1239 of the district court of Labette county, and similar copies of the information, a waiver of appointment of counsel, the journal entry of judgment, and the commitment in case No. 1240 of the same court. •
At this point we pause to say that except as it is required for an accurate recital of the status of the pleadings and a clarification of the situation revealed by the answer the fact that petitioner was committed to the state penitentiary for life under the sentence imposed in case No. 1240 is of no legal significance in our determination of the issues involved’ in this action. For informative purposes it should, however, be stated that in case No. 1239 petitioner was charged with the murder of Clinton Miller, entered a plea of guilty to that charge and was sentenced to life imprisonment in the penitentiary for the commission of such offense, while in case No. 1240 he was charged with the murder of one Thomas M. Miller, pleaded guilty to that charge and was¡ given a life sentence in prison for its commission to run concurrently with the sentence imposed upon him in case No. 1239. Likewise added, that save for the distinctions just noted, the documents attached to respondent’s answer, and to which we have referred are alike in dates, form, and verbiage. Obviously, under the circumstances and conditions heretofore related, the question of whether petitioner is entitled to the writ he seeks depends upon the legality of the sentence imposed in case No. 1239. Therefore, our consideration of the questions raised by him in his application will be limited to the factual and legal situations disclosed by the record in that case.
The infornjation attached to the answer and to which petitioner concedes he entered a plea of guilty serves a dual purpose in that it not only discloses the crime charged but at the same time serves as a brief narrative of the existing factual situation on the date such crime is alleged to have’ been committed. On that account it will be quoted. Omitting its formal allegations it reads:
“That on or about the 1st day of August, A. D., 1942, in the County of Labette, State of Kansas, the above named defendants, Harry Downs and William LaTrasse there being and while then and there jointly, willfully, unlawfully and feloniously, in the perpetration of a robbery of the Plaza Bar, a place of business located in the City of Parsons, Labette county, Kansas, owned and operated by Frank Magner, an individual doing business under the firm name of Plaza Bar of Parsons, Kansas, did then and there jointly, willfully, unlawfully, feloniously, deliberately, premeditatedly and with malice aforethought and with the intent to kill, did shoot, kill and murder one *Clinton Miller with certain 38 Calibre Smith-and-Wesson revolvers, each barrel of each revolver being 5 inches' in length, a further description of said revolvers being now unknown to complainant, each of said revolvers being then and there loaded with powder and leaden bullets, one revolver being then and there held in the hand of the defendant, Harry Downs and one of said revolvers being then and there had and held in the hand of the said William LaTrasse, and said defendants did then and there with said revolvers, inflict certain mortal wounds in and upon the body of the said Clinton Miller, from which said mortal wounds, the said *Clinton Miller did then and there die in the county of Labette, State of Kansas, all being contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State of Kansas.”
First, we turn to grounds of petitioner’s application raising pure issues of fact which, since this is an original proceeding, must be determined from the evidence. As we do so it should be kept in mind that in the determination of factual issues in habeas corpus cases this court, as well as other courts, has repeatedly held that where a petitioner attacks a judgment on the ground his constitutional rights have been violated the burden of proof rests upon him to establish the facts relied upon as having that effect by a preponderance of all the evidence. (Bissell v. Armine, 159 Kan. 358, 155 P. 2d 413, and cases there cited.)
At the outset we note part of the evidence in this case is in affidavit form. It consists of verified statements by the petitioner and three county officials. The statements of fact therein found will be given the force and effect to which they would be entitled had they been made in open court on oral examination or set forth in a deposition.
Ground 4 is that petitioner was denied the right of counsel. This claim is supported by bald statements of the petitioner to the effect he was held incommunicado and denied counsel. It is refuted by: (1) The testimony of Glenn Jones, the then prosecuting attorney of Labette county, who states that he talked with petitioner on a number of occasions and that he voluntarily pleaded guilty after having been informed that he had a right to counsel of his own choice or counsel appointed by the court; (2) the journal entry of judgment which contains the following statement: ■
“Thereupon said defendants and each of them were formally arraigned at the bar of this court and the nature of the crime charged in the Information and the penalty therefore was explained to the defendants by the court, together with the procedure in regard to a hearing of the evidence in said cause before sentence could be imposed in the event of a plea of guilty ,by said defendants. Thereupon the defendants advised the court that they had employed an attorney, Mr. Walter S. Keith of Coffeyville, Kansas, but that they had discharged him from further service in connection with said case and that they did not desire and did not want an attorney to represent them in said case and further advised the court that if they desired an attorney, they had the financial means with which to employ such attorney, and the Court finds that the appointment of counsel for defendants would not be to their advantage.
“Thereupon in answer to questions by the court, the defendants and each of them stated that they would sign a waiver of appointment of counsel by the court and each of said defendants did sign a waiver of appointment of counsel by the court.”
and (3) a waiver of appointment of counsel signed by the petitioner which reads:
“I, the undersigned, one of the defendants above named, do hereby state that I have been advised by the court as to the nature of the offense with which I stand charged and the penalty prescribed by law in the event of a conviction thereof or a plea of guilty thereto, and the further fact that by reason of my financial inability to employ counsel that I have the right to be represented in this action by counsel to be appointed by the Court, and with full knowledge of these facts I do hereby give the Court to understand and be informed that I do not desire to be represented by counsel and request the Court to accept my plea to the averments of the information, charging me with the offense of murder in the first degree, without the appointment of counsel by the Court. This statement and request being made voluntarily and of my own free will and accord.
“Signed in open Court at Parsons, Kansas, this 2nd day of November, 1942.”
As to ground 5 petitioner’s testimony is that he was coerced and threatened by the prosecuting attorney of Montgomery county, the county in which he alleges he was confined in jail from the day of his arrest to the date on which he entered his .plea of guilty. His statement on that point is flatly denied by Wallace Carpenter, the then county attorney of such county and by Carl Way, then a constable and a deputy sheriff, who states that he was in and about the Montgomery county j ail every day petitioner was confined there and positively knows that he was not coerced or mistreated in any manner.
Ground 6 is not corroborated by the testimony of any witness and petitioner fails to point out how he was denied a speedy, fair and impartial trial by jury. His claim he was denied a fair and impartial jury trial is positively contradicted by the witness Glenn Jones, and of a certainty disproved by portions of the record heretofore quoted, while the very most that can be said for his contention a speedy trial was denied him is that he was arrested on or about August 2, 1942,'given a preliminary examination about one month later and brought to trial on the 2d of November, 1942.
The claim asserted in ground 7, that as a result of coercion and threats he pleaded guilty through fear, is supported solely by petitioner’s own statement and is denied by the three witnesses heretofore named.
Upon consideration of the whole record, only part of which has been herein specifically mentioned or referred to, we have no difficulty in concluding petitioner has wholly failed to establish grounds 4, 5, 6 and 7 of his application.
Next, let us dispose of claims made by petitioner which can be determined by assuming for purposes of our decision that factual questions therein involved have been resolved in accord with his contentions regarding them. • ' "
In ground 1 it is alleged petitioner is not guilty, of murder as charged in the information. The claim has no merit. Under our decisions the guilt or innocence of one accused or convicted of crime is not justiciable in a habeas corpus proceeding (Crebs v. Amrine, 153 Kan. 736, 745, 113 P. 2d 1084, certiorari denied, 317 U. S. 699, 63 Sup. Ct., 441, 87 L. Ed. 559; Merideth v. Amrine, 155 Kan. 7, 122 P. 2d 759, certiorari denied, 316 U. S. 670, 62 Sup. Ct., 1047, 86 L. Ed. 1745; Smith v. Amrine, 156 Kan. 486, 489, 134 P. 2d 400).
Standing alone, the mere fact, as stated in grounds 2 and 3, petitioner was taken from Labette county into Montgomery county within two hours after his arrest and thereafter held incommunicado 'in the jail of the latter county for sixty-six days before an information was filed against him would not warrant his release on habeas corpus (Smith v. Amrine, supra).
Ground 8 is so frivolous it deserves little, if any, consideration. ^ Having understanding^ and intelligently entered a plea of guilty to the crime of murder committed in the perpetration of a robbery the petitioner cannot now be heard to say that notwithstanding he pleaded guilty the state was required to establish the elements of the crime with which he had been charged by testimony.
In addition to what has just been held with respect to grounds 1, 2, 3 and 8 there is another sound reason for holding they do not justify the relief sought by petitioner. All relate to nonjurisdictional trial errors and irregularities which, under repeated decisions of this court, are not subject to correction and review in habeas corpus (Hill v. Hudspeth, 161 Kan. 376,168 P. 2d 922; Powers v. Hudspeth, 161 Kan. 777, 173 P. 2d 251; Kneisley v. Hudspeth, 161 Kan. 772, 173 P. 2d 247).
Lastly we direct our attention to grounds of the application which raise no issue of fact. No. 9 overlooks our statute (G. S. 1945 Supp. 62-1304), providing that any person about to be arraigned upon information may waive his right to counsel and our decision in Kneisley v. Hudspeth, supra, holding that he may do so when — as here — - his waiver was voluntarily and understanding^ signed. No. 10 is also untenable. The journal entry not only fails to show intimidation and coercion on its face but clearly reveals strict compliance with statutory provisions enacted for the protection of persons accused of crime. No. 11 is wholly gratuitous. The fact a prosecuting attorney verified an information positively does not even raise an inference that such officer has intimidated or coerced a person charged with an offense against the laws of the state. In fact to suggest that it does so is presumptuous and we take space in this opinion to answer it only because the petitioner is not represented by counsel.
From our careful and extended examination of the record we find nothing which entitles petitioner to a writ of habeas corpus. Therefore, the relief prayed for in his application is denied.
With respect to the information in case No. 1240 asterisks indicate where the name of Thomas M. Miller appears in place of Clinton Miller. | [
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The opinion of the court was delivered by
Fbomme, J.:
This appeal is on the question of whether an insured injured party covered by two insurance policies, each providing uninsured motorist coverage mandated by K. S. A. 40-284, is entitled to receive a total of $30,000.00 on the two policies when the actual damages oaused by the fault of the uninsured motorist were only $20,000.00. The question is purely one of law for the findings of fact made by the trial court were aocepted by the parties.
In the interest of brevity we summarize the court’s findings in order to present the facts necessary to examine the question.
At all times material defendant, Hartford Casualty Insurance Company (Hartford), had in force a policy of insurance with Darlene E. Lambert, who now is Darlene E. Welch, by marriage. The vehicle insured was a 1964 Chevrolet automobile. The maximum coverage of $20,000.00 was provided under an uninsured motorist provision in the policy covering bodily injury. The premiums for said policy were fully paid by Darlene E. Welch.
On or about January 1, 1972, at or near the 3800 block on South Topeka Blvd., Topeka, Kansas, plaintiff Darlene E. Welch was injured while riding as a passenger in a 1970 Ford LTD automobile operated by Dean L. Welch. This vehicle was owned by Dale Sharp Motors, Inc., and the vehicle was insured under a policy issued by Trinity Universal Insurance Company (Trinity) which policy afforded a maximum of $10,000.00 uninsured motorist coverage. Dale Sharp had paid all premiums on said policy.
While the Dale Sharp oar was proceeding in a northerly direction on Topeka Blvd., an uninsured motor vehicle driven by Doris A. Majette negligently turned in front of the vehicle in which plaintiff was riding and as a result plaintiff was injured and damaged. The sole proximate cause of the collision which brought about plaintiff’s injuries and damages was the negligence of Doris A. Majette, who was at said time and place an uninsured motorist within the meaning of that term in both the Hartford and the Trinity policies. As a proximate result of the collision Darlene E. Welch is legally entitled to damages from Doris A. Majette in the sum of $20,000.00, which amount covers all injuries received by Darlene E. Welch.
By reason of medical coverages provided in the two policies plaintiff was paid $1,000.00 by Hartford, and $2,829.20 by Trinity. No question is raised in this case concerning medical payments.
Prior to bringing the present action, plaintiff made claim against and collected from Trinity the sum of $10,000.00 under the uninsured motorist coverage in the Trinity policy for damages suffered by her in the accident of January 1, 1972. The damages for which plaintiff made claim against Trinity and for which she makes claim against the defendant Hartford in this case arose from the same accident and were caused by the same uninsured motorist, Doris A. Majette.
Proper service was had in the action and jurisdiction of the court attached to both defendants, Hartford and Doris A. Majette.
The trial court determined that the amount of plaintiff’s damages was $20,000.00, that she had already collected $10,000.00 on her claim against Trinity and that she was entitled to $10,000.00 and costs on her claim against Hartford. The court further determined that Hartford, on its third-party petition, was entitled to a judgment of indemnity against Doris A. Majette upon payment of the $10,000.00 judgment in favor of plaintiff, Darlene E. Welch.
Plaintiff appeals and claims as a matter of law that she is entitled to recover the full amount of her damages, $20,000.00, under the uninsured motorist coverage provided by Hartford and for which she has paid a premium, regardless of any amount previously received from Trinity. If appellant is correct in her position she will receive $20,000.00 from Hartford in addition to the $10,000.00 received from Trinity, or a total of $30,000.00 when her actual damages amounted to only $20,000.00.
Appellant argues that uninsured motorist coverage under K. S. A. 40-284 is a contract benefit to be paid. When two separate coverages are contracted for and two premiums are paid the insured is entitled to receive the benefits for which separate premiums were paid. Appellant contends she is entitled to receive up to $20,000.00, the amount of her damages, on each of the policies.
On the other hand, appellee Hartford contends the purpose of the uninsured motorist coverage is to fill a gap in compulsory motor vehicle responsibility coverage and is intended to provide recompense to innocent persons for injuries they receive through the wrongful conduct of an uninsured motorist. Hartford main tains a person injured by an uninsured motorist may not recover more than her total damages, regardless of the number of policies issued.
Accordingly it becomes necessary for us to examine provisions of K. S. A. 40-284 which mandate uninsured motorist coverage.
The statute provides in part:
“No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits not less than the limits for bodily injury or death set forth in K. S. A. 1967 Supp. 8-729, providing for payment of part or all sums which the insured or his legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of the motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organisation. . . (Emphasis supplied.)
The policy contract issued to appellant by Hartford to comply with the mandate of the above statute provided:
“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; . . .” (Emphasis supplied.)
This court on previous occasions has inquired into the nature and extent of uninsured motorist coverage mandated by the statute. In Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P. 2d 34, Sturdy owned two automobiles which were insured in one policy issued by Allied Mutual. He paid two premiums for uninsured motorist coverage, one on each automobile for $10,000.00 coverage. Sturdy was injured by an uninsured motorist while riding a motorcycle. The amount of his damages was arbitrated and fixed at $20,000.00. It was held in Sturdy the amount of coverage available under the policy by reason of payment of two premiums was $20,000.00. It should be noted that the total coverage available did not exceed the amount of the insured’s damages.
In Rosson v. Allied Mutual Ins. Co., 203 Kan. 795, 457 P. 2d 42, Rosson owned two cars and paid two premiums for uninsured motorist coverage to Allied Mutual. The amount of his damages caused by an uninsured motorist was determined and fixed by arbitration at $14,053.15. Two premiums were paid for coverage of $10,000.00 on each automobile. Allied Mutual paid Rosson $10,000.00 which was the coverage on one automobile. Rosson sued to reoover an additional $10,000.00 on the coverage under the second automobile. This court held Rosson was entitled to recover the additional sum of $4,053.15 instead of the $10,000.00 he had claimed. No specific basis for limiting the recovery was given in the opinion except to quote the provision in the policy for payment of the damages for bodily injury caused by an uninsured motorist. The policy provision quoted in Rosson is identical to the provision contained in the present Hartford policy and reads:
“ ‘To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from die owner or operator of an uninsured automobile because of bodily injury . . (p. 796.)
Another case bearing upon the question was Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P. 2d 507, reh. den. 213 Kan. 84, 515 P. 2d 1115, in which this court held the other insurance clause, the consent to sue clause and other clauses in the policy which attempted to limit and dilute the uninsured motorist coverage mandated by K. S. A. 1972 Supp. 40-284 (now K. S. A. 40-284) were void. In Clayton it is stated:
“Where more than one insurance policy containing uninsured motorist coverage exists with respect to an injury, an insurer’s liability may not be limited by policy provisions to the amount of recovery under one policy; each insurance policy carries its own liability for which a premium was paid as consideration, and the insured may ‘stack’ coverage up to the full amount of damages sustained.” (Syl. 2. Emphasis supplied.)
However, in Clayton the damages suffered exceeded the collective amount of the stacked coverage and the question in our present case was not squarely presented.
In Winner v. Ratzlaff, 211 Kan. 59, 505 P. 2d 606, this court pointed out:
“The purpose of legislation mandating the offer of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages.” (Syl. 1.)
In Winner we examined wording in a policy similar to that in our present case which comports with the wording of the uninsured motorist coverage statute and stated:
"The words ‘legally entitled to recover as damages’, contained in K. S. A. 1972 Supp. 40-284 [now K. S. A. 40-284], are construed to mean that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages.” (Syl. 3.)
In examining the intent of the legislature we said in Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P. 2d 173:
“The intent of the legislature in requiring the mandatory offering of uninsured motorist coverage was to insure that those insured under the contract of insurance would be protected generally against injuries caused by motorists who are uninsured and that such protection would complement the liability coverage.” (Syl. 3.)
In the recent case of Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P. 2d 1354, we examined the statute and stated:
“. . . Uninsured motorist coverage was developed as a means of protecting the non-negligent motorist where the tortfeasor is uninsured. The typical clause provides a motorist who carries a standard automobile liability policy with rights against his own insurance company equal to those he would have against the uninsured tortfeasor. . . .” (p. 600. Emphasis supplied.)
It appears on reading our previous uninsured motorist cases including Rosson v. Allied Mutual Ins. Co., supra, that the phrase ‘legally entitled to recover” in the statute refers to the extent of the damages caused by the fault of the uninsured motorist, that an insured may “stack” coverages to obtain the recompense for said damages, but that the total amount to be received from stacked coverages should not exceed the full amount of damages sustained.
Other jurisdictions considering the question here being considered have concluded recovery should be limited to the actual amount of damages. See Geyer v. Reserve Insurance Company, 8 Ariz. App. 464, 447 P. 2d 556; Sellers v. United States Fidelity & Guaranty Co., (Fla.) 185 So.2d 689; and cases collected in an annotation appearing in 28 A. L. R. 3rd 551.
We have examined the cases cited by appellant in support of her position and although certain statements set forth appear favorable to such a position they are not persuasive. In each case relied on the amount of the actual damages exceeded the collective coverages available. The insured was not seeking to recover an amount in excess of the actual damages in any of the cases cited.
We hold where more than one insurance policy provides uninsured motorist coverage with respect to damages sustained in a single accident caused by fault on the part of an uninsured motorist the insured injured party may “stack” coverages up to but not more than the full amount of the damages sustained. An insured injured party covered by one or more policies providing uninsured motorist coverage mandated by K. S. A. 40-284 is entitled to recover the same amount he or she would have recovered if the offending uninsured motorist had maintained adequate liability insurance, provided the collective coverages available are equal to or exceed the full amount of the damages.
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The opinion of the court was delivered by
Wedell, J.:
In this action plaintiff, the owner of an undivided fractional interest in and to the oil and gas in and under certain land in Russell county, sought to have the interests of numerous defendants in and to such mineral estate determined and partitioned. Plaintiff appeals from an order sustaining the general demurrers of various defendants to his petition.
Personal service was had on some of the numerous defendants and publication service was had on others.
In his petition appellant sets forth the undivided fractional interests in and to the oil and gas mineral rights owned by various persons which, including his own three-tenths’ interest, amounted to approximately five-sevenths of such minerals. He also alleged another defendant claimed to own an undivided one-twentieth interest therein. In addition to the interests alleged to be now owned and claimed the petition alleged numerous other defendants, corporations, partnerships and individuals at one time claimed some interest in the minerals; that certain defendant corporations and a partnership were no longer in existence and the residences of the defendant corporations were unknown; some members of the partnership were deceased and that their heirs, if any, were unknown. It was further, in substance, alleged the interests of such corporations and of their successors, if any, and the interests of such individual defendants, or of their heirs and devisees, if any, were unknown and could not be ascertained.
The foregoing is not intended to narrate fully the allegations pertaining to the uncertainty of ownership, or claimed ownership, of-such minerals, but is sufficient for present purposes. None of the conveyances of mineral interests to any of the parties disclosing the rights or obligations thereunder was attached. It appears the pe tition was not motioned to require appellant to set forth such conveyances.
It was alleged all defendants •claim some interest or right in and to the minerals but that the-extent of each interest or right claimed cannot be determined from the public records; their claims constitute a cloud on the exact ownership and rights of appellant and of all other owners of mineral interests.
The petition further alleged:
“The plaintiff further avers that the above and foregoing described land at one time had oil and gas production and that oil and gas was produced therefrom up to and until approximately the year 1935 when the oil and gas wells were plugged and the oil and gas mining equipment was removed therefrom and the leases abandoned by the leaseowners and -is not now leased for oil and gas purposes; that said land is now located and situated to oil and gas production directly offsetting' it to the east and that since 1935 and since the abandonment of said lease, a deeper producing oil and gas horizon has been discovered and production therefrom is being obtained from said land immediately to the east of. the land specifically described in this petition and that as a result thereof, the oil and gas from said land is being drained and lost from the said South Half of the South Half (S% S%) of said Section Seven (7) and the Northeast Quarter (NElá) of said Section Eighteen (18), all in Township Twelve (12) South; Range Fifteen (15) West of the 6th P. M. . .
. “The plaintiff further avers that said land cannot be leased for oil and gas purposes in that no company or individual engaged in oil business will drill upon said land unless it or he can secure an oil and gas lease, or leases, signed by all of the'owners of the mineral rights and that it has been impossible and is impossible on the. part of this plaintiff to lease said land for oil and gas purposes and to secure. development thereon by reason of the following facts, to-wit:
“(a) That the plaintiff has been unable to locate, or ascertain whether or not the following defendants are living, or dead, to-wit: Ardena Lewis, J. W, Farley, C. R. Weber, and if living, cannot ascertain their true and correct post office address 'of whereabouts and if dead, the names and residences and whereabouts of the heirs, devisees, administrators, executors, trustees and assigns of such deceased defendant or defendants.
“(b) That the plaintiff does not know and cannot ascertain whether or not the following defendant corporations are in existence or dissolved, to-wit: Gotham Oil and Gas Company, Gerhig Company, Commonwealth Trust Company, and if dissolved, the plaintiff has been unable to ascertain, with diligent effort, the names, residences and whereabouts..of their unknown successors, trustees and assigns.
“(c) That the defendants, Lloyd J. Oswald, Donald F. Oswald, C. W. Shaffer, J. E. Missimer and A. E. Seeley, have refused and do now refuse to lease said land for oil and gas purposes and have refused and will not assist this plaintiff in testing or exploiting said land for oil and gas purposes and that by reason of said failure, it has subjected said land, or any oil and gas production that might be found thereon to drainage and loss.
“Plaintiff further avers that by reason of said facts; said plaintiff is being deprived of the right and power to cause said'land to be explored for oil and gas purposes and in the event that the same might be proven to be productive, is being deprived of said oil and gas production and that as a result said mineral rights, potentially valuable, have little or no present market value.”
The petition then stated that by reason of the facts alleged the mineral interests and rights of the parties are subject to partition and that if partition in kind is impossible without manifest injury the mineral rights should be appraised and sold as provided for the sale of real estate.
Eleven demurrers were leveled against the petition but not all were based on identical grounds. The demurrers all included the ground the petition did not state a cause of action for the relief sought. Among the various demurrers were contained the grounds that the petition disclosed on its face appellant was not entitled to partition of the mineral interests; the court was without jurisdiction of the persons or subject matter and that several causes of action were improperly joined.
The trial court sustained all demurrers on the single ground the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, “ . . . , in that said petition shows on its face that the action was brought for partition of oil and gas mineral rights in and under real estate described in said petition, and that said plaintiff has no legal or equitable right to enforce said partition.” (Our emphasis.) No cross-appeal has been perfected by any of the defendants on the ground the court erred in failing to sustain their demurrer on other grounds.
Was it error to sustain the demurrer? Appellant concedes the only feasible form of partition probably would be by appraisal and sale of the mineral interests. Appellant also concedes this court, on three occasions, has denied partition sought by cotenants of oil and mineral interests. (Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844; Drake v. Drake, 153 Kan. 56, 109 P. 2d 77; Spikes v. Magnolia Petroleum Co., 158 Kan. 659,149 P. 2d 348.) He contends, however, these decisions do not preclude partition between cotenants of mineral interests if justified on equitable grounds and that his petition alleged such facts.
There are three groups of appellees represented on appeal. Two groups make the same contentions. They argue the general demurrer was properly sustained on the legal ground that the petition did not allege appellant was in actual or constructive possession of the mineral interest he claimed to own. The point is not well taken. The petition alleged appellant was the owner of an undivided three-tenths’ interest in and to the oil and gas minerals in and under the land. In the absence of a motion to set forth the conveyance by which appellant acquired such ownership, the allegation of ownership, on demurrer, must be accepted as alleging legal title to such interest. Such allegation of title is aided by the presumption that possession usually follows the legal title when no adverse possession is shown. (5 Pomeroy’s Equity Jurisprudence, 4th ed. § 2131.)
Numerous other contentions are made by this group of appellees concerning the alleged insufficiency of the petition. The contentions are based on the theory the petition did not state a cause of action for partition on equitable grounds. The real and only question presented here is whether it yras necessary to allege equitable grounds in order to obtain partition of the particular kind of property sought to be partitioned. If it were not necessary to allege equitable grounds we, of course, need not determine the sufficiency of such equitable grounds as were, or were intended to be, alleged.
It appears the parties to this appeal and the trial court have interpreted the Fry, Drake and Spikes cases, supra, as holding that no cause of action for partition of mineral interests can ever be stated unless it is based on sufficient equitable grounds. While the opinions in those cases may not be as explicit in all particulars as desirable we do not intend they should be interpreted as being so. sweeping in scope. While there was some variation in the facts of those cases the last two cases, in the main, followed some distinct point decided in the Fry case. In the Fry case we held, in part, a demurrer should have been sustained on the ground of misjoinder of causes of action insofar as partition of the mineral interests, as distinct from partition of the surface rights, was concerned. We followed that ruling in the Drake case, supra (p. 58).
In the Fry case mineral deeds were involved which effected the severance of the minerals from the real estate. After such severance by deeds two separate and.distinct estates were held to have been created and both were declared to be estates in real property. There were, however, also oil and gas leases on each of the separate parcels of land involved. In this state an ordinary oil and gas lease is held to convey no interest in the land therein described but to create merely a license to explore, personal property. (Burden v. Gypsy Oil Co., 141 Kan. 147, 150, 40 P. 2d 463; Fry v. Dewees, supra.) There was also production on one of the tracts of land in the Pry case. Division orders had been executed to cover disbursement of the proceeds of sale of the mineral products to the various cotenants. To that extent there already had been voluntary partition of the proceeds of production. Furthermore, the mineral deeds in the Fry case were also held to grant certain contract rights in personal property. We decided that under all the circumstances the personal property rights were inextricably bound up with the pure mineral rights conveyed by. the several mineral deeds. We concluded partition should not be allowed in the absence of facts showing equitable reasons therefor. We, however, did not fail to recognize the fundamental distinction between the usual rights pertaining to partition of real and personal property. We held:
“As a general rule, a tenant in common of a fee-simple estate in real property is entitled to partition as a matter of right. Such right, however, is subject to the full power of the court to make a just and equitable partition between the parties and to secure their respective interests.
“The right to compel partition of personal property is not controlled by the provisions of the code of civil procedure respecting partition, but is only to be had upon application of equitable principles, and may be had only upon showing facts indicating sufficient reason for equitable interference.” (Syl. 5¶4, 5.)
While no production was involved in the Spikes case the land was encumbered .with an oil and gas lease, personal property, owned by the defendant. We followed the ruling as to partition of personal property handed down in the Fry case.
Now what is the nature of the estate sought to be partitioned in the instant case? It is conceded there is no production and no existing oil and gas lease on the land involved. The petition discloses nothing is sought to be partitioned except undivided interests in and to the oil and gas minerals in place, held by the various cotenants. A mineral interest in and to oil and gas in place constitutes an interest in real estate. (Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56; Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 69 P. 2d 4; Serena v. Rubin, 146 Kan. 603, 72 P. 2d 995, Hushaw v. Kansas Farmers Union Royalty Co., 149 Kan. 64, 86 P. 2d 559.)
In order to avoid any possible confusion in thought let it be clear we are not concerned here with personal property; such as royalties. Accurately speaking, a royalty, under an oil and gas lease, is a participation in the proceeds derived under the terms of the lease. Minerals in place are an interest in land which may,* or may not, produce royalties under a lease. (Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52; Burden v. Gypsy Oil Co., supra; Richards v. Shearer, supra; Serena v. Rubin, supra.) Here we are concerned only with an interest in land.
Is a tenant in common of a fee-simple interest in land required to state a cause of action in equity in order to obtain partition? Ordinarily, as previously shown, a cotenant, in such an action, is entitled to partition, as a matter of right. The right of partition is considered an incident of common ownership. It is based on the equitable doctrine that it is better to have the control thereof in one person than in several who may entertain divergent views with respect to its proper control and management. The general rule therefore is that all property capable of being held in cotenancy is subject to partition by judicial proceedings, the partition being either in kind or by appraisal and sale.- The general rule obtains as to stone, coal, oil and gas and other minerals in place when carved out of the fee by conveyance. (18 R. C. L., Mines, § 146, p. 1250; 36 Am. Jur., Mines and Minerals, §§204, 205, p. 420; 24 Am. Jur., Gas and Oil, § 10, p. 526; 1 Thompson on Real Property, § 101, p. 138; 1 Thornton’s Law of Oil and Gas, 4th ed., § 315, pp. .781, 783; Mills-Willingham Law of Oil and Gas, §180, p. 271; Anno. 39 A. L. R. 741; 5 Pomeroy’s Equity Jurisprudence, 4th ed., §2130; Freeman on Cotenancy and Partition, 2d ed., §433; on Pleadings see, also, 47 C. J., Partition, § 342, p. 408.)
G. S. 1935, 60-2101 provides:
“When the object of the action is to effect a partition of real property, the petition must describe the property and the respective interests of the owners thereof, if known.”
This statute is in harmony with a long-established general rule. (20 R. C. L., Partition, § 42, p. 760; 47 C. J. Partition, §§48, 53, 54, 56; Willard v. Willard, 145 U. S. 116, 36 L. Ed. 644.)
G. S. 1935, 60-2102, provides.:'
“If the number of shares or interests is known, but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent or doubtful, these facts must be set forth in the" petition with reasonable certainty.”
The instant petition meets our statutory requirements without regard to the allegations intended to support partition on equitable grounds.
Are we then compelled to conclude a cotenant of minerals in place may always obtain judicial partition thereof, as a matter o/ absolute right? Can there be no possible defense to such an action? Appellant concedes partition here should be by appraisal and sale for the reason it probably could not be madé in kind without manifest injury. Appellees, however, argue that to permit partition of minerals in place, as a matter of right, might easily result in fraud and oppression; that mineral interests might be sold and later partitioned with the delibérate intent of “squeezing out” numerous co-tenants of small means who had invested in such interests and who would be unable to purchase all the mineral interests in the event of partition by appraisal and sale; that owners of surface rights could likewise be deprived of fractional interests in and to the minerals in place which they retained and from which they hoped to reap substantial benefits.
On the other hand, it is argued that parties unable to purchase the entire mineral interests would be compensated for their interests out of the sale price; that no single holder of a fractional interest could make a valid lease under which exploration would be had; that no cotenant should be expected to drill an expensive well without assurance the other cotenants would share in the expense in the event drilling results in a dry hole; that if one or more cotenants refuse to join in. a common lease, which would cost them nothing, they should not be permitted to block exploration and development by defeating partition while strangers are draining the minerals from the land by means of producing wells on adjoining property.
Usually the fact that partition results in hardship or inconvenience is no reason for withholding it. (5 Pomeroy’s Equity Jurisprudence, 4th ed. .§ 2130, p. 4791.) Sales and purchases of mineral interests like transactions in other property are presumed to have been made in good faith and not fraudulently. -But are courts of equity so powerless and so bound by precédent with respect to'the right of partition that they cannot prevent the remedy of partition from becoming an instrument of fraud? Would not a confession of such lack of equitable power constitute a shocking announcement?
It must be admitted we are dealing here with an interest in real estate of a peculiar character and nature. It is also common knowledge that Kansas has tremendous reservoirs of oil and gas. The value of some of its mineral deposits, particularly gas, is said to exceed all possibility of computation. ' Widespread investments, both large and small, have been made in mineral interests in place. Of course, the mere magnitude of property or investments therein does not alter fundamental principles.
It is true oúr statute specifies what shall be stated in a petition for partition of real estate. But the statute is only procedural‘in-character. The statute does not say partition of real estate shall be granted as a matter of right. Courts of equity have evolved that rule. Our partition statute makes no attempt to deny to courts the power to consider defenses to such an action. In fact the statute does not deal with defenses to partition actions at all. It would therefore appear courts of equity retain their inherent power to consider defenses which would prevent the remedy of partition from becoming an instrument of fraud and oppression. In- a carefully reasoned opinion in Wolfe v. Stanford, 179 Okla. 27, 64 P. 2d 335, it was held:
“Generally, the right of partition is absolute, but in connection with the partition of oil and gas rights, the court is vested with sufficient discretion in denying or awarding relief to prevent the remedy from becoming an instrument of fraud or oppression. The prevention of partition upon this ground is a matter of defense to be pleaded and proved as such.” (Syi. IF 3.)
Such a conclusion recognizes our statutory provision relative to what a petition for the- partition of mineral interests must .allege. It also,, however, permits courts of equity to retain their inherent power to prevent fraud and oppression where' that would be the result of partition. It likewise leaves courts free to exercise their equitáble powers and to thus deal effectually' with a cotenant who may arbitrarily refuse to cooperate for the common good of the cotenancy. It follows that whenever a petition alleges legal grounds for the partition of minerals in place objections thereto, if any, must be alleged and proved as a defense. Moreover, it should also be remembered that, when partition is allowed, courts of this state retain the power to make a just and equitable decree of partition. G. S. 1935, 60-2114, provides:
“The court shall have full power to make any order not inconsistent with the • provisions of this article that may-be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
See, also, Fry v. Dewees, supra, and cases therein cited.
The group of appellees whose contentions we have thus far considered also argues the petition was not drawn upon a single theory and that several causes of action were improperly joined. The first of these contentions, .if properly before us, is not sound. The petition clearly sought to have the interests of all parties determined and to have those interests partitioned. Touching the second contention it is difficult to see how there could be a misjoinder of causes of action in this particular case which involves the interests, or claimed interests, of all parties in and to the minerals in place in both tracts of land. In any event there is no cross-appeal by any appellees from the failure of the court to sustain that ground of the demurrer. The result is the point is not properly here for review.
Two other appellees advise they appeared specially by motion ^o quash the publication service as to them, that the motion was overruled and thereafter they appeared specially by demurrer and challenged the jurisdiction of the court over them personally and over the subject matter of the action. Their demurrer also included alleged misjoinder, of causes of action and failure of the petition to state a cause of action. The grounds of their motion and demurrer, insofar as the subject of jurisdiction is concerned, rest, upon the alleged insufficiency of the publication service. Whatever might be said concerning the merits of these contentions, the fact remains these appellees have not cross-appealed from the adverse ruling on their motion to quash the service nor have they, or any other appellees, cross-appealed from the failure of the court to sustain other grounds of their demurrers than the ground on which their demurrers were sustained.
The only ruling before us for review is the one brought here by appellant, namely, the order sustaining the general demurrer to his petition. That order has been treated and, as indicated, must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action wherein plaintiffs, by the filing of a petition for review pursuant to statute, sought to have the district court review an order of the state corporation commission which denied the oral application of plaintiffs to amend the general rules and regulations of the commission for the conservation of crude oil, so as to establish a minimum allowable of 25 barrels per day for oil wells in prorated pools in this state on the ground that the commission did not have power to make such an order. Judg ment of the district court was in favor of plaintiffs. The defendant has appealed.
The petition for review alleged that under G. S. 1945 Supp. 55-602 to 55-606, inclusive, the defendant was given authority over all matters arising thereunder; that prior to June 28, 1.946, there was in effect an order made by the defendant providing for a minimum well allowable of 20 barrels per day; that at the regular monthly meeting of the commission an oral application was made to the commission asking it to increase this to 25 barrels per day; that plaintiffs appeared in support of the application, and others appeared in opposition to it and maintained that the commission had no authority to establish a daily minimum on wells in any prorated pool in excess of 15 barrels per day; that after hearing the commission held that it did not have authority to fix a state-wide minimum well allowable for oil wells in Kansas, and the application was denied; that a petition for rehearing was filed by plaintiffs and duly denied. The petition for review then alleged that the order denying the application was contrary to law and the evidence submitted at the hearing; that the commission in making the order failed to take into consideration all the powers granted to defendant and the duties imposed on it by the statute; that the commission interpreted the word “waste” as used in the statutes in its- ordinary meaning and disregarded the fact that the meaning of that word was broadened by the provisions of G. S. 1945 Supp. 55-602, to include “economic waste.” The petition then alleged that in order to prevent economic waste within the state in the production of oil it was necessary that a minimum daily allowable for oil wells in Kansas be fixed at 25 barrels per day and alleged that the force of that evidence was recognized by the majority of the commission in the decision holding it had no such authority and that the defendant disregarded the definition of the term “waste” as given in the statutes.
The order attached to this petition for review stated that the question of increasing the minimum well allowable to 25 barrels per day was orally presented to the commission 'at its regular meeting for the purpose, among other things, of determining market demand and making a proration order; that a notice of the hearing was published in the usual form, which, among other things, was as follows:
“You are hereby notified that pursuant to said order the Commission will receive evidence to determine whether the rules and regulations for the conservation of crude oil and natural gas, of this Commission should be amended ; and that all persons desiring to be heard should be present at said hearing.”
The order further- stated that the matter of increasing the minimum allowable to 25 barrels per day was properly considered as a part of the market demand and proration hearing; that evidence was received from all desiring to be heard and that pursuant to a ' written memorandum filed the same day the commission concluded as a matter of law it did not have authority to fix a state-wide minimum well allowable for oil wells in the state.
The answer of the defendant commission to this petition for review ‘ admitted that the hearing had been had and the order had been made as alleged; denied that an order had been in effect providing for a state-wide minimum well allowable of 20 barrels per day; denied that the order denying the allegations was based upon evidence and alleged certain statements. of the petition were merely conclusions as to the proper construction of the law. The answer ffirther alleged the only matter before the court for consideration was the correct-, ness or incorrectness of defendant’s interpretation of the powers given it under G. S. 1945 Supp. 55-602 to 55-606, inclusive.
A petition for rehearing called attention to the arguments that had been made at the time of the original hearing. The order denying-' it contained no new matter. The trial court found the decision of the defendant that it did not have power under the provisions of G. S. 1945 Supp. 55-602 to 55-604, to make such an order as asked' in the oral application, was erroneous and the commission had authority to establish a minimum daily allowable for oil wells in Kansas of 25 barrels per day on wells capable of producing that amount. The final judgment was that the decision and order of the commission should be set aside.
The defendant has appealed from that order. The specifications of error are that the district court erred in holding that the commission had authority under G. S. 1935, 55-601 and G. S. 1945 Supp. 55-602 to 55-606, inclusive, to establish a state-wide minimum allowable of 25 barrels per day for oil wells in the state, and in setting aside the order denying the oral application to amend the general rules providing for a minimum allowable of 25 barrels per day for the reason given.
The term “state-wide minimum daily allowable” for oil wells was used throughput the pleadings, in the briefs and in the journal entry of judgment. It is clear from the entire record that all parties and the court intendéd that such words should mean “minimum daily allowable of 25 barrels per day in prorated pools.”
The commission has in its rules and regulations given certain words and phrases a meaning peculiar to the administration of the statute. Some of these will be set out here so the readers not familiar with the oil business and its regulations will not be confused. They are as follows:
“Allowable shall mean the amount of oil authorized to be produced by order of the Commission.
“Correlative rights shall mean that each owner or producer in a common source of supply is privileged to produce therefrom only in such manner or amount as not to injure the reservoir to the detriment of others or to take an undue proportion of the oil or gas obtainable therefrom, or to cause undue drainage between developed leases.
“Minimum pool shall mean every oil producing pool located in this state which has an average well size óf less than fifteen barrels per day.
“Minimum well shall mean any well which has a productivity of fifteen barrels or less.
“Productivity 'shall mean the index to the daily productive ability of individual wells and pools as of the date tested, which is established as herein provided for .the purpose of determining relative productive capacities but not actual or continuing productive abilities.
“Proration shall mean the regulation of the amount of allowed production foi; the purpose or purposes of preventing waste, undue drainage between developed leases, unratable taking or unreasonable discrimination as between operators, producers and royalty owners, within a common source of supply, or unreasonable discrimination in favor of any one pool as against any other pool in this state.
“Reasonable market demand shall mean the demand for oil produced in Kansas for reasonable current requirements for current consumption and use within and outside of the state. Such demand is equal under normal conditions to the rate of production at which neither withdrawals from nor additions to stocks of crude oil of Kansas origin in storage occur; that'is,, the amount of crude petroleum which must be processed to satisfy current rates of consumption.”
The commission in denying the application wrote a rather detailed memorandum opinion. This opinion was filed with the" rest of the proceedings in district court and is part of the record here. It is of interest to us in determining what the commission considered on the oral application.
We learn from it that the commission makes a practice of meeting during the latter part of each month to determine the market demand for oil in the state and to make the allocation and proration orders for the next month. The statute requires that they shall be made “currently.” In its proration order for January, 1943, the commission provided that due to the war emergency exception should be made in its general rules to the extent that no well capable of making the same should be assigned a daily allowable of less than 20 barrels. This was continued in the February and March, 1943, orders. In the April, 1943, order the minimum assignment of allowable was put at 25 barrels. This was carried in each proration order until the one of March, 1946, when it was again put at .20 barrels. This action of the commission brought on the' application we are considering.
First, we shall take note of the statute providing for review of orders of the state corporation commission in oil proration matters. This appears in G. S. 1945 Supp. 55-606. It provides that any action for review of any order, rule or regulation of the commission may be brought against the commission in the district court of any county of the state wherein the property affected is located; that before any such action may be brought a rehearing must be filed and denied by the commission; that the action may be brought by any person aggrieved whether or not such person was the applicant for rehearing; that any rule, regulation, order or decision of the commission may be superseded by the district court upon such terms as it may deem proper; that in any such action an abstract of the record of all evidence and proceedings before the commission shall be filed by the complaining party and a counter abstract may be filed by the commission or any other interested party; that the district court may if it deems necessary remand any such action to the commission with the direction that it be further investigated; that after making further investigation the commission may change, modify or set aside the rule, regulation, order or decision;,that the courts shall not be bound by any findings of. fact made by the commission; that the authority of the court shall be limited to a judgment affirming or setting aside the regulation, decision or order of the commission and appeals to the supreme court may be taken from the judgment of the district court as in any other civil actions.
Plaintiffs brought this action for review under the above statute. It will be noted the original application before the commission was oral. No written application was filed. At the outset of the oral argument before us the commission called our attention to the fact the plaintiffs had in their counter abstract presented the oral testimony taken before the commission. The commission, in a written motion, asked,us to strike this from the record because the order was not based upon evidence but upon its consideration of the statutes. We passed this motion for consideration with the merits and proceeded to hear the oral argument.
The arguments of both parties bring us to a somewhat critical analysis of the statute. The first proration statute was chapter 226 of the Laws of 1931. Section 1 of that chapter prohibited the production of crude oil in this state in such a manner as to produce waste. That section is still the law of this state. It is G. S. 1935, 55-601. The following sections of that act defined waste “to include underground waste, surface waste, and waste of gas energy,'and waste incident to the production of crude oil or petroleum” and provided for proration of the production of crude oil within the various oil pools of the state, but not between pools. There was a proviso in the statute that no power granted in the act should apply to wells from which the daily production of crude oil was less than 15 barrels per day.
Chapter 214 of the Laws of 1933 amended section 2 of chapter 226 of the Laws of 1931 (being R. S. 1931 Supp., 55-602) by providing that the term “waste,” in addition to its ordinary meaning, should include economic waste, underground waste, surface waste and waste of gas energy and waste incident to the production of crude oil, that is, it added economic waste to the definition. There were other amendments to the power of the attorney general but they do not concern us here.
In 1939, by chapter 227 of the laws for that year, a comprehensive program for regulating the production of crude oil in the state was enacted. For the first time provision was made to regulate production of oil between pools on a state-wide basis (G. S. 1945 Supp., 55-602 to 55-606 and 55-6096). G. S. 1935, chapter 55, article 6, as so amended by the 1939 act, constitute the statutes under which the corporation commission has been regulating the production of oil in this state since 1939.
G. S. 1945 Supp. 55-602, redefined the term “waste” and to the definitions given in chapter 214 of the Laws of 1933 added “waste of reservoir energy.” In addition that section provided that the state corporation commission should have authority to make rules and regulations for the prevention of waste.
Section 55-602a validated all rules of the commission that were in effect at the time chapter 227 of the Laws of 1939 became effective.
Section 55-603 first set up three conditions that must exist before the statute should affect any pool, that is, it must appear that full production from that pool could only be obtained under conditions—
“(a) Constituting waste as herein defined, or (b) independently of waste, under conditions injurious" to the respective correlative rights of the producers therein, or (a) under conditions unreasonably discriminating against other pools in the state . . .”
That is, before the act should apply to any pool it must appear that full production could not be had without one or more of those 'three things happening.
The section then provided that any person having the right to drill into and produce oil therefrom (the “therefrom” refers back to the viord “pool” in the early part of the section) might take “therefrom [referring again to the pool to which reference is made in the beginning of the section] currently” no more than that proportion of all crude’ oil which might be produced therefrom currently without waste, or without such discrimination, which the productivity of his well or wells considered in connection with the acreage reasonably attributable to each thereof bears to the productivity of all wells therein considered in connection with the acreage reasonably attributable to each thereof. That is, in a proratable pool the commission must first ascertain how many gallons per day the well would produce if operated at its full capacity; then how much the pool would produce if all wells were operated at their full capacity; then should ascertain how much the pool could produce without waste or unreasonable discrimination or injury to correlative rights, and allow the well to produce only that proportion of its full capacity which the amount it could produce without the above three conditions happening bears to the amount that the pool could produce without those things happening, always considering the acreage attributable to a well. For illustration, assume that a pool had one well with a productivity of 50 barrels per day and another with a productivity of 200 barrels per day, each having 20 acres attributable thereto, and assume this pool’s allowable was 100 barrels per day. The 50-barrel well’s percentage of the aggregate pool productivity would be 20 percent, and that of the 200-barrel well would be 80 percent. The proration therefore upon a percentage basis would be 20 barrels to the 50-barrel well and 80 barrels to the 200-barrel well. The provision of the statute was a definite limitation upon the amount that might be taken from any well drilled in a proratable pool.
The section then provided that it should be the duty of the commission to so regulate the taking of crude oil from any pool within the state as to prevent waste or the inequitable or unfair taking of crude oil therefrom, that is, from the pool, by any person; to prevent unreasonable discrimination therein, that is, in the pool, and further provided that it should be the duty of the commission to prevent unreasonable discrimination in favor of any one pool as against any other pool in the allocation of production among such pools.
This is a clear statement of legislative intent that the provisions as to waste, inequitable taking and discrimination should apply to wells within prorated pools.
That section then contained the following proviso:
“That nothing contained in this section dr any other provision of this act shall authorize the reduction or limitation of the full production of crude oil from any pool in this state whose average well size is fifteen barrels per day or less, but the commission may require ratable taking by any purchaser therein from the properties with which it-may be connected.”
This provision has never been interpreted by the court but it has been construed by the corporation commission to mean that it has no jurisdiction whatever to limit production in any pool where the average production of the wells is 15 barrels per day or less. It has never endeavored to limit production in such pools in any way. It has, however, required “ratable taking” by any purchaser in such pool. That is, it has required pipe lines taking oil from such a pool to take a certain amount from all wells in the pool.
Section 55-604 provided first that the commission was given authority over all matters involving application and enforcement of the act and to make and enforce rules, regulations and orders for the prevention of waste, as defined in the act, and for enforcing the' provisions of the act. Subdivision (A) of that section then provided that “without limiting the generality of the foregoing powers and duties the commission shall have the further power and authority hereinafter set forth.” That is, to apply and enforce the act and'to make and enforce rules to prevent waste and to enforce the other provisions of the act, the commission should have the further power and authority thereinafter set forth.
Subdivision (B) sets forth these and provides that the commission should determine the reasonable market demand for crude oil produced in the state and in making such determination the commission should take into consideration “among other proper factors”:
“(a) The estimated consumer demand; (b) offers to purchase and the good faith thereof; (c) the price or prices offered in relation to the prevailing price of crude oil generally in the state. . . .”
Then follows a proviso that the commission shall not have authority to fix the price of crude oil. Thus, there are three elements besides other factors the commission is directed to consider in fixing the “market demand” for oil. The statute does not state what the other proper factors are. Such are left to the discretion of the commission. Market demand is the first factor necessary to be ascertained by the commission in any plan of proration.
This section also provides that the commission shall allocate among the pools in the state the amount of oil that might be produced therefrom without waste, without impairment of correlative rights, and without unreasonable discrimination between pools, and that in making such allocation the commission should take into consideration “among other proper factors” — nowhere in the entire act does it appear as to what the proper factors should be — and give due and proper weight to the following:
“(d)iThe prevention of waste in any pool; (e) the quantity of oil that will be produced from nonprorated pools; (/) the ratio of the daily productive capacity of each prorated pool to the total daily productive capacity of all prorated pools in the state.”
Then follows a complicated formula for ascertaining this ratio, and a proviso as follows:
“Provided, however, such reasonable adjustments may be made with respect to any pool or pools as the commission may find to be necessary under the practical circumstances; (g) the availability of pipe lines and other means of transportation; (h) the reasonable ability of each producer to satisfy his or its desire for oil produced in this state without concentrating purchases in any selected pool or pools, and the availability of oil to the various purchasers by exchange with or purchase from other purchasers of oil produced in this state; all to the end that so far as possible no producer or group of producers and no purchaser or group of purchasers shall have or be given any special favor or privilege, that the development and conservation of the oil resources of this state may be encouraged, and that the general welfare and prosperity of oil producers, royalty owners and the general public in this state may be promoted. Such determination and allocation shall be made from time to time as circumstances may require.”
It will thus be seen that for the business of allocating production between pools the legislature directed the commission to consider five factors, but in considering those five factors the commission was directed to adjust productive capacities by such method as it might find necessary. The statute also provides that the allocation should be fair and equitable, and that reasonable adjustments should be made; that these adjustments should be such as “the commission might find to be necessary under the practical circumstances”; that the whole affair should be managed so that “the development and conservation of the oil resources of this state” might be encouraged and so “the general welfare and prosperity of oil producers, royalty owners and the general public” might be promoted. Certainly these-are sweeping and broad directions and grants of power to the commission as to how the entire business of regulating oil production should be carried on.
■ The next subdivision of the section is enumerated as (C). It sets up the manner in which the production of oil in each pool among the wells therein should be prorated. It is the first time the word “prorate” is used in the statute with reference to a well. The section provides that the commission in prorating the production allowed “shall take into consideration” among such other factors as it may find proper — nowhere in the statute does it appear what the other "factors must be — “and give due and proper weight to” (certainly the weight to be given these factors is a matter of the discretion of the commission):
“(a) The productivity of each such well as determined by such reasonable method as the commission, shall adopt for the pool; (b) the acreage of each well owner which is reasonably attributable to each of his wells; (c) the efficient utilization of the reservoir energy in the pool.”
Then follows the proviso:
“Provided, That the allowable production of any well in any prorated pool shall not be' reduced below fifteen barrels per day.”
Both sides agree the above proviso means that no matter what the calculation as set out in the foregoing sections ■ of the statute should determine as- the allowable production in any well, it should never be reduced below 15 barrels a day.
The commission analyzes the statute about as it is analyzed in the memorandum opinion of the commission and argues that it may assert the general power granted it by the legislature only in the manner in which the legislature provided for the exercise of such power. It cites Phoenix Ins. Co. v. Welch, 29 Kan. 672; State v. Crawford, 104 Kan. 141, 177 Pac. 360; and Wichita R. R. v. Pub. Util. Comm., 260 U. S. 48, 43 S. Ct. 51, 55, 67 L. Ed. 124.
Stated succinctly the argument is that the legislature provided in the proration act that production should be allocated in each prorated pool amongst the wells therein and did not provide explicitly for fixing any general minimum allowable except the provision that the allowable for no well should ever be lower than 15 barrels daily, and hence the commission had no authority to make the order asked for in the oral application. Decisions are cited that the effect of a proviso is to limit the matter that has preceded it in the statute.
' The plaintiffs, on the other hand, point out the first provision in the act that waste shall be prohibited, the broad definition of waste, then the further broad grants of power, vesting a wide discretion' in the commission in enabling it to achieve the real objective of the act, that is,-the prevention of waste, and argue that if the commission should conclude on substantial competent evidence that the fixing of a minimum allowable at a higher figure than 15 barrels would prevent waste, then it would have power to make such an order.
It appears that the situation which brought on these proceedings was a dispute between parties who owned wells with higher productivity on one hand and those who owned wells of á somewhat lower productivity on the other.
• The commission’s policy with reference to that dispute can best be stated by quoting from the memorandum opinion, as follows:
“The first prohibition in the statute is one against waste. The- Commission is given power to make rules to enforce this prohibition. The Commission, certainly has no power or discretion to set aside this prohibition, or modify it, but can only make such orders in this regard as will tend to effectuate it.
“The next prohibition in the statute is one against full production from a common source of supply under certain conditions. When full production cannot be taken without waste, without injury to correlative rights or without discrimination between pools, the statute prohibits any producer from taking more than his proportionate share. The words of the statute are that under these conditions no producer can take more than that proportion which the productivity of his wells bears to the productivity of all wells in the pool, the proper acreage factor being taken into consideration. This is a ceiling on any producer’s right to produce. The Commission is given power to make rules to effectuate and enforce this prohibition, not to weaken or lessen or obviate it. Under proper circumstances, perhaps to prevent waste, the Commission may have authority to limit the amount of a producer’s take to less than his proportionate share. But to take part of the proportionate share of one producer and give it to another producer would not be enforcing and carrying out the provisions of the Act nor would it be carrying out a declared intent of the Act that so far as possible no producer or group of producers shall have or be given any special favor or privilege.”
Later in the opinion it was said:
“The legislature further recognized that in any pools the production of no more than 15 barrels daily from any well could not cause much harm in the way of waste, if any, nor substantially affect the proportions producible by other wells, and that loss of otherwise recoverable oil might result if wells were abandoned when they were of such size. It therefore provided that the allowable production of any well should not be reduced below 15 barrels a day. .It is apparent, we think, that the purpose of putting these limitations in the law was to prevent premature abandonment of wells. The legislature, of course, has complete authority to determine whether the production of oil and gas shall be regulated at all, and, if so, to what extent. It has exercised that authority and has declared that regulation is necessary, how it shall be exercised, and the point beyond which it shall not go. It could have fixed this point at 10 barrels or 25 had it determined that under the conditions then existing, such limitation was desirable. The Commission, however, is bound by the legislative policy declared in the law.”
Among other allegations of the petition for review we find the following:
“Plaintiffs further allege that the denial of the application of these plaintiffs to establish a minimum allowable for oil wells in Kansas of 25 barrels per day results in and causes ‘economic waste’ and underground waste in the oil pools in Kansas; that the economic development, production, and conservation of the oil resources of Kansas require the establishment of a minimum allowable of 25 barrels per day on oil wells in Kansas.
“12. Plaintiffs allege that the denial of the application to establish a minimum daily allowable of 25 barrels and the decision and order of the defendant commission made on September 27, 1946, as aforesaid will result in great and irreparable injury and damage to these plaintiffs and in a loss of the natural resources of this state due to the abandonment of wells which will result therefrom ; that said decision and order will likewise discourage instead of encourage development and conservation of the oil resources of this state and will be detrimental to the general welfare and prosperity of oil producers and royalty owners and the general public in the state of Kansas.”
If the plaintiffs should be able to present to the commission substantial competent evidence that the dire results pleaded above would follow from a denial of the application, then it would be strange if under the broad and sweeping grant of power by the state the commission would be powerless to act. In Bennett v. Corporation Commision, 157 Kan. 589,142 P. 2d 810, we said:
“We find no case directly in point, on the facts. However, some underlying principles are well established. First, in the absence of arbitrary or capricious action or abuse of discretion by executive or administrative officers, courts do not interfere with the performance of their acts which are discretionary in character or involve the exercise of judgment.”
Force is given this argument by the fact that rules and regulations of the commission are never res judicata. Should bad consequences follow from such an order being made the commission might change it to meet conditions as they exist.
We are expressing no opinion on the wisdom of making such an order. , That is a matter for the commission and its experts with their information and training and ability to investigate all phases of the business. The matter with which we are dealing is the question of power and not the application of it.
In its memorandum opinion the commission said, in part:
“Evidence has been offered before the Commission that many operators cannot finance their drilling operations and cannot afford to invest the cost of drilling a well unless they can be assured in advance that regardless of the percentage factor which may become applicable to the particular pool in which the well may be drilled they will be allowed to produce at least 25 barrels of oil per day from such well, if the well can produce that amount. With the increased costs of material and labor, and the greater depths at which oil is now being found, we have no doubt that such a situation exists in many instances. Certainly a remedy should be provided for such a situation. If the matter of establishing the standards by which to determine the proportion of allowable production which each producer was entitled to take were one lying clearly within the jurisdiction of the Commission under present law, this evidence would have a strong persuasive force in determining Commission policy. The majority of the Commission are convinced, however, that under present law the Commission has no such discretion, and that the remedy must be sought in the legislature.
“The legislature cannot delegate the authority to define state policy or to set up the standards by which it shall be determined.
“Our statute does establish the standards by which the Commission’s actions must be controlled. The áuthority to make rules cannot go beyond the legislative standard, ^or modify it, or ignore it. The standards set up in the proration law are simple and explicit. Waste is defined and prohibited. Full production must be limited under certain named conditions and when limited no producer can take more than his proportionate share. The authority of the Commission is limited to carrying out this legislative policy. In the opinion of the majority of the Commission, the Commission has no present authority to establish a state-wide minimum allowable for oil wells in this state.”
The commission concluded from that portion of the proration law that it has no power to fix a minimum 'allowable for an individual well in any of the prorated pools of the state, but that each well must be permitted to produce exactly on the ratio as above stated with the one exception that if the ratio would lead to cutting any well to production of less than 15 barrels per day, the ratio shall not apply to that well and 15 barrels production shall be permitted.
Certainly the question is not free from doubt. If the provisions of the statute just referred to must alone be considered then we would see no escape from the commission’s construction of the law. But these provisions must be construed in connection with the whole purpose of the act and with the broad provisions with reference to the commission’s power, all of which have been heretofore set out.
Suppose the statute did not contain the provision that the allowable production from any well in a prorated pool shall not be placed at less than 15 barrels, but upon a clear showing by competent evidence it appeared that unless wells were permitted to produce as much as 15 barrels per day, they would have to be prematurely abandoned, with great resultant waste, with permanent loss of oil which would never be recovered. Could it be said in such a case that the commission would be powerless to fix a minimum allowable? To so hold would defeat the very purpose of the act. The mere fact that the legislature said that the allowable production shall not be reduced below 15 barrels certainly does not rob the commission of the inherent power which it has in effectuating the primary purposes of the act.
While the immediate question before us relates to an order affecting individual wells in prorated pools throughout the state, the commission would have no power to fix a minimum allowable within any one pool, if its interpretation of the statute is correct. It would have to permit each well to produce exactly its ratable share under the formula prescribed with the one exception that production could not be reduced below 15 barrels.
It may well be that it would be more difficult to make a showing that would support an order fixing the same minimum allowable for individual wells in all the prorated pools of the state. It may be that the evidence would require a different minimum allowable for different pools in order to prevent waste or otherwise to effectuate the purposes of the act in the public interest. If the commission has power to make an order, affecting any one prorated pool it would . likewise have the same power with reference to every prorated pool and the effect would be state wide as to prorated pools. Such ques tions go to matters of evidence of proof, rather than to the question of the commission’s power which is here raised.
There are two statutory provisions with reference to 15 barrels which should not be confused. One of them is the provision found in section 55-603 which is, in substance, that no pool in the state shall be subject to proration where the average well size in the pool is 15 barrels per day or less.' That provision removes certain pools entirely from proration. All the- commission may do in such pools with reference to ratable taking is to provide that any purchaser therein must take, ratably from the properties with which such purchaser is connected. One result of this provision is that in some pools there are large wells which are not subject to proration at all and may produce at full capacity because there are enough small wells within the pool to reduce the average well size of the pool to 15 barrels or less. This may lead to some anomalous situations, but with those we are not here concerned.
The second provision with reference to 15 barrels is the one here involved appearing in section 55-604, that in any prorated pool the allowable production of a well shall not be reduced below 15 barrels per day. It is clear that if the eommisison should fix a minimum of 20 barrels, for instance, for wells in prorated pools, such action would not affect the classification as between pools subject to pro-ration and those not subject to proration. That classification is definitely made by the statute itself. Pools where the average production is 15 barrels or less would still be nonproration pools while wells where the average is aboye 15 barrels would still be pools subject to proration. Of course, if there should be no well in a pool subject to proration which could produce more than 20 barrels per day, then all wells would have to be permitted to produce at capacity. But any well in a pool subject to proration which produced more than the 20 barrels would be subject to proration under the formula properly prescribed for the pool. In any event, we are not presented here with any issue of classification of pools as being subject or not subject to proration.
We hold that in the exercise of the broad powers granted to the corporation commission in the oil proration law for the purpose of prevention of waste as defined by the act, or for protection of the correlative rights of producers within prorated pools, or the prevention of inequitable or unfair taking of crude oil by any person from any pool, or the prevention of unreasonable discrimination between producers within a pool or between pools, the commission has power to adopt a general rule or. regulation, upon sufficient • showing by substantial, competent evidence that such action is necessary in order to effectuate the purpose of the proration law as above stated, fixing a minimum allowable production for individual wells within the prorated pools of the state, provided that in- fixing such a minimum allowable, the allowable production of any well in any prorated pool shall not be reduced below 15 barrels per day.
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The opinion of the court was delivered by ■
Thiele, J.:
This was an action for a divorce and from a judgment in favor of plaintiff the defendant appeals.
Plaintiff’s petition charged extreme cruelty and gross neglect of duty. Defendant’s answer was a general denial. At the trial, defendant demurred to plaintiff’s evidence, but offered no evidence in his own. behalf. The trial court overruled the demurrer and made extended and detailed findings of fact and concluded as a matter of law that plaintiff was entitled to a divorce on the grounds of extreme cruelty, and it rendered judgment accordingly. The defendant filed his motion that certain findings of fact be set aside as not corroborated as required by statute; that the conclusions of law be set aside for the reason the evidence on which they were based was not corroborated; and for a new trial. This motion was denied and defendant duly perfected his appeal, his specification of errors covering the matters hereafter discussed.
Three general propositions are presented for our consideration: (1) That the facts proved do not constitute extreme cruelty; (2) that the testimony of plaintiff as a witness in her own behalf was not corroborated by that of another witness, as required by G. S. 1935, 60-1509; and (3) plaintiff’s evidence showed that the parties had separated in September, 1944, had thereafter reconciled their differences theretofore occurring and lived together as man and wife for two days in December, 1944, and that her testimony showed no subsequent acts of extreme cruelty, corroborated as required by the above statute; that the cohabitation in December,, 1944, was a condonation of any act of extreme cruelty there may have been prior to December, 1944, and there was no evidence of any subsequent act sufficient to revive prior acis, hence she failed to prove a cause of action and his demurrer should have been sustained.
The findings of fact cover many matters not material to the present inquiry. We have examined them and the evidence as abstracted and conclude that the findings are supported by the evidence. It is not necessary that this opinion be encumbered by a detailed statement, but the evidence disclosed the following: Defendant repeatedly charged his' wife with , being filthy, with coming from a filthy family, with promiscuous sexual relations, with being responsible for the death of her brother who was killed in military service, and that her mother was insane. None of these matters were true, and defendant said them to hurt plaintiff’s feelings. Although not entirely- clear; perhaps all of these matters had occurred prior to September, 1944, when the parties separated. Later and in December they effected some sort of a reconciliation and lived together for two days, when they again parted. In the spring of 1945 defendant brought a separation agreement to her, and he then talked to her about her brother’s death, and told her that if she had not been sinful her brother would not have been / killed. After December, 1944, defendant came to the home of plaintiff’s father and said the home was filthy; that his pigs lived in a better pen than her father had raised her in, and that her mother-, who had died, was better off. Appellant contends however that none of the above testimony was corroborated. Another witness, who had known the plaintiff and defendant for some years and who had visited at their home, testified that it was clean and well kept; that the defendant came to see her after the last separation and tried to get some of the plaintiff’s things, and told witness that if anyone went to court to help his wife he was sure going to make it hard for them; that plaintiff’s family stole from him; that the family lived like pigs and lived in a hovel compared to his pigpen. A sister of plaintiff testified that after January, 1945, defendant talked with her about himself and the plaintiff' and said plaintiff was “running around” at Parsons and that it was plaintiff’s fault and that if she had not been so sinful her brother would not have died. We need not review the findings or evidence further.
Appellant 'devotes little space to his argument that the acts charged do not constitute extreme cruelty. He contends that the acts were only occasional bursts of anger and not sufficient, citing Rowe v. Rowe, 84 Kan. 696, 115 Pac. 553. This court long ago recognized that uttering words without justifiable cause and for the purpose of inflicting pain' constituted extreme cruelty. (Masterman v. Masterman, 58 Kan. 748, 51 Pac. 277. See, also, Williams v. Williams, 106 Kan. 751,189 Pac. 910.) The record discloses that defendant was guilty of acts constituting extreme cruelty both before and after the claimed condonation by reason of the cohabitation in December, 1944, and that the testimony of plaintiff with respect to the acts above mentioned was corroborated. It makes no difference that plaintiff may have testified to acts, which the trial court found, and as to which there was no corroboration. Putting them to one side, there still remains corroborated testimony of acts sufficient to justify the judgment. We shall not devote any time to the claimed condonation. Whatever forgiveness there may have been when marital relations were reassumed in December, 1944, it appears that other acts of cruelty occurred thereafter. -The commission of these acts had the effect of reviving the former misconduct. Mecke v. Mecke, 126 Kan. 760, syl. ¶ 2, 271 Pac. 275.) Even though the first acts were not revived by the second ones, the second ones alone were amply corroborated and justified the judgment rendered.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
In an original proceeding in habeas corpus, the petitioner seeks release from the state penitentiary where he is serving a sentence for burglary and for grand larceny. He was convicted and sentenced in Coffey county in January, 1944, on two separate counts, the first being second degree burglary, and the second, grand larceny; the sentence in each instance being for a term not less than fifteen years, the sentences to run concurrently.. He was sentenced under the provisions of the habitual criminal act (G. S. 1945 Supp. 21-107a). He was represented by Mr. Ray S. Pierson, a reputable attorney in good standing; and upon arraignment entered his plea of guilty.
Petitioner’s principal contention is that the prior convictions of felony were set up as a third count in the information; that he was arraigned upon the information and thereby subjected to trial twice for the same offense. This contention is not borne out by the record. The information is not .very well drawn, but it discloses in “Count 1” a charge that the defendant “did then and there unlawfully enter in the nighttime a store known as Jone’s store located at Lebo, Coffey county, Kansas, in which store there was merchandise,-with the intent to steal and commit a felony therein,”, and in “Count 2” that the defendant “did then and there unlawfully and feloniously take and carry away money and goods of a value of more than twenty dollars, said money and goods being taken from the Jone’s store at Lebo, Coffey county, Kansas.”
Following Count 1 and Count 2 appears this paragraph:
. “That on or about December 2, 1935, in the County of Coffey, State of Kansas, one Leonard Sutton was convicted in the District Court of Coffey County, Kansas, of Burglary in the third degree, and that on or about June 19th, 1939, one Leonard Sutton was convicted in the County of Lyon and State of Kansas, in the District Court of said County and State of the crime of Grand Larceny, and that on or about the 5th day of November, a.d. 1941, one Leonard Sutton was convicted in the District Court of Coffey County, -Kansas, of the crime of Grand Larceny, each of said crimes constituting felonies.”
From the journal entry, it appears only that the defendant pleaded guilty to the offense contained in the first count and that he pleaded guilty to the offense contained in the second count. On each of these two counts he was then given a sentence of not less than fifteen years, the sentences to run concurrently. Petitioner does not now contend that he was not convicted of the previous offenses as stated in the information. The respondent attached to his answer a copy of the report from the Federal Bureau of Investigation, U. S. Department of Justice, in which numerous other convictions in addition to those above mentioned are listed.
Certainly it cannot be said that the rights of the defendant were prejudiced by his being apprised in the information of the fact that the state was aware of the prior convictions. On the contrary, he and his counsel were thus given notice in advance of the state’s knowledge of the prior convictions and the pleas of guilty were entered after such notice.
The validity of .the habitual criminal act, repeatedly upheld (Cochran v. Simpson, 143 Kan. 273, 274, 277, 53 P. 2d 502; Glover v. Simpson, 144 Kan. 153, 58 P. 2d 73; Hutton v. Amrine, 153 Kan. 436, 437, 111 P. 2d 540) is not here attacked. The pertinent provision of section 21-107a, G. S. 1945 Supp., is as follows:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and ij convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. . . .” (Italics supplied.)
The sentence here imposed of confinement in the penitentiary for a term of not less than fifteen years was in harmony with the act.
No grounds for granting the writ have been shown. The writ is denied. | [
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The opinion of the court was delivered by
Fromme, J.:
The questions presented by this appeal concern the extent and nature of a private right-of-way easement reserved by the grantor or seller in a real estate purchase agreement. The real estate was purchased for the construction of a high-density apartment complex. The apartment complex was built. Disagreement then arose and this action was filed by the grantor. The grantor, Aladdin Petroleum Corporation, was largely owned and controlled by George H. Bruce, its president.
The names and interests of the defendants in this action are confusing. Gold Crown Properties, Inc. is the purchaser-grantee named in the real estate purchase agreement. It is a wholly owned subsidiary of Gold Crown, Inc. The real estate was conveyed by warranty deed to Gold Crown, Inc., and later transferred to Presidential Woodgate, a partnership.
Presidential Woodgate is a general partnership consisting of Gold Crown, Inc., Presidential Realty Corporation and M. Shapiro and Son, Inc. Presidential Woodgate is now the owner of the real estate and it constructed and owns the apartment complex. In order to avoid any confusion of parties in discussing the case we will refer to Gold Crown Properties, Inc., Gold Crown, Inc., and Presidential Woodgate, the present owner, as the grantees both individually and collectively.
The additional defendants in the case are Steve Schuetz, president of Gold Crown, Inc., and the vice-president of Gold Crown Properties, Inc., and Commerce Mortgage Company, a Missouri corporation which financed and now holds a construction mortgage on the real estate and apartment complex.
So much for the parties — we now turn to the facts giving rise to the claims of the grantor, Aladdin Petroleum Corporation. The grantor was the owner of a 20 acre tract of land in Wichita, Kansas, described as the East half of the Southeast quarter of the Southwest quarter of Section 1, Township 27 South, Range 1 East of the Sixth P. M. It was bounded on the south by 21st Street. There were no access roads on the west, north and the east of this tract. The grantees wanted to acquire the south half of this tract to construct the apartment complex. The grantor requested an easement or easements for ingress and egress to the north 10 acres which he did not sell. When the contract for sale of the south 10 acres was being negotiated the parties agreed that two rows of trees that were growing along the west side of the land being sold should be preserved. It was agreed an easement between these two rows of trees from 21st Street north to the north 10 acres would be reserved by grantor for ingress and egress. The parties further agreed if the design of the apartment complex allowed (as it eventually did) a similar easement would be reserved by grantor along the east 60 feet of the acreage being sold. When the contract was drawn no measurements had been made and none of the parties knew how much land was between the west property line and the inside row of trees. All parties agreed that 60 feet should cover' the space from the west property line to and including the two rows of trees.
The contract when signed included the following paragraph:
“It is further agreed between the parties hereto that in the event the sale of the property described in paragraph one above is consummated Seller shall reserve the right of ingress and egress along and across approximately the west 60 feet of said property, which easement shall be between the two rows of trees running north and south along the west side. Said easement shall be a perpetual easement and right-of-way for the benefit of thosfe] parties desiring access to that property described in paragraph 1 above. In addition thereto, Seller hereby reserves a similar easement along the east 60 feet of the property described in paragraph I above. Provided, however, that in the event Buyer is unable to design a plot plan for the property described in paragraph 1 above to accommodate 184 garden apartments and 41 townhouse apartments then said easement along the east side of said property shall cease and determine. Said easements reserved by Seller shall not be effective and shall cease and determine if the property described in paragraph 7 above is utilized and/or zoned for industrial use.” (Emphasis supplied.)
The parties agree that reference in this paragraph to “property described in paragraph 1 above” actually refers to the north 10 acres which grantor continues to own.
It was understood that zoning would have to be changed to permit the building of the apartment complex. A plat was submitted to the Wichita-Sedgwick County Metropolitan Area Planning Department by an engineering firm employed by the grantees. The plat, as originally drawn, referred to the 60-foot easements described in paragraph 8 of the contract. The engineering firm was advised by the planning department that “The reference to the private ingress-egress agreement and easement shall be deleted from the plattors text.” Copies of the letter were sent to grantor and grantees. The reference to the private easements was deleted and the plat detailing the location of the apartment complex was resubmitted and approved by the planning department. George H. Bruce, for the owner, signed the application for zoning change.
There is a conflict in the evidence as to just what happened when the sale was finally closed and the deed was delivered to the grantees. A separate agreement reserving the easement was never drawn. The deed of conveyance erroneously included the entire 20 acres and made reference in a general way to easements of record. However, the contract had not been recorded.
After the deed had been delivered and construction had begun, disagreements arose between grantor and grantees. The error in the deed of conveyance was discovered. The grantees began building carports on the easement between the two rows of trees. Approximately the west 20 feet of the easement was being covered by permanent carports to be used by the persons living in the apartment complex. Between the carports and the inside row of trees a strip 24 feet in width was provided for ingress and egress. It was designated on the plat as a fire lane easement. A fire lane easement of that width was required by the Wichita building code. By separate oral agreement the grantees were to use an additional acre of the land retained by the grantor for use as a storage yard during construction. Grantor claimed that grantees had failed to fence the one acre tract as agreed and were occupying additional portions of the land which they did not own and which they refused to vacate.
The present action was filed by grantor and all claims were tried to the court. Detailed findings of fact and conclusions of law were made by the trial court. The grantor now appeals only from that portion of the judgment which deals with the easements. Its claim is for specific performance of paragraph 8 in the contract and for an injunction against the building of carports upon the easements.
In the journal entry the court held:
“A. The plaintiff, Aladdin Petroleum Corporation, is hereby granted an easement for ingress and egress which easement shall be 44.44 feet in width and is legally described as follows, to-wit:
“Beginning at a point 12.5 feet east of the northwest comer of Lot 1, Block 1, Woodgate Second Addition to Wichita, Sedgwick County, Kansas, thence south 663.86 feet, thence east 44.44 feet, thence north parallel with the west line of said Lot 1, 663.86 feet more or less to a point on the north line of said Lot 1, 56.94 feet east of the northwest comer thereof, thence west along the north line of said Lot 1 to point of beginning.
“Plaintiff, Aladdin Petroleum Corporation is hereby granted a further easement for ingress and egress which easement shall be 44.78 feet wide and is legally described as follows, to-wit:
“Beginning at a point 9.33 feet west of the northeast comer of Lot I, Block 1, Woodgate Second Addition to Wichita, Sedgwick County, Kansas, thence south 664.35 feet, thence west 44.78 feet, thence north parallel with the east line of said Lot 1, 664.35 feet more or less to a point on the north line of said Lot 1, 54.11 feet west of the northeast comer of said Lot 1, thence east along the north line of said Lot 1 to the point of beginning.”
The first description of easement includes the entire area between the two rows of trees referred to in paragraph 8 of the con tract. The second description includes a like area on the east side of the 10 acre tract sold to grantees.
The court made additional findings and conclusions. (In its findings and conclusions it refers to the north acreage owned by grantor as the Bruce tract and the acreage sold to grantees as the Woodgate tract.) These findings and conclusions pertinent to this appeal are:
“12. Neither party contemplated that the roadway would be completely unobstructed. Both parties expected parking, although Bruce testified he envisioned parallel parking and S cheatz planned perpendicular parking with carports.
“13. Although the now-infamous Paragraph 8 provides that the easements are for the benefit of the Woodgate tract, it was understood between the parties that the easement was to provide ingress and egress to the Bruce tract. The easements are not exclusive.
“15. The easements were not unrestricted. Their purpose was fully set forth in Exhibit 3 [real estate purchase contract] where it provides that the easements shall be a right-of-way for the benefit of those parties desiring access’ to the Bruce tract.
“16. There is no credible evidence in this case that two roads for ingress and egress, each being 24 feet in width, do not provided reasonable access to the Bruce tract, even if the Bruce tract is developed to its highest and best use — high-density apartments similar to those on the Woodgate tract.
“4. . . .
“Presidential Woodgate (a general partnership) is the owner of the fee and holder of the ultimate title. They have the servient estate. Bruce [grantor] has what is called the dominant estate, and while Presidential Wood-gate may not interfere with the rights of Bruce, yet, as owner, they may still continue to use the property for any purpose which does not frustrate the use for which the easement was reserved.
“5. Use by tenants and others at Woodgate Apartments of the area where the carports are located for perpendicular parking purposes is a reasonable use of the property and is not an unreasonable use and does not unreasonably interfere with plaintiff’s easements.
“Said easements shall be for the use and benefit of the following described real property as the dominant estate:
[Legal description of the Bruce tract was inserted.]
“Said easements shall terminate if the Bruce tract is utilized and/or zoned for industrial use.
“B. The defendants, their tenants and others using the Woodgate Apartments are hereby permitted to use the area covered by the hereinabove described easements. The defendants are specifically enjoined from the use of any portion of the said easement coextensive with the twenty-four platted access and firelane easements as shown on the recorded plat of Woodgate Second Addition to Wichita, Sedgwick County, Kansas for parking and/or any other use which would obstruct the free movement of pedestrian or vehicular traffic and shall take such action as is reasonably necessary to prevent tenants and others from parking thereon, other than temporary service vehicles.”
The grantor-appellant contends that where the trial court has found the parties agreed to an easement for ingress and egress of specific width, and definite boundaries, the owner of the dominant estate (grantor) is entitled to the undisturbed use of the entire way and its use may not be limited by the court to what may be considered reasonable or necessary. Appellant argues that the owners of the servient estate (grantees) may not erect substantial and permanent structures upon an easement for ingress and egress which will deprive the owner of the dominant estate of passage over the entire width of the easement.
The grantees-appellees contend the trial court did not determine that the parties agreed on a definite access way which was to run the length and the width of the easement area. They insist the court concluded that the parties merely agreed to a particular area within which a roadway would be constructed and that because the parties agreed only upon the outer boundaries of the general easement area there was a need for the court to establish a reasonable way within the general easement area, which it did.
The law appears to be settled that where the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite. The expressed terms of the grant or reservation are controlling in such case and considerations of what may be necessary or reasonable to a present use of the dominant estate are not controlling. If, however, the width, length and location of an easement for ingress and egress are not fixed by the terms of the grant or reservation the dominant estate is ordinarily entitled to a way of such width, length and location as is sufficient to afford necessary or reasonable ingress and egress.
In 3 Tiffany, Real Property, § 805, pp. 331, 332 (3d ed. 1939), it is said:
“. . . A specific statement in the grant obviously governs, and such a statement is ordinarily not controlled by considerations as to what is reasonable or necessary. . . .
“If the width is not fixed by the terms of the grant, the grantee is ordinarily entitled to a way of such width as is sufficient to afford reasonable ingress and egress. . . .”
It is stated in 28 C. J. S., Easements, § 75, p. 753:
“If the grant or reservation is specific in its terms, it is decisive of the limits of the easement. On the other hand, where the easement is not specifically defined, it need only be such as is reasonably necessary and convenient for the purpose for which it was created.”
In our present case the agreement for easement was expressed in paragraph 8 of the real estate purchase contract. The right of ingress and egress was established along and across approximately the west 60 feet of said property, “which easement shall be between the two row of trees running north and south along the west side. Said easement shall be a perpetual easement and right-of-way”. In construing this provision it is apparent the west 60 feet of said property was a description of the general area and location of the easement area. The easement itself was limited to the specific area between two rows of trees, which amounted to a practical location of the right-of-way. The court specifically determined the width, length and location of the easements by metes and bounds descriptions and granted the same to appellant. The width, length and location were readily ascertainable by visual perception using the two rows of trees as points of reference.
There was conflicting testimony introduced during the trial in an effort to establish laches and estoppel against the plaintiff. Plaintiff was charged with having acquiesced in the budding of carports and in accepting the 24 foot fire lane easement shown in the plat filed with the planning department in order to close the sale. However, the trial court specifically found: “Under the facts of this case, the plaintiff is not barred by the doctrines of laches and/or estoppel.” It was further urged that the provision in the contract for easements was merged in and controlled by the terms of the deed. The court determined that the defense of merger was not applicable because it was shown the parties intended otherwise. See Webb v. Graham, 212 Kan. 364, Syl. 2, 510 P. 2d 1195.
A cross-appeal by defendants was filed on 'these issues of merger, estoppel and laches and then abandoned, so we have none of these issues before us.
Once 'the trial court determined and granted easements of a definite width, length and location, any additional determination of reasonableness of width was inconsistent with the nature of the easement determined. The determination of a definite easement controls. There still remains, however, the question of whether car ports for parking are a reasonable use by a servient estate under the facts of this case.
It is well settled that the owner of the servient tenement may use the land over which the way extends in any manner which does not reasonably interfere with its use. (Potter v. Northern Natural Gas Co., 201 Kan. 528, 441 P. 2d 802; 25 Am. Jur. 2d, Easements and Licenses, § 89, p. 494; 28 C. J. S., Easements, § 91, pp. 770-771.)
It is stated in 25 Am. Jur. 2d, Easements 'and Licenses, § 89, pp. 494-495:
". . . [A servient owner] has, however, all the rights and benefits of ownership consistent with the easement; the right to use the land remains in him, without any express reservation to that effect, s'o far as such right does not conflict with the purpose and character of the easement. . . . [T]he servient owner may . . . use the way for any purpose, provided he does not interfere with the right of passage resting in the owner of the easement. . . .” (See also 28 C. J. S., Easements, §92, p. 772.)
The trial court in support of its holding that carports should be permitted on the easement Stated:
“2. There is a general rule of law that where parking on an easement unreasonably interferes with the dominant tenement’s right of ingress and egress, such parking should be enjoined; that where such parking does not unreasonably interfere with the right of the holder of the dominant estate of ingress and egress, injunction will not lie. See Cooper v. Sawyer, 405 p. 2d 304 [394] (Hawaii, 1965), Loveman v. Lay, 124 So. 2d 93 (Alabama, 1960), Keeler v. Haky, 325 p. 2d 648 (Calif., 1958), Feld v. Young Men’s Hebrew Ass’n of Vicksburg, 44 So. 2d 538 (Miss., 1950), Baker v. Koslowski, 85 A 2d 500 (Vermont, 1952). See also 37 A. L. R. 2d 944, 3 A. L. R. 3d 1256.”
However, the cases cited do not, in our opinion, support the courts application of this principle to the instant case. In Cooper v. Sawyer, 405 P. 2d 394 (Hawaii, 1965), the court 'did approve parking if it did not interfere with the reasonable use of the easement, but it further held any parking would be subject to immediate moving of the parked vehicle to prevent its obstructing ingress and egress. This implies no permanent structures would have been permitted.
In Loveman v. Lay, 271 Ala. 385, 124 So. 2d 93, the easement was only 10 feet in width and appellants parking interfered with ingress and egress. The court held the servient owner could not unreasonably interfere with the use of the easement by parking vehicles on it. In Keeler v. Haky, 160 Cal. App. 2d 471, 325 P. 2d 648, painted stalls, marked on the easement, had been assigned to tenants living on the dominant estate. The question was whether the easement was an exclusive one. The court decided permanent parking would make the use exclusive. The court 'held such a use was not compatible with the 'terms of the grant and was not a reasonable and proper enjoyment of an easement to pass and re-pass. The parking actually interfered with the movement of vehicles on 'the easement. In Feld, et al. v. Y. M. Hebrew Asn’n., 208 Miss. 451, 44 So. 2d 538, again the owners of the easement were enjoined from parking on the easement, so as to block it. In Baker v. Koslowski, 117 Vt. 124, 85 A. 2d 500, there existed a 40 foot driveway-easement. The defendant was prohibited from parking on the right-of-way so as to interfere with plaintiff’s free use of it.
In none of the above cases were there permanent structures involved. However, the cases would indicate that parking is 'allowed as long as it does not unreasonably interfere with travel on the easement. The court 'also cites two A. L. R. annotations. The first, Anno., Private Way — Parking, 37 A. L. R. 2d, § 1, p. 944, discusses the right to park vehicles on a private way. The introductory remarks state:
“The courts have not attempted to set forth any general principles regarding the question under annotation, as a whole, nor is it possible to draw any general conclusions from the decisions, in view of the fact that the decision in any particular case is dependent upon a number of variable factors, including the extent of the easement, if any, the nature of the parking, and the type of relief requested.”
The annotation states that oases have generally held there exists no absolute right to park but each has a right to park thereon “at such times and in such a manner as not to interfere with its use by the other.” (p. 945.) None of the cases dealt with permanent carports as is the case here; most merely concerned parking cars so as to block the access.
The second annotation, Anno., Easement — Private Way — Reasonable Use, 3 A. L. R. 3d 1256, deals with the question of whether use of an easement exceeds the privilege granted, thus unreasonably burdening the servient estate. The cases cited involve mode of use (foot traffic or various vehicles) and extent of use (purpose for which used, amount and degree of use). None of the cases are applicable here.
A case in point is Wurlitzer Co. v. State Bank, 290 Ill. 72, 124 N. E. 844. There the dispute concerned the rights of the parties to a private passageway some 18 feet in width between their respective buildings. One of the objections of the plaintiff was that the defendant had placed upright supports or pillars in the right-of-way. The Supreme Court of Illinois, in sustaining the lower court’s determination that said pillars were violative of the rights of the plaintiff, stated at page 82:
“The right to the land in question being a right of passageway and the boundaries of said land being defined, it follows that the right of passageway existed as to all the land within those boundaries, and appellee had no right to obstruct any portion of it by placing thereon upright supports or pillars. Where a right of passageway is granted over a strip of land having definite boundaries, such right extends to the full width of the tract described. . . .” (Emphasis supplied.)
28 C. J. S., Easements, § 96, pp. 778-779, discusses what constitutes an obstruction:
“An obstruction or disturbance of an easement is anything which wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before. To constitute an actionable wrong it must, however, be of a material character such as will interfere with the reasonable enjoyment of the easement. . . .”
The following language then appears in § 97, p. 779:
“The owner of a right of way has no right to erect any buildings or other structures on the way; and this is so notwithstanding the presence of such structures may not interfere with the use of the way as a mere passageway. . . . The rights of the owner of the servient estate in this regard are limited to the erection of such stnrctures as are compatible with the rights of those entitled to use the way. If by the terms of the grant or reservation the way must be of a certain width, no structures can be erected which encroach on the width stated. Where, however, there is merely a general undefined right of way, it is only necessary that there should be sufficient space left to afford a convenient passage. . . .” (Emphasis supplied. Accord, 3 Tiffany, Real Property, §811, pp. 356-357 [3d ed. 1939].)
In our present case the easements described in paragraph 8 of the contract and determined by the trial court were for ingress and egress over a definite width, length and. location. Construction of carports or other permanent obstructions over a portion of an easement for passage of a definite width wrongfully impairs and interferes with the privilege of passage which the owner of the definite easement holds. The carports were wrongfully constructed on the easement. The plaintiff is therefore entitled to have the carports removed and the case must be remanded with instructions directing the trial court to issue a mandatory injunction for that purpose.
The other portions of the judgment of the trial court from which no appeal was taken shall remain unaffected, including the holding that said easements shall terminate if the north 10 acres now owned by plaintiff is utilized or zoned for industrial use. It is noted the trial court held that these easements were inferior to the rights of Commerce Mortgage Company which had no notice of the easements, either actual or constructive. No appeal was taken from those portions of the judgment and they stand adjudicated.
The judgment of the trial court as to the extent of the rights of the grantor and grantees under the easements is reversed and the case is remanded with directions to proceed in accordance with the opinions expressed herein. | [
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The opinion of the court was delivered by
Harman, C.:
James E. Black was convicted by a jury of theft of property of a value of more than fifty dollars. His motion for new trial was denied, he was sentenced and now appeals.
Appellant Black does not challenge the sufficiency of 'the evidence to support his conviction but raises three trial errors. On August 30, 1974, the Kansas National Guard armory at Salina was burglarized and twenty automatic M-16 rifles and ten .45 caliber automatic pistols were taken. On September 30, 1974, the Salina police arrested Frank Gestl, his brother Steven Gestl, Joseph McDaniel and appellant’s brother, Tommy Lee Black, for their involvement in the crime and other recent burglaries in Salina. Subsequently appellant was arrested and charged with receiving the stolen armory guns, knowing them to have been stolen by Frank Gestl and Joseph McDaniel. At appellant’s trial both the Gestls and McDaniel testified against appellant. They stated Frank Gestl and McDaniel committed the burglary, taking the weapons in question and hiding them at Tommy Black’s house; later that night, appellant appeared and loaded the guns in his car, saying he had a place in Colorado to store them; appellant was upset that the burglary had occurred before he got there and that so few guns were obtained; he discussed the price of the guns; the group had previously stolen guns in two burglaries of the Lee Hardware Store in Salina and had taken them to Denver for appellant to sell at which time appellant had participated in plans to burglarize the armory. One pistol, identified as one of those taken in the armory burglary, was recovered by the FBI in a search of appellant’s bedroom closet in Denver.
Appellant contends the trial court erred in denying his motion for change of venue because of pretrial publicity which was shown to be prejudicial to his right to a fair trial. The record on appeal contains six articles published in the Salina Journal and one from the Kansas City Times respecting the various stages of judicial proceedings involving the gun burglaries and also burglary of a Salina bank. The articles featured the fact the two Gestls were members of a local merchant police and security business and Frank Gestl had recently been nominated for the office of sheriff of Saline county. The record also contains fourteen oonclusory type affidavits, seven identical ones offered by appellant stating the affiant’s opinion that because of the pretrial newspaper and sound media publicity appellant could not receive a fair trial in Saline county, and seven identical ones offered by the state giving the affiant’s opinion, based upon what he had heard and not heard respecting the case, that appellant could receive a fair trial in Saline county. Appellant has demonstrated no plausible showing of prejudice. This burden is on him (State v. Hill, 211 Kan. 239, 244, 505 P. 2d 704, 708). As stated in State v. Randol, 212 Kan. 461, 513 P. 2d 248:
“The mere publication of newspaper articles does not establish prejudice per se that defendant cannot obtain a fair and impartial trial in the county.” (Syl. Para. 1.)
Here it appears thirty-six prospective jurors were questioned and none had formed or expressed an opinion about the case. None was challenged for cause. Of the six printed articles shown in the record, two did not mention appellant. Of the remaining four mentioning his name, only one made more than passing reference to his role in the crime. Applying familiar principles of law (State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255; State v. Hill, supra) we must hold the trial court did not abuse sound discretion in denying the requested change of venue.
Appellant asserts the trial court erred in refusing tir hear his motion to suppress the state’s exhibit 9, the pistol seized in a warrantless search of appellant’s bedroom in Denver. The motion was not made until the exhibit was offered into evidence by the state, which occurred after several witnesses had testified about the pistol, and after one prosecution witness, the resident lessee of the premises in which the pistol was found and who apparently had consented to the search, had been excused and departed from Kansas.
K. S. A. 22-3216 (3) dealing with motions to suppress illegally obtained evidence provides:
“The motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.”
The import of the foregoing is that absent a motion to suppress the state does not have to assume the burden of defending a search and seizure; two exceptions are stated and the trial court may act at its discretion. In State v. Jackson, 213 Kan. 219, 515 P. 2d 1108, we stated:
“. . . In other words, if a defendant fails to make the motion prior to trial and is unable to show lack of opportunity or unawareness he has lost his standing to challenge admissibility as a matter of right and becomes dependent upon the discretion of the trial court under the language of the last provision of subsection (3).” (p.226.)
Appellant argues no showing was made that he had pretrial knowledge which would provide grounds for a motion to suppress. According to Jackson appellant is the one upon whom fell the burden of showing pretrial lack of knowledge or opportunity to raise the point. Has he made sufficient showing to demonstrate error or abuse of discretion in the trial court’s refusal to hear the belated motion? We think not.
Appellant went to trial in February, 1975 (exact date not disclosed). Some time prior to trial the state endorsed on the information the names of the two principal witnesses to the seizure of the pistol. Appellant never filed any discovery motion. According to the trial court’s comments its attempt to hold its usual pretrial conference proved abortive. Appellant’s then-counsel, who defended him at trial, was furnished a copy of the transcript of the preliminary hearing held for Tommy Lee Black, appellant’s brother and codefendant. (Appellant waived his own preliminary examination. ) The state says the transcript was furnished appellant long before trial and the record discloses the transcript was in fact used extensively in appellant’s cross-examination of the state’s witnesses. In the transcript it was revealed by the testimony of an FBI agent that one of the pistols stolen from the Salina armory was recovered from appellant’s bedroom in Denver.
Some courts have held that a motion is too late where grounds for suppression could have been discovered with reasonable inquiry. In People v. Martinez, 14 Cal. 3d 533, 121 Cal. Rptr. 611, 535 P. 2d 739, the court held that where defense counsel could have discovered grounds for suppression motion simply by questioning his client and a police officer’s testimony at preliminary hearing, counsel was put on notice of the advisability of further testing the legality of seizure prior to trial and a midtrial motion to suppress was properly denied.
In State v. Allaband, 134 N. J. Super. 353, 341 A. 2d 340, it was contended a suppression motion was not earlier filed because when discovery was received no one read it carefully enough to realize a motion ought to be made, and it was argued the attorney handling the case at time of trial should not be bound by the carelessness of another. The court replied:
“. . . The neglect of an attorney to pursue remedies on behalf of a client has uniformly been held not to constitute ‘good cause’ offered in support of a motion to enlarge time.” (p. 355.)
In the case at bar, by reason of the transcript of his brother’s preliminary hearing, appellant had ample pretrial knowledge that a pistol allegedly had been taken from his bedroom. During trial several witnesses testified without objection as to the pistol and its clip. By the time the state was called upon to assume the burden of defending its search and seizure one of its principal witnesses had departed the state and there was no assurance of his return. In view of all the circumstances we cannot say the trial court abused its discretion in declining to hear the belated motion.
Finally appellant complains evidence of other crimes was received in violation of K. S. A. 60-455. The contention is meritless. The challenged evidence was that of the two Lee Hardware burglaries. The first burglary occurred about August 17, 1974. As already indicated, guns were taken. Frank Gestl took these, guns to appellant in Denver to sell; he told appellant they were “hot”; appellant sold the guns and the money was divided. Appellant asked if Gestl could get more. Gestl replied he was a cook at the armory where several hundred were stored. On or about August 24, 1971, just one week prior to the armory burglary, the Lee Hardware Store was burglarized again and guns and radios were taken and stored at the residence of appellant’s brother; Gestl told appellant where the guns had come from and appellant agreed to check on the price in Denver where the guns were subsequently taken. There appellant advised that things were too “hot” to sell the guns. Sub sequently several cartons containing guns taken from the armory and guns and radios in the second Lee Hardware thefts were found in Denver by police. These cartons contained appellant’s fingerprints on them.
Appellant testified and denied involvement with stolen guns except he admitted Frank Gestl inquired if anyone wanted to buy guns and showed him guns Gestl had in his car trunk; that he was not in Salina over the Labor Day weekend but was in Colorado and had purchased the pistol found in his bedroom at a truck stop. Bare recital of the prosecution’s evidence respecting the handling of the guns (and radios) taken in the Lee Hardware burglaries demonstrates its relevance to the charge in this case. It was incumbent on the prosecution not only to show that appelant received guns stolen from the Salina armory but that he did so knowing that the guns were in fact stolen property. The two Lee burglaries were committed within two weeks of the armory burglary and were closely interwoven with that of the armory insofar as the type of property was concerned, its disposition and its connection with appellant. The challenged evidence was properly received.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to quiet title to real estate. Plaintiff prevailed and the defendant, Grace McNamara, appeals.
Before considering the appeal on its merits we are confronted with a preliminary matter. It is appellee’s motion to dismiss the appeal on the ground appellant’s abstract fails to comply with the rules of this court in that it is interlineated with argumentative features. The motion is not without merit but appellant’s appearance is in. propria persona and we prefer to treat the 'appeal on its merits.
The appeal is only from the final judgment of the court quieting title to the land in question and barring appellants, Grace McNamara and Grace M. McNamara, each a single person, from asserting any right, title, claim, lien or interest therein. The pertinent facts presented by the record are, in substance:
Service by publication on the appellant, a resident of California, was had and approved; appellant received the necessary notice August 3, 1945; the answer day was September 15, 1945; she made application for an extension of time to plead; although she had no counsel to represent her on the hearing of. the application and did not appear in person, an extension of twenty days was granted and the clerk of the court notified her thereof; on October 3 appellant filed her answer; on November 29 the clerk wrote appellant the action was set for trial December 15; on December 6 appellant filed a motion to take her deposition stating, among other things, that it would be presented to the court at 10:00 a. m. December 12, and that she would be unable to appear for the trial in person; to the motion were attached interrogatories; appellant appeared neither in person nor by her counsel to present the motion; on December 7 she filed her sworn affidavit in the form of an application for continuance of the trial; neither she nor her counsel appeared to present that motion; the action was tried December 15, was taken under advisement for judgment, and on January 5, 1946, was continued for judgment until February 4,1946; the trial judge wrote appellant on January 15, 1946, fully notifying her concerning the status of the case and that no judgment would be rendered on February 4, 1946, if she would arrange for some appearance on her behalf on or before that date; names of two local attorneys were suggested to her who the trial court believed might be willing to undertake her defense; in that letter appellant was further advised if no formal action were taken by her judgment would be rendered on February 4, 1946, quieting the title to the land in plaintiff; instead of appearing in person or obtaining counsel for that hearing appellant wrote the trial judge lengthy letters on January 24 and January 31; on February 4, 1946, the trial judge rendered judgment quieting the title as prayed for by appellee and on February 6 wrote appellant advising her under what statute she might perfect an appeal to this court.
It will serve no useful purpose to narrate further details contained in the various letters written by appellant to the clerk and to the trial judge involving this litigation. Appellant was fully informed that neither the clerk nor the trial judge was permitted to advise her concerning her substantial rights or relative to procedural steps to be employed to properly make her defense. Appellant received the most courteous and patient treatment at the hands of the trial court. She recognized and expressed that fact in her letters but failed to follow his valuable advice concerning the employment of counsel. She made no appearance in her own behalf. As previously stated the appeal is not from any intermediate orders but only from the final judgment.
The journal entry of judgment does contain an ill-advised recital concerning a consideration of evidence “including the deposition of the defendant.” Appellee concedes the quoted phrase was inadvertent. Although that recital was not an accurate statement of fact, since no completed deposition was finally filed, the recital does not vitiate the judgment. ‘ The journal entry of judgment discloses the trial court heard and considered the evidence and that being fully advised in the premises rendered judgment pursuant to plaintiff’s petition. No reversible error appears in the judgment rendered and it must be affirmed. It is so ordered.
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OPINION ON REHEARING
The opinion of the court was delivered by
Thiele, J.:
Upon the original submission of this appeal, an opinion was prepared and filed in which we affirmed the rulings of the trial court of which the appellant complained. The opinion appears in 161 Kan. 582, 170 P. 2d 827. Appellant’s motion for a rehearing was granted and the appeal has been reargued.
Upon consideration, it appears that no contentions or arguments are now made which did not receive our attention after the original submission and which were not treated in our original opinion. We conclude that we should adhere to that opinion, and it is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
This appeal is by a defendant husband in a divorce suit from the order of the district court overruling his demurrer to the plaintiff’s evidence. The divorce was granted upon the ground of extreme cruelty and the defendant contends that the corroborated evidence introduced by the plaintiff was insufficient to sustain the decree.
Examination of the record reveals that the original.journal entry recited that the divorce was granted because of gross neglect of duty on the part of the defendant and was later changed by a nunc pro tunc order to read that the plaintiff was entitled to a decree of divorce upon' the ground of extreme cruelty. The defendant does not assert the making of the nunc pro tunc order as one of his specifications of error. The principal contention of the defendant is that the corroborated evidence which was introduced to prove extreme cruelty consisted only of a showing that the defendant would not speak to his wife for extended periods of time. One corroborating witness testified that she lived at the home of the litigants and that the talking strikes would last possibly a week; that one strike in December lasted every bit of a month; that by “strike” was meant that Mr. Sparks refused to talk; that when his wife would ask him questions he would not answer them.
Counsel for the defendant contend, in substance, that a man, by merely keeping his mouth shut, cannot thereby be guilty of extreme cruelty. In other words, they agree with Carlyle that “Speech is silvern. Silence is golden.” And with Southey that “. . . silence implies the composure of settled distress”; and also with Shakespeare that. “Silence is the perfectest herald of joy.” On the other hand, counsel for the plaintiff agree with Cicero that “When they hold their tongues they cry out”; and with La Fontaine that “Silent people are dangerous; others are not so”; and also with Sophocles to the effect that “To me so deep a silence portends some dread event; a clamorous sorrow wastes itself in sound.”
Fortunately, we are not required to base our opinion upon philology or the philosophy of the bards. The precise question involved -has received judicial consideration in the case of Kreplin v. Kreplin, 110 Wash. 135, 188 Pac. 14. The headnote in the Pacific reporter reads as follows:
^Cold and studied indifference toward a wife and failure to talk to her or to accompany her anywhere, and the spending of evenings with his friends and companions, was cruel treatment entitling the wife to a divorce.” '
The opinion in the cited case recites that “During the last six months that the parties lived together the respondent talked to the appellant just as little as he could get along with.”- And continues: “During the last five or six months his attitude toward her was one of cold and studied indifference, and this was carried to such an extent as to constitute cruel treatment.” (p. 15.) The cited case quotes, with' approval, from the case of Spute v. Spute, 74 Wash. 665, 134 Pac. 175, as follows:
“ . ,. It is true that the record discloses no blows nor words that the law accepts as evidence of cruel treatment, but the utter indifference and cold neglect of a spouse may bruise harder than a blow and leave a sting sharper than words.’ ” (p. 15.)
The granting or the denial of a divorce is ever a serious problem and courts should always cautiously consider whether the evidence justifies the decree. We are not holding in this'case that the mere-failure of a tired man to talk always to his wife constitutes extreme cruelty. The contrary has been 'held by the Supreme Court of Michigan in Bowen v. Bowen, 179 Mich. 574, 146 N. W. 271, 51 L. R. A., n. s., 460. In considering what may constitute extreme cruelty, all of the circumstances developed by the evidence should be considered. A court should also consider whether the conduct of the accused party was justifiable or otherwise and whether it caused mental suffering to such an extent as to destroy the peace of mind and happiness of the other spouse. (See Bracken v. Bracken, 115 Kan. 494, 223 Pac. 288; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755, and cases therein cited at page 518; also, Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127.)
The present case does not turn solely upon the corroborated evidence of the so-called “speaking strike.” There is evidence in the record which corroborated the plaintiff’s testimony to the effect that the defendant displayed no affection toward the plaintiff; that he would not accept Christmas and anniversary presents from her, and further, that the defendant called the plaintiff a profane and opprobrious name. The plaintiff’s personal testimony developed the acts of cruelty on the part of the defendant to a much greater extent than we have set forth herein. We are of the opinion that there was sufficient corroborating testimony introduced to justify the trial court’s granting the plaintiff a divorce.
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The opinion of the court was delivered by
Burch, J.:
The appeal in this case is from a ruling of the district court sustaining a demurrer to a petition for specific performance of the terms of an alleged family settlement. The petition discloses that at the time it was filed in the district court administration proceedings were pending in the probate court and that the property involved in the action was a part of the assets of the estate being administered. The demurrer was sustained solely upon the ground that the district court did not have jurisdiction.
Consideration of the trial court’s ruling obviously necessitates examination of the allegations contained in the petition which pertain to the question of jurisdiction. The petition alleges that Annie L. Down died intestate in November, 1944; that at the time of her death she left surviving her two sons, Frank L. Down and John Down, the plaintiffs, and also a daughter, Lulu Austenfeld, one of the defendants; that on March 13, 1946, a petition was filed in the probate court for administration of the estate of Annie L. Down and as a consequence thereof C. H. Lambert, the other defendant, was named and qualified as administrator of the estate. The petition alleges further that the defendant, C. H. Lambert, was acting in his capacity as administrator when the petition was filed. Other allegations of the petition set forth in detail the terms of the alleged family settlement, many of which are not germane to jurisdiction and, therefore, need not be considred herein. Comprehension of the controversy commands, however, that certain additional allegations be considered.
According to the petition, the plaintiffs, for some time prior to the death of their mother, advanced to her various sums of money which she expended for the necessaries and comforts of life and in the repair and maintenance of her home. Such sums were advanced with the understanding and agreement that they would be repaid after the death of the mother upon the sale of the property then owned by her. The petition also alleges that before, her death the mother executed and delivered to the plaintiff, Frank L. Down, á written memorandum concerning her affairs and her property and that contents thereof were made known to her three children herein named; that shortly after the death of their mother the children agreed that the estate of their mother should not be administered and that the family settlement would be carried out without intervention of the courts or outside persons; that in connection with the family settlement the defendant daughter agreed, if the plaintiff brothers would pay the expenses incident to the last illness and the burial of their mother, that the real estate which consisted of one house and lot, would be held until the same could be sold to advantage and when the property was sold the plaintiffs would be reimbursed from the proceeds for all moneys advanced by them prior and subsequent to the death of the mother. It was also agreed that after deducting the advances, the remaining balance would be divided equally among the three children. The petition also contains allegations to the effect that in reliance upon the agreement, the brothers paid the expenses incident to the last sickness and burial of their mother and refrained from instituting any proceedings for the administration of her estate but that notwithstanding such performance on their part, the defendant sister, more than one year and thirty days after the death of the mother, filed in the probate court a petition for administration of her estate and that by reason thereof the defendant, C. H. Lambert, was duly appointed, qualified and acting administrator of the estate of the deceased and had filed a petition to sell the real property and that he intended to sell the same at public or private sale and distribute one-third of the proceeds from the sale equally among the three children without first deducting therefrom the moneys advanced by the plaintiffs, with the result that the alleged agreement would be violated. The plaintiffs allege that as a consequence thereof they are entitled to judgment against their defendant sister for the amount of moneys they have advanced, and to have the same adjudged a first and prior lien against the share and interest of the defendant in and to the realty of the deceased. The prayer of the petition concludes by asserting that the property should be sold and "the proceeds be paid into Court subject to final order of distribution as provided by law.” From the foregoing it conclusively appears that at the time the action was brought, administration proceedings were pending in the probate court and that the final order of settlement, accounting and determination of"the persons entitled to the estate of the decedent had not been- entered in the probate court. It should be observed, also, that the instant action was brought,originally in the district court and did not' reach that tribunal by appeal from or certification by the probate court.
Reduced to simplicity the only question presented in this appeal is whether the probate court had jurisdiction to settle .and distribute an estate in accordance with the terms of an alleged contract which provided for a final family settlement and distribution. If the probate court had such jurisdiction, we do not reach the question whether the district court also had original concurrent jurisdiction because the first court which acquired jurisdiction retained it. In the recent case of Herbel v. Nuss, 158 Kan. 376, 147 P. 2d 735, we held:
“Even though it be assumed the district court had concurrent jurisdiction, the general rule is that the court which first acquires jurisdiction may draw to itself all matters' inhering and retain such jurisdiction and control to the exclusion of any other court of concurrent jurisdiction. (Egnatic v. Wollard, 156 Kan. 843, 857, 137 P. 2d 188, and cases there cited.)” (p. 379.)
The sole question hereinbefore set forth has been answered by this court in the case of Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349. In the cited case, one of the contentions was that the probate court had jurisdiction to make a decree of distribution only in accordance with the law of descent and distribution. Another contention therein was that the probate court had no jurisdiction to consider or enforce a private contract of the heirs. We held to the contrary. From the opinion in the cited case, written by Mr. Justice Wedell, the following is quoted:
“Manifestly, the contract of family settlement was between private individuals. Such a contract is always between private individuals, namely, heirs, devisees or legatees. The property, however, which was the subject of their contract was the property of an estate and that estate was in the process of administration in a court vested with jurisdiction and power to settle and .distribute estates.” (p. 706.)
The opinion continues:
“They could not stand by and permit the probate court to enter a final decree of settlement and distribution according to the law of descent and distribution and thereafter assert contrary rights under a private contract. . . The express purpose of the contract was to adjust, compromise and settle the claims of the heirs in order to restore the confidence, friendship and affection which had existed during the lifetime of decedent. Such contracts have been enforced frequently by probate courts, whether they provide distribution upon a plan different' from that prescribed by the statute of descent and distribution or the statute of wills. (Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; Hirt v. Bucklin State Bank, 153 Kan. 194, 109 P. 2d 171, and cases therein cited.) The modern tendency is to extend the jurisdiction of the probate court ifr respect to matters incident and ancillary to the exercise of' its recognized jurisdiction. (15 C. J. 1012; 21 C. J. S. §§301, 304; In re Osborn's Estate, 99 Kan. 227, 229, 161 Pac. 601; Myers, v. Noble, supra, pp. 436, 437.)
