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Error from Kingman district court. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action on a sheriff’s bond for damages for the refusal of the officer to execute an attachment order. Judgment went for the defendants, and error has been prosecuted to this court. William Hamilton, a merchant, was largely indebted. The plaintiff in error, the Phelps, Dodge & Palmer Company, was one of Ms creditors. He preferred some of Ms other creditors by executing to them chattel mortgages on his stock of goods and putting them in the possession of the mortgaged property. The amount of these mortgages largely exceeded the value of the goods upon which they were given. The plaintiff in error brought an action against Hamilton and procured an order of attachment, of his property. It placed the writ in the hands of the sheriff, with directions to levy upon the mortgaged goods. It also tendered to him a bond indemnifying him against the consequences of a wrongful levy of the attachment order. He refused to make the levy and refused to accept the bond, not, however, because the latter was not in all respects good, but because the only property pointed out by the attachment creditor and the only property known to belong to the attachment debtor was already in the hands of the debtor’s other creditors under chattel mortgages given on it.
This action of the sheriff raises the question whether that officer is required, upon tender of indemnity, to levy on property pointed out to him by the creditor as belonging to the debtor, notwithstanding he may believe in good faith that it is not the latter’s property, or, being the latter’s property, that it is encumbered with valid liens to an amount equal to or exceeding its value. In the light of both reason and the authorities, this question, we think, is not difficult to determine. Under such circumstances the officer is not required to make the levy. However, if sued for his refusal to make it, he must exonerate himself by proving the facts in his defense. The rule is stated in Murfree on Sheriffs :
“It must be borne in mind that all the systems of trying the right of property and indemnifying the officer are based upon the justice and propriety of protecting him from undue peril in the execution of one of the least agreeable functions of his office. It is, in no respect, the object of these laws to enlarge the rights of plaintiffs or creditors, to enable them to harass third persons under color of legal process or to make the chief ministerial officer of the law the instrument of illegal oppression. The law does not countenance the execution of process against one person, upon property actually belonging to another ; and it is no less its object to protect persons in general in the enjoyment of their property, than to subject that of a debtor to the process of his creditors. . . . It follows, from these considerations, that the tender of an indemnity bond imposes no additional duty on the sheriff. If, notwithstanding such bond, he remains of the opinion that the property in question is not lawfully subject to his process, he may refuse to execute it. He does so, of course, at his peril, but may as freely justify his course by showing that the property was not legally subject to his process, as he could have done if no indemnity bond had been tendered. An officer cannot be legally required to commit a trespass.” (Sec. 613.)
In Mechem on Public Officers, section 756, it is stated:
“Where goods levied upon as those of the defendant are claimed by a stranger to the writ, the officer who surrenders them to the claimant must assume the burden of proving that they were not, in fact, the goods of the defendant, but if this be proved it is a good defense, even though he has been offered an indemnity.”
Many well-reasoned cases sustain the text-writers above quoted : Wadsworth v. Walliker, 45 Iowa, 395, 24 Am. Rep. 788; Mathis v. Carpenter, 95 Ala. 156, 10 South. 341; Dornin v. McCandless, 146 Pa. St. 344, 23 Atl. 245. It did not appear in this last case that indemnity was offered, but the court in its opinion quotes largely from its former decisions, in which it appeared that indemnity was offered. It is proper, however, to say that some of the earlier Pennsylvania cases are not easily reconcilable with the present rule in that state as declared in the later decisions.
The plaintiff in error also raises a question of practice. The averments of the petition in the action below were that “William Hamilton was solvent, and had sufficient property and effects in said county and state on which levy might have been made to have fully satisfied plaintiff’s demand, together with costs.” In defense to the petition the defendant filed a general denial. It is claimed that evidence of the chattel mortgages on the stock of goods was inadmissible under the general denial. This claim is not well founded. It was incumbent on the plaintiff to prove prima facie the attachment debtor’s ownership of the property. This it did by proving Hamilton’s ownership of the stock of goods. Evidence of the fact that such stock of goods was encumbered by valid liens in excess of its value was in direct negation of the liability of such goods to seizure and sale on another claim. There was no evidence whatever that the chattel mortgages were not valid liens.
The judgment of the court below is affirmed.
Johnston, Greene, Pollock;, JJ., concurring. | [
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Error from Lyon district court. | [
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The opinion of the court was delivered by
Dostbk, C. J. :
This was an action of replevin of grain. One Markham was a tenant of Elizabeth Taylor, the defendant in error in this proceeding. He had grown wheat and corn on shares on the leased premises, and the wheat had been harvested and ricked. Part of it had been thrashed and appropriated by the tenant on his share. Dale Nessley & Co., the plaintiffs in error in- this proceeding, were judgment creditors of Markham, the tenant. They levied an execution on the remainder of the wheat and on the corn grown on the premises to satisfy their debt. Mrs. Taylor, the landlady, replevied all the grain, claiming the right to do so by virtue of her lien on it for the payment of rent. Judgment went in her favor, from which judgment error has been prosecuted to this court.
It was not denied that a lien for rent superior to the execution lien existed; but the claim was made that the lien for rent rested on the landlady’s share only, and could be satisfied by setting such share apart to her, and that she could not assert a possessory right, by virtue of her lien, to the whole crop, to the prejudice of the tenant’s creditors. In other words, the contention was made that an accounting could be had on the trial of the replevin action, and so much of the grain as would satisfy the lien for rent could be set aside for that purpose and the remainder be appropriated to the creditors’ demand.
In this state the lessor of farming land has by statute a lien on the whole crop for the rent due him. In Knowles v. Sell, 41 Kan. 171, 21 Pac. 102, effect was given to the statute in a controversy between the landlord and tenant. In Scully v. Porter, 57 Kan. 322, 46 Pac. 313, effect was given to it in a controversy between the landlord and a purchaser from the tenant. However, in that case the purchaser claimed the whole of the crop and not the tenant’s share merely. The existence of the lien of necessity vests in the landlord a right of possession for its enforcement, and, inasmuch as the lien extends to the whole crop, a corresponding right of possession of the whole crop follows.
A case quite like this one is Wilkes v. Adler, 68 Tex. 689, 5 S. W. 497. The statute of Texas gives a lien to landlords in terms quite similar to ours. Cotton grown on leased premises was levied on and sold by a creditor of the tenant. The creditor was held liable to the landlord, despite a claim that enough property remained on the premises to satisfy the latter’s lien.
We do not mean to say that a landlord, for all time and under all circumstances, through the assertion of his statutory lien, can withhold his tenant’s share of the crops from the latter’s creditors. It must be borne in mind that replevin is a possessory action, and that the only right asserted by the landlady in this case was a right of possession. The question whether the creditor could acquire a right of property in the things of which the landlady was possessed was not necessarily involved in the -case. It is not unlikely that, under some one or more of those sections of the civil code entitled ‘1 Proceedings in aid of execution,” the tenant’s share of a crop in the landlord’s possession may be appropriated to the satisfaction of debts. Those sections of the code provide ways in which property lying out of the reach of ordinary legal process may be seized and sold, but in a strictly legal action involving only the right of possession they cannot be given application.
At-tenüon lias been called to section 153 of the code of practice in justices’ courts. (Gen. Stat. 1901, §5388.) That section provides for a sale of either the landlord’s or tenant’s share of crops on process issued by justices of the peace. There is no corresponding provision in the civil code of practice in district courts. Counsel for plaintiff in error says that the section cited evidences the legal policy of the state to subject undivided shares of crops to the.payment of the debts of the owners. Such may be true, but it does not evidence the right of a creditor of the tenant to dispossess the landlord of his possessory lien ■ on the whole crop given to him by statute ; at least, it does not do so as against a possessory action brought by the landlord under the code of practice for district courts, in which code no similar provision is to be found.
It is not decided in this case that a creditor of a tenant may not levy on and sell the latter’s undivided share in the crop. The question whether he may do so is not before us for consideration. It may be that he can do so, and that, after such sale, the purchaser may maintain such proceedings to secure a division of the crop as the tenant might have maintained. All that is decided is that the tenant’s creditor may not resist an action of replevin for the undivided crop, brought by the landlord in the district court, in assertion of his possessory lien.
The judgment of the court below is affirmed.
Johnston, Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Ellis, J. :
The verdict of acquittal as to the first five counts did not absolve the defendants from their amenability under the sixth, because, as applied to this case, the gist of the offense there alleged is the main tenance of a place where intoxicating liquors are kept with an unlawful intent; and while evidence of actual sales of such liquors is admissible as tending to prove such intent, such sales do not of themselves constitute the offense charged.
The contention that proper grounds for the admission of the testimony of Professor Cady, as an expert, were not laid, is without merit. It appeared that his business was that of an analytical chemist; that he had been engaged in that employment as a practitioner and teacher foj' years, and that he possessed special knowledge in relation to the subjects about which he testified. The allegation that the evidence did not sufficiently show where the bottles, the contents of which were analyzed, were kept from the time they were taken from the defendants until they reached Professor Cady, is not borne out by the record. It does show that they were sent to and received by Professor Cady by express, and certainly there is no presumption that they had been tampered with while they were sealed up and in the possession of a common carrier..
As to the instructions of the court, those marked “additional,” if standing alone, might be regarded as objectionable, in that they did not clearly state that the matters therein referred to must be “believed” by the jury beyond a reasonable doubt. But, under the rule frequently enunciated by this court, that all instructions are to be considered together, because the jury were properly advised of the rule in the other instructions, we do- not regard the omission referred to as material, and do not think the jury could have been misled'thereby.
We come now to the consideration of that which we regard the one important question presented to us in this case. Was the evidence sufficient to sustain the verdict ? Or, rather, was it so weak and manifestly insufficient that the judgment of the court below ought to be set aside by this court? The evidence contained in the record is not wholly satisfactory, but that fact alone will not authorize us to disturb the verdict and judgment. It may be remarked, however, that we are not in possession of all of the evidence presented to the jury. For instance, the record shows that certain bottles, some of which contained liquors and others of which were empty, and certain barrels and other articles, were exhibited to the jury without objection. We infer that some of these bottles were filled with the fluid which Professor Cady denominated “light beer,” and. we are not apprised whether the empty bottles viewed by the jury were like those which contained that liquor or not. If they were, the fact that a half-barrel of empty bottles of the same size, shape, color, and with the same labels, was found on the premises of the defendants would be some evidence that the beverage had been consumed at that place. Again, it may be, although we do not so decide, that the form, color and size of the bottles having the label of a brewing company on them would constitute some evidence of their contents, or at least of the purpose for which they were filled, shipped to and received by the defendants.
But, passing this evidence, as to the real character of which we can only make conjecture, were the circumstances, in other respects, sufficient to justify the jury in reaching the conclusion complained of? The jury were properly told that in determining their verdict they could call to their aid such matters of knowledge as are possessed by mankind in general. Do not men generally know that one who engages in an unlawful enterprise usually makes some effort to conceal the real character of it? Would not the finding of liquors concealed about the premises of one charged with keeping them for lawful sale be a strong circumstance tending to show guilt, and, if this be true, would not the fact that the nature of the contents of the bottles was hidden by anonymous labels be evidence of equal weight? Is it not generally known that people engage in business for profit; that beverages which may be lawfully sold have names which serve to identify and distinguish them, and that they will sell better under their real names than under fictitious appellations? Men engaged in a legitimate business advertise their wares. Those who dissemble and suppress information in regard to their goods must have a powerful motive for practicing deception. What other inducement than that of concealment could there be for labeling a beverage manufactured by a brewing company with the unsuggestive title of “All Hail ” ? . By such designation who could imagine what remedial or other qualities the liquor possessed ? Might not a jury properly infer that such name was designed and adopted for the purpose of circumventing the curious and to prevent detection through the efforts of any but the vigilant?
The defendants were arrested in November. We deduce from the testimony that they had been in business but a short time ; still, they had a large stock of these beverages on hand, and a goodly supply of empty bottles. There is nothing in the evidence which would lead the jury to infer that they procured these beverages for their own use, and certainly there is no presumption that such was the fact. Indeed, the circumstance that these goods were commingled with commodities which they avowedly had for sale might be regarded by a jury as tending to show that they were not kept for their own use, but were intended to be disposed of for profit to customers. (Commonwealth v. Keenan, infra.) There was no explanation given of the large quantity of ‘‘ Fine Old Blackberry Cordial ’ ’ which they had on hand, and which was also an intoxicating beverage; though whether it was a wine or brandy we are not advised, as the word “cordial” is not very expressive. Presumably it was a liquor which grew better with age ; else it probably would not have been designated as “fine old blackberry.”
In similar cases other courts have held that convictions upon circumstantial evidence alone should be sustained. In the case of Commonwealth v. Keenan, 148 Mass. 470, 20 N. E. 101, which was an indictment for maintaining a liquor nuisance and for unlawfully keeping intoxicating liquor with intent to sell, the trial court instructed the jury that the finding of an article of merchandise in a place of business where merchandise is for sale would have a tendency to show that it was there for sale. Commenting upon this instruction, the supreme court said :
“ It is now argued that this was an instruction upon a matter of fact. But from the defendant’s request for an instruction to the effect that ’the presence of the article would not tend to show that it was there for sale, it is evident that the judge’s attention was directed to a different point, and that the exception was to allowing the jury to draw the inference, not to the use of words implying that the inference was the proper one.
“It is true in most cases that, when a fact in issue is to be inferred from facts proved, the court cannot instruct the jury as to probabilities or presumptions of fact, but can only determine that, if the jury draw the inference upon the presumptions which they have learned from their experience of life, they will be warranted so far as the court knows, and will not be making a mere guess without adequate data. (Doyle v. Boston & Albany Railroad, 145 Mass. 386, 388, 14 N. E. 461; Commonwealth v. Hayes, 145 id. 289, 14 N. E. 151; Commonwealth v. Briant, 142 id. 463, 8 N. E. 338.)
‘ ‘ But the phrase ‘ would have a tendency to show ’ was not a ruling that there was a presumption of fact; it was simply the phrase which is commonly used to characterize evidence which is admissible to prove a fact in issue.”
In that case there was no direct evidence of a sale of intoxicating liquor, but there was evidence that there was a considerable quantity of beer on hand, and a half-barrel of empty bottles, and that there was some sort of a contrivance to prevent surprise.. The court said in conclusion : “We cannot pronounce the inference that the beer was kept for sale so little warranted by the teachings of experience as to be but a mere guess. ’ ’ The exceptions were overruled, and the j udgment of conviction affirmed.
In Commonwealth v. Gallagher, 124 Mass. 29, the court held, as stated in the syllabus :
“Ón the trial of a complaint for unlawfully exposing and keeping for sale intoxicating liquors, evidence that the officer, on searching the defendant’s premises, which consisted of a front room used as a grocery, and a back room used as a kitchen, found concealed in a table drawer and closet, in the kitchen, liquor, a measure, a tunnel, and glasses, and, in the cellar beneath the kitchen, a bottle of brandy covered with boards and dirt, is sufficient to warrant a conviction.”
Slight circumstances have been held to be sufficient to prove that intoxicating liquors found on defendant’s premises were kept for sale. In Commonwealth v. Murphy, 153 Mass. 290, 26 N. E. 860, it was proved that on the day charged in the complaint a tin pail containing whisky was found on defendant’s premises, which were frequently visited by persons other than the family of the defendant. It was also shown that on the morning of the day charged in the complaint the defendant was seen to enter several times the house opposite his own, and to return' from it to his own house, and that in the house standing opposite a jug of whisky was found. Upon the question of admissibility of this latter evidence the court divided, but a majority held that it was admissible because “it was competent on the question of the intent with which he kept the liquor found in his own house,” and the members of the court all agreed that '£ the weight of the evidence was for the jury.”
In the case of The People v. Hulbut, 4 Denio, 133, 17 Am. Dec. 244, the court remarked :
“This disposes of all the questions made on the argument, except the objection to allowing proof that the defendant kept a bar with bottles in it. This was after evidence had been given that the defendant kept a public house. It would be strange indeed that a man may be convicted of murder upon circumstantial evidence, and yet the same kind of evidence may not be given when the trial is for selling spirituous liquors without a license. There is nothing in the objection.”
In Commonwealth v. McCullow, 140 Mass. 370, 5 N. E. 165, there was no direct evidence of any sale of liquor, but the defendant was convicted. The verdict was approved, and on appeal the court held that the weight of the evidence was for the jury. The syllabus in t.he case was as follows:
“At the trial of a complaint for keeping a common nuisance, there was evidence for the government that the premises of the defendant were searched, under a warrant, and only a bottle half full of whisky was found, and a glass smelling of beer; that the defend ant’s mother occupied a portion of the defendant’s building, where she kept house by herself, and which could be reached from the defendant’s store only by passing through the tenement where the defendant’s family lived; and that the mother’s tenement was searched, under another warrant, at the same time as the defendant’s, and two cases of lager-beer were found there and a quart of whisky. Held, that the defendant had no ground of exception to the admission of the evidence relating to the search of the mother’s tenement and to what was found there, although the liquor taken on the warrant was afterwards returned to her by order of court.”
The case of The State v. Baskins, 82 Iowa, 761, 48 N. W. 809, is much in point. No syllabus was prepared by the court, but the one appearing in the reporter above cited is a fair statement of the facts and the law as set forth in the opinion. It reads :
“On the trial of an indictment for maintaining a nuisance, where it appears that officers, acting under a search-warrant, found in the house a jug partly filled with liquor, two bottles of whisky, a large number of empty bottles and some glasses which had contained beer, there is evidence to sustain a verdict of guilty, although actual sales are not shown by direct evidence.”
In State v. Burroughs, 72 Me. 479, it was held that bottles, glasses and measures found in defendant’s shop were properly received in evidence because they were or might be implements used in unlawful traffic. “They were admissible in evidence however obtained. Their evidential force was for the jury. They were nevertheless articles of evidence, even if procured by an unauthorized and illegal search.” (Citing State v. Plunkett, 64 Me. 536; State v. McGlynn, 34 N. H. 422; State v. Flynn, 36 id. 64; Commonwealth v. Dana, 2 Metc. 329.)
In State v. McGlynn, supra, the last clause -of the syllabus reads : “Where an indictment was for keeping for sale spirituous liquor, contrary to the statute, the fact may be proved without showing a sale or an offer or an attempt to sell.” And in the decision, at page 427, the court said: “That no sale or offer or attempt to sell was shown might be a good matter of argument before the jury, but the want of such evidence could not be good ground for setting aside a verdict.”
In Commonwealth v. Atkins, 136 Mass. 160, which was a complaint for keeping for sale intoxicating liquors, the police officers found a sugar barrel nailed up, which contained 120 bottles of lager-beer, upon defendant’s premises. It had only been there about fifteen minutes. The barrel had not been unheaded or opened, and none of the beer had been offered for sale or sold. The court in its opinion ruled:
“Under the instruction given, the jury must have found that the defendant had the liquor with intent to sell the same in violation of law, and the question of intent was one of fact for them. (Commonwealth v. Goodman, 97 Mass. 117.) The evidence is not reported, but even if it was thus kept on but a single occasion, or for but a short time, it was sufficient, if satisfactory to them. (Commonwealth v. Cleary, 105 Mass. 384.”
In Commonwealth v. Welch, 140 Mass. 372, 5 N. E. 166, which was a prosecution for keeping liquor with the intent to sell unlawfully, the defendant asked the trial judge to instruct the jury that if they found there was no evidence that the defendant had sold any of the liquor she was entitled to an acquittal. “The judge refused so to rule, and instructed the jury that if they were satisfied, beyond a reasonable doubt, that the defendant kept intoxicating liquors with intent to sell them, as stated in the complaint, then they would be justified in finding the defendant guilty, although there was no evidence that she exposed them for sale. The jury returned a verdict of guilty, and the defendant alleged exceptions” and appealed the case. In the supreme court, the entire opinion is in the following words : “The instructions given at the trial were correct. The judgment in Commonwealth v. Atkins, 136 Mass. 160, is decisive of this case. Exceptions overruled.”
Upon diligent search, we have been unable to find, in the works of any text-writer or the decisions of any court of last resort, authority for holding that a conviction had upon circumstantial evidence alone in a case like the present is not authorized by well-known and universally recognized rules of evidence. The trial court, in consideration of the evidence in the record, as well as that which is referred to but not described therein, and which was exhibited to the jury, approved this verdict, to which fact, on account of the aforesaid omission in the record, we feel bound to attach even greater importance than is ordinarily due it. This court is of opinion that it has no right to disturb or set aside the verdict of the jury or the judgment based thereon.
The judgment of the court below is affirmed.
Johnston, Cunningham, Gkeene, JJ., concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The letters and telegrams comprising the contract show a proposal by the plaintiif to “contract any quantity you (defendant) may need. All this stock to be put up out of number one candled eggs.” The acceptance was shown by a letter and telegram to the effect that the defendant would take 10,000 pounds of each product at the prices named, “f. o. b., your station, all charges paid up to January 1st, namely, storage, insurance and interest.” Plaintiff was to place the product in cold storage with the Concordia Ice & Cold Storage Company, and as defendant ordered shipments made plaintiff was to load the same on board cars free of charge at that station.
The answer alleged that the product was to be and remain the property of plaintiff until January 1, 1910, unless sooner taken out of cold storage and settled for by the defendant; and further alleged that the product was not put up from number one candled eggs and was not in first-class condition when put into storage, but that the same was rotten and of no value.
In substance the findings are that the product spoiled while in the cold storage plant; that in each instance when loaded into cars at Concordia it was in a frozen condition; that it was placed in cars properly iced, and that it arrived at destination in a frozen condition. There is a finding that while in cold storage the egg-meats spoiled and became rotten by the variation of the temperature of the room where they were kept and that the temperature at some time exceeded 15 degrees above zero.
The principal contention is that under the contract the title to the product did not pass to defendant until January 1, 1910, or at least until October 12, when the stipulated amount had been prepared and stored by plaintiff. The trial court instructed that any loss that occurred after delivery to the cold storage company was the defendant’s loss. The court gave the proper construction to the terms of the contract if the title to each can of the product passed to defendant at the moment it was delivered at the cold storage plant. On the other hand, if as contended, the title to none of the product passed until January 1, or if the title to no portion of it passed until the whole amount contracted for had been produced and stored, the court erred in the interpretation of its terms.
The whole controversy turns upon the intention of the parties. That always controls. (Bailey v. Long, 24 Kan. 90; Shepard v. Lynch, 26 Kan. 377, 382; Howell v. Pugh, 27 Kan. 702; Kingman v. Holmquist, 36 Kan. 735, 14 Pac. 168, 59 Am. St. Rep. 604; Barber v. Thomas, 66 Kan. 463, 71 Pac. 845; Clarkson v. Stevens, 106 U S. 505, 27 L. Ed. 139; 35 Cyc. 300.) When the intent must be arrived at from conflicting evidence it is a question for the jury. When it turns upon the construction of a writing it is a question of law for the court. (Caywood & Co. v. Timmons, 31 Kan. 394, 2 Pac. 566; Bailey v. Long, supra.) Here the intent of the parties was for the court to determine from the correspondence comprising the contract-viewed in the circumstances and situation of the parties. The universal rule is that “A contract for the sale of an article not in existence but to be manufactured is an executory contract, under which no-property in the article will pass during the progress of the work nor until the article is completed and ready for delivery, unless a contrary intention clearly appears.” (35 Cyc. 299.) And it is a general rule in sales of goods that the title passes to the buyer when the selection, separation and appropriation is complete and nothing remains to be done to complete the contract. Separation and appropriation are not always, necessary. (Kingman v. Holmquist, supra.) It is competent for the parties to agree that the property in. the goods shall pass to the vendee notwithstanding something remains for the vendor to perform before actual delivery. In Bailey v. Long, 24 Kan. 90, the contract was for the sale of a certain number of bushels of corn to be gathered out of the field, and it was; held that title remained in the vendor until the corn was gathered. But in the opinion the court recognized the rule that the intent controls and that the parties; might have contracted for a passing of the title at once, notwithstanding there remained certain things; to be done by the vendor.
The question in the present case is not free from difficulty. The intention of the parties must be gathered from the language of the contract viewed in the light thrown upon it by the situation of the parties and the circumstances shown by the evidence. The-supreme court of the United States in The Elgee Cotton Cases, 89 U. S. 180, reviewed the English cases and approved Lord Blackburn’s two rules (Blackburn on Sales, 2d ed., § 235, Canadian ed., p. 184) and the third rule laid down by Benjamin (restated in Benjamin on Sales, 5th ed., p. 318). These rules, which have been substantially adopted by the English Sales Act (§ 18), are as follows:
“First. ‘When, by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the-vesting of the property.’
“Second. ‘Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things shall also be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted.’
“Third. ‘Where the buyer is by the contract bound to do anything as a consideration, either precedent or concurrent, on which the passing of the property. depends, the property will not pass until the condition be fulfilled, even though the goods may have been .actually delivered into the possession of the buyer.’ ” (p. 188.)
The supreme court of the United States applied these rules to a contract for a sale of certain crops of cotton “numbering about 2100 bales” to be delivered at a certain landing, and to be paid for when weighed, the buyer to furnish bagging, rope and twine necessary to bale the cotton unginned, the cotton to be from the date of the contract “at the risk” of the buyer. At the time of the making of the contract the cotton baled was stored under cover. About twenty bales. (not baled) were, in a gin house ten miles from'the landing. The buyer, at once employed and paid a person to watch and care for the cotton, who performed his duties until the cotton was seized by the United States authorities. Notwithstanding the provision that the cotton should be at the buyer’s risk from the time the contract was entered into, the court- held that the contract was executory only and that no title passed to the buyer. In the opinion the court referred to the fact that some of the American courts have refused to follow the English courts in respect of the requirements of the second rule supra, and hold that specification of the goods is sufficient to pass the property, though the obligation still rests upon the seller to ascertain the exact price by weighing before delivery, citing Kimberly v. Patchin, 19 N. Y. 330, and Russell v. Carrington, 42 N. Y. 118, where sales of specific grain consisting of part of a larger bulk were held to pass the title without actual separation or delivery. And this court, in Howell v. Pugh, 27 Kan. 702, held that a sale of a crop of wheat in stacks undivided, and of other crops growing in the field undivided, passed the title to the buyer where such was the intention of the parties. Again, in Kingman v. Holmquist, 36 Kan. 735, 14 Pac. 168, 59 Am. St. Rep. 604, the contract was for the sale of twenty-five thousand hedge plants tied up in bundles each containing 250 plants. The sale was out of an ascertained lot of 82,000. It was held that a selection and a separation were unnecessary, and that the property passed to the buyer. In the opinion, referring to the rule laid down by Benjamin in his treatise on Sales, it was said that “the weight of recent American authority sustains the proposition that when property is sold, to be taken out of a specific mass of uniform quality, the title will pass at once upon the making of the contract, if that appears'to be the intention of the parties'.” (p. 739.) The case is cited by the editor of the American & English Encyclopedia of Law, with others from New York, New Jersey, Minnesota, Iowa and Florida, holding that where the sale is of a certain quantity of goods which constitutes a portion of a designated and uniform mass the title will pass without a separation or appropriation; but the editor declares that “this view is supported neither by principle nor the weight of authority.” (24 A. & E. Encycl. of L. 1055.) In the opinion in The Elgee Cotton Cases, 89 U. S. 180, the court declined to rest the decision merely on the ground that the cotton was not weighed or delivered, and expressly held that it was unnecessary to decide that question. The ground of the decision that no title to the cotton passed to the buyer was that when the loss occurred all the property contracted for was not in a deliverable state. In the opinion it was said that the buyer “was not bound to receive any unless the whole was ginned, baled and bagged. The contract was entire.” (p. 189.)
The defendant urges that the stipulation for insurance of the egg-meats by the plaintiff at the latter’s expense warrants the inference that until January 1 the title to the goods was in the seller. The inference to be drawn from the assumption by one of the parties of the risk of loss before delivery of the goods has frequently been considered by the courts. In Martineau v. Kitching, L. R. 7 Q. B. 436, the contract provided that the goods were to be “at the seller’s risk for two months.” The goods had been paid for in advance of being weighed, the amount to be adjusted and settled when the goods came to be weighed on delivery, and the purchaser had taken part of them. The residue was destroyed by fire after the lapse of two months and before being weighed. Cockburn, C. J., held that the property passed to the buyer because the goods were specific and the intention clearly was that the property should not depend upon the weighing. The fact that the contract expressly provided that the goods should be at the seller’s risk for two months was held to raise the presumption that the property should be in the buyer, as otherwise such a provision would be unnecessary. Commenting upon that case the editor of Benjamin on Sales, 5th ed., uses this language:
“It is a fair inference from the judgment of Cock-burn, C. J., that where the risk is assumed by a party who is at the time of the contract the owner of the goods, as a seller who has agreed to sell,, this fact is evidence that it is not intended that he shall remain owner; that the property is intended to pass. Otherwise such a provision would be unnecessary as the risk prima facie attaches to the ownership.” (p. 404.)
And in The Elgee Cotton Cases, supra, the United States supreme court expressly approved the reasoning of Cockburn, C. J., in Martineau v. Kitching, supra, and, as we have seen, applied it to the case of a buyer who assumed all risk; and from this fact the court drew the inference that it was the intention that the property should not pass to him. In the opinion it was said:
' “It must be admitted that when a contract of sale has transmitted the property in its subject to the buyer, the law determines, in the absence of agreement to the contrary, that the risk of loss belongs to' him. This is a consequence of his ownership, though undoubtedly the property may be in one and the risk in another. But it needs no agreement that the buyer shall, take the risk, if it is intended the ownership shall pass to him. Hence the stipulation that the cotton should be at the risk of Lob dell after the date of the contract, instead of showing an intention of the parties that the rights of property should pass to him, seems rather to indicate a purpose that the ownership should remain unchanged. Else why introduce a provision totally unnecessary?” (89 U. S. 194.)
With respect of insurance there seems to be much diversity of opinion, although it is difficult to discover any ground for a different inference than would arise from an assumption of the risk of loss. It is said in Benjamin on Sales, 5th ed., that “The fact that one party or the other is to insure the goods is material to the determination of the question on whom the risk is to fall.” (p. 404.)
The leading English case is Anderson v. Morice, 1 App. Cas. 713, 44 L. J. C. P. 341, L. R. 10 C. P. 609. Much of the reasoning is applicable here, because the effect of insurance was considered and the contract was for the sale of an undivided quantity of goods. The plaintiff sued to recover the value of a cargo of rice which he had bought and insured with the defendant. The memorandum was: “Bought the cargo of Rangoon rice per Sunbeam, at 9 s. 1% d. per cwt. cost and freight. Payment by seller’s draft on purchaser at six months’ sight, with documents attached.” The Sunbeam had taken on board 8878 bags of rice, the remaining 400 bags which would have completed the cargo being on lighters alongside, when she sank and the portion of the cargo on board was lost. A fair illustration of the difficulty which courts experience in determining the ownership of goods sold under contracts similar to the one in the case at bar is shown by the diversity of opinion which arose over the facts in the cited case. The House of Lords was evenly divided and the decision in the Exchequer Chamber was affirmed, and it was held, reversing the unanimous opinion of the Common Pleas: (1) That as plaintiff had contracted to buy a complete cargo, the property did not pass till the cargo was completed so that shipping documents could be made out, this being one of the things to be done by the seller to put the goods in a deliverable state; (2) that apart from the question of the title to the property, plaintiff had no insurable interest in the part loaded, because he had only assumed the risk of that which he had contracted to buy, which was the complete cargo. The reasoning of Blackburn, J., in the judgment of the majority in the Exchequer Chamber, is authority against the holding of the trial court in the present case that the property. in each can of product passed to the buyer at the time it was placed in the cold storage plant. Having stated that it was conceded that if the rice on board the lighter had been lost before it was put on board the Sunbeam the buyer would have sustained no loss, and that it was at least the plain intention of the parties that the buyer would have been bound to pay for the -cargo even though it was lost by reason of subsequent disaster either in port or on the way home, provided the lading was complete and the shipping document either prepared or if matters were in a situation where they could be prepared, the opinion proceeds:
“But there remains the disputed question whether each separate bag was at the risk of Anderson from the time it was put on board the Sunbeam, or whether it remained at.the risk of the sellers until the whole intended loading was complete, and the shipping documents were ready, or at least everything was done to enable them to make out the shipping documents. This we think depends entirely on the intention of the parties to the contract, as appearing from it. There is nothing to prevent the parties from agreeing that, as the goods are shipped bag by bag, each bag shall be at the risk of Anderson, though the payment is postponed till the whole is on board; and if they have sufficiently expressed such an intention, then Castle v. Playford [L. R. 5 Ex. 165, L. R. 7 Ex. 99] is an express authority in this court that Anderson must bear the loss, though it occurred before the stipulated time for payment had arrived. In that case the words of the contract were express. On the other hand, Appleby v. Myers [L. R. 2 C. P. 651] is ah express authority that if from the contract it appears that the intention of the parties is that the payment is to be only on the completion, nothing can be recovered, though that completion is prevented by an accident for which neither party is to blame. Both decisions are binding on us, even if we disapproved of them, but we agree with both:” (44 L. J. C. P. 347, 348; s. c., L. R. 10 C. P. 609, 617.)
Because of the rule that when anything remains to be done by the seller to put the goods into a deliverable state the property does not pass, it was held to be the intention that the risk should become the risk of the buyer when and not till the whole lading was complete, and that there was nothing in the contract to rebut this prima facie rule of construction or to show a different intention. It should be observed that the question the court had before it was not, strictly speaking, in whom did the property vest, but upon whom was the risk. However, the reasoning upon which the judgment was placed is precisely the same.
On principle and on what we regard as the weight of authority, we think that the property in the egg-meats passed when the plaintiff had completed the entire amount of product contracted for and had placed the same in the cold storage plant. Until then he had not done the things that the contract required of him to put the goods into a deliverable state; and the defendant was not liable for its price and had no property in any part of it that might be in storage, except a contingent interest, provided all was completed as contracted for in amount and quality. Otherwise, if the property to each can of product passed to the buyer at the time it was placed in storage, the buyer would be bound to accept and pay for one can, or ten cans, or any number stored, notwithstanding the failure to furnish the residue. The contract, as in The Elgee Cotton Cases, supra, was entire. It seems to be conceded that October 12, 1908, was the time when the entire amount, or substantially the amount named in the contract, was completed and stored. It is true that one shipment was ordered out on October 2, and was received and paid for by the defendant. The property in this shipment, of course, passed when the plaintiff delivered it to the common carrier; but the property in the residue must be held to have passed on October 12, when nothing remained to be done by the seller except to place on board cars as ordered.
A recent case in point upon the entirety of the contract is Walti v. Gaba, 160 Cal. 324, 116 Pac. 963. There the agreement was for the sale of clipped and unclipped wool, the spring wool of 1906 at eighteen cents per pound,'the fall wool of 1905 at fourteen cents. The fall wool being stored, it was to be delivered at a railway station with the spring wool when that was clipped. A deposit of $250 was made on the sale. The stored wool was destroyed by fire before the spring wool was clipped from the backs of the sheep. The question was which party sustained the loss. The court held the contract to be entire and that no title to any part of the wool passed.
For additional authorities holding that a contract of this nature is entire and indivisible, that each party has the right to insist upon full performance, and that the contract remains executory until the quantity or amount bargained for has been ascertained and is in condition for delivery, unless the contract shows a contrary intent, see Pope et al. v. Porter et al., 102 N. Y. 366, 7 N. E. 304; Thompson v. Conover, 30 N. J. Law, 329; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 Am. St. Rep. 199; Johnson v. Hibbard, 29 Ore. 184, 44 Pac. 287, 54 Am. St. Rep. 787; Sempel v. Lumber Co., 142 Iowa, 586, 121 N. W. 23; Hendricks v. Mocksville Furniture Co., 156 N. C. 569, 72 S. E. 592; Gibbons v. Robinson, 63 Mich. 146, 29 N. W. 533; Slade v. Lee, 94 Mich. 127, 53 N. W. 929; Haynes v. Quay, 134 Mich. 229, 95 N. W. 1082; 1 Mechem on Sales, §§ 753, 757; 17 Dec. Dig., Sales, §§ 200, 201; 35 Cyc. 299; 24 A. & E. Encycl. of L. 1063.
The contract in this case was for the sale of something not in existence but which the seller was to manufacture, and we find nothing in the terms of the contract nor in the circumstances or situation of the parties to indicate an intention contrary to that which is presumed from the general rule governing the sale of an article or quantity of articles to be manufactured or produced, which is that the property will not pass during the progress of the work or until the specified amount of the product contracted for has been produced and is in a condition where it can be delivered according to the contract. The parties are at liberty to contract with a different intent.
“We do not deny that a person may buy chattels in an unfinished condition and acquire the right of property in them, though possession be retained by the vendor, in order that he may fit them for delivery. But in such a case the intention to pass the ownership by the contract can not be left in doubt. The presumption is against such an intention.” (Strong, J., in The Elgee Cotton Cases, 89 U. S. 180, 193.)
The contention that no property in the goods passed until January 1, 1909, or what amounts in this case to the same thing, that the risk of loss by. deterioration prior to that time was intended to be assumed by the plaintiff, can not be sustained. The prima facie rule of construction is that the parties intended that the property in the egg-meats vested in the buyer and the right of the price in the seller, in the language of Blackburn, J., in Calcutta Company v. De Mattos, 32 L. J. Q. B. 322, “as soon as it (the contract) came to relate to specific ascertained goods”; that is, on the completion of the quantity of product contracted for and its storage in a deliverable state subject to the orders of the buyer; and the inquiry in such a case always “must be whether there is any sufficient indication of a contrary intention.” We approve the principles stated in Benjamin on Sales, 5th ed., that:
“1. A provision that either party shall insure the goods contracted for is strong evidence that the risk of loss was intended to be assumed by him.
“2. When the goods contracted for are an entire quantity, it is a question depending upon the terms of the contract and the circumstances of the case whether the insurance covers, and the risk accordingly attaches to, the quantity of goods when completed only, or also each separate installment when delivered.” (p. 409.)
The language of the provision upon which defendant bases the contention is “f. o. b. your station, all charge's paid up to January 1st, namely storage, insurance and interest.” This provision was inserted at defendant’s suggestion. If, as contended, the property remained in the plaintiff until January 1, what reason was there for the stipulation? The defendant would have no insurable interest until the property passed. The evidence shows that the parties expected the entire product to be put up in- the spring and early summer of 1909, and doubtless some of it in the ordinary course of dealing would have remained in storage until the first- of January following. The defendant, however, had' the right to order out a part or all at any time after the quantity contracted for was ready for delivery, but was not to be chargeable with interest on. the price or for cost of storage or insurance until January 1. After the specified quantity had been produced and stored the insurance would be for defendant’s benefit because the property then - passed, and in the* ordinary course of business the policy would then be transferred to defendant. Such is the construction which we think carries out the presumed intention of the parties; and, as stated, we are unable to find in the contract or the situation of the parties evidence sufficient to rebut the presumption. >The jury should have been instructed that any loss occasioned prior to October 12 was the plaintiff’s, whether it resulted from his fault or that of the cold storage company.
It is claimed that the court erred in refusing to permit an offer of proof to be made. Without deciding whether the defendant lost the right to a ruling upon this claim of error by failing to set out the testimony by affidavit in support of the motion for a new trial, it is sufficient to say that the character of the testimony is indicated by the question to which objections were sustained which occasioned the offer of proof; and as another trial must be ordered the point will be considered. The only ground for the objections to the question was that the witness had not shown himself qualified to answer. The witness had been for nine years the manager of the cold storage plant where the egg-meats were stored, and testified to an experience in the business sufficient to qualify him to state his opinion whether a product like egg-meats after having been solidly frozen will thaw in a temperatúre below the freezing point.
To a number of special questions' submitted at the request of defendant the jury gave evasive and equivocal answers. Asked to state whether 46 cans' of frozen yolks were destroyed by order of court in Spokane, they answered, “There probably were some cans destroyed.”' Equally evasive answers were returned to no less than eight or nine other questions. Whether this resulted from a reluctance of the jury to find facts in favor of the defendant notwithstanding the evidence, we can not say. But the court should have sustained the motion to require the jury to return definite answers. Not infrequently cases arise where it becomes the duty of the court to set aside the verdict and grant a new trial because the answers are so evasive and unsatisfactory as to suggest that the defeated party has not had a fair and impartial trial. (U. P. Rly. Co. v. Fray, 31 Kan. 739, 3 Pac. 550; St. L. & S. F. Rly. Co. v. Clark, 48 Kan. 321, 29 Pac. 312; S. K. Rly. Co. v. Michaels, 49 Kan. 388, 396, 30 Pac. 408; A. T. & S. F. Rld. Co. v. Wells, 56 Kan. 222, 42 Pac. 699.)
The judgment is reversed and a new trial ordered. | [
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Per Curiam:
The request to the county surveyor for the survey in this'case was to locate the corners and boundaries of certain quarter sections of land in section six, township twenty-one, in Marion county. There is no contention but that the surveyor located such corners and boundaries in accordance with the government survey, but it is contended that the then owners of the land some years prior had located and agreed upon, a dividing line between the farms involved in this survey.
The legal questions involved are identical with those involved in Roadenbaugh v. Egy, post, and on the authority of that case the judgment in this case is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
William Jolliff was in the employ of an interurban electric railroad company as night repair man. His duties were to take charge of disabled cars brought to a machine shop, and do such work upon them as might be directed. He had been so employed for several years. The cars were brought into the shop over a track, under which was a pit about six feet deep, to enable workmen to get beneath the car. Provision was made for lighting the. pit by five electric bulbs, all on the same circuit. Two were below the stringers. One night Jolliff was directed to take a disabled car from the yard to the shop and repair it. He stood upon the rear of the car while a helper, acting as motorman, backed it into the barn. As it entered the barn he discovered two pairs of car wheels on the track over the pit. Upon his signal the car was stopped and he stepped from it to remove them. He pushed one pair a little distance away from the ear and then undertook to move the other in the same direction. Some oil had been spilled on the floor, which caused his foot to slip, and he fell over the moving wheels, which rolled against the other pair. His hand was caught between the wheels, and he was otherwise injured. He sued the company and obtained a judgment, from which the defendant appeals.
The jury found that while the plaintiff’s fall was caused by the oily floor, the defendant was not guilty of any negligence by reason of the oil being there. They also found that the defendant was not negligent with respect to the quality of the oil furnished for use in the plaintiff’s lantern, concerning which he had made some complaint. These matters, being eliminated, the sole ground of negligence relied upon to sustain the judgment is the failure of the defendant to provide sufficient light in the repair shop. The electric lights already referred to had been out of order several times within the preceding three weeks—had been repaired and burned out, the plaintiff said, probably three or four times. Three days before the injury the plaintiff notified the foreman that the lights were in bad condi-' tion, and a promise was made to repair them. They were not burning when the car was brought into the barn. The plaintiff at the time did not know whether or not the lights were out of order. A switch for turning them on and off was located on the wall of the shop, its location being known to the plaintiff. In view of these facts, the vital question in the case was whether the lights were out of order at the time. Of course if they were in good condition, but were turned off, the plaintiff could not recover for injuries resulting from his .own omission to turn them on. The exact question upon which the case turned was submitted to the jury in these words: “State whether the lights were out of order or whether they were in working order, but were not burning because they were turned off.” They answered: “No evidence to show why they were not burning.” This was a direct and specific finding against the plaintiff upon the precise matter in issue. In order for him to recover he was required to prove— that is, to convince the jury by a preponderance of the evidence—not merely that the lights were not burning, but that they were in bad condition and could not have been lighted by turning on the switch. The jury, being asked whether the lights were out of order, or were in order but were dark because they were turned off, answered that there was no evidence to show why they were nob burning. This is an explicit statement that there was no evidence—that is, no persuasive evidence, no preponderance of the evidence—that the want of light was due to the fault of the defendant. (Burks v. Railway Co., 83 Kan. 144, 109 Pac. 1087.) “Where to a question the jury respond, ‘We don’t know,’ or in any like manner, such an answer is tantamount to a simple denial, for if, from the testimony the jury do not know whether an alleged fact exists, it follows that the testimony does not show that it exists, and therefore for the purposes of the case it does not exist.” (Morrow et al. v. Comm’rs of Saline Co., 21 Kan. 484, syl. ¶2.) That is, such an answer is construed as a finding against the party bearing the burden of proof as to that particular matter. (Croan v. Baden, 73 Kan. 364, 85 Pa,c. 532.) Where the jury find that there is no evidence upon a particular matter the effect is still more obvious. No construction is necessary. . The finding is positive and affirmative that there has been a failure of proof, and where it concerns a fact essential to the plaintiff’s case, it precludes his recovery. Here the plaintiff was required to show to the satisfaction of the jury that the reason why the lights in the shop were not burning at the time of his injury was because they were out of order, and not simply because they were not turned on. The jury found that this fact was not proved, and the finding is fatal to a recovery.
The judgment is reversed with directions to render judgment for the defendant. | [
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Per Curiam:
The defendant asks for a rehearing because the opinion fails to refer to the defendant’s motion for an order for more definite averments in the petition. The motion in substance was to require the plaintiff to state the particular acts of its employees whereby the running of the train caused the fire, and wherein the running of the engine and train was negligent. The following quotation from the opinion in Railway Co. v. Garrison, 66 Kan. 625, 72 Pac. 225, is applicable to the question presented by this motion:
“It was said in St. L. & S. F. Rly. Co. v. Snaveley, 47 Kan. 637, 28 Pac. 615, that in such a case negligence need not be pleaded at all, it being sufficient merely to allege that the fire was caused by the operation of the railroad, because, under the statute, that is all that need be proved.” (p. 626.)
In that case, however, the specific allegation was made that the defendant was negligent in the use of its engine, and it was held that, having thus restricted his allegation, the plaintiff should be required to disclose what was meant by the averment. Similar restrictive words were not used in this petition.
The opinion is pertinent to the motion as well as to the principal issue.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
West, J.:
The petition alleged in substance that the plaintiff and defendant James M. Blackwéll, his brother, were on and prior to January 28, 1895, the joint owners of a half section of.land in Lyon county; that the defendants -were husband and wife, with whom the plaintiff, not married, was making his home on this land, farming and cultivating the same and using the proceeds for their support and that of the parents of the two brothers who also lived with them; that on the date mentioned plaintiff executed and delivered to the defendants a warranty deed for his undivided half of the northwest quarter of the section, and on the twentieth day of April, 1897, a like deed for the northeast quarter; that on January 28, 1895, plaintiff was intending to go to South America, and desired that in case of his failure to return the defendants should have his property, and entered into a verbal agreement with them by which he agreed without consideration to con- ' vey to them his interest in the northwest quarter provided they would agree to reconvey if he should at any time request it; that they so agreed, and pursuant to such agreement the deed to the northwest quarter was made; that he remained with them until April 11,1902, when he went away, and when about to leave, in order that the defendants should have his property if he should fail to return and also in order that they might renew a mortgage shortly to fall due on the premises he verbally agreed with them that he would convey to them his undivided half interest in the northeast quarter upon their verbal promise and agreement that they would reconvey if he should so request; that at the time of this conveyance there was a mortgage on both quarters for about $2500 soon to become due, and it was agreed that defendants should execute a new mortgage in order to pay it off; that he went away and did not return until 1907, when he requested a conveyance, which the defendants refused; that ever since the conveyance the defendants had been in possession of the land, receiving the rents and profits.
The second clause of action included the allegations of the first and alleged that there was left on the premises about $1500 worth of personal property, the result of the joint efforts of the plaintiff and his brother in equal shares; that defendant James M. Blackwell took possession thereof and converted it to his own use about April 11, 1902, and that the plaintiff had never received any part thereof or proceeds therefrom.
The third cause of action adopted the allegations of the first and second causes and alleged that afterwards the defendants executed a mortgage on the premises amounting to $5922, which was a lien on the lands, leaving a balance on hand, after paying off the former incumbrance, of $3422, which they converted to their own use on March 7, 1910. Plaintiff prayed for au accounting and for judgment for the amount found due him and that he be declared the owner of an undivided half of the land, and for partition. The defendants demurred to each of the three causes of action, which demurrer was sustained and the plaintiff appeals.
He argues that the facts stated in the first cause of action show the creation of an equitable trust which need not be in writing, under section 9694 of General Statutes of 1909. That as there was -already a joint ownership of the land and a joint obligation to support the parents and a like obligation to take care of the mortgage, having received his conveyance and having refused to reconvey upon his request, the presumption arises that the defendants took it with fraudulent intent and purpose and therefore ought not to be heard to assert that the absence of a written agreement preeludes the plaintiff from obtaining relief. The defendants insist that the situation comes squarely within the provision of the statute referred to, and that the plainiff can not be heard to claim a trust unless he can show written evidence thereof.
As to the second cause of action the defendants assert that the bar of the statute of limitations precludes recovery, while the plaintiff contends that by making the first cause a part of the second a personal trust was alleged upon which a cause of action would not accrue until demand and refusal; that the action was not in tort but on an implied contract, and having been begun within three years was in time.
As to the third the plaintiff argues that the action was begun within two years after the alleged conversion, and that the $3422 is really a part of the land in controversy, and therefore depends upon his right to recover upon the first cause of action, which dependence is conceded by the defendants.
. The language of the statute is:
“No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.” (Gen. Stat. 1909, § 9694.)
What is a trust?
“A trust has been variously defined as ... a holding of property, subject to a duty of employing it or applying its proceeds according to directions given by the person from whom it was derived; a right of property, real or personal, held by one party for the benefit of another; and an equitable right, title, or interest in property, real or personal, distinct from the legal ownership thereof. ... In its simplest elements a trust is a confidence reposed in one person, called the trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former for the benefit of the latter. It implies two estates or interests, one equitable and one legal, and is said to exist where property is conferred upon and accepted by one person on terms of holding, using, or disposing of it for the benefit of another.” (39 Cyc. 17, 18.)
In National Bank v. Ellicott, Assignee, 31 Kan. 173, 1 Pac. 593, it was said (p. 175) that a trust is an equitable right, title or interest in property, real or personal, the legal title being in some other person. Express trusts are those created by direct and positive act of the parties evidenced by some writing. Implied trusts are those which are dedúcible from the transactions of the parties. (Caldwell v. Matthewson, 57 Kan. 262, 45 Pac. 614.) Bouvier. defines an implied trust as one deducible from the nature of the transaction as matter of intent, or which is superinduced upon the transaction by operation of law as matter of equity independent of a particular intention. (3 Words and Phrases, pp. 2611, 2612.) In Newell v. Newell, 14 Kan. 202, the grantee by false and fraudulent representations obtained the deed which was made with the understanding that the grantee was to sell sufficient land to pay grantor’s debts and then to reconvey the remainder to him, the grantor being about to enter the military service of the United States. It was held that under the facts shown the conveyance should be set aside because obtained by fraud, and for the further reason that it was without consideration and that the defendant had lost nothing by the transaction. It was said in Bartholomew v. Guthrie, 71 Kan. 705, 710, 81 Pac. 491, that the conveyance was presumably made to facilitate some compromise of a pending suit, the understanding being that the grantee, their attorney employed to protect their interests, should institute and prosecute a certain suit and pay over to the grantors the fruits of the litigation. It was held in that case that the law would imply a trust so long as the title was held by the grantee or any of the proceeds when it was converted. In Lehrling v. Lehrling, 84 Kan. 766, 115 Pac. 556, the children wrote to the father, who had gone to Germany, to convey the land to them in order that they might borrow the money necessary to make a certain settlement arising out of divorce proceedings between him and his wife, which was done. After he had returned and been in possession of the land about fifteen years it was held that he could quiet his title for the reason that the grantees took the legal title in trust to raise the required money for the father’s use and that such trust arose by implication from the circumstances shown. It was said:
“The letter and deed, however, in connection with all the circumstances, are sufficient to show a trust by implication of law. The appellants having asked for the conveyance for the purposes stated in their letter, and their request having been complied with, a trust may fairly be implied to hold the legal title for the purposes named.” (p. 770.)
In De Mallagh v. De Mallagh, 77 Cal. 126, 19 Pac. 256, an agent intrusted with a farm for sale received the proceeds of the produce thereof and redeemed or purchased a lot belonging to his principal, and it was held that he should be deemed a trustee. Kimball v. Tripp, 136 Cal. 631, 69 Pac. 428, is another case of a conveyance being made to an agent whereby a trust was implied, although not expressed in writing. In Koefoed v. Thompson, 73 Neb. 128, 102 N. W. 268, the parties had been partners and had jointly purchased the land in question, each contributing one-half of the first payment, then afterwards borrowed money to complete the payment, taking a joint deed, giving two notes secured by mortgage. The defendant went into sole possession, and the plaintiff left with him a considerable amount of personal property to be sold and applied to the payment of his half of the mortgage debt and then went on a visit. When the balance of the debt became due he executed a quitclaim to the defendant for the sole purpose of enabling him to renew the mortgage, upon a verbal agreement that he would secure the money and redeem the land from the mortgage foreclosure for their joint benefit and account for one-half the rents and profits and in due time reconvey to the plaintiff his half interest. It was held that this series of transactions involved not only a trusteeship but an agency, and that the plaintiff was entitled to recover; that the betrayal of the confidence reposed by the plaintiff was sufficient to raise the presumption that the defendant intended from the first to defraud his partner out of his interest in the land and to give rise to a constructive trust. In Brison v. Brison, 75 Cal. 525, 17 Pac. 689, a husband was the owner of property on which there was a mortgage, and in order to raise money to pay it off he determined to go to Arizona and engage in business, and desired to make a will so that the property should go to his wife, but influenced by her wish to save the expense of probate proceedings and relying upon her parol promise that she would reconvey upon request, he made a deed to her. It w'as alleged that he was induced to make the deed by her promise, which was made with intent on her part to deceive and did deceive him. It was held that he was entitled to a reconveyance, the court finding that the promise was made without any intention of performing it and was thereby a species of actual fraud.
The foregoing are the cases mainly relied on by the plaintiff, and, except the last one, are all instances of the conveyance of the mere legal title with no intention that the actual ownership should pass. A careful examination of the petition now under consideration shows that the plaintiff made an absolute conveyance to the defendants upon the verbal agreement to reconvey if he should so request, which, technically speaking, amounts to a conveyance upon verbal conditions subsequent. While he pleads that he desired.the defendants to' have the property in case he should not return, still he alleges the agreement to have been that they were to reconvey if he should so request. There is no allegation that it was the intention or understanding that the property should remain his equitably and that they should hold the mere legal title until something was done or some condition fulfilled. The relations were as confidential on one side as on the other, and while it is suggested, though not alleged, that the parents were dependent on the parties for their support and that the refusal to reconvey indicates an original intention to defraud the plaintiff, it might with equal consistency be regarded as a decision on the part of the brother to go to another country to seek his fortune, and by turning the property over to the defendants relieve liimself from further care of the parents and further responsibility for the mortgage debt. So that there is nothing in the circumstances alleged which shows any duty to reconvey except the mere verbal promise. This, of course, is insufficient as a basis for an express trust (Gee v. Thrailkill, 45 Kan. 173, 25 Pac. 588), and also insufficient in and of itself to raise an implied trust. The Brison case, while giving considerable support to the plaintiff’s contention, is dissimilar as to the facts. There the land originally belonged to the husband, and his intention to make a will so that it would all go to the wife at his death was changed by her request to make a deed and her promise to reconvey, all of which showed an intention and desire on his part to retain the real title to the property during his life. Here the land was owned jointly by the parties, and seemingly without any solicitation by the defendants, plaintiff saw fit to convey his share to them, in view of his intended departure, so that the entire property should be absolutely theirs unless and until he should at some future time return and request a reconveyance. ' We must hold, therefore, that the demurrer was properly sustained as to the first cause of action.
If, as the plaintiff alleges, the personal property was converted by the defendants in 1902, the action begun in 1910 was barred. Had the plaintiff alleged and relied upon a continued partnership ownership of this personalty and simply prayed for an accounting, a different rule might apply, but having elected to treat his share of the personal property as converted by the defendant more than three years before the suit, it must be held to have been begun too late. The prayer at the close of the petition for an accounting may have been intended to refer only to the money raised by the renewal mortgage, but if intended to ask for an accounting as to the personal property, it was incon sistent with the allegation of its conversion, which would mean an action for damages and not one for an accounting. There is no allegation that a demand for a share of the personal property was ever made or refused, or that any promise, agreement or demand was made concerning anything but the land. Hence, making the first cause of action a part of the second did not help the situation.
The third cause of action being bound up with the first, there was no error in sustaining the demurrer to the entire petition.,
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Norman McDonald was the patentee of a. quarter section of land in Clark county. About 1888 or 1889 he left the county and turned the land over to R. A. McFarland to use as tenant, for the payment of a small debt then due, until McDonald should return. McFarland accepted and took possession, and after-wards put defendant Hughes in possession of one eighty, and possession has ever since been held unless divested by leases from the plaintiff. After McDonald left the land went to tax sale, and the plaintiff, Whittle, took out and recorded a tax deed on September 3, 1894. Through his agent he leased the land to McFarland from November 1, 1898, to March 1, 1900, and again for one year from the latter date, both leases being in writing and signed by McFarland. It appears that when the agent negotiated these leases he stated to McFarland that Whittle had acquired the McDonald, title. The tax deed is good on its face and was about four years old when the first lease was made. McFarland claims that he believed from the agent’s statement that McDonald had conveyed the fee title to Whittle, and on that belief he accepted or entered into the leases. The trial Court took the position that having thus recognized Whittle as his landlord, McFarland was estopped to contest the validity of the tax deed after it had become five years old, and directed the jury to return a verdict for the plaintiff. The defendants complain and insist that Whittle, through his agent, obtained possession through stealth and fraud, and that the jury should have been allowed to determine whether the leases were executed on representations that the McDonald title had been acquired.
After learning that the McDonald fee title had not been procured by conveyance from him, the defendants purchased it themselves, Hughes having full knowledge of the situation concerning the leases. McFarland testified that the agent said that Mr. Whittle had the McDonald title, that this was what induced the witness to sign the lease. At the close of the testimony the defendants objected to the instruction requiring the jury to return a verdict for the plaintiff, and requested that the case be submitted on the issue arising from the.pleadings and testimony, which request was overruled.
It does not appear in the record that it was ever claimed or asserted that the agent represented that Whittle had procured the fee title by any conveyance, but simply that he had the McDonald title. The tax deed, good on its face, which had been recorded for some time in the county where the land was situated, justified this statement, and vested the title in the holder. (Gen. Stat. 1909, § 9479; Board of Regents v. Linscott, 30 Kan. 240, syl. ¶ 3, 262, 1 Pac. 81.) Having fully recognized the holder as their landlord, the defendants are not in position to deny his title. (Ireton v. Ireton, 59 Kan. 92, syl. ¶ 3, 95, 52 Pac. 74; Millikin v. Lockwood, 80 Kan. 600, 103 Pac. 124.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an unsuccessful attempt to obtain an order en j oining the issuance of school district bonds. The appellant’s attack on the execution and sale of the bonds proposed to be issued was based upon the claim that the initial steps had not been regularly taken. The district adjoins the city of Topeka, has a property valuation of $447,850 and contains about 213 qualified electors. A movement to secure the building of a new schoolhouse to cost about $10,000 was started. Under the law (Gen. Stat. 1909, § 7631), the issue of bonds was limited to one and one-half' per cent of the taxable property of the district, unless permission to vote a larger sum was obtained from the Board of School Fund Commissioners of the stata By a recent act of the legislature (Laws 1911, ch. 257) that board is empowered to grant to a city or school district the authority to issue bonds for the erection of' school buildings “to an amount of not more than fifty per cent in excess of and in addition to the amount of bonds that may be voted, under laws now in force.” Under the general limitation of one and one-half per cent of the taxable property of the district, the appellee could issue bonds to the amount of about $6,700. To enable the district to vote and issue the necessary amount to build a schoolhouse costing $10,000, the electors presented a petition to the school district board on April 24, 1912. They asked that board to apply to the school fund commissioners for permission to issue bonds for the building of a new schoolhouse in “an amount not more than fifty per cent in excess of and in addition to the amount of bonds that may be voted under the laws now in force.” The petition, which contained 119 names, was received and granted by the school district board, and that board, on May 1, 1912, made a formal application to the Board of School Fund Commissioners for authority to issue bonds in excess of the amount provided for under the general limitation. After the petition of the electors.had been granted and the application of the school district board was pending before the state board, a number of electors presented a protest against the granting of permission to issue the additional bonds, and some of those protesting had previously signed the petition to the school district board. The state board appears to have treated the petition to the school district board as if it had been addressed to the state board itself, and names were permitted to be added to and withdrawn from the petition at the request of electors. Some of those who attempted to withdraw their names from the petition at a later time asked to have them reinstated, and some who had not signed the petition originally asked to have their names added to it. At the end of the parley the state board considered the wants and necessities of the district and subsequently made a finding that the existing conditions warranted the granting of the permission asked for, and it thereupon authorized the calling of an election for the issuance of bonds in an amount not exceeding the limitation fixed in chapter 257 of the Laws of 1911, under the provisions of which the order was granted. Under this order a call was issued for an election to vote bonds in the amount of $10,000, and on June 15, 1912, the election was held, and the result was that 109 electors voted in favor of the proposition and 91 against it.
In this proceeding an attack was made upon the sufficiency of the petition to the school district board, in which that board was asked to apply to the state board for permission to issue bonds in excess of that allowed under the general limitation. First, it is claimed that it was not legally signed by the requisite number of electors. In chapter 257 of the Laws of 1911 it is provided that the petition to the school district board shall be signed by at least one-half of the electors. A petition was presented to that board which on its face appeared to be sufficient. It was presented and' allowed without challenge, of its sufficiency or opposition of any kind.
There is an attack on the petition because a number of the signatures were not autographic. Some of the names attached to the petition were signed by the husband or wife or some other agent of the petitioner, and were signed in the presence of the petitioner or by his verbal authority. The statute does not require that each petitioner shall perform the physical act of attaching his name to the petition, and in the absence of such a requirement no reason is seen why a person may not cause his name to be attached to such a petition by another. Indeed, we have a statute, which contemplates that the names of persons will be signed to petitions addressed to officers, courts and legislatures by others, and therein it is made an offense to do so without. authority from the person whose name is signed. (Gen. Stat. 1909, § 2849.) Of coursé, those signed without authority or ratification are without effect, but under the provision in question it is enough if the signing was done by an agent with the authority of the petitioner, and in such a way as to be his act, and it devolves on those who allege a lack of authority to prove the claim. (People, ex rel. Brownell, v. Assessors, 193 N. Y. 248, 86 N. E. 466; People ex rel. Holler v. Board of Contract, etc., of the City of Albany, 2 How. Pr., n. s., 423; Allen v. City of Portland, 35 Ore. 420, 58 Pac. 509; Bd. of Improvement Dist. v. Offenhauser, 84 Ark. 257, 105 S. W. 265; Portsmouth Savings Bank v. City of Omaha, 67 Neb. 50, 93 N. W. 231; City of Columbus v. Sohl, 44 Ohio St. 479, 8 N. E. 299; Tibbetts v. Street Ry. Co., 153 Ill. 147, 38 N. E. 664; Merritt v. City of Kewanee, 175 Ill. 537, 51 N. E. 867; Day v. Fairview, 62 N. J. Law, 621, 43 Atl. 578; 28 Cyc. 977.)
After final action upon the petition had been taken by the school district board, and the application was pending before the state board, an attempt was made, as we have seen, to withdraw and add names to the petition, but it was not then open for withdrawals and additions. The initiatory step is taken by the electors and their petition is addressed to the school district board, and not to the state board. The action of the state board is invoked by the application of the school district board, and notice of the filing of that application is required. The state board does not base its finding and judgment on the petition to the school district board, but it fixes a day for a hearing, and upon the evidence then offered, under rules which it prescribes, the application is either granted or denied. The purpose of the petition is to move the school district board to make the application to the state board, and that purpose had been subserved when the prayer of the petition was granted and the application made. At that time no petitioner had added or withdrawn his name from the petition, nor had any protest been made against the making of the application.
In regard to the time within which a petitioner who has changed his mind may withdraw his name from a petition, there is a difference of judicial opinion. In some cases it has been held that withdrawals may only be made while a petition is in circulation and before it has been filed or presented for action. Some hold that withdrawals may be made until the petition has been filed and jurisdiction has attached, but that withdrawals will not be allowed which would defeat jurisdiction. A greater number of the authorities apply a more liberal rule, which permits a petitioner to withdraw his name at any time before final action is taken upon the petition by the officer, board or tribunal to which it is presented. In a number of the cases the right of withdrawal is regulated by statutory enactment, and consequently there are cases which fix the termination of that right at a point intervening between the presentation of the petition and final action thereon. (Grinnell v. Adams, 34 Ohio St. 44; Seibert v. Lovell, 92 Iowa, 507, 61 N. W. 197; Orcutt v. Reingardt, 46 N. J. Law, 337; Bordwell v. Dills, 70 Ark. 175, 66 S. W. 646; State ex rel. Hawley v. Board of Supervisors of Polk County and another, 88 Wis. 355, 60 N. W. 266; Noble et al. v. the City of Vincennes, 42 Ind. 125; Webster v. Bridgewater, 63 N. H. 296; Littell v. Board of Supervisors, 198 Ill. 205, 65 N. E..78; Snedeker v. Matter Drainage District, 124 Ill. App. 380.)
In a case note to Sim et al. v. Rosholt, 16 N. Dak. 77, 112 N. W. 50, in 11 L. R. A., n. s., 372, a great number of authorities on the subject are collected.
In The State ex rel. v. Eggleston, 34 Kan. 714, 10 Pac. 3, a question of the right to withdraw names from a petition for the removal of a county seat was considered, and it was said to be the duty of the board of county commissioners to strike from the petition the names of all signers who asked for such withdrawal before final action was taken on the petition. This view accords with most of the authorities. Following that rule, it is clear that the right of a petitioner to withdraw his name could not be exercised after the school district board, to which the petition was presented, had taken final action thereon. It is unnecessary, therefore, to consider the regularity of the changes that were made while the matter was pending before the state board. It may be said, however, that after the changes had all been made by withdrawal, addition and reinstatement of names during the pendency of the application before the state board, it still contained the names of more than one-half of the electors of the district.
There is a contention, too, that the petition was defective because it did not ask the school district board to apply for permission to issue a definite amount of bonds, and also that the permission itself, which was granted by the state board, did not state a definite amount. As we have seen, the petitioners used the statutory language and asked for the additional fifty per cent authorized by the act of 1911. It is said that in asking for an excess of the amount “that may be voted for by the laws now in force” they, in eifect, asked for an issue of $15,000; that is, fifty per cent in excess of the amount authorized under both the general and the exceptional limitations. It is reasonably clear from the use of the language of the act of 1911 that they intended that the application should be made for fifty per cent more than could be voted under the general limitation which was in force when the latter statute was enacted. The natural interpretation of the petition, as well as the order of the state board, was that the request for the permission, as well as the permission itself, fixed the maximum amount authorized by the act of 1911. Without that act, only $6700 could have been voted by the appellee, but under its provisions, and the permission of the state board, authority was given to increase the issue by adding to the $6700 derivable from the one and one-half per cent of the taxable valuation, fifty per cent of that sum, which is substantially $3300, and the two together constituted the amount which thé district determined, at is annual meeting, should be expended on the new schoolhouse. That was the view taken by the school district board in making its application to the state board, when $10,000 was named as the amount of the proposed issue of bonds, and in the same document that sum was designated as the cost of the proposed new building. In the contest before the state board, both the advocates and opponents of the additional issue of bonds proceeded on the theory that the total amount of the proposed issue was $10,000. In the petition for an election to vote the bonds, as well as in the notice of that election, the amount of the proposed issue was specified as $10,000. We think the petition, order of permission, notice and call of election all indicated with reasonable certainty the amount of bonds to be voted for and used in the building of the new schoolhouse. There was no necessity for two elections, one under the general limitation and tfye other on the issuance of the additional amount. The statute evidently contemplates that after permission to vote the added amount has been obtained the proposition to be submitted is whether the whole amount authorized under both limitations shall be issued.
There are some other criticisms of the proceedings, but in all the preliminary steps there appears to have been a substantial compliance with the statutory requirements, and, therefore, the judgment of the district court will be affirmed. | [
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Per Curiam:
Action in ejectment. The defendants had judgment for costs. The plaintiffs appeal.
The case is controlled by the decision just handed down in Ewing v. Nesbitt, ante, p. 708, 129 Pac. 1135, in which it is held that the statute de donis and the rule of the common law expressed therein are in full force and effect in this state, and that an estate tail is capable of being barred by a conveyance of record made by the tenant in tail. It follows therefore that the conveyance made to the defendants by Robert O’Donnell, the sole surviving tenant in tail, and his wife, Huida O’Donnell, barred the issue born and unborn of the tenants in tail as well as the donors’ reversion.
.The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
W. M. Stuckey, one of the appellees, was tried and convicted of a felony in the district uourt of Franklin county and appealed to the supreme court. The form of a bond was prepared in the body of which were the following recitals:
“Now, Therefore, We, the said W. M. Stuckey, as principal, and John Bollman, H. J. Price, A. Reid, B. F. Caldwell, and J. C. Nelson, of Franklin county, Kansas, as sureties acknowledge ourselves indebted to the state of Kansas in the sum of $2000, for the payment of which, well and truly to be made, we bind ourselves,, our heirs and legal representatives, by these presents.
“The condition of this obligation is such, that if the said W. M. Stuckey shall, on the order or judgment of said supreme court, surrender himself to the sheriff of Franklin county, and shall in all respects abide .and perform the judgment and decision of said court in this action, then this obligation shall be null and void; otherwise to remain in full force and effect.”
The bond was signed by the persons named as sureties, except John Bollman, who did not sign it, neither did Stuckey. In this condition it was presented to the chief justice of the supreme court and was approved, and the stay of judgment against Stuckey was granted. Thereafter it was ordered by the supreme court that the appeal be dismissed and the appeal bond be forfeited unless the appellant W. M. Stuckey should surrender himself to the sheriff of Franklin county and. bring himself within the jurisdiction of this court within ten days.
Thereafter, upon motion and evidence of the failure of Stuckey to comply with such order, the supreme-court declared of record the bond forfeited and adjudged that the sureties who signed the bond should pay the county treasurer of Franklin county the amount of the recognizance, $2000.
Thereupon this action was commenced in the district court of Franklin county to recover on the bond. The petition in the action recited the facts in full, of which this is an abbreviated statement, and there was attached thereto, as exhibits, copies of the proceedings in the district court and in the supreme court, and of the bond and of the record of the forfeiture thereof. Judgment was prayed for against Stuckey, Price, Reid, Caldwell and Nelson. To this petition defendants Price, Reid, Caldwell and Nelson, filed a general demurrer, which was overruled, and' thereupon they filed an answer in which they alleged that the bond, as prepared, indicated that it was understood that it wns to-be signed not only by themselves but by W. M. Stuckey and John Bollman; also, that there was an agreement between themselves and the defendant, Stuckey, and John Bollman that they were not to become liable upon such bond unless Stuckey as principal and all the sureties named in the bond, including Bollman, should sign the same, and that the bond should not be delivered, to any officer of the state until so signed; that the bond was delivered in violation of such agreement; that the recital of the names of the persons by whom the bond was to be made was notice to the justice of the supreme court, who approved the bond, and to the state of Kansas of such agreement and understanding between the parties thereto that the bond should not become valid until signed by the principal and all the sureties named therein.
To this answer a general demurrer was filed on behalf of the state. Upon the hearing of such demurrer in the district court it was sustained, on the principle .that it searched the record and carried it back to the petition, and, the attorney for the state electing to stand thereop, judgment was rendered against the state for costs. To reverse these rulings the case, is brought here upon the appeal of the state.
The provisions and reqúirements' in regard to giving bonjls in felony cases like this are found in section 287 of the criminal code. By the provisions of this statute, the party appealing is not required to sign the bond.
An attempt is made to distinguish between a recognizance and a bond. There is no distinction and the words are used interchangeably in this state. (Ingram v. The State, 10 Kan. 630; Jennings v. The State, 13 Kan. 80.) Several other decisions have been rendered following these cases.
By the provisions of section 154 of the criminal code, no irregularity in giving the bond or in any pro ceeding relating thereto shall defeat an action upon the recognizance if it be made to appear that the defendant was legally in custody charged with a public oifense, that he was discharged by reason of the giving of the recognizance, and it can be ascertained from the recognizance that the sureties undertook that the' defendant should appear before a court or magistrate for examination or trial for such offense. The strict rule of the common law in reference to recognizances is changed by this statute. (McLaughlin v. The State, 10 Kan. 581.)
In Gay v. The State, 7 Kan. 394, it was said:
“A recognizance is not a contract between individuals. . . . It is an acknowledgment of record of a preexisting debt owing, by the cognizors to the state, not as sureties but as principals.” (Syl. ¶ 2.)
(See, also, Barclay v. The State, 15 Kan. 99.)
Regarded as a contract, the recognizance pleaded would at common law be a joint contract, but by the provisions of section 1638 of the General Statutes of 1909 it must be construed as a joint and several contract. It follows, therefore, that under such a recognizance, executed by several persons, an action would lie against any one, or any number less than all, or against all of the signers thereto.
The petition in this case stated sufficient facts to constitute a cause of action upon the bond against each one severally or against all jointly of the signers thereto. The order of the court, therefore, in sustaining the demurrer to the petition was erroneous.
It remains to inquire whether the court erred in declining to sustain the demurrer filed to the answer of the appellees. (Sewell v. Breathitt Lodge No. 649, F. & A. M., [Ky. 1912], 150 S. W. 677.)
It is urged that since the body of the bond indicated that it was proposed to be the obligation of Stuckey and Bollman jointly with the appellees, that this was notice to the justice of the supreme court who accepted and approved the bond that the instrument was incomplete. Also, that there was an agreement between the proposed makers thereof that the undertaking was not to bind any one of them until all of the makers, including Stuckey and Bollman, should sign the undertaking. This contention is negatived by the fact that the undertaking was several as well as joint, and, as we have seen, the instrument is an individual acknowledgment of each signer that, upon breach of the condition of the bond he would become individually indebted to the state, that he stands as a principal and not as a surety. It devolves upon each signer to such a bond, if he so desires, to see that the bond is not delivered to a public officer for approval until it is signed by all persons who afe to be obligated thereby.
Moreover, the provisions of section 154 of the criminal code fairly preclude the defenses pleaded to the action in this case. The signers of the bond are presumed to know the law, and when they individually signed the bond and delivered it to another to be delivered to the officer for acceptance, even if they had expected or had even agreed that the bond should not be valid until signed by others, if such bond came to the possession of an officer authorized to approve and accept it, and a defendant legally in custody, charged with a public offense, was discharged from custody by reason of the giving of the recognizance by which they undertook that the defendant should appear before a court or magistrate for examination or trial for such offense, they can not be heard to dispute their obligation. The demurrer to the answer should have been sustained.
The judgment is reversed and the case is' remanded with instructions to set aside the order sustaining the demurrer to the petition and to sustain the demurrer to the answer, and, unless further pleading is allowed, to enter judgment against the appellees as prayed for. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus against the state auditor to compel him to credit Kearny county with the sum of $5008.07, the amount of state taxes charged against it for the years 1888-1905, inclusive, and uncollected on sales of land for delinquent taxes. The object is to relieve the county from liability for such taxes on the certificate of the county commissioners and the county clerk that the sum stated is the proper proportion of state taxes remaining uncollected upon compromised tax sales. (Laws 1911, ch. 328.)
The liability of a county to the state for such taxes was considered in the case of Railway Co. v. Clark, 60 Kan. 831, 58 Pac. 561, decided in 1889, and in the case of Harper County v. Cole, 62 Kan. 121, 61 Pac. 403, the precise question under consideration was determined adversely to the plaintiff upon the statutes as they stood in the year 1900. In the Harper county case it was pointed out that counties are not relieved from liability to the state for uncollected state taxes upon real, estate and that the deficiency is to be made up by a special levy in the succeeding year. Chapter 199 of the Laws of 1885 provided that unrealized taxes should be distributed to the several funds entitled thereto, and that the county commissioners should certify to the auditor of state the proportion of state taxes uncollected for which the county was entitled to credit and that the auditor should credit the county with the amount. A penalty was imposed upon the county board for willfully making a false certificate. It was held that this credit was a provisional credit only in the matter of the accounting between the state and the county as to uncollected state taxes, and that the legislature did not intend to discharge the liability of the county to the state for such taxes.
At the session of 1901, immediately following the decision in the Harper county case, an act was passed using almost the identical language of the act of 1885.. The only innovations were that the certificate was to be made by the board of county commissioners and the county clerk instead of by the board alone, six months time from the taking effect of the act was given to claim credit on previous compromises, the uncollected portions of taxes upon subsequent compromises were to be certified to the auditor within sixty days, and the penalty for a false certificate was extended to “any officer” to include the county clerk. (Laws 1901, ch. 122.) If it were the purpose of the legislature to nullify the interpretation which the court had placed upon the provisions of the law of 1885 relating to credit in the auditor’s office for unrealized taxes, it failed to avail itself of any of the resources of the English language to express such a purpose. Instead of that it adopted in the act of 1901 the substantive provision of the law of 1885, which the court had interpreted, without material change, and under all the rules for discovering legislative intent it adopted the interpretation with the language to which it applied. In 1911, the act of 1901 was amended by again allowing sixty days time in which to certify unrealized taxes on previous compromises but in all other respects the act of 1901 was continued in force. (Laws 1911, ch. 328.). The action is based on the law of 1901 as amended in 1911. The court is entirely satisfied with the decision in the Harper county case, but if it were not, the legislature has accepted the decision as sound and has framed its subsequent acts accordingly.
The writ is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by the appellant against W. L. Schafer, A. D. Smith, J. A. Franz, and A. C. Franz to recover the difference between $37 per acre and $42.50 per acre for a section of land (fractional) in Pawnee county.
The undisputed facts are that appellant owned the land and employed Schafer and Smith as his agents to find a buyer therefor, and set the price at $40 per acre. Appellant lived in Sterling, Neb., and Schafer and Smith lived in Pawnee county, Kansas. Soon after receiving the agency Schafer and Smith wrote Kershaw that they had an offer from Franz of $37 per acre for the land and made some statements indicating that they thought he should take it, remarking that the wheat was not looking good, etc. The appellant promptly accepted the offer by letter, expressing some reluctance. About the time of receiving Kershaw’s .answer to the proposition, Schafer and Smith negotiated a sale of the land for Franz for $42.50 per acre.
The appellant contends that this offer was made, and it was known to appellees that one Wynn would give -this price for the land, before the appellees closed the deal with Franz for Kershaw at $37 per acre; that Franz conspired with Schafer and Smith to defraud appellant.
A trial was had and the jury returned a verdict in favor of A. C. Franz and failed to agree as to the other defendants. The case was continued as to these defendants and again tried. Parties waived any oral testimony and submitted the case on the transcript of the evidence taken on the former trial, which was read to the jury. The jury returned a general verdict in favor of J. A. Franz, and in favor of Kershaw and against Schafer and Smith for $1846.80, and made special findings of fact. Defendants Schafer and Smith filed a motion for a new trial and a motion for judgment on the special findings. Plaintiff Kershaw also filed a motion for judgment in his favor on the verdict and findings. The case was continued.
At the next term the motion for judgment for plaintiff on the verdict and findings was overruled. Also the motion for judgment on the findings in favor of the defendants was overruled. Defendants’ motion for new trial was sustained. The reason for sustaining the motion is stated as follows:
“Now, to-wit: on this 29th day of September, 1911, being an adjourned day of the regular June, 1911, term of this Court, this matter came on for hearing, upon the motion of the Defendants W. L. Schafer and A. D. Smith for a new trial of this cause, which motion had been by the Court held under advisement until this date.
“And the Court having heard argument of counsel, and being fully advised in the premises, grants a new trial, for the reason that the Court misdirected the jury in a material matter of law, by instruction number 4, in this: That the Court instructed the jury that the Defendants’ liability to Plaintiff continued until the purchaser had signed a contract for purchase, whereas as a matter of law, in the judgment of the Court, the liability of a selling agent of real estate to his principal is ended when he has in good faith submitted an offer to the principal which the principal had accepted.”
The appeal is from the order granting a new trial, and plaintiff asks to have the case remanded with instructions to render judgment in his favor and against Schafer and Smith in accordance with the verdict.
The appellees contend that the case depends upon the question of law whether dr not an agent, employed to find a purchaser for real estate, who secures an offer from a-proposed purchaser which is accepted by the principal, is held as such agent until the transaction is consummated, or can he, upon the acceptance of the offer, engage as agent for the proposed purchaser to resell the land. On the other hand, plaintiff contends that the case depends upon the question of fact whether or not the appellees knew, by having an offer or otherwise, that Wynn would pay more than $37 per acre before they negotiated the sale for plaintiff, and withheld this knowledge from him for the purpose of taking advantage thereof for themselves.
The court' instructed the jury upon the law as applied to the diverse claims in instructions Nos. 3 and 4, which read:
“3. In this connection I instruct you that if you believe thé transaction with J. A. Franz and A. C. Franz was in good faith, and that A. C. Franz, with the assistance of his father, was in good faith a purchaser of the land, and that at the time the contract was executed by A. C. Franz and the payment of $1000 made, Smith and Schafer were acting in good faith and had received no better offer for the land, then Plaintiff can not recover from them, and they had a legal right immediately upon the execution of the contract of purchase by Franz to become his agents for the purpose of selling the land again, and their obligation to Plaintiff had been fully discharged.
“4. If, on the contrary, you believe from a preponderance of the evidence that before the contract; with Franz was signed by Franz, Defendants Schafer and Smith, or either of them, had a bona-ficle offer of more than $37 per acre for the land, and for the purpose of taking advantage thereof themselves, withheld the knowledge of such offer from their principal, the Plaintiff, and closed the deal at a lower figure, then Plaintiff is entitled to recover from them the difference between $37 per acre and the amount of such offer, unless the Plaintiff shall have ratified their action as hereinafter explained.”
The jury returned a verdict in favor of the plaintiff for $1846.80 damages, and returned the following, with other, special findings of fact:
“Question 3. When was the letter of date February 21st written by Plaintiff received by Smith and Schafer? Answer. About February 26th, 1910.
“Question 4. When did Smith and Schafer communicate to J. A. Franz the fact that his offer had been accepted? Answer. March 2nd, 1910.
“Question 6. When was the contract of sale between Plaintiff and A. C. Franz for section 19 signed by A. C. Franz? Answer. March 2nd, 1910.
“Question 7. When was the contract for sale between Plaintiff and A. C. Kranz mailed by Smith and Schafer to Plaintiff? Answer. March 3rd, 1910.
“Question 12. Did not Plaintiff about -April 29th, 1910, in writing, extend the contract with A. G. Franz for nine days? Answer. Yes.”
Additional questions submitted by plaintiff, with the answers of the jury thereto, are as follows:
“Question 1. Is it not a fact that W. R. Wynn made an offer of $40 per acre for the land on February 28th, 1910, when he was viewing the land. Answer. Yes.
“Qestion 2. Is it not a fact that A. D. Smith offered the land to W. R. Wynn on the train going to Hutchinson on February 28th, 1910, at $42.50 per acre. Answer.' Yes.
“Question 3. Is it not a fact that A. D. Smith gave W. R. Wynn an option until March 4th (Friday), 1910, to take the land at $42.50 per acre? Answer. Yes.
“Question 4. Is it not a fact that W. R. Wynn did on March 3rd, 1910, agree to buy the land at $42.50 per acre, with Purdy, and made payment thereon of $500, and that the following day, March 4th, Wynn made formal written contract through Smith and Schafer for the land at $26,000? Answer. Yes.
“Question 5. Is it not a fact that Kershaw had no notice of a trade or a deal with Franz, and that no trade with A. C. or J. A. Franz was or had been consummated until after they had got an offer from W. R. Wynn. Answer. Had no notice.
“Question 6. Is it not a fact that Kershaw did not close any deal with either of the Franzs until March 11th, 1910? Answer. March 11, 1910.
“Question 7. Is it not a fact that Smith and Schafer, as agents of Kershaw, acted in bad faith with their principal and concealed from Kershaw the Wynn offer? Answer. Yes.”
