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The opinion of the court was delivered by
Mason, J.:
This is a controversy over the title to real estate. Plaintiff in error, Katherine Power, claims through one William D. Goodnow. Defendant in error Nellie Knickerbocker claims under a sheriff’s deed made in virtue of a judgment foreclosing a mortgage given by Goodnów. This mortgage was executed by Goodnow to Dwight M'. Snow, a resident of Illinois, who died there testate, Maria A. Snow being his executrix. The foreclosure suit was brought in the name of Maria A. Snow individually. The validity of the judgment therein is attacked upon the ground that Mrs. Snow personally did not own the mortgage and that she could not maintain an action upon it as executrix because authority to do so had not been granted by any probate court in Kansas. Whether Mrs. Snow had a right to foreclose the mortgage was a question necessarily involved in the suit brought by her for that purpose. The judgment was a determination that she had such right, which is binding upon the parties and their privies, of whom the plaintiff in error is one. The matter cannot now be relitigated.
The judgment is affirmed. | [
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Per Curiam:
All the claims of error in this case are disposed of in the opinion in The State v. Forner, ante, p. 836, with which it was submitted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The St. Louis Jewelry Company, a partnership, brought an action against J. W. Bennett to recover $196 for jewelry alleged to have been sold and delivered to him and for which he refused payment. In the petition the company set up what is claimed to be a written contract of sale. In his answer Bennett alleged that he signed the alleged contract but that he was induced to do so by the false and fraudulent representations of the company. He averred that the agreement made with the company was not to,purchase the goods, but rather that he should take and sell them for the company, with the option to return the same to the company at any time at their expense. He also alleged that his eyesight was so defective that he was unable to read the writing at the time, and that the agent of the company, who prepared the writing, falsely represented that no more was included in it than had been agreed upon, and so he was induced to sign it. The goods were shipped and received by him, and within a few days he learned that the company proposed to treat the transaction as a sale and to hold him as a purchaser. He then returned the goods to the company, with the exception of a show-case, which had been broken in the shipment and which was held by him subject to the order of the company. Upon the testimony the jury found in favor of Bennett.
The answer of Bennett was unverified, and it is contended that the written contract of purchase set up in the petition was admitted and that the plaintiffs were entitled to judgment on the pleadings. The fact that the answer of Bennett was unverified did not prevent him from making the defense that the writing pleaded, if it can be considered a contract, was procured by fraud. There being no verified denial, the genuineness and execution of the instrument, in the form and manner as pleaded, was admitted. Without a denial under oath the allegation of the plaintiffs made a ’prima facie showing of the execution of the paper — one which must be taken as true, unless overcome by proof. The code provision (Code, § 108; Gen. Stat. 1901, § 4542) is a test of the good faith of the pleader. Its effect is to excuse proof in the first instance of certain averments, including allegations of the execution of written instruments. It operates to shift the burden of proof upon the opposite party unless he makes a sworn denial of such allegations. Here, however, the execution of the paper was expressly admitted in the answer, and that fact was not an issue in the case. It was competent for the defendant, after admitting the execution of the contract, to set up facts avoiding the contract, or rather to show that it was not enforceable. Defenses like illegality, want of consideration and that the execution of the contract was procured by fraud may be alleged and proved without verifying the answer. (Coal Co. v. Whittaker, 40 Kan. 123, 19 Pac. 330; Alexander v. Barker, 64 Kan. 396, 67 Pac. 829; Curtis v. Schmehr, 69 Kan. 124, 76 Pac. 434; De Lissa v. Coal Co., 59 Kan. 319, 52 Pac. 886; Mo. Pac. Rly. Co. v. McGrath, 3 Kan. App. 220, 44 Pac. 39.)
Although questioned, the answer sufficiently alleged that Bennett was induced to sign the paper by the fraudulent representations of the agent of the plaintiffs. It is insisted that Bennett was grossly negligent, in failing to have the contract read to him by his daughter, who was present, or by some one else before signing it, and that because of this he cannot ask relief from the fraud of the plaintiffs nor contest the binding force of the contract. In a similar case it was recently decided that, “where inquiry as to the contents of a written contract is lulled by fraud and deceit, and one party is induced to sign the contract by the false representations of the other that it contains the provisions agreed upon, when in fact it does not, the party who procures the signature by fraud will not be entitled to enforce such contract, although the one who signed it did so without reading it or having it read to him.” (Shook v. Manufacturing Co., ante, p. 301, syllabus. See, also, Deming v. Wallace, 78 Kan. 291, 85 Pac. 139.)
The remaining material questions are determined by the cited case, and following that decision the judgment in this case is affirmed. | [
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Per Curiam:
D. E. Coulson sold to the Fredonia Gas Company an outfit of machinery and tools called •a “drilling rig.” Before full payment had been made persons acting under the authority of Coulson removed a number of articles which he claimed were not included in the sale. The company denied this claim and refused to complete the payment unless these articles were returned. They were returned and payment was completed. Coulson then brought an action of replevin for the property in controversy. The company answered alleging, first, that the property was included in the purchase, and, second, that Coul-son had estopped himself to deny this by restoring it in order to get his pay. On the trial the jury returned a verdict for plaintiff, on which the court rendered judgment. The defendant prosecutes error.
The only contention on which a reversal is asked is that under the admitted facts the circumstances attending the return of the property to the company were such as to preclude a recovery by the plaintiff. The instructions, however, fully protected the defendant in this regard. There was some testimony warranting an inference that in restoring the property the plaintiff’s representative in effect reserved the right to raise the-question later as to whether it was covered by the contract.
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The opinion of the court was delivered by
Greene, J.:
This was an action against D. B. Johnson and William Lackman .on a promissory note payable to the plaintiff and signed as follows: “The Kansas City & Olathe Electric Ry. Co., Wm. Lackman, President, D. B. Johnson, Secretary.” . A verdict was returned for defendants, upon which the court rendered judgment. The plaintiff prosecutes error.
’ Some questions are argued by both parties which may be eliminated at once. The answer was not a denial of the execution,of the note; there was no evidence of any mistake having been made in the execution of the note;' and neither question was submitted to the jury by the instructions. The actual defense, and the one which was tried and submitted to the jury, was, Did the defendants when executing the note intend to bind themselves or did they intend to bind the. corporation?
It has been held in this state that where it is uncertain from the face of the note whether it was intended. to be the note of the corporation or of the individuals signing, or both, if the litigation arises between the original parties evidence may be introduced to explain the ambiguity. (Kline v. Bank of Tescott, 50 Kan. 91, 31 Pac. 688, 18 L. R. A. 533, 34 Am. St. Rep. 107; Benham v. Smith, 53 Kan. 495, 36 Pac. 997.) Upon the question whether a note signed as above is the obligation of the corporation or of the individual signers the cases are so conflicting that it would be useless to attempt to reconcile them.
Plaintiff assigns error in the refusal Of the court to instruct the jury that before the defendants could show that the note was signed by them as the obligation of the corporation only they must prove that it was such a corporation as was authorized to execute promissory notes and that the directors had authorized them to execute the note in question for it, and it cites Gardner v. Cooper, 9 Kan. App. 587, 58 Pac. 230, 60 Pac. 540, as authority. That action was on an indemnity bond to which the bank was not a party. It was signed “H. H. Gardner, Cashier.” In an action thereon Gardner attempted to prove that the bond was that of the bank of which he was cashier at the time. The court of appeals held that before Gardner could disprove his prima facie personal liability he must show that it was signed for and on behalf of the bank, that the bank had authority to sign such an instrument,’ and that it had authorized him to sign the bond for it. Banks generally have no authority to sign such instruments, and prima facie a cashier has no authority by reason of his position to sign such bonds for the bank of which he is cashier, but the rule is different with railroad corporations. Such corporations may bind themselves by bonds and notes, and they can only execute them by the president and secretary.
The court instructed the jury generally that if they found from the evidence that it was not the intention of the defendants to execute their personal note to- the plaintiff but only to execute the note of the corporation the plaintiff could not recover. Error is predicated on this instruction, for the reason that it limits the inquiry to the intentions of Lackman and Johnson, without reference to the intention or understanding of the plaintiff at the time the note was accepted. It appears from the evidence that when the note was executed the plaintiff had no representative present and no explanation was made when the note was delivered. It was accepted without any express understanding between the parties as to whether it was the note of Lackman and Johnson or the corporation or whether it was their joint note. So the inquiry was necessarily limited to the intention of Lackman and Johnson when signing the note. Since it is not claimed that there was any representation ■ by Laekman and Johnson which induced the plaintiff to accept the note, and since it drew its conclusion and understanding from the note alone, what it understood from reading the note could not deprive Laekman and Johnson of their defepse or broaden the inquiry to include the intention or understanding of the plaintiff.
It is contended that there was error in permitting the defendants to testify to the conversation had between them and the attorney for the corporation when the note was signed as to the manner of signing it for the corporation. The ruling was not prejudicial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The question involved is whether appellant was entitled to a trial by a jury of his plea in abatement, which alleged that he was a minor under the age of sixteen years and therefore only liable to be tried for a criminal offense by the juvenile court.
The original complaint was filed in the city court of Wichita, and charged appellant and two others with the crime of assault and robbery upon the person of one William Sutton. The preliminary examination was waived and defendants held to the district court. After the information was filed, and before any proceedings were had, Pet Dunn filed a plea in abatement, alleging that at the time of the preliminary examination he was only fifteen years of age and that by reason of being a minor under the age of sixteen years the district court had no jurisdiction to try him. A demurrer to the plea having been overruled, the state filed an answer, denying the facts. When the plea came on for hearing appellant demanded a jury trial, stating that he had several witnesses present whom he desired examined. The demand for a jury trial was refused, and over appellant’s objection the court tried the issue raised by the plea in abatement without a jury, upon affidavits, and found against appellant. After arraignment and plea of not guilty the trial proceeded, and appellant was convicted and sentenced to the state penitentiary for a period of not less than ten years nor more than twenty years. He seeks by this appeal to reverse the judgment of conviction.