“The new probate code, however, conclusively settles the question of the jurisdiction of both probate court and the district court in the instant 'case. . . . The new code requires, among other things, that the petition for final-settlement state the nature and character of the respective claims of the heirs, devisees and legatees. (G. S. 1939 Supp., 59-2247.) The pertinent portion of the new code, which pertains to the hearing of the petition for and the décree of final settlement provides: “ . . Upon such settlement and allowance the court shall determine the heirs, devisees and legatees entitled to the estate and assign the same to them by its decree. The decree shall name the heirs, devisees, and legatees, describe the property, and state the proportion or part thereof to which each is entitled. Said decree shall be binding ás to all the estate of the decedent, whether specifically described in the proceedings or not . . . when the final-decree includes real estate, such decree, or a certified copy thereof, may be entered on the transfer record of the county clerk of the proper county.’ (G. S. 1939 Supp. 59-2249.) (Emphasis supplied.)” (p. 706.)
The only substantial difference between the facts in the- cited case and the facts in the present case is that in. the cited case the validity of the contract was conceded and the administratrix filed the petition in the probate court for final settlement and distribution of the estate in accordance with the, terms of the contract. We cannot determine in this appeal whether the 'facts alleged which pertain to the family settlement contract ultimately will be con ceded but for the purppse of the appeal the demurrer admits the facts pleaded in the petition. It is not contended in the present case that the question of jurisdiction is in any way affected by reason of the fact that the final settlement contract was asserted by the heirs in the present case in the district court as distinguished from the administratrix having done so in the probate court in the cited case and no reason occurs to us which would justify any distinction being made. The cited case- clearly holds that the probate court had jurisdiction to settle and distribute an estate in accordance with the terms of a family settlement and such holding is decisive of the present case.
Counsel for the respective parties in oral arguments and in their briefs have presented in this appeal questions predicated upon proceedings which occurred, and which may hereafter occur, in the probate court. This court cannot, however, consider the record in the probate proceedings. As hereinbefore stated, the present case is not an instance of an appeal from the probate court to the district court and in turn to this court. We have been requested to volunteer information as to what may be the effect of the so-called “nonclaim statute” (now G. S. 1945 Supp., 59-2239) in subsequent proceedings which may follow in the probate court. Although this court might be inclined to accommodate counsel for both parties and settle as many questions as possible for them in this appeal, we cannot do so. If we indulged in consideration of questions not properly presented by the appeal, our conclusions would be nothing more than dicta and not binding upon courts, counsel or litigants. Moreover, it would be manifestly unfair for us to suggest what may or may not be done because we cannot conjecture what subsequent proceedings may occur and what objections may be made. Any comment which we might volunteer, therefore, would be prejudicial to the rights of the litigants and we must refrain from speculating upon what results may follow. For the same reasons we do not comment upon many of our decisions which have been cited by counsel for the respective.parties. Some of the cited cases are applicable in some respects to the present case and inapplicable in others but we should not anticipate litigation for the purpose of analyzing the cited cases.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a finance company to recover a deficiency judgment on a promissory note following repossession and sale of an automobile in which the finance company had a security interest. The sole issue presented in the case is whether the plaintiff-appellant, Central Finance Company, Inc., was precluded from obtaining both possession of the collateral and a deficiency judgment under the provisions of the Kansas Uniform Consumer Credit Code (K. S. A. 16a-l-101 through 16a-9-102). The facts are undisputed and were stipulated by the parties to be as follows: On June’ 25, 1973, plaintiff, Central Finance Company, Inc., agreed to loan defendants, Gerald D. Stevens and Deborah Stevens, the sum of $624.00 for the purchase of a 1968 Ford station wagon from Cox Motors of Pleasanton, Kansas. The Stevenses were not referred to Central Finance Company by Cox Motors but independently contacted the finance company with whom they had had no prior dealings. Further there had been no prior contact either of a personal or corporate nature between Central Finance and Cox Motors. At the time of the loan, the Stevenses executed their promissory note to Central Finance with repayment of the $624.00 to be made in twelve (12) installments. The Stevenses secured payment of the note by executing a security agreement granting Central Finance a security interest in the automobile to be purchased. Central Finance prepared a draft in the amount of $507.57 payable to “Gerald and Debra Stevens and Cox Motors”, and delivered the draft to tihe Stevenses, who endorsed the same, presented it to the seller, and received title to the automobile with Central Finance’s name appearing on the title as lienholder. During the spring of 1974 the Stevenses defaulted and failed to make the payments required by the promissory note. On request of Central Finance they voluntarily surrendered control and possession of the automobile which was the collateral covered by the security agreement of June 25, 1973. At .the time of repossession the amount owed on the note was $450.87. After notice to the Stevenses the automobile was sold on March 21, 1974, for the sum of $231.26 from which was deducted the sum of $58.26 for repairs necessary to prepare the automobile for sale. The remaining credit of $173.00 was applied to the indebtedness owed to Central Finance with the result that on March 21, 1974, the Stevenses owed Central Finance a deficiency balance of $277.87. An action was thereafter filed by Central Finance in small claims court of Linn County, Kansas, and judgment by default was rendered against the Stevenses on June 20, 1974, in the sum of $300.00, representing the deficiency balance claimed by Central Finance from the Stevenses with accrued interest. The Stevenses appealed the small claims court decision to the district court of Linn county and were granted a trial de novo before the Honorable Don Musser, the assigned district court judge.
The district court ruled in favor of the Stevenses holding that the transaction between Central Finance and the Stevenses was a “consumer credit sale” and that, consequently, Central Finance was precluded from judgment for a deficiency balance following repossession of the automobile. The district court, in addition to vacating the $300.00 small claims court judgment in favor of Central Finance, entered judgment against Central Finance for $100.00 damages and $330.00 attorney fees. It is from this decision that the present appeal is taken.
In district court the defendants Stevens moved to dismiss this appeal for the reason that the amount in controversy is less than the $500.00 jurisdictional amount required by K. S. A. 60-2102 (a) (4) to vest in the supreme court jurisdiction to hear appeals from a final decision in actions to recover money. Since the jurisdiction of this court has been challenged, we deem it necessary to determine at the outset whether we have jurisdiction to determine the appeal.
The controlling statute is K. S. A. 60-2102 (a) (4) which provides in substance that the appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from a final decision in any action, except that in an action to recover money, the amount in controversy must be in excess of $500.00. We must determine whether or not the amount in controversy exceeds the $500.00 limitation. As pointed out above the plaintiff’s claim was in the amount of $300.00. The court awarded to the defendants a judgment for $100.00 statutory damages and attorney fees in the amount of $330.00, as authorized and provided for in K. S. A. 16a-5-201. Decisions of this court handed down under the old code of civil procedure which was in effect prior to January 1, 1964, established guiding principles which in our judgment vest jurisdiction to hear the appeal in the present case.
Stewart v. Wright, 124 Kan. 612, 261 Pac. 581, declares that in determining the amount in controversy for supreme court jurisdiction, the plaintiff may add the amount of his claim to the amount of the judgment rendered against him on a defendant’s counterclaim to bring the case within the jurisdiction of this court. In Gants v. National Fire Ins. Co., 127 Kan. 251, 273 Pac. 406, this court held that attorney fees awarded pursuant to statute may be considered in determining the amount in controversy on the appeal. We have concluded that the guiding principles set forth in Stewart and Gants should be applied in determining the jurisdiction of this court in this case. Following those cases the matters properly to be considered in determining the amount in controversy in this case are the plaintiff’s claim of $300.00 and the defendants’ judgment against plaintiff for $100.00 statutory damages and $330.00 attorney fees. Added together these items amount to $730.00 thus exceeding the statutory jurisdictional amount of $500.00. It follows that this court has jurisdiction to entertain this appeal.
We turn now to consider the issue raised by the plaintiff on the appeal. In order to determine this case it is necessary for the court to construe for the first time certain sections of the UCCC. We must first note the provisions of 16a-5-103, which prohibit deficiency judgments in certain consumer credit transactions. That section provides in pertinent part as follows:
“16a-5-103. (UCCC) Restrictions on deficiency judgments. (1) This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from. sales (section 16a-3-405); a consumer is not liable for a deficiency unless the creditor has disposed of the goods in good faith and in a commercially reasonable manner.
“(2) If the seller repossesses or voluntarily accepts surrender of goods which were the subject of the sale and in which he has a security interest, the buyer is not personally liable to the seller for the unpaid balance of the debt arising from the sale of a commercial unit of goods of which the cash sale price was one thousand dollars ($1,000) or less, and the seller is not obligated to resell the collateral unless the buyer has paid sixty percent (60%) or more of the cash price and has ■ not signed after default a statement renouncing his rights in the collateral.
“(3) If the seller repossesses or voluntarily accepts surrender of goods which were not the subject of the sale but in which he has a security interest to secure a debt arising from a sale of goods or services or a combined sale of goods and services and the cash price of the sale was one thousand dollars ($1,000) or less, the buyer is not personally liable to the seller for the unpaid balance of the debt arising from the sale, and the seller’s duty to dispose of the collateral is governed by the provisions on disposition of collateral (section 84-9-504) of the uniform commercial code.
“(4) If the lender takes possession or voluntarily accepts surrender of goods in which he has a security interest to secure a debt arising from a consumer loan in which the lender is subject to defenses arising from sales (section 16a-3-405) and the net proceeds of the loan paid to or for the benefit of the debtor were one thousand dollars ($1,000) or less, the debtor is not personally liable to the lender for the unpaid balance of the debt arising from the loan and the lender’s duty to dispose of the collateral is governed by the provisions on disposition of collateral (section 84-9-504) of the uniform commercial code.”
Section (.1) states that this statutory restriction on deficiency judgments applies only to a deficiency either on a “consumer credit sale” or on a “consumer loan” in which the lender is subject to defenses arising from sales. (16a-3-405.) We must first determine whether the transaction between Central Finance and the Stevenses was a “consumer credit sale” or “consumer loan.” The trial court held that the transaction between Central Finance and the Stevenses was a “consumer credit sale” and that consequently Central Finance was precluded from obtaining a deficiency judgment following repossession of the automobile. The trial court was in error. The term “consumer credit sale” is defined in K. S. A. 16a-1-301 (11) (a) as follows:
“(11) ‘Consumer credit sale’:
“(a) Except as provided in paragraph (b), a ‘consumer credit sale’ is a sale of goods, services, or an interest in land in which
“(i) credit is granted either by a seller who regularly engages as a seller in credit transactions of the same kind or pursuant to a credit card other than a lender credit card,
“(ii) the buyer is a person other than an organization,
“(Hi) the goods, services, or interest in land are purchased primarily for a personal, family, household, or agricultural purpose,
“(iv) either the debt is payable in installments or a finance charge is made, and
“(v) with respect to a sale of goods or services, the amount financed does not exceed twenty-five thousand dollars ($25,000).”
It is important to note that in order for a particular transaction to fall within the definition of a “consumer credit sale” it must be an actual sale of goods, services, or an interest in land. In this case the transaction between Central Finance and the Stevenses was not a sale. It was a loan. The sale was consummated between Cox Motors as seller and the Stevenses as buyers. Hence the trial court was in error in holding that the transaction between Central Finance and the Stevenses was a “consumer credit sale.”
The transaction between Central Finance and the Stevenses does, however, fall within the definition of a “consumer loan” as defined in K. S. A. 16a-l-301 (14) in the following language:
“16a-l-301. . . .
“ (14) ‘Consumer loan’:
“(a) Except as provided in paragraph (b), a ‘consumer loan’ is a loan made by a person regularly engaged in the business of making loans in which
“(i) the debtor is a person other than an organization;
“(m) the debt is incurred primarily for a personal, family, household, or agricultural purpose;
“(Hi) either the debt is payable in installments or a finance charge is made; and
“(iv) either the amount financed does not exceed twenty-five thousand dollars ($25,000) or the debt, other than one incurred primarily for an agricultural purpose, is secured by an interest in land.”
In this case it is undisputed that the loan made by Central Finance to the Stevenses was made by one regularly engaged in the business of making loans to a person other than an organization and was made primarily for a personal, family, household, or agricultural purpose. The debt was payable in installments and was for an amount less than $25,000. It necessarily follows that the provisions of the UCCC governing consumer loans rather than consumer credit sales are applicable in determining the rights of the parties in this case.
Turning again to 16a-5-103 we note that subsection (4) of the statute provides in substance that if a lender takes possession of the collateral, he is precluded from obtaining a deficiency judgment on a “consumer loan” where two conditions exist: (1) The lender is subject to defenses arising from sales under 16a-3-405, and (2) the amount of the loan is $1,000.00 or less. It is undisputed in this case that the amount of the loan from .Central Finance to the Stevenses was less than $1,000.00. Hence the determining factor must be whether Central Finance as a lender under a consumer loan was subject to defenses arising from the sale under the provisions of 16a-3-405. That section of the UCCC lists five circumstances where a lender may be subject to defenses which may be asserted by the consumer against the seller:
“16a-3-405. (UCCC) Lender subject to defenses arising from sales and leases.
“(1) A lender, . . . who, . . . makes a consumer loan for the purpose of enabling a consumer to buy . . . from a particular seller . . . goods or services, other than primarily for an agricultural purpose, is subject to all claims and defenses of the consumer against the seller . . . arising from that sale ... of the goods and services if
“(a) the lender knows that the seller . . . arranged, for a commission, brokerage, or referral fee, for the extension of credit by the lender;
“(b) the lender is a person related to the seller . . . unless the relationship is remote or is not a factor in the transaction;
“(c) the seller . . . guarantees the loan or otherwise assumes the risk of loss by the lender upon the loan;
“(d) the lender directly supplies the seller . . . with the contract document used by the consumer to evidence the loan, and the seller . . . significantly participates in the preparation of the document; or
“(e) the loan is conditioned upon the consumer’s purchase ... of the goods or services from the particular seller . . . but the lender’s payment of proceeds of the loan to the seller . . . does not in itself establish that the loan was so conditioned.
“(5) Notwithstanding any of tire foregoing, the participation of the lender . . . in any of the arrangements between seller and buyer to insure the perfection of the lender(’s) . . . security interest shall not in itself establish a relationship described and controlled by subsection (1).”
As to the first four criteria, contained in section (1) (a), (b), (c), and (d), the stipulated facts clearly establish that Central Finance had no contact or relationship of any kind whatsoever with Cox Motors. Cox Motors had not referred the Stevenses to Central Finance nor had Cox prepared or helped to prepare the contract document used by the Stevenses to evidence the loan. As to the fifth criteria contained in paragraph (1) (e) there is no evidence in the stipulated facts to show that the loan from Central Finance to the Stevenses was conditioned upon the consumer purchasing the goods from the particular seller, Cox Motors. The fact that Central Finance’s check for the proceeds of the loan was made payable to Cox Motors as well as to the Stevenses does not in itself establish that the loan was so conditioned. In this regard the Kansas comment to section 16a-3-405 states as follows:
“2. . . . With respect to this last element, the lender’s making the proceeds check payable to a particular dealer does not in itself make the transaction an ‘all in the family’ loan. Similarly, under subsection (5) any participation by the lender in the sales transaction solely to insure perfection of a security interest, such as notation of the lender’s lien on a certificate of title, does not in itself make a ‘direct loan’ subject to the buyer’s claims and defenses against the seller.”
The fact that the proceeds check in this case was made payable to both the borrower and seller and that notation of the lender’s security interest was made on the borrower’s certificate of title did not create an “all in the family” loan. Creditors must be permitted to perfect their security interests when they make bona fide direct loans under the provisions of 16a-3-405. The statute is intended only to penalize lenders and sellers who cooperate in an “all in the family” loan. If this interpretation is not given to the UCCC, a Kansas lender who does not have any contact with the seller of consumer goods will be unable to perfect and protect his security interest without becoming entangled in the provisions of 16a-3-405.
The Kansas Consumer Credit Code bestows distinct rights and duties upon sellers and lenders in consumer credit sales. By promotion and advertising, which encourages the consumer to purchase goods, the seller bears greater responsibility for the transaction as a whole and is precluded from recovering a deficiency judgment. A lender who is completely divorced from an “all in the family” type loan activity, is merely a spectator to the consumer credit sales transaction. While carefully regulated by the consumer credit loan provisions of the Kansas UCCC, a lender is not prohibited from recovering a deficiency judgment unless he falls within the provisions of K. S. A. 16a-3-405. In this case Central Finance did not make an “all in the family” loan and is not precluded from recovering a deficiency judgment on the unpaid balance of the debt arising from the loan. It should be noted that no issue has been raised as to the manner of disposition of the collateral which apparently was made in good faith and in a commercially reasonable manner as required by K. S. A. 84-9-504.
From what we have said above it follows that the district court erred in vacating the order of the small claims court of Linn county entered on June 20, 1974, which granted the plaintiff judgment against the defendants in the sum of $300.00 and costs. The district court further erred in entering judgment against the plaintiff on the defendants’ counterclaim since the plaintiff had not violated provisions of the UCCC which would entitle the defendants to such an award.
. The judgment of the district court is reversed and the case is remanded with directions to the district court to enter judgment in favor of the plaintiff in the amount of $300.00 plus interest on that amount from June 20, 1974, the date judgment was entered in the small claims court of Linn county. | [
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The opinion of the court was delivered by
Fromme, J.:
Wade Berryman, a landowner, filed this declaratory judgment action to have an option contract declared null and void. Norbert H. Kmoch, the optionee, answered and counter-claimed seeking damages for Berryman’s failure to convey the land. After depositions were taken and discovery proceedings completed both parties filed separate motions for summary judgment. The trial court entered a summary judgment for plaintiff and held the option was granted without consideration, was in effect an offer to sell subject to withdrawal at any time prior to acceptance and was withdrawn in July, 1973, prior to its being exercised by Kmoch. Kmoch has appealed.
The option agreement dated June 19, 1973, was signed by Wade Berryman of Meade, Kansas, and was addressed to Mr. Norbert H. Kmoch, 1155 Ash Street, Denver, Colorado. The granting clause provided:
“For $10.00 and other valuable consideration, I hereby grant unto you or your assigns an option for 120 days after date to purchase the following described real estate: [Then followed the legal description of 960 acres of land located in Stanton County, Kansas.]”
The balance of the option agreement sets forth the terms of purchase including the price for the land and the growing crops, the water rights and irrigation equipment included in the sale, the time possession was to be delivered to the purchaser, and other provisions not pertinent to the questions presented here on appeal.
Before examining the questions raised on appeal it will be helpful to set forth a few of the facts admitted and on which there is no dispute. Berryman was the owner of the land. Kmoch was a Colorado real estate broker. A third person, Samuel N. Goertz, was a Nebraska 'agricultural consultant. Goertz learned that Berry-man was interested in selling the land and talked to Berryman about obtaining an option on the land for Kmoch. Goertz talked to Kmoch and Kmoch prepared the option contract dated June 19, 1973. Goertz and Kmoch flew to Johnson, Kansas, where a meeting with Berryman had been arranged. At this meeting the option agreement was signed by Berryman. Although the agreement recited the option was granted “for $10.00 and other valuable consideration”, the $10.00 was not paid.
The next conversation between Berryman and Kmoch occurred during the latter part of July, 1973. Berryman called Kmoch by telephone and asked to be released from the option agreement. Nothing definite was worked out between them. Berryman sold the land to another person. In August, Kmooh decided to exercise the option and went to the Federal Land Bank representative in Garden City, Kansas, to make arrangements to purchase the land. He was then informed by the bank representative that the land had been sold by Berryman. Kmoch then recorded the option agreement in Stanton County. After a telephone conversation with Berryman was unproductive, Kmoch sent a letter to Berryman in October, 1973, attempting to exercise his option on the land. Berryman responded by bringing the present action to have the option declared null and void.
Appellant, Kmoch, acknowledges that the $10.00 cash consideration recited in the option agreement was never paid. However, he points out the agreement included a provision for “other valuable consideration” and that he should have been permitted to introduce evidence to establish time spent and expenses incurred in an effort to interest others in joining him in acquiring the land. He points to the deposition testimony of Goertz and another man by the name of Robert Harris, who had examined the land under option. Their services were sought by Kmoch to obtain a farm report on the land which might interest other investors. In addition appellant argues that promissory estoppel should have been applied by the trial court as a substitute for consideration.
An option contract to purchase land to be binding must be supported by consideration the same as any other contract. If no consideration was given in the present oase the trial court correctly found there was no more than a continuing offer to sell. An option contract which is not supported by consideration is a mere offer to sell which may be withdrawn at any time prior to acceptance. (91 C. J. S., Vendor and Purchaser, § 15, p. 868; 77 Am. Jur. 2d, Vendor and Purchaser, § 34, p. 214; cf. Talbott v. Nibert, 167 Kan. 138, 144, 206 P. 2d 131.)
The appellant in arguing his points on appeal makes, what appears to be, a self-defeating contention that the parol evidence rule excludes evidence of non-payment of the consideration expressed in the written instrument. K. S. A. 16-108 provides:
“The want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith.
Neither of the parties in this case can be classified as an innocent holder in good faith. They are both subject to the rule that parol evidence to establish a failure to pay a cash payment acknowledged in a written contract does not violate the parol evidence rule. (First Construction Co., Inc. v. Gallup, 204 Kan. 73, Syl. 3, 460 P. 2d 594.)
We turn next to appellant’s contention that the option contract should have been enforceable under the doctrine of promissory estoppel. This doctrine has been discussed in Marker v. Preferred Fire Ins. Co., 211 Kan. 427, 506 P. 2d 1163, and in Kirkpatrick v. Seneca National Bank, 213 Kan. 61, 515 P. 2d 781. In Marker it is held:
“In order for 'the doctrine of promissory estoppel to be invoked the evidence must show that the promise was made under circumstances where the promisor intended and reasonably expected that the promise would be relied upon by the promisee and further that the promisee acted reasonably in relying upon the promise. Furthermore promissory estoppel should be applied only if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice.” (211 Kan. 427, Syl. 4.)
In Kirkpatrick it is held:
“Under the doctrine of promissory estoppel a promise is binding and will be enforced when it is a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance and if injustice can be avoided only by enforcement of the promise.” (213 Kan. 61, Syl. 1.)
In order for the doctrine of promissory estoppel to be invoked as a substitute for consideration the evidence must show (1) the promise was made under such circumstances that the promisor reasonably expected the promisee to act in reliance on the promise, (2) the promisee acted as could reasonably be expected in relying on the promise, and (3) a refusal by the court to enforce the promise must be virtually to sanction the perpetration of fraud or must result in other injustice.
The requirements are not met here. This was an option contract promising to sell the land to appellant. It was not a contract listing the real estate with Kmoch for sale to others. Kmoch was familiar with real estate contracts and personally drew up the present option. He knew no consideration was paid for the same and that it had the effect of a continuing offer subject to withdrawal at any time before acceptance. The acts which appellant urges as consideration conferred no special benefit on the promisor or on his land. The evidence which appellant desires to introduce in support of promissory estoppel does not relate to acts which could reasonably be expected as a result of extending the option promise. It relates to time, effort, and expense incurred in an attempt to interest other investors in this particular land. The appellant chose the form of the contract. It was not a contract listing the land for sale with one entrusted with duties and obligations to produce a buyer. The appellant was not obligated to do anything and no basis for promissory estoppel could be shown by the evidence proposed.
An option contract can be made binding and irrevocable by subsequent action in reliance upon it even though such action is neither requested nor given in exchange for the option promise. An option promise is no different from other promises in this respect but cases are rare in which an option holder will be reasonably induced to change his position in reliance upon an option promise that is neither under seal nor made binding by a consideration, or in which the option promisor has reason to expect such change of position. (1A Corbin on Contracts, § 263, pp. 502-504.)
When an option is conditioned upon a performance of certain acts, the performance of the acts may constitute a consideration to uphold a contract for option; but there is no such condition imposed if the acts were not intended to benefit nor were they incurred on behalf of the optionor.
The appellant argues that to assume Berryman gave the option without expecting something from him in return is to avoid the realities of the business world and that consideration was encompassed by a promise for a promise. The difficulty with that argument is apparent. Appellant did not promise to purchase the land. He was required to do nothing and any assertion that Berryman expected him to raise and pay money for the land as consideration for the option confuses motive with consideration.
In 17 Am. Jur. 2d, Contracts, § 93, pp. 436, 437, it is said:
“The motive which prompts one to enter into a contract and the consideration for the contract are distinct and different things. . . . These inducements are not . . . either legal or equitable consideration, and actually compose no part of the contract. . . .”
In 1 Williston on Contracts, 3rd Ed., § 111, p. 439, it is stated:
“Though desire to obtain the consideration for a promise may be, and ordinarily is, the motive inducing the promisor to enter into a contract, yet this is not essential nor, on the other hand, can any motive serve in itself as consideration. . . .”
Appellant here confuses Berryman s possible motives — to sell the land — with consideration given. The fact Berryman expected appellant to expend time and money to find a buyer is really irrelevant because he was not bound to do so. He made no promise legally enforceable by Berryman to that effect. To be sufficient consideration, a promise must impose a legal obligation on the promisor. (17 Am. Jur. 2d, Contracts, § 105, pp. 450-451.) As stated in 1A Corbin on Contracts, § 263, p. 505:
“. . . So, if the only consideration is an illusory promise, there is no contract and no binding option, although there may still be an operative offer and a power of acceptance.”
Time and money spent by a party in trying to sell property for which he holds an option cannot be construed as a consideration to the party from whom he has secured the option. (Comstock v. North, 88 Miss. 754, 41 So. 374; Axe v. Tolbert, 179 Mich. 556, 146 N. W. 418; Kelley v. Rouse, 188 Cal. App. 2d 92, 10 Cal. Rptr. 235.)
Two cases relied on by appellant to support his position are Talbott v. Nibert, supra, and Steel v. Eagle, 207 Kan. 146, 483 P. 2d 1063. They are not persuasive and are readily distinguishable on the facts.
In Talbott the plaintiff had acquired an option to purchase majority stock interests in an oil drilling company from another stockholder. In reliance on the option plaintiff personally obtained valuable drilling contracts for the company, paid off a $23,000.00 mortgage on a drilling rig and pulled the company out of financial straits. During this time the stock had increased in value from $90.00 per share to $250.00 per share, largely as a result of plaintiff’s efforts. It was plaintiff’s intention to acquire a controlling interest in the company by exercising the option, this the optionor knew. The court found the option-offer was duly accepted and the purchase price was tendered before revocation. In our present case the option-offer was withdrawn before acceptance. We will discuss the withdrawal of the option later in this opinion.
In Steel the option was for the sale of a milling company. The option agreement stated that the optionee promised to place $5,000.00 with an escrow agent no later than a specified time in the future and that if the option was not exercised according to its terms the $5,000.00 would be forfeited. It was held that the option was adequately supported by consideration, a promise for a promise. The optionor granted the option and promised to transfer title to the company. The optionee promised to pay $5,000.00 as evidence of good faith, said sum to be forfeited in event the option was not exercised. This is not the case here. Our present option recited a completed payment of $10.00, even though it had not been paid. Payment during the option period was not contemplated by either party and the tender of the $10.00 was not made by defendant-appellant in his counter-claim when that pleading was filed.
Now we turn to the question of revocation or withdrawal of the option-promise before acceptance.
Where an offer is for the sale of an interest in land or in other things, if the offeror, after making the offer, sells or contracts to sell the interest to another person, and the offeree acquires reliable information of that fact, before he has exercised his power of creating a contract by acceptance of the offer, the offer is revoked.
In Restatement of the Law, Second, Contracts, § 42, p. 96, it is said:
“An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.”
The appellant in his deposition admitted that he was advised in July, 1973, by telephone that Berryman no longer wanted to be obligated by the option. Appellant further admitted that he was advised in August, 1973, by a representative of the Federal Land Bank, which held a substantial mortgage on the land, that Berry-man had disposed of this land. The appellant’s power of acceptance was terminated thereby and any attempted exercise of the option in October came too late when you consider the appellant’s own admissions.
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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 felony murder. (K. S. A. 21-3401.)
The facts reveal a cruel and bizarre homicide. Defendant Harold Allen Rueckert and Patrick Michael Sharkey spent most of the evening of December 21, 1973, bar-hopping in Overland Park, Kansas. At approximately midnight they were driving west on Merriam Lane when they came upon a slow-moving white 1962 Chevrolet. The car was driven by the Reverend Mr. Nathaniel Collins, a 73-year-old retired black minister, who was returning home from a church meeting. After following the minister’s car for some time, defendant took his .22 caliber rifle from the gun rack located in the back window of his pickup and began firing at the car. Sharkey then shot the rifle, hitting the rear tires and causing them to go flat. Collins pulled his vehicle into the parking lot of the Eagles’ Club in the 4700 block of Mérriam Lane. Defendant continued driving west.
After driving five or six blocks, defendant turned his truck around and proceeded back to the disabled vehicle. When defendant and Sharkey arrived at the parking lot, the minister was looking at the flattened tires. The three men entered into a conversation about the tires. As Collins bent over to look at one of the tires, defendant picked up a jack post lying next to the car and struck him in the head. After striking him several times, defendant rifled his victim’s pockets, taking his wallet. Defendant gave Sharkey the wallet; whereupon Sharkey removed the contents and threw the wallet aside.
Taking the murder weapon with them, defendant and Sharkey got back in the truck. As an afterthought, Sharkey decided to retrieve the wallet. The two men drove away and when they crossed a bridge, Sharkey threw out the wallet and jack post. The wallet went over the railing into the river, but the jack post fell onto the bridge. Defendant stopped the truck after crossing the bridge. Sharkey then took the wheel and drove back onto the bridge where defendant got out, picked up the jack post, and threw it into the river. The two men spent the remainder of the night at Sharkey’s apartment. The next day Sharkey gave defendant forty dollars, half the proceeds of the robbery.
At approximately 3:00 a. m., Collins was discovered in the parking lot, and police and an ambulance were summoned. He was rushed to the K. U. Medical Center where, despite the efforts of several doctors, he died shortly thereafter.
Police investigators processed the crime scene and found blood on and about the automobile. They also removed both rear wheels and took them to the crime lab where four lead slugs were recovered. During their investigation of the crime authorities came into possession of a rifle defendant had given to an acquaintance. A bullet comparison test indicated the slugs in the tires came from defendant’s gun.
Both Sharkey and defendant were charged with felony murder and aggravated robbery. Sharkey pled guilty to second degree murder and became a state’s witness. Defendant was tried and found guilty of felony murder.
I. Endorsement of Witnesses
As his first point on appeal defendant contends the trial court erred in allowing the state to endorse Sharkey as its witness at the commencement -of trial. This procedure is governed by K. S. A. 22-3201 (6) (nowK. S.A. 1976 Supp. 22-3201 [6]) which requires the prosecuting attorney to endorse on the information the names of witnesses known to him at the time of filing. He may thereafter endorse the names of additional witnesses if he obtains permission of the court. (State v. Robertson, 203 Kan. 647, 455 P. 2d 570; State v. Poulos, 196 Kan. 287, 290, 411 P. 2d 689, cert. denied, 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.)
The right of the state to endorse additional witnesses rests within the sound discretion of the trial court. Its ruling will not be disturbed in the absence of a showing of an abuse of discretion. The test is whether the defendant’s rights have been prejudiced. (State v. Rogers, 217 Kan. 462, 537 P. 2d 222; State v. Collins, 217 Kan. 418, 536 P. 2d 1382; State v. Williams & Reynolds, 217 Kan. 400, 536 P. 2d 1395; State v. Price, 215 Kan. 718, 529 P. 2d 85; State v. Blocker, 211 Kan. 185, 505 P. 2d 1099.)
Defendant shows no evidence of surprise or prejudice. The witness was known to counsel and had been interviewed by him four days prior to trial. At no time did defendant express the need for additional time due to surprise. In fact counsel admitted to the trial court that he fully expected Sharkey to be called as a witness. Defendant asks this court to presume prejudice because the witness was an accomplice to the crime. This court has not in the past and will not now create a special rule merely because the endorsed witness was an accomplice. (State v. Motor, 220 Kan. 99, 551 P. 2d 783; State v. Robertson, supra.)
II. Severance of Defendants
After defendant and Sharkey were arraigned on charges of aggravated robbery and felony murder, defendant moved the court for a determination of his competency to stand trial. The trial court ordered defendant to be transferred to Larned State Hospital for psychiatric evaluation. While defendant was at Larned, the court severed the cases involving defendant and Sharkey and brought Sharkey to trial. Defendant complains he was prejudiced as he was not present and represented by counsel at the severance hearing.
Defendant argues the severance motion was a “critical stage” of the proceeding and he was entitled to notice in order to have counsel present. We cannot agree. A motion to sever is not a “critical stage” of the proceeding which requires counsel to be present as is an arraignment, preliminary hearing, or pretrial custodial interrogation. (White v. Maryland, 373 U. S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050; Coleman v. Alabama, 399 U. S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999; Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974.) The granting of separate trials is a discretionary power which rests in the hands of the trial court. (K. S. A. 22-3204.) A defendant does not have the right to ■be tried with or separate from a codefendant if no prejudice to his rights can be shown. (State v. Sully, 219 Kan. 222, 547 P. 2d 344; State v. Williams & Reynolds, supra.) Here the trial court was forced to sever the cases against the two defendants. Sharkey was entitled to his right to a speedy trial pursuant to K. S. A. 22-3402 (1) (now K. S. A. 1976 Supp. 22-3402 [1]) and this right could not be sacrificed merely because defendant was undergoing a competency determination. The decision of the trial court did not prejudice the rights of defendant.
III. Felony Murder Rule
Defendant’s next two points deal with the application of the felony murder rule. He argues the trial court erred in failing to instruct on the lesser degrees of homicide. Because evidence of the commission of the underlying felony, aggravated robbery, is weak, different inferences as to the degree of homicide committed might be drawn by the jury. In support of this proposition defendant cites State v. Bradford, 219 Kan. 336, 548 P. 2d 812.
Normally, a trial court is required to give a full range of lesser included offense instructions; however, when a murder is committed during the commission of a felony the rule requiring instructions on lesser included offenses does not apply. (State v. Reed, 214 Kan. 562, 520 P. 2d 1314; State v. Masqua, 210 Kan. 419, 502 P. 2d 728, cert. denied, 411 U. S. 951, 36 L. Ed. 2d 413, 93 S. Ct. 1939; State v. Germany, 173 Kan. 214, 245 P. 2d 981.) If a murder is committed during the perpetration of a felony, the felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. (State v. Goodseal, 220 Kan. 487, 553 P. 2d 279; State v. Guebara, 220 Kan. 520, 553 P. 2d 296; State v. Clark, 204 Kan. 38, 460 P. 2d 586; People v. Nichols, 230 N. Y. 221, 129 N. E. 883 [1921].)
An exception to this rule was created in State v. Bradford, supra. There the defendant and his accomplice, the state’s star witness, had been on a drinking spree. Defendant decided to rob someone. He and the state’s witness found a victim, struck him over the head, and dragged him into an alley. Defendant picked up a large rock or cement block to “finish him off.” He then allegedly went through the victim’s pockets, removing a paper pad which was in his possession when he was arrested. The state charged the defendant with first degree murder committed during the perpetration of a robbery. After proper instruction the defendant was convicted of second degree murder. On appeal the defendant claimed the instruction on second degree murder was improperly given, that the case was a felony murder case and that he could only be found guilty of first degree murder or acquitted. In affirming the conviction this court said:
“In the case at hand, conflicting evidence was presented as to whether or not the felony charged, robbery, had occurred. The evidence introduced by the defendant was calculated to suggest to the jury that the defendant had not committed the robbery or else he would have had something in his possession beyond a valueless note pad to show for it. Defendant’s evidence indicated that the deceased had a large sum of money with him prior to his death. Defendant had but five dollars in his possession when arrested. The evidence was thus disputed and unclear as to whether or not a robbery had been perpetrated. Lacking was the clear and uncontroverted evidence of robbery in Reed, or of forcible rape in Masqua.
“The testimony of Carlie Moss, defendant’s .accomplice, was subject to doubt in part or in whole. He told the police numerous stories, some not involving the defendant, before settling on the story which he told to the jury. The jury might well have believed his testimony as to the manner of the victim’s death, but not concerning the attempted robbery.
“While we agree that in a felony murder case no instructions on lesser degrees of homicide should be given where all of the evidence demonstrates that the homicide was committed during the commission of a felony (40 Am. Jur. 2d, Homicide, § 534), we hold that the rule is otherwise where, as here, evidence of the commission of the felony is disputed or unclear, where the evidence supports instructions on lesser degrees, and where different inferences and conclusions might be drawn by the trier of fact as to which degree of homicide, if any, was committed. State v. Wilson, 182 Or. 681, 684, 695, 189 P. 2d 403.” (pp. 342-44.)
While the rule set forth in Bradford is sound, we do not believe the rule compels a similar conclusion in this case. Here the undisputed evidence was sufficient to convince a reasonable mind that a felony had been committed; therefore, instructions on lesser degrees of homicide were not warranted. Sharkey testified defendant struck the minister on the head with a jack post and when he fell to the ground, mortally wounded, defendant took his wallet. Two witnesses testified that defendant later told them he and Sharkey had hit the old “nigger” in the head and had taken money from him. Defendant testified he could not remember whether he struck and robbed the minister because he had too much to drink.
Evidence of intoxication alone does not necessitate the giving of instructions covering lesser degrees of homicide in a felony murder case when the underlying felony is aggravated robbery. Voluntary intoxication is not a defense to a general intent crime, although it may be used to demonstrate the inability to form a particular state of mind necessary for a specific intent crime. (State v. Farris, 218 Kan. 136, 542 P. 2d 725.) Specific intent is not an element of the crime of aggravated robbery. (State v. Thompson, 221 Kan. 165, 558 P. 2d 1079.) Therefore, either defendant perpetrated the robbery and is responsible for the murder, or he did not commit the robbery and murder, and is not guilty of any degree of homicide. Although the trial court gave an instruction on intoxication, it was not reversible error. Defendant should not be allowed to derive an advantage from an error from which he suffered no injury, but on the contrary derived a benefit. (State v. Carpenter, 215 Kan. 573, 527 P. 2d 1333.)
Using State v. Clark, supra, as a springboard, defendant argues the aggravated robbery was part and parcel of the homicide and could not be used to create a felony murder. In Clark, the defendant was convicted of first degree murder of his wife under the felony murder rule. The defendant and his wife had been having marital difficulties which the defendant solved by stabbing her. The state invoked the felony murder rule alleging the underlying felony was aggravated assault with the murder weapon. This court disapproved the use of the aggravated assault as the underlying felony when it was the same act which resulted in homicide. (See also, State v. Moffitt, 199 Kan. 514, 431 P. 2d 879; State v. Fisher, 120 Kan. 226, 243 Pac. 291.)
Defendant argues the merger rule set forth in the foregoing authorities causes the aggravated robbery in this case to merge into the homicide and precludes the use of the felony murder rule. We cannot agree.
The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide. If this is not true then the felony must be a separate and distinct offense and the doctrine of merger does not apply. While the force used to commit the robbery is an integral part of the aggravated robbery, it is not the entire body of that offense. The essence of the aggravated robbery is to deprive a person of property, which is not an element of homicide. The aggravated robbery and the homicide do not merge.
In People v. Burton, 6 Cal. 3d 375, 99 Cal. Rptr. 1, 491 P. 2d 793, the California Supreme Court faced this question. The court held that the merger rule does not apply in a felony murder case when the underlying felony is armed robbery. Rejecting the defendant’s argument the court stated:
“The net effect of defendant’s argument would be to eliminate the application of the felony-murder rule to all unlawful killings which were committed by means of a deadly weapon, since in each case the homicide would include in fact assault with a deadly weapon, even if the homicide resulted from the commission of one of the six felonies (arson, rape, mayhem, robbery, burglary or lewd and lascivious acts upon the body of a child) enumerated in section 189 of the Penal Code. It is, of course, possible to interpret our language in Ireland and Wilson to mean merely that if the facts proven by the prosecution demonstrate that the felony offense is included in fact within the facts of the homicide and integral thereto, then that felony cannot support a felony-murder instruction. However, we reject this interpretation of that language and its consequent assertion that the felony-murder rule has been abolished in all homicides accomplished by means of a deadly weapon as unwarranted both in logic and in principle.
“We conclude that there is a very significant difference between deaths resulting from assaults with a deadly weapon, where the purpose of the conduct was the very assault which resulted in death, and deaths resulting from conduct for an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon. Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct. In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide was assault with a deadly weapon, namely the infliction of bodily injury upon the person of another. The desired infliction of bodily injury was in each case not satisfied short of death. Thus, there was a single course of conduct with a single purpose.
“However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. . . .
“. . . The key factor as indicated earlier in the enumerated felonies is that they are undertaken for a felonious purpose independent of the homicide.
“Defendant in this case by embarking upon the venture of armed robbery brought himself within the class of persons who the Legislature has concluded must avoid causing death or bear the consequences of first degree murder. The trial judge quite correctly instructed on felony murder based on homicides directly resulting from the commission of armed robbery.” (pp. 386-88.)
We adopt the foregoing from the California court as logical and sound. Applied to facts in the instant case we hold a felony murder conviction may be based upon aggravated robbery even though death was caused by the acts of violence constituting aggravated robbery, because there are elements of aggravated robbery which evidence felonious purpose independent of the homicide. (People v. Burton, supra; People v. Nichols, supra.)
IV. Mistrial
Defendant next alleges the trial court abused its discretion by not granting defendant a mistrial. Midway through trial the prosecution came into possession of one of defense counsel’s files. It appears that as the trial court recessed on May 30, 1974, an assistant district attorney and his trial assistant proceeded to gather up their files. Inadvertently they picked up a file belonging to defense counsel, who had already left , the courtroom. The files were taken to the district attorney’s office where they were left overnight. The next morning as the prosecutor was assembling his files in the courtroom, he discovered the extra file. Defendant’s counsel, who had not missed the file, was immediately informed of the incident.
Defendant brought the matter to the attention of the trial court by moving for a mistrial. The court heard both parties and through questioning found the taking of tíre file to be completely accidental and unintentional.
Under K. S. A. 22-3423, broad guidelines are set out for granting mistrials, all subject to the discretion of the trial court. Absent an abuse of discretion the decision of the court will not be set aside. (State v. Culbertson, 214 Kan. 884, 522 P. 2d 391.) The trial court had the best perspective of the problem with the wayward file; from our view, the manner in which it acted was not an abuse of discretion.
V. Discovery Order
Defendant alleges prejudicial error on the prosecution’s failure to comply with a discovery order. Motion for the order for in camera inspection was filed on February 20, 1974. The motion requested, inter alia, that the court require the state to produce any and all matters contained in its file which might be favorable to defendant. The trial court granted the motion and required the state to submit its file for inspection by the court. Further, the pretrial order required the state to turn over all scientific tests to the defendant for inspection.
A state’s witness revealed during cross-examination at the trial that a test had been conducted on blood samples found on the victim’s car which indicated the presence of blood of a type different from the victim’s or defendant’s. A report of the test had been sent to the district attorney and was in his file, but had been overlooked by the trial court in its in camera inspection, and by the prosecutor. At the time of the revelation defendant made no motion for mistrial, continuance or any other remedial action as set forth in K. S. A. 22-3212 (7), but instead continued to cross-examine the witness. The implication that the blood was that of a third person, possibly the real culprit, was argued to the jury by defendant.
The first objection to the violation of the discovery order was made in a motion for a new trial. The trial court ruled that no prejudice resulted because defendant had an opportunity to develop the value of the evidence through cross-examination. When the prosecution is charged with having failed to comply with a discovery order the sanctions to be imposed under K. S. A. 22-3212 (7) must be left to the discretion of the trial court. (State v. Villa & Villa, 221 Kan. 653, 561 P. 2d 428.)
Defendant argues the question is controlled by Brady v. Maryland, 373 U. S. 83,10 L. Ed. 2d 215, 83 S. Ct. 1194. We do not agree. Brady applies to suppressed evidence. In State v. Walker, 221 Kan. 381, 559 P. 2d 381 (No. 48,277, decided January 22, 1977), this court said:
“. . . 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.” (p. 383.)
VI. Instructions
As defendant’s seventh allegation of error he argues the trial court "erred when it refused to instruct on independent superseding cause and by refusing to allow evidence thereon.” We see no merit to the argument.
The record reveals extensive testimony concerning the nature and extent of the victim’s injuries, the diagnosis and treatment made by the doctors at the K. U. Medical Center upon the victim’s arrival, and the cause of the victim’s death. There is no evidence in the record to indicate the trial court refused to permit defendant to develop his inquiry into the treatment given the victim or the cause of his death. Furthermore, the trial court instructed the jury as follows on the proximate cause of death:
“INSTRUCTION 16
“To constitute murder there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.
“The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.
“There may be more than one proximate cause of a death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death regardless of the extent to which each contributes to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death.
“INSTRUCTION 17
“The fact, if it be a fact, that some other person was guilty of negligence, which was a contributory cause of the death involved in the case, is no defense to a criminal charge.
“INSTRUCTION 18
“Where the original injury is a proximate cause of the death, the fact that the immediate cause of death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not relieve the person who inflicted the original injury from responsibility.
“INSTRUCTION 19
“If a person unlawfully inflicts upon another person a physical injury which is a proximate cause of the latter’s death, such conduct of the former constitutes an unlawful homicide even though the injury thus inflicted was not the only cause of the death, and although the person thus injured had been already enfeebled by disease, injury, physical condition or other cause and although it is probable that a person in sound physical condition thus injured would not have died from the injury, and although it is probable that the injury only hastened the death of the injured person and that he would have died soon thereafter from another cause or other causes.”
The instructions set forth by the trial court are a correct reflection of the law. Where a person inflicts upon another a wound which is calculated to endanger or to destroy life, it is not a defense to a charge of homicide that the alleged victim’s death was contributed to or caused by the negligence of the attending physicians or surgeons. The concept of intervening cause in both tort and criminal law is predicated upon foreseeability. Since human beings are not infallible, some degree of a doctor’s negligence is foreseeable and cannot be used by a defendant to exonerate himself. Neither can a defendant use as a defense the possibility that different or more skillful treatment might have saved the life of the deceased, and thereby avoid the consequences of his attack. Defendant must show that erroneous or unskilled medical care became the efficient intervening cause of death and superseded the effect of the wounds inflicted by defendant so as to become the proximate cause of death. These are all jury questions. (State v. Cox, 82 Idaho 150, 351 P. 2d 472 [1960]; People v. Stamps, 8 Ill. App. 3d 896, 291 N. E. 2d 274 [1972]; People v. Flenon, 42 Mich. App. 457, 202 N. W. 2d 471 [1972]; Anno: “Homicide: liability where death immediately re- suits from treatment or mistreatment of injury inflicted by defendant,” 100 A. L. R. 2d 769.)
VII. Extra-Judicial Statements
Defendant next alleges the trial court admitted irrelevant testimony. James Kalahurka testified he was a friend of the defendant and worked with him. He testified that on December 22, 1973, while at work, defendant told him that “Me and Mike hit a nigger on the head and robbed him of $80.00.” He further testified that defendant owned a .22 caliber rifle. After cross-examination and redirect defendant moved to have the testimony stricken as not relevant to any issue of fact in the case. The motion was denied.
K. S. A. 60-401 (b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” All relevant evidence is admissible unless otherwise excluded by statute. (K. S. A. 60-407 [f],) We hold the testimony of Kalahurka was relevant to the case and was admissible.
VIII. Sufficiency of Evidence
Defendant challenges the sufficiency of the evidence. He alleges the state failed to prove defendant possessed criminal intent to rob at the time he struck Coffins. The felony murder rule only requires proof that a felony was attempted or committed during the course of which a homicide resulted. (K. S. A. 21-3401.) There was compelling evidence to support such a finding of guilt based on the testimony of Sharkey, the bullet tied to defendant’s rifle, and the two extra-judicial statements by defendant admitting the crime.
IX.Equal Protection and Due Process
Finally, defendant alleges he was denied due process and equal protection of law. The point appears to be an accumulation of all points previously raised and discussed. Defendant’s rights were not prejudiced by any error or impropriety at trial which requires reversal.
The judgment of the trial, court is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
Alice Rae King was charged with first degree murder for shooting her estranged husband three times at close range with a semi-automatic twelve gauge shotgun. She claimed self-defense, but was convicted by a jury of second degree murder and has appealed.
The evidence is largely undisputed. The Kings were married in 1968, but separated in August, 1973. There followed a series of hostile meetings over the custody of their daughter, during which William King apparently threatened the defendant on more than one occasion. In March, 1974, she filed a separate maintenance action. Shortly after 8:00 a. m. on March 23, 1974, William appeared at defendant’s door, following an angry telephone conversation over the daughter. She told him to go away, and had her stepbrother call the police.
William left, got in his truck, and drove down the street. He stopped, however, and backed up to the front of defendant’s house. There, she said, he reached over and appeared to take something out of the glove compartment. This prompted a request by defendant for her shotgun, which her stepbrother brought her from a bedroom closet. The defendant said she thought William King had something in his hand as he came up the walk. One stepbrother thought he did too, while another didn’t see anything in William’s hand. (No weapon was ever found either on or near William’s body.)
Just as William stepped onto the porch the defendant fired the shotgun through a picture window, striking William in the face, neck and shoulder and knocking him down. (A pathologist’s examination indicated these wounds were superficial and would not have caused death.) As he lay on the porch defendant opened the door, poked the gun barrel through the screen door and fired, then poked it through again and fired yet a third time. These last two shots, fired from a range of about two or three feet, struck William in the middle of his back and proved to be fatal. Defendant’s stepbrother testified that as she fired through the screen she said “get up, you bastard.”
Defendant’s brother made a- second call to the police, this time requesting an ambulance. Defendant followed this with a third call, saying she had shot her husband and asking that the police and ambulance hurry.
Officer Dennis Landon of the Wichita police department arrived on the scene at 8:31, about five minutes after the first telephone call. He found the body on the porch and several people in the house. He testified that in response to a general question as to what had happened the defendant “spoke up and said she had shot her husband three times.” The officer read her her rights and asked her what had led up to the shooting. When her narration reached the point where she shot through the window he stopped her and told her she would be taken downtown and questioned.
An hour later, at the police station, she was first interviewed by Detective Darrell Oakley. He again advised her of her rights, whereupon she asked to and did call her attorney, who came to the station and conferred with the defendant. At about 10:30, with counsel present at least part of the time, she told her version of the affair to Detective Oakley. At about 11:30, some three hours after the shooting, she repeated her story, this time for the benefit of a tape recorder.
Defendant’s main point on appeal centers on the tape recording. In a rather unusual reversal of roles we find the state making no reference to the tape in its case in chief, with the defendant twice seeking to introduce it during the presentation of her defense. The court excluded it on both occasions, and on appeal she urges that its exclusion was error.
She urged its admissibility at one point in trial on the grounds that it was not hearsay but “an act which took place on the 23rd of March.” In this court she amplifies this statement by saying she wanted the jury to hear firsthand the product of her emotional state on the morning of the shooting. If such an argument was made below it does not appear in the record. The state, on the other hand, says the statement contained nothing exculpatory, and it is now at a loss to explain why it objected to the statement in the first place. Nevertheless, it asserts, the trial court was correct in excluding it at the times and under the circumstances in which it was offered.
The first offer came at the beginning of the defendant’s case, before the defendant took the stand. Detective Oakley was called as a defense witness, identified the tape, and explained the circumstances of its making. The defense thereupon offered the tape, and the state objected to it as hearsay. The defense argued it was not hearsay because it was a conversation “between the witness who is on the stand and the defendant in the courtroom.” The presence in court of the participants in the conversation did not, of course, mean the statement was not hearsay. It clearly was “a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.” (K. S.A. 60-460.) The trial court considered counsel’s statement as an effort to come within the exception of K. S. A. 60-460 (a), permitting previous statements made by “a person who is present at the hearing and available for cross-examination.” The court rejected this argument, observing that “the defendant is not available as a witness for cross-examination. In this ruling 'the court was clearly correct — the defendant was still protected by her Fifth Amendment privilege. See, State v. Oliphant, 210 Kan. 451, 502 P. 2d 626, Syl. 3.
The second offer came when the defendant took the stand. After identifying herself she told about making, the taped statement to Detective Oakley, and said she would have no objection to its being played to the jury. Defense counsel reoffered the tape, but the court sustained an objection, saying:
“The tape recording is a tape recording made by the defendant out of Court at a previous time. The defendant is here, is available to testify. Her testimony is better evidence than the tape recording. The tape recording is a prior consistent statement, apparently, but it is not consistent with anything she has testified to yet.”
The court went on to point out that it had discretion as to whether a prior statement should be admitted when the person making it is present in court, and concluded:
The best evidence of this witness’s version of what happened the morning of March 23rd is her testimony here today on the stand as to what happened on March the 23rd. If she makes statements and then the State presents any prior inconsistent statements, then the tape recording would be admissible as a prior consistent statement, but we have not yet reached that point. The best evidence being her testimony, is available.” (Emphasis added.)
In so ruling the trial court was conforming to the purposes behind the exception found in K. S. A. 60-460 (a). As Judge Gard concludes, after discussing situations where the exception does apply:
“. . . In other situations, where a party seeks to use out-of-court statements in a self-serving manner, in lieu of placing the declarant on the stand to testify, trial judges should ordinarily sustain objection under the broad discretionary authority to require the best evidence.” (Gard, Kansas Code of Civil Procedure Annotated, Supp., § 60-460, p. 171.)
Defendant’s testimony up to the time the offer was made went only to the circumstances surrounding the making of the tape. The statement was therefore not offered as a prior consistent statement to rehabilitate the witness, as proof that she was a “turncoat” witness, or to refresh her memory. (See generally, Gard, supra.) It was simply offered in lieu of her testimony. While the trial court could have admitted the statement for that purpose, it was not bound to do so. We hold that it was not an abuse of discretion to exclude the tape for the purpose for which it was offered.
Appellant urges in this court for the first time that the tape was also admissible under three other hearsay exceptions under K. S. A. 60-460: (d) contemporaneous statements, (/) confessions and (g) admissions. Counsel did not urge these avenues at trial, and in fact denied that the statements were hearsay. The trial court was thus not asked to and did not make the findings necessary for admission under (d), and considering the three hour time lapse between the event and the statement it is highly doubtful that such findings could have been supported. Exceptions (f) and (g) both make statements admissible against the opposing party, and not in favor of the party making them. Hence they would not have availed her if urged. And, if the tape comprised a confession or admissions, it is difficult to see how the defendant can claim prejudice.
Neither was admissibility claimed under the theory that the tape was an integral part or extension of defendants conversation with Officer Landon at the scene. It is well accepted that where the prosecution offers part of a conversation with the accused, the defense may show the balance of that conversation. State v. Reed, 213 Kan. 557, 516 P. 2d 913, Syl. 2; State v. Netherton, 128 Kan. 564, 279 Pac. 19, Syl. 1; State v. Brown, 21 Kan. 38, Syl. 5. The parties here, however, treated her abbreviated on-the-scene statement to Landon and her extensive stationhouse interview with Oakley as separate and discrete conversations. Considering the time interval and the defendant’s intervening consultation with her attorney we cannot blame either the parties or the trial court for not invoking the “one conversation” doctrine.
We would point out that there came a time during the trial when the tape would probably have been admitted if offered. After the trial court refused admission for the second time Mrs. King testified as to the events on the morning of the shooting. She testified that she did not remember whether she opened the door and fired the fatal second and third shots, or whether she saw her husband lying on the porch. On rebuttal Detective Oakley testified that the defendant had told him (in the taped statement) she had seen her husband lying on the porch, thought that he was getting up, and fired twice more through the screen. The trial court had anticipated just this situation in the emphasized portion of its earlier ruling, quoted above, where it said that if the state proved any prior inconsistent statements the tape would be admissible as a prior consistent statement. The defendant did not, however, seek the tape’s admission at that point, and we need not consider it further.
Defendant raises three other points which deserve brief mention.
First, appellant objected to the trial court’s “reasonable doubt” instruction, claiming that it informed the jury only of what reasonable doubt does not mean. She requested further amplification. Although we have said that the term “reasonable doubt” needs no further explanation at all, a conviction will not be reversed merely because an instruction defining the term is given. State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967, Syl. 10. The instruction given here has been approved in substance by this court, and the jury was not misled by it. State v. Ponds and Garrett, supra; State v. Price, 215 Kan. 718, 529 P. 2d 85; State v. Ritson, 215 Kan. 742, 529 P. 2d 90.
Second, the trial court instructed the jury that malice could be inferred from the use of a gun. Appellant objected to the instruction, preferring one which did not mention the permissible inference. The one given, she says, was inconsistent with her theory of self-defense. We find no error in the instruction. Unlike State v. Earnest, 56 Kan. 31, 42 Pac. 359, relied on by the appellant, the instruction did not tell the jury to presume malice. The jury was elsewhere properly instructed on the state’s burden of proof, the defendant’s presumed innocence and her theory of self-defense. The jury was thus required to consider the self-defense theory along with all the other evidence and was told only that it was entitled to infer malice from the use of a gun. Such has long been our law. State v. Hamilton, 216 Kan. 559, 534 P. 2d 226, Syl. 5; State v. Blake, 209 Kan. 196, 495 P. 2d 905, Syl. 4; State v. Earnest, supra, Syl. 1.
Finally, appellant contends there was no substantial evidence to support the jury’s verdict. Before a verdict can be set aside on that ground it must clearly be shown that upon no hypothesis whatever is there substantial evidence to support the jury’s conclusion of guilt. State v. Kane, 218 Kan. 13, 542 P. 2d 335. There was testimony here that defendant not only shot her husband when he was approaching the house, but that she opened her door, urged him to get up, and when he didn’t shot him twice more in the back as he lay on the porch. We believe such evidence was sufficient for the jury to infer that it was an intentional and malicious killing.
Affirmed.
APPROVED BY THE COURT. | [
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The opinion of the.court was delivered by
Schroeder, J.:
This is an interlocutory appeal by the state pursuant to K. S. A. 22-3603 from an order granting the defendant’s motion to suppress marihuana seized following a search of his automobile trunk.
The question presented pertains to the propriety of the trial court’s action in sustaining the defendant’s motion to suppress evidence alleged to have been illegally seized.
On September 1, 1975, a Mr. Burton called the Wichita police dispatcher and said an individual at the Pop-Top Tavern at 2503 South Meridian had tried to sell him some marihuana. Police Officers Nancy Bryan and Patrie Cunningham thereupon met Mr. Burton near .the tavern. Mr. Burton told them someone had been selling drugs to his son, and he felt that this was one of the sellers. Mr. Burton agreed to get the individual to show him the marihuana which was said to be in a car trunk. By arrangement with the police officers Mr. Burton was to say, “Okay,” when the trunk was open and the police would make their appearance and the arrest.
The police, from a concealed position, heard someone exit the tavern, open a car trunk and then say, “Okay.” The police approached Mr. Burton and Harold Hays (defendant-appellee) who were standing at the rear of a 1967 Oldsmobile parked behind the Pop-Top Tavern. The police observed a small saddle, a stack of records, and a brown grocery sack in the open trunk. Officer Bryan recognized the saddle as being one described to her as stolen the night before when she had taken the complaint from the victim. The saddle had been described as a small child’s saddle, medium brown in color, hand-tooled with the steer covers torn off and pieces of leather still affixed to the stirrup bolts. The saddle in the trunk fit the description in every detail.
The appellee says he closed the trunk as soon as he saw the police, and that they were 50 feet away when he closed the trunk. However, the trial court took the testimony of the police officers as true.
The appellee had no identification for the police. He was advised of his Miranda rights and frisked for weapons. During this period, the appellee slammed the trunk of his car down. The police then placed the appellee under arrest. In response to police questions the appellee said he did not know how the records got into his car. He also said the saddle did not belong to him and there was no marihuana in the car. He did say that somebody named Van from Texas had used his car.
At first the appellee refused to sign a waiver of search form. Officer Cunningham then went to get a waiver of search form to read to the appellee in the hope that he would change his mind. While Officer Cunningham was gone, the trunk was reopened by the appellee. The grocery sack in the trunk was later found to contain seven plastic bags of marihuana. Officer Bryan testified the appellee voluntarily opened the trunk in the absence of Officer Cunningham and said, “All right, there.”
The appellee testified Mr. Burton grabbed him from behind, took the car keys from him and handed them to Officer Bryan who opened the trunk. The appellee denied being given his Miranda warnings and said he was not frisked until the police went through his car trunk. As heretofore stated, the trial court found the testimony of the police officers to be true.
On January 27, 1976, an information was filed charging the appellee with possession of marihuana with the intent to sell. (K. S. A. 1975 Supp. 65-4101, K. S. A. 65-4105, and K. S. A. 1975 Supp. 65-4127b.) On February 5, 1976, the appellee’s appointed counsel filed a motion to suppress illegally seized evidence. On February 13, 1976, the trial court conducted a hearing on the motion to suppress. Pertinent to this appeal, the trial court’s March 10, 1976, order found the search of the trunk of the appellee’s car was neither incident to a lawful arrest nor justified by probable cause or exigent circumstances. While the trial judge took the testimony of the police officers to be true, he thought the saddle in the trunk observed by the officers had nothing to do with this case. The trial court ruled the credibility of Mr. Burton was not established, and noted both he and the appellee had been drinking. Accordingly, the trial court sustained the motion to suppress.
Pursuant to K. S. A. 22-3603 the state has duly perfected an interlocutory appeal.
The state first contends the search of the appellee’s car trunk without a search warrant was proper since it was a search based upon probable cause.
In State v. Morin, 217 Kan. 646, 538 P. 2d 684, the court defined probable cause as follows:
“Probable cause, such as may justify an arrest or a search and seizure without warrant, is a reasonable ground for belief of guilt; and this means less than evidence which would justify condemnation or conviction; probable cause exists where the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” (Syl. 1.)
(See also State v. Walker, 217 Kan. 186, 535 P. 2d 924.)
Here Officer Bryan had taken the description of a stolen saddle the night before. She viewed a saddle matching the exact description. The officers also had Mr. Burton’s statements concerning marihuana in the car trunk. Finally, the officers heard the appellee disclaim any knowledge as to the saddle and witnessed his furtive behavior in trying to hide the brown paper sack in the fender well of the trunk. On the record before us, we find the arresting officers had probable cause to search the appellee’s car trunk for contraband. (State v. Morin, supra; State v. Mall, 216 Kan. 287, 532 P. 2d 1048; State v. Moretz, 214 Kan. 370, 520 P. 2d 1260; and State v. McCollum, 211 Kan. 631, 507 P. 2d 196.)
A similar factual situation existed in State v. Robinson, 203 Kan. 304, 454 P. 2d 527. There the police stopped Robinson’s car when they noticed it was without proper lights. Robinson got out and appeared unsteady on his feet. A reliable informer, who had told a vice-squad detective that a station wagon similar in appearance was being used for drugs, gestured that Robinson was the man. The police saw three brown paper sacks on the floor behind the front seat of Robinson’s car. Robinson disclaimed any knowledge about the sacks which were found to contain marihuana.
In the case at bar the appellee argues there was no evidence presented establishing the reliability of Mr. Burton. However, evidence as to the informer’s reliability in State v. Robinson, supra, was presented, in part, because the informer was never identified. Robinson does not establish that an identified citizen informer must have his reliability established in the same manner as an unidentified informant. It is enough that the police officer received his information from some person, here Mr. Burton, “who it seems reasonable to believe is telling the truth.” (State v. Clark, 218 Kan. 726, 732, 544 P. 2d 1372.)
The appellee also contends it was practical to obtain a search warrant prior to the search, citing State v. Schur, 217 Kan. 741, 538 P. 2d 689; and Coolidge v. New Hampshire, 403 U. S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied, 404 U. S. 874, 30 L. Ed. 2d 120, 92 S. Ct. 26. The appellee argues the automobile was parked on business premises and that there was no alleged accomplice. We fail to see how having a car parked on business premises where access is not meaningfully restricted aids the appellee. In Cardwell v. Lewis, 417 U. S. 583, 594-595, 41 L. Ed 2d 325, 94 S. Ct. 2464, the United States Supreme Court stated that the seizure of a car from a public lot instead of from a highway had “little, if any, legal significance. The same arguments and considerations of exigency, immobilization on the spot, and posting a guard obtain.” Such a rule applies to the search involved in the case at bar. Furthermore, there was simply no way for the police to know whether an accomplice was involved.
Probable cause alone is generally insufficient to support a warrantless search of a person’s property. However, if a police officer has probable cause to search the property of a person, and is faced with exigent circumstances — that the property to be searched is readily movable and may be moved before a search warrant can be obtained — he may search without a warrant. The officer’s right to search such movable property is not dependent on his right to arrest the person. His right to search is conditioned only upon the reasonable cause the searching officer has for a belief that the property contains items which offend against the law. (State v. Undorf, 210 Kan. 1,499 P. 2d 1105.)
State v. Schur, supra, is distinguishable. There the search of an apartment was involved, where the expectation of privacy is significantly greater than with one’s automobile. There the police officer, standing unobserved outside the apartment, noticed what appeared to be a marihuana cigarette lying on a coffee table inside the apartment. Instead of obtaining a warrant and returning, the police entered the apartment. Here the appellee, the owner of a movable automobile in a public place, clearly saw the police officers who observed what was in the opened trunk of his automobile.
We believe the factual circumstances presented are quite similar to those in Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975, reh. denied, 400 U. S. 856, 27 L. Ed. 2d 94, 91 S. Ct. 23. In Chambers the court recognized automobiles can be searched without a warrant under circumstances which would not justify the search without a warrant of a house or office, provided there is probable cause to believe that the automobile contains articles which the officers are entitled to seize. Here the officers’ view of the saddle provided such probable cause. (See also State v. Tygart, 215 Kan. 409, 524 P. 2d 753.) The latest United States Supreme Court cases have reaffirmed the validity of Chambers v. Maroney, supra. (Cardwell v. Lewis, supra; Texas v. White, 423 U. S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304, reh. denied, 423 U. S. 1081, 47 L. Ed. 2d 91, 96 S. Ct. 869; and South Dakota v. Opperman, 428 U. S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092.)
The state further contends the search of the appellee’s car trunk was proper as a search incident to a lawful arrest. The rule of law applicable here was stated in State v. Tygart, supra, as follows:
“The critical circumstances to be considered by a trial court in ruling on a motion to suppress evidence and in determining the reasonableness of the scope of a search of a motor vehicle incident to a valid arrest are: (1) Proximity of the vehicle to the place of arrest; (2) the probability that the vehicle contains seizable items related to the crime; (3) the amount of time which has elapsed between the arrest and the search; (4) the recent departure of the arrestee from the vehicle; (5) the fact that the vehicle had been employed in some way in connection with the crime; and (6) the character of the place of arrest, i. e., public street, business premises or private home. Other factors may bear upon the question and no single factor, standing alone, is decisive in a given case for each may have a significant effect on the court’s determination of whether the search was a reasonable one.” (Syl. 2.)
Here Officer Cunningham testified that after viewing the saddle in the trunk and having the appellee slam the trunk lid down the appellee wás then placed under arrest. Because the trial court found the testimony of the police officers to be true, it is clear from the record the appellee was arrested before, not after, the search. Officer Bryan’s knowledge of the saddle reported stolen and the close match to the saddle in the trunk provided probable cause to arrest and conduct a search incident to the arrest.
We hold the search of the automobile trunk and seizure of the marihuana was reasonable in scope and lawful on two grounds: It was incidental to an arrest and it was based on probable cause known to the officers. (State v. Tygart, supra at 414; and State v. Moretz, supra at 372.)
Although the trial court found there was no consent for the search, there was testimony at the hearing that the appellee consented to the search of his automobile trunk. Our decision, therefore, is not based on this premise.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action by Alice M. Duff to set aside a tax deed issued to Frances Peck Penick, conveying an eighty-acre tract of land owned by Alice M. Duff and sold for taxes on September 8, 1926, the tax deed was held to be voidable because of defects in the sale, and it was further decided that plaintiff was entitled to recover possession of the land upon the payment of taxes, which defendant had paid before and subsequent to the tax sale, with the interest, penalties and charges provided for by statute. The court also adjudged that from the sum of these there should be deducted any rents and profits received by defendant. There is no controversy as to the decision determining that the tax deed was voidable and no controversy as to the amount of the tax penalties, interest and charges, but the real controversy between the parties is as to rents and profits chargeable against the defendant.
The case came on for trial on November 25, 1931, and after hearing the evidence the court made the following finding and entered the same on its docket:
“The court finds that this tax deed is void on its face, and gives judgment for the plaintiff for the'recovery of the land and for $25 farm rent received. Plaintiff won’t be let into possession until he [she] pays to defendant the $79.92 with 12 per cent interest, and the subsequent taxes with 12 per cent interest and costs of the deed and costs of recording it. As to oil rental received by defendants, I am not ready to decide that. You can argue it if you want to.”
Later, and on January 2, the case came on for further hearing on the oil lease question, and the court determined that the matter of oil leases was outside of the case and that no charge or allowance should be made by reason of any bonus received for those leases, therefore they will be left out of consideration.
The court did take up again the question of rents, after the finding already made, and at that time found that there was due to plaintiff from rents and profits the sum of $183.29 and adjudged that the rents so found should be deducted from the taxes, interest, fees, penalties and charges that had been paid by the defendant.
There is much complaint of the action of the court in taking up the question of rents at the January session of the court. The defendant was a resident of Texas and was represented by her brother, an attorney, who had returned home on the theory that the question of rents had been already decided and was not present at the second trial on that question.
There is also complaint that the testimony with reference to rents was insufficient to justify the finding ultimately made by the court. It appears that defendant owned a quarter section of land which adjoined the eighty-acre tract for which she had received the tax deed. Both tracts had been rented to tenants. There were eight or ten acres of cultivated land .on the eighty-acre tract and sixty-five acres on the quarter section owned by her, and she was to receive one-third of the crop grown on the entire tract. There is a claim that there is a mingling of the returns, and an accounting of the rents on the whole which led to the increase of the rent allowance made by the court by which it was increased, from $25 to $183.29.
On a motion for a new trial much testimony was presented by the defendant that no more than $25 was established by the proof. The court, however, held that the testimony was not newly discovered and denied the motion for a new trial.
There is some reason to complain that the matter of rents was taken up a second time, after defendant and one of her attorneys were absent, and that the testimony with respect to rents, upon which the finding of the court was made, was not confined to the rents obtained from the eighty-acre tract in question.
The most important and the controlling question in the case is, Should rent be charged against a tax-title holder on land sold to him at a tax sale, possession of which he had taken under his tax deed which was subsequently adjudged to be defective and voidable, and the amount of such rent be set off against the taxes paid on the land by the tax-title holder? Here the rents were charged to defendant for a period when plaintiff was not entitled to possession of the land. In fact, it does not appear that up to this time she has paid the taxes, penalties and charges due to defendant, who had been paying taxes on the land since 1926. Plaintiff’s right to reclaim possession depended upon the payment by her of the taxes which defendant had paid, together with the interest, penalties and other charges prescribed by the statute. The statute provides definitely what the rights and extent of the liabilities are as between the owner of the fee title and the taxpayer and holder of a tax deed where the tax deed is adjudged to be defective and invalid. It provides:
“If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interest and cost as allowed by law up to the date of said tax deed, including the cost of such deed and the recording of the same, with interest on such amount at the rate of twelve per cent per annum, and the further amount of taxes after the date of such deed, and interest thereon at the rate of twelve per cent per annum.” (R. S. 79-2506.)
As will be observed, the tax deed, although defective, gives the holder of the tax deed the right of possession until all the taxes, interest and charges due to the defendant are paid, and provides that the owner of the original title cannot be let into possession until payment has been made to the tax-title holder. The claimant of the land must pay the amount of taxes, interest, etc., up to the date of the tax deed, and also the amount of taxes paid subsequent to the date of the tax deed, with interest thereon at twelve per cent per annum. This statute, and especially the provision with reference to setting off of rentals against the taxes to be paid, was interpreted and decided in the early case of Hoffmire v. Rice, 22 Kan. 749. There it was held that the tax-title holder was entitled to the possession of the land until the holder of the original title had paid the taxes and other charges mentioned in the statute, and that in the meantime the tax-title holder was entitled to the possession of the property without paying rents or anything else. In the opinion it was said:
“The rents cannot be set off against the taxes. This is also in accordance with the statutes above referred to. We are presuming, of course, that Rice was under no legal or moral obligation to pay the taxes, that he had a perfect right to purchase the property for the taxes, that the taxes were legal, and that it was merely for some irregularity in the tax proceedings for which said tax deed was set aside. The giving the tax-title holder the right to the possession of the property until the taxes are paid is one of the means employed by the state to enforce the prompt payment of taxes.” (p. 750.)
This ruling was referred to with approval in Ewing v. Baldwin, 24 Kan. 82, where Justice Brewer, speaking of the advantages given to a tax-title holder, said:
“The prospect of getting land at less than its market value is one of the inducements the state holds out to purchasers at tax sales to encourage such purchasers and insure prompt payment of taxes. And this policy, whether right or wrong, wise or unwise, the courts may not thwart.” (p. 90.)
The ruling referred to was approved in Keith v. Keith, 26 Kan. 26. In Coonradt v. Myers, 31 Kan. 30, 2 Pac. 858, the same view was taken, and there it was held that the tax purchaser obtained a right, not to an ordinary lien subject to foreclosure, but a right which was something in the nature of a title. It was said:
“A tax purchase is not primarily a purchase of the lien, but a purchase of a title. Upon the payment of taxes by a tax purchaser he acquires no lien which he can foreclose as an ordinary lien (citing cases). He simply purchases a title, and must rest upon that title until it is in some way challenged. If the proceedings are regular, his title is good; if simply irregular, and he takes possession, the statute of limitations may perfect his defective title, but he has nothing in the way of a lien he can enforce as such.” (p. 33.)
In Will v. Ritchie, 61 Kan. 715, 60 Pac. 734, some language is used which is inconsistent with the prior holdings as to the liability of the tax-title holder for rents. There a city lot was sold for taxes and a deed issued to the purchaser. He conveyed his interest to one York, who took possession of the property. Later York brought an action to quiet his title as against Barnes et al. While that action was pending the parties entered into a stipulation that one Will should be placed in possession of the property as the agent of York, and he was to receive rents already accrued and to become due, to make leases and generally take care of the lot, and that the rents collected by Will should be considered the value of the use and occupation of the property. The trial about a year later was decided against York, and when Barnes tendered York the amount, the court found due to him, which presumably was the taxes which had been paid, York refused to receive it. Sometime later York assigned to one Ritchie his rights and interests in the rents received by Will, pending the litigation between York and Barnes. Ritchie then brought the action against Will, and the judgment in that case was reviewed in 61 Kan. 715. The setting in the York-Barnes-case, including the stipulation between the parties, led the court, into considerations other than the matter of rents of property sold at the tax sale. It is said, however, in the opinion that a tax-title holder is liable to the owner of the legal title for rents of property which accrued during the pendency of an action by a tax-title holder to quiet his title. The opinion, however, did state that the tax-deed holder had the right to possession, which could not be taken, from him until he had been paid the taxes, interest and other charges-named in the -statute. It was there said:
“As the statute conferred on the tax-deed holder the right to possession, with no conditions attached, except that such right should continue only until the successful claimant repay to him the taxes and interest to which he was entitled, it could not be said that, for the enjoyment of such right, compensation must be made to the legal owner.” (p. 717.)
That case, however, appears to have been decided upon the theory that the possession was wrongful and on the general principle that a legal owner deprived of the possession of his land may recover the possession, as well as the value of the use of such possession of which he was wrongfully deprived. The possession was not wrongful until the taxes had been paid or tendered. The statute, as well as the decisions under it, are to the effect that one who secures a tax deed held to be defective and voidable has the right to possession and to hold it until he has been paid the taxes and charges named in the statute, and that such possession cannot be wrongful or the holder of the legal title be let into possession until such taxes are paid to the holder of the tax deed. Anything said to the contrary in Will v. Ritchie; supra, is disapproved.
The case of Longworth v. Johnson, 66 Kan. 193, 71 Pac. 259, it appears, involved the question we have here, and it was said that rents and profits may be set off against taxes paid. The court, without argument or reasoning, followed the decision of Will v. Ritchie, supra, saying: “We are satisfied with the reasoning of the decision.”
It must be held, as in Will v. Ritchie, supra, that anything in the decision contrary to the prevailing doctrine that the possession of the tax-deed holder is rightful until the tax is paid or tendered to him and that until that time he cannot be charged with rents, is disapproved.
The court, it appears, allowed the plaintiff in this case rent on the land and required the defendant to pay the same prior to the payment of the taxes, and, therefore, the judgment is reversed with directions to enter judgment in accordance with this opinion.
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The opinion of the court was delivered by
Smith, J.:
.This was an action to foreclose a mortgage on real estate. Defendant answered and filed a cross petition asking that his title be quieted. Judgment was for defendant. Plaintiff appeals.
The petition alleged the execution by defendant and his wife of the note and mortgage in question. It further alleged that plaintiff was the administrator of the estate of Henry C. Kuske, deceased, who had acquired the note and mortgage in question from Dean Gordon. It then alleged that the defendant was in default in his payments.
The defendant answered that he was in possession and held the legal title to the real estate in question. Defendant denied he had ever executed the note and mortgage in question, and, by way of cross petition, alleged that it constituted a cloud on his title, and he asked that his title be quieted.
The plaintiff alleged in his answer to this cross petition that on September 1, 1919, defendant and his wife entered into a lease and contract to purchase the real estate in question from Gordon; that they made payments under the contract until January 1, 1926; that on that date Gordon conveyed the property in question to defendants by a warranty deed; that on the same date defendants executed a note and mortgage on the real estate for $400.88 (this amount represented the amount still due on the lease and option to purchase contract); that the deed was recorded in the office of the register of deeds and contained the following reservation: “Reservation of vendor’s lien. Said Dean Gordon hereby reserves a lien on said real estate to secure the payment of a note of this date made by said Andrew J. Staley and his wife, for the sum of $400.88 given for part of said purchase money;” that at the time the note and mortgage sought to be foreclosed by the petition of plaintiff were executed there was due on the $400.88 note the sum of $385.33; and that the note which was sought to be foreclosed represented the balance due on the note for $400.88 and additional funds that were advanced by plaintiff to defendant, and that the note in question had not been paid. Plaintiff further answered that neither the mortgage in question nor the vendor’s lien had been paid, and that by reason of the assignment'pleaded he is possessed of all the rights of Dean Gordon in the premises and subrogated to all the rights of Gordon in and to the note and mortgage pleaded and to the vendor’s lien. The plaintiff prayed that the defendant take nothing by his cross petition and that, in the event the note and mortgage sued on were found to be forgeries, he be subrogated to the rights of the prior mortgagee,. Dean Gordon, and to the vendor’s lien pleaded in the amount of $385.33, with interest, that the judgment be decreed to be a lien on the real estate in question, and that the sheriff be directed to sell the real estate and apply the proceeds as follows:
“First: To the payment of the costs of said sale and of this suit. Second: To the payment of the taxes due on said real estate at the time of said sale. Third: To the payment of the sums and interest found due the plaintiff. Fourth: The balance, if any, to be paid into court to abide the further order thereof.”
The defandant replied and admitted the execution of the lease and contract of sale; admitted that Gordon delivered the deed to him on January 1, 1926. He denied that the reservation pleaded was in the deed when delivered. He alleged he had complied with all the provisions of the contract to purchase and was entitled to a deed on January 1, 1926. He denied the execution of the $400.88 note and the mortage securing it.
With the issues thus framed the case came on for trial to a jury. It was stipulated that the jury should act in an advisory capacity and should not return a general verdict but should answer special questions submitted.
The jury answered the following special questions, which are of interest to us:
“1. Did Andrew J. Staley sign the note and coupons marked ‘Exhibit 9,’ and dated November 15, 1927? A. No.
“2. Did Andrew J. Staley sign the mortgage marked ‘Exhibit 10/ and dated November 15, 1927? A. No.
“3. What sum remained due and unpaid, if any, on the lease and option to purchase contract marked ‘Exhibit 12/ dated September 1, 1919, on November 15, 1927? A. None.
“4. Did the deed, marked ‘Exhibit 13/ contain the clause reserving a vendor’s lien at the time the same was delivered by Dean Gordon? A. Not to Mr. A. J. Staley’s knowledge.
“5. Did Andrew J. Staley sign the note marked ‘Exhibit 14/ in the amount of $400.88, dated January 1, 1926? A. No.
“6. Did Andrew J. Staley sign the mortgage marked ‘Exhibit 15/ dated January 1, 1926, given to secure a note in the amount of $400.88? A. No.
“7. To whom did Dean Gordon deliver the deed marked ‘Exhibit 15’? A. The evidence does not show but indicates that it was mailed to the Staley residence.
“8. When did Andrew J. Staley first see the deed marked ‘Exhibit 15’? A. On or about June 18, 1927.
“9. When did Andrew J. Staley first know that the deed, marked ‘Exhibit 15/ contained the vendor’s lien clause? A. When this lawsuit was filed.
“10. Did Andrew J. Staley believe that Dean Gordon had delivered to Mrs. Staley the deed to the property, marked ‘Exhibit 15,’ with the vendor’s lien clause?- A. No.
“11. How long has Andrew J. Staley occupied the property involved in this action? A. Continuous since first contract, Sept. 1, 1919.”
Plaintiff moved the court to set aside the answers, which motion was denied. Judgment was then entered for defendant.. It is from this judgment that this appeal is taken.
Plaintiff argues that the answers to questions 1 to 6, inclusive, should have been set aside because they are contrary to the evidence and not supported by any credible evidence. The trouble with that argument is that this court cannot be the judge of the credibility of witnesses. That is the function of the jury and the trial court. It is true that this jury was acting in an advisory capacity only, but the trial court heard the witnesses and saw them on the stand and refused to set aside the answers.
The defendant denied on the witness stand that he had signed the instruments. There were admitted specimens of his signature submitted to the jury for comparison with the claimed signature. The mortgagee was not able to testify that he saw defendant sign the. note and mortgage. Under these circumstances this court is not able to conclude that the answers to the question under consideration were not sustained by sufficient evidence.
Plaintiff next argues that, even if the note and mortgage sued on were forgeries, still the evidence shows that these instruments were given to secure a valid indebtedness which was represented by the vendor’s lien, and that he is entitled to recover the amount of that lien.
We will examine the undisputed evidence first. It is not disputed that defendant and his wife executed the lease and option to purchase on September 1, 1919; that on January 1, 1926, Dean Gordon gave defendant a deed, and that on that date there was a $600 mortgage on the real estate, which defendant assumed. What is disputed as to this transaction is that the vendor’s lien heretofore set out in this opinion was reserved in this deed in the amount of $400.88. Plaintiff testified that this lien was also evidenced by a note and mortgage, which was not recorded; that it was reduced by payments to $353.58, and that on November 15, 1927, a new note and mortgage in the amount of $500 was executed by defendants and that he paid the difference between $500 and $353.58 to defendant. Defendant denied any knowledge of what plaintiff testified about subsequent to the delivery of the deed on January 1, 1926. The record discloses that the notary before whom the deed and the mortgage sued on were acknowledged was deceased at the time the action was brought, as was also the wife of defendant.
With reference to this feature of the case, the jury returned the answer to question No. 4. For convenience it will be again inserted in this opinion. It is as follows:
“4. Did the deed, marked ‘Exhibit 13,’ contain the clause reserving a vendor’s lien at the time the same was delivered by Dean Gordon? A. Not to Mr. A. J. Staley’s knowledge.”
It will be noted that the jury did not find the reservation was not in the deed when it was delivered to the defendant.
It is hard to see how the jury made the finding they did make. There can be no doubt that the reservation was in the deed when it was recorded. There can be no doubt that the deed was mailed to defendants after it was recorded. Defendant testified that he examined the deed after it was delivered to him and that the reservation was not in it then.
The testimony on this point, however, is far from satisfactory. It is apparent that the wife of defendant carried on all the negotiations with plaintiff concerning the purchase of the property and the execution of the various instruments connected therewith.
The point in dispute upon which this case must turn is whether at the time defendant received the deed on January 1, 192,6, he and his wife owed anything on the property besides the $600 mortgage, which is admitted. If he owed the $400.88, which is referred to in the vendor’s lien, then the plaintiff in this case is entitled to recover it from him on the theory that, even if the mortgage sued on was a forgery, it was given to secure the payment of money which was actually received by defendant and used to pay off an encumbrance on the real estate in question.
The direct evidence on this point is that of Dean Gordon and defendant. Gordon testified that the $400.88 was due and testified to further details as to subsequent transactions. The defendant testified on direct examination that Gordon told him at the time he gave him the deed that everything was paid up but the $600 mortgage. On cross-examination, however, he testified differently. The most graphic way to describe that testimony is to include the pertinent part of it herein. It is as follows:
“Q. Now, at the time you obtained that deed, how much did you understand that you owed on your place yet? A. Just the mortgage; that $600 mortgage when it was supposed to come due.
“Q. Did you arrive at that conclusion, how did you arrive at it, that all you owed was the $600? Did any one tell you that was all that was due? A. Mr. Gordon did.
“Q. When did he tell you that? A. He told me that in his office.
“Q. That was before you got the deed or afterwards? A. Before I got my deed.
“Q. Did you, at the time you got this deed, did you go up and ask him for the deed, to make you a deed? A. No, sir.
“Q. Who entered into these negotiations for the deed? A. My wife.
“Q. Your wife. Was she representing you at that time? A. Yes, sir.
“Q. Did you ever go up to Mr. Gordon’s office and figure out with him how much was still due on this contract? A. No, sir.
"Q. You never did? A. No, sir.
“Q. Then how do you know that there was some few hundred still remaining due on the contract? A. All I know was what Mr. Gordon said; there was $600 back on the contract.
“Q. Well, you just got through telling me that you never talked to him about it; that you never went up there to his office and figured up how much was due on it, didn’t you? I will ask you again. Did you ever go up to his office and figure up how much was due on this contract? A. No, sir.
“Q. Did he ever come to your place and go over the figures with you? A. No, sir.
“Q. You say Mrs. Staley went up there and made the arrangements to get the deed? A. Yes, sir.
“Q. And that she was representing you at that time? A. Yes, sir.
“Q. And you stated that when you got that deed all that was due was the $600, and that that $400 item wasn’t in there when you got the deed? A. No, sir.
“Q. Now how much did you owe Mr. Gordon at the time you got the deed? A. $600.
“Q. How do you arrive at that? How do you know that there was nothing due Mr. Gordon? A. That is what the wife told me.
“Q. Is that what you are basing all of your testimony on, just what she told you? A. Well, I wouldn’t base all of it on that, but she was the principal one that looked after all of the business.
. . . . . . . . .
“Q. Now you don’t know of your own knowledge, then, how much was due Mr. Gordon at the time you got that deed? All that you know is what your wife told you about it? A. Yes.
“Q. Now, when you are making payments under this contract, who would take the payment up to Mr. Gordon? A. My wife.
“Q. Did you ever take any up there? A. No, sir.
“Q. But you say you have receipts for the amounts that you have paid on the contract? The amount you have paid Mr. Gordon? A. I think I have got them all.
. . . . . . . . . .
“Q. How much money have you paid on that contract, Mr. Staley? A. Twenty-three hundred and something, I suppose.
“Q. How do you arrive at that figure? A. How?
“Q. Just tell the court and jury how you know that you have paid $2,312? A. Well, I don’t know hardly how I would do it.
“Q. As a matter of fact, you don’t know how much has been paid on this contract, do you, only what some one else has told you? Can you answer the question? A. No, I wouldn’t. I could not swear to it.
. . . . . . . . . .
“Q. Can you tell the court and jury how much you paid aside from this 8600? How much you paid Mr. Gordon from the time that you first entered into the contract up until the present date? A. I could not.”
An examination of this testimony in its entirety leads us to the conclusion that defendant never was able to testify of his own knowledge that Gordon told him that he only owed the $600 at the time he reserved the deed. Neither was he able to testify of his own knowledge as to the amount actually paid on the contract. On the other hand, the plaintiff testified clearly and directly as to the payments, and his testimony is borne out by many circumstances.
In Kemp v. Railway Co., 91 Kan. 477,138 Pac. 621, in discussing the question of whether there was sufficient evidence to sustain the verdict of a jury this court said:
“Courts should be careful not to encroach upon the province of jurors when the facts, although undisputed, are such that the minds of candid persons may draw differing inferences and arrive at opposing conclusions. This wholesome rule, however, should not be stretched so far as to relieve the court from the solemn duty of deciding the issue in cases like this where such divergence cannot be found consistently with reason and justice. In such a situation the question is one of law only.” (p. 483.)
Following this rule we have concluded that the trial court should have found from the evidence that at the time the deed was given to the real estate in question a vendor’s lien was reserved in the amount of $400.88 in addition to the $600 mortgage, and that this lien had been reduced by payments to $353.58 at the time the note and mortgage sued on were executed.
Since we have arrived at that conclusion as to the facts, we will examine the authorities in point. It is well settled that the vendor of real estate may reserve a lien to himself in the instrument by which he conveys. (See Smith v. Wyandotte County, 113 Kan. 244; Greeno v. Barnard, 18 Kan. 518, also Felzien v. Wieck, 118 Kan. 194, 234 Pac. 944.)
This court has considered the question of the right of one who has loaned money on a mortgage which turns out to be void for the purpose of paying a prior valid mortgage to be subrogated to the rights of the owner of the prior valid mortgage. In Zinkeison v. Lewis, 63 Kan. 590, 66 Pac. 644, the action was to foreclose-a mortgage. The husband testified that he had signed the wife’s name to the instrument. The record disclosed that the forged mortgage was given to obtain money with which to pay off encumbrances then existing on the land. The court held that the holder of the forged mortgage was entitled to be subrogated to the rights of the holder of the indebtedness that had been paid. The court used the following language:
“The facts bring the case within the authority of Everston v. Central Bank, 33 Kan. 352, 6 Pac. 605, where it was held that, if money is loaned on a forged mortgage, supposed to be valid, to be used, and which was used, to pay off a valid mortgage, the mortgagee or his assignee may be subrogated to the rights of the prior mortgagee, if there are no intervening liens or encumbrances. The general rule is that, where it. is. equitable and just that a person furnishing money to pay off a debt should be substituted for the creditor, he will be substituted and subrogated to all the rights held by the creditor.” (p. 592.)
To the same effect is Warne v. Morgan, 68 Kan. 450, 75 Pac. 480. There the court held:
“Where one loans money which is actually used in paying off a valid encumbrance on property, whether real or personal, exempt or otherwise, with an agreement with the borrower that he shall have a valid mortgage on such property, and a mortgage is given which afterward proves to be void because of defective execution, such mortgagee is entitled, upon application, to be subrogated to the rights of the mortgagee whose mortgage he paid to the amount paid by him for the release.”
That case cites and relies on Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453, which has been followed many times. It contains the following language, which states the principle involved in so clear a manner that it cannot be improved upon. The court said:
“But the right of subrogation or of equitable assignment is not founded upon contract alone, nor upon the absence of contract, but is founded upon the facts and circumstances of the particular case and upon the principles of natural justice; and generally, where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in the place of the creditor, such person will be so substituted.” (p. 499.)
The above language is in point here. Our examination of the record has convinced us that the mortgage sued on was given in part to secure the indebtedness that was an encumbrance on the real estate in question at the time the deed conveying the property to defendants was executed. The plaintiff was the assignee of the forged mortgage. The original mortgagee could have recovered on the original indebtedness and enforced it as a lien. His assignee is entitled to be subrogated to all his rights. Therefore, judgment should have been allowed in accordance with the prayer in the answer of the plaintiff to the cross petition of the defendant.
The judgment of the trial court is reversed with directions to enter judgment for plaintiff for $353.58, with interest, and foreclosing the vendor’s lien pleaded by plaintiff in accordance with the prayer of the answer of plaintiff to the cross petition of defendant.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was instituted by Alvah McCarry against Center township, Smith county, and its officers to recover damages for injuries sustained by him because of an illegal defective highway over which he was traveling — a highway which it is said it was the duty of the township to maintain and keep safe for travel.
The plaintiff alleged that there was an abrupt turn of the highway at an intersection of another highway by which a traveler going at a reasonable rate of speed could not discover the turn until it was too late to make it safely, and that as he approached the turn, going at a speed of thirty miles per hour, he did not and it was impossible for him to discover the turn in time to make it, with the result that he went into a ditch wrecking his car and seriously injuring him.
The answer of the defendants was first, a general denial, and in paragraph five of the answer it was alleged:
“That the said plaintiff, at the time of the accident complained of, was operating said automobile and using said highways in violation of law and in violation of the uniform operator’s and chauffeur’s license act, . . . had not at the time of the accident nor at any time prior thereto made application for nor obtained a license to operate a motor vehicle within the state of Kansas, although plaintiff was not exempted under the provisions of the laws of the state of Kansas from so doing. . . . And at the time of the accident, was personally operating and driving an automobile and thereby using the highways of Center township, Smith county, Kansas, without lawful right so to do, because of the failure of the plaintiff to obtain a license to operate an automobile in compliance with the uniform operator’s and chauffeur’s license act of the state of Kansas.”
The plaintiff filed a demurrer to the defense set out in paragraph five and moved to strike the same from the answer on the ground that the facts set forth failed to state a defense to the action. This demurrer was overruled, and an appeal by plaintiff was taken from the ruling.
The challenged ruling raises the question whether a motorist driving his car over and using the highways of the state without license or authority, and in direct violation of a statute, may recover damages from the municipality because of defects in the highway which caused injury to him. We have a statute which provides:
“No person except those expressly exempted under the provisions of this act shall drive any motor vehicle upon a highway in this state unless such person upon application has been licensed as an operator or chauffeur by the department under the provisions of this act.” (R. S. 1931 Supp. 8-202.)
The record discloses that the plaintiff was not within any of the exceptions named in the act. Another section of the act provides that a violation of the provision quoted constitutes a misdemeanor punishable by. a fine of not more than $500 or imprisonment not more than six months or by both fine and imprisonment.
Two lines of cases are cited, one to the effect that where a motorist is a trespasser and using the highways in direct violation of law, he may not recover against the municipality for injuries sustained by reason of defects in the highway, while the other holds that such violation of the statute does not prevent a recovery unless there was a causal connection between the act involved in the violation of the statute and the resulting injury for which a recovery is sought. In McCarthy v. Leeds, 116 Me. 275, where a person was injured while traveling on a highway caused by a defect in the same, it appears he was traveling without having the automobile registered, as the statute required. It was held that one driving in defiance of a statutory prohibition and unlawfully upon the highway, is not entitled to recover. It was said:
“The decision does not rest upon the common-law principle of causal connection. The true theory is that this unregistered car was expressly forbidden by statute to pass along the highway and over the bridge.” (p. 279.)
In a later case in the same state where the automobile was being driven by an unlicensed person who claimed damages for an injury sustained while driving over the highway in violation of law, it was held that the liability of the town for defects in the highway was not recoverable. That such liability “is not a question of causal connection in either case between the violation of the statute and the happening of the accident; the unregistered car and the unlicensed operator are alike expressly forbidden by the statute to pass along the highway,” and that “so far as the town is concerned the unlicensed operator is not a lawful traveler upon the highway unless in any particular case he is within the exception found in the statute.” (Blanchard v. Portland, 120 Me. 142.)
A like case was before the supreme court of Massachusetts in Doherty v. Ayer, 197 Mass. 241, where an action was brought to recover damages to the plaintiff’s automobile alleged to have been caused by a defect in a highway which the defendant was bound to keep in repair. The court, among other things, said:
“If it appeared affirmatively that he was traveling. without a proper registration of the vehicle or without a license to operate it, it might well be held that he was not a traveler upon the highway in a legal sense, and that the town owed him no duty under the statute.” (p. 247.)
And further:
“We are of opinion that a violation of the statute in this particular so affects the direct relation of the violator to the town, in regard to the way and the only use that he was making of it, as to leave him without remedy for an injury caused by a defect in the way.” (p. 248.)
Along the same line is the case of Johnson v. Irasburgh, 47 Vt. 28. In the opinion it was said:
“Thus the question is distinctly presented for decision, whether a town is liable for damages sustained through the insufficiency of a highway, which it is legally bound to keep in repair, to one who is unlawfully traveling on such highway, or traveling on the Sabbath without a legal excuse. The question is not, whether the plaintiff is barred from recovering damages which he would otherwise be entitled to recover, because he was, at the time he received the injury, committing an unlawful act, or traveling at an unlawful rate of speed, but whether the town was under a legal duty to furnish him a safe highway to travel over, when, at that precise time, he was forbidden, by law, to travel over the highway. . . The liability of towns for the sufficiency of their highways is wholly imposed by statute. The right of the traveler to recover for injuries sustained through such insufficiency, is also conferred by statute. No such liability or right existed at common law. The duty and liabilities of towns in regard to their highways, are due only to travelers, to that class who have the right to pass and repass thereon, and continue only so long as they are in the exercise of that right.” (pp. 32, 36.)
See, also, Hanley v. Town of Poultney, 100 Vt. 172; La Junta v. Dudley, 82 Colo. 354; Feeley v. Melrose, 205 Mass. 329.
On the other side, some courts have held that the violation of law by the motorist will not preclude a recovery against another unless such failure sustains some causal relation to the injury. (Wolford v. City of Grinnell, 179 Ia. 689.) See, also, Jones v. Township of Brookfield, 221 Mich. 235.
In the exercise of its police power the state has the right to limit and control the use of its highway. To promote the safety of travel and the public welfare, it may restrict the vehicles that can be used on certain streets and limit the persons who may operate them. It may close some streets absolutely as against travel by certain vehicles. It may provide that young children and inexperienced persons may not operate motor vehicles on the highway and punish those who do so. To that end the legislature provided that a person who failed to demonstrate his fitness to safely operate an automobile on the highway and had failed to procure a license from the proper authorities, certifying that he had the experience and fitness to safely operate the same, was barred from driving on the highways of the state. Here we have an absolute prohibition that one driving on the highway without a license and in defiance of the statute thereby endangering the property and lives of others entitled to the use of the streets, cannot well claim the rights of lawful travelers nor insist that the municipality owes him the duty of maintaining the streets for his.benefit. As we have seen, the action is not brought under the common law of recovery of damages for negligence, but is brought under the statutory provision that municipalities may, under certain restrictions, be held liable for failing to safely maintain the highways in good condition, a liability which did not exist until the statute was enacted. The statutory provision forbidding the unlicensed person to drive on the highways is likewise statutory, and we think the doctrine of causal connection mentioned, applicable in common-law cases,' does not. apply here or override the statutory prohibition. We think that one prohibited from the use of the highways cannot claim that the municipality; owes him the duty to maintain the highway for his safety and benefit, and that it is liable to him in damages for injury received because the township had not kept the highway in as good condition'as he thinks it should have done. We are better satisfied with the authorities holding that one not entitled to drive on the highway because of the prohibition mentioned is not entitled to recover damages from the township for injuries received while violating the statute.
Our judgment is that the ruling of the district court be and it is affirmed.
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MEMORANDUM
The appellee could not meet the contentions of the appellants without a transcript of the proceedings at the trial. The questions presented by appellants cannot be determined by the court without a transcript. Appellants furnished no transcript, and the appeal is dismissed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover taxes for the year 1930 which the plaintiff railway company paid under protest to the county treasurer of Cherokee county.
Plaintiff’s petition stated the requisite facts to develop the pertinent issue of law. It was alleged that in 1930 Cherokee county had 35,000 population and an assessed valuation of $34,255,579. A levy of 2.81 mills on the dollar was imposed for general purposes, while according to plaintiff’s interpretation of the pertinent statute (so far as it is valid) the maximum levy authorized was 1.37 mills. The excess levy resulted in an exaction on plaintiff’s property assessed at $350,047 in the sum of $504.07, which it paid, and for the recovery of which it prayed judgment.
Defendant’s demurrer to plaintiff’s petition was sustained, and plaintiff appeals, contending that a certain provision of the statute (italicized herein) under which the defendant board of county commissioners assumed to levy the tax of 2.81 mills for general purposes was unconstitutional, uncertain and unworkable. It reads (R. S. 79-1911):
“In any county which has an assessed valuation for the current tax year in excess of one hundred million dollars the levy shall not exceed one and six-tenths mills: Provided, That in counties having a population of SB,000 or more the limitation of this chapter shall not prevent raising an amount for current expenses of the county equal to what might have been lawfully raised upon the assessed valuation for the year 1907.”
It is plaintiff’s contention that Cherokee county’s authority to levy a tax for general revenue purposes is contained in R. S. 79-1904, which reads:
“In any county which has an assessed valuation for the current tax year of more than thirty million dollars and not in excess of thirty-one million dollars the levy shall not exceed one and forty-six-hundredths mills. In any county which has an assessed valuation in any amount in excess of thirty-one million dollars, up to and including forty million dollars, the maximum levy shall be determined by reducing the levy of one and forty-six-hundredths mills allowed upon a valuation of thirty-one million dollars, three-hundredths of one mill for each one million dollars in excess of thirty-one million dollars, and any rate of levy so determined shall be the maximum rate of levy for all assessed valuations which are fractions of the next higher one million dollars of valuation.”
If plaintiff’s contention is correct, the maximum levy for Cherokee county would be arrived at thus: The assessed valuation of the county is $34,255,579. If it had $30,000,000 and not more than $31,000,000, the county could levy 1.46 mills on the dollar. For every additional million dollars’ valuation a reduction of .03 mills must be made from 1.46 mills. Having over 3 million additional valuation, 3 times .03 mills or .09 mills must be deducted from 1.46 mills, which would leave a remainder of 1.37 mills as the maximum levy for Cherokee county. On this basis a levy of 1.37 mills would produce $46,930.14 for the county’s general revenue fund.
But since Cherokee county has the comparatively large population of more than 35,000 inhabitants but only a property valuation of $34,255,579, why may it not have recourse to the proviso of R. S. 79-1911 which would enable it to raise a larger revenue for current expenses?
Before attempting to answer plaintiff’s objections to the proviso, let us see how it would work if it is not subject to any infirmity. In 1907 the legislature set on foot what it hoped would become a fixed policy of assessing property at its actual monetary value instead of the old slipshod fashion of assessing property at variable but usually inconsiderable percentages of its actual value. The statute designed to effectuate that change was chapter 408 of the Laws of 1907.
Turning to the available statistics for Cherokee county for the year 1907, it appears that its assessed valuation for that year was $6,378,621. It also appears that in 1907 Cherokee county had a population of 39,369. Under that state of facts, Cherokee county in 1907 could have lawfully levied a general tax of 1½ per cent, which in turn would have lawfully raised the sum of $95,679,315. (Laws 1907, ch. 409.)
From the foregoing it will appear that if the proviso in R. S. 79-1911 is valid, the county could levy whatever number of mills on the dollar would produce $95,679,315 for general revenue purposes. The levy which the county did impose was 2.81 mills on the dollar, which will raise approximately that amount, $96,258.18, to be exact, but this slight variance is of no consequence; and indeed it is not complained of.
Now what is wrong, illegal or unconstitutional in the proviso of R. S. 79-1911? Certainly the objection that it is unworkable cannot be sustained. We have just worked it out as a problem in arithmetic of no great difficulty. What is there uncertain about the factors entering into the computation to arrive at the maximum revenue of Cherokee county which might have been lawfully raised in that county upon its assessed valuation for the year 1907? This court has no means of knowing how accurate and complete the fiscal and statistical records of Cherokee county have been kept for the quarter of a century prior to 1930, but it seems that the litigants in this case found the requisite data without difficulty. The same data is available right here in the capitol. (First Report, State Tax Commission, 1908, p. 112; Sixteenth Biennial Report, State Board of Agriculture, 1907-1908, p. 777.)
It is earnestly contended, however, that the statute (R. S. 79-1911) in effect is an irregular and unconstitutional method of reviving the statute of 1907 which was superseded and repealed by the later statute of 1909 (ch. 245) the pertinent section of which is R. S. 79-1911. We must hold otherwise. The later statute does not avowedly undertake to resurrect the statute of 1907. It simply says to the' board of commissioners of any county situated in respect to population and taxable property as Cherokee county, that if sufficient funds for general expenses cannot be raised under the authorized maximum levy of 1.37 mills (by R. S. 79-1904) then whatever levy is necessary to raise as much revenue as could have been lawfully raised in 1907 can be imposed.
Another objection to the tax as authorized by the proviso of R. S. 79-1911 is that it creates an arbitrary and unreasonable classification. Yet nothing is more common than the classification of counties upon population or upon assessed valuation or upon both of these factual bases. (Railway Co. v. Cowley County, 97 Kan. 155, 155 Pac. 18.) So long as the constitutional mandate (Const, art. 11, § 1) requiring that the rate of assessment and taxation shall be uniform and equal on all property within the taxing district is observed, the legislature has a broad discretion touching classification of counties and municipalities for purposes of taxation and prescribing the bases upon which such classifications can be made. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234; State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032; Baird v. City of Wichita, 128 Kan. 100, 276 Pac. 77.)
A minor objection to the proviso in R. S. 79-1911 is that in the year 1907 (as in all other years) two different sets of figures pertaining to the county’s assessed valuation were in existence — those pertaining to the assessed valuation for 1906 which would control until the assessment for 1907 was completed and available as a basis of computation. However, the latter would be available long before the levy for county general expenses would be made (in August), so “the assessed valuation for the year 1907” referred to in R. S. 79-1911 clearly refers to the one made in 1907, not to the one made in 1906.
The other arguments urged against the judgment have been duly considered, but they present nothing requiring further discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover on a policy of insurance which protected plaintiff’s automobile from theft by anybody except a member of his household.
The defense was that the theft was committed by plaintiff’s own son, Haldean Vaughn, and that this fact relieved it of liability.
Plaintiff’s reply contained a general and specific denial, and alleged that if it was stolen by his son “at the time of the alleged theft, the said Haldean Vaughn was not a member of plaintiff’s household within the terms and conditions of said policy.”
A jury was waived and the cause was tried by the court which made findings of fact, the substance of which was that the automobile was stolen by plaintiff’s son, Haldean Vaughn and three other persons on the. night of December 14,1932; and—
“Second, that Haldean Vaughn was a son of plaintiff and had been paroled to the plaintiff from the penal institution on October 26, 1931. That said parole expired October 6, 1932, prior to the theft of the car, as hereinbefore stated.
“Third, that the said Haldean Vaughn stayed at the home of the plaintiff during the time of said parole and until Thanksgiving Day, 1932. That he put in a crop on a nearby farm, worked in and out of plaintiff’s home and occasionally worked at neighbors doing farm work in that community.
“Fourth, that on or about the 15th day of November, 1932, the said Haldean Vaughn sold his interest in his crops to the plaintiff and that some time subsequent to November 15, 1932, and prior to Thanksgiving of that year, the said Haldean Vaughn purchased a car, using for that purpose money which he had received from plaintiff for the crop which he had raised.
“Fifth, that the said Haldean Vaughn told plaintiff he was going to seek work elsewhere and, Thanksgiving Day, November 24, 1932, was the last time that the said Haldean Vaughn was seen at the home of the plaintiff. That he took his clothes with him and left no property at his father’s house except a few items of clothing unsuitable for use.”
The sixth and seventh findings were that on the night the thieves stole plaintiff’s automobile they also stole some harness and other property and took the automobile to Fairview, Okla., where it was abandoned. The thieves then traveled through Oklahoma into Texas, and thence back to a place in Osage county, Oklahoma, where Haldean Vaughn got his clothing which he had kept there.. He then returned with two of his fellow thieves to Longton, Kan., where he left them, and became a fugitive from justice. Other findings of fact read:
“Eighth, that at no time has the plaintiff refused permission to his son, the said Haldean Vaughn, to return home or denied him the privilege of staying at his house if he so desired.
“Tenth, that the plaintiff incurred expense in recovering said automobile and suffered damage to said car in the aggregate sum of $111.12.”
The trial court’s conclusions of law were—
“First, that at the time of the theft on December 14, 1932, the said Haldean Vaughn, son of the plaintiff, was not a member of plaintiff’s household within the meaning of the provision of said insurance policy.
“Second, that the plaintiff is entitled to recover a judgment from the said defendant in the sum of $111.12, with interest . . . with costs.”
Judgment was entered accordingly, and defendant appeals, contending that on the findings of fact set out above, Haldean Vaughn, the wayward son of plaintiff, who had at no time been refused permission to return home and had not been denied the privilege of staying in plaintiff’s house if he so desired, was “a person in the assured’s household” under the terms of the policy at the time he stole the automobile, and consequently defendant was not liable.
It does not follow, however, when grown sons and daughters leave home to make their own way in the world that they continue to be members of their parents’ household, although they are privileged to return thereto when so inclined. Plaintiff’s son had adopted a career of crime, had been adjudged guilty of some penal offense and paroled to his father, during which period of parole he was, of course, a member of his father’s household, and so continued after his term of parole was ended until about the middle of November, 1932. At that time he closed out his venture in tenant farming, sold his crop, announced his purpose to seek work elsewhere, and on November 24, 1932, left his father’s home and took his clothes with him, leaving no useful property behind. Since that incident he has been a vagrant and fugitive from justice. Can it be said that under such circumstances the son was a member of the father’s household at the time the automobile was stolen?
Defendant cites the rule stated in 5 R. C. D. Supp. 3859, that where a policy insured against theft of an automobile except by members of the assured’s household, the burden rests on the assured to prove that the theft was not committed by any of the excepted persons. Here, however, the facts were all established, and they are not complained of, so our present question is purely one of law. The policy did not define the term “household,” so we turn to adjudicated cases for its definition.
Bouvier defines it thus:
“Those who dwell under the same roof and constitute a family.”
In 30 C. J. 474 it means—
“A family living together; a number of persons dwelling under the same roof and composing a family; and by extension, all who are under one domestic head; persons who dwell together as a family; the place where one holds house, his home."
In Webster’s New International Dictionary, the term means—
“Those who dwell under the same roof and compose a family; a domestic establishment; family.”
In Words and Phrases, 2d ed., 919, it is said:
“The words ‘family’ and ‘household’ are often interchangeably used. A family is a collective body of persons living in one house and under one manager. It consists of those who live with the pater familias. Pearre v. Smith, 73 Atl. 141, 142, 110 Md. 531.”
Counsel for appellant, among other cases, cites Home Ins. Co. v. Pettit, 225 Ala. 487, where the assured was in business for himself but spent part of his time — “over week ends” — at his father’s home. The uncle of the assured also became a temporary guest in the father’s home. This uncle stole the assured’s automobile. The court held that the insurance company was not liable because the theft was by a “person in the assured’s household.”
Another case cited by appellant was Rydstrom v. Queen Ins. Co., 137 Md. 349, 14 A. L. R. 212, the headnote of which reads:
“A nephew of the assured who, while spending a few days at the latter’s home, took the key of the latter’s automobile from his bedroom and obtained the automobile from the public garage at which it was kept, held to be a person ‘in the assured’s household’ within the meaning of the exception in a’ policy insuring the automobile against theft except by such a person.”