As we have seen, the court granted a new trial on the ground of error in the fourth instruction given, in that it fixed the time at which the appellees were absolved from duty to their employer at the signing of the contract of sale and purchase between plaintiff and Franz. In overruling the motion for judgment the court held that appellees were absolved from such duty when they had informed the plaintiff of the oifer and he had accepted it. The latter proposition can not be sustained. The employer was in another state, and it certainly devolved upon his agents to inform the purchaser of their employer’s acceptance and to do whatever the circumstances rendered necessary to close the deal, assuming that nothing had occurred affecting the interests of the principal after the transmission of the offer. But a very important change in the situation had occurred. They had been offered $5.50 per acre more for the land some days before they communicated the offer to the purchaser. The jury found, and we think correctly, that they concealed this fact _ from their employer and were guilty of bad faith in so doing; also that in so doing they reaped a great advantage to themselves and their employer suffered a corresponding loss. By representing to their principal that the wheat on the land was in bad condition they had induced him to accept $3 per acre less for the land than the price he had authorized them to sell it for, and with knowledge that they could not only get the price he had fixed, but $2.50 per acre additional, they took advantage of his acceptance so procured, closed the contract at the accepted price, and immediately resold the land for the purchaser to another and gained to themselves $2222.80 thereby.
The following appears to be the general rule in these circumstances: An agent employed to find a buyer for land who has received an offer from a prospective buyer therefor, has communicated such offer to his absent principal and has received an acceptance from the principal, may, if he has no knowledge of a better offer, communicate such acceptance to the prospective buyer and close the deal, so far as his duties are concerned. Thereafter he may engage as agent for the purchaser and resell the land for an advanced price. If, however, the agent has information at any time before communicating the acceptance to the prospective buyer that a greater price can be had for the land than he communicated to his principal, then it is his duty, in the exercise of good faith, not to communicate the acceptance to the buyer, but to secure the higher offer for his principal and advise him thereof. (Moore v. Stone, 40 Iowa, 259; Short v. Millard, 68 Ill. 292; Walker v. Derby, [U. S. C. C.] 5 Biss. 134; Finnerty et al. v. Fritz, 5 Colo. 174.)
Instruction No. 4 given is not in full accord with this rule. In the slight variance therefrom the instruction is too favorable to the appellees. It might have misled the jury, but it conclusively appears from the special findings of the jury that the verdict was not influenced or controlled thereby so far as it was erroneous ; the error therefore becomes wholly immaterial. This court has recognized this principle in C. K. & W. Rld. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083, and in Aultman v. Miller, 52 Kan. 60, 34 Pac. 404, and in many other cases.
But it is said that after the appellees as agents of the plaintiff had executed a written contract with Franz for the sale and purchase of the land, and Franz had paid a part of the consideration, that the plaintiff extended the time of payment for a part of the consideration, and that in so doing with knowledge of the facts he ratified the transaction and can not be heard to complain thereof. In the absence of proof that Franz conspired to defraud the plaintiff, it is not clear that the plaintiff could at that time, and after the resale of the land, so far as appears, to an innocent purchaser, have avoided the sale .to Franz. Neither is the purpose of this action to avoid the sale to Franz, but to recover damages from the alleged unfaithful agents in the transaction.
The error in the instruction was not to the prejudice of appellees, and became immaterial. The evidence seems ample to support the findings and the findings to support the verdict. Hence the order setting aside the verdict was erroneous and materially prejudicial.
The order granting a new trial is vacated, and the case is remanded with instructions to enter judgment for the plaintiff upon the verdict. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought January 4, 1912, in the name of the state of Kansas on the relation of the attorney for the Public Utilities Commission for the state of Kansas to enjoin the appellant gas company from increasing the rate charged for gas in Kansas City and Rosedale from twenty-five to twenty-seven cents per thousand cubic feet without any order from the Public Utilities Commission authorizing such advance.
Section 30 of chapter 238 of the Laws of 1911 reads:
“Unless the commission shall otherwise order, it shall be unlawful for any common carrier or public utility governed by the provisions of this act within this state to demand, collect or receive a greater compensation for any service than the charge fixed on the lowest schedule of rates for the same services on the 1st day of January, 1911.”
In defense the appellant alleged that under ordinances' duly passed by the mayor and council of the respective cities in 1904 and 1905, it was authorized to advance the rate as. alleged; that the appellant accepted such ordinances, which thereby became contracts inviolate; that the appellant charged the rate of twenty-five cents per thousand cubic feet for gas -in the respective cities from the time of the enactment of such ordinances until November 19, 1911, from and after which date it advanced the rate to twenty-seven cents, as by the terms of the respective ordinances it was entitled to do. Trial was had in the district court, an injunction was allowed and the defendant appeals.
Two principal questions are involved in the decision of the case; first, has the Public Utilities Commission any jurisdiction to regulate and control the rates for gas in the respective cities. This question involves the meaning of the-words “public utility” as used in the public utilities act, especially as used in section 3,- and more particularly in the closing sentence of that section. Section 3 reads:
“The term ‘public utility,’ as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant, generating machinery, or any part thereof, for the transmission of telephone messages or for the transmission of telegraph messages in or through any part of the state,, or the conveyance of oil and gas through pipe lines in or through any part of the state, except pipe lines less than 15 miles in length and not operated in connection with or for the general commercial supply of gas or oil, or for the operation of any trolley lines, street, electrical or motor railway doing business in any county in the state; also all dining car companies doing business within the state, and’ all companies for the production, transmission, delivery or furnishing of heat, light, water or'power; provided, that this act shall not refer to or include mutual telephone companies. That mutual telephone companies, for the purpose of this act, shall be understood to mean any cooperative telephone company operating only for the mutual benefit of its subscribers without profit other than in the service received. Nothing in this act shall apply to any public utility in this state owned and operated by any municipality. The power and authority to control and regulate all public utilities and common carriers situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the right to apply for relief to said Public Utilities Commission as hereinafter provided in section 33 of this act.” (Laws 1911, ch. 238, § 3.)
It is contended by the state that the term “public utility” wherever used in the act means just what the legislature in section 3 has defined it to mean, viz.: “every corporation, company, individual, association of persons, their trustees, lessees or receivers,” etc.
On the other hand, the gas company contends that the term is used in the last two sentences in section 3 in a different meaning, viz.: the pipes and other physical properties by means of which the public is served, and that as these physical properties are sep-. arately and independently situated and operated in the two cities, that there is a separate and distinct public utility in each city, which each city respectively has authority to control and regulate, and over which the Public Utilities Commission has no jurisdiction. It is urged that the meaning of “public utility,” defined in section 3, could not be applied to the next to the last sentence in the section, which provides, in substance, that the act shall not apply to any public utility owned and operated by any municipality. It is said that a municipality could not own and operate a “corporation, company, individual, association of persons,” etc. Again, it is said that the qualifying words, “situated and operated wholly or principally within any city,” etc., by common usage relate to physical objects and not to corporations, companies, etc.
As applied in these two sentences the defined meaning of the term can not be said to have been fortunate, or rather the two sentences can not be said to have been fortunately constructed with reference to such mean ing. A reading of the entire act, in which the term “public utility” is frequently used, shows the intent of the legislature to use the term with the meaning defined even-in the two sentences referred to. For instance, in the first sentence of section 33 it is provided, in substance, that every municipal council or commission shall have the power and authority to contract with any public utility, situated and operated wholly or principally within any city, etc. The qualifying words are the same as used in the last sentence of section 3, yet it would be absurd to suppose that authority was intended to be granted to a municipal council or commission to contract with pipes or other physical properties employed in operating the business.
The gas company further contends that the jurisdiction of the Public Utilities Commission is confined to inter-county or state-wide utilities; that the public utilities act is intended as a home-rule provision; that it was intended, as shown by section 33, to give municipal councils or commissions power to contract with any public utility to the exclusion of the power of the Public Utilities Commission therein. This last contention is true, in a measure, but, as we have seen, it is limited to a public utility “situated and operated wholly or principally within any city [which means one city] or principally operated for the benefit of such city or its people,” and the appellant does not come within that description. Moreover, the appellant is not claiming under any contract made under the statute of 1911, but under an alleged contract made under chapter 122 of the Laws of 1903 (Gen. Stat. 1909, § 864 et seq.). This statute contained no provision authorizing cities to contract with a public utility, but did authorize (§51) the governing power of cities of the first class, in which is Kansas City, to “prescribe and fix maximum rates and charges, and regulate the collection of the same, for all water, electric light, heat, power, gas,” etc.
Chapter 136 of the Laws of 1903 (see Gen. Stat. 1909, § 749 et seq.), relates to cities of the second and third classes. Rosedale was in 1903, and still is, a city of the second class. Section 2 of this act authorized Rosedale “to contract for and fix rates for private consumers, for a period of not exceeding twenty years” for “furnishing water, heat, light or power for public or private use.” As authorized by this statute the mayor and council of Rosedale did by agreement with the appellant, it is said, pass ordinance No. 295, substantially like ordinance No. 6051, passed by the mayor and council of Kansas City, but with the further provision that no higher rate should at any time be charged in Rosedale than in Kansas City, Kan. This provision is a limitation upon the specified prices named in the ordinance. It follows, therefore, that if the appellant could not legally advance the rate in Kansas City from twenty-five to twenty-seven cents, it could not advance the rate in Rosedale. We may then disregard the greater power to contract given by the legislature to Rosedale and determine the case solely upon the grant of power to Kansas City, Kan.
Where the provisions of an act are plain and unambiguous we can only determine the meaning of it by its terms. Otherwise, we might compare it with contemporaneous legislation. The appellant correctly says that it was not conveying gas through a pipe line, but it was engaged in the business of furnishing and delivering gas to Kansas City and Rosedale and the inhabitants thereof. Heat and light, technically speaking, are not physical objects4 susceptible of transmission, delivery or furnishing, but are generated from combustible material or electricity. Indeed, the gas company furnishing Topeka operates under the name of Consumers Heat, Light & Power Company.
As said by the appellant, the utilities act was evidently framed upon similar acts in New York and Wisconsin. In section 1 of chapter 499 of the Laws of 1907 of Wisconsin the term “public utility” is defined to mean “every corporation . . . that now or hereafter may own, operate, manage or control any plant or equipment . . . for the production, transmission, delivery or furnishing of heat, light, water or power, either directly or indirectly to or for the public.” The language in this respect is the same as in the Kansas act and each fairly includes the transmission, delivery or furnishing of gas for light and heat.
We conclude that the meaning of the term “public utility,” wherever used in the act, is just what the legislature defined it to be, and that the seeming incongruities in the sentences referred to result from the too abbreviated expression of terms used therein. Also that it is the intent of the act to give the power and authority to control and regulate a public utility to a city only as to such public utilities as operate and do business within, or principally within, the city to which the control is given and not elsewhere. That where, as in this case, the corporation constituting the public utility operates and conducts its business separately in Kansas City and Rosedale, the full power to control the same is vested in the Public Utilities Commission of the state, as provided in section 1 of the public utilities act, which reads:
“The Board of Railroad Commissioners of the state of Kansas is hereby constituted and created a Public Utilities Commission for the state of Kansas, and such commission is given full power, authority and jurisdiction to supervise and control the public utilities and all common carriers, as hereinafter defined, doing business in the state of Kansas, and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.” (Laws 1911, ch. 238, § 1.)
The remaining, question is whether ordinance No. 6051 of Kansas City became, upon the acceptance thereof by the appellant, a contract binding upon the city, as it purports to be, for a period of twenty years after the passage and publication thereof.
In the case of In re Pryor, Petitioner, 55 Kan. 724, 41 Pac. 958, it was said:
“In certain cases the state may fix and regulate the prices of commodities and the compensation for services, but this is a sovereign power, which may not be delegated to cities or subordinate subdivisions of the state, except ip express terms or by necessary implication.” (p.,728.)
In The City of Leavenworth v. Rankin, 2 Kan. 357, it was said:
“Municipal corporations are creations of law and can exercise only powers conferred by law and take none by implication. In making contracts they must act within the limits and observe the regulations prescribed, else-there will be no contract. No subsequent act of the corporation can cure the defect where they do not. . . . Persons contracting with such corporations must inquire into their powers at their peril.” (Syl.)
(See, also, Leavenworth v. Laing et al., 6 Kan. 274, 287.)
Section 51 of chapter 122 of the Laws of 1903’ (Gen. Stat. 1909, §913), upon which reliance is placed as granting authority to the city to contract with the gas company, does not authorize the city to contract but does authorize the city “to prescribe and fix maximum rates and charges, and regulate the collection of the same. . . . The rates and charges so prescribed shall at all times be reasonable and just; and if any city shall fix unreasonable and unjust rates and charges, the same may, at the instance of any producer or consumer, be reviewed and determined by the district court of the county in which such city is situated.”
In section 170 of the same act (Gen. Stat. 1909, §1034), is the following:
“The mayor and council of any such city shall at all times during the existence of any such grant, contract or privilege have the right by ordinance to fix a reasonable schedule of maximum rates to be charged for pub- lie and private purposes, including street-lighting, . . . for gas ... or heat.”
If section 51 should be construed as granting to the city the power to fix, once for all, the rates during the existence of the grant, this provision—that the city should at all times have such power—would be meaningless. It can be fairly construed only to rnean that the city may at different times change the rate to meet changing conditions.
Section 170a (Gen. Stat. 1909, § 1035) of the act provides for granting a franchise to construct, maintain and operate a natural gas plant for the purpose of furnishing a city and its inhabitants natural gas for light, fuel and all other purposes, with authority to lay or maintain all necessary mains and pipes in the streets, avenues, alleys and public grounds of the city, on such terms and conditions as may be agreed to by the mayor and council and such person, company or corporation.
In accordance with the rules of construction laid down in Freeport Water Company v. Freeport City, 180 U. S. 587, and other authorities cited, infra, the clause “that such franchise shall not continue for a longer period than twenty years” (§ 170a) qualifies the clause “to lay and maintain all necessary mains,” etc., and not the clause, “on such terms and conditions as may be agreed to by said mayor and council and such person, company, or corporation.” If it were intended to convey the right to fix by agreement or contract with the public utility the rates to be charged for the service, such intent can not be found in the language employed. If the provisions of section 170a are ambiguous and it is a matter of doubt whether the construction above given of the terms thereof is correct, or whether, as contended by the gas company, the city was thereby authorized to contract and fix the rates for service on such terms and conditions as may be agreed to, the doubt must be resolved in favor of the public and not in favor of the appellant. (Freeport Water Company v. Freeport City, supra.)
In Rogers Park Water Company v. Fergus, 180 U. S. 624, it was said:
“A governmental function in a statute granting powers to a municipal corporation can not be held to have been granted away by statutory provisions which are doubtful or ambiguous.” (Syl.)
(See, also, Owensboro v. Owensboro Waterworks Co., 191 U. S. 358; Stanislaus County v. San Joaquin C. & I. Co., 192 U. S. 201; Water, Light & Gas Co. v. Hutchinson, 207 U. S. 385.)
We conclude that by the provisions of chapter 122 of the Laws of 1903 the mayor and .council of Kansas City were not authorized to contract with the appellant the rates for supplying gas to the city or its inhabitants for a period of twenty years, or for any term; that without such authority no such contract is valid; that though chapter 136 of the Laws of 1903 did authorize the mayor and council of Rosedale to make such contract and they did make such contract, the contract was limited by the provision in the ordinance that no higher rate should be charged in Rosedale than in Kansas City; that the appellant had no right to raise the rate from twenty-five to twenty-seven cents on November 19, 1911, without the 'consent of the Public Utilities Commission.
The judgment in this case purports to be a perpetual injunction prohibiting the appellant from raising the rate in either city from the rate collected January 1, 1911. It is conceded by the appellee that the rate may be raised if consent or permission therefór be given by the Public Utilities Commission of the state of Kansas. As we have seen, no valid contract exists between the appellant and Kansas City, and hence the rate for gas therein may be increased by , the appellant to whatever sum per thousand cubic feet shall receive the-con sent and approval of the Public Utilities Commission. In Rosedale, however, a contract authorized by lav/ exists, and such contract, with the limitations therein provided, must govern any advance in that city.
It is therefore ordered that the judgment be modified as indicated herein and as so modified it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These were actions brought by theappellees against the Chicago, Rock Island and Pacific Railway Company to recover for injury and destruction of their crops alleged to have resulted from the negligent construction of embankments and bridges on which appellant’s railroad was placed. The Cottonwood river flows from west to east through a level valley in Marion county and drains a large scope of country. In 1888 appellant constructed its railroad from north to south across the valley at nearly right angles with the river. The line of the Atchison, Topeka and Santa Fe Railway Company was constructed from east to west parallel with and about nine hundred feet north of the river. The lands of appellees lie west of appellant’s railroad and north of the Santa Fe railroad, in the northwest angle formed by the two railroads. The valley is low and wide at this point and both railroads are constructed on embankments of earth. The point where appellant’s bridge is built across the river is higher than any of the lands in the valley for a considerable distance in either direction, and the abutments of the bridge are about one hundred and nineteen feet apart. The land slopes from the bridge towards the southeast and the embankments on which appellant’s railroad is laid vary in height, the average height south of the bridge being between seven and eight feet, and north of the bridge' it ranges from two to fourteen feet. About one-half mile south of the bridge the railroad intersects a swale, or depression, which begins about three and one-half miles up the river and at a low place in its bank, and runs in a southeasterly direction, connecting with Spring Branch,' which runs into the river below the city of Marion. When there is high water the overflow from the river passes down this swale into Spring Branch and reunites with the water in the main channel of the river. On July 10, 1909, a heavy rain fell in that section which caused the river to overflow and run down the swale and against the embankments of appellant’s railroad, and the claim is that because of insufficient openings in the embankments the water was held and finally thrown north across the river and over the Santa Fe embankment, inundating the appellees’ farms. For a time the water extended from, bluff to bluff, across the valley, and was approximately a mile and. a half wide. The angle in which appellees’ lands are situated filled up with water, and it was contended, because the appellant did not provide sufficient outlets for "the water through its embankments, that the flood water was held on appellees’ lands for several days, destroying their crops. In answer to special questions the jury found that the openings at the bridge and in the embankments approaching it were insufficient to accommodate the flow of flood water and that appellant’s embankments prevented the flow of flood water from appellees’ lands, causing the damage of which complaint is made. By their verdict the jury awarded the appellees $1400 as damages in one case and $900 in the other.
In this appeal it is contended that appellant was not negligent in the construction of its bridge and embankments, because the flood of 1909 must be regarded as unusual and extraordinary, one not to be •anticipated. The testimony was to the effect that there was a flood in 1877, but that the flow of water was then unobstructed and hence little damage was done. Floods did occur in 1899,1900,1901,1903, two in 1904 and one in 1906, followed by the one in question. That of 1900 was so high that the water stood threé feet deep in the streets of Marion, and that of 1903 was so great that the water covered the valley and flowed over appellant’s embankments and washed out its track, while that of 1906 washed out appellant’s embankment at the swale. After each of the floods of 1903 and 1906 the appellant raised its embankments. Following the flood of 1903 the appellant placed one sixty-inch pipe and one forty-eight-inch pipe through its embankment at the swále, and after the 1906 flood an opening sixty feet wide was made at that place. Since the flood of 1909, the one in question, the appellant dug a ditch along its track near appellees’ lands, about thirty-seven feet wide and twelve feet deep, which carries off the water from the lands of appellees. At the bridge the channel of the river from bank to bank is two hundred and sixty-six feet wide, while the opening at the bridge between the piers or abutments is only one hundred and nineteen feet wide. Testimony was given to the effect that the residents of the valley, after the flood of 1877, anticipated a recurrence of them, and buildings and streets were raised considerably above the former levels.
The contention that the history of the river and of that section of the country demonstrates that the flood of 1909 was unusual and extraordinary is answered by the evidence and the findings and verdict of the jury. The fact that the flood was unusual and nut of the ordinary does not necessarily relieve the appellant from liability. In Kansas City v. King, 65 Kan. 64, 68 Pac. 1093, the same contention was made, but the court held that while a flood might be regarded as unusual, yet if floods occurred again and again at irregular intervals it was only reasonble to anticipate that they would occur again, and hence it was the duty of those obstructing the flow of water to make provision for such floods. In Railway Co. v. Herman, 74 Kan. 77, 85 Pac. 817, where damages were sought because of the obstruction of a stream, it was said:
“The test of liability, however, is not whether the rainfall was unusual or extraordinary, but whether it was such as might have been reasonably foreseen by bringing to the building and maintenance of the bridge such engineering knowledge and skill as is ordinarily applied to such work. In the minds of some a freshet is neither usual nor ordinary, but since they do occur occasionally, and may reasonably be expected to occur, provision should be made for them.” (p. 79.)
The same view was taken in Union Trust Company v. Cuppy, 26 Kan. 754, and Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034.
In O. & M. Ry. Co. v. Ramey, 139 Ill. 9, 26 N. E. 1087, it was said:
“The question, then, is not whether appellant has sufficiently provided for the escape of water of ordinary floods, but, has it provided for the escape of the water of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred after intervals, though of irregular duration, in the past.” (p. 13.)
It matters little what term is applied to a flood, and it may be that a flood such as has occurred at intervals for a number of years and which it is reasonable to expect will occur again should not be designated as extraordinary, but whatever name is given to it a liability will arise against one whose obstruction causes the overflow and injury if he 'was in fact- bound to anticipate and provide against such a flood. Here there had been nine floods, and in some of them the rainfall was as great and the water as high or higher than that of 1909, and in view of the frequency of the floods, as well as the topography of the country, it was fairly a question for the jury whether the flood of 1909 was one to be- reasonably anticipated and provided for. In constructing its embankments and bridge appellant was required to exercise reasonable care to provide outlets for the uninterrupted flow of water in its accustomed channels. What is due care is the degree that an ordinarily prudent man would exercise, and in respect to the 1909 flood the question is, would a prudent man have anticipated and provided for it? It may be that the flood of 1877 alone did not require appellant to anticipate that the like would occur again, but when these floods were repeated so many times it can not be held that the jury had no basis for their findings that the floods should have been anticipated and provided against. Even if the knowledge and experience of the engineers who planned the road when it was built had led them to believe that the openings first left in the embankments were sufficient, that would hot prevent liability if the floods .occurred so frequently thereafter that appellant had reasonable grounds to anticipate that they would occur again. If the recurring floods demonstrated that the outlets for water were insufficient, it then became the duty of appellant to make additional provision for them. Indeed, the appellant did make additional openings after some of the floods, but it appears that those made were inadequate to carry off the superabundant water which had flowed through the valley before and which it was reasonable to expect would flow again.
Another contention is that the flood water which passed down the swale against the embankments of appellant, and was thrown back upon appellees’ lands, should be regarded as surface water, which may be obstructed without liability. There is a diversity of opinion whether the overflow of a stream is to be considered as a part of the watercourse or as surface water which may be obstructed without responsibility, but in recent decisions this court has held that overflow water which leaves the main channel and flows down a natural depression, presently to return, as in this instance, is to be treated as a part of the stream, and that those placing bridges or embankments across such watercourse are. bound to provide an outlet for the overflow that is reasonably to be anticipated. In Manufacturing Co. v. Bridge. Co., 81 Kan. 616, 106 Pac. 1034, it was said:
“There are cases intimating and. even expressly holding that whenever the banks óf a stream are overflowed the surplus becomes at once surface water—a ‘common enemy,’ against which any one may protect himself. The great weight of authority, however, supports the view that it is to be so regarded only in case it has ceased to be a part of a general current following the channel; that if it continues to flow in the same direction while outside of the banks, returning thereto upon the subsidence of the- flood, it is to be deemed a part of a running stream, and. that it only loses its character as such when it spreads out over the open country and settles in stagnant pools or finds some other outlet.” (p. 621.)
The same rule was applied in Roland v. Railway Co., 82 Kan. 546, 108 Pac. 808, and other supporting authorities are: Fordham v. Northern Pacific Ry. Co., 30 Mont. 421, 76 Pac. 1040; Uhl v. Railroad Co., 56 W. Va. 494, 49 S. E. 378; Clark v. Guano Co., 144 N. C. 64, 56 S. E. 858; Town of Jefferson et al. v. Hicks, 23 Okla. 684, 102 Pac. 79; Chicago, B. & Q. Rld. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540; 40 Cyc. 639; and 3 Farnham on Waters and Water Rights, § 879.
Although it is contended that the bridge and em bankments did not cause the injury and the loss for which appellees sought a recovery, there is testimony tending to show that but for the obstructions made by the appellant the loss would not have been sustained. On what appears to be sufficient testimony the jury, in effect, found that because of appellant’s embankments being without sufficient openings the overflow water was backed up and forced north across the Santa Fe track and upon appellees’ lands. There is a conflict in the testimony as to whether the water was thrown there by that obstruction or came upon the land from other sources, but the finding of the jury settles that conflict. According to the evidence given in behalf of appellees the water was forced back on appellees’ lands by the obstruction at the swale, and then because of the lack of sufficient outlets at the bridge and through the embankments north of the river the water was held on the land long enough to injure the crops and cause the damage for which these actions were brought.
Complaint is made of the fifth instruction given to the jury, but it is in consonance with the ruling in Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034, a ruling which is followed in this decision. The sixth instruction, to which objection is made, also appears to be within the rules already stated. The seventh instruction interpreted literally would appear to be in conflict with the rules stated in the fifth instruction. The jury were told that “a swale, slough or depression which carries water only in time of floods or excessive rainfall is not a watercourse the obstruction of which by a railroad embankment without openings will render the company liable for damages.” The jury found, in answer to special questions, that the swale south of the river did not carry anything but surface water under ordinary circumstances, nor any water from the river except at such times as when the river-overflowed its banks. Taken out of its connection with the other portions of the charge, the instruction would appear to be erroneous, but if it be error it is one in favor of appellant. The court probably meant that a swale or depression like the one in question, which only carries water in times of flood or heavy rainfall and which has no defined channel or permanence of flow, can not be regarded as a watercourse subject to the ordinary rules in regard to the obstruction of watercourses. Á different rule applies, however, where the swale carries the overflow water which leaves the main channel of the river and flows through the swale in the same general direction as the river, and which returns to and reunites with the river when the floods subside, and this distinction was recognized by the court- in other instructions given. Considered in connection with the findings and other parts of the charge it can not be said that the jury were misled by this instruction, and in any event it is clear that the appellant could not have suffered any prejudice on account of it.
Some other criticisms are made of the charge, but we find no material error in it, nor any ground for reversal. The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action is upon a promissory note made by the appellee to the order of the appellant. The defense is based upon the following facts: The appellee gave to the Kemper Grain Company his nonnegotiable promissory note, the words “to order or to bearer” not being contained in the instrument. (Neg. Inst. Law, § 8, Gen. Stat. 1909, § 5254.) This instru ment was given to cover margins in a board of trade transaction or speculation in the price of wheat, no actual sale or delivery having been contemplated. The instrument was transferred by indorsement without recourse to the appellant before maturity for full -value, who took it without knowledge of its consideration or of the transaction in which it was given. At maturity the appellee told the appellant that he had lost the money and had given the note to settle for margins in a board of trade transaction, paid the .accrued interest, and gave the note sued upon for the principal sum; thereupon the old instrument was surrendered to him.
The deal out of which the original instrument arose was in violation of section 5169 of the General Statutes of 1909. Having been given in a gambling transaction in violation of law, it was void between the parties because of illegality of consideration. (The State v. Wilson, 73 Kan. 334, 343, 80 Pac. 639, 84 Pac. 737; 1 Randolph on Commercial Paper, 2d ed., §§ 515, 517; 1 Parsons on Notes & Bills, p. 212.)
Whether a negotiable promissory note given for such •consideration is void in the hands of a bona fide holder for value is a question upon which the decisions are in conflict. The annotator in 119 Am. St. Rep., at page 176, declares that there is a hopeless conflict on this •question, and supports his declaration by a multitude of citations. This question, however, is not involved here, for the instrument was not negotiable and the transferee was not entitled to the protection given to the holder of negotiable instruments in due course. Neither is' the action upon that obligation.
It is a general rule that a renewal between the parties of a note void for illegality of consideration is likewise void. (3 Randolph on Commercial Paper, 2d ed., § 1584; Bishop on Contracts, 2d enlarged .ed., § 488.) Many decisions support this rule, but the new note here was not given to the payee of the old one, but to his indorsee, and it is contended that the general rule is inapplicable to this situation. The argument of the appellant is that the new note should be treated as a payment and not as a renewal. This is not the effect of giving a new note unless it is so intended or agreed, and there is nothing in the evidence to show that it was received otherwise than in the usual way in renewal of the former obligation. (2 Daniel on Negotiable Instruments, 5th ed., §§ 1266, 1266a; 3 Randolph on Commercial Paper, 2d ed., § 15710-
While the cases are numerous in which the effect of renewals between the parties of notes tainted by illegality of consideration are considered, not so many have been found involving renewals given to an indorsee or assignee. In Missouri, where the note of a married woman given for a worthless patent right, was invalid because of her coverture, it was held to be void in the hands of an indorsee, and that a new note given to the indorsee in renewal, to which her want of ability did not attach, was also void. The court said:
“The original note being void because of the inability of the payor, Mrs. Leedy, to make a contract of this kind on account of her coverture, it was void in the hands of plaintiff as indorsee even without notice of the fact that it was obtained by fraud, and was without consideration; and, although the last note was given in renewal of the first, there was no consideration therefor, and it was subject to. the same defenses as was the original note. (Comings v. Leedy, 114 Mo. 454, 478, 21 S. W. 804.)
In California, in an action upon a promissory note made in renewal to the assignee of a nonnegotiable instrument which had been given in consideration of a gambling debt and indorsed to the payee of the note sued upon, it was held that an assignee of such an instrument is in no better position than the payee, and that notes given in renewal are of no more validity than the original obligation. It was also held that although the renewal notes in that case were given in compromise of a suit pending upon the old note, they were still tainted with the illegality of that instrument and payment could not be enforced. It is true that it was alleged that the assignment was only color-able and that the assignee to whom the renewals had been executed was only an agent of the first payee. This feature of the case was not, however, deemed important. It was said in the opinion:
“Ufnder the rule which we hold applicable -here, it would seem that the question as to whether Reid (payee of the renewal notes), or the ‘undisclosed equitable owner,’ whom he testified that he represented, had actual notice of the circumstances under which the McMahon notes were given, was entirely immaterial in this controversy. Those notes, as already stated, were not' negotiable, and the successors of McMahon took them subject to any objection that might be made to their validity. They stand here in the shoes of McMahon, and any answer to a claim based thereon that would have been available against him is available against them. This includes not only such defenses as might seasonably be urged by the maker of the notes, but also such objections to the enforcement of the claim on the ground of illegality as might appear to the courts when an attempt was made to enforce it. They took the notes with knowledge, conclusively imputed to them, that if they were ultimately found to be based upon an illegal consideration, there could be no recovery thereon, and that the maker of the notes could not by any agreement of ratification or compromise render them or instruments given in place thereof enforceable by the courts, when their illegality should be made to appear. The defense of want of notice of the illegality of a contract is available only where the contract is a negotiable instrument in the hands of one who has acquired it for value before maturity and in the ordinary course of business. . . . It is therefore unnecessary to determine whether the evidence shows that Reid had actual notice of the invalidity of the notes at the time they were transferred to him.” (Union Collection Co. v. Buckman, 150 Cal. 159, 166, 167, 88 Pac. 708, 119 Am. St. Rep. 164, 171, 9 L. R. A., n. s., 568, 11 A. & E. Ann. Cas. 609.)
Elsewhere in the same opinion it was said:
“That a court refuses to allow the law and the machinery of the courts to be made use of for the enforcement of illegal contracts, and leaves the parties precisely where it finds them, under the rule expressed in the maxim, ‘Ex turpi causa non oritur actio.’ It is, therefore, settled that the failure of the party against whom such relief is sought to make objection upon the ground of illegality, or the waiver of such objection by him, or even his express consent that the court may enforce such illegal contract, will not justify a court in enforcing the same.” (p. 164.)
The assignee of a nonnegotiable instrument stands in the shoes of the payee. A defense available against the payee is also available against him. (Graham v. Wilson, 6 Kan. 489.) It should also be observed that when the appellant took the note upon which he sues, he was told that the original instrument had been given in settlement of margins in a board of trade transaction.
In Mason v. Jordan, 13 R. I. 193, it was held that a note given in substitution or novation of another note which had been made without consideration is also without consideration. In that case a married woman had conveyed realty as a feme sole, which it was held that she could . not legally do in the circumstances shbwn. Her grantee made a conveyance of the property to another. Thereupon the woman referred to canceled a note and mortgage which she had taken in consideration of her deed and by substitution or novation took the note and mortgage of the last grantee. The court held that the deed of the married woman was a nullity and the notes taken therefor were without consideration; that the grantees having received noth ing had nothing to convey, and consequently the second note was also without consideration. It was said:
“It follows if the original note and promise were both without consideration, that the- new note into which they were transmuted by novation was likewise without consideration.” (p. 194.)
A note given for an illegal consideration in furtherance of transactions prohibited by statute, and in fact declared to be felonious, is certainly no better than one given without any consideration, and unless the payment made to the Kemper Grain Company should be treated as the consideration, the appellant can not recover. It is believed that the true consideration for the new note is the old obligation. To hold otherwise would seem to give to the nonnegotiable instrument the quality of negotiability,, excluding a defense good against the payee. However, decisions bearing upon that question will now be considered. In a case in North Carolina it appeared that a negotiable note had been given for money won at cards. It was indorsed to a holder for value before maturity, without notice of the consideration. In a suit by the indorsee the court said:
“A note to secure the payment of money won at cards, is void by statute. Although the note be passed by indorsement, for valuable consideration,. and without notice to the indorsee, it is void in his hands. So, if the.maker executes a second note to the original payee, either in renewal of the first note simply, or including another debt, the second note is void; for it is to secure the payment of money won at cards, and the taint in the part of the consideration vitiates the whole—‘a rotten egg.’ Palmer v. Giles, 5 Jon. Eq. 75.
“In our case the maker executed the second note to Calvert, who was the indorsee for valuable consideration, and without notice. This second note was given to secure the price paid by Calvert for the first note, and not to secure the payment of the money which Christmas had won, for the purpose of making it must be referred to the proximate, and not the remote cause. The consideration, therefore, is not tainted by the illegality which vitiated the first note.”- (Calvert v. Williams, 64 N. C. 168.)
The all-important distinction between that case and this is that the first note was negotiable. The indorsee having the right to enforce payment, would have the same right with respect to a renewal note.
In Burton v. Stewart, (N. Y. Supr. Ct.) 62 Barb. 194, a negotiable note given to the president of a corporation for an illegal consideration was held to be enforceable by a bank which had discounted it before maturity, without notice of the infirmity, and it was also held that another note given to the bank in renewal was a.valid obligation against the maker. It was said, however, that if the president of the corporation, payee in the first note, had taken it up at maturity he could not have recovered upon it, for he would have held it clothed with the same rights existing at the time of the transfer. It will be seen' that the renewal note in the case last cited was held valid because the original note was negotiable and was taken in due course.
In a case in Kentucky the subject was considered from a somewhat different point of view. Several notes had been given for lottery tickets—an illegal consideration. They were assigned, and the maker, having obtained forbearance for some time from the assignee, made a new note for the amount of the old ones to a creditor of the assignee, and thereupon the assignee was given corresponding credit on his indebtedness to the new payee. The new note was held valid, on the ground that the maker could waive the illegality, and had done so by giving the renewal note. The court said:
“Whatever illegality there may have been in the lottery, or fraud in the management and drawing thereof, and however availing the illegality and fraud may have been when urged by Olds in vacation of the notes, of which the tickets were the consideration; yet it was competent for him to waive the illegality and fraud, and affirm them. This, we think, he has done in a very effectual manner, for it is not pretended that Levin Shreves did not pay a fair and full consideration for them; his claim to this amount was honest, and could have been enforced against the assignor, upon his failure to receive it in the exercise of vigilant pursuit, from the obligor. But the obligor, with a full consciousness of his legal exemption .from the payment, promises the assignee payment, and by repeated promises of payment obtains repeated forbearance, and at length takes up the four notes, and executes to the creditors of the assignee his note for their aggregate amount, whereby the assignee obtains a credit with them for that amount. This, we think, is a strong practical waiver by Olds, of whatever of fraud and illegality there may have been in the original transaction.” (William Shreves et al. v. William Olds, [Ky.] 2 A. K. Marshall, * 141.)
The proposition that illegality of consideration is waived by a renewal made to the same party, or to another with notice of the taint, is opposed to the weight of authority. Randolph says:
“The consideration which belongs to the original paper belongs to a renewal also. This is true also of a note given by the maker of the original note, with its payee as surety, to a subsequent holder of such note, in renewal of it.” (1 Randolph on Commercial Paper, 2d ed., § 460.)
“The principle is that where the original promise is tainted with illegality the taint can not be removed by a new promise based on the old one.” (Note, 9 L. R. A., n. s., 568.)
A contract made for the purpose of giving effect to an agreement void because opposed to public policy is also void unless the contract be negotiable, and in the hands of a bona fide holder for value before maturity, without notice of its character. (Greenhood on Public Policy, rule 10, p. 8.)
In an action by the holder of a note made to an in dorsee of another note which had been given by. the same maker for an illegal consideration, it was held that:
“The same defense, which the defendant might have made to an action by an indorsee of the note originally given by him, may be made by him in this action on the note given in renewal of the original note. Both notes were given for the same unlawful consideration.” (Holden v. Cosgrove, 78 Mass. 216, 217.)
It has been held that the compromise of an entirely unfounded claim is not of itself a valid consideration for a new promise to pay it. (Creutz v. Heil, &c., 89 Ky. 429.)
It was said in Pitkin v. Noyes, 48 N. H. 294, that:
“The surrender or discharge of a claim, which is utterly without foundation, and known to be so, is not a good consideration for a promise; . . . but it is otherwise if the claims are doubtful and so understood by the parties, and in such a case the consideration will not be defeated by showing that in fact no valid claim really existed.” (p. 304.)
This appears to be the general rule. (Wharton on Contracts, § 533.)
This principle applies with greater force where the claim compromised is based upon an unlawful as distinguished from a merely insufficient consideration. (Union Collection Co. v. Buckman, 150 Cal. 159, 88 Pac. 708, 119 Am. St. Rep. 164, 9 L. R. A., n. s., 568, 11 A. & E. Ann. Cas. 609; Reed v. Brewer, [Tex. Civ. App. 1896] 36 S. W. 99.)
Where a note given in consideration of the sale of a stock of intoxicating liquors had been surrendered, and a new note had been taken from a firm to whom the stock had been transferred and an action was brought and goods attached upon the new note, it was held that the consideration of the first note was illegal and that this infirmity affected the new note, both having been taken with notice of the illegality. It Was also held that a compromise of the suit whereby the attachment was -released upon promise to pay the note was not a sufficient consideration. The.court said:
“The original notes of Blake and Caldwell, as between the parties to them, had no legal validity or value, Fuller v. Bean, 80 N. H. 186, Bliss v. Brainard, 41 N. H. 261, Perkins v. Cummings, 2 Gray, 258, Gray v. Hook, 4 Comst. 449, (and see Viser v. Bertrand, 14 Ark. 267, 15 U. S. D. 19, sec. 90,) and would have been equally valueless in the hands of an indorsee with notice. Chitty on Bills, *95. It would seem somewhat strange if the surrender of such notes by one, in whose hands they were void, to the maker or another, in whose hands they would be equally invalid, could furnish a sufficient consideration for a note by either of the latter to the former; . . . we think that the trouble of the surrender can not, in a case like this, be held a sufficient consideration for the notes given by Blake &'Wilkins, for if either of these latter propositions were true, there would be a sufficient consideration for the renewal of the notes between the original parties. The surrender, forbearance or- assignment of a claim having no legal validity is not a sufficient consideration for a promise. . . . The abandonment of legal proceedings commenced where there is palpably no cause of-action, is not a good consideration for a promise.” (Kidder v. Blake, 45 N. H. 530, 532, 533.)
The appellant had already paid his money to the Kemper Grain Company when he took the new note. He parted with nothing nor did the appellee receive anything in consideration for it. It was a mere substitution of one promise for another, both resting upon the same illegal consideration, of which the appellant had actual notice as well as notice afforded by the form of the original instrument. (Graham v. Wilson, 6 Kan. 489.) The renewal is not free from the infirmity of the original instrument. The poison of illegality remains in the new note, for it is a continuation of the former.
An observation of the supreme court of Texas is deemed applicable here:
“If a note is tainted by the consideration of the de mand for which it is given, there can be no good reason for drawing the line at the first note. If the first is taken up and a new one given in its stead, to obtain an extension of time, to embrace in it additional demands, or for other purposes, the illegal consideration is as distinctly traced in the second note as in the first. The new considerations dilute but do not neutralize or extinguish the poison.” (Wegner Bros. v. Biering & Co., 65 Tex. 506, 510.)
The appellant cites Calvin v. Sterritt, 41 Kan. 215, 21 Pac. 103, in support of his contention that the new note is valid. The result in that case, it will be seen, depended on a question of fact. It was said, however, in the opinion:
“The general rule, as laid down in the text by Daniel in his work on Negotiable Instruments, is, that if the consideration of the original note be illegal, a renewal of it will be open to the same objection and defense (p. 163, § 163) ; but if at the time the renewal was executed the parties signing knew of the fraud in the original, .they will be regarded as purging the contract of fraud, and can not then plead it.” (p. 219.)
The latter part of the above quotation is set out in appellant’s brief. It will be observed that the court referred first to illegal considerations, and said that renewals in such cases would be open to the same defense, and then referred to cases of fraud which might be purged from a contract by renewal made with knowledge of the fact. This distinction is clearty stated by the author referred to in the opinion:
“If the consideration of the original bill or note be illegal, a renewal of it will be open to the same objection and defense; and if the original instrument was obtained by fraud, a renewal of it by the original parties without knowledge of the fraud would stand upon the same footing. But if at the time the renewal was executed the parties signing knew of the fraud in the original, they will be regarded as purging the contract of the fraud, and can not then plead it.” (1 Daniel on Negotiable Instruments, 5th ed., §205.)
It will be seen that the opinion in the Calvin case merely undertook to briefly state propositions contained in the treatise referred to, which are not in conflict with but which support the conclusion that where a renewal note is taken with notice of the illegal consideration of the original instrument, it is tainted with the same illegality and payment will not be enforced.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to quiet the title of real estate which was homesteaded by the appellant, Samuel E. Davidson, in 1877. It appears that in 1879 he gave two mortgages thereon, one to secure a loan for $412 and another for $150, each bearing interest at twelve per cent per annum. In 1879 default was made and the mortgages were foreclosed, and later, in 1881, the decree of foreclosure was modified. In 1881 Davidson was adjudged insane and taken to the hospital for the insane, where he remained about thirteen years. In 1882 the land was sold under the judgment of foreclosure to Kos Harris, who shortly afterwards assigned his interest in the land to Geo. H. Lantis. In 1880 the land was sold for th.e taxes of 1879, and the tax-sale certificate was assigned to Harris on May 20, 1882, and was at once reassigned by him to Lantis, who paid the taxes on the land for the subsequent shears of 1880, 1881 and 1882 and in 1883 a tax deed was issued to him. Upon the issuance of the tax deed Lantis went into possession of the land and remained in possession of it until June 3, 1903, when he was dispossessed by a special mandate issued by the supreme court. In 1894 Davidson began an action to set aside the decree of foreclosure and all of the subsequent proceedings in the foreclosure' case, including the sale of the land and the sheriff’s deed, and on June 13, 1896, a judgment to that effect was rendered. In the trial of that case it was found that the proceedings were absolutely null and void and hence were ineffectual to convey the title of the real estate from Davidson to Lantis. It was therefore adjudged that all of the s'teps in the foreclosure proceedings should be vacated and that Davidson should be put into the full and undisputed possession of the land. In that controversy no finding or adjudication was made with reference to the validity of the tax deeds nor with reference to the right of subrogation under the mortgages. Error was prosecuted from that judgment to the supreme court, where the judgment was affirmed. (Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745.)
In 1901 the appellee, Lantis, brought an action in which he claimed a lien against the land for the taxes paid and also asked to be subrogated to the rights of the mortgagees in the foreclosure proceedings which had been set aside as invalid. This case was subsequently dismissed without prejudice for want of prosecution. While the' last-named action was pending Davidson obtained a special mandate from the supreme court, upon an ex parte application, summarily ordering that he be put in immediate possession of the land. The court was not advised of the pendency of the proceedings, nor was it brought to its attention that Lantis had asked the trial court to determine the tax and other liens before surrendering possession of the land. Under that decree Davidson was put into possession. During all the time between April 8, 1899, and June 3, 1903, the land was involved in litigation between Davidson and Lantis in which Davidson was seeking-for possession of the land and the recovery of rents and profits thereon, while Lantis had brought a number of injunction suits. On April 10, 1910, seven years after Davidson had gained possession of the land, he brought this action against Lantis and others to quiet his title to the land in controversy. Lantis pleaded that he had an interest in the land by virtue of a tax deed, and that he had paid taxes for a number of years which entitled him to a lien thereon. He also asked to be subrogated to the rights of the mortgagees in the foreclosure proceedings. In his reply Davidson claimed that Lantis was not entitled to any lien for taxes nor td the rights' of subrogation, and he further pleaded'that these questions had .been adjudicated in another action and were not open to further inquiry. Upon a trial of the action in July, ,1911, judgment was rendered quieting Davidson’s title to the land, subject, however, to a tax lien in favor of Lantis in .the sum of $1366.64, and which denied any relief to Lantis under his claim for subrogation to the mortgages illegally foreclosed. Davidson complains of that part of the judgment which makes the land subject to a tax lien, while Lantis, in a cross-appeal, complains that the court erred in the computation of the taxes, and he insists that he was entitled to a lien of $2016.02, and also that he should have been subrogated to the rights of the mortgagees and awarded a lien for $3667.50.
Several errors are assigned by Davidson upon rulings admitting testimony and upon other proceedings had during the trial, but these are hot available for the reason that no transcript of the evidence or proceedings has been procured or made a part of the record by appellant. Nothing is before us except pleadings, findings and judgment. Some statements as to the steps taken in .the trial are made in Davidson’s abstract and brief, but these can not be considered for the reason that Lantis has had no opportunity to test the correctness of the statements nor to make a counter abstract showing what’ actually occurred during the trial. In the absence of a transcript this court can not settle conflicting claims as to the proceedings in the trial court nor determine whether rulings referred to in the findings of that court on such proceedings may not have been controlled by evidence, admissions or waivers not preserved in the record. (Civ. Code, § 574; Baker v. Readicker, 84 Kan. 489, 115 Pac. 112; Typewriter Co. v. Andreson, 85 Kan. 867, 118 Pac. 879.)
The special findings which are in the record disclose that a part of the files of the case brought by Lantis a number of years ago to establish tax and mortgage liens. against the land, and which was subsequently dismissed without prejudice, were admitted in evidence. Davidson insists that these were not within the issues, and besides, the files were not properly authenticated, or identified. As the record is brought here, there is no way of determining whether the papers so introduced were properly identified or authenticated, or whether identification and authentication were not rendered unnecessary by the concession or waiver of the appellant. Testimony as to' the acts and claims of parties in the earlier litigation may have been pertinent and proper in order to ascertain the equities in the case and to show the extent of Lantis’ possession, and whether the rights asserted herein were barred by any limitation. At any rate we can not state,-upon the record before us, that the evidence was improperly received, and if it were granted that it was not strictly within the issues it can not be decided that it was prejudicial to Davidson.
There is complaint, too, of certain rulings which excluded offered testimony, but these can not be reviewed, for the same reasons and the added one that it does not appear from the record that the excluded testimony was produced on the motion for a new trial as the code requires. (Civ. Code, § 307; Cooper v. Greenleaf, 84 Kan. 499, 114 Pac. 1086; Greer v. Mercantile Co., 86 Kan. 686, 121 Pac. 1121.)
Another claim is that the answer of Lantis did not warrant the court in giving him more than he asked, that is, affirmative relief by providing for the enforcement of the tax lien. There is nothing substantial in this claim. Davidson brought the action to have the title to his land quieted, and asked that Lantis be required to set forth the interest which he claimed in the land. Lantis answered by pleading the payment of the taxes, the issuance of the tax deed, and other facts which tended to support his right to a tax lien as well as a mortgage lien by way of subrogation, and then he followed these allegations by asking that his rights under both claims be protected. In his reply Davidson denied the right of appellee to a tax lien and also to any mortgage lien, and thus we see the question of the right of Lantis to a lien for taxes paid was properly raised. There is very little difference between a prayer to have the rights of Lantis, because of the payment of taxes, protected and a specific request for the foreclosure and enforcement of his lien for taxes. It is the fact stated in the pleadings rather than the prayer which determines the nature and extent of the relief which shall be awarded to a party, and the trial court was clearly within the line of duty when it provided for closing up the contentions between the parties by determining the interests and rights of each and ordering the enforcement of the lien adjudged. This, tax lien of appellee was sufficiently pleaded, and presumably it was sufficiently proved, and hence it was the duty of the court to provide for its enforcement. Further than that, appellant was not entitled to have his title quieted as against appellee until he had done-equity by the payment of the taxes legally charged against the land and by discharging any existing liens held by Lantis. After inviting Lantis to set up his interest and to have it adjudicated, Davidson is hardly in a position to object to a judgment which determined that interest and which directed the enforcement of a. lien found to exist.
The claim that the right of Lantis to assert a tax lien is barred can not be sustained, as no statute of limitations was pleaded by Davidson. Aside from that, the claim for a lien had been asserted in litigation which was pending between the parties from 1899, when Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745, Was-decided, until about the time the present action was brought. The trial court found on facts, all of which are not preserved, that the right to a tax lien was not barred by any statute of limitations.
An objection is also made that rents and profits were-not set oft" against the tax lien as equity requires. A finding of the trial court answers this objection, where it is stated that no such issue was raised in the case, and no proof as to rents and profits was offered. (Olson v. Peterson, ante, p. 350, 128 Pac. 191.)
Again, it is contended that Lantis was not entitled to a tax lien, upon the theory that he was an owner when the taxes were paid. The foreclosure sale and deed were declared to be void, and hence Lantis was not an owner by virtue of such sale and deed; neither can it be said that there was a merger, for although Lantis entered into possession under the tax deed it has been expressly found by the trial court that there was-no merger of the interest he acquired under the tax deed and the claimed title under the sheriff’s deed that was set aside. It appears that Lantis did not obtain a title to the land by either the foreclosure proceedings or, the tax deed which turned out to be invalid. The contention that the tax deed was adjudicated in Lantis v. Davidson, supra, can not be upheld, as the court explicitly finds that Lantis’ right to a tax lien was not determined in the judgment rendered in that case. Neither can it be held that his right to a lien was concluded by the special mandate which was issued from this court and under which Lantis was dispossessed of .the land. It appears that that order was made on an ex parte application, and that the claim of Lantis for a lien for the taxes he had paid was not brought to the attention of the court, and neither was the court advised that Lantis had instituted an action, which was then pending, for the determination of his lien before surrendering possession of the land. The special mandate, therefore, did not operate as an adjudication of the tax lien, nor did it preclude Lantis from setting up the tax lien in this action.
Aside from the considerations mentioned, appellant has brought an equitable proceeding to quiet his title, in which he brings before the court the validity of the tax and other liens claimed by Lantis. As he is seeking equity it devolves upon him to do equity, and it is only equity that he should discharge the lien for the taxes legally charged against his land and which have been paid by the, opposing party. (Herzog v. Gregg, 23 Kan. 726; McKeen v. Haxtun, 25 Kan. 698; Richards v. Cole, 31 Kan. 205, 1 Pac. 647; Black v. Johnson, 63 Kan. 47, 64 Pac. 988; Wagner v. Underhill, 71 Kan. 637, 81 Pac. 177; Miller v. Ditlinger, 81 Kan. 9, 105 Pac. 20; Baldwin v. Gibson, 85 Kan. 267, 116 Pac. 827.)
In Ms cross-appeal appellee complains that he was not allowed a higher rate of interest than twelve per cent on the taxes paid, but as ownership of the land was in litigation in several courts of the state from the time the tax deed was issued the rate of interest prescribed in section 282 of the law of taxation applies. It is there provided that:
“In case taxes are paid by any party whose lands are in controversy in any of the courts of this state,'and the party so paying shall fail to recover said land, he shall be entitled to collect from the parties recovering the taxes so paid, with twelve per cent interest thereon; and the taxes so paid shall be a lien on any such land.” (Gen. Stat. 1909, § 9495.)
It can not be held that the refusal of the court to grant appellee relief under the old mortgages, or to give him mortgage liens by way of subrogation, is error, as the testimony upon which the decision of the court rests is not in the record.
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The opinion of the court was delivered by
Porter, J.:
Rosa Johnson, the plaintiff, holds a teacher’s certificate of the second grade issued by the county board of examiners of Wabaunsee county, July 1, 1911, authorizing her to teach school. On September 8, 1912, she sent her certificate by mail together with a fee of one dollar addressed to the defendant who is county superintendent of public instruction of Saline county and requested him to indorse the same as provided by law. Not hearing from him she went to see him and made the same request, which he refused stating no reason for his refusal. She thereupon brought this action to compel him to perform the duty and to indorse the certificate. The cause is submitted upon defendant’s motion to quash the alternative writ.
The contention of the defendant is that the statute providing for the indorsement by the superintendent of certificates from other’counties imposes upon him a purely discretionary duty and one which he may or may not perform as he sees fit. The statute reads:
“No certificate shall be of force except in the county in which it is issued: Provided, That the county superintendent- may indorse unexpired professional and first-grade, second- and third-grade certificates issued in other counties, on payment of the usual fee of one dollar, which certificate shall thereby be valid in the county in which such indorsement is made for the unexpired term of the certificate. A certificate issued under this act may be revoked by the board of examiners on the ground of immorality or for any cause that would have justified the withholding thereof when the same was granted.” (Gen. Stat. 1909, §.7495.)
The statute clearly imposes a mere ministerial duty upon the superintendent which he may not arbitrarily refuse to perform. If the legislature had intended to impose upon such officer the duty to inquire into the qualifications of the holder of such certificate to teach school it doubtless would have used language indicating such a purpose. The certificate is issued in the first place by a board with discretion to pass upon the qualifications of the applicant, and when issued is conclusive upon superintendents in other counties, until some valid reason is shown to exist which would make the holder disqualified to become a teacher. The allegations of the writ are that the defendant without condescending to state any reason refused to perform a plain duty imposed upon him by the statute.
In Jordan, Superintendent, v. Davis, 10 Okla. 329, 61 Pac. 1063, the Oklahoma court had occasion to construe a statute which is in substantially the same language as ours except that it applies to first-grade certificates alone. The court there held the duty imposed upon the superintendent to be imperative. It was said in the opinion that the purpose of the law is to enable the holders of such certificates to teach school in any county by having their certificates endorsed by the county superintendent; that the law is for the benefit of the teacher and not the superintendent, and the following language was quoted from the opinion of the supreme court of the United States in Supervisors v. United States, 71 U. S. 435, where the word “may” in a statute was held to impose an imperative duty:
“What they are empowered to do for a third person the law requires shall be done. The power is given not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a reipedy to those entitled to invoke its aid, and who would otherwise be remediless. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose a ‘positive and absolute duty.’ ” (p. 447.)
In the Oklahoma case it was expressly stated that no objection was made to the teacher or to her certificate; that the county superintendent stood upon his right to refuse on the grounds that the law does not compel him to endorse. In the case at bar the facts recited in the alternative writ and confessed by the motion, show an arbitrary refusal to perform the duty. Being asked what his reasons were the superintendent refused to state any. It is obvious that valid grounds might exist which would justify a county superintendent in refusing to endorse a certificate, but where the certificate had been regularly issued it is prima facie valid, and the superintendent may not arbitrarily refuse his endorsement. The statute imposes a duty upon him and creates a corresponding right in the holder of the certificate to have it endorsed. Unless valid reasons exist for withholding his endorsement his duty is imperative.
The motion to quash is overruled.
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The opinion of the court was delivered by
Burch, J.:
The actions in which these appeals were taken were instituted by the holders of rival tax titles to the land in controversy.
The original title was vested in Adelaide S. Alden, who died in 1902. Neither she nor her heirs ever held actual possession. In February, 1903, a tax deed, regular on its face, but based on irregular proceedings, was issued to Marion Proctor and was duly recorded. In September, 1906, another tax deed was issued to Franklin Banchor and was duly recorded. This deed was good on its face, but was voidable for a number of reasons. In December, 1909,.Banchor found the land unoccupied and took possession. In 1910 he brought suit to quiet his title, making Proctor and the unknown heirs of Adelaide S. Alden parties defendant. Proctor answered, claiming title under his tax deed, alleging possession and asking that his title be quieted against Banchor. At the trial the allegation of possession and the prayer for affirmative relief were withdrawn. Judgment was rendered refusing to quiet Banchor’s title as against Proctor, and Banchor appeals. (Case No. 17,889.)
It is claimed that Proctor suffered his interest in the land to lapse by failing to take possession within two years from the recording of his tax deed. In 1904 an agent of a company said to be acting for Proctor entered upon the land in his name and leased to a tenant who sublet to a resident of the neighbor hood for farming and grazing purposes. The lessee kept the land rented for two years. The principal defect in this proof, to which attention is called, is the lack of antecedent authority in the company acting for Proctor. Even if the act of taking possession in his name were not authorized at the time, Proctor could .subsequently ratify it, as he did by producing the proof relating to it in support of his title. The condition of the statute was satisfied by taking possession and excluding adverse occupancy within the time limited for that purpose. There is no evidence of a subsequent abandonment of possession generally to anyone who might desire it. (Buckner v. Wingard, 84 Kan. 682, 115 Pac. 636.) Some contention is made that actual possession under Proctor was not in fact shown. If this were true the land was vacant until Banehor entered, the statute did not begin to run until that time (Gibson v. Hinchman, 72 Kan. 382, and cases cited at page 384, 83 Pac. 981), and the two years within which Proctor might sue for possession had not elapsed when judgment was rendered. The general finding of the court, however, disposes-of the contention in Proctor’s favor.
In the action to quiet title a judgment was taken by default against the Alden heirs. Afterwards Eben C. Crockett and Adelaide A. C. Somes appeared and procured this judgment to be opened. They answered the petition, claiming that they were heirs of Adelaide S. Alden and asserting that the Banehor tax deed was invalid, and prayed for possession. Judgment was rendered to the effect that Banehor had no claim upon the lan'd except a lien for taxes, and providing that he be ejected and Crockett and Somes be placed in possession upon their satisfying the lien. Banehor appeals. (Case No. 18,118.)
Crockett and Somes established inheritance from Adelaide S. Alden, but the number of such heirs and the fractional interest of each one were not shown. For this reason it is claimed the judgment is erroneous. The respective shares to which Crockett and Somes are entitled are matters which may well wait for determination in an action for partition. Meanwhile they are entitled to possession upon satisfaction of Banchor’s tax lien, but the court should not have excluded him from possession in common with them without definite proof on their part that they are the sole heirs of Adelaide S. Alden. They made no such claim, and the fair inference from the evidence adduced is that there are other heirs. The judgment quieting title against all persons inheriting from Adelaide S. Alden stands in full force and effect except against Crockett and Somes. No defenses except theirs were interposed and the rights of their coheirs are cut off. While the judgment quieting title did not transfer the title of such heirs to Banchor (Lockwood v. Meade, 71 Kan. 739, 81 Pac. 496), it did render his tax deed unassailable by them. He no longer holds under a tax deed voidable by them, and Crockett and Somes were not entitled to the entire and exclusive possession as the tenant in common was in the case of Horner v. Ellis, 75 Kan. 675, 90 Pac. 275. However, in view of the turn which the litigation took, and which is about to be discussed, it is not necessary that the judgment be modified.
The Hays Land and Investment Company purchased the Proctor title, and in March, 1911, brought an independent action to redeem frorii Banchor. The cause was submitted on the evidence introduced in the suit to quiet title, and judgment was rendered for the land company. Banchor appeals. (Case No. 18,119.)
The statute provides that “any owner, his agent or attorney,” may redeem. It is argued that the Hays Land and Investment Company is merely the assignee of a tax lien and consequently is not an owner within the meaning of the statute. The court has already held, in accordance with the universal view of the authorities, that the word owner means any one who has a substantial interest in the property which might be affected by the tax proceedings. (Steele v. Dye, 81 Kan. 286, 290, 105 Pac. 700.) It is said that the special statute allowing a mortgagee to redeem should be interpreted as denying the right to all other' lien holders. The purpose of the statute, however, was not simply to confer the right to redeem but to give a mortgagee an additional foreclosable lien for taxes which he maybe compelled to pay to protect his mortgage. (Gen. Stat. 1909, § 9494.) It is said that Banchor holds the superior title, although his tax deed is voidable, because he is in possession, and that if the holder of the Proctor title should be permitted to redeem he may be deprived by indirection of a possession from which he could not be ousted by ejectment. 'Banchor’s title is not, however, superior to the Proctor title. Proctor took possession within two years, and the five-year statute has run in favor of his deed as against the original owner. Therefore he and his grantee are no longer mere claimants under a tax deed, but occupy the position of the original owner. (Cone v. Usher, 86 Kan. 880, 122 Pac. 1049.)
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The opinion of the court was delivered by
Benson, J.:
A survey of section 13, township 12, range 22, in Trego county, was made upon the request of a landowner. The appellant owns the west half of section 13 and the northeast quarter of section 14, and contends that the north boundary is several rods north of the line established by the survey. The correctness of the starting point of the survey, which is on the range line at the southeast comer of the section, is not disputed. The contention appears to be over the location of the southwest and northwest corners, where the monuments of the government survey are missing.
Oral evidence was received tending to prove the following facts: In March, 1879, a survey was made by Mr. Peck, a deputy county surveyor, of the town of Ogallah on the line of the Union Pacific railroad in the south half of section 23, in the same township and range. The surveyor found the government monuments at the northwest, southwest and southeast corners of the section. No monument was found at the northeast corner, which is the southwest corner osection 13, and this corner was relocated by the surveyor by measurements from other corners whermonuments remained, and from the line of the railroad, the location of which was shown by the government plat and field notes made after the road had been built. Measurements were also made south from the line of the railroad to the southeast corner of section 23 to verify the location of the missing northeast corner. A stone was then set to mark the corner so relocated, which has since been recognized in the neighborhood as the true corner. Public roads intersecting at that corner have been fenced and traveled for over twenty years.
In May, 1885, Mr. Ferris, county surveyor, made surveys of lands in sections 11 and 14 and marked the northeast corner of section 14 (which is the northwest corner of section 13)—then missing. Mr. Nelson, the appellant, assisted in the survey in section 14, acting as flagman. The southeast corner of section 14 was established by that survey at the same point marked by Peck as the northeast corner of section 23 in his survey just referred to. The surveyor set a stone at the northfeast corner of section fourteen (southeast of section 11), designated as the “Ferris corner.” This stone remained in place until after the survey by Mr. Harlan was made. The appellant, who owned the northeast quarter of section 14, then built a fence west from that stone along the north line of his land, which was continued by other owners of land to the west, which fence still stands. The appellant’s fence stood until it rotted down. It stood back a few feét from the boundary indicated by the Ferris survey, because of a road along that boundary. In making the Ferris survey a government monument was identified at the half-section corner on the west boundary of section 11. Other government monuments were also found in the vicinity. One was standing at the northwest corner of section 23. Other section corners were found and identified.
In making the survey appealed from the surveyor started at the southeast corner of section 13, and a line was run west at a variation of 17° 27' south, 39.50 chains, as the report states, to “old *4 corner” and 79.13 chains , “to the known and established corner, 13-14-23-24.” This is the Peck corner. Thence north between sections 13 and 14, at a variation of 11° 42' east, 41.95 chains “to a stone in road corner,” and 83.90 chains “to Ferris corner, 11-12-13-14.” Thence east between sections 12 and 13, at a variation of 14° 27', 39.54 chains, where stones were set for % corner, and 79.19 chains to “known and established corner on 7-12-13-14 [18] on range line.” The *4 corner stone on the east line of section 13 was found in place. The center of section 13 was established by running straight lines from opposite quarter-section corners—the point of intersection being marked as the center. Measurements' were not made from other government • corners in the same township or vicinity.
The distance between the Peck and Ferris corners' is 83.90 chains, and between the latter corner and the section ’ corner north of it, established also by Mr. Ferris, the distance is approximately the same. This apparent excess—supposing the Peck corner to have-been rightly located—was therefore divided, both in the Ferris survey and in the one appealed from, between the two rows of sections. No record of the Peck survey was shown. A record of the Ferris survey was read, showing among other things that the surveyor marked the northeast corner of section 14 (the Ferris, corner) by stone and sod marks, and that John Nelson (the appellant) and others witnessed the setting of stones.
The appellant contends that as the government, monuments at the northwest and southwest corners of the section surveyed in the proceedings appealed from were missing the surveyor ought to have made measurements from known government corners in the vicinity and determined whether the Peck and Ferris, corners were correctly located, and that in the absence of such confirmation the field notes should have been followed—which appear to locate these corners otherwise than these monuments indicate—and that in any event the surveyor disregarded the statute and the survey should have been set aside.
The statutory rules referred to are copied in In re Martin’s Appeal, 86 Kan. 386, 120 Pac. 545, and affirm the principle that missing corners shall be established in accordance with the- government survey,, and when this can not be done they may be reestablished according to the government field notes, adopting proportionate measurements when necessary. It was held in Tarpenning v. Cannon, 28 Kan. 665, that:
“In establishing the lines and corners for owners of adjacent tracts of land, the surveyor must disregard the lines as shown by the field-notes of the United States survey, if the corner-stones set by the government can be ascertained as originally located.
“A boundary line long recognized and acquiesced in-is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared.” (Syl. ¶¶ 2, 3.)
The boundaries wherein the Peck and Ferris corners were marked appear to have been generally acquiesced in, the former since the year 1879, and the latter since the year 1885. They were well known in the neighborhood and to the surveyors and treated as correct by the landowners, including the appellant. He assisted in the Ferris survey as an interested owner, and by his conduct in erecting a fence in accordance therewith along the north line of the lands in section 14, then owned by him, evinced his acquiescence. .While the fence was placed a few feet from that line because of a public road, the stone and the line extending west from it were apparently regarded by him as the true boundary for more than twenty years.
In this situation the remarks of Judge Cooley, quoted in the Tarpenning case (28 Kan. 665) are pertinent:
“ ‘To bring these lines into discredit, when people concerned have not questioned them, not only breeds trouble in the neighborhood, but it must often subject the surveyor himself to annoyance and discredit; since in legal controversy the law, as well as common sense, must declare- that a supposed boundary line long acquiesced in is better evidence of where the real line should be than any survey made after the original monuments have disappeared.’ (8 Engineering News, No. 8, 156-158.)” (p. 668.)
When these former surveys were made, many government monuments were still in place, and were regarded in reestablishing the missing comers. The surveyor in this case availed himself of the work of his predecessors who had better evidence before them than was available to him. Witnesses present at those surveys described how they were made and what monuments were observed. If this evidence was competent the finding of the court that the present survey was correct ought not to be disturbed merely because exact measurements made according to the field notes might vary the boundaries.
“Where known government corners are shown, or, in cases where they have disappeared, if their location can be ascertained, the monuments must govern, and the field notes of the government survey must be disregarded.” (Foskuhl v. Herzer, 77 Kan. 809, syl. ¶ 1, 91 Pac. 56.)
With near-by monuments in place when the former surveys were made it is more probable that correct results were reached by regarding the corners then reestablished than can be done by making a new survey from the field notes and monuments now remaining, disregarding the markings made in the former surveys. Especially is this true, where the parties interested living near the Jands affected, with the knowledge gained by actual daily observation, have long acquiesced in the boundaries fixed by the former surveys.
It is contended, however, that parol evidence of the former surveys was incompetent. It is true they were not made under the statute, so as to have the conclusive effect given to records of surveys made in that manner. This, however, does not exclude evidence of the facts shown in this case. While not conclusive, it is admissible as tending to show that the stones set by the surveyors were placed at the same points marked in the government survey. The court appears to have so considered the evidence, and for this purpose it is held competent. Like evidence was held admissible in Haughton v. Bilson, 84 Kan. 129, 113 Pac. 400. In In re Martin’s Appeal, 86 Kan. 336, 120 Pac. 545, a former survey was referred to in the opinion as evidence to be considered in ascertaining where the missing corners had been established by the government. In Dent v. Simpson, 81 Kan. 217, 105 Pac. 542, it was held that the record of a former survey, whether valid and binding or not, was admissible to explain a survey in controversy. A similar ruling was made in Holliday v. Maddox, 89 Kan. 359, 18 Pac. 299. The supreme court of Michigan used language pertinent in this case:
“We have no doubt the county surveyor who made the survey of 1879 was intelligent and had the purpose to be accurate. But we have no reason to suppose the one who made the survey of 1856 was not equally trustworthy, and the circumstances were • altogether more favorable to a correct result at that time than when the last survey was made. The land was then but recently located; it is highly probable that corner posts and witness trees remained; if they were gone, there might be disinterested persons in the neighborhood who had seen them and could assist in determining their location, and there was then no existing: dispute and litigation to interest parties in leading the surveyor astray.” (Case v. Trapp, 49 Mich. 59, 61, 12 N. W. 908.)
The statute permits the examination of witnesses by the surveyor. (Gen. Stat. 1909, § 2274.) Manifestly upon a review of a survey in the ^district court such evidence may be heard, whether the surveyor has called the witnesses or not. The surveyor appeared to have knowledge of the former surveys, and of the circumstances of the marking of the Ferris corner, and the court heard the evidence and found the facts, which confirmed the correctness of the surveyor’s conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
The city of Emporia, a city of the second class, desirous of extending its boundaries, presented its petition to the judge of the district court of Lyon county, under section 1, chapter 69, Laws of 1886 (Gen. Stat. 1901, § 1052), asking said judge to make a finding as to the advisability of adding certain territory therein described to the city, which petition included eleven acres, at that time the rural homestead of plaintiff in error. Notice of this application was given as required by law, and upon a hearing the judge found that to add a part of the real estate, which contained the residence of plaintiff in error and his family, to the city would be of interest to the city and of no manifest injury to plaintiff in error. Afterward, and pursuant to said finding, the city council passed an ordinance adding said territory to the city and included it within the city limits thereof. The plaintiff in error commenced this action in the district court of Lyon county to enjoin the city of Emporia, and its officers and their successors, from exercising the corporate power of the city of Emporia over the land of plaintiff in error thus brought into the city, and to enjoin it from extending the corporate limits of said city over said land. Upon the trial plaintiff in error was defeated, and he brings the case to this court.
The first contention is that the law authorizing said proceedings before the judge of the district court is unconstitutional and void, because it was an attempt on the part of the legislature to impose legislative power upon the judicial department of the state government. This question has been determined by this court against the contention of plaintiff in error, and is no longer an open one in Kansas. (Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736; City of Emporia v. Randolph, 56 Kan. 117, 42 Pac. 376.)
The second contention of plaintiff in error is that, because the judge of the district court did not include in his finding the entire tract belonging to plaintiff in error, it was equivalent to a denial of the whole petition. No line of reasoning is suggested by which we may arrive at this conclusion, and we are unable to conceive of any.
The two propositions presented to the judge for his determination were : (1) Whether it was of interest to the city of Emporia to include within its corporate limits these several tracts of land, or a portion of any of them; (2) whether it would cause manifest injury to the person owning any of said several parcels of real estate, or any portion of any of them, to include such tract or part thereof in the city limits. These questions the judge had to determine. Pie found in regard to a part of the tract belonging to plaintiff in error that it would do no manifest injury to him to have a portion of it included within the corporate limits of the city.
Another contention is that the journal of the proceedings of the council containing the record of the passage of such ordinance does not show that the final vote was taken by yeas and nays, and therefore it could not have been properly passed. The record does show that all the councilmen were present and voted, and that this ordinance was passed by a unanimous vote. We think this is sufficient.
It is also contended that, by the exercise of this power, the homestead exemption of the plaintiff in error was reduced from eleven acres to one acre; that under the constitution one residing outside the limits of an incorporated city may hold exempt from forced sale 160 acres; that a.resident of a city, under the same provisions of the constitution, can only have exempt one acre, with the improvements thereon.
Whether the homestead of plaintiff in error is reduced to one acre by incorporating it within the city is a question that cannot be litigated in this case. The ordinance does not take from him any land which he owned prior thereto; he still remains the owner of all the land he owned before the passage of the ordinance. Whether his homestead exemption is reduced to one acre can only be determined when an attempt is made to subject a part of what was his rural homestead to the satisfaction of his debts. That question is not presented in this case.
The final contention is that the taxes which plaintiff in error will be compelled to pay in the city are in excess of what he would be required to pay if left in the township, and that such fact is conclusive evidence that it would be of manifest injury to him to be brought into the city. This argument, if true, would preclude every city in the state from extending its boundaries. But the judge of the district court had a hearing, when this and all other questions of fact of a like character were submitted, and his findings against the plaintiff in error are as conclusive upon this court as are the findings in the trial of any other cause.
We find no error in the proceedings or judgment of the court below. It is therefore affirmed.
Dostek, C.J., Johnston, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In an action by M. D. Barnes to recover from the Southern Kansas Farm Loan and Trust Company, guarantor of certain mortgage notes and coupons, she set up copies of the notes and coupons on which there was a blank indorsement signed by the trust company, but no allegation as to the execution of an indorsement was included in the petition. There was an averment of the execution of the guaranty, and a copy of the same was attached to the petition. The trust company filed its answer, containing a general denial and a plea of the statute of limitations. At the trial the plaintiff offered no evidence, but claimed judgment on the pleadings, and the trust company offering no evidence, the court, over its objection, gave judgment for Barnes.
The principal question presented is, Did the unveri fied answer put the ownership of the coupons in issue ? The petition alleged that the trust company agreed to pay to the legal holder the amounts of the coupons as they became due, and it was further alleged that Barnes was the owner and holder of them. The answer of the defendant traversed every material allegation of the petition and put the allegations of ownership in issue. Ownership is a fact distinct from indorsement, and, besides, there were no allegations in the petition of the execution of the indorsement, nor even that plaintiff had acquired ownership by indorsement. ' If the execution of an indorsement had been alleged, it must have been accepted as a fact, the answer not being verified. It is true that blank indorsements do appear on the copies of the coupons attached to the petition, but no reference or averment in respect to them was made by the pleader, and it is an allegation of the execution of an indorsement, not of the ownership, that is admitted, in the absence of a verified denial. (Civil Code, §108; Gen. Stat. 1901, §4542.) The indorsements on the back of the copies of the coupons do not even indicate whom the transferee is. Even if they did, the plaintiff does not allude to the execution of any indorsement, or hint that she acquired ownership of the coupons by that means. It is well settled that, in the absence of such an allegation, an unverified denial is sufficient to put the ownership of paper like that in controversy in issue, and places the burden of proof on the plaintiff. (Washington v. Hobart, 17 Kan. 275; Morris v. Case, 4 Kan. App. 691, 46 Pac. 54; Pattie v. Wilson, 25 Kan. 326; Hutchison v. Myers, 52 id. 290, 34 Pac. 742.)
The claim that the cause of action is barred by the statute of limitations cannot be sustained. The amended petition is a continuation of the litigation as at first instituted, and it relates back to the filing of the original petition. At that time the cause of action was not barred on the guaranty and coupons.
For the error of the court in giving judgment for plaintiff on the pleadings without proof, there must be a reversal and another trial.
Smith, Greene, Ellis, JJ., concurring. | [
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Error from Cowley district court. | [
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Per Curiam:
The defendant in error sued the plaintiff in error, a building and loan association, to recover certain sums of money deposited with the latter by the former, and evidenced by certificates of deposit and written agreements of repayment. The certificates and agreements promised repayment according to a specified order of priority between the different ■depositors and certificate holders in the association, and the defendant’s answer averred that the contract period for payment had not yet matured. Whether or not it had matured could not be told from the paper in question. A demurrer to the answer for insufficiency of facts to constitute a defense was sustained. This was manifest error. The judgment of the court below is therefore reversed, with directions to overrule .the demurrer.'
Loster, O. J., Johnston, Smith, Ellis, JJ. | [
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The opinion of the court was delivered by
Ellis, J.:
It is insisted that the trial court erred in permitting the counsel for plaintiff below to elicit from Mr. Heller, an engineer, upon cross-examination, the following testimony:
‘ ‘ Ques. You may state whether or not these engines are not fired up with wood when they begin to make fires in the engines. Ans. They put some ki,nd of wood in, enough to get the fire started, and then they put in coal. .
“Q. Well, now, when wood is mixed in with the coal, the fire is more liable to escape — it is more liable to emit sparks when fired with coal and wood than when fired with coal? A. Yes, sir; if — but we did not get right out of the yard; it was quite a while after she was fired up.
“Q. Well, your engines were handled in that way, and made ready for them to start ? A. Yes, sir.”
By this witness and others, the railway company had shown that its engines were fired with Prontenac coal,” and upon his direct examination this witness had testified, at the instance of the company’s counsel, as follows :
“Ques. Now, you may state to the jury when you are using coal — Frontenac coal — and these particles are thrown from the smoke-stack, if they ignite immediately, or how? Ans. If they don’t start a fire as soon as they hit, .they don’t start at all, because they are red-hot when they first strike, and, of course, if they do not start when they .come down red-hot, they do not start at all.”
This testimohy was evidently offered by the railway company for the purpose of showing due care in the selection of its fuel, and also to prove that one or both of the fires could not have been started by the engines drawing the first two trains without being discovered earlier. Whether thofee were the objects sought to be attained by the testimony or not, the cross-examination was pertinent to the statement made in the direct examination, and to permit the witness thus to be cross-examined was not error.
It is also urged that the court below erred in permitting witnesses to testify as to the value of the hedge and meadow, and it is claimed that the measure of damages in such case is the difference in the value of the land before and after the fire, wherefore, the testimony of witnesses should have been confined to that subject. It will suffice to say that the testimony complained of was admitted by the trial court without objection, and that the point above suggested does not appear by the record to have been raised at all in the court below. However, the course pursued in the admission of evidence and in giving instructions to -the jury was not violative of the rule laid down in the case of Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, as follows :
“ In such an action, evidence as to the value of the trees while growing on the land and as a part of it, is competent for the purpose of showing the amount of the plaintiff’s damages. Where a particular thing attached to the soil, and therefore a part of the realty,, but which has a distinct value as such, susceptible of definite measurement, is injured or destroyed, the evidence in an action to recover damages therefor may properly be directed to the value of such specific thing, as a part of the land, and in actions of this kind is ordinarily the best and most satisfactory evidence. It is only where the damages to one part of the land affect other parts, and are incapable of more definite and direct proof, that the evidence is necessarily confined to proof of the value of the whole tract before and after the injury, though the actual damages can never, in any case, exceed the difference between such values. ’ ’
In the case of Railroad Co. v. Owens, 6 Kan. App. 515, 50 Pac. 962, the above rule enunciated by this court was directly applied ‘ ‘ to proof of value of hedge fence and clover-field destroyed by fire resulting from negligence of a railroad company.”
The instructions complained of relate to the making out of a prima facie case by the landowner against the railway company, and are clearly authorized by the decision in the case of A. T. & S. F. Rld. Co. v. Gibson, 42 Kan. 34, 21 Pac. 788.
The jury returned answers to eighteen special questions of fact, sixteen of which related to the condition and management of two of the engines and the competency of and degree of care exercised by the engineers and firemen operating the same, and therein they found that the said engines were supplied with-approved appliances, had been inspected only a short time before the fire, that no repairs were made upon either of them at the time of the next inspection, and that the engineers and firemen were competent, and carefully and skilfully managed and operated them at the time of passing the place where the fires occurred. Upon these findings of the jury, the plaintiff in error based its motion for judgment notwithstanding the general verdict, and of the refusal of the trial court to sustain the motion it here complains.
The questions and answers of the jury above referred to relate solely to the engines drawing the first two trains, on the day that the fires occurred, and although the engineer of the last engine, Mr. Heller, testified that he saw a fire on the right of way about a half-mile from Chanute, no attempt was made to identify that fire as one of those which did the injury to the premises of plaintiff below, and indeed much of the evidence.supported the contention of Arthurs’s counsel, that the fires causing such injury were set out by the engine drawing the third train, and the jury undoubtedly adopted that theory. In this court, counsel for plaintiff in error argue the case as though such findings related to all three of the engines and their crews. They say that the jury found that “the three engines passing at and before the fire were perfect engines and in good condition.” Again they say :
“These findings show that not only one engine but all three of the engines which passed the place at the time of the fire were provided with the most-approved appliances to prevent the escape of fire ; that the ash-pan, stack and netting at that time were in good condition ; that no repairs of any kind had been made upon the netting, dampers, or ash-pan, nor was there any necessity therefor; that all of the engineers and firemen operating the engines were competent and skilful employees, and were carefully and skilfully managing the engines at the time they passed the plaintiff’s premises. These findings fully and completely exonerate the company from any negligence in the premises.”
Based upon these propositions, counsel for the company make an able and exhaustive argument, proving, quite clearly, that the court erred in overruling their motion for judgment. Indeed, the only criticism that can well be made of the argument is that its premises are not true. In explanation of this conduct on the part of counsel, it ought to be said that those who present the case here were not present at the trial in the court below, and, therefore, doubtless have been misled by the fact that the record in one place gives a wrong number of one of the engines, namely, 76, when 78 was intended. Such error clearly appears when the' findings themselves are carefully perused, and an examination of the evidence itself proves beyond doubt that the findings relate, as the evidence did, to engines numbered 78 and 118, while the only important evidence in relation to No. 83, which drew the last train, was that of the engineer, Heller, who testified that it had be,en out of repair the day béfore the fire ; that it had been throwing fire ; that its draft was too strong; that he reported its condition, and that when he received it on the morning of November 17 he inferred that the requisite repairs had been made because its draft had been reduced, but that he made no examination to learn the extent of such repairs. t The evidence did not show anything as to the qualifications of the fireman on that engine, nor how the engine was operated past the farm of the plaintiff in error, and a significant fact which doubtless impressed the jury was that, while the inspector who examined the other two engines was placed upon the witness-stand to show their condition before and after the fire, the inspector who examined engine No. 83, and should have caused it to be repaired the day before the' fire, although shown to be still in the employ -of the company, was not produced as a witness at all.
It is evident that the counsel for the railway company who present the case here have, while acting in entire good faith, failed to examine the case critically and discover this variance between the facts shown in the record and the statements and arguments contained in their brief. The other two findings of the jury sustain the verdict, and as no questions were propounded to them touching the state or manner of control of the .engine hauling the last train, the sixteen findings in regard to the other engines and -crews were unimportant.
The other matters referred to in the brief of plaintiff in error do not appear to us to be of sufficient moment to require a reversal of the judgment, which, for the foregoing.reasons, is affirmed.
Smith, Cunningham, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by the Topeka Commercial Security Company against the board of county commissioners of Harper county to recover taxes, charges and interest paid upon lands which were not subject to taxation. The plaintiff’s petition substantially alleged that taxes were collected for a period of four years, ending in 1890; that the lands were sold for taxes to L. A. Bigger, and that, in 1891,. Bigger, being the owner and holder of certificates of sale, presented them to the officers of the county and received tax deeds to the lands sold; that thereafter, for value, Bigger sold and quitclaimed his interest in the lands, and all the rights obtained by the payment of taxes, to the Topeka Commercial Security Company.
It was further alleged that at the time the taxes for which the lands were sold were levied and assessed, and at the time of the sale, the title to the lands was in the United States, and that they were not subject to taxation; and that neither Bigger nor his grantee had any knowledge of the fact that the lands were not taxable at the tim'e of the tax sale or the subsequent payment of taxes on the lands. It was further averred that in October, 1894, ih an action brought by the security company to recover the lands under the tax title which it then held, the district court of Harper county adjudged the assessments, tax sale and deed issued thereon to be void, and • that afterward, on January 7, 1897, the security company tendered a conveyance of the lands to the county commissioners, and demanded a refunding of the taxes illegally collected. The county commissioners disallowed the claim and refused to refund the taxes. A demurrer to the petition was filed, which was sustained by the court. The ruling cannot be sustained.