The juvenile court was established by chapter 190 of the Laws of 1905. The act makes the probate judge in each county the judge of the juvenile court for such county, and that court is given exclusive jurisdiction of all cases where children under sixteen years of age are charged with criminal offenses. The purpose of the act creating the court is to provide for the care, custody and discipline of neglected and dependent children, and to prevent any child under the age of sixteen years from being sent to the state reformatory or to the state penitentiary. In the case of a delinquent child under the age of sixteen years charged with the violation of any criminal law or city ordinance it is provided that the punishment shall rest in the discretion of the judge of the' juvenile court, who is given the power to suspend or remit any sentence imposed. It is expressly provided in section 15 of the act that in no case shall any proceedings, order or judgment of the juvenile court in cases coming within the purview of the act be deemed or held to import a criminal act upon the part of the child. This provision emphasizes the fact that the great underlying motive for establishing the court was to provide for the discipline of wayward children in such a manner that those subjected thereto should thereafter be relieved so far as possible from alTtaint of crime; and to prevent children who have become neglected and dependent for lack of parental care, and who have violated the criminal laws, from being thrown into association with hardened criminals and thus becoming members of the criminal class. Section 2 provides that “the words ‘delinquent child’ shall include any child under the age of sixteen years who violates any law of this state or any city, town or village ordinance.” Section 11 provides as follows:
“When a child under the age of sixteen years is arrested, with or without a warrant, such child shall, instead of being taken before a justice of the peace or police magistrate or judge or any other court now or hereafter having jurisdiction of the offense charged, be taken before such juvenile court; or if the child shall have been taken before a justice of the peace or police magistrate or judge of such court, it shall be the duty of such justice of the peace or police magistrate or judge of such court to transfer the case to such juvenile court, and of the officer having the child in charge to take such child before said court.” (Laws 1905, ch. 190, § 11.)
The judge of the juvenile court may in his discretion place any delinquent child brought before him in some institution for the care of children or in the custody of some suitable person, or find a permanent home for such child where it shall at all times be subject to the friendly supervision of the probation officer or the further order of the court. An appeal to the district court from the final order of commitment by the juvenile court is allowed to any child, but it is expressly provided that upon the final hearing of the appeal the case shall be heard and disposed of in the spirit of the act and in the exercise of all the powers and discretion given to the juvenile court. The spirit of the act accords with the advanced ideas which everywhere prevail of the relations which the state bears to those unfortunate children who have suffered neglect and have been denied the advantages of proper parental care. Its wise and beneficent provisions demand a liberal construction, and the act itself, in express words, imposes upon all courts the duty of so construing it.
The legislature has thus provided that no court or judge or magistrate except the judge of the juvenile court shall have jurisdiction over any child under the age of sixteen years who may be charged with a criminal offense, and that no such child shall be punished by being sentenced to the state reformatory or state penitentiary.
The plea in abatement alleged matters which, if found to be true, deprived the district court of all jurisdiction except to transfer the action to the juvenile court. It set up facts which could not be determined by an inspection of the record, and which, having been traversed by the answer of the state, should have been tried in the same manner that other facts are tried and determined in the court where the issue was raised.
There are cases holding that in a criminal action a plea in abatement which raises an issue of fact must always be submitted to a jury. Most of these cases proceed apparently upon the theory that to deny a jury trial of such a plea deprives defendant of a constitutional right. (Day’s Case v. The Commonwealth, 2 Grat. [Va.] 563; State v. Malta, 79 Me. 540, 11 Atl. 602; Cooper v. The State, 21 Ark. 228; Bohanan v. The State, 15 Neb. 209, 18 N. W. 129; State v. God dard, 162 Mo. 198, 62 S. W. 697; Bean et al. v. The State, 126 Ala. 1, 28 South. 578. See, also, Wharton, Crim. Pl. & Pr., 8th ed., § 425; 12 Cyc. 360, and cases cited.) In some cases the point turns upon a statutory provision for the submission to a jury of issues of fact joined upon an indictment or information. (Jackson v. The State, 91 Wis. 253, 64 N. W. 838; Baker v. The State, 80 Wis. 416, 50 N. W. 518.) Aside from any constitutional question, however, and in the absence of express statutory procedure for the trial of pleas in abatement in criminal actions, we are satisfied that appellant was entitled to have the issue of fact raised by this plea in abatement tried and determined as other questions of fact are tried and determined in the district court, and that it was error to refuse to submit the issue to a jury.
The cause is reversed and remanded. | [
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The opinion of the court was delivered by
Smith, J.:
This suit was brought on the relation of the county attorney to have a certain house adjudged a common nuisance and to enjoin the defendants from keeping and maintaining the same as such.
The petition alleged that the place was a common nuisance, (l) in that it was kept as a resort where many persons, male and female, were allowed and encouraged to meet, and did meet and assemble, for the purpose of prostitution and illicit sexual intercourse, and that the building on the premises was a brothel and bawdyhouse; (2) the petition also alleged that the place was kept as a resort where many persons, male and female, were permitted-and encouraged to assemble, and did assemble, for the unlawful purpose of drinking intoxicating liquors as a beverage.
A demurrer was interposed by the defendants, and was sustained as to the first cause of action and overruled as to the second. The county attorney elected to stand upon his petition, and brings the case here for review as to that portion- of the ruling adverse to the state.-
The defendants move to dismiss the appeal for the want of jurisdiction in this court to entertain the same. The, statute now in force, section 5019 of the General Statutes of 1901, was- enacted in 1901, and as respects jurisdiction on appeal is, so far as the question here involved is concerned, substantially the same as chapter 245 of the Laws of 1889. This court, in the case of McPherson v. The State, ex rel., 56 Kan. 139, 42 Pac. 374, construed the limitation in the act of 1889 as not taking away the right to appeal to the. supreme court from a “judgment in an action of divorce, ... or other action involving personal rights or status, where no amount of money, or thing susceptible of a money valuation, was in controversy. Appeals were cut off only where there was nothing in controversy but money or property, or rights susceptible of a valuation in money.” (Syllabus.)
Since there is nothing to indicate the contrary, the act of 1901 must be presumed to have been adopted with this interpretation in view and to have been a legislative approval of it.
The case at bar, being a suit for the injunction of a common nuisance, and involving no money nor anything to which a money valuation could apply, is not within the limitation. The appeal lies, and the motion to dismiss is denied.
The only remaining question is whether a bawdy-house is a. common nuisance. If so, the court has erred; if not, its decision must be sustained.
Section 4700 of the General Statutes of 1901 authorizes an injunction against a'common nuisance in a suit brought by the county attorney in the name of the state. Public nuisance and common nuisance are entirely synonymous terms. At common law a bawdyhouse, in the common sense of the term, is a species of disorderly house and is indictable as a nuisance. (Henson v. State, 62 Md. 231, 232, 50 Am. Rep. 204.) The keeping of a bawdyhouse is a misdemeanor in this state. (Gen. Stat. 1901, § 2243.) It does not follow, however, as is contended, that because the keeping of such a house may be punished as a crime there is an adequate remedy at law, and that injunction will not lie to suppress such house as a nuisance. Whatever text-writers may say or the courts of other states may decide, it is within the province of our legislature to determine the policy of the state and make such police regulations, not infringing upon constitutional limitations, as may to it seem wise. By the laws of this state the maintaining of a bawdyhouse is, as we have said, made a misdemeanor; and, if it be a common nuisance, provision is also made for suppressing the continuing crime by injunction. These provisions violate no constitutional limitation upon the powers of the lawmaking body, and are valid.
Our statute does not define the meaning of “common nuisance,” and hence these words, having acquired “a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.” (Gen. Stat. 1901, § 7342.)
“A public or common nuisance is such an inconvenience or troublesome offense as annoys the whole community in general and not merely some particular person. It produces no special injury to one more than another of the people.” (2 Bouv. Law Die. 524.)
“A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. The test as to whether a nuisance is a public nuisance or not is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.” (6 Words & Phrases Jud. Def. 5804.)
As to this cause of action the petition is not lacking in a revolting detail of facts, which the demurrer admits to be true, to establish, as a proposition of law, that the building as maintained and conducted was a common nuisance. It is, therefore, unnecessary here to determine whether the bare allegation that a house is maintained as a bawdyhouse and brothel is sufficient to sustain a charge that it is a common nuisance.
The demurrer to this cause of action set forth in the petition should have been overruled. The order sustaining the demurrer is reversed and the case is remanded, with instructions to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover the value of corn sold by tenants of Martha E. Swan to G. J. Maelzer, upon which she had a landlord’s lien. One of the tenants sold Maelzer corn of the value of $343.70, and the other sold him corn of the value of $253.57. These sales were made when the rent on the leased premises had not been paid. The court found that when Maelzer purchased and paid for the com he knew it came from rented premises; that the persons selling the corn were tenants on the Swan farms; and that the purchaser had notice that the landowner had a lien on the corn in the sum of $597.27, for which judgment was given.
The first complaint here is that copies of the leases authorizing the tenants to use the land were not set out in plaintiff’s petition. If the action against Maelzer had been founded on the leases it would have been necessary to set out copies of them. (Code, §,118; Gen. Stat. 1901, § 4552.) It was not founded on these contracts, however, but was based on the lien given by statute against a purchaser of a crop who has notice of the existence of the. lien. (Gen. Stat. 1901, § 3870.) It was therefore unnecessary to attach copies of these leases to, plaintiff’s petition. Enough was pleaded fully to inform the defendant as to the relations of the parties and the basis of the claims upon ■which action was brought.
By a demurrer to the evidence offered by plaintiff the defendant attempted to raise the question whether Martha E. Swan was the owner of-the rented land and therefore had the right to maintain the action. If there were any grounds for the objection that the proper party had not brought the action or that she had no capacity to sue it should have been made either by a demurrer to plaintiff’s petition or by defendant’s answer, and not having been done in that way it is deemed to have been waived. (Code, § 91; Gen. Stat., 1901, § 4525; Coulson v. Wing, 42 Kan. 507, 22 Pac. 570, 16 Am. St. Rep. 503.)
' It is still open for defendant to contend that the evidence fails to establish a right of recovery in the plaintiff, and this contention appears to be based on the grounds, first, that Martha E. Swan was not shown to be the owner of the rented land, and, second, that notice of the existence of the lien was not brought to Maelzer. The record discloses that the land had been conveyed to William D. Swan, as trustee, more than twenty years ago. Proof was offered that he was trustee for Martha E. Swan; that she had a life-estate in the land; and that she had been in possession of it since 1883, leasing it and collecting rent for its use. Witnesses testified without interruption or objection that the rented land was owned by Martha E. Swan. In this state of the case the exact relations between Martha E. Swan and the trustee and the purpose of placing the legal title to the land in William D. Swan, as trustee, are not material nor fairly open to inquiry in this proceeding.