In our view, the analogy between these cases and the one at bar is far from complete. In both the thief was actually a temporary member of 'the assured’s household when the theft was committed. A case much closer to the one before us was Heffernan v. Mechanics Ins. Co., 33 Ohio App. 207, the syllabus of which states the case and the decision:
“Where husband, not living with wife, though not divorced, without knowledge or consent of wife, took automobile, and insurance company paid wife for theft of automobile, insurance company could not recover money paid, under provision of policy that company would not be liable for theft by any person in assured’s ‘household,’ for although husband could not be convicted for theft of automobile, he was not member of household.”
In affirming this.decision the Ohio supreme court said:
“This policy contained a general covenant of insurance against theft; the exception relieved it from theft only if it were committed ‘by any person or persons in the assured’s household.’ It is evident that the parties to the con tract did not have in mind the common-law rule that a husband or wife cannot steal from one another, but had in mind rather the nonliability of the insurance company when the theft was committed by a member of the household. Had the husband been a member of the household, there would have been no liability under the terms of the policy. The parties were contracting with reference to the status of the husband and others as members of the household; and, since the husband was not a member of the wife’s household at the time of the theft of the sedan, a liability arose under the policy, because it restricted its nonliability solely to instances where the theft was committed by a person in the assured’s household.” (M. M. Ins. Co. v. Heffernan, 121 Ohio St. 499, 501.)
It seems clear to us that plaintiff’s son was not “a person in the assured’s household” at the time he stole his father’s automobile within the terms of the insurance policy, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover money and for an accounting. Judgment was for plaintiffs, ordering an accounting. Defendant appeals.
The petition states two causes of action. The first alleges that plaintiffs were the inventors of a “new and useful improvement in chain-driven sand reels.” It alleges that plaintiffs had applied for a patent on their sand reel, and while the application for a patent was pending entered into a contract with defendant whereby plaintiffs granted defendant the exclusive agency and right to manufacture and sell the reel and made the defendant the exclusive agent of plaintiffs to make, sell and distribute the reels and parts of reels; that the reel was designated as the S. & B. Chain Driven Sand Reel; that on January 23, 1923, defendant agreed to pay plaintiffs a royalty on all of the reels and all parts of reels manufactured, sold or distributed by defendant, and that in pursuance of this contract the defendant manufactured, sold and distributed a great many S. & B. reels.
The petition further alleged that under the contract plaintiffs were entitled to inspect the books of the company, and that defendant refused to allow plaintiffs to make a full and complete inspection of its books; that on October 31, 1927, a dispute arose between plaintiffs and defendant as to the amount due and owing to plaintiffs by defendant, that defendant refused to pay royalties or permit an inspection of its books, and that defendant had sold a large number of S. & B. reels and parts not accounted for to plaintiffs. The first cause of action prayed judgment that the defendant be required to render an accounting for the number of S. & B. reels and parts manufactured and sold by it under the terms of the contract and for judgment for the amount due. The cause of action further alleged that on December 4,1923, letters patent were issued by the United States on the S. & B. reel on the application which had been made at the time the contract was entered into, and that the letters patent were still in full force and effect and owned by plaintiffs.
The second cause of action made all the allegations of the first cause of action a part of the second. This cause of action then alleged that on December 27, 1921, the date of the contract, defendant was not engaged in the manufacture, sale and distribution of chain-driven sand reels or parts or like or similar articles as the S. & B. sand reel.
It further alleged that by the contract the defendant owed plaintiffs a duty to make the manufacture, sale and distribution of the S. & B. reel profitable to plaintiffs and owed plaintiffs a duty not to do anything that would destroy the sale and marketability of S. & B. reels.
It further alleged that some time prior to the filing of this suit defendant commenced the manufacture and sale and distribution of chain-driven reels and parts similar in construction embodying the same general principles and design and used for like or identical purposes as the S. & B. reel and had and were offering that reel as a substitute for the S. & B. reel.
The petition then alleged that in doing this defendant breached its contract with plaintiffs because it failed and neglected to make the manufacture and sale and distribution of the S. & B. reel a matter of profit to plaintiffs; that in so doing defendant engaged in a competitive enterprise and so breached its contract and duty as agent of plaintiffs.
The petition then alleged that there was a great demand by the public for S. & B. reels; that by the introduction of the competitive article by defendant, plaintiffs were greatly damaged because they would be put to a great expense in replacing the S. & B. reel on the market and in reestablishing the demand by the public for the S. & B. reel. The petition alleged that plaintiffs had been thereby damaged in the sum of $10,000.
The petition then alleged that from August 31, 1927, to the date of the filing of the petition defendant had sold about 500 chain-driven sand reels other than the S. & B. reel, and that on this account plaintiffs had been damaged in the amount of the royalties that they would have received had defendant sold S. & B. reels specified in the contract and that, therefore, plaintiffs are entitled to royalties on the other reels on the same basis that they would have been entitled to royalties on S. & B. reels, that is, $100 a reel. Plaintiffs prayed judgment for $60,000.
Defendant is a Kansas corporation with its principal and only place of business at Coffeyville, Montgomery county. This suit was filed in Sedgwick county. Summons was served on R. D. Ekstrand and C. B. Morton in Sedgwick county. Ekstrand was a mechanic and “trouble shooter” for the company. Morton was a salesman for the company.
Defendant made a special appearance and filed a motion to quash each of these services on the ground that service upon them was not service on the company. These motions were overruled. The overruling of these motions is one of the errors of which complaint is made. Further attention will be paid to that later in this opinion.
In its answer to the first cause of action defendant admitted the signing of the contracts and alleged that the contract constituted an assignment or license under the patent; admitted that the letters patent were issued to plaintiffs on their invention and denied that the patent which was actually used was the one referred to in the contract. The answer further denied that defendant had refused to account to plaintiffs for royalties on sand reels covered by the contract and alleged that it had paid plaintiffs all royalties due.
The answer further alleged that during 1926 it became apparent that the S. & B. reel, in comparison with other reels that were on the market, was inadequate, complicated and subject to breakage of parts, and that on this account defendant, at a great expense, designed a new model embodying the plaintiffs’ patented device whereby the reel was greatly simplified and designated this improved reel Model 27 and has continued to manufacture this improved reel; that some of the parts of Model 27 upon which it has refused to pay royalty are identical with parts which had been used in constructing the old model.
The answer further alleged that defendant had entered upon the execution of the contract; manufactured and sold reels and paid money as royalty to plaintiffs thereunder; that in the execution of the contract it incurred great expense in redesigning a sand reel; it had employed salesmen and service men to keep the reels in repair, and advertised them; that after 1927 it became almost impossible to sell the S. & B. reel, due to the fact that other reels were better because they eliminated plaintiffs’ patented device, and that plaintiffs at no time since 1927 had done anything to make the patented device a success; that this was a breach of the contract on the part of plaintiffs.
For answer to the second cause of action defendant denied that it ever became the agent for the plaintiffs; denied that it ever manufactured and sold any sand reel embodying the plaintiff’s invention other than the one known as the S. & B. reel.
The answer further alleged that defendant manufactured and sold sand reels from designs and patterns of parts embodying the invention of plaintiffs and by dint of great effort and expense did make the manufacture and sale of the sand reel a matter of profit up to and including the year 1926.
The answer further alleged that in 1927 other, better and more efficient chain-driven reels were placed on the market, and the S. & B. reel became obsolete and was inferior to other reels; that defendant was unable to construct a better sand reel than those in competition with the S. & B. reel incorporating plaintiffs’ patented device, which would meet competition; and that plaintiffs objected to changes in the design suggested by defendant.
The answer further alleged that in order to keep abreast of the times and to meet competition defendant did manufacture and sell another and different reel designated as the O. C. S. reel; that because it does not embody plaintiffs’ device it is more efficient and satisfactory in operation than the S. & B. reel.
The reply of plaintiffs alleged that the parts contained in the redesigned Model 27 S. & B. reel were substantially the same as were specified for the original reel and were similar in design and served a like purpose.
The reply denied that the S. & B. reel covered by their letters patent ever became obsolete'and alleged that the defendant with diligent effort could have made the manufacture and sale of the S. & B. reel a matter of profit.
It further alleged that it was the duty of defendant to improve the S. & B. reel to meet changed conditions and that the O. C. S. reel came within the plaintiffs’ patented device and that it was in the contemplation of the parties that the contract would cover all forms of chain-driven sand reels manufactured and sold by defendant and that plaintiffs are entitled to royalty on the O. C. S. reel and on all parts of the O. C. S. reel covered by the contract.
With the issues thus drawn the case was tried to the court. Extensive findings of fact and conclusions of law were made. The result was a judgment for the plaintiffs ordering an accounting.
It has been noted that a motion to quash the service of summons in this case was filed and overruled by the trial court. Defendant complains of this as error. We will deal with that question first.
The statute that deals with the method of obtaining service upon domestic corporations is R. S. 60-2518. It is as follows:
“A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not-found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.”
Was service on Ekstrand, the trouble shooter, or Morton, the salesman, good service under this statute? The return of the sheriff, after reciting that he had delivered the summons to Ekstrand, the company’s managing agent, at its office and usual place of business in Wichita, stated that he could not find “the president, vice president, secretary, treasurer, cashier, trustee, or other managing officers of said company in Sedgwick county, . . . and that said officers of said company were not in my county.”
The return then was as follows:
“I further certify that after endeavoring to get service on such officers of said company, and failing in such service, I made service on said R. D. Ekstrand, he being the person in charge of the office and usual place of business of said company at Wichita, Sedgwick county, Kansas, and he being the person held out to the public by said company as their agent and representative at Wichita, Kansas.”
The motion to quash was as follows:
“Comes now the defendant, The Oil Country Specialties Manufacturing Company, a corporation, appearing specially and for the purpose of this motion only, and moves the cour’t now here to quash, vacate and set aside the pretended summons and the pretended service thereof in the above entitled action, for the following reasons, to wit:
“1. Because there has been no service of summons upon the said The Oil Country Specialties Company.
“2. Because there has been no service of summons upon the said company or upon any one connected with the company on whom, by law, service is authorized.
“3. Because said action was improperly instituted in Sedgwick county, Kansas.
“4. Because said pretended summons was improperly issued.
“5. Because said pretended summons and the return thereof are void and of no effect, and the court has not, by the issuance of said summons, obtained any jurisdiction whatever over said The Oil Country Specialties Manufacturing Company.”
The court heard the motion to quash on affidavits and oral testimony. Ekstrand testified that he resided at 404 Market street in Wichita; that this was the address which plaintiffs claimed was the office of the company; that he never met customers in his room; that the company furnished him-cards; that he was a trouble shooter engaged in servicing O. C. S. machinery; that he had no other duties; he had no property of the company in his charge; he went wherever told to go by his superior officers; when he got a call for any work outside the routine he called up the office; he called up the company at Coffeyville two or three times a day. He had no authority to make charges for his work; the charge is made at Coffeyville. He collected and handled no money for the company. D. R. Brown, vice president and general manager of the company, stated in bis affidavit that Ekstrand was not an officer, cashier, treasurer, secretary, clerk or managing agent of the company and was not the person in charge of any office, and that Ekstrand was an employee in the mechanical department of defendant subject to the control of its managing officers.
C. B. Morton stated in his affidavit that his duties were those of salesman for defendant, authorized and required to sell and procure orders for the company’s products; sometimes he supervised the installation and repair of machinery sold by defendant. He was stationed at Tulsa and was under the direction and control of J. W. McKown, who was also stationed at Tulsa and is subject to the direction and control of the managing officer at Coffeyville.
D. R. Brown stated in his affidavit with reference to Morton that he had never been an officer, director, cashier, treasurer, secretary, clerk or managing agent and had never been a person in charge of any office of defendant.
At this hearing plaintiffs introduced affidavits of persons whom Morton introduced to Ekstrand and stated that Ekstrand would be their representative in that territory; that Ekstrand had stated that orders for repair parts could be ordered through him; that Ekstrand called on people and stated he was agent and representative of defendant; that he maintained an office at 404 North Market street in Wichita, and that he would be subject to calls in event of trouble. The trial court did not make a finding of fact that this evidence disclosed that either Ekstrand or Morton were officers, cashiers, treasurers, secretaries, clerks or managing agents, or in charge of any office of defendant. This court has considered this question in Betterment Co. v. Reeves, 73 Kan. 107, 84 Pac. 560. There it was said:
“Whether one is a ‘managing agent’ of a foreign corporation on whom service of summons may be made must depend in every case upon the kind of business conducted by the corporation, what the general duties of the suggested ‘managing agent’ are, and whether it can be fairly said that service on such agent would bring notice to the corporation. Much discussion may be found in the cases upon this question, and it is one upon which there is some disagreement. It may be said, however, that the later decisions are more liberal in interpreting the term ‘managing agent’ than were the earlier ones. While no general rule can be stated which will serve as a test, certain principles may be announced which will serve to assist in determining the matter. Such managing agent must be in charge, and have the management, of some department of the corporation’s business, the management of which requires of the agent the exercise of an independent judgment and discretion; not that he shall not be under the general direction of the corporation — all agents are subject to the general control of their principals — but in the management of this particular department he must have authority to manage and conduct it as his discretion and judgment direct. He must be in the exclusive and immediate control and management of that department, or of the entire works conducted at the place where he is in charge.” (p. 115.) See, also, Van Deren v. Heineke & Co., 122 Kan. 215, 252 Pac. 459.
Very little can be added to the force of what was said in the above case. An examination of the record in this case has caused us to reach the conclusion that the work that was done by Ekstrand and Morton fell far short of meeting the requirement laid down in Betterment Co. v. Reeves in order to constitute one a managing officer or person in charge of any place of business of defendant. It is doubtful whether the trial court held otherwise on this point. So much attention has been given it in this opinion because counsel for plaintiffs argue vigorously in this court that the service was good.
The journal entry on this question was as follows:
“That it has full jurisdiction of the subject matter of this action and that said action was properly instituted in the above county and state, and that the defendant by its motion filed upon the-day of June, 1930, entered its general appearance herein and thereby waived all right to question as to the manner of service of summons.”
During the argument on the motion the court said:
“I am going to overrule your motion. I think your ground No. 3 in which you state that said cause of action was improperly instituted in Sedgwick county, Kansas, amounts in effect to a demurrer to the court’s jurisdiction on the ground that the court did not have jurisdiction of the subject matter of the cause of action, and for that reason you have entered a general appearance in the case and your motion to quash will be overruled.”
It clearly appears that the court refused to sustain the motion to quash on the ground that the third ground stated in the motion constituted a general appearance and waived the defect in the service.
That ground was as follows:
“Because said action was improperly instituted in Sedgwick county, Kansas.”
It is argued that this portion of the motion to quash was included in the motion and intended only to give a reason why the motion should be sustained. The argument is that what defendant intended to say was that the action was improperly brought in Sedgwick county because no service was had on the defendant in that county. It seems clear that the argument on the motion was conducted on that theory. This court considered this question in Thompson v. Greer, 62 Kan. 522, 64 Pac. 48. This was an action brought in the district court of Butler county. At the commencement of the action plaintiff caused certain cattle belonging to the defendant, Thompson, to be attached. There was no service of summons upon the defendant.
The motion to dismiss was as follows;
“Now comes the defendant, R. S. Thompson, for the purpose of this motion only and for no other, and moves the court to dismiss this action for the reason that the court had no jurisdiction over the person of this defendant, and that this action is improperly brought in this county; that the defendant, R. S. Thompson, against whom alone this plaintiff seeks judgment and whose property plaintiff claims to have attached in this suit, is a resident of the county of Reno, state of Kansas, and has been for several years last past; that there has been no service had upon the said defendant in this county, and the court has no jurisdiction over his person or the subject matter of the action.” (p. 522.)
Defendant’s counsel appeared for the purpose of the motion only. The trial court held that the language in the motion “that this action is improperly brought in this county” constituted a general appearance. This court said:
“We think the court below erred in overruling the motion to dismiss. The application was based solely on jurisdictional grounds, and the appearance of the moving party was special.” (p. 523.)
It is the rule in this court that in motions of this kind we look to the substance of the motion, not alone to the form. It is patent on the face of the motion that all the defendant intended to do was to contest the service of any summons upon it.
In the case of Bishop v. Fischer, 94 Kan. 105, 145 Pac. 890, the trial court in an action pending before it made an order against plaintiffs, who were not parties to the action, that they no longer maintain certain obstructions to the flow of gas, etc. Plaintiffs filed a motion, appearing specially and for the purpose of the motion only, in which they alleged that the property affected did not belong to the American Gas Company but belonged to them and was exclusively on their land; that they had not sold gas to the receiver or consented to the receiver’s use of the pipes, and that the order was in effect a confiscation of plaintiffs’ property made without jurisdiction. The relief asked was that the order be dissolved. It was claimed that this was a voluntary general appearance. This court said:
‘The plaintiffs’ motion may be read in such a way as to indicate a general submission to the jurisdiction of the court, but here, as elsewhere in procedure, substance alone is to be regarded, and it is quite clear that the sole purpose was to challenge jurisdiction. The plaintiffs did not ask to be made parties, and the relief sought, the dissolution of the order, is entirely consistent with want of jurisdiction, and could be granted upon the hypothesis that the court had no jurisdiction.” (p. 113.)
See, also, Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648; Poorman v. Carlton, 122 Kan. 762, and City of Coffeyville v. Wells, 137 Kan. 384, 20 P. 2d 477.
Many cases are cited by plaintiffs on this point, but they are all cases where the defendant either asked for some affirmative relief or took some affirmative action, such as filing an answer asking for time to plead, or filing a demurrer. In this case the defendant did not ask for any affirmative relief and, under the decision we have cited, asked for nothing except the quashing of the summons. We hold, therefore, that the motion to quash the summons should have been sustained.
This conclusion might well dispose of the case. However, since the case took many days to try and there is one other question in it, the decision of which disposes of the right of plaintiffs to recover under the contracts in question, that point will be discussed.
It is contended by the defendant that the parties did not comply with the provisions of R. S. 57-101 et seq. The statutes in question are as follows:
“It shall be unlawful for any person to sell or barter or offer to sell or barter any patent right, or any right which such person shall allege to be a patent right, in any county within this state, without first filing with the clerk of the district court of such county copies of the letters patent duly authenticated, and at the same time swearing or affirming to an affidavit before such clerk that such letters patent are genuine, and have not been revoked or annulled, and that he has full authority to sell or barter the right so patented; which affidavit shall also set forth his name, age, occupation and residence; and if an agent, the name, occupation and residence of his principal. A copy of this affidavit shall be filed in the office of said clerk, and said clerk shall give a copy of said affidavit to the applicant, who shall exhibit the same to any person on demand. (L. 1889, ch. 182, § 1; March 15.)” (R. S. 57-101.)
“Any person who may take any obligation in writing for which any patent right, or right claimed by him or her to be a patent right, shall form a whole or any part of the consideration, shall, before it is signed by the maker or makers, insert in the body of said written obligation, above the signature of said maker or makers, in legible writing or print, the words, ‘Given for a patent right.’ (L. 1889, eh. 182, §2; March 15.)” (R. S. 57-102.)
“Any person who shall sell or barter or offer to sell or barter within this state, or shall take any obligation or promise in writing for a patent right, or for what he may call a patent right, without complying with the requirements of this act, or shall refuse to exhibit the certificate when demanded, shall be deemed guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction shall be fined in any sum not exceeding one thousand dollars, or be imprisoned in the jail of the proper county not more than six months, at the discretion of the court or jury trying the same, and shall be liable to the party injured, in a civil action, for any damages sustained. (L. 1889, ch. 182, §3; March 15.)” (R. S. 57-103.)
The fact that this statute had not been complied with was not pleaded in the answer of defendant. During the trial of the case the defendant introduced the evidence of the clerks of the district court of Montgomery county and of Butler county, showing that the plaintiffs had not up to that time complied with the provisions of R. S. 57-101 to 57-103 with reference to the filing of affidavits and copy of patent. Later the court struck out this evidence. During the trial the defendant asked permission to file an amendment to its answer setting up the failure of the plaintiffs to comply with these provisions of the statute and proffered the amendment to the court. This application was overruled. During the trial plaintiffs, by-permission of the court, filed an amended petition in which they brought their claim up to date. When this amended petition was filed the defendant filed an answer in which it alleged among other things that the contracts in controversy were null and void and not binding upon tire defendant because the plaintiffs had not complied with R. S. 57-101 to 57-103, either at the time of making the contract or at any time, and setting out the facts showing said noncompliance. On motion of plaintiffs this answer was stricken out.
The argument of defendant is that the contract and the supplemental contract are within the provisions of R. S. 57-101, 57-102 and 57-103; that plaintiffs did not comply with the terms of the statute and hence no recovery can be had on the contracts. The pertinent portions of the contracts are as follows:
“Exhibit A
“Whereas, Said patentees have invented a device for a sand reel to be used in and about a drilling rig, which they represent is patentable, and have made an application for letters patent to them covering said device, a blue print of which is hereto attached, made a part hereof and marked exhibit A, and desire to make a contract for the manufacture and sale of said device, and the company desires to manufacture and sell said device.
“Now, therefore, In consideration of the premises, and of the sum of ten ($10) dollars, by each of the parties hereto paid to the other, and of the mutual covenants and agreements of the parties hereto, the parties hereto agree with each other, as follows:
“(1) The patentees do hereby grant to the company the exclusive right to manufacture and sell said above described device for the full term of the patents granted, and for any extensions of time that may be hereinafter granted and they further agree that for said consideration they will and they do hereby grant to the company the exclusive right to manufacture and sell any and all improvements on said device which they may hereafter make or control.
“(2) Said patentees hereby promise and agree to furnish and deliver to the company at Coffeyville, Kansas, all the patterns and moulds which are now on hand or under the control of the patentees, relating to said sand reel.
“(3) The said patentees hereby agree to furnish to the company three copies of the letters patent for said sand reel when the same are granted, and thereupon, on requ’est of the company, to execute such further assurances and conveyances with reference thereto as may be necessary to make this agreement effective and binding upon the patentees.
. . . . . . . . . .
“(7) The company agrees to advertise said sand reels, but it is further agreed that the company shall be the sole judge as to what is sufficient advertising.
“(8) In case the company shall make any improvements on said sand reel which are patentable, it agrees to incorporate said improvements in its manufacture of said sand reels without any expense to said patentees except only the cost of procuring the patents therefor, and the royalty to the patentees, on said sand reels with said improvements added, shall remain the same as herein provided.
“(9) The company agrees that it will not grant to any other person or company the exclusive right to sell sand reels.”
Exhibit B, the supplemental contract, is as follows:
“Whereas, A prior contract has been entered into between the above-named parties on the 27th day of December, 1921, special reference is made to article No. 4 of said contract which is hereby amended'to read as follows:
“(4) To manufacture sufficient of said sand reels to supply the demand of the trade and to pay to the patentees, as royalty on said sand reels manufactured and sold by it, . . .
“The company agrees to pay as royalty twenty (20) per cent of its selling price, said royalties are to become due and payable on the 20th day of each month for all said sand reels and parts sold during the previous month.
“It is not the intent or purpose of this supplemental contract to change, alter or disturb any of the provisions of the original contract dated December 27, 1921, except article 4 as above referred.
“In witness whereof, the said parties have hereunto set their hands this 23d day of January, 1923.”
The contract sued on in this case clearly provided for the sale of a patent right. It recites that plaintiffs have invented a device and have made application for letters patent. It then grants to defendant the “exclusive right to manufacture and sell” the device. The supplemental contract deals only with the royalty that is to be paid plaintiffs. The causes of action were drawn clearly on the theory that the relief sought was an accounting for the manufacture and sale of a patent right and damages for the violation of the contract in question. R. S. 57-101 makes it unlawful to enter into such a contract unless copies of the letters patent are filed with the clerk of the district court, together with certain affidavits. That was not done in this case. Hence the contract sued upon was in violation of law. Plaintiffs have been liable to punishment under the statute in question from the first day of its execution.
Can one who has entered into a contract in violation of law sue and recover for a breach of the contract? This court has answered this question many times in the negative.
In Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, this court passed on the statute for the first time. There suit was brought to set aside notes and conveyances of land that had been given in payment of a sale of patent rights. The constitutionality of the statutes was attacked. The court said;
“There were some early decisions holding that such regulations trenched upon the federal power and the rights of the patentee, but recent authorities hold that reasonable police regulations may be enacted by the state without usurping any of the powers of the federal government or infringing upon the exclusive rights of the patentee. (Brechbill v. Randall et al., 102 Ind. 528; New v. Walker, 108 id. 365; Pape v. Wright, 116 id. 502; Bandage et al. v. The Studebaker Brothers Manufacturing Co., 142 id. 148; Tod v. Wick Brothers & Co., 36 Ohio St. 370; Herdic v. Roessler, 109 N. Y. 127; Haskell v. Jones, 86 Pa. St. 173; Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 id. 344.) The doctrine of these cases is that the patent laws do not prevent the state from enacting police regulations for the protection and security of its citizens, and that regulations like ours, which are mainly designed to protect the people from imposition by those who have actually no authority to sell patent rights or own patent rights to sell, should be upheld. We think the statute is valid.
“The purpose of the statute, as we have seen, was to prevent and punish fraud, and noncompliance with its provisions is declared to be a misdemeanor, punishable by fine or imprisonment. The penalty implies a prohibition, and contracts made by a vendor of patent rights in violation of the act are void as between the parties. The transfer of Mason, being illegal, did not constitute a valid consideration for the money or property obtained from McLeod.”
As far as we can learn, that case settled the question of whether the act in question was in violation of the federal constitution.
The matter was again before this court in Pinney v. Bank, 68 Kan. 223, 75 Pac. 119. There the court held:
“Where a statute expressly provides that a violation thereof shall be a misdemeanor, a contract made in direct violation of the same is illegal and there can be no recovery thereon, although such statute does not in express terms prohibit the contract or pronounce it void.
“A sale of the exclusive right to manufacture, use and sell for use a patented invention in a specified territory for a period of two years carries with it an interest in the patent right itself, and constitutes a sale of a patent right within the meaning of the ‘act relating to the registration and sale of patent rights, and prescribing a penalty for the violation of the same.’ ” (Syl.¶¶ 2, 3.)
Again, in Hager v. Hale, 110 Kan. 507, 204 Pac. 529, this court said:
“The defendant argues that under the contract he sold to the plaintiffs not a patent right, but an invention, a process of manufacturing a vulcanizing composition, the right that the defendant had in the discovery made by him. The plaintiffs argue that by the contract the defendant sold to them the rights purported to be given by letters patent. This involves an interpretation of the language used in the contract. It concerned a patent right, existing or non-existing.
“The fact that letters patent had not been issued did not change the subject 'matter of the contract. That remained a patent right. ‘The right and title to letters patent’ was the language used to describe the thing sold. That language meant nothing more and nothing less than a patent right. After the use of that language, the contract went on to describe the patent as being one ‘on a vulcanizing compound’ for which an application for letters patent had been filed on May 25, 1918, and allowed September 17, 1918. In one paragraph of the contract the defendant agreed to ‘turn over and transfer his right, title and interest in said letters patent.’ There is but one reasonable interpretation of the contract, and that is that the defendant was undertaking to sell a patent right. It may be granted that all parties knew that letters patent had not been issued, but still they were arranging for the sale and purchase of a patent right. The statute was meant to meet just such a situation, the sale of a patent right by one who did not hold letters patent.”
It will be noted that this case holds that the statute applies even though the patent has not been issued but only applied for at the time the contract is executed.
To the same effect is the holding of the court in Schmoyer v. Van Hosen, 111 Kan. 759, 208 Pac. 554.
In Ridgway v. Wetterhold, 96 Kan. 736, 150 Pac. 490, plaintiff, who had invented and owned the patent right to a bedspring, sold the defendant an interest in the patent without complying with the statute.
The exclusive right to manufacture and sell the bedsprings was sold to defendant, plaintiff to install machinery for the manufacture of the bedsprings. Plaintiff sued. This court refused to allow recovery on the contract. The court said:
“The statute (Gen. Stat. 1909, sec. 5517) makes it unlawful for the owner of a patent to enter into a contract for the sale of any interest therein unless he has first complied with the provisions of the statute, and the owner is liable to fine and imprisonment for any violation of the statute. In Pinney v. Bank, 68 Kan. 223, 75 Pac. 119, a similar contract made in violation of the statute was declared void.” (p. 737.)
There is no distinction between this case and the cases cited. In this case the contract sued on conveyed the interest of plaintiffs in their invention. The statute was not complied with by plaintiffs, hence the contract was unlawful. This being the case, no right which might be enforced in court could spring from it.
It will be noted that defendant did not plead the failure of plaintiffs to comply with the statute in its answer and requested permission to amend by pleading this defense during the course of the trial. This request was denied. Plaintiffs argue that this refusal was not an abuse of discretion by the trial court, and that since the defense was not pleaded it is not now available.
In Sheldon v. Pruessner, 52 Kan. 579, 35 Pac.. 201, this court considered this question. There it was said:
“The courts, in the due administration of justice, will not enforce a contract in violation of law, or permit a plaintiff to recover upon a transaction against public policy, even if the invalidity of the contract or transaction be not specially pleaded.” (Syl. ¶ 1.)
In Patterson v. Glass Co., 91 Kan. 201, 137 Pac. 955, it appeared during the course of the trial that the contract sued on was in violation of the anti-trust laws of the United States and this state. This court held:
“Whenever at any stage of the proceedings it is established to the satisfaction of the court that the cause of action upon which the plaintiff seeks to recover arose out of an unlawful conspiracy, it becomes at once the duty of the court to refuse to aid either party to profit by the iniquitous agreement.” (Syl. ¶ 2.)
See, also, Coppell v. Hall, 74 U. S. 542, 19 L. Ed. 244; also, Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261, 26 L. Ed. 539.
We hold that when it becomes apparent that a contract sued on is in violation of the law it is the duty of the court to dismiss the action, no matter whether the illegality has been raised by pleadings or not.
There are many interesting questions raised as to the mechanical features of this case, but the conclusion we have reached renders a discussion of them unnecessary.
The judgment of the trial court is reversed, with directions to render judgment for the defendant.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff-appellee, Mildred R. Hillhouse, against the city of Kansas City, Missouri, Farmers Insurance Company, Inc., and Frederick Bailey, to recover damages for personal injuries arising out of a motor vehicle collision which occurred in Kansas City, Missouri. The defendants Farmers Insurance Company and Frederick Bailey are not involved in this appeal. In order to obtain quasi-in-rem jurisdiction over the city the plaintiff on filing her petition attached a judgment previously entered against the city of Kansas City, Kansas, in favor of the city of Kansas City, Missouri, which judgment had been obtained in the United States District Court in Missouri. Since plaintiffs cause o£ action arose in the state o£ Missouri, plaintiff could not obtain personal jurisdiction over the city of Kansas City, Missouri, by using the long-arm statute (K. S, A. 60-308). Following attachment of the judgment the city of Kansas City, Missouri, filed a motion to quash service, dismiss the petition, and dissolve the order of attachment. The 'district court of Wyandotte county denied these motions and held that it had quasi-in-rem jurisdiction over the city of Kansas City, Missouri, by reason of the attachment. This court permitted an interlocutory appeal from that decision.
The factual circumstances concerning the collision which gave rise to plaintiffs cause of action for damages are not a matter of present concern. Suffice it to say, plaintiff alleged that her motor vehicle was struck from the rear by a truck owned by the city and driven by Frederick Bailey, allegedly an employee of the city. The plaintiff recognized that personal jurisdiction could not be obtained over the city of Kansas City, Missouri. She filed an affidavit signed by her attorney for attachment pursuant to K. S. A. 60-701, et seq. This affidavit followed the usual form as required by the attachment statutes and alleged in substance that the plaintiff has a just claim against the city of Kansas City, Missouri; that the amount that affiant believes that plaintiff should recover is $82,541.79; that affiant has good reason to believe defendant is a nonresident and a foreign municipal corporation; that the defendant is about to move its property or effects out of the state; and that such property or effects consist of indebtedness and credits due defendant from the city of Kansas City, Kansas, arising out of a final judgment of $150,000 rendered in the United States District Court in Missouri. As noted above this attachment was used as the basis for obtaining quasi-in-rem jurisdiction over the defendant, city of Kansas City, Missouri. In this opinion we will refer to the defendant-appellant as the city.
The city’s first point on the appeal is that the city of Kansas City, Missouri, as a foreign municipal corporation, is not subject to suit in the district court of Wyandotte county for the reason that as a matter of public policy a foreign municipal corporation can only be sued in the county of the state where it is looated. In support of its position the defendant city relies on Marshall v. Kansas City, Mo., 95 Kan. 548, 148 Pac. 637. Marshall involved a factual situation quite similar to that involved in the present case. The plaintiff’s cause of action against the city of Kansas City, Missouri, arose in the state of Missouri. The issue in Marshall was whether a cause of action could be brought in Kansas against a Missouri municipal corporation on a cause of action arising in Missouri. The majority of tile court held that a city of another state which is operating a water plant in this state is not subject to be sued in the courts of Kansas for a personal injury sustained in Missouri although caused by its negligence. In holding that the Kansas courts lacked jurisdiction the majority opinion reasoned as follows:
“While the statute does not in express terms provide for suing cities of another state which may be found engaged in private business in Kansas it is the view of the court that an action against a municipality is inherently local and can only be brought in the jurisdiction in which the city is located. At common law no action could be brought against a municipal corporation outside of the county where it was situate unless an express statute authorized it to be sued elsewhere. . . . This rule is based mainly on the theory that administrative officers of a municipality are necessarily engaged at home in the performance of their public duties and that it is contrary to public welfare and the scheme of municipal government to require them to go away from home and from their daily duties to resist litigation that may be instituted against the municipality in other places. The court is of opinion that in enacting the provisions of the code as to venue and service of process upon persons and corporations, resident and nonresident, the legislature did not have the cities of other states in mind but framed the provisions upon the theory of common law that cities are but subdivisions of a state exercising sovereign powers and are not amenable to courts outside of the state in which such cities are situate. While the cause of action is transitory in nature the forum is necessarily local, and in the absence of express legislative provision it must be assumed that the legislature did not contemplate that a foreign municipal corporation could be sued in Kansas.” (pp. 549, 550.)
The effect of the majority opinion was to grant to foreign municipal corporations a special privilege not to be sued in the Kansas courts, which privilege is not afforded other nonresident corporations.
Chief Justice Johnston in a dissenting opinion joined in by Mr. Justice Bruch rejected the holding of the majority. The rationale of the dissenting opinion was that the municipality of Kansas City, Missouri, is essentially a private corporation, and should be subject to suit in the oourts of Kansas as are other nonresidents and foreign corporations. The dissent relied upon State v. Holcomb, 85 Kan. 178, 116 Pac. 251, where it was said:
“ ‘. . . When .a state, or any of its municipalities, comes within the boundaries of another state it does not carry with it any of the attributes of sovereignty, and is subject to the laws of such other state the same as any other proprietor.’ ” (p. 185.)
The dissenting opinion found no logical reason to create a special privilege in favor of foreign municipal corporations. It should be noted that Marshall was decided in 1915.
The same issue arose again in Baker v. Kansas City, Mo., 118 Kan. 27, 233 Pac. 1012. In Baker the plaintiff’s cause of action, arose in the state of Kansas at the city’s water pumping station which was located in Wyandotte county, Kansas. The supreme court declined to follow Marshall and held that when a foreign municipal corporation comes into this state and establishes, maintains, and operates a water system here, it does not bring its sovereignty into this state, but is conducting its business here in its proprietary capacity, and for liabilities arising in this state from the conduct of such business here, it may be sued in the courts of this state. The court in Baker obviously rejected the rationale of the majority opinion in Marshall that a foreign municipal corporation has a special privilege to be sued only in the county where it is located.
Marshall and Baker are the only Kansas cases in point. Counsel for the city has directed our attention to Trader v. Southwestern Bell Telephone Co., 145 Kan. 690, 66 P. 2d 414, where we held that ■the venue of an action against a Kansas municipal corporation for damages for wrongful death is in the county where the municipal corporation is situated. Trader did not involve a foreign municipal corporation and hence cannot properly be considered in determining the issue now faced by this court.
The rule of Marshall was judicially created, and may be judicially abolished. (Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21; Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934.) We have concluded that the rule which establishes a special privilege in favor of foreign municipal corporations so as to exempt them from suit in the courts of Kansas is not in harmony with modem conditions nor does it meet the demands of justice in our present society. We recently stated in Steele v. Latimer, 214 Kan. 329, 521 P. 2d 304, as follows:
“‘The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.’ ” (pp. 332-333.)
Counsel for the plaintiff points out that 60 years ago Marshall may have reflected the prevailing social policy at a time when cities were principally engaged in providing relatively rudimentary services such as street, fire, and police protection. He contends, how ever, that the conditions of modern society have changed significantly since Marshall was decided. We agree. It is obvious that there has been an enormous expansion of services provided by cities in recent years. Modern-day cities operate zoos, museums, medical centers, parks, municipal golf courses, transit enterprises, airport facilities, and a multitude of other proprietary endeavors. Cities are no longer the parochial and insular institutions which existed when Marshall was decided. Today there is no sound reason why a foreign municipal corporation should be treated any differently than foreign private corporations. Insofar as the venue of civil actions is concerned, the legal basis which supports the jurisdiction of Kansas courts over foreign private corporations should be sufficient to justify jurisdiction over foreign municipal corporations. We hold that Marshall is overruled and that foreign municipal corporations henceforth are subject to be sued in the courts of this state to the same extent as foreign private corporations. We are in full agreement with the district court in reaching this same conclusion.
As its second point on this appeal the city challenges the constitutionality of the Kansas statutory attachment procedure. The constitutional issue presented is narrow but troublesome. It is the position of the city that the Kansas statutory attachment procedure is in violation of the due process clause of the Fourteenth Amendment to the United States Constitution because it permits an attachment of a foregin corporations property in this state without the posting of a bond by the plaintiff, solely upon a conclusory affidavit of the plaintiff or his attorney, and has the effect of taking a defendant’s property prior to affording the debtor an opportunity to be heard before the attachment occurs. The issue is obviously difficult because of the flexible nature of procedural due process.
The Kansas statutory attachment procedure has been essentially the same since the beginning of statehood. The original statutory provisions may be found in G. S. 1868, Ch. 80, Sec. 190 through 236. Down through the years the attachment statutes have been amended from time to time, most recently in 1975. (Laws 1975, Ch. 52.) During the past century our statutory procedure has withstood constitutional attack and has become an established part of our code of civil procedure. In recent years the United States Supreme Court has reexamined some of the basic concepts of due process of law and has struck down as unconstitutional the statutory procedures of various states which permit the deprivation of a defendant’s property by state court action without providing notice and an opportunity to be heard at a time when the deprivation can still be prevented.
Resolution of the constitutional question presented requires a careful consideration of four recent United States Supreme Court decisions: Sniadach v. Family Finance Corp., 395 U. S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969); Fuentes v. Shevin, 407 U. S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Mitchell v. W. T. Grant Co., 416 U. S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601, 42 L. Ed. 2d 751, 95 S. Ct. 719 (1975).
In Sniadach the Supreme Court held that a Wisconsin prejudgment garnishment procedure which resulted in garnishment of a debtor s wages without notice and prior hearing, violated fundamental principles of due process. In response to Sniadach the 1970 legislature amended the Kansas statutory attachment procedure to exclude from its operation attachments before judgment where the property of the defendant to be attached is in the possession of a third party and is in the form of earnings due and owing to the defendant. (K. S. A. 1975 Supp. 60-703; Laws of 1970, Ch. 238.)
In Fuentes the Supreme Court had before it for consideration the validity of Florida and Pennsylvania prejudgment replevin statutes. The statutes provided for summary seizure, based upon an ex parte order, of chattels and goods by state agents. The party requesting the seizure was required to post a bond in an amount double the value of the property to be seized. There was no provision for a hearing prior to seizure on behalf of the secured creditor. However, the debtor could reclaim the property after seizure by posting a counterbond within three days of the seizure. The court in a four to three decision found the statutes to be violative of due process standards. The majority opinion suggests that preseizure notice and opportunity for a hearing are required in all cases in which there has not been a contractual waiver of those rights unless some strong governmental interest in an immediate seizure without notice is involved such as where seizure is necessary to acquire quasi-in-rem jurisdiction or where plaintiff demonstrates a specific danger that the property is about to be concealed or destroyed so as not to be available to satisfy any judgment ultimately rendered. In the majority opinion the court stated that for more than a century the central meaning of procedural due process has been clear:
“ . . Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ ” (p. 80.)
The court further pointed out that it is equally fundamental that the right to notice and an opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” The holding of Fuentes seemed to be that, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event, there must be an opportunity for a hearing for the debtor before there can be a preseizure of his goods.
Fuentes was followed by Mitchell which retreated from Fuentes in a five to four decision. Mitchell involved a Louisiana sequestration statute where consumer goods could be seized by a creditor without prior notice or hearing. The Louisiana statute in question was upheld by the majority opinion. The court relied heavily upon the premise that a secured creditor with a lien in the property also has due process rights in the property seized. The court found that the debtor s due process rights were protected by certain safeguards provided in the Louisiana act which (1) required the creditor to allege in his affidavit specific facts rather than conclusory allegations showing his entitlement to prehearing sequestration; (2) required that a judicial officer pass on the sufficiency of the facts alleged in plaintiffs affidavit before issuing the sequestration order, rather than allowing the order to be issued ministerially by the clerk of the court; and (3) provided the defendant a right to an immediate postseizure hearing on the validity of the sequestration.
The most recent case in this line of decisions is North Georgia which held the Georgia prejudgment garnishment statute to be unconstitutional. Unlike the previous oases, North Georgia did not involve a consumer transaction. It dealt with the garnishment of a corporate bank account by another corporation. The Georgia statute provided for the issuance of a writ of garnishment upon an affidavit containing only conclusory allegations and without participation by a judicial officer. Furthermore there was no provision for an immediate postgamishment hearing. The Georgia statute was held violative of the defendant’s due process rights notwithstanding the fact that the plaintiff was required to post a double bond. The court was concerned that a bank account had been impounded and put totally beyond use during the pendency of the litigation, all without benefit of notice, hearing, or participation by a judicial officer. The court specifically declined to distinguish corporate or commercial property from consumer property in terms of due process rights.
Since Mitchell the lower federal courts, faced with the constitutional issue, have relied generally on the Mitchell safeguards for determining the validity of state statutory attachment procedures. In Guzman v. Western State Bank of Devils Lake, No. Dak., (8th Cir. 1975 ) 516 F. 2d 125, the court found the North Dakota attachment statute unconstitutional for failure to meet Mitchell requirements due to the allowance of conclusory affidavits, lack of judicial supervision, and the requirement that the debtor post a bond when challenging the attachment. The court termed the posting of a bond an extreme hardship on the debtor. The Illinois statute was found to lack the Mitchell safeguards and declared unconstitutional in Hernandez v. Danaher, (N. D. Ill. 1975 ) 405 F. Supp. 757. A similar result was reached in Terranova v. Avco Financial Services of Barre, Inc., (D. C. Vt. 1975 ) 396 F. Supp. 1402, which held unconstitutional the Vermont attachment procedures. The prejudgment statutes of two other states have withstood constitutional attack. The court in each case applied the Mitchell standards and found them satisfied. (Matter of Northwest Homes of Chehalis, Inc., [9th Cir. 1975] 526 F. 2d 505 [Washington attachment statute]; Hutchison v. Bank of North Carolina, [M. D. N. C. 1975] 392 F. Supp 888 [North Carolina attachment statute].)
A thorough analysis of these cases leads one to the conclusion that in order for a state prejudgment attachment procedure to be constitutional under the due process clause, the statute must contain the following necessary elements:
(1) The plaintiff must furnish an appropriate bond or other security to protect the debtor in the event the attachment has been wrongfully obtained.
(2) The affidavit upon which the attachment is based must allege specific facts rather than conclusory allegations in the statutory language.
(3) A judicial officer must pass on the sufficiency of the facts alleged in plaintiff’s affidavit before issuing an attachment order.
(4) It is not sufficient for the attachment to be subject to dissolution on the posting of a bond by the defendant; the defendant debtor must be provided an immediate postseizure hearing on the validity of the attachment.
With these basic principles in mind we turn now to the pertinent Kansas attachment statutes to determine their constitutional validity. The relevant statutes are as follows:
K. S. A. 1975 Supp.
“60-701. Grounds for attachment. Subject to the provisions of K. S. A. 1975 Supp. 60-703, and amendments thereto, the plaintiffs at or after the commencement of any civil action may have, as an incident to the relief sought, one or more attachments against the property of the defendant, or that of any one or more of several defendants, when the defendant whose property is to be attached:
“(1) is a nonresident of the state or a foreign corporation, or
“(2) has absconded or is concealed so that the summons cannot be served or is about to move out of this state with the intent of changing domicile, or
“(3) is about to remove his or her property or effects out of this state, or
“(4) is about to convert his or her property or a part thereof into money for the purpose of placing it beyond the reach of creditors, or
“(5) has concealed, removed, assigned, conveyed or otherwise disposed of his or her property or effects so as to hinder or delay creditors or is about to do so, or
“(6) fraudulently contracted the debt or fraudulently incurred the liability, or
“(7) is liable for damages for injuries arising out of the commission of some felony or misdemeanor, or the seduction of a person, or
“(8) has failed to pay the price or value of any article or thing delivered which by contract the defendant was bound to pay upon delivery.”
K. S. A. 1975 Supp.
“60-703. Attachments, how obtained; certain earnings exempt before Judgment; affidavit and bond required, when; may be issued and served on Sunday or holiday. The order of attachment shall be issued by the clerk of the district court upon the filing of a petition stating the claim and the filing of an affidavit, or .an affidavit and bond, as in this article required, except that no order of attachment shall be issued before judgment on plaintiff’s claim where the property of the defendant to be attached is in the possession of a third party and is in the form of earnings due and owing to the defendant. The filing of an affidavit setting out one or more grounds of attachment is required in every case, and a bond is required except (1) in actions instituted on behalf of the state of Kansas or a county of the state, or (2) where the defendant is a nonresident of the state of Kansas or is a foreign corporation not qualified to do business in the state of Kansas and is not a common carrier or public utility. The order of attachment may be issued and executed on Sunday or on a legal holiday if the affidavit states that the party seeking the attachment will lose the benefit thereof unless the writ be issued or served on such day.”
“60-704. Form of affidavit, by whom made. The affidavit shall be made by the plaintiff, or some person for him, and shall state that the plaintiff has a just claim against the defendant, and the amount which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, and that he has good reason to believe, and does believe, in the existence of one or more of the causes, specifying the same, which .according to the provisions of section 60-701 would entitle the plaintiff to an attachment.”
“60-707. Attached property retained or repossessed by defendant, (a) Bond, conditions. When property of the defendant found in his possession or in the hands of any other person shall be attached, the defendant, or such other person, may retain or regain the possession thereof at any time before final judgment or sale of such property under the order of the court, by giving a bond with one or more sufficient sureties in an amount which is either, at the option of the party giving such a bond, (1) double the amount of the plaintiff’s claim, or (2) double the appraisal of the property. The conditions of the said bond shaE be that the said property, or the value thereof, as the case may be, shall be available to apply on any judgment rendered in the action at such time as the court shall order. The sufficiency of the said bond shall be determined by the officer levying the attachment.
“(b) Discharge. If the defendant or other person on his behalf at any time before judgment causes an undertaking to be executed to the plaintiff, with one or more sureties approved by the judge, in double the amount of the plaintiff’s claim as stated in his affidavit, or in such lesser amount as shall be detennined by order of the judge, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shaE be discharged and restitution made of any property taken under it.”
“60-712. Dissolution of attachment, (a) Motion to dissolve, how made. In all cases where property, effects or credits shall be attached, any interested person may file a motion to dissolve the attachment, verified by affidavit, putting in issue the sufficiency of the proceedings or the truth of the facts alleged in the affidavit on which the attachment was sued out. The burden of proof shall be on the party seeking the attachment.
“(b) Amendments. The judge may in the- interest of justice, permit amendments to the petition or the affidavit, including the specification of additional grounds for attachment.”
It is clear from a reading of these statutes that the Kansas attachment procedure does not meet the due process standards established by the Supreme Court in the cases discussed above. We hold the Kansas prejudgment attachment procedure unconstitutional as a denial of due process of law for the following reasons:
(1) Where the ground for attachment under K. S. A. 60-701 is that the defendant whose property is to be attached is a nonresident of the state or a foreign corporation, the plaintiff is not required to post a bond or other security for the protection of the debtor. We see no sound reason for distinguishing between resident debtors and nonresident debtors. Due process of law reasonably requires that the plaintiff provide some protective 'Security to both classes. In Head v. Daniels, 38 Kan. 1, 15 Pac. 911, the defendant debtor challenged the constitutionality of the attachment procedures on the ground that the plaintiff creditor was not required to furnish a bond where the defendant is a nonresident of the state. Without stating any reason this court held that the statute was constitutional. In view of the present state of the law as discussed above, we have concluded that Head should be overruled and we do so. In order for a prejudgment attachment statute to withstand constitutional attack on the ground of denial of due process, it must provide for the posting of a bond by the creditor plaintiff for the protection of the debtor in every instance. A statutory exclusion of this requirement in cases of nonresident debtors is not constitutionally permissible.
(2) The Kansas statutory attachment procedure is unconstitutional because it permits the plaintiff in his affidavit to state conclusory allegations in the statutory language without allegations of specific facts which might justify prehearing attachment. In Reyburn v. Brackett and Bassett, 2 Kan. 227, decided in 1863, this court held that the grounds for an attachment may be stated in the affidavit in the language of the statute without specifying more particularly the facts which might justify the attachment. In Reyburn we declared that the facts and circumstances upon which the alleged grounds of attachment are founded where stated should be considered as surplusage. Traditionally in this state the plaintiff in his affidavit simply alleges the statutory ground for attachment without elaboration and no specific facts are stated to justify the attachment. In this case the affidavit for attachment executed by the plaintiff’s attorney and filed in the district court simply alleged the statutory ground without elaboration. Since our present attachment statutes do not require specific facts rather than conclusory allegations to be alleged as the ground of attachment in the plaintiff’s affidavit, the requirements of due process of law are not satisfied and the statutory attachment procedure is invalid. Insofar as Reyburn is contrary to our present holding, that case is overruled.
(3) The Kansas attachment procedure is constitutionally invalid for the further reason that the order of attachment is issued ministerially by the clerk of the court without the requirement that a judicial officer pass on the sufficiency of the facts alleged in plaintiff’s affidavit before the attachment order is issued. In issuing an order of attachment the clerk of the court performs a ministerial act, not a judicial act. In Reyburn the attachment statute in effect in 1863 was challenged as an improper delegation of judicial power to a nonjudicial officer in violation of section 27 of the Organic Act. We held clearly and unequivooally that wherp an attachment is granted on an affidavit in which the statutory grounds are positively stated, it is a ministerial and not a judicial act and may properly be performed by the clerk of the court. Our present attachment procedure does not satisfy the Mitchell requirement that 'a judicial officer pass on the sufficiency of 'the facts alleged in plaintiffs affidavit before the order of attachment is issued.
(4) K. S. A. 60-712 as set forth above provides that in all cases where property is attached, any interested person may file a motion to dissolve the attachment putting in issue the sufficiency of the proceedings or the truth of the facts alleged in the affidavit on which the attachment was sued out. The burden of proof is placed on the party seeking the attachment. In our judgment this statute does not give the defendant debtor an absolute right to a hearing on the attachment issue immediately after seizure as is required by the cases discussed above. The statute does not require the district court to set the motion for dissolution of the attachment down for immediate hearing. The hearing of the motion may take its turn on the calendar and it may be weeks before the matter can be heard by the court. With similar provisions the Illinois attachment statute was held invalid. The Illinois act merely provided for a postseizure hearing on application by the debtor at a time to be set at the convenience of the court. Since the court was under no statutory duty to set an immediate postseizure hearing, the Illinois act was determined to be constitutionally insufficient. (Hernandez v. Danaher, supra.)
Here the basis of the district court’s quasi-in-rem jurisdiction must be the existence of a valid attachment of the defendant’s property. Since the attachment is invalid, the quasi-in-rem jurisdiction of the district court is legally insufficient and must fall. It follows that the trial court was in error in overruling the defendant city’s motions to quash service, dismiss the petition, and dissolve the order of attachment.
The judgment of the district court is reversed and remanded with directions to sustain the defendant’s motions and to dismiss the case for want of jurisdiction.
IT IS SO ORDERED. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment rendered in a proceeding to construe a will.
Prior to June 9, 1934, one J. E. Hill, whose will is under consideration, was the owner of a certain tract of real estate in Wichita, Kan., the legal description of which is not of present importance. The post-office address of the real property was 1824 Ida avenue.
' On that date he and one Delta Moss, in contemplation of their marriage, entered into'a written contract reciting their proposed marriage, and that each had children by former marriages who helped earn what property each possessed and that they should have an understanding as to its disposal, and agreeing that if she should die first he would make no claim to her property, and in case of his death she would make no claim to any part of his estate “except the property at 1824 Ida avenue, which shall be hers to hold and to use as long as she shall live, together with its furnishings, and at her death it shall pass to the lawful heirs of J. E. Hill.” Thereafter, on June 10, 1§34, J. E. Hill, then 74 years of age, and Delta Moss, then 70 years of age, were married, and they lived together until the death of J. E. Hill on October 13, 1944. On August 18,1937, J. E. Hill made his last will and testament. We need not set out formal provisions, provisions for payment of debts and funeral expenses, or the designation of residuary legatees, as the only part in question is the third numbered paragraph, which recites :
“Third: I have made no provision herein for my present wife, Delta Moss Hill, for the reason that the said Mrs. Hill and myself were married to each other rather late in life, both of us having children of our own by former marriages, and we having mutually agreed to and with each other that each of us should have the right and privilege of giving to our respective children such property as we, or either of us, might own at the time of our death; however, it is my will and desire that my said wife, Delta Moss Hill, should she survive me, shall have the right and privilege of occupying the premises where we now live, commonly known as No. 1824 Ida Avenue, together with the furniture contained therein, for and during the period of her remaining life time, and at her death, be divided between my children as herein set forth and provided.”
Attached to and a part of the document was a consent of Delta Moss Hill which stated she had read the will and understood it, the share she was entitled to take on testator’s death, and that she accepted it and agreed to abide, and “do hereby waive, release and relinquish any and all claims, rights, interests or estates which I may otherwise have in the property of my said husband at his death.” Both the will and consent were executed as required by statute. Later and on August 24, 1937, J. E. Hill made a codicil to his will, but it did not affect the provision for Delta Moss Hill. On July 6, 1942, J. E. Hill and Delta M. Hill, husband and wife, for a stated consideration of $1 and other considerations, conveyed the above real estate by its proper legal description to one Evans. The net amount received by the grantors was $3,700, which was invested in United States government bonds, which were on hand at the death of Hill. The furniture was sold for $288. For a short time after the property was disposed of Mr. and Mrs. Hill lived with his daughter in Wichita, and they then moved to Beloit, Kan. When they first came to Beloit, Mr. Hill looked at a number of houses with a view of purchasing a home but no purchase was made, and they rented an apartment which they occupied until the death of Mr. Hill on October 13, 1944. The sale of the property in Wichita and the removal to Beloit was so that Mrs. Hill could be near her children and both Mr* and Mrs. Hill consented to their removal to Beloit.
Shortly after the death of J. E. Hill proceedings were commenced in the probate court and on November 10, 1944, his will was admitted to probate,"and May Hill Clutter was appointed as executrix and duly qualified. The administration of the estate proceeded. In September, 1945, the executrix filed her petition in the probate court, setting out her appointment and qualification and that she had possession of the assets of the estate. She directed attention to the third paragraph of the will, and that after execution of the will J. E. Hill and Delta Moss Hill had conveyed the real estate described to Evans; that the furniture had been sold; that the deceased J. E. Hill at the time of his death owned neither the real estate nor the furniture; that no other real property of any kind nor other furniture had been purchased; that as executrix she was prepared to conclude administration of the estate and to make distribution of the estate to the legatees and devisees named in the will; that she could not distribute and deliver the property at 1824 Ida Avenue or the furniture therein because, for reasons stated, she never possessed the same as executrix; that the acts and deeds of J. E. Hill and Delta Moss Hill in conveying the real estate and selling the furniture constituted an ademption .and relieved the executrix from making any distribution to Delta Moss Hill; ,and that Delta Moss Hill while recognizing.that the executrix could not deliver the real estate and furniture, contended that there should be paid to her from the estate of J. E. Hill financial compensation as near as may be, equal in value to the bequest made under the quoted paragraph of the will. Under her prayer the executrix asked that the acts of J. E. Hill and Delta Moss Hill in conveying the real estate and selling the furniture be declared to be an ademption and that she be relieved from paying to Delta Moss Hill any financial compensation or other benefit in lieu and instead. Under appropriate proceedings the matter was certified for trial to the district court, where most of the facts were stipulated. Some testimony was received, but as to it there was no important dispute.
The district court made findings of fact embodying the matters heretofore detailed and that it was the intention of J. E. Hill, at the time the antenuptial contract was executed, and at the time he executed his will, and at the time of the sale of the Wichita property, to provide a home for Delta Moss Hill as long as she should live. Such other findings of fact as are necessary will be mentioned later. The district court concluded as a matter of law the antenuptial contract was binding upon J. E. Hill during his lifetime and was a valid and existing obligation against the executrix of his estate, and that the ' executrix should pay Delta Moss Hill, from the assets of the estate, the sum of $250 per year until the death of Delta Moss Hill, and judgment was rendered accordingly. The motions of the executrix for a new trial and for a judgment in her favor were denied and she perfected her appeal to this court.
We here note that Delta Moss Hill filed no answer in either the probate or the district court. Neither the record as abstracted, nor the stipulation, disclose that she ever filed in the probate court any claim to any part of the estate, based on any right under the ■antenuptial contract, nor in the stipulations of fact made to the district court was there any reference to any such claim ever having been made.
We also note that it is conceded that J. E. Hill and Delta Moss Hill, at the time of the death of J. E. Hill, owned no real estate which was their homestead, and that no contention is made that under G. S. 1945 S'upp. 59-404, Delta Moss Hill was entitled to a widow’s allowance notwithstanding her consent to the terms of the will of J. E. Hill.
In the briefs filed in this court neither party has placed any reliance on the fact the district court made no specific finding either of fact or of law with reference to the question of ademption, nor does either make any clear segregation in argument concerning the provisions of the antenuptial contract and the legacy under the will. The general questions included in-the arguments in the briefs are whether there was an ademption, whether Delta Moss Hill is es-topped, in view of her joining in the deed and consenting to the sale of the furniture, to now make any claim, and whether the ante-nuptial contract is enforceable.
We first take note of the arguments presented by appellee in support of the judgment of the trial court. Summarized, the argument runs that the question for decision is whether J. E. Hill, by the ante-nuptial' contract and his will intended to provide a home for Delta Moss Hill as long as she lived, and that such intent is determined not from an isolated provision of his will (Shannep v. Strong, 160 Kan. 206, 160 P. 2d 683), but must be reached from the will as a whole (Morse v. Henlon, 97 Kan. 399, 155 Pac. 800); that where there is- a proved definite contract to leave property by will, and performance by the promisee, equity will grant relief (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, 9 L. R. A. n. s., 229; Braden v. Neal, 132 Kan. 387, 295 Pac. 678; Dent v. Morton, 148 Kan. 97, 79 P. 2d 875); that intent governs and must be ascertained from the will as a whole, giving its provisions such construction, if possible, as will effectuate rather than defeat the testator’s intention (Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708). The argument is that it clearly appears from the antenuptial contract and the will that J. E. Hill intended to give to Delta Moss Hill a home as long as she lived, and that her consent to the will was qualified by those provisions for her benefit, and when she joined in conveying the real property at 1824 Ida avenue, it did not result in any ademption. No authorities are cited in support of the last contention. Delta Moss Hill also presents some argument with respect to whether, by joining in the deed, she became estopped, and it is argued that J. E. Hill never intended to cheat or defraud his wife, but that he fully intended she should have a home as long as she should live; that a person claiming an estoppel must have been prejudiced; that one cannot be es-topped from claiming property by acts which have neither injured nor prejudiced the one asserting the estoppel (Jacquart v. Jennings, 118 Kan. 224, 235 Pac. 101, and cases cited therein); that if the appellant cannot produce the described real estate, she can provide the necessary money so that Delta Moss Hill may provide herself- with a home; that the doctrine of equitable estoppel should be interposed with caution and a necessary element is that the party invoking it has changed his position to his detriment in reliance upon the acts or the promises of the party sought to be estopped (Riffel v. Dieter, 159 Kan. 628, 157 P. 2d 831; Broadview Oil Co. v. Livengood, 156 Kan. 514,134 P. 2d 378); that it cannot be said the appellant has so suffered; and that for the appellant to prevail is not equitable to Delta Moss Hill.
Appellant’s argument in support of her contention the district court erred is premised on the proposition that the court could not stress the antenuptial contract and ignore the will and that in construing the will the testator’s intention must be ascertained from all of its provisions and from the circumstances surrounding its execu tion (Shannep v. Strong, supra); that the contract and will dealt with specific real estate; that the legacy to Delta Moss Hill was consented to when the will of J. E. Hill was made; that the legacy to her was adeemed and the antenuptial contract came to an end by the joint act of J. E. Hill and Delta Moss Hill in conveying the real estate and disposing of the furniture; and that under the circumstances Delta Moss Hill is now estopped from enforcing the terms of the antenuptial contract in the manner adjudged by the court.
In discussing the questions arising in this appeal and as presented in the briefs, we shall take up first the matter of the ante-nuptial contract.
It has been repeatedly held in this state that parties contemplating marriage may contract with each other concerning their property rights; that such contracts, fairly, equitably and intelligently, made, will be upheld; and that they will be liberally interpreted to carry out the intentions of 'the parties to them. (See, e. g., In re Estate of Garden, 158 Kan. 554, 148 P. 2d 745; In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483; Dunsworth v. Dunsworth, 148 Kan. 347, 81 P. 2d 9; Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; and cases cited.) There is no contention that the contract presently involved was not fairly and intelligently made and equitable in its terms. The rules governing the construction of contracts generally are applicable to the construction of antenuptial contracts (41 C. J. S. 574) and, a marriage settlement, in the absence of a statute to the contrary, may be revoked by mutual consent of the parties, although the revocation must be clearly expressed (41 C. J. S. 583). While much could be written as to rules of construction of contracts generally, it has been held in this state that a primary rule of construction is that, if possible, the court must ascertain and give effect to the mutual intention of the parties as of the time the contract was made, unless in contravention of legal principles, statutes or public policy (see Berg v. Scully, 120 Kan. 637, 245 Pac. 119), and further that the intention of the parties to and the meaning of a contract are fco be deduced from the language of the contract where its terms are plain and unambiguous, and when the language is clear and unequivocal the meaning must 4be determined by its contents alone, and words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed (Wood v. Ozark P. L. Co., 142 Kan. 333, 46 P. 2d 614). Before applying these rules to the instant contract, it may be observed that the record as abstracted discloses no evidence whatever, even if it were competent, that after « the Wichita property was sold there was any agreement the proceeds were to be reinvested in any homestead or otherwise held in lieu of the Wichita property. The language of the antenuptial contract is clear and unambiguous and in determining the intention of the parties to it, we consider the situation as of the date the contract was made, that is, June 9, 1934. Giving the language used a liberal interpretation, it is apparent that the parties intended that so long as Delta Moss Hill lived after the death of J. E. Hill, she was to have the right to hold and to use the described property. The contract contains no language even hinting that if the parties mutually agreed to' dispose of that property that Delta Moss Hill had any interest in the proceeds arising from the sale or in any property in which those proceeds might be invested. When Delta Moss Hill joined in the sale and disposal of the property which was the subject matter of the contract, it left a situation where there was nothing left on which the contract could operate. The effect of the district court’s' ruling was to make for the parties to the antenuptial contract an agreement they did not make for themselves.
Although not mentioned in the briefs, there is a matter implicit in the judgment of the district court which we think should be mentioned and decided. As has been stated, the district court’s judgment was grounded solely on the binding force of the antenuptial contract. If that judgment is carried out Delta Moss Hill will receive an amount out of the assets of- the estate which was not bequeathed to her, and thus the amount to be received by the residuary legatees will be reduced. Under our decisions, whatever -rights Delta Moss Hill had under the antenuptial contract, as interpreted by the district court, constituted a demand against the estate of J. E. Hill. (See, e. g., In re Estate of Grindrod, 158 Kan. 345, syl. ¶ 5, 148 P. 2d 278; Ganatz v. Bondurant, 159 Kan. 389, 155 P. 2d 450; and In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501.) Under the provisions -of G. S. 1945, 59-2239, it was necessary, if Delta Moss Hill had a demand against the estate of J. E. Hill, that she make claim thereon within the 'time provided by that statute. Delta Moss Hill did not file any' claim in the time fixed. ■Under such circumstance, the executor was without power'to waive the statute of limitations or nonclaim (Allen v. Turner, 152 Kan. 590, syl. ¶ 2, 106 P. 2d 715; In re Estate of Badger, 156 Kan. 734, syl. ¶ 1, 137 P. 2d 198) and if, in an attempt to prove such a claim, is developed it was barred, it was the duty of the court to disallow it. (Hammond v. Estate of Hammond, 150 Kan. 113, 91 P. 2d 19.) It follows that Delta Moss Hill, not having filed her claim in the probate court, may not recover from her husband’s estate on account of their antenuptial contract.
However, as has been noted, the appellee relies not alone upon the antenuptial contract but upon the will, and therefore we take up consideration of the will, and whether there was an ademption of the legacy given to her. It is not necessary that Iré treat at any length the rules to be applied in construing the will of J. E. Hill for it is well settled that one clause or phrase is not to be isolated from its context, but the intention of the testator is to be reached from the will as a whole and from the circumstances attending its execution if needed to clarify his intent. We need not, in construing the will, pay attention to the antenuptial contract, which in effect the testator recognized. The provisions of paragraph three of the will, quoted above, and the contract are in substantial accord. Neither need we elaborate on the proposition that the legacy to Delta Moss Hill, although not in fee simple, did give to her a specific legacy made up of the devise as to 1824 Ida avenue, and of the bequest of the furniture contained therein.
What was the effect of the conveyance of the real estate by J. E. Hill and Delta Moss Hill, and of the disposal of the furniture? We do not ignore appellee’s 'contention that Mrs. Hill’s testimony may have been that she did not know the property was to be sold before the sale was made, but that testimony was objected to as being part of a transaction with' a person since deceased. The findings of the district court contain nothing that Mr. Hill overreached Mrs. Hill in any particular. However that might be, the undisputed fact is that the real estate was conveyed and the furniture was sold during the lifetime of J. E. Hill and were not a part of his estate at his death and were never any part of his estate reaching his executrix. Ademption is the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator’s estate in his lifetime, and where the testator sells or disposes, of real or personal property which is the subject matter of a specific legacy, the sale or disposal, without more, results in an ademption and the legatee takes nothing of it under the will. See 69 C. J. 998, 1007. The following cases recognize the rule and its effect: Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146; Willoughby v. Watson 114 Kan. 82, 216 Pac. 1095; Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026; Warren v. Phebus, 132 Kan. 816, 297 Pac. 657; Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; and other cases to the same effect might be cited. Most of the above cases are also authority for the proposition that the legacy now under consideration is a specific and not a general one. Under the above rules, when J. E. Hill and Delta Moss Hill disposed of the property which is the subject matter of paragraph three of his will, there was an ademption and Delta Moss Hill took no part of such property under the will.
Appellee makes some contention that J. E. Hill, by his will, as well as by the antenuptial contract, intended to provide Delta Moss Hill with a home as long as she should live, whether in the specific property at 1824 Ida avenue or some other, and that the specific property having been disposed of, his executrix was under a duty to carry out such intention. To arrive at a conclusion that such was the testators’ intention appellee stresses what transpired long after the will was executed, particularly that after the property in Wichita was sold J. E. Hill looked at some real estate in Beloit with a view of possible purchase. The testator’s intention is to be derived from his will and the circumstances surrounding its execution. Certainly the will in itself makes no provision such as appellee contends for, and just as certainly there is no evidence whatever that when the will was made any consideration was given to the fact 'the property might be disposed of, or if it was, as to what should then occur or be the result. In effect, appellee asks us to read into the will a provision such as she believes the testator might have made had his attention been directed to it. She is asking that the court reform the will. This court is fully committed to the rule that a court has no power to reform a will, or to make a will for the testator otherwise than as he saw' fit to make it. See the following cases: Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, 41 L. R. A., n. s. 1126, Ann.. Cas. 1914 A 475; Dye v. Parker, 108 Kan. 304, 194 Pac. 640, 195 Pac. 599; Hoover v. Roberts, 144 Kan. 58, 58 P. 2d 83; Alexanders. Goellert, 153 Kan. 202, 109 P. 2d 146; Dyal v. Brunt, 155 Kan. 141,148,123 P. 2d 307.
The contention that J. E. Hill by his will intended to charge his estate with providing a Home for Delta Moss Hill as long as she should live cannot be sustained.
In view of our conclusion as previously stated, it becomes unnecessary to discuss the question of estoppel as presented in the briefs.
The judgment of the district court is reversed and the cause remanded with instructions to render judgment in favor of the appellant. | [
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The opinion of the court was delivered by
Thiele, J.:
The question presented in these appeals is whether the trial court erred in denying motions to strike, and arises as hereinafter set forth.
On October 23, 1944, plaintiff commenced two actions. The first was against August Zenger. It is not necessary to repeat the detailed allegations of her petition, but generally it was charged that on December 16,1943, she was appointed guardian of the estate of Frank Zenger who in June, 1936, had been adjudged to be an incompetent person; that since 1936 August Zenger had appropriated to himself certain property of Frank Zenger consisting of the proceeds of, a life insurance policy, the proceeds from the sale of hors.es and mules, farm crops and other property of Frank Zenger, and had not accounted for them. The petition contained an allegation that another action was being filed on the same day for recovery of the proceeds of the insurance policy. It was further charged that August Zenger was trustee for Frank Zenger, and in violation of his trust and secretly he had obtained the property without lawful consent of anyone authorized to speak for Frank Zenger and that his wrong was not discovered until the year 1944, and that the action was brought for the purpose of ascertaining the value of the property wrongfully taken, and for the recovery of that amount. The prayer was for an accounting and for judgment for the amount found due. In the second action the defendants were August Zenger, the insurance company and a bank which was alleged to have cashed a check for the proceeds of the insurance policy. In the petition in this case are allegations of the- appointment of plaintiff as guardian of the incompetency of the ward and of a fiduciary relation between August Zenger and Frank Zenger. It was then alleged in some detail that Frank' Zenger had procured an insurance policy on his own life from the New York Life Insurance Company and that August Zenger had possession of the policy and wrongfully caused Frank Zenger to execute the necessary instruments to surrender the policy for its cash value, and that the company issued its check for $1,779.84 to Frank Zenger, but that August Zenger got possession of the check and caused Frank Zenger to endorse it, and omitting details, caused the check to be cashed by the Citizens State Bank of Marysville. Allegations against the insurance company and the bank are of no present importance. Knowledge by August Zenger of Frank Zenger’s incapacity is alleged. It is charged that August Zenger appropriated to himself the proceeds of the check and has never accounted to anyone legally feting for Frank Zenger. The prayer of the petition was for judgment against each and all of the defendants for the sum of $1,779.84 and interest.
To each of these petitions the defendant August Zenger filed his answer and cross petition. We are informed that the two answers and cross petitions are identical in character and as presented in the briefs no distinction between the two actions is made. Our consideration of the questions presented is on that basis.
Although the pleading is called an answer and cross petition, in the form in which it is drawn it consists of a formal opening paragraph containing a general denial of the allegations of the petition and for further answer and for setoff, counterclaim and cross petition alleges — then follows nineteen numbered paragraphs and a prayer that the plaintiff be denied relief and that August Zenger have judgment against the plaintiff for $3,777.39 and interest; that Walter Zenger be made a party defendant and that a general accounting be had of all claims among Frank Zenger, Walter Zenger and August Zenger and judgment rendered accordingly. In the pleading there is no separation of matters of defense and offense, and without detailing the allegations of the nineteen numbered paragraphs which consume twelve printed pages of the abstract, and without regard to numerous exhibits attached and part of which are abstracted, it may be said that the allegations, to a considerable extent, serve not only as matters of defense but as allegations warranting relief on the cross petition. So far as the record as abstracted discloses, no motion was filed for the purpose of compelling any separation of allegations tending to a defense from those tending to state a cause of action on the counterclaim. In a very general way it may be said in addition to the general denial, the defendant denied that plaintiff was the duly appointed, qualified and acting guardian of Frank Zenger, or that he had ever been lawfully found to be an incompetent person; that another action was pending for the same cause; that the petition did not state facts sufficient to constitute a cause of action; that any cause of action stated was barred by the statute of limitations; and that all matters alleged had been settled in a previous action between the parties. There are also numerous allegations concerning the circumstances in which the particular insurance policy was acquired, how and by whom premiums were paid on it, the family situation and the manner in whioh defendant and his brothers had attended to various farming and other activities in which Frank Zenger had an interest, a statement of account for moneys allegedly advanced for Frank Zenger, and that August Zenger became' the owner of the account, and that by reason of the method of handling the business affairs of the family, a general accounting of all such family trans- ' actions should be had.
After the above answers and cross petitions had been filed, the plaintiff filed a motion entitled “Motion To Strike” in which it was asked that the court strike from the answer and cross petition, “for the reasons that such portions thereof constitute no defense to the plaintiff’s petition, nor do the same or any part thereof tend to a defense of such petition, and such parts thereof and each of them are immaterial, surplusage and redundant, and state no grounds for relief,” eleven of the nineteen numbered paragraphs of the answer and cross petition.
Each motion was denied and the plaintiff duly appealed from the ruling in each case. In this court the appeals were consolidated, and as previously indicated, in the briefs no distinction is made between the two cases.
Appellee objects to any consideration of the appeals for the reasons that the rulings are not any of those included in G. S. 1935, 60-3302; that the ruling of the trial court is not a final order, and that it does not affect any of the plaintiff’s substantial rights. Appellant contends that her motion has the effect of a demurrer and should be so considered, and that considered as a demurrer, an appeal lies whether it is sustained or overruled. (G. S. 1935, 60-3302, Second.)
Each' party directs our attention to decisions treating parts of the whole question presented by the particular pleading and motion in this case, and while they have been examined there will be no comment on them, for their applicability to our present problem is remote.
It may first be observed that no effort was made to strike the general denial and therefore the answer states a defense. Neither was any effort made to strike the allegations of paragraph 13 to the general' effect that Frank Zenger is physically crippled and does not have mental capacity to perform services equal in value to his care and keep and that August Zenger furnished such care and keep, the value thereof being alléged; nor the allegations of paragraph 15 wherein is a statement of account covering insurance premiums paid, care of livestock, and services rendered to Frank Zenger, as- well as credits due to him for moneys received on his behalf. Neither was any effort made to strike allegations respecting an action between the parties in which it is contended certain rent and other matters were adjudicated. The motion to strike, by reference to paragraph numbers, ignores the fact that all are part of the whole; that the whole context must be considered and not portions which are more or less isolated.
The allegation in paragraph 3 that another action was pending between the same parties for the same cause of action was not motioned, but the allegations of paragraph 4 were. In paragraph 4 the defendant pleaded that the petition did not state facts sufficient to constitute a cause of action, a procedure recognized as proper under G. S. 1935, 60-708, and that plaintiff’s cause of action was barred by the statute of limitations. It is not open to debate that the demurrer in the answer and the plea of the statute of limitations were not subject to attack by demurrer. ■
It is apparent from the allegations of both petitions that plaintiff seeks principally to recover the proceeds arising from the surrender of a life insurance policy on the life of Frank Zenger. Under paragraphs 7 and thereafter, of the answer and cross petition, August Zenger pleaded the policy was obtained on the life of Frank Zenger in 1922 and the premiums paid thereon by Zenger Brothers as security for money had and received by Frank Zenger. Other allegations pleaded at length how August Zenger became the owner of the account against Frank Zenger, the course of dealing between August Zenger and Frank Zenger and stated an account, after which there was a further allegation that other items were due to August Zenger from Frank Zenger and a complete accounting should be had, and the prayer was in accord.
With reference to the motion generally the purpose seems to have been to strike out all allegations which tended either to operate as a defense or to afford grounds for a counterclaim, and to leave undisturbed those allegations which could possibly be construed as an admission by August Zenger that he had or had had money or property belonging to Frank Zenger. The ruling refusing to strike, however, was not a finality, nor would the ruling prejudice the plaintiff at- the trial of the action. The ruling did not have the effect of holding that the defense or any part of it was proven, nor that the evidence which might be offered was competent and sufficient, nor did it conclude inquiry'into whether'any of the proceedings were res judicata. It could not well have done so because the facts pleaded have to be determined before any such conclusion may be reached.
In our opinion the motion to strike was not the equivalent of a demurrer, 'and, in the absence of a showing of prejudice, the ruling thereon was not appealable. It follows the consolidated appeals should be and they are dismissed.
Appellant suggests there is a question as to the jurisdiction of the trial court. She does not suggest it was raised below, but that it is a question which is always before the court, citing Shively v. Burr, 157 Kan. 336, 139 P. 2d 401. The twelfth judicial district is comprised of Washington, Cloud and Republic counties, and the Honorable W. D. Vance is the judge thereof. The Honorable William R. Mitchell is the judge of the fifteenth judicial district which lies immediately west of the twelfth judicial district. The present actions were commenced in Washington county. Although not entirely clear from the record as abstracted, the first time the matters came before Judge Vance he announced that he was disqualified to try the case because of his former service as counsel for August Zenger. Thereupon, all parties consenting, Judge Mitchell was selected to sit as judge for the trial of the actions, and with the consent of all parties Judge Vance ordered that the cause be tried at Belleville, in Republic county. Thereafter, August Zenger’s answers and cross petitions were filed, and the matters heretofore discussed were heard at Belle-ville. It would appear that the selection of Judge Mitchell was proper under G. S. 1935, 60-511. That the district court of Washington county had jurisdiction of the action when filed is too clear for argument, and no suggestion to the contrary is made. An examination of the two petitions does not disclose any type of action where the venue was necessarily in Washington county, for the actions did not concern real property under G. S. 1935, 60-501, nor were they within the purview of G. S. 1935, 60-503. On the contrary the venue of the actions was wherever the defendants or some one of the defendants resided or might be summoned. Neither petition discloses the place of residence of August Zenger, but we assume that he lived in Washington county. Copy of the summons and return is not shown, but the place of residence of the other defendants is not in Washington county. In view of the fact the actions are transitory in character and could have been brought in Republic county, if service had been obtained on one defendant there, we cannot say that the court erred in directing trial to be held in Republic county, in view of the consent of all parties that that might be done. The question presented is not of jurisdiction but of venue and the stipulations and consents of the parties settle it. The suggestion that the orders made resulted in the trial court’s not having jurisdiction is not approved or allowed.
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The opinion of the court was delivered by
Burch, J.:
The original opinion in this case was filed as of April 6, 1946, and appears in 161 Kan. 332, 167 P. 2d 295. A motion for a rehearing was allowed, additional briefs were filed and the case was reargued. The argument which convinced this court that the motion for a rehearing should be allowed was to the effect that the court followed the case of Jehu v. Jehu, 110 Kan. 210, 203 Pac. 712, without giving reported consideration to the wording of a relatively new statute in the present probate code. Such statute is G. S. 1945 Supp., 59-402, which reads:
“The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority.” (Emphasis supplied.)
The corresponding statute and source of prior law which was in effect before its repeal and when Jehu v. Jehu, supra, was decided, is now shown as G. S. 1935, 22-105. It reads:
“If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one half in value to the widow and the other one. half to the children.” (Emphasis supplied.)
Because the present statute, G. S. 1945 Supp., 59-402, was not cited in the original opinion the impression may prevail that its significance was overlooked. In justice to counsel for the appellant, however, it should be said that such statute was called to our attention and its force emphasized in appellánt’s original brief. In the proceedings on rehearing our attention has been called again and again to the difference in the wording of the former statute and the wording of the present statute. The prior statute obviously provided that when a widow and children survive an intestate the homestead could be the subject of partition when and if the widow again married or when all of the children arrived at the age of majority. The present statute reading, “The homestead shall not be subject to forced partition unless the surviving spouse remarries nor until all the children arrive at the age of majority,” may have a very different meaning. Counsel for the appellant emphatically contend that it was the deliberate intention of the legislature when it repealed G. S. 1935, 22-105, in connection with the passage of ■G. S. 1945 Supp., 59-402, to change the meaning in such manner that thereafter the surviving spouse with adult children would con tinue to have the same rights as a spouse without children or with minor children unless the spouse remarried. In support of such contention they cite Bartlett’s Kansas Probate Law and Practice, sec. 195, p. 187, et seq. The cited text clearly supports the contention. Also it is contended that the word “nor” as distinguished from “or” is a negative connective or particle introducing a second negative of a negative proposition. This court does not necessarily disagree with such contentions and insofar as the syllabus to the original decision and the corresponding part of the opinion conflict with such contentions the same may be regarded as being set aside as the court does not intend that the original opinion shall be construed as deciding, by implication or otherwise, that the two statutes are identical in meaning. The question before the court, however, is whether the present statute has any application or is controlling in the instant controversy.
Before giving consideration to the above-stated question we note further that the original opinion, near the close thereof, reads as follows: “Counsel for appellees call our attention to the fact that the appellant failed to have a homestead interest in his behalf established in the probate proceedings. Such a defense was not alleged in the reply filed by the appellees and was not passed upon by the trial court.” In the supplemental briefs and abstracts filed in connection with the rehearing it is established that counsel for appellees asked leave to amend their reply by setting forth, in substance, that the appellant was estopped from asserting or had waived the right to assert .any claim to a right of homestead occupancy by reason of his failure to file a petition in the probate court claiming a homestead interest in the property as he might have done under the statute that is now G. S. 1945 Supp.;’59-2235. Counsel for ■ the appellant concede that he did not file such a petition. The record discloses further that in the instant case the trial court clearly took the position that an owner of' an undivided interest cannot establish a homestead right as against a cotenant' and that a surviving spouse cannot assert a homestead interest in property that was subject to partition by joint tenants before the deceased spouse died. For such reason the written opinion filed by the court concludes as follows: “In view of the above it is unnecessary to decide the question raised by the plaintiffs that the defendant is estopped from now claiming a homestead right when it was not asserted and adjudicated in the probate court.” The reasoning of the trial court seems logical. If no homestead interest could be asserted as against cotenants in this case, then such a nonexisting interest could not be waived or otherwise lost by failure to assert the same in any court because there was nothing to assert. Consequently, if the trial court was correct as to'the basis for its ruling, then this court also does not reach for decision the question whether a waiver of or an estoppel to assert a homestead claim develops in the present case.
For the purpose of clarity, perhaps it is prudent to review again some of the pertinent facts. P. A. Cole and his wife, Bessie D. Cole, purchased the land in question in 1915, taking title in such a way that each had an undivided half interest therein. They were the parents of the appellees. P. A. Cole died intestate in 1922. His estate was not administered and it is conceded that one-half of his estate passed to his widow, Bessie D. Cole, and the other one-half to their three children. This left the title to the land in Bessie D. Cole and her children as tenants in common, she owning an undivided three-fourths interest and the children collectively owning a one-fourth interest, each of them owning a one-twelfth interest. In 1932 Bessie D. Cole married Joe Coons, the appellant, and shortly thereafter they moved upon the land and made it their home. On ' July 19, 1942, Bessie D. Cole Coons died intestate and her estate was duly probated in Reno County, Kansas. The administration was closed on September 7, 1943. Prior to her death her children, who are the appellees in the present case, collectively, as tenants in common with their mother, owned undivided interests in and to the property by reason of the children having inherited from their father one-half of his original interest in and to the property. Obviously, when their mother died the appellees also collectively acquired by descent from their mother one-half of her three-fourths interest in the property, with the result that the appellees at the time the action.was brought were the owners of 15/24 of the property and the appellant was the owner of the remaining 9/24. A significant fact to be noted is that the appellees were collectively the owners as cotenants of 6/24 of the property before the death of their mother occurred. It should be noted also that they had become adults and that their mother had remarried long before the action was brought. The appellant admits that the appellees owned the respective interests irt the property as cotenants, and the other circumstances herein set forth but contends that upon the death of Bessie D. Cole Coons he became entitled not only to have title established in him as to his 9/24 interest in the property but that he was entitled also to a homestead right of occupancy in all of the interest owned by Bessie D. Cole Coons prior to her death. The appellees contend that the appellant was not entitled to any homestead right of occupancy because the property was owned in co-tenancy prior to the death of Bessie D. Cole Coons.
In considering the question presented, it is well to bear in mind at the outset, that the statute, G. S. 1945 Supp., 59-402, supra, does not create a homestead. It only provides that partition of a homestead may be had when and if it and certain other prescribed conditions exist. It presupposes that a homestead right exists. Its wording does not permit any other construction. As hereinbefore set forth it reads: “The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority.” It follows, therefore,'that if no right of homestead occupancy existed as between the cotenants that the statute has no application and is not controlling.
The original opinion, in addition to citing Jehu v. Jehu, supra, cites the case of Banner v. Welch, 115 Kan. 868, 225 Pac. 98, and quotes the following therefrom:
“ ‘Appellants contend that this property is their homestead and that plaintiff cannot disturb or destroy their homestead interest in the property. The rule is well settled that when two or more parties buy real property, and become owners thereof as tenants in common, one of them cannot, as against his cotenant, establish a homestead upon the whole. All he can d,o is to establish a homestead as to creditors upon his separable interest or title. (National Bank v. Kofflin, 1 Kan. App. 599; Tarrant v. Swain, 15 Kan. 146; Oliver v. Sample, 72 Kan. 582, 84 Pac. 138; 15 A. & E. Enc. of L., 2d ed., 568, 570; 29 C. J. 849; 13 R. C. L. 573; Livasy v. State Bk. of Redfield, 185 Iowa 442; Sieg v. Greene, 225 Fed. 955; Peets v. Wright, 117 S. C. 409; Baker v. Grayson, 86 Okla. 159; Leach v. Leach, 223 S. W. [Tex. Civ. App.] 287.)”’ (Emphasis supplied.) (p. 336.)
The original opinion also clearly develops that we do not have before us for consideration a case wherein homestead rights are being asserted as against creditors, heirs or devisees. The instant case involves only the right to assert homestead interests as against co-tenants. In addition to the cases cited in the original opinion, see the case of Hazelbaker v. Reber, 123 Kan. 131, 254 Pac. 407, from page 136 of which the following is quoted:
“Would the rule be otherwise if the real estate were the homestead of one of the tenants in common? Just what could the spouse of the tenant in com mon holding a homestead interest in the property do which would or could affect the right of the other cotenants or any one of them to have the property partitioned’■? Nothing. The existence of a homestead interest in one of the cotenants may altogether prevent, for a time, any partition in invitum [citing cases]; but where the right to partition is absolute, the fact that one of the. cotenants occupies the property as a homestead is of no consequence . . (Emphasis supplied.)
See, also, Nelson v. Stocking, 154 Kan. 676, 121 P. 2d 215, which quotes, with approval, from the opinion in the early case of Tarrant v. Swain, 15 Kan. 146, the following:
“ ‘Where a person owns an undivided half of a certain piece of land, and resides upon and occupies the land with his family, he may acquire a homestead interest in the land, under the homestead-exemption laws of Kansas, so far as such interest does not conflict with the rights and privileges of his cotenant . . (p. 677.) (Emphasis supplied.)
The rule denying the right of one cotenant to assert a homestead claim as against another cotenant does not live in lonely isolation only in Kansas. The'rule will be found stated in 40 C. J. S. 525, § 88, as follows:
“Under the great weight of authority, there may be a homestead right in property held jointly or in common, or in an undivided interest in property, with the qualification that one joint tenant or tenant in common cannot acquire such a homestead right as will prejudice his cotenant's rights or interests.” (Emphasis supplied.)
In 29 C. J. 849, § 167, the qualification of the rule is stated as follows:
“This rule is subject, of course, to the qualification that the tenant in common or joint tenant can obtain no such homestead interest as will interfere with the rights or interests of his cotenant or any person rightfully claiming, under his cotenant.”
In support of the qualification the text cites many cases, among them our early cáse of Tarrant v. Swain, supra. A short statement of the rule may be found in 26 Am. Jur. 39, § 62. It reads:
“He [a cotenant] may not assert a [homestead] claim which operates to the prejudice of his cotenants or deprives them of their enjoyment of the property . . .”
As was stated in the original opinion, cases from other states can be cited in which it has been held that one cotenant can assert homestead rights as against another cotenant but such cases frequently turn upon the wording of constitutional and statutory provisions different from ours. Nothing is to be gained by further emphasizing the rule in Kansas. It has been followed in this state at least ever since Mr. Justice Valentine wrote, in 1875, in the casé of Tarrant v. Swain, supra, the following:
“Of course, a tenant in common can obtain no such homestead interest as will interfere with the rights or interests of his co-tenant or any other person rightfully holding under his co-tenant.” (p. 149.)
It follows, therefore, that in Kansas one cotenant cannot assert homestead interests as against other cotenants unless the statute under consideration creates such a right.
Application of the cotenancy qualification to the situation presented in the present case may necessitate the following observations: Under G. S. 1935, 22-105, when all of the children of Bessie Cole Coons reached the nge of majority, they were cotenants of their mother in the involved land and their rights as such were enforceable. The fact that they acquired their cotenancies by inheritance rather than by purchase was of no consequence. (See the case of Hazelbaker v. Reber, supra, from which the following is quoted:
“It does not appear (and it is immaterial) whether their common ownership and title vested by deed or by inheritance.” (p. 131.)
If the youngest child of Bessie Cole reached majority while the last-cited statute was in force, any or all of the children thereafter could have maintained a partition action and their mother could not have asserted any. homestead right therein because she would have been asserting it against her cotenánts. The record does not disclose whether the youngest child reached the age of majority before the statute which is now G. S. 1945 Supp., 59-402, was enacted, but.such point becomes inconsequential because the mother of the adult children had remarried. Consequently, when the youngest child reached majority the children became absolute, unrestrained cotenants with their mother in the ownership of the involved land under either of the statutes referred to herein and could have forced partition of the property. Their right of partition was complete and not subject to delay by any statute. Such a status prevailed at the time the mother died. When she died she left no more than a cotenancy interest in the involved property. Consequently, the property involved in this action was clothed with a cotenancy ownership before and when it descended to the heirs at law.
The question arises: Could a survivor’s right to a homestead be enlarged or diminished by reason of the death of the immediate predecessor in title? The negative answer to the question will be found stated in many standard texts. In 26 Am. Jur. 110, § 174, the answer will be found as follows:
“The use or benefit which is secured to the surviving spouse by the provisions of the statute may not be claimed unless the premises were occupied under circumstances giving rise to the homestead right.”
40 C. J. S. 724, § 239, states the rule as follows:
“. . . A surviving spouse, or person within the statute, takes the homestead rights, not by right of survivorship, but as jftoperty set aside by law from decedent’s estate for the benefit of such survivor, and his or her rights are neither enlarged nor diminished by the fact of such death.” (Emphasis supplied.) (Citing Union Nat. Bank of Greeley v. Wright, 78 Colo. 346, 242 Pac. 54.)
The appellant contends, however, that he obtained a “probate homestead right” in the involved property arising by reason of the operation of the statute under consideration and that, therefore, he is entitled to assert a homestead right as against his cotenants. From 40 C. J. S.'725, § 239, the following is quoted: -
“The homestead right set apart to a surviving spouse or minor children is commonly called a ‘probate homestead,’ which, as defined by statute, is a homestead set apart by the court for the use of the surviving spouse and the minor children out of the common property, or if there be no common property, then out of the real estate belonging to deceased; or a homestead to be created by the probate court out of any property belonging to decedent, which was subject to a homestead at the time of his death.” (Emphasis supplied.)
' Obviously, if there is no property which is subject to homestead rights at the time of death as against cotenants, then those claiming as against such cotenants cannot assert the same, and the “probate homestead” character of the claim does not affect the matter. A similar answer to the question here presented will be found stated in 40 C. J. S. 753, § 262, as follows:
“The survivors cannot claim any exemption which the decedent himself could not- have claimed.”
The rule is the same when applied to'cotenants who inherit from a deceased cotenant. From 29 C. J. 1022, § 515, the following is quoted:
“If decedent was a tenant in common, his. surviving children and his widow obtain rights of exemption in the property in jurisdictions where a homestead may be acquired in property so held. And on the other hand the surviving wife is not entitled to a homestead by survivorship in property which was held by herself and her husband as tenants in common in a jurisdiction where the homestead laws do not permit the acquisition of a homestead in property so held.”
See, also, 40 C. J. S. 772, § 268. As hereinbefore developed, tenants in common cannot assert homestead rights as against other cotenants in Kansas, and consequently, their survivors cannot, provided the cotenancy was established prior to the death of the decedent.
Able counsel for the appellant overlook the significance of the cotenant rule in the instant case and seemingly assume that the situation is identical to what it would have been if Bessie Cole Coons had been the sole owner of a segregated part of the property during her lifetime. If, during her lifetime, either Bessie Cole Coons, or her adult children, had seen fit to partition the property in such manner that there would have been set off to her as sole owner a three-fourths part of the property, an entirely different result would have followed. In such an instance hex surviving second husband would have inherited from her an undivided interest in and to such property, which would have supported a claim for the right of homestead occupancy and probably .G. S. 1945 Supp., 59-504, would have been controlling. But the interested parties did not see fit, during Bessie Cole Coons’ lifetime, to have the property divided, either voluntarily or by forced partition.
In enacting G. S. 1945 Supp., 59-402, supra, the legislature did not abolish the rule as to a homestead claim not being maintainable by one cotenant as against another cotenant. The statute is, in fact, a recognition of the cotenancy rule. If it were not for the existence of the cotenancy rule there would be no occasion to put any limitation whatever upon the time and circumstances in which children, who become cotenants by descent, may enforce their rights to partition of a homestead. The statute has no application, however, to a cotenancy status established before the death of a decedent created a cotenancy ownership. It is, of course, correct to assert that when a person dies intestate, without debts, leaving a spouse-and children, such survivors inherit as tenants in common or cotenants any land which the deceased may have owned, including the family homestead. Therefore, it may be contended that the statute pertaining to when a homestead may be partitioned must relate to land owned by tenants in common. Such statute relates to tenancies in common created by death but not before death. The distinction must ever be kept in mind that statutes creating ten ancies in common by descent cannot affect the cotenancy status of property fixed prior to the date of their operation.
As was stated clearly on page 334 in the original opinion and again restated herein, we have before us a case involving asserted homestead rights only as between cotenants. Therefore, cases involving homestead rights which can be asserted as against creditors, heirs and remote devisees and others, except cotenants, have no application. We are not holding that it is always essential, in order to establish a homestead right upon real property, that the husband or wife shall have had full title to the property. A homestead right of occupancy may be established upon a cotenancy title, an equitable title, or an executory contract to purchase, a leasehold estate, or an estate for life, as against almost any class of claimants except cotenants. Also it may be noted that we are not holding herein that claimants, in other classes, can assert that property is owned by cotenants for the purpose of resisting homestead rights.
Since the record in the present case clearly discloses that the appellees held unrestricted and unrestrained interests as cotenants in the involved property before the death of their mother occurred, it must follow that her surviving spouse did not acquire any right to assert a homestead interest as against the other cotenants. As between cotenants the property was not subject to a claim of homestead rights and, therefore, the statute pertaining to homestead rights (G. S. 1945 Supp., 59-402) was not applicable.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is the constitutionality of K. S. A. 1974 Supp. 79-3603 (p) (now K. S. A. 1976 Supp. 79-3603 [p]). The district court of Shawnee County found this section of the statute vague and ambiguous and held it void and unconstitutional.
Kansas City Millwright Company, Inc., (plaintiff-appellee) is a Kansas corporation engaged in the original construction and repair of buildings and structures including repair, fabrication and construction of grain elevators, repair, fabrication and installation of large factory conveyor systems, repair of platforms and footings for grain elevators, and general grain elevator maintenance. The precise nature of the various undertakings by the appellee will be presented in detail later in the opinion.
On July 1, 1970, the legislature enacted the law imposing a tax on services. (L. 1970, ch. 389, § 2 [p].) That law, 79-3603 (p), supra, reads:
“[A] tax at the rate of three percent (3%) upon the gross receipts received from the installation, maintenance, servicing and repairing of tangible personal property not held for sale in the regular course of business, whether or not any tangible personal property is transferred in conjunction therewith, except services rendered in installing property in connection with the original construction of a building or structure, which when installed will become a part of such building or structure.”
On November 17, 1972, the appellee was audited by the Kansas Department of Revenue, Sales Tax Division, for the period of July 1, 1970, through September 30, 1972. Alleged unreported taxable sales in the amount of $882,321.12 were determined, upon which the tax assessed amounted to $26,469.66, plus interest of $1,778.12, and penalty of $2,646.97, resulting in a total assessment for tax, interest and penalty of $30,894.75.
On May 22, 1973, the original assessment was amended to show alleged unreported taxable sales of $432,663.21. A tax of $12,979.92, interest of $894.57, and penalty of $1,298.00 were assessed, making the amended total of the proposed deficiency $15,172.49.
On August 16, 1973, the appellee disputed the amount of taxes in a hearing before the Director of Taxation. The Director of Taxation sustained an assessment of $11,997.92 in taxes, $787.55 in interest, and $1,199.79 in penalty, for a total of $13,985.26. All of the assessment constituted sales tax allegedly due in accordance with the terms of 79-3603 (p), supra.
On March 25, 1974, the appellee requested a hearing before the Board of Tax Appeals pursuant to K. S. A. 74-2438. The appellee contended “the services were performed in the original construction of the building or structures and are nontaxable, the services and repairs were done to real property and thereby not taxable, some of the work was done as a subcontractor and not taxable,” and it further contended 79-3603 (p), supra, is invalid for vagueness and uncertainty and should not be enforced against the taxpayer.
On June 13,1974, after hearing, the Board ordered that sales taxes in the amount of $11,997.92 were due and should be paid by the appellee. The additional interest payment of $787.55 and penalty payment of $1,199.79 allegedly due were left to the discretion of the Director of Taxation with the recommendation of the Board that these charges be dropped from the amount due. On this matter the Board said:
“. . . [T]he Board feels that there was complete honesty and cooperation on the part of the appellant in this matter and as such recommends that the penalty and interest charges be dropped from the amount due, as a matter of equity.”
The Board denied authority to determine the issue of constitutionality.
On July 15, 1974, the appellee appealed to' the district court of Shawnee County again asserting that the labor charges which had been subjected to the sales tax were performed in the original construction of a building or structure, in the repair of real property or fixtures, or as a subcontractor and, therefore, were not subject to the Kansas Retailer’s Sales Tax. The appellee further asserted that 79-3603 (p), supra, was unconstitutional because it failed to distinctly state the object of taxation as required by Article 11, Section 5 of the Kansas Constitution.
On January 12, 1976, the district court sustained the appellee’s motion for partial summary judgment and held 79-3603 (p), supra, vague and ambiguous and thus void. It ordered the $11,997.92 in question, previously deposited with the clerk by the appellee, to be returned to the appellee. The reasons given by the trial judge for his decision are stated in the journal entry. It reads:
“In reading the pertinent statute, on the face of it, the language seems clear that a sales tax incident is present at any time that one installs, maintains, services or repairs tangible personal property not held for sale in the regular course of business, except services rendered in installing this tangible personal property in connection with the original construction of a building or structure, which will become a part of such.
“Thus, it would appear that an independent contractor or subcontractor who installs tangible personal property or who may repair, maintain or service tangible personal property, is liable for the sales tax unless he is installing tangible personal property as part of the original construction of a building or structure.
“If this same person installs tangible personal property on an existing building or structure the incident would be subject to sales tax. This latter principle would seem obvious from the reading of the statute. But, this is not the case, as interpreted by the Director of Taxation.
“It appears that the Director has interpreted 79-3603 (p) to mean that there is no tax incident so long as the services are done on real estate or fixtures so attached to real estate that they were part of the real estate, regardless whether the tangible personal property is installed in the original construction of a building or structure. This may be a fair delineation except determining what is, and when, personal property becomes real estate is not that simple a matter. The intent of the parties is one of the controlling factors. In addition, there is nothing in the statute exempting the installation of tangible personal property in real estate or as¡ part of the real estate except in cases of original construction of the building or structure.
"The Director admits that the statute is subject to more than one interpreta tion, and as is permitted by statute, the Director has issued administrative rulings regarding the taxability of certain services under the pertinent statute. But in doing so, and to strengthen the point of vagueness, the Director has failed to be consistent in determining the taxable incident.
“Rulings by the Department of Revenue, as cited in Kansas department of revenue bulletin, state that charges for labor incurred in painting a building are not subject to sales tax as painting constitutes a repair of real estate rather than the installation of tangible personal property. Likewise, an electrician’s labor in rewiring a building is not subject to the Retailer’s Sales Tax since that labor constitutes the repair of real estate. However, labor performed by a plumber in re-plumbing a building is subject to a sales tax as his labor represents the installation of tangible personal property. Labor performed in replacing or installing guttering on a building is taxable as the Department determined this act constituted the installation of personal property. Labor attributable to re-roofing a building is not taxable as the Department determined this act constituted the repair of real estate. In addition repairs done to a garage are not subject to a sales tax as the labor constitutes repair of real estate, whereas, replacing a garage door is considered installation of tangible personal property and thus a taxable incident. These are some examples of inconsistency in interpreting 79-3603 (p).
“In reading the pertinent statute and the various rulings, a taxpayer would have no definitiveness in determining a taxable incident by a mere reading of the statute and rulings. In this case even the Department of Revenue staif has difficulty in interpreting the statute, as reflected by the transcript of hearing before the Director of Taxation on August 16, 1973.
“The Court finds that the pertinent statute is void and unconstitutional in that it is so vague and ambiguous that any penalty prescribed for its violation constitutes a denial of due process of law. A reading of the statute requires the doing of an act in terms so vague that men of reasonable intelligence must necessarily guess at its meaning and differ as to its application.”
The Director of Taxation has duly perfected an appeal.
The Director of Taxation is required to enforce the Kansas Retailers’ Sales Tax Act, and the Secretary of Revenue “shall adopt rules and regulations for the administration of this act” (K. S. A. 1976 Supp. 79-3618), but no administrative regulations have been adopted to govern collection of the tax imposed by 79-3603 (p), supra. (See generally K. A. R. §92-19-1, et seq., which discusses the Kansas Retailers’ Sales Taxes.)
K. S. A. 1976 Supp. 79-3604 levies the tax upon the consumer or user and obligates the consumer or user to pay the tax to the retailer. It also imposes the obligation to collect the tax upon the retailer. Under K. A. R. 92-19-4 the retailer is required to keep and preserve such records as are necessary to determine the amount of the tax “for which he is liable under the act.”
By definition “Retail Sales” or “Sale at Retail” includes all sales made within the state of services, and “Retailer” includes a person regularly engaged in the business of furnishing services. (K. S. A. 1976 Supp. 3602 [e] and [d].)
Under K. S. A. 79-3615 any person who fails to pay any tax, when required to do so by the provisions of the Kansas Retailers’ Sales Tax Act is subject to a penalty of twenty-five percent (25%) of the amount of such tax, together with interest at the rate of one percent (1%) per month from the date the tax was due until paid; and in addition thereto any person who fails “to pay any tax herein provided . . . shall, upon conviction thereof, be fined not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000), or be imprisoned in the county jail not less than one (1) month, nor more than six (6) months, or be both so fined and imprisoned, in the discretion of the court.”
The appellee in this case is a contractor in the construction business. A brief amicus curiae was filed herein by the Kansas Builders Chapter of Associated General Contractors of America. Basically we are confronted with the interpretation of a tax statute that materially affects construction contractors in Kansas.
Briefly summarized, we have a sales tax statute, which in its operation not only makes the contractor the agent for the state and liable for the collection of the sales tax, but further subjects him to penalties and criminal liability if he mistakenly interprets its provisions. If the contractor makes a mistake in interpreting the act the burden falls on the contractor and not upon the consumer from whom the tax is meant to be collected.
K. S. A. 1976 Supp. 79-3604 provides in part:
“. . . [I]t shall be the duty of each and every retailer in this state to collect from the consumer or user, the full amount of the tax imposed by this act . . . .and such tax shall be a debt from the consumer or user to the retailer, when so added to the original purchase price. . . .”
The parties and amicus agree the basic test as to what constitutes an unconstitutionally vague and indefinite statute is stated in Connally v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126. There the current rate of wages in the locality was to be paid to persons employed by or on behalf of the State of Oklahoma. In holding the words “current rate of wages” and “locality” were vague, the United States Supreme Court enunciated the rules to be applied. The court said:
"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. . . .” (p. 391.)
(See also Cramp v. Bd. of Public Instruction, 368 U. S. 278, 7 L. Ed. 2d 285, 82 S. Ct. 275; Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P. 2d 614; and 16 Am. Jur. 2d, Constitutional Law, § 552, p. 951.)
Since the Kansas Retailers’ Sales Tax Act provides for monetary fines or imprisonment, or both, for violating the provisions of the act, the rule in Connally must be applied.
The court in Connally goes on to point out that statutes which employ terms that have a technical meaning understood by those who are to be affected by the statute, or employ terms that have a well settled meaning at common law, are generally upheld when attacked for being vague or indefinite. The appellant concedes the words used in 79-3603 (p) are not technical in nature.
Our Kansas cases have employed virtually the same test as originally stated in Connally, only adding that if the words used in a statute have been previously judicially construed, the statute will not be considered vague. In Unified School District No. 255 v. Unified School District No. 254, 204 Kan. 282, 463 P. 2d 499, the court held:
“A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law.” (p. 288.)
At its heart the test for vagueness is a commonsense determination of fundamental fairness.
There are three terms used in 79-3603 (p), supra, which cause particular concern to those liable for the collection of the tax. The first term is “tangible personal property”; the second term is “original construction”; and the third term is “structure.”
Regarding “tangible personal property,” the Department of Revenue states that it was the obvious intention of the legislature not to tax the maintenance, servicing and repairing of real property. This is a reasonable interpretation and we agree, but it presents serious problems for the contractor. One problem arises in determining what is “tangible personal property,” the maintenance, servicing and repairing of which is taxable, and what is real estate, the maintenance, servicing and repairing of which is not taxable. In this connection a determination must be made as to what is the installation of tangible personal property and what is the maintenance, servicing and repairing of real estate. The distinction between tangible personal property and real estate is material in two areas, installation involved in original construction on the one hand, and maintenance, servicing and repairing on the other.
The problem is complicated by the Kansas test for determining whether or not personal property has become a fixture and, as such, a part of the real estate. In Water Co. v. Irrigation Co., 64 Kan. 247, 67 Pac. 462, it was stated:
“The tests to be applied in determining whether or not personal property becomes a fixture are: (I) Annexation to the realty; (2) adaptation to the use of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make the article a permanent annexation to the freehold. . . .” (pp. 252-253.)
(See also Bromich v. Burkholder, 98 Kan. 261, 158 Pac. 63; and 35 Am. Jur. 2d, Fixtures, § 4, p. 702.)
Where an intention to permanently annex tangible personal property to real estate on the part of the party making the annexation is required before tangible personal property becomes a fixture, there appears to be no single statement in our law defining fixtures which is capable of application in. all situations. Most modem authorities recognize the practical difficulties in formulating a comprehensive principle for determining what are fixtures, and hold that the determination can only be made from a consideration of all the individual facts and circumstances attending the particular case. (35 Am. Jur. 2d, Fixtures, § 1, p. 700.)
Clearly, it would be impossible for a layman to apply the tests set forth in Water Co. v. Irrigation Co., supra, with any degree of certainty. This is especially true when we consider that one portion of the test is concerned with the intention of the parties.
Now let us consider some of the labor performed by the appellee. It has repaired stairways and handrails; performed additions and alterations to many buildings; fabricated and installed conveyor systems; repaired, remodeled and updated conveyor systems; constructed foundations for installation of equipment in new and old buildings; repaired pieces of equipment which have been installed and become a part of the buildings in which they are located; remodeled buildings by installing new wall partitions and replacing partitions; fabricated and installed platforms, loading docks, ladders and handrails; repaired buildings to increase the weight load capacities of floors and ceilings; repaired and anchored steel columns in buildings; dropped ceilings; painted walls; installed windows; reinforced concrete settings; anchored pulleys used to move railroad freight cars by cable; and repaired all components of grain elevators including the rebuilding of the gallery structure of a grain elevator destroyed by fire.
When is the appellee repairing real estate? When is it installing tangible personal property? When is it involved in the original construction of a structure?
The business. of the appellee appears to be particularly affected by the uncertainty inherent in 79-3603 (p), supra. In one case the legal department of the Owens Corning Company decided that a labor service charge for the overhaul of a large oven used for drying fiberglass was not taxable. The appellee did not charge the sales tax. Then the Department of Revenue in its audit determined the particular service was taxable, thus indicating even attorneys have trouble interpreting the statute.
The Chief of the Sales and Excise Tax Bureau of Kansas, Mr. Harry O’Riley, testified:
“In about a year’s time, less than that, maybe in six months’ time, approximately around 500 opinions were written by the Legal Department with what guidelines they had to work on. 79-3603 (p) said — And basically the opinions read — I might read one into the record. This is quote/unquote: ‘You also inquired if painters are required to charge sales tax on their labor. House painting services are not subject to sales tax since this is considered to be the repair of real estate rather than tangible personal property.’ I might read roofing. ‘Are re-roofing jobs subject to the sales tax? Such services are not subject to sales tax since the services consisted of repairs to real property rather than tangible personal property.’ That’s the rationale. . . .”
Later in his testimony Mr. O’Riley confirmed that the roofing or re-shingling of a roof is considered to be nontaxable because it is “repairs to real property.” He then testified:
Mr. O’Riley: That’s the extent of the answer to the question, repairs to real property and not repairs to tangible personal property.
“Mr. Hardesty: All right, does this have to do because there is no installation, involved, or does installation have anything to do with the criteria as far as roofing is concerned?
"Mr. O’Riley: The question isn’t posed that way. Re-roofing jobs, painting jobs. If it’s a complete new roof it would be the installation of the roof.