The averments of the petition bring the case clearly within the provisions of section 146 of the law relating to taxation, and entitle the plaintiff to a refunding of the taxes and charges paid, with interest thereon. (Gen. Stat. 1901, § 7685; Comm’rs of Saline Co. v. Young, 18 Kan. 440; Richards v. Comm’rs of Wyandotte Co., 28 Kan. 326.) In support of the ruling, it is said that the mere averment "that the land is not taxable” is not a statement of fact, but is a conclu «ion of law, and not entitled to any weight in determining the demurrer. It is also said that the land is Osage trust and diminished reserve land, and that, while the title thereto is in the United States, such lands may become subject to taxation under the laws of the state in certain contingencies; and that it devolved upon the plaintiff to state the facts fully, showing that the lands were not taxable, and, not having done so, the petition is insufficient. The petition does in terms allege that the lands were not subject to taxation, and in the early case of L. L. & G. Rld. Co. v. Leahy, 12 Kan. 124, it was held that such an averment is a statement of fact, and while it may be liable to attack by motion it is sufficient as against a demurrer. In Comm’rs of Saline Co. v. Young, supra, the same question was up for consideration, and an averment that the land belonged to the United States and was not taxable was deemed a sufficient statement of fact to withstand a demurrer.
Under the case last cited, it appears that the claim made that an action was barred by the two-year statute of limitations is without force. The case was commenced within less than three years after the sales were adjudged to be invalid, and is,' therefore, not barred.
The judgment of the district court will be reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings.
Doster, C.J., Greene, Pollock, JJ., concurring. | [
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Per Curiam:
This was an action in replevin. The defendant in error Mrs. Mary M. Giller, the owner of a quarter-section of land, rented it to one Tom Agnew from March, 1898, to March, 1899. The rent being unpaid on February 1, 1899, Mrs. Giller commenced her action against Agnew, and caused to be attached about 700 bushels of corn, grown and remaining on the rented premises. On the 20th day of Feb-C ruary, the plaintiff in error, R. W. Wester, claiming, all the personal property of Agnew so attached by purchase from Agnew prior to the -attachment, commenced this action in replevin against the sheriff,, who was holding the property under the writ of attachment, and obtained possession of it. Agnew left the country before service of summons made on him, and no attempt to procure constructive service was made for more than sixty days after the commencement of the action. At the trial, Mrs. Giller, plaintiff in the attachment case, was substituted for the sheriff as defendant. The trial resulted in a verdict and judgment for defendant for the return of the corn, or its value, $160, the remainder of the attached property being awarded plaintiff, and the latter brings error.
The contention made by counsel for plaintiff in error is that as no pei’sonal service was had on Agnew, the defendant in the attachment case, and as service by publication was not attempted for more than sixty days after the date of the filing of the petition in the attachment case, neither the sheriff nor Mrs. Giller, the substituted defendant, could justify the possession of the property held by the sheriff at the commencement of the action under the attachment proceedings. With this contention we do not agree. An action is commenced by the filing of the petition in the office of the clerk of the court and causing summons to be issued thereon. (Civil Code, §57, Gen. Stat. 1901, §4487.) This was done. A writ of attachment was issued and levied. At the expiration of twenty days, while the action was pending and the property was rightfully in the hands of the sheriff by virtue of the levy under the writ of attachment, the plaintiff caused the property to be seized and taken from the sheriff’s, possession in this replevin action. Section 20 of the civil code (Gen. Stat. 1901, § 4448 ), relating to attempts to commence actions, has application only to the statute of limitations. (Dunlap v. McFarland, Adm’r, 25 Kan. 488.)
Again, the corn in controversy, whexi attached and when replevied in this action, was located upon the land rented by Agnew from Mrs. Giller. The unpaid rent was a lien on this corn raised and remaining upon the rented land, independent of the attachment proceedings. (Scully v. Porter, 57 Kan. 322, 46 Pac. 313.)
The answer was a general denial. Under this the sheriff, or Mrs. Giller, might make any proof tending to show that at the date of the commencement of the action the property was not wrongfully detained from-the plaintiff, and, therefore, might show the possession taken in enforcing this lien. • Upon this theory the case was tried in the court below. The defendant might also have judgment for the return of any property the possession of which was rightfully held as against the plaintiff, and of which she was deprived by virtue of the enforcement of the writ of replevin.
It follows that the judgment must be affirmed.
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The opinion of the court was delivered by
Dostek, C. J.:
James Beard was employed by the county,commissioners of Sedgwick county as a janitor of the court-house building at a salary of thirty dollars per month. There does not appear to have been any order of employment at that salary entered upon the commissioners’ records, or any contract in writing between the parties to that effect, but Beard admitted that he knew he was to receive a monthly compensation at the rate stated. Thereafter and during his employment he rendered accounts against the county for the stipulated monthly compensation, and received payment in accordance with his demands. At no time did he make any claim of employment for other than the stipulated monthly salary, or make any claim for compensation for services other than, or additional to, those which were covered by the stipulated monthly payments. During the period of his employment he worked from ten to twelve hours per day, and at the close of his period of service for the county rendered against it an account for extra hours ■of labor, basing his claim upon the provisions of chapter 114, Laws of 1891 (Gen. Stat. 1901, §§3827— 3830), being • an act establishing eight hours as a day’s work for laborers and other workmen employed by the state and its counties and other political and municipal divisions, and which act, according to the construction placed upon it by claimant, provides for payment for time1' in excess of eight hours per day, and upon the basis of eight hours as a day’s work. The board of commissioners rejected Beard’s claim, whereupon he brought an action against the county. Judgment went against him in the court below, to reverse which he prosecutes error to this court.
"We need not undertake to construe the eight-hour law in its application to the claim Beard seeks to make. Admitted that the eight-hour law would have been applicable to his case, he waived his rights under it by demanding and receiving compensation upon a basis other than that upon which he now seeks to stand. As his employment proceeded, as his work was performed, he demanded and received compensation for his labor as though it were the only compensation to which he was, or would be, entitled, and that claim for compensation was made in pursuance of his original contract. If he had not claimed and received pay on the theory of its being full compensation, or if he had not claimed at all until the close of his period of service, the question he now seeks to raise might have been properly in the case, and for aught we know he could have successfully invoked the provisions of the eight-hour law. While section 2 of the act in question declares that contracts for the performance of public work shall be deemed and considered as made upon the basis of eight hours constituting a day’s work, yet the effect of that section is not to annul contracts fully executed by the laborer and fully paid by the county, as agreed by the laborer, long after the work has been performed and payment received.
The judgment of the cou^t below is affirmed. .
Johnston, Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action brought by C. C. McDowell, against the administrator of the estate of John McDowell, deceased, to recover $660 alleged to be due from the estate by reason of a real-estate transaction had between the plaintiff, the deceased, and their father, Charles McDowell. The father of C. C. and John McDowell was the owner of two tracts of land which he conveyed to his sons on April 3, 1883. There was a mortgage on the tract conveyed to C. C. McDowell, made to secure a loan of $1000 obtained from D.-K. Carter. It was alleged that, in order to give each son an equal amount in value of land, it was agreed that C. C. McDowell and John McDowell should each pay one-half of the mortgage on the tract conveyed to.C. C. McDowell; that the two sons entered upon the performance of this agreement and that John McDowell paid to C. C. McDowell his proportion of the interest falling due on the Carter mortgage up to 1886, when the loan was renewed and a new mortgage was executed by C. C. McDowell to D. K. Carter for five years for the same amount; that at the time of making the new mortgage all the parties renewed their former agreement with reference to payments, and under such renewed agreement John McDowell paid his proportion of the interest up to the time of his death, on August 1, 1888. After the appointment of the administrator, C. C. McDowell presented a claim for one-half of the amount due on the note, $660,, and in the district court recovered the amount of his claim and interest, amounting in all to $732.
The principal exceptions brought to our attention arise upon the rulings of the court in the admission of testimony. It is contended that the plaintiff, O. O. McDowell, was permitted to testify to communications and transactions had with his deceased brother, in violation of the restriction provided in section 322 of the civil code (Gen. Stat. 1901, §4770). Considerable testimony of this character was admitted over the objections of the administrator. .The plaintiff testified that an agreement was made between himself and his brother and father by which C. C. and John were to pay the indebtedness against the farm in equal amounts. The communications and transactions between C. C. McDowell and his father were not objectionable, except as they entered into and became a part of the communications and transactions between C. C. McDowell and his deceased brother. Where the father and sons all participated in negotiations and in transactions, so that they constituted the communications and transactions of each, C. C. McDowell was not competent to testify to any part of the same. Some of the testimony was of this character and some of it related to direct transactions and communications between the plaintiff and his deceased brother. The objections to the evidence were sufficiently specific, and, after obtaining a ruling of the court, it was unnecessary to reiterate them as each of the objectionable questions was asked. It is contended that there is abundant testimony, aside from that which is objectionable, to sustain the findings of the court, but we are unable to say that the rights of the defendant were not prejudiced by the admission of the objectionable testimony.
Objection is also made to the testimony of Mrs. Isabella McDowell, who was the mother of O. O. and John McDowell, who joined with her husband in the conveyance made to the two sons. The basis of the objection to her testimony is that she stood in the relation of an assignor to the contending parties. Another provision of said section 322 of the civil code is : “Nor shall the assignor of a thing in action be allowed to testify in behalf of such party concerning any transaction or communication had personally by such assignor with a deceased person in any such case.” Isabella McDowell does not fall witliin this prohibition, because she is not the assignor of the thing in action. That thing was the debt to Carter, one-half of which it is said John McDowell agreed to pay. Her testimony was therefore admissible.
W. D. McDowell, another witness, was allowed to testify that the father, Charles McDowell, told him at one time that he had given C. C. McDowell a part of a tract of land encumbered by the Carter mortgage, and that Charlie and John were to assume the whole of it, and that it was to be' paid by them in equal parts. This statement was not made in connection with the sale or conveyance of the land or with any agreement or transaction with reference to it. It was purely hearsay testimony, and should have been excluded, upon the objection of the administrator.
The objection that the oral testimony as to the agreement of John McDowell, deceased, to pay one-half of the mortgage debt varies and contradicts the written agreements embraced in the deeds of conveyance appears not to be sound, and we find nothing material in the other objections to the rulings of the court. For the errors mentioned, however, judgment will be reversed, and the cause remanded for another trial.
Cunningham, Gkeen, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was instituted by J. O. Henrie against the Missouri Pacific Railway Company and the Fort Scott, Wichita & Wéstern Railway Oom pany on June 28, 1890. . In his petition he alleged that in 1882 the St. Louis, Fort Scott & Wichita Railroad Company entered upon his land and constructed a railroad thereon without obtaining title thereto ; but that an agreement was made between them by which the railway company was to have the use of the right of way in consideration of passes to be furnished to him and his wife, entitling them to ride free of charge, during their natural lives, upon the cars and railroad operated by the company.’ It was further alleged that the railroad passed into the hands of a receiver in 1887 in a foreclosure proceeding, which resulted in a sale of the property to the Fort Scott, Wichita & Western Railway Company, which succeeded to all the rights and was subject to all the agreements and obligations resting upon the original company; that the last-named company, together with the Missouri Pacific Railway Company, has continuously operated the railroad previously operated by the St. 'Louis, Fort Scott & Wichita Railroad Company, which company has ceased to exist; that, since the sale and transfer, the two defendant companies have neglected and refused to furnish plaintiff and his wife passes over the road, and have made no other compensation to Henrie for the use of the right of way. The court was asked to find and adjudge that the value of the right of way was and is the value of the passes agreed to be furnished, to wit, the .sum of $5000, for which judgment was asked.
There was a further prayer that the railroad companies be enjoined from using the right of way until they complied with the judgment of the court. The railroad companies denied -the binding effect of, and asserted that there was no liability against them under, the license, or agreement, pleaded by Henrie. A trial resulted in a judgment in favor of the plaintiff below for $1040. Proceedings in error were instituted, and the court of appeals, to which it was taken, determined that the defendant railroad companies were not bound by the license and agreement between Henrie and the St. Louis, Ft. Scott & Wichita company and reversed the judgment. (Mo. Pac. Rly. Co. v. Henrie, 5 Kan. App. 614, 46 Pac. 976.) When the case was remanded, Henrie asked and obtained permission to-amend his petition by eliminating everything pertaining to the license and agreement to furnish passes, and alleged the entry upon, and the use of, the strip of land without authority or consent, and the appropriation of the same for a right of way for the railroad, and asked to recover the value of the strip of land so taken and for damages for the value of the land not taken. The railroad companies objected to the filing of the amended petition and moved to strike it from the files, on the ground that the cause of action- set up therein differed substantially from that set up in the original petition, and that the remedies sought to be obtained in the two pleadings were inconsistent as well as dissimilar. The motion and objections were denied and overruled, and, upon the second trial, judgment was given in favor of Henrie for $755.20.
There is good reason to complain of these rulings. Henrie could have waived the tortious taking, treated it as a permanent appropriation of the land, and brought an action, in the first place, on the implied contract for the value of the land. Instead of doing so, he set up an express agreement by which he was to obtain free transportation for himself and wife, and the recovery asked was the value of such transportation. ' The case was tried through on the theory that the agreement was a binding obligation on the railroad companies, and that the benefit he would have derived from the passes agreed to be furnished to him was the measure of his recovery. After a protracted litigation, and when the court had decided against that theory, he undertook to change the cause of action and basis of recovery by disregarding the express agreement and asking damages for a permanent appropriation of the land.
The code makes liberal provision for the amendment of pleadings, but the one made in this instance was a substantial change of the cause of action. The two pleadings stated different grounds of recovery, and the causes of action set up were based upon entirely different rights. In the first, the plaintiff relied upon an express agreement giving the use of the right of way for the stipulated compensation, making that agreement, and the breach of it, the basis of recovery. In the second, he discarded that agreement and asserted that the right of way had been taken and used without consent or authority, and asked for the value of the land, on the theory that there had been a permanent appropriation. In the first, he undertook to get the value of life passes, which depended upon the age and expectancy of life remaining to him and his wife, and, also, the extent to which they would have been used. In the second, he sought to obtain the value of the land taken, and also damages for that portion of the tract not taken at the time of the appropriation. It cannot be assumed that there will be a parity in the results worked out of two such dissimilar and inconsistent theories. It may be that the value of the land will greatly exceed the value of the transportation, and the fact that one is not necessarily the equivalent of the other illustrates, to some extent, the difference between the remedies which the plaintiff employed. A breach of an agreement to furnish free transportation for life gives a right which is essentially different from one arising from the wrongful appropriation of' land. It would-appear that not only were different causes of action set up, but that the remedies are distinct and inconsistent ; and the general rule is that, where the law gives several means of redress or relief, predicated upon conflicting theories, the election of one of them operates as a bar against the subsequent adoption of the others. (Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062, and cases cited.)
For the error of the court in permitting the filing of the amended petition, the judgment must be reversed and the cause remanded for further proceedings.
Doster, C.J., Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Gbeene, J.:
The only material question presented to this court, so far as plaintiff is concerned, is whether or not it had a subcontractor’s lien on the premises described in its answer. Our statute (Gen. Stat. 1901, §§ 5117, 5119) provides that any person who shall, under contract with the owner of any tract or piece of land, furnish material for the erection of any building, improvement or structure thereon, shall have a lien upon the premises for the amount due him for such material; that any person who shall furnish such material under a subcontract with the contractor may obtain a lien, in the same manner and to the same extent as the original contractor, for the amount due him, by filing a verified statement with the clerk of the district court of the county in which the land is situted, within sixty days after the date upon which material was last furnished. It appears from the record that the Springfield Boiler and Manufacturing Company complied with the requirements of the statute in filing its lien. The question is, Did it furnish this material under a subcontract with the contractor, within the meaning of the statute?
The evidence in this case shows that the Springfield Boiler and Manufacturing Company is a manufacturing establishment located and doing business at Springfield, 111.; that the Litchfield Car and Machine Company is also engaged in manufacturing, and is located at Litchfield, 111. ; that the Wear Coal Company purchased of the Litchfield Car and Machine Company a certain boiler and other machinery, to be placed and used in its coal-shaft in Crawford county, Kansas; that the Litchfield Car and Machine Company did not have any such boiler on hand at the time, and that it wrote the Springfield Boiler and Manufacturing Company to quote it prices on a certain described boiler; that the latter replied by letter, and to this the machine company wired its acceptance. The boiler was shipped to the purchaser at its place of business at Litchfield, and by it unloaded from the cars, where it remained until ready for shipment to Kansas. The Springfield Boiler and Manufacturing Company did not have any knowledge for whom this boiler was intended, nor for what purpose it was to be used— whether it was to be put up in Illinois or elsewhere, or to remain in the stock of the Litchfield Car and Machine Company. It is said by plaintiff in error that the boiler was purchased to be put in the Wear Coal Company’s shaft in Crawford county. This is probably true, but the Springfield Boiler and Manufacturing Company did not know this at the time of the sale and delivery to the machine company. Under such circumstances, can it be said that the Springfield Boiler and Manufacturing Company entered into a subcontract with the contractor to furnish a boiler for the Wear Coal Company, to be used in its coal-sbaft in Crawford county, Kansas ? We think not.
The Springfield Boiler and Manufacturing Company and the' Litchfield Car and Machine Company were manufacturing and jobbing houses, and in this instance they dealt exclusively on the individual credit of the latter, and did not contract one with the other with reference to the statutory mechanics’ liens of the different states of the union. When a subcontractor may secure a lien depends entirely on the circumstances of each separate transaction; but it is clear that where two manufacturing companies deal with each other as the two companies in question dealt in this instance the seller cannot have a mechanic’s lien. If it could, each wholesale or jobbing house which sells to the retail dealer a windmill, pump or bill of lumber might follow each article until it became a permanent fixture to some man’s real estate and file a lien thereon. The law does not contemplate this.
The statute provides that any person who shall furnish any such material under contract with the contractor may obtain a lien. This means more than that an ordinary contract shall exist between the seller and purchaser that the purchaser shall pay the contract price ; it means that the subcontractor shall contract with reference to the original contract; that is, he must have knowledge of such original contract, and that the material to be furnished is to go to the betterment of some particular estate. The evidence in this case proves that in the sale of the boiler by the Springfield Boiler and Manufacturing Company to the Litchfield Car and Machine Company the former did not contract with reference to, or have any knowledge whatever of, the contract between the latter and the Wear Ooal Company. Under such circumstances it is not entitled to a lien.
There are some other alleged errors, but upon examination we have found nothing that is material. The judgment of the court below is affirmed.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action by Cornelius Perry to recover upon a promissory note for $1000, executed by Frank J. Horack and his wife, Nettie Horack, and also to foreclose a mortgage given as security for the note on a farm occupied by the Horacks as a homestead. The note and mortgage were executed on March 1, 1884, and they matured March 1, 1889. After making a number of small payments, and on January 6, 1888, Frank J. Horack died, intestate, leaving as his only heirs Nettie Horack, his widow, and three children, the oldest of whom was then eight years of age and the youngest three years. The family have occupied the homestead since his death, and Nettie Horack has made payments on the debt from time to time, the last of which was on October 11, 1894. She represented to Perry that she intended to pay the debt and save the land for herself and the children. The. money with which the pay.ments were made was derived from the sale of stock, grain and produce raised by her upon the mortgaged premises, the children rendering such assistance as children of their ages are usually able to render. Mrs. Horack was appointed administratrix of the estate, but was not made the legal guardian of the children, nor was any such guardian appointed for them. The estate left by Frank J. Horack, other than the farm, was insufficient to pay funeral and administration expenses, and the note and mortgage were therefore never exhibited as a demand against the estate.
This action was brought November 26, 1895,- a little more than a year after the last payment was made on the note and mortgage, and Mrs. Horack and the three children were made defendants. The children contended that as no payment had been made expressly for them and as more than five years had elapsed since the maturity of the note, the action was barred as to them and to their interest in the land. The trial court gave judgment against Nettie Horack for the amount due and decreed a foreclosure of the mortgage on an undivided half of the farm, but held that the action was barred as to the children, and refused a foreclosure of the mortgage as against the entire premises.
Was the plaintiff entitled to have his mortgage enforced against all of the mortgaged land ? The payments by Mrs. Horack certainly kept the note alive, and the general rule is that the mortgage lives as long as the note it was given to secure. The minors were not parties to the note and mortgage, but they inherited the land subject to the lien of the mortgage. It is contended that the payments made by the widow should be regarded as payments made for and in behalf of the children. She was their natural guardian, and with them occupied the mortgaged premises as a homestead. It was her legal and moral duty to take charge of the homestead property, and to protect and use the same for the benefit of herself and the minor children. She not only represented to plaintiff that she was going to pay the debt and protect the home for the family, but all of them had a common interest in preserving and keeping it. The homestead is an entirety, and there was such a unity of interest in it that it could not be partitioned before the youngest child arrived at majority or the widow again married.
Then, again, the payments made on the debt were from the products of the homestead itself, which it was her duty to use for the benefit of the minor children as well as herself. Since they had a joint and common interest in the homestead and were all interested alike in protecting the equity of redemption or title remaining in the homestead, it is contended that the payment by the mother, their natural guardian, should be treated as a payment for them. Passing the question whether her payment should be deemed to have been made for the minors as well as for herself, we are of opinion that the mortgage was a lien upon the entire farm and enforceable against it.
If the statute of limitations does not bar a recovery on the note, it does not bar a foreclosure of the mortgage. It is conceded that the debt is not barred as to Mrs. Horack, and of course there is no bar as to the children, as they were not liable for the debt when an interest in the property passed to them, and they have not since assumed its payment. They are, therefore, not concerned as to whether payments are made or not. Mrs. Horack was liable for the entire debt, and the mortgage which she executed was given to secure the entire debt and upon all of the land. The death of her husband did not diminish the amount of the debt nor restrict the lien of the mortgage to a half or any other fraction of the land described in the mortgage. If payment had been made by one not obligated to pay the debt, there would be more reason to say that such payment did not keep the mortgage alive ; but here it was made, as we have seen, by one who-owed the whole debt and who joined in a mortgage given to secure the whole debt. The children had not assumed any personal liability for the debt and had nothing to do with the matter of payments, but they took the land burdened with the mortgage, and so long as the statute of limitations does not run against the debt secured by the mortgage, it would seem that the mortgage itself might be foreclosed and the property sold to pay the debt which the mortgage was given to secure. (Waterson v. Kirkwood, 17 Kan. 9; Schmucker v. Sibert, 18 id. 104, 26 Am. Rep. 765.)
Payment by Mrs. Horack kept the debt alive, and if we should treat these payments as for herself alone, the mortgage would still be enforceable. If she alone had made the note and the children had joined in a mortgage on their property to secure it, and the debt had been kept alive by payments of the maker, no one would contend that the mortgage would be barred as to the children or that it would be affected by their failure to make payments or otherwise acknowledge the existence of the debt. The children occupy no better position here and the life of the note and mortgage no more depends upon their acts than in the case above supposed.
Considering the interest of the parties in the homestead, their relations to the debt and to each other, we conclude that, the debt having been kept alive, the mortgage which it was given to secure is enforceable against the entire property included in it. The judgment of the district court will therefore be reversed, and the cause remanded with directions to enter judgment foreclosing the mortgage upon the entire tract of land described in the mortgage.
Cunningham, Greene, JJ., concurring. | [
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The opinion of the court was delivered-by
Cunningham, J.:
It is a basic principle of our form of government that no person can be deprived of life, liberty or property except by due process of law. It is equally fundamental that the legislature possesses no power to take the property of any one and give it to another for the advancement of simply private objects. To argue these propositions or state authorities in their support would A A be but a pedantic display of learning.. It is equally well settled that the legislature may authorize the taking of private property by private persons or corporations for public uses, the owner of such property being compensated therefor. Courts determine what is a public use ; legislatures, when the power of eminent domain may be exercised in its promotion. Courts may not interfere to limit or control the discretion of the lawmaking power as to the character, quality, method or extent of the exercise of the power of eminent domain by a private person or corporation engaged in the promotion of a public use, when once it has been determined that such use is a public one. This being so, they should be careful in pronouncing upon the question as to whether a given project is such a public use as to permit the exercise of the power of eminent domain in its promotion. '
We are met at the threshold of the inquiry in hand with the question as to whether, under the conditions existing in this state, irrigation is such a public purpose as to warrant the permission of the . a ,i n • , -i exercise ox the power of eminent domain for its accomplishment. After careful consideration, ;we answer this question in the affirmative. Agriculture is by far the most important of our industries. It engages the attention of a very large part of our people. In it a vast amount of capital is employed. Heretofore a scarcity of moisture when most needed for the growth of crops has been a thing most dreaded by our farmers. This has been true in the western portion to a greater degree than in the eastern, but in all portions of the state has this been true to a greater or less extent. Any scheme which has as its legitimate purpose the alleviation of these conditions is of general use and benefit. It is not necessary that all portions of the state be equally benefited by a given enterprise to constitute it a public use, or even all persons living within the limited area to which its operations are confined. All that is necessary is that the use and benefit be common to all within the designated area, not to particular individuals or estates.
It is a very difficult matter to define what is a public use. Courts of last resort have departed quite widely from one another in the effort. The local conditions and needs of the people have much to do with the question. Wet countries need ditches and dikes, dry countries irrigation. Yet necessity is not definitive of a public use. Without attempting a definition, we may state that we find no difficulty in coming to the conclusion that the promotion of irrigation in this state is a public use, and that the legislature is authorized in its discretion to commit the power of e'minent domain to pilvate persons or corporations for its promotion. Indeed, we understand that there is no serious contention by either party as to the correctness of this conclusion, and we have made these remarks more by way of inducement than demonstration. -
Has the legislature exercised this right, and has it authorized the use of the power of eminent domain for the accomplishment of irrigation purposes ? All the parties answer this question in the affirmative as to all .the territory west of the ninety-ninth meridian. Chapter 133, Laws of 1891 (Gen. Stat. 1901, § 3627-3731), clearly shows this to be a fact. The act is entitled :
“An act providing for and regulating the diversion, appropriation, storage, and distribution of waters for industrial purposes within prescribed limits and of the construction, maintenance and operation of works therefor,” etc.
It is an elaborately wrought out act, divided into many articles, and evidently designed to cover the entire range of questions likely to arise out of the irrigation problem. Its first section, by its terms, applies only to that portion of the state west of the ninety-ninth meridian. At least two other of the sections. refer to these limits, two or more specifically apply to the entire state, and several inferentially so apply. -It is a hard matter to reconcile this act, the one part with the other, and we .are left in doubt whether articles 2 and 3, being the ones authorizing the exercise of the power of eminent domain for condemning lands for irrigation purposes, are to be applied to-the-entire state, or only to the western part. We are inclined to take the former view, but, without so deciding, we pass to the consideration of other statutes.
Section 1, chapter 151, Laws of 1899 *(Gen. Stat. 1901, § 3758), reads as follows :
“Any irrigation, canal or reservoir company, for-the purpose of establishing any reservoir, lake or pond for the storage of water, shall have the right to condemn lands in the same manner as is provided for the condemnation of lands for railroad and other purposes.” v
The material portion of section 1, chapter 95, Laws of 1899' (Gen. Stat. 1901, § 1366), is as follows:
“Lands may be appropriated for the use of . . . irrigating . . . corporations ... in the same manner as is provided in this article for railway corporations, so far as applicable ; and any . . . irrigating . . . company . . . desiring the right to dam or take water from any stream, to conduct water in canals or raceways or pipes, . . . may obtain such right or right of way for all necessary .canals, raceways, pipes, . . . in manner as aforesaid.”
This last section was enacted as an amendment to the general corporation law and must be construed in connection therewith. It took effect May 15, 1899. Chapter 151 took effect April 6 of that year. These two acts are, on their face, confessedly applicable to the entire state, and would seem to provide both for condemnation of lands for canals or raceways and for reservoirs for the storage of water. These sections undoubtedly bestow upon plaintiff in error abundant authority for the .exercise of the power of eminent domain to accomplish its irrigation purposes. The defendant in error, however, claims that these acts do not have this effect, for the reason that a public use must be necessarily under the public direction ; that to withdraw any use from the public direction and control necessarily destroys its character as a public use, and upon these premises bases his argument that, because other portions of the general corporation law give to any irrigation company the right to furnish water to whom it may choose, and to refuse to furnish to whom it may choose, the character of such company as a public factor is destroyed, and is therefore ousted of the right of the exercise of eminent domain given it by the , sections we have quoted. The sections which defendant in error cites as accomplishing this are as follows :
“That any . . . irrigating company . may furnish, sell, let, or lease, for such time as such corporation may determine, any portion of its water or power . . . "to any person or persons or corporation or partnership who may wish to use the same.” (Laws 1899, ch. 95, §2; Gen. Stat. 1901, §1367.)
“Every canal corporation, for the purpose of irrigation, shall, in addition to the powers heretofore conferred, have power; . . . Fifth, to furnish water for irrigation at such rates as such organization or corporation may by its by-laws and regulations-prescribe.” (Gen. Stat. 1901, § 1368.)
The argument is .that, inasmuch as under these provisions any irrigation company may furnish water to those whom it chooses and refuse to furnish whom it chooses, and to charge such rates as it may prescribe, it is entirely independent of any public control by legislature or courts, and hence, that while the purpose of irrigation may be inherently a public use such as would authorize the exercise of the power of eminent domain, yet, the legislature having accompanied the right of such exercise with these characteristics of a purely private purpose, such irrigation company is thereby ousted of its public character. In the first place, we hardly think that section 1367 will bear the interpretation placed on it by the defendant in error. The authority there granted is to do the act therein named, to wit, to furnish water, etc., in such manner as the corporation may determine, to any one wishing it, and not an authority to determine to whom it will furnish it. It is an authority to do, and not to limit the doing.
But admitting that section 1367 is what defendant in error claims for it, and admitting that section 1368 confers on any irrigation company the unqualified power to fix rates, do these sections then serve to produce the results Claimed? The words “public use,” ex vi termini, imply that the public is interested therein, and that in its sovereign organization and capacity the' public retains the right of regulation and control, at least in a limited or qualified degree, over the exercise of any corporate power or function granted in the accomplishment of such public use ; and we are free to say that, if we are held to 'consider the language of these sections as giving an unqualified right to the irrigation company to fix its charges for the use of water supplied by it, and determine whom its customers shall or shall not be, such action on the part of one legislature would not bind future ones; that irrigation being, as we have already decided, a public use, the public may not be forever foreclosed and bound upon the question of such details by the action of any legislature ; and especially is this true in view of the control over all corporations which section 1, article 12, of the constitution, vests in the legislature. The facts that the legislature has bestowed the power of eminent domain upon irrigation companies, and that they have availed themselves of such right for the promotion of that object, render such companies liable to respond to all reasonable regulations in the matter of supply and rates as the legislature may thereafter impose, or courts fix in proper cases.
In view of this, we cannot assent to the proposition of defendant in error, that the bestowal of the right of eminent domain by the legislature in 1899 was immediately taken away by virtue of the prior pro visions quoted, but must hold that, if there is any conflict between them, the last act is of superior force ; but we doubt if there is any conflict. Section 1368 authorizes any irrigation company to fix the rates for water furnished; but there must be read into that provision the further clause that such rates must be reasonable and just, inasmuch as we have already seen that such irrigation companies, by reason of the fact that they are a public use, are under legislative and judicial control. It is also held by many authorities that irrigation companies authorized to carry water for hire are gwasi-public carriers, and as such are under the same rules as to the regulation of rates as other public carriers. (Long, Irrig. § 130; San Diego Flume Co. v. Souther, 32 C. C. A. 5481, 90 Fed. 164; Merrill v. Southside Irrigation Co., 112 Cal. 426, 44 Pac. 720; Wheeler v. Northern Colorado I. Co., 10 Colo. 582, 17 Pac. 487; Prescott Irrigation Co. v. Flathers, 20 Wash. 454, 55 Pac. 635; Ind. Ditch Co. v. Agr. Ditch Co., 22 Colo. 513, 45 Pac. 444; White v. Highline Canal Co., 22 id. 191, 43 Pac. 1028.)
In view of the fact that the legislature of Kansas has in so many ways recognized the principle of irrigation and bestowed upon companies organized for that purpose so many rights, we cannot hold that sections 1367 and 1368' take away from such companies all their characteristic rights as promoters of a public use. If said sections are antagonistic at all to those provisions of the statute conferring the power of eminent domain, which we doubt, they must be overthrown by the latter, rather than that the latter should be overthrown by the former.
Both private purposes and public uses are set out in the charter of plaintiff in error as being the objects of its creation. Does this fact render it incapa ble of the exercise of the power of eminent domain for the promotion of such public uses? Counsel, for defendant in error insist that this is the result, and cite several cases from this court to sustain that contention. They insist that the two purposes, public and private, are so blended that the private purpose drags down the public one and, as it were, ousts- the plaintiff in error from its exercise. Much stress is laid on the case of C. B. U. P. Rld. Co. v. Smith, Treasurer, etc., 23 Kan. 746, and the claim is made that it settles the law „ in accordance with their view. We do not so read it. The legislature had authorized the voting of bonds in aid of the Irving Manufacturing Company. The purpose of this company as set out in its charter was “to purchase all needed lands, and construct, and maintain a dam across the Big Blue river, within two miles of. Irving, and build and maintain mills and their machinery for manufacturing purposes.” Bonds were voted in aid of this company, and the action was for the purpose of enjoining the collection of the tax to pay interest thereon. The court says, and most' properly, that “it is a private corporation which is sought to be aided; it is a private benefit which is sought to be secured. Obviously the purpose was a private and not a public use.” There are some detached portions of the opinion which, read alone, support the contention of the defendant in \error; but we must not so interpret them, for the fact remains that in this case the corporation for whose benefit the bonds were voted was one organized for the promotion of a purely private purpose, and that only; and the court simply held that, because the company had gone on and erected a grist-mill, which was a ^iasi-public use, it would not thereby become such a corporation promoting a public use as could be legally aided by the sovereign power of taxation. In other words, to use the language of the opinion, “the legislature cannot validate bonds for private purposes by declaring that the • authorities may apply an indefinite portion of the proceeds to some public purpose.”
The case of The State, ex rel., v. Osawkee Township, 14 Kan. 419, is also cited. In this case the issuance of bonds which the legislature had authorized to be issued for relief purposes was sought to be enjoined. By reference to this entire act, the court ascertained that the aid to be afforded by such bonds was to those, who, by recent crop reverses, had insufficient supplies of grain for feeding and seeding purposes. This the court held not to be a public purpose. Here again isolated excerpts from the opinion might be held to support the contention of counsel, but the entire opinion does not. Other Kansas cases are cited, but none supporting the contention of defendant in error in this respect.
It is contended with earnestness that cases refusing the aid of taxation in support of enterprises because the same are not public uses support the argument that like enterprises may not have- the aid of the power of eminent domain. On the other hand, it is contended that the two principles are not analogous, for the reason that in the exercise of the power of eminent domain nothing is taken away from the owner of the property; that he is fully compensated before he can be deprived of his property, and cases are cited .in support of this contention. Without deciding this question, the writer of this opinion is inclined to the former view. The theory on which all taxation is sustained is that an adequate return is made in good government. Granting this view, no •controlling decisions are cited.
There is no question but that, if a private use is combined with a public one in such way that the two could not be separated, the right of eminent domain may not be invoked to aid the joint enterprise. We mean by this that the two purposes must together •exist as main, or principal, ones; but where the private purpose is simply an incident, and the public use the principal, then the incident will not destroy or defeat the principal. That boats may be sailed upon an irrigation reservoir, or that fish may live therein, does not destroy or interfere with its use for irrigation. What is the principal, and what the incident, might in some cases become a question of fact, to be determined by the proper triers of questions of fact. It has even been held that, in determining whether the proposed use was public or private, courts are not confined to the description of the objects and purposes of the corporation as set forth in its articles of incorporation, but may resort to evidence aliunde showing the actual business proposed to be conducted by it. B. V. L. Co. v. Johnson, 30 Ore. 205, 46 Pac. 790, 60 Am. St. 818; Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375, 15 N. E. 429.)
We see no greater reason for denying to a private corporation the power of eminent domain for the promotion of a public use, because by its charter it is also authorized to engage in a private enterprise, than to deny to a private person the same power because he is inherently endowed with the same authority. The question in either case is, What is the nature of the enterprise being aided ?
In this case, it will be observed that the application which was filed with the district judge for the ap pointment of commissioners in the condemnation proceedings stated that the object for which the lands were desired to be condemned was “to construct, operate and maintain irrigation ditches, lakes, and reservoirs,” and it was for this purpose, and this only, that the lands were condemned. We may not assume in the face of this that the plaintiff in error was intending to do otherwise ; that this proceeding was merely a subterfuge. This purpose was a proper public use, for the advancement of which the power of eminent domain could be exercised, and its exercise was not ousted simply because plaintiff in error under its charter might, under proper circumstances, engage in enterprises of a private nature. If, after these proceedings had ripened, it should proceed to devote the condemned property to a use other than that for which it was condemned — primarily and not incidentally— it could, beyond question, be ousted of a possession which it had obtained by fraud and which it was using for an unauthorized purpose.
We think we have disposed of all the questions presented in the record; and, from this discussion and the conclusions reached, it follows that the court below erred in sustaining the motion of defendant in error to quash the condemnation proceedings.
That action will be reversed, and this cause remanded with instructions to overrule the motion.
Smith; Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was convicted in the court below of obstructing a public road. He was section foreman of the Atchison, Topeka & Santa Fe Railway Company, and closed up a highway established by an order of the board of county commissioners over the tracks and right of way of the company. Upon petition of twelve householders, the board of county commissioners appointed three viewers, who were notified by the county clerk to meet on the 8th day of November, 1897. Among other things, they were directed, as required by the statute, to “assess and determine the compensation to be made to the owners of the land across which the road is to be lo cated, and the damages sustained by any person or persons through whose premises the said road is proposed to be established,” and to make report in writing, etc. The viewers met in pursuance of the order of the board of county commissioners and the notice given them by the county clerk.
On the 6th day of January, 1898, being two months, less two days, after the viewers had met, the following notice was served on the agent of the railway' company :
“ To the Kansas City, Ottawa & Emporia Railroad Co.:
“Please take notice that the viewers appointed by the board of county commissioners of Coffey county, Kansas, to view and lay out a county road petitioned for by James Courtner and others (petition filed July 7, 1897), did meet on the 8th day of November, 1897, at beginning of said road, at which time and place all claims for damages must be presented. Said proposed county road lies partly on land owned by your company. Jambs Courtner,
“ Dated January 5, 1898. Principal Petitioner.”
The company made no appearance before either the viewers or the board of county commissioners. The notice required by law is provided for in section 6019 of the General Statutes of 1901, wherein it is made the duty of at least one of the petitioners for the road to cause six days’ notice to be given in writing to the owner or owners, or their agents, if residing in the county, through whose land said road is proposed to be laid out and established, and also six days’ notice to the county surveyor, of the time and place of the meeting of the viewers. Since 1874 the notice required by said section has been jurisdictional. (The State v. Farry, 23 Kan. 731.)
The legality of the appellant’s conviction, therefore, depends on whether the railway company, under the highway laws of the state, is to be regarded as a resident of a county through which the railway runs and in which the highway is sought to be laid out and established. If the railway company is to be regarded as a non-resident of such county, then no notice of the meeting of the viewers was required by law to be served on it. We think it must be held, both on reason and authority, that the railway company, in the application of the law relating- to the laying out of highways, is to be regarded as a resident of every county in the state through which its road runs. In fact, the question has been decided by this court. In The State v. Horn, 34 Kan. 556, 560, 9 Pac. 208, it was said:
“We might further say in this connection that the defendant’s employer was a railroad company, chartered and organized under the laws of Kansas, and doing business and operating its railroad within the county in which this action was commenced, and was therefore a resident of such county, if a railroad company can ever be a resident of any place.”
This railway company is incorporated under the laws of Kansas. It has an agent in Coffey county, where this conviction was had, and owns property and transacts business there. It cannot be said that its fixed place of abode is in Sháwnee county, where the capital of the state is situated, and where its charter is filed and its principal office maintained. This view is sustained by numerous authorities. (The New Albany &c. Railroad Co. v. Haskell, 11 Ind. 301; The People v. Fredericks, 48 Barb. 173.) In Bristol v. The Chicago & Aurora Railroad Company, 15 Ill. 436, 437, it was said:
“The residence of a corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions. It dwells in the place where its business is done. It is located where its franchises are exercised. ' It is present where it is engaged in the prosecution of the corporate enterprise. This corporation has a legal residence in any county in which it operates the road' or exercises corporate powers and privileges. In legal contemplation, it resides in the counties through which its road passes and in which it transacts its business.”
This doctrine is approved in Baldwin et ux. v. The Mississippi & Missouri Railroad Company, 5 Iowa, 518. (See, also, East Tennessee V. & G. R. Co. v. Atlanta & F. R. Co., 49 Fed. 608; Richardson & Co. v. The Burlington & Missouri River Railroad Co., 8 Iowa, 260; Davis & Redding v. The Cent. R. R. & Bkg. Co., 17 Ga. 323.) The railway company being, in contemplation of law, a resident of Coffey county, it follows that it was entitled to notice of the opening of the road and of the meeting of the viewers, the same as an individual resident of the county.
The judgment of the court below will be reversed and a new trial granted.
Dostbr, C. J., Pollock, J., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action brought by plaintC/s in error to recover from the defendants in error the sum of $1000 rent fox the year 1897 on a large tract of land, in Coffey county. The petition, with copy of the lease attached and made part of it, was filed January 16, 1897, and alleges that the rent will be due, $500 on the 1st day of June, and $500 on the 1st day of December, 1897. There is a further averment as follows :
“Defendants within the last thirty days have removed a part of their property, consisting of a large number of cattle, from the said leased premises. . . . And plaintiffs further say that the said defendants intend to remove the remainder of their property and all of the crops from the said leased premises.”
The prayer of the petition asks for a writ of attachment against the property of the defendants, and for judgment against them for the rent aforesaid when, by the terms of the lease, it should become due. In a supplemental answer filed by the defendants below they allege that, after they had abandoned the premises and repudiated the lease, the plaintiffs took possession of the land and leased it to one Samuel Dryer for the term of one year from the ,1st day of March, 1897, and said Dryer entered upon the lands and occupied and cultivated them as plaintiffs’ tenant. To this answer the plaintiffs in error filed a reply, averring that defendants below had abandoned the leased premises and refused to care for or cultivate the same ; that plaintiffs had taken possession to the end and for the purposes only of preserving the property from waste and destruction, and to render the loss or damage arising from breach of the conditions of the lease as small as practicable ; that the lease to Dryer was made after the plaintiffs below had notified the defendants that they would not accept a surrender of the premises and release the latter from the payment of rent therefor as provided in the lease.
The district court rendered a judgment on the pleadings against the plaintiffs below, who are plaintiffs in error here. It is a matter of conjecture upon what specific ground the action of the trial court was founded, rendering it necessary to consider all of the several points discussed in the brief of counsel for defendants in error, upon any one of which the action of the court might have been based.
By the terms of the lease, the letting of the land was for ten years from the 1st day of March, 1895, the lessees agreeing to pay a cash rental each year of $1000 for the first five years and $1500 each year for the remaining time, the rent to be paid semiannually in two equal payments, upon the 1st days of June and December. The lease contains this provision :
“If the said parties of the second part (lessees), their executors or administrators, at any time during the term hereby granted, shall fail in any or either of the covenant conditions Or promises in these presents contained, which on the behalf of said parties of the second part are or ought to be observed, performed, fulfilled, or kept, then this agreement shall terminate and be at an end.”
The defendants in error could not, by a failure to pay the rent, bring the lease to an end. The provision that the agreement should terminate upon the failure of the lessees to perform those conditions of the lease which were obligatory to be carried out on their part is a covenant in favor of the lessors exclusively, and does not make the lease void except at their option. To hold otherwise would permit a lessee to take advantage of his own default. The law is well settled on this question. In Cochran v. Pew et al., Appellants, 159 Pa. St. 184, 187, 28 Atl. 219, it is said:
“Covenants for the lease to be void, or to cease and determine, etc., on failure by the lessee to comply with the conditions specified, do not make the lease void except at the option of the lessor, and that legal effect, no matter what form or cumulation of phrases be used, can only be changed by an express stipulation that the lease shall be voidable at the option of either party or of the lessee.” (See, also, Edmonds et al. v. Mounsey, 15 Ind. App. 399, 44 N. E. 196; Brady v. Nagle et al., 29 S. W. [Tex.] 943; Wills v. Manufacturers’ N. Gas Co., 130 Pa. St. 222, 18 Atl. 721, 5 L. R. A. 603.)
It has been held by this court that under executory contracts for the sale of land, containing conditions that upon failure to make payments such contracts shall become void or shall cease or determine, the vendor alone can have the benefit of such condition. (Bohart v. Investment Co., 49 Kan. 94, 30 Pac. 180; Chambers v. Anderson, 51 id. 385, 32 Pac. 1098.)
Counsel for defendants in error concede that section 3871 of the General Statutes of 1901, relating to landlord and tenant, authorizes the issuing of an attachment on a claim for rent before due, but insists that no action can be maintained for such rent without issuing an attachment, and that the petition does not show that an attachment was issued, nor does such fact appear in the record. It was held, in Pierce v. Myers, 28 Kan. 364, 368, that in an action on a claim before due it is not necessary to set forth in the petition the grounds on which the attachment is obtained. It was said: “The grounds for the attachment must be set forth in the affidavit of the plaintiff for the attachment, and need not be set forth anywhere else. At most, they should not be set forth in the pleadings.” It is difficult, however, to see how a petition setting forth a claim for judgment on a demand before its maturity could withstand an attack by demurrer without some averment showing the right to an at tachment, or that the plaintiff intended to invoke such remedy. In this case the petition, which has heretofore been held good by this court, states facts which entitle the plaintiffs below to such relief. (Brown v. Cairns, 65 Pac. [Kan.] 231.)
There remains for consideration the question whether the conduct of the plaintiffs below in taking possession of the land and leasing the same to a third person after- the 1st day of March, 1897, to the 1st day of March, 1898, for the reasons stated in their reply, constituted an acceptance of a surrender of the lease on their part and a termination of it between the parties. It is expressly averred in the reply that the "defendants were notified that plaintiffs would not accept a surrender of said premises or release defendants from the payment of the rent as provided in the lease, and that Dryer was put in possession for the purpose only of preserving and caring for the premises and rendering the loss and damage to the plaintiffs on account of the abandonment as small as possible, and that there was no intention or purpose on the part of plaintiffs to accept from defendants- a surrender of the premises, all of which defendants well knew. It is a general rule that after a wrong has been committed it is the duty of the injured party to make reasonable efforts to prevent an increase or extension of the injury, and if he fails to do so he cannot recover for such increased injury. (K. P. Rly. Co. v. Mihlman, 17 Kan. 224; Town Co. v. Leonard, 46 id. 354, 26 Pac. 717.) The effect of the acts of the parties in this case was before the scp-eme court of Iowa in a suit for rent brought under this same lease. The question whether there was a surrender was decided against the contention of defendants in error in an opinion citing many authorities. (Bolton v. Foster, 107 Iowa, 727, 77 N. W. 478.) A part of the syllabus of that case reads :
“A landlord, after his tenant has vacated and abandoned the premises without cause, may, without creating a surrender by operation of law, resume possession and re-lease to another, after giving notice to the original tenant of his intention of holding him for the rents, the re-ieasing being merely to reduce the damages.”
In Merrill v. Willis, 51 Neb. 162, 164, 70 N. W. 914, it was said:
“The rule sanctioned by the decided weight of authority, if indeed there can be said to be a diversity of opinion on the subject, is that the landlord may in such case, at his election, relet the premises upon the abandonment thereof by the tenant, in which case the measure of his damage will be the agreed rental, less the amount realized on account of such reletting; or he may permit the premises to remain vacant until the end of the term, and recover his rent in accordance with the terms of the lease.” (See, also, Bowen v. Clarke, 22 Ore. 566, 30 Pac. 430, 29 Am. St. Rep. 625 and note.)
It must be noted that the landlord in this case did not take possession on his own account. The lessees were liable for the annual rental of the land to the amount they agreed to pay, whether the same was occupied by them or not; and the leasing to Dryer reduced their liability to the plaintiffs to an extent equal to the amount which he agreed to pay for the occupation of the land.
The judgment of the court below will be reversed, with directions to proceed further in accordance with this opinion.
Johnston, Gkeene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
In September, 1889, the Sioux Investment Company purchased a tax certificate on the real estate in controversy. Afterward, and in October fol lowing, the company sold and assigned this certificate to F. B. Hutchens, trustee, who thereafter paid the subsequent taxes for 1889, 1890, and 1891. At each payment Hutchens sent the certificate to the county treasurer with directions to enter the assignment of the certificate on the treasurer’s books and on the clerk’s duplicate. This the treasurer neglected to do. In September, 1893, Hutchens took out a tax deed on the property, which was recorded February 2, 1894.-In September, 1892, the Sioux Investment Company bought the land in controversy at sheriff’s sale, and in January, 1893, conveyed the same to defendant in error, Johnson, who has been in possession ever since. He brought this action in the court below against Black, the grantee of Hutchens, to quiet title, and obtained a judgment.
We think the taxes paid by Hutchens were a lien on the land, and that an action to quiet title could not be maintained without a payment of the amount, with the legal interest and costs. The only reason for denying plaintiff in error a repayment of the taxes is the fact that the certificate was not assigned on the treasurer’s books and the clerk’s duplicate. There is no claim that the taxes were not a legal charge on the land, and the only defense against their payment rests on the technical objection that there was no assignment of the certificate of record. At the time the defendant in error bought the land the treasurer’s record showed the existence of this tax lien. The tax certificate was effectively transferred by a written assignment indorsed on or attached to the same. (Gen. Stat. 1901, §7648.)
A quitclaim deed from a purchaser of land at a tax sale is not such an assignment of the certificate of purchase as to authorize the clerk to issue a deed to the grantee of the quitclaim deed. (Clippinger v. Tuller, 10 Kan. 377.) The defendant in error, by inquiry, might have ascertained that his grantor did not own the tax certificate. In the deed from the Sioux Investment Company to Johnson there is a covenant that the land is free from all taxes, assessments, and ,/ncumbrances; so that the defendant in error had ample remedy against his grantor to recover the amount of the tax claim on the land.
The judgment of the district court will be reversed, with directions to enter judgment in favor of plaintiff in error for the amount of taxes paid, with interest and costs.
Doster, C.J., Ellis, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
This is a suit in injunction commenced by plaintiff in error against the treasurer and sheriff of Neosho county, to restrain the threatened issuance of a tax-warrant and a levy upon personal property assessed by the city assessor of the city of Chanute upon March 1, 1896.
Prior to the 7th day of February, 1896, plaintiff in error had resided in the city of Chanute. Upon that date she was married to BaSom and at once removed to the city of Joplin, Mo. Upon March 1, 1896, she had on deposit in the First National Bank of Chanute, upon open account subject to check, the sum of $1855.92. She also had certain promissory notes of the value of $150, which had been left with the bank for the purpose of collection. She also owned other promissory notes amounting to several thousand dollars, secured by real-estate mortgages in Neosho county, but these notes the plaintiff in error had with her in Missouri. The right of injunction is based upon the ground that this personal property followed the owner, and was not subject to taxation in the state of Kansas after the removal of the owner to the state of Missouri.
At the time of the filing of the petition a restraining order was granted, and notice of the hearing of the application for a temporary injunction was ordered, and given. The defendants answered. At the date set for the hearing of the application for a temporary injunction, by agreement of all parties, the case was fully tried and determined upon its merits, for final injunction. It was admitted upon the trial that plaintiff in error had tendered all taxes except the amount in dispute, $300. The trial court made a general finding in favor of defendants, upon which judgment was entered dissolving the restraining order and refusing a perpetual injunction. Plaintiff below prosecutes this proceeding in error to obtain a reversal of said judgment. No supersedeas was given, and it is made to appear to this court, by stipulation of parties, that after the trial a tax-warrant was issued, and the taxes assessed against plaintiff in error were fully collected and paid.
It is urged by counsel for defendants in error that there is an absence of necessary parties defendant; that the board of county commissioners of the county is the real party in interest, and is a necessary and indispensable party. We think this contention correct. The only parties defendant to the suit are the county treasurer and sheriff. The board of county commissioners is not made a party. While the treasurer and sheriff are proper parties to the suit, yet they are merely nominal parties. The board of county commissioners of the county is the real party in interest. It has long been the settled law of this state that a permanent injunction will not be granted until all whose legal rights are to be directly affected by it are made parties to the action. (The State v. Anderson, 5 Kan. 90; Gilmore v. Fox, 10 id. 509; Hayes, Treasurer, v. Hill, 17 id. 360; Carpenter, Treasurer, v. Hindman, 32 id. 607, 5 Pac. 165; A. T. & S. F. Rld. Co. v. Wilhelm, Treasurer, 33 id. 206, 6 Pac. 273; McCarthy v. Marsh, 41 id. 17, 20 Pac. 479; U. T. Rld. Co. v. Rld. Comm’rs, 52 id. 680, 35 Pac. 224.) There could be no final injunction granted in this suit against the merely nominal defendants, in the absence of the real party in interest. The trial court might properly have ordered the county board brought into the case, but could grant no final injunction in its absence. The tax is now collected and disbursed by the county. An injunction against the board would now be wholly unavailing.
The finding of the trial court is a general finding. We are at liberty to assume that such finding was made and the judgment thereon was rendered because no other judgment could have been rendered in the absence of a necessary and indispensable party to the suit.
It follows that the judgment must be affirmed.
Dostek, C. J., Smith, J., concurring. | [
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The opinion of the court was delivered by '
Cunningham, J.:
Plaintiff in error brought its action against the defendants in error in the district court of Shawnee county for the purpose of enjoining the collection of a tax on certain real estate situated in the city of Topeka. This real estate consists of a three-story brick business building, of the value of $47,000, the first floor of which is rented for business purposes for $280 per month, and the second and third floors are used exclusively by the plaintiff for offices .for the conduct of its business, and for lodge rooms of the association, of the rental value of $125 per month. This building was purchased with means which had been accumulated in a fund known to its constitution and by-laws as a “reserve fund,” and the rents de rived therefrom,serve to augment this fund. The taxing officers of the city of Topeka and of Shawnee county had regularly proceeded to levy taxes on this building for the year 1900, and the defendants, who are the county treasurer and board of county commissioners, were proceeding to collect the same when stopped by this action. The district court, upon final hearing, dissolved the injunction and held the property subject to taxation. Of this order plaintiff now complains.
It is agreed that “plaintiff is such an organization as is shown by its constitution and by-laws, found in the record.” Its objects, as therein stated, are as follows :
“ 1. To unite both sexes in a fraternal beneficiary society for the sole benefit of its members and their beneficiaries, and not for profit.
“2. The promotion of beneyolence, charity, social culture, mental improvement, education, care for the sick and needy, to aid members in obtaining employment, to assist each other in business, to provide a beneficiary fund, payable at death, as the member may direct, in sums from $500 to $3000, or a part thereof in case of partial or complete disability of the member.
“3. This order shall have a lodge system, with ritualistic form of work and representative form of government.
“4. The members of this order shall be united into subordinate councils under the jurisdiction and control of the national council.”
Provision is made for a national council thereof, for the issuance of beneficiary certificates by it in sums varying from $500 to $3000, and for the creation of a reserve fund with which to pay death claims in certain cases. Membership is divided into two classes, beneficiary and social. No persons are admitted to beneficiary membership except those who are able to «earn a livelihood and are in such sound physical condition as will enable them to pass the medical examination which is provided. Provision is made for the election of officers, their duties defined, and their compensation fixed. An executive committee manages the affairs of the association, borrowing money when needed, investing its reserve fund in bonds and mortgages, and issuing all orders on the treasurer. A law committee takes charge of all legal business of the oYder. To the beneficiary members are issued certificates which provide in part as follows :
“This certificate, issued by the national council of the Knights and Ladies of Security :
“Witnesseth, that-, a member of-council No.-, located at-,' state of -, is hereby admitted to beneficiary membership in ihe order, and it is hereby agreed that, in consideration of the premises and in accordance with and under the provisions of the laws of the order, he is entitled to all of the rights, benefits and privileges of membership therein, and that at-death,-having complied with all of the provisions of the constitution and by-laws of the order, and being at the time of-death a member in good standing, the said national council agrees to pay to-, bearing the relation to-of-, the sum of $-.
“And it is further provided and agreed, by and between the national council and the member, that, for the purpose of creating and maintaining a reserve fund, on the death of the said-, the national council shall retain fifty dollars of each one thousand dollars of this certificate, less one dollar for each year this certificate shall have remained in force.”
The rate of assessment is also fixed, payable monthly. Only those persons who are designated as “beneficiary members” are permitted to participate in the financial benefits of the association, and these only when they have paid the assessments in accordance-with the by-laws. The sole purpose of the organization, aside from the social benefits which may be derived from the association of its members, is to provide for the beneficiary mentioned in the certificate, by payment of the amount therein named upon the-death of the member, and these beneficiaries are limited by the by-laws .to “families, heirs, blood relations, affianced husband or affianced wife, or to-persons dependent upon the member.” In short, the object of the order is to provide by stated contributions from its members a fund from which to pay to those designated in their certificates as beneficiaries,, upon the death of the member, the sum therein stated.
Exemption from taxation is claimed under paragraph 3 of section 7504, General Statutes of 1901, which reads as follows :
“That the property described in this section, to the extent herein limited, shall be exempt from taxation : . . . All buildings and parts of buildings belonging to . . . benevolent associations, used exclusively for . . . benevolent purposes.”
The contention of the plaintiff is that this a benevolent association under the meaning of this act. If plaintiff can be said to be a benevolent association within the meaning of this statute, and if the building above described, or any portion thereof, is used exclusively for benevolent purposes,- then it claims that it is entitled to be exempted from taxation to the extent, at least, of the value of the portion thereof so exclusively used. We are thus brought to the question whether an association formed for the purposes and conducted in the manner indicated by the by-laws above summarized is a benevolent association within the meaning of this act.
Plaintiff classes itself as a fraternal beneficiary society, but it is conducted for the sole benefit of its. members. Among its objects are the promotion of benevolence, charity, social culture, mental improvement, education, care for the sick and needy. All of these purposes are confined to its members, and dependent upon the payment by them of the assessments as required by the by-laws. . Beneficiary members get what is paid for and nothing more. If they cease to pay they cease to receive. Members continue to pay for the benefit of another,' not because moved thereto by charitable or benevolent impulse, but because they expect that, upon the happening of their death, those whom they are interested in or are bound by law or the ties of affection to provide for will be cared for — a quid pro quo. Is this benevolence., and is the organization by and through which it acts a benevolent institution ?
In considering the question, we shall use the term “benevolence” as synonymous with “charity.” These terms are connected and so used in our constitution relative to exemption for taxation, where the provision is that “ all property used exclusively for . . . benevolent and charitable purposes . . . shall be exempted from taxation.” (Const. art. 11, §1.) We must, also, in considering the terms, apply the strict rules of construction. Section 7502, General Statutes, of 1901, provides “that all property in this state,real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed in this act.” It is a rule universally recognized that laws exempting property from taxation are to be strictly construed, and that the claimant of such exemption must establish, beyond a reasonable doubt, his right thereto. This rule is stated in Ottawa Uni versity v. Comm’rs of Franklin Co., 48 Kan. 464, 29 Pac. 599, as follows:
“Under our statutes, all property in the state, real and personal, not expressly exempt therefrom, is subject to taxation, and any person claiming immunity from the common burdens of taxation, which should rest equally upon all, must bring himself clearly within the exemption; and hence, it is held that a provision creating an exemption should be strictly construed.”
The synonyms of benevolence, as found in nur standard dictionaries, are “almsgiving,” “beneficence,” “benignancy,” “bounty,” “charity,” “generosity,” etc., all implying a condition of mind and disposition prompting to disinterested action. It is altruistic in its character, and not selfish. It seeks not its own interests, but those of others. What it does it does not because it is compelled to do, but because moved thex’eto by unselfish motives.
May we say that the plaintiff association is such an institution? Its beneficiaries receive from it, not on the basis of their needs, but on the basis of payments made in their behalf. Its payments are not voluntary. Courts are continually called upon to, and do, enforce its contracts. No sick or needy ones are admitted to beneficiary membership. What the association disburses is denominated payment. Payment is made because the obligation has been created by an antecedent payment made to it. It is so much benefit paid because of so much and so many assessments paid. Its benevolence is purely of a commercial character. It does not go out to seek the needy, but invites only the able-bodied and healthy. Payments are made to it, not because of a charitable motive, but for the purpose of providing for those who are dependent upon the member, or are for some special reasons near and dear to him. The same motive actuates us all in engaging in the ordinary business of our lives. One might, with almost as much reason, claim exemption for his stock of goods, because they are the means by which he is making a living for his family and expects to leave them provided for at his death. To provide for one’s own is not charity or benevolence; it is duty. The grossest form of selfishness may rest upon the natural affections. In our minds, these characteristics exclude the plaintiff in error most positively from the list of those institutions exempted from taxation by the words of the statute.
In Cunnack v. Edwards, 2 Chan. Div. Rep., being the reports of the supreme court oh judicature of England for the year 1896, the court, speaking of an association like the plaintiff, at page 681 said:
“It is contended, however, that this association may be regarded as a charity. Wide as has been the meaning given to the word‘charity,’ . . . a width of interpretation which I confess has seemed to me in some cases extravagant, I do not think that a perfectly businesslike arrangement like this, in which a number of persons associate together and contribute funds to provide for their own widows, has ever been regarded as charity. . . . It cannot be pretended that a wealthy widow could not be entitled to claim her annuity equally with a poor one. If this be a charitable institution, it would be difficult to contend that every life insurance company did not fall under the same category.”
In Bangor v. Masonic Lodge, 73 Me. 428, 40 Am. Rep. 369, the syllabus reads as follows :
“The distinctive characteristics of a public charity are that its funds are derived from gifts and devises, and not from fees, dues, and assessments, and that it is not confined to privileged individuals, but is open to the indefinite public.”
The books, almost without exception, treat associations like the plaintiff as of the character of mutual life'insurance companies, and not as charities. The fact that those identical persons who pay to it do not receive back from it does not destroy its character as such.
In Farmer v. The State, 69 Tex. 561, 7 S. W. 220, the court said of an association which announced in its charter that its object was to provide for its members' during life and for their families after death, which required of its members, for the accomplishment of this purpose, a payment of money in instalments, and required an examination of the members by a physician as a prerequisite to admission, and for forfeiture of membership by reason of non-payment of assessments :
“The contract had all the elements of a life insurance policy, and though it may be entered into for benevolent purposes, the corporation cannot legally exist unless incorporated in accordance with the laws of the state regulating the' incorporation of insurance companies.”
In The State, ex rel. Graham et al., v. Miller et al., 66 Iowa, 34, 23 N. W. 241, the court held that the Ancient Order of United Workmen, an association of the same character, practically, as the plaintiff in this case, was a life insurance company, and recognized its fraternal character as merely an incident to its many purposes. In Robinson v. Templar Lodge, I. O. O. F., 117 Cal. 370, 49 Pac. 170, 59 Am. St. Rep. 193, the court said of an association similar in character and regulations to that of plaintiff, concerning payments to be made to it:
“These benefits are not charities in the strict sense ; they are dues, which the society,became obliged to pay in certain events. It is a matter of right and not •of grace. A consideration is paid, and the lodge reserves no right to withhold payments when the con- , ditions arise.”
For a discussion of the character of an association like that of plaintiff, as to whether they partake of the character of benevolent or charitable institutions or that of life insurance companies, see Mutual Benefit Association v. Stapp, 77 Tex. 517, 14 S. W. 168, 19 Am. St. Rep. 781, and cases there cited; Chartrand v. Brace, 16 Colo. 195, 26 Pac. 152, 12 L. R. A. 209, 25 Am. St. Rep. 241; The State, ex rel., v. Bankers etc. Association, 23 Kan. 499; Endowment and Benevolent Association v. The State, 35 id. 253, 10 Pac. 872; The Elkhart Mutual Aid, Benevolent and Relief Association v. Houghton, 98 Ind. 149; Supreme Commandery, Knights Golden Rule, v. Ainworth, 71 Ala. 443, 46 Am. Rep. 332; Nibl. Ben. Soc. & Acc. Ins. 244, 255; 2 May, Ins. § 550a (3d ed.)
The fact that section 3543, General Statutes of 1901, exempts this class of associations from supervision by the insurance department of the state does not change their character, as indicated in this discussion; nor does the fact that beneficiary certificates issued by them are exempt from taxation, under the provisions of section 3463, affect their nature. That the plaintiff in its ■constitution denominates itself a beneficiary society makes for nothing. A declaration of this sort does not change its real character ; that must be determined from the nature of its constitution and by-laws. It is not the name, but the nature, that determines. (Robinson v. Templar Lodge, supra.)
The court below found that the plaintiff was a secret benevolent association, but it did not find that it was such a benevolent association as could hold its property exempt from taxation under the statute. In effect, the court found that it was not such an association, for it rendered judgment against it. But the court’s knowledge was only such as we possess, for it was agreed that the plaintiff is such an association as is shbwn by its constitution and by-laws, which are incorporated in the record here. As said above, it is the nature, and not the name, which determines the character.
We do not think the plaintiff is entitled to the exemption from taxation which it seeks. The judgment of the court below will be affirmed.
Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff as receiver of the defunct Hutchinson National Bank brought an action to enforce the stockholders liability of the defendant. Judgment was given for the defendant and the plaintiff appeals.
The petition contained the usual allegations in such cases, including the making of the assessment by the comptroller of the currency and the direction to the receiver to collect it. The portion of the answer which is now material was that a previous assessment of seventy-five per cent levied on the stockholders was amply sufficient, with the assets of the bank, to pay . all its liabilities “if said trust . . . had not been squandered and the assets . . . frittered away” and that there was no necessity for a second assessment to pay “any legitimate liabilities of said bank.”
The answer presented no issue of fact for the consideration of the district court and judgment should have been given for the plaintiff on the pleadings. It is not charged in issuable form that acts of misconduct and mismanagement occurred, that through them losses were wrongfully sustained, and that the comptroller made a levy on the stockholders to make good such losses. But if such were the affirmative charge the stockholders would still be liable, under their contract, to assessment for unpaid debts of the bank. Section 5151 of the Revised Statutes of the United States forms an integral part of such contracts and reads as follows:
“The shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount' invested in such shares.”
Interpreted in the most liberal way, the answer does no more than assert that the first assessment was sufficient to discharge this responsibility and that there was no necessity for a second assessment to pay debts the bank. Under the acts of congress the comptroller of the currency is a quasi-j udicial officer, vested with jurisdiction to decide these questions, and his decision that it is necessary to make a requisition on the stockholders is not open to contest by the stockholders on the facts involved in the decision. Their contract is to pay at such times and in such amounts as he shall determine, and so long as he acts within his jurisdiction and in good faith his determination can not be impeached. Should he go beyond the ambit of his authority, or should his conduct be so irregular that to en force compliance with his order would be practically equivalent to working a fraud on the shareholders, they may resist it. In any such case the grounds of resistance must fall under some recognized head of equity jurisdiction, and in the federal courts relief must be sought in equity and not at law. Under our practice the defense may be made in the receiver’s action to collect the assessment, but in all cases the-specific facts relied on to vitiate the comptroller’s action, whether they show want of jurisdiction, error of law, misconduct, fraud, or mistake, must be pleaded with all the definiteness and certainty required in similar cases.
The foregoing propositions of law are fully sustained by the authorities, which are collated by Judge Sanborn in the opinion in the case of Deweese v. Smith, 106 Fed. 438, 45 C. C. A. 408. To the lists contained in this opinion may be added the subsequent-cases of Studebaker v. Perry, 184 U. S. 258, and Rankin v. Barton, 199 U. S. 228, one of the suits now under decision.
The following statements, taken from the headnotes to the report of Deweese v. Smith, are particularly pertinent:
“The statutes and the settled law of the land at the time a contract is made become a part of it, and must-be read into it.
“The liability of the shareholders of national banks for their debts under section 5151 of the Revised Statutes is based upon contract.
“The contract of the shareholder of a national bank with the bank and its creditors regarding its debts is that, to an amount not exceeding the par value of his shares of stock, and not exceeding his equal and ratable proportion, he will pay, at such times and in such, amounts as the comptroller of the currency shall demand, the debts and obligations of his bank.
“Under the acts of congress the comptroller of the currency is constituted a quasi-judicial tribunal to determine at what times and what amounts, not' exceeding the full liability of the stockholders, it is necessary to collect from them to pay the debts of the bank. His decisions of these questions are impervious to collateral attack, and open to avoidance by a court only in a direct attack upon them for error of law, fraud, or mistake.
“One who would attack in a federal court the decision of a quasi-judicial officer for mistake of fact must proceed in equity, and must allege and prove the evidence before the officer from which the mistake resulted, the way in which it was made, and the fact that in its absence his decision would have been otherwise, before a court can enter upon a reconsideration of the issue before the officer.”
The answer contained several defenses, and the plaintiff did not take measures to test the legal sufficiency of the portion under discussion but replied by a general denial. The plaintiff now claims that the proof offered at the trial was sufficient to sustain the judgment of the district court. A duly authenticated copy of the original order of assessment was introduced in evidence by the receiver. The receiver himself testified to the present condition of his trust and gave figures showing that the second assessment would not be sufficient to liquidate the bank’s affairs. He also presented a written statement showing the condition of the bank when the second order was made, which he had prepared from the records, and which follows:
LIABILITIES.
At date of suspension.... $126,473.28
Established since suspension .................. 7,845.10
Interest on claims to January 28, 1901.......... 5,285.78
Expenses paid to September 30, 1900........... 17,039.95
Remaining expenses estimated ................. 241.24 — $156,885.35
Less liabilities cancelled by offset ............. 23,687.41
Less claims proved and surrendered ........... 8,625.84
Less claims in dispute— cancelled .............. 4,772.70
Less claims not proved— " cancelled .............1 1,481.81 38,567.16
$118,318.19
ASSETS.
Total collections ......... $68,661.25
Less collected from assessments ................ 17,850.49
$50,810.76
Deduct loans paid........ 26,492.57— $24,318.19
$94,000.00
First assessment ................... 75,000.00
$19,000.00
The defendant introduced a “Recapitulation,” apparently of liabilities of the bank, found in a book delivered by the examiner who took charge of the bank at the time of suspension to a receiver who preceded the plaintiff. This recapitulation showed the liabilities at the time of failure to be $132,924.31. There was no proof of the correctness or finality of the recapitulation and there was no evidence beyond that which has been stated bearing upon the propriety of the comptroller’s conduct.
The defendant insists that the receiver, in the preparation of the statement reproduced above, resorted to a bookkeeping trick which exposes the vicious character of the order in that he deducted the item “loans paid” from the proceeds of assets. The argument is' that if loans were paid they were liabilities of the bank and so were necessarily included in the items scheduled as liabilities. The court is not aware of any such necessity, and loans paid are distinctly not included under the head of “liabilities” in this statement. The statement was prepared from the records before the comptroller when he made the order, and in the absence of proof to the contrary .the presumption should be that loans paid were not classified with ordinary liabilities, designated as such, or with expenses, but belonged to a different schedule, in the receivership accounts. In any event neither bad faith nor mistake on the part of the comptroller can be predicated merely upon an indefinite item in the re ceiver’s summary, and fair proof of some such delinquency was necessary to overthrow the order.
The defendant contends that interest on claims, against the bank should not have been taken into account in considering the necessity for a second assessment, and consequently that the order rests in part on a patent error of law. Interest is as much a part of a debt as the "principal on which it accrues. Insolvency does not change the nature of a bank’s interest-bearing obligations, and stockholders are liable to ratable assessment to pay such obligations, up to the par value of their stock.
^Nothing further is urged against the validity of the order except that it was made without justifying necessity. It was not open to the court to consider the evidence as relating to that subject. As already shown, the order of assessment, duly proved, was quite analogous in its conclusiveness to the final judgment, of a court of competent j urisdiction^/It could be impeached only by evidence of a certain character, and no evidence of that character appears.
The judgment of the district court is reversed and the cause is remanded with direction to render judgment in favor of the plaintiff.
The judgment in the companion case of Rankin v. Barton, No. 17,467, is also reversed and remanded with, like direction. | [
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The opinion of the court was delivered by
West, J.:
The parties became partners in a private bank, the plaintiff being president and the defendant cashier. The latter had the full management of the bank, and after several years’ business it was closed by the state bank commissioner and a receiver appointed, and while the creditors were substantially all provided for the firm suffered a loss of about $17,000. The plaintiff sued for the entire loss, alleging that it was caused by the fraud, misconduct and unlawful management and control of the partnership by the defendant while acting as partner in a fiduciary capacity or relation. The answer set up, among other things, that prior to the filing of the amended petition the defendant was duly and legally discharged in bankruptcy, of which proceedings the plaintiff had due notice. Without going into the various mutations and dealings of the bank and divers matters covered by the testimony, it is sufficient to say that a referee was appointed, who, after an extended trial, reported that during all the transactions the plaintiff and the defendant were partners owning the bank, that certain other business was conducted by the firm outside of the banking business, that they were each entitled to one-half of the profits and liable for one-half of the losses either as the Neosho Falls Bank or as Inge and Still-well. The referee recommended that the receiver, upon final settlement and payment of all the debts of the bank and firm, be ordered to pay to the plaintiff, out of any remaining funds, not exceeding the sum of $17,-610.34, and that the same when paid should be a credit against such sum, and after such credit the defendant would be indebted to the plaintiff for one-half of such balance as upon a claim and debt theretofore discharged in bankruptcy; that subsequently to the beginning of the action a petition in bankruptcy was filed against the defendant; that the sum of $8805.17, owing by the defendant to the plaintiff, was hn existing liability provable against the estate of the defendant; that plaintiff had actual notice and knowledge of the pendency of such proceedings long prior to the granting of the discharge in bankruptcy on November 14, 1907; and that such claim was not by law excepted from the operation of the discharge. . These findings were, after some slight amendment, approved by the court, and the plaintiff appeals.
The only question presented is the effect of the discharge in bankruptcy. The findings of the reféree fail to show any fraud committed by defendant against the plaintiff, and the evidence being voluminous and the findings having been approved by the trial court we must accept them as correct. What the record shows is, in substance, that the defendant was permitted to manage the bhnk according to his own judgment for a number of years, and after some apparent prosperity adversities came and a considerable loss followed. The-plaintiff was the president, but according to his own theory paid practically no attention to the affairs of the bank, and in the absence of a finding of fraud that, section of the bankruptcy act in . question could not be applied, and even if the plaintiff’s theory be taken that, the loss was occasioned by the fraudulent conduct and' mismanagement of the defendant- the fiduciary relationship required by the statutes does not, according to the authorities, appear to have existed.
Section 17 of the bankruptcy act of 1898 provides that a discharge shall release a bankrupt from all his provable debts except those which “were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.” Collier on Bankruptcy, 9th ed., says:
“On the other hand, partners and bankers, like agents, factors, and commission men, do not usually act in a fiduciary capacity.” (p. 404.)
In Pierce v. Shippee et al., 90 Ill. 371, it was held that a person furnished with .money by another to purchase corn for speculation, the one receiving the money to make the purchase and bear all expense and upon a sale the amount received in excess of the sum advanced to be equally divided, the loss, if any, to be apportioned equally, was a partner and did not act in a fiduciary relation.- The court said:
“We perceive no element in the transaction which would make it a fiduciary debt. . . . Here was a limited partnership created, where the parties to the contract were to share in the profits and losses of the -enterprise. The defendants were not trustees of the plaintiff, nor does the transaction disclose any relation -of trustee and cestui que trust. ... So far as the evidence shows, the only default of the defendants arises from the fact that they failed to pay over to the plaintiff one-half of the money he advanced with which the parties engaged in the speculation. This default is not a breach of trust, it is a mere breach of contract; and should this undertaking be held to be a fiduciary obligation within the meaning of the act, upon the same principle almost every legal or equitable obligation of a debtor would have to be included within the same list.” (pp. '375, 376.)
Barber v. Sterling, 68 N. Y. 267, involved a trans action by which the defendant entered into a contract to lease plaintiff a furnace and fixtures for a term long enough to make and manufacture 1000 tons of .iron, the defendant to act as plaintiff’s agent in the work of repair and in manufacture; the product was to belong to the plaintiff, who was to sell the same, retaining all advances made by him with interest and with commission on the net sales, and to pay the balance to the defendant as compensation for services and use of the property. . The defendant, with the knowledge and consent of the plaintiff, sold the product, using a [portion of the proceeds in the purchase of materials and in payment for labor, and failed to pay over the portion due the plaintiff. He overpaid for labor and materials and appropriated profits arising from other transactions' in which the plaintiff was entitled to a share. In an action to recover the amount due plaintiff, the defendant pleaded his discharge in bankruptcy, and it was held a good plea. The court said:
“The defendant had an interest in the profits, and occupied more the position of a partner than an agent, as his labors in respect to the sales and the receipt and disbursement of money were performed for the benefit of all the parties to the contract. . . .No account was either rendered by defendant, or called for by plaintiff, during the period of defendant’s employment, and for nearly four years the whole business was conducted in the most loose and irregular manner, so that none of the parties profited by their unfortunate venture.
“Upon such a state of facts a fiduciary relationship can not be predicated.” (pp. 273, 274.)
In Gee v. Gee, 84 Minn. 384, 87 N. W. 1116, it was decided that the exception does not apply to a misappropriation of money by a partner while engaged in the conduct of a partnership business, unless in violation of some express trust. The circuit court of appeals of the seventh circuit held in Barrett v. Prince, 143 Fed. 302, that “mere confidence reposed in the punctuality and integrity of a person with whom one has commercial transactions is not the fiduciary relation that was meant to be covered by the excepting portion of the bankruptcy acts.” (p. 304.) In Crawford v. Burke, 195 U. S. 176, the supreme court ruled that “A commission merchant and factor who sells for others is not indebted in a fiduciary capacity within the bankruptcy acts by withholding the money received for property sold by him and this rule applies to a broker carrying stocks on margin who sells the same and does not pay over the proceeds to his principal.” (Syl.) The case of Karger v. Orth, 116 Minn. 124, 133 N. W. 471, 27 Am. Bankr. Rep. 212, (decided in 1911) lays down the doctrine that “Misappropriation by a partner of partnership funds is not a misappropriation by him while acting in a ‘fiduciary capacity,’ within the meaning of the provision excepting certain debts from the effect of a discharge in bankruptcy.” (Syl.)
The appellant cites Herman v. Lynch, 26 Kan. 435, but the facts in that case were quite different from those now under consideration, and in the opinion it was said:
“But if it was the understanding of the parties that the defendant might use this money in his own business and obtain exchange on his own account, then the defendant would not be holding the money in a fiduciary capacity, whether the bank allowed him to overdraw his account or not; and in such case the claim of the plaintiff would have been wholly discharged by the proceedings in bankruptcy without reference to his dealings with the bank.” (p. 442.)
Reference is also made to Stewart v. Harris, 69 Kan. 498, 77 Pac. 277, but that involved the relations between the managing officers of a corporation and its shareholders and was not the case of an ordinary partnership.
The appellant says in his brief that the debt is excepted “by reason of the violation (fraud, deceit, embezzlement, misappropriation and defalcation) of an express trust, and while the appellee occupied the position as an officer acting in a fiduciary capacity.” The fraud, however, must occur against the party towards whom the debtor holds a fiduciary relation. If the cashier so conducted the bank as to defraud its depositors he did so not as the trustee but as the partner of the plaintiff, and hence the latter can not assert such fraud as committed against him, an equal sharer in the gain and equally responsible for the loss of the enterprise. Counsel say: ‘-‘At any rate, the appellant’s relations with the appellee -(whatever they were in law) cost him about $18,000, the loss of his property, and several years of expensive litigation, without any fault, knowledge or ratification on his part.” But the plaintiff voluntarily entered into the partnership and permitted its affairs to be conducted by the defendant as he chose, and had his peculiar methods resulted in a gain, one-half thereof would inure to the benefit of the plaintiff; and by the same rule one-half the loss falls on him by reason of the partnership relation and not from any fiduciary consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The petition alleged that the plaintiff was the owner and in possession of a quarter section of land, all in cultivation and used by him for raising wheat; that the defendant occupied another quarter of the same section, and farmed still another, “and for some time last past in going to and from his home place to the said rented land, he has unlawfully entered upon the. said premises of said plaintiff, near the north line thereof and used the same as a public highway, thereby destroying plaintiff’s growing crop; that on or about the 8th day of the present month, after plaintiff had prepared his land for drilling wheat this fall, the said defendant again, without right so to do, entered upon the plaintiff’s said premises and drove over the same with an engine and threshing machine, and has continued and is still continuing to use the same as such highway by driving over the same with his wagons and teams and will continue so to do unless restrained by order of this honorable Court;” that the appropriation of such portion of land as a highway would work an irreparable injury; and that the defendant threatened to and would use and appropriate such portion by traveling over the same as stated, no highway ever having existed thereon. A demurrer was filed and overruled, whereupon an injunction was granted.
The only question presented is whether the petition stated a cause of action. The defendant complains that the pleading abounded more in conclusions and arguments than in facts, and asserts that the mere allegation of irreparable damage without any statement of facts to support it is insufficient, and that injunction does not lie in the case of a naked trespass.
The general rule is that a demurrer admits every thing well pleaded, but in McPherson v. Kingsbaker, 22 Kan. 646, it was thus stated:
“Ordinarily, mere generality in the allegations is to be remedied by motion and not by demurrer; and where all essential facts are stated, although in general terms, a demurrer will not lie.” (p. 647.)
The petition substantially follows the one considered in Poirier v. Fetter, 20 Kan. 47, which was deemed sufficient as against a demurrer. It was there said:
“A mere trespass will not be restrained, . . . but where the trespass, if permitted to continue, will ripen into an easement, there injunction will lie.” (p. 49.)
It was further ruled that when irreparable mischief is threatened, equity will interfere by injunction even against one acting under a claim of right. (There a township trustee.) As to the allegation that the threatened damages were irreparable, the court said:
“The threatened loss of his land is the irreparable injury, and it matters not how solvent he may be who seeks to take it or to transfer it to the public use, the courts will protect the possession of the owner.” (p. 50.)
While general allegations of fraud and illegality and mere legal conclusions are bad as against a demurrer (Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985; Houser v. Smith, 80 Kan. 260, 101 Pac. 1001), mere generality of allegation (Meagher v. Morgan, 3 Kan. 372), or conclusion of fact (Gilmore v. Norton, 10 Kan. 491; L. L. & G. Rld. Co. v. Leahy, 12 Kan. 124; Comm’rs of Saline Co. v. Young, 18 Kan. 440; McPherson v. Kingsbaker, 22 Kan. 646), do not render the petition insufficient. Indeed, in an early case (Stewart v. Balderston, 10 Kan. 131) it was said that as against a demurrer, in the absence of a motion to make definite and certain, everything stated in the petition should be taken as true, whether well pleaded or not. It must be held, therefore, that in this respect the demurrer was properly overruled.
In Godfrey v. Black, 39 Kan. 193, 17 Pac. 849, it was said:
“Equitable relief may be properly extended in some cases against trespass: ... A new cause of action would arise every day for the constantly-recurring grievance which would lead to a multiplicity of suits, and the necessity of preventing these is an exception which warrants the exercise of the equitable jurisdiction of the court.” (pp. 196, 197.)
In Mendenhall v. School District, 76 Kan. 173, 90 Pac. 773, it was decided that injunction lies to prevent a trespass when the acts complained of are continuous or when the injuries are of such character that they can not be compensated by any ordinary standard of value, or when for any reason the remedy at law would be inadequate; that an adequate remedy at law must be equally complete, practical and efficient with the remedy in equity. Section 250 of the civil code authorizes the granting of an injunction when it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission or continuance of some act the commission or continuance of which during the litigation would produce injury to the* plaintiff. In Webster v. Cooke, 23 Kan. 637, a bona fide settler upon certain ceded land was held entitled to an injunction against a mere trespasser, who took possession by force and violence and continually interfered with the settler’s flocks and prevented their grazing on the premises. Insolvency was there alleged, but it was said:
“The general rule is that, where the injury complained of is in its nature a continuing one, if the defendant persists in inflicting the injury and an action for damages would be wholly inadequate for the protection of the plaintiff’s fights, equity will interfere and afford relief by injunction.” (p. 640.)
In Godfrey v. Black, 39 Kan. 193, 17 Pac. 849, it was held:
“Neither is the right of the lessor to bring an action to recover compensatory damages for the trespass a sufficient- ground, for withholding the remedy of injunction. Equitable relief may be properly extended in some cases against trespass. An action at law against the trespasser here, would not be an adequate i-emedy.” (p. 196.)