The second claim is that Maelzer was not shown to have had notice of the lien on the corn. The statute gives the landlord a lien for unpaid rent on all crops grown or made on rented farms. This lien may be enforced against the crop while it is in the hands of the tenant, and also when it passes into the hands of a purchaser who has notice of the lien. (Gen. Stat. 1901, §§ 3868, 3870.) Maelzer denied all knowledge of the existence of a lien, and it was not shown that he had actual notice that the corn was subject to a lien, but according to the testimony facts and circuim stances were brought to his attention which should have put him upon inquiry and which charge him with notice of the lien. In Stadel v. Aikins, 65 Kan. 82, 68 Pac. 1088, it was held:
“The notice to the purchaser may be constructive as well as actual, and a knowledge of the facts which should put a purchaser upon inquiry as to the tenancy, the landlord’s lien and the non-payment of the rent is notice of whatever the inquiry would have disclosed.” (Syllabus. See, also, Neifert v. Ames, 26 Kan. 515; Scully v. Porter, 57 Kan. 322, 46 Pac. 313.)
Although the testimony as to the notice of the lien was not strong, Maelzer appears to have known suffi cient facts and circumstances in relation to the matter to put a prudent man on inquiry and require him to exhaust all reasonable and available sources of information in order to ascertain whether the corn purchased was subject to a lien. An inquiry would have led to the discovery that Martha E. Swan had a lien on the corn purchased. Among other things, it appears that for twenty years Maelzer lived within four miles of the Swan land, and his farm extended to within two and one-half miles of that land. In making weekly trips to town he passed the Swan land, and he had some acquaintance with the tenants who sold him the corn. He knew that one of them was a renter and saw the other at work on the Swan- land, and, besides, was quite familiar with the neighborhood and with the conditions of the people who lived there. One of the parties who sold the corn told Maelzer where he lived' and that it was on rented land. Notwithstanding this information the defendant bought the corn without inquiring whether the rent for the place had been paid. In view of these and other circumstances it cannot be said that the finding of the court is not supported by the testimony.
The judgment of the district court is affirmed. | [
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Per Curiam:
When the record containing the mandate of this court reversing the judgment of the district court a second time for want of sufficient facts was brought to its attention by a motion for judgment a judicial question was presented which the court had jurisdiction to decide. It had the same jurisdiction to allow that it had to deny the motion. Even if it decided wrong, that fact did not oust it of jurisdiction. (See Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001.)
Proceedings in error to review the judgment rendered not having been commenced in time, this court cannot interfere.
The only other meritorious question is that the Weishaars should have the benefit of the subrogation stipulation signed by the Haenkys. It might perhaps require some finesse to bring the omission under the exceptions taken to the referee’s report, but it does not appear to be indispensably necessary that this should be done. The stipulation removed the subject covered by it from further controversy. The matter was no longer one for which the Weishaars were required to contend, and the failure to frame the judgment on the basis of the stipulation may be regarded as a matter of oversight, rather than of error, to be corrected, as a matter of course. If it were an ordinary case of failure to request a finding upon a pertinent litigated fact the court would adhere to its rule.
The case is remanded that the judgment may be corrected according to stipulation, and as corrected the judgment of the district court is affirmed. | [
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Per Curiam:
I. L. Kent, as administrator of the estate of Elizabeth C. Grimshaw, deceased, brought this action against Howard L. Grimshaw and wife to recover the sum of $1950, an alleged asset in their possession belonging to the estate. The answer denied any indebtedness due the estate, and alleged in substance that Howard L. Grimshaw is the son of Elizabeth C. Grimshaw; that Olive A. Grimshaw is his wife; that they reside in Winslow, Ariz.; that on the 4th day of May, 1901, Elizabeth C. Grimshaw was at their home in that place, and on'that day offered to give to defendants the sum of $1900, they agreeing to pay her an annuity of $240 in monthly payments so long as she lived.
The contract referred to in the answer was in writing and appears in full in the opinion in Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92, where the judgment was reversed for errors in the rejection of testimony. The former opinion states the facts necessary to an understanding of the controversy.
The reply denied that Mrs. Grimshaw ever executed the contract, and alleged that for several years prior to her death she was feeble-minded and incapable of transacting business, and that if she executed the writing the defendants fraudulently procured its execution, and fraudulently induced her to turn over her money to them.
At the second trial the jury again found for plaintiff, and made a number of special findings. It is sought by defendants to reverse the judgment.
The trial court admitted in evidence a number of letters written by deceased to her children and her sister, and also a writing in the form of an .unattested will found among her papers and dated less than two years before her death. Error is claimed in the admission of this evidence. It was offered to prove the allegations of the reply in respect to the mental condition of deceased, and was proper evidence, unless,, as is claimed, the allegations of the reply constituted' a departure from the facts relied upon in the petition. The reply was .not attacked by demurrer or motion, and the pleadings are the same as when the case was. first tried. It is too late to raise the question of departure at this time.
Most of the brief of defendants is taken up with a discussion of the conflicting evidence as to the mental capacity of deceased. There was evidence to sustain the finding of the jury that she was mentally incapable of entering into the contract, and also to support the general verdict. Its weight we are not called upon to determine. We find no error in the record.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action against a city for money. Defendant’s motion to-quash the service of summons upon it was sustained. Plaintiff has appealed.
The praecipe requested the clerk to issue a summons for defendant, city of Mulberry, a municipal corporation, for service upon Leonard Dugan, mayor. The summons was served by the deputy sheriff, leaving it with the mayor’s wife, at his residence during his absence from home. The city appeared specially and moved to quash the service. On the hearing of this motion the affidavit of the mayor that on the evening in question he attended a club meeting in the city, made no attempt to conceal himeslf and that the summons in the action was not handed to him and the first time he saw it was when he returned from the club. There was an affidavit by the city clerk to the same effect. The motion to quash the service was sustained. Hence this appeal.
Defendant relies on G. S. 1935, 60-2517, which provides, as follows:
“All and every process and notice whatever, affecting any city, shall be served upon the mayor, or, in his absence, upon the clerk of such city.”
The city argues that the correct meaning to be given this language is that the service spoken of is service upon the mayor personally. In other words, there cannot be what is termed “residence service” upon a mayor or city clerk when a city is the defendant.
Plaintiff relies first upon G. S. 1935, 60-2507, which provides, as follows:
“The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.”
Plaintiff cites opinions where we have held that residence service upon an individual was personal service under the terms of the quoted statute. Those opinions are not in point here, however, because no individual was a defendant here. A city has no place of residence.
Plaintiff next points out G. S. 1935, 60-2521. That section provides, as follows:
“In all cases where service of any process cannot be had upon the person designated by such company or corporation personally, service may be made by leaving a copy of such process at the usual place of residence of such person.”
That would seem to provide for residence service upon agents in some cases. It was section 73 of chapter 182 of the Laws.of 1909. This section must be considered in connection with the two preceding sections of chapter 182. Section 71, now G. S. 1935, 60-2519, provides for the appointment by certain public utility companies of an agent upon whom service could be made in each county. Section 72, now G. S. 1935, 60-2520, provides for service upon certain named employees when no service agent had been named in the county. Clearly G. S. 1935, 60-2521, provides for residence service upon agents for companies and corporations of the type named in G. S. 1935, 60-2519.
A city is not such a company or corporation. The trouble about applying the provisions of the foregoing sections here is the section already quoted relating to service upon cities.
G. S. 1935, 60-2517, provides:
“All and every process and notice whatever, affecting any city, shall be served upon the mayor, or, in his absence, upon the clerk of such city.”
G. S. 1935, 60-2519, 60-2520 and 60-2521 were all sections of chapter 182 of the Laws of 1909. The first section of this chapter provided that it should be known as the code of civil procedure. It pretty thoroughly covered the field. It did-not, however, provide for service of summons where the defendant was a city. This subject was given legislative consideration in section 12 of chapter 60 of the Laws of 1871. That chapter related to cities of the third class and was a revision of chapter 26 of the Laws of 1869. Chapter 26 had not dealt with service of summons upon cities. Section 12 of chapter 60 of the Laws of 1871 provided, as follows:
“The corporate name of each city governed by this act shall be, ‘The City of ..............................................,’ and all and every process and notice whatever affecting any such city shall be served upon the mayor, and in his absence upon the president of the council, and in the absence of both upon the city clerk; and in the absence of these officers from the city, then by leaving a certified copy at the office of said clerk.”
The conclusion seems inescapable that the service contemplated by this section upon the mayor or president of the council was personal service upon that officer by handing him a copy of the summons.
In chapter 37 of the Laws of 1881 we find the legislature dealing with the question of a service upon a city of the first class. Section 6 of that chapter provided as follows:
“All and every process whatever affecting any such city shall be served upon the mayor, or, in his absence, upon the president of the council, or, in the absence of both from the city, then upon the city clerk.”
This same section was reenacted as section 6 of chapter 122 of the Laws of 1903.
Chapter 114 of the Laws of 1907 dealt also with the first-class cities. Section 5 of that chapter provided as follows:
“All and any process whatever affecting any such city shall be served upon the mayor, or, in his absence from the city, then upon the city clerk.”
During all these years section 12 of the Laws of 1871 had been in effect as far as third-class cities were concerned. Furthermore all the sections to which reference has been made were in chapters that had to do with cities either first class or third class.
The Revised Statutes for 1923 were a general revision of all our statutory law. R. S. 1923, 60-2517, provides, as follows:
“All and every process and notice whatever, affecting any city, shall be served upon the mayor, or, in his absence, upon the clérk of such city.”
That section was carried in the Revised Statutes for 1923 in the chapter providing for a code of civil procedure.
It will be noted that by dropping the word “such” the section was made to apply to cities of all classes and the qualifying words “from the city” were dropped after the word “absence” as it appeared in all preceding sections since 1871. The conclusion is inescapable, however, that the service intended was personal service by handing a copy of the summons to the officer named. Had the intention been to provide for residence service on the mayor then there would have been no reason for the provision for alternative service. The section would simply have provided for service upon the mayor or by leaving a copy of the summons at his residence or at the residence of the city clerk, as the case might be. ■
The well-established rule is that where a statute provides a particular method of service, the statute must be followed. (See 14A C. J. 802, 804; also 44 C. J. 1476.) An analogous situation was considered in Patterson v. Montgomery County Comm’rs, 145 Kan. 559, 66 P. 2d 400. That was an action to enjoin the levy of a tax in a school district to pay a judgment. The judgment had been taken in justice court against the school district after service of summons upon “Johnson, Treas.” There was no showing that the director of the school district was absent. We pointed out that service was had pursuant to G. S. 1935, 61-205, which provides, as follows:
“A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, secretary, treasurer, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.”
And that G. S. 1935, 72-1004, provides that the director shall be the presiding officer at all district meetings and further provides, in part:
“He shall appear for and in behalf of the district in all suits brought by or against the district. . . .”