“Mr. Hardesty: Would your answer then be if it’s a complete new roof that it would be an installation and would or would not be taxable?
“Mr. O’Riley: The way these questions are posed, I wouldn’t be able to— With the limited facts in this question, I wouldn’t be able to state whether it definitely would be installation of roofing or repairing of roofing. The size of the job isn’t given. It’s just re-roofing jobs. Now whether it would be—
“Mr. Hardesty: No further questions.”
The individual opinions interpreting 79-3603 (p), supra, are published in bulletins issued by the Department of Revenue. These opinions interpreting the sales tax as applied to labor charges under 79-3603 (p), supra, are set forth in the record from pages 151 to 237. That confusion exists in the Revenue Department of Kansas is indicated by opinions from the department to which the trial judge made reference in his journal entry and the above testimony of Mr. O’Riley.
A few examples of the interpretations given by the Department of Revenue follow:
“Q. Does the sales tax apply to service charges for the installation of augers, roller mills, electric motors and other machinery for handling grain when this equipment is installed at the time of new construction of a building or structure?
“A. Installation charges for such tangible personal property is not taxable if the tangible personal property is so affixed to the building or structure as to become a part thereof. The question of whether it is so affixed depends upon, the facts in each individual case. Generally, tangible personal property would be considered part of the building or structure if the removal of such property from such building or structure would cause material damage to the building or structure. If the tangible personal property does not become a part of the building or structure in this manner, then the installation charges are subject to the sales tax.” (Emphasis added.)
The foregoing ruling appears to be inconsistent with the decision in Cook v. Condon, 6 Kan. App. 574, 51 Pac. 587. There machinery used in mills, much of which was not attached to the floor and could be removed from the mill without injury to the machinery or to the mill building, was nevertheless held to be real estate, at least for mortgage purposes. The court held:
“. . . All things used in a mill, which are a part of a complete system and of the machinery necessary to its operation and which have been placed therein by the owner of the realty with intent to make the same permanent, are fixtures and covered by a mortgage upon such mill.” (Syl. 3.)
The court in its opinion labeled this machinery “real estate.”
Serious problems arise in commercial buildings, factories and “structures” wherein many gray areas exist as to certain equipment, machines and systems which could be considered a permanent part of the structure in one case and not in another.
Guttering presents a typical problem illustrative of some problem areas in maintenance and repair. According to the Department of Revenue installation of guttering in original construction is nontaxable as it is considered a permanent part of the building; repairing of the guttering is non-taxable as it is considered repair of the building; yet installation of new guttering on an existing building is determined by the department to be installation of personal property and taxable. A normal repair bid for guttering and downspouts would include some repair and some new pieces. To comply with these rulings a contractor would be required to keep time records and tax the labor for new pieces installed. This would be economically impractical, if not impossible.
The department has determined any interior remodeling of a building is taxable as it will always include the installation of tangible- personal property. A contractor submitting a bid will hardly gain the confidence of his proposed customer by advising that there is not a tax charged in the roof alterations, as this is repair to the building, yet there is a tax on altering the existing partitions as this is installation of personal property.
The second term that causes particular difficulty in the construction industry is the term “original construction.” The appellant argues the term is not vague because it has been judicially construed in Thorpe Construction Company, Inc. v. Irvin & Company, 367 F. Supp. 87 (D. Alaska 1973). That case involves the construction of an Alaskan statute dealing with the validity of a mechanics lien. In analyzing the cases, however, the Louisiana court held the term “original construction” would include a rebuilt or repaired porch. (Hanover v. Brady, 148 So. 267 [La. App. 1933].) This definition is clearly at odds with the case relied on by the appellant. There is no well-settled meaning at common law for the term “original construction,” and the fact that the term has been construed in a very few cases in foreign jurisdictions does not save it from being vague and indefinite.
Had our court previously defined the words “original construction,” it might provide an argument that the term is not vague. Even if a foreign court had defined the term in a similar statute, there might be some merit in the appellant’s argument that this term used in the statute is not vague. Rut where, as here, a foreign court defines those words in construing its own statutes wholly unrelated to 79-3603 (p), supra, it is irrelevant to our problem, especially where there are contradictory foreign decisions. (See 73 Am. Jur. 2d, Statutes, § 166, p. 370.)
The real problem is not whether the term has been construed by foreign courts, but whether the term in ordinary use has such a clear meaning that men of common intelligence need not guess or differ as to its meaning. A review of the rulings made by the Department of Revenue itself show the term “original construction” has no such clear meaning.
The department in attempting to answer what constitutes “original construction” of a building or structure under the terms of 79-3603 (p), supra, has given the following answers. Original construction means the initial or first construction of the building or structure. An addition to an existing building may or may not be deemed original construction depending upon the particular factual situation. For instance, an addition built from the ground up on a new foundation would generally be considered original construction. The addition of an upper floor to an existing structure is considered to be original construction of a structure. Where a manufacturing concern acquired a structurally sound building, which it intended to convert from an office building to a manufacturing facility, and it became necessary to completely raze everything except the bare structure which was basically sound, the extensive remodeling of the building to meet their requirements was not considered to be the original construction of a building or structure.
Under these rulings it would appear that if a house is completely destroyed by a tornado except for the foundation, reconstructing the house on that foundation would not be original construction. However, if one decided to simply 'add a floor on the top of his house, this would be original construction.
The third confusing term used in the statute is the word “structure.” The exact phrase in which the term is used reads, “except services rendered in installing property in connection with the original construction of a building or structure.” It seems rather clear from a reasonable reading of the statute, the term “structure” includes something other than a building, for if it only referred to a building, its inclusion would be unnecessary.
The term “structure” does not have a settled meaning at the common law. The appellant’s brief indicates several courts have construed the term in both a restricted and a broad sense. The appellant argues the term “structure” should be defined as it was in the case of New York Central Railroad Co. v. General Motors Corp., 182 F. Supp. 273 (N. D. Ohio 1960), where the federal court defined a structure as being something constructed or built as a building, a dam, a bridge, a building of some size, or an edifice. The court was there concerned with construing the term “temporary or permanent structures or obstructions” as used in an indemnity agreement unrelated to this or any similar statute. The Department of Revenue argues that because it relied upon this particular definition in the New York Central Railroad Co. case, the term “structure” is not vague or indefinite.
What the Department of Revenue has done is to arbitrarily pick a definition in one of the many cases defining the term “structure” and apply it to the Kansas taxing statute. Even the department has not uniformly applied the rule of the New York case in an opinion where it determined that the service of constructing patios or carports may or may not be subject to the sales tax. It ruled that if any of these services are connected with the original construction of a building, they are not taxable. If the patio or carport is of such a nature that it is built from the ground up, it would be considered the original construction of a structure and not taxable. However, if the carport is ready-made or prefabricated and installed on an existing building, the service of installing the carport is subject to the sales tax.
The building of a water tower or standpipe for storage or pressure was considered to be the original construction of a structure and, therefore, only the material incorporated into the project would be subject to the sales tax at the time it is purchased by the contractor.
What should a contractor do when confronted with bidding on independent loading docks, conveyor systems, transmission systems, free standing signs and the like? Any answer would beg the question but likewise prompt the conclusion that the term “structure” does not, in fact, have a well defined meaning in law or in usage by the department.
A contractor is in a highly competitive business and wishes to charge no more than necessary in order to obtain a fair profit. On the one hand, if the contractor is not able to accurately interpret the sales tax statute, he will become liable for a tax which should have been collected from the consumer. On the other hand, if he collects a tax from the consumer, he may be overcharging the consumer if the tax is not payable. As a result the contractor may lose future business if, in fact, it is later determined that the services were not subject to the tax.
Another problem for the contractor is the difficulty caused in the competitive bidding of contracts. An ambiguous and indefinite sales tax statute may cause contractors' to include the tax in their bid, while their competitors might exclude the tax, thus creating at least a three percent (3%) initial spread in the bids.
Amicus says the problem which frequently arises is the situation where the contractors will charge the sales tax and the consumers will dispute that the sales tax is collectable on the particular labor item involved. Many times, especially where the consumer is a large organization supplying the contractor with considerable business, the contractor will be forced to defer to the judgment of the consumer. This is precisely the situation which occurred here where the Owens Coming Company decided on the advice of its legal department, that a particular labor service charge of the appellee was not taxable.
We think it unreasonable for the legislature to appoint the contractor a tax collector in a situation such as this, and in addition require that the contractor have the expertise to determine on a case by case basis whether a sales tax is payable in an area where even attorneys and jurists cannot totally agree. When the contractor turns to the professional tax collector for help to solve these complexities, he unfortunately finds inconsistency in its opinions. The Department of Revenue, therefore, has offered no haven of refuge.
We conclude K. S. A. 1976 Supp. 79-3603 (p) uses terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. It, therefore, violates the first essential of due process of law and is unconstitutional.
It now becomes necessary to determine the retroactive effect, if any, to be given our decision which holds K. S. A. 1976 Supp. 79-3603 (p) unconstitutional. This section of the Kansas Retailers’ Sales Tax Act has been in force since its adoption by the legislature in 1970 (L. 1970, ch. 389, § 2). Many dollars in tax revenues have been collected by the state under this section. After a careful review of Carroll v. Kittle, 203 Kan. 841, 475 P. 2d 21; Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362; Vaughn v. Murray, 214 Kan. 456, 521 P. 2d 262; and the many -authorities cited in these cases, we have come to the conclusion that our decision herein should be given limited retroactive effect.
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 Hoard 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 judgment of the lower court is affirmed.
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The opinion of the court was delivered by'
Burch, J.:
This appeal is from the retrial of the same case reported in 160 Kan. 566, 164 P. 2d 84. In the first trial the jury’s verdict was for the defendant. Our decision on appeal directed a new trial. In the second trial the jury’s verdict was for the plaintiffs. The original defendant, John Bott, died after the first and before the second trial occurred and the action ivas revived against his administrators. They appeal and assert that the trial court erred in overruling their motion for judgment notwithstanding the verdict and in overruling their motion for a new trial because they contend that erroneous instructions were given and that a juror was guilty of misconduct.
A few facts follow: Two juries have found that John Bott was induced by false statements made to him by E. J. Briggs to sign a note for $2,500. The plaintiffs purchased the note from Briggs before its maturity for $2,200. They contend that they are holders of the note in due course. The jury in the present case found that the plaintiffs were not guilty of bad faith in connection with its purchase. Plaintiffs have an unpaid default judgment' against Briggs. Additional facts are recited in our first opinion and will not be set forth herein except such as may be essential for consideration of the controversial questions. ■
1. The first question, whether the trial court should have sustained the defendants’ motion for judgment, must be answered in the negative. Counsel for the defendants contend that our opinion in the former appeal establishes the rule that under the evidence adduced in the trial of this case the defendants are entitled to judgment as a matter of law. The decision is clearly authority to the contrary. Nothing will be gained by wasting print and paper in a prolonged statement of the facts and circumstances from which different juries have reached different conclusions. It is evident that the answer to the factual question is one upon which reasonable minds may differ and consequently the question of the plaintiffs’ good or bad faith was for the jury. . It cannot be said in the instant case that the. evidence presents only a question of law.
2. The next question before us is whether the defendants’ motion for a new trial should have been sustained. Error is asserted in the giving of.an instruction reading as follows:
“No. 8. You are instructed that to constitute notice of infirmity in a note, or defect in the title of the person negotiating or transferring the same, the person to whom it is negotiated must have actual knowledge of the infirmity or defect, or knowledge of such facts that his action in purchasing the instrument amounted to bad faith. What is bad faith in a case of this kind, is a question of fact to be determined by the jury, and in this connection you are instructed that neither a suspicion of defect of title, knowledge of circumstances which would excite such suspicion in'the mind of a prudent man, or put him on inquiry, nor even gross negligence on the part of the purchaser will affect his rights unless the circumstances are so potent and obvious that to remain passive would amount to bad faith.”
Defendants contend that the above instruction places the burden of proving the plaintiffs’ bad faith upon the defendants. If such an implication could arise from the instruction, any ^confusion it might have caused the jury certainly was clarified by the trial court’s instruction No. 16, which reads as follows:
“You are further instructed that if you find from the evidence that D. J. Briggs was guilty of fraud or misrepresentation, as charged in this case, in securing the signature of John Bott to the note sued upon, it is then incumbent upon the plaintiffs to establish to your satisfaction, by the degree of proof above explained, and under the evidence received in the case, that they did purchase the note from Briggs before it was due, for value, and in good faith.”
Perhaps the wording of the asserted erroneous instruction is confusing and places too much emphasis upon negative circumstances even though its language is lifted largely from the opinion of this court in the case of Bank v. Hildebrand, 103 Kan. 705, 177 Pac. 6. The record in the pre'sent case, however, does not warrant our passing upon the wording of the instruction. According to the record before us, the defendants apparently made no effort to have the instruction modified or clarified before it was given to the jury. Therefore, the presumption prevails, upon the appeal, that the, defendants permitted the trial court to give the instruction with their approval. In such circumstances they are- not in a position to demand a new trial because they willingly participated in the possible error until it was too late for the trial court to consider correcting the instruction before it was given to the jury. The instruction as given was not entirely erroneous and consequently the fact that defendants criticized its, construction on a motion for new trial does not make it mandatory that a new trial be granted. The question involved was given extended consideration in bur opinion by Mr. Justice Parker in Sams v. Commercial Standard Ins. Co., 157 Kan. 278, at 287, 139 P. 2d 859. (See, also, the opinion of this court by Mr. Chief Justice Harvey in Steele v. Russell, ante, p. 271, 176 P. 2d 251.) The opinion written in connection with the former appeal of the instant case comments upon the failure to object to instructions, but calls attention to the fact that the jury in the first trial made damaging findings of fact which could not have been based upon any evidence. Such findings could have been attributable only to the fact that the trial court included in the statement of issues framed by the pleadings allegations of the defendant to the effect that Briggs was a dealer, in oil stocks and doubtful securities. The defense had been abandoned. Nevertheless, the jury answered proper special questions by finding that Briggs was such a dealer and that he did not have a license from the state to sell such securities. Because of such circumstances it was apparent that the plaintiffs did not have a fair trial in the first instance and a new trial was directed for such reason. We do not have a parallel situation in the present appeal and we find no reason which would justify our departure from the precedents developed in the citations hereinbefore given. Perhaps at this point it is prudent, however, to volunteer an admonition to courts and counsel that instructions should not be composed by carving from our opinions certain statements which are applicable or controlling only in the cases in which they appear and inserting such excerpts in general instructions. Instructions should be general in their nature and should not emphasize certain factors and omit others in such manner that the instructions become argumentative in effect.
Another instruction complained of in the present case reads, as follows:
“You are further instructed that when a situation arises in which one of two innocent parties must suffer because of the acts of a third party, then as between said innocent parties the burden must be borne by the one who made it possible for such third party to commit the act from which loss or injury results.”
We think the above instruction should not have been given. Where one sues on a note, claiming to be a holder in due course by endorsement from the payee, for value and before maturity, and when the defendant alleges and establishes by evidence that he was induced by fraud to execute the note, the burden is upon the plaintiff to show that he is a holder in due course. (G. S. 1935, 52-509; United Finance Plan v. Meier, 147 Kan. 688, 78 P. 2d 904, and cases there cited.) The instruction states a rule sometimes applied by courts of equity where the facts warrant it, as in Smith v. Rector, 135 Kan. 326, 10 P. 2d 1077, and Wiseman v. Richardson, 154 Kan. 245, 118 P. 2d 605. These cases were cited by appellees as sustaining the giving of the instruction by the court. We think the rule is not applicable here for it tends to weaken or destroy the statutory rule governing the burden of proof in such instances.
3. Another contention advanced by the defendants in support of their motion for a new trial is that the foreman of the jury was disqualified to act as a juror and was guilty of misconduct. In support of such contention one of the attorneys for the defendants filed an affidavit which sets forth, in substance, that he conducted the voir dire examination of the jury; that O. F. Skipton was one of the members of the jury finally selected to try the case; that affiant asked each prospective juror whether either of the attorneys for the plaintiffs was acting as attorney for the prospective juror in any pending case or had been counsel for the juror of recent date; that Juror Skipton was asked such question and replied in the negative; that such answer was false and known by Skipton to be false; that in fact Skipton had recently employed one of the plaintiffs’ attorneys to represent him in a case pending in the county court, which case was not terminated until the day of the trial of the present case; that Skipton was elected foreman of the jury ancl as such influenced, dominated and controlled other jurors, according to affiant’s belief. The affidavit also contains statements relative to factual reasons why the foreman could so dominate the jury and further states that the plaintiffs’ attorney had acted for the juror without pay; that affiant had not. known of the juror’s employment of his counsel at the time of the trial and that the negative answer of the juror on the voir dire examination precluded further questioning upon the subject. The attorney for the plaintiffs referred to filed a counter affidavit, in which the circumstances of the employment by the juror are detailed. According to such affidavit the juror Skipton asked the attorney to prepare and file a complaint for forcible detention of a small house which rented for $10 per month; the attorney did so; on March 15 the county court entered judgment for restitution; the next day execution was issued; the occupant moved out before the trial of the present case startéd but the execution was not returned until the day following the opening of trial in the present case. The counter affidavit further states that affiant considered his services as of too small value to warrant a charge and that affiant informed the juror at the time the complaint was prepared on March 11 that he would not charge the juror anything unless the action was contested; that it was not; that at such time affiant was not aware that Skipton was on the jury panel; that affiant did not see the juror after March 11 until the date of the trial and that on such date the relation of attorney and client did not exist. The counter affidavit continues by disclosing that the affiant did not recall the juror being asked whether either of the attorneys for the plaintiffs was acting as an attorney for the juror; sets forth information obtained from bystanders to the effect that the question asked the prospective jurors was whether the plaintiffs’ attorneys were attorneys for the. respective jurors “in any pending case” and that the affiant’s memory as to the form of the.question was the same as that of the bystanders. ■
We are pleased to note that counsel for defendants in their brief, and the trial court in a memorandum decision, entirely acquit the attorneys for the plaintiffs of any wrong or intentional misconduct in connection with the asserted misconduct of the juror. A juror who gives a false answer to a question asked in connection with a voir dire examination is guilty of serious misconduct for which he might be prosecuted for perjury. No record was made in the instant case of the voir dire examination and the trial court did not make any finding as to whether the juror actually was asked the question and gave the answer set forth in the affidavit of counsel for the defendants. However, the trial court commented as follows:
“The court does recall that there was general questioning of the jurors as to their relationship with the attorneys in the case, and I do not question but that this juror was so interrogated and gave the negative answer asserted by defendants’ counsel. . . .”
The trial court apparently proceeded upon the theory that such misconduct could not impeach the integrity and good faith of the entire jury and that no proper showing had been made which established undue influence on the part of the juror in question. The “memorandum” filed by the trial court in connection with' the ruling denying the defendants a new trial technically is not a part of the record but it is germane to the question which confronts us and demonstrates the application of the rule hereafter set forth. Therefore, we quote from the memorandum:
“It would be difficult to conclude that this fair-minded, representative juiy panel as selected for this trial, was improperly and unduly influenced to return the verdict in this case, simply because of overreaching by one juror whose sole interest is. apparently asserted to have been, to favor one of counsel for plaintiffs by returning a verdict in favor of his clients.”
From the foregoing it clearly appears that the trial court, in the exercise of its discretion, was convinced that the conduct of the juror was not such in the instant case that .prejudice against the defendants resulted therefrom. The question remains: Should this court reverse the ruling?
The general rule will be found stated in 39 Am. Jur. 87, § 73, as follows:
“The refusal or denial of a motion for a new trial for alleged misconduct on the part of the jury is, as a general rule, a matter within the discretion of the judge presiding at the trial; and unless it appears that this discretion has been abused, that there has been palpable error, or that the judge has refused to review and consider the evidence by which the consideration of the motion should have been guided or controlled, his refusal to grant a new trial will not be disturbed. . . .”
See, also, the following cases: Mount v. Welsh, et al., 118 Ore. 568, 247 Pac. 815; Lehman v. Hoquiam, 144 Wash. 181, 257 Pac. 388; Skeen v. Skeen, 76 Utah 32, 287 Pac. 320; Egli v. Hutton, et al., 135 Ore. 175, 294 Pac. 347; Obuchowski v. Penna. R. R. Co., 289 Pa. 190, 137 Atl. 186; Zimmerman v. K. C. Pub. Serv. Co., 226 Mo. App. 369, 41 S. W. 2d 579; Plater v. Kansas City, 334 Mo. 842, 68 S. W. 2d 800; Peters v. White, 169 Okla. 640, 38 P. 2d 523; Waeckerley v. Colonial Baking Co., 228 Mo. App. 1185, 67 S. W. 2d 779; Schreiber v. Roser, 258 Ky. 340, 80 S. W. 2d 1; Johnson v. Johnson (Tex. Civ. App.) 118 S. W. 2d 338; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal. 2d 480, 55 P. 2d 870; Burnett v. Weinstein, 154 Ore. 308, 59 P. 2d 258; Maffeo v. Holmes, 47 C. A. 2d 292, 117 P. 2d 948; George v. City of Los Angeles, 51 C. A. 2d 311, 124 P. 2d 872; and Washington Times Co. v. Bonner, 86 F. 2d 836.
The general rule heretofore expressed in the opinion applies in most cases of possible misconduct on the part of jurors. It applies always in cases wherein there is a conflict of evidence upon the possible misconduct. But there is a well-established exception to the general rule which is frequently followed when it is admitted in substance that a juror gave a false answer on voir dire examination concerning his qualifications to serve as a juror, with the result that counsel is deprived of any further opportunity to determine whether the juror is fair and impartial. In such circumstances the question becomes one of law which appellate courts can and should consider. In the present case the plaintiffs’ counsel concede that the juror was asked á question as to whether either of the plaintiffs’ attorneys was acting as counsel for the juror in any pending case. There seems to have been only a conflict in the evidence as to whether the propounded question included the additional words, “or had been such counsel of recent date.” Even though the trial court did not make a specific finding that the incident occurred, nevertheless, the trial court considered the matter upon the assumption that the incident had occurred. The mere fact that the services of counsel might have terminated a few hours or a few days before the question was propounded should not be the basis for decision. Such a holding would be only an ingenious evasion of the substance of the exception to the general rule.- Proper evidence was introduced to establish the fact that the juror was asked a question which should have resulted in the juror making a full disclosure of the existing circumstances. Falsity and perfidy should never be permitted in a courtroom. Courts should not condone deceptive evasion of fundamental concepts of justice. In 39 Am. Jur. 65, §45, the,controlling rule in this case is stated as follows:
“It seems generally agreed that when matters which might establish prejudice or work a disqualification of a juror are actually gone into upon the voir dire examination and false answers are given or deception is otherwise practiced, as the result of which a juror, although disqualified in fact, is accepted, the party misled or deceived thereby, upon discovering the fact of the juror’s incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though it has been held, the bias or prejudice is not shown to have caused an unjust verdict; it is sufficient that a party, through no fault of his own, has been deprived of his constitutional statutory guaranty of a trial of his case before a fair and impartial jury.”
See, also, 46 C. J. 94, § 51. A clear statement of the reasons for the rule will be found in the opinion by Mr. Chief Justice Benton in the case of Drury v. Franke, 247 Ky. 758, 57 S. W. 2d 969, 88 A. L. R. 917, from which the following is quoted:
“. . . When the right of challenge is lost or impaired, the statutory' conditions and terms for setting up an authorized jury are not met; the right to challenge a given number of jurors without showing cause is one of the most important rights to a litigant; any system for the empaneling of a jury that prevents or embarrasses the full, unrestricted exercise of the right of challenge must be condemned; a litigant cannot be compelled to make a peremptory challenge until he has been brought face to face in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice; the right to reject jurors by peremptory challenge is material in its tendency to give the parties assurance of the fairness of a trial in a valuable and effective way; the terms of 'the statutes with reference to peremptory challenges are substantial rather than technical; such rules, as aiding to secure an impartial, or avoid a partial, jury are to be fully enforced; the voir dire is of service not only to enable the court to pass upon a juror’s qualifications, but also in assisting counsel in their decision as to peremptory challenge; the right of challenge includes the incidental right that the information elicited on the voir dire examination shall be true; the right to challenge implies its fair exercise, and, if a party is misled by erroneous information, the right of rejection is impaired; a verdict is illegal when a peremptory challenge is not exercised by reason of false information; the question is not whether an improperly established tribunal acted fairly, but it is whether a proper tribunal was established; if false information prevents a challenge, the right is so disabled and crippled as to lose its essential value and efficacy, as to amount to its deprivation; the fact that a juror disqualified either on principal cause or to the favor has served on a panel is sufficient ground for setting aside the verdict, without affirmatively showing that that fact accounts for the verdict; it is highly important that the conflicting rights of individuals should be adjudged by jurors as impartial as the lot of humanity will admit; next to securing a fair and impartial trial for parties, it is important that they should feel that they have had such a trial, and anything'that tends to impair their belief in this respect must seriously diminish their confidence and that of the public generally in the ability of the state to provide impartial tribunals for dispensing justice between its subjects; the fact.that the false information was unintentional, and that there was no bad faith, does not affect the question, as the harm lies in the falsity of the information, regardless of the knowledge of its falsity on the part of the informant; while willful falsehood may intensify the wrong done, it is not essential to constitute the wrong; that the injury is brought about by falsehood, regardless of its dishonesty, and the effect of the information is misleading, rather than a purpose to give misleading information is the gist of the injury; when the fact appears that false information was given, and that it was relied upon, the right to a new trial follows as a matter of law.” (p. 797.)
Many additional forceful statements of the rule could be quoted but in respect to brevity we refrain from doing so.' Those interested in establishing the right to a new trial in similar circumstances will find strong support in the following cases: Shulinsky v. Railroad, 83 N. H. 86, 139 Atl. 189; Prairie v. Isle La Motte Tel. Co., 108 Vt. 391, 187 Atl. 806; Murray v. Morris (Tex. Civ. App.) 17 S. W. 2d 110; Hess’ Adm’r v. L. & N. R. Co., 249 Ky, 624; 61 S. W. 2d 299; Gossett v. Jones (Tex. Civ. App.), 123 S. W. 2d 724; Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S. W. 2d 695; Keener v. Headrick, 170 Ga. 242, 152 S. E. 254; Spielter v. North German Lloyd Steamship Co., 232 App. Div. 104, 249 N. Y. S. 358; Loayza v. Brooklyn and Queens Transit Corporation, 254 App. Div. 577, 2 N. Y. S. 2d 894; Steubing v. Krischer, 168 Misc. 20, 6 N. Y. S. 2d 289; Cleveland Ry Co. v. Myers, 50 Ohio App. 224, 197 N. E. 803; Kerr v. B. F. Goodrich Co. (Ohio App.), 31 N. E. 2d 709; Shefelker v. First National Bank of Marion, 212 Wis. 659, 250 N. W. 870; Alexson v. Pierce County, 186 Wash. 188, 57 P. 2d 318; Mathisen v. Norton, 187 Wash. 240, 60 P. 2d 1; Saunders v. Williams & Co., 155 Ore. 1, 62 P. 2d 260. See, also, Railway Co. v. Bowman, 68 Kan. 489, 75 Pac. 482, and Harshaw v. Kansas City Public Ser. Co., . 154 Kan. 481, 119 P. 2d 459, in which case it was held that where false answers given on voir dire examination resulted in a juror being accepted, the evidence of misconduct of the juror was clearly established.
All of the parties to the action are entitled to at least one fair trial regardless of the number of -times the case must be tried. The necessity of a third trial, however, in this case, accounts for some of the dicta in this opinion which otherwise would be omitted therefrom.
The judgment of the district court is reversed with directions to • grant the defendants a new trial.
Thiele, J., not participating. | [
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The following opinion was prepared by Foth, C., prior to his becoming a member of the Court of Appeals, and is now ordered filed as the opinion of the court:
In these six cases, consolidated for trial, the plaintiff-appellees are royalty owners and lessors under various natural gas leases in the Hugoton field now held by the defendant-appel'ant, Mobil Oil Corporation, as lessee. We are told that there are nearly three hundred similar cases pending in the district court whose outcome will be largely determined by the decision here.
Plaintiffs sought and received judgments for additional royalties on gas produced by defendant and its predecessor from late 1958 through June 30, 1963. The increase was based on the difference between the claimed 'higher “market value” of the gas produced by Mobil, and the amounts actually received by it from its sales to its pipeline customer on which it paid royalties. Mobil counterclaimed (by way of setoff) for alleged overpayments of royalties for the period January 1, 1954, through January 31, 1958; its counterclaim was denied. Mobil has appealed from the judgments for additional royalties and the denial of its counterclaim. In addition, the trial court allowed prejudgment interest on part of plaintiffs’ claims but denied it as to the balance. Mobil appeals from the allowance of interest, and plaintiffs have cross-appealed from the partial denial.
I. Background; The Primary Issue
This case is closely parallel to Waechter v. Amoco Production Co., 217 Kan. 489, 537 P. 2d 228 (June 14, 1975), adhered to after rehearing, 219 Kan. 41, 546 P. 2d 1320 (March 6, 1976). In each case the basic claim of the plaintiff royalty owners was that under their leases they were entitled to have their royalties computed on the “market value” at the wellhead of the gas taken by the producer. That “market value,” they asserted, was to be determined by the traditional “free market, willing buyer-willing seller” test, without regard to any governmental regulation of the producer’s sales price.
The producers, on the other hand (Amoco there, Mobil here) relied on the fact that their sales at the wellhead were for resale in interstate commerce, and their sales prices were thus subject to Federal Power Commission regulation under the Natural Gas Act of 1938, 15 U. S. C. § 717 et seq. (That principle was established June 7, 1954, by Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 98 L. Ed. 1035, 74 S. Ct. 794.) The result, they claimed, was that the “market value” of the gas they sold was the ceiling price fixed by the FPC.
The determination of the primary issue in both cases was delayed for several years by a federal injunction staying the state cases while the producers, along with other producers, conducted the litigation resulting in Mobil Oil Corporation v. Federal Power Commission, 463 F. 2d 256 (D. C. Cir. 1972), cert. den. 406 U. S. 976, 32 L. Ed. 2d 676, 92 S. Ct. 2409. That case held that a royalty owner is not a “natural gas company” as defined in the Natural Gas Act because he does not engage in the “sale” of gas in interstate commerce. Hence the FPC has no jurisdiction over a royalty owner or over a dispute between a royalty owner and his producer as to the amount of royalties payable under a gas lease.
Once Mobil had been decided and review by the United States Supreme Court had been denied, the state litigation was allowed to proceed. The district courts in both Waechter and this case concluded that the plaintiff royalty owners were entitled to be paid on the basis of an unregulated “market value.”
The producers in each case had committed their entire production to the interstate market under long term contracts. In Waechter the 1950 contract between the producer Amoco (then called Pan American Petroleum Corp.) and the purchaser Cities Service called for a fixed price until June 23, 1961, and thereafter for a “fair and reasonable” price for each successive five year period, based on the going price in the field. When the parties were unable to agree the price was settled by a declaratory judgment action, affirmed in Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 382 P. 2d 645. The amount fixed in that case was employed by the district court in Waechter as the “market value” of the gas. In this case there were two contracts between the predecessor of the producer Mobil and its pipeline purchaser, Northern Natural Gas Company, called the “A” and “B” contracts. Both called for fixed prices until July 1,1958, and for each five year period thereafter the “fair, just and reasonable” price for gas produced in the field. These contracts called for arbitration in the event of disagreement, and as a result arbitrators fixed a “fair, just and reasonable” price for the gas sold under the contracts for the five year period here in issue. Neither the royalty owners nor Mobil offered any independent evidence on the issue of market value, as they might have. (See Lippert v. Angle, 211 Kan. 695, 508 P. 2d 920.) As a result the district court in this case employed the arbitrated prices as the “market value” under the leases in the same way the judicially fixed price was employed in Waechter.
In both cases the producers submitted the proposed new rates (the one determined by suit, the other by arbitration) to the FPC for approval. Neither rate was approved as filed, but both were ultimately adjusted downward. In both cases the royalty owners sought the difference between the royalties paid on the rates ultimately approved, received and lawfully retained by the producers from their purchasers, and the royalties they would have received if the FPC had approved the new rates based on the “market value” of the gas.
In both cases the district courts construed the royalty clauses in the leases to require royalties based on an unregulated market value, found no constitutional impediment to requiring payment on that basis, and rendered judgment for the plaintiff royalty owners accordingly.
In Waechter we reversed on this issue, based on a contrary construction of the prototype royalty clause by which all members of the plaintiff class had agreed to be bound. We found that it called for royalties based on the “proceeds” received by the producer, and not on the “market value” of the gas. We observed that .“Proceeds ordinarily refer to the money obtained by an actual sale.” (217 Kan. at 512.) Since royalties had been paid on the “proceeds” of all of Amoco’s sales to Cities, the royalty owners were not entitled to any additional royalties.
Under that reasoning the court was not called upon in Waechter to construe the term “market value,” or to determine how it might be affected by FPC regulation. In this case, however, we are confronted with several different forms of lease, some of which indisputably call for royalties based on “market price” or “market value.” (The majority, and the trial court, make no distinction between those terms but use them interchangeably. Both are construed to mean what the product will bring in the marketplace, without regard to any element of “inherent” value.) It is therefore necessary in this case to determine whether “market value” (or “market price”) means value in a hypothetical free market, or value in the interstate market as limited by FPC regulation.
II. Jurisdiction and FPC Regulation
Before doing so, however, it is appropriate to examine the jurisdiction of the courts to order royalties to be paid on any other basis than the FPC approved sales price to the producer. Obviously if such jurisdiction is lacking, no further inquiry into the terms of the leases is required. We are cited to no case where this question has been squarely determined, but we think the fair implication from the federal decisions in the area is that such jurisdiction does exist.
We begin with the companion cases of Weymouth v. Colorado Interstate Gas Company, 367 F. 2d 84 (5th Cir. 1966), and J. M. Huber Corporation v. Denman, 367 F. 2d 104 (5th Cir. 1966). In each the court looked at gas leases with royalty clauses requiring payments based on “market value,” and carefully distinguished them from “proceeds” leases. The result, it concluded, was that the “market value” of the gas for royalty payments was not necessarily the same as the actual proceeds from the sale of the gas under the FPC ceiling. The lessee-producer in Huber argued, however, that by committing the gas to the interstate market and thus subjecting its price to FPC regulation the parties had determined the “market” in which “market value” was to be determined. The court responded to this argument:
“We do not minimize the beguiling appeal of the Lessee-Producer’s theory. Without a doubt, with the Lessors’ full approval, this committed until the exhaustion of the reserves all of the gas to this contract and hence to this ‘market.’ But the ‘market’ as the descriptive of the buyer or the outlet for the sale is not synonymous with its larger meaning in fixing price or value. For in that situation the law looks not to the particular transaction but the theoretical one between the supposed free seller vis-a-vis the contemporary free buyer dealing freely at arm’s length supposedly in relation to property which neither will ever own, buy or sell. It was not, as this theory would make it read, an agreement to pay l/4th of the price received from the market on which this gas is sold. Rather, it was to pay l/4th of the ‘market price’ or ‘market value’ as the case might be.” (367 F. 2d at 109-10.)
Huber thus stands for the proposition that a “market value” lease on its face calls for payment at the theoretical free market value. Having decided that much, however, the court encountered the fact that if the market value of the gas were proven to be the amount claimed by the lessors there would be a substantial impact on the lessee’s regulated operation. It went on to say,“there is a serious question whether a Court, state or federal, either initially or ultimately, may allow any amounts fixed by jury, court, or both as increased royalty payments without express prior approval of the Federal Power Commission if, as would these, the price thus fixed would exceed levels prescribed by the FPC.” (Id. at 110-11.) The court therefore directed that trial proceedings to determine the free market price of the gas be held in abeyance until a ruling could be obtained from the FPC on whether that agency had jurisdiction over royalty rates.
The result was Mobil Oil Corporation v. Federal Power Commission, supra, in which the District of Columbia Circuit reversed the FPC’s assertion of jurisdiction over royalty rates. Various producers there argued for FPC jurisdiction on the basis of the potential impact on interstate commerce and the burden on consumers which might result from royalties based on “market values” in excess of the producers’ rates fixed by the FPC. On the first issue it found the record insufficient to stretch the act beyond its terms “on the score of necessity.” As to the second ground it observed:
“. . . [T]he FPC’s opinion gives no concrete indication of whether, in what circumstances, or to what extent, there may be an economically mean ingful problem of market prices’ in excess of ceilings. In the Huber case the judgment entitling the royalty owners to pursue their claim made no determination of amounts of recovery. Apparently such litigation may come to involve substantial sums even if pursued so as to recover royalties based on ceilings higher than filed rates. This we infer from the fact that Mobil Oil and other producers have appealed from the ruling of the FPC that although the royalty owners’ filing obligations are met by virtue of the filings made by the producers, a royalty owner is not limited to the rate filed by the producer and may enforce his contract as calling for a higher rate if permitted by the Act. The record simply does not focus on what may be involved in the possibility of recovery of royalty calculated on the basis of 'market prices’ higher than ceilings.” (Id. at 264.)
The court then went on to observe:
“. . . To avoid any misunderstanding we interject that we have not been made uneasy by the contentions the producers have presented to us, for we see no theoretical impediment to producers’ being held on the basis of a contract to a royalty payment related to a base higher than the producers’ filed rate. United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 76 S. Ct. 373, 100 L. Ed. 373 (1956).” (Id. at 264-5. Emphasis added.)
The end result was that Mobil left it open to the courts, either state or federal, to determine lease controversies between royalty owners or lessees. It noted, but only and expressly by way of dictum: “We can certainly visualize the possibility that a court confronted with a contention of entitlement to a market price basis higher than the producer’s ceiling would consider it to run counter to the intention of the parties, unless there is something to rebut the fair presumption that they contemplated interstate movement and market prices compatible therewith.” (Id. at 265.) It also suggested public policy considerations, and problems under the supremacy clause, both of which might be obviated by a reference to the FPC. All such factors have been considered by the court in its decision here.
In a southern Louisiana area rate case the Fifth Circuit affirmed rates fixed by the FPC despite claims by Mobil that they failed to take into account the possibility that under the Mobil decision royalty obligations might be based on a rate higher than the FPC ceiling. (Placid Oil Company v. Federal Power Commission, 483 F. 2d 880 [5th Cir. 1973].) The court held that this possibility was no basis for disturbing the FPC rate, saying:
“Of course the royalty obligations of the producers are cost components of the rate structure. Any alteration of this component would necessarily alter the departure point of the rate calculations. And under the holding of the D. C. Circuit in Mobil, this would be an Erie determination of the contract stating the royalty percentage based upon the applicable principles of state law— totally beyond the control of the federal regulatory agency charged with the responsibility of regulating natural gas rates.
“But we are not willing to alter or stay the implementation of area wide rates for the entire industry merely on the basis of what might happen to some producers’ costs if this statement of the law prevails.
“If, as subsequent events develop, the producers are put in a bind by their royalty obligations, they may certainly petition FPC for individualized relief.” (483 F. 2d at 911.)
The closest the United States Supreme Court has come to ruling on the question was in affirming the Placid decision, sub nom., Mobil Oil Corp. v. FPC, 417 U. S. 283, 41 L. Ed. 2d 72, 94 S. Ct. 2328 (1974). Of the same contention by Mobil which had been rejected below, the court said:
“Mobil also complains that the Commission failed to provide automatic adjustments in area rates to compensate for anticipated higher royalty costs. It relies on Mobil Oil Corp. v. FPC, 149 U. S. App. D. C. 310, 463 F. 2d 256 (1972), where the Court of Appeals for the District of Columbia Circuit reversed a Commission holding that subjected royalties to FPC administrative ceilings. Mobil argues that under that decision the 1971 rate schedules must take into account the possibility of higher royalty obligations. We agree with the Court of Appeals that Mobil’s argument is hypothetical at this stage and that in any event an affected producer is entitled to seek individualized relief.” (417 U. S. .at 328. Emphasis added.)
The Court then quoted with approval the last two paragraphs of the Fifth Circuit opinion quoted above. Thus the possibility that a royalty base might exceed the FPC ceiling was clearly recognized. And cf., FPC Texaco Inc., 417 U. S. 380, 395, 397-8, 41 L. Ed. 2d 141, 94 S. Ct. 2315, where the court emphasizes that the “market value” of gas and “just and reasonable” rates for gas utility regulation are two separate and distinct things. (Approaching the problem from the other end, the court in that case held that the FPC would be abdicating its statutory rate setting function if it permitted the market value of gas sold to fix the rates to be charged by any producers under its jurisdiction.)
We think this concept furnishes the answer to Mobil’s argument that the public interest and the supremacy clause require that the FPC ceiling be accepted as fixing the “market value” of the gas for royalty purposes. The FPC fixes the rates which the producer (Mobil) may charge its pipeline purchaser (Northern) as a matter of utility rate setting. That is, it fixes a rate basically designed to allow the producer its reasonable costs of production plus a reasonable return on its investment. (See, e.g., Placid Oil Company v. Federal Power Commission, supra; Forest Oil Corporation v. F. P. C., 263 F. 2d 622 [5th Cir. 1959]; City of Detroit, Michigan v. Federal Power Com’n, 230 F. 2d 810 [D. C. Cir. 1955].)
One of the complaints against area rate setting was that it failed to account for variances in the costs of individual producers. This argument was first rejected in the Permian Basin Area Rate Cases, 390 U. S. 747, 20 L. Ed. 2d 312, 88 S. Ct. 1344 (1968). One basis for the rejection, as recognized by the Supreme Court in the southern Louisiana area rate cases (Mobil Oil Corp. v. FPC, supra) was the availability of individualized relief to a producer whose costs, including royalties, were unusually high. A producer required to pay royalties in excess of those contemplated by the FPC in establishing its original rates may seek rate relief from the FPC.
The fact that such relief cannot be retroactive is immaterial. An argument based on similar grounds was made in FPC v. Texaco Inc., supra, where the court was considering an FPC order which had the eifect of removing the rates charged by small producers from direct FPC regulation. Large producers and pipelines, who bought from the small producers, wiere to make their own bargains and thus to pay market value. The costs thereby incurred could be initially passed on to the consumer, subject to refund if it were later determined that such costs were excessive. Although the FPC order was found deficient, it was not because of the economic hazards it imposed on the regulated companies. The Court said:
“This leads to the contention of the pipelines and the large producers that the scheme of indirect regulation envisioned by Order No. 428 unfairly subjects them to the risk of later determination that their gas costs are unjust and unreasonable and to the obligation to make refunds which they cannot in turn recover from the small producers whose rates have been found too high. But those whose rates are regulated characteristically bear the burden and the risk of justifying their rates and their costs. Rate regulation unavoidably limits profits as well as income. . . . All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level.” (417 U. S. at 391-2.)
It boils down to this: Mobil contends that the rate it is permitted to charge puts a ceiling on the royalty costs it may incur. As the court reads the cases cited above, the process begins at the other end. The royalties to be paid are first to be determined under state law, based on the terms of the lease. The royalties so determined then become a component cost, to be considered by the FPC in determining the rates it will permit Mobil to charge. In this respect royalties paid are costs to a gas producer in the same way as fuel bills are costs to an electric utility. Neither cost is directly under the jurisdiction of the utility’s regulatory agency, but both are considered in the agency’s rate making function.
On this issue Mobil also points to a clause appearing in most if not all of the leases involved here:
“All express or implied covenants of this lease shall be subject to all Federal and State Laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor lessee held liable in damages, for failure to comply therewith, if compliance is prevented by, or if such failure is the result of, any such Law, Order, Rule or Regulation.”
It argues that this language subjects all terms of the leases to federal regulation, and thereby subjects the royalty clause to FPC rate setting. The argument reads too much into a fairly standard lease clause. If FPC rate setting were applicable to royalties, then of course the royalty clause in the lease would perforce yield to the federal regulation. The clause relied on makes that clear. But, as the D. C. Circuit opinion in Mobil says, FPC regulation does not reach the royalties to be paid under a lease. Hence compliance with the royalty clause is not prevented by any federal regulation, and the clause relied on so heavily by Mobil never comes into play. The clause subordinates the lease only to applicable rules and regulations, and FPC rules and regulations are not applicable.
We hold, therefore, that the existence of federal regulation over the rates which a gas producer may receive is no obstacle to the fixing of a higher rate as the “market value” of the gas it sells for the purpose of computing royalties.
III. The Leases
We turn, then, to a consideration of what royalties are called for by the leases under litigation. There are two commonly recognized types of leases employed in the gas industry, “proceeds” leases and “market value” leases. See generally, Matzen v. Hugoton Production Co., 182 Kan. 456, 463-4, 321 P. 2d 576, 73 A. L. R. 2d 1045; J. M. Huber Corporation v. Denman, supra. In Waechter the primary issue determined by this court was which category covered the royalty clause of the lease there:
“Lessee shall pay lessor monthly as royalty on gas marketed from each well one-eighth (?a) of the proceeds if sold at the well, or, if marketed by lessee off the leased premises, then one-eighth 01) of the market value thereof at the well.” (217 Kan. at 522.)
The clause mentions, it will be seen, both “proceeds” and “market value.” The majority in Waechter concluded that since all sales by the producer were made at the wellhead (as they are in this case) the “proceeds” part of the clause was applicable.
The dissenters there pointed to the fact that there were actually a variety of leases involved in addition to the prototype, and that many of these other leases made reference in their royalty clauses to “the prevailing market rate” or to “the market value at the well.” They applied the well recognized doctrine that ambiguous instruments are to be construed strictly against their draftsmen. Smith v. Russ, 184 Kan. 773, 779, 339 P. 2d 286; First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 309 P. 2d 389; Green v. Royal Neighbors of America, 146 Kan. 571, 73 P. 2d 1. In the case of an oil or gas lease, this normally means a strict construction against the lessee-producer and in favor of the lessor-royalty owner. Gilmore v. Superior Oil Co., 192 Kan. 388, 388 P. 2d 602. Taking a broad look at the entire clause in context with the clauses in other leases, and construing it strictly against the lessee-producer, the dissenters in Waechter concluded:
“. . . The entire provision discloses an intention by the parties to the lease that one-eighth of the ‘proceeds’ from the sale of gas at the well are to be measured by the market value of the gas produced.” (217 Kan. at 523.)
There are in the six cases at bar leases which may be said to fall into not just two but three categories. Some seem clearly to call for royalties based on the “proceeds” of a sale, some clearly for royalties on the “market value” of the gas sold, and some which follow the Waechter pattern and which, for want of a better term, we shall refer to as “Waechter” leases.
Production from each had been committed by Mobil’s predecessor to one of the two separate contracts with Northern (the “A” and “B” contracts). These called for different prices, presumably because of different qualities of the gas. The price differential was maintained by the arbitrators when they fixed the “fair, just and reasonable” price for the five-year period in litigation.
The trial court examined all three types of royalty clause (although, without the benefit of Waechter it recognized only two) and concluded:
“The leases herein provide for both a ‘market’ price or value and ‘proceeds’ basis for the one-eighth value to be paid gas royalty. Thus the question is presented as to the difference, if any, that should be drawn from these royalty provisions. The defendant strongly urges that ‘proceeds’ means precisely that and that for the periods in question it translates to FPC approved prices which have been paid. The history of the leases show that in both the ‘A’ and ‘B’ contracts the defendant and its predecessors have paid the same prices to lessors under each contract without distinction as to proceeds or market value leases. The minimum price and ceiling prices are asserted as the reason for this. However, prior to the existence of either regulated price base no distinction was made in royalty payments. This court finds that the relationship of the lessee with its duty to market at the best market price■ for its lessor, based on implied covenants in the lease, result in the same obligations on the lessee under both the market value and proceeds basis. Thus the intentions of the parties has been recognized by the history of identical payments by the lessee and its predecessors and the distinction now sought is an afterthought based on subsequent regulation that neither lessors nor lessees anticipated when the leases were executed.
“The court therefore concludes that ‘proceeds’ ‘market value’ ‘market price’ and ‘gross proceeds at the prevailing market rate’ all impose the same burden on lessee to market and pay royalty on the same bases, i. e., the best market value obtainable. The court further finds that the lessee has in good faith negotiated for the best prices available during all periods of time to date.
“4. The court finds that the intentions of the parties hereto were to pay lessors on the basis of the prevailing market rates as reflected by the gas purchase contracts negotiated by defendants predecessors with Northern. The contract resulted in arbitration with prices-,set at 16.75 cents per mcf for the ‘A’ contract and 15 cents per mcf for the ‘B’ contract, both at a pressure base of 14.65 p s i a. Plaintiffs are therefore entitled to judgment for royalty prices based on these applicable rates for a period beginning five years prior to the filing of their respective cases to date hereof.” (Emphasis added.)
On the correctness of this holding the members of the court take four separate positions:
Position 1. Two members agree with the trial court’s finding that the lessee’s duty is the same under a “proceeds” lease and a “market value” lease, and that is to secure the best price obtainable in a free market. They make no distinction, therefore, between any of the three varieties, and regard the lessee’s obligation to pay royalties as being measured by “market value.” They rely on the fact that the leases were made long before federal regulation came into play, and are convinced by the Fifth Circuit’s arguments in Huber, quoted above, and the dissent in Waechter, that “market value” means value in the free market (here the arbitrated price). They agree with the trial court that the royalty owners are entitled to be paid on that basis under all leases, and would affirm across the board. (The other five members believe there is a distinction between “proceeds” and “market value” leases, but they differ as to the treatment of the two categories.)
Position 2. One member of the court agrees with the previous two insofar as true “market value” leases are concerned. He, however, believes Waechter was correctly decided both as to categorizing the lease there as a “proceeds” lease and as to basing the royalties under a proceeds lease on actual moneys received by the producer.
Position 3. One member of the court also agrees that a “market value” lease calls for royalties on a free market (the price arbitrated). He also believes that Waechter dictates the proper disposition of a true “proceeds” lease, but for the reasons set out in the dissent (relating to the ambiguity of the royalty clause) he believes a Waechter lease is a “market value” lease.
Position 4. Three members are of the opinion that Waechter correctly covers the lease in question there, and all other “proceeds” leases as well. They, however, believe that the “market value” of the gas means the greatest amount obtainable in the market as it actually exists, i. e., for an interstate sale, in the regulated market.
With that division in mind we can proceed to categorize the royalty provisions involved in these six cases and dispose of the trial court’s ruling on each. We refer to each case by the plaintiffs name, and emphasize the controlling portion of each royalty clause:
(a) Lightcap case:
“The lessee shall monthly pay lessor as royalty on gas marketed from each well where gas only is found, one-eighth (%) of the proceeds if sold at the well, or if marketed by lessee off the leased premises, then one-eighth (%) of its market value at the well.”
This is a ‘Waechter” lease. The three justices taking Position 4 are joined by the justice taking Position 2 in holding that this lease is a “proceeds” lease. Royalties are to be calculated on the actual proceeds received, as held in the Waechter decision, and the trial court erred in holding otherwise.
(b) Cutter case:
“The lessee shall monthly pay lessor as royalty on gas marketed from each well where gas only is found, one-eighth (%) of the proceeds if sold at the well, or if marketed by lessee off the leased premises, then one-eighth (Vs) of its market value at the well. . . .”
This is also a “Waechter” lease and is governed by (a) above.
(c) Maupincase:
“To pay the lessor one-eighth, at the market price at the well for the gas so used, for the gas from each well where gas only is found, while the same is being used off the premises. . . .”
This is a “market value” lease. Those four members of the court adopting Positions 1, 2 and 3, above, agree with the trial court that royalties on this lease should be paid on the arbitrated market value of the gas.
(d) Stewart case:
“The lessee shall pay lessor, as royalty, one-eighth of the proceeds from the sale of the gas as such, for gas from wells where gas only is found, and where not sold shall pay fifty ($50.00) Dollars per annum as royalty from each such well, and while such royalty is so paid such well shall be held to be a producing well under paragraph numbered two hereof. . . .”
This is a “proceeds” lease. The five members of the court adopting Positions 2, 3 and 4 agree that royalties under this lease are to be paid on amounts actually received and lawfully retained by the producer. The judgment below is reversed as to this lease.
(e) Parker case:
The royalty clause in the original lease in this case was replaced by a clause making royalties dependent on production from a quarter section known as the “Parent Tract”:
“Lessee shall pay Lessor for gas from each well where gas only is found (a) that is located on Parent Tract, the equal fifteen one-hundredth of one-eighth (Wioo of %) of the gross proceeds at the prevailing market rate, for all gas used off said tract.”
The four members of the court taking Positions 1, 2 or 3 consider this a “market value” lease, with royalties to be paid on the arbitrated market value.
(f) Flower case:
Three leases are involved in this case each covering a quarter-section. They were made subject to a unitization agreement (together with the fourth quarter of the section) which didn’t directly affect the royalty clauses, but gave to each lessor a “percentage of Royalty” (25% of Vs) from production anywhere in the section. The royalty clauses are:
“The lessee shall monthly pay lessor as royalty on gas marketed from each well where gas only is found, one-eighth (%) of the proceeds if sold at the well, or if marketed by lessee off the leased premises, then one-eighth (is) of its market value at the well.”
“The lessee shall pay lessor, as royalty, one-eighth of the proceeds from the sale of the gas, as such, for gas from wells where gas only is found, and where not sold shall pay Fifty ($50.00) Dollars per annum as royalty from each such well. . . .”
“To pay the lessor one-eighth, at the market price at the well for the gas so used, for the gas from each well where gas only is found, while the same is being used off the premises. . .
The first of these is a Waechter lease, and is deemed a “proceeds” lease under the decision in the Lightcap case, (a) above. The second is clearly a “proceeds” lease, and is controlled by the decision in the Stewart case, (d) above. The third is a “market value” lease, and is controlled by the Maupin case, (c) above.
IV. Mobil’s Counterclaim
In its answers Mobil counterclaimed for alleged overpayments of royalties to plaintiffs from January 1, 1954, through January 31, 1958. During that period royalties were paid on a sales price of 11# per Mcf under both contracts between Mobil’s predecessor and Northern; that price was fixed by a minimum price order of the Kansas corporation commission entered December 2, 1953. A decision of this court upholding the KCC order was reversed in Cities Service v. State Comm’n., 355 U. S. 391, 2 L. Ed. 2d 355, 78 S. Ct. 381, decided January 20, 1958. The prices called for in the contracts, which would have governed but for the invalidated minimum price order, were 8.74# per Mcf under the “A” contract and 7.15# per Mcf under the “B” contract (adjusted in each case for the standardized pressure of 14.65 psia).
When the KCC minimum price order was first promulgated Northern advised Mobil’s predecessor that it would comply only under protest, and would expect a refund if the KCC order were found to be invalid. Mobil’s predecessor in ton advised its royalty owners that the validity of the order was subject to litigation, and advised each that acceptance of royalty checks based on the 11^ order constituted an agreement to refund any part which was later determined to be excessive. Plaintiffs accepted and negotiated the checks.
After the KCC order was invalidated by the Supreme Court Northern sued Mobil’s predecessor in Delaware to recover over-payments made by it under the order. That litigation was eventually settled, with FPC approval, by Mobil’s refund to Northern of $2,517,522.92, or about 73% of the total paid in excess of the amount which would have been paid under the two contracts in the absence of the 11^ order. It is the plaintiffs’ “royalty share” of this 73% refund that Mobil seeks to recover through its counterclaim.
The trial court denied the claim because the payments to the royalty owners was voluntary, because the settlement with Northern was voluntary, and because the claim was barred by the statute of limitations.
The first ground was specifically rejected in Waechter, where there had also been overpayments under the KCC order. We said:
“. . . Nor can the payments of the 114 price be said to be voluntary. Appellant was under compulsion of a business hazard in making them. The KCC order compelled it to pay the 114 minimum price ‘as a condition precedent for withdrawal from the common source of supply’. If it failed to comply with the commission order it was subject to criminal penalty under K. S. A. 55-708 and civil penalty under 55-710.” (217 Kan. at 514-15.)
Neither does the fact that the settlement with Northern was “voluntary” cut off Mobil’s right of reimbursement. The settlement here was reached on January 4, 1963. The dispute between Amoco, the producer in Waechter, and its purchaser Cities Service, had gone to judgment in favor of the purchaser on November 19, 1962. (See Finding No. 22, Waechter v. Amoco Production Co., supra, 217 Kan. at 495.) Mobil could at that point readily foresee the outcome of its own case. If we analogize Mobil’s right to reimbursement from its royalty holders to a right of indemnity, we find the general rule to be:
“Indemnity against losses does not cover losses for which the indemnitee is not liable to a third person, and which he improperly pays. But a person legally liable for damages who is entitled to indemnity may settle the claim and recover over against the indemnitor, even though he has not been compelled by judgment to pay the loss. The fact of voluntary payment does not negative the right to indemnity, since a person confronted with an obligation that he cannot legally resist is not obligated to wait to be sued and to lose a reasonable opportunity for compromise.” (41 Am. Jur. 2d, Indemnity, § 33.)
See also, Cason v. Geis Irrigation Co., 211 Kan. 406, 507 P. 2d 295; Fenly v. Revell, 170 Kan. 705, 228 P. 2d 905.
There is no contention here that Mobil had any defense to Northern’s suit, or that the settlement was in any way imprudent. Plaintiffs say only that the Delaware litigation did not go to judgment, hence Mobil’s liability was not “determined.” Under the general principle quoted above, this is not sufficient to deny to Mobil the reimbursement to which it is otherwise entitled. It simply paid what it was legally obligated to pay.
As to the statute of limitations, it had no doubt run before the counterclaim was asserted. The cause of action accrued on January 20, 1958, when the Supreme Court invalidated the KCC order. See Cities Service Gas Co. v. United Producing Co., 212 F. Supp. 116 (N. D. Okla. 1960); Panhandle Eastern Pipe Line Company v. Brecheisen, 323 F. 2d 79 (10th Cir. 1963). Applying the statute relating to unjust enrichment (K. S. A. 60-512) the claim became barred on January 20, 1961. (See Waechter, 217 Kan. at 516-17.)
This did not, however, prevent the assertion of the claim as a setoff. K. S. A. (now 1975 Supp.) 60-213 (d) provides:
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim 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 if arising out of the contract or transaction set forth in the peitition as the foundation of plaintiiFs claim or connected with the subject of the action; but the two demands must be deemed compensated so far as they equal each other.”
Thus, even an outlawed claim may be used as a setoff if it (a) coexisted with the plaintiffs’ claim and (b) arises out of the “contract or transaction” on which the plaintiffs’ claim is based.
Here, plaintiffs’ claims began accruing July 1, 1958, when the new, arbitrated market value came into play, and as actions on written contracts continued as viable claims for the next five years. (K. S. A. 1975 Supp. 60-511.) Plaintiffs’ claims were thus “alive” from July, 1958, through July, 1963; Mobil’s claim was “alive” from January, 1958, through January, 1961. They thus coexisted for at least some two and one-half years, and thereby met the first requirement of 60-213 (d). See, Tobin Construction Co. v. Holtzman, 207 Kan. 525, 485 P. 2d 1276.
The second requirement of the statute — that the claim arise out of the same contract or transmission — is likewise met. Both claims appear clearly to arise out of the respective leases, i. e., the “same contract,” even though covering different time spans. Although Mobil cannot secure affirmative relief on its outlawed claim it can use it as a matter of pure defense, i. e., as a setoff against any judgment rendered against it. See, Christenson v. Akin, 183 Kan. 207, 326 P. 2d 313. The trial court therefore erred in denying the counterclaim in toto. Mobil is entitled to a setoff for its claim for over-payments, although only against that portion of the plaintiffs claims which coexisted with it (i. e., those claims of plaintiffs accruing before January 20, 1961).
V. Interest
The trial court’s allowance and disallowance of prejudgment interest came about in this way: When the arbitrators made their award in 1958 fixing the “fair, just and reasonable” rates for sales to Northern for the next five years, MobiFs predecessor filed those rates with the FPC as its proposed new tariff. The FPC, as it was authorized to do under the Natural Gas Act, suspended the effectiveness of the new rates pending its investigation of their lawfulness.
MobiFs predecessor filed a motion asking that it be permitted to collect the new, higher rates, subject to an obligation to refund to Northern any portion which might later be found by the FPC to be excessive, plus interest at 6%.
This motion was approved, and from December 20, 1958, through the entire period in litigation Mobil and its predecessor collected from Northern at the arbitrated rates of 16.750 per Mcf and 150 per Mcf on the “A” and "B” contracts respectively. At the same time it paid royalties on the basis of the old contract rates of 8.740 and 7.150 per Mcf.
Realizing that it might have to refund at least part of its current receipts from Northern, and would have to pay additional royalties on the excess it would be permitted to retain, Mobil’s predecessor established reserves for this purpose. A portion of these reserves were invested in government securities and certificates of deposit. The balance was put into the general corporate treasury and Used for current operations just like any other working capital.
When Mobil bought out its predecessor (Republic Natural Gas Company) as of December 31, 1961, it acquired its assets, its liabilities, and its position in all pending litigation and administrative proceedings. Among the latter was the request for FPC approval of the new, arbitrated rates. In the spring of 1964 Mobil filed with the FPC a rate settlement proposal which included the “A” and “B” contracts with Northern. The settlement was approved by an order which became final on July 26, 1964. It approved rates covering the period in litigation as follows:
Period ‘A” Contract “B” Contract
Dec. 20/58-Mar. 31/60 16.750 Mcf 150 Mcf
Apr. 1/60-Dec. 31/61 110 Mcf 110 Mcf
Jan. 1/62-Nov. 30/62 16.750 Mcf 150 Mcf
Dec. 1/62-Apr. 30/64 110 Mcf 110 Mcf
(The 110 rate was continued as to both contracts until July 1, 1967, when it went to 12.50 as a result of FPC area rate setting for the Hugoton-Anadarko field.)
The result was a final determination of how much of its receipts from Northern during the period Mobil would be able to retain. Despite the apparently irrational fluctuations, the amount was, for the entire period, substantially in excess of the 8.740 and 7.150 on which Mobil had been paying royalties.
By pleading, Mobil at various times in 1964 and 1965 tendered into court the difference between the royalties previously paid and the royalties due under the FPC approved rates. (The tender was modified from time to time in ways not now material.) On April 2, 1965, the trial court ordered Mobil to pay in according to its latest tender (in which it deducted its counterclaim and offered no in terest) and the resulting payment was distributed to plaintiffs without prejudice to the claims of the parties — in particular plaintiffs’ claims to interest.
It was on this payment that the trial court allowed prejudgment interest:
“Judgment for interest will be granted plaintiffs on the amounts received by defendant set forth in finding of fact number thirty-three herein. These are the rates received by defendant and its predecessor under the arbitration of tire gas purchase agreement and approved by the FPC. Since defendant had full use and control from receipt of the money until the tender into this court equitable considerations compel the court to allow interest at the legal rate for this period plus interest thereon to this date.”
The second interest question involves the additional amounts for which judgment was rendered below, based on the excess of “market value” over the FPC approved rate. When it had made good on its tender Mobil had paid all the royalties due on the amounts received from Northern which it was permitted by the FPC to retain. The judgment below, however, which we are affirming in part, for the first time established Mobil’s liability for royalties over and above those it had previously paid. As to these amounts the court concluded:
“The unusual delay in concluding the litigation of these cases in which the evidentiary hearing was held in November, 1973, and proposed findings and conclusions and briefs were submitted until July 1, 1974, was the direct result of an injunction issued by the Federal District Court of this state. While directed to the parties to this litigation it effectively enjoined this court. This matter is noted because of plaintiffs’ request for pre judgment interest if judgment is granted, as has been, in conclusion number four above. Plaintiffs state the delay was caused by defendant in applying for the injunction. However, the record reveals no appeal from the injunctive order and the interim litigation in the FPC and United States Circuit Court has determined the basic question of FPC jurisdiction of royalty provisions. These facts plus this being a case of initial impression leads this court to conclude that pre judgment interest should not and is not allowed as to the judgment provided in conclusion number four above.”
Neither side is content with the trial court’s rulings. Mobil relies on the general rule that an “unliquidated” claim for damages does not draw interest until liquidated — usually by judgment. Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P. 2d 773; Govenius Bros. v. Reagor, 130 Kan. 711, 288 Pac. 537, Syl. 2. The result, it says, is that no interest should be allowed at all, either on the amounts in admittedly owed, tendered and paid, or on the additional amounts adjudged to be due.
Plaintiffs, on the other hand, assert that the amount or royalties due on the arbitrated “market value” was readily ascertainable at all times, and was therefore “liquidated” for the purpose of allowing interest, citing Schupbach v. Continental Oil Co., 193 Kan. 401, 408, 394 P. 2d 1.
This court is of the opinion that the trial court was correct on both aspects of the interest problem. As to the amounts which were determined to be due only when judgment was entered below, we believe the general rule as to unliquidated claims should apply. Apart from the question of liability (one of “initial impression” as noted by the trial court), the amount due if there was liability was not determined until judgment. The “market value” of the gas sold was subject to proof at trial by any competent evidence. See Weymouth v. Colorado Interstate Gas Company, supra; Lippert v. Angle, 211 Kan. 695, 508 P. 2d 920. Here plaintiffs chose to rely on the arbitrated value as establishing market value, and that figure was accepted by the trial court in the absence of any other evidence on the issue. Such a result, however, could not have been foretold before this litigation was well under way, and until that time the total claim was unliquidated.
Lippert v. Angle, supra, is instructive on this issue. That was also a suit for gas royalties based on the market value of the gas at the wellhead. There, no royalties had been paid, the lessee having impounded them pending the lessors’ execution of an unusual form of division order. No tender was made; even of the amounts admittedly due. “Market value” was litigated and determined, and prejudgment interest was allowed on the resulting judgment. This court affirmed, not on the basis that the claim was liquidated but because of the lessee’s “unreasonable and vexatious delay of payment” under K. S. A. 16-201. In the present case the trial court found that the delay was not solely Mobil’s fault, but was caused by the federal injunction pending during the time the question of FPC jurisdiction was litigated. Plaintiffs, the trial court noted, did not appeal from the injunction order, as they could have had they not been content to await the outcome of the District of Columbia suit. The clear implication is that Mobil was not guilty of “unreasonable and vexatious delay” which would justify damages by way of interest. We agree.
The money actually received by Mobil and held by it subject to the FPC order, however, stands on a different footing. When it first began receiving this money Mobil’s predecessor advised each royalty owner that his royalties on the higher rates would be placed in a “segregated account” and that after the FPC acted royalty owners would be paid out of the “impounded funds.” In fact, as indicated above, the money was either invested or used in the business. As the trial court noted, Mobil and its predecessor had “full use and control” of this money.
We find a qualification to the general unliquidated damages rule in this language:
“The general rule followed by some authorities is that interest as damages cannot, in the absence of any statutory provision therefor, be recovered as a matter of right in an action of contract upon an unliquidated claim. In a growing number of jurisdictions, however, the allowance of interest on such unliquidated claim is discretionary with the court, and interest will be allowed where required to give full compensation. Therefore, where necessary in order to arrive at fair compensation, the court, in the exercise of a sound discretion, may include interest or its equivalent as an element of damages.” (22 Am. Jur. 2d, Damages, § 185. And see, 25 C. J. S. Damages, § 52a.)
This type of reasoning was employed to award prejudgment interest on an unliquidated claim in Brooklyn Union Gas Co. v. Transcontinental Gas P. L. Corp., 201 F. Supp. 679 (S. D. Tex. 1960), aff'd 299 F. 2d 692 ( 5th Cir. 1962). That was an action by gas distributors for alleged overpayments made to their ultimate suppliers, Mobil and Ohio Oil Company, through their immediate supplier, Transoo. The court treated the matter as one of restitution and found that interest should be allowed under Restatement, Restitution, § 156. It also found that “the district courts are vested with considerable discretion in the awarding of interest damages upon restitutory sums. Considerations of fairness and traditional equitable principles are to guide the exercise of this discretion.” (201 F. Supp. at 682.)
The defendants there contended that interest could not start until the dissolution of a previously issued stay order; in the meantime, they said, they were entitled to collect the higher rates. Their duty to repay, they argued, did not arise until the obligation became unconditional. The court’s response to this argument was:
“Defendants’ argument has considerable logical appeal. Yet, Mobil and Ohio have had the use of this money from the date of its receipt. Similarly, plaintiffs have been deprived of the use of such funds from the time these increased rates were reflected in Transco’s charges to them. Equitable considerations compel the conclusion that interest should commence from the respective dates of Transco’s overpayments to the defendants.” (Id. at 682-3.)
We have enunciated the general principle:
“Interest has been defined as the compensation allowed by law or fixed by the parties for the use, detention, or forbearance of money. In our society today money is a commodity with a legitimate price on the market and loss of its use, whether occasioned by the delay or default of an ordinary corporation, citizen, state or municipality should be compensable.” (Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 357, 532 P. 2d 1081.)
Here Mobil and its predecessor made active use of plaintiffs’ money, and plaintiffs were deprived of that use. Under the reasoning of the' foregoing cases plaintiffs are entitled to be compensated for their loss. Mobil was obligated by FPC order to pay Northern 6% interest on Northern’s share of the “impounded” money; equitable principles require that the royalty owners receive the same treatment as to their share. Accordingly the trial court’s orders as to interest are affirmed.
VI. Conclusion
The trial court’s judgment is affirmed insofar as it awarded royalties on the free market value (i. e., the arbitrated price) of gas sold under those leases which this court categorizes as “market value” leases, and insofar as it awarded and denied prejudgment interest. It is reversed insofar as it awarded royalties in excess of moneys actually received and retained for gas sold under the “proceeds” leases, and insofar as it denied Mobil’s counterclaim. The cases are remanded for further proceedings in accordance with this opinion.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a husband for divorce, custody and control of a child and division of property. Defendant’s answer denied plaintiff’s charge of defendant’s gross neglect of duty and extreme cruelty and in her cross petition defendant charged the plaintiff with the same .faults. She sought a divorce, custody of the child, division of property, alimony and attorneys’ fees.
The court granted plaintiff a divorce on the grounds alleged in his petition, gave plaintiff the automobile, awarded the custody and control of the seven-year-old daughter to the wife’s parents, retained jurisdiction of the case for the purpose of making an order with reference to support of the child by the father, a veteran, until he obtained employment, directed that certain life insurance policies on the life of the plaintiff be assigned irrevocably to the wife’s father with the minor child designated as the beneficiary, ordered plaintiff to keep the premiums thereon paid, denied alimony and attorneys’ fees to the defendant and taxed the costs to the plaintiff. Defendant appeals from every portion of the judgment except the ordei taxing the costs.
Error is charged in the granting of a divorce to appellee and in refusing to award it to appellant. The contention therefore concedes the evidence warranted a severance of the marriage relation. Appellant did not demur to the evidence of appellee but now contends it was insufficient to sustain a decree of divorce in appellee’s favor. We do not deem it necessary to narrate in detail the evidence adduced by and on behalf of appellee. Some of the salient facts were:
This was appellee’s first marriage and appellant’s third; the parties met at Wichita in December, 1937; appellant had sued her second husband for a divorce the preceding September and was divorced in January; these parties were married February 10, 1938, in Oklahoma; one child, Saundra Sue, was born of the marriage; prior to entering the military service appellee was the manager of the Lassen Hotel at Wichita; his compensation was $300 per month plus a percentage of the earnings and his living quarters were provided in the hotel; at the time of his marriage he had approximately $3,000; the parties lived in the hotel and did not own a residence property; appellant had spent very little time with the child; her parents, Mr. and Mrs. Murphy, had taken care of the child since its birth; appellee entered the army as a captain in June, 1941, went overseas in May, 1943, served in the Pacific campaign and returned for a brief period in December, 1944; he again went to the Pacific and was discharged in October, 1945; he received terminal pay beginning November, 1945, and ending January 14, 1946; when he entered the service he had approximately $5,000 in bonds and cash and an automobile.
Among other things the record further, in substance, disclosed these pertinent facts:
Difficulty had arisen between the parties and their marriage relation ceased to be a happy one; when appellee left for overseas his wife inquired of him whether he would give her a divorce; she stated she didn’t care if he never came back, that he was worth more dead than alive; during his absence overseas appellant became involved in an affair with one Dean Pricer which resulted in the filing of a damage action by Pricer’s wife against appellant for alienation of affections; appellant apparently had many other men friends with whom she attempted to make engagements; she spent many evenings with a man in his room at the Broadview hotel, remaining there on occasions as late as midnight; appellant did not love appellee when she married him; she was disappointed in her failure to marry another person to whom she had been engaged and married appellee on the rebound.
Touching his earnings while in the service and some other matters appellee’s testimony,, in substance, further disclosed:
He was overseas approximately twenty-three months and allotments were made to his wife over that period; the allotments began when he was made a major; he became a lieutenant colonel June 13, 1944, and remained so until his discharge; his pay as a major was $462 while he was in the states and $494 while he was overseas; while he was a lieutenant colonel he received $526 a month out of which his wife received $250 a month with the exception of. four months; he actually used less than $100 a month for his expenses and sent his wife additional money on several occasions amounting in all to approximately $400; appellant admitted she had withdrawn and spent $11,000 between September,°1945, and the time of trial in February, 1946; $8,000 was spent on trips to Indianapolis, Ind., Albuquerque and Santa Fe, N. M., Kansas City a number of times, and for clothes and gifts for the daughter and her friends; she had also spent the other $3,000 and no portion of the funds remained; appellee had fourteen or fifteen suits of clothes, an overcoat and other accessories when he entered the service; when he returned his' wife refused to deliver them voluntarily and he was obliged to obtain a court order for their delivery; only a small portion thereof was found; appellant’s versions with respect to the disappearance of appellee’s clothing were conflicting but she confessed to the deputy sheriff she had sold them; on one occasion prior to entering the service appellant had thrown a coca cola into his face in the presence of friends in a hotel room; he did not know why she did so and he had difficulty restraining her; and on one occasion appellee went to his room in the hotel to.get his coat and hat but his wife refused to let him enter; his wife’s mother was there and gave them to him; as he started to leave'appellant came out into the hall and employed abusive language and removed his hat; when he bent over to pick it up she kicked him in the face.
Appellant asserts no divorce can be granted without corroborating evidence (G. S. 1935, 60-1509), and contends appellee’s evidence was uncorroborated. It is true appellee’s testimony pertaining to the abusive language and physical violence was not corroborated. Appellant’s parents who had been subpoenaed by appellee did not appear at the trial and were not compelled to testify. Testimony touching her indiscretions with other men were corroborated by a number of witnesses. Appellee called appellant as his own witness. She testified with respect to the disappearance of approximately $11,000 within six months prior to the date of the trial. She stated she had spent all of that money for the purposes previously stated. Appellee’s testimony concerning the disappearance of his clothing was likewise corroborated. The deputy sheriff testified appellant stated, “She had sold the clothes.” Touching appellant’s attitude toward appellee the witness Banks quoted appellant as having said, “. . .1 married Mr. Hayn on the rebound. I never loved him when I married him.”
The testimony justified the granting of the divorce to appellee. We need not discuss each detailed fact for the purpose of determining whether it falls precisely within the legal contemplation of gross neglect of duty or extreme cruelty. Some of the facts tend to support both faults. The flagrant waste of property, whether it was the veteran’s or jointly acquired, during his absence constituted a gross disregard of appellant’s marital duty. (Overbay v. Overbay, 147 Kan. 118, 120, 75 P. 2d 234.) But we might completely ignore that evidence and also the evidence of the wholly unjustifiable disposal of appellee’s clothing as facts indicating gross neglect of duty and yet be obliged to affirm the decree of divorce.
Evidence of extreme cruelty was amply corroborated. 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 helcf, 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.
Did the trial court err in refusing to award the custody and control of the seven-year-old daughter to appellant and in awarding such custody to appellant’s parents? Touching this subject appellee testified:
“That it was impossible for them to live together as husband and wife. That Mr. and Mrs. Sam Murphy had taken care of the child since its birth. That they are the father and mother of Mrs. Hayn. Mrs. Hayn has spent very little time with the baby. That they had a nurse in the hotel with the exception of two or three hours a day.”
As previously stated the Murphys, ■ appellant’s parents, did not appear in court although they had been subpoenaed by counsel for appellee. There is evidence in this record with respect to appellant’s conduct which clearly indicates it would have- been highly embarrassing for the Murphys to appear as witnesses against their own daughter. On the hearing of the motion for a new trial the trial judge stated the grandparents had come to see him. Counsel for appellant stated, “You are putting the obligation upon some grandparents.” To that statement the court replied, “I know the grandparents are glad to have it.”
Appellant argues, first, there was no evidence in the record to indicate the grandparents were so inclined and, second, that the court should have made an order, at the time of trial, requiring appellee to provide child support. It is true there was no evidence at the trial with respect to the willingness of the Murphys to take and care for their grandchild after the divorce was granted. But after the court concluded it would not presently award the custody to either parent it had not only the right but the duty to place the child as its best interests required. That judgment should not be disturbed unless it clearly appears the court abused its discretion. (Chapsky v. Wood, 26 Kan. 650; Hodson v. Shaw, 128 Kan. 787, 280 Pac. 761.) The trial court knew from evidence in the record the maternal grandparents had been caring for this child most of the time since its birth. The trial court also may have known the grandparents to. be interested, financially able and trustworthy people. In fact, there is evidence tending to show they were. In view of evidence in the record we cannot say the trial court abused sound judicial discretion in awarding the custody and control of the child to the maternal grandparents.
Under the circumstances the trial court refused to make an order requiring appellee to support the child until he could find employment. The court expressly ruled it was retaining jurisdiction for that purpose and, upon proper showing, would make such order, if requested. Appellant directs attention to G. S. 1935, 60-1510, which provides,
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.”
and asserts the court was obliged to make an order for child support when the divorce was granted. The court did make an order at that time for the custody and control of the child and the grandparents are not here complaining concerning it. The court’s jurisdiction over minor children, including orders for their support, is a continuing jurisdiction. Its orders may, and should be, changed from time to time as conditions require. (See cases collected under statute last quoted.) The record discloses counsel for appellee informed the court that at any-time Mr. Murphy needed money for the child’s support it would be forthcoming. Limiting our review to the evidence adduced at the trial we find no reversible error in this part of the judgment.
Appellant finally argues the court made no finding she was not a fit and proper person to have the care, custody and control of the child and therefore its judgment cannot stand. While no finding was made in those precise words the court clearly indicated it entertained that view when, on the hearing of the motion for a new trial, it definitely stated, “. *. . the matters in evidence before me made it plain to me that it was not to the best interests of the child to be continued in her care and custody.” The form of the finding of fact constitutes a courtesy to appellant for which she may be grateful some day. But whether she will be or not her parents and her innocent child probably will be.
Appellant argues the court failed to make a fair and equitable division of the property as required by G. S. 1945 Supp. 60-1511. The divorce was granted to the husband by reason of the wife’s fault. At the time of trial appellant had no property of her own other than clothing, including four fur coats and some other personal articles. That was more than had been left to appellee. When he returned from the service he was even stripped of his civilian clothes. Under the facts it was not error to award the automobile and a few distinctly personal articles, not in dispute, to appellee. Appellant testified the entire $11,000 was gone. Whether it actually belonged to her, as she claimed, or whether it constituted jointly acquired property had become immaterial for the purpose of dividing it. The court could not divide something which, according to appellant’s own evidence, did not exist. Nor, if it did exist, could the court divide it unless it could be reached.
Appellee owned three life insurance policies. With respect to them the judgment-provided:
“That the insurance policies in the Massachusetts Mutual Life Insurance Company for $15,000, the Equitable Life Assurance Society of $2,000 and Provident Mutual Life Insurance Company of $2,000 be irrevocably assigned to S. A. Murphy, the beneficiary be named as Saundra Sue Hayn, and that the plaintiff be required to pay all premiums due thereon so that in the event of the death of Henry J. Hayn all proceeds of said policies shall inure to the benefit of Saundra Sue Hayn.”
Appellee’s mother was the beneficiary under, the second above mentioned policy. Appellant does not complain with respect to the disposition of that policy.
We are told the other- two policies had a total cash surrender value of $4,009.10 and, therefore, appellee had property which could be divided. Under the provisions of the statute relied upon by appellant it rested in the sound discretion of the court whether it would award to the wife any. part thereof when the divorce was granted to the husband by reason of the wife’s fault. (G. S. 1945 Supp. 60-1511.) Under the peculiar circumstances of this case we are not willing to say the court abpsed sound judicial discretion in refusing to grant appellant a portion of the cash surrender value of the policies. It must be remembered the trial court was not obliged to believe appellant’s testimony that she had spent all of the $11,000 in the six months preceding the trial even though it was not directly contradicted. (Johnson v. Soden, 152 Kan. 284, 287, 103 P. 2d 812.) Remarks made by the trial court tended to indicate he may have doubted that she had done so. He also stated if the money could be located he would make prompt division thereof.
Appellant argues the assignment of the policies created an estate for the minor child out of the father’s property and thus provided support for the child which might continue beyond the minority of the child. It is contended the creation of such an estate is invalid, citing Emery v. Emery, 104 Kan. 679, 180 Pac. 451. That decision, when applicable, is sound. Here, however, an estate for the child is' not created out of the father’s property against his' will. The father has consented to the irrevocable assignment of the policies and has agreed to continue to pay the premiums thereon for the benefit and protection of his child.
Appellant also contends she was entitled to a judgment for permanent alimony. The contention is not good. With respect to alimony, this court in Petty v. Petty, 147 Kan. 342, 76 P. 2d 850, said,
■ “After granting the husband a divorce, because of the fault of the wife, the court gave the wife judgment for alimony against the husband for $900. Counsel for appellant points out that the court had no authority to do' that under our statute (G. S. 1935, 60-1511). The point is well taken. In Hendricks v. Hendricks, 136 Kan. 69, 12 P.2d 804, where a similar decree and judgment were rendered, it was held:
“ ‘Where a divorce is granted by reason of the fault or aggression of the wife, the court does not have the power to require the husband to pay permanent alimony’.” (p. 349.)
To the same effect is Hoffman v. Hoffman, 156 Kan. 647,133 P. 2d 887.
One other subject requires attention. The trial court refused to allow attorneys’ fees to appellant. She contends the refusal constitutes reversible error. Appellant also seeks allowance of such fees for services in this court. The statute provides the trial court may make such order as will insure to the wife an efficient preparation of her case. (G. S. 1935, 60-1507.) Appellant, thérefore, was not entitled to an allowance of attorneys’ fees as a matter of right irrespective of circumstances. The question of such an allowance r^sts in the exercise of the trial court’s sound discretion, and we have so held where such fees were denied. (Perkins v. Perkins, 154 Kan. 73, 78, 114 P. 2d 804.) The trial court probably believed appellant had funds with which to pay her attorneys. Under the circumstances in this case we are not inclined to allow a fee here.
We have carefully reviewed cases cited by counsel for appellant touching the various alleged errors. In our opinion they do not require a reversal of the judgment. In the final analysis every case must be decided upon its own particular facts. On review, insofar as the facts are concerned, we determine only whether there is substantial competent evidence to support the findings made and not whether there is contrary evidence.
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover upon the forfeiture of an appearance bond given to secure the appearance of the defendant in a criminal case. Judgment was for plaintiff. The defendant appeals.
The petition alleged McCormick was arrested and bound over to appear for trial in the district court on the first day of «November, 1943, at 9 o’clock; that his bond was fixed at $1,000 and he as principal, and defendant as surety, gave a bond for his appearance in court on that day; that at 9 o’clock on November 1, the state was present and McCormick was present by his attorney; that the case was continued until 1:30 on that day, at which time the’ attorney informed the court that McCormick was confined in the Nebraska state penitentiary at Lincoln, Neb., and would not be present; that the bond was thereupon forfeited by the court; that demand had been made upon defendant for the payment of the amount of the bond, but defendant had refused to pay it. Judgment was asked in the amount of $1,000 with interest.
The terms of the recognizance were that McCormick and defendant were bound to pay $1,000 to the county; that defendant should be in court on the first day of November, and that if he was in court the bond should be void and if not it was to remain in force. The journal entry of the forfeiture was to the effect that McCormick was not present in court either at 9 o’clock in the morning of the appointed day or at 1:30 that afternoon; that his attorney had said he was confined in the state penitentiary at Lincoln; that the bond was thereby forfeited.
To this petition the defendant in this action filed motions to make more definite and certain and to strike. These motions were all overruled. The defendant in this action then filed a demurrer, which was overruled. The defendant then filed an answer admitting the' arrest and arraignment of McCormick and that he had been bound over; that McCormick and he had given the bond and that McCormick was not present in court on the day the case was set. The defendant then pleaded that McCormick was not present because he was incarcerated and serving a sentence in the state penitentiary of Nebraska; that he had been so incarcerated since the ' 21st day of September, 1943, and would not complete his sentence until March 16, 1945, unless paroled pursuant to- the laws of the state of Nebraska during the month of December, 1944; that the defendant was powerless to secure the appearance of McCormick in the district court on the first day of November, 1943, and should be by the court granted a reasonable time after the release of McCormick from the Nebraska penitentiary in which to produce him; that he was entitled to have the court set a time after his release for his production in court.
The defendant further alleged in his answer that on the first day of November, 1943, McCormick was not duly and regularly called to appear before the sheriff of Brown county, Kansas, and that the bond, therefore, was not duly and regularly forfeited.
The prayer of the answer was that defendant be allowed a reasonable time after the release of McCormick to produce him in court and that plaintiff be not allowed the relief prayed for in the petition, and for costs.
To this answer the plaintiff filed a motion for judgment on the pleadings. This motion was sustained. The court in sustaining the motion for judgment on the pleadings found that McCormick was not present at the time fixed; that he left the state without the court’s permission; that defendant failed to keep him within the jurisdiction of the court or to produce him for trial at the time stated.
Judgment was given for the plaintiff in the amount of $1,000.
The defendant appeals from the judgment sustaining the motion for judgment on the pleadings. This judgment was entered November 21, 1944. The notice of appeal was filed November 25, 1944. The appellant filed a supplemental abstract in which he called attention to various matters that transpired in the district court after the appeal was perfected.
Amongst these matters .is the fact that when^ McCormick was released from the penitentiary at Lincoln he was brought back to Brown county, released on bond and on February 7,1946, sentenced to the penitentiary at Lansing. For obvious reasons we cannot consider events that transpired in the trial court after the appeal was taken. They are ho proper part of this record.
The appellant argues that since the defendant in the criminal case later appeared, was admitted to bond and pleaded guilty the state was not injured, and at the time the forfeiture was ordered the state knew the accused was in the Nebraska state penitentiary and that it could procure his appearance when his term expired, hence the court should have granted time to the bondsman to produce the accused in the district court. As we have already remarked, we cannot consider in this appeal the fact that the defendant later appeared and pleaded guilty. It is not presented to us by the record here. The weakness of the appellant’s argument here lies in the fact that he states the state knew the accused was incarcerated in the Nebraska state penitentiary and that it could secure his appearance when he had served his sentence. That was not called to the attention of the trial court in any formal manner, however, when the bond was forfeited. The bondsman saw fit to wait until this action upon the recognizance was begun before he asked for any additional time. He should have, at the time the defendant was called for and did not appear, stated the facts and. asked- that the forfeiture be withheld until such time as he could produce his principal; or, failing in that, he should have filed a motion asking that the forfeiture be set aside on the ground it was impossible at that time to produce the defendant in the criminal case, but that he would be produced in due time. The trial court could have then passed upon the sufficiency of his excuse.
What we held in State v. Montague, 138 Kan. 696, 27 P. 2d 222, is' analogous to the question here. In that case the defendant in the criminal case did not appear and his bond was forfeited. Action was commenced against the bondsman to enforce his liability on the bond. While that action was pending the bondsman filed a motion to set aside the forfeiture. This motion was heard by the district court and denied. No appeal was taken from that order. In the action on the bond the defendant admitted the defendant in the criminal case had failed to appear, but said that the forfeiture should not have been made because he was seriously ill in a hospital on the day when he should have appeared, and on that account it was physically impossible for thé bondsman to produce him on the day named. ■Other defenses were also pleaded. That case turned upon the fact thát no appeal was taken from the order overruling the motion to set aside the forfeiture and that the order overruling that motion was res judicata as to all matters pleaded in the answer. The bondsman argued, as does the bondsman here, that he had complied with ■G. S. 1935, 62-1221. That section provides as follows:
“The bail, at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open court or to the sheriff,- and upon' payment of all costs, and upon presenting a satisfactory excuse for the failure of his principal to comply with the conditions of said recognizance, may thereupon be discharged from any further liability thereon.”
Here the bondsman did not make any effort to present a satisfactory excuse as to why he did not produce defendant, neither did he ask that the .forfeiture be set aside until the action was commenced •on the bond and he filed his answer. We held in State v. Montague, supra, that the motion to set aside the forfeiture was a special proceeding and that a denial of it was a final order from which an appeal could be taken. •'
Appellant cites and relies on State v. Stanley, 104 Kan. 475, 179 Pac. 361. In that case the defendant in a criminal case had committed suicide before the time for him to. appear as provided in his bond. We held that his committing suicide was a satisfactory excuse.
Appellant also relies upon what we said in State v. Emerson, 135 Kan. 563, 11 P. 2d 702. In that case the defendant in the criminal case was at liberty on bond from the federal court. While at lib-' erty on that bond he violated the state prohibitory law in Butler county, was arrested, waived his preliminary hearing and was set at liberty upon a recognizance to appear in the district court of Butler county for trial. When the case was called in Butler county he was in the penitentiary serving a sentence from the federal court, so he could not be present. His bond was forfeited. Counsel for the bondsman did what we are holding the counsel for the bondsman should have done in this case. They called all those matters to the attention of the district court of Butler county on a motion to set aside the forfeiture. In those motions they offered to deliver the defendant to the Butler county district court when his sentence should have been completed in the federal penitentiary at Leavenworth. This motion to set aside the forfeiture was overruled and action commenced on the bonds. We pointed out that the only thing the state had suffered was the delay in the trial of Emerson in the state -court, and that it was common practice -for the state to ask that a federal prisoner be turned over to the state authorities for trial with the understanding that he be turned back to the federal authorities to finish his sentence when the trial was over. The surety on a recognizance bond in a criminal case if he is unable to produce his principal on the day set for him to appear in the district court for trial and the bond is forfeited should bring to the attention of . the trial court the matter of whatever excuse he has for such failure either by asking for delay in the bond forfeiture or that the forfeiture, when once made, be set aside. No such action as that was taken here. He cannot wait until the action upon the bond is commenced, then for the first time ask additional time to produce his principal.
Appellant Waters argues that it was an abuse of discretion for the trial court to deny the prayer in his answer for additional time because McCormick was incarcerated. Appellant argues vigorously the effect of the fact that later McCormick did serve his time in Nebraska and appeared in the district court of Brown county and was there sentenced. The trouble about all that is that when the judgment was given on the bond neither the court nor the parties could be sure the defendant in the criminal case would be produced in Kansas. There was the uncertainty attendant upon the extradition proceedings and general expense that the state would be forced to incur thereby.
Appellant also argues here that he stated a defense in his answer when he alleged that the defendant in the criminal case was not properly called on November 1, at Hiawatha. The trouble about that argument is the appellant in his answer admitted that he informed thé court McCormick was incarcerated in the penitentiary at Lincoln and could not be produced. The fact that the court did not instruct the sheriff or bailiff to do what was obviously a vain ,and useless thing does not affect the surety upon the bond.
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The opinion o£ the court was delivered by
Miller,' J.:
Plaintiff, Gerald Mildfelt, commenced this action against Virgil Lair for damages for breach of contract, and later added an alternative claim based upon fraud and deceit. The trial court sustained defendant’s motions for summary judgment against all of plaintiff’s claims. The defendant’s counterclaim for an accounting was tried to the court and judgment was entered against the plaintiff for $2,425.55, plus interest and costs. The plaintiff appeals from all adverse rulings.
The issues before us are whether the trial court erred (1) in granting summary judgment on plaintiff’s claims of breach of contract and tort, (2) in its ruling upon the partnership accounting, and (3) in allowing defendant’s counsel to participate in the case.
As we turn to the factual background of this dispute, we should be mindful of the rules relating to the granting and appellate review of summary judgments. K. S. A. 60-256 (c) provides for the entry of summary judgment “. . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .”
Summary judgment should not be entered where there are disputed issues of material fact. Motors Insurance Corporation v. Richardson, 220 Kan. 288, 552 P. 2d 894; First Land Brokerage Corporation v. Northern, 220 Kan. 48, 551 P. 2d 866.
Where the sole question presented is one of law, a final determination may be had on a motion for summary judgment. Wagner v. Mahaffey, 195 Kan. 586, 408 P. 2d 602. A motion for summary judgment should be sustained only where there is no genuine issue of material fact, and a party is entitled to judgment as a matter of law. Harold v. Harold, 218 Kan. 284, 543 P. 2d 1019.
In considering a motion for summary judgment, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. Voth v. Chrysler Motor Corporation, 218 Kan. 644, 545 P. 2d 371; Lorson v. Falcon Coach, Inc., 214 Kan. 670, 679, 522 P. 2d 449. Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to tihe existence of issues of fact, a motion for summary judgment will not lie. Mechtley v. Price, 217 Kan. 344, 347, 536 P. 2d 1385; Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F. 2d 33 (10th Cir. 1975); and Stevens v. Barnard, 512 F. 2d 876 (10th Cir. 1975).
An appellate court should read the record in the light most favorable to the party who defended against the motion for summary judgment. It should take such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant. Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P. 2d 900; and see 10 Wright & Miller, Federal Practice and Procedure: Civil, § 2716.
Gerald Mildfelt was employed by the Security National Bank in Kansas City, Kansas, at the time that Virgil Lair, of Piqua, Kansas, bought the bank at Stark, Kansas, in 1970. The Stark bank was a customer and correspondent of Security National, and through this contact the parties became acquainted. They learned that the Home State Bank at Erie, Kansas, might be for sale. Lair negotiated with the Millers, who owned the controlling interest in the Home State Bank, around May 1, 1972. He then contacted Mildfelt and asked if he would come down and serve as president and chief executive officer of the Home State. The parties entered into an oral agreement that if Lair would go ahead and purchase the Home State, Mildfelt would resign his position with Security National, move to Erie, and run the bank. Mildfelt was to be president of the bank at a salary of $14,000 per year. The parties agreed that the bank would furnish Mildfelt with a new car and pay all car expenses. Mildfelt and Lair were to form an equal partnership to sell credit life insurance in connection with loans made by the bank. And in addition, Mildfelt was to have an option to purchase, at a fixed price, up to fifty per cent of the stock in the Home State Bank held by Lair. Thereafter, on May 11, 1972, Lair purchased controlling interest in the Home State from the Millers. Mildfelt resigned his position with Security National, moved his family from Kansas City to Erie, and assumed the management of the Home State Bank on July 1, 1972.
Some months thereafter Mildfelt suggested to Lair that their agreement should be in writing. Mildfelt drew up a proposed agreement and showed it to Lair, who suggested that it should be prepared by an attorney. In about December, 1972, Mildfelt handed the draft he had prepared to Clark Fleming, the bank’s attorney, and asked him to formalize it. Mr. Fleming asked Mildfelt a few questions as to provisions which were not clear- to him, and made some notes on the original draft. Fleming then took these to his office, redrafted the agreement in formal terms, and returned the documents to Mildfelt. Lair refused to sign the written agreement, and thereafter relations between the parties deteriorated. Lair took over the hiring and firing and discipline of bank employees. Toward the end of March, 1973, Mildfelt told Lair that he was dissatisfied with their agreement and Mildfelt offered to purchase all of Lair’s interest in the bank. The parties, however, failed to agree upon terms and no agreement was reached. On May 19, at a special meeting of the board of directors of the Home State Bank called by Lair, Mildfelt was relieved of his duties as president of the bank as of Monday morning, May 21, 1973. Mildfelt was instructed to turn over the keys to the bank, return the bank’s car, and remove his personal belongings from the president’s office.
During the time that he served as president of the Home State Bank, Mildfelt was paid a salary of $14,000 per year, plus a bonus of one-month’s salary at the end of 1972 and an additional month’s salary as severance pay at the time of his dismissal. He was furnished with a new car during his tenure, and the bank paid the car expense. Mildfelt and Lair were equal partners in an insurance agency which operated from the bank during the same period of time. In 1972, Mildfelt’s profit from this venture was about $4900. By May 21, 1973, Mildfelt had withdrawn $2900 more than Lair from the insurance partnership. Lair settled up the partnership insurance business after Mildfelt left the bank.
Mildfelt commenced this action by filing a petition alleging breach of contract, the terms of which were that Lair was to buy the Home State Bank; plaintiff was to quit his job in Kansas City, move to Erie, assume presidency of the bank, have an option to buy fifty per cent of the bank’s stock, and be furnished an automobile; and the parties were to start an insurance agency in which each would own fifty per cent. In reliance upon the agreement, and after Lair purchased the bank, Mildfelt performed his part of the contract until May, 1973, when the defendant breached the agreement and fired the plaintiff. Plaintiff sought damages for the breach.
Lair answered, admitting that he and his wife purchased the bank, but denying that there was any written contract between the parties, and denying the breach of any contract. He alleged that plaintiff was employed by the Home State Bank and was discharged for cause. By counterclaim, Lair sought an accounting of the insurance partnership, and judgment for $4,786.94
Plaintiff next moved to require Fleming and Forsyth to withdraw as attorneys for the defendant and, after hearing, the court denied the motion. We will treat this matter later in this opinion.
Mildfelt replied to the counterclaim, denying liability but seeking an accounting. After interrogatories had been answered and depositions taken, Lair moved for summary judgment on the ground that “there is no writing sufficient to indicate a contract of sale between the parties and signed by the defendant or any one authorized by him under K. S. A. 84-2-202 . . . and that summary judgment should be entered for defendant on plaintiff’s petition as a matter of law.” Plaintiff filed an affidavit in opposition to the motion. The court ruled that the action on contract could not be maintained because the contract was barred by the U. C. C., the applicable section being K. S. A. 84-1-206.
Mildfelt then filed an amended petition, reaffirming and realleging his original claim for breach of contract, and alleging in the alternative that Lair fraudulently and deceitfully entered into the contract, well knowing that he never intended to keep his agreement; that in reliance upon Lair’s false promises, Mildfelt left his former employment and performed services valuable to Lair; and that as a direct result of the defendant’s false promises, plaintiff sustained damages. Lair answered, denying the contract, breach, and damages, and alleging that the plaintiff’s claims were unenforceable under the statute of frauds. Lair counterclaimed for an accounting, but alleged that the amount due had been determined to be $2,425.55. Thereafter, Lair again moved for summary judgment, alleging that plaintiff’s claims could not be sustained in either contract or tort, and that Lair was entitled to judgment as a matter of law.
The trial court sustained the motion, saying in part:
“In 104 A. L. R., at page 1422, the text writer reporting Dung v. Parker, 52 N. Y. 494, states what I believe to be the sound interpretation of a statute of frauds. He says:
“ *. . . the court said that a contract void by the statute is void for all purposes, and cannot be enforced directly or indirectly; that whatever the form of the action may be, if proof of the contract, void by the statute, is essential to maintain it, there can be no recovery . . . [T]he intent with which a defendant enters into a contract, void by the statute, which he subsequently refuses to perform, is not material, in determining his liability upon it . . .’
“The gist of plaintiff’s complaint is that defendant entered into a contract and then refused to perform. If my reasoning is correct, it is immaterial whether or not he intended to perform . . ' . There is no escape from the reality that if the case were tried plaintiff would have to prove the contract which the statute [K. S. A. 84-1-206] says is unenforceable and that to enable plaintiff to prevail it would have to be determined that an agreement is good which the statute says is not good.
“I feel compelled to decide that plaintiff is barred from prosecuting this action in either contract or tort.”
Thereafter, trial was held on the accounting, and judgment was entered for Lair and against Mildfelt for $2,425.55. Plaintiff appeals from all adverse rulings.
We will first consider plaintiff’s contention that his claim for breach of contract should not be barred by the statute of frauds because of plaintiff’s performance of the contract. The agreement, as we view it, had three facets: it provided for employment, for the formation of an insurance agency partnership, and for an option to buy bank stock.
Plaintiff makes no claim that the employment was to extend for a fixed period; the duration of the employment was not fixed, either during the oral negotiations or in the written — but unsigned— contract prepared at plaintiff’s direction. The employment portion of the contract, therefore, could be performed within one year and does not fall within the ambit of K. S. A. 33-106. Talbott v. Gaty, 171 Kan. 136, 141, 231 P. 2d 202; and see 72 Am. Jur. 2d, Statute of Frauds § 34, pp. 594-595, and 37 C. J. S., Frauds, Statute of, § 62 (c), pp. 570-571.
However, as we said in Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545 P. 2d 312:
“. . . [T]his court has adhered to the rule prevailing in most jurisdictions (62 A. L. R. 3d, Anno. Employment Contract Termination At Will, p. 271) that in the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party. . . .”
One whose employment is terminable at will, however, has no enforceable claim for breach of contract against the employer who discharges him. In the recent case of Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P. 2d 779, we said:
“In the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged.” (Syl. 1.)
Mildfelt was, of course, entitled to all compensation earned during his employment. That this has been paid is not disputed.
The duration of the insurance agency partnership likewise was not fixed by the agreement between the parties. In the absence of contract provisions specifying a definite term, a partnership may be dissolved at any time at the will of any of the partners, so long as dissolution does not violate the partnership agreement. Our uniform partnership act, which became effective on July 1, 1972, the date upon which Mildfelt and Lair commenced their insurance agency partnership, so provides. K. S. A. 56-331 (a) (2). This has long been our law. Koenig v. Adams, 37 Ran. 52, 14 Pac. 439; Blaker v. Sands, 29 Kan. 551. The act of a partner in dissolving a partnership, being one of the rights of all partners in a partnership at will, creates no cause of action. We note, also, that plaintiff does not contend that the partnership was wrongfully dissolved.
We next turn to the option to buy stock. The defendant contends that this option was barred by K. S. A. 84-2-202; the trial court found it barred by K. S. A. 84-1-206. Neither appears applicable. K. S. A. 84-2-202, as the Kansas comment published with the rule indicates, is a codification of the parol evidence rule, with certain modifications, as it is to apply to writings evidencing a contract of sale. Here we have no written contract between the parties, and the rule does not come into play.
K. S. A. 84-1-206 consists of two sections, the second of which provides that the first section “does not apply to contracts for the sale ... of securities.” Shares of bank stock being securities, K. S. A. 84-1-206 is by its terms inapplicable.
K. S. A. 84-8-319 is our present statute of frauds governing the sale of securities. It reads:
“A contract for the sale of securities is not enforceable by way of action or defense unless
“(a) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
“(b) delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or
“(c) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten days after its receipt; or
“(d) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.”
None of the four conditions prescribed by K. S. A. 84-8-319 is present here. There is no writing signed by Lair, no delivery of the shares, no payment by Mildfelt, no written confirmation, and no admission of the option by Lair. Does this statute, then, bar plaintiff s claim? Under the facts and circumstances presented, we hold that it does.
We are dealing here with an option contract, an offer to' sell a maximum number of shares at a fixed price per share, in connection with a contract of employment. While we are aware that some courts have held this section of the U. C. C. inapplicable to stock options granted to employees, we think the better rule is that set forth in Bingham, v. Wells, Rich, Greene, Inc., 311 N. Y. S. 2d 508, 34 A. D. 2d 924 (1970), where the court held that a
“. . . portion of the employment contract . . . involving a transfer of title to shares of stock for a price is a sale of securities within the purview of the Uniform Commercial Code § 8-319 and is not enforceable unless ‘there is some writing signed by the party against whom enforcement is sought . . (pp. 508, 509.)
And see, also, Scarpinato v. National Patent Development Corp., 75 Misc. 2d 94, 347 N. Y. S. 2d 623, 625 (Sup. Ct. 1973). The other conditions fixed by the statute, i. e., delivery, payment, confirmation without objection, or admission, would also make enforceable such a contract.
An option is an offer to sell, made for a valuable consideration. (See Berryman v. Kmoch, 221 Kan. 304, 559 P. 2d 790.) The consideration here was the service performed by Mildfelt in managing the bank. Where no time limit is fixed, a stock option continues in force for a reasonable time. 18 Am. Jur. 2d, Corporations, § 302. Rut we hold that, absent unusual circumstances or enforceable contract provisions to the contrary, an option to purchase stock granted by an employer to an employee terminates upon the cessation of the employer-employee relationship, in the same manner that an option to purchase real estate, included within the terms of a lease, is extinguished when the lease is terminated. Estfan v. Hawks, 166 Kan. 712, 204 P. 2d 780. Mildfelt s option thus came to an end on May 21, 1973.
One seeking to exercise an option must do so within the term; failure to exercise an option results in a waiver thereof. Thompson v. Anderson, 209 Kan. 547, 498 P. 2d 1. Had Mildfelt attempted to exercise his option during his employment by paying the agreed price to Lair, or by attempting to do so (see Gardner v. Spurlock, 184 Kan. 765, 339 P. 2d 65), or, if the exact amount to be paid was uncertain, then by giving timely notice of his intent to exercise the option and by making payment as soon as the amount was ascertained (see Loose v. Brubacher, 219 Kan. 727, 549 P. 2d 991), the bar of K. S. A. 84-8-319 would not have intervened. An attempt to exercise, either by payment or tender, is ordinarily a condition precedent to the bringing of an action on a stock option.
Mildfelt made no attempt to exercise his option. He tendered no payment and he sought no performance. He is not here seeking specific performance of the option agreement. Lair has never refused performance — and thus there is no factual basis for Mildfelt’s claim of breach of the stock option.
Although reliance was placed upon the wrong section of the statute, the trial court’s conclusion that the contract was unenforceable is correct.
We next turn to the question of whether plaintiff’s alternative claim of fraud and deceit is also barred. We hold that it is. In order to prevail, plaintiff would be required to prove that Lair, secretly intending not to perform, entered into the precise oral agreement with Mildfelt which we hold is barred by the statute of frauds.
No Kansas case precisely in point has been called to our attention, nor has our research disclosed that we have passed upon this point. It is elementary, of course, that a contract unenforceable under the statute of frauds affords no basis for an action to recover damages occasioned by its breach. Evans v. Lynch, 200 Kan. 331, 436 P. 2d 867. The rule extending the bar to tort and other claims premised upon unenforceable contracts is expressed in these terms in 37 C. J. S., Frauds, Statute of, § 224, pp. 724, 725:
“An oral contract, within the statute, cannot be made the basis of an action for damages for its breach; nor, ordinarily, can any other action be maintained which requires proof of such contract to sustain the cause of action.
“. . . [T]he statute of frauds operates as a bar to all actions brought on oral contracts falling within its terms . . .
“. . . [T]he operation of the statute is not confined to cases where an action is brought directly on the contract. Whatever the form of the action may be, if the proof of a promise or contract within the statute is essential to maintain it, there can be no recovery unless the statute is satisfied . . . Even an action sounding in tort may be barred by the statute where an essential element of the cause of action is an oral contract within the statute . . .”
American Jurisprudence, Second, recognizes a split of authority. 37 Am. Jur. 2d, Fraud and Deceit § 70. An examination of the cases, however, convinces us that the rule as stated in C, J. S. is correct. In Cohen v. Pullman Company, 243 F. 2d 725 ( 5th Cir. 1957), the question presented was whether the appellant could maintain an action for fraud and deceit to recover damages sustained as a result of his reliance upon defendant’s oral agreement to sell real property, upon proof that the defendant had no intention to perform at the time the agreement was made. After discussing the history of the statute of frauds, and the authorities on both sides, the court said:
“A careful consideration of the principles which lie back of and give force and meaning to the Statutes of Frauds of the several states, in the light of the authorities cited by both sides and discovered by us, leads us to the firm conclusion: that plaintiff’s pleading and admission in this case brings it well within the mischief which the Georgia Statute of Frauds was designed to meet; and that if we were to hold, as appellant asks us to do, that an action for damages could be based on the mere allegation that an oral promise to sell land was made without an intention to perform it, we would thereby thwart its basic purpose of preventing the subjection of real property to the jeopardy and hazard of oral agreements and would defeat and bring to naught the remedy for the very mischief the statute was enacted to provide against . . .
“. . . [N]o sound reason . . . can, we think, be put forward for holding that a naked claim, as here, upon an oral promise to sel real estate, can be saved from the prohibitions of the statute by the simple device of merely aleging that the promise was made without the intention to perform it. The whole purpose of the statute is to prevent persons from being enmeshed in and harassed by claimed oral promises made in the course of negotiations not ending in contracts reduced to writing as required by these statutes.” (pp. 728, 729.)
The Court of Civil Appeals of Texas, in Collins v. McCombs, 511 S.W. 2d 745 (Tex. Civ. App. 1974), said:
“. . . Where plaintiff, although casting his complaint in the form of a cause of action for fraud, is attempting to recover damages for the breach of the promise, it is clear that he is, in effect, attempting to enforce the oral agreement. Where, as here, plaintiff is seeking to recover what he would have gained had the promise been performed, [it] is evident that the gist of his cause of action is the breach of the unenforceable promise. . . . Since plaintiff is ,here seeking to recover what he would have gained had the promise been performed, it is apparent that his action, while cast in language sounding in tort, is an indirect attempt to recover for the breach of the unenforceable promise and is, therefore, barred by the statute of frauds. . . .” (p. 747.)
In Canell v. Arcola Housing Corp., 65 So. 2d 849 (Fla. 1953), the amended complaint alleged that plaintiffs purchased some land from defendants upon the oral representation that an easement for bathing beach facilities would be provided. The court said:
“. . . The plaintiffs are relying upon a mere oral promise to create the easement, which is clearly within the terms of the statute of frauds and thus cannot be enforced directly or indirectly. . . .
“ *. . . [A]n action for damages cannot be maintained on the ground of fraud in refusing to perform the contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it.’ . . . [W]e think that on the facts of the case under consideration the rule quoted above is best calculated to uphold the theory upon which the statute of frauds is founded, in accord with the principle that so long as the statute can be made to effectuate its purposes, courts should be reluctant to take cases from its protection. . . .’’ (p. 851.)
This case was followed recently by Ostman v. Lawn, 305 So. 2d 871 (Fla. Dist. Ct. App. 1974). There the court said:
“The statute of frauds, then, bars any claim which requires as its gravamen, proof of a promise or agreement, orally made, when such promise or agreement is not to be performed within the space of one year from the making thereof. There is no distinction between an action ex contractu and an action ex delicto in this regard. . . .
“The Florida rule is that the statute of frauds may not be avoided by a suit for fraud based on oral representations . . .” (pp. 872, 873.)