“The jurisdiction of equity, in a proper case, to restrain trespasses is now well settled. . . . Equity will not restrain by injunction .the commission of a mere ordinary or naked trespass. The nature of the trespass or the injury resulting therefom must be such as to require equitable interference. . . . Where the resulting injury is susceptible of perfect pecuniary compensation, the remedy will be denied in the absence of other grounds calling for equitable interference. But where one party makes a tortious attempt to use and possess the real property of another, or is permanently injuring the estate, an injunction may issue, although a recovery of damages would be adequate, in case the remedy of the complainant is otherwise inadequate at law.” (22 Cyc. 825, 827, 829.)
Cases are cited from England, the United States and many states in support of the following text:
“Where acts, of trespass are continuous or constantly recurring whereby, if permitted to continue, irreparable injury may result, as where the continuous wrongful invasion of plaintiff’s right might ripen into a prescriptive right, an injunction will lie to restrain such trespasses, both on the ground that the remedy at law by suits for damages is inadequate and to prevent a repetition or multiplicity of such suits.” (22 Cyc. 836.)
While the plaintiff might have been required to make his petition more definite and certain by a proper motion, we think, in view of the foregoing authorities, that as against the demurrer a cause of action was stated.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action was brought by the vendee in a contract for the sale of land to enforce specific performance and for damages, and was tried as an action to recover damages only. Judgment was given for the amount of an advance payment.
No conflict appears in the evidence. No default in the contract had been made by the vendor before the suit was brought, but- he .had conveyed the land to another who had purchased it in good faith. To sustain the judgment it must be presumed that the recovery was allowed upon the theory that the contract had been rescinded by consent of the vendor—considering the conveyance made by him as an abandonment of the contract, as he thereby disabled himself from performing it.
While it is a general rule that a purchaser who, without fault of the vendor, has failed to fulfill the contract can not recover an advance payment, yet this rule does not prevail where the contract has been abandoned or rescinded by consent of the party not in default. (Hillyard v. Banchor, 85 Kan. 516, 526, 118 Pac. 67; Phelps v. Brown, 95 Cal. 572, 30 Pac. 774; Richards v. Allen, 17 Maine, 296; Andrews v. Brown, 57 Mass. 130; Fry on Specific Performance, 4th ed., § 1066.)
Time was not of the essence of the contract, but it was sought to make it essential by a notice to the vendee that he must pay the balance of the purchase money at a date stated in the notice. The time of performance according to the terms of the contract was May 10, 1910. At that time the deed from the vendor was on deposit at a designated bank, as provided in the contract, and the abstract, likewise so deposited, had been received by the vendee. The vendee failed to object to the title or pay the balance of the purchase as agreed, and a notice was served upon him by the vendor on that day, May 10, that unless such payment was made on or before May 12, at four o’clock P. M., the contract would be rescinded. The payment was not made, and on May 13 the vendor conveyed the land to another.
Where time is not of the essence of such a contract it may be made essential by performance- or tender of performance by one party and demand on the other. (Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409.) But a reasonable time must be allowed to comply with the demand. (Kirby v. Harrison et al., 2 Ohio St. 326; 6 Pomeroy’s Equity Jurisprudence, § 815.) What is a reasonable time is a question to be determined from the circumstances of each particular case. (Mastin v. Grimes, 88 Mo. 478; Waterman of the Specific Performance of Contracts, § 465; 36 Cyc. 715.)
The amount to be paid in this instance was over $3000. The notice was served on the day the money was due. The notice gave less than two days in which to make payment. Immediately after the time so given had elapsed conveyance was made to another. No reason appears in the evidence and none is suggested .why such haste was necessary or reasonable, and it can not be held as matter of law that a finding of the district court that the time given was not reasonable was erroneous. To uphold the judgment, it should be presumed that the court so found—and this finding is approved.
The judgment, although not erroneous for any reason already considered, must be set aside. The case was submitted on December 12, 1910, and decision was reserved to be announced at a later date. The term of court was adjourned without day on the 13th day of December. On March 11, 1911, a judgment was enterein vacation against the defendant for $156.75, the amount of the advance payment with interest. The judge had no power to render the judgment in vacation. (Earls v. Earls, 27 Kan. 538; Packard v. Packard, 34 Kan. 53, 7 Pac. 628; The State v. Start, 62 Kan. 111, 61 Pac. 394.)
A void judgment may be reversed on appeal. (Fleeman v. Railway Co., 82 Kan. 574, 109 Pac. 287.)
As the entry of the judgment recites a submission of the case on the 12th of December, 1910, and the rendition of judgment on the 10th of March, 1911, it is argued that it must be presumed from the record that the court was in session on the latter date. It would be so presumed from this alone, but there was another record, that of the adjournment of the term without day on the 13th day of December, 1910. It is argued that we can not consider the record of adjournment, because it was not introduced in evidence in the district court on the motion for new trial or otherwise. It was not-necessary that the record of its own adjournment should be presented in evidence to that court, since it was a matter of judicial knowledge. Again it is said that the entry shows that the motion for a new trial was overruled on December 12, 1910, when the case was submitted. We do not so read the record, which recite^ the rendition of the judgment on March 10, and following this is the recital of an order overruling the motion for a new trial. True, the entry recites that the motion was filed on December 12, but it must be presumed— and the entry is in harmony with the presumption— that action was taken on the motion at the date on which judgment was rendered.
The judgment is reversed with directions to the district court to enter judgment in term time in pursuance to the submission of the case on December 12. While the judgment entered in form upon the journal is a nullity, and in the absence of any other order an appeal might be taken after another judgment is entered, still to end the litigation—all the facts being before this court—the further direction is given to enter judgment for the plaintiff for the amount of the advance payment and interest. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff based her right to recover on the allegation that the car suddenly lurched forward as she was about to alight. She alone swore to this state of facts. The defendant produced the evidence of the motorman and conductor and three disinterested witnesses who all testified substantially that the car did not lurch forward but that the plaintiff alighted while it was in motion. The verdict was in favor- of the plaintiff. The defendant asks that the judgment be reversed because it is against the overwhelming weight of the evidence, and says:
“The evidence of the injured party alone is allowed to overcome that of three utterly disinterested witnesses, as well as that of the conductor and the motorman. The circumstances all militate against the plaintiff’s evidence, and the defendant’s witnesses were not impeached in anyway. The jury were not at liberty to disregard the evidence of these disinterested witnesses arbitrarily from partiality or caprice.”
The case of Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, is cited. That case was one of undisputed evidence disregarded by the jury. This is -a case of conflicting evidence, the jury giving credence to that of one witness rather than that of five who testified to the contrary. While trial courts should not hesitate to set aside verdicts when manifestly against the weight of the evidence, still there is seldom a case without a conflict in the evidence, greater or less, and whatever the conflict may be if the trial court is satisfied and approves the verdict it is not the province of this court to order it set aside. 'Here the jury had ail the circumstances shown and the evidence of the plaintiff and were affected by the personality and manner of the witnesses, an advantage which the trial court also had but of which we are deprived. In U. P. Rly. Co. v. Diehl, 33 Kan. 422, 6 Pac. 566, it was said:
“We think the verdict of the jury in the present case should have been set aside, and a new trial granted. It is the duty of a trial court, whenever the verdict is clearly against the weight or preponderance of The evidence, to set it aside and grant a new trial. (Citing authorities.) The supreme court, however, has no such power. Where the evidence is all in parol, and where there is some evidence sustaining every fact necessarily included in the verdict—not a bare scintilla, but enough evidence, if not contradicted, to prove every such fact—and where the trial court approves the verdict by refusing to set it aside, and by rendering a judgment thereon, the supreme court can not disturb it, although a preponderance of the evidence may seem to be against the verdict. (Citing authorities.) It is perhaps unfortunate in many cases that the supreme court has no greater power in reviewing and in setting aside verdicts; for, because of such inability on the part of the supreme court, injustice is sometimes permitted to be done.” (p. 425.)
The testimony of the plaintiff, taken alone, fully and fairly established her right to recover, and the divergence of her story from that of the contradicting witnesses is not sufficient to say that the j ury disregarded the defendant’s testimony arbitrarily or from partiality or caprice.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The appellant, Hetzer, in possession of the land in controversy and claiming title thereto under a tax deed valid upon its face but based upon irregular proceedings, commenced an action to quiet title against the appellees, Burbery and Raper, who claimed the premises under a tax deed of an earlier date void upon its .face. The appellees in their answer interposed a counter claim in ejectment for possession of the land. The reply of the appellant admitted his possession and denied the appellees’ title. The appellant then dismissed his action and the case proceeded as an action by appellees (defendants) to recover possession from appellant (plaintiff).
It was admitted on the trial that neither the appellees nor any of their grantors had ever been in possession of the land, but that judgment quieting title had been rendered in favor of each of two of the grantors under whom the appellees held by a conveyance made after the decrees had been entered and which was taken in reliance upon them. The last of the judgments quieting title was entered on January 24, 1906, and it was admitted that it was regularly rendered quieting title to the land in controversy against all parties then claiming any interest therein.
The appellant’s tax deed is dated October 31, 1906, recorded March 19, 1907, and is based upon the delinquent taxes of the year 1901. ' The appellees’ tax deed was issued September 15, 1902, based upon sales for taxes due prior to the year 1901.
The judgment in this action contains findings that the defendants, by reason of being the owners of a prior tax deed upon which title had been quieted, were in the position of the original owners and entitled to five years in which to bring suit to set aside plaintiff’s tax deed; that the defendants were the owners of the land in fee, and the plaintiff’s tax deed was voidable for irregularities. Thereupon judgment was rendered for the appellees for possession, and a tax lien allowed to the appellant.
It appears from these findings that judgment was given upon the theory that the decrees quieting title operated to put the appellees in the position of the original owners, who could, of course, have maintained an action to set aside a voidable tax deed if brought within the period of limitation. It was held, however, in Lockwood v. Meade, 71 Kan. 739, 81 Pac. 496, that an ordinary judgment quieting title did not have the effect of transferring to the plaintiff in such an action the title theretofore held by the defendant owners. That decision is cited in Banchor v. Proctor, ante, p. 510, 129 Pac. 526, where it was said that a judgment quieting title did not transfer the title of the heirs (original owners) but did render the tax title quieted unassailable by them. It must be held then, that the decrees quieting title did not transfer the original patent title to the plaintiffs therein, but protected their title against attack by the original owners, who were barred by the decrees.
The appellees contend, however, that the decree of January 24, 1906, bars the appellant from any interest in the land although his tax deed was issued after-wards, because of the fact that the deed is based upon a tax-sale certificate outstanding when the decree was entered, which certificate created an interest in the land. (Douglas, Guardian v. Dickson, 31 Kan. 310, 1 Pac. 541.) Whether the holder of a tax sale certificate who has a mere lien for unpaid taxes and charges has an adverse estate or interest in the land that may be barred by an action to quiet title under the provisions of section 618 of the civil code, it is not necessary now to decide. Ordinarily, such an action would fail, for if the land be taxable and the taxes delinquent the' certificate would not be set aside except upon payment of the taxes and charges due, and this could be accomplished by redemption at the treasurer’s office. If the lands are not taxable, or the taxes have been paid, the ordinary proceeding in equity would be an action to set aside the certificate or for an injunction against the public officers.
Without deciding the question just referred to it is sufficient to say that in this instance the' admission is too broadly interpreted by the appellees. The admission was that the proceedings in the suits to quiet title were regular upon the face of the record and that the decree of January 24, 1906, was rendered in favor of the plaintiff in that action “quieting his title to the land in eontrovérsy against all persons then claiming any interest therein.” Interpreting this language in the light of the circumstances and giving effect to the natural meaning of the words used, this is held to apply to persons claiming an interest in the litigation and parties in the action. To bar the holder for the time being, of an outstanding tax-sale certificate, it should appear that such holder was a party to the suit.
If the certificate upon which the appellant’s tax deed was issued was not barred by the decrees quieting title, the situation is simple. He is in possession under a tax deed valid upon its face, but voidable if exposed to the attack of a party having the right to assail it. The appellees, however, are claiming under a tax deed of an earlier issue void upon its face, under which possession had never been taken, and have no standing to make the attack.
“It is fundamental that a person attacking a tax deed must show title in himself.” (Smith v. Newman, 62 Kan. 318, 321, 62 Pac. 1011, 53 L. R. A. 934.)
In Cone v. Usher, 86 Kan. 880, 122 Pac. 1049, and Banchor v. Proctor, ante, p. 510, 120 Pac. 526, the rights of successive tax-title holders with respect to each other are considered, but there is nothing in either decision out of harmony with these views.
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Benson, J.:
The petition first states a cause of action in ejectment in the usual form. In a second cause of action it is alleged that in the year 1891' Hiram Stout verbally agreed to transfer the title and possession of the tract in question, containing 40 acres, to Belle Charpie in consideration of $2000, which he had previously borrowed from her; that in September of that year he procured a tax deed upon part of the tract, and a quitclaim deed from a tax-deed holder for the other part, to be made to Clara Charpie, a sister of Belle Charpie, for whose use they were intended, who entered into immediate possession of the land. It is further alleged that Clara afterward made a conveyance to Belle, who remained in the quiet and exclusive possession under the agreement until her death, which occurred on the 9th of May, 1909, but that the defendants took wrongful possession on or about March 1, 1910.
The plaintiffs, heirs at law of Belle Charpie, claim the land under the tax deeds, and also under the verbal agreement. Hiram Stout filed a disclaimer; Ed Patrick and wife claim no .interest except as tenants. The issue was between the plaintiffs and Ella B. Stout, who holds under mesne conveyances from her husband, Hiram Stout.
From the testimony of Hiram Stout it appeared that Belle Charpie and Clara Charpie were sisters of his first wife, now deceased. In the year 1878 Mr. and Mrs. Stout and Belle removed to Kingman county from Indiana, their former home. Mr. Stout became financially embarrassed in the year 1887, and borrowed $1800 of Belle, who was then in the millinery business in Kingman and obtained the money for him by mortgaging her building. Judgments were outstanding against Hiram Stout, and he procured a tax deed and a conveyance from a tax-title holder of this land to be made to Clara Charpie in the fall of 1891, and then turned over the possession to Belle. Clara had no interest in the land, and afterwards made a conveyance to Belle, upon i-equest of Mr. Stout. Concerning this agreement with Belle, Stout testified:
“I turned the possession of those two pieces of land over myself to Belle Charpie, to use, and I. promised her at the time that I turned the land over to her that if I could get the land pulled out from under the load of judgments that was on top of it that I would use it to settle with her—use it to pay her with, if I could. Then I have been looking after it ever since, one way and another, although I left her in charge of it to handle it as about she pleased, so as to give her something to live upon. . . . The spring that she died we talked over selling the land, and said we would sell it as quick as we could get $100 per acre for it.”
Answering the question whether he had any agreement or understanding with Belle that she should become the owner of the land, he said: “Never did; that was a matter that was unsettled.” He also testified:
“I said to them (the plaintiffs), T have got $1800.00 of Belle, and I expected to use this land to pay the $1800.00; that I promised Belle that I would use it if I could get it out from under the load that it was carrying, and all that they could hope out of that, would be what would be due in settlement for the $1800.00. I did not know definitely the sum of money at all.”
The evidence shows that Mr. Stout was closely associated . with Belle through family relationship and was her confidential adviser in business matters. From the time of the arrangement made in September, 1891, until her death she openly held possession of the -land, made leases in her own name, collected rents, and managed and controlled it in all respects as the owner until her death in May, 1909. At that time it was in the possession of her tenant. In the year 1895 she moved a building upon it, out of which she constructed a dwelling house and barn. She had previously set out fruit trees upon it which are now in bearing. It was unimproved when she took possession, but appears to have been cultivated ever since by her and her tenants. At the time of Belle’s death the land was occupied by her tenant, under a lease from her, upon a term which expired March 1, 1910. At that time, or shortly before, Stout took possession, apparently from this tenant, and turned it over to Patrick as his tenant.
The court sustained a demurrer to the evidence relating to the first cause of action, which appears to have been treated as based upon the tax titles, and submitted the case to the jury upon the single question whether Belle Charpie had held the open, exclusive and adverse possession of the land for fifteen years. The jury were instructed in the meaning of these terms, and answered questions submitted upon that issue, and returned a verdict for the defendants.
' It is contended by the plaintiffs (appellants) that the issues upon their first cause of action should have been decided in their favor upon the tax deeds, upon which no irregularities appeared. The evidence, however, showed that the deeds were procured by the owner as a cover to protect the land from judgments against him. In view of the conclusion reached upon another feature of this case we need not consider the question whether this defense to the tax deeds is avail able where it is interposed by the party who procured the deeds to be thus made, or one in privity with him, in the situation here presented.
In the second cause of action a verbal agreement to convey the land, accompanied by the transfer of actual possession, in consideration of money already advanced was pleaded. The testimony of Mr. Stout himself, which is undisputed, proves that he placed his creditor, Belle, in possession as security for the debt. She never yielded the possession and the debt is not paid. The transaction, as testified to by Mr. Stout, was a pledge of the land as security for the money borrowed. The form of an agreement by which security is given is unimportant if the purpose plainly appears. Equity regards the substance and gives effect to the intention.
“Courts of equity are not governed by the same rules as courts of law in determining whether a mortgage has been created; and generally, whenever a transaction resolves itself into a security, or an offer or attempt to pledge land as security for a debt or liability, equity will treat it as a mortgage without regard to the form it may assume.” (27 Cyc. 976.)
“The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose rather than at the form; and if the intent appear to give, or to charge, or, to pledge property, real or personal, as a security for an obligation . . ' . the lien follows.” (3 Pomeroy’s Equity Jurisprudence, 3d ed., § 1237.)
“If the transaction resolve itself into a security, whatever may be its form, it is in equity a mortgage.” (Story, J., in Flagg v. Mann et al., [U. S. C. C.] 2 Sumn. 486, 533.)
(See, also, Harrigan v. Gilchrist, 121 Wis. 127, 361, 99 N. W. 909; 1 Beach on Modern Equity Jurisprudence, § 291; Boone on Mortgages, § 31.)
A case arose in Indiana where the agreement was quite similar to the one shown by the evidence here. The use and control of land had been turned over to a creditor until it should be sold, when the debt was to be paid, together with one-half the advance over that amount, received on the sale. No time was fixed for payment of the debt. The court said:
“The instrument is not a lease; it has none of the features of a lease except that of possession, and that is a feature not peculiar to leases. The instrument is a mortgage, for it evidences a debt, contains a promise to pay it out of the land, and puts the land in the possession of the creditor until payment of the debt. It is not the usual mortgage, perhaps not a complete one, but it is sufficient to vest in the creditor a right to have the land pledged to him and put into his possession, sold to pay the debt; in short, it is an equitable mortgage.” (Brown et al. v. Brown, 103 Ind. 23, 27, 2 N. E. 233.)
In that case, and many others of like effect which might be cited, the agreements were in writing, but a parol agreement of this nature may be enforced when partially performed as in this instance. (Foster v. Bank, 71 Kan. 158, 80 Pac. 49, 6 A. & E. Ann. Cas. 44, 114 Am. St. Rep. 475; Dean v. Anderson, 34 N. J. Eq. 496; Byers v. Johnson, 89 Iowa, 278, 56 N. W. 449; Thalheimer Bros. v. Tischler, et al., 55 Fla. 796, 46 South. 514, 15 A. & E. Ann. Cas. 863.)
The money had been advanced, possession given; and held under the agreement for over eighteen years and permanent improvements made by the holder who took no other steps to collect her debt. This is sufficient performance to remove the case from the operation of the statute of frauds. There is no claim that the debt has been paid. Stout could not have recovered possession from Belle Charpie in her lifetime without offering payment of the amount justly due. Possession obtained from her tenant without her consent would have been in violation of the pledge and wrongful. The legal situation was not changed by her death except that her heirs succeeded to her rights.
Evidence was offered and partially given, but ex- eluded, which apparently would have tended to show that the possession was taken by Stout in February, 1910, from the tenant of the deceased lessor. The evidence was competent, but excluding it from consideration, and supposing that the defendants found the premises vacant, and moved in after the tenant had moved out, still possession so obtained without payment of the debt and without the consent of the lessor or her heirs was wrongful. The heirs should still be treated as mortgagees in possession and entitled to hold that possession until payment of the debt.
“A mortgagee in the lawful possession of mortgaged premises can not be ousted or deprived of his rights as such against his will or by anything in fact short of redemption and complete satisfaction 'of the mortgage debt.” (Stouffer v. Harlan, 84 Kan. 307, 313, 114 Pac. 385.)
(See, also, Pettit v. Louis, 88 Neb. 496, 129 N. W. 1005, 34 L. R. A., n. s., 356.)
It is true that the testimony does not show an agreement to execute a formal mortgage. Fearing the enforcement of judgments Stout did not care to proclaim his ownership to the land, obscured by the tax deeds to Clara Charpie; and Belle Charpie, relying upon his fidelity in this as in other business transactions, accepted and held the security as he offered it, with the' tax deed made to her sister, who afterwards conveyed to her. Such agreements are usually termed equitable mortgages, but we are not concerned about the name; the effect of the transaction was'to create a lien upon the land to secure the debt, and under the rules applicable to mortgagees in possession equity requires the payment of the debt before relinquishment of the security is compelled. Ella Stout acquired no better rights in the land than her husband had, and took the title subject to the'rights of Belle Charpie and her Iieirs.
Upon the undisputed evidence the judgment should have been rendered in favor of the plaintiffs.
The judgment is reversed and cause remanded with directions to enter judgment accordingly. If the defendants desire they should be allowed, on payment of costs already accrued, to amend their pleadings by offering to redeem the land and making other proper averments, in which event the action may further proceed as though brought by them for redemption, but in the meantime possession should be restored to the plaintiffs. | [
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Per Curiam:
Whether or not a conveyance absolute in form and a contemporaneous separate agreement to reconvey constitute a mortgage depends upon the existence or nonexistence of a debt. If the deed be made to secure a debt it is in legal effect a mortgage. The true character of the transaction may be shown by parol evidence, and the fact that the mortgagor subsequently leases the property from the mortgagee does not change the nature of their relations. It is scarcely necessary to print again and again the authorities in support of these propositions.
Anderson’s testimony was that he had no claim on the land. He left it in the hands of Kackley the day he bought it. Kackley owed him $1400 for money he had advanced and two notes for interest on the money at eight per cent, called rent notes, and held the deed to secure the money. He offered Kackley more time, but Kackley arranged with the bank for the money and the bank paid Anderson. Anderson said the deed should go to Kackley, but the cashier, who conducted the transaction for the bank, said the bank’s agreement was the same as Anderson had and that they were to hold the land for Kackley for the money which Anderson got as long as Kackley desired. So Anderson deeded to the bank in order that it might be secured for the money it paid him.
If the direct testimony were less clear that the bank simply stepped into Anderson’s shoes doubt would be removed by some further considerations. In estimating the transaction we are obliged to start with the assumption that the “black and white” instruments were something other than they seemed in order to clear the bank cashier of a violation of law. This is all the more easy because there appeared to be no profit in the deal except interest. If the deed were not a mortgage the bank bought for cash and agreed to sell a year later for the same price—a queer thing for a bank to do in violation of law. Again, the cashier knew all about the actual facts. He was a witness for some formal purposes, like the identification of documents and .signatures, but he was discreetly silent upon the very things which were most material—a circumstance which the law regards as signifying nothing helpful in mind to say. The result is the testimony was all one way—abundant, clear, and affording a basis for but pne conclusion; -and this being true some bits of testimony wrongfully admitted, like Claude Kackley’s instructions to Carlos Kackley and Anderson’s declaration to Marian Kackley, are wholly negligible. The admissions of the cashier to interested parties when the land or debt was the subject of business discussion were of course properly received.
The findings relating to leasing and payment of rent simply pierce through ’ the form of the transaction to its essence and substance and are fully sustained. The argument relating to laches is met by the Dusenbery case. (Dusenbery v. Bidwell, 86 Kan. 666, 121 Pac. 1098.)
It makes no difference that the objection to a jury' trial was overruled because the case was finally disposed of as an equity case, the function of- the jury being limited accordingly. The instruction withdrawing the general issue from the jury was based on a misconception of the law, but it had no influence on the findings because they established the opposite theory of a mortgage and not a deed—a perfectly legitimate transaction.
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The opinion of the court was delivered by
West, J.:
Certain lots in Hutchinson, some owned by one W. H. Underwood and the others by his mother, Frances A. Underwood, were sold to the plaintiff. Early in September, 1908, the son conveyed his lots and also executed a deed as attorney in fact for his mother for those owned by her, and received the consideration. It appears that the plaintiff desired a deed direct from the mother for her lots, and that pursuant to an agreement with the son such deed was executed, dated October 29, 1908, acknowledged November 3, and thereafter delivered and recorded. It recited a consideration of $3000 and contained certain special covenants and warranties. The plaintiff paid $212.18 taxes which became a lien on November 1, and brought this action to recover the amount. The defendant alleged that a deed in terms identical with the one just referred to was executed and delivered in September before the taxes became a lien, except that the grantor’s name was signed by her attorney in fact, and that the full consideration was paid at that time and full title completely conveyed; that the second deed, owing to the fact that it had to be sent to Massachusetts' for signature and acknowledgment, was not delivered until November; that it was without consideration; and that no title passed-thereby, but that the second deed was given merely as a matter of accommodation at the request of the plaintiff to take the place of the former deed in order that the title might appear better of record. The court found for the defendant and the plaintiff appeals.
It appears that in September, when W. H. Underwood delivered the deed for his lots and executed as attorney in fact the one for those owned by his mother, he agreed that she would execute a deed in her own name, and as the consideration was desired it was paid upon the understanding that the deed executed by him should be held until the mother should return from abroad, when she would execute one herself. The plaintiff contends that the first deed was not satisfactory to him and was never accepted as the final transaction in closing and completing the deal; that the second deed is the one determinative of the controversy ; that the expressed consideration of $3000 can not be disputed for the purpose of destroying its effect as a conveyance, and as the grantor saw fit to execute it after the lien attached, she is liable.
The controlling question is, When did the title pass ? We regard the purchase as complete in September. The first deed conveyed the entire title, and when it was turned over to one of the parties acting for the plaintiff (as it seems to have been) upon full payment of the consideration he became the owner of the lots and the defendant ceased to hold any title thereto or interest therein. True, the plaintiff was by virtue of the agreement with the son entitled to a deed direct from the mother upon her return, but not for the purpose of conveying the lots—only in order to enable the records to show that the title which she had already conveyed by her attorney in fact was transferred by her directly. As evidence of the conveyance already made and paid for it was to supersede the former deed. It was somewhat like a deed of correction.
“In order to determine what was intended by a deed, separate or in different instruments may be construed together . . . where a deed is made to correct a mistake and supply an omission in a previous deed between the same parties.” (13 Cyc. 614, 615.)
In St. Joseph v. Baker, 86 Mo. App. 310, an acknowledged deed to one piece of land was made and delivered but not recorded. Five years later it was given up to the grantor to insert additional property, redate and redeliver it, and this transaction was held tantamount to destroying the original deed by consent and executing another, without an intention of revest ing the title; that the new deed was a single instrument, and it could not be shown by parol that one piece of property was conveyed at one time and another at a different time; also, that the grantee owned the property described in the first deed from the time of is delivery, and was not estopped to assert such ownership by the second deed. In Pittsburgh, etc., R. Co. v. Beck, 152 Ind. 421, 53 N. E. 439, it was held:
“Where a mistake was made in a deed, a deed of correction and confirmation relates back to the time of the original conveyance, no new rights having intervened.” (Syl.)
In King v. Norfolk & Western Railroad Co., 90 Va. 210, 17 S. E. 868, holding that it is proper to construe together a deed and one made subsequently to correct an omission, it was said:
“The deed of June —, 1852, was the necessary supplement of the deed of June 18, 1848, to correct a mistake, and to supply an omission in the said deed of June 18, 1848. They embraced the same subject-matter, between the same parties, and related only to the same transaction; and the circuit court did not err in holding both of the said deeds valid, and in construing them together.” . (p. 216.)
The supreme court of Wisconsin ruled, in Hutchinson v. The Chicago & Northwestern Railway Company, 41 Wis. 541, that there is no valid reason why a corrected conveyance from the grantor should not have the same effect as though the correction had been made by the judgment of a court of equity instead of the voluntary act of the parties. Had the plaintiff sued to compel the defendant to execute her deed in accordance with her son’s promise, and had the court decreed such execution, we have no doubt it would have related back to the date of the original conveyance, for the reason that the actual title and ownership could not be increased by the second instrument, but only á better paper chain of title thereby furnished.
Counsel insist that according to the doctrine of Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894, the consideration can not be disputed to the extent of defeating or varying the conveyance. In that case was involved the competency of oral evidence to vary a written contract and the right of grantors to claim ownership of one-half the proceeds of the property conveyed by them. It was held that the effect of the deed could not thus be destroyed. In Graves v. Graves, 29 N. H. 129, it was held that the receipt of a consideration admitted in a deed can not be contradicted for the purpose of raising a resulting trust for the grantor. It was said:
“The very purpose of this evidence is to defeat this conveyance. Its object is to reduce it to a writing having the form of a conveyance, but by which nothing is really conveyed. It purports to convey this property to Thaddeus Graves. It operates, if this evidence is admitted, to convey to him nothing which the law does not instantly restore to the plaintiff. No case can be supposed of evidence admitted to disprove á consideration for the purpose of entirely defeating a conveyance, if this is not.” (p. 144.)
But this is not a case of disputing or disproving consideration in order to defeat a deed. It is an instance of showing that the consideration named had, in fact, been paid when the former deed was made, which consideration supported both deeds. While the former deed was not offered in evidence, it is conceded that it was executed and the testimony indicates its delivery. It is stated in the defendant’s brief, without contradiction, that it contained the same covenants found in the’second deed, and at all events it must be deemed that the former passed the title. Suppose the first deed had been the one desired by the plaintiff and after its delivery had been lost, and upon the defendant’s return home she had been requested to execute another in its place, would the fact that she did so at that time, although after the 1st of November, be sufficient to hold her liable for the taxes? The plaintiff contends that while the intention of the parties may be shown it must be determined by the instrument itself, and that no case can be found which would authorize oral testimony to nullify or change its covenants. Aside from any oral testimony, had the first deed been in existence it could, without the violation of any rule of evidence, have been received and would have shown a complete transfer of title, reciting identically the same consideration named in the second deed. No complaint is made that the first deed was not itself offered in evidence, and the case must be viewed as if it had been. Being confronted with these two deeds from the same grantor, conveying the same property for the same consideration, it would have been for the court to determine whether, under the circumstances shown by these two instruments alone, the grantor could be held liable for the taxes. These two instruments would of themselves conclusively indicate that the second deed was a mere reiteration of the first, to all intents and purposes, and that it was made at a time when the grantor had nothing to convey and was attempting to convey nothing save as had already been done by the first instrument. With these two deeds in evidence the oral testimony concerning the arrangement made by the son would not have the effect of defeating either instrument as a deed or of changing its character. It would simply make it the plainer that the court should consider them as one in evidence of the real contract made between the parties in September.
The statute requires the grantee, in the absence of agreement, to pay the taxes if the “land is conveyed between the 1st day of March and the 1st day of November.” (Gen. Stat. 1909, § 9392.) The first deed conveyed all the title and vested full ownership in the grantee. The second is to be construed and considered as a reassertion of the former, adding nothing to its effect and binding the grantor to nothing additional, but only supplying evidence that the former transfer was direct from the owner. It was held in Miller v. Corey, 15 Iowa, 166, that a vendee who took possession of the premises under bond for good and sufficient deed clear of all incumbrance upon payment of certain notes was liable for the taxes assessed upon the property after taking possession, for the reason that the vendor was holder of the legal title only in trust for the vendee upon payment of the purchase price, and that the vendee was to be regarded as the real owner of the property. To the same effect was Farber v. Purdy, 69 Mo. 601.
(See, also, Angel v. Bashaw, 82 Vt. 252, 73 Atl. 23, and note, 18 A. & E. Ann. Cas. 449.)
It is argued by the defendant that thé covenants were not sufficient to cover the taxes in this case, but owing to the views already expressed it is not necessary to consider this question.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
A judgment was obtained by the appellee against the appellant for $800 for damages suffered to person and property caused by a defective highway.
The appellee was driving his automobile upon a public road which crosses the Solomon river. A month before the accident the bridge at this crossing had been washed away by a flood. The appellee was not aware of this fact, and approaching the crossing at ten o’clock in the evening was unable to stop the automobile after he. saw the bridge was gone, and it went over the bank, causing injuries for which he seeks to recover. The automobile was properly equipped and lighted. He approached the crossing from the east, traveling westwardly. For some distance from the river the road was practically straight and level, with' timber on each side. The township had built a temporary bridge a little distance to the north of the crossing and reached by turning from the road two or three rods east of the crossing. The roadway bore the indi cations of travel usual upon a way frequently traveled. There were also marks of use in the temporary way from the road at the new bridge. The appellee was an experienced driver-and had been traveling in that vicinity during the day, in the course of which he had crossed the river several times at other points. He was watching the road ahead and did .not notice the turn to the north. He was traveling at a speed of twelve or fifteen miles an hour. There was a three per cent grade in the approach to the bridge, commencing forty-five feet from the bank. The width of the stream at the top of the banks is forty-five feet. The appellee testified that, supposing he was nearing the river, he slackened speed, but in passing up the grade the lights were thrown upward, casting a shadow, so that he could not see that the bridge was out until the car was at the bank. He found no barrier or obstruction. Evidence on the part of the appellant tended to show that a car such as the one he was driving could be stopped in fifteen feet when running at ten miles an hour, and that there would not be much difference if the speed were fifteen miles an hour.
Error is alleged in. refusing requests for instructions. The court was asked to instruct the jury that an approach to a stream is itself a warning of danger to-a person unacquainted with the road over which he is. driving an automobile at night, and if in such circumstances he attempts- to cross he must see and know that the bridge, if there be one, is reasonably safe. Other requests included the same proposition. We are not advised of any authority declaring such a rule.. Bridges, as well as other parts of public traveled roads, are ordinarily safe, and no reason is perceived why a traveler, in the absence of barrier, warning, indication or notice of danger, should not proceed upon the belief that they are safe for ordinary use by one observing-due caution on his part.
The jury were instructed that such a crossing was. an indication that caution on the part of the driver was required. Another instruction was that “One in charge of an automobile driving upon a dark night over a straight stretch of strange country road at such speed that he is unable to stop within such distance.as he may clearly see, under any circumstances and conditions, an obstacle in the highway, is negligent, and if the excessive speed contributed to his running into or being injured by such obstacle, there can be no recovery.”
These instructions, given in connection with others to the effect that the driver was bound to exercise the care that a reasonably prudent person would use in the same or a similar situation, sufficiently stated the principles of law for the guidance of the jury.
The appellant contends “that the failure of the appellee to look and acquaint himself with the safety of the crossing is per se negligence” on his part. The evidence, however, was that he did look—was in fact looking ahead all the time—and that nothing was seen to indicate danger. He was not required, as matter of law, to acquaint himself with the saf ety of the bridge, unless there was some indication or he had some notice that would prompt a person of ordinary prudence in his situation to take such action, provided he was exercising proper care with respect to the speed and management of his car.
The jury, in answer to questions submitted, found as follows:
“1. At what rate of speed was plaintiff running his automobile immediately before the alleged accident occurred? Ans. Twelve to fifteen miles per hour.
“2. Was- the plaintiff exercising the care and caution of a man of ordinary prudence by running his automobile at such speed at such time, taking into consideration all the circumstances and conditions shown to exist by the evidence in this case? Ans. Yes.”
These findings are supported by the testimony and conclude the controversy, unless it should be held that the rate of speed constituted negligence as matter of law. The legislature has, however, sanctioned greater speed in highways situated as this one was, with the further provision that the speed shall not- be greater at any time than is reasonable and proper, having due regard to the traffic and use of the highway. These provisions give sufficient authority for the submission of the question to a jury under proper instructions, such as were given in this case. (Gen. Stat. 1909, §§ 450-453.)
The rules applicable to the drivers of. automobiles with reference to the rights of other travelers on the highway are considered in McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468, and in Arrington v. Horner, post, 129 Pac. 1159.
The judgment is affirmed. | [
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Per Curiam:
On the trial of an appeal from a survey made to establish the boundary line between lands of the appellant and the appellee, the appellant introduced in evidence a contract relating to the making of a ditch to drain their lands, entered into between the parties and others about four years prior to the survey, for the purpose of showing that the boundary line between the lands had been established by the contract.
The most pertinent portion of the contract' is the following: “And whereas there has been a water ditch cut on the line between the property of the first and second party, commencing at the northeast corner of the southeast quarter of said section twenty-nine, and runs thence east along the line between the property of the first party and second party,” etc. Held, that such recital in a contract, made for another purpose than that of establishing the line, does not constitute a contract as to the location of the line; neither does it in this case constitute a recognition of the line for a sufficient length of time to bar either party from asserting the true line if it be other than the recital indicates. No change of possession or taking of possession in pursuance of the recital seems to have occurred. Neither is any inaccuracy or error in the survey claimed.
The judgment is affirmed. | [
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] |
The opinion of the court was delivered by
Burch, J.:
The petitioner, John A. Flack, was cashier of the Abilene State Bank. On or about September 1, 1910, he absconded. Soon afterwards a complaint was filed before a justice of the peace of Dickinson county charging him with forging the name of James. A. Strachan to a note for two thousand dollars with intent to defraud Strachan and the Abilene State Bank. A warrant of arrest was issued and placed in the hands of the sheriff for service. In August, 1912, Flack was discovered in the state of New York and was arrested there upon a fugitive warrant and held pending further-rendition proceedings. Such proceedings followed, resulting in his return to Dickinson county for trial upon the forgery charge. A preliminary examination was waived and he gave bond for his appearance at the-ensuing term of the district court. While awaiting trial eleven other prosecutions were instituted against him for false and fraudulent alterations of entriés upon the books of the bank. Motions to quash the informations in these cases and to stay proceedings in them until after the original case should be disposed of were-overruled, and in default of bail he was committed to the county jail. This proceeding is brought to discharge him from custody in the eleven cases instituted against him for crimes not embraced in the rendition proceedings.
The question involved is not new and has provoked great argument about and about. It has been decided favorably to the petitioner by this court in the case of The State v. Hall, 40 Kan. 338, 19 Pac. 918. The syllabus of that case reads as follows:
“An alleged fugitive from justice, extradited from one state to another, can be prosecuted in the state to which he has been extradited, only for the offense for which he was extradited, until after he has had a reasonable time and opportunity afforded him to return to the place from which he was extradited.”
Similar views have been expressed by the supreme court of Ohio. (Ex parte, McKnight, 48 Ohio St. 588, 28 N. E. 1034.) The courts of other states which have considered the question and the suprenie court of the United States hold to the contrary. (Carr v. The State, 104 Ala. 43, 16 South. 155; Williams v. Weber, 1 Colo. App. 191, 28 Pac. 21; Lascelles v. The State, 90 Ga. 347, 16 S. E. 945; Knox v. State, 164 Ind. 226, 73 N. E. 255; State v. Kealy, 89 Iowa, 94, 56 N. W. 283; Taylor v. Commonwealth, [Ky. 1906] 96 S. W. 440; Commonwealth v. Wright, 158 Mass. 149, 33 N. E. 517; In re Little, 129 Mich. 454, 89 N. W. 38; State v. Patterson, 116 Mo. 505, 22 S. W. 696; State v. Leidigh, 47 Neb. 126, 66 N. W. 308; Rutledge v. Krauss, 73 N. J. Law, 397, 63 Atl. 988; People, ex rel. Post, v. Cross, 135 N. Y. 536, 32 N. E. 246; State v. Glover, 112 N. C. 896, 17 S. E. 525; State v. Wine, 7 N. Dak. 18, 30, 72 N. W. 905; Dows’ Case, 18 Pa. St. 37; Ham v. The State, 4 Tex. App. 645; The State, ex rel. Brown, v. Stewart, Circuit Judge, etc., 60 Wis. 587, 19 N. W. 429; Lascelles v. Georgia, 148 U. S. 537.)
' Text-writers are divided in opinion. Spear on The Law of Extradition (2d ed., ch. 12) favors the rule stated in the syllabus of Hall’s case. The following authorities take the opposite view: 2 Moore’ on Extradition, ch. VIII; Hawley, Interstate Rendition, p. 78 et seq.; Rorer on Interstate Law, p. 307; 2 Wharton on The Conflict of Laws, 3d ed., p. 1696; 1 Bishop’s Criminal Procedure, § 2245.
The written law on the subject is contained in the constitution of the United States and an act of Congress passed pursuant thereto. The constitution reads as follows :
“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.” (Art 4, § 2.)
In the constitutional convention this provision first appeared in the report of the committee of detail as follows: . .
“Any person charged with .treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.” (3 Documentary History of the Constitution, p. 456.)
Afterwards the words “high misdemeanor” were stricken out and the words “other crime” were inserted in order to comprehend all proper cases, it being considered doubtful Whether the term “high misdemeanor” did not have a technical meaning too limited. (Id. p. 634.) The section was given its final form by the committee of “Stile & arrangement.”
The act of Congress referred to reads as follows:
“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to- such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory.
“Any-agent so appointed who receives the fugitive into his custody, shall be empowered to transport him to the staté or territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year.” (U. S. Rev. Stat., §§ 5278, 5279.)
The primary question for consideration is, of course, the meaning of the constitution of the United States, of which the supreme court of the United States is the final interpreter.
When this court approached the subject in Hall’s case the supreme court of the United States had not spoken upon the precise question under consideration. Among other eminent authorities, Judge Cooley (Princeton Review, Jan., 1879, p. 76) and Doctor Spear (The Law of Extradition, 2d ed., ch. 12) had expressed opinions to the effect that in cases of interstate rendition it would be a violation of the constitution to put the fugitive on trial for any other offense than the one specified in the rendition proceedings without first giving him an opportunity to depart from the jurisdiction to which he had been returned. These-opinions coincided with the right of asylum as understood in international law, with the practice of independent sovereignties in extradition cases under treaties and with the rules of the common law exempting suitors and witnesses from abuse of judicial process. Reasoning by analogy, the court reached the conclusion that the principles governing extradition between independent sovereignties under treaties and rendition between separate states under the constitution of the United States were the same. This conclusion accorded with that of some other courts and -was believed to be fortified by the then very recent decision of the supreme court of the United States in the case of United States v. Rauscher, 119 U. S. 407.
The Rauscher case arose under the Webster-Ashburton treaty with Great Britain, the preamble of which, so far as pertinent, reads as follows:
“And whereas it is found expedient for the better-administration of justice and the prevention of crime within the territories and jurisdiction of the two Par- ties, respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up: The United States of America and Her Britannic Majesty, having resolved to treat on these several subjects, have for that purpose appointed their respective Plenipotentiaries to negotiate and conclude a treaty.” (Compilation of Treaties Under Act of 1898, p. 226.)
Article 10 specified seven extraditable offenses and reads as follows:
“It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their Ministers, Officers, or Authorities, respectively made, deliver up to justice, all persons who, being charged with the crime of Murder, or assault with intent to commit Murder, or Piracy, or Arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the placé where the fugitive or person so charged, shall be found, would justify his apprehension and commitment for trial, if the crime or offence-had there been committed: And the respective Judges and other Magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such Judges or other Magistrates, respectively, to the end that the evidence of criminality may be heard and considered: and if, on such hearing, the evidence be deemed sufficient to sustain, the charge it shall be the duty of the examining Judge or Magistrate to certify the same to the proper Executive Authority, that a warrant may issue for the surrender of such fugitive.—The expense of such apprehension and delivery shall be borne and defrayed by the Party who makes the requisition, and receives the fugitive.” (Compilation of Treaties Under Act of 1898, p. 230.)
Rauscher was extradited for murder. He was not tried for murder, however, but for a minor offense not embraced in the treaty. On a motion in arrest of judgment the judges of the circuit court in which the action was pending divided in opinion, and the matter was presented to the supreme court of the United States on their certificate. The principal question was the true import of the treaty. The recognized public law on the subject prevailing in the absence of treaties was examined and stated. The provisions of the treaty itself were analyzed and' considered according to the approved canons of interpretation, and the interpretation placed upon all treaties of this character by-congress in the extradition act was adverted to. The conclusion was that, although the treaty contained no express limitations upon the right of the country in which the.crime was committed to try the fugitive for that crime alone for which he was extradited, nevertheless, sound construction rendered an implication of such a limitation unavoidable; that under the treaty and the act of congress Rauscher could'not lawful!;^ be tried for any crime but murder; that he was clothed with the right to exemption from trial for any other offense until he had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his surrender; and that the national honor required that good faith should be kept with the country which surrendered him.
This decision is manifestly sound. Every independent nation has the right to grant an asylum to a person residing, peacefully within its borders, even though he be an offender against the law of some foreign state, and this right supersedes the right of the foreign state to demand that he be given up for trial. However desirable it may be that fugitives from justice should be surrendered to answer for their misdeeds, no obligation to do so rests upon the asylum state, which has the right to make the peace and security of any person re siding upon its territory its own cause. It may relinquish this right either by comity or by agreement, but any concession it may make does not waive the right generally. If the relinquishment be made by treaty the asylum is abridged only with respect to the crimes specified in the treaty, and then only subject to the limited forms of procedure agreed upon. These considerations are fundamental in the interpretation of any extradition treaty, and their importance is emphasized when attention is drawn to political offenses. Such crimes being directed'against the political system of the state, or its administrators, do not of necessity render those who commit them undesirable citizens of another state. What would be called treason in the parent country might be regarded as a legitimate struggle for liberty by another country, which, on the highest principles of justice and humanity, would be authorized to afford refuge to exiled participants in such a struggle.' Consequently, political crimes are not considered extraditable, and it would offend against the law of nations if a fugitive were extradited for a crime speci - fled in a treaty and then were put on trial for a political offense. Turning to the treaty in question, it waives the right to afford asylum to fugitive offenders with respect to seven designated crimes only; and the sovereignty upon which the demand for surrender is made expressly reserves the right to examine the case presented by the requisition, hear the evidence of criminality, and determine whether' or not the offense charged justifies the government in depriving the accused of his asylum. These facts in themselves are quite conclusive that as to all other offenses the fugitive, if surrendered, is to be regarded as still in the asylum state. The extradition act (U. S. Rev. Stat. Title LXVI) provides for a hearing,- upon complaint made under oath, to determine whether the evidence is sufficient to sustain the charge of criminality before a warrant may issue for the surrender of a fugitive whose return is desired by a foreign nation. (§ 5270.) It further provides that the secretary of state is authorized to order a person demanded of the United States to be committed to be delivered up “to be tried for the crime of which such person shall be so accused” (§ 5272) ; and that a person delivered up to the United States for trial shall have protection and safe-keeping “until the final conclusion of his trial for the crime or offence specified in the warrant of extradition, and until a final discharge from custody or imprisonment for or on account of such crimes or offences, and for a reasonable time thereafter.” (§ 5275.) Under these circumstances it would have violated the convention between the two governments and would have compromised the national honor if the United States had suffered Rauscher to be tried, not only for an offense not named in the requisition, but for an offense not specified in the treaty itself.
In Hall’s case the court applied the arguments whereby the interpretation of the Webster-Ashburton treaty was sustained to an interpretation of the constitution of the United States. The states of the Union were treated like independent sovereignties having the right to grant asylum to fugitives from justice who could not be surrendered without the consent of the asylum state. The constitution was regarded in the light of an extradition treaty between such sovereign-ties, and it was declared that the Rauscher case, among others of like import, which were cited, was perfectly applicable to the one under decision.
On the same day that the opinion in the Rauscher case was filed a decision was rendered by the supreme court of the United States in the case of Ker v. Illinois, 119 U. S. 436, which greatly impaired the basis upon which the constitutional argument in Hall’s case was founded. Ker was kidnapped from Peru, with which country the United States had an extradition treaty, and brought to the state of Illinois for trial for embezzlement and larceny. He was convicted, and the case was taken by writ of error to the supreme court of the United States, where he claimed that the full faith and credit of the treaty with Peru had. not been kept and enforced. ' He contended that under the treaty he had acquired by his residence in Peru a right of asylum; a right to be free from molestation for the crime committed in Illinois; a right that he should be forcibly removed from Peru to the state of Illinois only in accordance with the provisions of the treaty; and that this right was one which he could assert in the courts of this country. The court said:
“There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to éscape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. If this could be done, what becomes of his right of asylum.
“Nor can it be doubted that the government of Peru could of its own accord, without any demand from the United States, have surrendered Ker to an agent of the state of Illinois, and that such surrender would have been valid within the dominions of Peru. It is idle, therefore, to claim that, either by express terms or by implication, there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right of asylum means anything, it must mean this. The right of the government of Peru voluntarily to give a party in Ker’s condition an asylum in that country, is quite a different thing from the right in him to demand and insist upon security in such an asylum.” (p. 442.)
Consequently, it was held that Ker was clothed with no rights which a proceeding under a treaty would have protected, and the judgment of conviction was not disturbed.
In 1887 the rule stated in Ker’s case was applied to a case of kidnapping from one state to another. (Mahon v. Justice, 127 U. S. 700.) Mahon was indicted for murder committed in Kentucky. He fled to West Virginia. He was then forcibly abducted to Kentucky, where he was committed for trial upon the indictment. It was held that he was not entitled to be discharged under a writ of habeas corpus. The court said:
“There is indeed an entire concurrence of opinion as to the ground upon which a release of the appellant in the present case is asked; namely, that his forcible abduction from another State, and conveyance within the jurisdiction of the court holding him, is no objection to his detention and trial for the offence charged. They all proceed upon the obvious ground that the offender against the law of the State is not relieved from liability because. of personal injuries received from private parties, or because of indignities committed against another State. It would indeed be a strange conclusion, if a party charged with a criminal offence eouid be excused from answering to the government whose laws he had violated because other parties had done violence to him, and also committed an offence against the laws of another State. . . . It is contended that, because under the Constitution and laws of the United States a fugitive from justice from one State to another can be surrendered to the State where the crime was committed, upon proper proceedings taken,, he has the right of asylum in the State to which he has fled, unless removed in conformity with such proceedings, and that this right can be enforced in the courts of the United States. But the plain answer to this contention is, that the laws of the United States do not recognize any such right of asylum, as is here claimed, on the part of a fugitive from justice in any state to which he has fled.” (pp'. 712, 714.)
The principle that a fugitive from justice does not bear in his own person the sovereignty of the state to which he has fled, and that if any one is within the juris diction of a court and there properly charged with crime, the court may hold him and proceed to try him without reference to the circumstances under which he was brought within its jurisdiction, was clearly and forcibly stated by Chief Justice Gibson in Dows’ Case, 18 Pa. St. 37, decided in 1851. After having been indicted for forgery in Pennsylvania, Dows escaped to the state of Michigan. Without legal authority he was returned to Pennsylvania. Pursuant to a requisition made upon him the executive of Michigan issued a warrant to arrest and surrender Dows, but it was not utilized. The opinion reads:
“The governor of Michigan, so far from resenting the prisoner’s arrest, had put a warrant for his extradition into the hands of the proper officer. The sovereignty of the state, therefore, was not outraged, unless it resided in the prisoner’s person. A sovereign state is doubtless bound to fight the battle of its citizen, when he has his quarrel just; but it is not bound to maintain him against demands of foreign justice from which he has fled. It may, or it may not, interpose its shield at discretion; but the exercise of this discretion will be directed, not by any claim he may be supposed to have on it, but by a consideration of the consequences to the general weal. The federal constitution takes away this discretion in the case of an executive demand, and makes that a matter, of duty which else had been a matter of grace; but it does not prevent a state from dispensing with a demand. The constitutional provision was not devised for the benefit of the fugitive. It was intended to obviate the principle that one government may not execute the criminal laws of another.” (p. 39.)
In the case of Mahon v. Justice, 127 U. S. 700, the governor of West Virginia demanded the restoration of the prisoner to the jurisdiction of that state, but that fact afforded him no immunity from trial upon the indictment found in the state of Kentucky.
The effect of these decisions is that the so-called right of asylum is not a right possessed by a fugitive from justice in any case; that it is merely the right of an independent sovereignty to grant asylum if it so desires, and that a state of the United States possesses no such right respecting fugitives from the justice of another state.
In 1892 the precise question involved in the present proceeding was decided by the supreme court of Georgia in the case of Lascelles v. The State, 90 Ga. 347, 16 S. E. 945. Lascelles was extradited from New York for one crime and placed on trial in Georgia for another. By a motion to quash the indictment and a plea in abatement, he contended that it was unlawful to try him without first allowing him to return to the state which surrendered him. The court held that his objections were properly overruled. A very able opinion was delivered by Mr. Justice Lumpkin, who, after discussing the Rauscher case and the treaty and act of Congress which it involved, said:
“When we go back of the express law on the subject, and consider the matter independently of the statute referred to or of the obligations assumed by treaty, it will be found that the right of the person extradited to return to the country from which he was surrendered, is based upon the right of .that country to afford asylum to the fugitive, and to refuse to give him over to another except upon such terms as it may see fit to impose. It is well settled that the criminal himself never acquires a personal right of asylum or refuge anywhere. Such right as he may have in this respect grows entirely out of the rights of the government to whose territory he has fled. It matters not, so far as the right to try him is concerned, that he may have been abducted while in another State, and brought back illegally and against his will to the State whose criminal laws he has violated, nor, in such case, that the executive of the State from which he was taken has demanded his return. (Mahon v. Justice, 127 U. S. 700. See also Ker v. Illinois, 119 U. S. 436, decided on the same day as the Rauscher case, supra.) That the right to protect the fugitive who has taken refuge in its territory exists on the part of every independent nation, except in so far as it may have agreed to forego the right, is recognized by the Supreme Court of the United States in the Rauscher case, as an established principle of international law. But to our minds it is clear that under the organic law of the Union no such right exists on the part of the several States with reference to each other. The constitution declares that ‘a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.’ (Art. 4, sec. 2, subsec. 2.) And it is settled that this provision extends without exception to all offences punishable by the laws of the State where the act was done. It is immaterial that the thing complained of is not a crime in the State in which the accused is found; nor can the authorities of that State inquire into the question of his guilt or innocence. The sole question is, whether he is a fugitive charged with crime under the laws of the demanding State. If he is, the duty to deliver him up is imperative. The framers of the organic law clearly intended that there should be no reserved right to convert any State into a place of refuge for fugitives from the justice of another, and that State lines should constitute no insuperable obstacle to the enforcement of the criminal laws of any part of the Union, as to offences committed within the field of their operation. By the act of 1793, Congress has constituted the executive authority of the State to which the accused has fled the agency for carrying into effect the provisions of the Federal constitution and laws as to arrest and delivery. His sole function is to ascertain whether the authorities of the demanding State have on their part complied with the constitutional and statutory requirements, and, if so, to cause the arrest and delivery of the fugitive. If these requirements are complied with, he has no further interest in the matter and cannot set up any right of his State to protect the fugitive. The sole right which his State can set up as against the right of the demanding State is, that its own justice shall be satisfied if at the time of the demand the accused stands charged with a violation of its laws. In such cases the right of the demanding State is not denied, but is merely suspended’ until a prior claim shall have been discharged. . . -. It may be true that there is no power on the part of the Federal government or of the demanding State to compel performance of this duty, but it is not on that account in any less degree a duty.
“If, therefore, the demand can not, as a matter of right, be refused when made in compliance with the Federal requirements, it would be idle for the authorities of the State to whom the accused was surrendered to set him at large so that another demand might be made, before trying him for an offence other than that charged in the requisition upon which he was surrendered. Certainly they are under no obligation, before trying him for other violations of law, to place the executive of the surrendering State in a position to do or refuse to do that which, under the supreme law of the land, it is his imperative duty to do.
“If what we have said is true, considerations of comity and good faith on the part of the State to which the surrender was made are not involved in the matter.” (pp. 363, 366.)
Lascelles removed the controversy to the supreme court of the United States, which approved the opinion of Justice Lumpkin and affirmed the judgment of the supreme court of Georgia. The opinion, written by Mr. Justice Jackson, contained the greatly desired interpretation of the constitution of the United States and of the extradition act, so far as it relates to interstate rendition. The material portions follow:
“Upon these provisions of the organic and statutory law of the United States rests exclusively the right of one State to demand, and the obligation of the other State upon which the demand is made to surrender, a fugitive from justice. Now, the proposition advanced on behalf of the plaintiff in error in support of the federal right claimed to have been denied him is, that, inasmuch as interstate rendition can only be effected when the person demanded as a fugitive from justice is duly charged with some particular offence, or of-fences/his surrender upon such demand carries with it the implied condition that he is to be tried alone for the designated crime, and that in respect to all offences other than those specified in the demand for his surrender, he has the same right of exemption as a fugitive from justice extradited from a foreign nation. This proposition assumes, as is broadly claimed, that the States of the Union are independent governments, having the full prerogatives and powers of nations, except what have been conferred upon the general government, and not only have the right to grant, but do, in fact, afford to all persons within their boundaries an asylum as broad and secure as that which independent nations extend over their citizens and inhabitants. Having reached, upon this assumption or by this process of reasoning, the conclusion that the same rule should be recognized and applied in Interstate rendition as in foreign extradition of fugitives from justice, the decision of this court in United States v. Rauscher, 119 U. S. 407 et seq., is invoked as a controlling authority on the question under consideration. If the premises on which this argument is based were sound the conclusion might be correct. But the fallacy of the argument lies in the assumption that the States of the Union occupy towards each other, in respect to fugitives from justice, the relation of foreign nations, in the same sense in which the general government stands towards independent sovereignties on that subject; and in the further assumption that a fugitive from justice acquires in the State to which he may flee some state or personal right of protection, improperly called a right of asylum, which secures to him exemption from trial and punishment for a crime committed in another State, unless such crime is made the special object or ground of his rendition. This latter position is only a restatement, in another form, of the question presented for our determination. The sole object of the provision of the Constitution and the act of Congress to carry it into effect is to secure the surrender of persons accused of crime, who have fled from the justice of a State, whose laws they are charged with violating. Neither the Constitution, nor the act of Congress providing for the rendition of fugitives upon proper requisition being made, confers, either expressly or by implication, any right or privilege upon such fugitives under and by virtue of which they can assert, in the State to which they are returned, exemption from trial for any criminal act done therein. No purpose or intention is manifested to afford them any immunity or protection from trial and punishment for any offences committed in the State from which they flee. On the contrary, the provision of both the Constitution and the statues ex tends to all crimes and offences punishable by the laws of the State where the act is done. Kentucky v. Dennison, 24 How. 66, 101, 102; Ex parte Reggel, 114 U. S. 642.
“The case of United States v. Rauscher, 119 U. S. 407, has no application to the question under consideration, because it proceeded upon the ground of a right given impliedly by the terms of a treaty between the United States and .Great Britain, as well as expressly by the acts of Congress in the case of a fugitive surrendered to the United States by a foreign nation. That treaty, which specified the offences that were extraditable, and the statutes of the United States passed to carry it and other like treaties into effect, constituted the supreme law of the land, and were construed to exempt the extradited fugitive from trial for any other offence than that mentioned in the demand for his surrender. There is nothing in the Constitution or statutes of the United States in reference to interstate rendition of fugitives from justice which can be regarded as establishing any compact between the States of the Union, such as the Ashburton treaty contains, limiting their operation to particular or designated offences. On the contrary, the provisions of the organic and statutory law embrace crimes and offences of every character ánd description punishable by the laws of the State where the forbidden acts are committed. It is questionable whether the States could constitutionally enter into any agreement or stipulation with each other for the purpose of defining or limiting the offences for which- fugitives would or should be surrendered. But it is settled by the decisions of this court that, except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties or laws of the United States which exempts an offender, brought before the courts of a State for an offence against its laws, from trial and punishment, even though brought from another State by unlawful violence, or by abuse of legal process. . . / If a fugitive may be kidnapped or unlawfully abducted from the State or country of refuge, and be, thereafter, tried in the State to which he is forcibly carried, without violating any right or immunity' secured to him by the Constitution and laws of the United States, it is difficult to understand upon what sound principle can be rested the denial of a State’s authority or jurisdiction to try him for another or different offence than that for which he was surrendered. If the fugitive be regarded as not lawfully within the limits of the State in respect to any other crime than the one on which his surrender was effected, still that fact does not defeat the jurisdiction of its courts to try him for other offences, any more than if he had. been brought within such jurisdiction forcibly and without legal process whatever.^
“We are not called dpon in the present case to consider what, if any, authority the surrendering State has over the subject of the fugitive’s rendition, beyond ascertaining that he is charged with crime in the State from which he has fled, nor whether the States have any jurisdiction to legislate upon the subject, and we express no opinion on these questions. - To apply the rule of international or foreign extradition, as announced in United States v. Rauscher, 119 U. S. 407, to interstate rendition involves the confusion of two essentially different things, which rest upon entirely different principles. In the former the extradition depends upon treaty contract or stipulation, lyhich rests upon good faith, and in respect to which the sovereign upon whom the demand is made can exercise . discretion, as well as investigate the charge on which the surrender is demanded, there being no rule of comity under and by virtue of which independent nations are required or expected to withhold from fugitives within their jurisdiction the right of asylum. In the matter of interstate rendition, however, there is the binding force and obligation not of 'contract, but of the supreme law of the land, which imposes no conditions or limitations upon the jurisdiction and authority of the State to which the' fugitive is returned. . . . The highest courts of the two States immediately or more directly interested in «the case under consideration hold the same rule on this subject. The plaintiff in error does not bear in his person the alleged sovereignty of the State of New York, from which he was remanded, Dow’s Case, 18 Penn. St. 37, but if he did, that State properly recognizes the jurisdiction of the State of Georgia to try and punish him for any and all crimes committed within its territory. But aside from this, it would be a useless and idle procedure to require the State having custody of the alleged criminal to return him to the State by which he was rendered up in order to go through the formality of again demanding his extradition for the new or additional offences on which it desired to prosecute him.The Constitution and laws of the United States impose no such condition or requirement upon the State.” (Lascelles v. Georgia, 148 U. S. 537, 541, 545, 546.)
This opinion is necessarily conclusive upon the question decided and deprives the decision in Hall’s case of support on constitutional grounds. The subject of the return of a fugitive from justice found in one state, to the state from which he had fled, for prosecution and punishment was lifted bodily out of the law governing extradition in international cases, in which it had so long been submerged, and was given a standing and character of its own. The right of independent sovereignties to grant asylum, which is the nidus from which all the doctrines of international extradition took their rise, does not exist in any state of the American Union. In respect to the return of fugitives from justice, the various states are not to be regarded from the standpoint of international law as separate and independent sovereignties with selfish and jealous purposes to serve, but as governmental organizations having mutual interests, duties and relations and pledged to mutual support, each one acting as an instrumentality for the suppression of crime and the advancement of justice in the other. Such being the true attitude of the states toward each other, the constitution loses all semblance of a treaty between sovereigns and becomes a, supreme law of the land for the promotion of the general welfare. The specification in the constitution of treason, felony and other crimes leaves no ground for distinction between political and other offenses, and no ground for the application of the rules and principles which govern in the case of limited treaty concessions hedged about by conditions and restrictions, express and implied. Disencumbered of the legal impedimenta attending the subject of international extradition the article of the constitution relating to interstate rendition is left to operate with all the force of its chaste simplicity and to fulfill the purpose expressed in the preamble:
“We, The People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
A charge of crime, flight, discovery, and a formal demand for return are all that are necessary to raise the obligation to deliver up the fugitive, and that obligation is imperative. The act of congress passed to execute the provisions of the constitution is in full harmony with the spirit of that instrument. The duty to cause the fugitive to be arrested and delivered is imposed upon the executive authority of the state to which he has fled, without any of the reservations and restrictions imposed by other provisions of the act upon international extradition, to the end that state boundaries shall no. longer act as barriers to the administration of justice.
Besides the constitutional ground, the decision ir Hall’s case was rested in part upon considerations of good faith and fair dealing. It was said that a state should not be allowed to obtain jurisdiction over a fugitive from justice for one purpose and then to take advantage of the jurisdiction thus obtained and use it for another and different purpose. No such question as this can arise between the state of Kansas and the state of New York in the present case, because the state of New York recognizes the right of any state to which it has 'delivered a fugitive from justice to try him for crimes other than the one specified in the requisition proceedings. With the asylum doctrine excluded from consideration, however, no such question can arise in any case in which rendition is regularly sought in good faith under the constitution and the extradition act. To all intents and purposes the state upon which the demand is made is constituted an agency to supplement the judicial process of the demanding state, which otherwise could not be extended beyond .its own boundaries, and the'only right which the surrendering state-has in the matter is to see that the prescribed conditions are present and that the prescribed formalities are observed. To hold a returned fugitive to answer for a crime different from that specified in the requisition is not to hold him for a purpose foreign to the-original demand. The end to be accomplished is the punishment of crime. That end is constant and identical in both instances. The state to which the fugitive has fled has no right to detain him in opposition to the accomplishment of that end. It can not grant an asylum. It can not impose conditions upon surrender. Its duty to deliver up the fugitive on demand is immediate' and imperative, and it would have no more discretion over a second demand than it had over the first. Consequently it can suffer no deprivation 'of right or affront to its sovereignty if, after surrender, the returned fugitive be dealt with in the same manner as if he had not fled.
So far as the fugitive himself is concerned, it is. impossible that he should be prejudiced or defrauded by detaining him for trial upon other charges. He can not build up rights against the state whose, laws he has broken by fleeing from its justice. He has no lawful right of asylum in any other state. By taking refuge in another state he acquires no right to demand conditions upon his return, and no conditions upon his return can be lawfully imposed by the surrendering-state itself for his benefit. Consequently there is no implication that he is' surrendered for the purpose' of one proceeding only, and no implication of any limita tion upon the jurisdiction and authority of the state to which he is returned. By resorting to compulsory proceedings to secure the return of a fugitive the state holds out no inducements whatever to him. It gives him no assurances that .he will be afforded an opportunity to depart from its jurisdiction as soon as the charge specified in the requisition is disposed of. It obtains custody of him outside of the state, irrespective of his will or consent, precisely as it might do within its own borders if he had not fled, and it can not be guilty of bad faith when it is impossible for the fugitive to be overreached or misled and when no duty toward him, which the law governing the subject of rendition imposes, is violated.
In Hall’s case the analogy was invoked of the exemption of suitors and witnesses attending court outside the jurisdiction of their home tribunals from service of judicial process. The analogy, however, fails. In such cases the party or witness has a personal right to all the benefits and advantages flowing from a lawfully established domicile and ought not to be held to waive them by answering a call to assist in the administration of justice elsewhere; while an offender against the criminal laws of a state acquires no right by flight which the court administering those laws' is bound to regard when he is again found within its jurisdiction. (Lascelles v. The State, 90 Ga. 347, 368, 16 S. E. 945.) Besides this, the privilege is accorded to litigants and witnesses on grounds of public policy. The purpose is to subserve great public interests by promoting the administration of justice. (Moletor v. Sinnen, 76 Wis. 308, 312, 44 N. W. 1099.) That policy encourages the voluntary personal appearance in the trial of causes of persons whose presence is necessary for the better solution of controversies and whose attendance can not be compelled. (Reid v. Ham, 54 Minn. 305, 307, 56 N. W. 35.) No such considerations as these arise in favor of one who has fled from the scene of his crime to defeat justice and who has been brought back by compulsory process. (Rutledge v. Krauss, 73 N. J. Law, 397, 63 Atl. 988.)
Speaking upon this subject the supreme court of Nebraska said:
“The immunity from service of process .extended to suitors and witnesses attending court is founded on considerations of wisdom, and is well calculated to assist in the due administration of justice. It needs no argument to sustain the proposition that whatever encourages the attendance of witnesses at the trial of any case in controversy in the courts will conduce more certainly to a rightful determination and assure to a .-party litigant the protection of all his rights guaranteed by law. This desired result can best be accomplished by steadily adhering to a policy which will save to all, whose attendance is desirable in the furtherance of.the ends of justice, and who come voluntarily, annoyance, inconvenience and oftentimes oppression by the service of process- upon them while present in any stated jurisdiction for the purposes mentioned. This privilege has constantly been safeguarded by the courts, and the rule can doubtless be safely and confidently invoked by all who come within its scope and purview. The petitioner in the case at bar does not, however, come within the reason of the rule. His presence is involuntary and against his will. He was brought into the state forcibly and for the purpose of answering a charge of violating its laws. The reason for extending the rule of immunity is wanting in his case.” (In re Application of Walker, 61 Neb. 803, 816, 86 N. W. 510.)
In the case of The State v. McNaspy, 58 Kan. 691, 50 Pac. 531, a fugitive from justice was found in another state by a pursuing deputy sheriff who held a warrant of arrest issued by a justice of the peace. Although informed of the officer’s lack of authority to make ah arrest, the fugitive voluntarily accompanied the officer to Kansas where he was prosecuted for a crime other than the one specified in the warrant. It was held that the prosecution might lawfully be maintained. In a dissenting opinion it was said that there is no conflict between Hall’s case and Lascelles v. Georgia, 148 U. S. 537, but that in any event the argument based upon principles of good faith toward the surrendering sovereignty and the fugitive himself were sufficient to sustain the Hall decision. Manifestly there is a direct conflict between the two decisions upon the constitutional question, and as already shown the good faith argument is unsound.
Cannon’s Case, 47 Mich. 481, 11 N. W. 280, was cited in Hall’s case as one of substantial authority. Courts and text-writers have experienced considerable difficulty in classifying that case, but its scope has been made clear by the supreme court of Michigan itself in the case of In re Little, 129 Mich. 454, 89 N. W. 38, wherein the doctrine of Lascelles v. Georgia is accepted and conclusions antagonistic to the decision in Hall’s case are announced.
The case of Ex parte, McKnight, 48 Ohio St. 588, 28 N. E. 1034, was decided after the decision in the Rauscher case and before the decision in Lascelles’ case. The position was taken that the constitution is to be interpreted according to the rules, principles, and usages governing international extradition under treaties. Rauscher’s case was accepted as of controlling authority. Nothing but the constitutional question was considered and consequently the grounds of the decision were invalidated by Lascelles v. Georgia.
Some fear has been expressed that, unless a returned fugitive be allowed to- depart in peace after the immediate purpose of the requisition proceeding has been accomplished interstate rendition may be abused for illegitimate private ends. It is always open to the courts, however, to relieve against perversions of rendition process the same as they are in the habit of doing against perversions of ordinary judicial process. The case of The State v. Simmons, 39 Kan. 262, 18 Pac. 177, furnishes an example of the latter kind. A sheriff of this state, holding merely an order to attach the person of a witness who was not a fugitive from justice, executed it in the state of Nebraska, in the night time, by force and violence. When the prisoner was brought within the jurisdiction of the court issuing the attachment a criminal complaint was lodged against him, upon which he was tried and convicted. In quashing the conviction the court said:
“It would not be proper for the courts of this state to favor, or. even to tolerate, breaches of the peace committed by their own officers in a sister state, by sustaining a service of judicial process procured only by such a breach of the peace. Indeed, it would not be proper for any court in any state to sustain a service of any judicial process, either civil or criminal, where the service of such process was obtained only by the infraction of some law, or in violation of some well-recognized rule of honesty or fair dealing, as by force or fraud. Such a service would not only be a special wrong against the individual upon whom the service was made, but it would also be a general wrong against society itself—a violation of those fundamental principles of mutual trust and confidence which lie at the very foundation of all organized society, and which are necessary in the very nature of things to hold society together.” (p. 264.)
On the same principle relief may be granted whenever rendition proceedings are in fact prostituted to fraudulent purposes.
In the course of this opinion the term interstate rendition has been used when speaking of the return of fugitives from one state to another, following a suggestion contained in the preface to Moore’s admirable treatise on extradition and interstate rendition.
“In the judgment of the writer, such rendition is not properly described as extradition; for, as confirmed by the constitution' and regulated by the legislation of Congress, it proceeds upon a principle precisely antipodal to that from which are derived the leading doctrines of extradition, in its true and. in ternational sense. This is the necessary consequence not only of the form and character of the specific provision in the Constitution but also of the mutual relations, duties, and limitations of sovereignty of the States under the Federal government. Whatever may be our theories as to the duties of nations, the leading rules on the subject of extradition presuppose and are deduced from the right, in strict law, of every sovereign power to grant asylum to fugitives from justice. Such a right has no place among states united under a common government, and as between the States of the United States it is excluded by the explicit requirements of the Constitution. Since the accurate employment of terms is of the utmost importance, and the use of the word ‘extradition’ invites the application of the principles of international law to the interstate proceeding, the second part of the present work has been called Interstate Rendition.” .(I Moore on Extradition, p. VII.)
The decision in the' case of The State v. Hall, 40 Kan. 338, 19 Pac. 918, is overruled and the petitioner .is remanded to the custody of the sheriff of Dickinson county. | [
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Per Curiam:
Insured property was destroyed by fire. The insurance company paid $1700 upon its policy and brought action for that amount against a railroad company, claiming the fire to have been caused by its negligence. Two owners of separate portions of the property were made defendants. Each filed an answer and cross-petition, asking a judgment against the railroad company, the one for $500, the other for $1400. A verdict was returned in favor of the railroad company, upon which it was given judgment for all its costs against all the claimants. The two owners of the destroyed property filed a motion to retax the costs, asking in effect that they be released from liabil ity for any costs except such as they had themselves made, and that the judgment for the defendant’s costs should run only against the plaintiff. The court then made an order that each claimant (the plaintiff and the two cross-petitioners) should pay the costs each respectively had made, and also one-third of the costs made by the defendant. The two cross-petitioners appeal from this order.
The appellants assert that they did not themselves desire to bring an action, but wished to settle with the railroad company without suit, and would have done so except for the plaintiff’s course; that a settlement was prevented, and litigation was made necessary, by the action of the plaintiff. They argue that for this reason they should be relieved from the payment of any costs excepting such as were occasioned by their own conduct, and would not have been made if they had disclaimed. They also contend that. the statute does not authorize a division of the judgment for costs.
By whatever motives the appellants may have been actuated, we think that when they joined with the plaintiff in the prosecution of the claim against the railroad company, they incurred an equal liability for that company’s costs if it should prevail. So far as the railroad company was concerned, it was doubtless entitled to a joint and several judgment against these claimants for reimbursement of all the expenses it had incurred that were taxable as costs. But as between the .claimants it was reasonable that an apportionment should be made. It was not necessary that the division should be in proportion to the amounts claimed, for there was no relation between these amounts and the costs incurred by the railroad company. The order that each claimant should pay one-third- of the costs for which all were liable is not one of which the appellants can justly complain.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This appeal is from a conviction for obtaining property by means of false pretenses. A verdict of guilty was returned upon the three counts of the information, fixing the value of the property obtained upon each count at $20.48. After verdict the first and third counts were dismissed and judgment was pronounced upon the second count.
The second count charged that L. E. Foster had issued to Ed Fulton a coupon book entitling him to receive goods to the amount of $10 upon coupons contained therein; that the defendants, fraudulently conspiring together, procured false coupons, and representing that they were true and genuine on.es contained in the book so issued by Foster, delivered the false coupons to him in exchange for merchandise and thereby, in pursuance of this corrupt conspiracy, obtained property of the valúe of $25. The other counts were the same except that they charged that coupon books were issued to Roy Fulton and Guy Fulton, respectively, and that merchandise was obtained upon false coupons purporting to have been contained in such books.
The appellants are brothers, and for two or three years had been customers of Foster, who is a retail merchant. He issued books to customers, among others to the appellants. These books contained detachable coupons representing values from one dollar to one cent. In making purchases the customer would present his book and detach and deliver, or the salesman would detach, coupons to the amount of the purchase. Goods were delivered not only to the defendants personally but to members of their families who presented the coupon book. The appellants had traded in this manner at the Foster store for some time and had purchased and used many like coupon books. No account was kept of the goods sold by this method to the appellants until May 22, 1909. From that date accounts of such sales were kept and the coupons presented by each of the appellants were preserved in separate envelopes. On May 29, 1909, the last coupon book was issued to Ed Fulton. On June 5, 1909, the last books were issued to Roy Fulton and Guy Fulton, respectively. The evidence tends to prove that after these respective dates goods were purchased by appellants to the following amounts: by Ed Fulton, $11.98; by Roy Fulton, $19.64; and by Guy Fulton, $13.06. On the 19th of June, 1909, when the trading with the appellants, was discontinued, coupons remained in Ed Fulton’s book to the amount of $1.02, in Roy Fulton’s book to the amount of eighty-one cents, and in Guy Fulton’s book to the amount of $8.63. Assuming that no coupons were used in that time from books previously purchased, these accounts show that the three persons received goods to the amount of $23.61 in excess of the amount of genuine coupons— if none of the goods were otherwise paid for.
It must be remembered that the count upon which Ed Fulton was convicted charges that the goods were 'delivered upon false coupons purporting to be taken from the particular book issued to him. All the coupons purporting to come from this book, preserved and produced at the trial, together with those remaining in the book amount to $13. It is conceded that $10 in amount of these were genuine, leaving but $3 in amount that can be held spurious. It can not be successfully claimed that the coupons purporting to be taken from the books issued to his brothers, respectively, and which are made the subject of distinct charges, can be added under this count to make up the amount found by the verdict. Each count charges a distinct offense relating only to coupons contained in the particular book specified therein without reference to other books. Upon this information the value of property obtained as charged in one count can not be added to the value of other property obtained by the means charged in another count, for the purpose of increasing the latter to a sum sufficient to sustain a conviction for a higher grade of offense than would otherwise be shown.
The evidence shows that the last coupon book issued to Ed Fulton before the one upon which the charge is based was delivered on May 6, 1909, and fails to show that all the coupons contained in it had been used or that the book or books previously issued had been taken up. The bookkeeper, who was a saleswoman in the store, testified:
“On the 6th day of May, 1909, we issued to him (Ed Fulton) a $10.00 book, and commenced to keep track of his purchases on the 22d day of May, 1909.
“Q. How much did he buy and pay for between that date and the 29th? A. Well, from the 22d day to the 29th he bought $5.94 worth.
“Q. Do you know whether or not he had been using coupons and trading during that time? A. Between the 6th and the 22d? No, I don’t; I could n’t say.
“Q. Well, when he got.his book on the 29th had he traded out his book that he got on the 6th day of May or not? A. Well, I don’t know. That he had no other coupon book from their store other than the one he bought on the 6th day of May, 1909; that his trade from the 29th day of May until the 19th day of June was $11.98.”
It appears from the account kept with Ed Fulton that many coupon books were issued to him in the year 1908, and in the year 1909 before the one issued on May 6. The accounts with the other defendants also show that other books had been previously issued to them. Mr. Foster testified that he did not take up the old books and did not know whether they had any or not. With reference to Ed Fulton’s account he testified, “I can’t remember how much Ed traded at the store after he received the last $10.00 book, but he traded $11.98 and that during that time he had no book that I know of except the $10.00 book..” Ed Fulton testified that while trading with Foster he had as many as three books at a time; that sometimes he would not have enough coupons in the book to last until the next pay day and he would have another one issued. Both the proprietor and bookkeeper testified that they could not identify any coupons claimed to be false from true ones, contained in the books regularly issued, and none of those retained and kept in the envelopes referred to were identified as false. As other coupon books were issued to Ed Fulton before the one issued on May 19, 1909, and one at least was not taken up, and no account of purchases thereon were kept until May 22, it is impossible to perceive how, in the absence of any identification of any spurious coupons, it could be found that any were in fact used, or that Mr. Foster was defrauded as charged in the second count of the information. The evidence is therefore deemed insufficient to-support the verdict.
In view of the result reached it is not necessary to consider alleged errors in rulings complained of.
The judgment is reversed with directions to grant: a new trial upon the second count of the information. | [
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Spencer, J.:
This is an appeal from an order of the district court setting aside that portion of an order of the Public Employee Relations Board which included the faculty of the University of Kansas School of Law within a bargaining unit composed of all university faculty on the Lawrence campus.
On March 20, 1975, five university faculty members petitioned the board for bargaining unit determination pursuant to K.S.A. 75-4327(c). The petition proposed one unit composed of all faculty on the Lawrence campus. Thereafter, the faculties of the Law School and of the Engineering School petitioned for separate units.
A hearing on the consolidated petitions was held from June 30 to July 2, 1975, before a hearing officer appointed by the board. The Law School and Engineering School petitions were opposed by the university administration. Evidence was presented by both sides and the hearing officer took the matter under advisement.
On October 16,1975, the hearing officer submitted his findings of fact, conclusions of law, and recommendations to the board. In twenty-two detailed findings, the hearing officer adopted the evidence of the law faculty and recommended a separate unit. Among other points, the findings noted several administrative areas where the Law School operates differently from the rest of the university, e.g., enrollment, class, and examination scheduling. There were also findings that the law faculty differs from other faculty in that starting salaries and rank are higher, a shorter time is needed for tenure, and teaching loads are lighter but classes larger. In findings dealing with similar factors, the hearing officer found no significant differences between the engi neerihg faculty and the rest of the university faculty, and recommended that they be included within the campus-wide unit. The parties were not served with copies of that report.
The matter was passed to the board meeting scheduled for November 20,1975, at 1:00 p.m. At approximately 10:00 a.m. that morning, three of the board members met with the board’s executive director and the hearing officer in the board’s offices. The unit determination case was discussed for thirty to forty-five minutes. At the scheduled meeting that afternoon, the board, with only the three members who had been in attendance at the morning gathering, adopted without further discussion a motion that the law faculty be included within the campus-wide unit. The hearing officer was directed to prepare revised findings of fact and conclusions of law, which were subsequently approved by the board.
The new findings noted similarities and interconnections between the Law School and its faculty and the rest of the university, which included: hiring procedures; fringe benefits; titles for law faculty are the same as for other faculty; university grievance procedures are available to law faculty; university procedures apply to discipline and dismissal and are the same for all faculty; and law faculty members have maintained at least proportionate membership on university governance committees. The hearing officer’s findings as to the engineering faculty were adopted in their entirety by the board.
The law faculty thereafter sought review in the district court pursuant to K.S.A. 75-4334(b). The court rejected the law faculty’s procedural claims, holding that the board could properly function through three of its five members; the parties need not be served with copies of the hearing officer’s report or be allowed to argue before the board; and the morning meeting of November 20, 1975, although a technical violation of the open meeting law, did not require the matter to be returned to the board. The court nonetheless set aside the order of the board, noting that its findings, although supported by the evidence, did not support its conclusions. This was because the findings were “meager” when compared to the law faculty’s “extensive and uncontradicted” evidence; the board did not explain its disregard of this evidence; and the board’s findings as to the law and engineering faculty petitions were inconsistent.
The board has appealed, contending that the district court exceeded the scope of judicial review and substituted its judgment for that of the board. The law faculty has cross-appealed, contending that the findings of the board are not supported by the evidence and that the procedural arguments rejected by the district court independently require that the board’s order be set aside.
The rules on review of an order of the Public Employee Relations Board were said in Kansas Ass’n of Public Employees v. Public Service Employees Union, 218 Kan. 509, 511, 544 P.2d 1389 (1976), to be those established in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), as the standard rules on review of administrative orders.
“ ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.’
“ ‘In reviewing a district court’s judgment [the appellate court] will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.’ ” (218 Kan. at 511.)
Applying such rules to this case, we conclude that the district court did exceed the scope of judicial review. The court found the board’s “conclusion” to be arbitrary and not reasonably supported because the board’s findings were “meager” in comparison to the “extensive” evidence of the law faculty. In Kansas Ass’n of Public Employees, supra, the court considered K.S.A. 75-4334(b) which makes the board’s findings “conclusive” unless not supported “by substantial evidence and the record considered as a whole.” The court there said that this requires a reviewing court to search the record for substantial evidence to support the board’s findings, but does not authorize it to weigh the evidence. So here, when the district court determined that the board’s findings, with one exception, were supported by the evidence, its review of that evidence should have come to an end. By classifying the evidence as “meager” on the one hand and “extensive” on the other, the court exceeded its authority by weighing the evidence and substituting its judgment for that of the board.
Our own review of the evidence, moreover, reveals that rea sonable minds might differ as to the conclusion to be drawn. As stated in Kansas Ass’n of Public Employees, supra, “ ‘[t]he facts that are to be considered and the relative weight to be given them in making a determination are matters left to the [board’s] discretion.’ ” (218 Kan. at 512.) Although this court might have decided the question differently, and might believe the weight of the evidence to be contrary to the decision of the board, this court may not substitute its judgment for that of the board.