In considering a judgment based on such service we examined the authorities generally and held:
“In a suit against a school district before a justice of the peace, where it appeared that service of sumomns as shown by the return of the constable was upon ‘Johnson, Treas./ and where the return of the constable failed to show that the director of the school district was not in the county, held, such service was insufficient, and the justice court was without jurisdiction to render judgment against the school district.” (Syl. HI.)
That and other authorities cited therein are decisive of this question.
We have concluded that the trial court did not err in sustaining the motion of the defendant city to quash the service.
The judgment of the district court is affirmed.
Thiele, J., concurs in the result. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order sustaining a demurrer to plaintiff’s amended petition.
The facts necessary for our consideration as disclosed by the pleadings are as follows:
Plaintiff’s amended petition, filed April 14, 1948, alleged that on or about the 21st of January, 1944, plaintiff and defendant entered into an agreement in writing whereby plaintiff sold to defendant certain stacks of alfalfa hay at a certain price; that defendant made a down payment of $25 on said date but that on or about February 11, 1944, defendant informed plaintiff he was not going to accept said hay or to pay for the same as agreed. The petition then alleged steps taken by plaintiff in the sale o'f the hay to other parties for a sum less than that agreed to by the defendant and set out certain credits to which the defendant was entitled. The prayer was for judgment in the amount of $446.20, with interest at six percent from January 21, 1944, and for costs.
To this amended petition defendant filed a demurrer on the ground that it failed to state facts sufficient to constitute a cause of action.
The lower court sustained the demurrer on the ground that the amended petition did not state facts sufficient to constitute a cause of action for the reason that the instrument in writing upon which plaintiff predicated his cause of action did not constitute a contract in writing and was therefore barred by the three-year statute of limitation. From this ruling the plaintiff has appealed.
A copy of the writing upon which plaintiff brought suit was attached to the petition and is as follows:
“Emmett, Kansas
. “January 21, 1944
“Bought of Lloyd Fairbanks 4 stacks alfalfa, 2 first 2 second cuttings about 35 tons at $19.50 per ton in stack — 2 stacks brown alfalfa about 15 tons at $13.00 per ton in stack. $25.00 check as down payment.
“C. H. Koelling
“707 West 17
“2-8145 '
“Topeka”
Both parties to this appeal concede that the only question involved is whether the instrument in writing above set out constitutes a written contract so as to come within the five-year period of limitation or whehter it is an oral agreement upon which recovery would be barred by the three-year period of limitation.
As heretofore stated the writing is dated January 21, 1944. Plaintiff’s amended petition alleges breach by the defendant on February 11, 1944. Suit was filed in January, 1948, and the amended petition to which the demurrer was sustained was filed April 14,1948.
The applicable provisions of our code (G. S. 1935, 60-306) are as follows:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwords:
“First. Within five years: An action upon any agreement, contract or promise in writing.
“Second. Within three years: An action upon contract, not in writing, express or implied; . . .”
In other words, if the writing in question is construed as being an “agreement, contract or promise in writing” it would be entitled to the protection of the five-year statute and the demurrer was thus improperly sustained. On the other hand, if such writing is not an “agreement, contract or promise in writing” then the three-year statute of limitation would apply and the demurrer was properly sustained.
The action was filed approximately four years after the alleged breach by the defendant and so the question squarely presented for our determination is whether or not the instrument sued on is an “agreement, contract or promise in writing” within the meaning of the first provision of the statute above quoted.
Appellant contends that an action is founded upon any “agreement, contract or promise in writing” when such writing contains either an express promise to pay or language from which such promise arises by fair implication; that formal phraseology is not required and that it is sufficient if the words contained in such writing import a promise or an agreement or if one can be inferred from the terms employed (citing annotation in 111 A. L. R. 984), and he argues that the writing in question certainly imports and infers a promise on the part of defendant (appellee) to pay to plaintiff (appellant) a sum of money for alfalfa bought. We are also cited to the case of Fey v. Loose-Wiles Biscuit Co., 147 Kan. 31, 75 P. 2d 810, in which it was held that a letter written by the company to the manager of its branch increasing the salary of an employee constituted a written contract between the company and the employee when the employee accepted the terms of such letter.
Appellee on the other hand argues that the writing in question is not to be construed as an “agreement, contract or promise in writing” so as to be entitled to the protection of the five-year statute for the reason that it does not contain a definite promise to pay; that the most that can be said for it is it consitutes merely a memorandum of a previously-executed oral agreement to recover upon which the action must have been commenced within three years and that in order for this writing to constitute the kind of a contract sufficient to have the protection of the statute it would be necessary for this court to read into the contract a promise to pay.
Counsel have not cited and our search has failed to disclose a case squarely in point, the reason, of course, being that no two written instruments upon which the precise question in issue could arise are alike. However, in going into the matter it is well to cite some of the authorities covering the general proposition.
In 34 Am. Jur., Limitation of Actions, 71, § 80, it is stated:
. . As otherwise expressed, to come within such a statute it must appear that the money sued for is promised to be paid by the language of the writing sued upon; if the promise arises only upon proof of extrinsic facts, or, as sometimes expressed, upon evidence aliunde, the writing is not within the purview of the statute.”
In 53 C. J. S., Limitation of Actions, § 60, we find the following general rule laid down:
“The statutory description of an action as ‘founded on an instrument in writing’ or equivalent phrase refers to contracts, obligations, or liabilities growing, not remotely or ultimately, but immediately, out of written instruments; and the written instrument relied on must itself contain a contract to do the thing for the nonperformance of which the action is brought. A ‘written contract’ is generally defined as one which in all its terms is in writing, and there must be a writing evidencing an acknowledgment of indebtedness or promising to pay in such terms as to render any supplemental evidence unnecessary, [p. 1017.]
“. . . However, the fact that plaintiff’s right to recover may be evidenced in part by written instruments does not necessarily mean that his cause of action is on an ‘instrument in writing’ so as to be governed by the limitation on actions based on instruments in writing.” (p. 1018.)
And at section 68 (same volume and subject), it is stated:
“For the purpose of distinguishing between oral and written contracts, as those terms are used in the statutes of limitation, a written contract, as defined supra § 60, is one which in all its terms is in writing; and a contract partly in writing and partly oral is in legal effect an oral contract, an action on which is governed, as to the period of limitation, by the statute governing oral contracts generally, although a contract does not rest partly in parol merely because proof of performance is necessary in order to hold the party liable on his promise. . . .
“A mere receipt for money or property is not a contract in writing.” (p. 1030.)
Along the same general line we find the following statements in the annotation at 129 A. L. R. 603:
“. . . The modification of a contract in writing ... by parol agreement of the parties, which goes to a material part thereof, therefore, should operate to reduce it to the status of a contract by parol, in determining the applicability of statutes of limitations; for, when so modified, its entire purport, terms, and construction are rendered subject to establishment by parol proof in the same measure as those of a contract entirely by parol, [p. 605.]
“A majority of the cases upon the point support the rule that an action upon a contract is subject to a limitations statute applicable to oral contracts, rather than to one applicable to written contracts, where evidence extrinsic to a written agreement must be used to show the obligation itself, as distinguished from details of the obligation, that is sought to be enforced.” (p. 613.)
It would seem therefore that the answer to this question lies in the determination of whether the writing sued on is complete in all its terms and contains an acknowledgment of indebtedness and a promise to pay, or whether it is to be considered merely as a memorandum which would require proof of extrinsic facts or, as sometimes expressed, evidence aliunde in order to supply those elements necessary to constitute a contract.
This action was not brought on an oral agreement in proof of which the writing in question would undoubtedly be competent evidence as a memorandum thereof — the petition alleges that the parties entered into an agreement in writing whereby plaintiff sold to the defendant certain alfalfa at a certain price and that writing is the instrument we are now considering. Standing alone, the writing undoubtedly infers that plaintiff and defendant had entered into some sort of deal for the sale of alfalfa. But where in such writing is there any promise on the part of defendant to pay? Suppose plaintiff had refused to go through with his end of the bargain. Could it be said that defendant could successfully sue him for performance, basing his cause of action solely upon the writing in question? We think not. There is a distinction between a writing evidencing a contract or agreement between parties and an “agreement, contract or promise in writing” which is made the sole basis of a cause of action and is entitled to the protection of the five-year statute of limitation. If plaintiff had brought his suit within the three-year period the writing in question undoubtedly would have been competent evidence in support of whatever agreement or deal the parties had entered into for the sale of the alfalfa but we do not believe the writing, standing alone, is legally sufficient to meet the test of such agreements, contracts or promises in writing as are entitled to the benefit of the five-year statute. At most, it is a mere acknowledgment of the fact that a sale has been made and is more in the nature of a pure gratuitous statement by defendant that he had bought certain alfalfa from plaintiff. If it requires evidence of extrinsic facts to prove that defendant promised to pay plaintiff a certain sum of money then it naturally follows that defendant’s contractural obligation to pay arises not out of the written instrument sued on but from a previously-executed oral contract to recover upon which the action must have been commenced within three years.
We therefore hold that the writing in question, standing alone, is not an “agreement, contract or promise in writing” as is entitled to the protection of the five-year statute and the ruling of the lower court on the demurrer was therefore correct and its judgment is affirmed. | [
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Per Curiam:
While the record is not in good form, and contains superfluous matter, it is not invalid.
The tax deed involved has been of record more than five years and is not open to attack for mere irregularities. The claim that the deed is void on its face because the consideration named is excessive is not good. It is largely based on a computation of interest at a rate of fifteen per cent., whereas the sale was made under a statute allowing a charge of twenty-four per cent., and the rate on such sale was not affected by the subsequent statute providing for a lower rate. (Gen. Stat. 1901, § 7698; Watkins v. Inge, 24 Kan. 612; Robertson v. Lombard, 73 Kan. 779, 85 Pac. 528.) To the interest charged under the old law may be added the costs of making the deed, and, this being done, no excess is found in the consideration named in the deed. (Martin v. Garrett, 49 Kan. 131, 30 Pac. 168; Kennedy v. Scott, 72 Kan. 359, 83 Pac. 971.)
The fact that the deed did not state the residence of the grantee was not submitted to the district court, and only such questions as were decided by that court can be reviewed here. In his pleading plaintiff points out specifically the supposed defects in the tax deed, and this was not one of them. There can be no reversal upon a question upon which there was no ruling in the district court. (Robbins v. Brower, 74 Kan. 113, 85 Pac. 815; John v. Young, 74 Kan. 865, 86 Pac. 295.)
Other objections are made to the tax deed, but none of them is substantial.