Accordingly, we hold that the district court did not err in sustaining defendants motion for summary judgment on plaintiffs claim for damages on the theory of fraud and deceit. Breach of contract being the gravamen of that claim, it was barred by the statute of frauds.
We turn next to the plaintiff’s claim that the trial court erred in ruling that the attorneys for the defendant were not barred from participation in the case because of conflict of interest, and because Mr. Fleming would be called as a witness. Plaintiff bases the conflict of interest claim upon the preparation of the contract by Fleming. He contends that Fleming represented him at that time. He further contends that Fleming would 'be called as a witness in the case.
We are mindful of the rule that attorneys must not represent conflicting interests, or undertake to discharge duties which are inconsistent. State v. Sullivan & Smith, 210 Kan. 842, 504 P. 2d 190. Further, an attorney appearing against a party he has previously represented can not, in forwarding the interests of 'his new client, use against 'his former client any knowledge or information acquired through his former connection, which information was of a confidential or secret nature, or was so regarded by the client. City of Wichita v. Chapman, 214 Kan. 575, 521 P. 2d 589.
In the instant case, the record is clear that Mr. Fleming acted only as a scrivener; he did not obtain any confidential information from Mildfelt, he gave Mildfelt no advice, and there was no confidential relationship between them.
We are also aware of the rule that an attorney should not accept employment in contemplated or pending litigation if 'he is to 'be called as a witness, but this rule is subject to exception if the testimony will relate solely to uncontested matters, or solely 'to matters of formality. DR 5-101, Code of Professional Responsibility (214 Kan. lxxxv). It appears that any testimony of Mr. Fleming would be concerned only with the preparation of the contract, and with his service as a member of the board of directors of the Home State Bank. It does not appear that any areas of this testimony are controverted. It is admitted that Fleming redrafted the con tract 'after the original had been .prepared by Mildfelt, 'and that Fleming served on the Board of Directors when Mildfelt was employed, and 'also when he was discharged.
These matters were all gone into thoroughly at >an extensive evidentiary hearing, and they were carefully considered by the trial court prior to its ruling denying the motion. This is an area in which the trial court has exercised its sound discretion. Upon review of this record, we find no evidence indicating an abuse of that discretion.
Finally, plaintiff claims that it was error for the trial court to hold the plaintiff accountable for partnership losses occurring after the termination of the partnership. K. S. A. 56-336 provides in applicable part that 'the dissolution of a partnership does not of itself discharge the existing liability of any partner. K. S. A. 56-330 provides that on dissolution, the partnership is not terminated, but continues until the winding-up of the partnership affairs is completed. K. S. A. 56-315 provides that all partners are liable jointly and severally for everything chargeable to the partnership.
Both partners were liable for existing partnership obligations at the time of dissolution, and this liability continued thereafter until the partnership affairs were wound up. The partnership accounting, requested by both parties, was tried at length. Lair presented a bank employee, who substantiated the account Lair relied upon. Mildfelt presented no evidence to contradict this evidence, and stated during his testimony that he had not reviewed the defendant’s accounting, a copy of which was provided to plaintiff’s counsel some sixty days prior to trial. Mildfelt’s principal claim of error in the accounting relates to unearned premiums which the partnership was required to refund when loans made and insured prior to May 21 were renewed thereafter. The trial court held that plaintiff was obligated to participate in such refunds. To hold otherwise would in effect permit plaintiff to participate in premiums generated by insurance written by Lair after the dissolution of the partnership. Under the circumstances, we conclude that the findings of the trial court are correct. They are supported by substantial evidence and should not be disturbed. As we said in Coonrod & Walz Constr. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, 75, 535 P. 2d 971,
“. . .' ‘It is not the function of appellate courts to make an independent accounting of formidable accounts in order to determine the precise correctness of particular findings.’ (Smith v. Derby Oil Co., 147 Kan. 300, 76 P. 2d 846, Syl. ¶ 1. . . .) This court will disturb the trial court’s findings of fact on such an account only where ‘manifest or demonstrable error appears.’ . . .”
By way of cross-'appeqil, Lair challenges an order of the trial court finding excusable ^neglect, and permitting Mildfelt to file his designation of record on appeal and statement of points out of time. In view of the disposition to be made of this case, the point is moot.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered, by
Burch, J.:
This appeal is from rulings sustaining demurrers of separate defendants to the second amended petition filed in an action seeking an accounting for mining royalties and the cancellation of all alleged contractual relationships existing between the plaintiffs and the defendants. The second amended petition extends over seventeen pages of the printed abstract and the exhibits, which are made a part thereof, require Over twenty-seven pages for printing purposes. Only such allegations as the court considers helpful to explanation of the decision will be summarized.
The plaintiffs allege that they are the owners of the involved choses in action “as assignees of one D. S. Chubb, now deceased,” by virtue óf a certain assignment made to the plaintiffs, on the 18th day of April, 1938. A copy of the assignment is attached to the plaintiffs’ first amended petition as Exhibit “1.” Such exhibit is designated as a “Deed.” It sets forth that D. S. Chubb, in consideration of one dollar and love and affection conveys unto the plaintiffs and their heirs and assigns all of Chubb’s “right, title, and interest, either in law or equity, in and to the following-described lands located in Cherokee county, Kansas, to wit: Lots three (3) and four (4) in section thirteen (13), township thirty-five (35) south, range twenty-three (23) east of the sixth principal meridian in said county and state, and including any and all royalties on mines or minerals coming from said land; provided, this conveyance is made subject and inferior to any contractual rights now outstanding in favor of other parties and more particularly, but without limiting thereto, the following contracts: (1) Mining contract dated August 2,1933, between the undersigned and Commerce Mining and Royalty Company and others; (2) two contracts modifying said contract of August 2, 1933, one dated April 9, 1938, permitting removal of ores from land for retreatment, and the other, dated this date, changing the name of the custodian of the funds received from sale of ores from said land; and (3) assignment' of royalty this date to First National Bank of Miami, Oklahoma, to secure indebtedness.”
The Commerce Mining and Royalty Company, referred to in the exhibit, is named as one of the parties defendant to the action. It is designated in the petition as a business trust. The petition alleges that the named defendants, John A. Robinson, Carl A. Geist and A. E. Bendelari and George L. Coleman, Jr., constitute all of the trustees and shareholders of the named business trust; that such trust rvas revoked and dissolved on or about the 30th day of March, 1939, and that on or about such date Commerce Mining and Royalty Company deeded to the defendant, The Eagle-Picher Mining & Smelting Company, a corporation, certain mineral rights and leasehold interests in and to the involved property which the Commerce Mining and Royalty Company had theretofore obtained from other named defendants, C. G. and T. F. Lennan. The remaining named defendant, R. J. Tuthill, is alleged to have been at one time a part owner of a mining lease upon a portion of the premises and the petition seeks to quiet the plaintiffs’ title to any interest he may claim.
The petition discloses a series of mining leases, extensions thereof, and transactions pertaining thereto among the "various parties beginning in 1920 and extending until October 9, 1944, on which date the action was brought. Plaintiffs allege that all mining leases and agreements executed by the deceased, D. S. Chubb, prior, to March 16,1927, provided for the payment of eight percent royalty on minerals mined from the property and that the royalty was paid to such date. Apparently, in connection with the mining of the property for lead and zinc, ores and other valuable minerals prior to March 16, 1927, chat, tailings, sludge and slime had been accumulated .upon the surface of part of the property. Chubb had retained title to the surface rights and had caused part of the land hereinbefore described to be divided into town lots in connection with the platting of Chubb’s First Addition to the original town of Picher, now Treece, Kansas. Many of the lots must have been sold without reserving the mineral rights thereunder. While the petition is somewhat obscure on the point, we learn by reference to its Exhibit No. 6 that the defendant, C. G. Lennan, who was the wife of the defendant, T. F. Lennan, must have acquired title to a substantial number, if not all, of the lots in Chubb’s Addition which had been sold prior to March 16, 1927. Such a result must follow because the petition alleges that on such date Chubb and his wife executed to C. G. Lennan Exhibit 6. The exhibit is designated as a “quit claim deed,” but examination of it reveals that it is in the nature of a‘ royalty agreement in which Chubb conveyed to C. G. Lennan all of his interests in that part of lot 4 which had not been included in the plat of the addition, and approximately sixty described lots in the addition. In consideration therefor the grantee agreed to pay to Chubb three percent of the gross proceeds from the sale of all ore mined from beneath the surface and recovered from the chats, tailings, sludge and slime on the surface until February 18,1935, and thereafter five percent. In addition, however, the grantee agreed to pay Chubb the same royalty on all ores mined and recovered from approximately 100 lots in the addition to which Chubb apparently had lost title. Plaintiffs allege that prior to and at the time the quitclaim deed (Exhibit 6) was executed, the defendants, T. F. Lennan and his wife, C. G. Lennan, were conniving together to obtain title to certain ores and minerals underlying the lots in question and to the tailings and chats lying upon said land. Their petition further alleges that at the time C. G. Lennan obtained the so-called quitclaim deed, she knew that her husband, T. F. Lennan, and R. J. Tuthill jointly-and individually had mineral leases out- . standing upon the property and that such leases provided that D. S. Chubb should be paid eight percent royalty for the minerals mined from the subsurface of the land. In other words, the petition alleges that the defendants, C. G. Lennan and T. F. Lennan, her husband, knew that he was obligated to pay to Chubb eight percent royalty on all minerals mined from beneath the surface land under and by reason of outstanding existing prior leases and that therefore when C. G. Lennan accepted delivery of the designated quitclaim deed she simultaneously accepted and assumed to perform all of the. obligations incurred by the defendants, T. F. Lennan and R. J. Tuthill under the previously obtained leases and that, consequently she thereby became obligated to pay to D. S. Chubb not three percent or five percent as the designated quitclaim deed provided, but eight percent. The petition carefully avoids any allegation indicating that ordinarily a different royalty might be paid upon all minerals mined from beneath the surface from that which might be paid for minerals recovered from chats, tailings, sludge and slime upon the surface by reason of the operation of a concentration plant, even though Exhibit 6 and the petition refer to the operation of a concentration plant upon a part of the involved property.
Continued examination of the allegations of the petition discloses that on or about the 2d day of September, 1930, the defendants, • T. F. Lennan and C. G. Lennan, sold and assigned unto the de- ' fendant, Commerce Mining and Royalty Company, all their intérest in the lands hereinbefore referred to, as security for the payment of a debt aggregating $31,250, and that thereupon the Commerce Mining and Royalty Company took possession and control of all the rights and interests claimed to have been acquired by it. It is alleged that the trust thereby assumed and accepted the obligations of its grantors to the said Chubb. The petition continues by alleging, however; that on the 2d day of August, 1933, the defendants, T. F. Lennan and C. G. Lennan, and Commerce Mining and Royalty Company, caused and induced the said Chubb to execute a certain agreement which was designated as a “Contract” and set forth as Exhibit 8 to plaintiffs’• petition. We noté that the petition specifically alleges that the contract recited that it was the “desire of the parties to it to set forth in writing the interests of the said D. S. Chubb and other parties” in and to the lands described in the contract, but it is alleged also that the contract also “purported to provide for the payment to said D. S. Chubb of lesser percentage of royalties on minerals produced from said lands than those to which he was entitled under the terms of the leases and contracts theretofore made, as hereinbefore alleged. Said last mentioned contract further provided that the said D. S. Chubb and others released, relinquished and quitclaimed unto defendant.C. G. Lennan all their right, title, interest or royalty, in the minerals and other valuable deposits lying in, upon and under the lands hereinbefore first described.” The plaintiffs aver, however, that the contract was void and unconscionable for the reason that the said D. S. Chubb was caused to execute it “without any valuable consideration passing to him therefor; that he was eighty-five years of age at the time and greatly enfeebled by reason of mature years and incapacitated from properly attending to business and placed full faith; trust and confidence in the good faith and honesty of the said T. F. Lennan and C. G. Lennan. That he was caused to execute and acknowledge said contract by unfair advantage over the credulity of old age taken by said T. F. Lennan and C. G; Lennan, who posed as his friends, and persuaded him not to counsel with or take advice from plaintiffs.” The plaintiffs allege that théy had no knowledge of the facts which resulted in the execution and acknowledgment of the contract until.within the year prior to the commencement of this suit and that any additional facts of fraud perpetrated upon the said D. S. Chubb other than those specifically alleged were unknown to the plaintiffs. The plaintiffs seek to have the contract of August 2, 1933, and the quitclaim deed dated March 16,1927, set aside because it is -asserted that both were obtained by fraud and without valuable consideration.
A significant fact to be noted at this point is that the contract the plaintiffs seek to have set aside is the same contract referred to in the deed to the property under which the plaintiffs are claiming their interest. Such deéd clearly reads: “This conveyance is ma'de subject and inferior to any contractual rights now outstanding, . . . and more particularly, but without limiting thereto, the following contracts: (1) Mining contract dated August 2, 1933, between the undersigned and Commerce Mining and Royalty Company ...”
The petition continues by alleging that the Commerce Mining and Royalty Company profited and benefited by the interest which it had acquired and unjustly enriched itself to the loss and damage of Chubb and these plaintiffs until it conveyed its interest to the Eagle-Picher Mining & Smelting Company on the 30th day of March, 1939, and that thereafter the last-named defendant continued to operate and control the rights and interests acquired by it and to distribute the royalties due the plaintiffs in the same manner and with the same degree of injustice as its predecessor in title. Thereafter the petition alleges that in the month of December, 1942, the defendants suspended operation of the mining and selling of ores and minerals lying in and upon the premises without any notice whatever to the plaintiffs and that the defendants assumed the obligations of the said T. F. Lennan and C. G. Lennan to continue the work of mining the described lands in good faith as long as ores and minerals could be mined in paying quantities. The plaintiffs further allege that at the time of the suspension of mining operations by The Eagle-Picher Mining & Smelting Company there remained in, upon and under the lands quantities of ores and minerals which could have been mined with profit to the defendants and that the continued suspension of the mining had caused and will cause damage to the plaintiffs. Many additional allegations are contained in the petition but the foregoing will suffice for the purpose of comprehension of the material parts thereof.
One of the grounds urged in support of the demurrers is that the plaintiffs have no legal right to maintain the action for the reason that if any cause of action is set forth in the amended petition it is in the heirs of Chubb and not in the grantees named in the deed under which the plaintiffs claim their rights. It is contended by the defendants that grantees named in a quitclaim deed may not maintain an action to set aside their grantor’s prior deed for fraud. In support of such contention they cite Carithers v. Weaver, 7 Kan 110. (See, also, 66 C. J. 1099, § 916.) Examination of authorities upon the general question develops that there is a conflict of judicial opinion as to whether the execution of an instrument which is clearly only a quitclaim vests in the grantees any right to set aside prior conveyances on the ground that such conveyances were obtained fraudulently. Such» rule is often followed in cases wherein the prior instruments were of record at the time the grantees obtained their deeds. In the present case all the previously-executed instruments were recorded long prior to the date when the plaintiffs obtained any title to the property. Very frequently the cases considering the general question are influenced by the interpretation of the language in a particular instrument. Examination of the deed to plaintiffs in the present case instantly reveals that it is not an ordinary quitclaim deed. It purports to convey both legal and equitable title in and to specific property and includes an assignment of all royalties on mines and minerals coming from the land. Consequently, we do not have before us for consideration an instance wherein the general rule asserted by the defendants is necessarily controlling. We must be guided by the particular language used in the instrument under which the plaintiffs assert their right to maintain the action. Before giving that question further consideration, however, we observe that the action was not brought by the plaintiffs as the heirs and only heirs of the deceased Chubb but that the plaintiffs assert any and all rights solely by reason of their having been named as grantees in the deed. Such instrument clearly sets forth, as hereinbefore stated, that the rights which the plaintiffs acquired under the instrument were “subject and inferior to . . . [the] mining contract dated August 2, 1933, between the undersigned [Chubb] and Commerce Mining and Royalty Company . . In our opinion, the conveyance in the present case did not assign to the plaintiffs any right which the grantor possibly might have had to set aside the mining contract of August 2,1933, for the simple reason that any rights which the plaintiffs acquired were specifically made subject and inferior to the rights acquired by all parties to such mining contract. The mining contract referred to unquestionably was executed with the intent to settle all controversial questions which had arisen in the past relative to the interests owned by the respective parties in and to the mineral property. It reads in part: “. . . Whereas, Each of the parties hereto claim some right or interest in or royalty on minerals beneath the surface of the following described lands . . . [describing them], and Whereas, various contracts have been executed under which the parties hereto or some of them claim their rights concerning said land, and Whereas, oral understandings have been reached between some of the parties hereto concerning the same subject matter, and . . . Whereas, the parties hereto desire to set forth in writing the interests of the respective parties hereto, Now, Therefore, the following agreement is made binding upon each of the parties hereto, their respective successors, personal representatives, heirs, or assigns: . . The contract sets forth the respective interests agreed upon among all of the parties and makes many provisions for the operation and development of the property and the payment of royalties to the various parties.
' The “various contracts” referred to in the contract dated August 2, 1933, included the lease to T. F. Lennan, under the terms of which eight percent royalty was to be paid to Chubb, and also included, obviously, the instrument dated March 16, 1927, which the plaintiffs seek to set aside. All such other contracts, deeds, or instruments were merged in the contract dated August 2, 1933. Possibly Chubb, by promptly bringing proper action, could have sought to have the instrument dated March 16, 1927, set aside but Chubb did not see fit to do so. Instead, he agreed to have any and all of his rights under that instrument and all previous instruments settled by the provisions of the contract dated August 2,1933. Since the plaintiffs’ rights are, by the terms of their grant, specifically and explicitly subject and inferior to the contract, it follows that they' are not in a position to have the instrument dated March 16; 1927, set aside. '
We do not need to consider the prolonged provisions of the contract of August 2, 1933, because the plaintiffs in the present case do not seek to recover under such contract. On the contrary, they seek to have it set aside. Since any rights they may have in and to the property are subject to such contract by reason of the specific terms of their grant, they are not in a position to have the contract set aside. In such circumstances it becomes immaterial whether the contract to which their rights are subject 'was obtained by fraud. Examination of the contract clearly develops that it was not void for lack of consideration because it contains many mutual obligations binding upon the respective parties thereto. The plaintiffs do not contend and are not in a position to assert that the provision in the deed which made their rights subject and inferior to the rights under the mining contract was inserted in such instrument by reason of any fraud and misrepresentations made to their grantor at the time the instrument was executed. The plaintiffs rely in part upon'the case of Flick v. Murdock, 115 Kan. 862, 225 Pac. 119. The facts in the cited case are not similar to those in the instant case. The action in the cited case was brought by all the heirs who were also grantees in a deed, and the instrument, under which the grantees claimed, assigned to them the right, to contest a previously executed deed and in effect was a warranty as against the prior deed. In the present case the grantor .confirmed the prior instrument in the deed to the plaintiffs. The distinction between Flick v. Murdock, supra, and this case was in part developed in the case of Westhusin v. Landowners Oil Ass’n, 143 Kan. 404, 55 P. 2d 406, from which the following is quoted:
“A contention, based on the decision in the case of Flick v. Murdock, 115 Kan. 862, 225 Pac. 119, that plaintiffs purchased from Collins privilege to avoid the royalty deed, is without merit. Plaintiffs purchased with notice and with actual knowledge of the royalty deed. They got what their deed granted to them, which included the land, a share of rental and royalty, determinable by taking into account the royalty deed, and benefits under the royalty deed.” (p. 408.)
In the present case the plaintiffs apparently have been accepting the benefits 'arising from the operation of' the property under the contract. Whether they are estopped thereby to assert that the contract was invalid we need not decide.’' They do not contend in the present case that all payments due them in compliance with the provisions of the contract have not been made. To the contrary, they seek to assert that they should have received the royalty payments upon a different and higher percentage than that provided in the contract to which their.rights were subject. There is no merit to the contention in the existing circumstances.
The allegations in the petition pertaining to the defendant, The Eagle-Picher Mining & Smelting Company, having improperly suspended mining operations at a time when the involved property could have been operated with profit to such defendant and consequent gain by the plaintiffs also prove to be without merit because the second amended petition does not set forth a cause of action predicated upon a breach of the contract. Such contract provides that “mining or milling shall be carried on in good faith continuously and shall not be suspended at any time to exceed ten days in any one calendar month without the written permission of the lessors.” The lessors named in the contract were C. G. Lennan and her husband, T. F. Lennan. The plaintiffs’ predecessor in title, Chubb, was not a lessor and was not given the privilege under the- provisions of the contract to demand that the operators of the property continue to produce minerals from it. Moreover, the contract provided that the operators should not be obliged to mine or operate when either lead or zinc concentrates were worth in the Joplin market less than thirty dollars per ton. The petition does not allege that the lessors named in the -contract have objected to such suspension of operations thereunder or have not given written permission and does not allege that either lead or zinc concentrates were worth at the time the suspension occurred more than thirty dollars per ton in the Joplin market. Obviously, such allegations were not made because of the fundamental reason that the plaintiffs are not seeking to recover under the contract. They acquired no right under the conveyance made to them to require any of the defendants named in this action to continue operation of the property. Therefore, the petition does not state a cause of action in favor of the plaintiffs arising by reason of the suspension of operations. Many other contentions pertaining to the sufficiency of the allegations of fraud, laches and estoppel are asserted by the defendants in support of the demurrers. For the reasons given it is unnecessary that they be given consideration.
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The opinion of the court was delivered by
Smith, J.:
This is an action for damages alleged to have been incurred when a truck driven by defendant’s agent collided with an automobile being driven by plaintiff at a street intersection. Judgment was for defendant, sustaining his demurrer to plaintiff’s evidence on the ground that it showed plaintiff to be guilty of contributory negligence as a matter of law. Plaintiff has appealed.
Plaintiff was the only witness as to the facts and circumstances surrounding the collision. He was driving south on Emporia street on December 4, 1944, at 1 o’clock in the afternoon. He was traveling about nine or ten miles per hour. Defendant’s truck was traveling east on Third street in the center of the’ street moving between twenty-five and forty miles an hour. The two vehicles collided at the intersection. The front fender of defendant’s truck hit plaintiff’s car in the middle of the right side. The above is substantially all the testimony of plaintiff on direct examination. On cross-examination he testified that he looked west as he approached Third street and that he did not enter the intersection until he had looked west; that when he first saw defendant’s truck approaching he was twenty-five feet from the intersection and defendant’s truck was about in the middle of the block going about twenty-five miles per hour; that he kept watching defendant’s truck and it never did slacken its speed and when plaintiff saw that the truck was going to hit him, he, that is, the plaintiff, slackened his speed. While no witness testified to it we should note here that all parties agree that the city blocks in Wichita are 300 feet long, so the testimony that the truck was in the middle of the block when plaintiff first saw it would put it about 150 feet from the intersection. On further cross-examination plaintiff testified that he did not stop his car because he hardly knew what to do but that he slowed up and tried to avoid the collision. He then testified in answer to a question by counsel for defendant that if he had speeded up he would have missed the truck but that he figured the driver of the truck would slow up so he could get across. He further testified, as follows:
“Q. If you had figured you had plenty of time to get across why did you slow up? A. I seen there was an accident going to happen and I didn’t know what to do, as far as that is concerned. When I looked and seen he wasn’t slackening speed was when I first saw an accident was going to happen. I was then in the center of the intersection. That is where he hit me. That is the first time I know ah accident was going to happen, but prior to that I slowed up, I always do that at an intersection.
“Q. You didn’t slow up when you crossed there because you thought he was coming too fast? A. He was coming fast, yes, sir, that is right. It was an enclosed mail truck with a cab on the front, too.
“Q. But you could have stopped there and let him go on through. A. If I had stopped I wouldn’t have been hit.
“Q. But you thought you could beat him across? A. I didn’t try to beat him across.
“Q. But you said a minute ago you thought you could beat him across? A. I figured I had the right of way and time enough to go on across.”
On redirect examination he testified that his car entered the intersection first and the truck was about two lengths of a car back; that the driver of the 'truck tended to confuse him and he had only about one second to act. On recross-examination he testified that he could have jammed on his brakes just before he entered the intersection and avoided the collision. On redirect examination plaintiff testified that if the driver of the truck had slowed up plaintiff would not have been hit; that when the driver of the truck saw he was going to hit plaintiff he turned a little to the right or south.
To this undisputed evidence the court sustained a demurrer on the ground that it showed plaintiff to be guilty of contributory negligence as a matter of law.
At the outset it should be stated that in consideration of a de murrer to the plaintiff’s evidence we not only take the evidence of plaintiff as true but also draw all inferences and conclusions from the surrounding facts and circumstances favorable to the plaintiff. (See James v. Grigsby, 114 Kan. 627, 220 Pac. 267.) Where a reasonable conclusion from the established facts and circumstances may be drawn favorable to plaintiff’s case, the demurrer should be overruled notwithstanding that a reasonable conclusion might be drawn in favor of the defendant. Where reasonable minds might differ as to the conclusion or inference to be drawn from the surrounding facts and circumstances, the conclusion or inference favorable to plaintiff should be drawn on consideration of a demurrer to the evidence. In order for the evidence of plaintiff to be demurrable the only reasonable conclusion to be drawn from it must be in favor of the defendant. (See Towell v. Staley, 161 Kan. 127, 166 P. 2d 577.)
Defendant concedes this to be the rule but argues that the testimony of plaintiff brought the case within the rule laid down by us in Ray v. Allen, 159 Kan. 167, 152 P. 2d 851. That was a case of a collision of two cars at an intersection. The trial court sustained defendants’ demurrer to plaintiff’s evidence and the plaintiff appealed. We summed up the plaintiff’s evidence, as follows:
“He testified he was driving south on the street and as he approached the intersection where the collision occurred he slowed down to twelve .or fifteen miles per hour and looked both ways and 'saw defendants’ truck coming from the west about 150 feet away. He stated he could have stopped his automobile at that time in five feet. He continued on and the truck struck his right side. He further testified when he first saw the defendants’ truck he didn’t judge its speed nor make any effort to' do so, and he had no idea of its speed until immediately prior to the collision; that ‘I could have stopped but why should I stop when the right of way was mine’; that if he had observed the speed of the truck he could have stopped before he entered the intersection. He testified that the truck was traveling about forty-five miles an hour when it struck him.” (p. 168.)
We examined that evidence and held that the facts were not such that the minds of reasonable men might differ as to whether plaintiff was guilty of contributory negligence and that the demurrer was properly sustained.
Defendant argues that in the case at bar as in Ray v. Allen, supra, the plaintiff failed to keep a proper lookout and to govern his action by what he^ must have seen but when he reached the edge of the intersection proceeded across without regard for his own safety.
We have concluded that this record is distinguishable from that one. In the first place, the plaintiff in that case testified, “I could have stopped but why should I stop when the right of way v/as mine.” In this case the plaintiff testified, “I seen there was an accident going to happen and I didn’t know what to do.” In another place he testified that he did not try to beat defendant across the intersection but that he figured he had the right of way and time to go across. The reasonable conclusion to be drawn from the foregoing is that as plaintiff reached the intersection he, in the exercise of his best judgment, reached instantly, thought he could safely cross. He was confronted with the oncoming truck, he could have jammed on his brakes and stopped or he could have speeded up. As events worked out, either one of these courses, but for one circumstance which will be mentioned presently, would have prevented the collision. In the exercise of his judgment, however, plaintiff saw fit to slow up and proceed on across. The fact remains that his course was taken in the exercise of his judgment, however quickly reached. Under such circumstances, he cannot be held guilty of contributory negligence because he chose a course of action of several alternative courses that he thought would avoid the collision. See Ryan v. Atchison, T. & S. F. Rly. Co., 131 Kan. 706, 293 Pac. 763, also, Clark v. Atchison, T. & S. F. Rly. Co., 127 Kan. 1,-272 Pac. 128. In the latter opinion it was said:
“If the engineer had applied the brakes before sounding the warning and a collision had occurred, the defendant might have plausibly contended that if the warning signal had been first given he could have turned aside and have saved himself and his property. There was only a moment for the engineer to consider which was the more prudent course for him to pursue, or, for that matter, for the plaintiff to consider and decide whether to stop, turn aside or drive on. It is well established that a person suddenly confronted with impending danger, without time for deliberation as to which one of two or more acts will be wisest and best, who acts in good faith and takes an action that turns out not to have been the most judicious, cannot be charged with negligence. (Barnhart v. Glycerin Co., 113 Kan. 136, 213 Pac. 663.)
“In the circumstances of the case it cannot well be said that the engineer chose the wrong means to avoid the collision, and at any rate negligence in this emergency cannot be predicated upon the one chosen by the engineer.” (p. 4.)
Eaton v. Salyer, 135 Kan. 411, 10 P. 2d 873, was a case where a pedestrian was injured at an intersection by a negligently operated truck. The defense was contributory negligence. We said:
“In such an emergency while it was the duty of Eaton to exercise diligence to avoid injury, consideration must be given to the sudden danger that arose, and even if Eaton did not choose the wisest and best course in the emergency he is not to blame if there was not time and opportunity for deliberation and the exercise of the best judgment . . .
“Under the facts in the case it cannot be held that Eaton was guilty of contributory negligence as a matter of law. It is clearly a case for the'determination of a jury, and the jury after considering the testimony of the witnesses and the reasonable inferences arising therefrom, have specifically found that Eaton was not guilty of contributory negligence.” (p. 413.)
The plaintiff testified consistently throughout his testimony that he took the course of action he did take as a result of an exercise of his judgment, rather quickly reached, it is true. Under such circumstances we cannot say as a matter of law that reasonable minds would not differ as to whether he was confronted with a sudden unexpected danger and took the course of action he did take in the exercise of his judgment in good faith. Under such circumstances he was not guilty of contributory negligence as a matter of law.
Plaintiff testified that he was driving south as he approached the intersection, his lane of traffic was' on the west side of the street, the defendant’s truck was being driven east, its lane of traffic was on the south side of the street. The collision occurred as plaintiff was in the center of the intersection. Defendant’s truck hit plaintiff’s car about in the middle of the right side. Plaintiff testified that when the driver of defendant’s truck saw he was going to hit plaintiff, he, that is, the driver of the truck, turned to the right or south. Just what the effect of this turn was is a matter that should be argued to the jury. It cannot be- said, however, that it had nothing to do with causing the collision or that plaintiff was obliged to expect such a turn as a matter of law.
The defendant’s demurrer to plaintiff’s evidence should not have been sustained.
The judgment of the trial court is reversed with directions to grant plaintiff a new trial in accordance with the views expressed herein. - | [
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Kaul, J.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the lessor of a restaurant against the lessee to cancel the lease, to recover possession of the leased premises, to recover rentals due and unpaid, for a restraining order, for an accounting, and to recover punitive damages. The plaintiff-appellee, Karnes Enterprises, Inc., is the lessor and owner of the leased premises. The president and principal stockholder of Karnes Enterprises, Inc. is the third party defendant-appellee, Dorrence Karnes. The defendants-appellants are Joe Quan and his wife, Mae Quan, the lessees and operators of the restaurant business.
Most of the essential facts in the case are not in dispute and are as follows: Karnes Enterprises is the corporate owner and operator of the Wheel Motel located in Trego county, Kansas. Located on the Wheel Motel property is a restaurant which has been operated for a number of years under the name of WTieel Restaurant. In April of 1970 Karnes Enterprises leased the restaurant business to the Quans. The lease agreement called for a monthly rental payable to the lessor in an amount equal to ten percent of the gross sales of the restaurant, less sales tax. The gross sales and the rentals to be paid to the lessor have been computed by the Quans from the cash register readings and records of the WTieel restaurant during the period of the lease. In the summer of 1973 Dorrence Karnes discovered in the restaurant’s trash container sales tickets from the restaurant business which apparently had not been run through the restaurant cash register so as to be included in the gross sales. On further investigation Dorrence Karnes discovered that the cash register readings were being “rolled back” so as to reflect a less amount of gross income than was actually received by the Quans. Karnes concluded that the Quans as lessees had falsely reported gross sales to Karnes Enterprises and thus had failed to pay the full rentals owing to the lessor. During the following months of 1973 Karnes continued to collect additional sales tickets from the restaurant trash barrel and obtained additional readings from the restaurant cash register which in the opinion of Karnes confirmed that the Quans had not been reporting all of the gross sales to the lessor, thus denying the lessor rentals which were propedv due. These circumstances brought about the filing of this action by Karnes Enterprises against the Quans.
On February 1, 1974, Karnes Enterprises, Inc. as plaintiff filed this action setting forth in its petition the relationship of the parties, the lease of the restaurant business, and the provisions of the lease which required a monthly rental to the lessor based upon ten percent of the gross sales, less sales tax. The petition alleged that the Quans as lessees had falsely and fraudulently failed to report the true income of the restaurant and thus had failed to pay rentals to the lessor in full. The petition further alleged that because of the fraudulent actions of the defendants the plaintiff had been required to hire accountants to construct the true gross income and rental figures and that plaintiff was entitled to recover judgment against the defendants for at least the sum of $29,857.65 and rentals for all subsequent months until the lease is terminated. It is further alleged that the nonpayment of rentals was intentional and fraudulent and that the plaintiff is entitled to judgment in the sum of $30,000 as punitive damages. The petition prayed for judgment canceling and terminating the lease, possession of the restaurant premises, an accounting of all amounts received by the lessees from cigarette vending machines located on the premises, and a restraining order to prevent the defendants from access to their safety deposit boxes or disposing of their certificates of deposit or savings accounts. At the time the case was filed a restraining order as requested was served upon the Quans. At that time Dorrance Karnes, acting on behalf of Karnes Enterprises, Inc., took possession of the restaurant.
On February 28, 1974, the defendants Quan filed their answer, counterclaim, and third-party petition. In their answer the Quans admitted the lease arrangement but alleged that all sums due as rentals had been paid in full and generally denied that the plaintiff was entitled to any relief. The gist of the Quans’ counterclaim against Karnes Enterprises and the third-party petition against Dorrence Karnes was that there was no reasonable basis for the claim against the Quans; that Karnes Enterprises and Dorrence Karnes in filing the petition had acted wrongfully, willfully, and maliciously, and that Quans should be awarded judgment against Karnes Enterprises and Dorrence Karnes for damages in the total amount of $22,400 for loss of business earnings and denial of access to their property, and punitive damages for their embarrassment and damage to their reputations. Karnes Enterprises and Dorrence Karnes filed pleadings denying these allegations.
In April of 1974 the court denied the Quans’ demand for a jury trial. In January of 1975 a motion filed by the Quans to reconsider the demand for a jury trial was again denied by the trial court. The case then proceeded to trial to the court sitting without a jury. The trial was hotly contested. Each of the parties called as witnesses certified public accountants who attempted to reconstruct the true gross sales of the restaurant business and the rentals due. The accountings were long and complicated. Numerous sales tickets, cash register tapes, sale summary books, schedules of cash register sales, and estimates of gross sales and unpaid rentals for the years 1970 through 1973 were admitted into evidence. It would serve no useful purpose to summarize in this opinion all of the testimony and exhibits which were presented at the trial. Suffice it to say, following final submission of the case the trial court made extensive findings of fact and conclusions of law finding generally in accordance with the claims of the plaintiff Karnes Enterprises. Judgment was granted to the plaintiff on its petition in the total amount of $24,160.44 and against the defendants on their counterclaim and third-party petition. The defendants Quan then perfected their appeal to this court.
On this appeal the Quans do not question the sufficiency of the evidence to support the findings of the trial court. Only two points of claimed error are asserted. The first point involves the right of the Quans to a jury trial. The second point involves the admission into evidence of certain exhibits offered by the plaintiff which the Quans contend were inadmissible hearsay and were admitted without proper foundation. Although he prevailed in the trial court, Dorrence Karnes, as third-party defendant, filed a cross-appeal.
The Quans’ first point on the appeal is that the trial court erred in denying them a jury trial when they were entitled to a trial by jury as a matter of constitutional right. Before considering specifically the facts of this case and the contentions of the parties, it would be helpful to examine the Kansas constitutional provision and the statute governing the right to trial by jury. The right to trial by jury is provided for in Section 5 of the Bill of Rights of the Kansas Constitution which declares:
“§ 5. Trial by jury. The right of trial by jury shall be inviolate.”
K. S. A. 60-238 (a) provides a statutory right to trial by jury.
“60-238. Jury trial of right, (a) Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.”
Prior to the adoption of our present code of civil procedure effective January 1, 1964, the statutory right to trial by jury was governed by G. S. 1949, 60-2903, which provided in substance that:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived
Down through the years this court has in many decisions interpreted the constitutional and statutory provisions and established certain general principles to be followed by the courts in determining whether a party litigant is entitled to trial by jury. We should examine some of these general principles before considering the specific factual circumstances involved in the case now before us. Some of these guiding principles are the following:
(1) The right of trial by jury is a substantial and valuable right. The law favors trial by jury and the right should be carefully guarded against infringement. (Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P. 2d 110.)
(2) The constitutional right to a jury trial guaranteed by Section 5 of the Bill of Rights of the Constitution of the State of Kansas refers to that right as it existed at common law. (Craig v. Hamilton, 213 Kan. 665, 518 P. 2d 539; Hasty v. Pierpont, 146 Kan. 517, 72 P. 2d 69.) Judge Spencer A. Gard in Kansas Code of Civil Procedure, § 60-238, in discussing the repeal of former statute G. S. 1949, 60-2903 and in analyzing K. S. A. 60-238 states as follows:
“There is now no general statute defining what issues are triable to a jury as a matter of right and which are not. That question is determinable on the basis of common law tradition as preserved by the Kansas Constitution, section 5 of the Bill of Rights. See Hasty v. Pierpont, 146 K 517, 72 P 2d 69, which discusses the basic principle that under the common law a party was entitled to a jury if the case was based on legal principles as distinguished from actions in equity. Kansas jurisprudence does not seem to have suffered any loss by the repeal of former section 60-2903.”
(3) At common law and under the Kansas constitutional provision in a suit in equity a party is not entitled to a trial by jury as a matter of right. (Spena v. Goffe, 119 Kan. 831, 241 Pac. 257.)
(4) In determining whether an action is one in equity the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought. (Akins v. Holmes, 89 Kan. 812, 133 Pac. 849; Houston v. Goemann, 99 Kan. 438, 162 Pac. 271; Hasty v. Pierpont, supra; Sutherland v. Sutherland, 187 Kan. 599, 358 P. 2d 776; Hindman v. Shepard, 205 Kan. 207, 468 P. 2d 103.)
(5) The issues raised by the pleadings or as modified by the pretrial order determine the nature of the action, and where the issue is not one justiciable at common law, a jury trial is not available. (Craig v. Hamilton, supra.)
Prior to the adoption of our present code of civil procedure whether or not a party was entitled to a jury trial was determined exclusively from the pleadings. (Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098; Hasty v. Pierpont, supra; McCalester v. National Reserve Life Ins. Co., 151 Kan. 378, 99 P. 2d 758; Nusz v. Nusz, 155 Kan. 699, 127 P. 2d 441; City of Osawatomie v. Slayman, 182 Kan. 770, 323 P. 2d 910; Sutherland v. Sutherland, supra.) The rule which required a consideration of the pleadings alone was appropriate under our former code of civil procedure where the plaintiff was required to plead in his petition all of the facts constituting his cause of action. Under our present code of civil procedure which requires only “notice” or “claim” pleading, the former rule is not as workable from a practical standpoint. This was recognized in Craig v. Hamilton, supra. The rule to be applied today should be one which permits the parties to complete their discovery so that the basic issues involved in the case can be clarified and the essential nature of the action determined at a pretrial conference. It is at that stage of the litigation that the trial court should determine the issue whether a party is entitled to trial by jury as a matter of right.
(6) The substance of the pleadings, not the form of the pleadings, determines the character of an action as equitable or legal in nature. (Estey v. Holdren, supra; Russell v. Bovard, 153 Kan. 729, 113 P. 2d 1064; Cloonan v. Goodrich, 161 Kan. 280, 167 P. 2d 303; City of Osawatomie v. Slayman, supra.) The fact that the plaintiff prays for a money judgment only is not controlling where the action is essentially one in equity. (Sipe v. Taylor, 133 Kan. 449, 300 Pac. 1076.)
(7) Where a court of equity obtains jurisdiction of an action for the purpose of granting some distinctively equitable relief, the court will take jurisdiction for all purposes and determine all issues in the case so that a full, effective, and determinative decree adjusting the rights of the parties may be entered and enforced. (Seibert and Lykins v. Thompson, 8 Kan. 65; Martin v. Martin, 44 Kan. 295, 24 Pac. 418; Sanders v. Visser, 165 Kan. 336, 194 P. 2d 511; Place v. Place, 207 Kan. 734, 486 P. 2d 1354.)
These basic principles have been applied throughout our judicial history. Some of the specific types of actions held to be equitable in nature are the following: quiet title actions, Farmers State Bank v. Lanning, 162 Kan. 95, 174 P. 2d 69; actions for specific performance, Akins v. Holmes, supra; cancellation of a lease, Runyan v. Bangs, 167 Kan. 691, 208 P. 2d 600; creation of a resulting trust with an accounting, Sipe v. Taylor, supra; actions to determine the priority of mortgages and other liens, for an accounting, and to impress liens on real estate, Fisher v. Rakestraw et al., 117 Kan. 441, 232 Pac. 605; bastardy proceedings, The State, ex rel., v. Herbert, 96 Kan. 490, 152 Pac. 667; and foreclosure of mortgages, Federal Land Bank v. Butz, 156 Kan. 662, 135 P. 2d 883.)
Cases involving requests for an accounting have caused the courts some difficulty. Prior to the pretrial discovery procedures authorized by our present code of civil procedure, in actions to recover a money judgment where the accounting requested was not complicated and was only incidental to the action on the contract this court has required trial by jury. (McCalester v. National Reserve Life Ins. Co, supra; Cloonan v. Goodrich, supra.) Where, however, the action is primarily one for an accounting and the determination of the factual issues in the case requires a close examination and reconstruction of complicated accounts, the action has usually been determined to be one in equity in which trial by jury is not a matter of right. (Culbertson v. Cement Co., 87 Kan. 529, 125 Pac. 81.) In each instance this court has considered the essential nature of the action to determine whether or not it is one grounded on equitable rights or is one in which equitable relief is sought. (In re Estate of Johnson, 176 Kan. 339, 270 P. 2d 293; Estey v. Holdren, supra.)
The central issue presented on this appeal is whether the claim of Karnes Enterprises against Mr. and Mrs. Quan is essentially one for equitable relief as the plaintiff contends and as the trial court found, or whether it is one essentially at law for breach of contract as the Quans contend. To determine this issue the trial court was required to examine the pleadings and the fundamental issues raised at the pretrial conference. We have concluded that the trial court did not err in holding that the action was essentially one in equity and that the defendants Quan were not entitled to trial by jury as a matter of right.
Although no Kansas cases directly in point have been brought to our attention, the cases from other jurisdictions support the legal principle that where a lessor is entitled to rent based upon a percentage of the gross sales or profits of the lessee’s business, the lessor is entitled to an accounting from the lessee where a dispute arises as to the correctness of the statement of sales or profits submitted by the lessee to the lessor. Typical cases which recognize this rule are the following: Realty Associates Sec. Corp. v. Whitman Hotel Corp., 84 N. Y. S. 2d 878 (1948); Sweeney v. Happy Valley, Inc., 18 Utah 2d 113, 417 P. 2d 126 (1966); Vess v. Fred Astaire Dance Studios Corporation, 229 F. 2d 892 ( 5th Cir. 1956); H. B. Zachry Co. v. Terry, 195 F. 2d 185 (5th Cir. 1952); Blake v. Amreihn, 67 Ohio App. 201, 36 N. E 2d 797 (1941); Armstrong v. Gill, 392 P. 2d 737 (Okla. 1964); Collesion v. Collesion, 2 Misc. 2d 10, 154 N. Y. S. 2d 345 (1955). We believe the rule is sound and should be followed in this state.
In this case the petition filed by Karnes Enterprises sought relief not only by way of money judgment but also types of relief which were essentially equitable in nature. At the time the case was filed the Quans were in possession of the restaurant premises. The petition prayed for cancellation of the lease and restoration of the property to the lessor. In addition the plaintiff specifically asked for an accounting of all amounts received by the Quans from the vending machines located on the restaurant premises. It should also be noted that in its demand for a money judgment for rentals due and unpaid the plaintiff requested judgment against the Quans in the sum of $29,857.65 “together with any additional sums Plaintiff may be entitled to from Defendants as rentals . . .” It is obvious that the specific sum mentioned was the minimum estimate of what the plaintiff believed was owed to it by the Quans. When we consider the substance of the allegations set forth in the petition, we arrive at the inescapable conclusion that Karnes Enterprises, Inc. is seeking a full accounting of the gross receipts received by the restaurant business during the period the Quans operated the same. Considering the pleadings, the relationship of the parties, and the contentions of the parties in our judgment the district court did not err in denying to the defendants Quan a trial by jury. The essential nature of the action was one for an accounting grounded on equitable rights, and clearly one in which equitable relief was sought. Since the action was one in equity, the court properly proceeded to determine all issues in the case so as to render complete and final relief to the parties in the controversy.
The second point in the appeal of the Quans is that the trial court erred in admitting into evidence plaintiffs exhibits 1 through 13, because such exhibits were hearsay and no proper foundation was laid for their admission. Exhibits 1 through 6 were a collection of meal tickets which Dorrence Karnes had retrieved from the restaurant trash container over a six-month period in 1973. It is the Quans’ position that no evidence was introduced as to who prepared the meal tickets, when they were prepared, and the accuracy of them. We disagree. The Quans stipulated that it was the practice of the defendant, Mae Quan or the Quans’ employees to throw daily sales tickets into the trash container located in the area of the Wheel restaurant. Dorrence Karnes was familiar with the method used in preparing the meal tickets. A meal order was customarily written on the ticket and a total price noted. The ticket was then supposed to be placed in a slot in the cash register and an imprint of the same figure would be mechanically printed on the meal ticket. The tickets were customarily thrown away at the end of each day. This was done because the record of the sale should have been shown on the cash register tape; the meal ticket would then no longer be required. A witness in the employ of the Quans also testified as to this procedure. We hold that sufficient foundation was laid for the admission of exhibits 1 through 6. Under the evidence they were obviously prepared by either the Quans or their employees. Although some of the tickets may have been discarded and possibly subject to error, the weight of such evidence was for the trier of fact to determine. It should be emphasized that many of these meal tickets did not have on them the imprint of the cash register which tended to show that sales were being made at the restaurant which were not properly recorded in the cash register. Such evidence was highly relevant under the issues presented in the pleadings.
Exhibits 7 through 13 were cash register tapes reflecting readings taken from the cash register by Dorrence Karnes during the same period of time the meal tickets were being removed from the trash container. The cash register tapes were clearly admissible. All sales at the restaurant were to be entered on the cash register. There was testimony indicating that the cash register was geared to keep a running total. Dorrence Karnes testified as to the method used to obtain the cash register tapes in order to determine the accuracy of gross sales as shown by the cash register. Under the circumstances of the case there really was no other method by which the contentions of Kames Enterprises, Inc. could be proved. The Quans had full opportunity to rebut this testimony and we find no error in its admission.
In view of our disposition of this case on the appeal the issues raised in the cross-appeal are moot and it is not necessary to determine the same.
For the reasons set forth above the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
In this action the plaintiffs seek to recover a commission for the sale of personal property and real estate owned by some of the parties defendant. The appeal is from rulings of the trial court sustaining demurrers to the. petition.
The petition is lengthy and in such form it cannot be easily summarized. For that reason, and in order that there can be no doubt as to the issues presented for determination on appeal, or confusion with respect to their decision, we attach a copy thereof to this opinion as an appendix, where its allegations will be available for ready reference.
To the petition as filed the defendants, Buckler and Rainbolt, filed separate but similar demurrers on grounds (1) that it failed to state facts sufficient to constitute a cause of action, and (2) that several causes of action were improperly joined therein. No service was obtained on- defendant Pepper, and no appearance was made by him or pleadings filed on his behalf.
The certified copy of the journal entry of judgment on file in the office of the clerk of this court reveals the trial court sustained each demurrer generally without specifying the reasons for its decision. Therefore, if its ruling on either of the two grounds set forth in each demurrer is correct its judgment must be affirmed.
First, for reasons presently to be disclosed, we give consideration to the question of whether the petition states a cause of action against any defendant.
When the petition is carefully examined it becomes apparent the appellants have attempted to plead three causes of action. One on contract against defendants Pepper and Buckler, another for vio lation of an oral agreement made by thém with the defendant Rain-bolt, and a third against all defendants for conspiracy to defraud. Allegations with respect to each .such claimed cause of action will' be found in the appendix and there is no occasion for repeating them here.
With regard to averments of the petition pertaining to a' conspiracy to defraud we have no difficulty in concluding they fail to set forth sufficient facts to constitute a cause of action against the three defendants to which they have reference. Nowhere do appellants set forth the acts, conduct of the parties, or the facts and circumstances relied on by them as the basis for their claim in that respect. The books are full of decisions holding that mere general averments of fraud and illegality, without stating the facts upon which the charge is predicated, present no issue, and are demurrable for insufficiency (Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985; Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136; Hardesty v. Hardesty, 150 Kan. 271, 92 P. 2d 49; Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847 and Smith v. Bridgeport Machine Co., 151 Kan. 444, 446, 100 P. 2d 65). Here the allegations of conspiracy and fraud are of the most general character and based solely upon speculation and conjecture.
Likewise, we have little difficulty in deciding the petition fails to state a cause of action against appellee Rainbolt. In the first place appellants do not allege, even by inference, he is indebted to them for the commission under the terms of their oral contract or ask to recover anything from him, but on the contrary seek to recover such commission from appellee Buckler and defendant Pepper. In the next, in its present form, if construed as an attempt to state a cause of action against such appellee ex contractu and obtain a judgment against him for an amount claimed to be due them from him, the action is premature. Under other allegations of th.e petition, setting forth the substance of the contract and conceding Rainbolt had received nothing as a result of it, any cause of action they might acquire against him would not accrue until such time as he received the commission and it became subject to division in accordance with the terms and conditions of the agreement.
More difficult of decision is the question of whether the petition states a cause of action against appellee Buckler.
The legal principles applicable to determination of sufficiency of a pleading on demurrer are so well established by our decisions as to hardly require restatement. They are well defined in Downey v. Phillips, 137 Kan. 362, 20 P. 2d 453, where it was held:
. “Where a demurrer is filed to a petition on the ground that it does not state a cause of action, without first presenting a motion to have the allegations of the petition made more definite and certain, the allegations of such petition will be liberally construed in favor of the pleader.
“A petition containing the necessary allegations to advise the defendant of the claim against him and of the relief demanded is good on demurrer although stated in an awkward and unskillful manner.” (Syl. MI 1, 2.)
See, also, Owens v. Deutch, 156 Kan. 779, 137 P. 2d. 181, and cases there cited, to the same effect.
When tested by the foregoing rules we believe a careful analysis of the second, third, fourth, fifth, sixth, seventh, and ninth paragraphs of the fourth subdivision of the petition as it appears in the appendix compels the conclusion a cause of action is stated as to Buckler. There, by giving them the benefit of all inferences to which they are entitled, are to be found allegations of fact which, if they can be established by competent evidence, would entitle the appellants to recover the commission claimed to be due them, including averments to the effect that appellants were the procuring cause of the sale for which a commission was to be paid.
In this jurisdiction a real-estate agent is entitled to recover his commission for the sale of land if under contract with the owner thereof he has been the procuring cause of the sale, even though he did not personally conduct it to its final and successful conclusion. For early decisions announcing such doctrine, see Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104, and cases there listed.
Each appellee, although refusing to concede the petition states a cause of action, bases his principal and most strenuous argument upon the proposition the petition discloses a misjoinder of causes of action and that, therefore, the trial court’s judgment must be affirmed. They point to G. S. 1935, 60-601, providing that causes of action joined in a petition must affect all the parties to the action, and direct our attention to Cole v. Thacker, 158 Kan. 242, 248, 146 P. 2d 665, and cases therein referred to, where it was said “this court has repeatedly held that where causes of action are united and do not affect all parties to the action, and do not come within the exception specifically mentioned in the statute, a demurrer to the petition on the ground of misjoinder of causes of action will be sustained.” Quite true. And perhaps it should be here stated that we do not for one moment recede from what is held in that and many of our other decisions to the same effect. Perhaps, also, we should add that had the petition, in form as hereto attached, stated two or more causes of action we would be in entire accord with appellee’s claim of misjoinder.
The legal proposition recognized by our statute (G. S. 1935, 60-705, fourth) and our decisions, that misjoinder of causes of action constitutes a ground for demurrer .presupposes that a pleading contains two or more causes of action and is never applicable when that pleading contains — as here — -a single cause of action.
That what has just been stated is the general rule is, evidenced by statements to be found in well-recognized legal treatises. See 1 C. J. S. 1184, § 63, where it is said: >
“The question of the joinder of causes of action involves in particular cases a preliminary inquiry as to whether two or more causes of action are stated, for obviously there can be no question of joinder or misjoinder of causes if the complaint states but a single cause of action, or no cause of action at all, ...”
Also 1 Am. Jur. 457, § 67, which reads:
“In determining whether a pleading is open to attack on the ground of misjoinder of causes of action, one must first determine' whether more than one cause of action is stated, for when the plaintiff’s pleading states but one cause of action, it is obvious that there can be no misjoinder of causes of action; moreover, a futile attempt to state a second cause of action does not, according to most decisions, render the pleading open to attack for misjoinder.”
And that the general rule is followed in this jurisdiction is definitely indicated in our own case of Campbell v. Durant, 110 Kan. 30, 202 Pac. 84, where it was held:
“Where certain causes of action are ruled out on demurrer thereto, and only one cause' of action remains, the latter is not necessarily defective for misjoinder with the causes which had already succumbed to the demurrer.”’ (Syl. f[5.)
And said:
“Since the first four causes of action which plaintiffs attempted to state were all disposed of on demurrer there can be no valid objection to the fifth cause of action on the ground of misjoinder.” (p. 35.)
The trial court erred in holding the petition failed to state a cause of action ex contractu against Buckler. To that extent its judgment is reversed with instructions to overrule ’his demurrer. Otherwise the judgment is affirmed.
APPENDIX
Plaintiff for his cause of action against the defendants hereinabove named says:
1. That the correct postoffice address and place of residence is as follows:
Cecil Jones, Eureka, Kansas.
Harry Webb, Toronto, Kansas.
2. That the addresses of the defendants known to us are as follows:
Joseph E. Pepper, Denver, Colorado.
Henry N. Rainbolt,
Claud V. Buckler, [sic] Eureka, Kansas.
3. That said Joseph E. Pepper and said Henry B. Rainbolt are parties defendant and plaintiff in a certain action pending in the District Court of Greenwood County, Kansas, and undetermined, same being Case No. 17,887, said action being brought by plaintiff therein. Henry N. Rainbolt, against said Pepper for recovery of a real estate commission claimed by said plaintiff to be due them or [sic] the claimed and alleged sale of real estate, royalty interests, and personal properties more particularly set out in said petition so filed therein, which are the same referred to for the purpose of identity only.
That said plaintiffs herein filed leave to intervene in said cause and such right was by the District Court denied, and this action is brought for the recovery of the commission for the sale of said identical properly and claim to be entitled to an interest therein and thereto. (
4. That the plaintiffs do not know and cannot state what the facts are as to the real owners of the property mentioned and described in said action, and which are hereinafter more particularly mentioned, but on information and belief alleged the facts as follows:
That the said Joseph E. Pepper and Claud Y. Buckler, [sic] defendants herein, were at the time hereinafter mentioned, associated together in a partnership known as the “PRODUCERS SUPPLY CO.,” of Eureka, Kansas. That each of them were in the early'spring of 1945 and ever since said time up to the time of the sale of said properties as hereinafter set out, were the owners of the physical properties of said PRODUCERS SUPPLY CO., consisting of various chattels consisting of oil and gas royalty interests, leases and leaseholds, rights and equipment, drilling apparatus and equipment used and useful in the development of oil producing properties, pumping same and storing same for commercial use, same being the identical properties mentioned and referred to in the petition filed by the said Rainbolt in said action brought by them against the said Pepper and which same is again referred [sic] to for the purpose of identity of the chattels and properties so owned by said defendants, Pepper and Buckler.
That in addition to the interest owned by the' said Buckler in said properties, that said Buckler was the managing officer in charge of the supervision and control of said business with authority vested in him by the said Pepper to handle and dispose of said properties upon tei’ms satisfactory to the said Pepper, the terms of said authority and the extent thereof being unknown to these plaintiffs, BUT peculiarly within the knowledge and information of the said defendants.
That in addition to the authority vested in said Buckler to handle, operate, supervise and manage said properties of said PRODUCERS SUPPLY CO., aforesaid, the said Pepper orally authorized and clothed said Buckler with authority and directions to sell and dispose of all of the physical properties of said Producers Supply Co., in Eureka, Kansas, at a price and on terms to be determined, fixed and agreed upon between the said Pepper and Buckler. That plaintiffs are unable, for want of knowledge of the details of such authority, to state the terms thereof, but same is within the knowledge of said Pepper and Buckler.
Plaintiffs further state that they do not know whether the acts on the part of the said Buckler, as hereinafter set forth, was the act or the acts of said Buckler as part owner or as the agent of the said Pepper, but said Buckler in the handling of said properties of said Producers Supply Co., or was in furtherance of the authority given him by said Pepper to sell and dispose of said properties as hereinafter set forth, and in all dealings had by the said Buckler with the plaintiffs herein of and concerning said properties herein referred to, said Buckler was acting as agent and representative of the said Pepper with full authority to do the things as done by him as more fully set out herein.
That in the spring of 1945, the exact date being to plaintiffs unknown, the said Claud Y. Buckler orally listed said properties of said Producers Supply Co., for sale, and in writing, did furnish these plaintiffs with an itemized statement of all chattels to be offered for sale. A copy of which being hereto attached and marked Exhibit “A” for reference and made a part hereof the same as though set out in full at this place, said listing being with the plaintiff, Cecil Jones. That at the time of said listing said Buckler orally agreed to pay-the said Jones and Webb the fair and reasonable and customary commission for selling the same in the event a buyer was found who was ready and able to buy the same upon such terms satisfactory to the said Buckler.
That after the oral listing of said properties, the said Cecil Jones did interest the plaintiff, Harry Webb, in assisting him to find a buyer of said properties, and thereafter the said Jones and the said Webb did contact the defendant, Henry B. Rainbolt, and arranged with him, the said Rainbolt, to assist them in finding a buyer for the said properties so listed. That at the same time of the contract with the said Rainbolt, another person, to-wit, Edw. Ashlock, contacted and interested in' the finding of a buyer for said properties and as result of such contact so referred to, an agreement was made by said plaintiffs and the said Rainbolt and the said Ashlock, that they would endeavor to find a buyer for the said properties and work and associate together in an effort to find a buyer for said properties so listed with the said Jones, as hereinbefore mentioned with the oral agreement made between them, that if a buyer was found by them or any of them and said properties were sold, they would divide the commission to be paid for such services, share and share alike between these plaintiffs and the said Rainbolt and the said Ashlock.
That in pursuance of said listing and said agreement so made, the said Rainbolt did interest a buyer or prospective buyer for said properties, caused the same to' be shown to the said buyer and did set on foot negotiations for the sale of said properties which culminated in a sale of the said prop erties so orally listed with the said Jones by the said Buckler to the person so fpund by the said Rainbolt, and contract of sale was entered into by the said Pepper and the said buyer and all persons interested therein, by the terms of which said contract, said property was sold at a CONSIDERATION of 141,500.
That plaintiffs do not know the terms of said contract, the details of the same, or by. whom same was signed, and cannot set out a copy thereof, but same is peculiarly within the knowledge of the said defendants and each and all of them.
That by reason of the above and foregoing, the said plaintiffs and their associates were the primary and producing cause of said ■ sale of said properties in finding a person who was ready, willing and able to buy the same upon the terms agreeable and satisfactory to the said defendants, Pepper and Buckler, acting by them and through the said Rainbolt through the agreement made- by them and agreed upon, and by reason thereof the defendants, Joseph E. Pepper and the said Claude V.- Buckler} became and are indebted to these plaintiffs in a sum equal to 5 percent of the purchase 'and sale price of said properties so sold, which sum is the fair and reasonable value for such service, no part of which has been paid.
Plaintiffs further state that, notwithstanding the oral agreement made by them with the said Rainbolt as to the equal division of the commission for the sale of said properties, the said Rainbolt has and does now'refuse to acknowledge his liability to divide said commission with the plaintiffs and the said Ashlock and has attempted, wrongfully and willfully, to defeat the plaintiffs and the said Ashlock out of their just share and proportion of said commission, and did institute the action so brought by him as hereinbefore mentioned against the said Pepper claiming to be the sole owner of said commission and to defeat the plaintiffs in their lawful claim thereto, and ever since the filing of the action, has and does now deny any liability to these plaintiffs and refuses to acknowledge the rights of the plaintiffs therein, all in violation of their agreement so made and the rights of plaintiffs to their share of said commission.
Plaintiffs further state that they do not know the relations or dealings that exist as between the said Pepper and the said Buckler and the said Rainbolt as to the payment of the commission so claimed by them, but verily believe and therefore allege the facts to be that the bringing of the action as filed by the said Rainbolt against the said Pepper is a part of' a plan to cheat, wrong and defraud these plaintiffs of their just share in and to said commission.
That in the event it be determined that said Pepper is the sole owner of the physical properties herein referred to and that the said Buckler has no interest,therein, plaintiff demand judgment against the said Pepper for the. commission by reason of the oral listing of said property by the said Buckler, and that judgment be found and determined that said Buckler at the time of the oral listing of said property was the duly authorized agent of the said Pepper, clothed with authority to do the things done by him with the-said Jones in orally listing the properties and the oral agreement to pay a fair and reasonable commission for same. In the event it be determined that said Pepper and the said Buckler were partners and joint owners of said properties, that judgment be rendered against the said Buckler in the proportionate share as may be found due and owing from him the said Buckler for the. sale of said property here referred to.
That the defendant Pepper and the said Buckler have been advised of the claims on the part of the said plaintiffs to said commission, by the filing of 'the motion and application asking to be permitted to intervene and by oral demand on the said Buckler for payment.
WHEREFORE, plaintiffs pray judgment in the alternative against the said Pepper for the full amount of the commission in said sum equal to five percent of the sale price, to be apportioned one-half to plaintiffs herein, in the event he be determined to be the sole owner of said property so sold, and in the event it be determined that he and the said Buckler were partners and joint owners of said property, that judgment be rendered against the said Pepper and the said Buckler for said commission, and that judgment be decreed that the defendant Rainbolt is not the owner of the entire commission and not entitled to a full share thereof, and if commission be ordered paid, that the same be apportioned among plaintiffs and their associates as herein set forth. And that they recover their costs and have such other and further relief as may be proper.
(Signed) Owen Samuel,
O. C. ZWICKEB,
Attorneys for Plaintiff. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action in replevin for a described automobile. Plaintiff claimed title by virtue of a chattel mortgage dated December 12, 1944, executed by Earl Clarence Holmes. Defendant filed, an affidavit in which he stated that a third party, to wit, Lucille I. Holmes, without collusion with defendant claimed the subject matter of the action; that she had left the automobile in his possession for safe keeping, to be delivered to her upon demand, and asked that she be required to appear in court and maintain or relinquish her claim, and that he was ready to deliver it to whomsoever the court might order. Lucille I. Holmes, by leave of court, filed an interplea in which she alleged that she was the lawful owner of the described automobile and had a certificate of title of ownership, as provided by the laws of Kansas, and further alleged that on December 12, 1944, she was the .lawful wife of Earl Clarence Holmes; that the purported mortgage was given without her knowledge or consent; that the automobile at the time was exempt property; that the mortgage was not signed by her, and that the mortgage was void under our statute (G. S. 1935. 58-312). Plaintiff answered the inter-plea and specifically admitted that the mortgage was not signed by Lucille I. Holmes, but alleged that prior to December 12, 1944, Mr. and Mrs. Holmes had entered into an oral separation agreement in settlement of their property rights, by the terms of which Lucille I. Holmes had relinquished her right, title and interest to the automobile, and that since the death of Earl Clarence Holmes Lucille I. Holmes had by her actions ratified and confirmed said property settlement agreement, and that by virtue of those facts she was barred from claiming any right or title to the automobile. A trial by jury was waived. The.court heard the evidence and made findings of fact and conclusions of law and rendered judgment for the intervenor. Plaintiff has appealed.
The record, discloses that Earl Clarence Holmes and his wife were married September 24, 1936, and had lived together as husband and wife until shortly before the date of the mortgage in question. They moved to Wichita sometime in January, 1944, and Mr. Holmes obtained employment with' the Boeing Aircraft Company. Sometime before the date of the mortgage Mrs. Holmes had entered the army service of the United States as a WAC, and the parties, by agreement, had' divided their property, which appears to have consisted only of household goods, an automobile and their personal effects. That was the situation' when the mortgage was given. On the date of the mortgage the automobile was being used by Mr. Holmes in his business. He went to the plaintiff bank, wanted to borrow $1,100, and secure it by a mortgage on the automobile. In answer to questions he told the manager of the bank that he was married, but separated from his wife. He was told that his wife would have to sign the mortgage and was asked if it could not be sent to her for her signature. He replied that 'he did not know her address. He told the bank he was employed by the Boeing firm, had been for about a year, held a position as foreman, and was drawing $580 per month. The bank made the loan and the mortgage was signed by Mr. Holmes only. On the same date, or shortly before, he went to a firm of attorneys in Wichita and had them prepare for him a petition in an action for divorce against his wife, which petition was not to be filed until he had completed a year’s residence in Kansas. That petition alleged that he and Mrs. Holmes were husband and wife, stated statutory grounds for divorce, that no children had been born to them, and that they had previously adjusted their property rights and had liquidated all their property, with the exception that plaintiff owned a described automobile, which was his sole property, and that defendant owned certain other property. The prayer was for a judgment for divorce and that the automobile be set aside to plaintiff as his sole property. On December 12, 1944, the attorney sent a copy of the divorce petition to “Pvt. Lucille Holmes, A712560, Co. 5, Third Regt. Army Post Branch, Ft. Des Moines, Iowa,” together with an entry of appearance and the form of a suggested decree that the court would be asked to approve. Mrs. Holmes was asked to sign the entry of appearance as of a date not earlier than January 10, 1945, and return it to’ Mr. Holmes’ attorney, and she was requested to make any inquiries, if she desired to do so, concerning the matter. She replied by letter, the date of which is not shown in the abstract, and asked for information concerning some of the provisions of the proposed decree, and retained the entry of appearance until she could learn further about the matter. The entry of appearance was never signed by Mrs. Holmes, the petition for divorce was never filed, and of course no decree of divorce was issued.
Mr. Holmes died about January 16, 1945. There was no administration upon his estate. Mrs. Holmes came to Wichita and was there several days. About January 20 or 21 she had learned something of the mortgage on the automobile and went to the plaintiff to inquire about the amount of it, and talked about selling it and getting her equity out of it. On January 22 she made applica tion to have the title of the automobile changed to her name and made an affidavit reciting the death of Mr. Holmes, that no probate proceedings had been had upon his estate for the reason that none was necessary; that Mr. Holmes at the time of his death was the owner of the described automobile and had a certificate of title thereto; that he left surviving him Lucille I. Holmes as his only heir at law; that she was his surviving spouse and as such claimed title to the vehicle under G. S. 1945 Supp. 59-503, and asked to have the certificate of title changed to her name. This was done. Apparently she left the automobile with defendant herein for safe keeping until she asked for it.
The above general statement is taken from the trial court’s findings of' fact and from exhibits shown in the record. Mrs. Holmes was not present at' the trial, being unable to get a leave of absence.
From this evidence the trial court concluded that the property settlement agreement between Mr. Holmes and his wife was fully executed by both parties; that the automobile in question was exempt property, and that the mortgage executed by Mr. Holmes on December 12, 1944, was invalid and in violation of G. S. 1935, 58-312. Judgment was rendered accordingly.
We think the trial court was correct. The statute in question (G. S. 1935, 58-312) reads:
“It shall be unlawful for either husband or wife (where that relation exists) to create any lien, by chattel mortgage or otherwise, upon any personal property owned by either or both of them, and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other process issued from any court in this state, without the joint consent of both husband and wife; and from and after the time when this act shall take effect no such mortgage of personal property shall be valid unless executed by both husband and wife: Provided, That this act shall not be construed to invalidate any such mortgage or other lien except so far as relates to the exempt property covered thereby.”
In its present form its effective date was May 1,1901.
Appellant argues that Mr. Holmes had a right, on December 12, 1944, to mortgage the property as his own in view of the oral property settlement previously made between him and his wife. The record does not sustain that view. It is nowhere suggested in this record that either of the parties to it agreed to give up the right to inherit property from the other; and in the petition for divorce, prepared not later than the date of the mortgage, Mr. Holmes was seeking an adjudication in a suit to be filed in about a month that the automobile was his sole separate property. More than that, the statute applies to exempt personal property without regard to whether the title is in the name of the husband or of the wife.
Appellant cites authorities to the effect that a court of equity may enforce .an oral contract for division of property and that “valid” agreements for a division of property cannot be set aside on the death of either of the. parties. The authorities are n.ot in point. This is not a suit in equity between the parties to the agreement for its enforcement. More accurately speaking, it is an action at law; and there was no agreement, either valid or otherwise, respecting inheritance of one from the other.
Upon the question of appellee’s estoppel by reason of her talk' after the death of her husband with plaintiff’s officials, appellant cites and relies heavily upon the case of Hess-Harrington, Inc. v. State Exchange Bank, 155 Kan. 118, 122 P. 2d 739. The facts are so different that the case is not helpful to appellant. In that case one Moncrieff and his wife were residents of Kansas City, Mo., on April 4, 1939. On that date Moncrieff gave the plaintiff, a finance company of Kansas City, Mo., a mortgage upon a described automobile. His wife did not sign the mortgage. In August of that year Moncrieff and his wife moved to Woodson county, Kansas, where he conducted a retail .shoe store. In June, 1940, he applied to the defendant bank of Yates Center for a loan on his car, representing it to bé free of encumbrances. The bank examined the records of Woodson county and found no mortgage against the car. It made the loan. Moncrieff made some payments both to the plaintiff and to the defendant. In October, 1940, Moncrieff went to Kansas City and executed a new note for the balance due plaintiff and a new mortgage, which was not signed by his wife. This mortgage was duly recorded in Woodson county in November, 1940. Within a few months thereafter Moncrieff and his wife went to the defendant bank, told its officers they could not pay the balance due to the bank, delivered the car to them and turned over the keys to the car, with instructions for the bank to sell the car and retain the balance due it out of the sale price. Moncrieff went into bankruptcy. With the situation in that shape the Missouri Finance Corporation brought a replevin action against the bank at Yates Center. Neither Moncrieff nor his wife was a party to the action. It 'was.tried upon the theory that the pertinent statutes of Missouri were the same as those of Kansas. The question before the court was the priority of liens. The trial court resolved that in favor of the bank at Yates Center. We affirmed it. Under the pleadings and evidence perhaps it was not necessary for this court to refer to or interpret our statute (G. S. 1935, 58-312), but the court did so and said in effect the statute required only joint consent. “It does not in words require the wife to sign mortgages on the husband’s exempt property.” (p. 123.) A paragraph of the syllabus embodied that view. Clearly, the statement was inaccurate, as a reading of the statute shows. The invalidity of any of the mortgages because the mortgagor’s wife did not sign the same was not raised in any of the pleadings. The question appears never’to have been presented to the trial court or ruled upon by it, and appellant did not assign it as one of the specifications of error, but it was briefly mentioned in appellant's brief. Perhaps the court was lulled into a cursory examination of the statute in view of the fact that counsel did not deem it important in the determination of the .case. But whatever the reason was, the statement in the opinion above quoted, and the paragraph of the syllabus upon that point, are inaccurate and are therefore disapproved.
We find no error in the record. The judgment of the court below is affirmed.
Burch, J., not participating. | [
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The opinion of the court was delivered by '
Harvey, C. J.:
Plaintiff brought this action for damages for personal injuries she sustained and damages to her automobile resulting from a collison of motor vehicles alleged to have resulted from defendant’s .negligence. The jury answered special questions and returned a verdict for plaintiff for $20,000, upon which judgment was rendered. Defendant has appealed and contends the court erred (1) in refusing to give instructions requested and in the instructions given, (2) in refusing to submit special questions requested, and (3) in overruling a motion for a new trial predicated principally upon the ground that the verdict was the result of passion and prejudice.
The pertinent facts, not seriously controverted, are as follows: In Wichita, Broadway is a north-and-south street paved 48 feet wide. It is intersected at right angles by Kellogg, an east-and-west street paved 31 feet wide. Both carry heavy vehicular traffic. At each corner of the intersection there are traffic lights which show red, then yellow' for three seconds, then green, then yellow, then the change is repeated. Under the city ordinance red means “stop,” yellow “caution” and green “go.” On the morning of January 3, 1945, the day was clear, the pavement dry and not defective.* Plaintiff was driving her Pontiac coach west on Kellogg about 10:30 o’clock in the morning. When she neared the intersection with Broadway the traffic light facing her was red. A car in front of her was waiting for the light to turn green. Plaintiff stopped directly behind that car. When the light turned green both cars moved forward. When the front wheels of plaintiff’s car, moving about 15 miles per hour, were 31 feet into Broadway her car was struck eight feet back of the front, on the left side, by the front part of defendant’s truck. Plaintiff’s car was thrown northward on Broadway, moved in a semicircle, and stopped at a point on the west side of Broadway with its front to the southeast, part way into Kellogg. Plaintiff was thrown from her car and seriously injured. Her car was damaged. Defendant’s milk truck, which weighed 9,800 pounds, loaded with 9,200 pounds of milk gathered at points southwest of Wichita, was being driven north on Broad way by Lloyd Terry, the agent and employee of defendant. The truck had hydraulic brakes, with an air booster that is supposed to work on all wheels. It had no emergency brake. As Terry, driving north on Broadway, neared Kellogg, at about 20 miles per hour, he noticed the green traffic light change to yellow. At about 30 feet from the intersection he applied his brakes, and they did not hold, with the result that he drove straight through the intersection. on the red light,' struck plaintiff’s car, as above stated, and the truck stopped on Broadway soon after it passed the intersection. Terry signed a report of the accident, in which it was stated that he was driving north on Broadway about 15 to 18 miles per hour. “The light had changed red when I came to the intersection and brake did not hold.” He was arrested in the police court, charged with driving without due regard to the use and occupation of the street; that he had run a red light, and that he had defective brakes. He pleaded guilty to each of the charges and was fined $5 on each charge, and paid the fine and court costs.
From .this recital it seems clear the jury and trial court were justified in finding defendant negligent. Indeed, there is no serious contention to the contrary.
Appellant complains that the trial court refused to give appropriate instructions requested. Among the allegations of plaintiff’s petition was one to the effect that “Just before plaintiff started to enter said intersection she observed a large milk tank truck approaching from her left being driven in a northerly direction on Broadway.” This allegation of the petition was specifically admitted in the answer. In her testimony at the trial plaintiff placed her car in the intersection “I imagine as much as 25 feet” when she saw the milk truck approaching. Defendant asked the court to instruct the jury “that it is admitted that just before plaintiff started to enter said intersection (Broadway and Kellogg streets) she observed a large milk tank truck approaching from her left, being driven in a northerly direction on Broadway.” After some argument by counsel the court refused to give the instruction. At most, this is only a variance between the allegations and proof. Defendant had made no objection to plaintiff’s testimony on that point at the time it was presented. In such a situation it has been held (Woodard v. Timms, 113 Kan. 413, 215 Pac. 456) that the variance is waived. Under our statute (G. S. 1935, 60-753) no such variance is deemed material unless it actually misled the adverse party to his prejudice in maintaining an action or defense, and that where a party has been so misled it must be established by proof to the satisfaction of the court. No such proof was tendered. Counsel for plaintiff asked leave to. amend his petition to conform to the proof. This was denied. We think that request might have been granted (G. S. 1935, 60-759), but the refusal to grant it is not a matter of which defendant has complained.
The trial court gave a complete and well-established instruction on the question of contributory negligence. The court also gave the following instructions:
“11. Any person operating a vehicle on a highway or street is bound to use due care and prudence, having regard for the safety of others who may be using the highway or street, and it is incumbent upon every driver to have his or her vehicle under proper control and be on a lookout for others who may be using the highway or street' or about to enter thereon and to use the care and caution of a reasonable, prudent person.
“Such obligation is especially binding upon operators of vehicles as they approach intersections of highways or streets and each operator is bound by law to observe and heed all regularly established traffic warning signs and signals.
“12. You are further instructed that the laws of Kansas do not recognize •comparative negligence and in -the event that one party' is clearly at fault and the other party is only slightly at fault, in the event that the fault of both contributed to and was one of the proximate causes of the resulting collision you are instructed that neither can recover from the other.
“16. If the traffic light had changed to-green before the plaintiff entered the intersection, she had a right to assume that the defendant’s truck would stop before entering the intersection from the south.
“17. You are further instructed that it is the duty of every person to exercise such care for her own safety as an ordinarily prudent person would exercise under the same or similar circumstances; and if you find that the plaintiff failed to exercise such ordinary care for her own safety and such failure was the proximate or a contributing cause of the resulting accident, injury, and loss to the plaintiff, then you are instructed that the plaintiff cannot recover.”
' Defendant asked the court to add to instruction 16 the following:
“Unless at that time she was aware of, or in the exercise of ordinary prudence, could and should have been aware of facts and circumstances which made her entry under those circumstances dangerous.”
The court declined that request, and we think properly so, the ■subject being fully covered by the instructions given.
" The jury was asked special questions and answered them as .follows:
“1. At what speed was . the defendant’s truck proceeding at the time the signal light facing south on Broadway turned from green to amber? A. Approx. 20 miles.
“2. Approximately how far south of the intersection was the defendant’s truck when the traffic light facing south on Broadway turned from green to amber? A. 150 feet.
“3. If plaintiff’s car was stopped before she entered the intersection, did it appear to her, acting as a reasonable, prudent person, to be reasonably safe for her to start forward and enter the intersection at the time she did so, under the conditions then existing? A. Yes.
“4. If your verdict is for the plaintiff, state the amount you allow plaintiff for—
(a) Medical expenses, including hospital and doctor fees? ......................................... A. $1,760.00
(b) Pain and suffering? .......................... A. $9,044.00
(c) Permanent injuries ........................... A. $9,044.00
(d) Repairs to automobile? ....................... A. $152.00
“5. What if any negligence do you find against the defendant? A. Running red light, no brakes, no emergency brakes, careless driving.
“6. What if any negligence do you- find against the plaintiff? A. None.”
Appellant complains that the court did not give all of its special questions requested. Defendant requested seven questions, con-taining in the aggregate subdivisions, making the total thirteen. The court gave four of those, with subdivisions, making seven. Some of those given were worded slightly different from the corresponding questions requested, but appellant makes no complaint of that. The court added two questions, 5 and 6 submitted. The record does not disclose by whom they were requested, but no complaint is made of their submission. After the court had the questions' formulated counsel for defendant objected to the refusal of the court to give two of its requested questions. One was: “Did defendant’s driver immediately attempt to apply his brakes.when the light changed from green to yellow?” Defendant’s driver tes-, tiffed that he did so. There was no testimony to the contrary, hence there was no issue on that matter for the jury to decide. More than that, since the brakes were not working the fact was immaterial. The other question was: “Did the brakes on defendant’s truck work prior to the time when he approached the intersection of Kellogg and Broadway?” Defendant’s witness had testified the brakes had worked prior to that time. There was no testimony contradicting that, hence there was no issue on that question. More than that, it was immaterial whether the brakes had worked or not prior' to that time. We conclude it was not error for the court to refuse to submit those questions.
Appellant argues that under the statute (G. S. 1935, 60-2918) defendant had a right to submit ten questions, citing A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722, and Gates v. Western Casualty & Surety Co., 153 Kan. 469, 112 P. 2d 106. This is true, of course, if the questions are on any controverted fact, and material, and if they are of a type that there is evidence from which the jury can answer them. (See Snyder v. Eriksen, 109 Kan. 314 syl. ¶ 3,198 Pac. 1080; Murray v. Electric Co., 99 Kan. 507, syl. ¶ 1, 162 Pac. 1145; Chapman v. Ticehurst, 153 Kan. 310, 314, 110 P. 2d 785, and many other cases collected in Hatcher’s Dig., Trial, secs. 266 to 281, and West’s Dig., Trial, Key Nos. 349, 350.)
Appellant contends the verdict was excessive, caused by the allusion to insurance, which came about in this way: The physician who had treated plaintiff from the time of her injury to the time of-the trial had testified at length, and on cross-examination was asked about the records he had concerning his calls and treatment. He was asked to get the record at the noon hour, from which defendant’s counsel proceeded with his cross-examination. The pertinent portion of the record reads:
“Q. Now Doctor, I am going to hand you two exhibits here, one marked exhibit A, and ask you if that comprises the only detailed record that you have of this patient; or your attending this patient, in your office? A. Not the only thing but that’s the only office record I have. I have reports here for instance that I made on May 9.
“Q. That is a letter you wrote to Mr. Kitch? A. I don’t know who it is. This looks like an answer to some — I think it was some insurance man — a copy of what I wrote.
“Mr. Weigand: Now, Your Honor, I move that be stricken, what the Doctor thinks.
■ “The Court: That’s what we are trying to stay away from. That will be stricken out and the jury will be instructed to disregard it.
“Q. You made the report to Mr. Kitch? A. Yes, sir.
“Q. Whatever writing you put in that report, plus this here, is the only record which you kept of this patient in your office? A. As I say, this record here—
“Q. (Interrupting) That wasn’t, a record. That was a report you made to Mr. Kitch of her condition wasn’t it? A. No, they told me not to refer to that . . .
“The Court: Now Mr. Wéigand, don’t question-him along that line unless you are sure what you are going to bring out.”
Nothing further was said about it during the trial and no objec tion was made to the remarks of the court or any further request for instructions pertaining to the matter. It appears to have been treated as a closed incident. If there was any error in the matter it was occasioned by defendant’s counsel, hence he;is in no position to complain of it. In this court complaint is made of the remarks of the court. Since no complaint was made of them appellant cannot be heard to complain now,' (Tovey v. Geiser, 150 Kan. 149, 159, 92 P. 2d 3.) More than that, .we see nothing wrong with the court’s remarks.
On the hearing of the motion for a new trial defendant called two of the jurors who had served on the case, each of whom testified in substance that one or several of the jurors stated that the defendant company wouldn’t lose, anything, but that the insurance company would have to pay it. The jurors testified, however, that they didn’t know whether defendant was insured. The truck was of the type which under our statute requires that insurance be carried, a fact which was common knowledge. It is not surprising that some of the jurors should have made the remark they are credited with making. (Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721.)
Counsel for appellant argues that the size of the verdict demonstrates that it was the result of passion and prejudice. We cannot agree to that view. The damage to the automobile, $152, was stipulated. The jury allowed for pain and suffering $9,044 and the same amount for permanent injuries. Appellant argues that indicates a lack of clear analysis by the jury. We think this contention is unsound. The injuries under those headings merged into each other so that a complete separation was not possible. The evidence bearing on these items of damages may be summarized as follows: At the time of her injuries plaintiff was fifty years of age. She was born in Russia and she and her husband had been married almost thirty years. Their son was in the armed service of the United States and was expected home soon. She was a healthy, active woman. Her only illness in several years had been a sprained ankle in 1938, from which there was a reasonably prompt recovery. She was a capable and industrious housewife, took care of her own home, spaded her own garden, raised chickens, worked in the Service Men’s Canteens at the bus depot and in the Union Station; was a Red Cross nurse’s aid, was active in the work of the American Legion Auxiliary, in the work of the Sunnyside Baptist Church, and for the Russian Relief Society. At the time of her injuries she was on a mission of gathering clothing for the Russian relief. When the plaintiff was thrown from her car by the collision, as above stated, she was rendered unconscious, but regained consciousness in an ambulance on the way to a hospital. On reaching the hospital she was in great pain. Emergency treatment was given and an X ray taken, which showed a fracture of the third, fourth, fifth, sixth, seventh and eighth fibs on the left side. There was a lump on the back of her head half the size of her fist. The side of her face near her left eye was severely bruised and swollen, her ankle was tender, the motion in her left arm was limited, the left shoulder and arm were bruised; also her left knee was injured, and her left leg was bruised from the ankle to the hip. She was taped with one inch adhesive tape from her ankle to the hip. The hospital had no room for her and she was removed to her home, where she was unable to lie down. A bed was devised for her consisting of ( two chairs, on one of which she placed her feet. She remained sitting upright in the chair, supported by pillows, for three weeks, during which time she was unable to move.. Thereafter she was able to lie down for a few minutes, then for a longer time, and perhaps two months after her injuries she was able to lie in bed. She was in pain during this time and could not rest comfortably in any position and was given a lot of sedatives. During this time she complained of pain in her left shoulder, left side and ankle, so much so-that on February 19 she was taken to the hospital for additional X fays. These disclosed no further bone fractures. An X ray of the soft parts of her body showed that the left kidney and spleen were enlarged and had been forced downward by the blow. Both could be felt and moved with the fingers of the examining physician. Her condition was such that for the first four months after her injuries her doctor called.upon her practically every day, and since ■ then at less frequent intervals. The trial occurred about sixteen months after her injuries. A few days prior thereto she was examined by a neuropsychiatrist, who had been employed by the government in that capacity for more than 28 years and whose ability and qualifications were not questioned. He found her fairly well nourished, unsteady in her gait, and that she limped considerably in her left leg; found a little dent .in her skull; that she had anesthesia in her arm above the elbow'and forearm; the grip of the left hand was weak, the left -leg markedly swollen due to phlebitis, also the left knee. She complained of a painful left breast and left knee and weakness of the entire' left side of her body, and that she had not been sleeping well; that she would get dizzy and could not walk straight. She also complained of severe headaches in the back of her head and pains at times over her left eye. Her blood pressure on the left side showed systolic 170, diastolic 110. This latter was about 40 above normal, indicating an involved kidney, which the doctor thought undoubtedly was the case, and that the blood pressure would get worse regardless of what method might be used to keep it down. Her left arm, leg and side were partially paralyzed, which was the result of a brain injury. She was unable to walk a straight line, was dizzy, droopy and unable to coordinate. She was emotional, cried easily, was very nervous and apprehensive, and tired out. She is an aged woman. There is •evidence that she had lost thirty pounds, that she is unable to drive a car and afraid tó ride in one; that she is suffering post-traumatic neurosis.
Two physicians who were not neurologists were called by defendant. Their testimony tended to weaken somewhat that of the physician called by plaintiff. Of course the weight to be given to this evidence was for the. jury. There was other evidence that plaintiff’s nature and disposition' had entirely changed from that of an active, intelligent, industrious woman to one who was unable to take interest in any of her former activities or pursuits, unable to attempt to work as long even as thirty minutes without having to lie down. Respecting the amount of recovery, if any, the court gave instructions as follows: ' '
“If you find that the defendant [plaintiff] is, entitled to recover damages for personal injuries, then the measure of her damage is what is denominated ‘compensatory damages’; that is, such damages as will fully compensate her for the injuries sustained; and in estimating the amount of plaintiff’s recovery, you are instructed that, subject to the restrictions and limitations herein laid down, you are at liberty to consider her health and physical condition just before the injury complained of, as compared with her present condi- ' tion, so far as her present condition is the natural and proximate result of and in consequence of such injuries.
“You may consider the pain and suffering, if any, to which the plaintiff • was subjected by reason of and as a result of such injuries, as well as any pain and suffering or disability which the plaintiff may be subjected to in the future as a result of such injuries, and you should carefully consider the probable period of time and extent the plaintiff may suffer pain, discomfort or disability in the future as a result of such injuries, together with any medical bills which you find plaintiff has incurred or may hereafter incur as a result of such injuries.
“After considering the evidence and being guided by all the instruction herein given, you may allow the plaintiff such damages as in your opinion will be a fair and full compensation for such personal injuries sustained, . . .”
Defendant made no complaint of these instructions. We are unable to see any reason to question them or to disturb the verdict of the jury as to the plaintiff’s pain and suffering and as to her permanent injuries, which were approved by the trial court.
The jury allowed plaintiff $1,760 for “medical expenses, including hospital and doctor fees.” Appellant contends this amount is not supported by. the evidence. The point is well taken. There was testimony that the reasonable service of the doctor who had treated plaintiff from the time of her injuries to the trial was $500. Later in the trial it was stipulated that in addition to the medical" expenses previously shown the plaintiff had incurred various miscellaneous items aggregating $76 for medical, hospital or ambulance service. This is the only specific evidence we find in the record respecting the amount of medical expenses, including hospital and doctor fees. The trial court instructed the jury that if it found for plaintiff it could include in its" verdict “any medical bills which you find plaintiff has incurred or may hereafter incur as a result of such injuries.” The only evidence in the record with respect to.further medical attention was given by plaintiff’s physician witness as follows:
“Q. Is there any need of any further medical attention from time to time? A. Well she will require medical and she will ask for medical attention and counsel in the future because she isn’t well.
“Q. Do you have anything upon which you could base an estimate of what her medical care will cost her in the future? A. .Well I would put it this way probably; she will — like she has in the past when I don’t call on her regularly — she will call up and tell me her symptoms and like I do with all patients, I tell her what to do and things of that kind and probably will have to see her once a month or something like that, but that’s going to be entirely up to her you know. I have been away myself for awhile and when I came back she had called and I have been out to see her several times since I came back. That has been about a month ago and I think that I will probably not go out only just as she feels she wants to see me or consult me.”
This appears to go no further than consultation and advice from time to time. This and other evidence in the record tends to show that plaintiff’s condition had become somewhat static, that in fact there had been but little change in her condition for several months prior to the trial, and that there was no likelihood of there being much change, except that the pain in the left shoulder would perhaps become less while the blood pressure and kidney involvement would perhaps become worse, and that rest, not only at night, but an hour or two in the morning and an hour or two in the afternoon would accomplish her greatest help. No other hospital or surgical treatment was suggested as being beneficial. The testimony of her physician, above quoted, appears too meager as a basis of any substantial allowance for future medical attention, and falls more properly within the class of permanent injuries. The result is that the allowance for this item should be reduced to $576.
Industrious counsel have cited a number of our cases and a few from other jurisdictions pertaining to the amount of allowance in personal injury cases. We have examined each of these cases. It would serve no useful purpose to set them out. Each rested upon its own facts. Some of them were decided when the purchasing power of a dollar was much greater than it is now.
The result is that the judgment of the court below should be modified by reducing, it $1,184, and as so modified should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
The defendant was convicted by a jury of permanently depriving the City of Salina of the possession, use or benefit of property of the value of more than $50, in violation of K. S. A. 21-3701, and of possessing a key or other instrument suitable for use in opening a parking meter with intent to commit a theft, in violation of K. S. A. 21-3741.
The evidence showed that between 11:00 and 12:00 o’clock a. m., on April 19, 1975, Carol Roman and Patricia Mallory were working for the Salina Cable Television located across the street from Municipal Parking Lot No. 10, where they observed the defendant and his partner opening parking meters in the parking lot and removing money from them and placing the money in a white bag.
The Salina Police were summoned to the scene, and upon Officer Wendlandt’s arrival he observed the two men, matching the description given by the dispatcher, seated in a green automobile. Officer Wendlandt ordered both men out of the vehicle and he observed the passenger, the defendant, drop what appeared to be a key used for opening coin-operated machines between the front seats of the automobile. Officer Wendlandt observed the key by looking down through the windshield and recognized the key as being the type used to open parking meters. After both men were removed from the automobile, Officer Wendlandt opened the car door and removed the key from the floorboard.
The occupants and the vehicle were taken to the Salina Police Station, where a search warrant was obtained and the vehicle was searched inside the police garage, pursuant to the search warrant. Officers found in the glove compartment a blue zipper bank bag which contained the white bag observed by Mrs. Mallory, $64.50 in nickels, dimes and quarters and empty money wrappers.
The defendant contends the district court erred in denying the defendant’s motion to dismiss Count I of the information — the crime of theft — because the offense of theft involved stealing from parking meters and constituted the offense of opening coin-operated machines in violation of K. S. A. 21-3740. The statute reads in part:
“Opening, damaging or removing coin-operated machines is willfully and knowingly opening, removing or damaging any parking meter, coin telephone, vending machine dispensing goods or services, money changer or any other device designed to receive money in the sale, use or enjoyment of property or services or any part thereof, with intent to commit theft, . . (Emphasis supplied)
It is observed our statute does not make the actual theft of monies an element of the offense, but merely requires an “intent to commit [a] theft.” In this respect, the statute is similar to our burglary statute, K. S. A. 21-3715, which provides in part:
“Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein. . . .” (Emphasis supplied)
K. S. A. 21-3701 defines the crime of theft and reads in part:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(a) Obtaining or exerting unauthorized control over property; or . . .”
In State v. Finley, 208 Kan. 49, 490 P. 2d 630, the court in commenting on charging a defendant with burglary and larceny said:
“Although, they may be charged in the same count of an information under 21-524, supra, larceny and burglary are separate and distinct offenses. There is no compound offense of burglary and larceny. (State v. Bratcher, 105 Kan. 593, 185 Pac. 734; and State v. Mooney, 93 Kan. 353, 144 Pac. 228.) Even though charged in the same indictment a conviction may be had for one offense, notwithstanding an acquittal for the other. (State v. Ingram, 198 Kan. 517, 426 P. 2d 98.) . . .” (l. c. 57, 58) (Emphasis supplied)
It is obvious from the foregoing that the offense of theft and the offense of opening a coin-operated machine with intent to commit a theft are separate and distinct offenses. The district court did not err in overruling the defendant’s motion to dismiss the theft charge as alleged in Count I of the information.
It is next contended the district court erred in overruling the defendant’s motion to suppress physical evidence. The point is not well taken. The defendant specifically complains that the search of the green automobile was not made incidental to his arrest and that the state should have obtained a search warrant. It is unnecessary to reiterate the facts. Officer Wendlandt was lawfully in a position to observe the key on the floorboard of the green car defendant occupied as a passenger. The key was in plain view and the officer had ample probable cause to believe the vehicle contained the fruits, evidence and instrumentalities of the crime. The subsequent search and seizure at the police station was pursuant to a search warrant, the validity of which is not under attack. The district court did not err in overruling the defendant’s motion to suppress the evidence.
The defendant lastly contends the district couxt erred in denying the defendant’s motion for judgment of acquittal as to the theft charge made at the close of the state’s evidence and that the verdict finding the defendant guilty of theft of more than $50 was not supported by the evidence. It is argued the state failed to show the defendant stole money belonging to the City of Salina and failed to show that the value of the property was over $50. It is further argued the evidence showed only that the parking meters were empty and that there was $64.50 in defendant’s car. This is not the case.
Again, it is unnecessary to reiterate the evidence. The case against the defendant was by no means based on circumstantial evidence. Mrs. Roman and Mrs. Mallory testified they saw the defendant removing money from the city parking meters. There was no question that at least forty double meters had been entered and money stolen from them. The best evidence of how much was stolen was the $64.50 in nickels, dimes and quarters found with the white bag used by the defendant to empty the meters and found in the glove compartment of the car. As indicated, there were two eyewitnesses to the theft in addition to the parking meter key found in defendant’s car. The money found in defendant’s possession minutes after the theft was all nickels, dimes and quarters. Moreover, a strong inference that the money was stolen arises from the fact that people ordinarily do not carry $64.50 in small coins, especially when no explanation as to when, how and why the money was acquired is given. The fact that the bag used by the defendant to gather the money from the parking meters was found in the bag containing the coins and empty money wrappers when viewed together with the other circumstances is ample evidence the money in the car was stolen from the parking meters. In addition, no evidence was presented by the defense showing the ownership or where the $64.50 in nickels, dimes and quarters came from.
The court has held in State v. Coover, 69 Kan. 382, 382, 76 Pac. 845, at syllabus 3:
“Where in a charge of grand larceny the greater part of the property stolen was money in coin of small denominations — nickels and dimes — it is not error to introduce in evidence money of the kind and denominations stolen, which is shown to have been in the possession of defendant soon after 'the crime was committed, though not identified as the specific money stolen, the same being offered with other circumstantial evidence tending to show defendant’s guilt.”
In addition, a case closely in point to the instant case is Dotson v. Boles, 271 F. Supp. 24 (1967). In fhat case, the proprietor of the store could not state how much money was in the vending machine. In affirming a conviction of grand larceny, it was said:
“There is no truth to the second factual allegation in this last claim. Since the proprietor had no direct access to the money in the machines, he would not know the actual amount by physical count. But he was certainly able to state correctly that the frequently used machines did have money in them, that it was not removed in the normal routine of business by the amusement company, and could testify as to the circumstances, as he knew them, surrounding the theft of the money. The enormous quantity of small change found in Dotson’s car at the time of his arrest, together with the coin boxes belonging to the machines, provided ample evidence to warrant the jury in finding him guilty of grand larceny . . .” (pp. 26-27.)
It is concluded from the foregoing that the defendant has not made it affirmatively appear that he did not have a fair trial or reversible error was committed during his trial in the court below and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action on a replevin bond to recover damages. The trial court sustained a demurrer to plaintiffs’ opening statement and they appeal.
As two actions are involved, we shall refer to the parties by their surnames. The record as abstracted discloses the following:
On July 19, 1945, Davis filed in the justice of the peace court a replevin affidavit alleging he was the owner of an automatic phonograph and a pinball machine of the actual value of $600 and entitled to the immediate possession thereof, and that the property was wrongfully detained from him by Quinn and Boiler. Other statutory allegations were also made. A replevin bond in the sum of $1,200, containing the statutory conditions, signed by Davis and Al-bright was filed, and a replevin summons was issued. Other papers were also filed but we need not mention them. On July 31, 1945, Quinn and Boiler appeared specially in the justice of the peace court and moved tp dismiss the action because the value of the property replevined as fixed by the replevin affidavit was greater than the amount allowed by law for the jurisdiction of justices of the peace. The justice of the peace allowed the motion and dismissed the action.Davis did nothing further to establish his right to the property, either by way of appeal or by commencement of any other action.
At a later date, not disclosed by the record, Boiler and Quinn commenced an action in the district court against Davis and Albright. Briefly stated, their petition alleged that Davis had commenced the action in the justice of the peace court and had caused that court to issue an attachment (replevin) order -at the commencement bf that action and that under that order the constable had taken possession of the automatic phonograph and pinball machine; that Boiler and Quinn were the owners and entitled to the possession thereof and Davis was not entitled to possession; that on July 31, 1945, Boiler and Quinn appeared to defend, and the justice of the peace dismissed the action; that Davis did not appeal and failed to return the property to Boiler and Quinn and ever since July 19, 1945, had deprived them of possession. Then follow allegations of the execution and-filing of the bond in replevin, and the conditions thereof, a copy of the bond being attached as an exhibit. Further allegations as to the value of the property and as to damages sustained are not of present importance.
We note Davis’s answer only to state that it alleged he was the owner of the property in question; that he commenced the action in the justice of the peace court and that possession of the property was delivered to him; that Boiler and Quinn had appeared specially and the justice of the peace had dismissed the action; that there was no trial of the question of ownership and no request by Boiler and Quinn that the court render a judgment requiring a return of the property then in his hands. He made a part of his answer all of the pleading's filed in the justice of the peace court. Davis further alleged that Boiler and Quinn had never made any demand for return of the property, and that at no time did they ever have any interest therein which would form a defense to the action which he commenced; that they had no right of possession and' he had done nothing which would make him liable under the bond filed in the justice of the peace court.
Albright filed an answer containing a general denial and an admission that he signed the bond as a surety.
When the cause came on for trial the parties filed g, stipulation that the justice of the peace need not be present to identify the records from his court. As a part of their opening statement Boiler and Quinn handed to the court the files from the justice of the peace court and stated at length the facts giving rise to the action. At the conclusion of the statement Davis demurred generally and Albright moved for judgment on the pleadings and opening statement. The trial court stated the proceedings before the justice of the peace were void; that they could not be half void and half good; that all were beyond the jurisdiction of a justice of the peace who could not even approve a $1,200 bond; that the bond was void and no suit could be maintained upon it, and it sustained Davis’s demurrer and Albright’s motion for judgment, and dismissed plaintiffs’ action. The appeal by Boiler and Quinn followed.
It may be noted that the appellees do not contend that appellants, in their opening statement, made any' admissions which precluded their recovery. The question presented and argued is whether an action may be maintained on a bond in replevin where the court in which the replevin action was filed had no jurisdiction of the action. In support of the trial court’s rulings, appellees direct our attention to a note found in 14 Am. Dec. 103, where the decision in Harris v. Simpson, 4 Littell 165 (Ky.), is reported, and to some other similar cases, holding generally that a bond, given in a proceeding where the court had no jurisdiction of the action, is a nullity and no action lies for a breach of its condition, and further that a party executing a bond and his surety are entitled to have their contract as evidenced by the bond strictly construed (Bank v. Morse, 60 Kan. 526, 57 Pac. 115); that appellants caused the action in the justice of the peace court to be dismissed without requesting any order that the involved personal property be returned to them, and that they are now estopped to assert that appellees did not duly prosecute the action in replevin. Appellants assert that the rule relied on by appellees in the trial court and reasserted here is a minority rule, and they direct our attention to authorities so holding.
The principal case relied upon by appellees is Caffrey v. Dudgeon, 38 Ind. 512, 10 Am. Rep. 126 (1872), where it was held that in areplevin action to recover property the claimed value of which was in excess of the court’s jurisdiction, the court had no jurisdiction, could not approve the bond, issue the writ or take any action in the premises and that the bond approved by the justice in such a case was void and no action could be maintained. In that opinion it was said:
“The argument which has been pressed upon our consideration, that an affirmance of the judgment would produce great injustice and hardship to the appellant, can have no 'force' with us, when our duty is plainly marked out and clearly defined by the repeated decisions of this and other courts.' Our statutes have prescribed the powers, defined the duties, and fixed the boundaries to the jurisdiction of justices of the peace. These statutes must be respected. The court cannot change the law. We can only administer it. Every officer is presumed to know his duty. If he does not, and transcends his powers, the responsibility rests with him and those who evoked the exercise of unauthorized powers. The better and safer rule is to hold all public officers to a rigid and faithful discharge of their duties as defined by law, and to discourage the exercise of unauthorized powers. The conclusion that we have reached does not deprive the appellant of a remedy, for the justice of the peace who issued the writ, the plaintiff in that action who procured him to issue it, and the officer who served it, if the want of jurisdiction appeared on the face of the writ, were trespassers, and as such are liable for the consequences of their wrongful and illegal acts.” (1. c. 521.)
Appellees also direct our attention to Benedict v. Bray, 2 Cal. 251 (1852), holding that a bond, given in an attachment action wherein the justice of the peace had no jurisdiction, was void, and that no action could be maintained on that bond. We shall not follow this case further but we do note that in McDermott v. Isbell, 4 Cal. 113 (1854), it was held that in an action on a replevin bond, the fact the defendant had commenced his action before a tribunal incompetent to try the matter in dispute constituted no defense, it being said in the opinion that a party who avails himself of the process of an inferior court cannot escape the responsibility of his own act, upon the ground that such tribunal had- no jurisdiction over the subject matter in controversy.
We note also that in Robinson v. Bonjour, 16 Colo. App. 458, 66 Pac. 451 (1901), it was held that a justice of the peace had no jurisdiction in a replevin suit where the value of the property exceeded $400 and his judgment in such a suit was a nullity, and no action would lie on the bond.
In Shinn on Replevin (1899), section 820, p. 730, it is stated that in an action on a replevin bond the -defendant cannot set up as a defense that the court in which the action was brought was without jurisdiction.
In Fahnestock v. Gilham, 77 Ill. 637 (1875), it was held that where a defendant had invoked the jurisdiction of a justice of the peace in replevin and executed a bond to avail himself of it, he cannot, in an action on the bond, make a defense that the justice of the peace had no jurisdiction. “He is estopped by his own act and admission.” (p. 640.) And to the same effect is Bierma v. Columbia Typewriter Mfg. Co., 179 Ill. App. 69 (1913).
In Biddinger v. Pratt, 50 Ohio St. 719, 35 N. E. 795 (1893), it was held that an action may be maintained upon a replevin bond conditioned that the plaintiff will duly prosecute the action, notwithstanding the original action was dismissed, on motion of the defendant, on the ground that the justice of the peace had no jurisdiction.
No Kansas case dealing with the precise point involved in this appeal has been brought to our attention, nor has our research disclosed any, but on principle, the reasoning in our decision in Duff v. Read, 74 Kan. 730, 88 Pac. 263, is applicable. There Duff caused an execution to issue on a void judgment, and under the execution property belonging to Read was seized. He brought an action for damages, and Duff sought to show the judgment and writ of execution in the previous action. In disposing of a contention that the writ of execution was regular on its face and that the acts complained of were within the scope and duties of the constable, it was said that Duff was presumed to have known the facts and that he had procured a void judgment, and had caused execution to issue on it and—
“Where a levy is made by an officer under a process which is irregular, unauthorized or void, the party suing out the process is a trespasser, and in such a case the officer becomes the agent of such party. [Citing cases.]'' (l. c. 734.)
We think it ought not to be held that where a person commences an action for replevin of personal property, and files a bond pre requisite to obtaining a writ of replevin, which writ is issued and the property is seized and delivered to him, he should be permitted in an action on that bond to say the court in which it was filed had no jurisdiction, the bond was a complete nullity and that he and his bondsmen have no liability thereon. We cannot agree that the person who has been-wronged must look to the justice of the peace and the constable for any damages he may have sustained, because they acted in excess of their powers. We do not now hold that they are not liable for that question is not before us. But Davis and Albright knew, when the replevin action was commenced and when the bond was filed, that the justice of the peace had no jurisdiction, and notwithstanding, they put in action a course of legal proceedings which resulted in Boiler and Quinn losing possession of the personal property claimed by them to be their property. In our opinion, sound reasoning and the weight of authority compels a conclusion that no person should be permitted to take the advantages accruing to him by reason of an action commenced by him and escape any liabilities to which he may be subject if the seizure of the property and what is thereafter done violates the conditions of the bond.
Appellees also present some argument that the dismissal of the replevin action was caused by the defendants in that action and that they may not now claim the plaintiffs failed to “duly prosecute” the action. In disposing of this contention we shall not attempt a review of all our decisions from which analogies may be drawn.
In the early case of Manning v. Manning, 26 Kan. 98, it was held that a defendant in a replevin action has a right, notwithstanding dismissal by the plaintiff, to an inquiry into and an adjudication of his right in the property, but that that was not his only remedy, for after a voluntary dismissal he might commence an independent action on the bond.
In McKey v. Lauflin, 48 Kan. 581, 30 Pac. 16, it was held that where a party commences an action in replevin and obtains possession of the property in dispute and then voluntarily dismisses his action without prejudice, but still retains the property secured by the writ, the defendant may maintain an action on the replevin' bond.
In Little v. Bliss, 55 Kan. 94, 39 Pac. 1025, may be found a rather long statement of facts. For our purposes we note only the following. Mrs. Mackey brought a replevin action against Bliss and the property was taken under the writ. When the case came op for trial Bliss appeared but Mrs. Mackey did not and the case was dismissed for want of prosecution. It was contended that Bliss was at fault in not pursuing his rights in the replevin action. This court held if he did not pursue his remedies at-that time he was not precluded of his full remedy upon the bond.
In Bank v. Morse, 60 Kan. 526, 57 Pac. 115, this court considered the three obligations of a replevin bond. Although there was some discussion of the words “duly prosecute,” the decision of the court was limited to the facts of the case and it was said that a trial and verdict seven months after the action was commenced satisfied the condition of the bond that plaintiff “duly prosecute” the action. The' court did say, however, that a dismissal of the action by the plaintiff showing an intention not to proceed with the case would have been a breach of the bond (l. c. 530). It was further said that if the replevin action had been dismissed without trial on the merits, an action could have been maintained on the bond (l. c. 534). And see, also, 46 Am. Jur., p. 81, § 151; 54 C. J., p. 635, § 399.
Under the reasoning of the above decisions, we think that where plaintiff commences a replevin action, files his bond and has a writ issue, which is served, and under which he procures possession of the property, and thereafter the action is dismissed for the reason the court is without jurisdiction, and the plaintiff does nothing further to have a legal determination made of his right to the possession of the property, he has not “duly prosecuted” his action, and an action will lie upon the bond. Under the above decisions it was not obligatory on appellants to endeavor to have the justice of the peace try their right to possession, even if it be assumed that was possible under the facts of this case.
Although our attention is directed to Burton v. Decker, 54 Kan. 608, 38 Pac. 783, holding that a surety is a favorite of the law and has a right to stand upon the precise terms of his obligation, no particular argument is made on behalf of Albright, the surety. We need not dwell on that phase of the matter. The bond given by Davis required at least one surety (G. S. 1935, 61-503) and Al-bright knew that when he signed. Until that bond was filed the writ of replevin did not issue. Davis did not “duly prosecute” the action -and the condition was broken. In the present state of the case Albright was not entitled to his 'discharge as a bondsman.
In this opinion we have not discussed any question as to who actually owns the property in dispute, as that is a matter at issue under the pleadings.
We are of opinion the trial court erred in sustaining Davis’s demurrer to the appellants’ opening statement, and in rendering judgment for Albright on the pleadings and opening statement, and in dismissing plaintiffs’ cause of action. These several rulings and judgments are reversed and set aside, and the cause is remanded for trial. | [
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The opinion of the court was delivered .by
Schroeder, J.:
This is an appeal in a criminal action from a jury verdict which found Jimmy “Chico” Robertson (defendant-appellant) guilty of .two counts of aggravated burglary (K.S.A. 21-3716); two counts of aggravated assault (K. S. A. 21-3410); and two counts of rape (K. S. A. 21-3502).
The appellant raises two points on appeal. First he contends the trial court erred in denying his motion for a new trial when newly discovered evidence, if accepted, would have provided an alibi to acts committed against one of the victims. Second the appellant contends the trial court erred in denying his requested instruction based on his theory of defense.
The state charged that on April 30, 1975, the appellant broke into the home of D. A., the first complaining party, assaulted her with a knife and then raped her. The victim testified she was asleep in her home when the appellant awakened her, threatened her with the knife, took her into the hallway and raped her. She described the appellant as “covered with clothing, a sweater, slacks, and a ski-mask.” However, dining the rape the mask; was partially removed and she saw his face from the bridge of the nose down. The victim normally wore glasses or contact lenses but at the time of the attack was not wearing them. Nevertheless, she was able to identify the appellant. Apparently a car similar to the appellant’s was seen in the area.