The district court also found that the board was arbitrary in failing to explain its disregard of the law faculty’s “uncontradicted” evidence and in applying inconsistent considerations to the law and engineering faculty petitions. We do not agree. The rule that uncontradicted evidence is not to be disregarded and is ordinarily regarded as conclusive (Berry v. Wondra, 173 Kan. 273, 246 P.2d 282 [1952]; Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146 [1976]) has no application here. Although the law faculty’s evidence was “uncontradicted” in its particulars, it was neither conclusive nor uncontradicted on the issue of an appropriate bargaining unit. The board was not required to explain why it did not adopt the law faculty’s evidence. All that is required is that it express the basic facts on which it relies with sufficient specificity to convey to the parties, and the reviewing courts, the facts and standards which govern its determination. See Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, Syl. 4, 433 P.2d 572 (1967).
The findings of the board on the law and engineering petitions were somewhat inconsistent in the factors emphasized in denying a separate unit. It appears that the board simply adopted the hearing officer’s findings on the engineering petition while making different findings on the law petition. Despite this seeming inconsistency, arbitrariness has not been shown. As long as its findings are supported by evidence and in turn support the conclusion, an administrative tribunal is free to emphasize different approaches in individual cases. In a similar vein, it has been said that the doctrines of res judicata and stare decisis are not generally applicable to administrative determinations. Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959). Administrative decisions of less than ideal clarity will be upheld where the path of decision is reasonably discernible. Although there may be instances where inconsistency within or between deci sions will render an administrative decision arbitrary, this is not such a case.
Finally, the law faculty argues that the board’s decision was arbitrary as contrary to precedent. They point to opinions of the National Labor Relations Board which have granted a separate unit to law faculty in cases under NLRB jurisdiction. We note K.S.A. 75-4321(a)(4) and (5) indicating the “inherent differences” between public and private employment. In addition, K.S.A. 75-4327(c) and K.A.R. 84-2-6 indicating the considerations for determining appropriate units differ in large measure from the considerations of Section 9 of the Labor-Management Relations Act (29 U.S.C. § 159).
Having concluded that the district court erred in holding the board’s order to be substantively arbitrary and capricious, we turn to the law faculty’s cross-appeal.
We find no merit in the point that the findings of the board are not supported , by the evidence. The argument is not that the findings lack a foundation in the evidence, but that some of them are “misleading” in light of the law faculty’s evidence. This argument is insufficient to defeat the findings of the board. Interpretation of evidence is within the discretion of the board.
Neither is there merit in the argument that failure of two of the board’s five members to participate in the decision renders it procedurally defective. It is true that K.S.A. 75-4323(a) requires one member of the board to be representative of public employers, one to be representative of public employees, and three to be representative of the public at large. The statute does not, however, require unanimous action or participation. K.S.A. 77-201 Fourth provides:
“Words giving a joint authority to three or more public officers or other persons shall be construed as given (sic) such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.”
We conclude that three of the five members may lawfully conduct the business of the board.
However, we agree with the law faculty that there are other procedural defects in the board’s decision which require that it be vacated and returned to the board for reconsideration.
Where, as here, an administrative body acts in a quasi-judicial capacity, constitutional requirements of due process are applicable to proceedings had before it. Adams v. Marshall, 212 Kan. 595, Syl. 2, 512 P.2d 365 (1973). There is no claim that the procedure before the hearing officer was in any way defective. Nor is there a claim that the board could not decide the case without being present when the evidence was presented. Due process is not violated by such procedure provided the deciding authority considers and acts on the evidence received. Cf., Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 318, 510 P.2d 1200 (1973). In apprising itself of the evidence, the deciding authority is not precluded from obtaining the aid of competent assistants who may sift and analyze the evidence. Morgan v. United States, 298 U.S. 468, 481, 80 L.Ed. 1288, 56 S.Ct. 906 (1936). Such a task is performed by the hearing officer under the board’s procedures. K.S.A. 75-4323(d)(2), K.A.R. 84-2-2(c)(7).
Because an administrative decision must be based on evidence and not conjecture, on those occasions when the deciding authority chooses not to adopt the findings and recommendations of its hearing officer, it must examine the record independently. See Cooper v. State Board of Medical Examiners, 35 Cal. 2d 242, 217 P.2d 630 (1950). In the absence of evidence to the contrary, it will be presumed that the deciding officials have so considered the record. Anno., 18 A.L.R.2d 606, § 10, p. 625 (1951). Here, however, it appears that the three board members who considered the matter were not conversant with the record to the extent required of an informed decision. All three indicated in answers to interrogatories that they had read only “portions” of the transcripts, and only one had read “some” of the exhibits. The duty of the deciding officer to consider and appraise the evidence may on occasion be an onerous one, but its performance in a substantial manner is inseparable from the exercise of the authority conferred. Morgan v. United States, supra, p. 482.
In addition, the parties were not served with copies of the hearing officer’s report. If the deciding authority makes its decision based on a hearing officer’s report, due process requires that the parties be served with copies and be allowed to take exceptions thereto. 2 Am. Jur. 2d, Administrative Law § 431, pp. 240-241. In this case, as just indicated, the board did not adopt the hearing officer’s report. We conclude, however, that the better practice is to serve the parties with copies of the report on all occasions. K.A.R. 84-2-1 (d) requires the board to serve the parties with “all papers duly filed with the board.” Had this been done in this case, the law faculty could have filed briefs with the board in support of the hearing officer’s recommendations. We note that the law faculty did file briefs with the board and could have argued had they wished, but they had no knowledge of the hearing officer’s original report nor of the revised findings prior to adoption by the board.
We also conclude that the unannounced morning gathering prior to the scheduled meeting of November 20,1975, constituted a violation of the open meeting law, in effect at that time, K.S.A. 1975 Supp. 75-4317, et seq. K.S.A. 1975 Supp. 75-4318(a) provided:
“Except as otherwise provided by law, all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public and no binding action by such bodies shall be by secret ballot.”
The act did not then define “meetings.” From the declaration of purpose of the act (K.S.A. 1975 Supp. 75-4317), we conclude that that term includes all gatherings at all stages of the decision-making process. See Harper, “The Kansas Open Meetings Act of 1972,” 43 J.B.A.K. 257, 296 (1974); Tacha, “The Kansas Open Meeting Act: Sunshine on the Sunflower State?” 25 Kan. L. Rev. 169, 177-181 (1977). In 1977, the legislature amended the act to provide:
“As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this fact (sic) for the purpose of discussing the business or affairs of the body or agency.” K.S.A. 75-4317a.
This definition comports with our interpretation as applied to the act prior to the 1977 amendments. As long as such a meeting is for the “conduct of the affairs of, and the transaction of business by” a body subject to the act, the meeting must be open.
The board members indicated that, although the morning gathering was informal, its purpose was to question the hearing officer, consider legislative intent, and discuss how such matters had been handled in other states. We conclude that the gathering that morning was within the ambit of the act and a technical violation occurred. We note also that the 1977 amendments added the following limitation to the open meeting requirement:
. . [A]ny administrative body that is authorized by law to exercise quasi-judicial functions shall not be required to have open meetings when such body is deliberating matters relating to a decision involving such quasi-judicial functions.” K.S.A. 75-4318(a).
The provisions relating to “deliberating” sessions cannot be said to apply to the meeting here, which was held to gather information for the board’s understanding of the matter, and in any event were not applicable at the time.
No penalties, other than criminal penalties for willful violations, were prescribed for violations of the act as effective in 1975 (K.S.A. 1975 Supp. 75-4320). This has since been modified to a civil penalty by the 1977 amendments (K.S.A. 75-4320). While the technical violation here involved, standing alone, might not require that the matter be returned to the board (Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 562, 539 P.2d 1 [1975]), we conclude that, when combined with the failure of the board members to fully acquaint themselves with the record under the facts of this case and the failure of the board to serve the parties with a copy of the hearing officer’s report, the matter must be so returned.
The judgment is reversed on appeal, affirmed in part and reversed in part on cross-appeal. This case is remanded to the district court with directions to further remand to the Public Employee Relations Board for reconsideration in conformity herewith. | [
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Spencer, J.:
On interlocutory appeal by the State pursuant to K.S.A. 1976 Supp. 22-3603, the question presented is whether the trial court erred in sustaining defendant’s motion to suppress evidence.
On Sunday, March 6, 1977, at 3:39 a.m., a fire was reported to the Fort Scott Police Department by a resident of an apartment house located in that city. Sergeant Norwood Hall and two other police officers responded by going immediately to the apartment. Upon arrival, Sergeant Hall went to a window and saw what appeared to be a cloud of smoke inside the apartment. He then pushed the door of the apartment open, entered the living room, and proceeded through a hallway where he found a rubber-backed rug smoldering on top of a floor furnace. He took the rug back through the front door, threw it into the yard, and re-entered the apartment to look for occupants and to clear the apartment of smoke. At this stage, the two officers who had followed Sergeant Hall into the apartment had determined that there were no occupants. As they began to open windows in order to clear the smoke, one of the officers pointed to a small wooden box on a coffee table in front of the divan in the living room. The box was open and contained what the officers believed to be “roaches,” or the remains of partially smoked marijuana cigarettes. The box also contained a pipe and some plastic bottles containing what were believed to be marijuana seeds. Additional “roaches” were visible in ashtrays on the coffee table. A larger wooden box, also open, was observed at the side of the divan. This box contained a small pipe and a package of vegetation, again believed by the officers to be marijuana. After observing these items, Sergeant Hall called patrolman Allen Miller of the Fort Scott Police Department, who came to the apartment, photographed the several items, and took them into his possession as evidence.
The record before us clearly reveals that, when observed by the officers, both of the boxes were open and the contents were in plain view to anyone in the same room, and that the officers did not profess to be expert in the identification of drugs and merely observed what they believed to be marijuana. They did not smell, taste, or pick up any of the items prior to the time they were photographed and seized as evidence. The record is also clear that, at the time of responding to the fire call, the police did not know who was the occupant of the apartment and were not acquainted with the defendant, although prior to leaving her apartment that morning they did learn her name and that she was a student. It is also clear that the officers entered the apartment without a search warrant and without any idea that they would find any forbidden substance.
'On the following Tuesday, the defendant was arrested and charged with possession of marijuana (K.S.A. 1976 Supp. 65-4127b). On July 18, 1977, the judge of the district court sustained the defendant’s motion to suppress the evidence so assembled, stating in his order that he was doing so on the basis of State v. Schur, 217 Kan. 741, 538 P.2d 689.
In Schur, the supreme court affirmed the order of the district court sustaining the defendant’s motion to suppress certain evidence as a result of a search of defendant’s apartment by the police, the State there contending that the evidence should have been admitted under the “plain view — no search” doctrine. However, the facts as set forth in that opinion differ substantially from the facts in the case at bar. In Schur, the police officer went to the defendant’s apartment in response to a complaint from a neighbor that the defendant’s stereo was too loud. Without entering the defendant’s apartment, the officer observed through a sliding glass door what appeared to him to be a marijuana cigarette. When the occupant opened the door, the officer smelled an odor similar to that of burning marijuana. He then identified himself and asked if he might enter the apartment. His request to enter was refused but he nevertheless did enter, took a closer look at the cigarette, and noticed another cigarette on a table. In doing so, he observed what he believed to be other contraband, seized all of the items, and placed the defendant under arrest for possession of marijuana and amphetamines. The court noted that, in view of the officer’s familiarity with the appearance and odor of marijuana, a magistrate acting with proper discretion could cause a search warrant to issue under those circumstances; but even if probable cause to obtain a search warrant existed, there was not sufficient justification for a warrantless search of the premises. It was stated:
“It has long been settled under the Fourth and Fourteenth Amendments to the United States Constitution that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ... It has been further stated that these exceptions to the warrant requirement have been ‘jealously and carefully drawn’ . . . with the burden of proof being on those seeking to invoke the exception. . . .” (217 Kan. at 743.)
It was noted that one of the exceptions is seizure of evidence in plain view, citing Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022. In Schur, our court also noted that, despite the observation of evidence in plain sight and the existence of probable cause, police officers are not justified in making a warrantless search and seizure of the evidence in the absence of what is generally referred to as “exigent circumstances.” It was there argued that the facts of the case brought it within the “exigent circumstances” exception, which justified the officer’s entrance into the apartment and the seizure of the contraband, for it was reasonable to conclude from defendant’s conduct that the evidence would be destroyed if the police left to obtain a search warrant. It was the conclusion of the court that defendant’s refusal to grant permission to the officer to enter the apartment, and his standing in the doorway, could not properly be considered by the officer as factors creating “exigent circumstances,” those acts by themselves being merely an assertion of the defendant’s right to privacy and to be secure against unreasonable search and seizure. The court observed that it was only after the officer asked for permission to enter the apartment and subsequently forced his way in that it became reasonably certain that defendant would have destroyed the contraband if he had not been arrested. It was concluded that, under the circumstances of that case, the “plain view” doctrine did not justify the warrantless search, for in the absence of exigent circumstances, plain view may serve only as probable cause for the issuance of a search warrant.
Circumstances justifying a warrantless search and seizure of evidence of a crime which is in plain view, recognized in State v. Schur, supra, are set forth in Coolidge v. New Hampshire, supra. There it was stated in substance that for the plain view exception to apply, it must be shown (1) that the initial intrusion which afforded the authorities the plain view was lawful; (2) that the discovery of the evidence was inadvertent; and (3) that the incriminating nature of the evidence was immediately apparent. (403 U.S. at 464-473.) See also, United States v. Clark, 531 F.2d 928 (8th Cir. 1976).
As to whether an initial intrusion is lawful, Coolidge states:
“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure . . . .” (403 U.S. at 466; emphasis added.)
Among the well-established “legitimate reasons” for a police officer to be present on privately occupied premises is in response to an emergency. See Vale v. Louisiana, 399 U.S. 30, 35, 26 L.Ed.2d 409, 90 S.Ct. 1969; Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963); State v. Boyle, 207 Kan. 833, 486 P.2d 849. In Wayne, the “emergency doctrine” was well described by then Circuit Judge Warren Burger:
“ . . . [A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency . . . .” (318 F.2d at 212.)
In Boyle, the Kansas Supreme Court stated:
“Where ‘exigent circumstances’ . . . exist the business of policemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with judicial process . . . .” (207 Kan. at 839.)
See also, Mascólo, “The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment,” 22 Buffalo L. Rev. 419 (1973).
Unlike Schur in which contraband was viewed prior to a valid entry, the facts in the case at bar fit squarely within the concerns of the emergency doctrine. The officers responded to a fire call. Upon arrival at the scene, they forcibly entered the apartment in order to save property and possibly to save lives. The initial intrusion was lawful.
The second Coolidge requirement is that the discovery of the evidence be inadvertent. Here, the officers’ testimony was that the marijuana was seen in two open boxes in the living room. Although both boxes had lids, the uncontradicted testimony was that both were open when the officers first observed the contents. If the lids had been in place and the officers had removed them, and only then discovered the marijuana, it would not have been in plain view and the evidence would properly have been suppressed. There is nothing in the record to indicate the trial court disbelieved the officers’ testimony that the marijuana was in plain view and, when they responded to the fire call, there was no reason to suspect that they would discover any contraband or evidence of a crime.
The third Coolidge element, that the incriminating nature of the evidence be immediately apparent, is also present in this case. The officers, although not expert in the field of drugs, were immediately aware that the observed substance probably was marijuana.
In this case, a valid intrusion, based on the exigency of the fire, had occurred before the marijuana was discovered in plain view. The discovery was inadvertent and the officers were immediately aware of the incriminating nature of their discovery. Nothing further was necessary to justify the seizure.
Among cases upholding warrantless seizures of contraband by officers after the contraband has been discovered in plain view by firemen or policemen on the scene in response to a fire, are Steigler v. Anderson, 496 F.2d 793 (3rd Cir. 1974), and State v. Young, 11 Or. App. 276, 501 P.2d 1001 (1972).
One further point should be noted. There was some evidence that, after the marijuana was discovered, the police proceeded to conduct a general search of the apartment. If that is true, their doing so was wrong. However, the record does not reflect that any evidence resulted from such further search. As stated in Coolidge:
... Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” (403 U.S. at 466.)
The seizure of the evidence in this case was lawful and the trial court erred in sustaining the motion to suppress.
Reversed and remanded. | [
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Swinehart, J.:
The appellant was charged with selling cereal malt beverages to minors, contrary to K.S.A. 41-2704. She was first tried on December 6, 1976, in the county court of Brown County. There she was found guilty of the sale of cereal malt beverages to minors, a misdemeanor. On December 10, 1976, she filed her notice of appeal to the district court. On March 28, 1977, the defendant was tried by a jury in the Brown County district court. The jury returned a guilty verdict. The defendant appeals from the conviction.
The defendant’s charge and subsequent conviction were based upon an alleged sale of beer to four minor girls on August 19, 1976, at the Dew-Drop Inn in Hiawatha. That evening police officers observed four girls putting beer in the trunk of a car parked outside of the Dew-Drop Inn. The officers suspected that the four girls might be under the age of eighteen. Officer Duncan turned his police car around and followed them. He stopped them and asked them to open the trunk. In the trunk he found six six-packs of beer. He told the girls to follow him to the police station, which they did. There each girl gave a statement as to what had happened. They were eventually released to their parents. No charges were ever filed against them.
The defendant’s main defense tactic was to prove that it was not she who sold the beer to the girls. She presented evidence that she normally worked from 11:00 to 4:00 in the afternoon and then went home. Sometimes, she testified, she returned to work at approximately 8:00 to help the tavern owner out, and testified that she could not remember whether she had returned on August 19, 1976. She said that if she did return on that date, she was certain that she had not come back before 8:00. The girls testified in district court that they had been picked up at approximately 8:30 or 8:40. The defendant attacks this testimony by claiming that at the misdemeanor trial in the lower county court, they testified that they were picked up at 7:00 or 7:30. This, she claims, proves that it was not she who sold the beer because she never returned to the tavern until 8:00. Under cross-examination, the girls admitted that they discussed the time with officers before trial because they had forgotten details of their arrest, such as the exact time they were stopped, in the nearly nine months that elapsed between the date of their arrest and the date of the trial in district court. The defendant claims that the officers knew that she did not come to work until 8:00 and therefore told the girls to testify that they were picked up at 8:40. Officer Duncan, who arrested the four girls, testified that his report reflected that he first saw the girls in the parking lot at the Dew-Drop Inn at 8:05 in the evening and that he stopped them at approximately 8:40.
No testimony was presented as to how the defendant was identified to police as the one who actually sold the beer to the four girls. The jury asked about this and the court replied that it could not be answered, and that they would have to determine whether or not they thought defendant was guilty beyond a reasonable doubt on the basis of the evidence that had been presented at the trial.
The trial in district court took place on March 28, 1977. On April 20, 1977, the defendant filed a motion asking permission to file a motion for new trial out of time. The motion for new trial should have been filed on or before April 7, 1977. The motion stated that the reason for the delay was that the defendant had changed lawyers on April 12. On May 2,1977, the defendant was granted seven days within which to file a motion for new trial. On May 9, 1977, the defendant’s motion for new trial was filed. The motion was subsequently denied.
K.S.A. 22-3501(1) provides: “The court on motion of a defendant may grant a new trial to him if required in the interest of justice.” The statute further provides that a motion made for any reason other than discovery of new evidence must be made within ten days after the verdict or finding of guilty.
Case law interpreting K.S.A. 22-3501 principally involves a motion for a new trial on the grounds of newly discovered evidence. In State v. Larkin, 212 Kan. 158, 510 P.2d 123 (1973), it was said:
“The law is well settled in this state that the granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court, and such motion is ordinarily not granted unless the trial court is satisfied that such new evidence would probably produce a different verdict. The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Law, 203 Kan. 89, 452 P.2d 862; United States v. Gleeson, 411 F.2d 1091; State v. Hale, 206 Kan. 521, 479 P.2d 902; and State v. Campbell, 207 Kan. 152, 483 P.2d 495.)
“It has also been held where a new trial is sought on the basis of recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge passing on the motion for a new trial. (State v. Theus, 207 Kan. 571, 485 P.2d 1327.)” Larkin, supra, p. 161.
Although this language pertains specifically to a motion for a new trial on the basis of newly discovered evidence, the same standards apply to a motion for a new trial made for other reasons: (1) the decision of whether or not to grant a new trial is within the discretion of the trial court; (2) the motion should not be granted unless the trial court is satisfied that retrying the case for whatever reason the defendant advances in his motion would probably result in a different verdict.
In her motion the defendant advanced four reasons for which she moved the court to grant her a new trial: (1) the failure to introduce the beer into evidence; (2) the failure of her prior counsel to conduct adequate voir dire; (3) the failure of her prior counsel to adequately cross-examine State’s witnesses; and (4) the failure of her prior counsel to present evidence concerning the first trial of the matter in county court. On appeal the defendant appears to assert only two of the four reasons she asserted below; that is, the failure to introduce the beer and the alleged discrepancies in the girls’ testimony concerning when they were arrested.
The trial court did not err in refusing to grant a new trial for the State’s failure to introduce the beer into evidence. The defendant cites no cases supporting the contention that the beer had to be introduced in order to prove her guilt. A search of statutory and case law, as well as encyclopedias, reveals no authority for the defendant’s argument. The failure to introduce demonstrative evidence, like the failure to introduce a particular bit of testimonial evidence, does not constitute reversible error unless that evidence is essential to prove one of the elements of the crime.
The elements of the crime that the defendant was charged with, as stated in the judge’s instructions to the jury, are: (1) that the defendant sold cereal malt beverages to a person under the age of eighteen and (2) that this act occurred on or about August 19, 1976. No objection was made to these instructions. The State presented the testimony of the police officer and of three of the four girls who were arrested in its attempt to prove these two elements of the crime. By returning a guilty verdict, the jury indicated that it found the testimonial evidence to be sufficient to prove the elements of the crime.
Although relevant, non-prejudicial demonstrative evidence should be introduced whenever possible, a brief consideration of the problem shows that it is impossible for courts to define exactly what evidence, either testimonial or demonstrative, has to be introduced in order to prove the elements of a particular crime. If the court were to assume the responsibility of defining what evidence is necessary, the task would be impossible and endless. The decision of what significance to attach to a party’s failure to introduce a particular bit of evidence, whether demonstrative or testimonial, must remain with the trier of fact.
In addition to the above reasons for not disturbing the trial court’s decision not to grant a new trial, the defendant has shown no way that the introduction of the beer would change the verdict. It was therefore not error for the trial court to refuse to grant a new trial for this reason.
This court has addressed the evidentiary matter as the defendant framed it. However, we would point out that if the failure to introduce the beer had amounted to a failure to prove one of the essential elements of the crime, the proper way to challenge the omission would have been by a motion to discharge.
On appeal the defendant also asserts that the trial court should have granted a new trial because of the discrepancy in the girls’ testimony relating to the time they were arrested. The defendant alleges that at the preliminary trial in county court the girls testified that they were stopped at 7:00 or 7:30 but at the trial in district court they claimed that they were stopped at 8:40. She claims that this is significant because she did not begin work until 8:00. A review of the transcript reveals that the girls were cross-examined concerning this matter at the trial. The defendant’s allegations concerning the inconsistencies were presented to the jury and the defendant’s theory about why the discrepancy existed was fully explained to the jury. The trial court was not convinced that presenting this evidence to another jury would make any difference in the verdict. Since the evidence was presented to the first jury and the trial court does not appear to have abused its discretion in refusing to grant the defendant’s motion for new trial, the trial court’s decision is affirmed on appeal.
The defendant’s motion for a new trial seems to allege that she -was not effectively represented in the first trial. Her appellate brief does not raise the point and it must therefore be considered to be abandoned on appeal.
The defendant also alleges that it was not proper to charge her under K.S.A. 41-2704. Basically, the defendant argues that K.S.A. 41-2704 is penal in nature. Relying on the well-known rule that penal statutes must be construed strictly in favor of the accused, she argues that the statute does not make selling beer to minors a misdemeanor. Rather, she contends the statute makes it a misdemeanor for minors to purchase beer. Therefore, she reasons she should have been discharged or acquitted at her trial.
It is indisputable that K.S.A. 41-2704 is in fact penal in nature. The penal nature of the statute was established in State v. Erhart, 176 Kan. 589, 272 P.2d 1097 (1954). In that case the defendants were charged with violating another portion of the same statute. They were charged with possession of alcoholic liquors on premises licensed for the sale of cereal malt beverages and the sale of cereal malt beverages on Sunday. At trial the defendants moved to be discharged on the ground that the statute was not penal in nature. The court rejected this contention. It was held that the statute itself contains positive declarations by the state legislature prohibiting certain actions. Although 41-2704 itself contains no penal provisions, K.S.A. 41-2711 makes a violation of any of the provisions of the act a misdemeanor punishable by a fine of not more than $500 or by imprisonment in county jail for not more than one year. The Erhart court held that these two statutes, read together, do create a penalty and therefore held that K.S.A. 41-2704 was in fact a penal statute.
Basically the rule of strict construction of penal statutes means that ordinary words are to be given their ordinary meaning and that the penal statute should not be read so as to add to it something that is not readily found therein or to read out of it what as a matter of ordinary English is in it. Esters v. State, 1 Kan. App. 2d 503, 505, 571 P.2d 32 (1977).
In making her argument that strict construction of the statute does not make selling beer to minors a criminal violation the defendant points to specific language within the statute: “Any person under eighteen (18) years of age who purchases or attempts to purchase any cereal malt beverages in any licensed place of business shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished as provided by law.” If the language cited by the defendant were the only language of the statute, her argument would have some merit. Applying the rules of strict construction to this language, the statute would not make selling beer to a minor a criminal violation.
However, the defendant’s argument fails to take into account the sentence which immediately precedes the sentence which she quotes. The preceding sentence reads: “No person under eighteen (18) years of age shall be permitted to buy or drink any of such beverages in or about such place of business.” (Emphasis added.) This sentence clearly is directed at persons engaged in selling cereal malt beverages. It is a prohibition not of minors buying beer but of someone else permitting them to do so. Applying the rule that the language is to be given its ordinary meaning, obviously this sentence means that those engaged in selling beer are not to sell beer to minors.
Reading the act in pari materia, it appears that the legislature has established certain rules of conduct for the sellers of cereal malt beverages which may not be modified by local ordinances. Among these are the prohibition against selling beer between the hours of 12:00 midnight and 6:00 a.m., or on Sunday, or on the day of any election. Beer taverns are also forbidden to have alcoholic liquor on the premises. Finally, the sale of beer to minors is prohibited. All of these acts are made misdemeanors by section 41-2711. It would seem that the only reason that 41-2704 specifically makes purchase of beer by a minor a misdemeanor is that the rest of the actis directed to tavern owners and employees, and their violations of the act are covered by 41-2711. However, the legislature also saw fit to include within the prohibitions of the act the purchase of beer by minors. Since this is the only place in the act that minors are mentioned, the legislature apparently thought it would clarify the criminal nature of the minor’s purchase of beer if it was specifically mentioned here that it was a misdemeanor, rather than relying on the more general application and coverage of 41-2711.
The defendant was properly charged under K.S.A. 41-2704 and the trial court did not err in refusing to discharge or acquit her at the end of the presentation of the State’s evidence.
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Foth, C.J.:
In 1972 plaintiffs Sanders and England sold their mobile home park in Wichita, taking back a second mortgage of almost $200,000.00 as part of the $1,000,000.00 purchase price. The other $800,000.00 was paid by $200,000.00 in cash and assumption of a $600,000.00 first mortgage. As a result of participating in the purchaser’s refinancing of the project in 1973, during which they released their original second mortgage in exchange for a replacement, plaintiffs found that the property had passed to a bona fide purchaser free and clear of their lien. When the original purchaser-mortgagor defaulted and turned out to be insolvent they brought this suit for damages for fraud and breach of fiduciary duty, and to impress a lien on the property, against all who participated in the refinancing.
The original sale, from plaintiffs to Park Towne, Ltd., a Nebraska corporation, was closed on December 28, 1972. Unbeknownst to plaintiffs, Park Towne had already agreed to sell the park to a California limited partnership, Carlsberg Mobile Home Properties, Ltd. — ’72, and in fact had delivered a deed to Carlsberg on December 13. Carlsberg’s business was to hold investment property providing tax shelters for its public investors. This mobile home park was one of around six Carlsberg acquired from Park Towne at about the same time.
Park Towne had expressed to plaintiffs its intention to refinance the outstanding first mortgage, and stated that such refinancing would be easier if plaintiffs’ second mortgage were not recorded. Because refinancing would relieve them of personal liability on the first mortgage plaintiffs withheld recording their mortgage, but when the refinancing was not promptly accomplished they recorded on February 12, 1973.
In the meantime, immediately after Park Towne acquired title from plaintiffs on December 29, Park Towne’s deed to Carlsberg had been recorded, along with a mortgage back from Carlsberg to Park Towne. This was an all-inclusive mortgage of more than $1,000,000.00, designed to cover and insure payment of all prior obligations, and is referred to as a “wrap-around” mortgage. As part of this transaction the Wichita park was leased back to Park Towne under an operating agreement, with Park Towne’s interest in the wrap-around mortgage reassigned to Carlsberg to insure performance under the operating agreement.
The refinancing finally took place in late May and early June, 1973. It was accomplished by the following documents, listed in order of their recording:
a. Carlsberg deeded the property back to Park Towne.
b. Plaintiffs released their “second mortgage.”
c. Park Towne gave a first mortgage to the new lender.
d. Park Towne redeeded the property to Carlsberg.
e. Park Towne released Carlsberg’s original wrap-around mortgage.
f. Carlsberg executed a new wrap-around mortgage to Park Towne.
g. Plaintiffs’ mortgage was filed.
h. An agreement was filed whereby ostensibly Park Towne’s second wrap-around mortgage from Carlsberg was subordinated to the plaintiffs’ new mortgage.
As may be seen, this series of transactions gave Carlsberg title clear of plaintiffs’ mortgage unless it had actual notice of plaintiff’s interest. The trial court found the evidence insufficient to establish such actual notice.
The defendant Richard A. Phillips was the agent of the defendants’ Lawyers Title Insurance Corporation and its wholly owned subsidiary, defendant Guarantee Title Company, Inc. Phillips, on behalf of his principals, handled both the first sale and the refinancing. He acted as escrow agent, conceived the refinancing scheme, and recorded the various documents. At his instance plaintiffs’ attorney prepared and returned to him the new second mortgage and the subordination agreement. He was committed to Park Towne and Carlsberg to issue title policies showing no more than two mortgages — the first mortgage and the wrap-around. He had been told by Park Towne that S.E.C. regulations prohibited Carlsberg from investing in property encumbered by more. He knew that plaintiffs were seeking a second mortgage position, and had assured them he would protect their interests. He also knew that the recording sequence he selected would not give plaintiffs the second mortgage position they sought, and in fact doubted that it would give them a lien at all. The trial court found that he could not fulfill all the commitments he had made to the parties. In fact, he issued title policies which omitted plaintiffs’ interest.
While this action was pending Park Towne and Carlsberg compromised a separate suit between them arising in part out of Park Towne’s default on its operating agreement. As part of the compromise Park Towne released the wrap-around mortgage to it from Carlsberg, and Carlsberg released the personal liability to it of the defendant Joe Pace, president of Park Towne.
The trial court heard the case without a jury and entered judgment against the defendants in three parts:
1. For actual damages in the amount of $232,981.28 (the unpaid balance of the mortgage notes with prejudgment interest at the contract rate) against:
(a) Park Towne, Ltd., the corporate purchaser; .
(b) Joe Pace, its president;
(c) The two title companies;
(d) Richard A. Phillips, agent of the title companies.
2. For $100,000.00 punitive damages, against Phillips and the title companies, and against Park Towne.
3. It decreed a lien on the property in the hands of Carlsberg Mobile Home Property, Ltd. — ’72, to secure the judgment for actual damages.
The court also decreed that the judgment for actual damages should bear interest at 10%, the rate called for by the mortgage notes.
All defendants against whom the above judgments were rendered have appealed (although Park Towne has filed no brief and may be defunct). Collectively the appellants raise seven points on appeal.
1. Phillips and the title companies contend that the trial court erred in finding that Phillips breached a fiduciary duty owed to the plaintiffs. We think the duty arose because, as escrow agent, he was the agent of the plaintiffs. “There is a respectable line of authorities in this jurisdiction to the effect that the depositary of an escrow is the agent of both the parties thereto. (Davis v. Clark, 58 Kan. 100, 48 Pac. 563; Gault v. Hurd, 103 Kan. 51, 172 Pac. 1011; Smith v. Griffith, 105 Kan. 357, 184 Pac. 725; Southern v. Linville, 139 Kan. 850, 33 P.2d 123; and Southern v. Chase State Bank, 144 Kan. 472, 477, 61 P.2d 1340, 107 A.L.R. 944; and see Moe v. Transamerica Title Ins. Co., [21 Cal. App. 3d 289, 98 Cal. Rptr. 547].)” Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 259-60, 553 P.2d 254 (1976).
It is well settled that “the relation existing between a principal and agent is a fiduciary one demanding conditions of trust and confidence.” Merchant v. Foreman, 182 Kan. 550, Syl. 2, 322 P.2d 740 (1958). See, also, Kline v. Orebaugh, 214 Kan. 207, 210, 519 P.2d 691 (1974) and Wolcott & Lincoln, Inc. v. Butler, 155 Kan. 105, Syl. 1, 122 P.2d 720 (1942). “[I]n all transactions concerning and affecting the subject matter of his agency, it is the duty of the agent to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal . . . .” Merchant v. Foreman, supra at 556. The agent must give the principal the benefit of all his knowledge and skill and cannot withhold or conceal information from the principal. Ibid.
In this case Phillips acted as the closing agent for all the parties in both the first and second series of transactions. He received payments for recording fees and disbursed monies received to all parties. He knew that the plaintiffs wanted a second mortgage and he assured them that he would protect their interest. (While this assurance was given at the time of the first transaction, there is no evidence that Phillips ever withdrew his assurance.) The plaintiffs’ attorney sent the documents to Phillips with only the general instruction to see that they be recorded. Finally, Phillips sent plaintiffs a closing letter stating that he hoped he had handled the matter to their satisfaction. It was reasonable for the court to infer that Phillips was acting as plaintiffs’ agent, and as such owed them a fiduciary duty.
Phillips attempts to narrow the scope of his duty by arguing that he was required only to file the documents prepared by plaintiffs’ attorney, and thus did not breach his duty. This, however, is contrary to the evidence recited above, which was accepted by the trial court. Also, it ignores the fact that Phillips, not plaintiffs’ attorney, decided what documents would be filed, directed their preparation and decided the order of filing. The subordination agreement, which he now says was surplusage, was prepared at his suggestion. His excuse, that he assumed plaintiffs’ attorney had some secret knowledge or understanding which would protect plaintiffs’ second mortgage position, was rejected by the trial court as “incredible.” If he made such an assumption, good faith would dictate at least an inquiry.
When Phillips undertook to act for all parties he undertook to do so impartially. His choice of recording sequence favored the other defendants at the expense of the plaintiffs. If his position on appeal were upheld it would mean that an escrow agent could assume an adversary position with respect to one of his principals without disclosing that intention. Such conduct cannot be justified.
The trial court’s finding that Phillips breached his fiduciary duty is adequately supported.
2. Phillips and the title companies argue as a separate point that certain interlineations Phillips made in the subordination agreement did not have an adverse effect on plaintiffs’ rights. These interlineations were to redate the agreement from May to June — a time after the second wrap-around mortgage was recorded — and to make specific reference to the second wraparound mortgage in the text of the agreement. They say that these were harmless changes, since the first wrap-around had been released, and the second was all the agreement could have referred to.
Plaintiffs argue that the agreement was prepared with the idea that the first wrap-around would remain of record, and that the agreement would have been effective as drafted to subordinate the first wrap-around to their mortgage once Park Towne was revested with title. This was the view taken by the trial court.
We need not resolve this issue. Regardless of the interlineations, the sequence of recording was enough to destroy plaintiffs’ second mortgage position. The interlineations, made without consulting the scrivener who had entrusted the document to him, at least indicated Phillips’ general attitude toward those who had employed him.
3. Phillips and the title companies argue that the trial court erred in awarding punitive damages, or alternatively that the amount awarded was excessive. Their basic claim is that Phillips breached no duty, an argument previously discussed.
Our court has stated that punitive damages “are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. (Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; see, also, Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; and 15 Am. Jur., Damages, § 266, p. 700.)” Watkins v. Layton, 182 Kan. 702, 705, 324 P.2d 130 (1958). In determining the amount of punitive damages, the trier of fact may consider “the nature, extent and enormity of the wrong, the intent of the party committing it and generally all the circumstances attending the particular transaction, together with any mitigating circumstances tending to reduce the verdict or wholly defeating the damages.” Sweaney v. United Loan & Finance Co., 205 Kan. 66, Syl. 7, 468 P.2d 124 (1970). The trier may also take into account the “probable expenses of litigation, including attorney’s fees . . . where such expenses are not stated to be matters which must be made a basis of compensation.” Brewer v. Home-Stake Production Co., 200 Kan. 96, Syl. 2, 434 P.2d 828 (1967).
In this case, as previously noted, there was evidence that Phillips knew the plaintiffs were to retain a second mortgage, that he developed and carried out the recording scheme, and that he knew the procedure followed would not protect the plaintiffs. This clearly supports the trial court’s finding that Phillips acted with “reckless and willful disregard of the rights of the Plaintiffs.” Considering the “enormity of the wrong” and the importance of deterrence, we cannot say that the award of $100,000.00 was excessive.
4. Carlsberg urges that the court erred in imposing a lien on the property to secure the payment of the judgment against the other defendants. The company points out that the court refused to find that it had actual notice of plaintiffs’ interest prior to purchase of the property. A finding of constructive notice might have been made, but was not, based on the trial court’s finding that plaintiffs were in actual possession until after Carlsberg purchased the property. Such a conclusion would have been inconsistent with the judgment against the other defendants, since they are liable only if their actions made it possible for Carlsberg to take title free of plaintiffs’ interest.
The trial court appears to have found that Carlsberg was a bona fide purchaser, but had some duty to the plaintiffs because it had knowledge of plaintiffs’ mortgage and the subordination agreement before it negotiated the settlement of its affairs with Park Towne. The court concluded that the subordination agreement should be considered an equitable assignment to the plaintiffs of the note and mortgage from Carlsberg to Park Towne. If the subordination agreement was an assignment, Park Towne had no power to release the mortgage and note. See, Insurance Co. v. Huntington, 57 Kan. 744, 747-748, 48 Pac. 19 (1897). By this process the court reached the conclusion that the land in Carlsberg’s hands can be subjected to plaintiffs’ lien.
The problem with this result is that it amounts to holding land in the hands of a bona fide purchaser subject to an unrecorded mortgage. Neither plaintiffs nor the trial court offer us any authority for such a result, and we are unable to find any. Neither do we find any authority for saying that an agreement subordinating the lien of one mortgage to that of another amounts to an assignment of the first mortgage. Giving full effect to the subordination agreement would merely put plaintiffs’ lien — if any — ahead of the wrap-around mortgage. It could not operate to create a lien if there was none.
As we see it, plaintiffs’ cause of action against the other defendants is predicated on the proposition that through their machinations plaintiffs lost their lien. A finding that they didn’t lose it at all seems inconsistent with their other claims and with the judgment rendered against the other defendants. We have concluded that this part of the judgment cannot stand.
5. Phillips and the title companies contend that the trial court erred by allowing prejudgment interest on the unpaid balances of plaintiffs’ notes as an element of damages. They argue that this violates the general rule against prejudgment interest on unliquidated tort claims. See, e.g., Foster v. City of Augusta, 174 Kan. 324, Syl. 6, 256 P.2d 121 (1953); Grindley v. Woods, 129 Kan. 269, 270-71, 282 Pac. 573 (1929). Here, however, the interest on the notes was part of the actual damages suffered by the plaintiffs. Although the court did not make findings regarding the value of the property and the amount outstanding on the first mortgage, it apparently concluded that a valid second mortgage would have fully secured the amount due on the notes plus interest. Where interest is part of the actual loss it is recoverable. See, Johnson v. Oil Well Supply Co., 85 Kan. 507, 117 Pac. 1022 (1911), where, in an action for conversion of property covered by a chattel mortgage executed to secure a note, the court held that the amount due at the time the judgment was rendered was the face value of the note plus the contract rate of interest. And, cf., Lightcap v. Mobile Oil Corporation, 221 Kan. 448,562 P.2d 1 (1977); Gray v. Amoco Production Co., 223 Kan. 441, 573 P.2d 1080 (1978); Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 559, 567 P.2d 1292 (1977).
6. Phillips and the title companies contend that the court erred by allowing post-judgment interest at the rate specified on the notes rather than the statutory rate of 8%. They point out that the cause of action against them was not based on contract and argue that the general statute on post-judgment interest should apply. See, K.S.A. 16-204 and K.S.A. 1977 Supp. 16-205.
Plaintiffs concede the general principle that in actions based on fraud, post-judgment interest is usually computed at the statutory rate, but argue that in rare cases where the conduct is willful or wanton, the higher contract rate is appropriate. They cite as authority for allowing the contract rate here a statement from 37 Am. Jur. 2d, Fraud and Deceit, § 382, that “in relatively rare instances involving unusual factual situations, the view has been taken that the rate of interest fixed in a contract involved in [an action based on fraud], rather than the statutory legal rate, is to be employed in computing the interest recoverable.”
The authority cited does not support the application urged here, since both of the cases cited by the encyclopedist deal with the recovery of interest as part of the damage plaintiff suffered, not with post-judgment interest. See, Empire Life Ins. Co. v. Beaumont Land and Building Co., 146 S.W. 335 (Texas Civ. App. 1912), and Sykes v. Insurance Co., 148 N.C. 13, 61 S.E. 610 (1908). We are holding such prejudgment interest allowable here under point 5 above.
We conclude that Phillips and the title companies, who were not parties to the contract, are liable for post-judgment interest at the statutory rate of 8% under K.S.A. 16-204.
7. The final point is raised by Joe Pace, president of Park Towne, against whom the court rendered judgment for more than $200,000.00 in actual damages. Pace challenges the sufficiency of the evidence against him.
The plaintiffs concede that the evidence is insufficient to show Pace participated in the series of transactions whereby Carlsberg took title free of plaintiffs’ interest in the property. The evidence is that these were engineered by Phillips and Park Towne’s vice-president, Loren Parkinson, against whom no judgment was rendered. The plaintiffs contend, however, that Pace is liable to them because he participated in Park Towne’s release of Carlsberg’s note and second wrap-around mortgage. They argue that since the court gave the subordination agreement the effect of an equitable assignment of the note and mortgage, Pace committed a fraud when he released them.
Our finding that there was no such assignment would remove that basis of liability. In addition, a reading of the court’s memorandum and the journal entry indicates that Pace’s liability was founded solely on the court’s finding that he participated in the recording arrangements.
In its findings of fact the court stated:
“The Court concludes that the actions of Phillips from 8:00 a.m. on the 23rd of May, 1973, until June 5, 1973, cast a serious cloud on the validity of the Plaintiffs’ second mortgage. The Court concludes that this was the active cooperation and solicitation of Joe Pace, Loren Parkinson and Park Towne, Ltd., and was done on behalf of his principals, Guaranty and Lawyers Title Insurance Companies.”
In the journal entry the court awarded actual damages against Park Towne, Pace, Phillips, and the title companies. Those defendants, according to the court, all participated in the filing of the title instruments. Carlsberg’s liability, which is based on participating in the release, is treated entirely separately by the court. It is discussed in separate paragraphs of the findings, conclusions, and journal entry. Also, no damages are awarded against Carlsberg, but only a lien on its property. Even if Pace’s participation in this transaction was wrongful, under the trial court’s theory it resulted in no damage.
It appears that the trial court based Pace’s monetary liability solely on the finding quoted above that he participated in the recording scheme. Since the evidence is concededly insufficient to support this finding, this part of the judgment cannot stand.
In summary, we affirm the judgment for actual and punitive damages except (1) as against Phillips and the title companies it shall bear post-judgment interest at the statutory rate of 8%; and (2) as to the defendant Joe Pace the judgment is reversed. The judgment against Carlsberg imposing a lien on its property is also reversed.
. Although the lien muy initially have been lost beeause the ougmul second moitgage wasn't reeoidod until after the purchaser first conveyed the property, plaintiffs’ participation in the refinancing scheme was necessary, and reinstituting a valid second mortgage position was their price for participation. | [
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Spencer, J.:
The sole issue involved on this appeal is whether the defendant, in an action brought by an injured workman who has been paid compensation under the Kansas Workmen’s Compensation Act (K.S.A. 44-501, et seq.), may maintain a third-party action for indemnity against the employer of the injured workman on the basis of active and primary negligence on the part of the employer.
This case has not yet been tried; however, for the purposes of this appeal, the facts are not in dispute. On October 15, 1974, plaintiff was employed by the third-party defendant, Chemical Construction Company (hereinafter Chemico). On that day, plaintiff was injured by accident arising out of and in the course of his employment when struck by a load of steel. Just prior to the accident, the load of steel which struck plaintiff was being lowered to the ground by a crane which had been leased to Chemico by defendant Noble Corporation. The manual operation of the crane was being performed by Stanley Ray, an employee of Noble, who in turn was receiving directions as to where to move the crane load from Ted Picraux, an employee of Chemico. Directions to the crane operator were given by what is known in the industry as “flagging,” which is referred to in the record as being of a “joint nature” between the flagman and the crane operator. On this occasion, the flagman directed the crane operator in such a manner that the crane became unbalanced and dropped the load of steel, resúlting in plaintiff’s injuries.
As a result of his injuries, plaintiff recovered workmen’s compensation benefits from his employer Chemico. Thereafter, plaintiff filed an action against Noble alleging that Noble, its agents or employees had been negligent in the operation of the crane and that such negligence was the proximate cause of his injuries. Noble answered and filed a third-party petition against Chemico in which it is alleged:
“That if Noble Corporation is found liable to plaintiff under any theory contained in plaintiff’s petition which has been heretofore denied, such liability and circumstances giving rise thereto could not occur except for acts of negligence on the part of the third-party defendant, Chemico Construction Company or Chemical Construction Company, as said third-party defendant was directing, and supervising all activities at the time in question, and that should the Noble Corporation be liable on any theory of negligence, such negligence could only have been passive and secondary, while the negligence of the third-party defendant, Chemico Construction Company or Chemical Construction Company, would have been active and primary and the proximate cause of the plaintiff’s alleged damages.”
The prayer is for judgment against Chemico in an amount equal to any judgment obtained by plaintiff against Noble on account of his injuries and for attorney fees, expenses, and costs of defending the plaintiff’s action, as well as for prosecuting the third-party action against Chemico.
Thereafter, Chemico moved to dismiss the third-party action against it. The trial court sustained the motion and ruled as follows:
“ . . . [T]hat Chemical Construction Company or Chemico Construction Company is hereby dismissed as a party to this action, except that Chemical Construction Company or Chemico Construction Company is to remain a party to this action in accordance with the provisions of K.S.A. 60-258a for the purpose of assessment, determination and comparison of the negligence attributable to the respective parties, yet not for the purpose of any assessment of liability on the part of said defendant, Chemical Construction Company or Chemico Construction Company.”
Subsequently, the trial court directed the entry of partial summary judgment with the express determination “that there is no just reason for delay,” pursuant to K.S.A. 60-254(b). The judgment of the court has therefore become final as to Chemico with respect to its liability to Noble in the third-party action and this appeal is proper.
Kansas adheres to the common law rule that there is no right to contribution among joint tortfeasors. Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (1966). A distinction exists, however, between contribution and indemnity. Contribution means a sharing of the loss while indemnity means a shifting of the entire loss. Cullen v. Atchison, T. & S. F. Rly. Co., 211 Kan. 368, 507 P.2d 353 (1973). Indemnity is allowed at common law as to a party liable for the injuries of another by reason of passive, implied, or constructive negligence as against another party guilty of active, primary, and direct negligence, as long as the parties are not in pari delicto. Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P.2d 783 (1967).
The question therefore presented is whether the Workmen’s Compensation Act (K.S.A. 44-501, et seq.) abrogates the common law right of a passively negligent third party, who is sued by an injured employee, to be indemnified by an actively negligent employer who has already paid benefits under the Act. For the purposes of this appeal only, and without deciding, we must assume that the facts establish that Noble (the third party) was passively negligent and that Chemico (the employer) was actively negligent.
K.S.A. 1977 Supp. 44-501 provides in part:
. . . Except as provided in the workmen’s compensation act, no such employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder . . . .”
Under this provision, it has long been settled that, if a worker is entitled to benefits under the Act for an injury, the remedy is exclusive and he or she cannot maintain a common law action for damages founded upon negligence against a party from whom compensation could have been recovered under the Act. Woods v. Cessna Aircraft Co., 220 Kan. 479, 482, 553 P.2d 900 (1976). The Act is also the exclusive remedy of dependents of the employee seeking damages for his or her injuries. Fritzson v. City of Manhattan, 215 Kan. 810, 528 P.2d 1193 (1974); Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 545 P.2d 317 (1976).
Even though the Act is the exclusive remedy as to the employer, the employee may bring an action against a negligent third party. K.S.A. 1977 Supp. 44-504(a) provides:
“When the injury or death for which compensation is payable under the workmen’s compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the workmen’s compensation act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person.”
In the event of recovery from such third party by the injured workman, his dependents or personal representatives, by judgment, settlement, or otherwise, the employer is subrogated to the extent of the compensation and medical aid provided the employee to the date of such recovery and is granted a lien therefor. K.S.A. 1977 Supp. 44-504(b).
The issue here presented appears to be one of first impression in this state. However, we are not completely without guidance. In Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P.2d 146 (1968), two independent contractors (Jake’s Crew and Arrow) were employed by a petroleum company to work on an oil and gas site owned by the petroleum company. Plaintiff, an employee of Jake’s Crew, was injured and recovered benefits under the Act. He and his employer (Jake’s Crew) then brought a third-party negligence action against Arrow under K.S.A. 44-504. Arrow counter-claimed against Jake’s Crew alleging inter alia that, if plaintiff was injured, it was the result of negligence of Jake’s Crew and (apparently), that if Arrow was liable for plaintiff’s injuries, it should be entitled to contribution or indemnity from Jake’s Crew. The trial court dismissed Jake’s Crew on the ground that, plaintiff having recovered workmen’s compensation benefits, Jake’s Crew could not be further liable for the accident. The court nonetheless submitted the issue of negligence of Jake’s Crew to the jury, which found the injury to have resulted from the combined negligence of Jake’s Crew and Arrow. Because of this finding, the court held that Jake’s Crew could not recover, as authorized by what is now K.S.A. 1977 Supp. 44-504(b), the amounts it had paid plaintiff under workmen’s compensation and further that the judgment against Arrow should be reduced by that amount.
The Supreme Court reversed, holding that Jake’s Crew was properly dismissed and that the trial court had erred in submitting the issue of its negligence.to the jury. There it was said:
“ . . . Further, section 44-501 fixes the liability of an employer to his employee where both parties are under the Act. The liability is in no sense founded upon tort, but is based upon the contract of employment and the statute, the terms of which are embodied in the contract. In short, the liability of an employer under 44-501 to provide compensation and medical aid to an employee injured in the course of his employment supersedes the employer’s common-law liability for negligence ....
“Moreover, when an action is brought in the name of the employee against a negligent third party pursuant to 44-504, compensation proceedings have no place in the trial of such an action, and the extent that the employer may participate therein is to intervene to protect and enforce his monetary lien for compensation and medical aid provided the employee to the date of recovery. While such an action requires adjustment between the employer and the employee in the event of recovery, neither the employer nor his insurance carrier may actively participate in the trial of such an action . . . (201 Kan. at 91-92; emphasis added.)
Among other things, it was concluded:
“ . . . Jake’s Crew’s liability to the plaintiff was statutory and contractual, while Arrow’s liability to him was based upon negligence — tort liability — hence, Jake’s Crew sustained no liability in common with Arrow and under no circumstances would it be liable for contribution . . . (201 Kan. at 93.)
The court did not discuss indemnity and no issue of the active-passive theory of indemnity was presented to it.
As noted in Houk, the majority rule is that there can be no contribution between the third party and the employer because there is no common liability. However, it is said to be the majority rule that indemnity can be had by the third party against the employer when the employer has breached an independent duty owed the third party. See generally, 2A Larson, The Law of Workmen’s Compensation, §§ 76.21, 76.30 (1976).
That position was taken by Judge O’Connor in Beach v. M & N Modem Hydraulic Press Co., 428 F. Supp. 956 (D. Kan. 1977). In that case, the third party sought indemnity simply on a theory that its negligence had been less than that of the employer. Since such a theory looks only to the degree of the employer’s negligence involved in the employee’s injury, it necessarily involves violation by the employer of a legal duty owed to the employee. Any liability of the employer for such a breach is, of course, superseded by the Act. Accordingly, the third-party complaint against the employer was dismissed. The federal court stated:
“We conclude that in order to state a cause of action against Kuhlman [the employer], M & N [the third party] must allege the existence and violation of an independent legal duty owed by Kuhlman to M & N . . . (428 F. Supp. at 963.)
As no such allegation was there made, it was not necessary for the federal court to further define the nature of such an “independent legal duty.”
In this case, Noble argues that an actively negligent tortfeasor’s common law responsibility to indemnify a passively negligent tortfeasor is such an “independent legal duty.” We do not agree.
Although the third-party petition does not further define the claimed obligation from Chemico to Noble, we believe it is obvious that the alleged entitlement to indemnity is not based on an independent legal duty at all, but arises solely from the injuries sustained by the plaintiff. As alleged in the third-party petition, Chemico owed no duty to Noble except such as might exist by reason of those injuries and, if Chemico is liable to Noble on any theory of negligence, such must necessarily have been occasioned by Chemico’s negligence to its employee. K.S.A. 44-501 clearly eliminates the employer’s liability for such negligence. Houk v. Arrow Drilling Co., supra.
The majority rule denies indemnity unless based on an independent contractual duty or a special legal relationship “other than arising out of participation in a joint wrong to an injured party.” See Peak Drilling Co. v. Halliburton Oil Well Cement Co., 215 F.2d 368, 371 (10th Cir. 1954). There, the court noted with approval the case of Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768 (1953), which explicitly rejected indemnity to the third party by the employer based on a theory of active-passive negligence. For later cases, see 2A Larson, The Law of Workmen’s Compensation, § 76.44 (1976). We note the conflict of authority as to whether contractual indemnity is limited to express contracts or may be based on implied contract. As there is no allegation here of contractual indemnity and as Noble in its brief has expressly limited its appeal to the active-passive negligence theory, we need not decide that issue.
In support of its position, Noble cites some of the cases which express the minority view allowing indemnity based on the active-passive theory. Among those is Trail Builders Supply Company v. Reagan, 235 So. 2d 482 (Fla. 1970), which holds:
“ . . . A passive tortfeasor’s direct common law right of indemnity against the active tortfeasor is not mentioned [in the Florida Workmen’s Compensation Act]. If it had been the legislative intent to abolish such right, it should have been spelled out with specificity and particularity . . . (235 So. 2d at 485.)
In like vein, Noble argues that K.S.A. 44-501 does not expressly mention the common law right of a passively negligent tortfeasor to indemnity from an actively negligent tortfeasor, and should not be read as abrogating that right. Insofar as this presents a separate argument from that of an “independent duty in tort,” we find it also unpersuasive. As we have stated, indemnity based on active-passive negligence in substance looks to the negligence of the employer. K.S.A. 44-501 expressly precludes any liability of the employer for that negligence when the employer and employee are covered by the Act. As such, it expressly abrogates a passively negligent third party’s common law right to indemnity from an actively negligent employer.
As a final matter, we note that the trial court dismissed the third-party action against Chemico:
. . . [E]xcept that [it] is to remain a party to this action in accordance with the provisions of K.S.A. 60-258a for the purpose of assessment, determination and comparison of the negligence attributable to the respective parties, yet not for the purpose of any assessment of liability on the part of said defendant [Chemico].”
By affirming the dismissal of the third-party action, we have affirmed the holding of the trial court that Chemico is not liable under the allegations of the third-party petition. Because of the limited nature of this appeal, we are not concerned with and express no opinion as to how the percentage of negligence attributable to Chemico by the jury, if any, is to be applied in determining the plaintiff’s right to recover or the amount of damages, if any, for which Noble will be liable.
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Parks, J.:
Dawson and Wilma Penn, the biological parents of ten-year-old Kathleen (Kathy) Penn, are appealing a district court order wherein they were adjudged unfit parents and their parental rights permanently severed. We affirm.
Since the Penns stipulated in May 1976 to the finding that Kathy was dependent and neglected, no question is being raised in that regard. Custody has been given to the Department of Social and Rehabilitation Services (SRS) and Kathy now lives in a licensed foster home.
Kathy has been experiencing emotional and developmental problems for a number of years. She had difficulty completing kindergarten and was enrolled in it for two years. Although school personnel referred the family for a mental health evaluation, the parents did not initially follow through. During the first grade Kathy again became the subject of the school staff’s concern because her emotional problems had become more pronounced. Following their concerted efforts, Kathy was eventually evaluated at a mental health center and immediately admitted as an inpatient at the Rainbow Mental Health Center.
While living at home, Kathy was a very disturbed child. Some of the emotional problems she was experiencing were enuresis and encopresis (incontinence of the bladder and of the bowels, not due to an organic cause), extreme withdrawal, hysterical outbursts and very poor speech. Her school attendance was poor and she had a great deficiency in the academic subjects as well as in intellectual and social skills. She also suffered from a total inability to relate to others and at the time she was admitted to the Rainbow unit she was functioning at the intellectual level of a three-year-old.
Since being removed from the home Kathy has made great strides, both while being cared for as an inpatient and while living in the foster home. Experts who testified during the hearing included two psychologists, two social workers and Kathy’s special education teacher. They all agree that the change in Kathy has been phenomenal.
During the fourteen months that the severance question was under advisement, the Penns did make regular supervised visits. Kathy, however, unfortunately regressed during these visits which were marked by a high degree of anxiety in Kathy and a complete parent/child role reversal. The first indication that the Penns were responsible for Kathy’s problems was perceived during a quarantine following an outbreak of chicken pox at the children’s cottage at Rainbow. Though Kathy had been going home for weekend visits, during the quarantine visits were not possible. The result was a total changeover in Kathy’s approach to those around her. Previously she had stood apart from the group with her fingers in her mouth, appearing terrified. She would shake or tremble when approached by any adult staff member. Other possible factors in the home, such as noxious gas leakage, were explored and discounted as being the cause of Kathy’s problems. The inescapable conclusion is that the Penns were strong detrimental influences on Kathy’s emotional health.
Efforts to help the Penns improve their parenting skills and alter their manner of relating to Kathy have been futile and the prognosis for improvement in this area is poor. One of the problems is that the Penns themselves do not have the emotional stability to meet Kathy’s needs. They deny that she has any problems and even after therapy lack insight into how Kathy’s behaviors developed and how they might deal with them in the future. Although the professionals who have successfully treated Kathy testified during the hearing that it is mandatory for Kathy to have a consistent, structured environment if she is to attain normal growth and development, the Penns resist changing their method of child rearing which is too unstructured, nondirective and passive for a child of Kathy’s nervous, insecure disposition. Even when compelled by external agencies the Penns find it extremely difficult, if not impossible, to make demands upon Kathy. They persist in believing that all they need to do is to take Kathy back home and love her and everything will be all right.
It is difficult to envision a home situation which would be more detrimental to a child with Kathy’s particular needs. In so saying, we do not imply that we will disturb a normal family relation merely because others may be better able to give the child greater comforts, wider education or the promise of a larger inheritance. See In re Vallimont, 182 Kan. 334, Syl. ¶ 3, 321 P.2d 190 (1958). Nor do we discount the value of love and affection, which the Penns seem willing to give Kathy within the limits of their capacity. However, love alone is not sufficient. Lennon v. State, 193 Kan. 685, 690-691, 396 P.2d 290 (1964). The psychological and emotional health of a child is no less a concern of this court than is the physical care.
In reviewing the sufficiency of evidence to support a finding of unfitness, the evidence is viewed from the aspect most favorable to the findings made by the trial court. Cf., In re Bachelor, 211 Kan. 879, 880, 508 P.2d 862 (1973); In re Hambelton, 2 Kan. App. 2d 68, 574 P.2d 982 (1978). A parent will not be permanently deprived of parental rights with respect to a dependent and neglected child unless there is clear and convincing evidence. In re Nelson, 216 Kan. 271, 276, 531 P.2d 48 (1975).
The word “unfit” means in general, unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. In re Armentrout, 207 Kan. 366, Syl. ¶ 3, 485 P.2d 183 (1971). So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from any other defects. In re Vallimont, 182 Kan. at 340.
Inherent mental and emotional incapacity to perform parental obligations can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child. See K.S.A. 1977 Supp. 38-824(c); In re Johnson, 214 Kan. 780, 522 P.2d 330 (1974); In re Bachelor, 211 Kan. at 883.
The testimony of witnesses need not be labored. Suffice it to say that the Penns have a regrettable incapacity to meet the needs of this particular child, with sad results. To return Kathy to a situation so destructive to her emotional well-being would negate her courageous growth toward heálthy development and might very well cause a regression from which she would not again emerge. Nor can any benefit be seed in retaining Kathy forever in a dependent-neglected-child status, living in the limbo of foster care with parental rights intact.- We conclude that there is clear and convincing evidence to support the trial court’s finding of unfitness and its order of parental severance.
Judgment is affirmed. | [
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PARKS, J.:
This action arises from an auto accident in Wyandotte County, Kansas, involving the plaintiff Henry Carter and the defendant Robert C. Kretschmer. The accident occurred on March 8, 1974. Plaintiff filed suit on April 4, 1975. Service was obtained on April 5, 1975, but the action was later dismissed on May 14, 1976, for want of prosecution.
Pursuant to K.S.A. 60-518, plaintiff filed a new action on August 30,1976. The sheriff of Wyandotte County filed his return of service on September 2, 1976, which indicated that the defendant had moved from the Kansas address where he previously had been served on April 5, 1975.
Forty days after the petition and summons were returned unserved, plaintiff mailed a letter to the defendant’s last known address. His letter was returned showing a forwarding address in Knox County, Tennessee. An alias summons was issued to the sheriff of that county on October 13, 1976, but service was not finally effected until December 9, 1976.
Defendant subsequently moved to dismiss the second action on the ground that it was filed out of time. The trial court sustained his motion on May 10, 1977, and plaintiff appeals.
The sole issue is whether as a matter of law plaintiff’s second action was barred by the statute of limitations.
Plaintiff makes no claim that the defendant absconded or concealed himself in order to avoid service of process, but argues that when defendant departed from the state before the filing of the second petition on August 30, 1976, the statute was tolled. Thus, the time of his absence should not be counted as part of the period of limitation. As authority for his position, plaintiff relies on K.S.A. 60-517, which reads in pertinent part:
“[A]nd if after the cause of action accrues he or she depart from the state . . . the time of the absence . . . shall not be computed as any part of the period within which the action must be brought. . . .”
Resolution of the issue raised requires consideration of our statutes relating to service of process upon nonresident motorists. K.S.A. 8-401 and 8-402 designate the secretary of state as the agent of nonresident motorists for the purpose of receiving process arising out of accidents occurring in this state. Not only did defendant have an agent within the state upon whom process could have been served but he himself could have been served personally under the long arm statute. See Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964); 17 A.L.R.2d 502-518 and cases cited therein; K.S.A. 60-308(b)(2). By exercise of due diligence plaintiff should have known the defendant’s whereabouts as early as September, 1976, and did know his whereabouts at all times after October 13, 1976. Carter v. Zahn, 37 F.R.D. 556 (D. Kan. 1965). The defendant, therefore, was not “absent” from the state in the sense contemplated by K.S.A. 60-517; that is, beyond the reach of process from our courts. Snyder v. Clune, supra.
While not uniform, the majority of cases from other jurisdictions bearing upon the question have determined that in auto accident cases, a tolling provision will not operate to suspend a statute of limitations when substituted service is available. See Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).
Although the long arm statute (K.S.A. 60-308[b][2]) was utilized by the plaintiff, service was not effected within 90 days after the filing of the petition; hence the action was not commenced until the process was actually served on December 9, 1976. Because the statute had expired prior to the commencement of this action, timely service of process was not obtained. K.S.A. 60-203 and 60-518.
For these reasons, we hold that the time for filing a new action under K.S.A. 60-518 was not tolled by K.S.A. 60-517.
Judgment is affirmed. | [
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Meyer, J.:
Appellant, William Allen Ekis (defendant), was convicted of aggravated battery, in violation of K.S.A. 21-3414. Defendant appeals from the conviction and from denial of his motion for a new trial.
Defendant’s first stated issue is that the trial court committed reversible error in failing to have the requisite number of jurors called, examined, and passed for cause as required by K.S.A. 22-3411. K.S.A. 22-3411 reads as follows:
“In all felony trials, upon the request of either the prosecution or the defendant, the court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required, so that there will remain sufficient jurors, after the number of peremptory challenges allowed by law for the case on trial shall have been exhausted, to enable the court to cause twelve jurors to be sworn to try the case.”
Under the provisions of K.S.A. 22-3412 (aggravated battery being a Class C felony), defendant was entitled to six peremptory challenges. K.S.A. 22-3412 also provides that the prosecution shall be allowed the same number of peremptory challenges as all the defendants. In this case, however, an insufficient number of veniremen appeared, and the state agreed to waive four of its six peremptory challenges. Appellant was permitted six peremptory challenges. He argues, however, that K.S.A. 22-3411, read with K.S.A. 22-3412, entitled him to a 24-juror array (passed for cause) from which to make his peremptory challenges. K.S.A. 22-3411 does not specifically state that 24 (or for that matter, any other number) must be qualified before the exercise of the peremptory challenges. To us it merely means that the trial court should qualify a sufficient number of jurors so that each party could exercise the peremptory challenges as indicated by K.S.A. 22-3412. We have noted the authority given by appellant but do not think it supports his argument; the cases cited turned on issues other than the proposition claimed by appellant.
While we are unable to locate any cases in this jurisdiction which are directly in point, the general rule appears contrary to appellant’s contention:
“As a general rule a party or an accused cannot insist upon the attendance of all the veniremen directed to be summoned, nor demand the presence of the maximum number of jurors provided for by statute to be drawn or summoned. Accordingly, it has been held that it is proper to proceed without absent veniremen for whom attachments have been issued. As a general rule, although there is some authority to the contrary, a party or an accused is not entitled, in the absence of statute, to any particular number of the jury panel at the beginning of a trial. Underlying this rule is the fundamental principle that a party or an accused has no vested right to any particular juror or jurors; all that he can insist on is an impartial jury of the requisite number in his own case and, at the most, a substantial compliance with the statutes governing the selecting and summoning of jurors.” 47 Am. Jur. 2d, Jury § 192, pp. 782-783 (1969).
An appellate court should disregard purely technical errors so long as they do not affect the substantial rights of the parties. The manner of the selection of the jury, in the instant case, did not deprive defendant of a fair trial by an impartial jury. We find defendant’s first assignment of error is without merit.
Defendant claims that because one of the jurors was a client of the prosecutor, defendant’s challenge for cause should have been sustained by the court. The record of the voir dire shows that the challenged juror owned a corporation with her husband. The juror stated that Mr. McCurdy was attorney for the family cor poration. When asked whether she considered the prosecutor to be her attorney, the juror again responded, “for the business.” In response to questions by the court, she stated that such relationship with Mr. McCurdy would not affect her being a fair and impartial juror in the case. We note that the juror was not one of those persons contemplated in K.S.A. 22-3410(¿>), since she was not a client of the defendant or a person alleged to have been injured by the crime charged or the person on whose complaint the prosecution was instituted. Furthermore, in the instant case, although the county attorney, Michael F. McCurdy, signed the complaint, the case was tried by Mr. McLane.
Jurors’ qualifications are within the trial court’s discretion. State v. Carpenter, 215 Kan. 573, 577, 527 P.2d 1333 (1974), held:
“It is first the trial court which must be satisfied that the challenged jurors are free from bias and prejudice. The trial court’s decision so finding will not be disturbed on appeal unless disqualification appears as a matter of law or abuse of discretion has been shown which we cannot find in this case.”
It appearing in the instant case that the trial court satisfied itself by questioning the woman personally, we find that retention of this juror was within the sound discretion of the trial court. See In re Estate of Minney, 216 Kan. 178, 531 P.2d 52 (1975),
Defendant also contends that the trial court committed reversible error in overruling his challenges for cause. He complains that certain jurors refused to acknowledge they would give the defendant the presumption of innocence. Because of the seriousness of this contention, we have studied the record of the voir dire thoroughly, and conclude that most of the responses complained of were answers to defendant’s improper hypothetical questions. The general trend of several of these questions was defendant’s attempt to elicit response from the jurors as to how they would vote at that time. Subsequent questions directed to various jurors both by the defendant and by the court convinces us that all the jurors complained of considered the defendant to be innocent until proven guilty, except for the juror who was excused for cause by the court.
The selection of jurors is within the discretion of the trial court, and such discretion will not be reversed on appeal absent a showing of abuse of discretion. See State v. Sagebiel, 206 Kan. 482, 480 P.2d 44 (1971). We conclude there was no abuse of discretion by the trial court.
Defendant complains that the trial court erred in overruling his motion for new trial because of withheld exculpatory evidence. The state claims to have opened its entire file to defendant some months before trial, although it is unclear whether the file contained the evidence in question. The evidence to which defendant objects consisted of reports from the KBI laboratory concerning gunpowder residue on defendant’s hands and fingerprints on certain shell casings. The defendant may not have known, prior to trial, about the examination of shell casings for fingerprints, but defendant was certainly aware that test swabs of his hands had been taken. Furthermore, defendant admits that he had the reports the morning of the trial. Evidence is not suppressed if defendant or his counsel has knowledge of exculpatory evidence either before or during trial. See State v. Walker, 221 Kan. 381, 383, 559 P.2d 381 (1977), in which the court states: “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.”
We also note that the defendant, neither at the time the exhibits were handed him on the morning of trial nor at the time of their introduction into evidence, objected to the evidence or requested a continuance. Defendant stated in his brief, “In view of the trial court’s determination to get the trial over with, a request for a continuance was a futile gesture.”
We cannot assume that a motion for continuance would have been a futile gesture when defendant did not make such a motion. This is a bare assumption of defendant not borne out by the record, and defendant’s allegation of error is without merit.
Finally, defendant argues there was insufficient evidence to support a verdict of guilty. We conclude there was ample evidence presented to the jury in this case to support their finding of guilt. The degree of evidence necessary to establish a motion for directed verdict was set forth in State v. Adair, 215 Kan. 54, 56, 523 P.2d 360 (1974):
“Where the sufficiency of evidence to sustain a conviction is raised on appeal the issue is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in a light most favorable to the state (State v. Platz, 214 Kan. 74, 519 P.2d 1097).”
See also State v. Duncan, 221 Kan. 714, 562 P.2d 84 (1977).
We conclude that the defendant received a fair trial.
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Meyer, J.:
On June 15, 1975, one Bradley Holm picked up plaintiff at the Sonic Drive-In in McPherson, Kansas, to drive around awhile and then to take plaintiff home. Plaintiff asked to drive the car and Bradley Holm permitted her to do so. Plaintiff was 14 years of age at the time and had no driver’s license. When plaintiff appeared to have trouble with the clutch, Bradley Holm shifted gears for her while she steered the car and operated the accelerator. As plaintiff turned a corner, she collided with a parked car, forcing it against a second parked car. All three cars were damaged.
Although the car which plaintiff was driving was titled in the name of Arlie Holm (Bradley Holm’s father) only, it is undisputed that Bradley Holm paid for the car, that he paid for its maintenance and upkeep, and that he had the unrestricted use of it.
The owners of the parked cars and their insurers claimed damages from plaintiff, and plaintiff in turn demanded coverage from both her father’s insurance carrier, Farmers Insurance Company, Inc. (hereinafter referred to as “Farmers”), and from Arlie Holm’s insurance carrier, Equity Mutual Insurance Company (hereinafter referred to as “Equity”). Both insurance carriers denied coverage. In November, 1975, the owners of one of the damaged parked cars, the Hobsons, sued the plaintiff. Neither Farmers nor Equity appeared to defend plaintiff in this case. However, on May 7, 1976, Equity paid the Hobsons (the owners of one of the damaged parked cars) for their loss, and on June 21, 1976, they paid the Hasletts for the damage to their parked car. On May 18, 1976, the Hobsons dismissed their action against the Holms; and although suit was never filed by the Hasletts, their damages, as aforesaid, have now been paid and the statute of limitations has now run.
Meanwhile, on December 3, 1975, plaintiff filed her action against both Equity and Farmers, praying for statutory attorney fees, damages for mental anguish and for punitive damages.
Both Farmers and Equity filed motions for summary judgment, both of which were sustained by the trial court on November 5, 1976 (journal entry filed of record on December 3, 1976); hence this appeal.
Plaintiff claims the following as error by the trial court:
1. In granting the motions of the defendants for a summary judgment inasmuch as there are genuine issues as to material facts;
2. In making its findings of fact and conclusions of law on the defendants’ motions for summary judgment as reflected in the journal entry of judgment of November 5, 1976;
3. In having no basis in fact or in law for the court’s decision of November 5, 1976; and,
4. In failing to consider and to differentiate between attorney fees for the defense of the plaintiff under the insurance policies and the attorney fees incurred in establishing coverage in this action.
Equity alleges:
1. That it acted in good faith in denying plaintiff’s request for coverage, precluding any claim for attorney fees; and,
2. That as a matter of law plaintiff is precluded from recovering punitive damages or damages for mental anguish.
Farmers alleges it exercised good faith in this litigation for the following assigned reasons:
1. Equity had primary coverage; or,
2. If Equity did not have primary coverage, Farmers did not afford coverage; or,
3. Farmers acted in good faith in interpreting the omnibus clauses of the respective policies to require the permission of Arlie Holm for Patricia Frickey to operate the automobile.
The respective omnibus clauses of the insurance companies are as follows:
Equity’s policy under Part I — LIABILITY reads:
“Persons Insured: The following are insureds . . .
“(a) with respect to the owned automobile,
(1) the named insured or any resident of the same household,
(2) any other person using such automobile with the permission of the named insured provided his actual operation ... is within the scope of such permission . . .”
Farmer’s policy, Part I — Liability Insurance, reads as follows:
“DEFINITION OF INSURED
“The unqualified word ‘insured’ includes
“(b) with respect to a non-owned automobile,
(1) the named insured or a relative, and
(2) any other person or organization not owning or hiring such automobile if legally responsible for its use by the named insured or a relative, but only in the event such named insured or relative is legally liable for the occurrence; provided the actual use of the non-owned automobile by the persons in (1) and (2) above is with the permission of the owner.”
We turn first to plaintiff’s argument that there are genuine issues as to material facts. In this regard the court notes there is no disagreement as to the following facts: that Arlie Holm was the title holder of the car in question, that he is the named insured in the Equity policy, that his son Bradley paid for the car and maintained it, that Bradley had the unrestricted use of the car, and that he permitted plaintiff (a 14-year-old girl with no driver’s license) to operate the car. Nor is there any dispute as to the fact plaintiff was driving the car with Bradley’s assistance in shifting the gears. These are the undisputed material facts. It is also uncontroverted that Equity and Farmers at all times denied coverage. The denial was based on Equity’s original investigation (soon after the accident) which disclosed to both insurance companies that the situation set out above existed. Nor are the dates when Equity made payment disputed.
Appellant, in her argument, alleges that the following facts are in dispute: (1) ownership, (2) bad faith investigation by Equity and none by Farmers, (3) whether others were permitted to drive the car prior to this case, (4) that plaintiff was not driving the car alone, and (5) that there was a delay on the part of Equity in paying the Hasletts and Hobsons. It should be noted that the facts upon which ownership could be determined are undisputed, that the manner of investigation which Equity performed is not disputed, nor is the fact that Farmers relied upon Equity’s investigation disputed. The fact that one other person was permitted to drive the car prior to the incident giving rise to this case is not disputed, and that plaintiff was not driving the car alone is not disputed. It should be noted that regarding each of appellant’s alleged disputed facts, appellant is arguing conclusions of law. Appellant is in effect attempting, in the foregoing four situations, to convince this court that the facts shown give rise to a disputed legal issue. This does not, however, constitute a dispute as to the facts involved. As to the fifth contention of disputed fact argued by appellant, which alleged a six-month delay in Equity’s paying of the claims: there is no dispute as to the dates upon which Equity made payment. Appellant is again attempting to get this court to hold that such delay is a disputed fact. It is not. In reality what appellant would have us decide is a conclusion of law based upon such facts. Moreover, Equity alleges, and this court believes, that the payments of the Haslett and Hobson claims were made because of Bradley Holm’s negligence in permitting appellant to operate the car.
From the foregoing two paragraphs, it is clear that all of the material facts in this case were before the trial court, and there is no ground for reversing the trial court as to the summary judgments on a claim of disputed facts. The trial court had the material facts before it and did not err in reaching its conclusions of law based on such facts; therefore, the first three errors claimed by appellant are without merit.
As to appellant’s claim of error relative to damages in the way of attorney fees, it seems clear to this court that the defendants acted in good faith in denying coverage to appellant for her defense of the original action. For them to incur liability for attorney fees, appellant must prove the insurance companies acted in bad faith. This appellant failed to do, and therefore the trial court was correct in denying attorney fees. See Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 794, 457 P.2d 34, where the court states:
“. . . A good faith legal controversy as to policy interpretation existed, being one of first impression in this jurisdiction . . . We think the defendant has not been unreasonable in its position, though mistaken, and we cannot say it refused without just cause or excuse to pay the full amount of the loss as now determined. Hence we hold attorney fees are not allowable here.”
See also Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P.2d 756, and Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 452, 517 P.2d 173. Moreover, attorney fees may not be taxed as costs unless authorized by a statute [K.S.A. 60-2003(6)].
Likewise, appellant is not entitled to attorney fees under K.S.A. 40-256. First, that statute applies only when the insurer refuses to pay a judgment rendered against the plaintiff. Second, as a predicate for liability of the insurance carrier for attorney fees, the statute requires that such carrier “. . . has refused without just cause or excuse to pay the full amount of such loss.” It is the opinion of this court that the insurance carriers in this case acted in good faith and that they did not decline coverage “without just cause.”
Appellant cites as authority Jones v. Smith, 1 Kan. App. 2d 331, 564 P.2d 574, where this court held the insurer liable for the actions of a second permittee. This case is distinguishable. In the Jones case the father (the insured) permitted his daughter to retain possession despite the fact he knew of her past violations of his instructions. Additionally, the trial court found that the driver had the implied consent and permission of the insured, and this court on appeal held:
“. . . On appellate review, this court accepts as true the evidence and all inferences to be drawn therefrom which supports or tends to support the findings of the trial court . . .” (p. 336).
As to appellant’s claim for punitive damages, it is clear that such damages are not recoverable for breach of contract in the absence of an independent tort connected therewith.
“As a general rule, damages for breach of contract are limited to pecuniary loss sustained and the breach of contract alone does not form a basis for recovery of punitive damages.” (Hess v. Jarboe, 201 Kan. 705, 443 P.2d 294 [Syl. 1].)
Also, “[a] party may recover punitive damages [for breach of contract] when some independent tort results in additional injury and such tortious act indicates malice, fraud or wanton disregard for the rights of others.” (Hess v. Jarboe, supra, [Syl. 2].) See also Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 522 P.2d 438.
We turn now to plaintiff’s claim for damages due to mental suffering. To recover for mental suffering, plaintiff would have to prove that the actions of the defendant insurance companies in this case were wanton or reckless. See Restatement, Contracts § 341, where it is stated:
“In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm . . .” (p. 559)
See also Henry Morrison Flagler Museum v. Lee, 268 So. 2d 434 (Fla. App. 1972), and Am. Jur. 2d, Damages § 196, p. 276.
It should be noted that in Kansas the question of insurance coverage of a second permittee who is 14 years of age, unlicensed, and an incompetent driver has not been settled. Bad faith should not be attributed to insurance carriers who do not pay under such situations.
It is clear to this court that damages for mental suffering, for punitive damages, and for attorney fees are not recoverable by the appellant for the reasons set out above.
The judgment of the trial court in this case in granting summary judgment in favor of both insurance companies was correct, and same is affirmed. | [
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Foth, C.J.:
The issue presented in this appeal is whether, in the absence of any clear legislative direction one way or the other, a state agency must conform its land use to local zoning regulations. It is an issue which has not been squarely answered by the courts of this state.
The agency involved here is the state forestry, fish and game commission. In 1975 it purchased two lots in the middle of a twenty-three lot subdivision near Manhattan, Kansas, which had been zoned for single family residences. The commission intended to use the land for a public parking lot, complete with toilet facilities, for the convenience of its patrons using a fishing and recreation facility on the adjacent Big Blue River.
The plaintiffs own and reside on fourteen of the twenty-one other lots in the subdivision. They brought this action to enjoin the commission from its proposed use of its land, alleging that such use would violate both Riley county zoning regulations and certain restrictive covenants governing the subdivision. After a hearing, and upon the parties’ stipulation that the commission’s proposed use would violate the zoning regulations, the trial court temporarily enjoined the use. It further ordered that the injunction would be made permanent unless the commission promptly perfected an appeal or applied for rezoning. Rather than seek rezoning the commission elected to take this appeal.
In this court, as in the court below, the commission argues that it is exempt from local zoning regulations for two reasons. First it says that as an agency of the state itself, performing a governmental function, it is immune from regulation by a mere political subdivision in the absence of a legislative declaration to the contrary. Second, it relies on its possession of the power of eminent domain as indicating a legislative intent that its use of land not be subject to control by local authorities.
A concise review of the terms in which courts have traditionally analyzed conflicts between governmental agencies over land use regulations is found in City of Temple Terrace v. Hillsborough Ass’n, Etc., 322 So. 2d 571 (Fla. App. 1975), affirmed on opinion below, Hillsborough Ass’n, Etc. v. City of Temple Terrace, 332 So. 2d 610 (Fla. 1976). The Florida Court of Appeals there noted:
... In deciding this type of case, the courts have used varying tests. One approach utilized by a number of courts is to rule in favor of the superior sovereign. Thus, where immunity from a local zoning ordinance is claimed by an agency occupying a superior position in the governmental hierarchy, it is presumed that immunity was intended in the absence of express statutory language to the contrary. E.g., Aviation Services, Inc. v. Board of Adjustment, 1956, 20 N. J. 275, 119 A.2d 761. A second test frequently employed is to determine whether the institutional use proposed for the land is ‘governmental’ or ‘proprietary’ in nature. If the political unit is found to be performing a governmental function, it is immune from the conflicting zoning ordinance. E.g., City of Scottsdale v. Municipal Court, 1962, 90 Ariz. 393, 368 P.2d 637. On the other hand, when the use is considered proprietary, the zoning ordinance prevails, E.g., Taber v. City of Benton Harbor, 1937, 280 Mich. 522, 274 N. W. 324. Where the power of eminent domain has been granted to the governmental unit seeking immunity from local zoning, some courts have concluded that this conclusively demonstrates the unit’s superiority where its proposed use conflicts with zoning regulations. E.g., Mayor of Savannah v. Collins, 1954, 211 Ga. 191, 84 S.E.2d 454. Other cases are controlled by explicit statutory provisions dealing with the question of whether the operation of a particular governmental unit is subject to local zoning. E.g., Mogilner v. Metropolitan Plan Commission, 1957, 236 Ind. 298, 140 N.E.2d 220.
“When the governmental unit which seeks to circumvent a zoning ordinance is an arm of the state, the application of any of the foregoing tests has generally resulted in a judgment permitting the proposed use. This has accounted for statements of hornbook law to the effect that a state agency authorized to carry out a function of the state is not bound by local zoning regulations. 2 Anderson, American Law of Zoning § 9.06 (1968); 8 McQuillin, Municipal Corporations § 25.15 (1965).” (p. 574.)
Additional cases reflecting the traditional views are collected in Anno: Zoning — Governmental Projects, 61 A.L.R.2d 970. Cases dealing specifically with waste disposal facilities may be found in Anno: Government Entities — Zoning Regulations, 59 A.L.R.3d 1244.
There being no “explicit statutory provision” applicable here, the commission relies on the other three common tests: in its first argument it combines the “superior sovereign” with the “governmental-proprietary” test; in its second it asserts the “eminent domain” test. All have been subject to scholarly criticism as too simplistic, avoiding the kind of analysis needed for rational resolution of the complex issues posed by land use problems in a modern, urban-oriented society. See, Comment, “The Applicability of Zoning Ordinances to Governmental Land Use,” 39 Tex. L. Rev. 316 (1961); Note, “Municipal Power to Regulate Building Construction and Land Use by Other State Agencies,” 49 Minn. L. Rev. 284 (1964); Comment, “The Inapplicability of Municipal Zoning Ordinances to Governmental Land Uses,” 19 Syracuse L. Rev. 698 (1968); Note, “Governmental Immunity From Local Zoning Ordinances,” 84 Harv. L. Rev. 869 (1971).