The judgment is affirmed. | [
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Per Curiam:
John G. Hardenburgh was prosecuted in the district court of Cloud county upon an informa-tion charging embezzlement. A jury was impaneled and the state’s evidence introduced. Then the defendant’s attorney filed what was called a demurrer to the evidence — in effect a motion for a peremptory instruction to acquit. The court refused to direct a verdict, but dismissed the jury and discharged the defendant from custody upon the ground that although the evidence was otherwise sufficient to support the information it did not show that the offense charged had been committed in Cloud county.
The state appeals, and asks a decision of the question whether under the evidence the action was brought in the proper county. No determination of this question can be made' here, for this court has nothing upon which to act. The discharge of the jury under the circumstances was of course equivalent to a verdict of not guilty, and exempted fihe defendant from any further prosecution in the same case or upon the same charge. Therefore no real controversy remains to be decided. Any opinions expressed on the subject would be voluntary and futile. Under the authority of The State v. Lee, 49 Kan. 570, 31 Pac. 147, and the cases there cited, the appeal must be dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in mandamus. An alternative writ was allowed on the filing of the petition, and time was given the defendant to comply with the command or to show cause for not so doing. He elected to show cause, and filed an answer in which he admits the facts as stated in the petition and states other facts which he claims justify his refusal to comply with the demands of the plaintiff. In return the plaintiff filed a motion for a peremptory writ on the ground that the facts stated in the answer did not constitute any defense to the petition. The motion is in effect a demurrer to the answer and admits the facts therein stated.
The plaintiff is the owner by assignment of several certificates of sale of tracts of school-land in Decatur county, and the defendant is the treasurer of that county. Default was made in the payment of interest due on such certificates and of taxes due on such lands, and the plaintiff tendered to the defendant, as such treasurer, payment thereof, but the treasurer refused to accept such payment. Attempts were made by the officers of Decatur county to forfeit all the rights of the plaintiff to the lands, and copies of all such proceedings are attached to the petition.
The defendant, admitting the allegations of fact set forth in the petition, pleads in answer that the lands have all been resold, and proceeds with allegations of fact which may or may not avail the new purchasers in case of litigation between them and the plaintiff.
It is said with much plausibility that if the facts exist which will enable the new purchasers to defeat the claims of the plaintiff, and the plaintiff has no right to the lands, he owes the state nothing, and if his money tendered be accepted it still would not really belong to the state; that in this proceeding, which is largely discretionary, the county treasurer ought not to be compelled to receive and be responsible for any but public moneys, or be required to keep account of and transmit the same to the state treasurer, who is not entitled to it and to whom it would also be a burden.
It might also be said that, having made his tender, it matters little to the plaintiff as affecting his rights whether his money be accepted or rejected.
There is no middle ground, however. Either the treasurer, an executive officer having no judicial power, has the right ex parte to examine and determine the questions of law and fact involved when one who claims a right and tenders his money which he deems necessary to protect that right — either such treasurer has the power to decide that such applicant has a right which he may protect by payment and receive the tender or to decide that the applicant has no legal right to be protected and refuse the tender, or otherwise the treasurer has no power of decision whatever.
It was held by this court twenty-five years ago, in Wilkie v. Howe, Treasurer, 27 Kan. 518, that a county treasurer has no power of decision in such a matter. Speaking of the duty of such a treasurer in that case, which is analogous to the case here in this regard, Mr. Chief Justice Horton said:
“It was not his [the treasurer’s] duty to look after the interests of any other person or claimant. . . . The acceptance of the money and the issuance of a receipt therefor cannot in any manner prejudice the rights of any other person, nor deprive such other person of any interest in the land or of any remedy to which he may be entitled.” (Page 522.)
It was therein held that- the treasurer must accept the money tendered. That decision has been cited and followed in the following cases: Scott v. Schwab, 70 Kan. 306, 78 Pac. 443; Spencer v. Smith, 74 Kan. 142, 85 Pac. 573; Robertson v. Buck, post.
As was said in Robertson v. Buck, supra, the real parties in interest are not appearing adversely to the plaintiff in this case, and any decision here made would not be res judicata as to them. Nor does this decision affect the right or remedy of any claimant to any portion of the lands. That the plaintiff, as an assignee of the original certificates of purchase, is in good faith asserting rights therein is abundantly proved by his tender of money in support of his claim. The plaintiff has a prima facie standing, and it is the duty of the treasurer to receive and receipt for the money; and any defense. offered by him on behalf of other claimants whom he has no right or duty to represent will not be considered as a defense herein.
It follows that we do not consider the construction or effect of the statute of 1907 (Laws 1907, ch. 373) relating to the forfeiture of school-lands as involved in this proceeding.
The peremptory writ of mandamus will issue, as prayed for. | [
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The opinion of the court was delivered by
Greene, J.:
This was a suit to restrain the sheriff of Wyandotte county and James Mathers from executing or causing to be executed an order of ejectment removing James M. Fulton and his tenants from the possession of certain real estate in Kansas City, Kan. A temporary restraining order was allowed, but upon a hearing for a temporary injunction the restraining order was set aside and the temporary injunction was denied. The plaintiff brings this proceeding in error.
Mary' J. Fulton was the owner of the real estate involved. In 1898 she became insane and was committed to the asylum, where she remained until her death, April 3, 1903. While she was thus confined this property was sold for taxes and a tax deed issued therefor to James Mathers. During the time Mary J. Fulton was in the asylum and all of the time since her death James M. Fulton was in the actual possession of the land, except a certain part which he rented to the Kaw Valley Lime, Cement & Coal Company, which was in possession when the ejectment action was commenced. An ejectment action was brought during the life of Mary J. Fulton in the name of James Mathers, the holder of the tax deed, against James M. Fulton and the Kaw Valley Lime, Cement & Coal Company. Mary J. Fulton was not made a party. Summons was served on the other parties, and a judgment entered against them upon their default, and it was upon this judgment that the order was issued which the plaintiff sought to; enjoin.
In addition to the facts stated the petition alleged that since the death of his mother, Mary J. Fulton, James M. Fulton, as her only heir, had succeeded to the full title to the property; that Mather’s tax deed was void; and that the judgment in ejectment was also void, for the reason that the owner of the legal title, Mary J. Fulton, was not made a party, and that no summons had been served upon the plaintiff.
A copy of the summons was served upon Janies M. .Fulton by leaving it at his actual place of residence on the premises, at a time, however, when he was temporarily absent.
Strictly speaking, an action in ejectment is a possessory action; the issue may or may not involve title. In the absence of a statute requiring other parties to be made defendants the only necessary parties are those .in the actual possession of the property. (15 Cyc. 82.) The contention of the plaintiff that the judgment in ejectment upon which the order he is seeking to enjoin was issued is void as to him, because other persons not .in possession but in whom he alleges rested the legal title were not made parties in the ejectment action, cannot be sustained. All persons in possession when the ejectment action was commenced, including the plaintiff, were made defendants and served with process, and judgment was entered against them.
The tax deed upon which the ejectment action was founded was recorded March 4, 1899. The action in ejectment was commenced February 25, 1901, and the .judgment was entered May 14, 1901, but no steps were taken to enforce this judgment until January 80, 1906. ;It is contended that recovering the judgment without taking any steps to enforce it did not suspend the running of the two-year statute of limitations within which a tax-deed holder is required to commence his action for possession. (Gen. Stat. 1901, § 4444.) The-contention is that, conceding that the action was commenced in time and a judgment entered without delay, to save the action from the bar of the statute possession must follow without delay. We think counsel have confused the principle applicable to this character of actions with the rule applicable to actions where the defendant in possession is claiming title by adverse possession. 'In the latter cases it has been held that an unenforced judgment in ejectment will not interrupt the continuous adverse possession and will not suspend the running of the statute of limitations. The statute of limitations invoked by the plaintiff requires the tax-deed holder to commence his action for possession within two years or that right shall be lost to him. Whatever rights the plaintiff may have to the land in controversy as the heir of Mary Fulton, who was not a party to the ejectment action, are still preserved to him, and may be determined in future litigation.
There was no error committed- in the refusal of the temporary injunction, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Henry Blaes and his wife executed an oil-and-gas- lease on a quarter-section of land. Various assignments were made, in virtue of which the Federal Betterment Company succeeded to all rights of the lessee excepting what are called the oil rights on the north half of the land, which passed to and remained in the Illinois Valley Oil and Pipe-line Company. The lessors, claiming that under the terms of the lease they were entitled to consider it abandoned by reason of certain omissions of the assignees, brought a suit for its cancelation against the Federal Betterment Company. Upon a trial without a jury the court rendered judgment against the defendant, from -which it prosecutes error.
The first claim of error is based upon the failure of the plaintiffs to make the Illinois Valley Oil and Pipeline Company a defendant. We do not find, however, that this matter was so présented to the trial court as to preserve any question for review. A demurrer was filed and overruled, one of the grounds' of which was that there was a defect of parties defendant. The de murrer did not indicate what individual or corporation had been left out whose presence was essential to the determination of the suit and to the protection of the defendant’s rights, and therefore it was not error to overrule it. “A demurrer for non-joinder of parties must refer directly to the defect, and must designate the parties improperly omitted.” (15 Encyc. Pl. & Pr. 749. See, also, Jaeger v. Sunde, 70 Minn. 356, 73 N. W. 171.) While this rule does not prevail in all jurisdictions we think it a fair and wholesome one, quite analogous to that declared in Gilmore v. Norton, 10 Kan. 491, and approved in Ambrose v. Parrott, 28 Kan. 693, requiring that a motion to make a pleading more definite shall point out wherein it is uncertain.
The same point was attempted to be raised after the issues were made up by a motion to require the plaintiffs to make the Illinois company á party, but it was joined with a motion for a continuance, and the record merely shows a denial of the latter motion. Moreover, it is not apparent how the defendant suffered any injury from the absence of the other company, and unless such prejudice appears no error is shown. (15 Encyc. Pl. & Pr. 752; Anderson v. Wolf, 41 N. Y. Supr. Ct. 571.) The absence of the Illinois company did not prevent the defendant from making any defense in its own behalf which could have been made had that company been in court. There was no showing that the decree cutting it off from any interest in the land under the lease subjected it to any claim on the part of the Illinois company. Such decree ended the responsibilities of the defendant under the lease and severed its relations with the plaintiffs. If as a result the Illinois company was in any way embarrassed, that was nothing of which the defendant could complain.