The state also charged that on May 1, 1975, the appellant entered the home of D. B., the second complaining party, assaulted her with a small caliber gun, and then raped her. The details surrounding this assault were not important and were not included in the record on appeal.
An information was filed June 2, 1975. On November 19, 1975, after trial to a jury, a verdict was returned. On December 15, 1975, the appellant’s motion for a new trial was heard.
At the hearing on the motion for a new trial, the appellant sought to introduce the affidavit of Miss Connie Davis. Her affidavit stated on April 30, 1975, the appellant’s car was not working. The appellant and a friend, Larry, pushed it into her yard. The car remained there until the afternoon of May 1, 1975. The appellant spent the nights of May 2, 3 and 4 at Miss Davis’ house. Miss Davis’ affidavit stated .that she slept very lightly at night and the appellant could not have left her house on the nights mentioned without awakening her.
The trial court did not err in refusing to grant a new trial. When the facts are fully within the knowledge of the defendant at the time of his trial, they cannot subsequently be categorized as newly discovered evidence. (State v. Arney, 218 Kan. 369, 373, 544 P. 2d 334; State v. Anderson, 211 Kan. 148, 151, 505 P. 2d 691; and State v. Williamson, 210 Kan. 501, 506, 502 P.2d 777.) Here the affidavit indicates the defendant was aware of the facts at the time of trial which he asserts as newly discovered evidence.
The appellant has the burden of showing that the asserted evidence which he claims to be newly discovered could not with reasonable diligence have been produced at trial. (State v. Arney, supra at 373.) No showing has been made by the appellant why reasonable diligence at the time of and during the trial could not have produced the evidence now claimed to have been newly discovered. Indeed, the state argues Miss Davis was present at the appellant’s trial.
It is also relevant to note that the affidavit does not completely establish the appellant’s alibi defense. At best, it discloses his car was not working at the time of the rape and the appellant stayed at Miss Davis’ house on the nights following the commission of the offenses. (See State v. Anderson, supra at 151.)
The appellant also includes a lengthy proposed instruction on identity. This instruction stated in part:
“. . . However, you the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.”
The instruction further required the jury to consider (1) that the witness had the capacity and an adequate opportunity to observe the offender, (2) that the identification made by the witness was the product of her own recollection, (3) any occasion in which the witness failed to make an identification of the defendant, and (4) the credibility of each identification witness.
On appeal the appellant argues this instruction only outlines the standards set forth by the United States Supreme Court in Neil v. Biggers, 409 U. S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (and followed by this court in State v. Nesmith, 220 Kan. 146, 551 P. 2d 896; and State v. Mitchell, 220 Kan. 700, 556 P. 2d 874. However, this does not require that the appellant’s special instruction on identification be given. A special instruction on identification similar to that sought by the appellant was rejected by this court in State v. Ponds and Garrett, 218 Kan. 416, 419, 543 P. 2d 967; and State v. Wilson, 221 Kan. 92, 558 P. 2d 141. There the instructions which were given covered and included the substance of those refused. Here the trial court ruled the appellant’s proposed instruction was covered by the prepared instructions.
The jury instructions actually given are not included in the record. The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. (State v. Pettay, 216 Kan. 555, 557, 532 P. 2d 1289.) When a party on appeal raises questions regarding instructions, he must include at least all instructions pertinent to the point in issue in his record on appeal. (McElhaney v. Rouse, 197 Kan. 136, 138, 415 P. 2d 241; and Curby v. Ulysses Irrigation Pipe Co., Inc., 204 Kan. 456, 464 P. 2d 245.) Accordingly, we conclude the trial court did not err in refusing to give the appellant’s requested instruction.
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The opinion of the court was delivered by
Owsley, J.:
This is an action for damages which resulted from a collision between a fire truck owned by Shawnee Township Fire District No. 1 and an automobile owned and driven by Roger F. Morgan. The collision took place at 87th and Pflumm Road in Johnson County, Kansas. The plaintiff fire district sued to recover property damage. Defendant counterclaimed for property damage and personal injury. The jury returned a verdict against both parties and plaintiff appeals.
On March 6, 1972, "a fire occurred in the vicinity of 79th and Lackman Road in Johnson County, Kansas. Plaintiff’s driver, Paul Bishoff, responded in plaintiff’s fire truck to a call for additional equipment at the fire. As Bishoff departed the Lenexa Fire Station, he turned left to Pflumm Road, then turned right and proceeded north on Pflumm. The speed limit on Pflumm was 25 miles per hour. The intersection of 87th and Pflumm was controlled by stop signs protecting 87th Street. At the time of the accident, 87th Street, running east and west, was a through street with a speed limit of 35 miles per hour.
As Bishoff approached the intersection he looked east and saw nothing. He could see 900 feet east on 87th. He then looked west and did not look east again before entering the intersection. Defend- and was westbound on 87th and struck the fire truck on the rear right side. The impact rolled the fire truck and it came to rest on its top with its front facing northeast.
Plaintiff contended defendant was negligent in the following particulars:
1. Failure to maintain a proper lookout.
2. Failure to keep his vehicle under control so as to avoid an accident.
3. Failure to yield the right of way to an emergency vehicle.
4. Traveling in excess of the posted speed limit.
5. Traveling in excess of speeds reasonable and safe under existing circumstances.
6. Driving while intoxicated.
Defendant denied these allegations and asserted plaintiff was negligent in the following particulars:
1. Failure to keep his vehicle under control so as to avoid an accident.
2. Failure to maintain a proper lookout.
3. Failure to yield the right of way to defendant.
4. Traveling in excess of speeds reasonable and safe under existing circumstances.
At trial, plaintiff introduced testimony as to the speed of defendant’s car by developing evidence of tire skid marks. These skid marks measured 79.5 feet for the left front tire, 61 feet for the left rear tire, 65 feet for the right front tire and 61.5 feet for the right rear tire. Skid tests were conducted by the Johnson County sheriff’s office and the Kansas Highway Patrol. At 35 miles per hour the average skid was 49 feet. An accident reconstruction expert testified that based upon all the relevant factors which should be considered, defendant’s car was going 52 miles per hour as it began to skid. Maximizing all factors in favor of defendant, the speed was reduced to 43.5 miles per hour; maximizing all factors in favor of plaintiff, the speed increased to 63.3 miles per hour.
Defendant testified he was going only 30 to 35 miles per hour as he traveled west on 87th. Defendant’s wife, who was a passenger in the car, testified she had no opinion as to the speed of the car, but she knew it was not going too fast.
Several witnesses testified to the speed of the fire truck as it went through the intersection. A nearby apartment dweller testified she stepped out onto her balcony, which faced Pflumm Road, when she heard the siren. She watched the fire truck approach the intersection and almost come to a stop before proceeding into the intersection. Greg Garrett, who was westbound on 87th and had turned left to proceed south on Pflumm, estimated the speed of the fire truck to be about 25 miles per hour when it was 75 to 125 feet from the intersection. He also stated the truck slowed down before proceeding into the intersection. The driver of the truck testified he was in second gear as he approached the intersection and was reducing speed. Top speed in this gear was 15 miles per hour and he reduced his speed to 10 miles per hour as he entered the intersection.
Defendant testified the truck was traveling 30 to 35 miles per hour, but testified he did not see the vehicle until it was about 100 feet from the intersection and didn’t realize it was a fire truck until it was immediately in front of him. Defendant’s wife did not see the truck until a second before the collision and she gave no estimate of its speed.
Evidence included testimony concerning the operation of the siren on the fire truck. One witness testified she was following the fire truck as it proceeded toward the scene of the collision. She stated she heard the siren at least a block away and at the time of the impact she was between one and one-half and two blocks behind the fire truck and could hear the siren. The apartment dweller testified she heard the siren when the truck was about 500 feet away and the noise became even louder as the truck passed the apartment complex. Garrett stated he did not hear the siren until he was approximately 100 feet south of the intersection and at that time the fire truck was 25 feet from him, or 125 feet south of the intersection. When he observed the fire truck he pulled over to the right side of the road and stopped. The driver of the emergency vehicle testified he ran the siren continuously from the fire house until the collision occurred. He indicated the siren was free-wheeling and would run for a block after it was wound. By running it up and down in this manner it would catch more attention. He testified the siren was audible for 500 feet or more, and he noticed that as he headed north on Pflumm, cars coming toward him pulled off onto the side of the road.
Both the Morgans testified they never heard the siren. They also stated the windows of the car were rolled up and the air conditioner and radio were on.
Bishoff testified the emergency lights, which consisted of a beacon ray and two pancake lights on the roof, were in operation from the station to the accident site. Garrett confirmed the lights were on. No testimony disputed the use of emergency lights.
Plaintiff introduced testimony to establish that defendant was intoxicated at the time of the accident. Ambulance driver Leslie Leford assisted defendant onto a stretcher after the accident and noted defendant was uncooperative and belligerent. Leford detected the odor of alcohol on defendant. He also noticed two small plastic glasses on the floorboard of defendant’s car. Leford’s assistant testified that in his judgment there was a strong odor of alcohol in the ambulance, which he felt was emanating from defendant. The officer in charge of investigating the accident reported defendant’s condition as normal, but he did recall persons at the scene had smelled alcoholic beverages. For this reason he had an officer proceed to the hospital and talk to defendant. Defendant refused to talk with police until he had consulted his attorney.
At trial defendant and his wife denied defendant had been drinking, although he admitted having lunch where alcoholic beverages were served.
At the conclusion of evidence the court gave the jury various instructions. These included, among others, standard instructions on negligence and contributory negligence, the right of a person to assume other drivers will obey the law, the duty of a driver to keep his vehicle under control, the duty of a driver to keep a proper lookout, and the duty to drive at a reasonable and prudent speed. The court, using a modified version of PIK Civil 8.01, instructed on standards of care as follows:
“Instruction No. 10
“As standards of ordinary care certain duties are imposed by law. These rules apply to the motoring public in general, but immunities as set out in these instructions are granted to certain authorized emergency vehicles. It is for you to decide from the evidence whether or not any of the following duties or laws apply in this case and whether or not any have been violated.
“The violation of a duty or law, if an immunity does not exist, is negligence upon which a recovery can be based when such negligence is a direct cause of the injury and damage.”
The immunities granted an emergency vehicle were set forth in Instruction 14:
“Instruction No. 14
The laws of Kansas provide that every driver of a vehicle approaching a stop sign shall stop and yield the right of way to any vehicle which has en tered the intersection from another highway or which is approaching so closely as to constitute an immediate hazard.
“The laws of Kansas further provide that the driver of an authorized emergency vehicle, when responding to a fire alarm, may proceed past a stop sign, but only after slowing down as may be necessary for safe operation.
“The privileges granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal admitting a sound audible under normal conditions for a distance of not less than 500 feet and also making use of two alternating flashing lights or a flashing dome light.
“Negligence in the operation of an emergency vehicle cannot be predicated upon a mere showing of disregard of a stop sign.
“The privilege granted to an authorized emergency vehicle shall not relieve the driver from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his ordinary negligence or reckless disregard for the safety of others.”
Plaintiff propounded instructions as to the standard of care for an emergency vehicle driver, based on Scogin v. Nugen, 204 Kan. 568, Syl. 4, 464 P. 2d 166; an instruction on the duty of a motor vehicle to yield to an emergency vehicle, based on PIK Civil 8.32; and an instruction as to intoxication affecting negligence, based on PIK Civil 8.84. The court refused each of these instructions and gave the jury no similar instructions.
On appeal plaintiff contends it was error to fail to instruct the jury on matters set forth in its proposed instructions. Defendant admits one or more of the instructions were deficient, but contends the errors are harmless since the fire vehicle was not entitled to the exemptions set forth in K. S. A. 1971 Supp. 8-505 (c) (now K. S. A. 8-1506 [b]).
Defendant admits the plaintiff’s vehicle was a fire truck operated by a volunteer fireman at the time of the accident. He also admits the evidence proved its lights were flashing, as required by K. S. A. 8-597 (c) [Corrick] (now K. S. A. 8-1720), and the siren was sounding, as required by K. S. A. 8-5,102 (c) [Corrick] (now K. S. A. 8-1738 [d]); but he argues this did not entitle the driver of the vehicle to the privileges and immunities of K. S. A. 1971 Supp. 8-505. Under defendant’s interpretation of the statutes plaintiff was not entitled to those exemptions because there was no proof the siren on the truck was (1) audible for five hundred feet, and (2) of a type approved by the department of motor vehicles of the highway commission, as required in K. S. A. 8-5,102 (c).
We cannot agree. First, the testimony of several witnesses supplied substantial credible evidence that the fire truck was operating under a siren which could be heard from a distance of five hun dred feet or more. Second, we do not believe the legislature intended to deny an emergency vehicle enumerated privileges and immunities in a civil suit for failure to comply with the mere formality of obtaining approval of the department.
Reasonableness requires us to hold that a twenty-two-foot fire truck, painted bright red, with a beacon light and two flashing red lights, and a siren heard by persons a block and a half or two blocks away is an emergency vehicle.
It is the duty of the district court to properly instruct the jury. In a motor vehicle case the court has the duty to instruct on applicable statutes. (Wegley v. Funk, 201 Kan. 719, 723, 443 P. 2d 323; Blakeman v. Lofland, 173 Kan. 725, 732, 252 P. 2d 852.) A party is entitled to an instruction explaining the theory of his case where evidence is introduced in support thereof. (Simms v. Webb, 219 Kan. 675, 676, 549 P. 2d 570; Hays v. Moscow Alfalfa Products, Inc., 217 Kan. 184, 535 P. 2d 461, and cases cited therein.) The test for the necessity to instruct on an issue is set forth in Hunter v. Brand, 186 Kan. 415, 350 P. 2d 805:
“Where trials are by jury, it is the sole province of the court to decide questions of law as distinguished from questions of fact. In the performance of that duty, it is incumbent upon the court to instruct the jury on the law applicable to the theories of both parties, insofar as such theories are supported by competent evidence. The instructions must be limited to those issues supported by some evidence. Where no evidence is presented or the evidence is undisputed and is such that reasonable minds cannot accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury. In that event, the issue becomes a question of law for the court’s determination. (Schmid v. Eslick, supra, p. 1004, and cases cited therein.)” (p. 419.)
Because plaintiff’s driver was the operator of an authorized emergency vehicle he was entitled to the privileges and immunities set forth in K. S. A. 1971 Supp. 8-505 (c) (now K. S. A. 8-1506 [¿]), which stated:
“(c) The driver of an authorized emergency vehicle may: (1) Park or stand, irrespective of the provisions of this act. (2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation. (3) Exceed the maximum speed limits so long as he does not endanger life or property. (4) Disregard regulations governing direction of movement or turning in specified directions.”
Although the statute endowed the driver with certain immunities, they were not absolute in nature. K. S. A. 1971 Supp. 8-505 (e) (now K. S. A. 8-1506 [d]) provided:
“(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”
K. S. A. 8-536 [Corrick] (now part of K. S. A. 8-1506), relating to speed limitations, provided:
“The speed limitations set forth in this act shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren, or exhaust whistle. This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street or highway, nor shall it protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.”
K. S. A. 1971 Supp. 8-554 (now K. S. A. 8-1530) included the following provision:
“(b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”
It is important to recognize that K. S. A. 8-505 (e) [Corrick] was amended after this court last construed it in Scogin v. Nugen, supra. The phrase “ordinary negligence,” which established the standard of care for emergency vehicle drivers in Scogin, was deleted by the legislature in 1970. Because it is a fundamental rule of law that a change in phraseology or the deletion of a phrase in amending or revising a statute raises a presumption that a change of meaning was also intended, the standard of care set forth in Scogin is not controlling in this case. (McGowen v. Southwestern Bell Tel. Co., 215 Kan. 887, 891, 529 P. 2d 97, and cases cited therein.)
Our reading of K. S. A. 1971 Supp. 8-505 (e), as amended by the legislature in 1970, leads us to the conclusion that the standard of “ordinary negligence” is no longer applicable to the driver of an emergency vehicle. (See, Bennett, The 1970 Kansas Legislature in Review, 39 J. B. A. K. 107, 108 [1970].) The phrase “ordinary negligence” should have been deleted from Instruction 14.
The standards of care charged to the driver of an emergency vehicle and to the driver of an ordinary vehicle are not the same. The privileges and immunities granted to the driver of an emergency vehicle are not available to the driver of an ordinary vehicle. Notwithstanding the grant of immunities, the statutes require the driver of an emergency vehicle to drive with “due regard for the safety of all persons,” and further provide the immunities do not protect the driver from the consequences of his “reckless disregard for the safety of others.” Even though the use of the word “reckless” suggests an element of wantonness, we believe it was the intent of the legislature to charge the driver of an emergency vehicle with due care under the existing facts and circumstances. The facts and circumstances include the privileges and immunities granted by statute. The test of due care (or due regard as used in the statute), as applied to the driver of an emergency vehicle, is whether with the privileges and immunities provided by statute he acted as a reasonably careful driver.
An important factor to be considered under this test is the right of the driver of an emergency vehicle to rely on the duty of an ordinary driver. Under K. S. A. 1971 Supp. 8-554 (now K. S. A. 8-1530) the driver of an ordinary vehicle is under a duty to yield the right of way to an emergency vehicle by immediately pulling parallel and as close as possible to the right edge or side of the road, clear of any intersection, and remaining there until the emergency vehicle has passed. Although the driver of an emergency vehicle is not permitted to act on the blind assumption that this will be done, he has the right to assume other drivers will yield the right of way as required by law until it is otherwise apparent. (Scogin v. Nugen, supra at 571.) The district court instructed the jury that each driver had the right to assume the other would obey the law, but it erred in failing to instruct the jury that under the law defendant was under a duty to yield the right of way to plaintiff's emergency vehicle.
We agree with plaintiff that the jury should have been instructed also on defendant’s intoxication as a contributing factor in the accident. (See PIK Civil 8.84.) This was an issue in the theory of plaintiff’s case and there was sufficient evidence to submit it to the jury.
Applying what we have said to the facts of this case, we believe the district court erred in using the phrase “ordinary negligence” in Instruction 14, in failing to instruct on the test of due care for the driver of an emergency vehicle, in failing to instruct on the duty of a motorist to yield to an emergency vehicle, and in failing to instruct on intoxication.
Finally, both plaintiff and defendant urge this court to hold that they are entitled to a directed verdict as a matter of law. The record discloses the evidence was conflicting on the issues of negli gence, contributory negligence and proximate cause and under these circumstances a directed verdict is not available to either party.
For the reasons set forth in the opinion, the case is reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Prager, J.:
This case involves the construction and constitutional validity of certain Kansas statutes which provide for a maximum 55 mile per hour speed limit on Kansas highways. They were enacted by the legislature during the “energy crisis” of 1974. The defendant-appellant, George C. Dumler, was charged with driving 90 miles per hour in a 55 mile per hour speed zone. He was convicted in Saline county magistrate court and appealed to the district court. In the district court the defendant moved to dismiss the charge on the grounds that the statutes involved were unconstitutional or, in the alternative, that under established rules of statutory construction the legislature had suspended all statutes pertaining to speed limits on public highways. The defendant’s motion to dismiss was denied. He was found guilty of speeding as charged and has appealed to this court.
The first point raised by the defendant on this appeal is that the trial court erred when it refused to sustain the defendant’s motion to dismiss because by the enactment of K. S. A. 1974 Supp. 8-1340 the legislature suspended the operation of all Kansas statutes prescribing a maximum speed on the public highways. The question has arisen because of certain unusual circumstances which existed during tíre 1974 session of the Kansas legislature and which must be considered in order to determine the issue raised by the defendant. Prior to 1974 maximum speed limits for automobile travel in Kansas were controlled by K. S. A. 1973 Supp. 8-532 and K. S. A. 8-533. 8-532 established maximum speed limits at 70 miles per hour during the daytime, 60 miles per hour during the nighttime on roads and highways outside cities, excepting only interstate highways where the maximum speed limit was set at 75 miles per hour in the daytime and 70 miles per hour at night. This statute also authorized the state highway commission, a board of county commissioners, or a township board of highway commissioners to adjust speed limits up and down when justified on the basis of an engineering and traffic investigation. 8-533 authorized a city governing body to reduce and increase allowable speed limits in cities under similar circumstances. These statutes were enacted as a part of the uniform act regulating traffic on highways. The 1974 legislature completely revised the uniform act in Laws of 1974, Chapter 33. (K.S.A. 1974 Supp. 8-1401 through 8-2204.) K. S. A. 1973 Supp. 8-532 and K. S. A. 8-533 (Corrick) were repealed and replaced by 8-1557, 8-1558, 8-1559, and 8-1560 of the new highway code. 8-1558 of the new act set the same maximum speed limits up to 75 miles per hour on interstate highways.
The problem in this case arose because of the energy crisis of 1974. In order to conserve gasoline and petroleum products the Congress of the United States enacted 23 U. S. C. A. § 154 (a) which provided in pertinent part as follows:
“The Secretary of Transportation shall not approve any project . . . in any State which has ... a maximum speed limit on any public highway within its jurisdiction in excess of fifty-five miles per hour, . . .”
The effect of this statute was to deny federal highway funds to any state having a maximum highway speed limit in excess of 55 miles per hour. The Kansas legislature in response to this federal en actment determined that the provisions of 8-1557 through 8-1560 which authorized maximum speed limits in excess of 55 miles per hour should be suspended during the continuation of the energy crisis and until such time as Congress should remove such restrictions on maximum speed limits as a condition of receiving federal highway funds. To achieve this result the legislature enacted a supplemental act, Chapters 29 and 30, Laws of 1974. (K. S. A. 1974 Supp. 8-1334 through 8-1341.) A review of these statutes would be helpful. K. S. A. 1974 Supp. 8-1336 established maximum speed limits throughout the state, with an absolute maximum speed of 55 miles per hour in all locations. In pertinent part 8-1336 reads as follows:
“8-1336. Maximum speed limits, “(a) Except when a special hazard exists that requires lower speed for compliance with section 2, the limits specified in this section or established as hereinafter authorized shall be maximum lawful speeds, and no person shall drive a vehicle at a speed in excess of such maximum limits:
“(3) Fifty-five (55) miles per hour in all other locations. In the event that the Congress of the United States shall establish a maximum speed limit greater or less than the limit prescribed by this paragraph, the state highway commission may adopt a resolution, subject to the approval of the governor, establishing such speed limit as the maximum speed limit of this state. . . .”
8-1337 authorized the state highway commission to vary the maximum speed, provided that the commission not establish a máximum speed limit in excess of 55 miles per hour in accordance with 8-1336 (a) (3). 8-1338 gives similar power to local authorities with the same limitations. In 1975 the statutes were amended to substitute the newly created secretary of transportation for the state highway commission.
8-1340 is the section which provided for the expiration of the supplemental act and the suspension of the highway code’s speed limits until the supplemental act expired. K. S. A. 1974 Supp. 8-1340 provided:
“8-1340. Expiration of act; suspension of speed limit statutes until expiration. The provisions of this act shall expire on the date when the Congress of the United States shall remove all restrictions on maximum speed limits, and until said date the operation of sections 8-1557, 8-1558, 8-1559 and 8-1560 of 1973 Senate bill No. 587 and any other statute of this state establishing or authorizing the state highway commission or local authorities to establish maximum speed limits are hereby suspended.”
The supplemental act was enacted as Chapter 29, Laws of 1974. Section 7 of Chapter 29 suspended the operation of the former statutes, K. S. A. 8-533 and K. S. A. 1973 Supp. 8-532, and
“any other statute of this state establishing or authorizing the state highway commission or local authorities to establish maximum speed limits.”
Following the passage of Chapter 29, the legislature adopted Chapter 33, Laws of 1974, the revised uniform act regulating traffic on highways. Chapter 33 repealed 8-532 and 8-533 and replaced them with 8-1557, 8-1558, 8-1559 and 8-1560. In order to correct Section 7 of Chapter 29 the legislature enacted Chapter 30 which simply amended Section 7 of Chapter 29 to replace the words “8-533 and 8-532” with the words “8-1557, 8-1558, 8-1559 and 8-1560.” Otherwise Section 7 of Chapter 29 remained as it was originally enacted.
In construing these statutes we must first consider certain basic rules of statutory construction established by this court. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. (Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan 325, 552 P. 2d 1363.) This intent is to be determined by a general consideration of the whole act. 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. (Fleming Company v. McDonald, 212 Kan. 11, 16, 509 P. 2d 1162.) When the interpretation of one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. (Gnadt v. Durr, 208 Kan. 783, 494 P. 2d 1219; Claflin v. Walsh, 212 Kan. 1, 509 P. 2d 1130.)
We must apply these rules of statutory construction to the statutes in question. 8-1336 and 8-1340 were enacted by the legislature at the same time as part of the same act. The act was entitled “An act relating to and supplementing the uniform act regulating traffic on highways; establishing speed limits on highways; and suspending the operation of certain statutes.” (Laws of 1974, Ch. 29, 30.) These two statutes must be construed in pari materia. The defendant’s contention is that the clause suspending “operation of any other statute” in 8-1340 includes 8-1336. In our judgment such a contention cannot be sustained. A more logical interpretation would be that this clause refers to any other statute outside of this particular act. The obvious purpose and intent of the legislature in enacting the supplemental act was to change the maximum speed limit on Kansas highways from 75 miles per hour to 55 miles per hour. This change had to be made in order for the state of Kansas to be eligible to receive federal highway funds. The defendant would have us interpret the act as though one section of it was suspended upon enactment. This simply is not a consistent, harmonious, or sensible construction. Defendant’s position would serve to defeat one of the purposes of the act stated in the title — to establish speed limits on highways. A second purpose was to suspend the operation of certain statutes. 8-1340 specifically lists four statutes (8-1557 through 8-1560) which are suspended and then declares that any other statute establishing or authorizing the state highway commission or local authorities to establish maximum speed limits is also suspended. The only reasonable interpretation which fulfills both legislative purposes is that 8-1340 pertains only to statutes outside the supplemental act itself.
Although the uniform act which regulates traffic on highways and the supplemental act are not strictly penal statutes in the usual sense, our construction of the statute does not conflict with the rule of strict construction to be applied to penal statutes. The interpretation which we have adopted does not add or subtract words, nor does it attach anything other than the ordinary English meaning to the wording. The purpose of the rule which requires strict construction of penal statutes is to establish a rule of certainty regarding individual conduct. There can be no uncertainty as to the meaning of the statute now before us. The establishment of the 55 miles per hour speed limit was one of the most publicized and controversial statutory changes of recent years. There is no complaint raised by defendant that the statute, or intent of the legislature, is so vague as to make it impossible for a citizen to know how to conduct himself in order to be in conformity with the law. Suffice it to say, the supplemental act created a valid 55 miles per hour maximum highway speed limit in Kansas. We reject the defendant’s first point on the appeal as being without merit.
The defendant’s second point on the appeal is that the district court erred in its refusal to sustain the defendant’s motion to dismiss because K. S. A. 1974 Supp. 8-1336 through 8-1340 are unconstitutional as an unlawful delegation and surrender of the legislative power of the state of Kansas to the Congress of the United States. Simply stated, it is the position of the defendant that by these statutes the legislature has made the maximum highway speed limit in Kansas contingent upon future actions of the United States Congress because during the interim between passage and expiration of the supplemental act, it is the Congress of the United States which dictates the Kansas maximum speed limit and that Congress will continue to do so until it elects to return the power to the Kansas legislature, if ever. In this regard it is important to note that K. S. A. 1974 Supp. 8-1336 clearly and unequivocally fixes the maximum speed limit on the highways of the state at 55 miles per hour subject to a condition that the maximum speed limit may be altered by the state highway commission or local authorities upon the happening of a contingency, that being when Congress changes the speed limitation required for a state to qualify for federal funds for highway purposes.
The defendant is correct in his general statement of the law that legislative power to make a law cannot be delegated by the Kansas legislature to the Congress of the United States. It is equally true, however, that the legislature may make a law to become operative on the happening of a certain contingency or future event. A comparable situation was before this court in City of Pittsburg v. Robb, 143 Kan. 1, 53 P. 2d 203. Because of the economic depression in the 30’s Congress enacted the national industrial recovery act which created a federal emergency administration of public works which, among other things, was authorized to aid cities in financing the construction and improvement of publicly owned facilities and instrumentalities. In order that Kansas municipalities might take advantage of this federal act, a special session of the legislature was called by the governor in 1933. At this special session the legislature passed legislation authorizing municipalities to issue and sell special revenue bonds to pay the cost of installing and improving publicly owned utilities. One section of the Kansas act provided:
“ ‘This act shall become ineffective with the expiration of the national industrial act and amendments thereto.’ ”
George Robb, the state auditor, refused to register the revenue bonds of the city of Pittsburg, contending that the Kansas act was unconstitutional as delegating legislative power to the United States Congress. The city of Pittsburg filed an original action in mandamus in the supreme court to oompel the state auditor to register the bonds. The defendant’s position was that the continuing existence of a law of this state depended, not upon the action of the Kansas legislature, but on the aotion of Congress or action of the President, and consequently the Kansas legislature had. delegated to Congress and to the President legislative power. This court granted mandamus and upheld the validity of the Kansas statute. In the opinion the court stated that the effectiveness of a statute may be made to depend on the coming into existence of some specific future fact, event, or condition capable of identification or ascertainment. However, in such cases the action must be complete in itself as an expression of the legislative will and must itself determine the propriety and expediency of the measure. These requirements being satisfied, a statute may provide that its operation shall be conditional. In City of Pittsburg v. Robb, supra, the court relied upon Phoenix Ins. Co. v. Welch, 29 Kan. 672. There the legislature pased an act relating to insurance. It contained a reciprocity provision providing that if the existing or future laws of any other state should impose on Kansas insurance companies seeking to do business there heavier burdens than those imposed by this state, this state should impose equal burdens on companies coming here from other states. The proper amount of fees, charges, etc., was to be paid to the superintendent of insurance, the licensing officer. The statute was held to be constitutional. In the syllabus the court stated:
“While the legislative power of the state is by the constitution vested in the legislature, yet that body has authority to pass a law whose operation is by its terms made to depend on a contingency, even though that contingency be some action on the part of the legislature of another state.”
Under this decision the effeot of a statute may be contingent, according to existing law of another state, according to future law of another state, or according to a change in the law of another state. In City of Pittsburg v. Robb, supra, we stated that it is now settled beyond dispute by both state and federal decisions that the legislature may prescribe a rule to be applied according to the existence or nonexistence of some fact which some officer or board is required to ascertain. In analyzing 8-1336 and 8-1340 it is clear that the Kansas legislature has by no means totally yielded to the Congress its authority to establish maximum speed limits in Kansas. By virtue of 8-1340 the supplemental act, which creates the 55 miles per hour speed limit, expires on the date when the Congress of the United States shall remove regulations on maximum speed limits and the provisions of 8-1557, 8-1558, 8-1559, and 8-1560 immediately come into operation. Should Congress prescribe a different maximum speed limit for a state to qualify for federal highway funds, such action does not per se establish a new maximum speed limit in Kansas. When Congressional action occurs, it is the state highway commission (secretary of transportation) acting pursuant to statute who has the authority to establish the maximum speed limits of this state. Here the legislature, rather than delegating legislative power to the Congress, has simply enacted a law to become operational on the happening of a certain contingency or future event.
It should be noted that a similar Nebraska statute was recently upheld in State v. Padley, 195 Neb. 358, 237 N. W. 2d 883. In that case the Supreme Court of Nebraska stated the general rule discussed above that, although the legislature cannot delegate its power to make a law, it can make a law to become operative on ■the happening of a certain contingency or on 'the ascertainment of a fact on which the legislature intends to make its own law depend. The court then pointed out that it is the privilege of the Congress to fix the terms on which federal money allotments to ■the states are to be made; it is entirely optional with the states ■to accept or reject such offers. The mere fact that sharing in federal road funds was contingent on the state’s adapting a maximum highway speed limit of 55 miles per hour did not render the Nebraska speed limit statute unconstitutional. State v. Padley, supra, is directly in point. We have concluded that under the circumstances presented in 'this case the Kansas legislature has not unlawfully delegated or surrendered its legislative power to the Congress of the United States and the statutes in question are not unconstitutional for that reason.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Emmanuel Lee brings this direct appeal from the District Court of Morris County where he was convicted by a jury of twenty-one felony counts, one of aggravated kidnapping, eight of aggravated burglary, one of aggravated sodomy, two of aggravated battery, seven of rape, one of attempted rape, and one of felony theft. He was sentenced to imprisonment for life on the aggravated kidnapping conviction, to consecutive terms of not less than one nor more than twenty years on each of six aggravated burglary convictions, and to various concurrent terms for the other fourteen offenses. The crimes all took place in Geary County but on defendant’s motion for change of venue the case was transferred to Morris County for trial.
Defendant raises three points on appeal, contending that the trial court erred in refusing to give a requested instruction that consent is a complete defense to the charge of rape; in overruling his motion to dismiss, made on the grounds that he was denied equal protection under the law because he was not aiforded funds with which to hire his own handwriting expert; and in refusing him an “independent” mental examination to determine his competency to stand trial and his sanity at the time of the commission of the offenses.
The crimes all occurred between March 28 and August 13, 1974, in Junction City. The defendant broke into the homes of eight army wives early in the morning, when the husbands were gone and the wives were still sleeping. Entry was gained by stealth. The victim usually first became aware of Lee’s presence in the home when he put a pillow or pillow case over her head and held a knife at her throat. He threatened each victim that he was going to kill her or her child. All of the women were sexually molested. Several victims sustained knife wounds requiring substantial medical attention. One victim was forced from her home into an automobile and taken to two separate locations where she was repeatedly threatened and raped. In addition, the defendant took money and valuable articles from several of the homes. Some victims saw the defendant during the perpetration of the offenses, and identified him. Affidavits in the record state that defendant’s fingerprints and palm prints were found in some of the homes; that some of the stolen articles were recovered from his residence and some from a friend with whom he had placed them; that index cards, bearing diagrams of the location of the residences of seven of the victims, were found in defendant’s car; and that the husband of one victim found a letter (written in handwriting similar to that of the defendant) on the windshield of his truck, which letter purported to be written by the person who had assaulted his wife. The defendant does not challenge the sufficiency of the evidence to support the convictions.
Each of the victims testified. None knew the defendant prior to the commission of the offense. The defendant entered each house surreptitiously and without consent, used a dangerous weapon and physical force, made threats as described above, and had sexual intercourse one or more times with seven of the women. The defendant did not testify and there was no direct evidence of consent. The only evidence in the record upon which he seizes to suggest consent is the testimony of one victim that she lay in bed while the defendant stood and talked with her between attacks, and the failure of some of the victims to raise an immediate outcry, offer substantial physical resistance, or make an immediate report to the authorities. Such matters may be appropriate subjects for oral argument but they need not and ordinarily should not be singled out and specifically mentioned in the court’s instructions to the jury.
The requested instruction reads as follows:
“You are instructed that consent is a complete defense to the charge of rape. If you find that any of the alleged victims consented to the acts of intercourse or sodomy with the defendant, then you must return a verdict of not guilty. Among the factors you may consider in determining whether or not consent was given is evidence of the amount of physical resistance by the alleged victim, markes [sic] and bruises on her body, if there by [sic] any, the length of time it took any of the victims to lodge a complaint with the police, the doctors testimony if any there be, and any other factors you deem to be relevant, to the issue of consent.”
The trial court gave a standard instruction on the elements of rape, patterned after PIK Criminal 57.01, as to each separate rape charged. . That instruction required the jury to find that the act of sexual intercourse was committed without the consent of the victim. The jury was also instructed to determine the weight and credit to be accorded the testimony of each witness, to use common knowledge and experience in weighing the testimony, and to decide each charge separately on the evidence.
The elements of the offense were submitted to the jury in clear and understandable language. “Consent” is a common word in everyday use, employed in the instructions in accordance with its customary and usual meaning: voluntary agreement, acceptance, approval, or acquiescence in what is proposed or has been done by another.
Justice Kaul, speaking for the court in State v. Sparks, 217 Kan. 204, 535 P. 2d 901, said:
“. . . The court is not required to define every word or phrase in an instruction unless from a fair reading of the instructions as a whole there is likelihood the jury will be misled or left to speculate without further explanation. . . .” (p. 210.)
Here the jury was told that if it found that the act was committed without consent it could convict; otherwise, it could not. This was a clear statement and in no way misleading.
The requested instruction mentioned matters not in evidence, was argumentative, and in our opinion, tended to unduly emphasize portions of the evidence. The rule against argumentative instructions is aptly and concisely stated by justice Prager in Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 545 P. 2d 334:
“. . . Instructions should be general in nature insofar as possible, and should not be argumentative or unduly emphasize one particular phase of the case. Stated in another way, jury arguments should be left to the summations of counsel. . . .
“. . . A court should not single out a particular theory or circumstance and give it undue emphasis although the requested instruction correctly states the law. . . .” (p. 601.)
The rule is also stated in 75 Am. Jur. 2d, Trials, § 621:
“Argument, which lies properly within the domain of counsel in the case, finds no place in instructions of the court. A court should not give, and may properly refuse, argumentative instructions. . . .
“A charge is objectionable as being argumentative when it directs the jury to look to or consider certain facts as tending toward certain conclusions, or when it suggests to the jury the probable or possible effect of the conduct of one person toward another.”
The requested instruction was properly refused. The instructions given clearly stated the law and submitted the issues to the jury. Argument was left where it belongs, to trial counsel; the jury was left to weigh the evidence before it and to decide the issues. The record before us contains only eleven instructions, primarily those concerned with the charges of rape, attempted rape, and aggravated sodomy. It has long been a rule of this court that where instructional error is claimed, all of the instructions should be included in the record on appeal. State v. Ellis, 192 Kan. 315, 387 P. 2d 198. We have, however, concluded from the record before us that the court did not err in refusing the proposed instruction.
The defendant applied to the trial court for leave to employ a handwriting expert. The court granted his motion and authorized the expenditure of up to $300 of public funds for such service.
Apparently both the trial judge and counsel were under the impression that K. S. A. 22-4508 and the regulations thereunder limit the amount of money which a trial judge may authorize to be spent for expert or investigative services for an indigent, and that authorization for any additional funds must be secured in advance from the Judicial Administrator or the State Board of Supervisors of Panels to Aid Indigent Defendants. This is not correct.
Our stafute, K. S. A. 22-4508, and the regulations thereunder, are quite comparable to the federal provisions contained in 18 U. S. C. A. 3006A (e). Our statute provides in substance that an indigent defendant may make an ex parte application to the court in which the action is pending for needed expert services. The court then holds an ex parte hearing, and if it finds that the services are necessary it shall authorize counsel to obtain them. The court is authorized to determine the reasonable compensation and approve payment. The rules of the state board require the judge to fix a tentative limitation as to the amount of money to be spent for such services. If the amount is in excess of $300, then when claim for payment is submitted the claim is subject to further review and approval by the board of supervisors as to its reasonableness and as to budget limitations. Under these provisions the services of experts and investigators have been repeatedly furnished to indigent defendants, when the trial courts have found such services necessary.
Defendant next filed a motion to dismiss, contending that he had been denied the equal protection of the law for the reason that he had been unable to employ a handwriting expert for the $300 allowed. Upon oral argument, counsel stated that he had checked with handwriting experts and “they won’t even look at a piece of handwriting for $300.” He argued that the state had available to it unlimited amounts of money, but that the defendant had been limited to $300 for this particular expert. He contended that this was a denial of equal- protection. The trial court inquired whether counsel had made application to the state board for further funds, and was advised that no such application had been made. The court then denied the motion.
The equal protection and due process clauses “emphasize the central aim of our entire judicial system — all people charged with crime must, so far as the law is concerned, stand on an equality before the bar of justice in every American court.’” Griffin v. Illinois, 351 U. S. 12, 17, 100 L. ed. 891, 76 S. Ct. 585. We have found no cases, and counsel cite none, which require the state to furnish the defendant with an equal amount of funds and services as are within the reach of the state. Such would be an impossibility. The thrust of the equal protection clause, in the area in which we are here interested, is to require that all persons be treated alike under like circumstances and conditions. 16 Am Jur 2d, Constitutional Law, § 488. To this end, K. S. A. 22-4508 and the regulations have been enacted, in order to make the services of experts available to those who need them and are unable to obtain such services because of indigency. The appointment of experts is not a constitutional requirement; rather, requests for such services are to be measured by the requirements of the due process test of “fundamental fairness.” State v. Campbell, 210 Kan. 265, 500 P. 2d 21, citing Watson v. Patterson, 358 F. 2d 297 (10th Cir. 1966).
We should point out the familiar rule that an appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. State v. Pettay, 216 Kan. 555, 532 P. 2d 1289, and cases cited therein. The record before us does not disclose the handwritten document or its contents; nor does the record disclose whether the document was offered or received in evidence, or whether any handwriting experts testified on behalf of the state — although we were advised in oral argument that two experts so testified.
Assuming that the document was received in evidence and that handwriting experts were called by the state to link -it to the defendant, we are still in the dark. The contents of the document, its import, and the count or counts to which it relates remain matters of speculation.
The trial court authorized $300 for the employment of an expert. Defense counsel was unable to engage one within that budget; yet never at any time were additional funds requested. The trial court was not advised of the probable expense involved. No application was made directly to the state board. The defendant failed to exhaust the avenues open to him to secure the services of an expert, and in effect abandoned his attempts to secure them.
Further, it appears that the matter of handwriting was but a small portion of the state’s case; it was not an essential part of the state’s proof, as would be the case in a prosecution for forgery. Here it was but cumulative evidence.
In federal reviews involving section 3006A (e), it has been said that reversal is indicated only where a defendant has established prejudice by clear and convincing evidence. Mason v. State of Arizona, 504 F. 2d 1345 ( 9th Cir. 1974). We have no such showing here, and conclude that the trial court did not abuse its discretion, and that it properly overruled the motion to dismiss.
Finally, we turn to the defendant’s claim that the court erred in refusing him an “independent” mental examination. He originally moved for a mental evaluation at the Menninger Clinic at an anticipated cost of $1000. No facts supporting that motion were furnished to the trial court, and the motion was denied. On a subsequent motion, however, the trial court directed that the defendant be taken to the North Central Kansas Guidance Center at Manhattan, Kansas, for mental examination; this was done. The psychiatrist submitted a written report in which he expressed the opinion that the defendant was competent to stand trial, that he understood the nature of the charges against him and was capable of cooperating in the preparation of his defense, and that he was not insane in the legal sense of the word while committing the alleged offenses. Thereafter, the trial court denied subsequent motions for further mental examination.
Nowhere in this record is there any indication that the trial corut was furnished with any factual information tending to support such requests. Defendant had been in the army for six years and was on active duty at Fort-Riley when arrested. There was no showing of any history of mental illness, disease, defect, or mental retardation; no indication of whether the defendant had ever required psychiatric care or treatment; nothing to indicate that defendant acted in any manner other than normal, when appearing before the trial court; and no indication that defense counsel had any difficulty communicating with his client. We find none of this information in the record and no indication that such or similar information was presented in support of the motions.
The trial courts, in the exercise of their sound discretion, must determine whether psychiatric examinations are required, and whether expertise in the field should be made available to an indigent defendant for purposes of trial. K. S. A. 22-3302, since amended; 22-4508. Such discretion cannot be exercised in a vacuum; a trial court can only act upon the record before it, and here the defendant made no showing of the need for examination or for the services of expert witnesses. Accordingly, we hold that the trial court did not abuse its discretion in denying the unsupported motions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover on a policy of fire insurance on a' farmhouse.
The case is part of the aftermath of an appalling tragedy which occurred in Butler county some years ago, the repercussions of which have been chronicled in our reports. (State v. Oberst, 127 Kan. 412, 273 Pac. 490; In re Oberst, 133 Kan. 364, 299 Pac. 959; Oberst v. Mooney, 135 Kan. 433, 10 P. 2d 836.)
Briefly the facts of present concern were these: On and for some years prior to April 20, 1928, one W. F. Oberst, his wife and family consisting of six children (including this plaintiff) resided on a farm which he owned free of encumbrance. On that date he held a fire insurance policy issued by defendant for $1,500 covering his farmhouse (and separately covering other farm buildings not in volved) which had been issued on October 18, 1926, and on which the premium had been paid for a term of five years.
On the evening of April 20, 1928, W. F. Oberst and his wife and five- of his children met their deaths and their bodies were incinerated in their farm home which at the same time was burned to the ground.
On May 5, 1928, this plaintiff, then seventeen years and some months old and the only survivor and heir at law, was arrested for the murder of his father and mother and five brothers and sisters; and, on June 13, 1928, pursuant to a plea of gdilty, he was incarcerated in the penitentiary under seven sentences of life imprisonment.
On the day following the fire, the defendant’s local soliciting agent wrote to his company as follows:
“Burns, Kan., Apr. 21, 1928.
“Farmers Union Ins. Co., Salina, Kan.:
“On April 20, at about 8 o’clock in the evening, William Oberst dwelling house burned; a complete loss. It was insured in your company. Mr. Oberst, wife and five children were burned to death in the building; cause unknown.
“Resp. Yours, E. E. Lister.”
On April 25, 1928, Fred Oberst, brother of W. F. Oberst, was appointed and qualified as administrator of his dead brother’s estate. He employed an attorney, who on July 2, 1928, wrote to defendant as follows:
“I . . . wish to arrange with you for payment of the policy of insurance on the house of W. F. Oberst farm, which was totally destroyed by fire April 20. Please send the blanks for proof of loss and any instructions which you desire followed in connection with the same.”
On August 13, 1928, proof of loss was submitted to defendant by the administrator on a blank form furnished by defendant, in which was a statement touching the origin of the fire, as follows:
“Said to have been caused by son of insured setting fire to the property.”
Defendant acknowledged receipt of this proof of loss and in the same letter referred to the sixty days’ time given defendant by law to settle or reject the claims. Following that interval, action was begun by the administrator to recover on this policy. Defendant demurred on the ground that the administrator had no right to maintain the action. Thereafter the cause lay dormant until November 14,1932, when the demurrer was sustained and the action dismissed.
On January 12, 1929, the judgment and sentence of the district court imposed on plaintiff for the murder of his father and the similar judgments for the six other homicides were reversed; and on February 23,1929, by special mandate of this court, plaintiff was delivered by the warden of the penitentiary to the sheriff of Butler county, and thereafter confined to jail for the space of two years, during which time he was subjected to three inconclusive trials for the murder of his father, and until he was released on bond by order of this court pending its review of an order of the district court transferring the cause for trial to another jurisdiction. (In re Oberst, supra.) On October 10, 1931, all criminal proceedings against plaintiff were nollied, and he was discharged. Meantime he had attained his majority, and on October 6, 1931, he wrote to defendant as follows:
“Wichita, Kan., Oct. 6, 1931.
“The Farmers Union Mutual Insurance Company of Kansas, Salina, Kansas:
“Gentlemen — This is to notify you that the home of W. F. Oberst, covered by your policy A-9354, was totally destroyed by fire on the 20th of April, 1928.
“This is the same fire for which Fred Oberst, administrator of the estate of W. F. Oberst, brought suit in Butler county, Kansas, and is now pending, for the recovery under your policy.
“Owen Oberst, the undersigned, and sole and only heir of the insured, attained his majority September 11, 1931, and makes this notice within the thirty days after his disability was removed.
“If proof of loss is required by your company, please send your form of proof of loss and I shall make such statement as you may require covering the facts under my oath and return the same to you.
“Witness my hand the day and date first above written. Owen Obebst.”
In response to this letter the defendant advised plaintiff that the subject matter of the correspondence was in the hands of its lawyers. Hence this lawsuit.
Plaintiff’s petition set up the pertinent facts and attached a partial copy of the insurance policy on which the defendant’s bylaws were printed.
Defendant answered with a general denial, but admitted the execution of a policy of insurance on the property in question, and alleged that no proof of loss was made within the time and manner provided by the by-laws, and further alleged that the property “was intentionally burned by the plaintiff.”
Plaintiff’s reply pleaded the facts which we have narrated above in our statement of the case.
The cause was tried before a jury. The evidence developed no serious dispute of fact. Defendant offered no evidence to support its plea that plaintiff had burned the building. Plaintiff took the initiative in adducing evidence that his confessions of several years before touching the burning of the house (and the murdering of members of his family) were given under duress and untrue. However, since defendant abandoned that issue after tendering it, the defense of alleged arson went out of this case.
The jury returned a verdict for plaintiff, and judgment was entered accordingly.
Defendant appeals, directing attention to certain of its by-laws which were a part of the terms of the insurance contract, and which it still relies on as a bar to a recovery. These, in part, read:
“Article 16 — Notice and Proof of Loss
“If loss occur the insured shall give immediate notice of the loss in writing to the secretary and failure to give such notice within thirty days shall void the claim; . . . and within sixty days after the loss unless such time is extended in writing to the company, shall render a statement to this company signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; . . . and changes of title, ... of said property since the issuing of the policy . , .
“Article IS — Avoidance of Policy
“. . . This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto by the secretary, shall be void if the insured . . . shall fail to make proof of loss as provided by these by-laws.”
Neither in defendant’s answer nor in its brief is any point made of the fact that notice of the fire was not given by the insured (whose body was burned in the holocaust) nor by plaintiff as successor in interest. Notice was promptly given to defendant by its own local representative, who, however, was not charged with such a duty. On the efficacy of such a notice, see Germania Ins. Co. v. Curran, 8 Kan. 9; Stimpson v. Monmouth Ins. Co., 47 Me. 379; Mellen v. U. S. Health & Accident Ins. Co., 83 Vt. 242.
But defendant emphasizes the point that the requisite proofs of loss were not given within sixty days after the fire, and that in consequence liability was not perfected against it. On this point the trial court gave an instruction to the jury complained of, which reads:
“You are further instructed that if you find that the property was totally destroyed by fire and notice of same was given further proof was not required, and if otherwise entitled to recover, the plaintiff would be entitled to recover the full amount of the policy on the house, to wit, $1,500.”
Defendant cites several of the earlier cases of this court like Insurance Co. v. Ross, 48 Kan. 228, 29 Pac. 469, in which it was held that a failure of the insured to supply the proofs of loss within the time required by the terms of the policy, except where they were waived, would render plaintiffs claim subject to demurrer or non-suit. Such decisions, however, were rendered prior to the enactment of the valued-policy law. (Laws 1897, ch. 142; R. S. 40-413; R. S. 1931 Supp. 40-905.) That statute provides:
“Whenever any policy of insurance shall be written to insure any improvements upon real property in this state against loss by fire, tornado or lightning, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured, and the true amount of loss and measure of damages, and the payment of money as a premium for insurance shall be prima facie evidence that the party paying such insurance is the owner of the property insured: Provided, That any insurance company may set up fraud in obtaining the policy as a defense to a suit thereon.” (R. S. 40-413.)
In this case the insured property was wholly destroyed, and while the valued-policy statute quite properly recognizes the insurer’s right to invoke a defense of fraud, the prevailing construction of such statutes is that where the property is wholly destroyed the insured has a cause of action based on what is in effect a liquidated demand against the insurer, and that proof of loss becomes immaterial and the failure of insured to supply it will not defeat a recovery on the policy. (Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879; Minneapolis F. & M. Mutual Ins. Co. v. Fultz, 72. Ark. 365; Roe v. Dwelling House Ins. Co., 149 Pa. St. 94; Am. Cent. Ins. Co. v. Terry, [Tex. Com. of Appeals, 1930] 26 S. W. 2d 162.) Recent cases to the same effect are Cara v. Newark Fire Ins. Co., (Pa. St. May 22, 1933), 167 Atl. 356; Security Ins. Co. v. Vines, (Tex. Civ. App.) 48 S. W. 2d 1017; 26 C. J. 378. In McCollum v. Fire Ins. Co., 67 Mo. App. 76, the same rule was recognized although the court held it inapplicable in that case. In the latest Pennsylvania case above cited the supreme court held that the rule was one of general application where the insured property was totally destroyed and not limited to cases governed by the valued-policy act.
Counsel for defendant cite cases holding that the valued-policy act does not altogether dispense with the requirement of proof of loss, as where questions of ownership or of the bona fides of the loss may be involved. Here, however, there was no question of plaintiff’s ownership, and while the bona fides of the loss was raised by defendant, plaintiff’s evidence disposed of that point to the satisfaction of the jury, or at least to the satisfaction of the defendant as it offered no testimony to controvert it, and contented itself with its demurrer to plaintiff’s evidence.
In view of the conclusion we have just reached, it becomes unnecessary to determine whether plaintiff’s imprisonment during his minority would have constituted such a disability under the code (R. S. 60-305) as would have excused his long delay in offering proofs of loss. But see Vance on Insurance 503, 504 and citations.
The record contains no error and the judgment is affirmed.
Burch and Hutchison, JJ., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a beneficiary certificate for $5,000 claimed to be due because of death by accident of the insured. Defendant contends it is liable for no more than paid-up insurance in the sum of $293. The trial court made findings of fact and conclusions of law and rendered judgment for plaintiff in the sum claimed. Defendant has appealed.
Defendant is a fraternal benefit society organized under the laws of Iowa and authorized to do business in Kansas, and will be referred to herein as the association. It has local lodges, known as homesteads, a legislative body known as the supreme conclave, and a board of directors with powers to determine, within certain limits, classes and forms of certificates, the benefits provided for therein, and the contributions or premiums to be paid by members therefor, and to modify or change these from time to time; also, under some circumstances, to declare refunds of premiums paid. It issues several classes and forms of certificates, some of which are in the form ordinarily issued by fraternal benefit societies, others of which are quite like policies normally issued only by old-line life insurance companies. The certificate sued on in this action is a “twenty-payment life certificate, legal reserve form C,” with a level premium rate. It was to become fully paid up for its face amount in twenty years if the payments due thereon for that time were made. By its terms the association agrees to maintain with the insurance commissioner of the state of Iowa the accumulations necessary to provide the benefits promised by the certificate, being the usual reserves computed by the American experience table of mortality and four per cent interest. It provided two classes of benefits: (a) death benefits, payable to the beneficiary, $2,500 if death was from normal cause, $5,000 if from accident; (b) disability benefits, payable to the insured, $1,250 for total, permanent disability through accident or disease if the certificate had been in force for two years, or the same sum for partial disability for the loss of sight of both eyes, or the loss of both legs above the ankles, or of both arms above the wrist, or of one arm above the wrist and one leg above the ankle; or, $625 for the loss of one arm above the wrist, or one leg above the ankle. Under the heading, “Paid-up and extended pro tection, withdrawal equities and loan values,” it provided, in accordance with a table printed thereon, at the end of the four years, paid-up protection in the sum of $293, cash withdrawal or loan value in the sum of $80, and extended protection for a term of four years and 133 days. In this connection it further provided:
“After the payment of monthly or other payments for three or more full years, one of the following options shall become effective:
“1st. Automatic paid-up protection. In case of the nonpayment of any monthly or other payment when due hereon, then, without any action on the part of the member named herein, this certificate will become a paid-up certificate for the amount shown by the adjoined table of paid-up protection and such amount will be payable in one sum under the conditions of this certificate upon the .death of the member; or,
“2d. Cash withdrawal value. Upon a full and valid surrender of this certificate while it is in full force, the association will pay the then cash withdrawal value as shown by the adjoined table of value; provided, that the association may defer such payments for a period not exceeding sixty days from the date of the application therefor; or,
“3d. Extended protection. Upon written request of the member named herein, made while this certificate is in full force, the association will extend and continue in force the full amount of this. certificate $s term protection for the number of years and days shown by the adjoined table of extended protection.
“4th. Automatic monthly payment loans. Upon written request of the member named herein, made while this certificate is in full force, the monthly or other payments thereafter falling due, if not paid, will be charged against this certificate as a loan bearing compound interest at the rate of six per cent per annun until such time as the accumulated loans, together with any other indebtedness with interest thereon, shall equal or exceed the cash withdrawal value hereof, in which case this certificate shall thereupon become null and void and be surrendered to the association in consideration of the cancellation of the indebtedness. While this certificate is thus continued in force, the member may resume the payment of monthly or other payments without furnishing evidence of good health, and the accumulated loans and interest may be repaid or allowed to stand as a lien against this certificate.
“5th. Cash loan. . . .” (Not important here.)
The certificate contained this agreement:
“It is agreed by the member holding this certificate that the certificate, the charter or articles of incorporation, the by-laws of the association and the application for membership, and the medical examination, signed by the applicant, with all amendments to each thereof, shall constitute the agreement between the association and the member; and any changes, additions or amendments to said charter or articles of incorporation and by-laws of the association enacted subsequent to the issuance of this certificate shall be binding upon the member and his beneficiary, or beneficiaries, and shall govern and control the agreement in all respects in the same manner as if such changes, additions or amendments had been made prior to and were in force at the time of the application for membership.”
The certificate was issued March 2,1926, to John Edward Lawson, of Arkansas City, Kan., a member of Homestead No. 1277, and named Amelia Jane Lawson, mother of the insured, as beneficiary. Payments for the certificate named thereon to be paid by the insured were, if made annually, $57.98; semiannually, $30.10; quarterly, $15.20; monthly, $5.35; children’s home fund, monthly, 10 cents. The amount of the homestead dues was not indorsed on the certificate, but it is agreed they were 20 cents per month. The certificate had attached a rider, quoting from a by-law: “Monthly payments are due on the first of each month. The member shall have until the last day of the month in which to pay the same before being suspended.” Also, a statement that it would cost less if remittances were made quarterly, semiannually, or annually.
The insured paid an annual payment in March, 1926, another in March, 1927, another in March, 1928, and another in April, 1929. He made no payment in March or April, 1930. He was killed in an airplane accident April 24, 1930. The principal controversy here is, For what sum was the certificate in force at the time of his death? On behalf of the association it is contended that under the certificate, and specifically under paragraph 1, relating to “paid-up’ and extended protection, withdrawal equities and loan value,” it automatically became a paid-up certificate for $293 in accordance with the table shown on the certificate. Plaintiff, the beneficiary named in the certificate, contends this interpretation of the certificate is incorrect and that she is entitled to the full $5,000 benefit provided in the certificate for the accidental death of the insured, for the reasons:
First, the certificate alone is not the contract between the parties. The contract consists of the certificate, the charter or articles of incorporation, the by-laws of the association, the application for membership and the medical examination, with all amendments thereof made between the time the certificate was issued and the death of the member. One of the by-laws (sec. 118), in force at the time the certificate was issued, reads as follows:
“The correspondent shall not accept either dues or assessments alone. Each and every member notified that an extra or increased benefit assessment has been levied and ordered by the board of directors in the manner provided, who shall fail to pay the same on or before the last day of the month for which said extra or increased assessment has been levied, or who shall fail to pay the regular payment, including his dues, on or before the last day of the month in which the same falls due, or who shall engage in any of the prohibited occupations mentioned in these by-laws, or who shall become addicted to the intemperate use of intoxicating liquors, opium or morphine, so as to impair his health, or who shall be convicted of a felony, or who shall attempt to commit suicide, shall be automatically suspended, without any action on the part of any homestead or any officer or officers of this association, and the certificate held by such member shall immediately become null and void, and all payments made thereon shall be forfeited, payments to the local correspondent notwithstanding. Provided, that a member holding a form C certificate on which he has paid the monthly or other required payments for three full years or more shall be entitled, within thirty days from the date of his said suspension, to exercise one of the options specified in his said certificate relating to paid-up and extended protection or cash withdrawal value, but only upon the terms and conditions contained in his said certificate; provided, however, no such election shall be valid unless in writing, signed and duly acknowledged by the member before a notary public or witnessed by the correspondent of the member’s homestead within said thirty-day period and received by the secretary of the association within forty days from the date of suspension. If the member exercises no such option within said thirty-day period, then his certificate shall be in force for only the amount and period provided by the terms thereof.” (Italics ours.)
Under this by-law none of the options named in the certificate under the heading, “Paid-up and extended protection, withdrawal equities and loan value,” automatically went into effect, for the reason that the by-law gave to a member holding form C certificate, on which he had paid three years or more, thirty days from the date of his suspension in which to exercise the option. It is conceded in this case that the insured had all of the month of March, 1930, in which to make his payment, and that he did not become suspended before midnight on March 31. By this by-law he had thirty days thereafter in which to make his election of options. He died within the thirty days without having made such an election, but soon after his death, and within the month of April, his beneficiary, the plaintiff herein, did make an election to take extended insurance, which, under the table shown by the certificate, was for four years, 133 days, and under which the certificate would have been in full force at the time of the death of the insured. There is much argument in the brief as to whether plaintiff could make such an election, she contending that she could do so under the law applicable to such a situation, while defendant contends that the right of election was personal to the insured and could not be exercised by anyone else, and certainly not after the death of the insured. We find it unnecessary to rule on this point for the reason that this by-law was amended in January, 1928, and again in June, 1929, as section 108, which last amendment was in force at the time of the death of the insured. It reads:
“The local secretary shall not accept either dues or assessments alone. Each and every member who shall fail to pay the local secretary of his homestead the regular payment, including his dues, on or before the last day of the month in which the same falls due, or who shall within two years from the effective date of his certificate engage in any of the prohibited occupations mentioned in these by-laws, or who shall become addicted to the intemperate use of intoxicating liquors, opium or morphine so as to impair his health, or who shall be convicted of a felony, or who shall attempt to commit suicide, shall be automatically suspended without any action on the part of any homestead or any officer or officers of this association, and the certificate held by such member shall immediately be null and void and all payments made thereon shall be forfeited, notwithstanding any payments made to the local secretary after the date of such suspension unless the same are made in full compliance with the by-laws of the association relating to reinstatement of members. Provided, however, if the certificate of a member which provides for paid-up or extended insurance on default of payments, after the payment by the member of the required payments for three or more full years, is suspended as herein provided, it shall be continued in force for that part of the death benefit only and for the period provided by the terms of said certificate in the event of default of payments by the member.” (Italics ours.)
From the statement of the contents of the certificate hereinbefore made there were, broadly speaking, two classes of benefits: (a) death benefit; (b) total or partial disability benefit. It will be observed that this by-law did not continue the certificate in force for the total or partial disability benefit, but did continue it in force for death benefit, which is the class of benefit sought to be recovered for in this action; and by this by-law the certificate was to be continued in force “for the period provided by the terms of said certificate.” The only period specifically provided by the terms of the certificate for it to be continued in force, it having been paid on for four full years, is four years and 133 days. This amended by-law, binding on the association and the member, continued the certificate in force for the death benefit for time later than the date of the death of the insured.
Here the parties agreed that the contract between them should include the by-laws then existing, or as they should be later amended. Under such circumstances the amended by-law became á part of the contract.
(Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Miller v. National Council, 69 Kan. 234, 76 Pac. 830; Kirk v. Aid Association, 95 Kan. 707, 149 Pac. 400; Messenheimer v. Fraternal Aid Union, 103 Kan. 552, 175 Pac. 679; Gray v. United Workmen, 111 Kan. 88, 206 Pac. 311; Dey v. Knights and Ladies of Security, 113 Kan. 86, 213 Pac. 1066; Haney v. Farmers Alliance Ins. Co., 134 Kan. 5, 4 P. 2d 460.)
Appellant argues if there is inconsistency between the 'terms of the certificate and the by-laws the terms of the certificate should control. We do not understand that principle to be applicable here. Where the contract consists of the by-laws, the certificate and certain other documents, all should be considered. They should be construed together. If there is inconsistency in them when so considered the court will, when interpretation is possible, so construe them as to give the insured the benefit of provisions favorable to him.
(Pyramids v. Lrake, 66 Kan. 538, 72 Pac. 239; United'Workmen v. Smith, 76 Kan. 509, 92 Pac. 710; United Workmen v. Crandall, 80 Kan. 332, 102 Pac. 843; Forney v. Insurance Co., 87 Kan. 397, 403, 124 Pac. 406; Tucker v. Kirkpatrick, 106 Kan. 881, 189 Pac. 946; Ellis v. Fraternal Aid Union, 108 Kan. 819, 823, 197 Pac. 189.)
We conclude the association is bound by this amended by-law, and under it plaintiff is entitled to recover.
Plaintiff claimed the right to recover for another reason. In July, 1928, the defendant association prepared and had printed a four-page leaflet, spoken of in this record as a circular, one of which it caused to be mailed to the insured, John Edward Lawson. This leaflet was entitled: “The Stability of Legal Reserve Insurance as Issued by The Brotherhood of American Yeomen, Based upon an Actuarial Analysis of our Certificates.” In part it reads:
“ ‘Protection First’ the Watchword.
“The one idea which can never be lost sight of in devising a certificate form is that there can be no slightest chance that the promised benefits will not be paid. The members of our society have the very best assurance that the Yeomen will meet all its promises; namely, the fact that our rates are based on the most conservative mortality standard in general use, the American experience table of mortality, and the fact that the society maintains at all times the required reserve according to that table of mortality and 4 per cent interest.”
There is more of a similar nature, and a discussion of uses which may be made of refunds, and a further discussion of optional payments to beneficiaries. Then follows:
“Protection in Case of Lapse.
“The beneficiary of the members must not only be protected as long as the member remains in good standing and keeps up his premium payments, but as long as the society can protect that beneficiary by means of the reserve.
“Accordingly, in case of lapse, after a certificate has been in force for three or more years, the following nonforfeiture options will carry the protection of the member’s beneficiary beyond the date when he becomes suspended or lapsed:
“1. Automatic Continued Protection. If a member becomes suspended for nonpayment of premiums, after his certificate has been in force for three years or longer, the society, without any directions from him, will take from his reserve the amount of his monthly premiums, and thus keep his certificate in force for as many months as the money in reserve will carry. Later, if the member wishes to reinstate, he can do so without a medical examination. The monthly premiums so borrowed from the reserve are deducted from the death benefit in case of death, and as long as they remain unreturned they bear six per cent interest. These borrowed premiums can be repaid at any time, or they can remain unpaid as long as the total, with interest, does not exceed the required reserve.
“2. Extended Protection. In order to continue the insurance after lapsation on this option, the member must give written directions to that effect, to the home office. . . .
“3. Paid-up Protection. This option also requires written notice. . . .”
This is followed by a paragraph concerning terms of payment of premiums or contributions, and a statement of the forms of certificates issued by the association, including “twenty payment life,” which is the form of certificate sued on in this action.
The fourth paragraph, under the heading “paid-up and extended protection, withdrawal equities and loan value” in the certificate, provides briefly that upon written request of the member his payments, if not made, would be charged against the loan value of his certificate and keep it in force as long as the loan value would do so. If the provisions of this leaflet are to be given effect, the association, without written request from the member, would use the reserve or loan value of the certificate for that purpose. This was to be done to protect beneficiaries. The reserve or loan value of this certificate in March, 1930, was $80. Had it been applied toward the payment of premiums, as the leaflet stated it would be applied, without request from the member, or as it would have been applied under the certificate had the member requested it, the certificate would have remained in force for a period much later than the death of the insured. The association contends it is not bound by what was stated in this leaflet, for the reason that it was nothing more than a circular prepared and mailed out for advertising purposes and was descriptive only of new forms of certificates then being issued, and had no reference to certificates previously issued, such as is sued on in this action; that it was not signed by the officers of the association, and that it did not purport to amend any existing by-laws. By the pleadings in this case it was charged by the plaintiff, and admitted by the defendant, that it was prepared and sent out by the association; hence, whether it was signed by the officers of the association is of no consequence. As previously noted, the board of directors of the association had extensive powers. A bylaw in force at the time the certificate sued on in this action was issued, and ever since, provides that the board of directors, in the interim between meetings of the supreme conclave, shall have power to adopt, amend, repeal, promulgate and enforce all rules and regulations pertaining to (1) the amount of death, disability, or other benefits that may be provided or agreed to be paid to members; (2) the rate of monthly or other payments to be made by members; (3) the reinstatement of members and exchange of certificates from one form to another; (4) "and all other matters regarding a plan or system of benefits as distinguished from the social or general features of the association. . . .” The record discloses these extensive powers of the board of directors were exercised from time to time. Even the form of the certificate sued on in this action, in one important respect, was not specifically provided for by the by-laws, nor the rate of payments by the member set out by the by-laws, but these matters were determined by orders or resolutions of the board of directors. So, here we have provisions affecting the rights of members under their certificates concededly prepared and sent out by the proper officers of the association, who had authority under the by-laws to do the very thing attempted to be accomplished, namely, authorize the use of the reserve to keep a certificate in force for the benefit of beneficiaries without requiring a written request therefor from the member. There is nothing in the leaflet or circular which indicates that it applied to new forms of certificates only, or that it was intended solely for advertising purposes for getting new members. On the other hand, it describes the specific certificate issued to the insured in this case. It was sent to him by the association. He read it and understood that it applied to his certificate. There is oral testimony to that effect. Appellant complains that such oral testimony was admitted, but certainly it goes ho further than the association would expect the member to do if there were no such oral testimony; namely, that he read it, understood that it applied to his certificate, and further understood that if his payments were not made promptly the association, without written request on his part, would use the reserve of his policy, which he knew was more than enough to pay his annual premium, to keep it in force for the protection of his beneficiary. Certainly the association is not in position to say that a member who complies with information conveyed to him by the association under authority of its by-laws has acted to his prejudice and rendered his certificate void. As bearing on this point, see Ellis v. Fraternal Aid Union, supra; Green v. Insurance Co., 112 Kan. 50, 54, 209 Pac. 670; Bierback v. Mutual Benefit Health & Accident Ass’n, 100 Neb. 675, 161 N. W. 251; and Insurance Co. v. Eggleston, 96 U. S. 572, and the authorities collected in Rose’s notes thereon.
Plaintiff argues two other questions as to the liability of the association, but in the view we have reached on questions hereinbefore determined it is not necessary to consider them.
Finally, appellant contends it should not be required to pay because there was no formal proof of loss. Plaintiff alleged that formal proof of loss had been waived, and defendant put that question in issue by the answer.' The trial court found the association was notified promptly of the death of the insured; that it immediately admitted liability for $293 only; that a little later the association sent a representative to the beneficiary, who admitted liability for the amount of paid-up insurance and offered to pay it. When plaintiff refused to accept that sum, $500 was offered, and that was refused. There has never been a contention that the defendant was not liable in some amount; neither was there any contention in the trial court that defendant was not liable by reason of the manner in which the death of the insured occurred. It is conceded now that formal proof of death, on blanks furnished by the association, could have been made readily. Under these circumstances the making of such proof was a formal matter only. The lack of it was no handicap to the association, and the trial court correctly held such proof had been waived.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff sued the defendant for slander. Defendant filed a cross action for assault and battery. Defendant prevailed, and the case is here for review.
It appears that both plaintiff and defendant had some cattle in a pasture near Hunter, a railway point in the southwest part of Mitchell county. Among these cattle were two roan bull calves somewhat alike in general appearance, but one was worth several dollars more than the other. Plaintiff sold his cows and heifer calves but kept his bull calves. In delivering the cows, however, he let the bull calves go along, intending to take them back to the pasture in a truck. While driving the cattle on the highway defendant came along and got into a heated argument with plaintiff about the ownership of the better bull calf. Defendant declared he would have plaintiff arrested before sundown, intimating that plaintiff was engaged in the theft of the calf. He may have made similar intimations on subsequent occasions.
The same evening plaintiff met defendant and sought to renew the discussion about the ownership of the calf. While plaintiff denied making any show of violence towards defendant, the evidence which the jury chose to believe was that plaintiff “grabbed” defendant and that they “wrestled around there a little,” and that defendant “jerked loose and ran across the street.”
Some time later defendant brought an action in replevin to obtain possession of the calf, but that action was dismissed. Then plaintiff brought this action for damages for slander, charging that defendant had falsely and publicly called him a thief. Defendant answered with a general denial, and in a cross petition pleaded a cause of action against plaintiff for assault and battery.
The cause was tried before a jury, which returned a verdict for defendant in the sum of $125 and answered special questions, viz.:
“1. Did the defendant, C. A. Bureman, use any. defamatory words concerning the plaintiff? A. No.
. . . . . . . . . .
“3. If you. find that the defendant should recover damages for the assault and battery alleged in said petition, state how much you allow
(a) For pain and suffering. A. $120.
(b) Defendant’s doctor bill. A. $5.
(c) Permanent injury.
“4. To whom did the roan calf mentioned in the evidence as taken to the stock yards at Hunter, Kan., belong? A. C. A. Bureman.”
The trial court gave judgment for defendant on the verdict, and in addition thereto made an order requiring plaintiff to return to defendant the roan calf.
Plaintiff assigns various errors, the first of which is based on the admission of certain testimony. Over objection a witness for defendant was permitted to testify that when plaintiff sought to talk with defendant at Hunter on the evening of the day the dispute about the calf had occurred, plaintiff’s brother said to plaintiff, “Kick the son of a bitch,” and made a vulgar suggestion needless to repeat. Before finally ruling on plaintiff’s objection to this testimony, the court inquired if plaintiff was present, and being advised in the affirmative, overruled the objection. The record reads:
“The Court: He is asking him to tell what was said in the presence of plaintiff. Objection overruled.”
Plaintiff’s motion to strike out the answer was likewise overruled. Plaintiff requested that the jury should be instructed not to consider the testimony which narrated the above remarks of plaintiff’s brother. This request was denied, and on this point the trial court instructed the jury thus:
“12. The only purpose for which you can consider any statement made by George Baird [brother of plaintiff] in the presence of the plaintiff as mentioned in the evidence in this case is for the purpose of showing whether or not there was any feeling on the part of the plaintiff toward the defendant.”
Counsel for appellee seek to justify the rulings on the foregoing, and the pertinent instruction likewise, under the rule laid down in Corpus Juris and elsewhere that where a statement of fact affecting a party on his rights is made in his presence or hearing, so that he understands it, and the statement is of such a nature as to call for a reply, the statement, in connection with his total or partial failure to reply, is admissible as tending to show a concession of the truth of the facts stated. (22 C. J. 321.) This rule is a familiar one in the law of evidence in criminal cases. In State v. Cruse, 112 Kan. 486, 494, 212 Pac. 81, it was thus stated:
“Statements of a third party to the prejudice of one accused of crime, made in his presence and which he tolerates without resentment, explanation or denial, are ordinarily admissible as some evidence of his consciousness of guilt.” (Syl. ¶ 6.)
But how does this rule justify the admission in evidence of the remark made by plaintiff’s brother? The brother did not make any statement of fact. He said nothing affecting plaintiff’s rights. He said nothing which called for a reply or for any showing of resentment, explanation or denial from plaintiff. The trial court instructed the jury that the brother’s remark was admissible for the one purpose of showing “whether or not there was any feeling on the part of plaintiff towards the defendant.”
This court cannot give its sanction to such a rule of evidence. The evidence was clearly incompetent, the instruction was erroneous, and we regret to add that it was manifestly and highly prejudicial.
Error is also assigned on the refusal of the trial court to give an instruction that if defendant said plaintiff was a thief and if that statement was false, plaintiff would be entitled to nominal damages, at least, and such further actual damages as he had suffered to his good name or reputation. However, the jury found on controverted evidence that defendant had not used any defamatory words concerning plaintiff, which, as we construe it, was equivalent to a finding that he had not called plaintiff a thief. Consequently the criticized instruction becomes immaterial.
Yet another error is based on the order of the trial court that the calf in controversy should be delivered to defendant. There was a finding of the jury that the calf belonged to defendant, but since there was no issue raised by the pleadings for the possession of the calf, it was not a proper subject for adjudication in this lawsuit. The fact of ownership of the calf was only pertinent in this lawsuit for whatever light it might throw on the issues of slander and assault and battery. Defendant had once instituted an action in replevin for the calf. Certainly it cannot be assumed that he suffered that action to be dismissed on the theory that the possession of that calf could be adjudicated in such an action and cross action as the one under present review.
To conclude: On plaintiff’s cause of action it seems clear that he has been defeated on a disputed issue of fact. To that extent the judgment of the district court is affirmed. So much of the judgment as relates to the disposition of the calf is set aside. In other respects the judgment is reversed and the cause remanded for a new trial limited to a proper determination of the issues raised on defendant’s cross petition.
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The opinion of the court was delivered by
Burcpi, J.:
The action was one for damages which plaintiff asserted she sustained when she was excluded from membership in the defendant company, an incorporated fraternal insurance society. Judgment was entered for defendant on the pleadings and opening statement of counsel for plaintiff. Plaintiff appeals.
Allegations of the petition at present material were that plaintiff was for many years a member in good standing of St. Veronica Society No. 115 of the defendant union, and the holder of a certificate issued to her by defendant, granting privileges of membership in the union, including participation at her death in the mortuary fund, to the amount of $1,000. A copy of the certificate was attached to the petition. The name of the beneficiary was Margarethe Prebelic, which was plaintiff’s name when the certificate was issued. One provision of the certificate was that while plaintiff was a member she would strictly comply with all the laws, rules and requirements relating to defendant, the Grand Carniolian Slovenian Catholic Union of the United States of America. On the certificate was indorsed a written acceptance signed by plaintiff, which reads:
“I hereby accept this certificate on the conditions named above, and agree that my rights and the rights of my beneficiaries shall be governed and controlled by the laws, rules and regulations of the Grand Carniolian Slovenian Catholic Union of the United States of America now in force, or which may be hereafter adopted.”
The petition alleged that a section of the constitution and by-laws of the union provided as follows:
“Whoever shall enter into a civil contract of marriage, he shall thereby ipso jacto expel himself or herself from this union.”
On August 27, 1927, plaintiff entered into a civil contract of marriage with Carl Koresic, in accordance with the laws of Kansas. Plaintiff was tried by the trial board of St. Veronica Society No. 115, was found guilty of violating the quoted provision of the constitution and by-laws, and an order expelling her from the union was entered. On appeal to the supreme judicial tribunal of the union, the conviction and expulsion were sustained.
The petition alleged the quoted provision of the constitution and by-laws was void, and by plaintiff’s wrongful expulsion she lost privilege to continue to enjoy the protection afforded by the certificate, lost privilege to enjoy the society of members of the union, and suffered humiliation and mental distress.
Material portions of the answer were that under the constitution and by-laws of the union only a person who professes and is of the Catholic faith is eligible to membership'; a person who does not belong to a Catholic parish or church is ineligible for membership; and one who ceases to be in good standing is not eligible to remain a member of the union. The answer further alleged that divorce is contrary to the ecclesiastical law of the Catholic church, and that any one desiring to marry must be married by a Catholic priest. In this instance, when plaintiff became a member of the union she was married to Bartol Prebelie. Afterward she obtained a divorce from Prebelie. While her divorced husband was still living she married Koresic. All this was in violation of the law of the church, and the plaintiff ceased to be and to remain a Catholic in good standing.
The reply denied all material allegations of the answer inconsistent with the petition. The allegations of the answer which have been summarized were not inconsistent with the petition, and consequently were not denied. The reply alleged plaintiff was tried, convicted, and expelled for entering into a civil contract of marriage, and nothing else, and alleged the facts stated in the answer constituted no defense to the action.
The opening statement of counsel for plaintiff merely outlined the case made by the petition, and in effect judgment was entered for defendant on the pleadings.
The answer was important in two respects: First, even although the order expelling plaintiff from the union was based on a specific act which disqualified her from membership, the damages would be small if she could not in any event remain a member because of divorce, and because of remarriage while her first husband was alive. Second, validity or invalidity of the by-law and of the order of expulsion pursuant to it depended on the true meaning and the reasonableness of the by-law, under all the circumstances. The petition carefully excluded all interpretative data. The answer supplied facts which the court would inevitably require to be developed before pronouncing upon validity or invalidity. The court knew what every reasonably well-informed person knows, that the Roman Catholic church regards marriage as a sacrament. (Webster’s New International dictionary, title, sacrament.)
Plaintiff contends the by-law is void in that it is in restraint of marriage. In effect the argument is that the words of the by-law must be accepted as written, and must. be accorded their usual and ordinary meaning, without enlargement of signification. The words refer to the civil contract itself, and not to any ceremony of solemnization. The words are that whoever enters into a civil contract of marriage thereby expels herself from the union. The statute of, Kansas declares that marriage is a civil contract, and the by-law puts a penalty on lawful marriage.
The proposed method of interpreting the by-law cannot be accepted. Of course, words are to be accorded their usual and ordinary meaning, and of course nothing can be read into the by-law. But the court could not be restricted to a Peter Bell attitude with respect to the by-law. The words might be and in fact were charged with potency which the court could not estimate without knowing who was using them and for what purpose of the users they were employed.
The by-law does not say that one who marries forfeits membership, and is not directed against marriage. It specifies conduct which constitutes a disqualification for continued membership in the union. Membership in the union is limited to adherents to the Roman Catholic faith who belong to some parish or church. Under the law of the church, marriage not only includes all the essentials of a civil contract, but very much more. Marriage is a sacrament, and can have no validity except through consecration by religious ceremony. Marriage thus raised to the dignity of a sacrament is indissoluble, except by death, or by the church which alone had power to create the matrimonial union. Any other kind of union, as by civil contract, is carnal. One who, by conduct, flouts this cardinal doctrine of the church becomes undesirable as a member of the union.
The result of the foregoing is, the words “civil contract of marriage” were used to distinguish marriage according to civil law from marriage according to church law, and the by-law means that one who marries without observance of the rite by which, according to Roman Catholic culture, divine grace is conferred, ceases to be a member of the union.
The necessity for considering the by-law in proper perspective may be shown in another way.
Plaintiff quotes Restatement, Contracts, § 581, which reads:
“A bargain not to marry, or to be subject to loss or deprived of profit in case of marriage, or a bargain to hinder or prevent the marriage of another, is illegal, unless the .bargain is otherwise reasonable and the restraint is incidental to another lawful purpose of the bargain.”
In this instance, the certificate of membership discloses no bargain not to marry, and discloses no bargain to be subject to loss or deprivation of profit in case of marriage. There was no attempt to prevent marriage, either by promise or by provision for a condition. (Restatement, Contracts, § 581, Comment a.) The illustrations following the comment show many instances of approved legal restraints on marriage. (See, also, Grimison v. Board of Education, 336 Kan. 511, 16 P. 2d 492; Smith v. Nyburg, 136 Kan. 572, 16 P. 2d 493.) The latter part of the section opens the subject of reasonableness of the membership bargain, and relation of the restraint to lawful purpose. As the Restatement indicates in respect to restraint of trade, a rule of reason, even if somewhat vague, must be employed in determining legality or illegality of restraint of marriage. (Restatement, Contracts, §§ 514, 515 and Comment a, § 516.) This may not be done without a full understanding of the entire situation.
In the light of what has been said, it is not necessary to discuss the reasonableness of the by-law, designed to keep the membership of the union free from contamination, and plaintiff concedes that if the by-law be viewed as .the court views it, it was valid and plaintiff’s expulsion from the union was proper.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Dalbert Hitsman, a minor, by Mae Hitsman, his mother and next friend, brought this action against R. E. Athey, sheriff of .Geary county, and Thos. B. Kennedy and R. B. Fegan, signers of-.the official bond of the sheriff, charging that the sheriff and his deputies, while pursuing ,and seeking to make an arrest, purposely,,or negligently fired a revolver towards an automobile in which.Dalbert Hitsman was riding, which struck and wounded him. A jury was first impaneled to try,the case, but later the parties stipulated that the jury be .discharged and the whole matter submitted to the court alone, to make findings of fact as well as conclusions of law. At the close of the trial the court made the findings of fact and gave judgment in favor of the defendants.
Material findings relating'to the incidents of the injury, the place in which the still was operated, the search for the operator, and the relation of the sheriff and his deputy to the search when Hitsman was shot and injured, follow:
“On Saturday evening, August 15, 1931, Sydney C. Dederick, sheriff of Dickinson county, Kansas, obtained information relative to the operation of a still by one Harold Johnson. On the next day Dederick started out to find the <?t ill. He located the place where the still was supposed to be in operation, thought that it was in Geary county, and, accordingly, proceeded to Junction City and told R. E. Athey, the sheriff of Geary county, Kansas, of his information. Thereupon Dederiek and Athey, accompanied by Jesse Filby, Athey’s undersheriff, proceeded to the place where Dederick’s information had located the still. Upon their arrival there Athey discovered that the still was located on what was known as the ‘East Eawley’ ranch in Riley county, and out of his jurisdiction. So Dederiek, Athey, and Filby abandoned their efforts and returned to Junction City. Upon their return to Junction City Athey placed a telephone call for Marshall Docking, the sheriff of Riley county, Kansas. When Docking was reached on the telephone, Dederiek talked to him and told him of their discovery, and suggested that he obtain a search warrant under which he could proceed. Accordingly Docking obtained a search warrant against Harold Johnson, authorizing him to search the premises, and Docking then went to Junction City where he met Athey and Dederiek. After discussing the situation among themselves, Docking said to Athey and Dederiek that he was alone and asked if Dederiek, Athey, and Filby would accompany him and help him. They agreed to do so, Athey saying that they would have to wait until Filby got through feeding the prisoners in the Geary county jail.
“About 4 o’clock on Saturday afternoon of August 16, 1931, the four men started for the Fawley place; Athey and Filby going in Athey’s automobile, and Dederiek accompanying Docking in Docking’s automobile. Upon their arrival at the place, the four men started searching the place. Within a short time they observed an automobile drive up to the house, and very shortly thereafter drive away rather hurriedly. Athey and Filby were closest to their automobile, and they immediately started in pursuit of the automobile which had just driven away. They pursued the car for a half-mile or more, but because of the rough condition and narrowness of the road, they were unable to overtake the car and stop it readily. Athey was driving the pursuing car, and Filby, who was seated on the right side of the automobile, drew his .38 caliber revolver and fired a shot at the ground alongside the moving car, intending it as a signal or warning for the car ahead to stop. The bullet from Filby’s shot apparently struck something and ricocheted, hitting the plaintiff, Dalbert Hitsman, in the back of the head. As soon as the shot was fired the car which was being pursued stopped, and Athey pulled up alongside and in front of the car and ordered the occupants of the car out. They found in the car Harold Johnson, for whom Sheriff Docking, of Riley county, had a warrant; also the plaintiff, Dalbert Hitsman; his sister, Maxine Hitsman; Jimmy Carter and Raymond Zentz, who was the owner and driver of the automobile. Athey and Filby ordered the occupants of the car to get out and hold up their hands, which they did. Athey said to the occupants of the car as they were getting out, or immediately after they had gotten out of the car, something to the effect that ‘After this when an officer tells you to stop, you better stop.’ ”
The court further found that after the shooting, Hitsman was taken to a hospital where the bullet was removed. It had entered on the back of his head and penetrated the skin and flesh to the skull bone and was found about one and one-half inches above the point where it entered. In three days thereafter Hitsman left the hospital and went to his home. It was also found that he did not know that an officer was seeking to arrest a law violator, and at the time Hitsman was engaged in a lawful enterprise, and further that Athey, the defendant, did not know that Filby was going to shoot when he fired his revolver, and probably did not know of it when the car they were pursuing had stopped. That neither Athey nor Filby had a warrant for the arrest of anyone at the Fawley ranch. It was also found that Filby was not justified in the shooting, but it appears he was not made a defendant in the case. The court made the following conclusions of law.
“That the defendant Athey and his undersheriff, Filby, at the time of the injury to the plaintiff, Dalbert Hitsman, were not acting by virtue of any authority of law or by color of the offices which they held, but were acting in a purely private capacity as the invitees of sheriff Docking, and that for that reason the defendant, Athey, sheriff, and the defendants Kennedy and Fegan, his bondsmen, are not liable for the injury inflicted upon the plaintiff by Filby, and that they should recover their costs herein.”
The question is: Was Athey acting in the capacity of sheriff of Geary county when Filby, his undersheriff, fired the revolver at the ground in order to halt the fleeing car, or were they acting outside of their county in a private capacity? If Athey, the sheriff, was acting under authority or color of office, he would be liable for his own acts and also those of his undersheriff. It appears, however, that when he found the still at the Fawley ranch they discovered it was beyond the county of Geary and in Riley county, and so sheriff Athey returned to his home and reported the matter to sheriff Docking of Riley county, and turned the matter over to him. Docking procured a search warrant and proceeded to make the search and arrest. He invited some of the officers of Dickinson and Geary counties to accompany him, and they did so, when the shooting followed, as has been stated. Athey and Filby were under no duty to accompany Docking or to make the search and the arrest of Harold Johnson, who was operating the still. The sheriff of Geary county was not acting as sheriff on this expedition when he accompanied Docking, and was no more acting under color of his office than would have unofficial neighbors of the Fawley ranch if they had been invited by Docking and had gone to his aid. Athey had no authority to make the search in Riley county or to take any official action against persons violating the law there, nor are those signing his official bond liable for things done by the sheriff when acting in a private capacity. It may be noted that Johnson, whose arrest Docking was seeking to effect, was charged with the commission of a misdemeanor, not a felony.
In 46 C. J. 1068 it is said:
“Liability upon an official bond arises as a rule only with reference to acts of the officer which pertain to some function or duty which the law imposes upon his office. Thus sureties are not liable for a purely personal act of an officer not done as a part of, or in connection with, his official duties; and where he acts without any process and without the authority of his office, or under a process void on its face, in doing such act he is not to be considered an officer but a personal trespasser.” (See, also, 57 C. J. 1013.)
Concerning the liability of the sheriff for an unofficial act of his undersheriff or deputy, it has been said:
“. . . But he is not responsible for any unofficial act or neglect of duty of a deputy where the act is one which the law does not require him officially to perform. Hence he is not liable for acts performed by the deputy out of the usual course, under instructions from third persons. . . .” (22 R. C. L. 587.)
It is suggested that the acts done by the defendant when the revolver was fired in Riley county were of the same general character that the sheriff had been doing in his own county; but the fact that he was doing work of a like character as he performed within his own jurisdiction does not create a liability on his official bond done in another jurisdiction in an individual or private capacity. (March v. Express Co., 88 Kan. 538, 129 Pac. 168.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
This appeal was taken by taxpayers from a judgment rendered against them in litigation with a drainage district.
In December, 1929, a petition was presented to the board of county commissioners of Brown county for incorporation of the Wolf River Drainage District. The district was created, and directors were elected. The directors concluded the boundary of the district should be enlarged to include property which would be benefited, and, pursuant to proceedings to that end, the board of county commissioners created the enlarged district. Pursuant to subsequent proceedings, the drainage project was undertaken and has been carried to completion. The improvement cost money, and some taxpayers, by a series of lawsuits, have undertaken to prevent construction, to prevent collection of taxes and assessments to pay for the work and maintain the. district, and to prevent appropriation to use of the district of taxes and assessments paid by other taxpayers to the county treasurer. (Wolf River Drainage Dist. v. Nigus, 133 Kan. 742, 3 P. 2d 648.) Six suits were consolidated for trial and, as indicated, a judgment adverse to the taxpayers was rendered, from which they appeal. One of the taxpayers was the St. Joseph & Grand Island Railway Company, to be called the railway company. The others, to be called the taxpayers, were owners of ordinary taxable property. Their contentions may be considered first.
The taxpayers say the following questions aré involved:
“1. Is it necessary to the taxing powers of á drainage district that its boundaries be defined or that the territory included therein be defined (see R. S. 24-403)?
“2. Can defendants or any of them levy and/or assess general and/or special taxes on plaintiff’s lands for the Wolf River Drainage District of Robinson, Brown county, Kansas, if the petition for the organization of said district and/or the petition for the enlargement of the district did not describe the territory proposed to be incorporated and/or the territory to be included in the district as enlarged by definable boundaries and if the record of the organization of the district made by the board of county commissioners does not define the territory within the limits of said drainage district and/or the enlargement thereof so that the territory within said district can be ascertained from said petition and/or from said record (see R. S. 24-406) ?”
Those questions are not involved in the appeal.
The taxpayers say boundary lines in petitions and notices do not close, descriptions are erroneous, indefinite, inaccurate, and insufficient, lands cannot be identified as within or without the district, and lands cannot be located or their quantity or extent determined by survey. The taxpayers do not contend their lands have not been described, but they say that without sound petitions and proper notices the board of county commissioners had no jurisdiction to create the corporation, and there can be no corporation unless it has a defined boundary excluding what is outside of it and inclosing identifiable land which would be affected by the tax proceedings necessary to accomplish the object of incorporation.
A petition was presented to the board of county commissioners for creation of the drainage district which described land. With the petition was filed a plat embracing a territory two miles wide and six and one-half miles long, .describing land. Notice of hearing on the petition was given which described the land as it was described in the petition, except a tract which at the hearing the owner re quested should be included in the district, which was done. The commissioners undertook to create the district. The petition for enlargement of boundary described land, and the notice of hearing described land by metes,- and bounds and tract descriptions. Plats were made by engineers. The commissioners undertook to create the enlarged district, which became the Wolf River Drainage District. The directors, assuming a district had been created and they were directors, proceeded to begin and to finish the work for which the district was organized. Whether the district has functioned regularly or irregularly, it has functioned as if it were lawfully organized. The court has held so many times that persons in the situation of the taxpayers are not permitted to question integrity of corporate organization, it would be supererogatory to collate the cases. Nobody but the state can do that, and in this instance the state has not interfered.
The taxpayers contend they can raise the questions they endeavor to raise under the decision in the case of Schur v. School District, 112 Kan. 421, 210 Pac. 1105., The questions are questions going to lawful existence of the corporation, and the decision in the Schur case pointed out that taxpayers may not question lawful existence. In the Schur case, doubtless to save time and expense, one notice was used in two ways: as a step in creation of a taxing district, and as a step toward issuance of bonds by the district to be created. It was held taxpayers could not question the notice, although bad in description of territory, as a step in creation of the district, and so disorganize it. If a district has been organized, whether on good notice or on notice which taxpayers cannot question, the district may issue bonds. A notice of bond election, good according to the circumstances under which it is given, is essential. Treated purely as a bond-election notice given as if in the exercise of corporate function by a district whose existence could not be questioned by taxpayers, the Schur notice could be attacked, but the attack could not be carried back to organization. No such situation exists in this case. Nothing is attacked here except the statutory steps beginning and ending in organization. The drainage statute expressly provides collection of general or special taxes or assessments shall not be defeated by reason of any omission, imperfection or defect in .organization of the. district. When the same taxpayers were here before, urging the same claimed defects in organization they now urge, they were advised they had no standing to do so, and were advised specifically they could not do. so on the authority of the Schur decision. (Wolf River District v. Nigus, 133 Kan. 742, 3 P. 2d 648.) The taxpayers rest under the same disability to urge claimed defects in the organization proceeding, other than those which have been referred to.
The Wolf river improvement having been constructed, it must be paid for. No taxpayer has any interest adverse to the taxation necessary to pay for the improvement except as it may wrongfully impose a burden on his property. While several taxpayers may join in an action for relief against an illegal tax or assessment, each one sues for his own protection. If the same defect applies to all or several complainants, they may have the same relief, but no taxpayer may have relief except as the illegal tax affects him. Sometimes the nature of the relief desired may be such that if granted it would affect the entire scheme of taxation. In other instances the relief affects the individual only. It may be inferred from the proceedings that taxpayers who are plaintiffs are not overly concerned about their own taxation. They sought to strangle the drainage project soon after it was instituted, and failing in that, to kill it. Thirty-six pages of their brief are devoted to the subject of defects in organization. Ten pages are devoted to some subjects which may now be considered.
It is said land outside the district is assessed. That does not hurt any taxpayer in the district. It is said benefits are not assessed against land inside the district. The law contemplates that it may be discovered land within a district is not benefited. Only benefited land may be assessed. If benefited land be not assessed, that does not authorize the owner of benefited land to enjoin the project or his assessment. The remedy is to call attention of the drainage board to the need of a supplemental assessment. (R. S. 24-435.)
It is contended assessments were not made on actual view by the assessors or in good faith. The court did not regard the evidence as sufficient to sustain that contention, and the court’s finding against the contention is approved.
It is contended general taxes on property in the district should be enjoined because of noncompliance with the budget law. The law requires itemized estimates of expenditures for the ensuing fiscal year to be made before levies are made, for publication of the proposed budget, and for notice of hearing and hearing on the budget. A feature of the notice is that items of expenditures for the preced ing year and items of proposed expenditures shall be printed in parallel columns (Laws 1931, ch. 310, §§ 1, 2). The district published a budget for 1931, and the notice fixed a time for hearing. The purpose of a hearing is stated in the statute:
“Said publication shall also designate a time and place at which such governing body will meet prior to the date on which its annual levy is made, for the purpose of answering questions and hearing objections of taxpayers relating to the budget and the proposed levy and considering amendments relating thereto.” (§ 2.)
There is no contention a hearing did not occur. Here is the budget:
“Budget — Wolf River Drainage District, Robinson, Brown county, Kansas.
“Amount expended for the year 1930, $3,962. (Expended for engineers’ services, salaries of officers, legal expenses, advertising, printing, and other incidentals.)
“Estimate to be expended for the year 1931, $3,500. (To be expended for engineers’ services, salaries of officers, legal expenses, advertising, printing, and other incidentals.)”
The items of the budget all belonged to one fund specially authorized by the statute, the general fund. The items were all purely contingent, even as to compensation of officers. Except as to compensation of officers, the items were in fact classifiable as incidental expenses, specific amounts of which could not be estimated, but for which the board could fix a limited sum. As illustrating indefiniteness, the board could not estimate how many more lawsuits would be commenced against the district.
The budget notice disregarded the statute. The general fund for 1930 and the estimated general fund for 1931 were printed parallel, as the statute required, but they were horizontally parallel, and not in vertical columns.
Leaving these matters at one side, the effect on taxation of preparation and publication of budget is stated in the statute:
“And no such taxing body shall certify a levy to the county clerk which it estimates will raise an amount in excess of that portion of such budget to be derived from such levies, or which will exceed the maximum levies prescribed by law for such taxing district.” (§1.)
There is no pretense this provision of the law was violated.
The statute provides its own penalty for violation of its terms, fine or imprisonment of the delinquent official.
The court does not propose to interpret the budget law generally; but in this instance the court is inclined to the view the contention that general tax levies should be nullified on account of noncompliance with the budget law, borders on the frivolous.
The 'general course of the Wolf river may be described as from west to east. The drainage-district improvement ends at the line between Brown and Doniphan counties. For several miles in Doniphan county the river channel is not improved. It is narrow, tortuous and obstructed, and is incapable of taking care of flood water delivered to it by the improved channel above. The result is that benefit of the improvement at the lower end was in dispute. Benefit to improved flooded land was assessed at $17 per acre throughout the district. The court reduced the assessment 30 per cent in the last half mile of the improvement, and 20 per cent in the next half mile. One taxpayer has land in the last half mile, and another has land in the next half mile.
The taxpayers contend the court was not authorized to reduce the assessment, and that the reduction was not sustained by evidence. Specifically, the taxpayers’ brief says:
“The court should have sustained the injunction as prayed, or the court should have complied with R. S. 24-436, and should have ascertained the amount of benefit which accrued to each tract of property at the lower end of the district; inasmuch as the court had no evidence, and inasmuch as it was a fact ascertainable, the court should not have assumed to change the assessments, but the injunction should have issued.”
The statute referred to reads:
“In case any special assessment shall for any reason be set aside as erroneous by any court, such court shall ascertain the amount of benefit which accrued to the property on which the erroneous assessment was made by reason of the work or improvement for which such erroneous assessment was levied, and insert a finding thereof in its judgment, and the board of directors shall thereupon relevy such assessment in accordance with the finding of the court, anil such assessment shall thereupon become a lien upon the property assessed and shall be collected as other assessments.” (R. S. 24-436.)
The question as presented reduces to one of procedure, and in essence and effect the court simply abridged the procedure and found the benefit to lands in the last half mile was 70 per cent, and in the next half mile 80 per cent, of the original assessment. The assessments indicated by the court were relevied by the drainage board.
There was testimony that conditions at the east end of the improvement would be worse after the improvement than they were before. The court was authorized to discount this testimony, and evidently did so. The taxpayers say benefits could be determined, and there was testimony they could be determined within 5 per cent; but the conditions under which the determination could be made prohibited it, so far as this litigation is concerned. The amount of benefit to land toward the end of the ditch was problematical. The testimony on which the court doubtless relied was that of George S. Knapp, chief engineer of the division of water.resources of the state of Kansas:
“Q. The effect of the ditch, Mr. Knapp, will not be to benefit the landowners at the extreme east end of the district, in any way, do you think? A. Not clear to the end of the district. That is, I think we can safely say that the benefit of this present improvement, so long as it’s not carried on, at least reaches zero by the time the end of the project is reached.”
Under all the circumstances, this court declines to interfere with the action of the district court, and the judgments in the taxpayers’ cases are affirmed.
Turning to the case of the railway company, the benefits assessed against it were $11,100. This was done practically on valuation of the railway company property by the tax commission for levy of general taxes. This was clearly erroneous. Besides that, the court found the assessment was unreasonable; was out of proportion to the benefit which the property would receive; exceeded the amount of benefit which might lawfully be assessed; and that the railway company would receive no benefit from the improvement at the lower end of the ditch. Therefore, the court reduced the assessment from $11,100 to $10,100. Without debating the subject, the reduction was wholly insufficient to correct the unreasonableness of the assessment.
In its motion for new trial, the railway company asserted the benefit to its property from the improvement could not conceivably be in excess of $6,000. This court agrees, and the finding of the district court relative to benefit to the railway company is modified to read $6,000 instead of $10,100. .As modified, the judgment of the district court in the railway company’s case is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a note, the defense being that the note was obtained by duress. At the first trial the court gave an instructed verdict in favor of the plaintiff. On appeal that ruling was set aside. (Fritchen v. Mueller, 132 Kan. 491, 297 Pac. 409.) In the decision the claims of the adverse parties, as disclosed by the pleadings and the evidence, are reviewed at length and will not be here repeated.
In the last trial, after presentation of the evidence, the cause was submitted to the jury, under instructions, some of which are hereafter referred to, and a verdict returned in favor of each defendant. Thirty-one special questions were submitted and answered. Motion for new trial was filed and denied as to defendant Mary Jacobs and allowed as to defendant E. C. Mueller. The plaintiff appeals, and the defendant Mueller files a cross appeal.
The appellee challenges appellant’s right to be heard on this appeal, for the reason that the matter was fully adjudicated in Fritchen v. Mueller, supra. There is no showing that such a defense was raised in the trial -court, and it cannot be raised here for the first time. No technical reason need be given, however. It is true that the same issue is here presented as at the first trial, but in reviewing the evidence, at the first trial, this court was determining only the correctness of the trial court’s ruling directing a verdict for the plaintiff, and in the opinion said:
“It should be understood, of course, that in discussing these matters in this blunt fashion, this court does not intend to adjudicate for itself the controverted facts of this case,” (p. 495.)
and the cause was remanded for a new trial.
Among other matters complained of is that defendants were permitted to state what the attorney, N. C. Else, said respecting his employment. It would serve no useful purpose to recite the questions asked and answers returned as to conversations wherein Else was quoted as making assertions that he represented the payee of the notes sued on. Of course, agency could not be proved by the declarations of the claimed agent. (See 2 C. J. 935 and cases cited.) It is true that officers of the bank denied that Else was its agent or the agent of its officers, and that plaintiff denied Else was his agent, but there was also much testimony concerning the negotiations leading up to and during the execution of the notes, showing the part taken by the plaintiff and other officers of the bank, by Mr. Else, and the defendants. Agency did not have to be proved by direct evidence; it could be implied from the acts and conduct of the parties (see Fritchen v. Mueller, supra), and when such testimony was adduced, then it was proper to show, as part and parcel of the entire transaction and negotiations, what the claimed agent said respecting his employment. (2 C. J. 939.) Some complaint is made that evidence as to Else’s statement was received before showing of his agency was forthcoming. While it would have been more correct to have made the showing in an orderly manner, we are not able to see where appellant was prejudiced. The jury was warranted in finding in answer to question No. 1 that Else was not the agent of defendant Mueller, and in answer to question No. 4 that he was the agent of the payee bank.
In connection with the proof of Else’s statements, the abstract and counter abstract disclose contradictory versions of what occurred. At the close of defendant’s case appellant moved to strike out all evidence with respect thereto, apparently on the contention it had not been otherwise shown that Else was the bank’s agent. Appellant’s version is that the motion was sustained. Appellee’s version is that it was denied. The counter abstract recites :
“The Court: The motion should be denied, it shouldn’t be stricken out, but the jury will have to be instructed that they cannot consider as any evidence of agency, and that they cannot consider in this case — consider Else’s statements, unless they first find’ that he was the agent of the bank.”
The court’s instructions with respect to showing agency did not cover the above in any very adequate way, but appellant did not request any further instruction, and it is too late to complain now.
Appellant complains that the answers to certain questions are without support in the evidence. Question No. 5 asked what officers of the bank employed Else, and the jury answered: “F. F. Fritchen, May and Lutgen.”
The jury had heard all of the evidence as to how Mueller happened to be at Else’s office; that the three named men were there, conferred with Else, then informed Mueller of their demands, and thereafter that Else had visited Mrs. Jacobs in carrying out the arrangement of getting her to sign the notes, and from that they were warranted in finding that the three above-named employed Else, even though there was no witness who testified directly to it, and even though Fritchen testified he did not hire Else. The answers to questions Nos. 6, 7 and 8 were to the effect that plaintiff had knowledge of the duress on Mrs. Jacobs before he bought the note, and acquired such notice by reason of his presence at bank-board meetings and at Else’s office. The claim is made that at neither of these meetings was prosecution of Mueller mentioned, and that nothing was said about any threats to Mrs. Jacobs. Assuming correctness of the claim, it appears from the answers to other questions that Else was the agent of the bank and its officers, that Fritchen was an officer, and that as a result of the efforts of the officers and of Else, Mrs. Jacobs signed the note. Diebolt, cashier of the bank, was said to have told Mrs. Jacobs if she didn’t sign the notes, Else would start for Topeka. The above and other testimony, not necessary to repeat here, warranted the answers the jury made. Considerable space is given to the proposition that because Mrs. Jacobs, at the request of the bank, made financial statements, she waived the duress. The jury, in answer to special questions, found that the statements were not voluntarily made and that Mrs. Jacobs was still under duress when the same were.made. An instruction with respect to these financial statements was given, which is criticised because it used the expressions “there seems to be an admission of liability on the note in question,” and “if she signed, said statements, or either of them, knowing that they contained the statement they do contain, then in this event this would constitute acknowledgment of the liability of the defendant.” It is contended that under Burns v. Spiker, 109 Kan. 22, 202 Pac. 370, this put the burden of showing that Mrs. Jacobs knew the contents of the statements on the plaintiff. The evidence showed, rather fully, when, how and why these statements were prepared and signed. Plaintiff gave his version, defendant Jacobs gave hers. We do not believe the instruction is subject to the criticism leveled at it; in any event, other instructions called attention to the defenses of the defendants and that the burden of proof was upon them, and that if they failed to prove one or both defenses by the greater weight of the evidence, the verdict should be for the plaintiff. It is further argued in connection with these financial statements that the jury having answered “yes” to questions asking if these statements were not given by reason of a request of the bank’s cashier, that it was customary among the customers of the bank to make such statements, the answers that they were not given voluntarily cannot be true. This does not follow necessarily. It was the duty of the lower court and it is our duty to harmonize the answers, if possible. (Rockwood v. Stubenhofer, 119 Kan. 307, 312, 239 Pac. 993; House v. Wichita Gas Co., 137 Kan. 332, 338, 20 P. 2d 479.) Literally, Mrs. Jacobs may have given the statements because of the cashier’s request, but in response to other questions the jury found she was still under duress, and, that being so, the statements would be involuntarily given. It is contended that the finding that the giving was involuntary is not supported by competent evidence; that such evidence as was given was a conclusion and in response to a leading question. Mrs. Jacobs testified that the statements as presented to her were already prepared, that Diebolt made her sign them, and that she was scared. She was examined fully, both on direct and on cross-examination, and on redirect examination she was asked: “I will ask you if when you signed those you were still under the fear of Gene’s arrest because of the statements of Mr. Else,” to which she answered “yes.” The question may have been leading and the answer a conclusion, but it summarized her testimony, and, in our judgment, neither the question nor the answer substantially prejudiced the plaintiff’s rights.
The jury was asked whether plaintiff purchased the note sued on on June 6, 1927, and answered “no.” The evidence showed without denial that he purchased it on June 26, 1927. Had the question been whether plaintiff had ever purchased the note, the answer would have been without support; but the answer, as returned to the question submitted, was literally correct. The only purpose of such a question would have been to show that the note was purchased before maturity, and as to that there is little dispute. We have noticed the principal answers which appellant believes were either unsupported by the evidence, were inconsistent with other answers, or, as a matter of law, were insufficient to sustain the general finding in favor of the defendants, and especially Mrs. Jacobs. Without going into any further detail, we have examined the questions and answers with reference to whether Fritchen relied on the financial statements of Mrs. Jacobs in purchasing the note, whether he had knowledge the statements were given under duress, and whether he purchased the note in bad faith, and find nothing therein that warrants a reversal.
Assuming the correctness of his own version of the construction to be placed on the answers to the special questions, appellant argues he is entitled to judgment. This argument swings around the proposition that Mrs. Jacobs, by making the financial statements, waived any duress there may have been used against her and thus ratified the note which she signed and which the plaintiff held. The jury viewed the matter of duress differently than does the appellant, and we are bound by its verdict, unless error appears.
As to the defendant Jacobs, we find no error and the judgment in her favor for costs is affirmed.
The cross appeal of the defendant Mueller will be noticed only briefly. The trial court expressly refused to approve the findings as to him, set aside most of them so far as he was concerned, and stated, “I really don’t believe there is any duress as far as Mr. Mueller is concerned.”
We are not going to review the evidence with respect to Mueller, his conduct of the bank, his dealings with other banks, etc. The trial court evidently was not satisfied that a fair trial was had as to Mueller. The allowance of a motion for a new trial is a matter resting in the sound discretion of the trial court, and its action thereon will not be reversed, unless an abuse of such discretion is apparent. (Bateman v. Preisser, 123 Kan. 217, 254 Pac. 1028. And see West Digest, Appeal and Error, Nos. 977-979, inc., and Hatcher’s Digest, Appeal and Error, No. 458, for other decisions.)
No abuse of discretion has been shown, and the order granting a new trial as to defendant Mueller is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Pbager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Eugene Moss, was convicted of two counts of burglary (K. S. A. 21-3715), felony theft (K. S. A. 21-3701), and attempted felony theft. Sentences imposed on the two burglary counts and the attempted theft count were ordered to run concurrently. The sentence imposed on the felony theft count was ordered to run consecutively to the other sentences.