Recent judicial pronouncements are increasingly in the same vein. Thus in State v. Kopp, 330 S.W.2d 882 (Mo. 1960), the question was whether a city had to comply with county zoning ordinances in building a sewage disposal plant outside the city limits. The court viewed the question as one of legislative intent, “not to be resolved simply by applying the ‘governmental vs. proprietary’ test.” (p. 887.) The court went on to find that the grant of eminent domain power to the city evinced a legislative intent that it not be subject to county zoning. Just two years later, however, the same court, in St. Louis County v. City of Manchester, 360 S.W.2d 638 (Mo. 1962), found that a city’s possession of eminent domain power did not grant automatic immunity from the county’s zoning power in locating its disposal plant. Rather, the court sought to reconcile the two powers and held that the eminent domain statutes “do not purport to give the city the right to select the exact location in St. Louis County, and the public interest is best served in requiring it to be done in accordance with the zoning laws.” (p. 642.) Missouri thus has abandoned as controlling both the governmental-proprietary and the eminent domain tests, looking instead to legislative intent and the public interest.
The Missouri court relied in part on City of Richmond v. County Board, 199 Va. 679, 101 S.E.2d 641 (1958), where a statute authorizing the city to establish a jail outside the city limits was held not to authorize a location in violation of the county’s zoning regulation. Rather than rely on any automatic test, and specifically rejecting the “governmental-proprietary” test, the Virginia court also sought to reconcile the two enactments and give each full play. It found no conflict, saying:
“Nor do we find anything in the legislative history of [the zoning enabling act] which supports the claim of the city that this section exempts it from compliance with the zoning ordinance of the county. The ordinance of the county does not take away, impair, or amend the right of the city to establish its jail beyond the limits of the city. The city may establish its jail or jail farm in the district of the county within which such institutions are permissible, or it may follow the procedure prescribed in the ordinance of the county, and request an amendment of the ordinance to permit the use of its land for the desired purpose. From arbitrary or unreasonable action by zoning officers of the county, it may apply for judicial review.” (pp. 686-87.)
Pennsylvania has employed a similar analysis. In Wilkinsburg-Penn JT. W. A. v. Churchill B., 417 Pa. 93, 207 A.2d 905 (1965), a municipal water authority sought to build a water tower in violation of borough zoning restrictions. When the borough refused a variance the authority brought suit to enjoin the borough from interfering with the proposed structure. The court viewed the question as one of statutory construction; the fact that the authority was given the power to determine its services “exclusively” did not make it immune from the zoning power of the borough. “The initial service decisions remain with the Authority, but they must be made within the framework of other applicable. laws, unless the Legislature directs otherwise.” (p. 101.) The two grants of authority — to build and to zone — could be reconciled. Should there be an improper exercise of the zoning power as to the authority’s land use, the court said, it could be challenged in the same manner as other zoning decisions.
Later, in City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976), the same court decided a zoning dispute between the state’s bureau of corrections and a city over the location of a pre-release center for women convicts. It commenced its analysis by observing:
“Resolving the conflict simply by saying that the ‘state’ agency must prevail because it is exercising the power of the sovereign overlooks that the zoning power the city seeks to exercise is also a sovereign power. Such a resolution ignores the interests the state seeks to promote by legislative grants of powers to municipalities. Interests such as those fostered by comprehensive land use planning statutes are too important not to be recognized as involving exercises of state power.” (p. 180.)
The court resolved the question by again reconciling the grants of authority. The city’s zoning, which would permit pre-release centers in other parts of the city, was held not to be arbitrary. Finding that “suitable alternatives exist to accommodate both the community’s interest in maintaining the integrity of low-density, residential zoning and the needs of the Bureau” (p. 187), the court held that the state agency’s use was subject to the city’s zoning ordinance.
Pennsylvania’s way in this area was indicated by the leading case in the new wave of intergovernmental zoning decisions, Rutgers v. Piluso, 60 N. J. 142, 286 A.2d 697 (1972). There the question was whether Rutgers, the state university, could build student housing units in excess of the maximum number permitted by a township zoning ordinance. The court prefaced its analysis by observing:
“The question of what governmental units or instrumentalities are immune from municipal land use regulations, and to what extent, is not one properly susceptible of absolute or ritualistic answer. Courts have, however, frequently resolved such conflicts in perhaps too simplistic terms and by the use of labels rather than through reasoned adjudication of the critical question of which governmental interest should prevail in the particular relationship or factual situation. . . .” (p. 150.)
After recognizing the three common tests (asserted by the commission here) and reviewing its own prior decisions, the court formulated its own test:
“The rationale which runs through our cases and which we are convinced should furnish the true test of immunity in the first instance, albeit a somewhat nebulous one, is the legislative intent in this regard with respect to the particular agency or function involved. That intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation. All possible factors cannot be abstractly catalogued. The most obvious and common ones include [1] the nature and scope of the instrumentality seeking immunity, [2] the kind of function or land use involved, [3] the extent of the public interest to be served thereby, [4] the effect local land use regulation would have upon the enterprise concerned and [5] the impact upon legitimate local interests. ... In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others. No one, such as the granting or withholding of the power of eminent domain, is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity must be granted even though the local interests may be great. The point is that there is no precise formula or set of criteria which will determine every case mechanically and automatically.” (pp. 152-53. Numbers inserted.)
The court went on to find that the state university performed an essential governmental function for the benefit of all the people of the state, and that the legislature would not intend its growth to be subject to restriction or control by local land use regulation. After observing that the same reasoning would generally be true of all state functions and agencies, the court added the following caveat:
“It is, however, most important to stress that such immunity in any situation is not completely unbridled. Even where it is found to exist, it must not, as this court said in Washington Township v. Village of Ridgewood, supra (26 N. J. at 584-586, 141 A.2d 308), be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests. This rule must apply to the state and its instrumentalities as well as to lesser governmental entities entitled to immunity. For example, it would be arbitrary, if the state proposed to erect an office building in the crowded business district of a city where provision for off-street parking was required, for the state not to make some reasonable provision in that respect. And, at the very least, even if the proposed action of the immune governmental instrumentality does not reach the unreasonable stage for any sufficient reason, the instrumentality ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible. . . .” (pp. 153-54.)
The test applied in Rutgers has come to be known as the
“balancing of interests” test. In Kunimoto v. Kawakami, 56 Haw. 582, 545 P.2d 684 (1976), the state university of Hawaii was permitted to condemn land for a use which would violate Honolulu’s zoning ordinances. The finding of immunity was based on the overriding statewide concern for higher education expressed in the Hawaii constitution and the university’s enabling legislation. The court, however, expressly reserved the question of whether the “balancing of interest” test expounded in Rutgers would apply to other state projects.
In another state university case, City of Newark v. University of Delaware, 304 A.2d 347 (Del. Ch. 1973), the court reached the same result — i.e., the university’s immunity — by expressly following the Rutgers rationale. A legislative intent that the university be immune from local zoning was inferred from the vital role it plays in the state’s public mission, although such immunity would not prevail if the university’s action were shown to be unreasonable or arbitrary in a given instance.
Minnesota adopted a “balancing of interests” test in Town of Oronoco v. City of Rochester, 293 Minn. 468, 197 N.W.2d 426 (1972), at about the same time as and apparently quite independently of the Rutgers decision, which was not cited. In that case the city’s proposed sanitary landfill would violate a township zoning ordinance. The court recognized that under the “general rule” the city would be immune because it possessed eminent domain powers and would be exercising a governmental function. It declined to follow the general rule, saying:
. . However, the trend is to limit such freedom from regulation, a trend which we believe is well within the dictates of the public interest, principally because the pungent realities of urban sprawl and overpopulation have accentuated the need for land-use planning and control that serves as foundation for the exercise of police power in the area of zoning. Consequently, in order to support the principle of enlightened land-use control, we decline to adopt in Minnesota the general rule of governmental exemption from zoning regulation.
“The exigencies of the present matter, however, illustrate the core of wisdom in that general rule and the danger in too readily assuming enlightenment where none in fact may exist in the implementation of a particular local zoning policy. Therefore, we adopt a balancing-of-public-interests test for the resolution of conflicts which arise between the exercise by governmental agencies of their police power and their right of eminent domain. This is preferable to adherence to a less flexible ‘general rule’ based simply on the form of the opposing parties rather than the substance of their conflict.” (p. 471. Footnotes omitted.)
Balancing the;city’s urgent need to replace its present disposal system against the marginal impact on the proposed area for the new facility, the court found immunity should prevail under the facts of that case.
The Florida Court of Appeals, in City of Temple Terrance v. Hillsborough Ass’n, Etc., supra, after describing the traditional tests in the language quoted above, rejected them one by one. It adopted in their stead the Rutgers “balancing of interests” test, justifying its decision by saying:
“The old tests were adopted at a time when state government was much smaller. The myriad of agencies now conducting the functions of the state have necessarily resulted in a diminution of centralized control. The decision of a person administering an outlying function of a state agency with respect to the site where this function should be performed is not necessarily any better than the decision of the local authorities on the subject of land use. The adoption of the balancing of interests test will compel governmental agencies to make more responsible land-use decisions by forcing them to consider the feasibility of other sites for the facility as well as alternative methods of making the use of proposed site less detrimental to the local zoning scheme.
“Our burgeoning population and the rapidly diminishing available land make it all the more important that the use of land be intelligently controlled. This can only be done by a cooperative effort between interested parties who approach their differences with an open mind and with respect for the objectives of the other. When the state legislature is silent on the subject, the governmental unit seeking to use land contrary to applicable zoning regulations should have the burden of proving that the public interests favoring the proposed use outweigh those mitigating against a use not sanctioned by the zoning regulations of the host government.” (322 So.2d at 578-79.)
In adopting the Court of Appeals opinion in that case as its own the Florida Supreme Court noted a further policy consideration:
“An ancillary benefit in resolving intergovernmental disputes results from our adoption of the City’s view. By requiring state agencies to seek local approval for non-conforming uses, an administrative solution is always present in the form of zoning appeals. In contrast, if the state were not required to seek local approval, the city would always be forced to litigate its disagreement, as happened here. It serves the public’s benefit to resolve these controversies in a way which does not mandate the most expensive and least expeditious way of settling intergovernmental disputes.” (Hillsborough Ass’n, Etc. v. City of Temple Terrace, supra at 612, n. 3.)
Finally, among foreign cases, we note Matter of Suntide Inn Motel, 563 P.2d 125 (Okla. 1977), cited to us by the commission at oral argument. It does not support the kind of automatic immunity urged on us by the commission. The issue in that case was whether the state department of corrections was required to have city planning commission approval for the location of a community treatment center. Three justices in the majority found that such approval was not necessary, basically because the state, as the superior sovereign, was not bound by local regulation in the absence of an express legislative declaration. Four justices dissented, urging that the Rutgers balancing test should be adopted, and that under such a test the state agency should seek local approval. The dissenters observed:
“There were, at last official count, 235 state boards, agencies and commissions. It is unrealistic to assume that all ‘state’ demands upon municipal land which these agencies could potentially make, would be for equally important public purposes or that their site selections would always be reasonable.
“Each intergovernmental conflict over land-use will present novel questions regarding the relative interests of the governmental units involved, the reasonableness of the site location, the availability of alternative locations and the adverse consequences which will be suffered by local interests and must be resolved on a case by case basis.” (p. 132. Footnote omitted.)
Two justices were in between. They concurred in the finding of immunity, but only because they thought the result of balancing tipped in favor of the state agency. As to the test to be applied, the writing concurring justice noted:
“ . . . I believe the dissent correctly reflects a more enlightened view of the concept of sovereign immunity. To hold a state is never subject to local zoning restrictions is to emasculate in perpetuum, the very power the state has granted to municipalities, to zone and regulate its orderly growth.” (p. 129.)
Thus of the nine justices participating, six rejected any such automatic test as the “superior sovereign” test, and applied instead a balancing of interests test.
In Kansas, as we noted at the outset, there have been no decisions directly in point. Three, however, deserve mention. In Ruhr v. Kansas City, 142 Kan. 704, 51 P.2d 911 (1935), the board of public utilities erected a water tower in an area zoned for residential use. Neighbors sued for damages, based in part on a violation of the zoning ordinance. The court held that demurrers to the petitions should have been sustained. On the zoning aspect of the case the court noted that the board’s enabling act gave it plenary power to determine where its facilities should be located, and further, that the city was required to enact all ordinances deemed necessary by the board of public utilities to protect its water and electric plants. The case, as we see it, is purely one of statutory construction in which it was found that the applicable statutes gave power to the board, not the city.
Nelson v. City of Emporia, 185 Kan. 161, 341 P.2d 977 (1959), was a suit by landowners to enjoin the city from maintaining a dump in an area alleged to have been zoned by the county. The trial court found and the Supreme Court agreed that the dump site was not in fact within the area zoned by the county. Hence the injunction was properly denied, and the court did not reach or discuss what the situation might have been if county zoning had purported to cover the city’s dump. From the court’s discussion of the city’s justifiable reliance on a zoning map the underlying assumption appears to have been that.the city would have been required to comply if its dump had been located in a zoned area.
Most recently the court decided Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974). That was a suit by neighboring landowners to enjoin the condemnation of land for a power facility because, among other things, the utility had not obtained county rezoning of the land from agricultural to the proposed use. (For the purppse of our analysis the utility, clothed with the delegated power of eminent domain, stands in the same shoes as a state agency.) The court concluded, from an examination of the eminent domain statutes, that rezoning was not a condition precedent to condemnation; on the zoning question that is all that was decided. The court based its conclusion in part on the fact that the utility was required to be the owner of the land before it could apply for rezoning, and obviously wouldn’t need to condemn if it were already the owner. Hence condemnation had to come first, and rezoning second.
In that case it was not suggested by the parties or the court that the mere act of condemnation would obviate the need to rezone, i.e., that the power of eminent domain carried with it immunity from zoning. The Attorney General, as amicus curiae, brought the court’s attention pending legislative land use studies and their potential impact on zoning. He also pointed out the potential conflict between the delegated legislative powers of eminent domain and zoning, without suggesting that the former would automatically control the other. Rather, a legislative solution of the conflict was deemed necessary. The assumption throughout was that rezoning would be required, subject to the usual judicial review for reasonableness. (See discussion at page 233.) The court’s several pages on the zoning question were all devoted to when the rezoning had to occur, not whether, and were based on the express assumption “that there has to be some determination on the zoning question, and no argument has been made that the determination is unnecessary . . . (p. 232.)
In our own analysis we start with the premise that the legislature has not spoken directly on the subject, any more than has our Supreme Court. Under K.S.A. 19-2901, counties are given the power to zone “for the purpose of promoting the public health, safety, morals, comfort, general welfare and conserving the values of property throughout that portion of any county zoned under the terms of this act . . . .” The county zoning board, under K.S.A. 19-2906, has “power to determine, restrict and regulate the area within which trade, industries and recreations may be conducted . . . .” On the other hand, under K.S.A. 32-214, the commission is authorized to acquire land for public forestry, recreational grounds and/or game preserves and “to provide for keeping, maintaining and improving such public forestry, recreational grounds, fish and game preserves; to establish such public forestry, recreational grounds, fish and game preserves at such place or places within this state as shall, in the judgment of the commission, be most suitable to carry out the intents and purposes of this act . . . .” There is nothing in the statutes which says the commission is subject to local zoning, nor is there anything which grants it immunity.
We therefore regard the question as open in this state. Given the choice, we think this case aptly illustrates why the balancing of interests test better promotes the public’s interest than any of the traditional mechanical tests.
The overall mission being carried out by the commission in this case is the furnishing of recreational facilities for all the people of the state, or at least those who desire to fish in the Big Blue River. This is a public purpose. Ottawa Hunting Ass’n v. State, 178 Kan. 460, 289 P.2d 754 (1955). Obviously the commission must be, and is, vested with wide discretionary authority in locating its facilities for such a purpose. The county, on the other hand, has an obligation to make land use decisions within its jurisdiction which take into account both local concerns and the broader public good. It is apparent that either body may act in an arbitrary and unreasonable manner, favoring its own constituency at the expense of the other. The real questions are where the decision- making authority should be lodged, and if a claim of arbitrariness is to be made who should have the presumption of reasonableness and who the burden of proof.
Dealing with the specifics of this case, we are not talking about establishing a public hunting or fishing facility in an area zoned for agriculture. The merits of such a case appear clear, at least on the surface. Here we are dealing with an all-night parking lot with toilet facilities in the middle of a residential subdivision. The commission anticipates that the recreational facility will be used at a rate of 10,000 man days per year. At least some of those users will employ the proposed parking lot. The merits of this proposal are not nearly so clear. If the facts were fully developed at an evidentiary hearing the location of this particular facility in this particular location might prove to be an arbitrary decision of the commission, unnecessarily impinging on the legitimate expectations of the neighboring landowners and upsetting a carefully conceived local land use plan. On the other hand, it might turn out to be a wholly necessary and beneficial use far outweighing any local concern, for which accommodation should be made by any reasonable zoning body.
If we look at the factors suggested as relevant by the Rutgers court we find: (1) The instrumentality seeking immunity is a state agency, and its judgment is entitled to considerable deference. (2) The general function being performed — promoting recreation — is one of recognized public utility but hardly on a level of importance with public education. The specific use, providing parking space near but not in a recreation area, is of a more marginal public interest. (3) While there is public interest in the proposed use in that some people will find this parking lot more convenient than other available lots, the segment of the population affected is relatively small. (4) Regulation, if rezoning is refused, would have the effect of requiring the parking lot to be located in some area other than a residential subdivision. Such a move might make the lot less convenient, but would probably not substantially impair the usefulness of the recreation area. (5) The proposed use would, prima facie at least, have a substantial adverse impact on the surrounding householders and on the existing land use plan.
As noted above, these factors were not weighed on the basis of evidence either by a zoning body or by the court below, and our observations are based on a skimpy record and our own general knowledge. The commission simply asserted its immunity, without attempting to justify the reasonableness of its decision, while the court looked no further than the admitted violation of the zoning regulation.
It seems to us that, on balance, the initial decision on reasonableness in this case can be made more expeditiously and with greater discernment by the local zoning authority — here the county. That being so, we infer a legislative intent that the responsibility should be imposed on that body. If rezoning is arbitrarily denied, that decision can be reviewed by the courts at the commission’s behest through normal channels. If, on the other hand, we were to hold that the commission’s status as superior sovereign immunizes it from the normal zoning processes as it urges, then the burden of going forward with a lawsuit would fall on either the county or the affected landowners. In such a suit they would be required to show arbitrariness on the part of the commission. While it is true the landowners would have much the same burden if dissatisfied by an order granting rezoning, that would be because two administrative agencies at different levels have concurred in finding the proposed use appropriate. The zoning route strikes us as cheaper and faster, and it-puts the local land use decision in local hands where, in this case, it belongs.
In this case the district court ordered the commission to seek rezoning. It can still do so. In our opinion that is the proper course for it to take, and the trial court properly so ordered.
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Parks, J.:
Plaintiff seeks to recover damages for personal injuries arising out of an altercation which occurred near Coffeyville, Kansas, on December 27, 1972. The defendant is an Oklahoma resident and the plaintiff resides in Kansas.
The present appeal concerns proceedings following the decision in Goldsberry v. Lewis, 220 Kan. 69, 551 P.2d 862 (hereafter Goldsberry I). There, the Supreme Court found that the trial court in this case had not ruled on certain prejudgment motions prior to entering default judgment against defendant. For that reason, the judgment was vacated and the case remanded with directions that the defendant be allowed to amend his prejudgment motions, and further that the trial court rule on those motions and proceed with the action from that stage.
Plaintiff filed his original petition on January 26, 1973. Defendant was served in Montgomery County, Kansas, with copies of summons and the petition on February 6, 1973. A motion to quash the service of process was filed on February 23, 1973, and later amended on July 2, 1976. Defendant stated in his motion that he was immune from service of process on February 6, 1973, for the reason that he was then present in Kansas solely to appear at a criminal action against him. The motion was sustained on July 7, 1976, and the February 6, 1973, service was invalidated, quashed and set aside.
A new petition was filed by plaintiff on July 7, 1976. Copies of summons and this petition were duly served upon defendant in Oklahoma on July 16, 1976. Defendant answered and filed a motion for summary judgment which, after hearing, was sustained by the trial court on the ground that the statute of limitations bars plaintiff’s claim. Plaintiff now appeals from the order of summary judgment.
It is undisputed that the plaintiff’s claim is barred unless it is saved by K.S.A. 60-518, which provides in pertinent part as follows:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff . . . may commence a new action within six (6) months after such failure.”
Plaintiff argues that the trial court erred in ruling that K.S.A. 60-518 has no application under the facts and circumstances of this case. We agree.
An action is not commenced within the meaning of K.S.A. 60-518 where there is no service of process. Thus, K.S.A. 60-518 is not applicable where the service of process was void. See O’Neil v. Eppler, 99 Kan. 493, 494-495, 162 Pac. 311. However, when plaintiff’s action has failed otherwise than on the merits and he thereafter commences a new action, he is to be afforded the protection or benefit of K.S.A. 60-518 if it is found that the earlier action has been commenced in due time.
The court in Goldsberry I established the principles governing the determination of the validity of service of process in this case. The court stated:
“A nonresident of this state who is here solely to appear in a criminal action against him is immune from service of process in a civil action; Such immunity has its origin in public policy and the common law, and not in any statutory provision; Service on a person who is immune is not void, but is irregular only. The immunity is a privilege which may be waived if not claimed, and failure to assert the privilege until after judgment constitutes a waiver. See Baker v. Erbert, 199 Kan. 59, 427 P.2d 461; Phoenix Joint Stock Land Bank v. Eells, 158 Kan. 530, 148 P.2d 732; Eaton v. Eaton, 120 Kan. 477, 243 Pac. 1040; and cases cited therein.” (Emphasis supplied.) (p. 71.)
The February 6, 1973, service of process was not void, but irregular. Since it was voidable, it was subject to assertion of the immunity privilege prior to judgment. Thus, until set aside on July 7, 1976, it was valid service.
Under K.S.A. 60-203, a civil action is commenced upon the filing of a petition with the clerk of the court, provided service of process is obtained within ninety days thereafter. Here, timely service of process was obtained but it was irregular and voidable upon assertion of the privilege before entry of judgment. The question before us is whether irregular and voidable service of process is sufficient to constitute commencement of an action within the meaning of K.S.A. 60-518.
A judgment rendered without prior assertion of a privilege of immunity from service of process is neither void nor subject to successful subsequent attack. Eaton v. Eaton, supra; Phoenix Joint Stock Land Bank v. Eells, supra; Baker v. Erbert, supra. Therefore we conclude that service of process upon a party who timely asserts such privilege constitutes compliance with K.S.A. 60-203 and satisfies the commencement requirement of K.S.A. 60-518.
The order of July 7, 1976, setting aside the service clearly amounted to a failure “otherwise than upon the merits” as contemplated by K.S.A. 60-518. Plaintiff was entitled to initiate a new action within six months from the July 7 date; he did so that same day.
For the reasons stated above, we hold that K.S.A. 60-518 is applicable in this case and the trial court erred in holding to the contrary.
Judgment is reversed and the case is remanded with directions to proceed expeditiously to trial on the merits. | [
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Rees J.:
The parties have appealed from a workmen’s compensation award for permanent partial disability. Claimant contends there was incorrect computation of his average gross weekly wage. Respondent employer and its insurance carrier contend the finding of 50% permanent partial general disability was erroneous.
In line with a practice that has achieved some acceptance by both employers and employees, respondent’s employees’ regular work week was four days rather than the traditional five days. At the time of his accident, April 3, 1975, claimant was a full-time hourly employee as defined by K.S.A. 1974 Supp. 44-511(a)(5) (now 1977 Supp.); the customary number of hours constituting his ordinary working day was ten hours; the customary number of hours constituting his ordinary working week was forty hours; and his straight-time hourly rate was $3.90. The examiner, the director and the district court each computed claimant’s average gross weekly wage to be $156 by multiplying his straight-time hourly rate, $3.90, by the number of hours constituting his ordinary working week, forty hours. Claimant argues this computation was erroneous.
In pertinent part, K.S.A. 1974 Supp. 44-511(b) (now 1977 Supp.) is as follows:
“(b) The employee’s average gross weekly wage for the purpose of computing any compensation benefits provided by the workmen’s compensation act shall be determined as follows:
“(4) If at the time of the accident the employee’s money rate was fixed by the hour, the employee’s average gross weekly wage shall be determined as follows: . . . (B) if the employee is a full-time hourly employee, as defined in this section, the average gross weekly wage shall be determined as follows: (i) A daily money rate shall first be found by multiplying the straight-time hourly rate applicable at the time of the accident, by the customary number of working hours constituting an ordinary day in the character of work involved; (ii) the straight-time weekly rate shall be found by multiplying the daily money rate by five (5), or if the employee usually and regularly worked, or was expected to work, more than five (5) days per week, then by multiplying the daily money rate by such number of days and half days in excess of five (5) days; . . .”
Computation of the average gross weekly wage pursuant to K.S.A. 1974 Supp. 44-511(b) produces the following results in this case:
(a) Daily money rate is $39.00 ($3.90 times 10 hours); and
(b) Straight-time weekly rate is $195.00 ($39.00 times 5 days).
There is included in claimant’s straight-time weekly rate ten hours of straight-time hourly wages for which he did not actually work and which he was never actually paid in any working week. Although the statute provides for computation of the straight-time weekly rate by application to the daily money rate of multipliers of five or greater, it makes no provision for multiplication of the daily money rate by a multiplier less than five.
Review of our case law and current administrative rules and regulations promulgated by the workmen’s compensation director (now the director of workers’ compensation) provides no guidance for determination of the issue before us. However, as of the date of claimant’s accident, there existed an administrative rule that arguably tends to support claimant’s construction of K.S.A. 1974 Supp. 44-511. That rule provided in pertinent part:
. . [T]he customary number of working days per week must be established. The act provides that the customary number of working days per week shall be established by that number which the employee worked ‘regularly,’ but in no case, for the purpose of computing the weekly wage, shall less than five days be used. . . .
“It must be borne in mind that the weekly wage on which compensation is to be predicated may in some cases exceed the actual wage, as where less than five days per week are worked. . . .” (Kan. Adm. Reg. 51-11-1, revoked May 1, 1975.)
Despite the language of K.S.A. 1974 Supp. 44-511(b), the examiner, the director and the district court all limited claimant’s straight-time weekly rate to $156 ($3.90 times 40 hours). None of the three cite authority for their computation.
We understand respondent and its insurer to argue this computation is correct on two bases. First, an award founded on claimant’s proposed computation would result in an unjust award, that is, an award based upon wages not earned, paid or bargained for. Secondly, respondent and its insurer refer to the K.S.A. 1974 Supp. 44-511(a)(5) definition of “full-time hourly employee” as one who is employed in a “trade or employment where the customary number of hours constituting an ordinary working day is eight (8) or more hours per day or the number of hours constituting an ordinary working week is forty (40) or more hours per week . . .” (Emphasis supplied). From this it seemingly is argued that the straight-time weekly rate is to be computed by multiplying the straight-time hourly rate by forty.
We believe K.S.A. 1974 Supp. 44-511(b) is controlling. We cannot ignore its specific and mandatory language. Adoption of respondent’s second argument would be in clear contravention of that language. Further, K.S.A. 1974 Supp. 44-511(o)(5) concerns the definition of a full-time hourly employee and is not directed to computation of the employee’s average gross weekly wage. Our Supreme Court has noted in the past that the fact the application of workmen’s compensation statutes may seem to operate unjustly affords no grounds for the courts to substitute rules different from those enacted by the legislature. If a practical operation of the law is found to bring disproportionate or unjust results, it may be assumed that the legislature will amend it, but that function belongs to that body alone. Wammack v. Root Manufacturing Co., 184 Kan. 367, 373, 336 P.2d 441 (1959); Anderson v. Oil & Refining Co., 111 Kan. 314, 316, 206 Pac. 900 (1922).
We conclude that the district court erred in not computing claimant’s average gross weekly wage in accordance with the provisions of K.S.A. 1974 Supp. 44-511.
On cross-appeal, respondent and its insurance carrier contend there was no substantial competent evidence to support the trial court finding that claimant has suffered a 50% permanent partial general disability. They rely upon the fact the medical testimony was that claimant has only a 20% functional disability. They emphasize there was no medical testimony that the claimant could not procure work in the open labor market and perform and retain work of the same type and character he was performing at the time of his injury.
It is not the function of this court to judge the credibility of witnesses in workmen’s compensation cases or to determine what weight should be given their testimony. The test on appeal is whether the record contains any substantial competent evidence which on any theory of credence justifies the trial court findings. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 194, 542 P.2d 313 (1975); Makalous v. Kansas State Highway Commission, 222 Kan. 477, Syl. 9, 565 P.2d 254 (1977); Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P.2d 518 (1974).
Our review of the record indicates there is substantial competent evidence to support the finding of 50% permanent partial disability. Claimant testified that upon resuming work as a welder, after back surgery necessitated by his injury, he experienced great pain in his back and hip; he could not remain on his feet for very long and had to work short days and short hours because of the pain; he could not do 70% to 80% of the work he had performed for the respondent prior to the injury; he was ultimately forced to quit his job with the respondent because he could no longer do the work; upon leaving respondent’s employ, he obtained a job as an electrician; although his new job involved lighter work, he still experienced pain in his back and hip while attempting to climb, crawl or bend over; he was ultimately forced to quit that job as well, due to the pain. He finally obtained a job as a driver of an escort car for a trailer company; and he continued to experience pain in his back and hip while driving. The doctors who examined claimant following the accident testified he could expect continuing pain in his back as long as he engaged in heavy lifting, stooping and bending, and climbing.
The fact that the two doctors fixed his functional disability at 20% is not controlling. The Supreme Court has on several occasions upheld trial court decisions wherein the percentage of permanent partial disability assessed was in excess of the medical testimony concerning the percentage of functional disability. Davis v. Winchester Packing Co., 204 Kan. 215, 460 P.2d 617 (1969); Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P.2d 414 (1966); Mooney v. Harrison, 199 Kan. 162, 427 P.2d 457 (1967); Gray v. Better, 199 Kan. 284, 428 P.2d 833 (1967).
That there may not have been expert medical testimony that claimant could not obtain work in the open labor market or could not perform all or part of his prior job is not controlling. A trial court or fact-finding body is not required to limit its consideration of a workman’s injury to the testimony of expert medical witnesses. Mooney v. Harrison, supra, p. 165; Hanna v. Edward Gray Corporation, 197 Kan. 793, 800, 421 P.2d 205 (1966).
There being substantial competent evidence in the record to support the trial court’s finding of 50% permanent partial disability, that finding will be upheld on appeal.
Affirmed as to the cross-appeal. Reversed as to the appeal with direction to enter judgment in accord with this opinion. | [
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Abbott, J.:
This case primarily involves the sufficiency of publication service in a tax foreclosure sale.
The defendants, Martha Ellen Knight and Jack Knight, are mother and son. Martha Ellen Knight is the record owner of the real property involved in this action. Jack Knight owns no interest in the real property in question and claims no interest. He was apparently listed as a defendant in the tax foreclosure suit out of an abundance of caution. All of the parties admit that Martha Ellen Knight is the owner of record of the subject property. The appellees, Charles E. Mahany and Terry M. Mahany, purchased the real property at the tax foreclosure sale.
On August 16, 1974, the Board of County Commissioners of Wyandotte County filed a tax foreclosure suit in the district court of Wyandotte County, Kansas. The petition named Jack Knight and Martha Ellen Knight among the numerous parties defendant. Martha Ellen Knight’s address was listed in the petition as 3639 North 55th Street, Kansas City, Kansas — the same address as the house and lot the county was attempting to sell for delinquent taxes.
A summons was issued to Martha Ellen Knight at 3639 North 55th Street, Kansas City, Kansas, and was returned without service on September 20, 1974. The deputy sheriff assigned to serve Martha Ellen Knight testified at a subsequent hearing that he went to the address given on the summons ten or twelve times to serve Mrs. Knight, but was never successful.
The pleadings allege the Knights had an interest in the property which forms the subject matter of this suit. Only two persons were listed in the tax foreclosure suit with the name of “Knight,” namely, Martha Ellen Knight and Jack Knight. The names appear in alphabetical order throughout the pleadings. Jack Knight was listed as having two separate Missouri addresses. Separate summonses were mailed to Jack Knight at the two Missouri addresses. Certified mail receipts indicate that Jack Knight personally signed for one piece of mail on September 9, 1974, with an agent signing for the other.
On October 8, 1974, counsel for the Board of County Commissioners filed an affidavit for publication service. Mrs. Knight’s name was listed as one of those defendants whose name and address were known. A notice of suit was published listing Martha Ellen Knight as a defendant with her address being 3639 North 55th, Kansas City, Kansas, the same address listed in the petition.
The county did not mail a copy of the publication notice to Mrs. Knight after publication. No evidence was offered or received that any effort was made to obtain an address for Mrs. Knight different from the address listed in the affidavit for publication, or that the records of the county clerk or county treasurer’s office had been checked for an address.
Default judgment was entered foreclosing the county’s lien for delinquent taxes and the property was sold to the Mahanys. The sale was confirmed and twelve days later, on March 5, 1975, Mrs. Knight filed her motion to set aside the default judgment, the sheriff’s sale and the sheriff’s deed. In her motion, Mrs. Knight alleged notice was not given to her of the pending action and that she had resided at 3639 North 55th Street, Kansas City, Kansas, since August of 1970. Answers were filed by the parties and the case languished for two years.
The motion was finally set for hearing on April 27, 1977. Despite the fact the tax sale purchasers and the Board of County Commissioners had admitted in their pleadings that Mrs. Knight was the owner of record and despite the fact Jack Knight had not filed or joined in the motion to set aside the judgment, the sheriff’s sale and sheriff’s deed, an attorney, Robert L. Boyce, Jr., appeared at the hearing representing both Jack Knight and Martha Ellen Knight. Neither of the Knights personally appeared. Their attorney requested a continuance alleging Jack Knight could not be present and stated Mrs. Knight was in Tennessee and was ill, and that there was some question as to her competency to testify. The trial court denied the motion and heard the witnesses who were present and then continued the hearing until May 6,1977, to give the Knights an opportunity to appear and present evidence. On May 6,1977, Robert L. Boyce, Jr., announced that his services had been terminated. After questioning Boyce and learning that he had written Jack Knight and notified him of the hearing date, the court stated Boyce had no further obligation to “him” or the court. No mention was ever made in the record that notice of continuance of the hearing was conveyed to Martha Ellen Knight. The motion hearing was concluded with testimony being presented in the absence of Mrs. Knight and without her being represented by an attorney.
In view of the fact Jack Knight had no interest in the property, we will not consider any issues raised by the parties concerning him. In addition, Jack Knight did not file a motion, nor did he join Martha Ellen Knight in the motion to set aside the judgment, sale and sheriff’s deed. Most of the hearing on Martha Ellen Knight’s motion was consumed introducing evidence concerning Jack Knight, who was not a proper or necessary party to the action. Neither defendants’ counsel on appeal nor counsel for the appellees-purchasers participated in the lower court proceedings.
The question in this case is whether service by publication on a landowner in a tax foreclosure suit is sufficient to satisfy statutory and due process requirements where the county consistently pleads an address for the defendant and fails to mail a copy of the publication notice to the landowner at the address pled.
K.S.A. 60-307(f) provides: “The party seeking to secure service by publication shall, within seven (7) days after the first publication, mail a copy of the publication notice to each defendant whose address is stated in the affidavit for service by publication.” A copy of the publication notice was not mailed despite the fact an address was stated in the affidavit for service by publication.
Judge Gard points out in his comments under K.S.A. 60-307(f) that this provision is an additional requirement in connection with publication service in that it is now mandatory to mail a copy of the notice to those whose address is given in the affidavit. (Gard’s Kansas C.C.P. § 60-307[/].)
In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L.Ed. 865,70 S.Ct. 652 (1950), and Walker v. Hutchinson City, 352 U.S. 112, 1 L.Ed.2d 178, 77 S.Ct. 200 (1956), the United States Supreme Court determined that due process requires notice and opportunity for hearing appropriate to the nature of the case and that process which is a mere gesture does not satisfy the requirements of due process. The Supreme Court stated the rule thus:
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane, supra, p. 314.)
Although Mullane approved publication notice to those whose addresses were unknown, the court stated that where an address is “at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” (Id. at 318.)
Kansas has considered due process requirements of publication service and has held where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service alone is not sufficient to satisfy the constitutional requirements of due process. (Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177; Weaver v. Frazee, 219 Kan. 42, 547 P.2d 1005.)
Obviously, the Kansas legislature amended K.S.A. 60-307(f) to ensure minimum due process requirements are met by making it mandatory that the party seeking publication service mail a copy of the publication notice to each defendant whose address is stated in the affidavit for service by publication. The county and the tax sale purchasers argue that the mailing requirement of K.S.A. 60-307(f) is not applicable, as that provision applies only when the adversary knows where the defendant lives or can be found. They further argue that because Martha Ellen Knight did not introduce evidence to show she could be found at 3639 North 55th Street, Kansas City, Kansas, the mailing requirement is not imposed. The county is in the unique position of attempting to prove Mrs. Knight did not live at the address the county alleged she lived at while attempting to make service on her.
Such a contention is clearly erroneous. As noted earlier, the requirement of K.S.A. 60-307(f) is mandatory. If an address is listed for a party in the affidavit for publication, then the statute requires the affiant to mail a copy of the notice to that address. If the party is no longer at the address listed, then Mullane, supra, requires the affiant to make a reasonable effort to find a correct address to which notice can be mailed.
The county and the tax sale purchasers did introduce their evidence with an understanding that Knight initially had the burden of proof and that the evidence would not be considered unless the Knights did in fact make a prima facie case.
Mrs. Knight filed a motion to set aside the judgment, sale and sheriff’s deed. The court’s records, standing alone, show the county had an address for Martha Ellen Knight and that neither personal nor residence service was accomplished. Publication service was attempted and a sworn affidavit was filed setting forth the names and addresses of all defendants known to the county counsel. Martha Ellen Knight’s name and address were listed in the sworn affidavit, yet no affidavit of mailing was filed with the court as required by K.S.A. 60-312(c). The reason an affidavit of mailing was not filed is that a copy of the publication notice was not mailed to Mrs. Knight at the address listed in the affidavit or at any other address. The court’s own records were sufficient to make out a prima facie case that service on Martha Ellen Knight was not completed. The burden of proof then switched to the county and the tax sale purchasers to show the requirements of due process were met.
Had the publication notice been mailed to Mrs. Knight at the address given in the affidavit and returned undeliverable by the postal service, then due process would require a reasonable effort be made by the county to give such notice as could reasonably be calculated to reach her. On occasion, publication service alone might be sufficient where no address is listed for the defendant in the affidavit for publication. However, that is not the situation we are faced with. Even if the county had not pled an address for Mrs. Knight, the county did not sustain its burden of proof of showing publication notice alone, under all the circumstances, was reasonably calculated to apprise Mrs. Knight of the pending foreclosure action and afford her an opportunity to be heard.
The county records listed Mrs. Knight’s address as 3639 North 55th Street, Kansas City, Kansas. No evidence was introduced that prior tax statements mailed to that address were returned, nor was direct evidence offered that Mrs. Knight did not receive her mail at 3639 North 55th Street, Kansas City, Kansas. The county did not offer an explanation as to why it continued to list 3639 North 55th Street as an address for Martha Ellen Knight even after summons was returned unless it believed she lived there. Certainly the county counsel believed in good faith she still lived there, as he filed a sworn affidavit to that effect. Evidence was introduced that a neighbor had not seen anyone of Mrs. Knight’s age in the vicinity of the address given. The office manager of a gas utility testified that service had been discontinued for several years. However, the purchasers conceded Jack Knight occupied the premises and a neighbor testified Jack Knight and other persons lived at the address from time to time and that the house was always furnished.
During the critical period between the time the suit was filed and publication notice given, a deputy testified a light was turned on at the back door each night and was extinguished by morning. The deputy further testified he was told that if he wanted to locate those “people” he would have to go to the back door. Jack Knight personally appeared at the county clerk’s office and picked up mail addressed to him at a Missouri address. No evidence was offered as to whether inquiry was made of Jack Knight concerning his mother’s whereabouts when he appeared at the county clerk’s office. Such inquiry would go to the question of the county’s reasonable effort to locate Mrs. Knight.
Notice to Jack Knight cannot be imputed to Martha Ellen Knight under the facts of this case and there is no evidence that Martha Ellen Knight had knowledge of the action.
Mailing a copy of the publication notice to Martha Ellen Knight at the address contained in the sworn affidavit for publication service was mandatory, and the failure to do so denied Martha Ellen Knight due process of law. The trial judge erred in not setting aside the judgment, sale and sheriff’s deed.
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Meyer, J.:
A minor child, Clay Stephens Hamlett, was adjudicated to be a dependent and neglected child pursuant to K.S.A. 1977 Supp. 38-802(g).
Two procedural points are raised, one by each party. We shall address these first. Appellant, the natural mother, claims that K.S.A. 1977 Supp. 38-816(a) and (b) must be read together, contending that the petition authorized by K.S.A. 1977 Supp. 38-816(u) may not be filed until the findings enumerated in (b) of that statute are first met. Appellant thus claims that before a petition may be filed in dependency and neglect there must be authorization to do so by the court under (b) which states that upon information being furnished to the district court by a reputable person, a preliminary inquiry (and whenever practical, a preliminary investigation) should be conducted to determine whether the interest of the public or such child requires that further action be taken.
Appellee, the grandmother, on the other hand contends that K.S.A. 1977 Supp. 38-816(u) should be interpreted separately from (b), and that, therefore, an investigation was not required in the instant case since no requirement is made under (a). Appellee further argues that if an investigation was required under K.S.A. 1977 Supp. 38-816(a), then the affidavit which the petitioner filed with the petition, being comprehensive in nature, and having been perused by the court, would satisfy the requirements of (b).
It is clear to us that K.S.A. 1977 Supp. 38-816(c) and (b) provide alternative methods. K.S.A. 1977 Supp. 38-816(a) indicates that if a person is so convinced that an action in dependency and neglect should be brought as to personally sign a petition and affidavit, this is sufficient. In our judgment, K.S.A. 1977 Supp. 38-816(b) is an alternative method by which a person who thinks a child is dependent and neglected, but who is unsure of what course of action to take, could furnish information to the court. The court, after investigating the information, could authorize the petition, taking the responsibility off.a petitioner who might be reticent about bringing the action without such approval. Thus K.S.A. 1977 Supp. 38-816 offers alternative methods so that one who feels certain of his facts and confident that a petition should be filed may do so?; those who are unsure of their position or do not wish to file a petition outright under subsection (a) could furnish information to the court and allow the court to take responsibility for filing the petition.
The natural mother is estopped herein to contend that there is no jurisdiction, because of her voluntary entry of appearance and because of the stipulations and waivers which she signed in the case prior to her questioning the jurisdiction of the court.
Appellee’s procedural question involves the fact the appeal was taken by the natural mother. K.S.A. 1977 Supp. 38-834(b) provides in part:
“An appeal shall be allowed by any child from any final order in any proceeding pursuant to the juvenile code .... Such appeal may be demanded on the part of the child by such child’s parent, guardian, guardian ad litem or custodian . . . .”
We hold the natural mother, appellant, was a proper person to bring this matter on appeal.
Appellant’s other contention herein is that there was not sufficient evidence to make a dependency and neglect finding.
In this connection, appellant relies largely upon the court’s statement in its memorandum decision of June 2, 1977, as follows:
“Very little of the evidence regarding [appellant’s] different marriages and assig nations, her numerous changes of residences, and her possible abuse of prescription drug medicine is directly related to any harmful effect on the minor child.”
We note specifically that the court below did not reject the evidence concerning appellant’s various husbands, residences, and so forth; the court said such evidence was minimal. It is also noted that the court said very little of such evidence “is directly related” to any harmful effect on the minor child. The court subsequently found that after the temporary separation from the appellant there was a “dramatic improvement in the boy’s well-being academically, socially and emotionally as a result of his being placed in the St. John’s Military Academy . . . .”
Thus we see that the district court by no means disregarded the evidence but merely stated that it had very little direct effect on the minor child. The court also stated, in the memorandum decision:
“It seems to the court that the evidence, as a whole, particularly as it relates to Clay’s schooling, would indicate that the natural mother . . . was satisfied to handle his care, schooling and up-bringing in a casual manner.” (Emphasis supplied.)
It is true, as appellant contends, that the burden of proof is on the petitioner and that such burden must consist of “clear and convincing evidence”; it is also true that the district court may adjudicate a child as dependent and neglected only upon presentation of such evidence. In re Bachelor, 211 Kan. 879, 880, 508 P.2d 862 (1973); In re Vallimont, 182 Kan. 334, 343, 321 P.2d 190 (1958). On appellate review, however, the standard is whether the court below had substantial competent evidence upon which to base its ruling. We hold that it did, and that such finding should not be reversed on appeal.
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Meyer, J.:
On October 16, 1974, Joseph A. and Loretta R. Peterson (appellants) initiated a court action against Garney Construction Company (appellee) for $100,000 actual and $100,000 punitive damages, plus fees and costs. Both parties continued the case several times; ultimately, the court said there would be no more continuances, and trial was set for April 19, 1977.
On April 13, 1977, appellants decided to request voluntary dismissal of their case; they communicated this information to the appellee on April 16,1977. On April 18,1977, counsel for the parties appeared before the court and appellants asked that the case be dismissed without prejudice.
The court stated it would allow appellants’ dismissal, but would determine the terms and conditions thereof after the appellee filed an affidavit of expenses incurred by reason of the dismissal.
On May 5, 1977, appellee filed the affidavit setting forth its expenses of the dismissal; appellants filed no response.
On June 20, 1977, the court held a hearing to determine the terms and conditions of the dismissal. The court heard arguments and admitted (over appellants’ objection) exhibits relating to appellee’s expenses. The court then awarded the appellee $2,076.83. This sum included the expenses of appellee’s witnesses and some attorney fees — primarily those spent pertaining to the dismissal hearing.
Appellants’ basic complaint on appeal is they were overcharged. They expected a rather nominal sum (that is, “court costs” in the usual sense) would be awarded against them as a condition of their dismissal. They claim the trial court abused its discretion in taxing them appellee’s witness costs and attorney fees. Appellants contend that the court should have made the terms and conditions of dismissal known to them before ruling upon their request for dismissal. They argue that to do otherwise discounts the voluntariness of their motion to dismiss. In support of their argument, appellants cite Federal Savings & Loan Ins. Corp. v. First Nat. Bank, Etc., 4 F.R.D. 313 (W.D. Mo., 1945). In Federal Savings, the plaintiff requested dismissal without prejudice if certain conditions stated in his motion could be met. On appeal, it was held that the trial court must grant the motion according to the stated conditions or deny it completely. The instant case, however, is to be distinguished. Appellants below merely moved for voluntary dismissal. No contingent terms of dismissal were included in their motion, and the court was free to exercise its authority under K.S.A. 60-241 in setting out the “terms and conditions” of such dismissal.
In Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, Syl. 5, 469 P.2d 272 (1970), our Supreme Court said:
. . [T]he inquiry whether the district court abused its judicial discretion in denying a plaintiff’s motion to dismiss his action without prejudice after defendant’s answer is filed, is confined to whether the situation and the circumstances clearly show an abuse of discretion, that is, arbitrary action by failure to apply the appropriate equitable and legal principles to the established or conceded facts and circumstances.”
In the instant case, appellee spent most of the preceding weekend in trial preparation. Several defense witnesses had already flown in from distant cities to testify. It is both reasonable and foreseeable that the court would impose certain costs against appellants to compensate for loss and inconvenience caused by their last-minute dismissal. Appellants claim that the court stated on April 18, 1977, that it would tax “some” costs against them, and that they objected to imposition of any costs. The record of the June 20, 1977, hearing, however, shows that the court, in reference to the April 18, 1977, dismissal hearing, said:
“. . . The Court . . . did permit dismissal but stated that because of the problems involved it was going to tax all of the costs on the trial preparation to plaintiff . . . .”
The appellee then averred:
“. . . [I]t was ordered that the defendant’s counsel prepare an affidavit of expenses incurred as the direct result of the dismissal of the case . . . .”
The appellants, however, stated, at page 21 of the Transcript of the June 20, 1977, hearing:
“. . . It seems to me . . . there was no indication at the morning of the dismissal that there was going to be this sort of costs assessed or expenses of litigation if you will ....
“Your Honor will remember we did object to it, certainly did not agree to it.”
Unfortunately, the April 18,1977, meeting was not transcribed. The record provides this entry on the trial docket sheet:
“April 22, 1977 — Journal entry approved allowing dismissal of suit without prejudice, pursuant to provisions of K.S.A. 60-241(2) and conditions of the Court.”
This entry is the only actual record of the April 18 hearing, and in our opinion is persuasive as to what occurred on that date. The entry is further supported by the court’s statement on June 20, quoted above. .
Appellants also urge that K.S.A. 60-241(d) allows the court to assign costs of an action previously dismissed only as a condition of appellants’ refiling the case. K.S.A. 60-241(d) provides that upon refiling, “the court may make such order.” Judge Gard comments, “the court may require the payment . . . .” (Gard’s Kansas C.C.P. § 60-241[d]). In both instances, the use of “may” is permissive. We note that K.S.A. 60-241(d) does not preclude the court’s imposing such costs and expenses on a plaintiff as a condition of dismissal rather than as a condition of refiling.
Appellants correctly state the general rule in Kansas that attorney fees are not chargeable as costs against the other party in the absence of clear and specific statutory provisions. Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 494 P.2d 1113 (1972); Hodges v. Lister, 207 Kan. 260, 485 P.2d 165 (1971); and Reznik v. McKee, Trustee, 216 Kan. 659, 534 P.2d 243 (1975). However, we find the following language of K.S.A. 60-241(a)(2) to be sufficiently specific:
“. . . [A]n action shall not be dismissed at the plaintiff’s instance save upon order of the judge and upon such terms and conditions as the judge deems proper.” (Emphasis added.)
On June 20, both parties presented oral argument to the court on the matter of the terms and conditions. The appellee explained why each item listed in its previously-filed affidavit was necessarily an expense incurred as a result of dismissal, and produced exhibits to support those costs. Appellants filed no written response to appellee’s May 5 affidavit. At the June 20 hearing, appellants could have, had they asked, examined appellee concerning the expenses listed in the affidavit or any other statement made by appellee in open court. See Santee v. North, 223 Kan. 171, 574 P.2d 191 (1977). At no time, however, did appellants request additional evidence of the necessity or reasonableness of appellee’s expenses, nor did they request an evidentiary hearing on the matter. The court was therefore entitled to accept appellee’s affidavit and exhibits as true and to base its determination of terms and conditions of dismissal upon them. The court did not award the appellee all the items claimed as necessary expenses. The court independently determined which items were indeed expenses of dismissal and could not be used by appellee if the case is refiled. The court disallowed one half of the attorney fees and one half of the expert’s fees, on the theory that these would be valuable in the event of future trial. In Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973), our Supreme Court said:
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable . . . where no reasonable man would take the view adopted by the trial court.”
We do not think that any of the court’s conditions of dismissal amount to an abuse of discretion.
Appellants also complain that the court did not properly consider the relative equities and faults of the parties. Appellants decided on April 13 to request dismissal of their suit. Appellee was not notified (for whatever reasons) of appellants’ intention until the evening of Saturday, April 16, three days before trial. The court was not informed until April 18. If appellants had notified appellee on April 13, all but one of appellee’s listed expenses could have been avoided (and even that one item was disallowed by the trial court). If the court had known of appellants’ intentions on April 13, the jury could have been notified not to report, thus saving the county some expense. Appellants, meanwhile, had their $200,000 suit dismissed without prejudice, at their own request. Because they are not barred from refiling their action, it appears that much equity flowed toward them. Appellants assert that, had they known of the expenses ultimately charged against them, they might have chosen to reject the terms and conditions and, therefore, the dismissal. Appellants’ argument is not convincing. Their suit was for $200,000. A witness vital to their case was missing. They were not prepared to go to trial. It is difficult under these circumstances to accept their allegation that they would have rejected a chance for dismissal without prejudice had they known the cost would be some $2000.
Affirmed. | [
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Spencer, J.:
This is an appeal from an order dissolving a writ of habeas corpus issued in an extradition proceeding. K.S.A. 22-2701 et seq. At issue are: (1) Whether failure to arrest under warrant of the governor within the ninety-day period provided for commitment or bail in K.S.A. 22-2715 and 22-2717 renders that warrant void and unenforceable; and (2) whether the governor’s warrant dated December 20, 1977, is valid.
On September 15, 1977, a complaint was filed in the District Court of Finney County alleging that petitioner was a fugitive from justice from the state of Missouri. A fugitive warrant was issued and petitioner was admitted to bail pursuant to K.S.A. 22-2716. His hearing was scheduled for October 16, 1977. The governor’s warrant was not received by that date and, at the request of the state, continuances were granted pending receipt of the warrant. On December 16, 1977, since the governor’s warrant still had not been received and more than ninety days had elapsed, the proceedings in Finney County were dismissed and petitioner was released.
Thereafter, on December 21, 1977, the governor’s warrant did arrive and was forwarded to the Sheriff of Grant County for execution. Petitioner was arrested jn that county on February 1, 1978, and immediately taken before a magistrate who admitted him to bail pending the filing of an application for writ of habeas corpus. The writ was issued March 2, 1978, and thereafter quashed upon hearing by the district judge in Grant County, who directed that the warrant be executed.
Petitioner’s contention that failure to arrest under the governor’s warrant within the ninety-day period of time provided by K.S.A. 22-2715 and 22-2717 operates as a bar to further extradition proceedings, appears to be one of first impression in Kansas. However, the issue has been considered in other jurisdictions and found to be without merit.
It is obvious that the sections of the Uniform Criminal Extradition Act referred to are to prevent the unreasonably lengthy periods of confinement of fugitives pending consummation of extradition proceedings by the demanding state. They do not restrict the period within which a governor’s warrant may be issued or executed to the ninety-day period contained in those statutes. Glavin v. Warden, 163 Conn. 394, 311 A.2d 86 (1972); People ex rel. Vasquez v. Pratt, 24 Ill. App. 3d 927, 322 N.E.2d 74 (1975); People ex rel. Gummow v. Larson, 35 Ill. 2d 280, 220 N.E.2d 165 (1966); State ex rel. Brown v. Hedman, 280 Minn. 69, 157 N.W.2d 756 (1968); Bell v. Janing, 188 Neb. 690, 199 N.W.2d 24 (1972); In re Colasanti, 104 N.J. Super. 122, 249 A.2d 1 (1969). In this case, petitioner’s release after ninety days leaves him in the same position as when he was initially charged, a “fugitive from justice” within the meaning of the federal constitutional provision requiring such persons to be delivered by the governor of one state to the governor of the state whose laws are alleged to have been violated. Glavin v. Warden, 163 Conn. at 398; Bell v. Janing, 188 Neb. at 692. Any interpretation of the statutes which would avoid the constitutional dictate to relinquish the fugitive would place the validity of the statutes in question. U.S. Const. art. 4, § 2.
The proceeding instituted in Finney County was merely the vehicle for the issuance of a warrant to arrest and hold the alleged fugitive for such time as necessary to enable the arrest of the accused under a governor’s warrant, not to exceed a total of ninety days. It was not in any sense the institution of criminal proceedings in this state against the petitioner. The release of petitioner from bail in Finney County and the dismissal of the arrest warrant there were not an adjudication of his guilt or innocence of the alleged crime.
The validity of the governor’s warrant presents a more difficult problem. Under date of May 6, 1978, our Supreme Court filed an opinion in Wilbanks v. State, 224 Kan. 66, 579 P.2d 132, in which it is said:
“Warrants for arrest cannot be issued except upon probable cause. Statements to the contrary in our earlier cited cases notwithstanding, we now hold that a verified complaint couched in the language of a criminal statute, standing alone, is not sufficient to support a finding of probable cause and the issuance of an arrest warrant.
“The purpose of a complaint, filed with a magistrate, is twofold: first, its function is to disclose sufficient factual information to enable a magistrate to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed, and that the defendant has committed or is committing it; and second, its function is to inform the defendant of the particular offense with which he or she is charged, and provide an accusation upon which a trial can be held.” 224 Kan. at 75.
In writing for the majority, Justice Miller also said:
“The important point,-which we emphasize, is that sufficient factual information must be presented to enable the magistrate to make an independent finding of probable cause before a warrant is issued, as mandated by the Fourth and Fourteenth Amendments, and section 15 of the Bill of Rights.” 224 Kan. at 76.
“We . . . conclude that Fourth Amendment standards apply in extradition proceedings, and that a person is not ‘charged’ or ‘substantially charged’ by the filing of a complaint or affidavit which does not provide sufficient information to enable a ‘neutral and detached magistrate’ to make an independent determination of probable cause.” 224 Kan. at 80-81.
The court then concluded that its holding did not require the immediate issuance of a writ or the discharge of petitioner, but that the demanding state' should be granted a reasonable time within which to demonstrate that it in fact had probable cause at the time the arrest warrant was issued.
The record in this case reveals a complaint filed in Jasper County, Missouri, under date of July 1, 1975, and the warrant issued that same date by the magistrate. The complaint and the warrant appear to be substantially in the language of the Missouri statute. The complaint alone does not make a showing of probable cause as required by Wilbanks.
The file also contains the original of the affidavit of one Larry Fortuck, vice president of Joplin White Trucks, Inc. This instrument was subscribed and sworn to on December 1, 1977, before the magistrate who issued the arrest warrant of July 1, 1975. This affidavit does appear to contain sufficient factual information to enable one to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed; that petitioner has committed that crime; and to inform petitioner of the particular offense with which he is charged. However, the execution of the affidavit occurred almost two years and five months after the issuance of the arrest warrant and there is nothing to indicate that the factual information disclosed therein was presented to and considered by the magistrate before issuance of the warrant. In the absence of such showing, we must conclude that petitioner was not charged or substantially charged as required by the standards of the Fourth Amendment. As in Wilbanks, however, we conclude that the demanding state, Missouri, should be granted a reasonable time within which to demonstrate that the arrest warrant was in fact issued upon a showing of probable cause and that thirty days is a reasonable period within which to make such a showing.
The judgment dissolving the writ of habeas corpus is reversed and this case is remanded to the district court with directions to discharge the petitioner, unless within thirty days from the date of filing this opinion a showing of probable cause has been made in accordance with this opinion. | [
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Foth, C.J.:
This is a class action on behalf of inmates of the Shawnee county jail challenging the conditions of their confinement. Defendants are the sheriff and commissioners of Shawnee county, who are directly charged by statute with operating and maintaining the jail, and the state secretary of corrections, who has certain jurisdiction over sanitary and safety conditions in all jails under K.S.A. 75-5228. The trial court dismissed the action for lack of jurisdiction, and the plaintiffs have appealed.
The action had its genesis in two separate habeas corpus actions filed in 1974 by the named plaintiffs, Winslow Beaver and Kenneth E. Goodman. At the request of the trial court the Legal Aid Society of Topeka, Inc. assumed the representation of plaintiffs. A new petition was filed in December, 1974, with both plaintiffs purporting to represent all past, present and future jail inmates, as a class under K.S.A. 60-223. The relief sought was declaratory and injunctive in nature. The actions were consolidated, and on June 19, 1975, the trial court sustained plaintiffs’ motion for class certification.
The next year and a half were consumed in discovery. During this time all judges of the Shawnee county district court disqualified themselves, and the case was assigned to the Honorable Ronald D. Innes, of Manhattan.
An amended petition was filed by leave of court in February, 1977, containing a shotgun blast of some 58 separately numbered “factual claims.” With some effort these may be roughly categorized into a half-dozen overlapping areas: (1) The physical facilities were alleged to be inadequate, resulting in overcrowding and conditions hazardous to health and safety. (2) The jail’s personnel are said to be inadequate in number, training and ethnic mix, resulting in beatings and sexual assaults among the inmates. (3) It is claimed that the inmates are not properly classified and segregated, particularly by age and sex, and are not afforded proper exercise or programs aimed at vocational training or other types of rehabilitation. (4) The food is said to be of poor quality, poorly prepared, and infested with insects and vermin. (5) The policies and procedures for governing the jail are alleged to be vague, and not properly followed anyway, resulting in harsh and arbitrary discipline. (6) It is alleged that inmate mail is improperly censored, and facilities for attorney-client conferences are inadequate.
The list is not all-inclusive, but covers the main areas of complaint. The first five are said to result in cruel and unusual punishment, the last to impinge on inmates’ rights of free speech and to counsel.
After all defendants had answered the amended petition the court on its own motion dismissed the action, concluding: that it had no jurisdiction of the subject matter; that because the named plaintiffs were no longer in the jail they were not proper representatives of the plaintiff class; and that the nature of the action was such that it should not be certified as a class action. The court’s reasoning was:
“1. Habeas corpus is the appropriate remedy for inquiry by the courts into the care and treatment of prisoners in county jails.
“2. As a prerequisite to any inquiry by the courts, a plaintiff who complains of care and treatment that is of a continuing nature and absent allegations of mistreatment which might or results in imminent physical harm, injury, or death, must allege and show that existing administrative remedies have been exhausted.
“3. The transitory nature of a county jail, as well as, the changing conditions as same relate to the care and treatment of prisoners, preclude inquiry by the Court even after the exhaustion of administrative remedies, by way of class actions, since the requirement of K.S.A. 60-223(b)(3) are not met. The questions of law and fact common to the class would and should not predominate over any questions affecting an individual member. A resolution of the issues by way of class action might well affect the interest of an individual in prosecuting a separate action. Specifically, the Court could foresee a member of the class seeking habeas corpus relief by the use of that extraordinary remedy and being thus barred or inhibited by a previous or pending resolution of the same issue raised in the class action.
“4. Former prisoners of a county jail are no longer members of or representa tives of the class of prisoners presently incarcerated in a county jail and are not proper representative parties so as to seek injunctive or declaratory relief as to the care and treatment of the class of prisoners remaining.”
We are unable to agree fully with the trial court’s conclusions and reasoning. In particular, we feel the result reached does not adequately distinguish between complaints which are peculiar to a particular inmate, depending on that inmate’s own circumstances, and those which are common to all inmates regardless of their circumstances. This lack of discrimination appears first in the petition, of course, where the scattergun approach tends to obscure the justiciable issues we perceive hidden among the pleader’s verbiage.
Specifically, it would appear that the physical condition of the jail, the quality of food, the censorship of mail, and the arrangements for attorney-client conferences would have the same basic impact on all inmates of the jail, regardless of age, sex, race, term of confinement, or the conduct of the particular inmate. On the other hand, segregation policies, the need for exercise and training programs, physical abuse by other inmates, and the type and manner of imposing discipline will have varying impacts on individual inmates, depending on the same factors just noted. With these distinctions in mind we shall examine the trial court’s reasons for its decision.
1. The trial court found that habeas corpus was “the” appropriate remedy for inquiry by the courts into the care and treatment of jail inmates, and the defendants argue that it is the exclusive remedy. The argument is based largely on Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972). In that case the court held it was error to summarily dismiss a petition in habeas corpus which challenged only the conditions of confinement, and did not claim a right to be released. The exact holding on this point was:
“Habeas corpus provides an appropriate remedy for inquiry into mistreatment of a continuing or probably continuing nature alleged by an inmate of a penal institution.” (Syl. 3. Emphasis added.)
See, also, the companion case of Hamrick v. Hazelet, 209 Kan. 383, 497 P.2d 273 (1972).
In neither case did the court hold that habeas corpus was the exclusive remedy, but only that the form of action was broad enough to reach the type of complaint being made there — and here — in addition to performing its traditional function of testing the legality of the fact of confinement.
The federal courts take the same view, as may be illustrated by comparing two cases. In Preiser v. Rodriguez, 411 U.S. 475, 36 L.Ed.2d 439, 93 S.Ct. 1827 (1973), inmates brought federal civil rights actions under 42 U.S.C. § 1983, claiming they had been wrongfully deprived of good-time credits against their sentences. The court held that habeas corpus was their exclusive remedy. The court recognized the existence of a series of its own cases holding that a civil rights action is an appropriate vehicle to challenge the conditions of confinement, but distinguished them:
“But none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate or speedier release from that confinement — the heart of habeas corpus. . . . It is clear then, that in all those cases, the prisoners’ claims related solely to the States’ alleged unconstitutional treatment of them while in confinement. None sought, as did the respondents here, to challenge the very fact or duration of the confinement itself. Those cases, therefore, merely establish that a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. . . .”(411 U.S. at 498-9.)
Preiser is to be contrasted with Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975). That was a class action by jail inmates seeking the right to a judicial determination of probable cause for their pretrial detention. The court noted that they “did not ask for release from state custody, even as an alternative remedy.” (n. 6.) It went on to say, “Because release was neither asked nor ordered, the lawsuit did not come within the class of cases for which habeas corpus is the exclusive remedy.” (Ibid.)
We therefore hold that where an inmate of a jail or correctional institution challenges the conditions of his confinement but does not challenge the fact or duration of that confinement, relief may be sought by way of injunction or declaratory judgment as well as by habeas corpus. Since this case falls into that category, habeas corpus was not the exclusive remedy here.
2. The trial court found that plaintiffs had failed to exhaust their administrative remedies. In support defendants again rely on Levier v. State, supra. In Levier the inmate complained about mistreatment by prison officials. The court there emphasized that “disputed issues of fact respecting mistreatment of inmates should be determined administratively in a grievance procedure wherein the inmate is afforded the basic elements of due process, that is, notice and an opportunity to be heard in an orderly proceeding adapted to the nature of the case.” (p. 451.) However, the court also found the existing rules and regulations for resolving prisoners’ grievances to be so “vague and ambiguous as to be inadequate for their intended purpose.” (p. 452.) The court concluded:
“Until such time as adequate administrative provision is made for an impartial resolution of factual issues underlying such complaints there is no alternative to judicial inquiry respecting the facts rather than limiting judicial review of administrative actions to its ordinary scope. When appropriate administrative procedures have been established then those remedies will be required to have been exhausted prior to resort to the courts.” {Ibid.)
Levier thus recognized the long-standing rule that where administrative remedies are available they must be exhausted before resort may be had to the courts. But it also recognized that where such remedies are not available, or are inadequate to address the problem in issue, exhaustion is not required. Cf., 2 Am. Jur. 2d, Administrative Law, § 606; McNeese v. Board of Education, 373 U.S. 668, 10 L.Ed.2d 622, 83 S.Ct. 1433 (1963). Further, “[i]n order for the exhaustion doctrine to apply there must be a remedy provided through administrative action, and there can be no remedy in this connection where the action of the agency amounts to no more than a recommendation.” 2 Am. Jur. 2d, Administrative Law, § 606, relying on United States Alkali Export Asso. v. United States, 325 U.S. 196, 89 L.Ed. 1554, 65 S.Ct. 1120 (1945). And cf., Rosenfield v. Malcolm, 65 Cal. 2d 559, 566, 55 Cal. Rptr. 505, 421 P.2d 697 (1967), holding that “the mere possession by some official body of a continuing supervisory or investigatory power does not itself suffice to afford an ‘administrative remedy’ unless the statute or regulation under which that power is exercised establishes clearly defined machinery for submission, evaluation, and resolution of complaints by aggrieved parties.”
With those concepts in mind we look at the administrative remedies available to plaintiffs and their class. Defendants rely first on Sections VIII and IX of the Shawnee County Jail Policy and Guidelines. Section VIII simply permits an inmate with a request or grievance to put it in writing on a form to be supplied by the jail staff. It also requires the addressee to make a prompt reply to the inmate in writing, and that both documents be perpetuated in the inmate’s file. No provision is made for further action if the reply is unsatisfactory to the inmate. This section, which does no more than permit an inmate to register a complaint, can hardly be deemed an “administrative remedy.” Section IX does provide for an administrative hearing, but it applies only when rights under the Guidelines are taken away or the inmate has been subjected to certain disciplinary action. Examination of the hearing procedures reveals that they are tailored exclusively to discipline cases. They may or may not be adequate for that purpose, but they clearly do not contemplate or purport to deal with the types of complaints made by plaintiffs in this suit.
The second administrative remedy relied on by defendants stems from the authority of the state secretary of corrections under K.S.A. 75-5228. Under that section the secretary is responsible for promulgating sanitation and safety standards for all jails and for inspecting jails for compliance. In the case of noncompliance he is to make recommendations for improvement. These recommendations are submitted to a local committee for a determination of reasonableness. Then, if the committee finds they are reasonable, a public hearing is to be held, after which the committee is to file its findings. Only then is there a duty on the part of the county commissioners to make the recommended improvements.
As an administrative remedy for these plaintiffs this procedure has two deficiencies. First, it makes no provision for specific complaints of jail inmates or for a hearing on such complaints if made, nor does it provide for any binding determinations. The secretary’s supervisory power is exercised on an ex parte basis, and his conclusions are advisory only. Ultimate authority rests with the local committee. Second, and more important, the procedure deals only with sanitation and safety. It does not purport to reach plaintiffs’ broad spectrum of complaints in areas which bear on sanitation and safety only incidentally if at all.
We therefore conclude that plaintiffs had no available, effective administrative remedy which they were required to exhaust before bringing this action.
3. The trial court held that the transitory nature of a jail population precludes the use of a class action because “the requirement of K.S.A. 60-223(b)(3) are not met.” In so holding the court was concerned that an adjudication in this suit might bar or inhibit a jail inmate in an individual suit brought to remedy individual grievances. While we agree that such a result should be avoided, as indicated in our earlier discussion it appears to us that many if not most of the issues raised are common to all inmates of the jail. Those issues which are common can he decided in a class action without affecting individual rights which depend on the circumstances of an individual inmate. Cases in which the class action vehicle has been used to adjudicate such claims are legion. E.g., Jones v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1971), aff’d 456 F.2d 854 (6th Cir. 1972); Inmates of San Diego County Jail, Etc. v. Duffy, 528 F.2d 954 (9th Cir. 1975); Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975). In the last case cited the court observed:
“No one having even a slight knowledge of jails can be anything but shocked, alarmed, and dismayed at the conditions presently prevailing in many of them. Realistically, class actions are the only practicable judicial mechanism for the cleansing reformation and purification of these penal institutions. . . .”(p. 1097.)
While we would emphasize that plaintiffs’ allegations about the Shawnee county jail in this case are still only allegations, untested by any sort of evidentiary hearing, we agree with the Fifth Circuit that a class action is an appropriate method by which such allegations may be tested.
4. Finally, the trial court found that the named plaintiffs could not represent the class because, after suit was filed, they had been transferred to other institutions and thus had ceased to be members of the class. As to them the case was moot, and the court concluded that they no longer had a sufficient stake in the litigation to continue as class representatives. We cannot agree.
The federal courts, construing Federal Rule of Civil Procedure No. 23, after which our K.S.A. 60-223 was patterned, have developed an exception to the mootness rule which covers cases like this one. And, “[traditionally, we have followed interpretation of federal procedural rules after which our own have been patterned.” Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975).
The definitive case is Sosna v. Iowa, 419 U.S. 393, 42 L.Ed.2d 532, 95 S.Ct. 553 (1975). That was a class action challenging Iowa’s one-year residence requirement for divorce plaintiffs. The named plaintiff met the one-year requirement long before the final determination of the case, so that as to her the case became moot. The court nevertheless held that she was entitled to carry on the action on behalf of the class, as to whose members the case was not moot, because the issue raised was one “capable of repetition, yet evading review.” (419 U.S. at 399-400.)
That doctrine was applied in a prisoners’ rights case in Gerstein v. Pugh, supra, where the class consisted of persons detained in jail before trial. The named plaintiffs were convicted before the case reached the Supreme Court. The Court held:
“This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See Sosna v. Iowa, 419 U.S. 393, 42 L.Ed.2d 532, 95 S.Ct. 553 (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly ‘capable of repetition, yet evading review.’
“. . . The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.” (420 U.S. 103, 110, n. 11.)
The same result has been reached by the lower federal courts both before and after Sosna and Gerstein. E.g., Rivera v. Freeman, 469 F.2d 1159, 1162-3 (9th Cir. 1972); Jones v. Diamond, supra; Inmates of San Diego County Jail, Etc., v. Duffy, supra.
In this case the named plaintiffs are no longer members of the class. There are, however, other class members who are inevitably subject to the conditions complained of in the petition. Present counsel has undertaken to represent the class, and there is no suggestion that there would be any lack of interest or that the proceedings would not be truly adversary in character. We conclude that the class was properly certified in the first instance, and that mootness as to the named plaintiffs was not a sufficient ground for dismissing the action.
We emphasize once again that we entertain no views on the merits of plaintiffs’ claims. Upon trial it may turn out that there has been no deprivation of any constitutional or statutory right. We do hold, however, that as to those claims common to all inmates of the jail plaintiffs are entitled to present their evidence in a class action.
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Spencer, J.:
The named plaintiffs, as owners of lots and graves in the cemetery operated by the Union Cemeteries Association, Inc., Salina, Kansas, and as owners of crypts in the Mausoleum Williamsburg located in that cemetery, commenced this class action on behalf of themselves and all other persons similarly situated to permanently enjoin the construction and operation of a mortuary and other commercial development on land platted and dedicated as a cemetery. The injunction was granted and defendants have appealed.
The facts in this case have been stipulated and are essentially as follows:
Defendants Union Cemeteries Association and Union Cemeteries Association, Inc., are one and the same cemetery corporation, duly organized under the laws of Kansas on April 27, 1927. The cemetery operated by the corporation has been at various times referred to as “Memorial Park Cemeteries,” “Memorial Park Gardens,” “Roselawn Memorial Park Cemetery,” and “Roselawn Cemetery,” but all relate to one cemetery located on the real estate hereinafter described.
On July 21, 1927, the cemetery corporation caused a plat of the northeast quarter of the northeast quarter of section nineteen, township fourteen south, range two, west of the Sixth Principal Meridian, containing forty acres more or less, to be placed of record in the office of the register of deeds, Saline County, Kansas. The certificate to that plat, executed and acknowledged by the then president and secretary on behalf of the corporation, is in part as follows:
“. . . The Union Cemeteries Assn, of Ottawa, Franklin County, Kansas, is the owner of the following described property, to wit;
“[Real estate description] and have the same to be subdivided into Lots and Sections, with Streets, Avenues and Walks for the purposes of Sepulture.
“The foregoing described tract of land as subdivided and platted is dedicated to the purpose herein mentioned and the faith of the organization is pledged for its preservation and improvement. . . .”
Following the filing of the plat, the corporation advertised the area as a park plan cemetery and offered for sale and sold lots in the cemetery to members of the public. At the time of this suit, more than 6,000 persons had purchased lots or plots within the cemetery and more than 3,500 burials had been made therein.
Defendant Robert F. Frobenius first acquired an interest in the cemetery corporation in April, 1952. At the time this action was commenced, he was president of the corporation and, together with members of his immediate family, owned all of the issued and outstanding stock of the cemetery corporation. Frobenius is also president of defendant Roselawn Service Company, Inc., which was incorporated under date of February 25,1974, and he, together with members of his immediate family, own all of the issued and outstanding stock of that corporation.
On October 20, 1959, the north 200 feet of the 40 acres in question were annexed into the city of Salina and, in 1960, the corporation constructed a mausoleum on the cemetery.
On July 25, 1960, plaintiff Geisendorf purchased a crypt in the mausoleum and received a deed which provided that the purchase was subject to the rules and regulations of the corporation, then existing or thereafter adopted.
On September 19, 1972, the cemetery corporation caused a replat of the north 200 feet of the 40 acres (that portion previously annexed into the city) to be filed in the office of the register of deeds. This area comprises lots one through eight, block one, on the replat of Union Cemetery Addition to Salina, Kansas. On October 5, 1972, the city rezoned this area to authorize, among other commercial uses, the construction and operation of a mortuary. Plaintiffs appeared at that meeting in opposition to the rezoning, but did not appeal from the results.
On March 13,1973, plaintiff Connolly purchased cemetery lots and received a deed which was also subject to the rules and regulations of the corporation, then existing or thereafter adopted.
At a meeting of the board of directors of the cemetery corporation held November 16,1973, the corporation agreed to sell to the defendant Frobenius and his wife, lot seven, block one, of the replat of Union Cemetery Addition, for the sum of $5,500. The agreed consideration was handled by means of a bookkeeping entry made on the books of the cemetery corporation, reducing notes payable by the corporation to the defendant Frobenius and his wife by that amount. No part of the recited consideration was deposited with the permanent maintenance fund of the cemetery. However, that deed was never executed by the corporation and, on March 9, 1974, the corporation executed a deed for the same property to Roselawn Service Company, Inc., pursuant to an agreement by defendant Frobenius to exchange that property at the agreed value of $33,000 for 33,000 shares of stock of Roselawn Service Company, Inc.
On May 21, 1974, a building permit was issued for the construction of a mortuary on lot seven, and construction of that building commenced on or about May 23, 1974. This action was commenced on June 6, 1974, and from the record before us it appears that the work on the mortuary continued and that the building is now completed and is being operated as a licensed mortuary. The record also reveals that the cemetery, mausoleum, and mortuary are listed for tax assessment purposes in Saline County.
On August 16, 1974, it was determined by the trial court that this action be maintained as a class action and that letter notice of the action be given to all members of the class whose names and addresses could be reasonably ascertained. Following such notice, twenty-seven persons joined the action as plaintiffs.
While the main thrust of this appeal is the legality of the mortuary on the land in question,. defendants have presented other issues which we elect to give prior consideration.
Defendants argue that this is not a proper class action because Connolly and Geisendorf are not proper representatives for the class, in that their claims are not typical under K.S.A. 60-223(a)(3), and they do not adequately represent the class under K.S.A. 60-223(a)(4).
It is said that plaintiffs are moved to litigation by motives which are unique unto themselves; that Geisendorf is the owner of a mortuary which competes with defendants and he seeks to restrain that competition; that Connolly was involved in a dispute with defendant Frobenius over the placing of a monument at Connolly’s wife’s grave and is motivated by personal animosity.
K.S.A. 60-223(a) provides in part:
“One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”
Defendants refer to four factors enumerated in 3B Moore’s Federal Practice, § 23.07(1) at 23-352-353 for testing adequate representation. The factors relied upon as indicative that Connolly and Geisendorf could not adequately represent the class are (1) coextensive interests with other members of the class, and (2) proportion of the representatives to the total membership of the class. Defendants’ principal argument is that there is no coextensiveness of interest in this case. They base their argument on the claim that “coextensive” means “having the same scope or boundaries.”
In Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d 532, 571 P.2d 345, rev. denied, 222 Kan. 749, 571 P.2d 345, this court considered the adequacy of the representation requirements of K.S.A. 60-223(a)(3) and (4). Six factors were listed as determinative of whether the representation was adequate. Coextensiveness of interest is one of those recognized factors. In the course of the opinion, it was stated:
“The coextensiveness requirement does not mandate that the positions of the representative and the class be identical; rather, only that the representative and class members ‘share common objectives and legal or factual positions.’ (7 Wright & Miller, Federal Practice and Procedure, Civil § 1769, p. 655.) . . .” (1 Kan. App. 2d at 536.)
Moreover, it has specifically been held that the mere fact that the representative has interests which go beyond those of the class is not enough to defeat the action, as long as the representative has interests which are at least coextensive with the class interest. First American Corporation v. Foster, 51 F.R.D. 248 (N.D. Ga. 1970); Bucha v. Illinois High School Association, 351 F. Supp. 69 (N.D. Ill. 1972). See also, 7 Wright & Miller, Federal Practice and Procedure, Civil § 1768, pp. 646-647, where it is stated:
“. . . The main consideration is ‘the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class, so as to insure them due process.’ Therefore the fact that plaintiff may have an ulterior motive in bringing the action . . . does not in and of itself demonstrate that his interests are antagonistic to those of the class.”
Although Connolly and Geisendorf may have other interests in bringing this action, it is undisputed that they are lot or crypt owners; that each has a relative buried in the cemetery; and that the subject matter of the action is the use made of the cemetery land.
Helmley also noted as a factor “quality of the named representative, not quantity.” (1 Kan. App. 2d at 535.) As stated in 7 Wright & Miller, Federal Practice and Procedure, Civil § 1766, p. 631, most courts now reject the view that the proportion of the representatives to the total class is an element in determining whether a class action is proper. Most courts now assess the character of the representation rather than looking to numbers alone.
Defendants also argue that the class action was unnecessary since an injunction granted one person would have the same effect as that granted to the entire class. K.S.A. 60-223(¿>) provides in part:
“An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) The prosecution of separate actions by or against individual members of the class would create a risk of . . . (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. . .
The trial court found that this action was maintainable under both K.S.A. 60-223(¿)(1)(B) and (b)(2). Many recent decisions, in an attempt to reduce the number of class actions, and no doubt in response to the abuse to which they have been put, have denied class treatment when confronted with class action's seeking only declaratory or injunctive relief on the ground that an award for plaintiff alone necessarily would benefit all the class members. See 7 Wright & Miller, Federal Practice and Procedure (1976 Supp.) § 1754, p. 61, and cases cited therein. There may be instances where such a denial would be proper, even though the statute would otherwise seem to allow the class. As Helmley noted, the trial judge must be afforded substantial discretion in the decision-making process as to the maintenance of a class action. (1 Kan. App. 2d at 535.) With this in mind, we hold that the trial court did not err in conducting this matter as a class action.
In support of their motion for new trial, defendants offered the affidavit of H. D. Bledsoe, vice president of the National Association of Cemeteries, which indicates that the national trend is to locate mortuaries in cemeteries, or immediately adjacent thereto, as a matter of convenience for the public. Defendants suggest error by the trial court in refusing to consider that affidavit.
Whether to grant a new trial for newly discovered evidence is a matter within the sound discretion of the trial court. The burden is on the party seeking the new trial to show that the new evidence could not with reasonable diligence have been produced at trial. K.S.A. 60-259(a); State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993; McHugh v. City of Wichita, 1 Kan. App. 2d 180, 184, 563 P.2d 497, rev. denied, 221 Kan. 757. A new trial should not be granted unless the new evidence is of such materiality as to be likely to produce a different result upon re-trial. State v. Johnson, supra, Syl. 3.
The proffered affidavit was of questionable relevance, and the showing made by defendants that they could not have secured the evidence contained in that affidavit prior to trial was not clearly convincing. Under the circumstances, we find no abuse of discretion by the trial court in not considering the contents of the affidavit and in denying the new trial. See McHugh v. City of Wichita, supra.
Defendants make note of the fact that the land in question was rezoned by the city of Salina on October 5, 1972; that plaintiffs took no action to challenge the rezoning; and that the present action was not filed until one and one-half years later, two weeks after construction had begun on the mortuary. They argue that the delay constitutes laches and that plaintiffs are estopped to deny the validity of the rezoning, such being a matter of legislative record, citing 28 Am. Jur. 2d, Estoppel and Waiver § 2, p. 600. Plaintiffs treat this argument rather lightly, however, contending that there was nothing for them to contest until the construction began. This is not correct. Under K.S.A. 12-712, plaintiffs could have brought an action to challenge the reasonableness of the zoning ordinance. As the land was dedicated for “purposes of sepulture,” it might well be that the city was without authority to authorize other uses merely by rezoning it to accommodate such other uses. Cooper v. City of Great Bend, 200 Kan. 590, 438 P.2d 102; The State, ex rel., v. City of Manhattan, 115 Kan. 794, 225 Pac. 85. The zoning was for “office district” which included a mortuary. May it reasonably be argued that any type of office building may be located on the land, simply because the city has zoned it that way? Such would be the result if plaintiffs were estopped to challenge uses not within the ambit of “purposes of sepulture.”
It has been held that, as to lands dedicated to the public and vested in the control of the city, neither laches nor estoppel will lie.
“Those rights, duties, and privileges conferred and imposed upon a municipal corporation exclusively for the public benefit cannot ordinarily be lost through nonuse, laches, estoppel, or adverse possession, and statutes of limitation are not ordinarily applicable thereto.” Douglas County v. City of Lawrence, 102 Kan. 656, Syl. 4, 171 Pac. 610.