The other assignments of error may be embraced in the single contention that the evidence did not support the judgment. No special findings were made, and the action of the trial court must be upheld if it is consistent with any reasonable view of the testimony. The portion of the lease necessary to be considered in order to determine this matter reads as follows:
“In case a well is not completed upon said land within six months from the date hereof lessee will pay to the lessors for the delay the sum of ten dollars each quarter year thereafter, in advance, until said well be completed or this lease shall be surrendered as hereinafter provided., Said payments for delay may be made by depositing the same to the credit of the lessors in the People’s State Bank at Cherryvale, Kan.
“The lessors shall have the right to declare a forfeiture of this lease upon failure of the lessee to pay any quarter yearly sum which -may become payable-as above provided for delay in completing a well.
“If at any time after a well or wells have been drilled six months shall elapse without any revenue being received by the lessors from said well or wells, and without any further drilling being done by the lessee, this lease shall be deemed abandoned and all rights of the lessee thereunder ended, except the right to remove the machinery and other property placed by it upon said land.”
The lease was executed June 30, 1898. The evidence showed that no well was completed within six months, and with the expiration of that time the payment of the stipulated sum of ten dollars a quarter began and was continued up to and including October 1, 1902; that in July, 1902, an attempt was made to drill a well which proceeded -until a depth of about 1000 feet was reached, when the casing was pulled out and the hole was plugged; that no further drilling was done. This suit was begun in June, 1903. The plaintiffs claim that within the terms of the third paragraph of the lease above quoted the evidence already recited establishes: (1) That a well had been drilled; (2) that six months had then elapsed without any revenue being received from it; (3) that no further drilling had been done; and as a consequence (4) that the lease was to be deemed abandoned and all rights of . the lessee or his assignees thereunder ended. Against this contention the defendant argues that the product of the drilling was not properly a well at all; that it was a mere “dry hole”; that it was not a well within the meaning of the word as employed iii the paragraph relied upon by the plaintiffs. The use of the term “well,” however, is not conclusive that a producing well was intended. References are continually made by courts and text-writers to “dry wells” and “non-productive wells.” In Penniman v. Winner, 54 Md. 127, persons who bargained for an “oil-well” contended that inasmuch as what they received did not yield oil in commercial quantities it did not respond to this designation. The court said:
“The thing sold here was an oil-well, and it is admitted the company got an oil-well, but the objection is that it wholly failed to answer the purposes for which it was bought. It did not yield enough to justify working it. This fact, however, does not constitute a failure of consideration." (Page 135.)
In Smith v. South Penn. Oil Co., 59 W. Va. 205, 53 S. E. 152, in discussing the effect of the word “well” employed in a deed, it was said:
“What kind of a well? Some are productive and some are unproductive, and it costs a considerable amount of money to put down either kind. The question is not what, in point of fact or law, constitutes a well, but what is a well within the meaning of the deed.” (Page 208.)
The well or hole involved in the present case was never shot, and there was testimony that the reason for this was that the indications were not such as to justify it. But there was also testimony that there w;as some oil in the well and that other wells in the neighborhood that showed no more favorably at the same stage had produced oil in paying quantities after being shot. The pulling up of the casing was certainly strong evidence that those in charge of the work believed in good faith that its further prosecution was useless; still the trial court may have concluded that they were mistaken or perhaps insincere. Under these circumstances can it be said, as a matter of law, that a well had not been drilled within the spirit of the contract?
Contracts by which the owner of land surrenders a part of his rights with respect to the oil and gas therein, generically called leases, require and are given treatment peculiar to themselves. In Ohio Oil Co. v. Detamore, 165 Ind. 243, 73 N. E. 906, it was said:
“Whether it proceeds from design of crafty speculators in oil-and-gas leases to enshroud their contracts with doubtful, ambiguous, inconsistent and absurd provisions, as a means of promoting their interests, or whether it comes from a custom in the rural districts of employing unskilled draftsmen, it is a notable fact that few subjects of contract contribute to the courts an equal proportion of written agreements for interpretation. The fact is so patent that courts generally, in gas-and-oil states, have come to place such contracts in a class of their own, and to look critically into such instruments for the real intention of the parties, because it so frequently happens that they cannot, on account -of incongruous provisions, be enforced according to the strict letter of the contract.” (Page 248.)
There is a special jurisprudence of the subject, one distinguishing feature of which is that language of doubtful import will be construed more favorably to the lessor, or at least that courts will incline away from a construction that would compel him, on condition of receiving some small periodical payment, to remain inactive while his oil is drained away through wells sunk on neighboring lands. (Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566.) Another similar tendency is, where it is practicable, to avoid an interpretation that would make against the development of the resources of the property involved. (Oil Co. v. Gas Co., 51 W. Va. 583, 42 S. E. 655, 59 L. R. A. 566.)
In the present case the third paragraph quoted from the lease was manifestly framed for the protection of the lessors in the respects suggested. In a general way it defines the degree of'diligence with which the work of development must be prosecuted when once begun. It is true that until a well is actually completed the quarterly payment must continue, but this is an inadequate substitute for any right they may have to insist that exploration shall be pressed with vigor after it has progressed so far as the drilling of a well. If the construction contended for by the defendant is correct it had the right, if by drilling a well it discovered that oil in paying quantities underlay the land, deliberately to refuse to complete it, and by the payment of ten dollars a quarter prevent all further operation on that tract, while the supply of oil was tapped through wells outside its boundaries. Indeed there was some evidence from which it was possible to draw an inference that this very situation was presented. To avoid allowing opportunity for such an unconscionable advantage it is only necessary to give force to the very words of the contract. They provide this: That when a well has been drilled — that is, when enough boring has been done to show the presence of oil — the lessee has but three courses open: (1) To complete it .and see that it produces revenue; or (2) so to prosecute operations that six months shall not elapse without some drilling being done; or (3) to surrender all claims under the lease and suffer the lessors to resume the absolute control of their property. There is nothing harsh about this construction, and we think the trial court was justified in adopting it and in rendering judgment against the defendant accordingly.
But it is urged that although this interpretation might be permissible upon the face of the lease the plaintiffs cannot invoke it, because by accepting the ten dollars paid October 1, 1902, they admitted that the hole bored in the preceding July was not a well, since the quarterly payment was to cease whenever a well was completed. This argument ignores the distinction between completing a well and drilling a well. These phrases cannot be said, as a matter of law, to mean the same thing. There was evidence in this case from which it might be found that a well was drilled but not completed, if these words are to be given their ordinary meaning, and there is nothing in the contract itself or in the undisputed facts that requires any unusual significance to be attached to them.
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The opinion of the court was delivered by
Mason, J.:
Prior to a city election in Muscotah each of two local political organizations, known respectively as the People’s party and . the Citizens’ party, nominated a full ticket. A certificate of nomination was duly filed by the president and secretary of the convention of the People’s party, but no certificate of any kind was filed in behalf of the Citizens’ party. Nevertheless the city clerk caused both tickets to be printed upon the official ballot. A majority of the voters marked their ballots in favor of the candidates on the Citizens’ ticket, and they were declared elected. A candidate on the People’s ticket claiming to have been elected police judge brought a proceeding in the district court to enforce his right to that office. Being denied relief, he prosecutes error. His contention is that inasmuch as the. Citizens’ ticket was printed upon the ballot in direct disobedience of the statute it was .not a means by which a voter could give effective expression of his choice, and that all ballots marked in favor of that ticket should have been rejected. The adoption of' this rule would have resulted in the plaintiff’s election.
It is true that the statute expressly forbids the placing of any names on the ballot excepting such as are brought to the notice of the clerk by proper certificates, in these terms: “All nominations made and certified in accordance with the provisions of this act, and none other, shall be printed on the official ballot.” (Gen. Stat. 1901, §2707; Laws 1903, ch. 228, §2; Laws 1905, ch. 222, § 1.) In the plaintiff’s brief it is assumed that an important if not controlling question is whether this language is mandatory or merely directory. There is no room for doubt upon that subject. The provision is mandatory. It is the imperative duty of the clerk to follow the statute — a duty which the courts upon timely application would unhesitatingly enforce. But the question here presented is, What consequence shall follow his disobedience? Where an elector signifies his choice in the only way permitted by the printed directions must he lose his vote because in doing so he makes use of a ticket which ought not to have been placed upon the ballot?
The adoption of the Australian ballot law has made a great change in the method of ascertaining and giving effect to the popular will. Formerly the rule was to count any ballot from which by any reasonable method of interpretation the purpose of the person casting it could be gathered. Now such purpose, however clearly shown, is disregarded unless expressed in a particular way. Legislative restrictions upon the exercise of the right of suffrage are enforced by the courts without hesitation to the very letter, so long as they relate to matters within the control of the individual voter. But with respect to regulations regarding the conduct of others the effort is still to seek such a construction of the law as will accomplish rather than defeat the expressed wishes of the people. The case of People ex rel. Hirsh v. Wood, 148 N. Y. 142, 42 N. E. 536, arose upon facts very similar to those here presented. It was there said:
“The effort in this proceeding is to disfranchise innocent- voters because of a latent defect in the official ballot furnished by the state, not discernible on inspection, which ballot they were compelled to use, the defect consisting in the unauthorized insertion therein by a public official, charged with the duty of making up and printing the ballots, of names of candidates in a party column not duly nominated by such party. The intention of the voters who used this party column tq express their choice is clear and admits of no doubt. Each one received his ballot from the inspectors, marked it with the cross under the party name and emblem, and returned it to the inspectors, by whom it was deposited in the box and subsequently counted. We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the wilful misconduct of election officers in performing the duty cast upon them. • The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult.” (Page 146.)
After quoting a part of the foregoing extract the court said, in Blackmer v. Hildreth, 181 Mass. 29, 68 N. E. 14:
“This must be borne in mind in the construction of such statutes, and the presumption is that they are enacted to prevent fraud and to secure freedom of choice, and not by technical obstructions to make the right of voting insecure. The provisions above recited with reference to the preparation of the ballot are plainly limited and confined to that purpose. They are binding upon the officers for whose guidance and direction they are needed. If it be seasonably objected to a nomination paper that it was not filed within the time required by § 145, or that the provisions of §§ 141 and 142 have not been complied with, it is the duty of the proper board to inquire into and settle the question, and to sustain the objection, if found to be true, and reject the paper. So far as respects their decision these provisions are mandatory. When the decision is made it is final, and a ballot made up in accordance therewith is not thereby made illegal. And in the same way the action of the town clerk, at least in the absence of fraud and corruption, as to the papers to which no objection is made, must be regarded as final so far as respects the ballot which he prepares.