The evidence presented at the trial was not greatly in dispute. The residence of Bill Price located in Topeka was burglarized on three consecutive days in December 1974 — December 26, 27, and 28. The state relied primarily upon the testimony of Betty Karlyle, a participant in the burglary, who was jointly charged with the defendant. She testified that the burglaries and thefts began on December 26, 1974, the day after Christmas, were repeated on the following two evenings, and that defendant Moss was a participant and received his share of the loot. The crimes were first discovered by James Codgal, a neighbor of the Prices, on the night of December 26 when he went to the Price residence to feed their dogs. He informed the police of the burglary. On December 28, 1974, the police arrived at the scene while the burglary was in progress and apprehended the burglars, including the defendant Moss. The defendant Moss testified that he had never been to the Price residence prior to December 28 and that he was there on that occasion only for the purpose of using the telephone. He denied any knowledge of the burglaries. The police officers found in his coat pocket a number of coins which were identified as missing from the Price residence. Following conviction by a jury the defendant appealed to this court claiming trial errors.
On this appeal the defendant does not question the sufficiency of the evidence to show that he was guilty of the two burglaries. He attacks only his convictions for felony theft and attempted felony theft on the grounds that there was no competent evidence of value of the property taken introduced at the trial and therefore the case should be reversed and remanded for resentencing on those counts for misdemeanor theft and attempted misdemeanor theft.
On this appeal the defendant-relies on State v. Towner, 202 Kan. 25, 446 P. 2d 719, which holds in substance that to prove a charge of grand larceny (now felony theft) the state has the burden of proving as an element of the crime that the property taken was of a value of $50 or more. The defendant maintains that there was insufficient evidence to prove the value of the property stolen in the burglary on December 26 or taken during the burglary on December 28. Hence, he argues, he was guilty only of misdemeanor theft on December 26 and attempted misdemeanor theft on December 28. He proposes that the case should be reversed and remanded for resentencing for misdemeanors rather than felonies, as the court did in State v. Smith, 215 Kan. 865, 528 P. 2d 1195, in a similar situation. The state takes the position that there was sufficient evidence of value presented at the trial to support the convictions of felony theft and attempted felony theft.
The only evidence of the value of the property taken in the burglaries was state’s exhibit No. 13 which was admitted over the defendant’s objection. Exhibit No. 13 was a carbon copy of a list prepared by Mr. and Mrs. Price which identified and assigned a value to the property which they found missing from their home upon their return from out of town. Bill Price testified that after his return he went through the house and listed the items that had been taken and not recovered and that his wife typed up a list of those particular items. A carbon copy of the list was marked and identified as exhibit No. 13. Mr. Price identified the items in the list as those which had been taken from his house and stated that exhibit No. 13 was a carbon copy of the list which he had prepared and which his wife had typed. Counsel for the defendant objected to the admission of exhibit No. 13 into evidence for the reason that the' preparation of the list was a joint effort and that proper foundation had not been established for its admission since Mrs. Price had not been called to testify in regard to her actions taken in preparation of the exhibit. We have concluded that exhibit No. 13 as a list prepared by Mr. Price was properly admitted as evidence of the missing items and their values. As an owner of the stolen property Mr. Price was presumed to know its value and therefore could give competent evidence as to its value. (State v. Inverarity, 150 Kan. 160, 92 P. 2d 45; State v. Kirk, 205 Kan. 681, 472 P. 2d 237.)
For his second point on the appeal the defendant contends that the evidence was insufficient to show what items were taken on December 26 and the value thereof, and therefore a conviction of felony theft arising out of the burglary of December 26 cannot be sustained. We have carefully examined the evidentiary record and have concluded that the defendants point is without merit. Betty Karlyle testified that the first of the burglaries of the Price home occurred on December 26, 1974. James Codgal, the neighbor, was somewhat confused in his testimony as to when the first burglary occurred. We have concluded, however, from the trial record that the evidence clearly establishes that the first burglary was on December 26. Betty Karlyle testified that, although she could not recall all of the items taken from the Price home on December 26, she did recall that the main things taken were a guitar, a record player, a television set, and a bunch of frozen food. LaRene Price, Mr. Price’s mother, testified that she went to the Price home on Friday, December 27, in the afternoon and observed missing from the home a portable television set, a bedspread, towels, and a large clock, items which had been taken the previous evening. When this testimony is considered along with exhibit No. 13 it is clear that property of a value of $50 or more was taken from the Price home during the burglary of December 26. Exhibit No. 13 shows that the value of the guitar was $125, the bedspread $30, towels $40, and the large clock $175, and record player $99.95. Considered together all of this evidence was sufficient to prove the items of property taken on December 26 and that they were of a value of $50 or more. The conviction of felony theft which occurred on December 26 must, therefore, be upheld on this appeal.
The defendant for his third point maintains that the evidence was not sufficient to sustain a conviction of the charge of attempted theft which occurred on the evening of December 28. We have concluded from a reading of the trial transcript that the defendant’s position is correct on this point. All of the items which were removed from the house on December 28 were recovered by the Prices and were not included among the items listed in exhibit No. 13. The state concedes it had no specific evidence of the value of the items taken on December 28. There was evidence that at the time of the defendant’s arrest at the Price residence he had in his possession certain coins, that an IBM typewriter was sitting on the porch, and also that a radio transmitter, a camera case, and clothing belonging to the Price family were found in the trunk of a car located about one-half block from the Price residence. The state argues that the jury could use the knowledge of the community in determining the value of these items. We do not agree with the state’s position. We rejected a similar argument in State v. Towner, supra, where the prosecution took the position that in the absence of evidence of value the jury could infer the value of a second-hand automobile to be $50 or more. The burden was upon the state to prove that the value of the property taken was $50 or more. In our judgment there was a failure of proof in this regard. The evidence was sufficient to support a conviction for the lesser included offense of attempted misdemeanor theft but was not sufficient to support a conviction of attempted felony theft. That part of the judgment convicting and sentencing the defendant for the crime of attempted felony theft is reversed and the sentence is set aside. The case is remanded to the district court with directions to recall the defendant for resentencing for a class C misdemeanor conviction for attempted theft in accordance with the provisions of K. S. A. 21-3301. In all other respects the judgment of the district court is affirmed.
rr is so ORDERED. | [
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The opinion of the court was delivered by
Miller, J.:
Charles A. Satterfield appeals from an order denying his second successive motion under K. S. A. 60-260 (b) for relief from portions of a divorce decree fixing paternity and requiring child support payments.
Charles commenced this action by filing a verified petition for divorce. He alleged that the parties had two children. The trial court granted him a divorce from Laura Jean Satterfield on April 24r 1974. The decree granted Laura the custody of the parties’ two minor children, required Charles- to support the children, and made other provisions for them.
Charles filed a motion under K. S. A. 60-260 ( b ) on February 28, 1975. He alleged that since the granting of the divorce he discovered that he was not the father of one of the children. He alleged fraud, concealment and misrepresentation by Laura, and sought appropriate relief. The motion was argued and briefs were submitted by counsel. By written order filed May 23, 1975, the trial court denied the motion. No appeal was taken.
Charles then made a second and similar motion orally, and it was denied on July 25,1975. Charles appeals.
The ruling of a district court on a motion for relief from a final judgment on the grounds of mistake, newly discovered evidence or fraud, brought under K. S. A. 60-260 (fo), becomes final if no appeal is taken within thirty days. A second or successive motion on the same grounds is thereafter barred by the doctrine of res judicata. Taber v. Taber, 213 Kan. 453, 516 P. 2d 987.
The ruling of May 23 became final and binding upon the parties in thirty days when no appeal was taken. K. S. A. 60-2103. We cannot now review the merits of that order. The second successive motion made on July 25 presented only matters which were res judicata, and the trial court properly overruled it.
For the reasons set forth above and fully discussed in Taber, supra, the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for the destruction of a semitrailer truck outfit which was destroyed in a fire which resulted from a collision of the truck with a streetcar alleged to have been caused by the negligence of defendant. Defendant answered, denying liability, and by cross petition sought recovery for the destruction of its streetcar burned as a result of the same collision, alleged to have been caused by the negligence of plaintiff’s driver. The jury answered special questions and returned a general verdict for plaintiff for $4,000, upon which judgment was rendered. No complaint is made of the amount of the verdict if plaintiff is entitled to recover. Defendant has appealed and contends that the court erred in overruling its demurrer to plaintiff’s evidence and in overruling post-verdict motions.
In Kansas City, Kan., Kansas avenue is an east-and-west street, paved 52 feet wide. There are two streetcar tracks along and near the center of the street, the north tracks being for westbound streetcar traffic and the south tracks for eastbound traffic. Kansas avenue is intersected at right angles by Second street, which is a north-and-south street, paved about 30 feet wide. Northwest of the intersection of these streets and near the intersection is the port of entry where all trucks going from Kansas into Missouri or coming from Missouri into Kansas must stop to have the trucks and cargoes checked. The port of entry has a paved surface about 33 feet wide north and south and perhaps 80 feet east and west, near the center of which is a port-of-entry office, and to the north of which is a frame building. There is' a driveway about 30 feet wide from Second street to the grounds of the port pf entry and another driveway on the south to Kansas avenue. These are places for the trucks to enter or leave the port of entry. On May 24, 1944, which was a clear, sunshiny day and the pavements were dry, at about two o’clock p. m., plaintiff’s truck, loaded with about 2,600 gallons of gasoline, was being driven by his employee, Walter E. Johnson, east on Kansas avenue approaching Second street, and on reaching a point almost even with the entrance to the port of entry from the south the driver turned north to go into the port of entry, when the truck was struck by a westbound streetcar belonging to defendant, which was being operated by its employee, Kenneth Calloway. The collision damaged the truck so that the gasoline spilled out on the ground and in a few minutes caught fire, with the result that the truck, with its load, and the streetcar were destroyed. The principal controversy in the case was whether the collision resulted from the negligence of defendant, as alleged by plaintiff, or from the negligence of plaintiff’s driver, as alleged by defendant.
Plaintiff’s truck consisted of a Chevrolet tractor about 10 feet long, which had six wheels, two in front and dual wheels on each side in the rear. The trailer was about 30 feet in length. The front end of it rested upon the rear part of the tractor. The rear end was supported by dual wheels on each side. In plaintiff’s petition it was alleged that the streetcar struck plaintiff’s truck on the right side near the rear tractor wheels, and broke the hose connection to the trailer tank, which caused the gasoline to spill upon the street and to catch fire. Defendant, in its answer, admitted that the point of contact between the two vehicles was as alleged in plaintiff’s petition. Defendant, in its answer, also alleged that a city ordinance then in force provided that “All street railway cars shall have the right of way between cross streets . . .”
We first consider appellant's contention that the court erred in overruling its demurrer to plaintiff’s evidence. It was stipulated that the plat of the area, drawn to scale, be received in evidence. As to how the collision occurred, plaintiff offered the testimony of four witnesses, two men and two women, who were passengers on the streetcar. While their testimony differed in details, which need not be noted, the testimony of all of them may be summarized, giving to plaintiff the reasonably fair interpretation thereof, as the trial court was bound to do in the consideration of the demurrer, as follows: The witnesses were seated near the front of the streetcar, one of them on the front seat, two on the next seat back, and the other one near the front. Each of them testified that the streetcar, as it approached Second street from the east, was traveling at a normal rate of speed, about 20 to 25 miles per hour; perhaps one of them placed it at 18 to 20 miles per hour. They saw plaintiff’s truck approaching from the west before it reached the point where it turned north to go into the port of entry. Before turning north it was traveling at about 20 to 25 miles per hour. They also saw it when it turned north across the streetcar tracks to go into the port of entry and estimated its speed there as about five or six miles per hour. They fixed the location- of the streetcar at the time the transport truck turned across the streetcar tracks to go into the port of entry at a place east of Second street as much ás 50 or 75 feet or more. They testified that the operator of the streetcar was giving no attention ahead to the traffic, but was talking to persons on the streetcar who were behind him, or perhaps back and to the left of him, or looking to the south; that about the time the streetcar was crossing Second street, or had crossed it, and the transport .truck was crossing the streetcar tracks and the operator'of the streetcar was paying no attention to the traffic ahead, the women on the car screamed; that the motorman then looked to the front and apparently undertook to do something to control the streetcar, but that it was then too late and that the streetcar continued at its regular speed until the actual point of collision. They testified that the streetcar struck the transport on the right-hand side near or just in front of the wheels near the rear of the trailer and gasoline began to run from the trailer; that after the streetcar stopped they had' to break the door of the streetcar in order to get out. One passenger near the front fell down and had to be carried out.
Plaintiff also offered the testimony of the officer in charge of the port of entry, who did not see the crash but heard it and immediately went to the scene. He testified that the front end of the streetcar had struck the trailer of the transport unit near the right wheel at the back of the trailer, had burst a two-inch pipe used to drain the gasoline from the trailer, and that the gasoline was flowing rapidly on the pavement; that Walter Johnson told him to call the fire department, for the gasoline would catch fire; that he told the passengers in the streetcar to break the door of the car to get out, and that they did so, and that just as the last passenger was moved from the streetcar there was an explosion. Two other employees at the' port of entry heard the crash and went to the scene, where they could see it. Their testimony was that at the north side of the pavement there was a narrow strip of gravel in the entrance to the port of entry where the pavement was somewhat higher than on the street, and that the front wheels of the tractor were in or just past this graveled strip, spoken of by some of the witnesses as a depression.
In arguing this point counsel for appellant call attention to the pleadings' with respect to the point of contact’ and contend that was fixed by. the pleadings as being at the rear of the tractor and not at the rear of the trailer. We think that the pleadings on that point are not controlling. The demurrer was to the evidence, and to pass upon it we think the court was required to take the evidence as true. Counsel for appellant also stress the city ordinance to the effect that between intersections the streetcar had the right of way. We think that not controlling on the demurrer when the evidence showed that the driver of the transport truck had started to make his turn and was actually crossing the streetcar tracks before the streetcar had crossed Second street. We find no error in the court’s ruling on the demurrer to the evidence.
The defendant offered testimony of witnesses who were passengers in the streetcar which conflicts sharply with the testimony of the plaintiff’s witnesses. The weight of all this testimony was for the jury and the trial court. Defendant also offered evidence tending to show that the driver of plaintiff’s truck did not give the hand signal required by our statute (G. S. 1945 Supp. 8-547) of his intention to turn to the left into the port of entry.
The jury was asked and answered questions as follows:
“1. Did the driver of the plaintiff’s truck before the collision turn from his travel in a direct course eastward to the north across the street car tracks at a time when such movement could not be made with reasonable safety? A. No.
“2. Did the driver of the plaintiff’s truck give any signal, of his intention to turn from a direct course in front of the oncoming street car before he started to make such turn? A. Not by hand. In our judgment his position in the street as he approached from west was such to indicate a turn to port of entry.
“3. Was the place where the plaintiff’s driver turned to cross to the north and the place where the collision occurred between intersections. A. Yes.
“4. At what rate of speed did the truck travel after it started to turn to the north and up to the time of the collision? A. 5 to 10 mi. hr. .
“5. At what rate of speed could the plaintiff’s truck have traveled in second gear, that is. the first gear above low, as it turned and crossed in front of the street car? A. 15 mi.
“6. Was the motorman of the defendant looking ahead and did he observe the truck at the moment it started to turn to its left? A. No.
“7. Did the motorman of the street car, when he saw the truck turning to the left, promptly throw off the power and apply the brakes and attempt to stop the street car? A. Yes (but saw truck too late).
“8. What was the speed of the street car at the time the truck started to make the turn to the north? A. 18 to 20 mi. hr.
“9. Do you find defendant’s motorman guilty of any negligence? A. Yes.
“10. If you answer the foregoing question yes, then state specifically what such negligence consisted of. A. In that he failed to perform his duty in observing oncoming traffic.”
Defendant moved to strike the answer to question 1, but the argument on that is practically a reargument of the demurrer to plaintiff’s evidence and is not well taken. Also to strike out the second sentence in the answer to question 2. While the question as framed might have been answered “yes” or “no” we think the answer cannot be said to be unreasonably responsive. Defendant also moved to strike out the answer to question 6. That answer was based upon the conflicting evidence and there is no contention that there was not ample evidence to support it. Also to strike out that portion of the answer to question 7 in parenthesis. This motion might have been sustained, but we think the refusal of the court to strike it out was not error, since in view of the evidence favorable to plaintiff the general verdict of the jury carries the same import. Also defendant moved to strike out the answers to questions 9 and 10. This again goes simply to the weight of evidence and there is substantial, competent evidence to sustain the answers.
Upon the hearing of the motion for a new trial defendant complained of several of the instructions, proper objection having been made when they were given. The record, insofar as it is brought to us, indicates that counsel for defendant requested several instructions, some of which were given as requested and the substance of others was embodied in the instructions given. The questions now argued are quite technical at the best and we are unable to see that the matters complained of operated to defendant’s detriment. We think it unnecessary to consider them in detail. Defendant also had a motion for a new trial on the jury’s refusal to give it any relief on its cross petition, but that seems to have been presented and considered in the case as a whole. As previously stated, the principal controverted question was. whether defendant or the plaintiff was guilty of negligence which caused the collision, with resulting damages. The jury having found against defendant on that point it could not very well recover anything on its cross petition.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was- an action to compel specific performance of a contract for the sale of real estate. Judgment was for plaintiff. Defendant appeals.
The petition alleged that on March 13,1946, defendant owned real property described as Lots 21, 23; 25 and 27 on Storey street in Sam Cross addition to the city of Topeka, which was also known as 135 and 139 Storey street, Topeka, Kan., and that she offered to sell it to plaintiff for $3,200 — $1,400 cash and the assumption of a mortgage of $1,800; that a written memorandum was delivered to plaintiff signed by defendant, which memorandum was as follows:
“1,800.00 loan
1.400.00 '
3.200.00
2,000.00 on 135 Storey
1.200.00 on 137 Storey
This is price list the $1,800.00 is now a loan at the Topeka Bldg. Saving I believe the building & loan would be the same as rent paying off. Therefore the $1,400.00 would be the amount paid for now.
(Signed) Mrs. H. T. Ledgerwood.”
' That thereafter on March 14,1946, defendant agreed to furnish an abstract showing merchantable title in her and plaintiff accepted the offer and delivered to defendant his check for $100 as earnest money; that the defendant accepted the check and with, the consent of the plaintiff endorsed this check as follows:
“Earnest money on 135 and 139'Storey street. Sale price $3,200.00.”
That the plaintiff was willing to perform his obligations under the contract and had tendered full performance but defendant refused to perform.
The prayer was for specific performance and for an accounting for rents and profits of the property from the time of the giving of the - check.
The defendant’s demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action was overruled.
The answer of defendant was first a general denial; the allegations then admitted that defendant was a part owner of the lots in question and averred that her husband was the owner of an undivided one-half interest in the lotsthat plaintiff delivered to her a check for $100; that there was endorsed thereon, “Earnest money on 135 and 139 Storey street. Sale price $3,200.00”-as alleged in the petition and that at the same time there was also endorsed on the face of the check the words “If Mr. Ledgerwood agrees to sale.” The answer specifically denied that the check was accepted by her as part of the purchase price of any real estate. The answer alleged that defendant had not cashed the check and it was tendered back to plaintiff.
The reply of plaintiff was a general denial.
At the start of the trial defendant objected to the introduction of any evidence for the reason that the petition failed to state facts sufficient to constitute a cause of action. This objection was overruled.
The trial court did not make any findings of fact or conclusions of law, but rendered judgment in favor of the plaintiff and against the defendant. Defendant’s motion for a new trial was overruled and judgment entered in accordance with the findings.
Defendant argues here first that the memorandum pleaded was not sufficient compliance with the statute of frauds. That statute being G. S. 1935, 33-106, provides in part as follows:
“No action shall be' brought whereby to charge a party . . . upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized in writing.”
Defendant argues that the memorandum pleaded does not disclose an agreement to sell; that the plaintiff’s name does not appear any place on it and the description of the property is indefinite.
The plaintiff argues that the statute does not require that a contract for the sale of real estate be in writing but only that there be a sufficient memorandum signed by the party to be charged, tending to prove that a contract existed; that it is not required the memorandum consist of a single instrument but several separate writings may be construed together, though only one of them be signed, and that where there is more than one writing, they may be connected with each other by parol evidence and applied to the subject matter of the action.
There in no particular formality required about the writing to which the statute of frauds refers. What plaintiff seeks to enforce is a contract of which he argues the two writings, that is, the one of March 13 and the check of April 1, constitute the memorandum.
In Schneider v. Anderson, 75 Kan. 11, 88 Pac. 525, the first writing was as follows:
There was also a warranty deed executed by Anderson to Schneider and placed in escrow. The defendant placed an encumbrance on the land and notified the plaintiff that he did not intend to carry out the contract. On a suit for specific performance the court held that the two writings were sufficient under the statute. It was said:
“The statute does not require that the contract shall consist of a single instrument. ‘Several distinct and separate writings may be construed together as containing all the terms of the contract, though only one of them be signed by the party to be charged.’ (29 A. & E. Encycl. of L. 850, 851, and eases cited. See, also, Pomeroy, Cont., 2d ed., §§ 84, 85, 91.) If from all of them the definite terms of a contract can be gathered it may be enforced notwithstanding the statute, provided the several writings relate to and are connected with the subject-matter of the contract so that they can fairly be said to constitute one transaction.” (p. 14.)
Here there can be no doubt that the giving of the check with the endorsement as to it being for earnest money and the delivery of the first memorandum were part of the same transaction even though the deliveries happened on successive days. The two transactions were between the same parties and involved the same real estate.
Nauman v. Powers, 147 Kan. 641, 78 P. 2d. 27, involved a contract for the sale of growing walnut timber. The first written memorandum did not describe any land other than to state that the timber sold was located near Centropolis, Kan. This court examined that writing and a check given the same date which had an endorsement, “For first payment on all walnut timber in his grove south [of] Centropolis, Kansas.” Also a letter written by defendant after he had decided to sell to plaintiff. The court said:
“From the petition it is clear that on the same day the memorandum denominated ‘Contract for sale of walnut timber’ was executed, and as a part of the same transaction, plaintiff executed and delivered to defendant his check for $100, which the memorandum recites was to be paid that day. This check was made payable to defendant and recites that it is the first payment on all walnut timber ‘in his grove south (of) Centropolis.’ It is well settled that the memorandum, to be sufficient under the statute, may consist of two or more papers, and it is not essential that each of them be signed by the party to be charged, if the one signed refers to the other. (Restatement, Contracts, § 208 [b] [ii.] This is in accord with the authorities relied upon by appellant, above cited. There are many other authorities to the same effect.” (p. 643.)
See, also, 49 Am. Jur., Statute of Frauds, § 394; Searles v. Gonzalez, 191 Cal. 426, 216 Pac. 1003; 28 A. L. R. 78; Raubitschek v. Blank, 80 N. Y. 478.
Restatement, Contracts, § 207, states the rule as follows:
“A memorandum, in order to make enforceable a contract within the Statute, may be any document or writing, formal or informal, signed by the party to be. charged or by his agent actually or apparently authorized thereunto, which states with reasonable certainty,
“(a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and
“(b) the land, goods or other subject-matter to which the contract relates, and ,
“(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.”
The first essential, that is, the. parties to be charged is readily-ascertained from these two documents, Mrs. H. T. Ledgerwood, the seller, and B. O. Vining, the buyer. The subject matter, that is, the property to be sold, is just as readily ascertained from an examination of the two writings as 135 and 137 Storey street, in Topeka, Kan. It is true there is a slight discrepancy here since the first writing refers to 135 and 139. However, not even the defendant claims to have been misled by. that. There never was any doubt in anyone’s mind about what land was being sold.
The next element, that is, the purchase price, appears clearly to be $3,200.
The terms of sale. — the assumption of a. loan in the amount of $1,800 owing by the seller to the Topeka Building and Loan Association and. the payment of $1,400 — appear clearly enough.
Defendant next argues his motion for a new trial should have been sustained because the trial court erred in the admission of evidence. The first argument under that head is that no proper foundation was laid for the introduction in evidence of the memorandum of March 13, because it was not executed by both the parties. This is largely a repetition of the argument made on the other point. The name of the seller appears on one document and the name of the buyér upon the other. Only one could be introduced at a time and parol testimony was admissible to show the connection between the two writings and that they were both part of the same transaction. (See 49 Am. Jur., Statute of Frauds, § 322, also, Blankinship v. Porter, 142 Kan. 284, 47 P. 2d 72.)
Other errors urged by defendant have been examined and found to be without merit.
The judgment of the trial court is affirmed. | [
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Schroeder, J.
Affirmed.
Prager, J., concurring. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover the balance claimed to be due on a real-estate contract. Defendant prevailed and plaintiff appeals.
Material portions of the petition read:
“2. On or about September 8, 1945, the plaintiff and defendant entered into a written contract, a full, true and correct copy of which is hereto attached marked Exhibit ‘A’ and made a part hereof.
“3. Plaintiff has fully complied with her part of said contract and has heretofore furnished and delivered to the-defendant an abstract of title showing marketable title to the real estate described in said agreement to be vested in plaintiff, notwithstanding which the defendant has refused to pay to plaintiff the $300.00 provided for in said agreement.
“Wherefore plaintiff prays judgment against the defendant for the sum of $300.00.”
Pertinent provisions of the answer are:
“Further answering, defendant alleges that plaintiff furnished and delivered to defendant an abstract of title as alleged in the third paragraph of the petition, but defendant alleges that said abstract did not show marketable title to the real estate described in the contract attached to plaintiff’s petition, but on the contrary, disclosed that plaintiff’s title to said real estate was not marketable.
“Wherefore, defendant prays that plaintiff take nothing by her petition; and that this defendant have judgment for his costs.”
Clauses of the contract, giving rise to the controversy, provide:
“First party agrees to sell and second party agrees to purchase on the terms hereinafter stated the following real estate situated in Shawnee County, Kansas: [here follows description]
“The consideration is thirty-eight hundred dollars payable thirty-five hundred dollars cash, receipt of which is hereby acknowledged. The balance, three hundred dollars, shall be paid in cash on delivery of abstract of title to second party showing marketable title in first party.”
With the pleadings in the condition just related, and an extensive agreed statement of facts alleged to include all claimed defects in the title, the parties waived a jury and submitted the cause to the court for decision.
The trial court found generally for the defendant and rendered judgment in his favor. Its decision, as reflected in the journal entry of judgment, which is quoted in toto, reads:
“Now on this 12th day of July, 1946, the above entitled having been submitted to the court on June 28, 1946, on an agreed statement of facts, came regularly on for decision.
“The court, being fully advised in the premises, finds that the abstract of title tendered to the defendant by the plaintiff did not Show marketable title in the plaintiff.
“It is therefore ordered by the court that judgment be and the same is hereby rendered in favor of the defendant for his costs.”
In due time plaintiff perfected an appeal from the judgment and she now contends the trial court erred (1) in rendering judgment for the defendant and against the plaintiff, (2) in overruling plaintiff’s motion for a new trial.
Technically the grounds relied on by appellant for reversal of the judgment in her specification of errors present nothing for review.
We have repeatedly held the first assignment the court'erred in rendering its judgment amounts to nothing more than a statement the judgment is wrong and does not specify any error. ’(Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; Biby v. City of Wichita, 151 . Kan. 981, 982, 101 P. 2d 919; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Lambeth v. Bogart, 155 Kan. 413, 415, 125 P. 2d 377; Marion County Comm’rs v. Clark, 157 Kan. 132,134,138 P. 2d 449; and Gale v. Fruehauf Trailer Co., 158 Kan. 30,145 P. 2d 125.)
The second specification of error is not good for several reasons. In the first place, when an action is submitted to the district court for judgment on the pleadings and an agreed statement of facts, no motion for a new trial is required. Under' such circumstances no trial errors, making a motion for a new trial necessary or proper, are committed and the only function of the trial court is to determine questions of law. (Central Fibre Products Co. v. State Tax Comm., 150 Kan. 665, 95 P. 2d 353; Jackson County Comm’rs v. Commission of Revenue and Taxation, 156 Kan. 585,134 P. 2d 657; City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542; Palmer v. Helmer, 159 Kan. 647, 650,157 P. 2d 531.) In the next, considering such a motion as tantamount to a request to the district court to reexamine questions of law involved, it is addressed solely to the discretion of that court and its ruling thereon in and of itself is not an appealable order. (Jackson County Comm’rs v. Commission of Revenue and Taxation, supra; Central Fibre Products Co. v. State Tax Comm., supra.) And finally, where, as here, the record discloses that a motion for new trial was made and overruled but neither the motion nor its grounds are set forth, this court cannot ascertain whether error was committed and will not review questions pertaining to the action of the trial court in overruling such motion. (Hover v. Cockins & McCarroll, 17 Kan. 518; Typer v. Sooy, 19 Kan. 593; Ervin v. Morris, 26 Kan. 664; Illingsworth v. Stanley, 40 Kan. 61, 19 Pac. 352; White v. Douglas, 51 Kan. 402, 32 Pac. 1092; Cole v. Bower, 53 Kan. 468, 36 Pac. 1000; and Lennen v. Ogden, 98 Kan. 747,161 Pac. 904.)
From what has been heretofore stated with respect to the strict legal status of a specification of error which merely recites that a judgment appealed from is erroneous it does not necessarily follow that we will refuse to dispose of an appeal upon its merits. The decisions on the point in question, to which we have heretofore referred, are based upon the construction given to Rule 5 of this court providing that “the appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.” On occasions in the past we have been, and perhaps will again be, disposed to show some' leniency in the enforcement of such rule. Nevertheless, we desire to once more call attention to its existence and import and warn litigants, who, in the future, may come within .the scope of its terms as construed by our decisions, of the likeli'■hood of its application.
So far as the instant case is concerned we note appellee has failed 'to question the specification. We are also aware the only issue for •appellate review is whether the judgment of the trial court holding the abstract of title tendered to the appellee did not show marketable title is to be upheld. Moreover, in fairness to capable counsel for ■ appellant, it should be stated we are convinced the form of the involved specification comes not from lack of knowledge of the rule or intention to disregard its force and effect but is due to a belief that with the record in the state just related we will not, in view of some of our former decisions, enforce its requirements. Therefore, without condoning failure to observe the rule, and with the admonition our ' action is not to be regarded as a precedent, we shall proceed with consideration of the appeal upon, its merits.
Heretofore we have stated there is but one issue involved on . appeal. That situation exists because of the nature of the judgment '.as rendered and the state of the record. To be specific the decree is general in its nature and does not indicate whether it is baséd upon one or all of the asserted defects in the title. The record is silent on .the point and counsel in their argument give us no additional information regarding it. The error assigned, as we have seen, merely amounts to a claim the judgment holding the abstract did not show marketable title was wrong. In such a situation the rule, so elemen tal as to require no citation of authority, is that if any one of the factual situations relied on as having that effect make the title unmarketable the decision of the trial court must be upheld. We turn, therefore, to the agreed statement of facts for the purpose of ascertaining if it sets forth a factual situation which required- that tribunal to conclude as a matter of law that the abstract of title furnished pursuant to the terms of the contract sued on did not show marketable title in the appellant at the time it was tendered to appellee.
At the outset it must be remembered the object^ of an abstract is to enable the purchaser of real estate to pass upon the validity of the title and that to enable him to do so it should contain everything material concerning its sources and condition. "The object of an abstract,” says Mr. Curwen, in his work on “Abstracts” (section 36) “is to furnish the buyer and his counsel with a statement of every fact and abstract of the contents of every deed on record upon which the validity and marketableness of the title depend, so full that no reasonable inquiry shall remain unanswered, so brief that the mind of the reader shall not be distracted by irrelevant details, so methodical that counsel may form an opinion on each conveyance as he proceeds in his reading and so clear that no new arrangement or dissection of the evidence may be required. The buyer has the right to demand a marketable title. He has a right to demand that the abstract of title shall disclose such evidence. of that title as' will enable him to defeat any action to recover or incumber the land.”
In dealing with the same subject, Mr. Patton in his work on “Titles,” 121, §26, states:
“Since the object of an abstract of title is to enable the buyer and his counsel to determine the validity and marketability of the title, it should contain an abstract of every record upon which ihese depend, ‘so full that no reasonable inquiry shall remain unanswered, so brief that the mind of the reader shall not be distracted by irrelevant details, so methodical that counsel may form an opinion on each conveyance as he proceeds in his reading, and so clear that no- new arrangement or dissection of the evidence may be required.’ An able text-writer on the subject has said: ‘Generally considered, a stipulation to deliver a good and sufficient abstract is complied with where the synopsis furnished purports to be a full search through the public offices, is arranged in an orderly manner for perusal, and its correctness is certified by some person of known skill and financial responsibility.’ More than this,could not reasonably be demanded; but it would seem that, for the double- purpose of convenience and safety, nothing less should be accepted!”
Similar statements, although differently worded, are to be found " in 1 C. J. S. 381, §-2; 1 C. J. 365, § 2; 1 Am. Jur. 155, § 1.
Turning to the record we find that the twelfth factual situation set forth in the agreed statement of facts reads:
“12. The certificate to the abstract of title down to October 27, 1909, reads as follows:
“State of Kansas, Shawnee County, ss.
“We, The undersigned, Do hereby certify that the foregoing is a correct Abstract of all conveyances or other instruments in writing now of record in the office of Register of Deeds in and for said county, which in any way affect the title to the real estate therein described; that we have carefully examined the record of said conveyances, and that they are properly executed, indexed and recorded, except as therein set forth; that said Abstract contains a statement of all Judgments and Suits Pending in the District and Circuit Courts of the United States for the District of Kansas, of all Judgments, Suits Pending and Mechanics’ Liens in the Third Judicial District Court, Superior Court' or Circuit Court in and for said county, and of all Unpaid Taxes and Unredeemed Tax Sales of Record in the office of the Treasurer of said county, that in any way constitute a lien on said real estate.
“There is no certificate covering probate court records for this period of time. The above form of certificate, or similar forms, were customarily in use in Shawnee County and vicinity down to about 1913 tod until such date the customary certificate to an abstract did not cover probate court records.”
From what has just been quoted it appears, in fact the parties concede, that the certificate of the abstract tendered to the appellee and on which the trial court based its judgment did not cover probate court records affecting the land involved in the action from the date of acquisition of title by patent from the United States down to and including October 27,1909.
Supplementing what has just been said we note the agreed statement elsewhere discloses the abstract purports to contain proceedings had in the probate court of Shawnee county within the period of time just mentioned which did affect the title to such real estate.
Thus it becomes obvious that in rendering its-decision one all-important question facing the district court was whether an abstract of title with a certificate which did not even purport or pretend to show that it covered all probate court proceedings affecting the title to the land described in such abstract showed a marketable title in such real estate. In our consideration of that subject we proceed upon the premise that when a contract for the sale and purchase of land provides a vendor shall furnish the vendee with an abstract showing marketable title the abstract must show on its face a good title in the vendor (55 Am. Jur. 734, § 297; Thompson on “Abstracts - and Titles,” 14, § 9), and that the showing of such a title in the abstract is a condition precedent to be performed by the vendor before; he will be permitted to recover any balance claimed by him to be. due on a contract for the sale of real estate (66 C. J. 957, § 664; Thompson on “Abstracts and Titles,” 12, § 8; Patton on “Titles,” 119, §25).
On the point in question, Mr. Thompson in his work “Examination of Titles,” 93, § 76, says:
“The concluding certificate of the abstractor should be carefully scrutinized to ascertain if he has searched all the offices where instruments affecting real. estate are .required to be recorded, as well as to forestall any attempt ,to limit' his liability by vague and obscure statements. There should be no subtle meaning or wording of the certificate. It should correctly describe the land, and make a clear cut and plain statement, ‘that the above and foregoing abstract of title is a true, correct and complete abstract of all conveyances and other instruments of writing on file or of record in the office of the recorder, or other office or offices where such things are to be found; that the.abstract contains an abstract or sufficient notation of any and all proceedings had in the! civil and probate courts of the county affecting the title; that there are no judgments, mechanics’ liens, mortgages, foreign executions, attachments, suits pending, transcripts of judgments from the United States Circuit or Dis^ trict Courts, or any other such matters ‘which in any way affect the title to said real estate, except as shown in the abstract.’ ”
The same author in his work on “Abstracts and Titles,” 320, § 209, states:
“Having completed his work of compiling the abstract there should be included at the end thereof a complete, definite and unqualified certificate as to the various searches made in compiling the abstract, and that these searches cover all public records available in which might be any particular thing that would affect the title of the property being abstracted or which would be a lien or charge against it.....An abstracter may limit his liability by a certificate that he has examined the records in certain offices only. Thus where a certificate stated that a careful search had been made of the records of the office of the county clerk, the clerk of the district court, the county treasurer, and that there were no liens of record upon the property described except as mentioned in the abstract, it was held there could be no recovery in a suit upon the bond of the abstracter for a loss occasioned by the omission from the abstract of a prior mortgage upon the property, then of record in the office of the register of deeds. . . . The certificate should first correctly describe ' the land covered by the search. It should then proceed in a form similar to the following:
“‘The above and foregoing abstract of title is a true, correct and complete abstract of all conveyances and other instruments of writing on file or of record in the office of the recorder, or other office or offices where such things are to be found; that it contains an abstract or sufficient notation of any and all proceedings had in the civil and probate courts of the county affecting the title; that there are no judgments, mechanics’ liens, foreign executions, attachments, suits pending, transcripts of judgments from the United States Circuit or District Courts, or any other such matters which in any way affect the title to the said real estate . . .’”
A somewhat similar statement is to be found in Warvelle on “Abstracts,” 118, '§ 103.
In Patton on “Titles,” 122, § 26, we find the following statement in connection with a discussion regarding the sufficiency and essentials of an abstract:
“The examiner should also see that the extent of the search, whether stated in the caption or in the certificate, is broad enough to cover all records which will affect the title up to the time that it is conveyed to his client.”
. To the same effect is 1 C. J. S., 383, § 4, where it is said:
“It is as necessary and proper that an abstract of title show the absence of judgments and liens affecting the land, where there are none, as that it show their existence where they do exist ...”
Decisions supporting the general principles heretofore quoted, perhaps because the rule an abstract on its face must show good title in the vendor makes the proposition almost elemental, are riot too numerous. Counsel cite, and we find, no decisions of this court dealing specifically with the subject. However, it has been dealt with elsewhere.
In Billick v. Davenport, 164 Iowa 105,145 N. W. 470, it was held:
“The judgments of a Federal Court constitute liens upon real estate located in-the county where the court is held, and an abstract failing to contain a certificate showing that.there were no judgments of that cqurt affecting the title was not merchantable.” (Syl. f 4.)
See, also, Continental Oil Co. v. Mulich, 70 F. 2d 521, where it was said.
“The failure of the abstract' to contain a certificate as to federal court judgments was cured, as requested in the title opinion, by a certificate of the clerk of the court showing there were no such judgments.” (p. 524.)
That there is sound reason for the-rule-announced in the legal treatises, textbooks and decisions to which we have referred, is definitely indicated in Thomas v. Carson, 46 Neb. 765, 65 N. W. 899, where it was held:
“T., the plaintiff, purchased a real-estate mortgage, relying upon the certificate accompanying an abstract of title, in which it was recited that C., the abstractor, had carefully examined the records of the office of the county clerk, the clerk of the district court, and county treasurer; and that there were of record in said offices no liens upon the property described, except as in said abstract mentioned. Held, that C. is not liable on his bond on account of the omission from said abstract of a prior mortgage upon the property conveyed, then of record in the office of the register of deeds.” (Syl. ¶ 3.)
Based on the foregoing authorities, we have no difficulty in concluding that in this state, where probate courts are courts of record and have always had jurisdiction and control of certain matters affecting real-estate titles, an abstract which fails to cover the probate court records of the county wherein the land described in the abstract is located does not show a marketable title. It follows the judgment of the trial court must be approved.
Once the conclusion just announced is reached another sound reason for affirming the judgment presents itself. The burden is on the party alleging error to show it affirmatively by the record (see 2 Kan. West Dig., “Appeal and Error,” §§ 901 and 1135; 5 C. J. S. 1331, § 1848). Here there is no affirmative showing of error on the part of the trial court.
In conclusion, we note that counsel for both appellant and appellee request that we pass upon all questions of title to be found in the agreed statement of facts. This, with due deference to counsel, we must decline to do. The record presented to us does not disclose how the trial court ruled on the questions which the parties now seek to have determined. In that situation our function is not to speculate on what the trial court’s ruling may have been on matters not presented by the appeal but to determine whether its judgment as rendered is sustained by the record.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
The question in this case is the effect of a mortgage foreclosure action, resulting in a judicial sale, on the rights of four junior mechanics’ lienholders who were not parties to the foreclosure suit. The trial court held that the mechanics’ liens were unaffected by the prior foreclosure, and ordered that they be foreclosed by a second sale. The mortgagee, who had purchased the property at the mortgage foreclosure sale, has appealed.
The mortgagee, Lenexa State Bank and Trust Company, made a series of loans to Mr. and Mrs. Thomas R. Dixon to finance the purchase of a number of tracts in Johnson county, and for the construction of houses on two of them, lots 2 and 3 in Fox Run addition. It took purchase money mortgages which were filed February 8 and February 23, 1973, and construction loan mortgages filed March 18, 1973.
The four mechanic’s lien claimants, Elton Meireis, Marvin Scott, Donald Staten, and Petzold Development Co., Inc., each furnished labor and materials at various times beginning in 1973 and ending in March, 1974, on the two tracts in litigation. Each filed a timely lien statement, the earliest on December 4, 1973, and the latest May 9, 1974. It is stipulated that each claimant has a valid lien. It is also stipulated that the bank’s mortgages were filed prior to the commencement of any construction work on the lots in question.
On November 2, 1973, the bank filed its foreclosure action. None of the lien statements had been filed at that time, and none of the lien claimants were made parties to the action. A decree of foreclosure was entered April 4, 1974. The Staten and Meireis lien statements were of record at that time; the Meireis statement had also been served on the bank, but had been misplaced.
On June 8, 1974, the first notice of the sheriff’s sale was published. All four liens were of record by then. The sale was set for July 3, 1974. On July 1 Petzold filed an action to foreclose its lien and to enjoin the impending sheriff’s sale. Service was not made on the bank until July 5, and in the meantime the sale took place as scheduled. The bank was the successful bidder at $100,207.05, the amount of its judgment plus interest and costs. The sale was confirmed on July 5, and the redemption period fixed at six months in accordance with the original decree.
The other three lien claimants were joined in the Petzold suit and each asserted his lien by cross-petition. The bank by separate answers denied the validity of all four lien claims, which totalled $6,134.00, and asserted that its title was superior to any of them by virtue of its mortgage foreclosure.
On September 4, 1974, the trial court granted a motion to consolidate the lien foreclosure suit with the prior mortgage foreclosure suit. It also granted a default judgment in favor of the lien claimants against all nonanswering parties. (The nature of this judgment appears nowhere in the record, and its existence is first recorded in the journal entry of judgment filed July 16, 1975, which recites that it is effective on filing.)
In June, 1975, the trial court heard the controversy between the bank and the lienholders on the pleadings, briefs, and a stipulation of facts. It concluded:
‘T. Those who furnish improvements on real property or furnish labor or supplies on real property are given lien rights pursuant to K. S. A. 60-1101 et seq. and amendments thereto.
“2. That mechanic lien statutes are special statutes governing the rights of those affixing improvements or supplying materials on real property and are separate and distinct from general creditor lien pendant statutes.
“3. That a creditor may redeem property sold at a mortgage foreclosure proceeding during the last three months of the six month redemption period provided that the general creditor has obtained a judgment adjudicating the lien right prior to the expiration of the three month period.
“4. That a mechanic lien is in the nature of a lien in fact and the holder thereof has a prescribed statutory procedure to file the mechanic lien after the work or improvement has been placed on the property pursuant to K. S. A. 60-1102 as amended.
“5. That a mechanic lien holder must commence judicial foreclosure proceedings within one year after fifing the lien and have the same adjudicated prior to subjecting the real property to a foreclosure sale.
“6. That there is a distinction between a general creditor adjudicated lien and a mechanic lien in fact. The former must redeem within the statutory period as a creditor in order to protect any interest in the real property to protect his lien right and the mechanic lien holder must first file the mechanic lien within the statutory period and secondly, must commence judicial proceedings as prescribed by law.
“7. That a mechanic lien in fact holder is not prejudiced] in right to foreclose the lien unless the mortgagee joins such mechanic lien holder as a party defendant in the mortgagee foreclosure proceeding and the mechanic’s lien interest is adjudicated in fact. The remedy for the mortgagee is to make an investigation and determine whether or not improvements have been made on the real property prior to the proceeding and to join such party as a party defendant in the foreclosure action. By failing to do so, the mechanic lien holder does not lose his right to proceed to foreclose the mechanic s lien provided the lien is timely filed and foreclosed as provided by law.”
Accordingly it rendered judgment foreclosing the four liens. An order of sale was entered, but was set aside pending this appeal.
The bank contends, as it has throughout, that the lienholders’ sole remedy as admittedly junior lienors was to redeem in the mortgage foreclosure suit. It was therefore error, it says, for the court to order a second sale. The mechanics’ lienholders, on the other hand, say that their liens were like any other junior liens existing when the foreclosure decree was entered, so that if the, bank wished to foreclose against them it was required to join them as parties defendant. We think their analysis is sound, as a review of a few of the fundamental principles governing mechanics’ liens will reveal.
First, in Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 202, 336 P. 2d 463, we took it as one of the “well-settled rules of this court” that “a lien for labor performed or material furnished in the construction or erection of improvements attaches from the date work or construction commences.” (p. 204.) In this case that date was after the bank’s purchase money mortgages were recorded, but prior to the mortgage foreclosure decree.
In the same case the court distinguished between a mere judgment creditor who parts with nothing in acquiring his judgment lien, and a mechanic’s lienholder who gives value as his lien accrues. The court characterized a mechanics lien as a “statutory mortgage,” saying:
“We can see no fundamental difference between a statutory lien and a lien created by a mortgage. Each arises as a result of a contract with the owner of the property. Under G. S. 1949, 60-1401 a mechanic’s lien is security for a debt and is an encumbrance in the nature of a statutory mortgage founded upon consent, under which the holder parts with a valuable consideration. [Citations omitted.] . . .” (p. 207.)
Finally, as long ago as Warden v. Sabins, 36 Kan. 165, 12 Pac. 520, we held that a mechanic’s lien which has attached is good against a subsequent purchaser for value and without notice, even though no lien statement is filed until after the conveyance. The court there noted that “[i]n adopting this rule, no injustice is done to the purchaser, as the work itself, or the material furnished, is notice to all of the mechanics’ or material-men’s claims.” (p. 169.)
Taken together the propositions are: a mechanic’s lien attaches when work first commences; in the eyes of the law the lien is a statutory mortgage; and the work itself puts those who later deal with the property on notice of its existence. In this case the mechanics’ liens had attached when the bank foreclosed; they had the same status as junior mortgages; and the bank was bound to take notice of their existence.
The rights of a junior mortgagee who was omitted from the foreclosure of a first mortgage were determined in Stacey v. Tucker, 123 Kan. 137, 254 Pac. 339:
“Where a senior mortgagee brought suit, foreclosed his mortgage and purchased the property at sheriff’s sale, not having made a junior mortgagee a party: Held, (a) the junior mortgagee’s rights were not affected by the proceedings; (b) the junior mortgagee was not barred for failure to redeem the land, and an action by the senior mortgagee afterwards to quiet title against the junior mortgagee was of no avail.” (Syl. 1.)
In that oase, as here, the first mortgagee contended that the junior lienholders “had the right to redeem from the sale, and not having done so are barred because the land once sold on order of sale is not again hable for sale to satisfy a junior lien.” (p. 138.) The argument was based on cases construing the precursors of our present redemption statutes, and in particular the nonresale statute, G. S. 60-3460, now K. S. A. 1975 Supp. 60-2414 (o):
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the six (6) months as hereinbefore provided.”
The court rejected the first mortgagee’s contention, saying:
“The statutes and cases cited above are not applicable here, because the rights of the junior mortgagee were not adjudicated. The junior mortgagees were not parties to the foreclosure proceedings. We are of opinion that the legislature in the enactment of the statutes above cited contemplated liens adjudicated as such, and this court, in construing such statutes, considered the rights of lienholders which had been determined — those about which there was no question. The question might very properly arise as to whether a junior mortgage was a lien, whether it had been paid, or whether barred by the statute of limitations, etc., therefore there is always a question to be determined whether an alleged lien is actually a lien.
“A junior mortgagee is not a necessary party to the foreclosure of a mortgage so far as the jurisdiction of the court to render a decree of foreclosure binding upon all the parties to the proceeding is concerned. He is, however, a necessary party in order to foreclose and bar any right of redemption he has in the property by virtue of his lien. Unless made a party, his rights ordinarily are not affected by the decree of foreclosure.” (pp. 138-9. Emphasis added.)
The court went on to hold that the second mortgagee had a right to foreclose, and the trial court erred in sustaining a demurrer to a petition seeking that relief. Under that holding the trial court’s decision here is clearly correct.
The bank, however, relies on McFall v. Ford, 133 Kan. 593, 1 P. 2d 273, rehearing den. 133 Kan. 678, 3 P. 2d 463, as dictating a contrary result. In that case a bank had foreclosed on three pieces of property in three separate actions. A Mrs. Thomas held a second mortgage on one of the parcels and was a party to that action only. She received a personal judgment and one of foreclosure, but when the property was sold she recovered nothing. When her personal judgment was rendered it became a lien on the other two parcels, which were subject to the foreclosure actions to which she was not a party. The second and third parcels were later redeemed by the mortgagor’s assignee; some eighteen months thereafter Mrs. Thomas sought to foreclose on those parcels. The trial court enjoined the sale on the basis of the nonresale statute, G. S. 60-3460, now K. S. A. 1975 Supp. 60-2414 (o), quoted above. This court, by a four to three decision, affirmed. The majority found that Mrs. Thomas was a creditor who had a right to redeem, and that redemption was her exclusive remedy.
The bank here reads McFall as saying that any junior lienholder, whether a party to the foreclosure action or not, must either bid at the foreclosure sale or redeem in order to protect himself. While ■the majority opinions do contain dicta which might be so construed, their validity was short-lived.
Six years later, in 1937, this court decided Motor Equipment Co. v. Winters, 146 Kan. 127 69 P. 2d 23. In that case the first mortgagee foreclosed, but inadvertently omitted joining a junior mortgagee in the foreclosure suit through an abstracter’s error, although the junior mortgage was duly recorded. After the mortgagor’s assignee redeemed, the second mortgagee sought foreclosure. The trial court denied the foreclosure, based on the nonresale statute. This court reversed, holding that the junior mortgagee’s rights were not affected by the foreclosure action to which it was not a party.
In the course of the opinion the court reaffirmed the declaration in Stacey v. Tucker, supra, that in the nonresale statute “the legislature contemplated by the use of the words ‘lien inferior thereto,’ not merely liens but ‘liens adjudicated as such.’ ” (146 Kan. at 129.) To a contention that Stacey was overruled by McFall the court responded by noting that Mrs. Thomas’ inferior lien in McFall had been adjudicated in an action in which she was a defendant. The court went on:
“. . . It was this inferior adjudicated lien of Mrs. Thomas’ with which the McFall case was concerned. It was held the lands of the debtor were not again liable to sale to satisfy her adjudicated lien. Even on an adjudicated lien the McFall case was ruled by a four-to-three decision.” (Ibid.)
It was suggested in Winters that the omitted mortgagee, might have protected itself by bidding at the sale whether its lien was adjudicated or not — a suggestion made by the bank here. The court recognized that the junior mortgagee had a right to bid, but went on:
“. . . Oh, yes, and so did any other stranger to the action. We are not concerned here with a mere right to bid. We are concerned with appellant’s right to bid under such circumstances as would protect a just and valid lien. . . .
“. . . Appellant riot having been made a party to the suit and no foreclosure judgment having been rendered on its second mortgage, how could it have protected its lien by bidding at the sale? Its bid would have been that of a complete stranger to the action and it would have been entitled to no credit on its bid by virtue of its mortgage.” (pp. 131-2.)
The court went on to point out that any amount bid in excess of the senior mortgage and costs would go to the mortgagor. In the event of redemption, the junior lienholder who purchased at the sale would get its purchase money back, but its lien would be extinguished while remaining unpaid.
By the same token, the court noted, the mere right to redeem affords only illusory protection to an omitted junior lienholder. If a small first mortgage were foreclosed without joining the holder of a large second mortgage, the owner could redeem during his exclusive redemption period and leave the second mortgagee “entirely without recourse.” (p. 132.)
The court rejected any such result, saying:
“On the other hand, had appellant been made a party to the action as it should have been, its mortgage would have been adjudicated, it would have been entitled to have the amount of its judgment credited on its bid, and in the event of redemption its lien would have been paid. That, we think, was the intention of the legislature. That is consonant with fair dealing. That requires the property to stand good only for the amount it was pledged to secure. It gives to a junior lienholder only that to which he is justly entitled and prevents unjust enrichment of the owner at the expense of a junior lien-holder.” (Ibid.)
The court went so far as to suggest that due process requires that a junior lienholder be joined if his rights are to be affected, and concluded:
“The first mortgage-foreclosure proceeding adapted to the nature of the lien interests required the presence of the holder of the inferior lien. By the very nature of the inferior lien it could be protected with certainty only by its holder purchasing the property at sheriff’s sale. In the very nature of the first mortgage-foreclosure action, no prior adjudication of appellant’s inferior lien having been had, an adjudication of that lien was essential to its protection under a bid at sheriff’s sale. Upon what reasonable basis can it then be said the legislature intended to bar a resale of the land on unadjudicated inferior liens? We conceive of none. To hold otherwise is to decide that the legislature, by G. S. 1935, 60-3460, intended to destroy substantial rights of holders of inferior liens. The pertinent statutes, when considered with the well-known practice in mortgage foreclosures in this state, cannot logically be construed to evidence such a ruthless and destructive intent. We think the legislature intended to bar the resale of land under an inferior lien only when that lien had been adjudicated and the holder of that judgment lien had neglected to protect it when he had an opportunity to do so at a previous sale.” (146 Kan. at 134-5. Emphasis .added.)
The court’s further observation is particularly applicable here, where the junior liens are “statutory mortgages” (Davis-Wellcome, supra) rather than conventional mortgages:
". . . The mortgage, being only security for the debt, must be foreclosed by judicial proceedings as provided by law. Others who also have a contractual and statutory lien on the property and whose rights would be prejudiced by not having their liens adjudicated are, as we have herein previously indicated, entitled by statute to he made parties defendant in such foreclosure proceedings.” (p. 136. Emphasis added.)
And finally, to remove any doubts that might still linger as a result of McFall, the court observed:
“We are mindful of the fact that language employed in some of our decisions has not left our interpretation of G. S. 1935, 60-3460, entirely free from doubt. It is more important our interpretation should be clear than that it should meet with universal agreement. In view of this fact language heretofore employed,, inconsistent with the distinction herein made as to adjudicated and unadjudicated liens, is hereby overruled.” (p. 137.)
The upshot of the three cases is that in order to bar a junior lienor from foreclosing his lien and securing a second sale, if his lien exists when the senior lien is foreclosed and the senior lienor is on notice of its existence, the junior lienor must be made a party to the suit in which the senior lien is foreclosed. In that way the validity of the junior lien can be established and its priority determined — i. e., the lien can be “adjudicated.” If that is done the junior lienor , may malee a meaningful bid at the foreclosure sale or he may redeem. If he does neither he=has lost his opportunity to protect his lien, for under the nonresale statute he cannot secure a second sale.
In this case the bank seeks to distinguish Winters on the grounds that the junior lien there was a recorded mortgage, while here the junior liens were unrecorded statutory liens. The distinction fails, as we see it, under the rule of Warden v. Sabins, supra, that the very existence of the improvements is “notice to all” of the existence of the liens. A prospective purchaser of improved real estate is invariably warned in his title opinion to make a physioal examination of the property to ascertain whether there has been recent work which might constitute a lien, even though a lien statement is not on file. The trial court’s findings, quoted above, require a foreclosing mortgagee to make the same investigation. We cannot see how the requirement poses any undue burden on a mortgagee.
The bank also urges that the default judgment of September 4, 1974, against the nonanswering defendants in the lien foreclosure action constituted an “adjudication” of the mechanics’ liens. Hence, it argues, the junior lienors had some four months before the redemption period expired during which they held adjudicated liens, during the last three of which they had a right to redeem.
There are at least three things wrong with this argument. First, whatever may have been the judgment against the nonanswering defendants, as against the bank there was no adjudication that the liens were valid. The bank in its answers had denied the validity of the liens, and that issue was undetermined until the judgment now appealed. Second, the default judgment itself was incorporated only in the journal entry, which was to become effective on filing. No entry in the appearance docket or other document appears in the record which would give the default judgment any effective date prior to the filing date of July 16, 1975. See K. S. A. 60-258 (b); Brown v. Brown, 218 Kan. 34, 542 P. 2d 332, and cases cited therein. And most importantly, the “adjudication,” even if effective September 4, would have been too late to give the claimants effective protection. The chance to make a meaningful bid had long passed and, as Winters so forcefully points out, “By the very nature of the inferior lien it could be protected with certainty only by its holder purchasing the property at sheriff’s sale.” (146 Kan. at 134.)
We conclude, then, that the trial court was correct when it re fused to discharge these liens and instead entered judgment foreclosing them. They were in existence at the time of the bank’s mortgage foreclosure, and the hank was on at least constructive notice of their existence. If it wished to foreclose them it was incumbent on it to join their holders in its foreclosure suit.
A final note. In Stacey v. Tucker, supra, the court recognized and cited numerous cases for the familiar principle that when a first mortgagee purchases the fee, at a foreclosure sale or otherwise, there may or may not be a merger of the two estates according to the intent and interests of the mortgagee-purchaser. It was held in that case that there was no merger, since it was to the mortgagee’s advantage to preserve the senior lien and he presumably intended to retain that advantage. Hence the junior mortgage was not advanced to a first lien by reason of the first foreclosure. In Winters, the court expressly declined to rule on whether the omitted second mortgage had advanced to a first priority, since the holder had not sought foreclosure as a first lien. All that was in issue in Winters was whether the second mortgage had been discharged by the foreclosure of the first, or whether it still remained a valid lien. The holding was simply that the lien was still good and could be foreclosed. Here, likewise, we are presented with no issues of priority. The judgment below is only that the mechanics’ liens are valid and may be foreclosed by sale. That judgment is correct and is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This appeal is from a judgment of the trial court con struing certain provisions of the Kansas automobile injury reparations act, commonly referred to as the no-fault, insurance law. (K. S. A. 1975 Supp. 40-3101, et seq.) In this opinion the law will be referred to as the K. A. I. R. A. or the no-faiilt act. The primary question presented is whether defendant-appellee, Farmers Insurance Company, Inc., insurer of plaintiff-appellant, is entitled to reimbursement, pursuant to K. S. A. 1975 Supp. 40-3113 (a), in the full amount of personal injury protection (PIP) benefits previously paid to plaintiff without a deduction for attorney fees and costs of litigation.
Pertinent facts are not in dispute and may be summarized. Plaintiff Easom sustained personal injuries in a collision between her automobile and one driven by Gary A. Hill. Defendant promptly paid plaintiff $4,731.31 in PIP benefits. Subsequently, plaintiff filed an action against Hill and his employer Harris claiming $20,-000.00 in damages for injuries sustained. Plaintiff retained her attorneys on a contingent fee contract of one-third of the amount recovered from Hill and Harris or their insurer. Hill and Harris denied liability and also challenged the extent of plaintiff’s injuries. In discovery proceedings, depositions of plaintiff and Hill were taken. While the case was pending, and before trial, plaintiff settled with Hill and Harris for $9,500.00 and judgment was entered by the trial court in that amount on November 3, 1975. On the next day, Farmers filed its petition to intervene in said action, claiming a lien and requesting full reimbursement of all PIP benefits paid to plaintiff. Prior to filing its petition to intervene, Farmers had taken no part in the action although it had been notified of the filing of the suit by plaintiff’s attorneys and that they were claiming an attorneys’ lien for one-third of all moneys collected by plaintiff. There was no agreement for representation between Farmers and plaintiff’s attorneys nor was there any contract between plaintiff or her attorneys with Farmers relative to plaintiff’s interest in the recovery.
The record discloses that an “Inter-Company Reimbursement Notification” was served by Farmers on Patrons Insurance Company, the insurer of defendant Harris. The notification informed Patrons that investigation of the accident by Farmers indicated that liability rested with Patrons’s insurer and that Farmers was requesting reimbursement under K. A. I. R. A. for PIP benefits paid. Notification by Farmers was acknowledged by attorneys for Patrons, who informed Farmers that its claim for reimbursement would be honored in connection with any final disposition of the claim.
Plaintiff and her attorneys resisted Farmers’s claim for reimbursement in full of PIP benefits paid to plaintiff. Plaintiff contended that the judgment entered on November 3 was res judicata as to Farmers’s petition to intervene and that Farmers was collaterally estopped from asserting its claim for reimbursement after judgment had been entered.
The trial court permitted Farmers to intervene and, after receiving briefs and hearing arguments, ruled that Farmers was entitled to reimbursement for the full amount of PIP benefits paid to plaintiff; namely, the sum of $4,731.31. This appeal followed.
While plaintiff reasserts res judicata and collateral estoppel her principal argument on appeal goes to the question whether an insurer is to be charged with a reasonable attorney fee and a share of 'the costs of litigation under K. S. A. 1975 Supp. 40-3113 (a) where an insured has seemed a judgment against or a settlement with a negligent third party sufficient to recoup the entire amount of PIP benefits.
Oral arguments were first heard by this court on September 23, 1976. After considering the arguments, briefs of the parties and briefs of amici curiae, the court determined that resolution of the issue presented required an interpretation of 40-3113 (a) in its entirety and that further briefing and arguments would benefit the court in disposing of the appeal. We also were informed that two other appeals, Jaremko v. Jones, 221 Kan. 444, 560 P. 2d 136; and Davis v. Western Insurance Companies, 221 Kan. 441, 560 P. 2d 133, both decided this day, involved the same principal issue, although differing somewhat as to facts and with reference to the positions taken by the respective parties. We directed re-argument in the instant appeal and scheduled arguments in the other two appeals for the December 1976 docket. As a part of our order we requested briefs and arguments on two related points in connection with an interpretation of the statute which were not fully treated by the parties in their original briefs. Arguments in all three appeals were heard on December 10, 1976, and we have received comprehensive and helpful briefs from all parties and amici curiae.
We have examined the K. A. I. R. A. in two previous appeals (Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291; and Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P. 2d 1363.) In Manzanares we were confronted with constitutional challenges to the original act (Substitute for House Bill No. 1129, Laws 1973, Chapter 198) and the present act which is a revised version of the 1973 act. The present act (Senate Bill No. 918, Laws 1974, Chapter 193) became effeotive February 22, 1974. The unique posture of the Manzanares appeal, as explained by Fatzer, C. J., speaking for the court, stemmed from the fact that on January 4, 1974, the district court found Substitute for House Bill No. 1129 unconstitutional and filed its memorandum, opinion January 24, 1974, but stayed its judgment. The appeal in Manzanares was immediately perfected. In the meantime, Senate Bill No. 918, which became the present act, was introduced in the legislature. It was aimed at correcting constitutional infirmities found by the district court in the initial act. Senate Bill No. 918 was passed by •both houses of the legislature by substantial majorities. It was signed by the Governor on February 18, 1974, and became effective upon publication in the official state paper on February 22, 1974. Thus Senate Bill No. 918, which repealed the original act, became the effective no-fault law of the state on that date, although the original act had been the applicable no-fault law from January 1 through February 22, 1974, a period of fifty-three days.
In view of the circumstances, and for the reasons set forth in the opinion, this court directed the parties to file supplemental briefs concerning the constitutionality of the present act. In Manzanares injunctive relief against a state official was sought, which necessitated the judgment of the court to operate in futuro, thus ■the court was required to consider the effect of the statute enacted during the pendency of the appeal. We found the district court had erred and that both acts were constitutional. The present act was examined in its entirety in Manzanares and its purposes and operations were considered and discussed in considerable detail with respect to the constitutional challenges lodged against most of the sections of the act. We stated that our discussions of the constitutional issues raised were not to be considered as rulings on the operative effect of the various parts of the act. However, in our discussion of the constitutional challenge to 40-3113, in Manzanares we made certain observations which are pertinent to the issue herein and will be mentioned in the course of this opinion.
In Farm ir City we examined the structure and operative effect of 40-3113 (a), but the issue there concerned the reimbursement of PIP benefits paid by an insured’s carrier out of survivors’ benefits •paid by the tort-feasors insurance carrier to the survivors of the deceased insured.
In Manzanares and Farm 6- City we recognized that the PIP insurance required by the act was “first party coverage,” with direct benefit payments coming from a party’s insurance carrier.
As previously indicated, the issues presented are to be resolved by interpretation of the provisions of K. S. A. 1975 Supp. 40-3113 (a) which reads:
"Insurer’s or self-insurer’s rights of reimbursement and indemnity. An insurer’s or self-insurer’s rights of reimbursement and indemnity shall be as follows:
“(a) [1] No subtraction from personal injury protection benefits shall be made because of the value of a claim in tort based on the same bodily injury, [A] but after recovery of damages by judgment, settlement or otherwise is realized upon any such tort claim, [B] a subtraction shall be made to the extent of the recovery, less reasonable attorney’s fees and other reasonable expenses, incurred in effecting the recovery, [C] but only to the extent that the injured person has recovered damages from the tortfeasor or his insurer or insurers, [D] which are duplicative of personal injury protection benefits payable. [2] If personal injury protection benefits have already been received, [A] the claimant shall repay to the insurer or insurers out of any such recovery a sum equal to the benefits received, [B] but no more than the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, [C] but only to the extent that the injured person has recovered; said damages from the tortfeasor or his insurer or insurers [D] which are duplicative of personal injury protection benefits received. [3] The injured person’s insurer or insurers shall have a lien on such recovery to this extent. [4] No recovery of damages by an injured person or his estate shall be subtracted by an insurer in calculating benefits due after such person’s death resulting from an injury for which the benefits were payable, and no recovery under K. S. A. 1973 Supp. 60-1903 shall be subtracted in calculating funeral benefits.”
The remaining subsections of the act are not directly involved in the specific issue presented, hut should be mentioned to bring into focus the overall purpose of 40-3113 in establishing an insurer’s rights of reimbursement and indemnity.
Subsection (b) of 40-3113 entitles a PIP insurer indemnity from one who, with notice of such insurer’s interest, makes payment to the injured insured without making the insurer a joint payee or without obtaining the insurer’s consent to a different method of payment.
Subsection (c) affords the insurer the right to bring suit against a third party tort-feasor for the recovery of PIP benefits paid under the terms and conditions provided therein.
Subsection (cl), as an alternative to bringing an action under (c), provides for arbitration of reimbursement between the insured party’s insurer and the insurer of the tort-feasor, if insured.
Subsection (e) proscribes double recovery of PIP benefits in the case of payment under uninsured motorist coverage by providing for deduction of benefits from any recovery received by an injured person by reason of such coverage.
For purposes of clarity and for convenience in referring thereto in the course of this opinion, we have numbered the sentences in subsection (a) and inserted letters in alphabetical order to identify the dependent and independent clauses of sentences one and two.
Turning now to the issues presented, we shall first consider the two questions upon which we requested further briefing and argument in our order for rehearing. Both questions stem from the last clause [D] of the first and second sentences of 40-3113 (a), which appears in almost identical language in both instances and is appended as a dependent clause to clause [C] of both sentences. In the first sentence clause [D] reads:
“. . . [W]hich are duplicative of personal injury protection benefits payable. . . .”
Clause [D] in the second sentence is identical except the word “received” appears in lieu of the word “payable.” It is also to be noted that clause [C] in both sentences appears in identical language except the word “said” precedes “damages” in the second sentence and is omitted in the first.
The two questions submitted for further briefing are as follows:
“I. Under the record presented, what portion of the ninety five hundred dollar ($9,500.00) settlement is duplicative of personal injury protection benefits received?
“II. In construing K. S. A. 1975 Supp. 40-3113 (a) concerning liability for attorneys’ fees, what effect should be given the last clause of the second sentence which reads:
. . [B]ut only to the extent that the injured person has recovered said damages from the tortfeasor or his insurer or insurers which are duplicative of personal injury protection benefits received. . . .’?”
Before considering the questions in the light of the language of the statute, we should note some of the general rules of statutory construction long adhered to by this court. First, the fundamental rule, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute even though words, phrases or clauses at some place in the statute might 'be omitted or inserted. This rule, stated in various forms, has been applied by this court throughout its history. (Farm & City Ins. Co. v. American Standard Ins. Co., supra; Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219; and Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115.) Legislative intent is to be determined by a general consideration of the entire act. Effect should 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. (Fleming Company v. McDonald, 212 Kan. 11, 509 P. 2d 1162.) The several provisions of a statute in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if it is reasonably possible to do so. (Callaway v. City of Overland Park, 211 Kan. 646, 508 P. 2d 902.)
Since PIP benefits have been paid in the case at bar, reimbursement by repayment under sentence 2 is the provision of the statute directly involved; however, under the rule of in pari materia the several provisions of the statute must be construed together.
Concerning the first question, plaintiff takes the position that the “duplicative” clause in question is a further limitation on an insurer’s right to reimbursement of PIP in addition to the burden of a share of plaintiff’s attorney’s fees which, plaintiff claims, is also imposed by the statute. Plaintiff asserts that the effect of the clause is to require proof that a portion of the dollar amount of judgment was duplicative of PIP benefits and that the burden of proof thereof was on the insurer Farmers. Plaintiff projects this theory by asserting that Farmers wholly failed to sustain its burden of proof on the allocation of the dollar amount of judgment between damages which are duplicative of PIP benefits received and those which are not. Plaintiff goes on to argue that since the judgment in this respect is now final, Farmers is barred from reimbursement of any PIP benefits paid by reason of the doctrines of collateral estoppel and/or res judicata. In the alternative, in connection with this point, plaintiff also proposes the theory that since plaintiff’s claim was for $20,000.00, but recovery was only $9,500.00, PIP reimbursement should be apportioned in the ratio of amount recovered to amount claimed.
We are unable to give the effect to the clause in question sought by plaintiff on any of the theories advanced. Sentence 2, of subsection (a), which is applicable in the instant case, requires re payment by the insured to the insurer out of any recovery a mm equal to the benefits received. The clause in question was added to 'both the first and second sentences as they originally appeared in Substitute for House Bill No. 1129 in order to further clarify subsection (a) of the act in response to the trial court’s determination in Manzanares that it was unconstitutional. The second sentence of the statute, as it appeared in Substitute for House Bill No. 1129, reads:
“. . . If personal injury protection benefits have already been received, the claimant shall repay to the insurer or insurers out of any such recovery a sum equal to the damages received, but no more than the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said damages from the tortfeasor or his insurer or insurers. . . .” (Emphasis supplied.)
The trial court in Manzanares found that the use of the word “damages” required repayment of all damages recovered and, thus, constituted a denial of due process and equal protection. Concerning this point, with respect to the second sentence, we said in the Manzanares opinion:
“. . . The denial of due process and equal protection resulted from the use of the word ‘damages’ in the second sentence of the statute.
“When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute. (Gnadt v. Durr, 208 Kan. 783, 494 P. 2d 1219.) While the scrivener could well have used the term “benefits’ instead of ‘damages,’ we think the legislative intent is clear. The key word in the second sentence is ‘repay.’ To repay requires that the insured receive duplicative payments. The section, in its entirety, was designated to prevent duplicative recovery. The section is not so vague as to render it unconstitutional.” (p. 617.)
The legislature, of course, did not have at hand this court’s interpretation of the section in Manzanares at the time the “duplicative” clause was added. We are convinced the clause was added, in response to the Manzanares trial court’s decision, only to further clarify the purpose of the section which this court said was designed in its entirety to prevent duplicative recovery. According to the definition in K. S. A. 1975 Supp. 40-3103 (q), PIP benefits cover economic loss of the insured, including disability and medical benefits. This is in accord with the basic protection plan proposed by Keeton and O’Connell (see discussion by Keeton and O’Connell, Basic Protection for the Traffic Victim, Chapter 6, pages 273, et seq.) We recognized in Farm ir City that the purpose of the K. A. I. R. A. was to make PIP coverage mandatory by requiring every owner of a motor vehicle to obtain first party coverage for PIP benefits payable by his own insurer; and further that the reimbursement section of K. A. I. R. A. was designed to prevent a double recovery by claimant where the net recovery by insured was sufficient. We referred to the Keeton and O’Connell proposal on the subject in these words:
“Keeton & O’Connell proposed no-fault automobile liability insurance legislation and suggested provisions to prevent double recovery for elements of damage by granting an insurer, who has paid an injured party for personal injuries, a right to reimbursement if the injured party recovered for the injuries from the tort-feasor or 'his insurer (see Keeton & O’Connell, supra, § 1.10 [c] [2], p. 307) . . .” (p. 338.)
In the instant case the trial court found in finding No. 1:
“. . . Farmers Insurance Group, Intervenor herein, paid medical bills of $555.31 and loss of wages in the sum of $4,176 or a total of $4,731.31 as required by its policy issued in compliance with the Kansas Automobile Reparations Act. . . .”
PIP benefits were found to be $4,731.31, concerning which there is no dispute, and the reimbursement provisions of 40-3113 (a) require repayment of a sum equal thereto. The duplicative clause in question, as it appears in the statute, not only requires that reimbursement be for damages that are duplicative of PIP benefits, but it also operates as a rule of measurement to be applied in limiting reimbursement to a sum equal to PIP benefits. It serves to limit repayment under the second sentence of 40-3113 (a), as well as subtraction under the first sentence to a sum equal to PIP benefits paid or payable whichever the case might be. Reimbursement of the insurer is limited to a sum equal to, and duplicative of, PIP benefits and cannot be in excess thereof which was the concern of the trial court in Manzanares. If, for instance, the recovery for economic loss against the third party tort-feasor is in excess of PIP benefits paid, insurer is entitled to repayment of only the amount of economic loss previously paid.
As we observed in Farm ir City, provisions for reimbursement in our own act and those of other states stem from the Keeton and O’Connell study (Keeton and O’Connell, Basic Protection For The Traffic Victim) which is generally regarded as the foundation of most no-fault legislation. The Florida and Michigan no-fault laws contain reimbursement provisions similar to our 40-3113 (a). (See 18A Fla. Stat. Ann., § 627.736[3], and 17A Mich. Stat. Ann., 1976 Supp. §24.13116.) Florida added to its provision for reimburse ment, set forth in paragraph (3) (a) of its act, an additional paragraph (b) which provided that reimbursement should be based upon such equitable distribution of the recovery as the court may determine, less a pro rata share of the costs and attorney fees expended by plaintiff in effecting the recovery. The addition of such a provision to our act would accomplish the effect sought by plaintiff.
In an exhaustive analysis of the reimbursement provisions of the Florida no-fault law, entitled “Insurer’s Rights of Reimbursement Under Florida’s No-Fault Law,” appearing in Vol. 26, University of Florida Law Review (1974), the authors had this to say concerning the two paragraphs of the act:
“By allowing full reimbursement to the insurer from the insured’s tort recovery, Florida Statutes, section 627.736 (3) (a), serves the basic purposes of subrogation. . . .
“Unlike paragraph (3) (a), Florida Statutes, section 627.736 ( 3) (b), injects the vague concept of equitable distribution into the no-fault law. Under this principle the insurer never receives full reimbursement and the insured always receives some double recovery. Moreover, the purpose of equitable distribution is to insure the fullest recovery possible to the injured party by decreasing the amount of the insurer’s reimbursement. Furthermore, the insurer may be assessed a prorata share of the costs expended by the injured party in obtaining the recovery as well as a reasonable attorney’s fee for the insured’s attorney. Although paragraph (3) (b) maximizes the recovery of the injured party, it defeats the goals: of no-fault and the purposes of subrogation.” (pp. 550-551.)
The difficulties encountered in the application of the Florida act are demonstrated by three decisions of 'the Courts of Appeal of Florida. In State Farm Automobile Ins. Co. v. Hauser, Fla. App., 281 So. 2d 563 (Third District, 1973), the court found that paragraphs (a) and (b) resisted reconciliation. The court affirmed a trial court’s judgment allowing equitable distribution, but reversed as to the reimbursement allowed on the ground it was inequitably insufficient. The case was remanded for trial court reconsideration on this point. According to the Florida decisions referred to the basis for the application of (b) permitting equitable distribution, rather than (a) authorizing full reimbursement, appears to depend upon whether suit has been filed. The Hauser case was followed by Reyes v. Banks, Fla. App., 292 So. 2d 39 (Fourth District, 1974) and State Farm Mutual Automobile Ins. Co. v. Mance, Fla. App., 292 So. 2d 52 (Third District, 1974). These decisions clearly indicate that where suit has been filed paragraph (b) becomes applicable and equitable distribution is allowed, but where recovery is by settlement without suit paragraph (a) is applicable and the PIP insurer is entitled to one hundred percent reimbursement. This result, stemming from the irreconcilable inconsistencies of paragraphs (a) and (b), aggravates rather than lessens the volume of litigation, as pointed out in the special concurring opinion of Chief Judge Barkdull in State Farm Mutual Automobile Ins. Co. v. Mance, supra. Judge Barkdull suggested that the legislature should revisit the subject. In its 1976 session the Florida legislature responded by enacting substantial amendments to § 627.736 with respect to reimbursement. (See- 18A Fla. Stat. Ann., 1977 Cumulative Annual Pocket Part.)
In view of the addition of paragraph (b) to the Florida act, the Florida decisions are of little aid in the construction of our own law. Counsel for Farmers has called to our attention that House Bill No. 2869, which did provide for apportionment of reimbursement with respect to attorney fees, was introduced in the 1976 session of the Kansas Legislature, but was killed in the House Committee on Insurance. Counsel argues that such action indicates legislative intent negative to apportionment of attorney fees with respect to reimbursement. The bill never reached the floor of either house and we are not persuaded by counsel’s arguments in this regard.
Plaintiff argues the statute contemplates a showing that damages recovered by the insured are, in fact, duplicative of PIP benefits and that the burden of proof in this regard is upon the insurer. As to the case at bar, plaintiff contends Farmers has failed to furnish proof and, thus, is barred by the doctrines of collateral estoppel and/or res judicata.
To impose a “burden of proof” rule upon the statute in accordance with plaintiff’s theory would, in effect, strike out the insurer’s lien for the amount of benefits paid, as provided for in sentence 3 of the statute, and in lieu thereof establish an “equitable apportionment” rule which is not in the act. The result would be a multitude of lawsuits, not between the insured and the tort-feasor, but between the insured and his PIP insurer.
Our specific holding in Farm 6- City was that the reimbursement provisions of 40-3113 do not apply to survivor’s benefits under the act, but we made this pertinent observation concerning apportionment:
“. . . How could this or any court determine what portion, if any, of the $14,800.00 was for PIP benefits and what portion was for non-pecuniary loss? . . .” (p. 340.)
In the case at bar, even though suit was filed it was terminated by settlement which resulted in a judgment by confession. Recovery was actually secured through settlement with the tortfeasor’s insurer. The judgment entered on the settlement did not specify what portion of the settlement represented plaintiff’s economic loss for which she had received PIP benefits. No differentiation is shown as to pecuniary and nonpecuniary loss except that PIP benefits were determined to be $4,731.31 concerning which there is no dispute. Every settlement of a tort claim necessarily entails some discounting of a plaintiff’s original claim, but our statute makes no differentiation between recovery by settlement or judgment. The pertinent portion reads “. . . [B]ut after recovery of damages by judgment, settlement or otherwise. . . .” (Emphasis supplied.)
The statutory scheme of K. A. I. R. A. clearly gives control of recovery by either litigation or settlement to the insured. Control is exclusive for the first eighteen months following the accident and then insurer is entitled to bring an action only after thirty days notice to the insured (see subsection [c]). The insured is in control of the litigation and possesses knowledge of the nature of the losses incurred. If the total recovery is claimed not to include pecuniary losses or the full amount thereof, it is the burden of the insured to furnish proof thereof.
In numerous personal injury cases where the verdict was claimed to be inadequate, this court has considered the case on the premise that the full pecuniary losses, medical expenses, etc., were included in the verdict when established by substantial evidence. We have directed the granting of a new trial where the verdict was only equal to the amount of medical expenses proven, and awarded nothing for pain and suffering, even though there was uncontradicted evidence thereof. (See Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522, and cases cited therein.) We believe it must be presumed that pecuniary loss, represented by PIP benefits, is included in a recovery either by settlement or judgment in the absence of proof to the contrary and that the burden of supplying such proof is upon the insured.
We hold that the duplicative clause referred to does not serve as a basis for injecting an apportionment or equitable distribution theory into the act; and further that it has no bearing on the ques tion of attorney’s fees as related to reimbursement. It follows that plaintiffs contentions concerning collateral estoppel and/or res judicata are of no avail. As applied to the instant case, the $9,500.00 is duplicative of the PIP ‘benefits paid in the amount of $4,731.31.
We turn now to the question of attorney’s fees which was the principal issue determined by the trial court and is,the paramount question presented in this appeal. We are confronted with a plethora of arguments by counsel and amici curiae on 'both sides of the issue. We have been presented with numerous documents that were not before the trial court, such as letters from members of the legislature addressed to counsel stating their individual views on •the subject, as well as a letter written by an attorney for the Commissioner of Insurance addressed to an attorney who is not involved in this litigation. In the last letter mentioned the Commissioner’s attorney gave an interpretation of 40-3113 (a) with respect to attorney fees that appears to be inconsistent with the position now taken by the Commissioner in his brief amicus curiae.
We have carefully examined the briefs of all counsel and amid curiae, which have been of great assistance in our examination of 40-3113 (a), but to document all of the arguments presented would unreasonably extend this opinion.
The prefatory sentence of K. S. A. 1975 Supp. 40-3113 declares that an insurer’s or self-insurer’s rights of reimbursement shall be as set forth in the five following subsections (a) through (e).
The controversy in1 the case at bar arises from the provisions of subsection (a) whio]i is composed of four sentences. The first proscribes any subtraction from PIP benefits because of the value of a tort claim based on the subject injury and then proceeds to provide for the insurer’s reimbursement by way of subtraction by the insurer from PIP 'benefits if a recovery of damages is accomplished by the insurer prior to the payment of PIP benefits. The second sentence of (a) provides for repayment of PIP benefits where a recovery of damages is secured by the insured by way of settlement or judgment after PIP benefits have been paid. Since PIP benefits had been repaid in the case at bar, the trial court determined the question under the second sentence of (a). The trial court concluded:
“Under the clear meaning of the statute (40-3113 [a]) applicable to the facts of this case, Intervenor is entitled to reimbursement for the full amount of personal injury protection benefits paid to plaintiff, namely the sum of $4,731.31. The phrase ‘exclusive of attorney fees and expenses’ as used in the statute protects a tort claimant from being forced to make up the difference out of his own funds in cases where the recovery, over and above attorney fees and costs, is less than the P. I. P. benefits for which reimbursement is sought. Whether such result is fair to the insured tort claimant is for the legislature to decide and it has spoken.”
The majority of this court has concluded that the trial court correctly construed the statute as applied to this case.
Although the trial court was concerned only with reimbursement by way of repayment under sentence (2), we believe under rules of statutory construction we should examine subsection (a) in its entirety in context with other subsections of 40-3113 and in the ■light of the overall purposes and intendment of the K. A. I. R. A.
One of the main purposes of the K. A. I. R. A. is to provide prompt payment of PIP benefits to an injured insured without regard to fault. Under K. S. A. 1975 Supp. 40-3110 (b) PIP benefits are overdue if not paid within thirty days after notice and bear simple interest at the rate of eighteen percent per annum. K. S. A. 1975 Supp. 40-3111 (b) provides for the taxing of an attorney fee against the insurer for advising and representing an insured in the collection of overdue PIP benefits. Subsection (b) further specifically directs that such attorney fee shall be in addition to any benefits collected. It is apparent that running through K. A. I. R. A. is the premise that PIP benefits are primary, have priority, and are to remain intact in the hands of the insured. It is also the clear design of the act that the wrongdoer, if established as such by settlement or judgment, should bear the burden of the damages incurred and that the PIP insurer is to be reimbursed if sufficient recovery is had against the wrongdoer.
We shall examine sentence (1) in detail because we believe the operative effect thereof is intended to reach the same result as effected by sentence (2). The difference in the language employed is necessitated because sentence (1) deals with reimbursement by subtraction, whereas sentence (2) provides for reimbursement by repayment.
The first clause of sentence (1) of subsection (a) is written in the negative. It provides “no subtraction” shall be made because of the value of an insured’s tort claim. The second clause, which we have labeled [A], fixes a condition “after recovery of damages is realized” which leads to clause [B], which refers back to the initial “no subtraction” provision and states an exception thereto that “a subtraction shall be made to the extent of the recovery less reasonable attorney’s fees and other reasonable expenses incurred in effecting the recovery.” Clauses [C] and [D] deal with the “duplicative of” limitation which we have previously considered. It is the language of clause [B] that gives rise to the controversy. In reading this clause it must be kept in mind that sentence (1) is dealing with a situation where recovery has been secured, but PIP has not been paid. The purpose of sentence (1) is to direct what subtraction shall be made from PIP benefits by the insurer when called upon to pay after the insured has obtained recovery. It simply directs a subtraction to the extent of the recovery less attorney’s fees and expenses. To arrive at the extent of the recovery under this direction, attorney’s fees and expenses are subtracted from recovery and the remainder is the extent thereof. The clear import is that subtraction by the insurer is limited to the extent of recovery as thus determined. If the extent of recovery, as calculated, is more than PIP benefits payable, the total PIP is subtracted. If the extent of recovery is less than PIP benefits payable, only that amount may be subtracted and the balance is paid to the PIP insured. If, for example, PIP benefits had not been paid in the instant case, Farmers would be entitled to subtract the entire amount because the extent of recovery ($9,500.00), less attorney’s fees and costs, is more than the PIP benefits payable. If, on the other hand, plaintiff had secured a settlement of only $6,000.00, rather than $9,500.00, the extent of recovery would have been $6,000.00, less $2,000.00 attorney’s fees and costs of $217.45 or $3,782.55, which would be subtracted from PIP benefits of $4,731.31 and the balance of $948.76 would be payable to plaintiff by Farmers. The attorney would have his one-third fee of $2,000.00, the plaintiff would have an amount equal to her full PIP benefits and Farmers would be short $948.76 on PIP reimbursement. If the case had been tried and a defendant’s verdict returned, then, of course, Farmers would be entitled to no subtraction from PIP benefits payable and would be required to pay the full amount on demand.
In reading sentence (1), we give the usual dictionary meaning to the words employed. The word “less,” when used as a preposition as in clause [B], is given meaning in Webster’s Third New International Dictionary [Unabridged] as “1: diminish by: with the subtraction of: minus . . .2: with the exception of: excluding. . . .” Any of such words or phrases could have been used in clause [B] in place of less without changing the import thereof.
As counsel suggests, the provisions of sentence (1) will rarely be applicable. They will be applied, probably only when an injured insured has, for some reason, failed to apply for PIP 'benefits, where a settlement is made within a few days or weeks, or where PIP benefit payments extend over a length of time. Failure to pay PIP benefits promptly results in liability of the insurer for attorney’s fees and interest at eighteen percent per annum, as previously mentioned.
We turn now to sentence (2) of 40-3113 (a) which deals with the situation where PIP benefits have been paid prior to recovery of damages, as in the case at bar. The first clause of sentence (2) fixes the condition — if PIP benefits have already been received. The second clause labeled [A] directs the claimant to repay to his insurer, out of his recovery, a sum equal to PIP benefits received. Clause [B] effects the same limitation on repayment of PIP as does clause [B] in sentence (1) with respect to subtraction except that different language is employed in the case of repayment. Clause [B] of sentence (2) limits repayment to no more than the recovery exclusive of reasonable attorney’s fees and expenses. The clear meaning is that the amount of recovery subjected to repayment can be no more than the amount recovered exclusive of attorney’s fees and expenses. As in the case of clause [B] in sentence (1), and as noted by the trial court, the clause protects the tort claimant from being forced to make up the difference out of his own PIP benefits in cases where the recovery, over and above attorney’s fees and costs, is less than the PIP benefits for which repayment is sought. The same language gives priority to attorney’s fees and costs over repayment to the insurer where recovery is insufficient. The clauses referred to operate to the effect that 'the right to reimbursement shall in no event exceed the amount actually recovered after the deduction of reasonable attorney’s fees and expenses. The reference to attorney’s fees in both sentences is for the purpose of obtaining this effect and not as a direction that fees be charged against reimbursement in every case as argued by the plaintiff. Opposing counsel points out that the legislature had considered attorney’s fees as evidenced by the provision therefor in 40-3111 (b) and could have easily added a proviso thereto with respect to reimbursement if it had so intended. Counsel also notes .the legislature is well aware of the statutory method of providing for proportional payment of attorneys’ fees as set forth in K. S. A. 1975 Supp. 44-504 (c) of the Workmen’s Compensation Act.
It may be seen that sentences (1) and (2) leave a claimant in the same position. In either situation, where recovery is insufficient, the net effect is that the insurer, by being charged with the full amount of PIP benefits, is actually paying a portion of the insured’s attorney fees. This result could and will undoubtedly occur because it clearly appears that 40-3113 (a) is designed so that the insured is in no worse position as a tort claimant than if K. A. I. R. A. had not been enacted. The insured is afforded prompt payment of PIP benefits regardless of fault and he may, if he chooses, pursue tort recovery without subjecting any of his PIP payments to insurer’s reimbursement by either subtraction or repayment.
In the case at bar, plaintiff included loss of wages and medical expenses, together with nonpecuniary losses, in her petition filed in her action against Hill and Harris. She, not Farmers, made the decision to include those elements of damages for which she had received payment. She had control of the action which was filed. Her insurer had no right of choice in the matter. If Farmers had also been the insurance carrier of Harris, instead of Patrons, then under plaintiffs theory it would be compelled to pay an attorney’s fee for liquidating a lien against itself.
Plaintiff’s counsel has directed our attention to the use of the plural possessive “attorneys’ ” in the second sentence, whereas the singular “attorney’s” is used in the first sentence. Plaintiff proposes that this indicates a concept of two attorney’s fees arising in a reimbursement by repayment situation. We attach no significance •to the position of the apostrophes in the two situations. The apostrophes were used in both instances merely to mark the possessive case. The plural “fees” follows the possessive case of the noun attorney, in both instances. As previously stated, we are convinced the legislature intended the same effect whether PIP benefits have •been received or remain payable. There undoubtedly will be cases where PIP benefits have been received in part and remain payable in part due to loss of wages or medical expenses extending over a period of time. We see no rational reason, within the purposes of the act, to distinguish, in this regard, between those insured who have received PIP benefits and those who have not.
As we have previously indicated, clauses [C] and [D], of both sentences, have no bearing on the issue of attorney’s fees, but only operate to limit subtraction or repayment to damages recovered which are duplicative of PIP benefits received or payable.
K. S. A. 1975 Supp. 40-3113, as written, is in harmony with the Keeton and O’Connell proposals and the overall purposes of the K. A. I. R. A. as statutorily declared in K. S. A. 1975 Supp. 40-3102 and as stated by this court in Manzanares and Farm 6- City.
We oannot disagree with the argument of plaintiff’s counsel that to some extent, at least, the statute appears to work an injustice where — as here — the claimant has borne the expense of discovery depositions and her counsel has rendered the services necessary to bring about a settlement, while the insurer has sat on the sidelines, yet reaps the benefits of reimbursement. But as the trial court noted, whether the result is fair to the insured claimant is for the legislature to decide and it has spoken. This court does not decide nor weigh the beneficial results flowing from any particular legislative policy. (Manzanares v. Bell, supra; and Williams v. City of Wichita, 190 Kan. 317, 374 P. 2d 578.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
Appellant, John S. Spaulding, M. D., appeals from an order of the trial court denying a motion to reduce alimony payments which had been agreed upon by him and his former wife, Tamara Spaulding, the appellee herein.
On October 17, 1972, appellee was granted a divorce from appellant. The parties had been married seventeen years and had an eight-year-old son. The decree of divorce disclosed that appellee appeared in person and by her attorney and that the appellant appeared by Keith K. Couch, one of his attorneys. Appellee was granted custody of the son, Andy J. Spaulding, subject to liberal rights of visitation by appellant. Appellant was directed to pay child support in the amount of $200.00 per month until the child reached twenty-one years of age or is “sooner emancipated and self-supporting or until further order of the court.” Appellant is a medical doctor and, at all times involved in this litigation, he was employed as an associate professor at the University of Kansas Medical School. At the time of the divorce, appellant’s salary was approximately $26,000.00.
Concerning the separation agreement of the parties the decree reads:
“5. That the parties have entered into a separation agreement which is filed herein .and which the court finds to be valid, just and equitable and should be incorporated in this decree and made a part hereof by reference. The court grants leave of the parties to withdraw the same for filing with the Clerk of the District Court.” (Emphasis supplied.)
The settlement agreement by its terms was declared to be contractual in nature and provided in detail for a division of the property owned by the parties at the time of the divorce. Paragraph five with which this appeal is concerned reads as follows:
“5. That John S. Spaulding shall pay to Tamara Spaulding the sum of $950.00 per month as future support denominated as alimony until the death or remarriage of the said Tamara Spaulding, and upon either event the obligation to pay alimony shall terminate absolutely. In addition to the aforesaid payments, John S. Spaulding shall pay Tamara S. Spaulding one-third of all increases or increments of salary which he shall receive as an employee of the State of Kansas or the University of Kansas Medical Center as ‘cost of living’ increases as additional alimony. Merit increases shall be exempt from such additional payments.”
Paragraph six of the agreement provides for adjustment of the monthly alimony payments to reflect any increases or decreases in the cost of living, if appellant discontinued his employment with the State of Kansas at the University of Kansas Medical Center at any time in the future. Except for the cost of living adjustments, referred to in paragraphs five and six, there was no'provision for modification or change of alimony prescribed by the agreement.
Appellant complied with the alimony provisions of the settlement agreement for more than two years until the motion in question was filed on May 9, 1975. Appellant asked that alimony payments be reduced or in the alternative to set aside the agreement as null and void or to relieve appellant from the terms of the portion of the agreement relating to alimony.
At the hearing on the motion, the appellee argued that, as a matter of law, appellant was not entitled to the relief sought and asked for summary judgment in her favor. After hearing appellant’s offer of proof and arguments of counsel, the trial court sustained appellee’s motion for summary judgment and this appeal followed.
In his motion appellant attacked the settlement agreement on eleven grounds. His offer of proof, however, centered on only two of the alleged grounds — (1) that the agreement was not voluntarily or knowingly entered into and (2) appellant entered into said agreement under duress. As to number one, in his offer of proof, appellant announced his testimony would be that he was never advised by his Missouri counsel as to the effect of a separation agreement and that it was his understanding that at all times alimony could be negotiated downward. As to number two, appellant informed the trial court that he had two expert witnesses (psychiatrists) who were prepared to offer testimony that at the time the settlement was being negotiated, “. . . Dr. Spaulding [appellant] was being motivated solely by the fear of disastrous consequences of the wife and of the child, and was incapable of acting in his best interests.” Appellant’s testimony would be that appellee had a history of mental problems; that there were three or four suicide attempts; and that with this in mind, appellant gave in to the agreement through exhaustion and “fearing for the disastrous consequences.”
The record of the hearing reflects that the trial judge referred back to the divorce proceedings over which he had presided. The court recalled it had “. . . made a finding of fact that the property settlement agreement was fair, just and equitable, . . The court observed that:
“. . . The defendant at the time of his Answer was represented by the Morrison & Hecker firm of Kansas City, Missouri, in the person of Mr. Patzman, and further by Keith Couch of the Johnson County bar. . . ."
The court relied on K. S. A. 60-1610 [Amended L. 1976, Ch. 256, Sec. 1] in ruling on the motion. The court commented:
“Within the offer of proof, there is no way the court could find that there had been a fraud perpetrated. . . .
“. . . We are faced with the proposition of the passage of time and the matter of the legal application of laches, estoppel and so forth. The fact that the defendant didn’t understand the law, or that he might or might not have understood the contract, certainly cannot be the controlling circumstance.’’
The court concluded that it had no choice but to sustain the motion for summary judgment.
This case is controlled by K. S. A. 60-1610 (e) (formerly [d], see L. 1976, Ch. 256, Sec. 1.), which proscribes the subsequent modification of matters settled by a separation agreement, except certain matters set forth therein. The statute reads:
“(e) Separation Agreement. If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support, or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support, or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.” (Emphasis supplied.)
This court construed the foregoing provision in Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994, wherein we held:
“A party who seeks and obtains from a trial court its approval of a separation agreement and its incorporation in a judgment and thereafter accepts the benefits of the judgment cannot avoid its disadvantages by a motion to modify except as to those matters over which the court has continuing jurisdiction.” (Syl. 5.)
The construction of the statute in Drummond has been adhered to in numerous subsequent oases. (See Fiske v. Fiske, 218 Kan. 132, 542 P. 2d 284; Curtis v. Curtis, 218 Kan. 130, 542 P. 2d 330; Wallace v. Wallace, 214 Kan. 344, 520 P. 2d 1221; Cheek v. Kelley, 212 Kan. 820, 512 P. 2d 355; and Dodd v. Dodd, 210 Kan. 50, 499 P. 2d 518.)
The statute was most recently considered in Rice v. Rice, 219 Kan. 569, 549 P. 2d 555, wherein the issue was raised in a framework somewhat similar to that at bar. We held:
“Where a decree of divorce, based upon an oral agreement of the parties, provides for the payment of alimony, such provisions of the decree are not subject to future modification where there are no provisions for modification in the agreement, and both parties do not consent to the proposed change.” (Syl.)
The record reflects that appellee’s petition for divorce was filed on May 23, 1972. The divorce action was not heard until almost six months thereafter on October 17, 1972. The record reflects that at the hearing on the motion to modify, appellee’s counsel stated that the matters of alimony and division of property were negotiated throughout most of this period until appellant executed the agreement on September 22, 1972. This statement of counsel was unrefuted at the hearing. Appellant was represented by able and experienced counsel throughout the negotiations.
Appellant points out that in Dodd v. Dodd, supra, we said that separation agreements have always been subject to the scrutiny of the courts to prevent fraud and oppression. This is true, of course, and in finding that an agreement is valid, just, and equitable, as required by the statute, the agreement must be carefully scrutinized. The record reflects that in this case the agreement was examined by the trial court, both at trial and on motion to modify. There was no evidence of fraud and in view of appellant’s income, the agreement cannot be said to be oppressive.
When appellee’s motion for summary judgment was presented, appellant was afforded a full opportunity to proffer evidence in support of his case. We agree with the trial court’s finding that the proffered evidence, if taken as true, would not establish fraud. The agreement contained no provision for modification of alimony as sought by appellant. Under the circumstances summary judgment was proper.
Appellant cites In re Estate of Sweeney, 210 Kan. 216, 500 P. 2d 56. The question in Sweeney was the continuation of alimony payments from the husband’s estate after his death. The case has no application to the issue herein.
The appellant accepted the benefits of the agreement and continued to abide by it for more than two and one-half years. Payment of alimony settled by mutual agreement of the parties, found by the trial court to be valid, just, and equitable, and incorporated in the decree of divorce, is not subject to subsequent modification by the court except as the agreement itself may prescribe or as the parties may consent.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This in an interlocutory appeal by the state from an order suppressing evidence of oral incriminating statements made by the defendant during the course of a polygraph examination.
On June 20, 1975, a complaint was filed against Jerry L. Blosser charging him with rape, kidnapping and felonious assault of a seventeen year old girl. On July 18, 1975, defendant Blosser, accompanied by his attorney, went to the office of the Butler county sheriff for the purpose of undergoing a polygraph examination respecting the charges. There was no agreement as to the use of the results or disposition of the charges. The test was to be conducted by Thomas B. Lyons, special agent and polygraph examiner for the Kansas bureau of investigation who, about a year previously, had given defendant a polygraph examination when he was involved in a similar situation. After the examiner assured himself that defendant was aware of his constitutional rights defendant’s counsel left the room where the examination was to be given. During the preexamination preparation or questioning by Mr. Lyons and before defendant had been connected to the machine, defendant stated that he had restrained the girl from leaving his truck and had had forcible intercourse with her. He also said he had had intercourse with other girls in similar situations but they did not bring complaints against him. Later Lyons attached the machine to defendant and conducted the polygraph examination.
Defendant was held for trial and an information charging him with the offenses was filed. On the morning of his trial in district court, immediately after the jury had been sworn, defendant orally moved to suppress the evidence of his oral admissions to the polygraph examiner. The trial court held a hearing on this belated motion out of the presence of the jury, at which Lyons was the only witness, and it sustained the motion on the ground defendant’s statements were “part and parcel of the polygraph examination.”
Immediately following the court’s ruling the state indicated its desire to appeal from the ruling. After considerable discussion between the parties and the court as to how they should proceed, defendant’s counsel and defendant personally agreed that the jury might be dismissed, a ruling on the point would be obtained from this court, and thereafter that upon retrial before another jury defendant would waive any right to plead former jeopardy. In effect the parties agreed that the trial court should declare a mistrial in the jury proceeding. This appeal ensued.
The modem polygraph is intended to reflect changes in the examinee’s blood pressure or pulse rate, respiration rate and depth and galvanic skin response while undergoing questioning. It is used on the theory that conscious lying causes these changes. From the physiologic manifestations shown on the machine the operator comes to a conclusion or opinion as to whether the examinee is telling the truth or is being deceptive in answers to relevant questions. Despite advances which have been made in the field it remains established in Kansas, and virtually every jurisdiction, that, in the absence of stipulation between the parties, the results of a polygraph examination are not admissible in evidence (State v. Watkins, 219 Kan. 81, 547 P. 2d 810). The reason for their rejection is that the polygraph or lie detector is not an instrument which automatically and unerringly discloses a lie by the person being tested. It cannot be said to be completely accurate because of the human elements involved — the psychological and emotional makeup of the examinee and the competence of the examiner in conducting the test and evaluating the results (see Anno.: Evidence — Deception Tests, 23 ALR 2d 1306; Anno.: Polygraph— Stipulation of Admissibility, 53 ALR 3d 1005; State v. Lowry, 163 Kan. 622, 185 P. 2d 147).
Here we are not concerned with the results of a polygraph examination — the examiners opinion based upon his interpretation of the data shown by the machine — but rather with oral statements made by the examinee during the course of the examination. We have never ruled on this matter directly but have touched it by way of dicta. In State v. Lowry, supra, the operator who conducted a lie detector test upon the defendant and the complaining witness was permitted, over defendant’s objection, to testify as to the results of the tests and give his interpretation of such results on questions bearing directly upon defendant’s guilt or innocence. There was no stipulation concerning the results of the test. After discussing the use of lie detectors and their shortcomings this court concluded the results were inadmissible absent a stipulation to that effect, but added:
“All this is not to discredit the lie-detector as an instrument of utility and value. Its usefulness has been amply demonstrated by detective agencies, police departments and other law-enforcement agencies conducting criminal investigations. It is also being frequently employed in matters, other than investigation of crimes. By its use admissions and confessions are frequently secured, and facts developed which assist in further discoveries. Such admissions and confessions, if otherwise competent, have generally been admitted, and no reason now appears why they should not be admitted. But we are not here dealing with such questions.” (Emphasis supplied.) (p. 628.)
Other courts have dealt with the issue and with a single exception have held that admissions made by an accused during the course of a polygraph examination are admissible where found to be voluntarily made. Decisions holding or recognizing that such admissions are admissible include the following: People v. Porter, 136 Cal. App. 2d 461, 288 P. 2d 561; People v. McHenry, 204 Cal. App. 2d 764, 22 Cal. Rptr. 621; Johnson v. State, Fla. App., 166 So. 2d 798; Roberts v. State, Fla. App., 195 So. 2d 257; State v. Bowden, Me., 342 A. 2d 281; State v. Keiper, 8 Or. App. 354, 493 P. 2d 750; Commonwealth v. Hipple, Appellant, 333 Pa. 33, 3 A. 2d 353; Commonwealth v. Jones, Appellant, 341 Pa. 541, 19 A. 2d 389; Jones v. Commonwealth, 214 Va. 723, 204 S. E. 2d 247; and State v. DeHart, 242 Wis. 562, 8 N. W. 2d 360. See also Duncan v. State, 278 Ala. 145, 176 So. 2d 840. The single exception we have found to this array of authority is State v. Cunningham, Fla. App., 324 So. 2d 173, a decision in which one of the three judges cogently dissented. The defendant in the case had agreed to submit to a polygraph test to prove his innocence on a robbery charge. His incriminating statement came in response to questioning by the examiner upon another unrelated offense and the evidence was offered in trial upon this latter charge.
Logic supports the majority rule. The results of a polygraph examination are excluded because of their unreliability. Voluntary statements by an accused are not so regarded. Their reliability doe’s not depend on the validity of the polygraph test or the operator’s skill in conducting the test or interpreting its results. Rather they are generally considered a trustworthy form of evidence (K. S. A. 60-460 [f]). There is some exception. For example, admissions made by a defendant at a pretrial conference are expressly declared inadmissible unless reduced to writing and signed by the defendant and his attorney (K. S. A. 22-3217) and statements made by a defendant in the course of an examination to determine his competency are similarly inadmissible in any criminal proceeding (K. S. A. 22-3302 [3]) but a defendant’s oral statements made during a polygraph examination enjoy no such protection. As was said in Jones v. Commonwealth, supra,
“The real question in every case as to the admissibility of a confession is whether or not the confession was influenced in a way to create a doubt of its truth. It is for that reason that a confession made through hope or fear, or one obtained by compulsion, must be excluded. In the instant case there are obvious safeguards assuring the validity of the statement by Jones and the reliability of its admission as evidence before the jury. Its reliability does not depend upon the validity of a polygraph test or the expertise of a polygraph operator in reading the results from such a test. The admission here was of an oral statement made by one individual to another individual. The jury tested and weighed the admission as it would any other confession or admission against interest.” (p. 249.)
Our holding is, the fact that incriminating statements are made by a defendant during the course of a polygraph examination does not of itself render such statements inadmissible. They are admissible where found to be voluntarily made. Accordingly the order of suppression must be reversed and the cause remanded for further proceedings including a hearing to determine the voluntary nature of the statements under the totality of the cir cumstances. Although the trial court skirted this issue at the hearing its exclusionary ruling was clearly based on the theory the statements were part and parcel of the polygraph examination. That the statements were made during the course of a polygraph examination is a factor which may be considered on the issue of voluntariness but, as stated, such fact does not of itself make the statements inadmissible (People v. McHenry, supra; Johnson v. State, supra).
The order of suppression is reversed and the cause remanded for further proceedings consistent with the views herein expressed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Parker, J.:
The present action involves conflicting claims to a schoolhouse located on a one-acre tract of land situated in the northwest corner of a described quarter section in Miami county, Kansas. On August 10, 1882, David F. Day, owner of the quarter section, his wife joining, executed a deed, conveying such tract to school district No. 94. Among others the deed contained the following provision:
“Said premises to be used as schoolhouse site and in the event said premises are abandoned for said purposes then the land herein described shall revert to the' parties making this conveyance, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein.” (Emphasis supplied.)
Subsequent to the execution of the deed, on a date not disclosed by the record, the district placed several buildings on the site and maintained a public school there until about the year 1933 when, it is alleged, the keeping of school on the premises was actually discontinued and such site was abandoned for school purposes.
The plaintiff, by mesne conveyances, is the undisputed owner of one hundred fifty-nine acres of the quarter section. For purposes of this appeal his title to the one acre conveyed to the school district is not in issue, but it is conceded his interest therein and his right to the buildings now situated thereon are whatever he may have acquired under and by. virtue of the original deed conveying such tract of land to 'the district.
The petition, in substance, alleges the facts heretofore stated and in addition, avers that the defendant is about to sell and dispose of a schoolhouse, a coal house and two outbuildings it had erected on the site. Next it states that on abandonment of the one acre for school purposes title to such tract, together with all improvements now situated thereon, reverted to the plaintiff. It then prays that plaintiff be decreed to be the owner of all such property and that defendant be permanently enjoined from moving the buildings.
To the petition, in form as heretofore related, the defendant filed the following motion to strike, and for judgment. . ’
“Now come the defendants in the above entitled action the Board of Directors of School District No. 94 of Miami County, Kansas, and hereby move the court to strike out all of the statements, allegations and averments contained in plaintiff’s ^mended petition herein which refer either directly or indirectly to the buildings and improvements, situated upon the one acre tract of land in controversy in this action and to render judgment in favor of the defendants as against the plaintiff by the terms of which it shall be decreed by this court that the plaintiff has no right, title or interest in and to any of the buildings or improvements situated upon said one acre tract and that the same are owned exclusively by the defendants and that defendants have the absolute right to remove and dispose of the same at any time, and in support hereof allege:
“That the plaintiff’s amended petition shows on its face that the plaintiff has no right, title or interest in and to the buildings and improvements on the one acre tract of land in controversy in this action even though he might be decreed to be entitled to the complete ownership of the said one acre tract upon which said buildings and improvements are located; also that the defendants have as a matter of law the right to remove and dispose of all of said improvements at any time, and also that the plaintiff is not entitled to an injunction against the defendants prohibiting the removal of said buildings and improvements.”
In due time the trial court sustained this motion in its entirety and rendered judgment decreeing that defendant was the owner of all buildings described in the petition and had full and complete right to sell, remove and dispose of them. In addition it dissolved a restraining order issued at the commencement of the action and denied a permanent injunction. It reserved the question of who had title to the one-acre tract for future determination and decision.
From what has been stated, and as is reflected in plaintiff’s single assignment of error'the trial court erred in sustaining the motion to strike and in the rendition of its judgment, it is apparent the sole question involved in this appeal is whether, assuming abandonment by the district of the one-acre tract for school purposes as alleged in the petition, the plaintiff when such abandonment occurred, acquired title to and ownership of the buildings located on the abandoned site under and by virtue of the terms and conditions of the deed from Day to the district.