See also, Devine v. City of Seward, 174 Kan. 734, 737, 258 P.2d 302. Although plaintiffs here are private parties, the rule against laches and estoppel in the defense of a dedication should apply equally to them. If not, an important element in the protection of dedicated land might be lost, for it is not uncommon for the city government to be the advocate in the alteration of a dedicated use, rather than a defender of it. See e.g. Cooper v. City of Great Bend, supra. On the other hand, it has specifically been said that “[ajctions seeking to enjoin interference with dedicated property will be barred by laches if not brought with reasonable promptitude after notice of such interference.” 26 C.J.S., Dedication § 73, p. 570. As noted, plaintiffs had notice of the rezoning for some time but did nothing. The action was not filed until construction on the mortuary had begun. Defendants had expended considerable time and money by that time. However, defendants are not here with completely clean hands. We are informed that the mortuary is now complete, which can only mean that the building was completed after notice of the suit. Although no temporary injunction was sought, can defendants properly “shore up” their laches argument by pointing to a now complete building? Defendants correctly note that the doctrine of laches is equitable, depends upon all the surrounding circumstances, and must be determined on a case-by-case basis. Clark v. Chipman, 212 Kan. 259, 510 P.2d 1257. We hold that the trial court did not err in failing to apply the doctrine of laches or estoppel to defeat plaintiffs’ claim.
We are reminded that the deeds executed to the plaintiffs and all members of the class provided that the recipients were taking the deeds subject to the rules and regulations of the cemetery corporation, then existing and thereafter adopted. Defendants direct attention to the corporate charter which initially provided for “[bjuilding & maintaining a Park Plan Cemetery & selling lots in same for the purpose of sepulture,” but which was amended under date of December 20,1954, and again under date of July 22, 1971, to finally authorize the corporation to “maintain cemeteries, mortuaries, mausoleums, vaults, chapels and other buildings and improvements for the protection, preparation for the burial . . . of the dead; the construction, purchase and operation of greenhouses, conservatories, maintenance buildings and office buildings to include collecting departments, savings and loans, insurance, trust departments and other things necessary and incidental to laying out, paving its streets, collection of accounts . . . ornamentation, maintenance and management of .such cemetery . . . .” Defendants suggest that plaintiffs are bound by the rules of the corporation set forth in the charter, as amended, and cannot now seek to enjoin the construction of a mortuary or other buildings incidental to the cemetery business.
It is to be noted that plaintiffs do not here challenge the power of the corporation to operate a mortuary, but rather the power to do so on land dedicated as a cemetery. Taken to its logical conclusion, the defendants’ argument would seem to indicate that the owners of lots and crypts in the cemetery would be bound to accept whatever enterprise the corporate directors might elect to pursue on the dedicated premises, however remote from the ordinary operation and maintenance of the cemetery itself.
Imprinted on the reverse side of each of the deeds in question is the general rule that “the owners of Roselawn Memorial Park, in order to preserve and maintain uniformity, harmony and beauty, to provide for stability and against decay and deterioration, to safeguard the sanctity of each lot or grave against future inefficient care, reserves for itself, its successors and assigns, the right to make any and all rules, regulations, limitations and restrictions, that it may deem necessary to protect and provide for the future welfare of Roselawn Memorial Park ... all of which it binds itself to do.” Although the owner of a cemetery lot may be bound by reasonable and uniform rules and regulations established by the cemetery corporation (14 Am. Jur. 2d, Cemeteries § 38, p. 745), such does not preclude a challenge to any use of the land dedicated for cemetery purposes, deemed to be inconsistent with those purposes. The California case cited by defendants (Wing v. Forest Lawn Cemetery Assn., 15 Cal. 2d 472, 101 P.2d 1099 [1940]), which is discussed in more detail in following portions of this opinion, is distinguishable on this point as involving an attempt to read into the deed a restrictive covenant prohibiting the mortuary on land owned by the cemetery association-grantor. It is true that the rule in Kansas is that restrictive covenants are to be construed strictly with any doubt being resolved in favor of the free use of the land. South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 549 P.2d 1035. However, that is not the rule as to dedication. Far from supporting defendants’ position here, City of Russell v. Russell County B. & L. Assn., 154 Kan. 154, 159, 118 P.2d 121, provides that, in matters of dedication, all ambiguities must be resolved against the dedicator and in favor of the public.
Defendants say there is no evidence in the record of any injury caused the plaintiffs in their capacity as cemetery lot owners by the operation of a mortuary, and in such situation, the granting of an injunction is improper. We accept the rule that injunctive relief will not ordinarily be granted without a showing of substantial and positive injury. Dill v. Excel Packing Co., 183 Kan. 513, 331 P.2d 539. However, in 43 C.J.S., Injunctions § 22, p. 440, it is stated:
. . [T]here is an obvious distinction between injury and damage that is not always observed in dealing with the question of injunctive relief, and courts of equity will interpose in a proper case to protect a right, without any reference to the question of actual damage . . .
In 42 Am. Jur. 2d, Injunctions § 29, p. 765, it is stated:
. . [Tlhere is an obvious distinction between injury and damage, which is not always observed in dealing with the question of injunctive relief. Whatever invades a man’s right of dominion over his property is a legal injury, whether damage ensues or not. It is a right for the violation of which the law imports damage, and courts of equity will interpose in a proper case to protect the right, without any reference to the question of actual damage; a showing of specific money damage is not necessary to support an injunction.”
Defendants suggest one example of injury is that plaintiffs have an interest in property upon which the alleged unauthorized business is being conducted. That is precisely the issue. In every dedication of property, there are three interested parties — the dedicator, the general public, and property owners with special interests, such as owners of lots. The State, ex rel., v. City of Manhattan, supra. There is no doubt in the minds of this court that the owners of lots in a dedicated cemetery, as well as the owners of crypts in a mausoleum situated on that cemetery, are possessed of sufficient special interests to entitle them to seek relief from any unauthorized use to be made of the cemetery by means of injunction. See Hagaman v. Dittmar, 24 Kan. 42.
We come now to the vital issue on this appeal. May a mortuary properly be constructed and operated on land dedicated “for purposes' of sepulture.”
Admittedly, the precise issue here presented has not previously been before the appellate courts of this state. Although it is stipulated in this case that at least four other mortuaries in Kansas are located adjacent to or within the boundaries of cemeteries, the circumstances by virtue of which those mortuaries exist are not revealed.
It must be borne in mind that the real estate here involved was platted and dedicated on April 23, 1927, for the purpose of building and maintaining a park plan cemetery and selling lots therein for the “purpose of sepulture” and for no other stated purpose. Defendants correctly suggest that, whether a particular use amounts to á diversion from the purpose for which the dedication was made, depends óñ the circumstances of the dedication, but any use is authorized that is fairly Within the terms of the dedication and reasonably serves to make the property fit for enjoyment by the public in the manner contemplated. Also, the dedicator is presumed to' have intended the property to be used by the public, within the limits of the dedication, in such a way as is most convenient and comfortable to the public, and this is true not only to usages known at the time of the dedication, but also to those uses justified lay change of conditions. They cite 23 Am. Jur. 2d, Dedication § 67, pp. 57-58¡ Wherein it is stated:
“When land is dedicated for a special and limited use, use for any other purpose is unauthorized .... In any case, however, such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. The dedicator is presumed to have intended the property to be used by the public, within the limitations of the dedication, in sush way as will be most convenient and Comfortable and according to not only the properties and usages known at the time of tké dedication, but also to those justified by lapse of time and change of conditions.”
See also, 14 Am. Jur. 2d, Cemeteries § 19, pp. 723-724.
There are Conflicting views as to whether a mortuary is a use which may properly be made of land dedicated for burial purposes. The state of California, as reported in Wing v. Forest Lawn Cemetery Assn., supra, and Sunset View Cemetery Assn. v. Kraintz, 196 Cal. App. 2d 115, 16 Cal. Rptr. 317 (1961), clearly adheres to the position that a cemetery corporation empowered to hold land “exclusively as a cemetery for the burial of the dead” may operate a mortuary thereon as a use incidental to the use authorized by statute. In Wing, the California court noted cases which had authorized such operations as greenhouses, vault and grave marker production and sale, and concluded that a mortuary was a much more intimate incident of burial than any of those. See Annotation, 130 A.L.R. 130. The rule adopted in Wing is:
“. . . [C]emetery lands may be used for such purposes as are incident to the burial of the dead, so long as the rights of the lot owners in their own lots and their rights of egress and ingress are not invaded. [Citations omitted.]” (15 Cal. 2d at 478.)
An opposite view appears to have been adopted by the state of Georgia in the case of Greenwood Cemetery, Inc. v. MacNeill, 213 Ga. 141, 97 S.E.2d 121 (1957), wherein it was held:
“. . . [T]he property of Greenwood Cemetery, Incorporated, here involved, including the proposed site of the mortuary, is dedicated for cemetery purposes .... When a tract of land has been dedicated as a cemetery, it is perpetually devoted to the burial of the dead and may not be appropriated to any other purpose .... ‘The owner of the fee is subject to a trust for the benefit of those entitled to use the land as a place of burial. He has no right to recover the use of the land for any enjoyment or purpose of his own. Again, while the owner of a cemetery has a perfect right to sell and convey it as such, he can do nothing which interferes with the use of the land as a cemetery . . . .’10 Am. Jur. 491, § 8 ... .
“. . . [I]t must be held that the property in question can only be used as a place for burying the dead, and any other attempted use is an unlawful attempt to appropriate property dedicated for cemetery purposes to other uses, which cannot be done. It therefore follows that the judgment of the court below enjoining the construction of the mortuary here involved was not error.” (213 Ga. at 142-143.)
It was apparently on the basis of the Georgia authority that the trial court entered its findings of fact and conclusions of law.
The Kansas courts have often stated the general rule that property dedicated for a particular purpose cannot be used for any other purpose. Some cases have involved clear deviations. In Cooper v. City of Great Bend, supra, it was held that the city could not construct a parking lot on land dedicated as a park. In Comm’rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620,1 Pac. 109, it was held that land dedicated for church purposes could not be used for a courthouse. In State, ex rel., v. City of Kansas City, 189 Kan. 728, 371 P.2d 161, it was held that land dedicated as a park may not be used for a library and school offices and that, vice versa, land dedicated for school purposes •may not be used as a park. It has also been held that land dedicated for a particular purpose cannot be sold to a private party, and the proceeds then used for the dedicated purposes elsewhere. See Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453; The State, ex rel., v. City of Manhattan, supra.
As to incidental use, the court has recognized that land dedicated as a street may be put to any incidental use “which reasonably conduces to the public convenience and enjoyment. . . .” Wood v. National Water Works Co., 33 Kan. (2d ed.) 590, 596, 7 Pac. 233; Cummins v. Summunduwot Lodge, 9 Kan. App. 153, 58 Pac. 486.
Kansas cases involving cemeteries have been limited to statements of the general rule.
. . All lots and tracts of land contained within the boundaries of a cemetery platted by a cemetery corporation are dedicated exclusively for burial purposes and cannot be used for any other purpose. (K.S.A. 17-1302, et seq. [Weeks 1969]; Earhart v. Holbert, 116 Kan. 487, 227 Pac. 351; Davis v. Coventry, 65 Kan. 557, 70 Pac. 583.) . . . .” Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 44, 542 P.2d 278.
Defendants argue that the dedication was for purposes of sepulture, by definition synonymous with burial, which has been defined as “the act or ceremony of burial” and, by applying these definitions, a mortuary for the conduct of funeral services is clearly within the purposes of “sepulture.”
Surely no one will argue with the fact that the services of a licensed mortician in Kansas are intimately associated with the act of burial of the dead. By the same token, it is doubtful that anyone will argue with the fact that services ordinarily provided by a mortuary in Kansas are competitive commercial enterprises, with aims and goals not solely for the enjoyment and use of the public. K.S.A. 65-1713, et seq. Where will the line be drawn? The general rules set forth on the deeds to the cemetery lots and to the crypts give no indication to the more than 6,000 purchasers that any part of the area in which they have selected lots to bury their loved ones, or in which they themselves may eventually be buried, will be used for any commercial enterprise, whether it be the operation of a mortuary or buildings housing offices for collection departments, savings and loans, insurance, trust departments, or others. In fact, the record here is indicative of the contrary — that purchasers of lots and crypts in the dedicated cemetery had every reason to believe that no part of the dedicated area would be used for any purpose other than for human interment, and certainly not for commercial purposes.
The statutes governing cemetery corporations are K.S.A. 17-1302, et seq. Essentially, cemetery corporations are empowered to convey burial lots for burial purposes only (K.S.A. 17-1309), and the corporation is required to set aside not less than fifteen percent of the purchase money for the permanent maintenance fund of the cemetery (K.S.A. 17-1311). Upon the sale of all of the burial lots in the cemetery, or upon a vote of two-thirds majority of the stockholders of the corporation, the corporation may be dissolved and thereupon the permanent maintenance fund, together with all investments and all books, records and papers of the corporation, shall be turned over to the city treasurer of the city in which, or adjacent to which, the cemetery is situated. The governing body of the city is then required to provide for the investment of the funds and to care for and maintain the cemetery (K.S.A. 17-1313).
Plaintiffs direct attention to the fact that no portion of the consideration paid by Roselawn Services, Inc., for lot seven, on which the mortuary was erected, has been paid into the maintenance fund.
Defendants counter that “burial purposes” include the operation of a mortuary; that the land conveyed for the mortuary was never platted into burial lots and, therefore, the statute requiring sale for “burial purposes” only and contribution to the maintenance fund does not apply. At this point, we make the observation from the copies of the plat and the replat provided us that, although lot seven on which the mortuary was erected does not appear to have been subdivided into burial lots, a sizable portion of the north 200 feet of the 40 acres in question was initially so divided, and the replatting of the north 200 feet of the cemetery has the effect of eliminating a sizable number of those burial lots.
Defendants also argue that the pledge of the original dedication “for its preservation and improvement” somehow justifies the construction of the mortuary for “a building is normally considered to be an improvement upon the land of its situs” and, therefore, the construction of the mortuary is an improvement and consistent with the dedication and the Kansas statutes. We do not believe this to be the type of improvement ever intended by the dedicator.
We conclude that the construction and operation of a mortuary on the real estate here involved (which was dedicated for purposes of sepulture), or any other commercial use of any portion of that area not directed to the selling of cemetery lots with proper access thereto or for the maintenance and beautification of the area, constitutes use in a manner not contemplated by the original dedication, not fairly within the terms of that dedication, and not within the scope of the statutes of this state regulating cemetery corporations.
Judgment affirmed. | [
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Rees, J.:
This is an appeal by the State from a suppression order. We reverse.
The question before us solely concerns whether there was a waiver after defendant had been advised of his Miranda rights and had acknowledged his understanding of them.
Defendant was charged with attempted burglary. The case came on for trial. A jury was selected. Before it was impaneled or sworn, a Jackson v. Denno hearing was held to determine the admissibility of statements made by defendant to the police.
The first witness called at the hearing was Officer Williams of the Wichita police department. He testified that at approximately 4:25 a.m. on the morning of August 16, 1977, he responded to a call at the Madison Square Shopping Center. Upon arriving he observed a black male on the roof of a building. Seeing Williams, the suspect ran across the top of the building to the opposite side. Defendant and another man were arrested as they came down from the roof.
After ordered by Williams to lie on the ground, defendant was searched, handcuffed, and read his Miranda rights. Williams asked the defendant if he understood his rights and received an affirmative answer. Williams then placed the defendant in the back seat of a police car and began to question him. The conversation was described in part as follows:
“Q. And would you please tell us what the condition — the location of the defendant was at the time you had this conversation?
“A. Well, he was sitting in the passenger seat handcuffed, hands were handcuffed behind his back. And I asked him if he could tell me what was he doing on top of the roof. At first he was very hesitant about answering the questions. And eventually he told me that he and the other black male on top of the roof were on the roof about twenty to thirty minutes. . . .”
It was the further testimony of Williams that defendant then gave an oral confession that he and his companion were attempting to burglarize the shopping center. After examination and cross-examination, the court asked Williams the following questions:
“THE COURT: I need to ask a couple to clear up a thing.
“Officer, to go back to where you said that you advised the defendant of his rights and he told you he understood them: I believe you also testified that he at first was hesitant in answering questions. Is that what you said?
“THE WITNESS: Yes, sir, after we got back to the police car he was hesitant about answering any questions I asked him pertaining to the possibility of a burglary.
“THE COURT: Well, did he ever tell you before you asked him any questions that he would answer questions?
“THE WITNESS: No, sir, I don’t recall.
“THE COURT: So after you read him his rights and he told you he understood them, you did not ask him if he was willing to go ahead and answer questions notwithstanding the fact he didn’t have to?
“THE WITNESS: I asked him if he had anything to tell me, you know, if he had anything he’d like to tell me pertaining to the possibility of burglary.
“THE COURT: Well, I guess what I’m trying to establish, Officer, for the record, the law of Miranda requires the officer to advise the person of his rights, as you know. It then requires that he acknowledge that he understands them, which you testified took place. It then requires a waiver by the defendant, an affirmative waiver in which the officer asks the question in this fashion or something like this: Having those rights in mind, are you willing to answer questions.
“Did you ever ask him that question before you asked him any questions about the burglary?
“THE WITNESS: No, sir, I didn’t. I just advised him of his rights and asked him if he had anything he would like to tell pertaining to the burglary.
“THE COURT: I have no other questions.”
The only other witness at the hearing was Detective Landon, who had interviewed defendant at the police station after his arrest. Landon also advised defendant of his Miranda rights by reading from a sheet. After each right was read, he asked the defendant if he understood that right. Defendant stated he understood each of the rights. Following the four Miranda rights, there appeared on the sheet the following sentence: “I have read this statement of my rights and understand what my rights are.” Defendant read the sheet and again advised Landon he understood his rights and signed the sheet. Landon then proceeded to question the defendant and obtained an oral confession. After examination and cross-examination, the court questioned Landon as follows:
“THE COURT: After you finished reading him the rights and he read them- and advised you he understood them and signed his name, what was the — did you, before you asked him any questions about what he was in custody for, ask him whether or not he was willing to answer questions pertaining to what he was in custody for or waive his rights in answering questions?
“THE WITNESS: Well, I had Mr. Baker fill — I read him his Miranda rights. Then I filled out an interview or a personal history sheet.
“THE COURT: After you read the Miranda rights?
“THE WITNESS: Yes, sir. And then next after I finished the personal history sheet, I advised him that I had talked to Floyd Phillips [the codefendant]. And I asked him to tell me what was, you know, his side of the story. I didn’t elaborate on the Miranda warning.
“THE COURT: Did you ever ask him whether he wished to, with his rights in mind that you had read to him, did he wish to answer any questions?
“Do you follow what I’m asking?
“THE WITNESS: Yes, sir, I’m trying to remember. I don’t recall.
“THE COURT: I have no other questions.”
Following the testimony of Officer Williams and Detective Landon, the court ruled and engaged in the following conversation with the prosecutor:
“THE COURT: The basic element of waiver having not been established, the evidence is not admissible.
“MR. WALLER: Well, Your Honor, I believe what the court is leaning toward is the old, well, portion: Therefore, having these rights in mind is it now your desire to talk.
“I don’t believe that’s required in the Miranda decision.
“THE COURT: That’s one form of it, there has to be an affirmative waiver.
“MR. WALLER: I believe that an affirmative waiver can be constituted when the individual starts talking, Your Honor.
“THE COURT: True, if he starts talking, but not if he starts answering questions.
“THE COURT: Well, there is no question whatever that the defendant was very fairly and very fully advised of his rights. But that is not all that is necessary to make his testimony admissible into evidence. First you advise someone of his rights, for example: You don’t have to answer any questions. You don’t then start asking questions until you find out if he is willing to waive that right. That’s the point. Otherwise, there is no point in giving him that advice in the first place. And the Supreme Court has held many times there must be a voluntary waiver.”
We conclude that the trial court’s consideration of the question of defendant’s waiver of his Miranda rights was unduly restrictive. We agree that an affirmative waiver of Miranda rights must be found before a subsequent confession elicited upon custodial interrogation may be admissible evidence in the State’s case in chief. However, where a defendant who has been advised of his rights and has acknowledged his understanding of those rights proceeds to voluntarily answer questions, such waiver may be implied under the facts of a particular case.
The decision in the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), makes it clear that the State must prove the necessary warnings were given a criminal defendant and the defendant waived those rights before a confession given during custodial interrogation may be admitted at trial. In regard to this case, the essence of the Miranda decision is as follows:
“. . . Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (384 U.S. at 479.)
A substantial burden is placed upon the State to prove the voluntariness of a confession where obtained during custodial interrogation without the presence of counsel.
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. . . .” (384 U.S. at 475.)
Evidence to meet this burden was discussed as follows:
“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U S 506, 516, 8 L ed 2d 70, 77, 82 S Ct 884 (1962), is applicable here:
“ ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ ” (384 U.S. at 475.)
Cases following Miranda have generally held that even though a valid waiver of Miranda rights cannot “be presumed from the silence of the accused after warnings are given,” under the circumstances of a particular case, waiver may be implied where after having been advised of his rights and understanding of them has been acknowledged, the defendant answers questions put to him by law enforcement officers.
In United States v. Hilliker, 436 F.2d 101 (9th Cir. 1970), the defendant was arrested upon a charge of car theft. The arresting officer informed the defendant of his Miranda rights and the defendant replied that he understood those rights. A few minutes later, after the defendant had been placed in the rear seat of a police car for transportation to the police station, he admitted he had taken the car. There was no intensive or intimidating interrogation or other evidence of coercion. In affirming the conviction and the use of the oral confession, the Ninth Circuit said that “[c]ourts must determine the validity of a waiver of Miranda rights on an ad hoc basis looking carefully to the particular circumstances of the case.” (p. 102.) In discussing Miranda, the court said in part:
“. . . Even though the Supreme Court stated that ‘[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver[,]’ Miranda, 384 U.S. at 475, 86 S.Ct. at 1628, it did not say that these are the only circumstances under which a valid waiver may be found. While the Court, in Miranda emphasized that a valid waiver will not be ‘presumed’ simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained, we think a waiver may be implied where warranted under the facts of a particular case.” (p. 102.)
The court concluded that, although at the time of the confession defendant had not expressly stated that he waived his Miranda rights, “the described circumstances indicate that he did, know ingly, intelligently, and voluntarily, waive those rights at the time he first admitted he had taken the automobile.” (p. 103.)
In United States v. Mix, 446 F.2d 615 (5th Cir. 1971), the defendant was arrested and charged with unlawful possession of unregistered firearms. The investigating officer gave the defendant a complete Miranda warning, at the end of which he asked the defendant if he understood his rights and received an affirmative reply. The investigator then proceeded to take the defendant’s fingerprints and at the same time questioned him. Defendant made incriminating statements which were introduced against him at trial. On appeal, defendant argued the government’s evidence established only that the defendant was given the Miranda warning and comprehended his rights but that the government failed to prove the defendant waived those rights prior to making a statement. In affirming the conviction, the Fifth Circuit said:
“In the case now at bar, Schmidt [the investigator] gave complete advice to appellant as to his rights before any questioning occurred. Before he made the inculpatory statements involved, Mix was asked if he understood his rights and responded that he did understand them. It was not necessary for Agent Schmidt to run down the list of rights available to appellant seriatim and then to inquire as to each whether appellant waived that right. We are of the clear view that the government adequately established the voluntariness of the statements made to Agent Schmidt by Mix on September 5, 1969, and that accordingly the district judge did not err when he admitted them in evidence at trial.” (p. 621.)
Other cases where a waiver of Miranda rights has been implied from the circumstances of the case, in absence of an express waiver, include United States v. Moreno-Lopez, 466 F.2d 1205 (9th Cir. 1972); United States v. Montos, 421 F.2d 215 (5th Cir. 1970); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976); and Blackmon v. Blackledge, 541 F.2d 1070 (4th Cir. 1976).
In State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974), the defendant was arrested for having shot at a police officer. The Miranda rights were immediately read to him. When asked if he understood his rights, defendant replied in the affirmative. Defendant then asked the police if they had a search warrant and, further, whether there would be a “head knocking over this deal with the cop.” (p. 30.) The police then placed defendant in the back of a police car. On the way to the police station, one of the officers asked defendant where his gun was. Defendant replied, “The river got it.” (p. 30.) The trial court, after a Jackson v. Denno hearing, permitted the police to testify as to the defendant’s statement concerning the location of the gun. Defendant argued on appeal that the trial court erred in admitting the statement. The Supreme Court said in part:
“. . . Defendant admits the Miranda warning was given and acknowledged by him prior to his inculpatory statements. Defendant’s argument seems to be that the arresting officers should have done more than merely give him the Miranda warning and should have asked him specifically if he wanted to exercise any of his rights after the warning had been given. This argument is untenable. Defendant gave an unequivocal ‘Yes’ response when asked if he understood his rights. He makes no claim that he was coerced or that his statements that the gun was in the river were given otherwise than voluntarily.” (p. 30.)
The State has a heavy burden to demonstrate that a defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel before a confession obtained during custodial interrogation may be admitted at trial. A valid waiver of Miranda rights cannot be presumed simply from the silence of the accused after the giving of a Miranda warning or from the fact that a confession was eventually obtained. Miranda v. Arizona, supra, at p. 475. However, the courts must look at the circumstances of each individual case to determine the validity of a waiver of Miranda rights. United States v. Moreno-Lopez, supra, p. 1206. Miranda does not hold that an express declination of the right to counsel is an absolute from which, and only from which, a valid waiver can flow. Bond v. United States, 397 F.2d 162 (10th Cir. 1968). A waiver of Miranda rights need not be express but may be implied from the circumstances of the individual case. United States v. Hayes, 385 F.2d 375, 377-378 (4th Cir. 1967); United States v. Hilliker, supra, p. 102; United States v. Moreno-Lopez, supra, p. 1206. A valid waiver of Miranda rights may be implied under some circumstances where a defendant, who has been advised of his Miranda rights and has acknowledged his understanding of them, freely answers questions put to him by law enforcement officers. State v. Wilson, supra; United States v. Hilliker, supra; United States v. Mix, supra.
We do not hold that the giving of a Miranda warning to the criminal defendant and acknowledgment of his rights by the defendant in all cases validates a subsequent confession elicited during custodial interrogation. Such a holding would clearly contravene the mandatory language of Miranda v. Arizona, supra. We do hold that the mere absence of an express waiver of Miranda rights by a defendant, who has been advised of those rights and has acknowledged his understanding of them, will not in all cases preclude the use of a subsequent confession obtained during custodial interrogation.
On the basis of the record before us, we do not and cannot hold as a matter of law that this defendant waived his Miranda rights. It may be that the State will be unable to carry its heavy burden of showing knowing and intelligent waiver. Such a determination is for the trial court upon remand for a new Jackson v. Denno hearing consistent with this opinion.
Reversed with direction for further proceedings in accord with the views expressed. | [
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Parks, J.:
This appeal arises from alleged violations of the Kansas Securities Act, K.S.A. 17-1252, et seq. (since amended). The trial was to the Pawnee county district court which entered judgment in favor of the plaintiff Nadine Deets on the basis that defendant Hamilton Management Corporation was negligent in hiring the defendant Peggy L. Dailey as its agent in July, 1972. The court further held that defendant Dailey was acting within the scope of her apparent authority when she defrauded the plaintiff and converted plaintiff’s money to her own personal use. The defendant corporation appeals, and plaintiff cross-appeals for attorney fees.
The pertinent facts are as follows: During the summer of 1972, Financial Programs, Inc. sold its nationwide capital sales organization to the defendant corporation. The sale agreement autho rized Financial employees to sell Hamilton Funds as of July 10, 1972. Commissions from sales were to be paid directly to each agent by Hamilton.
Defendant Peggy Dailey accepted employment with Hamilton, as part of the agreement. The records furnished Hamilton by Financial indicated that Dailey had been convicted of forgery in 1953 and had falsified her 1958 registration applications to the Kansas Securities Commission and the National Association of Securities Dealers by denying that she had any prior felony convictions. As a result of that indiscretion, her authority to sell securities had been suspended for six months by both agencies in 1964.
Dailey was involved in a number of unauthorized transactions between 1958 and 1972 while an employee of Financial. She used two schemes. One approach was to advise customers that because she had been employed by Financial for a required amount of time, she had the opportunity to buy some management stock but lacked sufficient funds to do so. Although the stock would have to be bought in Dailey’s name, the customer could join with her in purchasing the stock and the investment would pay a fifteen to thirty per cent return. Dailey would then give a six-month note to the investor, in exchange for a loan with which she was to purchase the stock. In six months she would return to the investor, pay interest on the note and extend the note for another six months.
Dailey’s other approach was to inform Financial customers that certain Financial shares which were assets of an estate had to be sold and could be purchased at less than the fair market value. Again these non-existent shares were available only to Dailey, who offered the customer the opportunity to buy them through her, and in her name.
The record discloses that on July 11, 1972, the Kansas Securities Commissioner cancelled the registration of all Kansas Financial agents, including that of defendant Peggy Dailey. Two months later on November 14, 1972, Hamilton submitted Peggy Dailey’s application for registration under the Kansas Securities Act to the Securities Commissioner. Although the commissioner subsequently issued an order of registration for Dailey on November 20, 1972, that registration was later cancelled with prejudice on February 22, 1973.
The injury complained of here occurred on August 14, 1972, during an interview conducted by Dailey in the home of a former Financial customer, the plaintiff Nadine Deets. On that occasion Dailey informed plaintiff of her new employment with Hamilton and advised plaintiff that she was in a position to offer the same deal as she had offered her while employed by Financial. Plaintiff purchased a $50 Hamilton monthly investment plan and a $14,000 “special” allegedly consisting of Hamilton management company stock. At Dailey’s instruction, Deets designated Dailey as the payee of the $14,000 check and the First National Bank of Denver as the payee of the $50 check.
In December of 1972, Hamilton became aware of Dailey’s fraudulent schemes. An investigation followed and in January, 1973, Dailey admitted that she had used the two schemes to obtain money from her customers. Thereafter on February 15, 1973, Dailey returned to the plaintiff’s home and confessed that she had fabricated the story about Hamilton management stock being available. Dailey then gave plaintiff a personal note for $15,400 and backdated it to August 29, 1972.
The controlling question is whether Hamilton is liable for the acts of its employee, Peggy Dailey, who at the time of the fraudulent transactions was not duly registered as an agent under the Kansas Securities Act.
K.S.A. 17-1268 provides in pertinent part:
“(a) Any person, who offers or sells a security in violation of K.S.A. 17-1254 or 17-1255 ... is liable to the person buying the security from him. . . . “(b) Every person who directly or indirectly controls a seller liable under subsection (a) . . . and every broker-dealer or agent who materially aids in the sale is also liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. . .
K.S.A. 17-1254 referred to above provides that it is unlawful for any person to engage in business as an agent unless he is registered as an agent for a specified registered broker-dealer or for a specified issuer.
An “offer” or “offer to sell” includes every “attempt or offer to dispose of, or solicitation of an offer to buy, a security. . . .” The term “sell” itself includes “every contract of sale of, contract to sell, or disposition of, a security. . . .” K.S.A. (now 1977 Supp.) 17-1252(h).
On appeal it is not the function of the appellatejcourt to weigh conflicting evidence, to pass on the credibility of witnesses or redetermine questions of fact. The reviewing court is only concerned with evidence which supports the trial court’s findings, and not with evidence which might have supported contrary findings.
There can be no doubt that when Dailey offered to sell the Hamilton management stock to plaintiff on August 14, 1972, she was not registered with the Kansas Securities Commissioner. Her Financial registration was cancelled July 11, 1972, and her renewal with Hamilton was November 20, 1972. The fact that Dailey was not registered as an agent pursuant to K.S.A. 17-1254 brings into play the provisions of K.S.A. 17-1268(h).
Plaintiff had reason to believe that Dailey was authorized to offer the special deal on the Hamilton management stock because Dailey possessed the corporation’s credentials, its manuals, literature and forms. Moreover, she had the authority to receive and collect payments for investments in Hamilton funds. Not only do we conclude that Hamilton controlled Dailey as an employee, it is our opinion that when Hamilton supplied the brochures and forms to Dailey for her use, it materially aided in the fraudulent transaction within the meaning of K.S.A. 17-1268(h).
We find no merit in defendant Hamilton’s claim that Dailey’s February, 1973, delivery of the personal note to the plaintiff constituted either an accord and satisfaction or a novation which extinguished the obligation previously created in August, 1972. In order to effect a novation or to satisfy a debt there must be a release of the obligation. Davenport v. Dickson, 211 Kan. 306, 313, 507 P.2d 301 (1973). We find from Dailey’s own testimony that the note was merely intended to be a record of Dailey’s transactions with the plaintiff and nothing more. Accordingly, we conclude that there is substantial competent evidence to support the trial court’s findings as to the defendant corporation’s liability.
We now turn our attention to plaintiff’s cross-appeal for attorney fees. Having reached the conclusion that the defendant corporation is liable to the plaintiff under the provisions of K.S.A. 17-1268, we find that the trial court erred in denying plaintiff’s request for attorney fees. See McClellan v. Sundholm, 89 Wash. 2d 527, 574 P.2d 371 (1978).
Judgment is affirmed insofar as the appeal and remanded on the cross-appeal for a determination by the trial court of ^reasonable attorney fees. | [
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Meyer, J.;
Appellant, Stephen R. Burden (defendant), entered a plea of guilty to a charge of writing a worthless check in violation of K.S.A. 21-3707. Defendant’s counsel advised the court of a plea agreement with the state to the effect that the state would recommend a sentence of one to five years with immediate probation in exchange for defendant’s pleading guilty; the prosecutor indicated that several misdemeanor cases were dismissed as part of the negotiations. The court twice advised the defendant that it was not bound by the terms of the plea agreement, but nevertheless the defendant affirmed his plea of guilty. Subsequently, at the sentencing hearing, defendant requested that his plea of guilty be set aside and that he be permitted to plead not guilty. The court denied defendant’s request to change his plea, and the matter now comes before us pursuant to K.S.A. 60-1507.
The issue in this case is whether a defendant should be allowed to withdraw his guilty plea when the court refuses to follow sentencing recommendations made by the state as part of a plea bargain.
Granting or denying a defendant’s request to change his plea is a matter resting in the discretion of the court (K.S.A. 22-3210[7]). Here there is no allegation that the state failed to fulfill its agreement; the state in fact made the recommendations and took the actions it promised to take. The question is not, therefore, whether a plea bargain was breached as was the case in State v. Talsma, 2 Kan. App. 2d 551, 584 P.2d 145 (1978), but whether a defendant has a right to withdraw his plea when the recommendations of the state are not followed by the court.
In Rice v. State, 213 Kan. 591, 593, 518 P.2d 400 (1974), our supreme court stated:
“The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the accused.”
Here, the district court fully complied with K.S.A. 22-3210. The court advised the defendant of the consequences of his plea and of the maximum penalty he could receive, determined that the plea was voluntarily made with an understanding of the nature of the charge and consequences of the plea, and established that there was a factual basis for the plea. In addition, the record clearly reflects that the court advised the defendant, twice, that the plea bargain was not binding on the court.
A review of the record is sufficient to determine defendant’s motion to vacate sentence, under K.S.A. 60-1507, is without merit.
Affirmed. | [
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Rees, J.:
This is an action for breach of fiduciary duty allegedly owed plaintiff by the appellants (hereafter “defendants”), who were real estate brokers engaged in business as partners. Judgment was entered upon jury verdict for $180,000 compensatory damages and $184,647 punitive damages. Defendants appeal. We affirm as to the compensatory damages and, subject to acceptance of remittitur, reverse for new trial as to punitive damages.
The case was tried on the theory that defendant Williams had undertaken to act as plaintiff’s agent and that the fiduciary duty arising by reason of that agency relationship was breached to plaintiff’s damage. Defendants argue that (1) neither defendant Williams nor the partnership was the agent of plaintiff because there was no contract with plaintiff and (2) the damages awarded are not supported by the evidence. These arguments permeate and are the theses underlying all of plaintiff’s variously stated issues on appeal. Upon extended and thorough study and consideration of the record on appeal, the briefs and arguments of counsel, we conclude our determinations of these arguments are dispositive of all issues on appeal. However, we will discuss other incidental and related arguments made by defendants.
The case as tried is aptly described by the following portions of the trial court’s Instruction No. 2:
“In this case the plaintiff claims that the defendant J. Donald Williams agreed to represent plaintiff as his agent in an effort to purchase certain land owned at that time by one Dwight Tolle; That the defendant Williams was acting as one of the partners of a real estate agency known as Bolen-Williams Realtors a partnership consisting of the defendants Williams, Dan Bolen and Charles Stover; That the defendants obtained a listing of the property for sale at the price of $178,000.00, an amount agreeable to the plaintiff; That the plaintiff was never notified of the listing of the property for sale and that the defendant Stover and one Robert W. Mermis, who were partners in an enterprise known as M & S Investments, purchased the property from the owner without notice to the plaintiff and in violation of the responsibilities and duties of the defendants, Stover, Bolen and Williams as partners in Bolen-Williams Realtors, to the plaintiff as his agents.
“The plaintiff further claims that the action of the defendants was malicious & intentional.
“The plaintiff claims that as a result of the acts of the defendants he sustained damages in the amount of $253,310.00 and that he is entitled to punitive damages of $1,000,000.00.
“The parties stipulate and agree that at the times material in this case the defendants Dan Bolen, J. Donald Williams and Charles Stover were partners in the Bolen-Williams real estate agency and that J. Donald Williams was acting as agent for Bolen-Williams Realty;
“That the legal description of the property involved is not in dispute and that prior to June 21, 1975 it was owned by Dwight Tolle;
“That J. Donald Williams did obtain a listing on the property on or about June 21, 1975 for a sale price of $178,000.00;
“That the property was purchased on or about June 23, 1975 by Robert W. Mermis and defendant Charles Stover d/b/a M & S Investments;
“That the plaintiff was not notified by any of the defendants that the listing of the property had been obtained until after June 23, 1975.
“The defendants deny the . . . allegations [not admitted by the foregoing stipulations] . . . and further state that the plaintiff failed to mitigate his alleged damages according to law.”
It is appropriate in considering defendants’ arguments concerning the existence of a contract between the parties to review prior case law relating to the nature and existence of fiduciary duty arising out of the principal and agent relationship and the necessity of an underlying contract.
Most recently it was held in Sanders v. Park Towne, Ltd., 2 Kan. App.2d 313, 578 P.2d 1131 (1978), as follows:
“It is well settled that ‘the relation existing between a principal and agent is a fiduciary one demanding conditions of trust and confidence.’ Merchant v. Foreman, 182 Kan. 550, Syl. 2, 322 P.2d 740 (1958). See, also, Kline v. Orebaugh, 214 Kan. 207, 210, 519 P.2d 691 (1974) and Wolcott & Lincoln, Inc. v. Butler, 155 Kan. 105, Syl. 1, 122 P.2d 720 (1942). ‘[I]n all transactions concerning and affecting the subject matter of his agency, it is the duty of the agent to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal. . . .’ Merchant v. Foreman, supra at 556. The agent must give the principal the benefit of all his knowledge and skill and cannot withhold or conceal information from the principal. Ibid.” (p. 317.)
In Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691 (1974), it is said:
“. . . The relationship of principal and agent is a fiduciary one, and if a wrong arises because of the conduct of the agent the same remedy exists against the wrongdoer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust. (Wolcott & Lincoln, Inc. v. Butler, 155 Kan. 105,122 P.2d 720.) . . . Where a trustee violates any duty which he owes to the beneficiary he is guilty of a breach of trust and he is liable to the beneficiary to redress that breach of trust.” (pp. 210-211.)
Much of the case law dealing with the principal and agent relationship is reviewed in Merchant v. Foreman, 182 Kan. 550, 322 P.2d 740 (1958):
“As preliminary to discussing the first point, we refer to well-established rules applicable to its disposition: (1) the relation of principal and agent can only be terminated by the act or agreement of the parties to the agency or by operation of law, and an agency, when shown to have existed, will be presumed to have continued, in the absence of anything to show its termination, unless such a length of time has elapsed as destroys the presumption (2 Am. Jur., Agency, § 35, p. 36; 8 Am. Jur., Brokers, § 38, p. 1007; 2 C.J.S., Agency, § 68, 70, 81, pp. 1148, 1151, 1170; 12 C.J.S., Brokers, § 16, pp. 43, 44); (2) the relationship existing between a principal and agent is a fiduciary one demanding conditions of trust and confidence which require of the agent the same obligation of individual service and loyalty as is imposed upon a trustee in favor of his beneficiary (Gillies v. Linscott, 94 Kan. 217, 219, 146 Pac. 327; Wolcott & Lincoln, Inc., v. Butler, 155 Kan. 105, 122 P.2d 720; 2 Am. Jur., Agency, § 252, p. 203; 3 C.J.S., Agency, § 139, pp. 10-11), and that in all transactions concerning and affecting the subject matter of his agency, it is the duty of the agent to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal (Gillies v. Linscott, supra; Wolcott & Lincoln, Inc., v. Butler, supra; 2 Am. Jur., Agency, § 252, p. 203; 3 C.J.S., Agency, § 138, pp. 6-7); (3) where a fiduciary relationship is established between the parties the law views with suspicion and scrutinizes very closely all dealings between them in the subject matter of the agency to see that the agent has dealt with the utmost good faith and fairness, and that he has given the principal the benefit of all his knowledge and skill, and, if it appears that the agent has been guilty of any concealment or unfairness, or if he has taken any advantage of his confidential relation, the transaction will not be allowed to stand (3 C.J.S., Agency, § 145, p. 26; 2 Am. Jur., Agency, §<§ 252, 254, 260, pp. 203, 205, 209; 12 C.J.S. Brokers, § 41, pp. 96, 98; 8 Am. Jur., Brokers, §§ 86,88, pp. 1035,1037); and (4) one who acts as an agent and also deals with his principal with respect to the subject matter cannot take advantage of his principal by withholding from him any information within his knowledge, including the value of the property, which might have a bearing upon the desirability of the principal to make the trade (8 Am. Jur., Brokers, § 86, p. 1035; 3 C.J.S., Agency, §§ 139, 145 a, pp. 9, 27; 2 Am. Jur., Agency, § 260, p. 209; 12 C.J.S., Brokers, §§ 41, 47, pp. 96, 113.) . . .” (pp. 555-556.)
A principal and agent relationship, specifically in a case such as the one before us, exists only by virtue of contract.
“The relationship between a seller and a broker is that of agency; agency exists only by virtue of contract, express or implied; and whether there is a binding contract creating an agency relation must be determined by application of the same rules which pertain to contracts generally.” Lord v. Jackman, 206 Kan. 22, Syl. 2, 476 P.2d 596 (1970).
“The primary relation, as between customer and real estate broker, is that of agency, and the general rules of law applicable to principal and agent govern their rights and liabilities. Furthermore, agency can result only from contract, express or implied, and in determining whether a valid contract has been entered into, the rules which pertain to contracts generally are applicable. There must be consideration, mutuality and a meeting of the minds as to essential matters. Meeting of the minds may be shown by implication, by conduct of the parties. Like other features essential to a cause of action, the burden of establishing agency is upon the party asserting it. (Patee v. Moody, 166 Kan. 198, 199 P.2d 798.)” Hiniger v. Judy, 194 Kan. 155, 158, 398 P.2d 305 (1965).
With regard to appellate review, we are necessarily mindful of the following:
“While the determination of what constitutes agency and whether there is' any competent evidence reasonably tending to prove its existence is a question of law, the weight to be given evidence and the resolution of conflicts therein are functions of the trier of facts. . . . However, under well-established rules of appellate review this court disregards any conflicting evidence or inferences which might be drawn therefrom and accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings of the trial court. (Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, 524 P.2d 690; and Morris v. Hoesch, 204 Kan. 735, 466 P.2d 272.)” Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 371, 548 P.2d 719 (1976).
Our function is to determine if the record reveals any substantial competent evidence upon which a finding of agency could be based, not to decide whether, under proper instructions relating to the law of principal and agent, it actually did exist as a matter of fact. Carver v. Farmers & Bankers Broadcasting Corp., 162 Kan. 663, 672, 179 P.2d 195 (1947). The existence or non-existence of an agency relationship between these parties being a question of fact, we are limited in our review to a determination of whether the implicit jury finding that an agency relationship did exist is supported by the evidence. Kaw Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, Syl. 9, 549 P.2d 927 (1976); State v. Holt, 221 Kan. 696, Syl. 3, 561 P.2d 435 (1977).
There was submitted to the jury by satisfactory instructions the question of the existence of a contract between plaintiff and Williams. The jury was instructed as to all elements necessary to proof of, and existence of, a contract.
When all is said and done, the contention of defendants on appeal is that there was no evidence to support the existence of a contract. Defendants say there was no proof of mutuality of obligations. Defendants particularly argue there was no evidence of an obligation owed by plaintiff.
We find that although the evidence was conflicting, there was at least some evidence to support plaintiff in this regard. In his testimony, plaintiff stated he initially went to Williams “to see about him representing me to acquire [Tolle’s] property or possibly to purchase this property.” Plaintiff “contacted Mr. Williams to see about if there was a possibility of securing this property in my behalf from Mr. Tolle.” He testified there was no question in his mind that Williams was representing him as to the Tolle property. Twice in his testimony plaintiff indicated he was willing to purchase the Tolle property if defendant Williams could arrange a sale at a price between $150,000 and $200,000. Plaintiff testified as follows concerning a conversation he had with Williams in early 1975;
“Q. (By Mr. King): Anything else about the conversation concerning financing?
“A. I’m — concerning finances?
“Q. Yes.
“A. Just that we had talked about that, that in all probability, if he was willing to sell, that it would probably sell in the range of one-hundred-fifty (150) to two-hundred thousand dollars ($200,000.00), and that I was willing to purchase someplace in that range.”
During cross-examination plaintiff testified as follows:
“Q. Okay. Now, just what, sir, just what do you claim that you obligated yourself to do in your conversation with Don Williams in late January or early February of 1975?
“A. I had asked Don to find out whether or not he was willing to sell so that I could exercise, if it was within what I thought to, thought the value of the property was; to exercise the purchase of it — yes, sir.”
Although there is other conflicting testimony in the record and even some contrary admissions by plaintiff, a fair conclusion from the foregoing testimony would be that plaintiff was willing to purchase the property at a price between $150,000 and $200,000 and communicated that intention to defendant Williams. There was evidence plaintiff considered himself obligated to buy the property if a sale could be arranged within the range discussed.
Although perhaps “thin,” we consider the foregoing to be sufficient evidence to sustain on appeal the finding that a contract existed.
It is argued by defendants that plaintiff should not be afforded the benefit of our foregoing conclusion by reason of application to this case of the familiar rule that admissions by a party are binding and conclusive on him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination. Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 (1976); Carnegie v. Gage Furniture, Inc., 217 Kan. 564, 538 P.2d 659 (1975); Stewart v. Gas Service Co., 252 F. Supp. 385 (D. Kan. 1966). We conclude from examination of the trial transcript that the purported admissions relied upon by defendants are not “uncontradicted.” Plaintiff’s testimony in its entirety was equivocal and contradictory. We do not find the rule as to the binding effect to be given admissions applicable here.
Defendants argue that even if an agency relationship did exist between defendant Williams and plaintiff, it was terminable at will without notice to the other party. Defendants apparently argue Williams terminated the relationship when, after talking with Tolle, he reported back to plaintiff that Tolle was not interested in a sale.
Defendants rely upon the line of Kansas cases wherein it has been said that in 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. Johnson v. National Beef Packing Co., 220 Kan. 52, Syl. 1, 551 P.2d 779 (1976); May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 370 P.2d 390 (1962). Defendants cite 53 Am. Jur. 2d, Master and Servant, § 35, p. 111, for the proposition that, except where specifically provided by agreement or statute, neither an employer nor an employee is entitled to notice of termination of the employment.
The present case does not involve a simple employer-employee relationship but rather an agent-principal relationship. The rule as to duration and termination of an agency is well stated in Merchant v. Foreman, supra, as follows:
“. . . [T]he relation of principal and agent can only be terminated by the act or agreement of the parties to the agency or by operation of law, and an agency, when shown to have existed, will be presumed to have continued, in the absence of anything to show its termination, unless such a length of time has elapsed as destroys the presumption. . . (p. 555.)
See, also, 3 Am. Jur. 2d, Agency, § 34, p. 440.
Not only is an agency, when shown to exist, presumed to continue, but in order to render effectual the termination of an agency before it would otherwise terminate, notice of termination must be given the parties affected by the termination. 3 Am. Jur. 2d, Agency, § 42, p. 446. The burden of proving a termination of agency is upon the party asserting it. 3 Am. Jur. 2d, Agency, § 34, p. 440. In canceling an agency for an indefinite term, notice to the other party is generally required. 3 Am. Jur. 2d, Agency, § 35, p. 441.
In the present case, there was no notice given by defendants terminating the agency relationship with plaintiff as to the Tolle property. Nor was there any occurrence or action by the parties which would overcome the presumption of continuing agency. Plaintiff and defendant Williams continued to confer about the acquisition of the Tolle property until shortly before its sale to Stover and Mermis. Plaintiff had five or six conversations with defendant Williams about the Tolle property from January to May, 1975. The property was sold to Stover and Mermis on June 21, 1975. The evidence does not show that the agency relationship was terminated prior to June 21, 1975. Defendants did not prove termination.
It is argued by defendants that the compensatory damages judgment is not supported by the evidence. Defendants offered no damages evidence other than with regard to their claim that plaintiff failed to mitigate. Plaintiff was the only witness who testified as to damages. His testimony on direct examination was admitted without objection. In substance, he testified that in his opinion the combination of the Tolle property and the adjacent property owned by plaintiff had a value, as a single tract under single ownership, of approximately $110,000 in excess of the combined value of the two tracts under separate ownership ($350,000 less $240,000). He further testified that it was his opinion he lost anticipated net income of $143,000. Although on cross-examination defendants endeavored to impeach plaintiff’s opinion as to the property values, there was no evidence to the contrary. Thus, the sole evidence of plaintiff’s consequential damage was $253,000.
The $180,000 compensatory damage judgment is supported by, and within, the evidence and it must be affirmed. Diefenbach v. State Highway Commission, 195 Kan. 445, Syl. 1, 2, 447, 407 P.2d 228 (1965).
Defendants’ reliance upon the rule in Hadley v. Baxendale, 9 Exch. Ch. 341, 156 Eng. Rep. 145, 5 Eng. Rul. Cas. 502 (1854), is misplaced. Defendants’ liability is for breach of fiduciary duty, not for breach of contract.
Defendants also complain of the assessment of punitive damages. In Sanders v. Park Towne, Ltd., supra, it is said:
. . IP]unitive damages ‘are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. (Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; see, also, Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; and 15 Am. Jur., Damages, § 266, 700.)’ Watkins v. Layton, 182 Kan. 702, 705, 324 P.2d 130 (1958). In determining the amount of punitive damages, the trier of fact may consider ‘the nature, extent and enormity of the wrong, the intent of the party committing it and generally all the circumstances attending the particular transaction, together with any mitigating circumstances tending to reduce the verdict or wholly defeating the damages.’ Sweaney v. United Loan & Finance Co., 205 Kan. 66, Syl. 7,468 P.2d 124 (1970). The trier may also take into account the ‘probable expenses of litigation, including attorney’s fees . . . where such expenses are not stated to be matters which must be made a basis of compensation.’ Brewer v. Home-Stake Production Co., 200 Kan. 96, Syl. 2, 434 P.2d 828 (1967).” 2 Kan. App. 2d at 318-319.
Defendants argue punitive damages are not recoverable for breach of contract. This argument does not wash. Still again, the theory upon which this case was tried was breach of fiduciary duty. True, whether there was a contract between plaintiff and Williams, and in turn the defendant partnership, was a basic question. But, proof of the contract was to establish the existence of fiduciary duty. The damages, both compensatory and punitive, were awarded for breach of fiduciary duty, not breach of contract.
Defendants further complain there was no evidence of financial worth of defendants. We take it they would say the lack of such evidence constitutes absence of an element of proof essential to an award of punitive damages. Evidence of financial worth of a defendant is admissible where punitive damages is in issue, but it is not required. Carrick v. McFadden, 216 Kan. 683, 689-690, 533 P.2d 1249 (1975). By his petition, plaintiff sought $1,000,000 in punitive damages. Defendants were vulnerable to an award in that amount throughout these proceedings. If defendants were impecunious, or even relatively so, vis-a-vis this prayer, it may have behooved them to advance their own evidence of their financial worth.
For the purpose of proving plaintiff’s failure to mitigate his damages, defendants placed in evidence a letter from them offering to convey the Tolle property to plaintiff in consideration for his payment of $184,647 and dismissal of his lawsuit with prejudice. The letter offer was made eight days after suit was filed. It was promptly rejected by plaintiff. The jury was instructed to consider the letter only as it pertained to plaintiff’s failure to mitigate his damages.
Defendants argue the coincidence of the amount of the punitive damages award and the amount stated in the exhibit establishes jury disregard of the court’s instructions. We cannot find the coincidence, standing alone, fatal to the award. The amount has not been shown to be in contravention of the relevant principles and factors stated in Sanders, supra. We know of no authority requiring reversal because of coincidence in amount as in the situation before us, and no such authority has been cited by defendants.
The defendants contend the award of punitive damages was excessive and based on the passion and prejudice of the jury. Where the charge of excessive verdict is based on passion or prejudice of the jury and depends for support solely upon the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court. Hubin v. Shira, 1 Kan. App. 2d 203, 212, 563 P.2d 1079 (1977); Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, Syl. 1, 552 P.2d 176 (1974). It is our conclusion that the punitive damages award of $184,647 in this case is excessive and should be reduced to $35,000 upon the condition that the plaintiff accept the reduced amount of punitive damages in writing within ten days after this decision becomes final, by filing his acceptance with the clerk of the district court, or, upon his failure to accept the remittitur within the time allotted, the defendants be granted a new trial on the issue of punitive damages.
We have considered the defendants’ other contentions of error. Those not discussed are principally matters of claimed trial error because of which defendants assert they are entitled to a new trial. Assuming but not deciding such contentions to be meritorious, we find none of these claimed errors, individually, collectively within themselves, or collectively with the issues we have discussed, require reversal.
An amicus curiae brief was filed raising an issue not presented in the briefs of the parties and which does not appear to have been before the district court. This issue is not discussed since our rule is that an amicus curiae brief may not raise such issues. Cook v. Dobson Sheet Metal Works, 157 Kan. 576, 578, 142 P.2d 709 (1943); State, ex rel., v. Hines, 163 Kan. 300, 323, 182 P.2d 865 (1947); Hensley v. Board of Education of Unified School District, 210 Kan. 858, 864, 504 P.2d 184 (1972).
The judgment of the trial court for compensatory damages is affirmed. The judgment for punitive damages is reversed for new trial subject to plaintiff’s acceptance of remittitur. | [
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Abbott, J.:
This is an appeal by the defendant, Richard A. Garton, from having been declared a habitual violator as prescribed by K.S.A. 8-286. Defendant appeals on the premise that the county attorney did not forthwith commence prosecution following the receipt of defendant’s abstract of convictions from the Motor Vehicle Department as required by K.S.A. 8-286.
Defendant was convicted in Lane County, Kansas, on September 22, 1976, on three counts of driving while intoxicated. The crimes occurred on May 11, May 21, and June 7 of that year, and were the most recent in a long series of alcohol-related offenses involving the defendant (he is the subject of more than twenty separate files in Lane County District Court).
Prior to trial of the three offenses of driving while intoxicated, defendant’s parole on a prior felony offense was revoked and he was taken to the Kansas State Prison at Lansing. After being convicted on the three DWI offenses, defendant was sentenced on November 3, 1976, to three one-year terms in the Lane County jail. The three sentences were to run consecutively, but concur rently with the felony sentence that defendant was serving at Lansing.
On January 21, 1977, an abstract of appellant’s three DWI convictions was prepared by the Driver Control Bureau of the State Department of Revenue and forwarded to the county attorney of Lane County. At that time, defendant was still in Lansing. The county attorney did not immediately commence prosecution of defendant as a habitual violator, reasoning that it was not mandatory to issue summons to the defendant at a time when he was in prison and unavailable for a hearing in Lane County. Defendant completed his felony sentence on January 27, 1978, and was released to Lane County to serve the balance of the DWI sentences. A motion was then filed in defendant’s behalf for probation from the remaining twenty-two months of his DWI sentence. The following day, the county attorney of Lane County filed this action to have defendant declared a habitual violator pursuant to K.S.A. 8-286.
Both matters were heard on February 8, 1978. Defendant was placed on probation for three years commencing on April 1, 1978. Although K.S.A. 1977 Supp. 21-4611 appears to limit the initial period of probation to two years, no objection was made and that issue is not before us at this time.
The court also found defendant to be a habitual violator over the objection of defendant’s counsel that the action was not commenced forthwith some thirteen months earlier upon receipt of the abstract of convictions. This appeal followed.
The relevant portion of K.S.A. 8-286 reads as follows:
“Upon receiving said abstract, the district or county attorney forthwith shall commence prosecution, of such person in the district court of such county, alleging such person to be an habitual violator.”
Defendant would have this court construe forthwith as being synonymous with immediately.
An appellate court’s function is to ascertain the legislative intent and to uphold and make it effective if reasonably possible to do so. Rausch v. Hill, 164 Kan. 505, 190 P.2d 357 (1948). Our research has failed to disclose any Kansas cases which have construed the term forthwith and none are cited by the parties.
. The stated purpose of the act (K.S.A. 8-284) is not to benefit a habitual violator; rather it is to provide maximum safety for all people who use the public highways by depriving habitual vio lators of the privilege of operating motor vehicles on the public highways of this state. We view the term forthwith as being a directive to the county attorney to carry out his duty to the public by removing habitual violators from public highways at the earliest opportunity. The failure to do so could possibly result in a mandamus or ouster action. We do not view the legislative intent as being a directive to discharge the defendant if the county attorney fails to file the action forthwith. As we view it, the word forthwith is directory and not mandatory, for it gives the county attorney directions for the proper, orderly and prompt conduct in carrying out legislative intent and is not followed by words of absolute prohibition. Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968).
In the absence of substantial prejudice, the lapse of time between a criminal act 'and the filing of charges is no defense if the charge is filed prior to the expiration of the statute of limitations. United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971); United States v. Freeman, 412 F.2d 1181 (10th Cir. 1969); Walters v. Williams, 474 P.2d 661 (Okla. Crim. App. 1970). Although not purely a criminal case, the case at bar was well within the statute of limitations.
The trial judge correctly determined the county attorney commenced the action forthwith within the meaning of the statute. The term forthwith as used in K.S.A. 8-286 does not mean immediately and is not susceptible to a fixed time definition; rather, it means without unnecessary delay and requires reasonable exertion and due diligence consistent with all the facts and circumstances of the case in order to carry out the legislative intent of removing habitual violators from the public highways of this state for an extended period of time. N. C. Roberts Co. v. Topaz Transformer Products, Inc., 239 Cal. App. 2d 801, 49 Cal. Rptr. 209 (1966); Certified Indemnity Co. v. Thun, 165 Colo. 354, 439 P.2d 28 (1968); District of Columbia v. Howie, 230 A.2d 715 (D.C. App. 1967); Ervin v. Belaud, 251 Md. 612, 248 A.2d 336 (1968); Wallace v. Leggett, 248 Miss. 121, 158 S.2d 746 (1963); State v. Ward, 31 N.C. App. 104, 228 S.E.2d 490 (1976); Papin v. Imes, 19 Ohio Op. 2d 114, 184 N.E.2d 269 (1961). In Ward, the North Carolina court held that a delay of twenty-seven months, when combined with the fact that it extended the time the defendant would be without a license by more than two years, was unreasonable under the peculiar facts and circumstances present.
We find nothing in the record to suggest that defendant was unduly prejudiced by the delay. Admittedly, defendant was incarcerated and was unable to drive a motor vehicle during the year, and as a result he will be without a driver’s license for one year longer than he would have been had a prompt determination been made. Defendant’s incarceration is not the fault of the state. Had defendant not been incarcerated, he would have been able to drive and would not have incurred what he alleges to be an extra year’s loss of his license. Under the facts of this case, we conclude there is sufficient evidence to support the trial court’s decision, especially in view of the legislative intent to keep off the public highways those people who have repeatedly committed serious driving violations, and whose past conduct indicates they will commit further traffic offenses, thus endangering the safety and well-being of themselves and others. The defendant presented no danger to himself or others until he was released from prison. The action was then filed. While under other circumstances we might find both that the action was not brought forthwith and that it was unreasonable to withhold filing a habitual violator action until a prisoner has been released from prison, we do not so find in this case.
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Rees, J.:
This is an action brought to recover survivors’ benefits and attorney fees under the personal injury protection (PIP) endorsement to an automobile liability insurance policy. The trial court limited the amount of survivors’ benefits recoverable to the amount of actual economic loss proved. Attorney fees were denied. Plaintiffs appeal.
The deceased insured, Michael Flora, died in an automobile accident on October 13, 1974. He was survived by his wife, now Deborah Hand, and his minor son, Shawn Flora. Defendant is the insurer.
Deborah and Michael Flora were married on October 20, 1972. The union produced the one child, Shawn. The marriage did not continue to the mutual satisfaction of the parties. On July 6, 1974, Deborah moved out of the family home taking Shawn with her. On August 23, 1974, Michael Flora filed a divorce action. There was no court order for temporary support payments. Michael Flora and Deborah arrived at an informal verbal agreement that pending the divorce he would pay $50 per month for Shawn’s support. Michael Flora paid none of the agreed upon support. In fact, he paid nothing after July 6, 1974, for the support of Deborah or Shawn other than one purchase of groceries for Shawn. Michael Flora died before the divorce action could be heard. Within a month after Michael Flora’s death, Deborah married Michael Hand. But for two weeks spent with her parents, Deborah and Shawn have resided with Michael Hand since July 6, 1974.
Deborah made claim against the defendant for PIP survivors’ benefits. The claim was denied. Deborah and the conservator for Shawn filed this action. Defendant offered to confess judgment in the amount of $50 per month for twelve months.
The matter proceeded to judgment by the trial court. Substantially all material facts were stipulated by the parties. The only evidentiary hearing was on the issue of the amount of the plaintiffs’ actual economic loss. The parties’ contentions appear to have been thoroughly briefed and argued. The trial court concluded that in order to recover PIP survivors’ benefits, the survivors must prove the monetary value of their actual economic loss suffered by reason of the cessation of the insured’s monthly earnings. The court found that the only acceptable and nonspeculative evidence of actual economic loss of these plaintiffs was the agreement between Michael Flora and Deborah for monthly support for Shawn. Therefore, the judgment was limited to an award to Shawn in the amount of $50 per month for one year, plus interest, a total award of $740.94. Plaintiffs promptly appealed.
There are no questions presented to us by the parties concerning substitution benefits or expenses of survivors which have been avoided. Michael Flora’s average monthly gross earnings for the year preceding his death were $711. Defendant stipulated at oral argument that for the purpose of this case, if plaintiffs prevail, they are entitled to recover $7,800 (12 times $650), together with appropriate interest.
We have the benefit of excellent briefs filed by the parties and amicus curiae.
Defendant’s policy affords coverage for PIP benefits by lan guage that varies only inconsequentially from that of the Kansas Automobile Injury Reparations Act, K.S.A. 1974 (now 1977) Supp. 40-3101, et seq. (commonly known as the No-Fault Act and which we will refer to as “the Act”). By the terms of the policy and the Act, the mandatory requirements and obligations of the Act are assumed by and imposed upon defendant (K.S.A. 1974 [now 1977] Supp. 40-3107[g]). We will consider and apply the statutory language. There having been no material amendments to the relevant sections of the Act since its enactment effective July 1, 1973, we will refer to the statutory language as it appears in the 1977 Supplement to the Kansas Statutes Annotated.
Plaintiffs first contend that the district court erred in holding that survivors must prove actual economic loss occasioned by the death of the insured in order to be entitled to benefits, and that survivors’ benefits are limited to the amount of that loss if less than $650 per month.
The definition of “survivor” is as follows:
“ ‘Survivor’ means a decedent’s spouse or child under the age of eighteen (18) years, where death of the decedent resulted from an injury.” (K.S.A. 1977 Supp. 40-3103M.)
The definition of “survivors’ benefits” is as follows:
“ ‘Survivors’ benefits’ means total allowances to all survivors for: (1) Loss of an injured person’s monthly earnings after his or her death, up to, a maximum of not less than six hundred fifty dollars ($650) per month; and (2) substitution benefits following the injured person’s death. Expenses of the survivors which have been avoided by reason of the injured person’s death shall be subtracted from the allowances to which survivors would otherwise be entitled, and survivors’ benefits shall not be paid for more than one (1) year after the injured person’s death, less the number of months the injured person received disability benefits prior to his or her death.” (K.S.A. 1977 Supp. 40-3103[y].)
At issue is interpretation of “allowances to all survivors for: (1) Loss of an injured person’s monthly earnings after his or her death . . .” (K.S.A. 1977 Supp. 40-3103[y]). The holding of the trial court and defendant’s contentions go most directly to the meaning of the word “loss.”
Again, the trial court held and defendant contends the loss of earnings referred to in the statute is the survivors’ actual economic loss sustained as a result of the death of the insured. Under this view the survivors must establish by satisfactory proof the monetary value of support being received by them at the time of the insured’s death. Thus, defendant argues for affirmance on the ground that Deborah had received no support from the deceased for more than three months prior to his death and Shawn was shown to have been no more than the beneficiary of the unperformed informal support agreement and the single purchase of groceries during that same three months.
Plaintiffs contend it is the deceased’s loss of earnings occasioned by his death which controls the amount of survivors’ benefits. In other words, it is said the survivors of an insured are automatically entitled to benefits in an amount equal to the deceased’s average monthly earnings prior to his death, if within the $650 per month statutory limitation.
The language of K.S.A. 1977 Supp. 40-3103(y) is arguably subject to either interpretation. Our examination of the legislative history of the Act persuades us that plaintiffs’ position is correct and it is that position we adopt.
The historical background, legislative proceedings, and changes made in a proposed law during the course of its enactment may properly be considered in determining legislative intent. Urban Renewal Agency v. Decker, 197 Kan. 157, Syl. 2, 415 P.2d 373 (1966).
Although since amended, the Act is primarily a product of the 1973 session of the Kansas Legislature. At that session, at least three no-fault proposals were introduced in the House. They were referred to the House Insurance Committee. One bill, H. B. 1048, was the proposal of an interim committee, the Special Committee on Motor Vehicle Accident Reparations. It contained no provision for survivors’ benefits. Another bill, H. B. 1129, was authored by the Insurance Commissioner. It made express provision for survivors’ benefits. The language of the bill was in part as follows:
“ ‘Survivors’ loss’ means net basic economic loss after decedent’s death that his dependent survivors would have received from the decedent had he not suffered the injury causing death, less expenses of the survivors which have been avoided by reason of the decedent’s death.”
By its definition of “survivors’ loss,” H. B. 1129 proposed compensation to survivors for only such of the deceased’s earnings as the survivors would have received following his death had he not died.
A subcommittee of the House Insurance Committee studied the various bills, including the two we have identified by number. The subcommittee drafted a compromise bill containing elements of both H. B. 1048 and H. B. 1129. The compromise bill, titled Substitute for H. B. 1129, omitted the explicit “survivors’ loss” provisions of H. B. 1129 and included the general language which now appears in K.S.A. 1977 Supp. 40-3103(y). Substitute for H. B. 1129 was ultimately approved by the House Insurance Committee and passed by the legislature with minor amendments not here relevant.
We believe the fact that the legislature had before it a bill which clearly proposed limitation of survivors’ benefits to actual economic loss and rejected that proposal, albeit by committee action, is strong indication of legislative intent to not adopt the economic loss approach to survivors’ benefits.
We are aware that defendant has presented a recently prepared affidavit of the chairman of the House subcommittee wherein it is said the legislative intent was that survivors’ benefits were to replace only the monthly earnings of the deceased actually lost by the survivors. We are unable to square the affiant’s statements with the facts of legislative action. We believe the latter speaks more loudly and we are unaware of precedent for judicial ascertainment of legislative intent through statements of legislators made years after the event.
We hold that a survivor need not prove actual economic loss to be entitled to survivors’ benefits as defined by K.S.A. 1977 Supp. 40-3103(y). The phrase “loss of an injured person’s monthly earnings after his or her death” refers to the loss of earning power occasioned by the death of the insured and is not measured by the actual loss of the survivors. This interpretation, in our opinion, renders survivors’ benefits allowances consistent with allowances for disability benefits as defined by K.S.A. 1977 Supp. 40-3103(b).
The Act defines “monthly earnings.” K.S.A. 1977 Supp. 40-3103(1). The “monthly earnings” of a regularly employed person are one-twelfth of the annual earnings of that person at the time of injury. Provision is made for determination of the “monthly earnings” of an unemployed or irregularly employed insured. Nowhere in the Act is there a definition of or reference to “economic loss.” There is no formula for ascertainment of survivors’ benefits other than in terms of the deceased’s monthly earnings. If the legislature had intended survivors’ benefits be limited to the economic loss suffered by the survivors, we believe it would have been so stated or a formula would have been provided for computation of survivors’ benefits in terms of something other than the statutorily defined “monthly earnings.”
Difficulty in determination of the actual economic loss of a survivor occasioned by the death of an insured is well illustrated by the present case. Prior to July 6,1974, the date Deborah moved out of the family home, the insured, Michael Flora, apparently was providing all of the support for his wife, Deborah, and son, Shawn. After July 6, 1974, and while the divorce was pending, the insured provided no support for either Deborah or Shawn, except for the grocery purchase, even though the informal child support agreement existed. If Michael Flora had lived until the divorce hearing, he was subject to judicial determination of the amount of his obligations for past and future support for both his wife and child. His future child support obligation would have been subject to modification. These obligations may have been more or less than $50 per month. We gather from the record that Michael Flora’s actual support of his wife and son fluctuated from month to month prior to July 6, 1974. How was the amount of support at the time of his death to be established? By examination of the three months preceding his death? Or of the preceding twelve months? Or some other period? What of the insured’s prospects for greater or less future monthly earnings? Equitable ascertainment of survivors’ benefits on the basis of actual economic loss to the survivors would be difficult, if at all possible, in. the absence of a statutory formula. These difficulties do not exist under the Act with regard to medical benefits, disability benefits, funeral benefits and rehabilitation benefits. It requires little imagination to bring to mind fact situations other than that before us where the problems and questions would be comparable if the trial court’s interpretation of the statutory language was the rule.
The purpose of the no-fault law is to provide a means of compensating persons promptly for accidental bodily injuries arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided therein. K.S.A. 40-3102. Requiring determination of the economic loss suffered by survivors would delay payments to the survivors of motor vehicle accident victims. It would create litigation rather than reduce it. We believe the legislature in tended to avoid the delay and litigation an economic loss requirement or condition would entail.
We have reviewed the statutory and case law of other jurisdictions and find it of little relevance in interpretation of our statute. It appears that each state has fashioned its own distinctive automobile accident reparations system. However, when compensation to survivors of accident victims has been intended to be limited to actual economic loss, language clearly conveying that intention has been used. 11 Ky. Rev. Stat. (1976 Supp.) § 304.39-020(5)(d); 7 Minn. Stat. Ann. (1977 Supp.) § 65B.44 Subd. 6; Conn. Gen. Stat. Vol. VII, Chap. 690, § 38-319(b)(3); 27 Nev. Rev. Stat. § 698.070(5); 4B N.D. Cent. Code § 26-41-03(19).
We conclude the district court erred when it denied plaintiffs survivors’ benefits beyond an amount equaling the economic loss suffered by plaintiffs as a result of the insured’s death.
In reaching our conclusion, we have reviewed in detail the opinions in all cases involving the Act that have been before the Supreme Court and we have considered the parties’ arguments in regard thereto. The cases include Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974); Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363 (1976); Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977); Davis v. Western Insurance Companies, 221 Kan. 441, 560 P.2d 133 (1977); Jaremko v. Jones, 221 Kan. 444, 560 P.2d 136 (1977). We have been guided by the rules of statutory construction expressed in the cases as well as by the expressed analyses of the Act and its purposes. Specific reference to the cases and the arguments of the parties relating to them would unnecessarily extend this opinion.
In its brief and argument, defendant equates compensation for loss with benefit or allowance for loss. We are not convinced that PIP benefits are necessarily to be equated with compensation if the word compensation is taken to mean payment of a monetary sum neither greater nor less than the monetary value of actual economic loss.
In its decision, the trial court made mention of survivors’ rights to disability benefits upon proof of entitlement to support. In view of our conclusion and decision, we need not pursue the matter of entitlement. It is sufficient to recover survivors’ benefits if the claimant is within the statutory definition of survivor.
Plaintiffs next contend the trial court erred in holding that Deborah had forfeited her right to receive support from Michael Flora by reason of her marital misconduct. Plaintiffs maintain that whether or not Deborah was justified in leaving the family home is irrelevant as to whether she is entitled to survivors’ benefits under the policy. Defendant says that implicit in the district court’s finding that Deborah was not entitled to survivors’ benefits was a determination that she had, by her own conduct, relinquished any right to receive support from Michael Flora. Defendant relies upon the rule that the duty of a husband to support his wife terminates with gross marital misconduct on her part in violation of her duties as a wife (41 Am. Jur. 2d, Husband and Wife § 333, p. 275; State v. Chace, 124 Kan. 529, 261 Pac. 559 [1927]) to support its position that Deborah lost her right to survivors’ benefits.
Our examination of the record does not convince us that the district court considered Deborah’s conduct in denying her survivors’ benefits. In fact, the district court correctly held that “the plaintiffs are not required to have been residing with the defendant to qualify for survivors’ benefits . . .” We find the district court denied Deborah survivors’ benefits only because she was found unable to show an actual economic loss caused by the death of the insured.
Had the trial court held that Deborah forfeited her right to survivors’ benefits due to marital misconduct, such holding would be erroneous. We are not here concerned with a husband’s duty to support his wife. The wife is making a claim under an insurance policy for benefits as a survivor of the insured. Case law concerning forfeiture of entitlement to support for gross marital misconduct is not applicable. The Act does not limit the right of a decedent’s spouse to recover survivors’ benefits due to marital misconduct. K.S.A. 40-3103(x). We decline to read into the statute a restriction not placed therein by the legislature. To open the door to trial of domestic relations issues in an action for benefits under a first party insurance contract would be a mistake.
The last issue raised is whether the trial court erred in denying plaintiffs judgment for attorney fees.
K.S.A. 1977 Supp. 40-3111(b) provides in part as follows:
“(b) An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal injury protection benefits which are overdue. The attorney’s fee shall be a charge against the insurer or self-insurer in addition to the benefits recovered, if the court finds that the insurer or self-insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
No Kansas case law has construed K.S.A. 40-3111(b). K.S.A. 40-256, concerning the award of attorney fees where an insurer refuses without just cause or excuse to pay the full amount of a claim, contains similar language and has been the subject of much attention by the Kansas Supreme Court. We find the case law concerning the recovery of attorney fees under K.S.A. 40-256 to be relevant authority in the determination of the present issue.
Construing K.S.A. 40-256, the Kansas Supreme Court has said that attorney fees will be awarded in cases of “frivolous and unfounded denial of liability.” Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P.2d 756 (1970). The issue of whether an insurer refused to pay without just cause or excuse is primarily one of fact to be determined in the first instance by the trial court. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974); Sloan v. Employers Casualty Ins. Co., 214 Kan. 443, 521 P.2d 249 (1974). The presence of a good faith legal controversy, particularly if it involves a matter of first impression in this jurisdiction, may constitute just cause or excuse for an insurer’s refusal to pay. Farm Bureau Mutual Ins. Co. v. Carr, supra, p. 599; Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973).
In this case, defendant was not guilty of a frivolous and unfounded denial of liability; the legal issue involved is one of first impression and defendant’s position was not without merit. We do not find the trial court erred.
The denial of recovery of attorney fees is affirmed. The judgment for survivors’ benefits in the amount of $740.94 is reversed. The case is remanded with direction to enter judgment for the plaintiffs in the amount of $7,800, together with interest to be determined pursuant to K.S.A. 1977 Supp. 40-3110(b). | [
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Parks, J.;
Patricia J. Patterson, plaintiff, appeals from an order entered pursuant to the Kansas Uniform Reciprocal Enforcement of Support Act (URESA), K.S.A. 23-451, et seq.
Plaintiff and her husband, Edward Patterson, were divorced in Texas in July, 1975. Defendant was ordered to pay child support for their minor child and was granted visitation rights. Though plaintiff wife still resides in Texas, the defendant husband now resides in Seward County, Kansas. In August, 1976, plaintiff initiated an action in Texas under URESA for back child support. After due notice and following an evidentiary hearing, the responding Kansas court ordered the defendant to pay $25 a week child support with disbursement contingent upon defendant’s being allowed visitation with his minor child. .
A motion to amend the judgment was filed by plaintiff’s attorney. The trial court denied the motion and refused to set aside its previous order.
The issue is whether the responding court in a URESA action can make an order of support contingent upon collateral matters such as visitation rights.
The purpose of the URESA is to improve and extend by reciprocal legislation the enforcement of duties of support. K.S.A. 23-451. The goal sought by this législation is to provide a prompt, expeditious way of enforcing the duty to support minor children without getting the parties involved in other complex, collateral issues. The act specifically declares that the remedies therein provided are in addition to and not in substitution for any other remedies. K.S.A. 23-453. Thompson v. Kite, 214 Kan. 700, 703, 522 P.2d 327 (1974). Nothing in the act allows the adjudication of child custody or visitation privileges or other matters commonly determined in domestic relation cases. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700 (1976); Vecellio v. Vecellio, 313 So.2d 61 (Fla. App. 1975); Thompson v. Kite, supra at p. 703; K.S.A. 23-473.
We conclude that the trial court’s order that payment of child support be withheld unless visitation rights are granted by the plaintiff was beyond its jurisdiction. The trial court did not have jurisdiction over the minor child for the reason that she was neither physically present in Seward County nor domiciled in Kansas, and she had not been the subject of previous exercise by the court of its jurisdiction to determine her custody or care. Lillis v. Lillis, 1 Kan. App. 2d 164, 563 P.2d 492 (1977).
Accordingly, the order of the trial court granting child support in the amount of $25 per week is affirmed. The order of the trial court that the monies paid by the defendant be held by the clerk of the district court unless and. until it can be shown that the defendant’s reasonable rights of visitation are not being denied by the plaintiff, is vacated and set aside.
The judgment is affirmed as modified. | [
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Spencer, J.:
This is an appeal from.the judgment of the district court which affirmed an order of the State Corporation Commission denying reinstatement of the certificate of public convenience and necessity formerly held by Miller Trucking Service, Inc.
During the course of pre-hearing preparation by. this court it was discovered that, although the judgment of the district court was entered February 7, 1977, the notice of appeal was not filed until March 15, 1977, a date beyond the thirty-day period prescribed by K.S.A. 60-2103. Accordingly, an order was entered by this court directing the parties to brief the question of the jurisdiction of this court to hear the appeal.
It now appears that on February 15, 1977, local counsel for plaintiffs directed a letter to associate counsel in Oklahoma, enclosing a copy of the journal entry of judgment entered February 7, 1977, and advising them of the thirty-day statutory period in which to appeal. Notwithstanding, the Oklahoma counsel referred to their office library and concluded that, because an agency of the state was involved, the allowable time for appeal was sixty days after the entry of judgment. Their library apparently did not reflect the amendment to K.S.A. 60-2103 effective January 10, 1977. Upon realizing their mistake, plaintiffs’ counsel immediately filed notice of appeal, along with an application to the district court for an extension of the statutory time because of excusable neglect. The trial judge took notice of the truism that all lawyers and judges are fallible, expressed his satisfaction that counsel had acted in the utmost of good faith, and concluded that the neglect was excusable. The trial court then granted leave to file notice of appeal out of time.
While most might agree wholeheartedly with the factual findings of the trial court, we are confronted directly with the express provisions of K.S.A. 60-2103(a) which are in part:
“. . . [T]he time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed . . . .” (Emphasis added.)
To their credit, plaintiffs’ counsel do not claim failure to learn of the entry of judgment and readily admit that by any method of calculation the filing of the notice of appeal and the motion for extension of time was outside the thirty-day limit. It is suggested, however, that consideration be given to K.S.A. 60-206(¿>), “Enlargement,” as justification for the action taken by the trial court.
Unless legislative intent appears otherwise, a special statute which relates to particular persons or things will take precedence over a statute dealing with a subject in general. Seltmann v. Board of County Commissioners, 212 Kan. 805, 512 P.2d 334 (1973); State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978). K.S.A. 60-206, last amended January 1, 1964, is a statute of general application, whereas K.S.A. 60-2103, which became effective January 10, 1977, is a statute dealing specifically with appellate procedure. Although subsection (b) of the former does provide for the enlargement of time for an act to be done where the failure to act was the result of excusable neglect, the latter permits an extension of time in which to take an appeal only upon a showing of excusable neglect based on failure of a party to learn of the entry of judgment. There is nothing in the record or elsewhere to our knowledge to indicate anything but that the legislature intended the specific provisions of K.S.A. 60-2103 to take precedence. We conclude that, in the absence of an affirmative showing that failure to file the notice of appeal within the prescribed thirty-day period was because of failure to learn of the entry of judgment, the district court was without authority to grant the extension of time.
It is the duty of an appellate court on its own motion to raise the question of jurisdiction to entertain an appeal, and when the record discloses a lack of jurisdiction it must dismiss the appeal. Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 548 P.2d 476 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977).
As the notice of appeal was not filed in compliance with statutory requirements, the appeal must be dismissed. | [
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Abbott, J.:
This is a direct appeal by defendants in a criminal action from their convictions for possession of narcotic substances prohibited by K.S.A. 1976 Supp. 65-4127a.
The issues asserted on appeal involve the admission of evidence and concern (1) a prior misdemeanor conviction, (2) the issuance of a search warrant, and (3) the failure to personally serve defendants with a copy of the inventory of articles seized, pursuant to K.S.A. 22-2512, or with a copy of the warrant itself.
On April 25, 1976, at 10:05 a.m. a search warrant was issued authorizing law enforcement officers to search a house located at 1037 Central Avenue, Kansas City, Kansas, for various items of personal property stolen from an apartment in Kansas City, Missouri.
While a room-by-room search was in progress, Detective Harold Reed accidentally knocked over a laundry basket full of clothing located on a chair behind the rear door. Reed heard something rattling as the clothes and two plastic bread wrappers tumbled out of the basket onto the floor. The officer looked at the bread wrappers and was of the opinion they contained numerous bottles of pills. Photographs of the bread wrappers introduced at the trial revealed that the police officers could see through the bread wrappers in several areas and thus could see the containers of pills. Although many of the pills appeared to be in pharma ceutical containers, no identifying labels were on them. Some of the pills were in small plastic bags. The detective left the residence, obtained a search warrant, returned and seized the plastic bread wrappers along with other items of drug paraphernalia. A receipt for the property seized was not personally served on the defendants, but rather was placed in the defendants’ personal effects at the Kansas City, Kansas, jail where they were incarcerated.
A pretrial conference was held and defendants were informed the state would seek to introduce evidence of a prior conviction for possession of amphetamines in violation of K.S.A. 65-4127b, a misdemeanor. Defendants were granted fourteen days from the date of the preliminary hearing to file a motion to suppress the use of the prior conviction, but none was filed.
At a hearing outside the presence of the jury, the trial court determined the conviction was admissible against the defendant Chester Eugene Forsyth for the limited purpose of proving absence of mistake, pursuant to K.S.A. 60-455. The jury was so instructed, and was further instructed the prior conviction must not be considered in its deliberations as to the other defendant, Alice Nadine Forsyth. Defendant objected that evidence of the prior conviction was inadmissible because it was for a misdemeanor and not for a felony.
The statute in question, K.S.A. 60-455, does not draw a distinction between misdemeanors and felonies. The statute speaks only of “a crime.” That term does not apply to felonies alone, but applies equally to misdemeanors. By statute, the word “crime” includes both felonies and misdemeanors (K.S.A. 21-3105). Under K.S.A. 60-455, the Kansas Supreme Court has approved the use of a prior misdemeanor conviction for petty larceny in a felony burglary trial to prove absence of mistake. (State v. Carpenter, 211 Kan. 234, 238, 505 P.2d 753.) Defendants’ objection that a misdemeanor conviction cannot be used pursuant to K.S.A. 60-455 in a felony case is not a valid objection, and the trial court did not err in allowing evidence of a prior misdemeanor conviction to be introduced to prove lack of mistake.