“But with the preparation of the ballot the influence .of these provisions ends. If there be irregularities like those in this case they do not accompany the ballot and taint it in the hands of the voter. This view of the statute gives due weight and scope to the provisions in question, and preserves 'the sanctity of the right of suffrage and its free and honest exercise. To hold otherwise would be to lose sight of the purpose for which these provisions were made, namely, to provide the method and time for the preparation of the ballot, and would subject our elections to intolerable and perplexing technicalities in no way material to the substantial. merits of the controversy or to the freedom and result of the action of the voters. Its natural tendency would be to thwart rather than to secure a true expression of the popular will.” (Page 31.)
In State v. Fransham, 19 Mont. 273, 48 Pac. 1, it was said:
“There is wisdom in that construction of election laws which holds rigidly to the doctrine that in our country, where the will of the people is supreme, when clearly expressed it cannot be defeated by a claim. that an official neglected to properly make up the ballot published and voted. A party or candidate may be defeated by an official’s wrong, but the electors must be secure in the knowledge that their votes, when legally cast, will be counted. And we cannot hold to the contrary, unless compelled to do so by mandatory provisions of law and construction requiring such votes to be held void not in our constitution or codes. The argument that the ballot was a falsehood, and that no person should profit by it, has considerable force, we admit; but it is not strong enough, under the facts admitted by the demurrer to the complaint herein, to outweigh the more important controlling principle that the electors, who do not make up the ballot, must rely with perfect assurance and safety upon the official ballots given .them, and that their ballots will be counted as marked, and that their legally expressed will cannot be overthrown where they are not at fault, although it should turn out that the public officer who had to do with the preparing of the ballot voted may have neglected his duty.” (Page 290.)
And in Kulp v. Railey (Tex.), 89 S. W. 957:
“The voter has nothing to do with the making up of the ballot, but is required to use it in order to exercise his right to vote. He can only vote for those whose names are printed on it, or strike them out and insert others. The ballot comes to him from the of--ficers of the law, regular on its face, and authenticated, both by the printing on it and by the signature of the judge of election, as the ballot which, he is required to use. If it is in the power of the legislature to thus impose on voters, in exercising their consti-' tutional right, the necessity of voting tickets prepared for them in advance, and yet to defeat their choice, not for any act or omission of their own, but because of an antecedent direliction of the officers appointed by law to prepare the ballots, certainly no purpose to do so can be imputed to the legislature without the clearest expression of it.” (Page 959.)
In the recent case of State v. Bunnell [Wis.], 110 N. W. 177, it was held that even where a candidate had wrongfully changed his nomination papers after they had been signed the voters had a right to rely upon the correctness of the official ballot, and the canvassing board was not required to reject the ballots cast for such candidate. (See, also, Ogg v. Glover, 72 Kan. 247, 256, 83 Pac. 1039, and cases there cited; Attorney General v. Campbell, 191 Mass. 497, 78 N. E. 133; State v. Mason [Wash.], 88 Pac. 126; People ex rel. Williams v. Bd. of Canvassers, 105 N. Y. Supr. Ct., App. Div., 197, 94 N. Y. Supp. 996, affirmed in 183 N. Y. 538, 76 N. E., 1116.)
None of the cases cited from other jurisdictions arose under statutes precisely like ours, but the general rule of construction they all announce is none the less pertinent on that account. The leading case of People ex rel. Hirsh v. Wood, 148 N. Y. 142, 42 N. E. 536, involved an act containing substantially this provision, which was a part of the original Australian ballot law adopted in this state: “No ballot without the official indorsement shall be allowed to be deposited in the ballot-box, and none but ballots provided in accordance with the provision of this act shall be counted.” (Laws 1893, ch. 78, § 25.) The court said that while this language was somewhat obscure, its main purpose was to enforce the use of official ballots, and that the prohibition against counting referred to ballots provided by the public officers, adding:
“It is impossible to suppose that the legislature used the word provided, as synonymous with prepared, so as to visit upon voters a forfeiture of the franchise if an official should make any departure in preparing the ballot from the strict authority conferred upon him.” (Page 148.)
So in State of Iowa v. Bernholtz et al., 106 Iowa, 157, 76 N. W. 662, the court said of the same clause that it evidently related to ballots furnished the voter, adding: “He may not use a ballot of his own choosing, but must cast such as are provided by the proper officials.” (Page 161.)
In the revision of 1901 this portion of our statute was remodeled into its present form, which is as follows:
“No ballots other, than those provided, printed and indorsed in accordance with the provisions of this act shall be delivered to a voter, deposited in the ballot-box, or counted.” (Gen. Stat. 1901, §2718; Laws 1903, ch. 228, § 4; Laws 1905, ch. 222, § 8.)
The object of this change is not entirely clear. We are satisfied, however, that the legislature never intended that no ballot should under any circumstances be counted unless in its preparation every requirement of the statute had been fully met. Such a construction, indeed, would be fatal to the claims of the plaintiff, for it would forbid the counting of any of the ballots cast at the election in question (since none of. them was prepared in accordance with the law), and would require the entire proceeding to .be treated as a nullity. We are equally satisfied that it was not the intention that the election board or other canvassing body should sit in judgment upon the conduct of the clerk in preparing the official ballot, and on account of his mistake or misconduct reject votes cast by persons who are themselves free from fault or wrongdoing. A purpose so foreign to the theory of the law and so abhorrent to a sense of justice should not be attributed to the legislature except in consequence of language so explicit as to admit of no other interpretation. The provision quoted falls far short of being'such an expression.
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The opinion of the court was delivered by
Graves, J.:
Twenty-five assignments of error have been presented. Those not relating to the measure of damages raise questions of fact which have been settled by the verdict and findings of the jury, and cannot be reviewed here.
The defendants insist that in any view of the case the plaintiff could recover nominal damages only. The measure of recovery adopted by the court is stated in instruction 15, which in part reads:
“If you find from the evidence in this case that after the execution of the contract introduced in evidence the plaintiff entered upon the performance of his part of said contract; that he spent money in advertising the merits of said Geuda Springs mineral water; that he expended money in purchasing the necessary equipment so as to carry out the provisions of his part of said contract; that he spent his time and his labor in introducing said mineral water so as to supply the trade of Wichita, and incurred other expenses under the provisions of said contract up and until the time-that said defendants refused to ship said water — had complied with all the terms of said contract, then the-defendants would not have the right to terminate said contract, and if they did so it was a violation of their part of said agreement and thgy would be liable to the-plaintiff in damages for the amount of such expenditures expended in good faith in reliance upon said contract, less profits, if any, you find accrued to him during the time that said contract was being carried out. by said plaintiff. And in this connection you are instructed that the value of plaintiff’s time and labor expended in introducing said mineral water and in carrying out his part of said agreement is to be considered' by you as legitimate element of expense, which is recoverable the same as money actually expended, if you find for the plaintiff as herein instructed. . . . And you are further instructed that if he was unable-to enter a like business or employment at Wichita, Kan., and that he made a reasonable effort to enter-such like business or employment, . . . you may allow him such reasonable compensation for lost time-after the contract was canceled to the time he was able to secure other employment or engaged in business as you may find he is entitled to under the evidence. .. . . You may take into' consideration the loss, if' any, sustained by the plaintiff in being compelled to dispose of personal property which he had purchased for the purpose of carrying on said business and which after said contract had been broken by said defendants, was no longer useful or necessary to the plaintiff.”
We do not think this instruction erroneous; the-measure of damages therein stated is correct as applied to this case. The plaintiff, in order ta carry out the-contract, was compelled to go to the city of Wichita to-live. It was necessary for him to provide proper equipment for carrying on the business, and to incur ex penses in advertising the valuable qualities of the water. These expenses were contemplated by both parties. The plaintiff by the terms of the contract was required to pay all expenses and “to use his best endeavors to push the sales of said mineral waters.” The outcome of the enterprise was unknown, but the plaintiff was willing to take the hazard on his part in consideration of the stipulations in the contract on the part of the defendants.
His time was taken from other enterprises which might have yielded remunerative returns. Money was expended which might have been otherwise invested, all upon the faith and expectation of profits to be realized after a permanent trade had been established. If he had been permitted to prosecute the business during the time stipulated in the contract he alone would have been responsible for the results. But after the plaintiff had made the sacrifice and expenditures necessary to the initiation of this new enterprise the defendants wrongfully cut off all the expectations of growth and development entertained by the plaintiff, and left him without business, with useless equipment on hand, with no compensation for the time and effort expended, and his entire investment a failure.
Under such circumstances it seems but .fair and reasonable that the defendants should reimburse the plaintiff for all the direct losses sustained by him on account of their wrongful acts. We do not think the instruction of the court overstates these losses. No future profits are included; the inquiry is limited to the actual loss sustained. The rule applicable to such cases was thus stated by Mr. Justice Bradley, in United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L, Ed. 168:
“When a party injured by the stoppage of a contract . . . elects to go for damages for the breach of the contract, the first and most obvious damage to be shown is the amount which he has been induced to expend on the faith of the contract, including a fair al lowance for his own time and services.” (Page 345.) “Unless there is some artificial rule of law which has taken the plaee of natural jqstice in relation to the measure of damages, it would seem to be quite clear that the claimant ought at least to be made whole for his losses and expenditures. So far as appears, they were incurred in the fair endeavor to perform the contract which he assumed.” (Page 344.) “If he chooses to go further, and claims for the loss of anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed. It does not lie, however, in the mouth of the party who has voluntarily and wrongfully put an end to the contract to say that the party injured has not been damaged, at least to the amount of what he has been induced' fairly and in good faith to lay out and expend, including his own services.” (Page 345. See, also, 8 A. & E. Encycl. of L. 637; Bulkley v. United States, 86 U. S. 37, 22 L. Ed. 62.)
The general verdict was for $2500; according to the special findings it might properly have been $2889. The court entered judgment in favor of the plaintiff for the.lesser amount. This is claimed to be erroneous, but being favorable to the defendants they are not prejudiced thereby, and have no occasion to complain. There are other errors suggested in argument, but they are principally questions of fact which have been settled by.the verdict and findings of the jury, and cannot be reviewed here.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued the defendant for the price of a tent, and was defeated.
The defendant wrote to the plaintiff stating that it needed a tent about thirty-five by fifty feet in size in which to exhibit vehicles at a fair to begin on September 15, 1902, and to end on September 20, 1902. Selling prices and rental prices for four days’ time were requested. The plaintiff in reply described a tent and quoted prices both for a sale and for rent for one week. After further correspondence relating to the tent offered the defendant telegraphed the plaintiff to ship it as per letters.
On account of an accident shipment was delayed and the tent did not reach the defendant until the fair was about to close. Upon delivery by the carrier the defendant took the tent and paid the freight. The plaintiff sent several statements for the price of the tent, but heard nothing from the defendant until, by a letter of December 4, 1902, the defendant announced that it was ready to. deliver the tent on board the cars at Hutchinson, Kan., when the plaintiff paid'it damages for delay in forwarding the tent and freight from St. Louis to Hutchinson.