Appellant contends the general rule is that a building permanently fixed to the freehold becomes a part of it. Quite true but, notwithstanding, the rule never has been held by the courts to be inflexible and without exceptions. So far as it applies to buildings constructed by a school district on land acquired by it under a deed containing a reversion clause to the effect the land will revert to the grantor when it is abandoned for school purposes it must be conceded there is a conflict in the decisions. See 5.6 C. J. 476, § 497, which' states:
“Although it has been declared that a school building which has become a fixture'on school land is subject to the reversion clause of the deed even though erected for, and devoted to, a public use, both independently of statute and under express statutory provision there is authority that reversion of the school land does not include the schoolhouse thereon.”
Surprising as it may seem, although decisions dealing with the general rule are legion, there is a dearth of authority with respect to the legal status of school buildings in the situation just mentioned. Without specifically referring to them, since they are inapplicable or to .be disregarded, it will suffice to say our examination-of the few decisions holding that school buildings are subject to such a reversionary clause convinces us that they have either been decided under circumstances where there was no statutory limitation on the power of the board to dispose of the district’s property or, if one existed, without proper regard to its force and effect.
At the very outset on consideration of the issue in the instant case, assuming but not conceding the reversion clause in question is broad enough to include buildings placed on the real estate subsequent to its acquisition for school purposes, we are confronted with the all-important question whether the district board in accepting the deed in form as herein stated had power to subject the district to its conditions.
That the power of a school district to contract is only such as is conferred, either expressly or by necessary implication, by statute is well-established law in this and other jurisdictions.
In Schofield v. School District, 105 Kan. 343, 344, 184 Pac. 480, we said:
“1. The power of a school district to contract is of course only such as is conferred by statute, expressly or by fair implication; and persons dealing with it are charged with notice of this limitation.”
To the same effect is Blankenship v. School District, 136 Kan. 313, 15 P. 2d 438, involving power of a school board to permit third parties to attach an annex to the district schoolhouse pursuant to an agreement such annex could be used .by them for a club room and by the district for school purposes. In the opinion in that case the following statement is found:
“Moreover, such a contract as that alleged by plaintiffs would be altogether beyond the power of the school board to make. The powers of the school board are such as are conferred by statute, and certainly no such statute can be cited. Neither can. it be said that by necessary implication would the school board have power to make such a contract as the one alleged by plaintiffs.
“ ‘The limits of an officer’s authority are found in the law.’ (Hartford Fire Ins. Co. v. State, 9 Kan. 210, 226.)
“ ‘When, by statute, official powers and duties are conferred or imposed upon a public officer or official board, the only implied powers possessed by such officer or board are those which are necessary for 'the effective exercise and discharge of the powers and duties expressly conferred and imposed.’ (State, ex rel., v. Younkin, 108 Kan. 634, syl. ¶ 4, 196 Pac. 620.)” (p. 316.)
A general statement of the same doctrine, and decisions from other states there cited, can-be found in 47 Am. Jur. 329, §48; 56 C. J. 479, 481, §§ 504, 511.
For other decisions in this jurisdiction wherein the rule is recog-' nized and applied see: School District v. Brown, 2 Kan. App. 309, 43 Pac. 102, holding the officers of a school district could not create a district liability for the building of a schoolhouse unless first authorized to do so by the electors of the district; State v. Board of Education, 59 Kan. 501, 53 Pac. 478, where it was held a school board had no power to contract for textbooks for a period of years, notwithstanding it had agreed to do so, where the legislature had subsequently enacted a law providing a uniform series of textbooks; and Stewart v. Gish, 109 Kan. 206, 198 Pac. 259, decreeing that a rural high school district and an ordinary school district, each having statutory authority to erect a schoolhouse, could not, without legislative sanction unite in the construction of a single building for joint use.
On the date of the execution of the deed relied on by appellant, section 11, of article 3, chapter 122, of the Laws of .1876 (Compiled Laws 1879, § 5128) was in full force. Portions thereof pertinent to our decision read:
"Sec. 11. The inhabitants, qualified to vote at a school meeting, lawfully assembled, shall have power .... <
“Seventh — To authorize and direct the sale of any schoolhouse site, or other property belonging to the district, when the same shall no longer be needful for the use of the district.”
Worthy of mention, although of no special significance, is the fact language identical to" that just quoted can be found in the law of this state from 1876 up to the present.moment (see G. S. 1945 Supp. 72-406). It should be added we find nothing in provisions of the statute then in force and effect, either express or arising by necessary implication, which authorized the district board to sell or convey -title to school buildings without authorization of the electors as required by the foregoing section. Therefore, it must be regarded as restrictive in character and a limitation upon the power of the district board. It follows that on the date the deed was executed the district board had no power to sell buildings owned by the district, without proper authorization, even had there been any then located on the one-acre tract. Of a certainty, its action in accepting a deed which by its terms had the effect of binding the district to sell and dispose of buildings subsequently erected by it on that tract, upon its abandonment for school purposes without any consideration whatsoever, was ultra vires and void. Day, the grantor, was bound to take notice of the general powers possessed by the board in the use and disposal of public property. He was bound to know of the restrictive statute which precluded sale of the district’s property except on compliance with its provisions. He could not circumvent its terms, and thereafter acquire title to school buildings of the district, by the execution of a deed containing a reversion clause such as is to be found in the one upon which appellant bases his claim to the school buildings in controversy.
Heretofore we have mentioned the want of authority on the general subject of whether school buildings placed upon or affixed to the soil constitute real property. There is, however, one outstanding case on the subject, dealing directly with the power of a district board to sell and dispose of school buildings in a situation where its authority to do so — as here — is limited and restricted by statutory provisions, which is entitled to and has been given great weight as a sound precedent. It supports, fortifies and sustains our ultimate conclusion as herein announced. The decision to which we refer is Schwing v. McClure 120 Ohio St. 335,166 N. E. 230, where it was held:
“Members of a board of education of a school district are public officers, whose duties are prescribed by law. Their contractual powers are defined by the statutory limitations existing thereon, and they have no power except such as is expressly given, or such as is necessarily implied from the powers that are expressly given.
“The members of the board of education of a school district are not authorized to convey or transfer to private parties, without consideration, any of the property of the school district, real or personal. Hence, the acceptance by such members of the board of education of a school district of a deed providing that if at any time the premises in question shall cease to be used for school purposes, the same shall at once vest in the said grantors, their heirs and assigns forever, is not effectual to constitute a public school building erected upon such premises with public funds.a part of the realty, so that such building passes with the realty upon reversion to the heirs of the grantor.” (Syl. ¶¶[ ■ 1, 2.) •
Since the deed on which appellant bases his claim of title to the school buildings in controversy, otherwise conceded to be owned by the school district, did not have the legal effect of transferring title to that property to the appellant when the land therein described ceased to be used or was abandoned by the district for school purposes, it follows that the action of the trial court in sustaining the motion to strike, and in- then rendering judgment dissolving the restraining order and decreeing the appellees to be the owners of such property with full and complete right to sell, remove and dispose of the same, was proper.
As we conclude we note briefly there is another good reason, technical in its nature but nevertheless sound, why the judgment of the court below must be sustained. The reversion clause in the deed, which we requote for purposes of emphasis, provides “then the land herein described shall revert to the parties making this conveyance, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein.” David F. Day and his wife were named as parties of the first part in that instrument while the district was identified as the party of the second part. The petition shows on its face the improvements therein described were not on the land on the date of its execution but were subsequently placed there by appellee.
The general rule is that a construction involving a forfeiture is not favored on the theory that' since a deed is the act of the grantor it will be construed most strongly against him. (47 Am. Jur. 347, §69.) ■
In this jurisdiction we recognize and apply the doctrine. See Ritchie v. K. N. & D. Rly., 55 Kan. 36, 39 Pac 718, followed and approved in Rose v. Lanyon, 68 Kan. 126, 132, 74 Pac. 625, and Cue v. Johnson, 73 Kan. 558, 559, 85 Pac. 598, where we held:
“Conditions subsequent, working a forfeiture of an estate, are to be strictly construed.” (Syl. ¶ 7.)
Arid'in the opinion'said:
“It is. a universal rule that the instrument creating the forfeiture will be strictly construed, and that its ter.mts will never be extended by construction (Wier v. Railroad Company, 40 Kan. 130).” (p. 57.)
When the -deed is tested by the rule its terms must be construed as limiting' the reversionary interest of the first parties (grantors) to such estate, title and interest as they may have had in the land and what was on it on the date of the execution of that instrument. The language therein found cannot be extended by construction to have reference to buildings to be placed on the premises by the second party in the future. To hold otherwise would ignore the plain intent and purpose of the rule. In addition, it would in effect charge the grantors with having attempted by its terms to bind the district to action which they were presumed to know was ultra vires and in violation of restrictive provisions of the then existing statute, a result never permitted by judicial construction when the terms of an agreement can be otherwise interpreted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
The basic question here presented is whether the plaintiff in a damage action can appeal an order of the trial court dismissing the action as to one of several multiple party defendants on a motion for summary judgment, where such judgment has not completely disposed of the action and the trial court has not made the explicit determination and direction of entry of judgment under K. S. A. 1975 Supp. 60-254 (b).
Phillip Fredricks and his parents, James L. and Eunce Fred-ricks (plaintiffs-appellants), filed a damage action for personal injuries to Phillip against three defendants, one being Champlin Petroleum Company (defendant-appellee). The trial court sustained Champlins motion for summary judgment and held the judgment was a final order but not appealable. On motion of the remaining defendants the trial court then transferred venue to another county. The plantiffs attack these rulings on appeal.
Champlin Petroleum Company is a foreign corporation authorized to do business in the State of Kansas doing business in Wyandotte County, Kansas. Jack Davis/ d/b/a Davis Oil Company (hereafter Davis), is a “distributor” or “jobber” of Champlin products and landlord of a service station in Princeton, Kansas. In addition, Davis operated a bulk plant in Ottawa, and owned or leased three other stations. Rex Foltz, twenty years old in 1972, was Davis’ tenant and manager of the “Foltz Champlin Station” in Princeton, Kansas. Rex had no prior experience in running a service station. Phillip Fredricks, seventeen in 1972, worked part time for Rex Foltz.
On June 18, 1972, Phillip Fredricks went to the service station to pick up a car. Richard Foltz, brother of Rex Foltz, drove his 1970 Ford station wagon onto the premises and over an open pit used as a grease rack. He asked Phillip to assist him in changing the oil. While doing so it was discovered that Richard Foltz’ gas tank was leaking, and while Phillip was in the pit an explosion and fire occurred injuring Phillip.
On December 26, 1973, Phillip and his parents brought suit against Champlin, Davis and Rex Foltz. The Fredrickses prayed for judgment against the “defendants, and each of them,” in the sum of $225,000.
Discovery was conducted. On May 23, 1975, Champlin moved for summary judgment contending there was no material issue of fact to be tried and it was entitled to judgment as a matter of law. Davis and Foltz both filed motions to dismiss or in the alternative to change venue to the Franklin County district court. On June 20, 1975, the trial court sustained Champlin’s motion for summary judgment. Plaintiffs’ counsel requested the district court to allow an interlocutory appeal which was denied.
On August 6, 1975, the plaintiffs submitted a suggested journal entry which found Champlin without any right of control over Davis or Foltz. It further found “there is no just reason to delay entry of final judgment in favor of Champlin Petroleum Company and expressly directs that judgment be so entered, terminating the status of said defendant as a party in this action.” The trial judge signed this journal entry. After a dispute arose as to the proper form of the journal entry, the trial judge sustained Champlin’s motion to settle the journal entry and rescinded the journal entry previously submitted by the plaintiffs which had been signed. A new journal entry was signed, and the court said:
“The Court: What I am finding is that it is a final order but it is not an appealable order until such time as all the issues of the case as between all the parties as originally filed are finally determined.”
The court also transferred venue of the case to Franklin County.
On August 9, 1975, the appellants filed their notice of appeal. Champlin responded in the Supreme Court by filing a motion to dismiss the appeal, which was deified with leave to renew at the hearing on the merits of the appeal.
We examine first the renewed motion of Champlin to dismiss the appeal. K. S. A. 1975 Supp. 60-254 (b) reads:
“When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate die action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
K. S. A. 1975 Supp. 60-254 (b) is identical to the Federal Rules of Civil Procedure, Rule 54(b). Federal interpretations of Rule 54(b) are persuasive. (Stock v. Nordhus, 216 Kan. 779, 782, 533 P. 2d 1324.)
By way of caveat we note that Federal Rule 54(b) was amended in 1961 to add multiple parties. (See emphasis in the quoted rule above.) The Kansas rule (60-254 [b], supra) was not amended to correspond with the Federal rule by adding multiple parties until 1973. (L. 1973, ch. 233, § 1, effective July 1, 1973.) The plaintiffs’ cause of action in this case, filed December 26, 1973, is founded upon an accident which occurred on June 18, 1972. But since we are concerned with a procedural rule, the 1973 amend ment of 60-254 (b) applies. (See, K. S. A. 60-201, as amended; K. S. A. 60-2608; and Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 402 P.2d 782.)
Rule 54(b) re-establishes the ancient federal policy against piecemeal appeals with clarity and precision, with the addition of a discretionary power to afford a remedy in the infrequent harsh case. (10 Wright and Miller, Federal Practice and Procedure, §2653, p. 24 [1973].) A similar policy against piecemeal appeals which tend to extend and prolong litigation exists in Kansas. (Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P. 2d 637; and Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 548 P. 2d 476.)
The policy against piecemeal appeals is implemented in Kansas by K. S. A. 1975 Supp. 60-254 (b). When the district court under this rule has fully disposed of the interest of one or more but fewer than all of the multiple parties, its order lacks finality unless the district court makes an express “direction for the entry of judgment” and a “determination that there is no just reason for delay.” The combination of the direction and determination can be referred to as a “certification” that a particular judgment is ripe for review. (10 Wright and Miller, Federal Practice and Procedure, §2660, p. 82 [1973]; 6 Moore’s Federal Practice, para. 54.41 [1], p. 711 [2d Ed. 1976]; Sanchez v. Breed, 464 F. 2d 448 [9th Cir. 1972]; Foret v. McDermott, 484 F. 2d 992 [5th Cir. 1973]; and Bailey v. McCann, 539 F. 2d 501 [5th Cir. 1976].)
An express direction for the entry of judgment as to one of several defendants, without an express determination that there is no just reason for delay, is insufficient to support an appeal under Rule 54(b). (Davis v. National Mortgage Corp., 320 F. 2d 90 [2d Cir. 1963]; Bailey v. Rowan Drilling Company, 441 F. 2d 57 [5th Cir. 1971]; and 6 Moore’s Federal Practice, para. 54.34 [2.-2], p. 561 [2d Ed. 1976].)
The appellants contend the court should hear this appeal and cite Jetco Electronic Industries, Inc. v. Gardiner, 473 F. 2d 1228 [5th Cir. 1973]; and Grimm v. Whitney-Fidalgo Seafoods, Inc., 61 F. R. D. 310 [S. D. N. Y. 1974].) Both cases are distinguishable. Jeteo involved two orders against multiple defendants which, considered together, terminated the litigation. Only one order against one of three defendants is involved here.
Grimm involved a motion to alter or amend a judgment. There the district court found the prejudice to be caused to one defendant by delayed formality seemed to outweigh any prejudice to the plaintiff. It found there was no just reason for delay, and a prior implied direction for entry of final judgment in favor of such defendant was expressly confirmed. Here the converse is true. The trial court found that the prior implied entry of final judgment was erroneous and that its prior conclusion that there was no just reason for delay was erroneous.
Finally the appellants contend the case involving multiple party defendants cannot be transférred to another county unless the party upon which the venue initially rested ceases to be a party.
K.S.A. 60-608 reads:
“If there are several plaintiffs properly joined and venue is determined by the residence of one of them, it shall be necessary that such plaintiff’s claim is a substantial part of the action. If there are several defendants properly joined, venue of the action may be determined at the election of the plaintiff as to any one of the defendants against whom a substantial claim exists.' If, before trial of an action on the merits is commenced, a party with reference to whom venue was determined ceases to be a party and venue would no longer be proper as to the remaining parties, on the application of any remaining party promptly made, the cause shall be transferred to a county of proper venue. If there is more than one such county, the transfer shall be to a county selected by the plaintiff.” (Emphasis added.)
K. S. A. 60-611 reads:
“If an action is commenced in good faith and a subsequent timely objection to the venue is sustained, or if before trial on the merit commences, it is found that no cause of action exists in favor of or against a party upon whom venue was dependent, the action shall be transferred to any county of proper venue upon such terms as to costs as shall be fixed by the judge of the county from which the transfer is made. If there is more than one such county, the transfer shall be to a county selected by the plaintiff.”
These sections of the Code of Civil Procedure grant the plaintiff the right to select venue where several defendants are properly joined, provided the action is filed in the county of a defendant against whom, a substantial claim exists. (Lambertz v. Abilene Flour Mills Company, Inc., 209 Kan. 93, 495 P. 2d 914.) Where, as here, it is found by the trial court, before a trial on the merits of the action, that “no cause of action” was stated against Champlin, the party upon whom venue in Wyandotte County was dependent, the trial court was authorized to transfer venue to a county of proper venue. By sustaining Champlin’s motion for summary judgment the trial court presumably found no substantial claim existed against Champlin. (The two defendants who moved for change of venue filed briefs with the trial court, and presumably set forth the statutory reasons for change of venue, but their briefs are not included in the record on appeal.)
This court has held the allowance or refusal of an application fox a change of venue rests largely in the discretion of the trial court. (Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255; and see 77 Am. Jur. 2d, Venue, § 48, p. 896.) While the Krehbiel case was decided prior to our new Code of Civil Procedure, it is based upon G. S. 1949, 60-511, which is identical in substance to K. S. A. 60-609, as amended. In the Krehbiel opinion the court said:
“It is clear from reading the statute that no change of venue in a civil action should be granted except for cause, true in fact and sufficient in law, and the cause for such change should be made to appear clearly to the trial court. . . .” (p. 57.)
Whether a substantial claim existed against Champlin is a matter within the discretion of the trial judge. (5 Vernon’s Kansas Statutes Annotated, § 608.1, p. 77 [1967].) Thus, while the summary judgment order in favor of Champlin is subject to revision at any time before the entry of final judgment in the case under K. S. A. 1975 Supp. 60-254 (b), the trial court’s conclusion that no substantial claim exists is within the discretion of the trial judge.
Finding no abuse of the power of discretion exercised by the trial court in this case the appeal must be dismissed.
Many articles have been written on the subject of vicarious liability of “Filling Station Oil Companies” under the doctrine of respondeat superior, a point we are not called upon to decide by dismissing this appeal. For the assistance of the bench and bar they are: Annot., 83 A. L. R. 2d 1282 (1962); Note, Torte Liability of Oil Companies for Acts of Service Station Operators, 3 Vand. L. Rev. 597 (1950); Note, Vicarious Liability of Filling Station Oil Companies Under Respondeat Superior, 3 Washburn L. J. 88 (1964); Note, Agency — Apparent Authority and Agency by Estoppel: Emerging Theories of Oil Company Liability for Torts of Service Station Operators, 50 N. Carolina L. Rev. 647 (1972); Comment, 38 Mich. L. Rev. 1063 (1940); Comment, 20 Tex. L. Rev. 385 (1942); Comment, 43 Ky. L. J. 543 (1955); Comment, 1965 U. Ill. L. Forum 915 (1965); Comment, 4 U. S. F. L. Rev. 65 (1969); Comment, 5 U. S. F. L. Rev. 118 (1970); Comment, 33 U. Pitt. L. Rev. 257 (1971); Comment, 7 Land & Water L. Rev. 263 (1972); Comment, 10 Calif. W. L. Rev. 382 (1974); and Comment, 4 N. M. L. Rev. 271 (1974).
The appeal is dismissed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from the trial court’s order in a declaratory judgment action, wherein the trial court held the action of the City of Wichita in changing Kellogg Street to a fully controlled access highway facility constituted a taking of private property for public use, therefore requiring the payment of compensation to landowners and others with an interest in the property who lost their existing access to Kellogg Street and highways.
Pursuant to K. S. A. 1975 Supp. 60-2701, Rule 6 (o), the appeal herein is submitted on an agreed statement of the parties. The points asserted require the court to examine issues involving loss of access to property abutting public streets or highways.
The City of Wichita (defendant-appellant) is a municipal corporation located in Sedgwick County. Teachers Insurance and Annuity Association of America, American Petrofina, Incorporated, American Petrofina Company of Texas, The K-T Oil Corporation, and Jerry A. Ewy (plaintiffs-appellees) are respectively, the owner, lessee with option to purchase, assignee of lease, and sublessees of a service station on the south side of Kellogg Street designated as Tract 1 herein. Wendelin Herman, Tony Herman and Herman Oil Co., Inc., (plaintiffs-appellees) are the owners and lessees of a service station on the south side of Kellogg Street designated as Tract 2 herein. Ethel Cero and Dean L. Cero, co-administrators of the Estate of John Edward Cero, deceased, Ethel Cero, as an individual, and Edward J. Cero, an individual doing business as Cero’s Provincial Candy Shoppe (plaintiffs-appellees) are the owner and tenant of a candy shop on the south side of Kellogg Street designated as Tract 3 herein. Each of the three tracts had direct access to both Kellogg Street and a side street prior to the action taken by the city.
Kellogg Street (also U. S. Highway 54 and State Highway 96) is a major trafficway which runs east to west through the City of Wichita. Kellogg Street heretofore accommodated two lanes of eastbound traffic and two lanes of westbound traffic. There were no median strips or left turn prohibitions to prevent access to and from the plaintiffs’ properties for westbound traffic. The plaintiffs’ properties were easily accessible to patrons approaching from any direction, and the plaintiffs’ properties abutting Kellogg Street and highways had direct access thereto.
Major highway projects are in progress in Wichita, and the instant project is part of an overall plan of improvement. The State Highway Commission, acting within the scope of its authority, proposed to change Kellogg Street to a fully controlled access facility. That portion of Kellogg Street on which plaintiffs’ properties front is included in plans which involve construction of a fully controlled access highway facility, and a change in Kellogg Street from a through highway to a five block service street to be called Kellogg Drive. Under this plan, plaintiffs do not have direct access to the new highway. The five block Kellogg Drive will not be a “frontage road” as that term is defined in K. S. A. 1975 Supp. 68-1901 (c) and will not furnish any access to the newly improved highway.
No part of plaintiffs’ properties will be directly taken for inclusion on the new highway. The construction will, instead, result in the following physical changes to Kellogg Street and highways:
“(a) Through highway traffic will be diverted to a new section of highway which extends ten blocks to the east of the properties and for all practical purposes, continuously to the west of plaintiffs’ properties.
“(b) Said highway will be relocated approximately 90 feet north of its present location and will be elevated approximately 3.5 feet above its present grade. . . .
“(c) Kellogg Drive abutting plaintiffs’ properties will be narrowed to two lanes and will carry both eastbound and westbound traffic. Side streets abutting plaintiffs’ properties will continue to do so extending south from Kellogg Drive, although plaintiffs’ side of Kellogg Drive will have no direct communication to the side streets lying north of the reconstructed highway.
“(d) Access to and from plaintiffs’ properties on the abutting streets, that is, Kellogg Drive and side streets will be the same as at present, that is, driveway location and width will be unchanged but plaintiffs’ properties will have no direct access to reconstructed Kellogg Street and highways.
“(e) Kellogg Drive abutting plaintiffs’ properties will extend only . . . a distance of 5 blocks.”
Under the new plan, patrons using the improved highway wishing to reach plaintiffs’ properties will have four options. Eastbound traffic on the new fully controlled access highway may enter the Canal Route Interchange (approximately three-fourths of a mile west of plaintiffs’ properties) and travel south approximately one-half mile to Lincoln Street, through the Lincoln Street Interchange, thence east approximately three-fourths of a mile to Erie Street, thence north approximately one-half mile to plaintiffs’ properties, a distance of 1.75 miles which the city stipulates is not a practical approach to plaintiffs’ properties; or the eastbound traffic may travel past plaintiff’s properties to the Hillside Interchange and backtack by means of a tortuous and circuitous route to reach plaintiffs’ properties, resulting in a distance of 1.44 miles to get to plaintiffs’ properties and back to the new access controlled highway. Westbound traffic on the new fully controlled access highway may enter the Hillside Interchange, before they can see the plaintiffs’ properties, and travel an additional 1.34 miles to patronize plaintiffs’ properties and regain access to the new access controlled highway; or westbound traffic may travel past plaintiffs’ properties and exit at the Grove Interchange and travel a circuitous route approximately an additional two miles to patronize plaintiffs’ properties and regain access to the new roadway.
The plaintiffs contend the construction of the project under the new plan constitutes a taking of their rights of access to a through street, Highway 54, Highway 96, and through traffic, that they have special private rights therein, that the circuity of travel under the new plan is unreasonable, that the project exceeds the constitutional limits imposed on the valid exercise of the police power and results in a taking of their private properties for public use, and that the city should pay just compensation. They further contend that their properties are also damaged by some of the factors mentioned in K. S. A. 26-513(d), specifically factors No. 5 and No. 11.
The defendant contends this is a valid exercise of the police power and of the power to construct, control, alter and vacate streets and portions of streets; that plaintiffs have no vested interest in the traffic of the highways; that the plaintiffs and their patrons will have the same street access to abutting streets as heretofore except and less that which may be imposed as a valid exercise of the police power; that the power of the city inoludes the power to narrow streets, shorten streets and divert through traffic to other streets; that the relocation of Kellogg Street and its highways creates a new controlled access highway where none previously existed and that there is no taking of access to such highway where none previously existed; that the damage to plaintiffs’ properties is merely consequential, common to all owners of property similarly situated; that since no part of plaintiffs’ properties is being taken, there is no obligation to pay compensation.
The trial court in its journal entry of judgment determined, adjudged and decreed:
“. . . [T]hat the widening and improving of existing Kellogg Street, U. S. Highway 54 and State Highway 96 as a controlled access facility will result in a substantial impairment of, and unreasonable interference with, plaintiffs’ right of access to existing Kellogg Street, U. S. Highway 54 and State Highway 96. Plaintiffs will suffer a loss which constitutes a taking of private property for public use. This taking exceeds the scope of the State’s and City’s police power and, therefore constitutes a taking of property for which compensation must be paid.”
Appeal has been duly perfected from the foregoing order.
The basic question for determination in this case is whether there has been a compensable taking of access from the plaintiffs upon the stipulated facts in this case.
The appellant contends the instant case is one of first impression in Kansas. Although this court has not dealt with the precise facts here presented, it has long ago considered many cases of this kind and established the rules of law that control the decision.
It must be conceded the state, subject to constitutional limitations, has absolute control over the streets and highways within its boundaries. The state may exercise this control either by the use of its police power or the power of eminent domain. At the same time, it is recognized in the law of this state that the right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting thereon. It is a property right which may not be taken from the owner by the public without his consent, except upon payment of full compensation and due process of law. (Smith v. State Highway Commission, 185 Kan. 445, 346 P. 2d 259; and Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934.)
These basic premises in the law have invoked much controversy with respect to the balance between the use of the state police power and the power of eminent domain. In nearly all of the decisions in this jurisdiction and in other jurisdictions, the state has contended that its actions were within the scope of the proper exercise of its police power, and the landowner has contended that the state has exceeded its police power and must pay just compensation under the procedures of eminent domain or its equivalent. The instant case is no exception.
The city argues that “obviously the right to enter and leave the plaintiffs’ premises by the public street system will remain.” The city contends most of our previous cases have involved a physical taking of property or closing of access. Upon this premise the city argues because the portion of Kellogg Street immediately abutting the plaintiffs’ properties remains unchanged no loss of access has occurred.
Our cases, hereafter discussed, clearly indicate there is no requirement that the land of an abutting property owner be taken by eminent domain or otherwise as a condition precedent to the maintenance of an action for damages to compensate for the loss of access taken from the abutting property owner. Our controlled access statute, K. S. A. 1975 Supp. 68-1901, et seq., expressly contemplates compensation for the taking of an abutting landowner’s right of access. (See Smith v. State Highway Commission, supra; and Brock v. State Highway Commission, supra.)
Brock recognized that a distinction must be made between the common law rules relating to rights of access adopted for application to conventional highways to meet local transportation needs, as distinguished from interstate highways, freeways and other thoroughfares which were not known and which require controlled access facilities for public safety and convenience. In the opinion the court said:
“Regardless of the source of origin there has developed a universal rule that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. However, the rights of an abutting owner must be subordinated to the right of the public to the proper use of the highway and the right of governmental agencies to enforce proper police regulation. The right is subject to reasonable regulation and restrictions for the purpose of providing reasonable safe passage for the public, but the regulations or limitations cannot be enforced where they unduly limit or unreasonably interfere with the rights of the abutting owners. The established easement which has been used for access purposes cannot be taken without compensation, but, while the entire access may not be cut off, an owner is not entitled to access to his lands at all points in the boundary between it and the highway. If the owner has a free and convenient access to his property and to his improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has sustained no compensable loss.
“In applying the above recognized rules the difficulty has arisen in determining, under the facts and circumstances of each particular case, just what is free and convenient access and what constitutes substantial interference. It must be understood that the rules were adopted and applied to conventional or land service roads. At the time the rules were developed roads were constructed largely for the benefit of the local property owners as land service roads and for the benefit of the local inhabitants. Speedways, interstate highways, freeways and other thoroughfares for the handling of long distance travel by controlling access were not anticipated. These roads are constructed today to serve the traveling public rather than the local needs of abutting property owners. . . .
# tt a * #
“Without entering into an extended discussion as to what does or does not constitute undue interference with access rights on a conventional or land-service highway we are forced to conclude that the doctrine granting a right of access to abutting landowners as developed for conventional or land-service highways does not have the same application to controlled access highways.” (pp. 367-368, 369.)
As applied to a controlled access thoroughfare the court said:
“We adhere to the rule that the owners of abutting lands have a right of access to the public road system but it does not follow that they have a right of direct ingress and egress to and from a controlled access thoroughfare. The right of access, if it can be determined to be a right under such circumstances, is the right to reasonable, but not unlimited, access to and from the abutting lands.
“Although an abutting landowner has a right to use a highway he cannot be heard to say that he has been deprived of his right or compensably damaged because he does not have direct access to a certain highway where public judgment dictates that access to and from the highway should be controlled and is subject to control under the police power of the state.
“The appellants complain that they do not have direct access from their property to the highway. The property abuts on a frontage or service road. Appellants have access to the frontage road at all points at which it abuts their property. There is no suggestion that the frontage or service road is not of proper quality. It is part of the state highway system. Appellants are granted access to the main highway at the east and west ends of their property. Appellee has constructed cross-over openings for their special use and benefit. Such cross-over openings are only 575 feet apart.” (Emphasis added.) (p. 370.)
Ray v. State Highway Commission, 196 Kan. 13, 410 P.2d 278, cert. denied, 385 U. S. 820, 17 L. Ed. 2d 57, 87 S. Ct. 43, followed the Brock ease by approximately six months. The rationale of Brock was discussed in Ray as follows:
“The substance of the holding in Brock is that the right of access of an abutting property owner upon a public street or highway is merely a right to reasonable, but not unlimited, access to and from the abutting property. As applied to controlled access facilities, where a frontage road is provided to which the abutting owners of property have direct access, and they have reasonable access from the abutting property via the frontage road to the through-traffic lanes of the controlled access highway, the abutters’ rights of access have not been taken or appropriated by the State Highway Commission, but merely subjected to regulation under the police power of the state, and their damages, if any, are non-compensable.
“Where property owners are afforded complete ingress and egress to a frontage road upon which their property abuts, and they have reasonable access via the frontage road to the main traveled lanes of a controlled access highway, any inconvenience suffered by them is merely non-compensable circuity of travel. Under these circumstances, any decline that has occurred in the value of their property which is the result of a diversion of traffic is non-compensable. . . .” (pp. 18-19.)
In Brock a frontage road, which was a part of the highway system, provided the owners of land with access to the through-traffic lanes at the points of connection, only 575 feet apart. This was held as a matter of law to be a reasonable regulation of traffic within the police power of the state, acting through the State Highway Commission, and not compensable.
In Ray the points of connection from the frontage road to the through-traffic lanes of the controlled access facility were only 1,067.44 feet apart. One using the westbound traffic lanes on that controlled access facility would be required to make an exit 155 feet east of the east boundary of the landowners’ property onto the frontage road and thereby gain access to the plaintiffs’ prop erty. In leaving the plaintiffs’ property one would be required to travel 714 feet west of the west boundary of 'the plaintiffs’ property on the frontage road and there enter upon the main traveled westbound traffic lanes. This was held as a matter of law to be a reasonable regulation of traffic within the police power of the state •as in Brock.
It is important to note that in both the Brock and the Ray cases the court was dealing with a controlled access highway established by the State Highway Commission pursuant to K. S. A. 68-1901 to 68-1906, inclusive. In both cases there was no taking of property by condemnation. The remedy asserted by the landowners was by way of an action for damages in the nature of a suit on implied contract, commonly known as an inverse condemnation action. The landowners in each case contended that the State Highway Commission had taken their right of access to a controlled access highway without obtaining the right of access by condemnation or otherwise. The facts in the Brock case indicate that it was in September 1951 that the State Highway Commission condemned the necessary land for the purpose of widening U. S. Highway 24. In the Ray case the State Highway Commission had condemned an easement for a highway right of way over a portion of the plaintiffs’ property in the year 1952. It was not until the 1953 session of the Kansas legislature that K. S. A. 68-1901, et seq., was enacted which specifically provided for the designation of controlled access facilities by the State Highway Commission. It was not until the highway was designated by the State Highway Commission as a controlled access facility and constructed in each of these cases that the plaintiffs filed their respective actions seeking compensation for the loss of access by reason of the limitations imposed upon them in gaining access to the main traveled thoroughfares.
The rule to be applied in the instant case is a corollary to the rule first announced in Brock and applied in Ray. The rule is that the right of access of an abutting property owner upon a public street or highway is merely a right of reasonable, but not unlimited, access to and from the abutting property. As applied to a controlled access facility which upgrades or improves a conventional street or highway, where no frontage road is provided to which the abutting owners of property have direct access, and they have no reasonable access from the abutting property via a frontage road to the through traffic lanes of the controlled access highway, the abutters’ rights of access have been taken or appropriated by the State Highway Commission, and their damages by reason of the loss of access are compensable.
On the stipulated facts in this case Kellogg Drive, which will front the plaintiffs’ properties for a distance of five blocks after the highway project is completed, is not a “frontage road” as defined in K. S. A. 1975 Supp. 68-1901 (c). It provides:
“ ‘Frontage road’ means a highway, road or street which is auxiliary to and located on the side of another highway, road or street for service to abutting property and adjacent areas and for control of access to such other highway, road or street.”
Here Kellogg Drive will not furnish any access whatever to the newly improved Kellogg Street and highways. Abutting property owners entering upon Kellogg Drive with their motor vehicles must leave and use other roads or streets to gain access to the new limited access highway fronting their property at distant interchanges.
An annotation at 42 A. L. R. 3rd 13, 84 (1972) discusses cases dealing with the reasonableness of access as affected by the distance to the nearest opening of a frontage road to the express lanes of the controlled access highway. The cases cited in the annotation are split on whether compensation should be awarded when frontage roads of varying lengths permitting access to the controlled highway are involved. However, virtually every case involves a situation where “frontage roads” provided access of varying distances to the controlled access highways. Here long distances must be traveled on roads, other than Kellogg Drive, which are no part of a frontage road, in order to gain access to the controlled highway at interchanges on the highway. The circuity of travel in die instant case is such that reasonable men could not differ in finding it unreasonable.
While Kellogg Drive in the instant case is adjacent to the plaintiffs’ properties and parallel to the new limited access highway, at no point does it permit entry onto the express lanes of the highway. Kellogg Drive which extends for a distance of five blocks parallel to the new highway terminates at its extremeties without permitting any access to the new controlled highway facility.
The city argues the owner of property abutting upon an existing street or highway does not have a vested right in the flow of traffic directiy in front of his property. It must be conceded that the state or a city may abandon or re-route an existing street or highway away from the abutting landowners’ property without any liability to the owners of land abutting on the street or highway for the change in the flow of traffic. This was established in Moore v. State Highway Commission, 191 Kan. 624, 383 P. 2d 549, which held there is no taking of a right of access where a new controlled access highway is established through property where no highway previously existed. (See also Ray v. State Highway Commission, supra at 19; and Brock v. State Highway Commission, supra at 371.) That is not the situation facing the court in the instant case.
Thus, while the state is under no duty or obligation to send traffic past the plaintiffs’ properties, as long as the traffic does pass the plaintiffs’ properties they are entitled to avail themselves of it in common with other abutting property owners.
The plaintiffs in the instant case are not complaining about a loss of traffic which results from the building of a new highway which leads the traffic to the new route. The record here discloses the Squad Chief for the Consulting Services Design Department of the State Highway Commission, Dale L. McGregor, testified on cross-examination that it was his opinion this project is an upgrading of an existing highway 'and not the construction of a new 'highway. The stipulated facts support this testimony. Here an existing conventional highway was converted to a controlled access facility by action of the State Highway Commission on a part of the same right of way. The fact that the new highway is relocated approximately 90 feet north of its former location was necessitated to widen the easement for construction of the new facility.
In its brief the city fails to distinguish between the right of access and a right to traffic flow. The issue in this case is not whether the restricted access will cut down on the volume of the plaintiffs’ businesses from the traffic flow. Rather, the issue is whether there has been a substantial impairment of, and an unreasonable interference with, plaintiffs’ right of access to the adjacent highway by reason of the construction of the new controlled access facility to constitute a taking of private property for public use which is compensable.
Access may be defined as the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the road or highway without unreasonable interference. Such a right to be of any substantial utility must necessarily include the owner’s invitees and licensees. (Brock v. State Highway Commission, supra; and State v. Wilson, 103 Ariz. 194, 438 P. 2d 760, 42 A. L. R. 3d 134 [1968].)
On the facts in the instant case we are dealing with two service stations and a candy shop. These business properties are dependent upon access to the new highway facility fronting these properties. In McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P. 2d 1165, the court stated:
“. . . The value of a service station is dependent almost entirely upon the access the traveling public has to the service station.” (p. 394.)
Analogous cases affecting abutters’ rights of access in conventional highway improvement cases which held the restriction of access to be a compensable taking are McCall Service Stations, Inc. v. City of Overland Park, supra; and Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P. 2d 77.
Whether the circuity of travel of the abutting property owners in the instant case to gain access via Kellogg Drive to the fully controlled access highway facility herein is unreasonable is a question of law to be determined by the trial court in the first instance. (Brock v. State Highway Commission, supra; and Ray v. State Highway Commission, supra.)
The trial court found the conversion of portions of the existing conventional highway, Kellogg Street, U. S. Highway 54 and State Highway 96, to Kellogg Drive, to which the plaintiffs will have access, will not provide them with reasonable access via Kellogg Drive to either lane of the fully controlled access highway facility when constructed.
On the stipulated facts in this case the trial court was correct.
On the record here presented the question of damages and the manner of determining the amount of damages are not before the court at this time.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from orders denying a defendant’s successive motions to set aside a default judgment against him in each of two cases consolidated herein.
The record on appeal in each case is identical in every respect to that in the other except as to the name of the plaintiff and the amount of the judgment, and everything said herein is applicable to each case.
Plaintiffs Automatic Feeder Company and Unipunch Products, Inc., filed their petitions on July 3, 1974. These petitions alleged in substance that defendants Russell J. Tobey and two other individual defendants were sole stockholders, principal officers and operators of York Manufacturing Company, Inc., and in control of its management and business affairs; that defendants began and continued business operations of the corporation without adequate capitalization; they operated the corporation until it was insolvent and could no longer meet its obligations; York Manufacturing Company, Inc., was in fact the alter ego of Tobey and the two other defendants and Valley Industries, Inc., and was used by them as a vehicle to carry out the personal business ventures of the defendants and Valley Industries, Inc.; the debts and obligations contracted by York Manufacturing Company, Inc., were in keeping with a well designed plan and scheme on the part of defendant Tobey and the two individuals to cheat and defraud the creditors of the York corporation and particularly the plaintiffs; that on May 16, 1973, judgment was entered in the district court of Montgomery county, Kansas, in favor of plaintiff Unipunch and against York Manufacturing Company, Inc., for $6,004.79 and on July 13, 1973, judgment was entered in the same court for plaintiff Automatic Feeder and against York Manufacturing Company, Inc., for $10,685.60. Recovery was sought in the same amount as for the judgments, with interest and costs. On July 3, 1974, summons for personal service outside the state of Kansas upon defendant Russell J. Tobey was directed to the sheriff of St. Louis County, Missouri. The summons was duly returned and filed in the trial court on July 18, 1974. The Missouri sheriff’s return showed personal service on Russell J. Tobey on July 12, 1974.
No answer or other appearance in the actions was made by Tobey within thirty days of service of the summons as required by K. S. A. 1975 Supp. 60-308 (a) (3), and as a result plaintiffs on August 14, 1974, orally moved for and obtained default judg ments against him. In the Automatic Feeder case the judgment was for $10,685.60 and that in the Unipunch action was for $6,004.79. No stenographic record was made of the hearing and apparently no evidence was offered. The trial court made no findings of fact upon the merits of the cases and the journal entries merely recited the examination of the files, service of summons upon Tobey, his default of appearance and the entry and amount of judgment in each case.
Thereafter and on August 19, 1974, defendant Tobey filed a motion to set aside the default judgment for the reason he was not served with summons until after July 19, 1974, and therefore the default judgment was taken prior to the expiration of the thirty day period he had in which to answer. His motion further stated he had employed the services of present counsel who would be hospitalized the week of August 19, 1974, and it requested an automatic ten day extension of his answer time, which he said should be from August 19, 1974. The motion also stated supporting affidavits concerning service upon defendant Tobey would be furnished at the time of the hearing of the motion.
This motion was not heard until March 12, 1975, having been continued by the trial court from time to time until that date. By letter opinion dated April 21, 1975, and journalized May 16, 1975, the court denied the motion, citing authority that after judgment a sheriff’s return may not be impeached by oral testimony as to matters therein recited which were clearly within the sheriff’s personal knowledge and further that a default judgment may not be opened absent a showing that the defaulting party has a meritorious defense and the default was not the result of inexcusable neglect or wilful act. The record on appeal contains an affidavit by defendant Tobey, filing date not shown but presumably exhibited to the trial court, in which he stated: “My wife told me that a gentleman was by on July 12th regarding some lawsuits. There were no papers left with my wife at that time. Over a week later, this gentleman came to my home and left papers with me, which was a summons and a copy of the petition in this case.”
On May 28, 1975, defendant filed his notice of appeal from the May 16, 1975, judgment. On July 29, 1975, he filed a second motion to set aside the default judgments against him, this time purportedly under K. S. A. 60-260 (b) (4) and (6) on the grounds the petitions stated insufficient facts to constitute fraud, no evi dence was introduced, no record was made of the hearing and the court made no findings of fact upon which a judgment for fraud could be based. On September 3, 1975, this motion was similarly denied for the reason no meritorious defense had ever been set up or excusable neglect shown despite the passage of time. Defendant duly appealed from this ruling.
K. S. A. 1975 Supp. 60-308 (a) (3) provides that a default judgment rendered on personal service outside the state may be set aside only on a showing which would be timely and sufficient to set aside a default judgment rendered on personal service within this state. Appellant now concedes in his brief that without producing the St. Louis county sheriff and thereby impeaching his written return, that return showing personal service may be deemed sufficient and appellant’s affidavit as to service can be ignored. He now relies for relief on certain sections of K. S. A. 60-260 (b) which provide:
“On. motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void; . . . or (6) any other reason justifying relief from the operation of the judgment. . . .”
First of all it should be kept in mind that an appeal from an order denying a motion for relief from a judgment under K. S. A. 60-260 (b) generally presents for appellate review only the order of denial and not the judgment (Lee v. Brown, 210 Kan. 168, 499 P. 2d 1076) and further that ordinarily a motion to set aside a default judgment may be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a wilful act. The trial court has some discretion in the matter (Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P. 2d 351).
Here there has never been any showing that appellant had a meritorious defense to the actions; hence that omission precludes relief under 60-260 (b) (6), the catchall section. However, that is not the end of the matter because appellant contends the judgments are void and should be set aside under 60-260 (b) (4). In this situation the rules are somewhat different from those stated above in Montez and Lee where the court was dealing with other subsections of 260 (b). Where a judgment is attacked under subsection (4) as being void there is no requirement that the moving party show that he has a meritorious defense (Wright & Miller, Federal Practice and Procedure: Civil §2862, p. 197). A void judgment is a legal nullity. But, of course, a judgment is not void merely because it is erroneous or because some irregularity inhered in its rendition. It is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process (id. at pp. 198-200).
Appellant’s assertion the judgments are void rests on these grounds: The petitions insufficiently pleaded fraud; the court made no stenographic record of the hearing at which the judgments were obtained; no evidence was adduced at that hearing and the court made no findings of fact which would sustain a judgment based on fraud. None of these contentions has merit.
The petitions sufficiently pleaded the ultimate facts constituting the claim for relief (see Dawson v. Dawson, 212 Kan. 711, 512 P. 2d 522). We have no requirement, statutory or otherwise, that a court reporter be present and record the proceedings at which a default judgment is obtained. Nor did the failure of the court to hear evidence render the judgment void. K. S. A. 1975 Supp. 60-255 (a) provides:
“Entry. Upon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default for the remedy to which the party is entitled. ... If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the state. . . .” (Emphasis supplied.)
K. S. A. 60-208 (d) provides:
“Effect of failure to deny. Averments in a pleading to which a responsive pleading is required or permitted, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. . . .”
The effect of the foregoing for present purposes is that if a defendant over whom jurisdiction has been obtained makes no appearance nothing is put in issue save possibly the facts needed to give the court jurisdiction over the subject matter and the amount of damages. The court here made sufficient jurisdictional findings. The damages sought were liquidated and the trial court could take judicial notice of the exact amount since the judgments fixing the amount were obtained in the same court. Hence there was no need for evidence to be taken at the hearing. Finally, since nothing was at issue the trial court was not obligated to make findings of fact as is the case in contested matters as prescribed by K. S. A. 1975 Supp. 60-252a and Rule 116 of this court. In rendering the default judgments the trial court did everything required of it. The actions were regularly filed. Appellant was served with summons and copies of the petitions. The court had jurisdiction of the parties and the subject matter of the actions. Nothing irregular occurred in the entries of the default judgments and they are not void.
The judgments appealed from are affirmed.
APPROVED BY THE COURT. | [
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Per Curiam:
This was an action brought by three individuals designating themselves as citizens, electors and taxpayers in their own behalf and on behalf of other .members of such classes to enjoin an election called by the board of county commissioners of Morton county to determine the question of relocation of the county seat of that county.
At a hearing held in the district court the demurrer of the board of county commissioners to the petition was overruled and the trial court granted a temporary injunction. The defendant, Board of County Commissioners, appeals, assigning error on both rulings.
Upon consideration, this court has concluded that the plaintiffs are not entitled to the relief prayed for. The order of the trial court overruling the demurrer is reversed and the order granting the temporary injunction is set aside. A fuller opinion will be prepared and filed later.
The clerk of the district court of Morton county is ordered to spread this mandate of record immediately upon its receipt by him. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from a jury verdict which found David C. Wilson (defendant-appellant) guilty of aggravated robbery. (K. S. A. 21-3427.) Numerous points for reversal are asserted on appeal.
The facts surrounding this case are fully reported in a case involving David C. Wilsons codefendant, Kenneth L. Holloway, who prosecuted a separate appeal. (State v. Holloway, 219 Kan. 245, 547 P. 2d 741.) Suffice it to say on February 15, 1974, three black males robbed a shoe store. The trio was observed by the store manager, Galen Achten, and his friend, Roderick McPherson, while in the store. Fingerprints taken from a store shoehorn matched those of Wilson. A license number, which matched Wilson’s car, was recorded by Police Lieutenant Gary Burgat near the robbery scene. Wilson and Holloway were tried to a jury on an information charging them jointly with aggravated robbery.
The appellant’s primary point on appeal concerns the identification procedures. The appellant contends: “The trial court erred in allowing testimony, without an out of court hearing on its own initiative, from the two clerks on the issue of identification that in the totality of circumstances were unduly impermissibly influenced and suggestive with a substantial likelihood of irreparable misidentification, to-wit: police influence in mug identification and preliminary hearing testimony; equivocal testimony by witness Achten that he had seen the robbers the day of the preliminary hearing but not in the courtroom; and by the suggestive one and two man photo show ups along with police suggestions to the witnesses.”
The record discloses Mr. McPherson looked through a stack of photos without identifying any robbers. As he started to look at a second stack, the police handed him two mug shots and asked if those were the robbers. Mr. McPherson thought they matched the description. Either Mr. McPherson or a detective then took the two photos to Mr. Achten who was in the same room looking at other bundles of pictures. Trial testimony of Mr. Achten indicates the following occurred:
“A. No, they were brought to me. Rod picked them out and brought them to me and I said that was them.
ft ft ft ft ft
“Q. Did he bring those over to you or did Detective Oakley?
“A. He came over with an officer and had them in his hand and said, ‘Does this look like the two?’ And I said, ‘Yes.’
“Q. The best you recall you said, ‘That looks like the two.’ Is that right?
“A. Yes, I said it was the two.”
It is significant to note neither Wilson nor Holloway ever objected to the identification process or testimony regarding that process. Rather, their trial strategy was aimed solely at discrediting the two witnesses, Achten and McPherson, as they had successfully done at the first preliminary hearing. K. S. A. 60-404 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
The rationale underlying 60-404, supra, was explained in Baker v. State, 204 Kan. 607, 464 P. 2d 212, as follows:
“The contemporaneous objection rule long adhered to in this state requires timely and specific objection to the admission of evidence in order for the question of admissibility to be considered on appeal. (K. S. A. 60-404.) The rule is a salutary procedural tool serving a legitimate state purpose. (See, Mize v. State, 199 Kan. 666, 433 P. 2d 397; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. denied, 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.) By making use of the rule, counsel gives the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial. Furthermore, the rule is practically one of necessity if litigation is ever to be brought to an end.” (p. 611.)
Because the appellant did not move to suppress the photo identification and did not object to the in-court testimony and identification, he is precluded from raising the question for the first time on appeal. (State v. Cameron & Bentley, 216 Kan. 644, 649, 533 P. 2d 1255; and State v. Boyd, 206 Kan. 383, 479 P. 2d 837.) This is particularly true where the absence of a contemporaneous objection must be considered part of the appellant’s defense strategy. (State v. Boyd, supra at 386; and State v. Sanders, 202 Kan. 551, 451 P. 2d 148.) Because of the defense strategy, the state had no need to call the detectives who showed the mug shots. The record, therefore, has no foundation to support the conclusion that the photographic identification was impermissibly suggestive.
The appellant argues the trial court, on its own initiative, should have excluded the identification testimony. We do not read United States v. Fowler, 439 F. 2d 133 (9th Cir. 1971), which the appellant cites, to require a court, on its own initiative, to exclude arguably suggestive identification testimony.
The appellant notes a comment by a witness was that he still had “the mental image” in his mind. The appellant argues such language is not the normal expression of a lay person and could have only come from the suggestive influence of the state’s prosecution team. On at least one occasion the prosecuting attorney asked Mr. Achten if he still had “a mental image of what the robbers looked like.” This may account for the use of the term “mental image.”
Assuming the point asserted by the appellant to be here, we fail to see that it has merit. In Simmons v. United States, 390 U. S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967, the Court stated the governing test as follows:
“. . . [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. . . .” (p. 384.)
(See also State v. Nesmith, 220 Kan. 146, 148, 551 P. 2d 896; and State v. Mitchell, 220 Kan. 700, 556 P. 2d 874.)
Although a confrontation procedure may be sjuggestive, if under the totality of the circumstances the identification is reliable, the identification is admissible. (Neil v. Biggers, 409 U. S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; and State v. Nesmith, supra.)
For a discussion of photographic identification and suggestiveness see Annot, 39 A. L. R. 3d 1000 (1971).
Here the robbers were in the store for forty-five minutes prior to the robbery, so both witnesses had ample opportunity to view the criminals. Before the robbery, they aroused Mr. McPhersons suspicion as he observed them. Mr. Achten saw their faces from a distance of one to ten feet approximately ten or fifteen times.
The accuracy of witnesses in giving prior descriptions of the criminals is important. At the first preliminary hearing, both witnesses displayed some confusion. However, at trial Mr. Achten explained his confusion over changes in hair and clothing and testified there was no doubt in his mind as to the identity of the people who robbed him. Mr. McPherson testified during cross-examination at the trial that he still had a small doubt.
We also note the short length of time between the commission of the crime and the identification. Mr. McPherson testified he picked out the appellant’s picture one-half hour after the crime. Mr. Achten testified he identified the mug shots about an hour and one-half after the robbery.
After the discharge of the appellant and his codefendant following the first preliminary hearing on April 13, 1974, for lack of positive identification by Mr. McPherson and Mr. Achten, the codefendants attempted to get the money taken from them after the arrest. They approached Officer Gary Davis who told them the money would have to be returned by the jail. Mr. Holloway then in the presence of the appellant made the following remark, “Man, we have just committed the perfect crime and they won’t give us our money back.” This admission resulted in the refiling of charges by the district attorney’s office, and undoubtedly was ultimately responsible for their conviction by the jury.
We conclude the totality of the circumstances does not suggest a substantial likelihood of irreparable misidentification.
The appellant contends: “The trial court erred in denying the defendant due process when there was a substantial danger of misidentifioation of defendants by not giving, on its own initiative, an instruction that if there was reasonable doubt on identification of the defendants as the persons committing the crime, then the jury should acquit.”
The trial court gave general instructions, among which was the usual instruction on burden of proof in a criminal case.
The appellant did not request any special instruction on the issue of identification. K. S. A. 22-3414 (3) provides in part:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. . . .”
(State v. Harwich, 220 Kan. 572, 577, 552 P. 2d 987; and State v. Ponds and Garrett, 218 Kan. 416, 419, 543 P. 2d 967.) Accordingly, appellate review is precluded.
The cases cited by the appellant do not indicate that the trial court, on its own initiative, must give a special instruction on identification. We do note, however, in State v. Ponds and Garrett, supra, Ponds requested a special instruction on identification. The trial court refused the request, and Ponds claimed error. The court rejected that claim and stated:
“. . . The identification of the defendant as the one who committed the crime is a primary issue in nearly every criminal case. The jury was informed that each .and every element of the crime had to be established beyond a reasonable doubt, and identity is one of those elements. ‘[Ejrror cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused.’ (State v. Skinner, 210 Kan. 354, 361, 503 P. 2d 168.)” (p.' 419.)
The above statement is applicable in the case at bar.
The appellant challenges the jury selection. In State v. Holloway, supra, this court reviewed the entire voir dire examination transcript and found no error. Given the same voir dire examination, the appellant contends members of institutions, such as Boeing, Beech, Cessna, Learjet, Coleman, Koch Engineering, Santa Fe, Southwestern Bell, K. G. & E., universities and hospitals, were heavily represented on the jury panel, which indicates the lack of a random jury selection. No evidence was presented concerning how the jury selection was done. A bald assertion in appellant’s brief concerning one jury panel does not establish a prima facie case of discrimination in jury selection. (State v. Reed, 214 Kan. 562, 520 P. 2d 1314; State v. Holloway, supra; and authorities cited therein.)
Other points asserted by the appellant, based upon the identical record reviewed by this court in State v. Holloway, supra, are found to have no merit. These points are identified by syllabus numbers 3, 7, 8 and 10 and are reviewed in the corresponding portions of the opinion in State v. Holloway, supra.
The appellant contends the trial court erred in allowing the prosecutor to use the term “reasonable doubt” during voir dire examination of the jurors to misconstrue the state’s burden of proof. No objection was made during voir dire. In addition the trial court found both parties had used this term. We find the point lacks sufficient merit on the record presented to warrant reversal. No prejudice to the appellant is shown to have resulted.
The trial court did not err in overruling the appellant’s motion for judgment of acquittal. (State v. Gustin, 212 Kan. 475, Syl. 3, 510 P. 2d 1290; and State v. Holloway, supra at 255.)
The judgment of the lower court is affirmed. | [
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.The opinion of the court was delivered by
Wedell, J.:
The defendant, Jack C. Collins, was convicted of felonious assault on one Everett Vernon Little with intent to kill under the provisions of G. S. 1935, 21-431, and appeals.
The first error charged is the failure of the trial court to make an inquiry concerning appellant’s sanity before or during the trial. The date of the alleged offense was October 31, 1945. The trial began January 14, 1946, and ended January 16th.
Prior to the trial appellant’s counsel requested a continuance, which was denied. Neither the length of the requested continuance nor the alleged grounds therefor are set out. In support of. the motion or request appellant’s witness, Dr. Harry E. Blasdel, on January 10, 1946, testified, in substance: He had been treating defendant since July, 1943, for tertiary stage of syphilis; defendant was in a highly nervous state and he (the doctor) wished to< give him a spinal puncture in order to determine the nature or character of future treatment; a man in defendant’s condition without proper treatment was liable to crack up at any time, particularly with the worry of a case such as this on his mind; the puncture would be the logical thing to do at this stage of treatment; defendant had been . hard to handle; he had tried for two years to induce defendant to consent to the making of the puncture.'
In the course of that testimony the court asked the doctor the following question and received this answer:
“Do you think it would be very injurious to Mr. Collins if you would put off the puncture for a week? A. No, sir, not at all.”
In commenting on the motion for continuance the court said:
“I can’t see why it is necessary at this time, after the Doctor here has been treating him for two years, why it is necessary to put the trial off. A week from today he will be through with the trial and he can have the spinal puncture then. The Doctor says it wouldn’t be injurious to put it off a week. In other words, it will be just from Monday until the following Thursday; at the very least, it will be just postponing the spinal puncture three days, and according to the Doctor’s testimony, I don’t think that three days will make very much difference.”
The foregoing constitutes all that transpired on the hearing for a continuance. Failure to grant the continuance is 'not one of the specifications of error. Appellant relies on no other testimony touch ing his condition at the time of the hearing of the motion for a continuance or during the trial. While this is the only testimony with respect to appellant’s condition prior to trial there was testimony introduced during the trial which tended to show appellant’s condition on the night of and immediately after he had assaulted Everett Yernon Little, approximately two and one-half months prior to the trial. Apellant testified:
“Q. Now, on the night, — at the present time and at more particularly on the night of October 31, 1945, what was the condition of your health, Mr. Collins? A. Well, it was very bad.
“Q. Have you had any attacks of, paralysis attacks, locomotor ataxia, anything of the kind? A. Three. ' '■
“Q. Before that time? A. Before that time.
“Q. How does that affect your body, your equilibrium,? A. It causes a loss of the matter of balance; that is what the doctor calls it ” (Our italics.)
Appellant’s witness, a minister and mayor of the city of Hutchinson, testified concerning appellant’s condition after he had assaulted Little, in substance, as follows:
He was riding in a police car on that night and picked up a radio report of the shooting at the pool hall; he went there; he had met Collins frequently for several years and considered him usually a rather interesting conversationalist who talked sensibly; Collins usually had a liquor breath and he did have that evening, but he appeared not to be drunk then; Collins was dazed, hysterical and had a crazy expression on his face; the witness saw Collins later at the police station; Collins laughed hysterically and did not speak coherently; he was muttering, cackled like a “bunch of hens,” . laughed a great deal, a peculiar type of hysterical laughter; he had a crazy, peculiar stare and was not rational at that time in the witness’s opinion.
Doctor Walker, the city physician, and appellant’s witness, testified concerning appellant’s condition at the same time and place, in substance, as follows:
He treated Collins the night of the shooting for wounds on the back top part of the head; there were two severe cuts not made by a sharp instrument; Collins’ head was bleeding and his head and clothing were fairly well saturated with blood; five or six clamps were used on the wounds and the wounds dressed; Collins seemed jovial and his talk was not remorseful; he seemed to talk a little more than an ordinary person would under the circumstances.
On cross-examination the same doctor was asked and answered as follows:
“Q. He acted rational, didn’t he? A. What?
“Q. He was rational? A. Oh, yes.”
Did the trial court commit reversible error in failing to make an inquiry on its own initiative concerning appellant’s sanity in the light of the facts developed prior to or during the trial? No claim was made in the trial court appellant was insane or incapable of making an adequate defense. Neither appellant nor his counsel requested the court to make an inquiry for the purpose of determining capacity or mental condition. It appears a request was made for a continuance of the trial only for the purpose of making a spinal puncture. The doctor’s stated purpose for desiring to make the puncture was to determine the nature and character of proper future treatment. Appellant’s physician had been endeavoring for two years without success to persuade appellant such a puncture should be made. The doctor testified the puncture could be made as well after the trial as before. The purpose of the puncture, therefore, was not to eliminate a condition which prevented appellant from making a proper defense.
We need not pursue the order denying a continuance as there is no appeal from that ruling. This does not mean, however, that we should not consider the evidence adduced in connection with the hearing for a continuance together with all other facts disclosed’ during the trial which may cast light on the subject of appellant’s sanity or capacity to make a proper defense. We shall consider all the pertinent facts.
The testimony of appellant’s witnesses during the trial, previously quoted, did not relate to appellant’s condition at the time of trial but to his condition on the night after his assault on Little which was approximately two "and one-half months before thetrial. There was nothing in the doctor’s testimony to indicate appellant’s incapacity at that time. In fact, he testified appellant was rational at the time. The trial court was, of course, obliged to consider the minister-mayor’s testimony in' connection with other testimony in the case which disclosed what had transpired previously-that night to affect appellant’s condition. That testimony disclosed: Appellant was a professional gambler; he had $6,000 on his person and carried a gun; appellant, Little and others, had been shooting dice in appellant’s hotel room in Hutchinson prior to appellant’s as-. sault on Little at the Smoke House; appellant had won considerable money from Little and from at least one other participant; they insisted on having the dice “miked” which disclosed the dice were crooked; Little then grabbed appellant’s revolver which was lying on a dresser, and struck appellant on the head with it, resulting in. the head wounds the city physician described; appellant returned the money he had won and, it appears, a little more; the participants then proceeded to do some social drinking, shook hands two or three times and everybody seemed to be happy; Little left for the Smoke House; the shooting of Little occurred approximately an hour later that night at the Smoke House.
Manifestly, the trial court had a right to consider whether appellant’s later condition at the police station that night, as described by the minister-mayor, was attributable to injuries to appellant’s head received at the hotel room or to the drinking or both.
In fairness to the trial court it was never intimated by anyone before or during the trial that appellant’s condition at the police station on the night of the shooting, as described by the minister-mayor, was indicative of or suggested insanity. There was not the remotest claim of insanity at any time prior to or during the trial. It is not now contended there is anything in the recbrd to indicate appellant was insane or that he lacked capacity for any reason during the trial to make an adequate defense. Nor was any kind of instruction on that subject requested.
G. S. 1935, 39-237, pertaining to an inquiry on the trial of a feeble-minded person, has been repealed. (Laws 1939, ch. 180, § 280.) G. S. 1935, 62-1531, provides:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state asylum for the dangerous insane for safekeeping and treatment; and such person shall be received and cared for at the said institution until he shall recover, when he shall be returned to the court from which he was received to be placed on trial upon said indictment or information.”
This court had occasion to construe and apply both statutes before the repeal of the first-cited statute and also to pass upon the rights of an insane person without regard to statute. It is committed to certain well-established principle’s pertaining to the subject before us. Manifestly, it is the policy of the law not to try persons while they are insane. (State v. Badders, 141 Kan. 683, 42 P. 2d 943.) Whenever counsel for defendant or the state become possessed of knowledge of defendant’s lack of mental capacity to comprehend his situation or to properly make his defense, it becomes their duty to promptly bring the matter to the attention of the court. (State v. Brotherton, 131 Kan. 295, 302, 291 Pac. 954.)
In the Badders case it was also said:
“When during a trial it is brought out by the testimony of any witness, or is called to the attention of the court by anyone connected with the case, that the defendant then on trial is insane, or that there is a serious question as to his sanity at that time, it is the duty of the court to stop the trial and make an inquiry concerning that matter.” (p. 686.)
In State v. Detar, 125 Kan. 218, 263 Pac. 1071, we stated:
“As we have seen, it was brought to the attention of the court informally by the defendant and formally by the state. The manner in which the necessity for an inquiry is raised as to the present insanity is not of much importance. It may be ordered on formal application or where no application is made, when the court learns from observation, reasonable claim or credible source, that there is a real doubt of defendant’s mental condition to comprehend his situation or make his defense.” (p. 221.)
When a proper showing of insanity is made the law in effect makes the application for an inquiry for the defendant. No formal application is necessary under such circumstances. (In re Wright, 74 Kan. 406, 86 Pac. 460; State v. Ossweiler, 111 Kan. 358, 207 Pac. 832; State v. Brotherton, supra.)
Prom these salutary and'humane principles this court has no desire to detract. They are justly designed for the protection of persons to be tried for crimes when they are incapacitated to properly defend themselves. On the other hand, th§y are not intended to furnish a technical means of nullifying just verdicts solemnly reached by judicial process. In order to reverse the trial court on the instant complaint we would be obliged to hold, as a matter of law, the record compelled the trial court to entertain a real doubt with respect to appellant’s sanity or capacity to make a proper defense. The question of such doubt addressed itself to the sound discretion of the trial court. It was the trial court in whose mind a real doubt of sanity or mental capacity to defend had to be created. (23 C. J. S., Criminal Law, § 940, p. 235; The People v. Hart, 333 Ill. 169, 173, 174, 164 N. E. 156; Dietz v. State, 149 Wis. 462, 480, 136 N. W. 166; State v. Peterson, 24 Mont. 81, 86, 60 Pac. 809; Southworth v. State, 98 Fla. 1184,1190,125 So. 345.)
We think under all the circumstances here presented it would be somewhat stronghanded to conclude the trial court abused sound judicial discretion in failing to make an inquiry. While this court might not be willing to go as far in some respects as the learned courts of the jurisdictions last above cited we are.satisfied this judgment should not be reversed on the ground the trial court was compelled to make an inquiry concerning appellant’s sanity solely on its own initiative. This is doubly true in view of the fact appellant’s counsel does not even now contend appellant was insane or incapable of conducting his defense.
Other alleged errors pertain to the exclusion or admission of evidence. Complaint is made appellant was. unduly restricted in his cross-examination of the witness Little whom appellant had assaulted. The testimony in chief of that witness was limited to what occurred at the Smoke House where the shooting occurred. That testimony indicated appellant came into the Smoke House with a .45 caliber pistol looking for Little at approximately eleven o’clock in the evening, located him seated at a card table and that while Little was so seated appellant approached from the side and shot him through the body. Appellant shot a second time but that bullet did not strike its mark. Little testified he did not notice Collins until about the time he was shot, that his only move was to turn his head before he was shot and that appellant, said:
“Here is you, you son-of-a-bitch, and here I am, and he shot.”
Appellant’s contention was he had shot Little in self-defense because he feared Little. By cross-examination- of the witness Little on matters not covered by the witness’s testimony in chief appellant sought to elicit testimony concerning what had occurred in appellant’s hotel room previously that night. Obviously appellant endeavored to establish his defense by such cross-examination and it was not error to exclude the testimony. Appellant’s version of what previously had occurred in the hotel room was later fully developed in his own testimony with the result that the court and jury were fully advised of all the essential facts.
Complaint is made of the ruling excluding evidence on direct examination of appellant’s doctor touching appellant’s condition the day after the shooting. The stated purpose of the testimony was to show the effect of the injuries Little had inflicted on appellant by striking him on the head with the revolver the night before and to show appellant feared Little. The trial court advised it would permit appellant to show anything that transpired on the night of the shooting but refused to admit testimony touching appellant’s condition the following day for the reason that his condition the next day might have been augmented by other things. As previously indicated the doctor did testify concerning appellant’s condition the previous evening after appellant had been struck by Little and stated that appellant was rational. In view of the record we will not disturb the ruling. Obviously whatever appellant may have told his doctor the following day, if anything, about fearing Little would not have been admissible.
It is urged the trial court erred In admitting state’s rebuttal evidence. On cross-examination appellant, in part, testified in substance: He intended to .shoot or he would not have pulled the trigger, but he'did not say he intended to kill him; he had no recollection of what he said at the police station. In rebuttal to that evidence the state introduced the testimony of a number of officers who saw and heard appellant at the police station after the shooting. John Robinson testified in substance: He was employed in the police department of the city of Hutchinson and was on duty the night in question; he had taken Collins to the police station from,the Smoke House after the shooting; he and some other detectives had had a conversation with Collins at the station; Collins had been permitted to call his attorney; Collins voluntarily stated that no one was going to "conk” him on his head with his own gun, as Little had, and get by with it; he had taken a drink and at .about eleven o’clock went out to look for Little, whose name he did not know at the time, and had gone to the pool hall; he admitted he shot the boy; he stated he had gone out with the intention of killing Little.
The witness, H. J. Van Kuren, testified in substance: He was assistant chief of the fire department of the city of Hutchinson and was in the police station the night Collins was brought in; Collins stated nobody could hit him over- his head with his own gun and live; Collins stated he just walked up and shot him. The testimony of the witnesses was proper rebuttal to appellant’s evidence on self-defense.
Appellant contends the court erroneously permitted the witness Little to testify on rebuttal he had told appellant before leaving the hotel that he was going to the Smoke House. The testimony was properly admitted in view of appellant’s claim he shot Little in self-defense. Appellant had testified he went to the Smoke House from the hotel to find another person and that he did not know where Little was.
The jury was entitled to determine from the conflicting evidence whether appellant knew where he could find Little and for what purpose he went to the Smoke House.
It is also urged the court erred in failing to permit appellant on his direct examination to state whether he had been in the habit of going to the Smoke House during the month of October and whether he had been there the day before the shooting. The court did permit appellant to testify he had been to the Smoke House several times before the day in question.- No showing was made during the trial or on thé motion for a new trial as to what appellant’s answers to the questions would have been had he been permitted to answer them. It follows appellant cannot legally predicate error on the ruling. Moreover, appellant had frankly confessed that since 1920 he had been mostly a gambler with dice. No doubt the jury knew he would be in the habit of frequenting gambling places.
Another error urged is the sustaining of the state’s objection to a question on cross-examination of the witness Little. Appellant’s' counsel asked Little whether he had not filed a suit against J. C. Collins eí> al. in the district court of Reno county on November 13, 1945, for $10,000. The state objected on the ground the question was incompetent, irrelevant and immaterial, not tending to prove or disprove any issue in the case. Appellant also offered in evidence the papers in the purported case. Appellant’s abstract does not disclose the nature of the state’s objection to this offer. The objection was sustained. Appellant admits the transcript does not show what those papers were. Appellant now tells us the files offered included a petition of Everett Little asking damages in the amount of $10,000 from appellant for the shooting of Little, the transaction out of which this criminal case arose. The last statement is outside the record. The files offered are not presented here. Appellant says the files included the petition in that case. What else they may have included to make them inadmissible, if anything, we have no way of knowing. Appellee states that since appellant has gone outside the record it will do likewise and advise us the civil action has been settled by judgment for Little in the' sum., of $2,500. Appellee argues if a new trial were ordered Little could not now be cross-examined on that question and that the record would, if admissible, tend to constitute an admission of appellant’s guilt.
Manifestly, this court will not base its opinion on facts not properly brought before us by either party. Generally, cross-examination of a witness for the purpose of disclosing his interest in the action, his hostile feeling, and the extent thereof is proper. It is the province of the jury to consider such facts in order to determine the weight and credibility it will accord to all or to any portion of a witness’ testimony. (See State v. Krum, 32 Kan. 372, 4 Pac. 621; State v. Collins, 33 Kan. 77, 5 Pac. 368; State v. Tawney, 81 Kan. 162, 105 Pac. 218; all involving a similar question.)
Notwithstanding the condition of the record before.us with respect to the sustaining of the objection to the cross-examination let us assume the evidence should have been admitted. Does it necessarily follow it constituted reversible error to exclude it? We have held otherwise under rather similar circumstances. (State v. McLemore, 99 Kan. 777, 164 Pac. 161.) It must always be remembered every error does not necessarily affect substantial rights. Our statute, G. S. 1935, 62-1718, directs:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
Numerous cases in which this .statutory mandate has been applied are collected under the statute. On the record before us it is not made to appear the ruling probably prejudiced appellant’s substantial rights. On the contrary, it more reasonably appears it probably did not. Appellee informs us Little did not sign the complaint on which appellant was prosecuted. Of course, he was the principal witness. He had been shot. The bullet of a .45 caliber pistol had passed entirely through his body. It is utterly inconceivable the jury would not know that Little had some real feeling about and interest in the outcome of this prosecution. Naturally the jury would consider that fact in its deliberations. Moreover, in the light of the testimony of various neutral eyewitnesses, in addition to the testimony of witnesses previously narrated, who testified relative to the deliberate and cold-blooded manner in which this crime was committed, we have no hesitancy in saying' it is highly improbable the feeling and interest of Little in a conviction would have been materially increased, if at all, by evidence of a civil suit against appellant. After careful review and consideration of the record this court does not believe it would be justified in concluding the substantial rights of appellant probably were prejudiced by the exclusion of the evidence in question.
We think the judgment should be affirmed. It is so ordered.
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The opinion of the court was delivered hy
Prager, J.:
This is an action for the specific performance of an oral contract for the sale of farm land. The defendants answered asserting the defense of the statute of frauds. The plaintiff-appellant is Richard Walker who will be referred to in this opinion as Walker or plaintiff. The defendants-appellees are Bernard F. Ireton and his wife, Marjorie J. Ireton. Mrs. Ireton was not directly involved in the transactions between her husband and Walker. In this action we will refer to the defendant, Bernard F. Ireton, as defendant or Ireton. The district court conducted an extensive pretrial conference, following which a pretrial order was prepared summarizing the pleadings and setting forth stipulations of the parties and the plaintiff’s contentions. The defendants then filed a motion for summary judgment on the ground that plaintiff was not entitled to specific performance as a matter of law because of the application of the statute of frauds. The trial court sustained the defendants’ motion for summary judgment and the plaintiff has appealed.
For the purpose of determining this appeal we will assume as true the stipulations of the parties, the factual contentions of the plaintiff, and the factual allegations set forth in the affidavit of plaintiff which was filed in response to the motion for summary judgment. Furthermore, in construing the facts we will adopt all reasonable inferences in support of Mr. Walker’s position. The factual circumstances are not really in dispute and are essentially as follows: Sometime during the month of July 1973 Walker and Bernard Ireton commenced negotiations for the purchase of the Ireton farm which consisted of 160 acres in Saline county. Prior to this time Walker had only a speaking acquaintance with Bernard Ireton and did not know Mrs. Ireton. In response to a call from Ireton, Walker went to the Ireton farm where he was told that Ireton would sell the farm for $30,000. About a week later Walker advised Ireton that he would accept the proposal for sale at a price of $30,000. Ireton was to farm the crop land on shares and was to pay the real estate taxes through the year 1973. Agreements were made in regard to preparing and seeding the ground for alfalfa and for the cutting and storage of the prairie hay in the pasture. Walker was to be permitted to spray the trees in the pasture to kill them. It was agreed that Walker was to receive full possession of the farm in January 1974. Both Mr. and Mrs. Ireton agreed to the terms of the sale. The preparation of a written contract was discussed and it was agreed that one was to be executed. Ireton stated that he wanted to wait until he could see his tax man to find out how to take the money before preparing a written agreement. A week or so later Ireton stated to Walker that he had sold the farm too cheap but was not going to back out of the agreement. Ireton asked for another $500 on the purchase price to compensate him for alfalfa and because he intended to leave the air conditioner, drapes, and carpet in the house. Walker agreed to an increased sale price of $30,500. The purchase price was to be paid as follows: $50 on July 30, 1973; $7,612.50 on or before September 30, 1973; and $22,-837.50 on or before January 1, 1974. The Iretons were to continue to live in the house until January 1, 1974, when Walker was to take complete possession. Mr. and Mrs. Ireton approved the terms of the sale and Walker again suggested that a written contract be prepared. Ireton stated that his word was good and it would be prepared later. Ireton advised Walker of a broken lateral in the septic system and suggested that Walker make arrangements to connect onto the rural water system. Walker also agreed to buy the range in the house for $25. On July 30, 1973, Walker delivered his $50 check to Ireton. This check was never endorsed or cashed. On at least four subsequent occasions thereafter Walker attempted to convince Ireton that a written contract was needed to complete the agreement. At one time Walker took a written contract to the Iretons to be signed. On each occasion Ireton said that a written contract was not needed since he was honest. A written contract was never executed.
In August of 1973 Walker obtained the abstract of title to the property from Mrs. Ireton. Walker had it brought up to date and examined by his attorney at a cost of $36 for extension of the abstract and a $75 attorney fee for its examination. These sums were apparently paid by Walker. In September 1973 Walker took a hay rake to the property and left it in the pasture. Thereafter further differences began to occur. Ireton told Walker that their new home then being constructed would not be completed by January 1, 1974. Walker agreed that the Iretons should remain in possession until a later date after the house was completed. In late August 1973 Ireton offered Walker $200 to cancel the agreement. Walker declined the offer saying that at that time he had no other place to go. It should be noted that Walker planned to utilize the property as a home and place to breed and train thoroughbred horses. Prior to negotiating with Ireton, Walker had purchased another farm on contract but the Iretons’ farm was larger and better situated for Walker’s purposes. After making the oral contract with the Iretons, Walker sold the other farm because he could not afford two farms.
Sometime during this period Walker saw Mrs. Ireton and asked why they had not cashed the $50 check which was given as a down payment. Mrs. Ireton said there was no hurry and that her husband had some funny ideas and she had to go along with them. Walker sent a man out to plant some alfalfa and Ireton sent the man away saying that he, Ireton, did not then have time to plant it and he would call him when he had time. On September 28, 1973, Walker tendered Ireton a check for $7,612.50, that sum being the second installment under the oral contract. At this time Ireton refused the payment and said that he was backing out of the oral agreement. Ireton said that he supposed Walker would have him in court. Ireton offered Walker the $50 check which had been received in July and Walker refused to take the check back. After this Walker offered the check to Mrs. Ireton which she refused but said she would pay the abstract expense and damages. Subsequently Walker was evicted from premises which he had leased for breeding and training his horses. In September 1974 Walker filed this action for specific performance.
At the pretrial conference the parties agreed to be bound by certain factual stipulations. It was agreed that the $50 check delivered by Walker to Ireton dated July 30, 1973, was not signed by the defendants; that Walker incurred an expense of $36 for bringing the abstract up to date; that Ireton did not accept or sign the check which was tendered by Walker on September 28, 1973; that a short time after September 28, 1973, Ireton offered to pay the abstract expense and “damned little damages” or words to that effect. The parties further stipulated that there was no writing or memorandum of any kind purporting to be an agreement or contract signed by either of the parties; that the Iretons had never delivered complete possession of the property to Walker; and that Walker had made no permanent improvements on the property. The parties from the beginning contemplated that a written agreement was to be prepared later covering all of the various oral agree ments of the parties pertaining to the agreed purchase price; delivery of possession; Walkers right to mow, bale, and store prairie hay and to spray trees; storage of crops; and the division of wheat.
As stated above the Iretons based their motion for summary judgment on the ground that the oral contract was not enforceable because of the statute of frauds (K. S. A. 33-106) which provides in substance that no action shall be brought to charge a party upon any contract for the sale of lands “unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, . . The trial court sustained the Iretons’ motion for summary judgment dictating into the record findings of fact and conclusions of law. In ruling on the motion the trial court accepted the plaintiffs factual contentions as true. For purposes of summary judgment the trial court took as established the plaintiff’s contention that there was an oral agreement for the sale in accordance with the terms suggested by plaintiff. The court then considered Walker’s contention that the statute of frauds was not available as a defense on the basis of partial performance, fraud, waiver, estoppel or ratification. The trial court concluded that there were not sufficient equities in the case to justify the court in taking the case out of the statute of frauds. The trial court found that this was a classic case of an oral contract for the sale of land, and because of the statute of frauds the oral contract was not enforceable. Following the trial court’s order sustaining the Iretons’ motion for summary judgment, Walker appealed to this court.
On this appeal Walker has asserted ten points of claimed error which involve two basic issues: (1) Was summary judgment prematurely granted because there were genuine issues of material fact undetermined at the time the summary judgment was entered; and (2) did the trial court err in refusing to take the case out of the application of the statute of frauds because of equitable considerations. In this opinion we will discuss these issues so as to include all of the various points raised on the appeal.
On the entire record before us we have concluded that the case was ripe for summary judgment. The trial court in granting summary judgment accepted as true all stipulations of the parties and Walker’s factual contentions. Since the court proceeded on this basis, it cannot be said that there were genuine issues of material faot undetermined which precluded the entry of summary judgment. The plaintiff Walker had a full opportunity to file his affidavit in opposition to the Iretons’ motion and to present at the pretrial conference his contentions as to what the facts of the case were from his point of view. He did not suggest to the trial court nor does he suggest on this appeal that there are other pertinent facts which the trial court should have considered in passing on the motion for summary judgment. Under the circumstances the motion for summary judgment presented a clear-cut question of law for determination: Did the equities of the case ¡require the trial court to remove the statute of frauds as a defense to the aotion for specific performance of the oral contract?
We turn now to a consideration of the vital issue in the case, whether equitable considerations prevented the statute of frauds from being asserted as a defense to the aotion on the oral contraot. Counsel for Walker takes the position that the statute of frauds should be held to be inapplicable as a mater of law on alternative theories of fraud, estoppel, acquiescence, waiver, ratification, inconsistency in conduot, or partial performance. In his brief counsel for Walker has cited a number of Kansas decisions which have approached this statute of frauds question from these various angles, using different terminology in particular cases.
In determining this case it would be helpful to consider some of the basic principles of law which have been applied in our cases involving oral contracts for sale of land where the statute of frauds was asserted as a defense. Literally applied K. S. A. 33-106 bars any action on an oral contract for the sale of land. Shortly after the original statute of frauds was enacted in England, courts of equity refused to apply the statute in certain cases where the purchaser under the contract in reliance upon the oral agreement performed acts required by the contract to such an extent as to make it grossly unjust and inequitable for a court of equity to refuse to enforce the oral agreement. Throughout our judicial history the courts of Kansas have enforced oral contracts for the sale of land because of equitable considerations in many cases. In 1872 in Edwards v. Fry, 9 Kan. 417, Justice Brewer upheld the specific performance of an oral contract for the sale of land where a vendee in possession of the land paid a portion of the purchase price and made valuable and lasting improvements on the land. In the course of the opinion Justice Brewer relied in part on the rule that a party who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is •bad, and that he is entitled to treat those acts as if it had never existed. From' the beginning the basis for removal of a case from application of the statute of frauds has been the reliance by one of the parties to the oral contract to his detriment under circumstances where gross injustice would result -unless the oral contract was enforced. In Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83, this court again emphasized reliance as the basis for relief from a strict application of the statute of frauds in the following language:
“The ground upon which a court, notwithstanding the statute of frauds, may compel the complete performance of an oral contract for the sale of real estate, which has been partly performed, is that such a decree may be necessary in order to avoid injustice toward one who in reliance upon the agreement has so altered his position that he can not otherwise be afforded adequate relief.” (Syl. 1.)
In other cases this court in dealing with oral contracts within the statute of frauds has applied the following principles of law:
(1) The statute of frauds does not render the oral contract void. It is valid for all purposes except that of suit. (Weld v. Weld, 71 Kan. 622, 81 Pac. 183; Rice v. Randolph, 111 Kan. 73, 206 Pac. 314.)
(2) Since the contract is one which cannot be enforced, no action for damages will lie for its breach. (Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Leis v. Potter, 68 Kan. 117, 121, 74 Pac. 622; Evans v. Lynch, 200 Kan. 331, 436 P. 2d 867.)
(3) The statute of frauds was enacted to prevent fraud and injustice, not to foster or encourage it, and courts will, so far as possible, refuse to allow it to be used as a shield to protect fraud and as a mean's to enable one to take 'advantage of 'his own wrong. (Hazen v. Garey, 168 Kan. 349, 212 P. 2d 288; Powell v. McChesney, 170 Kan. 692, 228 P. 2d 925.)
(4) Where it is sought to enforce an oral contract for the sale of an interest in real estate on the grounds that it has been performed by the party seeking to enforce it, it must appear that a failure to enforce would amount to a fraud against the party. (Jay v. Ellis, 135 Kan. 272, 10 P. 2d 840.)
(5) Absent compelling equitable considerations an oral contract within the statute of frauds will not be specifically enforced. (Engelbrecht v. Herrington, 103 Kan. 21, 172 Pac. 715; Jay v. Ellis, supra.)
(6) Part performance of an oral contract will not take the case out of statute where the performing party can be compensated in money. (Gates v. Syndicate Oil Corp., 132 Kan. 272, 295 Pac. 649; Engelbrecht v. Herrington, supra.)
(7) Payment of the purchase price alone is not sufficient part performance to take a case out of the statute of frauds. Since the money can be recovered back by action, no fraud will be accomplished if the oral contract is not enforced. (Edwards v. Fry, supra; Engelbrecht v. Herrington, supra; Riffel v. Dieter, 159 Kan. 628, 157 P. 2d 831.)
(8) Delivery of possession of the land alone without the making of improvements is not sufficient to take a case out of the application of the statute of frauds. (Baldridge v. Centgraf, supra.)
In dealing with statute of frauds cases courts throughout the country have often shifted their approach to the problem from a theory of part performance, to one of fraud, to one of estoppel. Recause of this confusion in the cases the American Law Institute in 1973 adopted a tentative draft to the Restatement 2d, Contracts, to clarify the legal principle and to make it more understandable. Specifically, we note §§ 197 and 217A of the Restatement 2d, Contracts (Tentative draft 1973), which provide as follows:
“§ 197. Action in Reliance; Specific Performance. A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.”
Ҥ 217A. Enforcement by Virtue of Action in Reliance.
“(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.
“(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are influential:
“(a) the availability and adequacy of other remedies, particularly cancellation and restitution;
“(b) the definite and substantial character of the action or forbearance in relation to the remedy sought;
“(c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;
“(d) the reasonableness of the action or forbearance and the misleading character of the promise.”
We have not specifically mentioned or approved §§ 197 and 217A in our prior decisions. We have, however, recognized and applied in other cases a similar provision found in § 90 in the Restatement, Contracts, which sets forth the doctrine of “promissory estoppel.” (Southwestern College v. Hawley, 144 Kan. 652, 62 P. 2d 850; Greiner v. Greiner, 131 Kan. 760, 293 Pac. 759; Marker v. Preferred Fire Ins. Co., 211 Kan. 427, 506 P. 2d 1163; Kirkpatrick v. Seneca National Bank, 213 Kan. 61, 515 P. 2d 781.) In our judgment sections 197 and 217A of Restatement 2d, Contracts (Tentative draft 1973), are clear and direct statements of the principles of law to be applied in determining whether or not an oral contract should be removed from the application of the statute of frauds and enforced by a court on equitable principles. They are based upon the equitable doctrine of reliance which is the fundamental theory upon which all of our prior oases are founded.
In determining the result in this case we will apply these sections to the factual situation in the record now before us. We have concluded that under all the facts and circumstances equity does not require the statute of frauds to be removed as a defense to this action for specific performance of the oral contract. Here there is no claim that there was any relationship of trust or confidence between the parties. There are no allegations or evidence of false misrepresentation of existing facts. The worst which can be said is that Ireton repeatedly promised that he would perform the oral contract and that he would enter into a written contract to evidence the same. It was stipulated that the parties understood a written contract was to be prepared. Ireton simply refused to sign a written contract on four or five different occasions. Although Walker made a $50 down payment he never took possession of the land involved and made no improvements thereon. Walker placed a hay rake on one of the pastures of the farm but this could not be considered a delivery of possession of the land.
The acts of reliance which Walker has asserted are limited by the record to delivery of the $50 check as an installment on the purchase price, payment of a $36 abstract expense and a $75 attorney fee for an abstract examination, the placing of a side-delivery hay rake on a pasture in September 1973, and the fact that Walker sold a farm near Hedville which he had recently purchased in reliance on Ireton’s promise to sell his farm. The question is whether or not these acts of reliance are sufficient to require a court to remove the bar of the statute of frauds. We have concluded that taken together they are not sufficient to justify specific performance of the oral contract. The fact that Walker sold another farm in expectation that the Iretons would sell their farm to him does not justify specific performance under the circumstances of the case. As a general rule an act which is purely collateral to an oral contract, although done in reliance on such contract is not such a part performance as to authorize the enforcement of the contract by a court of equity. (81 C. J. S. Specific Performance, § 54; Jones, v. Linder, [Mo. 1952] 247 S. W. 2d 817.) An exception is recognized, however, where the agreement was made to induce the collateral act or where the collateral act was contemplated by the parties as a part of the entire transaction. (McKinley v. Wilson, [Tex. Civ. App. 1906] 96 S.W. 112.)
In the present case the plaintiff Walker does not contend that he advised the Iretons of his intention to sell the Hedville farm in advance of the sale or that the Iretons had any knowledge concerning the sale of the Hedville farm until after it had already been sold. Furthermore, Walker does not contend at any place in the record that he lost money on the resale of the Hedville farm to others. We consider the resale of the Hedville farm by Walker to others as a matter wholly collateral to the Ireton contract and not within the contemplation of the parties nor within the scope of any understanding between Ireton and Walker. In support of this position is Dunn v. Winans, 106 Kan. 80, 186 Pac. 748. There plaintiff vendee brought an action for specific performance of an oral agreement to sell certain land. The petition alleged the making of some improvements on the property and further alleged that plaintiff was damaged in the amount of $300 for the sale of his home for the purpose of carrying out the contract with the defendant. This court denied specific performance holding that there had not been sufficient part performance to take the case out of the statute of frauds. The court further held that although specific performance was denied, the vendee was entitled to recover the expenses which were incurred by him for the improvements he made on the property. He was not, however, permitted to recover damages on account of the sale of his former home. Walker is entitled to the return of his $50 check and the cost of bringing Iretons’ abstract up to date on the basis of quantum meruit or unjust enriohment. These expenditures were of benefit to the Iretons and Walker is entitled to restitution for these items. Walker is not, however, entitled to be reimbursed for his $75 attorney fee in obtaining a legal opinion. The Iretons received no benefit from this expenditure.
Where a vendee is denied specific performance under an oral contract for the sale of land his right to restitution is restricted to expenditures or services which benefitted the vendor on the basis of quantum, meruit. (37 C. J. S. Statute of Frauds, § 255; Restatement, Contracts, § 355; Heine v. First Trust Co., 141 Kan. 370, 41 P. 2d 767; Sinclair Refining Co. v. Vaughn, 135 Kan. 82, 9 P. 2d 995 [consideration paid]; Nelson v. Street, 148 Kan. 587, 83 P. 2d 793 [services rendered]; Dunn v. Winans, supra [improvements on the property].)
Comment b under 217A states that the reliance of the promisee must be foreseeable by the promisor and enforcement must be necessary to avoid injustice. In this case equity and justice do not require specific enforcement of the oral contract, nor do they require reimbursement to Walker for the sale of the Hedville farm.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal involves the custody of a child and arose out of the following facts.
Harold E. May brought an action in the district court of Jefferson county for a divorce from Anna F. May. The action was tried, and on February 5, 1945, that court rendered its judgment and awarded to Anna F. May the custody of their two minor children, Dorothy Lorraine and Robert Ken.
Anna F. May died on May 19,1946, and on May 31,1946, Harold E. May filed his motion in the above-mentioned action setting forth the death of Anna F. May and that he was the surviving parent and entitled to the care and custody of the above named children, and that he was able to provide a good home for them and would care for them properly, and he prayed that the order of February 5, 1945, be modified and the care and custody of the children be awarded to him.
On June 3, 1946, Sylvia Tenpenny filed an unverified motion in the same action, setting forth that she was a sister of Anna F. May; that the children were in the legal custody of their mother at the time of her death; that it was for the best interests of the children that they remain in the home they had been occuping in Perry, Kan.; that Dorothy Lorraine May was seventeen years of age and capable of taking care of the home; that it was the desire of the children that they be permitted to remain in the home in Perry and that petitioner was willing “to accept charge of said .children, and is willing that their care and custody be given to her.” She prayed for such an order and further that Harold E. May be ordered to pay her attorney’s fees and an allowance for the children.
-The court heard some evidence■ and, as disclosed by its journal entry of judgment, found that Anna F. May died May 19, 1946, and at that time was, in accordance with the decree of February 5, 1945, in custody of the two minor children; that Harold E.- May was the surviving parent; that he was not an unfit person to have the custody of Robert Ken May; that Sylvia Tenpenny should be awarded the custody of Dorothy Lorraine May; Harold E. May should pay to the clerk of the court the sum of $30 per month for the support of Dorothy Lorraine May, and judgment was entered accordingly.
From that judgment Harold E. May appealed to this court, specifying error in the refusal of the trial court to award custody of Dorothy Lorraine May to him.
We shall not review the evidence. We do note that assuming Sylvia Tenpenny had any right to file any motion in the action, there was no allegation in her motion that Harold E. May was not a fit and proper person to have the care and custody of his children, nor any direct allegation that their best interests would not be served were they under his care and custody. Neither was .there any evidence that Harold E. May was not a fit and proper person to have the care and custody of the children. We note also that the court found him to be a fit and proper person to have the care and custody of Robert Ken May, and awarded him such custody, but without any finding whatever as to the child’s best interest demanding it, awarded the custody of Dorothy Lorraine May to Sylvia Ten-penny.
Many cases have been decided in this court involving various questions of the right of custody of a minor child, and in many of the decisions may be found statements of. rules applicable to particular situations. We shall make no general review of those decisions. In In re Hollinger, 90 Kan. 77, 132 Pac. 1181, we considered . a case where the facts were essentially like those in the case at bar, and it was there held:
“Upon the death of a parent, to whom upon the granting of a divorce the custody of a child has been awarded, the right to its custody accrues to the other parent, if a suitable person for that purpose.” (Syl. ¶ 2.)
The precise question-presented in this appeal was before this court in Crews v. Sheldon, 106 Kan. 438,186 Pac. 498, where it was said:
“Since the trial court found that the father was a fit person in all respects to have the custody of his infant son, and the mother was dead, the law of the land accords with the law of nature, and there is no just law under the sun which would deny him that custody, no matter how reluctantly an affectionate grandparent may yield thereto.” (Citing cases.) (1. c. 439.)
And where it was held:
“Rule followed that where a divorced parent has been awarded the custody of a child and such parent dies, the custody of the child passes to the other parent when the latter is a fit person to be entrusted with the care and nurture of such child.” (Syl. ¶ 2.)
In Denton v. James, 107 Kan. 729,193 Pac. 307, it was held:
“By statute the father and mother are natural guardians of their child. If one die, natural guardianship devolves on the other. The other then has the right to custody of the child, and .the welfare of the child is best subserved by leaving it with its natural guardian until it is demonstrated that the parent is . unfit to discharge the duties which are correlative to his right.” (Syl. ¶ 2.)
In Jones v. Jones, 155 Kan. 213, 124 P. 2d 457, the factual situation was somewhat different than in the one now before us, but the case is analogous to this one. The rule which is applicable here is there stated as follows:
“It is firmly established by repeated decisions of this court that a parent who is able to care for a child and desires to do so, and who has not been found to be an unfit person to have the custody of the child, in an action or proceeding where that question is in issue and upon competent evidence, is entitled to the custody of the child as against grandparents or others who have no permanent legal right to the custody of the child, even though at the time they are giving the child suitable care and have acquired an attachment for the child. See Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968; In re HolliNger, 90 Kan. 77, 132 Pac. 1181; Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987; In re Brown, 98 Kan. 663, 159 Pac. 405; In re Zeigler, Petitioner, 103 Kan. 901, 176 Pac. 974; Smith v. Scheuerman, 133 Kan. 348, 299 Pac. 616; Andrews v. London, 134 Kan. 641, 7 P. 2d 91, and cases cited therein.” (l. c. 219.)
Under the rule of the above cases, it appears that in the instant case the mother to whom custody was awarded is dead; that the husband is able to take care of the children and desires to do so; that he has not been found to be an unfit person, but on the contrary has been found to be a fit person to have custody and has been awarded custody of one child; and that he is entitled to custody as against the sister of his deceased wife, who has no legal right to the custody of the child. ■ It follows that the trial court erred in awarding the custody of Dorothy Lorraine May to Sylvia Tenpenny and in rendering judgment that Harold E. May pay the clerk of the court the monthly payment for her support.
The judgment, insofar as the custody and support of Dorothy Lorraine May is concerned, is reversed and set aside, and the cause is remanded with instructions to render judgment in favor of Harold E. May, awarding him the care and custody of Dorothy Lorraine May. | [
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The opinion of the court was delivered by
Harman, C.:
Odessa Buckner was convicted by a jury of aggravated assault. Buckner was placed on five years’ probation. She now appeals.
The incident in question occurred in front of appellant Buckner’s residence in Topeka on May 22, 1974, at about 11:00 a. m. Mrs. Buckner had been having difficulty with the local newspaper company and its carrier over the delivery of her paper with the result the company decided it could no longer make carrier delivery to her. According to the state’s evidence, on the morning in question, a representative of the paper, a Mr. Kelly, went to the Buckner home to return appellant’s check for her subscription. Appellant refused to accept the check so Kelly slipped it through a crack in the door. As he was returning to his car appellant called for him to stop, saying she wanted to talk with him. When he did not stop appellant came outside her house with a .22 caliber pistol in her hand. She approached Kelly, grabbed some papers from his shirt pocket and began shooting at him with the pistol. She was talking in an angry tone of voice and had the gun pointed toward Kelly while shooting. Kelly was frightened and ran to his car and drove away as quickly as possible. A next door neighbor who witnessed the episode testified appellant fired four shots at Kelly. Kelly drove immediately to the police station where he discovered a fresh cut in one of the tires on his car as well as a broken taillight.
The same morning, a person who identified herself as Mrs. Buckner, telephoned for the head of the newspaper company and told his secretary she had had a shoot out with Mr. Kelly, had shot at him and would do so again if he came back. Similarly the director of public affairs for the company received a call from someone identifying herself as Odessa Buckner. The caller complained that Mr. Kelly had been talking to the neighbors about her and that she had shot at him. The caller was upset about not having received her newspaper.
Later the same day a police detective went to appellant’s home with a search warrant for her pistol. After conversing over the telephone with her then attorney appellant showed the officer where the pistol was. The weapon was fully loaded and with it was a container holding five spent cartridges. Thereafter appellant gave a signed statement to the detective in which she stated she “got mad’’ when Mr. Kelly returned her check and said they weren’t going to deliver her paper any more and that she got her pistol, went outside and walked up to him and shot the gun two or three times in the air.
At trial appellant testified she had had trouble with-paper delivery in 1968 and later in 1973 right up to the time of the shooting incident; that when Mr. Kelly made no response to her request to come back and talk to her she got her gun; she didn’t intend to shoot him but was going to stop him; she never pointed the gun at him; because he had ignored her she knew that if she got her gun she could get the matter into court; she wanted to get Kelly’s attention; she pointed the gun at his car and fired three times; she knew firing the gun was wrong but she wanted peace and consideration.
Appellant first complains the trial court erred in admitting over her objection the written statement obtained by the detective. Counsel asserts the statement was not voluntarily made but was the result of her paranoid state of mind, her inexperience with criminal law and procedure and her inability to appreciate tire consequences which might result from any statement.
An out of court suppression hearing was held on the statement. The officer taking it, Detective Beightal, testified he gave appellant the Miranda warning. governing her constitutional rights, detailing them, and appellant said she understood those rights; that her eighty-two year old husband was present in their living room at the time, and appellant had just previously talked to her attorney. In State v. Watkins, 219 Kan. 81, 547 P. 2d 810, 824, we quoted principles for determining the voluntariness of a statement:
“ ‘In determining the voluntariness of a statement made by an accused the totality of the circumstances leading to and accompanying the giving of the statement should be considered. . . . Failure to have counsel present does not ipso facto make the statement involuntary. It depends upon the surrounding facts and circumstances. . . . Factors generally considered as bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary.’ ” (p. 97.)
In addition to tbe detective’s testimony the trial court had before it a report by a psychiatrist, Dr. Russell O. Settle, of the Court Services Division of the Shawnee County Mental Health Center, to whom appellant had been referred for examination as to her competency to stand trial. This report noted certain questionable mental conditions at times in appellant’s more recent life, including a degree of paranoid thought disorder wherein she believed herself to be the victim of persecution by neighbors and relatives, but it concluded she was aware of the nature and purpose of the proceedings against her and the function of various personnel connected with a jury trial and was mentally competent to undergo trial. The report further stated appellant’s contact with reality was intact except in the area of her delusional beliefs, which were described in detail.
The test for determining whether a suspect is so mentally incompetent as to preclude his ability to make a voluntary confession is the same as the test for determining his criminal responsibility for committing the crime (State v. Pyle, 216 Kan. 423, Syl. para. 10, 532 P. 2d 1309). In Kansas this is the M’Naghten test, that is, whether the accused was capable of distinguishing between right and wrong at the time and with respect to the act committed (Van Dusen v. State, 197 Kan. 718, Syl. para. 2, 421 P. 2d 197). Appellant does not now nor did she at trial, contend she did not know right from wrong in her act of using the pistol, which incident' occurred shortly prior to the taking of the statement.
Notwithstanding appellant’s contention to the contrary, it seems clear the trial court did not ignore, but considered, the relevant evidence on the voluntariness of appellant’s statement. It concluded the statement was admissible as one voluntarily and intelligently given. There was no evidence of coercion, mental or physical, in its making and under all the evidence the court could reasonably have reached the conclusion it did. When the trial court conducts a full preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, determines it was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal accepts that determination if it is supported by substantial competent evidence (State v. Brown, 217 Kan. 595, Syl. para. 4, 538 P. 2d 631).
Appellant asserts error in the trial court’s refusal to admit into evidence a memo prepared by Detective Beightal in an investigation he made of an incident in which appellant was involved about a year prior to that in question here. Although no showing is made in the record as to the contents of the memo, and appellant might well be foreclosed from raising the point for that reason, she says in her brief the detective included in the memo his opinion of appellant’s mental condition at that time, which the-jury should have had. In denying admission of the memo the trial court ruled that appellant might cross-examine the detective concerning its contents. This appears to have been done, the detective did testify as to his opinion of appellant’s mental condition upon that occasion and the subject was fully developed before the jury. Nothing prejudicial to appellant resulted in the matter complained of.
Appellant contends the assistant district attorney misstated certain facts in his closing argument. The judgment cannot be disturbed on this score for any of three reasons: (1) The record does not contain the argument asserted now to be erroneous; (2) so far as we can tell no objection was made at trial level and it is being asserted for the first time upon appeal; (3) in her brief appellant does specify that which she now deems to be inaccurate but the state responds in its brief with evidence offered at trial which demonstrates the accuracy of the challenged statements.
Appellant next asserts error in the trial court’s failure to instruct on the lesser included offense of assault. The point has no merit. K. S. A. 21-3107 (3) provides: .
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
This duty arises only where clearly required by the evidence and where the defendant might reasonably be convicted of a lesser offense if the instruction is given (State v. Masqua, 210 Kan. 419, 502 P. 2d 728).
Assault (K. S. A. 21-3408) is a lesser included offense under aggravated assault (K. S. A. 21-3410). As applicable here aggravated assault is assault committed with a deadly weapon (21-3410 [a]). It is undisputed that appellant used a deadly weapon, a gun, in the affray. By her own testimony she was going to stop Mr. Kelly, get his attention and get the matter into court. She admitted using the gun and firing several shots. There was no way appellant could properly have been convicted of assault had an instruction thereon been given. Under the evidence she was either guilty of aggravated assault or not guilty of anything.
Finally, appellant contends the evidence was insufficient to support the conviction. No argument beyond the bare assertion is presented and from the evidence already recited it is apparent none can be made.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by defendant Janice Griffin a/k/a Janice Thompson from a conviction by jury trial of the crime of selling marijuana in violation of K. S. A. 1975 Supp. 65-4127b (b) (3).
The offense occurred on November 27, 1974, in Dodge City, Kansas. On that date, according to evidence presented by the state, the defendant and her companion Mike Tabor sold marijuana to K. B. I. Narcotics Division special agent Dale Finger. Following this transaction, both were charged with selling marijuana. Tabor pled guilty and was awaiting sentencing at the time of the defendant’s trial.
At trial, the state’s sole witness was special agent Finger. His account of the sale differed from the testimony of Tabor and the defendant, who testified in her own behalf. The jury apparently believed Finger.
According to Finger’s testimony, the defendant was very much involved with the sale. Finger testified that she had the marijuana in her possession for part of the evening and handed it to him when he offered the money; that both she and Tabor used the pronoun “we” in the conversation relating to the marijuana; and that she apologized for the small quantity of marijuana in the bags, telling Finger, “We will make it up to you. We have a new shipment coming in.”
The testimony of the defendant and Tabor was to the effect that she had no involvement with the sale. According to their testimony, Tabor set the price, kept the money and passed it on to the owner of the marijuana. The defendant did not discuss a sale or sale price, did not handle the money and did not have the marijuana in her possession. No shipment was coming in, and none was discussed.
After the state and defense had rested their case, the court and counsel retired to chambers to take up matters relating to the instructions. Defense counsel objected to some instructions and requested additional instructions. The appellant’s three specifications of error relate to the district court’s overruling these objections and requests for additional instructions.
The appellant’s first contention is that the district court’s refusal to instruct on the definition of “sale” substantially prejudiced her right to a fair trial.
The district court need not define every word or phrase in an instruction. Only where it appears that the instructions as a whole would mislead the jury or leave them to speculate should additional terms be defined. See State v. Sparks, 217 Kan. 204, 535 P. 2d 901. A term which is widely used and which is readily comprehensible to the average person without further definition or refinement need not have a defining instruction. State v. Schoenberger, 216 Kan. 464, 532 P. 2d 1085.
A “sale” of drugs is given a much wider meaning than a “sale” in the context of commercial law. Questions of the possession and passing of legal title, the existence of consideration, and who possessed the drugs sold are not regarded. A drug “sale” encompasses such transactions as barter, exchange or gift, or offer therefor. State v. Nix, 215 Kan. 880, 529 P. 2d 147; State v. Woods, 214 Kan. 739, 522 P. 2d 967.
Instructing on the definition of a marijuana “sale” would have been desirable since the term’s meaning in this context varies somewhat from the commonly understood meaning of a commercial “sale.” However, failure to so instruct was not prejudicial to the appellant. The commonly understood meaning of “sale” as it is widely used encompasses a narrower range of transactions than a “sale” of drugs. The absence of a defining instruction, therefore, was to the appellant’s advantage. Failure to so instruct did not substantially prejudice the right of the appellant to a fair trial.
The appellant next contends the district court erred in not instructing on the offense of delivery of marijuana. K. S. A. 1975 Supp. 65-4127b (a) (3). The appellant argues delivery of marijuana is a lesser included offense of sale of marijuana; as such, under the evidence of this case, the district court had an affirmative duty to instruct on delivery.
The judge’s duty to instruct on lesser included offenses is set out in K.S.A. 21-3107 (3):
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
In Kansas, a crime may be a lesser included offense of the crime charged if it is: (1) a lesser degree of the same crime, (2) an attempt to commit the crime charged, (3) an attempt to commit a lesser degree of the crime charged, or (4) a crime necessarily proved if the crime charged were proved. K. S. A. 21-3107 (2). Only the latter possibility appears applicable in the instant case. Delivery of marijuana would be a lesser included offense of sale of marijuana if it were necessarily proved upon proof of sale. If delivery of marijuana requires proof of an element not necessary to proof of sale of marijuana, it is not a lesser included offense of sale. See State v. Woods, 214 Kan. 739, 522 P. 2d 967; Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L. J. 40 (1976).
“Delivery” is defined in K. S. A. 65-4101 (g) as “. . . the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” In State v. Nix, supra, we stated we were not constrained to restrict the definition of “sale” discussed in State v. Woods, supra. That definition of “sale” in a drug context . . includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.’ ” State v. Nix, 215 Kan. 880, 882, 529 P. 2d 147, 150-51. Under this broad definition of sale, each such transaction need not necessarily include an actual, constructive or attempted transfer of a controlled substance. Consequently, we hold delivery of marijuana is not a lesser included offense of sale of marijuana, and the district court’s refusal to instruct on delivery was not error.
The appellant’s final contention is that the district court erred in refusing to include the word “intentionally” in the instruction on aiding and abetting.
Instruction number six given by the court was as follows:
“You are instructed that under the laws of this state, anyone who counsels, aids or assists another in the commission of any crime, either by conspiring, counseling, advising or assisting in any manner in the preparation or completion thereof, is equally guilty with the one actually committing the crime without regard to the extent of their participation and is guilty of such crime as though he had-himself, without assistance, committed the crime.
“The mere presence of a person who in no way counsels, aids or assists others in the commission of a crime by conspiring, counseling, advising or assisting in any manner in die preparation or completion thereof, does not make such person guilty of the crime.”
Clearly, some intentional act is required for one person to be criminally responsible for a crime committed by another. 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.” (emphasis added)
PIK Crim. 54.05 provides:
“A person is responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime.” (emphasis added)
See State v. Schriner, 215 Kan. 86, 523 P. 2d 703.
But instruction number six cannot be considered in isolation from the other instructions. It is fundamental that the propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions. State v. Ingram, 211 Kan. 587, 506 P. 2d 1148. Of the other instructions given, numbers five and seven also involved intent.
In instruction number five, the jury was instructed that to establish the charge against the appellant, it must be proved:
“1. That the defendant sold marijuana (Cannabis sativa L.);
“2. That she did so willfully, knowingly and intentionally; and
“3. That she did so on or about the 28th day of November, 1974, in Ford County, Kansas.” (emphasis added)
In instruction number seven the jury was informed that:
“There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.” (emphasis added)
Instruction seven is merely a rule o£ evidence and does not purport to charge the jury to find criminal intent necessary for conviction. See, State v. Clingerman, 213 Kan. 525, 516 P. 2d 1022. Instruction five informed the jury that before the defendant could be found guilty they must find she acted willfully and intentionally. The first paragraph of instruction six informed the jury of the elements of aiding and abetting; the second paragraph, that appellant’s mere presence did not make her guilty of a crime.
We agree with the appellant that the district court should have included the word “intentionally” in the aiding and abetting instruction consistent with K. S. A. 21-3205(1) and PIK Crim. 54.05. However, considering the instructions as a whole, we think the jury was adequately informed on the element of intent. The district court’s failure to include the word “intentionally” in instruction number six did not amount to reversible error.
The judgment is affirmed. | [
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