The defendants make additional arguments concerning prejudice and relevancy. Having failed to present the proper objection to the trial court, the defendants cannot present the arguments for the first time on appeal. (See K.S.A. 60-404; State v. Craig, 215 Kan. 381, 383, 524 P.2d 679.)
Defendants next challenge the admission of the evidence obtained in the search on the theory that the first search warrant, which led to the second warrant and hence the actual seizure of the narcotics, was invalid. A number of arguments are made, including one that there was no probable cause to issue the original search warrant. Defense counsel’s position at trial was that the first search warrant was valid. No pretrial motions were filed to suppress the evidence nor were any objections raised at trial to the effect that the first search warrant was not valid. Absent a timely and specific objection to the introduction of evidence, appellate review is precluded. (State v. Gordon, 219 Kan. 643, 549 P.2d 886.)
Defendants did object to the admission of the seized items and moved to suppress them on the grounds that they were not personally served with a copy of the warrant and an inventory of the items seized in the search. The police handed defendants a copy of the first search warrant prior to commencing their search.
The record reveals defendants were given a copy of the second search warrant prior to the seizure of the items found in the first search. A copy of the second warrant was also placed with Chester Eugene Forsyth’s personal effects at the police station, and the record indicates the inventory list may have also been so placed.
Defendants’ attorney was present at the house during part of the search. Defendants and counsel had actual knowledge of what items were seized. In addition, the inventory and warrant were properly returned and filed with the court.
The Kansas Supreme Court has been confronted with the precise issue here presented. The failure to give a copy of the receipt to the defendant for the items taken is a technical irregularity under K.S.A. 22-2511, and therefore the evidence seized thereunder is admissible unless the defendant demonstrates prejudice from the procedural violation. (State v. Ames, 222 Kan. 88, 93-95, 563 P.2d 1034; State v. Stewart, 219 Kan. 523, 527, 548 P.2d 787, 792.) At best, defendants can only show that a copy of the inventory was not delivered to them personally. That showing alone is insufficient to demonstrate prejudice and is a mere technical irregularity not affecting the substantial rights of the accused.
Affirmed.
60-455. Other crimes or civil wrongs. Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-455 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
21-3105. Crimes defined; classes of crimes. A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized. Crimes are classified as felonies and misdemeanors.
(1) A felony is a crime punishable by death or by imprisonment in any state penal institution.
(2) All other crimes are misdemeanors.
60-404. Effect of erroneous admission of evidence. 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. | [
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Parks, J.:
Two interlocutory appeals are brought by the state from rulings striking the testimony of a prosecution witness. K.S.A. 1977 Supp. 22-3603.
The defendants, Joe W. Eubanks and Marvin Magathan, had separate preliminary hearings. The state filed separate interlocutory appeals wherein it raised the same point. The appeals are consolidated for decision.
John J. Washington, a narcotics investigator with the Kansas Bureau of Investigation, made separate purchases of drugs from the defendants on the night of March 11, 1977. Shortly after making the purchases, Washington drove to the public parking zone of the Kansas Turnpike tollgate at Emporia, Kansas, where he wrote his complete reports in longhand and marked the evidence. On March 14, 1977, he delivered these handwritten reports to the KBI typing pool where they were typed by a secretary. Washington testified that he proofread the typed reports and compared them word for word with his original reports and that they were verbatim transcriptions. He then destroyed the original handwritten reports in accordance with what he described as standard procedure of the KB I.
It is undisputed that Washington’s typewritten reports were available for inspection by the defendants during their respective preliminary hearings. However, both defendants contend that the typewritten reports were insufficient to satisfy the requirements of K.S.A. 22-3213 and to allow for effective cross-examination of the prosecution witness. The court sustained the defendant’s motion in each case and ordered that the testimony of the witness be stricken.
The issue is whether the court erred in striking the testimony of the prosecution witness for failure of the state to produce the original handwritten reports admittedly made by the agent and destroyed prior to the preliminary hearings. We hold that the court erred.
The Kansas Supreme Court has held that after an officer has testified, defendants are entitled to his reports and field notes, if available. State v. Johnson & Taylor, 223 Kan. 119, 124, 573 P.2d 976 (1977). Once a state witness has testified, the court must order the prosecution to produce any statement of the witness which relates to the subject matter to which the witness has testified. K.S.A. 22-3213(2). The term “statement” is a written statement made by the prosecution witness and signed or otherwise adopted or approved by him. Original field notes are discoverable under K.S.A. 22-3213(4)(o) “if available” because of the possibility of change or alteration occurring between the taking of the notes and their incorporation into a formal report. The danger lies in the fact that many factors may foster error, such as memories which fade as time elapses between the note taking and the actual formal report writing. On the other hand, when, as here, an entire report is written in the field while the events described therein are fresh in the officer’s mind, these dangers are avoided. Had defendants’ claims been that Washington’s formal reports differed substantially or were considerably enlarged from his handwritten reports, the issue before this court would be different. Such was not the case. There is no indication that the trial court disbelieved Washington’s testimony that the typewritten reports were verbatim transcriptions of the handwritten reports. In effect, Washington’s formal reports and his handwritten reports were one and the same; the formal reports constitute all the “field notes” there ever were.
Defendants contend that this case is controlled by State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976). There it was held that the trial court had the discretionary power to strike the testimony of the prosecution witnesses whose statements had been lost by the state. The present cases are distinguishable from Wilkins because here typewritten verbatim transcriptions of all the notes that were ever made were available and were given to each of the defendants.
We hold that a defendant is not prejudiced when a complete report which was written in the field is formalized by a typist who routinely makes a verbatim transcription of that entire report, and that under the facts presented, the destruction of original handwritten reports, does not justify the imposition of sanctions or a new trial where the same reports are made available in a verbatim typewritten transcription. See Ogden v. United States, 323 F.2d 818, 820 (9th Cir. 1963).
Defendant Magathan asserts that the original handwritten reports in his case were destroyed in bad faith. The basis for his assertion is Washington’s statement that he did not sign the original reports because of discovery and because he was going to destroy them. When these remarks are viewed in the context of testimony leading up to the statement, we find there was no intent to avoid discovery under the statutes.
This is not to be taken as our advocating a “standard KBI policy” of destroying original notes after transcription. This court will not condone such practice. We reaffirm the tenets of Wilkins and caution law enforcement agencies to follow rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation. To do otherwise will invite the imposition of sanctions such as the trial court imposed here.
Under the facts and circumstances disclosed by the records, we conclude that (1) the defendants are not prejudiced because the same material which was destroyed is available to them in a typewritten report and (2) the trial court erred in striking the testimony of the prosecution witness in both cases.
The judgment of the trial court is reversed with directions to proceed with trial in each case. | [
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Foth, C.J.:
The defendant was convicted of aggravated escape from the Shawnee County jail. The sole issue on appeal is whether the trial court erred by allowing the prosecution to show a video tape of his capture.
A Topeka station, WIBW-TV, filmed the capture and presented an edited version on its evening news. Following normal station practice, the original film was destroyed but the edited tape was kept as required by Federal Communication Commission regulations. The tape which the jury saw was a black and white copy of the edited color film. The defendant objected to the showing of the copy on the grounds that it violated the best evidence rule. In our view the best evidence rule is not applicable.
K.S.A. 60-467(o) provides that “[a]s tending to prove the content of a writing, no evidence other than the writing itself is admissible . . . .” (Emphasis added.) As the language of the statute suggests, the rule applies to exclude secondary evidence only when the terms of the writing itself are at issue. A leading commentator has stated that “[t]he rule requiring the production of the original instrument itself does not apply to the proof of facts evidenced by the writing rather than to the language or terms of the writing . . . .”2 Jones on Evidence, § 7:5. See also, § 7:4, “Distinction Between Proof of Contents and Proof of Facts Asserted in Writing.”
In this case, it is clear that the contents of the film per se were not central to the litigation. There was no issue as to what was contained in the original WIBW-TV film, as compared to the copy shown to the jury. The film was used as any photograph might have been, to illustrate and support the testimony that appellant was at large and was apprehended by force. Since the contents of the original film were not at issue, the best evidence rule was not applicable.
As a photograph, the film’s admissibility depended on relevance and a proper foundation. Although cumulative of other evidence of defendant’s capture, the film was relevant to show his escape.
At trial, the defendant also objected on the ground that an insufficient foundation had been laid. He does not pursue that point on appeal, however, and a review of the transcript indicates that the foundation was adequate. Photographs and motion pictures may be admitted in evidence if it is established that they accurately represent the person, place, or thing photographed. E.g., Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975); Howard v. Stoughton, 199 Kan. 787, 433 P.2d 567 (1967). The question of the sufficiency of the preliminary proof to show the correctness and accuracy of photographs rests largely in the discretion of the trial judge. E.g., Landrum v. Taylor, supra, at page 120; Kirsch v. Dondlinger & Sons Construction Co., Inc., 206 Kan. 701, 482 P.2d 10 (1971); Howard v. Stoughton, supra, at Syl. 1 and page 789. The mere fact that the film was edited and was in black and white without a showing that the defendant was in some way prejudiced thereby would not render it inadmissible. See Millers’ Nat. Ins. Co., Chicago, Ill. v. Wichita Flour M. Co., 257 F.2d 93, 100 (10th Cir. 1958), where the court held that it was not error to admit edited films of experiments conducted by expert witnesses. The court reasoned that where a preliminary showing of the accuracy of the film is satisfactory, the matter of editing of the film goes to the weight of the evidence and not to its admissibility.
In this case, the photographer testified that the edited version accurately portrayed what he witnessed on the day the defendant was apprehended. Defendant did not contend at the trial nor does he contend now that the film was in any way inaccurate or incorrect. Under the circumstances, it cannot be said that its admission was an abuse of discretion.
Affirmed. | [
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Spencer, J.:
In an action for damages based upon libel, summary judgment was entered for defendants on the grounds of qualified privilege with no showing of malice. Plaintiff appeals.
During the years 1974 and 1975, plaintiff was employed as supervisor of the Social Sciences Division of the Kansas State University Library in Manhattan, Kansas. Defendant Margene Nelson was employed as a library assistant in the General Records Division of the library. Defendant G. Jay Rausch was the library director and defendant Virginia Quiring was assistant to the director. Quiring was plaintiff’s immediate superior.
On September 25, 1974, Nelson had conducted a tour of the library for a freshman orientation group. Two of the students in the tour group complained of the conduct of a member of the library staff. Nelson reported this complaint to Rausch, who requested that she reduce it to writing and deliver it to him. She did so as follows:
“September 26, 1974
“Dear Dr. Rausch:
“While giving a tour to a Freshman Orientation group yesterday, a very distressing occurrence was related to me. When I asked if any of the students had yet used the library, one of the girls indicated she had. I then asked if she had found the materials she was seeking. She said she had had difficulty, so she had asked a librarian to help her. This librarian replied ‘If you don’t know how to use the library by now, well it’s too late.’ Another girl in the group indicated she was present when this statement was made, and that the librarian was very sarcastic and refused to help them in any way. Since the student had told the other group members about it, I felt I should pursue the matter and try to determine if the person in question were indeed a librarian, and if so, who it was.
“From the physical description given me: female, middle-aged, gray hair pulled back away from her face, sarcastic, abrupt manner, I believe they were referring to Margaret Dobbyn. If this is indeed the case, and from other reports I have had from students who have been refused their requests for help on the second floor, I tend to believe it is, I am extremely upset that this is the image we are projecting to our student body and other patrons. I don’t know what can be done about the situation, but I thought someone should inform you of the complaints we are receiving at the General Reference desk.
“Sincerely,
/s/ Margene Nelson
“Margene Nelson”
The letter remained in Rausch’s files for some months. In early 1975, plaintiff filed a grievance with the internal Kansas State University library grievance committee protesting her job evaluation for the year 1974 as given by her immediate supervisor Quiring. The hearing on her complaint was held February 6, 1975. A few days prior to that date, Rausch delivered the Nelson letter to Quiring for her use at the hearing in support of her job evaluation of plaintiff. Quiring submitted the letter for that purpose.
Plaintiff alleges that the contents of the Nelson letter were false and defamatory and that Nelson maliciously composed and published the letter. She further alleges that transmittal of the letter by all defendants was with “actual malice with willful intent to injure . . . .” After issues were joined and discovery completed, defendants by their motion to dismiss were granted summary judgment. The trial court found that the Nelson letter was qualifiedly privileged and that there was no evidence of actual malice.
In defamation actions, two classes of privilege are recognized — absolute privilege and conditional or qualified privilege. There is no liability on a conditionally or qualifiedly privileged communication absent the existence of actual malice. Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1976). Proof of actual malice when a conditional privilege is found to exist requires a plaintiff to prove that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not. Schulze v. Coykendall, 218 Kan. 653, 545 P.2d 392 (1976). There is no claim here of absolute privilege.
Ordinarily a publication is qualifiedly or conditionally privileged if it is made under circumstances and in a manner which repel, preclude or rebut the inference of malice arising prima facie from a statement prejudicial to the character of the plaintiff. Schulze v. Coykendall, supra. The concept has been further defined:
“A communication is qualifiedly privileged if it is made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, if it is made to a person having a corresponding interest or duty. The essential elements of a qualifiedly privileged communication are good faith, an interest to be upheld, a statement limited in its scope to the upholding of such interest and publication in a proper manner only to proper parties.” Senogles v. Security Benefit Life Ins. Co., 217 Kan. 438, Syl. 3, 536 P.2d 1358 (1975).
The determination of whether a conditional privilege exists is a matter of law for the court when the facts upon which such a determination must stand are undisputed. Schulze v. Coykendall, supra.
There is no claim that the subject matter of the letter (courtesy in dealing with library patrons and such patrons’ complaints of the lack thereof) is not one in which all of the parties who transmitted the letter, as well as those who received it, had a duty or interest. Nelson, whose job to a large extent dealt with public relations, obviously had a duty and interest in reporting the matter to the director of the library, Rausch. Rausch in turn had a duty and interest in receiving such information. The conduct of plaintiff as reported in the letter was relevant to her job evaluation and, therefore, Quiring had a duty and interest in receiving the letter from Rausch and transmitting it to the grievance committee. The letter was limited in its scope to upholding the interest involved and publication of the letter was limited to the parties named, i.e., Nelson, Rausch, Quiring, and the grievance committee.
Plaintiff argues that the publication was not made in “good faith.” She claims that Nelson lacked good faith because she (Nelson) failed to ascertain the identity of the students who reported receiving discourteous treatment and failed to verify the truth of their allegation. Plaintiff denotes such failure as “negligence” and claims that it defeats the privilege.
Noting that the definition of qualified privilege stated by our Supreme Court in Senogles, supra, was adopted essentially from what is now 50 Am. Jur. 2d, Libel and Slander § 195, pp. 698-699, plaintiff points to 50 Am. Jur. 2d, Libel and Slander § 198, which provides in part:
“It has been held that the law imposes upon one publishing derogatory information, even for laudatory purposes, the responsibility of exercising due care in knowing whereof he speaks, and that a conditional privilege may be destroyed by a failure to exercise reasonable care and diligence to ascertain the truth of the defamatory matter. . . .” (pp. 704-705.)
Plaintiff fails to note that the section continues:
“On the other hand, there is authority to the effect that if there are no circumstances that are reasonably sufficient to put the defendant on notice that an imputation, which he reasonably believes to be true, is false, qualified privilege is not lost because he does not conduct an independent investigation to determine the truth or falsity of the imputation . . . .” (p. 705.)
Is there any evidence that any of the defendants were motivated by ill will or a lack of good faith in publishing the letter? The petition can be read as so alleging. It speaks of the “ill feelings” of the defendants toward plaintiff because of her complaints to the Kansas Commission on Civil Rights and the Equal Employment Opportunity Commission. However, on motion for summary judgment the pleadings are not controlling as summary judgment contemplates piercing the allegations of the pleadings by affidavits and discovery. Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415 (1966).
Nelson testified that she was not even aware of the complaints. When pressed to state what she felt demonstrated ill will on the part of Nelson, plaintiff could say only that writing the letter itself showed ill will. Later she stated that she thought Nelson had written the letter to gain favor from Rausch. Rausch and Quiring testified that they “might” have known of the complaints. Quiring stated that she knew plaintiff was active in women’s political awareness and that she objected to this only because plaintiff spent working time on private matters.
Plaintiff is not specific in her testimony as to what she feels demonstrates ill will or lack of good faith on the part of defendants in publishing the letter. She testified at some length regarding her feelings that all of the defendants had ill feelings toward her in general. She states that she was met with hostility by the library as a whole; that groups would gather and tell untrue gossip; and that Quiring demonstrated ill feelings from the moment she became assistant to the director. She refers to events occurring after transmittal of the letter. For instance, she feels that ill will by Rausch is shown by the fact that he affirmed her poor job evaluation and by his attitude in an interview she had with him after affirmance by the grievance committee. She feels the very fact Rausch gave Quiring the letter to pass onto the grievance committee shows ill will.
It is clear that each of the defendants had a duty and a corresponding interest in the publication of the Nelson letter, imposed upon each of them by the nature of their employment. In the absence of circumstances reasonably sufficient to put them on notice that the contents of the letter were false, they were not obliged to conduct an independent investigation to determine the truth or falsity of those statements.
We hold that the Nelson letter was a conditionally privileged communication for which there can be no liability on the part of the defendants unless publication of that letter was with knowledge that the statements contained therein were false or with reckless disregard as to whether they were false. Our review of the record reveals nothing to indicate that any of the defendants had actual knowledge that the contents of the Nelson letter were false. In support of the position that the publication was not with “reckless disregard,” Rausch stated in his deposition that he had received several similar complaints of plaintiff’s performance prior to the Nelson letter. He referred specifically to complaints from others of the library staff, faculty members and students. Plaintiff expresses only her opinion that defendants should have known the letter was false.
We are mindful of Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978), wherein it is stated:
“In considering a motion for summary judgment a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. (Timi v. Prescott State Bank, 220 Kan. 377, Syl. ¶ 2, 553 P.2d 315 [1976].) A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. (Henrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 [1976].) Whether a party acts in good faith depends not only on the facts and circumstances but also on his state of mind.” (224 Kan. at 45.)
We find nothing in the record to indicate a lack of good faith on the part of the defendants or a willful intent to injure the plaintiff. Granting to plaintiff the benefit of all inferences that may be drawn from the evidence, there remains no issue as to any material fact.
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Abbott, J.:
This is an action instituted by Service Iron Foundry, Inc., (Service Iron) to recover money damages for breach of warranty arising from the purchase of a pollution control unit for use at its foundry in Wichita, Kansas. The trial judge directed a verdict at the close of plaintiff’s evidence in favor of the defendant M. A. Bell Company (MABCO). The jury subsequently returned a verdict against the remaining defendant, Particulate Controls, Inc., (Particulate) in the amount of $52,854.59.
The plaintiff, Service Iron, appeals, alleging that:
(1) The trial judge committed error when he sustained defendant MABCO’s motion for judgment at the close of plaintiff’s evidence;
(2) The trial judge committed error when he excluded certain evidence tending to prove that MABCO independently warranted the pollution control unit and that plaintiff relied upon such warranty when purchasing the unit;
(3) The trial judge improperly excluded evidence of the insolvency of Particulate; and
(4) The trial judge committed error when he restricted plaintiff’s damages to the purchase price of the pollution control unit and incidental expenses rather than to the cost of replacing the unit with one that would perform as warranted.
Particulate did not appeal or cross-appeal from the judgment and does not participate in the appeal. We are advised that Particulate has no assets with which to satisfy the judgment against it.
The plaintiff makes gray iron castings in its foundry. Plaintiff was aware as early as 1969 that some action would be necessary to control the emissions from its foundry in order to comply with the Kansas air pollution control laws and regulations.
MABCO, in addition to manufacturing foundry supplies, acted as a distributor and sales agent for other suppliers and manufacturers. It has a reputation in the foundry trade for selling reliable products. Plaintiff had done business with MABCO for many years. It appears from the record, however, that plaintiff learned from a pig-iron salesman for a different company that a pollution control device was available through MABCO. The pollution control device in question had been developed by W. M. Peterson while employed full time as “technical representative” for MABCO. W. M. Peterson at all times material to this case re mained a full-time employee of MABCO. The pig-iron salesman called Peterson at MABCO and informed him of plaintiff’s interest in the pollution control device designed by Peterson, built by MABCO, and installed at the Richland Foundry in Belleville, Illinois. Plaintiff first expressed interest in the early 1970’s. Peterson caused a quotation to be mailed to plaintiff from MABCO along with a reprint of an article written by Peterson and published in Foundry magazine. •
Other facts are necessary for one to fully understand this case. MABCO sold pollution control devices on a commission basis for other manufacturers. They were expensive, and MABCO became concerned in the late 1960’s that many small foundries which could not afford the expensive devices would be forced out of business. Peterson, a long-time employee of MABCO, was asked to develop a cheaper pollution control device. Peterson agreed, but only on the condition that the device would be manufactured and marketed by his own company.
Peterson spent about one and a half years in research and development of a pollution control device. He worked on the device during his normal work days at MABCO and at his home in the evenings. An experimental unit was installed in Decatur, Illinois, in 1969. The cost of development of this unit was absorbed by MABCO and the foundry where it was installed. Peterson did all of the design work on the unit. He then wrote an article on the Decatur unit and published it in Foundry magazine. He submitted the article as W. M. Peterson, Technical Representative of M. A. Bell Company, St. Louis. It was a reprint of this article that MABCO mailed to plaintiff along with its quotation.
Peterson made design changes and a second unit was manufactured, sold and installed at Richland Foundry, Belleville, Illinois. This was the unit the pig-iron salesman told plaintiff about. The Richland unit was installed in 1970. Peterson then applied for a patent and, along with MABCO, decided to incorporate. They entered into a pre-incorporation agreement on March 23, 1970, wherein it was agreed to form Particulate Controls, Inc., to design and manufacture pollution control devices. The initial capitalization was $1,000, of which 90 percent was contributed by Peterson and 10 percent by MABCO. Ownership in the corporation was to be in the same percentages. No additional capital has been contributed by either party.
Particulate was formed in the state of Missouri pursuant to the pre-incorporation agreement. There were two directors and it was provided that one director had to be MABCO’s choice. Particulate’s registered office has the same address as MABCO. Particulate has never had an employee other than Peterson, and its only office has been Peterson’s desk at MABCO. Peterson continued to work full time at MABCO after Particulate was formed, and he was still so employed at the time of trial. Additionally, the agreement provided that neither Peterson nor MABCO could sell their stock in Particulate without first offering it to the other on the same terms and conditions as would be negotiated with any prospective purchaser.
Particulate then entered into an exclusive sales agreement with MABCO, granting MABCO exclusive sales rights to Particulate pollution control devices and requiring Particulate to use MABCO’s facilities to manufacture the first three devices, the sale from which MABCO was to receive cost plus 50 percent. Particulate was to reimburse MABCO only from the proceeds of the sale of the pollution control devices. Particulate could not cancel, alter or modify the exclusive sales agreement without the approval of 100 percent of its stockholders. Since MABCO owned 10 percent of Particulate stock, it could block any change in the agreement. All of the documents were prepared by MABCO’s attorney, although Peterson had independent legal advice before he signed any of the documents.
In January of 1972 Peterson, at plaintiff’s request, went to Wichita to discuss the pollution control device. Peterson was the only employee of MABCO who had technical knowledge of pollution control devices and he handled all inquiries concerning them. Testimony was presented that Peterson inspected plaintiff’s facilities and assured plaintiff that the unit would enable plaintiff to comply with the Kansas code. That same month plaintiff requested an updated quotation which was supplied by a letter dated February 7, 1972. Plaintiff then consulted with the Kansas health department officials who believed afterburners were necessary. Plaintiff called Peterson at MABCO and informed him of the comments from the health department. Peterson had no prior experience installing afterburners, but agreed to revise the quotation to include afterburners without telling plaintiff of his lack of experience. A second quotation was for warded to plaintiff on February 14, 1972. The quotations of February 7 and February 14, 1972, were identical with two exceptions not material to this opinion. Both quotations were on MABCO stationery and signed by Richard E. Long, Sales Representative.
On March 31, 1972, plaintiff’s president wrote to MABCO, to the attention of W. M. Peterson, Technical Representative, advising that the department of health had reviewed the results of the operation of the experimental unit at Decatur, Illinois, which had been reported in the June 1970 issues of Foundry magazine, and had determined that such a unit installed at plaintiff’s plant would not comply with the Kansas code. Plaintiff emphasized it was interested in the unit, but wanted to be sure it met the Kansas code. MABCO was invited to make any necessary changes and submit a new quotation.
On April 3, 1972, Peterson signed a letter on MABCO stationery in his capacity as technical representative of MABCO that stated in pertinent part:
“In answer to your letter of March 31, 1972,1 would suggest that you read the enclosed test data which was obtained at Richland Foundry, Belleville, Illinois, on June 28, 1971. This cupola would be about the size of your operation and you will see that it would be well within the Kansas Code. In fact, this installation emitted about one-third of that allowable and I would predict with reasonable scrap that you would obtain approximately the same results. As far as the after burner what will occur in our unit . . . .” (Emphasis added.)
The unit under consideration by plaintiff was the unit installed at Richland Foundry, Belleville, Illinois, and not the experimental unit at Decatur, Illinois.
After further conferences, a formal order was placed and accepted on June 20, 1972. This was accomplished by MABCO forwarding a two-page letter dated June 15, 1972, to plaintiff on MABCO stationery. The letter was identical to the February 14, 1972, quotation and nearly identical to the February 7, 1972, quotation. The quotation, excluding the heading, reads:
“In line with the request received from our Mr. W. M. Peterson, we are pleased to pass on the following quotation from Particulate Controls, Inc., covering a cupola effluent suppression unit for your cupola:
“1 - only Water operated cupola effluent suppression unit for your No. 314-51" shell diameter cupola (including cupola cap, cross section, exhaust stack, water storage tank, pump, cyclone separator, vibratory screen, after burner, all piping for unit controls and particulate removal devices). Service Iron Foundry, Inc. to furnish installation, including all erection, necessary cupola modifications, foundations, wiring, piping to unit, and refractories — including installation of same.
“Testing for particulate matter content will be conducted by MABCO personnel. The method used to test, unless another is agreed to by both parties, will be as outlined in the booklet WP-50, 7th Edition, entitled, ‘Methods for Determination of Velocity, Volume, Dust, and Mist Content of Gasses,’ as published by Western Precipitation Division of Joy Manufacturing Company of Los Angeles. Any additional testing will be at customer’s expense.
“It is understood that the efficiency of this unit is based on the use of clean, properly sized coke, metal charge, and additives, and that predetermined mutually agreeable conditions of cupola operation (melting rate, air volume, air pressure, etc.,), to be confirmed in the purchase agreement, shall be used when testing the finished installation.
“Particulate Controls, Inc. advise that they will meet the State of Kansas Air Pollution Emission Control Regulations as dated January 1, 1972, which includes the installation of an after burner to meet the Kansas Code.
“PRICE........................................... $29,750.00
“F.O.B. Point of Shipment
“Shipment: ' Approximately 16 weeks
“Terms: 35% with order
35% at time of shipment 30% Thirty (30) days following date of shipment
“Invoicing by and payments to Particulate Controls, Inc.
“Above price firm for thirty (30) days from the date of this quotation.
Very truly yours,
/s/ Richard E. Long_
Richard E. Long, Sales Representative
REL:lk
c.c.’s Messrs. W. H. Mook
W. M. Peterson
“Your signature along with that of Mr. Peterson’s in the spaces provided at the bottom of this letter, will service [sic] as Service Iron Foundry, Inc.’s formal order to Particulate Controls, Inc. and Particulate Controls, Inc.'s formal acceptance.
ACCEPTED: /si Floyd C. Bowers Pres. Date: June 20, 1972 _
Service Iron Foundry, Inc.
/s/ William M. Peterson Date: 6/22/72_
Particulate Controls, Inc.”
(Emphasis added.)
After the unit was installed, a test run in July of 1973 revealed that Service Iron was not in compliance with Kansas law. The unit was ultimately replaced (several components of the unit were incorporated into the new unit) and plaintiff brought suit against Particulate and MABCO for breach of warranty and requested damages in the amount of $112,341.34. When the case was tried, the trial court refused to permit plaintiff to offer the testimony of its president, Floyd C. Bowers, that Peterson had orally warranted the device between April 3 and June 20, 1972, on the ground that the order and acceptance of June 15, 1972, constituted the agreement between the parties and that any testimony by Bowers would violate the parol evidence rule. Plaintiff unsuccessfully argued that the provisions of the June 15 quotation would not conflict with evidence of an independent warranty from MABCO to induce the purchase and thus would not violate the parol evidence rule. Bowers also testified that Peterson had never told him at any time prior to the order being placed that Peterson was representing Particulate. In fact, when Peterson executed the acceptance of the order on June 22 in St. Louis, he sent six copies of the order to plaintiff, using MABCO stationery, which he signed as technical representative of MABCO. It appears from the record that Particulate stationery was used for the first time in correspondence with plaintiff after the unit was installed and a notice of noncompliance was received.
At the close of plaintiff’s evidence, the trial court sustained MABCO’s motion for judgment and dismissed plaintiff’s cause of action against MABCO on the ground that MABCO was not liable to plaintiff as a matter of law.
In ruling on a motion for a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and when the evidence is such that reasonable minds can reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict. Frevele v. McAloon, 222 Kan. 295, 564 P.2d 508 (1977); Ellis v. Sketers, 1 Kan. App. 2d 323, 564 P.2d 568 (1977).
The plaintiff tried the case on the theories that (1) MABCO independently warranted the unit, and (2) that Particulate was actually MABCO’s alter ego and instrumentality, the primary purpose of which was to enable MABCO to retain the services of a highly-valued employee. When Floyd Bowers, plaintiff’s president, testified, he was not allowed to go beyond the written agreement between Particulate and plaintiff contained in the letter quotation of June 15, 1972, and show an independent warranty. We believe that was error, as was the trial court’s action in sustaining MABCO’s motion for judgment at the close of plaintiff’s evidence.
MABCO successfully contended that it was not a party to the contract. It cites the rule that if a contract is signed by a known agent acting in the scope of its authority for a disclosed principal, the agent is not liable on the principal’s contract, but rather the contract is that of the principal alone. This is the general rule in Kansas. United Packinghouse Workers v. Maurer-Neuer, Inc., 272 F.2d 647 (10th Cir. 1959); State, ex rel., v. Triplett, 213 Kan. 381, 517 P.2d 136 (1973); Kirkpatrick v. Seneca National Bank, 213 Kan. 61, 515 P.2d 781 (1973). As we construe plaintiff’s position, however, plaintiff does not contend this rule is inapplicable; its contention is that MABCO independently warranted the pollution control device.
Peterson obviously was wearing two hats — one as an authorized agent of MABCO and one as president of Particulate. MABCO claims to be the agent for Particulate in the sale, and contends it disclosed that fact in the February 7, February 14, and June 15, 1972, letters referred to above. However, an agent may pledge its own individual credit or responsibility and may warrant an item in such a manner that the warranty will be enforceable against the agent (MABCO), even though the principal (Particulate) has also made a similar warranty. 3 C.J.S., Agency § 367 (1973); 77 C.J.S., Sales § 305 (2) (1952); 3 Am. Jur. 2d, Agency § 293, p. 654 (1962). In Kirkpatrick, 213 Kan. at 67, the Kansas Supreme Court impliedly if not explicitly adopted this rule. In Kirkpatrick the bank informed a third party that all of the proceeds of the debtor’s work were coming to the bank; that the bank was authorizing payment of the debtor’s bills; and that as long as the bank was handling the debtor’s account, it would see that the accounting fees due to the third party for services rendered would be paid. The accounting services performed were of benefit to the bank in that the debtor was indebted to the bank, and the accountant not only furnished accounting information to the bank but discovered the debtor was due a tax refund in excess of $5,000 which was refunded and paid into the bank. After the accountant billed the bank, the tax refund came into the bank’s possession and the bank reduced the debtor’s indebtedness to the bank by $11,000. The bank paid $500 on the accounting fees and then disclaimed any liability to pay the remainder of the bill. The bank took the same position that MABCO takes in this case, which was that the bank was merely the agent of the debtor and, having disclosed its principal, was not liable on a contract negotiated for that principal. The trial judge found the bank had made an independent promise to the accountant and that the accountant had entered into a contract based on that independent promise; that performance of the contract was beneficial to the bank and that injustice would result if the independent contract was not enforced. The Supreme Court affirmed the trial court, applying the doctrine of promissory estoppel.
MABCO contends that plaintiff is barred from showing an independent agreement by the parol evidence rule as set forth in the Kansas Uniform Commercial Code, K.S.A. 84-2-202. That statute provides in part:
“Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
“(a) by course of dealing or usage of trade (section 84-1-205) or by course of performance (section 84-2-208); and
“(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”
MABCO then argues that plaintiff’s president admitted that the offer and acceptance in the letter of June 15, 1972, was the contract by which plaintiff purchased the device and concludes from that admission that the contract was intended by the parties to be a final expression of their agreement. Although MABCO denies giving an independent warranty, it argues that even if one was given prior to June 15, 1978, it would not be admissible due to the written agreement.
We do not agree. The contract was between the plaintiff and Particulate. MABCO was not a party to the written instrument. The parol evidence rule is not applicable to an agent who acts for a disclosed principal in the execution of a contract, for that agent does not become a party to the contract between the disclosed principal and the other party to the contract. The Supreme Court dealt with an analogous situation in Beckett v. Miller, 110 Kan. 479, 204 Pac. 539 (1922), wherein Kline and the defendant, Miller, entered into a written contract for the sale of land. It was orally agreed among Kline, Miller, and Beckett that Miller would pay Beckett’s commission. The court held the parol evidence rule inapplicable, noting that Beckett was not a party to the written sales agreement. See also 30 Am. Jur. 2d, Evidence § 1029, p. 164 (1967).
The language in Harriss, Magill Co. v. Rodgers Co., 143 Va. 815, 830, 129 S.E. 513 (1925), is also in point. There the court stated:
“Applying this rule to the defense, it becomes plain that the evidence of an oral agreement tending to establish a personal contract or a warranty directly between the plaintiffs and defendant was admissible, because the contract was distinct from and collateral to the main contract made with the principal of the defendant, that principal not being bound by the contract. Such a collateral contract is not within the parol evidence rule because it does not vary or contradict the terms of the written agreement made between the parties to it, although one of the parties is acting through an agent.” (Emphasis added.)
Evidence concerning the alleged independent warranty, if otherwise admissible, should have been received by the trial court.
Nevertheless, MABCO argues that plaintiff is seeking to recover damages for alleged violations of the Kansas Uniform Commercial Code (UCC). Specifically MABCO alleges that plaintiff is seeking to recover for the breach of an express warranty (K.S.A. 84-2-313), the breach of an implied warranty of merchantability (K.S.A. 84-2-314), and for a breach of an implied warranty of fitness for a particular purpose (K.S.A. 84-2-315). It correctly notes that under K.S.A. 84-2-314 and K.S.A. 84-2-315 only a seller may be held liable for the breach of the implied warranties of merchantability and fitness for a particular purpose. Therefore, an agent contracting on behalf of a disclosed principal and within the scope of its authority cannot be held liable for breach of an implied warranty. Smith v. Platt Motors, Inc., 137 So.2d 239 (Fla. App. 1962). MABCO is also correct that under K.S.A. 84-2-313, coverage of express warranties extends only to sellers of goods. The UCC, however, does not cover warranties' made in non-sales transactions such as an independent warranty by an agent that has disclosed its principal. K.S.A. 84-1-103 provides that unless displaced by a particular provision of the UCC, the law relative to principal and agent and to estoppel supplements the UCC provisions. As we have earlier noted in this opinion, the ability of an agent to make an independent warranty has long been recognized at common law. Further support for the position that the UCC does not govern the independent express warranty that MABCO allegedly gave is found in the official UCC comments to section 84-2-313 on express warranties where it is provided:
“2. Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract.” (Emphasis added.)
We are faced here with the question of whether reasonable minds might differ as to whether or not MABCO expressly warranted the pollution control device. We are cognizant of the fact the trial judge found that MABCO never specifically warranted the device. Even though the evidence of an express warranty is skimpy, we are persuaded that under the facts reasonable minds might differ as to whether MABCO had made an independent express warranty.
Plaintiff had been a customer of MABCO’s for many years; it was aware of MABCO’s excellent reputation in the foundry business for selling reliable products. The facts indicate plaintiff was clearly relying on MABCO to come up with a device that would comply with the Kansas code. Plaintiff’s president testified all contacts of any nature were made with MABCO, and Peterson never disclosed to plaintiff that he represented anyone other than MABCO until after the contract was signed. This fact is tempered somewhat by Peterson’s name having been typed under the signature line for Particulate on the three proposal letters. Plaintiff’s president further testified he thought MABCO warranted the device or he would not have purchased it. MABCO suggests that it is immaterial what Bowers thought. Had the testimony been presented to the jury in the same form and objected to, we would agree; however, the evidence was in the form of a proffer. We conclude that when all of the exhibits are considered with the testimony of the parties and in conjunction with MABCO’s letter of April 3, 1972, assuring plaintiff that the unit would be well within the Kansas code, a reasonable mind which was appropriately instructed on the law of principal and agent and on estoppel might well have concluded MABCO gave an express warranty or was estopped to deny that it did.
The trial judge additionally found as a matter of law that MABCO could not be held liable for Particulate’s warranties under the alter ego or instrumentality doctrine. Our standard of review again is whether reasonable minds could differ as to the conclusion to be drawn from the evidence.
Each case involving the disregard of a corporate entity must be decided upon its own special facts. Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33 (1970). A corporation and its stockholders are presumed separate and distinct whether the corporation has many stockholders or only one. Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 567 P.2d 1337 (1977). A holding or parent company has a separate corporate existence and is treated separately from its subsidiary in the absence of circumstances justifying disregard of the corporate entity. Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974). While the debts of the corporation are not the individual indebtedness of its stockholders, in an appropriate case the corporate form will be disregarded and the corporation and its stockholders may be treated as identical. Amoco, 222 Kan. at 589, Syl. ¶ 2.
While the power to pierce the corporate veil is to be exercised, reluctantly and cautiously (Amoco), the corporate entity can be disregarded if it is used to cloak or cover fraud or illegality or to work injustice, or if necessary to achieve equity (Kilpatrick). The doctrine of alter ego fastens liability on an individual or corporation which uses a corporate entity merely as an instrumentality to conduct its own business, such liability arising from fraud or injustice perpetrated on third parties who deal with the corporation. Under the doctrine the courts will disregard the corporate entity and hold an individual responsible for those acts which were knowingly and intentionally done in the name of the corporation. Kirk v. H. G. P. Corporation, Inc., 208 Kan. 777, 494 P.2d 1087 (1972). Furthermore, the separate entity of a corporation and the persons who comprise it may be cast aside and disregarded if it appears that the corporation is merely a business “conduit” through which an individual or corporation does business and that to recognize the separate entity of the corporation would allow fraud on a third party. Sell v. United States, 336 F.2d 467 (10th Cir. 1964); Kirk, 208 Kan. at 780.
In Amoco, the Kansas Supreme Court enumerated some of the significant factors which would justify disregarding a corporate entity. Those factors are undercapitalization of the corporation, failure to observe corporate formality, nonpayment of dividends, siphoning of corporate funds by dominant stockholders, non-functioning of other officers or directors, the absence of corporate records, the use of the corporation as a facade for the operations of the dominant stockholder or stockholders, and the use of the corporate entity in promoting injustice or fraud. In Intern. U., United Auto., etc. v. Cardwell Mfg. Co., 416 F. Supp. 1267, 1286 (D. Kan. 1976), the district court enumerated the following factors which may be considered: (1) The parent corporation owns all or a majority of the capital stock of the subsidiary; (2) the parent and subsidiary corporations have common directors or officers; (3) the parent corporation finances the subsidiary; (4) the parent corporation subscribed to all of the capital stock of the subsidiary or otherwise causes its incorporation; (5) the subsidiary has grossly inadequate capital; (6) the parent corporation pays the salaries or expenses or losses of the subsidiary; (7) the subsidiary has substantially no business except with the parent corporation, or no assets except those conveyed to it by the parent corporation; (8) in the papers of the parent corporation, and in the statements of its officers, “the subsidiary” is referred to as such or as a department or division; (9) the directors or executives of the subsidiary do not act independently in the interest of the subsidiary, but take direction from the parent corporation; (10) the formal legal requirements of the subsidiary as a separate and independent corporation are not observed. No one factor, however, is conclusive. Collins v. United States, 386 F. Supp. 17 (S.D. Ga. 1974).
Examining the evidence in the light most favorable to the party against whom the verdict was directed, as this court is bound to do on appeal, we conclude that reasonable minds might differ on whether Particulate was the mere alter ego or instrumentality of MABCO. The record reveals that all of the officers of Particulate were employees of MABCO with the exception of the secretary, who was Peterson’s wife. MABCO and Particulate have a common officer and formerly a common director. Particulate had no employees other than William M. Peterson, and he did not draw a salary. Peterson received his full salary from MABCO and no records were kept pertaining to what percentage of his time was spent in behalf of the two corporations.
MABCO owned only 10 percent of the stock, but by virtue of the pre-incorporation agreement entered into between MABCO and Peterson, it was assured of control of Particulate. That agreement provided that Peterson and MABCO would vote their shares of stock so as to elect at least one director designated by MABCO. The articles of incorporation provided that the number of directors of Particulate was .to be two. In addition, Peterson and MABCO agreed to vote their shares of stock so as to insure the election of an individual designated by MABCO as the vice-president of Particulate.
Peterson paid in $899 cash to Particulate and assigned any and all patents or patent applications for air pollution control devices in his name to Particulate Controls, Inc., in exchange for 900 shares of stock. MABCO paid $100 and received 100 shares of stock. In the pre-incorporation agreement, MABCO recognized that the pollution control device was developed by Peterson while he was employed by MABCO and that MABCO had provided the funds and other aid for the development of the device. By virtue of this agreement MABCO purported to give up all rights to the device which it may have had by reason of its employee developing the device and its- financial aid in the development. However, by a later provision in the agreement, Particulate was prohibited from transferring the patent or patent application without the express consent of MABCO.
By virtue of the pre-incorporation agreement, MABCO was made the exclusive sales agent of Particulate and was to receive 10 percent of all gross sales as compensation. If MABCO did not sell in any area, then Particulate was free to sell the pollution control device on its own upon giving notice to MABCO. However, even if Particulate sold a device on its own, MABCO was to receive the larger of 10 percent of the sale price less the costs of sale, or 3 percent of the sale price.
Although an officer of MABCO testified that Particulate was not obligated to use MABCO’s facilities to produce a pollution control device, we note paragraph five of exhibit C to the pre-incorporation agreement provides that “[i]t is understood and agreed that Particulate shall so use the facilities and personnel of MABCO in connection with those three devices.” Particulate was thus obligated to produce the first three devices (all that were ever produced) in MABCO’s facilities. Particulate was to reimburse MABCO for the cost of producing the devices plus 50 percent, with the cost to be determined by using MABCO’s cost account ing procedures. Thus, MABCO would make not only a sales commission on the first three units, but also a profit of 50 percent of the actual cost of producing the units.
MABCO further contends there is no evidence that it ever financed Particulate. However, by virtue of the above-mentioned “manufacturing costs reimbursement” formula, MABCO could not be paid its cost of production for any one device until the first three units had been sold. This is, in essence, a method of financing. Furthermore, it is undisputed that MABCO paid the research and development costs of the device as well as Peterson’s salary while he was performing the research. It continued to pay his full salary after Particulate was formed and operating, and no effort was made to ascertain the amount of time spent on Particulate’s business or expenses incurred which would have been properly chargeable against Particulate. Although the trial judge found that MABCO did not finance Particulate, there is ample evidence to support a reasonable mind’s conclusion that it did.
The trial court also found that Particulate was not undercapitalized. The corporation started in business with $999. The record indicates that MABCO’s attorneys drew all of the agreements and corporate papers and that their fee was paid by MABCO rather than by Particulate. As money from the sale of the three devices came into the corporation in 1971 and 1972, it was paid out in the form of bonuses to Peterson and MABCO. The trial judge placed significance on the fact that the money was paid out in the form of bonuses prior to any claim being made that the pollution control device did not function properly. Another inference that the trial judge could have drawn from the fact the profits were paid out so promptly in the form of bonuses is that it was done to place the money beyond the reach of anyone who might have had a claim against the company for liability as the result of a malfunctioning pollution control device. At the end of 1972, Particulate had a balance of only $1,101.96, and by the end of 1973 it had a negative balance. Generally it can be said that stockholders should in good faith put at the risk of the business unencumbered capital reasonably adequate for its prospective liabilities. If the capital is illusory or trifling compared with the business to be done and the risk of loss, this is ground for denying a separate entity privilege. 1 Fletcher, Cyclopedia of the Law of Private Corporations § 44.1, p. 249 (perm. ed. 1974).
The only board meetings conducted by Particulate after the original incorporation were the annual meetings which appear to have been primarily concerned with paying out the profits in the form of bonuses.
While Peterson testified that, as president he was responsible for the day-to-day decisions concerning the business affairs of Particulate, it must be remembered that he was a long-time employee of MABCO; and although he was in Wichita when the plaintiff signed its offer to purchase, the fact that he apparently felt a need to go back to St. Louis before signing the acceptance on behalf of Particulate might well be indicative that it was necessary to obtain the permission of someone at MABCO before he could agree to it. Given those facts, plus the fact that Peterson’s sole income appears to have been his salary and sales commissions from MABCO, a jury might well have determined that Peterson was the mere tool of MABCO.
We are not here concerned with whether or not there is ample evidence to support the findings of the trial judge; our only concern is whether or not there was sufficient evidence contrary to the findings on which reasonable minds might differ. We conclude that there was, and that the trial court should have submitted the question of alter ego or instrumentality doctrine to the jury under proper instructions.
Plaintiff then contends that the trial court incorrectly instructed the jury on the measure of damages. It is plaintiff’s position that it was entitled to recover the amount necessarily spent in acquiring and installing a unit that would comply with the Kansas code. In addition to the cost of the replacement unit, plaintiff requests attorney fees in connection with the administrative hearing, the fee charged for testing the unit, a charge by a consulting engineer, and lost profits while the new unit was being installed.
The trial judge instructed on and allowed recovery for the price of the pollution control device purchased from Particulate, attorney fees incurred in connection with the administrative hearing, testing costs, lost profits resulting from the suspension of business while the replacement unit was being installed, and consulting fees paid in conjunction with the faulty unit. He disallowed recovery of the cost of acquiring and installing the new unit in the amount of $94,422.78 and the consulting engineer fee in connection with designing a new unit. In addition, he allowed as damages the cost of installation of the faulty unit.
Plaintiff contends that the larger sum ($112,341.34) is the correct sum to be awarded for its damages under the Kansas Uniform Commercial Code and cites K.S.A. 84-2-714 and K.S.A. 84-2-715 to support its position. K.S.A. 84-2-714 reads as follows:
"(1) Where the buyer has accepted goods and given notification (subsection [3] of section 84-2-607) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential damages under the next section may also be recovered.” (Emphasis added.)
K.S.A. 84-2-715 reads:
“(2) Consequential damages resulting from the seller’s breach include
“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise.” (Emphasis added.)
Plaintiff then argues that the seller had reason to know about the plaintiff’s urgent need for a pollution control device and the consequences that would befall plaintiff if the device did not meet state standards. White and Summers, Uniform Commercial Code, § 10-2 (1972), tends to lend support for that position. Further support for plaintiff’s position is found in Murray v. Kleen Leen, Inc., 41 Ill. App. 3d 436, 354 N.E.2d 415 (1976). In that case, the term “special circumstances” was held to cover replacement costs which went beyond the mere substitution of new goods for the ones proven to be defective when necessary to compensate the buyer for all the damages he had in fact suffered. See also Lanphier Const. Co. v. Fotoco Const. Co., 523 S.W.2d 29 (Tex. Civ. App. 1975) (faulty asphalt led to redoing entire job).
We are here faced with a situation where a plaintiff had an existing foundry. Although expensive pollution control devices were available that would comply with the Kansas code, the plaintiff attempted to purchase a cheaper unit. It was awarded damages from Particulate that included damages for “special circumstances” as well as “incidental and consequential dam ages” allowable under K.S.A. 84-2-714 and K.S.A. 84-2-715. It was reimbursed for all expenses incurred in installing and testing the faulty pollution control device as well as expenses for the time its plant had to shut down while a new device was being installed. It would be patently unfair to MABCO to allow plaintiff to recover damages for a more expensive unit under the circumstances and facts of this case. The basic principle of damages is to make a party whole by putting it back in the same position, not to grant a windfall. We conclude the trial judge properly instructed the jury on the issue of damages under the facts of this case.
The judgment is affirmed as to Service Iron Foundry, Inc., and reversed as to M. A. Bell Company. | [
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Swinehart, J.:
This is an appeal by the defendant husband from a judgment on a post-trial motion by the plaintiff wife wherein the court found that a provision contained in a property settlement agreement was ambiguous and admitted parol testimony to prove the original intent of the parties.
The property settlement agreement as executed by the parties, who were at that time represented by attorneys, provided for the custody and support of the children born of the marriage, a division of the real and personal property accumulated during the marriage, and the payment of two mortgages that existed on the real estate (residence) that was awarded to plaintiff wife free and clear of any right, title or interest of the defendant husband. Paragraph IV of the property settlement agreement is in question, and it provided as follows:
“That Lloyd L. Quenzer hereby quitclaims, transfers and assigns all of his right, title and interest in and to the following real property situated in Ellis County, Kansas, to-wit:
Lot Seven (7), and a portion of Lot Six (6), in Block Six (6), Prairie Acres Addition to the City of Hays, Kansas,
to Anita J. Quenzer, subject only to those balances remaining due and payable to A. J. Breit and Pauline Breit, his wife, which the said Lloyd L. Quenzer agrees to pay and satisfy in full on or before October 1, 1971, under a real estate purchase contract; and to the mortgage in favor of the Hays Savings Association, which said installment payments on the same in the amount of $120.00 are to be assumed and paid by Lloyd L. Quenzer until said mortgage is fully satisfied.”
The defendant quitclaimed his interest in the residence to the plaintiff, as the agreement required. Soon after the divorce, the plaintiff took out a second mortgage on the home. She defaulted on the second mortgage, and the second mortgagee foreclosed. The property was ultimately sold to a third party purchaser on December 3, 1975. On the same date he satisfied the first mortgage and it was released of record. On April 6, 1977, the plaintiff filed a motion in district court to construe paragraph IV in such a manner as to compel the defendant to pay her the equivalent of the monthly mortgage payments until he paid her the sum of $7,895.62, the balance of the mortgage still due and owing on the date of foreclosure.
The court found this provision of paragraph IV to be ambiguous and permitted the admission of parol testimony to explain the intent of the parties. Ultimately, the court found that the defendant was obligated to pay to the plaintiff the balance of said sum. Defendant now appeals, alleging:
(1) The court erred in ruling the provisions of paragraph IV of the property settlement agreement are ambiguous.
(2) The court erred in admitting parol evidence over the defendant’s objection and overruling the defendant’s motion for judgment.
(3) The court erred in its findings as to the intentions of the parties in construing the contract provisions.
(4) The court unlawfully modified the property settlement agreement.
An appellate court has substantially the same power to interpret documentary evidence, such as this property settlement agreement, as does the trial court. In re Estate of Broadie, 208 Kan. 621, 624, 493 P.2d 289 (1972). In this case we find that the subject provision is not in fact ambiguous as was found by the trial court.
When the agreement is reviewed in total, it is plain and clear that the parties provided, among other matters, the transfer to each other of the respective interests in their accumulated real property. This consisted of two sections of farmland and one parcel of city residential property. The farmland was to be deeded to the defendant and the residence to the plaintiff. The residence was subject to a mortgage, and money was owed to private parties on the real estate purchase contract. The agreement made a specific provision that defendant was to be responsible for the satisfaction or payment of these two obligations. Particularly as to the mortgage, the agreement provided that defendant should pay the Hays Savings Association $120.00 per month until said mortgage was fully satisfied.
The contract unambiguously expresses the intent of the parties to divide the real estate between themselves. The contract further provides that the defendant’s duty to make mortgage payments on the residential properties is to terminate when the mortgage is paid in full. The property was divided as provided in the contract, and the defendant’s duty to make mortgage payments ended when the mortgage was fully satisfied, even though this was done by a third party.
We find that by application to the facts herein presented that the rules as set forth in Gardner v. Spurlock, 184 Kan. 765, 339 P.2d 65 (1959); Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P.2d 808 (1959); and Brown v. Beckerdite, 174 Kan. 153, 254 P.2d 308 (1953), are controlling and that the trial court erred in finding that the contract was ambiguous and in admitting parol evidence.
The additional grounds of error need not be discussed, inasmuch as the decisions of the prior two are controlling.
Judgment is reversed. | [
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Swinehart, J.:
The appellant, John J. Gruss, was convicted in the Municipal Court of Shawnee, Kansas, of driving under the influence of intoxicating liquor. He appealed to the district court, where his case was tried de novo to a six-member jury. He appeals the jury’s verdict.
At the trial, breathalyzer test results showing that the appellant’s blood alcohol content was .11 percent were admitted over his objections. K.S.A. 8-1005 states that a blood alcohol content of .10 percent by weight establishes a presumption of intoxication. The only question on appeal is whether the trial court erred in admitting the breathalyzer test results.
The appellant argues that the admission of the breathalyzer results constituted prejudicial error. The testimony presented at trial showed some evidence of intoxication other than the breathalyzer results (i.e., erratic driving, belligerent behavior, and name-calling). Under the facts and circumstances of the case, we concur with the appellant that the admission of the test results would be prejudicial if it was erroneous; however, for reasons discussed below, we find that the trial court did not err in admitting the breathalyzer results.
The appellant contends that the breathalyzer evidence was incorrectly admitted because the City of Shawnee failed to lay a proper foundation. He attacks the sufficiency of the foundation testimony on the following grounds:
(1) The breathalyzer operator failed to examine the appellant’s' mouth for foreign substances prior to the test;
(2) the operator failed to observe the appellant for a period of twenty minutes immediately prior to the test;
(3) the operator was not qualified to administer the test;
(4) the machine was not properly certified;
(5) the test ampoule was not properly certified as containing the correct chemical compound; and
(6) the appellant was denied a reasonable opportunity to have an additional chemical test by a physician of his own choosing.
K.S.A. 1977 Supp. 65-1,107 authorizes the secretary of health and environment to promulgate rules and regulations affecting breath testing, including testing procedures and certification, and periodic testing of operators and machines. Those guidelines are found at K.A.R. 1977 Supp. 28-32-1, et seq. Briefly summarized, the regulations require initial inspection of the testing machine for accuracy with yearly testing and certification thereafter, and initial training of operators with periodic proficiency testing and yearly certification. The regulations also require that breath testing machines be operated strictly in accordance with the manufacturer’s operational manual. Summers, a chemist with the Kansas Department of Health and Environment, and Officer Morris, who administered the breath test, both testified concerning the requirements contained in the manufacturer’s checklist for the Smith Wesson 900A, which was used to test the appellant’s breath. The checklist requires that the test subject be observed for a twenty-minute period during which time he must not belch, regurgitate or ingest any substance. Belching, regurgitating or ingesting within twenty minutes of the breath test could substantially affect the test results, according to their testimony.
The facts important to the determination of this appeal occurred during the time span from the arrival of the appellant at the Shawnee Police Department through his taking of the test. The appellant was divested of his personal property upon arrival at the police station. After preliminary questioning for purposes of police records, he was placed in the drunk tank where he remained, with the exception of two or three times when he was permitted to make phone calls in the hall to his wife and to his attorney. There was no water fountain in the drunk tank. The telephone was out of the sight of the officers who gave the test; however, they testified that the area did not contain a water fountain. The undisputed testimony was that the officers did not visually inspect the appellant’s mouth for foreign substance, but they did testify that, during the twenty-minute observation period, he did not belch, regurgitate or ingest any substance.
Considering first the appellant’s contention that the test results were inadmissible because he was not observed for a twenty-minute period prior to testing, we find that there was a conflict in the testimony regarding this fact. The appellant testified that he was observed for less than ten minutes. The officer testified that he observed the appellant for twenty minutes before testing him. Although we agree with the appellant that failure to observe the test subject for twenty minutes before administering the test would invalidate the results, the question of whether the appellant actually was observed for twenty minutes is a question of fact to be resolved by the trial court. The officer’s testimony that he did watch the defendant for twenty minutes constitutes substantial, competent evidence supporting that finding of fact and it, therefore, will not be disturbed on review.
Considering next the appellant’s contention that the officer did not inspect his mouth for foreign substance, we find the argument to be without merit. The officer’s testimony that the appellant did not belch, regurgitate or ingest any substance during the twenty-minute observation period creates a prima facie showing that he had no foreign substance in his mouth at the time of testing. The appellant presented no evidence to rebut that showing.
The appellant also challenges the qualifications of the operator and the breathalyzer machine. It is sufficient to say that the Kansas Department of Health and Environment has established a program for certifying breath testing machines and operators. Both the operator and apparatus in question were currently certified at the time the appellant was tested. The current-certification, in addition to the officer’s testimony that he had passed all of the periodic proficiency tests required (which measure both his proficiency and the machine’s accuracy), shows the appellant’s argument to be without merit.
Appellant argues that the test ampoule was not shown to contain the proper chemical compound. The ampoule used was shown to be part of a lot spot-checked and certified to contain the proper chemicals by the Wisconsin Alumni Research Foundation. It is impossible to require more, for once an individual ampoule is opened for testing it cannot be resealed. The ampoule was shown to have been properly certified and, therefore, the appellant’s allegation of error is without merit.
The appellant’s final argument is that the test results should have been excluded because he was not notified of his right to have an independent blood alcohol test conducted by a physician of his own choice under K.S.A. 8-1004. Significantly, the statute does not require police officers to inform an individual of this right. The reasoning of the Kansas Supreme Court in Hazlett v. Motor Vehicle Department, 195 Kan. 439, 407 P.2d 551, is persuasive. There, the court declined to add by judicial gloss the requirement that police officers inform a person who refuses to submit to chemical testing for intoxication that his refusal will result in an automatic suspension of his driver’s license under K.S.A. 8-1001. Here, the appellant had the benefit of an attorney’s advice concerning the test. Never having asked to take an independent test, he will not now be heard to allege error.
Judgment affirmed. | [
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Meyer, J.:
Donald O’Neal Griffin (appellant), an inmate of Kansas State Penitentiary at Lansing, Kansas, petitioned the District Court of Leavenworth County, Kansas, for a writ of habeas corpus. He alleged that he did not receive a fair hearing before the penitentiary hearing board, that his punishment should be classified as “cruel and unusual,” and that the penitentiary board violated his fundamental rights of equal protection and due process of law. His petition for habeas corpus was dismissed, and this appeal followed.
This case arises out of an unusual set of circumstances. Appellant, at some undisclosed time prior to the incident giving rise to this cause of action, requested and was granted protective custody. All prisoners who request protective custody are housed in the A and T building. Those prisoners who are housed in the east wing are denied certain privileges enjoyed by prisoners residing in the north wing. The most substantial of these is that prisoners granted work privileges are chosen from the north wing. If a prisoner loses his job he is transferred to the east wing.
The Kansas Supreme Court recently stated in Foster v. Maynard, 222 Kan. 506, 508-10, 565 P.2d 285 (1977) as follows:
“The appellants’ first point on appeal is that their confinement in the east wing of the A and T Building is illegal. They contend they have suffered a loss of institutional privileges without being accorded a prior hearing in violation of the due process clause of the Fourteenth Amendment. We disagree.
“. . . This administrative classification decision allowed the most efficient inmate workers to work in the laundry and removed a potentially disruptive influence upon the remaining protective custody population.
“. . . The classification decision of prison officials to house the appellants on the east wing because of the unavailability of space on the north wing and because of their aggressive behavior clearly constitutes a reasonable exercise of discretion .... The determination implicated no constitutional right of the appellants. The classification of prisoners concerning housing and job assignments is necessary to the proper administration of a state prison and rests within the sound discretion of the prison administrator.”
Foster makes it clear that whether a prisoner requesting protective custody is housed in the north or the east wing is an administrative decision within the sound discretion of the prison administrator and will not be interfered with by the courts. It is also clear that a prisoner who has requested protective custody may remove himself from protective custody at any time.
In the instant case appellant was involved in a fight at his place of employment in the prison, resulting in disciplinary proceedings being brought against him. Under the disciplinary regulations the prison authorities were authorized to sentence appellant to a segregation period of 7 to 15 days and to deduct up to 30 days of his good time.
The prison authorities did not distinguish which resulting actions taken in regard to appellant were administrative and which were disciplinary. No disciplinary segregation was imposed, but appellant was removed from the laundry work detail and pay status for thirty days. He was transferred to the east wing, but the order noted he could earn back his laundry status at the discretion of the officer in charge of the A and T Building.
The Kansas court in Foster, 222 Kan. at 509, relied on Meachum v. Fano, 427 U.S. 215, 49 L.Ed.2d 451, 96 S.Ct. 2532 (1976), a case which involved a prisoner’s civil rights relative to his transfer from one state prison to a prison with considerably more severe conditions of confinement, without a prior hearing. In Meachum, the high court stated:
“We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause. . . .
“Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause. The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause. But given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” 427 U.S. at 224.
Appellant’s main contention seems to be that once prison officials undertake a disciplinary proceeding, they are precluded from taking any administrative action concerning the prisoner. However, we are of the opinion that what can be done administratively, without any hearing at all, can be done by procedures which afford a hearing. The disciplinary rules and regulations in effect at the time of the hearing allowed for disciplinary segregation of 7-15 days, and a good time forfeiture of up to 30 days. Appellant, however, was not sentenced to punitive segregation. He was free to leave the disciplinary section of the A and T Building at any time he might choose, simply by withdrawing his name from the protective list. We view the order as one of form rather than of substance. All the parties agree that, had the order been classified as administrative, the action taken would clearly have been within the authority of the prison administration.
The existence of written guidelines for disciplinary proceedings does not mandate that prison authorities must elect either administrative procedures or disciplinary procedures. Fighting in prison is a serious infraction that could easily lead to death or serious injury of inmates or personnel. To hold that prison authorities, by choosing to punish an inmate under the disciplinary procedures, thereby lose their authority to transfer him, administratively, from his job in the prison, or to a different location therein, would be to unduly restrict the prison authorities.
We conclude that the action of the disciplinary board was well within their authority as determined in Foster and Meachum.
Appellant does not contest the proceedings per se except to contend one member of the three-man disciplinary board was so biased as to deny him a fair hearing, in violation of the due process clause. First, we note that the appellant did not suffer any loss of privileges or rights which would require a prior hearing. Appellant testified that Officer Lynch was hostile toward him because of his prodigious filing of writs against prison officials. The only other evidence of Officer Lynch’s alleged prejudice was the hearsay testimony of another inmate. The trial court is the sole judge of the credibility of witnesses and the weight to be given the evidence presented. Parish v. Parish, 220 Kan. 131, 551 P.2d 792 (1976). Absent a clear abuse of that discretion, the trial court’s determination will stand. We find no such abuse of discretion in the instant case.
Appellant argues there was disparity in privileges given to him and to other inmates, and that this discrimination violated his constitutional rights. This contention lacks merit. The privileges, which involved location of imprisonment and the absence of work privileges, do not rise to constitutional proportions. The Kansas Supreme Court dealt with a very similar situation in Foster.
Appellant also complains that because the appellees failed to present direct evidence, the court was obliged to accept his evidence as a prima facie case. Appellant’s argument overlooks the presumption that operates in favor of the disciplinary board proceeding. Until the contrary is shown, it is presumed that the board operated properly. 29 Am. Jur. 2d, Evidence §§ 171-172. More importantly, however, appellant did not necessarily carry his burden of proof in that the trial court was not obliged to believe his testimony. See Withrow v. Larkin, 421 U.S. 35, 43 L.Ed.2d 712, 95 S.Ct. 1456 (1975).
While the foregoing reasoning and citations are ample to sustain the action of the trial court, we deem this a proper case to state the general rule that courts normally do not engage in useless acts. If we were to reverse the case because of the state’s taking administrative action in conjunction with a disciplinary proceeding, the prison authorities could hand appellant our decision and immediately thereafter hand him an administrative order transferring him to the east wing and removing him from his job at the laundry. The only way to avoid such a result would be for this court to order the prison authorities to restore appellant to his job in the laundry and to the prison’s general population. To order reinstatement of appellant’s job would be a grossly unjustified interference with prison authorities, and to release appellant from protective custody-would be contrary to appellant’s own wishes.
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Abbott, J.:
This is an appeal from an order dismissing plaintiff’s cause of action with prejudice for his failure to answer a certified question.
This action was commenced by the plaintiff, John H. Fields, on August 6, 1975, the day following the publication of an article in The Kansas City Kansan, a newspaper owned by the defendant, Stauffer Publications, Inc. The article was entitled “Bid May Violate Ethics.” The general tenor of the article was that the law firm of Carson, Fields, Kugler & Boal, over the signature of John H. Fields, had submitted an unsolicited proposal to handle all the legal work of the Board of Public Utilities, and that the proposal might violate Canon No. 2 of the Code of Professional Responsibility. Canon No. 2 prohibits a lawyer from recommending employment of himself, his partner or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer. The article made mention that the written proposal stated it was submitted in response to a request by the board. The article, however, went on to attribute statements to board members and employees of the Board of Public Utilities that they had not requested the proposal. Although not material to our disposition of this appeal, evidence developed during discovery reveals that some members of the board did specifically invite the proposal. John H. Fields was of the opinion that the article was libelous and damaging to his law practice. This suit followed.
Defendant, in the course of its discovery, took Field’s deposition on April 14, 1976. The following took place:
“Q [By Mr. Fabian] Had you or any member of your association supported any of the then constituted Board in their election efforts?
“A [By Mr. Fields] I personally feel that that is immaterial and I respectfully decline to answer that unless the court orders me to.
“MR. FABIAN: We had better certify that one.
“Q [By Mr. Fabian] Had you or any member of your association contributed monetarily to the election efforts of any of the then constituted members of the Board of Public Utilities?
“A [By Mr. Fields] Same response.
“MR. FABIAN: Certify it.”
The two questions were certified to the district judge and a motion was filed by defendant to require Fields to answer the certified questions. Fields filed a motion for a protective order. A hearing was held and the district judge ordered Fields to answer.
A second deposition of Fields was taken on February 21, 1977. Fields again refused to answer the certified questions on the grounds the questions were not relevant or material to any issue involved in the litigation.
The questions were again certified. The Honorable Don Musser was assigned to hear the matter. (Judge Musser allowed the parties an opportunity to brief the issue, but no briefs were filed.) Judge Musser, by letter dated March 30, 1977, directed that:
“The plaintiff answer in writing under oath the following by April 15, 1977, sending a copy of the answer to counsel for defendant and to the court, but the same need not be filed in the case as a public record.
“Question: Did you or the law firm of Carson, Fields, [Kugler] and Boal monetarily contribute to the campaign of Shirley Cahill, Joe Mulich, AI Bukaty, or Paul Haas in the Board of Public Utilities election?
“Failure to answer the above question as directed by the court by April 15, 1977, will result in the dismissal of plaintiff’s claim in this case, with prejudice, on April 18, 1977. Counsel for the defendant may prepare a formal Journal Entry to this affect [sic] if desired.”
The plaintiff did not answer the question and the trial judge dismissed the case with prejudice. This appeal followed.
On appeal, plaintiff raised and briefed two issues. Did the trial court err in ordering the plaintiff to answer the questions, and did the court abuse its discretion in dismissing the plaintiff’s cause of action for plaintiff’s failure to answer the questions?
At oral argument, plaintiff for the first time contends that the nature of the inquiry falls within the area of privilege as enunciated in K.S.A. 60-226(h)(l). He argues the question sought information concerning political action, which is protected by the First Amendment to the United States Constitution.
Defendant correctly states the rule that an appellate court will not consider an issue that was not presented to the trial court. (Nelson v. Hygrade Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 [1974].) The Kansas Supreme Court, however, has recognized exceptions to the general rule “where the newly asserted issue involves only a legal question arising on proved or admitted facts and which will be finally determinative of the case, or where consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights.” (Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 [1967].)
Although we would not ordinarily consider a question not raised in the trial court, we deem the allegation of a denial of fundamental rights in this case of sufficient importance to further comment. In addition, the defendant, a corporation whose very existence would be threatened by a loss of First Amendment guarantees, would be hard pressed to argue that such a loss would not be a denial of fundamental rights. We do not, however, deem it necessary to ascertain whether or not plaintiff has a First Amendment right that is recognizable as “privileged” under K.S.A. 60-226(fe)(l).
Even if we were to hold plaintiff has a First Amendment right privileged under the statute, it would be of no comfort to plaintiff. A court of law will not permit a plaintiff to profit by exercising his constitutional rights to the detriment of a defendant. (Stockham v. Stockham, 168 So. 2d 320 [Fla. 1964]; Levine v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 [1958], aff’d 7 App. Div. 2d 995, 183 N.Y.S.2d 868, aff’d 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 [1959]; Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 [1955]; Geldback Transport, Inc. v. Delay, 443 S.W.2d 120 [Mo. 1969]; see, also, 4 A.L.R.3d 545.) The theory is that a plaintiff should not be allowed to benefit financially from litigation in which he has exercised his constitutional rights to conceal relevant information. To allow him to do so would place the defendant at a distinct disadvantage in defending his position. We hold that where a party seeking relief in a civil action exercises a constitutional privilege and refuses to testify concerning evidence which is discoverable under K.S.A. 60-226, the party’s actions will be judged in the same manner and by the same rules as though that party had refused to comply with any other discovery order.
Having determined the plaintiff may not claim privilege, we turn to the question of relevancy. The question in this case is whether the information sought from plaintiff is relevant to the subject matter or appears reasonably calculated to lead to the discovery of admissible evidence. If the information sought meets that test, then the fact that the information sought will be inadmissible at the trial is immaterial.
The scope of relevancy in deposition proceedings is broader than the scope of relevancy at trial. (2A Barron and Holtzoff, Federal Practice and Procedure, Civil § 641, p. 14.) Furthermore, the scope of discovery is to be liberally construed so as to provide both parties with information essential to proper litigation on all of the facts. (Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 [1947].) “Relevancy” has been defined to include information which may be useful in preparation for trial. (Carrier Manufacturing Co. v. Rex Chainbelt, Inc., 281 F. Supp. 717 [E.D. Wis. 1968].) It has been said that a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to subject matter of the lawsuit. (Detweiler Bros., Inc. v. John Graham & Co., 412 F. Supp. 416 [E.D. Wash. 1976].)
The plaintiff alleged in his petition that the defendant intended to deprive the plaintiff of his good reputation and to bring him into professional disrepute. He further stated that he was not suspected of conduct or practices which would violate in any manner the disciplinary rules of the bar of the state of Kansas. Consequently, defendant suggests the violation of any discipli nary rule became relevant. Defendant contends that as a result of plaintiff’s pleading the defendant may inquire as to the possibility of a violation of disciplinary rule 2-103 (B), which reads, “[A] lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client.” We agree.
The requested information also would have been useful in preparation for cross-examination of any witnesses the plaintiff might call to testify concerning plaintiff’s character or reputation. (98 C.J.S., Witnesses § 387, p. 150; 53 C.J.S., Libel and Slander § 210, p. 317.) In addition, the plaintiff has made the information sought a subject for discovery by seeking recovery for damage to his reputation, by pleading his good character, and by alleging his good standing in the bar.
Long ago, Justice Burch wrote that the general rule on the admissibility of evidence is “that which permits the introduction in evidence of facts which are relevant to facts in issue, and which explain facts in issue and relevant facts, and support or rebut inferences from such facts.” (Kaufman v. Christy, 95 Kan. 554, 558, 148 Pac. 617 [1915].) We are of the opinion that the question was relevant for these purposes and appears reasonably calculated to lead to the discovery of admissible evidence.
The plaintiff argues that the question requests information of plaintiff concerning persons who are not parties to the suit and thus should not be discoverable. We disagree. The requested information involved plaintiff’s law practice. Although plaintiff denied he was engaged in a legal partnership, the facts show plaintiff is listed as a partner on the firm stationery and thus holds himself out to the public as a partner. In addition, plaintiff testified that all income produced by each attorney listed as a partner on the firm letterhead is deposited in a common bank account. All expenses of the law firm are paid and any sums remaining are distributed to the attorneys on a previously agreed-on percentage. Thus, the requested information was available to plaintiff and is discoverable.
The ultimate question becomes whether the trial judge abused his discretion by imposing the extreme sanction of granting a default judgment against the plaintiff for his refusal to answer the question after being ordered to do so. The trial judge is em powered to impose such sanctions as are just, including but not limited to those set forth in K.S.A. 60-237(b)(2), as follows:
“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
“(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.”
It is well established that the dismissal of a cause of action is a drastic remedy to impose as a discovery sanction and should be used only in extreme circumstances. (Vickers v. City of Kansas City, 216 Kan. 84, 531 P.2d 113 [1975].) Further, a court should impose sanctions which are designed to accomplish the objects of discovery and not for the purpose of punishment. (Jacuzzi v. Jacuzzi Bros., Inc., 243 Cal. App. 2d 1, 52 Cal. Rptr. 147 [1966].) However, the granting of default judgment against a party who refuses to allow discovery does not violate the due process clause of the Constitution of the United States, as plaintiff suggests, so long as the judgment was entered to compel discovery and not merely to punish. The object of a sanction should be to prevent the party against whom sanctions are being imposed from profiting by his own violation. (Hammond Packing Co. v. Arkansas, 212 U.S. 322, 53 L.Ed. 530, 29 S.Ct. 370 [1909]; City of Mobile v. Wooley, 278 Ala. 652, 180 So. 2d 251 [1965]; Unger v. Los Angeles Transit Lines, 180 Cal. App. 2d 172, 5 Cal. Rptr. 71 [1960]; see, also, 6 A.L.R.3d 715.)
The Kansas legislature has seen fit to vest discretion in the trial judge as to which sanction he will impose. Thus, the trial judge will be reversed only where no reasonable man would take the view adopted by the trial court.
The appellate courts of this state have previously handed down three decisions involving the ultimate sanction of judgment by default. (See Vickers v. City of Kansas City, supra; Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 [1974]; Prather v. Olson, 1 Kan. App. 2d 142, 562 P.2d 142 [1977].) From those cases, several tests emerge to aid in ascertaining whether or not a trial court abused its discretion in granting default judgment.
Initially it must be ascertained whether the discoverable material goes to a dispositive issue in the case. Clearly in the case at bar the question does not go to a dispositive issue. The trial court should next ascertain whether or not the parties seeking discovery may be protected by the imposition of a sanction short of dismissal. This necessarily requires the trial judge to determine whether or not there are other appropriate sanctions. The plaintiff suggests to this court (he did not suggest any alternatives to the trial court) the possibility of two sanctions. First, he suggests that the trial court could have instructed the jury that the contributions were made. That alone would not have been sufficient. The size of the contribution was necessarily material, as were the facts surrounding the contribution. Second, plaintiff suggests that the information sought was available through alternative sources and that the trial judge could have ordered plaintiff to pay the costs of deposing the candidates. We do not deem that an appropriate alternative. The defendant was entitled to know exactly who made the contribution, if any, the manner in which it was made, and all of the facts surrounding any understanding which may have existed between the recipients and the donors. That information may not have been fully available from any source other than plaintiff. A number of alternative sanctions that would have had the same ultimate result as dismissal were available. For instance, the trial judge could have stayed the case until the question was answered, or he could have refused to allow plaintiff to introduce any evidence in the relevant areas. Either of these sanctions would have resulted in plaintiff’s not being allowed to prove he was damaged.
The requested information was not cumulative nor merely corroborative. We do not believe that any appropriate sanctions short of dismissal were available which would have protected defendant.
In addition to the above tests, our Supreme Court requires that an opportunity for a full hearing be given to the party refusing to allow discovery to enable him to show good faith. Plaintiff in this case was granted an opportunity for a full hearing and was clearly and fully advised what the consequences would be if he continued to refuse to answer the question. There was never an issue that plaintiff was attempting to comply in good faith with the order. Plaintiff was willfully in default and willfully continued to refuse to answer the question after being fully advised as to what the consequences would be if he persisted. The trial judge had no viable alternative to dismissing the action, and we find that the trial court did not abuse its discretion in dismissing the plaintiff’s cause of action.
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Parks, J.:
Defendant, Johnnie Lee Dean, was convicted by a jury of possession of a firearm after a felony conviction (K.S.A. 21-4204) and possession of marijuana (K.S.A. 1976 Supp. 65-4101, K.S.A. 65-4105 and K.S.A. 1976 Supp. 65-4127b).
On November 3, 1976, radar officer Gerald Allen attempted to stop defendant for a speeding violation but was unable to apprehend him. Patrolman Roland Meyers, responding to the broadcast alert of the fleeing car, proceeded to the vicinity, saw defendant, and began pursuit. During the chase the defendant lost control of his car, which jumped a curb, returned to the street and crashed into the back of a parked pickup truck. When Patrolman Meyers approached the automobile, he saw the defendant lean across the seat and open the door on the passenger side. It appeared that the defendant was either putting something under the seat or under the car.
Patrolman Meyers ordered the defendant out of his car, checked him for weapons, handcuffed and detained him until radar officer Allen arrived on the scene and took custody of the defendant. Meyers then returned to the defendant’s car where he observed an orange overnight case directly under the opened door. He reached under the car, picked up the locked case, placed it on the passenger seat and opened it with one of the keys he had found on the floor of the car. Inside the case were four bags of what appeared to be marijuana.
Meyers informed radar officer Allen of his find, left the unlocked case on the seat of defendant’s car and then departed to complete another call which had been interrupted by the chase.
When Patrolman Meyers returned 30 minutes later, three police officers and the handcuffed defendant were still at the scene completing an accident report. Meyers then continued his search of the overnight case, and at that time found a .25 caliber automatic pistol. These searches of the overnight case were made without the defendant’s consent or a search warrant.
Defendant’s timely filed pretrial motion to suppress the evidence obtained from the overnight case was heard and overruled. A similar motion was also raised and overruled during the trial. Defendant was convicted of both crimes, and appeals on the ground that his Fourth Amendment rights were violated. We agree.
The issue is whether consent or a search warrant is required before a law enforcement officer may open a locked overnight case which is properly in his possession and which he has probable cause to believe contains contraband.
The U. S. Supreme Court recently addressed this question in United States v. Chadwick, 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476 (1977). There it was held that respondents were entitled to the protection of the Warrant Clause of the Fourth Amendment, with the evaluation of a neutral magistrate, before their privacy interests in the contents of a footlocker were invaded.
The footlocker in Chadwick was taken off a train in Boston and placed in the trunk of a car. The defendants were arrested while the car trunk was still open and before the car engine had been started. A search disclosed no weapons, but the keys to the footlocker were taken from one of the defendants. The footlocker remained under the exclusive control of law enforcement officers at all times. At the federal building an hour and a half after the arrests, the agents opened the footlocker and luggage. They did not obtain the defendants’ consent nor did they secure a search warrant. Before trial, defendants moved to suppress the marijuana obtained from the footlocker. In the district court, the government sought to justify its failure to secure a search warrant under the “automobile exception” rule and as a search incident to the arrests. The district court rejected both justifications, holding that warrantless searches are per se unreasonable, subject to a few carefully delineated and limited exceptions.
Mr. Chief Justice Burger, speaking for the court, said:
“By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.” [p. 11.]
“Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.
“Nor does the footlocker’s mobility justify dispensing with the added protections of the Warrant Clause. Once the federal agents had seized it at the railroad station and had safely transferred it to the Boston federal building under their exclusive control, there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained. The initial seizure and detention of the footlocker, the validity of which respondents do not contest, were sufficient to guard against any risk that evidence might be lost. With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.” [p. 13.]
In the instant case, the state, like the government in Chadwick, urges that the search was pursuant to a lawful arrest. This argument fails because once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer incident to the arrest. See Chadwick, supra.
Patrolman Meyers searched the overnight case after the defendant had been placed in the custody of radar officer Allen; hence the warrantless search cannot be viewed as incident to the arrest. Further, the fact that Meyers interrupted the search for 30 minutes while he completed another call negates any theory of exigency.
From the record before us, we hold that the defendant’s Fourth Amendment rights were violated and the admission of such evidence denied him a fair and impartial trial.
The conclusion we have reached makes it unnecessary for us to consider the other alleged error.
For the reasons set forth, the judgment is reversed and this case is remanded with directions to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
The Badger Lumber Company brought suit to foreclose a subcontractor’s lien for material furnished in the erection of a dwelling-house at Herring-ton, belonging to Ira F. Powers. The petition failed to allege that a notice of the filing of the lien was served upon the owner. Issues were joined, and when the case was reached for trial, which was more than one year after the filing of the lien, plaintiff asked, and over defendant’s objections was granted, leave to amend the petition. The amendment was made instanter and alleged service upon the owner of a written notice of the filing of the lien the day after it was filed. Defendant’s motion for judgment on the pleadings was denied and the cause was tried to the court. An objection to the introduction of any evidence on the ground that the petition failed to state a cause of action was overruled, as was also a demurrer to the evidence. The court made findings of fact, and gave plaintiff judgment for $700.71 and costs and sustained the lien. Defendant brings this proceeding in error.
There is no privity of contract between the subcontractor and the owner, and the former can only obtain a lien by compliance with the statutory provisions. It is not enough that he has furnished the material and filed his lien. The service of'notice upon the owner is one of the necessary steps. Without such notice he obtains nothing. The right to claim and enforce his lien being statutory, the action can only be maintained upon a petition alleging a compliance with the statute.
The original petition was bad as against a demurrer, and equally so upon an objection to. any evidence and upon a motion for judgment on the pleadings. The fact that the amendment was made after the year had expired appeared upon its face, and the court’s attention was challenged thereto by the motion and objection as effectually as though the statute of limitations had been expressly pleaded.
In Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894, which was an action by a widow to recover damages for the death of her husband, the petition failed to allege the non-appointment of an administrator. The fatal omission was supplied by amendment after verdict, but the objection was raised by a motion for judgment on the pleadings and also by an objection to evidence on the trial. It was held that the court erred in denying the motion for judgment as well as in the subsequent rulings, for the reason that the action was statutory and the petition lacked an essential averment to entitle plaintiff to recover under it.
It was held in A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, that “a plaintiff cannot deprive a defendant of the benefit of the statute of limitations by engrafting upon a case commenced in' time another cause of action barred by the statute.” (Syllabus.)
In most of the adjudged cases the departure between the first and second pleading is said to be a change from law to law, and commonly arises where a cause of action under the common law is first asserted and after the period of limitations has expired a statutory action is relied upon. Such was the situation in Union Pacific Railway v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, cited with approval in the Sehroeder case, swpra, where the amendment to the petition eliminated the cause of action relied upon originally and asserted one not referred to or relied upon in the original. It was held that the action was in fact commenced when the amendment was incorporated into the pleadings and not when the action itself was commencéd. It is urged here that the cause of action in the amended petition is the same cause of action sought to be recovered upon in the original petition and that the amendment relates back. The difficulty is that the original petition, as we have seen, set up no cause of action at all. It was said in Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938:
“Even though the amendment might otherwise be allowable, it is generally held that it will not be permitted when the effect will be to make the state of facts pleaded relate back so as to avoid the statute of limitations if the new cause of action would be otherwise barred.” (Page 691.)
To the same effect see Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Becker v. Railway Co., 70 Kan. 193, 78 Pac. 408. In the present case the only cause of action stated was barred. We quote further from the opinion in Kansas City v. Hart, supra:
“As the doctrine of relation rests on a fiction of law invented for the purpose of accomplishing justice, courts can hardly allow a new and different right of action which is barred to be engrafted on the original one that was not barred, and thus deprive the defendant of his defense of the statute of limitations.” (Page 691.)
We are asked to say that a petition which stated no cause of action tolled the statute. We are unable to see that the present case in principle differs from the very analogous case of Walker v. O’Connell, 59 Kan. 306, 52 Pac. 984. Although the claim asserted in the amended petition is the same claim sought to be set up in the original, the amended petition stated a cause of action for the first time after the bar of the statute had fallen. The situation, in principle, is no different from that presented where the departure is from law to law. In the present case it may be said to be a departure from no law to law. The conclusion which follows is that the cause must be reversed and remanded. | [
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Subsets and Splits