When sued for the price of the tent the defendant answered that the tent arrived too late for use at the fair, alleged damages, and expressly stated that the defendant had taken possession of the tent and was holding it to secure- such damages. On the trial the defendant’s testimony was that it received the tent for the sole purpose of holding it until it collected damages for the plaintiff’s failure to deliver in time.
The court refused to instruct the jury that the option to lease was no longer in the case, and so framed its instructions that the jury might defeat the plaintiff by' finding either that the option to lease had been exercised or that the goods had been accepted merely for the purpose of holding them for damages. In this the court committed error.
"When t¡he goods were delivered the defendant was confessedly aware of the extent' and consequences of the delay and was under the legal duty either to accept them and carry out one or the other branch of the contract or to disaffirm the contract and reject them. Disaffirmance after receiving the goods involves the duty either to return them or to hold them subject to the seller’s order. The law of sales recognizes no such self-executing kind of attachment as “holding for damages.” (Shear Co. v. Thompson, 72 Kan. 432, 83 Pac. 988.)
There was no room for equivocation upon the proposition that the defendant did not accept the goods as leased for a week. Defendant’s answer stated that its offer at the beginning was for a tent for the specific purpose of use at the fair; that the' fair week had already substantially passed when the tent arrived; that it could not use the tent at the fair, and that it notified the plaintiff that it held.the tent for damages. Its evidence was that when the tent arrived it was accepted and held, not as leased for a week, but solely for damages. The plaintiff pleaded a sale and not a lease, so. that there was and could be no issue upon the matter. Therefore the court should have taken the optiQn to lease out of the case by a suitable instruction.
On the other hand, the defendant could not admit that it purposely deprived the plaintiff of the goods and at the same time deny liability for the price. It is of the essence of the buyer’s right to disaffirm the contract and reject the goods that dominion over them shall be repudiated. They must be returned or held subject to the seller’s order. The buyer being under the duty either to affirm or disaffirm, can do nothing incompatible with the right to disaffirm and avoid the consequences of an affirmance. The law intends to leave no room for shiftiness at this point in the negotiation of a sale.
The case most frequently presented is the dubious one of mere silence or inaction for a period of time. But in this instance the buyer, as declared in its pleading and reasserted in its evidence, deliberately determined to do that which destroyed the right to disaffirm. It obtained the goods through the contract; it could lawfully keep them only by virtue of the contract; and when it elected not to reject the goods, not to return them, not to hold them for the seller, it elected not to disaffirm the contract.
A buyer cannot, by arbitrarily characterizing his possession, or by adding defiance to it, oblige the seller to forego his remedy for the price and drive him, against his will, to the more undesirable one of re-plevin or an action for damages. The law attaches to the buyer’s determination to take and keep possession of goods received under a contract the correlative duty of paying for them according to the contract if the seller elects to enforce it.
The case of Brown v. Foster et al., 108 N. Y. 387, 15 N. E. 608, is instructive upon the questions involved here. Machinery for a sawmill, the subject of a contract of sale, was delivered by the seller and was rejected by the buyer as unsatisfactory. The buyer, however, at his own request, was given permission to use it until the seller’s manager reached the place. The manager made alterations and the buyer then continued to use the machinery for nearly three months, and .until the close of the season’s business, although he continued to find fault. The buyer then dismantled the machinery, stored it for the seller and sought to elect to have his use of the machinery treated as a trespass. The court, after holding that the declaration by a buyer of a refusal to accept does not override acts of acceptance, and that if a buyer desires to reject he must do nothing inconsistent with the vendor’s ownership, said:
“Nor can he, as is suggested, elect to have his use of the machine after complaint made treated as a trespass. He had received the consideration on which his promise to pay depended, and the obligation so incurred could be discharged only by performance. If an omission of that duty gives occasion for an action, its nature cannot be determined at his choice. He could not require the defendant [vendor] to treat the use of the machine as a tort, and be satisfied with damages as for a conversion. If in favor of either such right of election existed, it was because of the plaintiff’s conduct and was cast upon the vendor, but he might very well refuse to regard as unlawful an act which came directly within the contract, and the accomplishment of which was on the vendee’s part its sole object.” (Page 891.)
Under the rule in this state the acceptance of goods tardily delivered does not waive the right to recoup damages occasioned by the delay, and the-plaintiff’s request for an instruction based upon a contrary principle was rightly refused.
A preliminary motion looking to the dismissal of the proceeding in error is denied.
The judgment of the district court is reversed and the cause is remanded for a new trial.. | [
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The opinion -of the court was delivered by
Burch, J.:
The plaintiff, an employee of the defendant, a railroad company doing business in this state, recovered a judgment against the defendant for damages resulting from the loss of his right hand through the negligence of a coemployee. The defendant prosecutes error.
The plaintiff, a skilled mechanic, and other workmen equally experienced and capable, among whom were C. L. Hopwood and a man named Metzger, were completing the repairs on an engine, under the direction of a foreman named Hughes. In order to finish the work it was necessary to elevate the rear portion of the engine. It was customary in such cases to lift by means of jacks, but in this instance a hydraulic ram was employed. To prevent the end of the engine from sagging after it had been raised it was necessary to support it by iron blocks placed between the box and the frame. The foreman sent the plaintiff some distance away after the needed blocks, and while he was absent the engine was raised. Upon the plaintiff’s return he was ordered to proceed to put in the blocks, and while he was doing so the engine fell and crushed his hand. The piston of the hydraulic ram was made of metal, and the engine deck was constructed of like material. To form a cushion and prevent slipping when pressure was applied the foreman ordered a wooden block placed between the piston-head and the deck-casting. The defendant furnished solid hardwood blocks, but one was selected from the available supply which was formed of two flat pieces of oak nailed together. Hopwood placed it on top of the piston, but instead of adjusting it so that the two pieces composing it would lie flat and safely support the weight of the engine he placed it so that the pieces stood on edge. In the center of the deck was an oblong casting called the “boss.” Hopwood placed the wooden block on the edge of the boss and not at the center. As a result it did not receive the pressure perpendicularly, and, the weight of the engine being unevenly distributed, the block split and crushed.
The plaintiff’s specifications of negligence appear in the following extracts from the petition:
“That said Hughes selected a wooden block and gave it to Hopwood, ordering him to place it between the top of said ram and the deck-casting of said engine for the purpose of forming a cushion to prevent slipping of said deck-casting on said piston; that said Hopwood placed the said block as directed aforesaid. . . . That the negligence of which plaintiff complains herein is the want of ordinary care of the defendant, through its agents and employees, Hopwood and foreman Hughes, in the following manner: Said Hughes was negligent in that he selected the above-described block, with its defects as aforesaid, and ordered it used by Hopwood, and also in that the said Hughes directed said engine to be supported for the great length of seven minutes upon said defective block; that said Hop- wood and Hughes were negligent in that they did not squarely place, and keep in place, the said wooden block between said deck-casting and top of piston during the time they were raising and lowering- said engine, and in not observing and inspecting the effect of ■said great weight upon said block as the work of raising and lowering said engine was progressing.”
The defendant denied negligence, and affirmatively pleaded' contributory negligence and assumption of risk.
There was evidence on behalf of the plaintiff, that it was no part of his duty to inspect the work of his fellows ; that the foreman was there for that purpose, and that it was the foreman’s duty to see that the workmen properly performed their respective tasks. The foreman did not in fact know the kind of block which was used. He testified that Metzger procured it and handed it to Hopwood. He said he gave an emphatic order for a hard-wood block, and that Metzger stated he had one of solid oak.
The jury returned with its general verdict special findings of fact, the most important of which, classified as well as may be according to the subjects to which they relate, are as follow:
I.
“(18) Ques. Does not the evidence show that in raising engine No. 89 a wooden block was used as part of the appliance for raising said engine? Ans. Yes.
“(19) Q. Does the evidence show that said block was made up of two pieces of oak timber, each two inches by four inches ? A. Yes.
“(20) Q. Does the evidence show that these two pieces were nailed together by nails long enough to go through and clinch? A. Yes.”
“ (22)' Q. Does the evidence show that to careful observation said block was sound and strong? A. Sound but not strong enough.”
“ (24) Q. Does the evidence show that in the selection of said block ordinary judgment and prudence was used? A. No.
“(25) Q. Could a machinist of ordinary care and prudence have determined that said block was insufficient and defective? A. Yes.
“(26) Q. If you answer the above question in the affirmative, then state in what manner a machinist of ordinary skill could have determined that said block was insufficient and defective. A. By examination.”
“(29) Q. Does the evidence show that in placing said block it was done with ordinary skill and care? A. No.
“(30) Q. If you answer the above question in the negative, then state in what manner and in what particulars said block was unskilfully and carelessly placed. A. By placing block on edge, and that on edge of ‘boss’.”
“ (38) Q. Does not the evidence show that a person of ordinary care and prudence would have selected such a block for the purpose for which it was used? A. No.
“ (39) Q. If you answer the above question in the negative, then state why a person of ordinary care and prudence would not have selected such a block for the purpose for which it was used. A. Block insufficient.”
“(37) Q. If you find the defendant is negligent, state what person of said gang was negligent, and in what manner and by what action he was negligent. A. Hopwood, for selecting such block and placing it in place and manner he did, and Hughes for allowing same.”
“(45) Q. If you find for the plaintiff, then state upon what acts of negligence upon the part of the defendant you base your verdict. A. By not securing a. proper block and by not adjustirig properly.”
“ (51) Q. Does not the evidence show that no person of said gang was negligent or careless? A. No.”
H.
“ (6) Q. Was the plaintiff an experienced machinist? A. Yes.
“(7) Q. Has the plaintiff been engaged in the occupation of a machinist almost continuously since the-year 1889? A. Yes.”.
“ (17) Q. Does not the evidence show that the plaintiff had good eyesight at the time of the accident? A. Yes.”
“(27) Q. Who placed said block in its position under said engine? A. Hopwood.”
“(31) Q. After said block was placed under the engine does not the evidence show that the plaintiff had the same opportunity to examine it as any other person?, A. No.”
“(34) Q. Does not the evidence show that plaintiff could by stooping down have examined said block while it was in its position under said engine? A. Not from .his position.
“(35) Q. Does the evidence show that the plaintiff examined said block? A. No.”'
“(47) Q. Does not the evidence show that plaintiff had knowledge in common with the other men of the weight of the engine, the power, fitness and use of the hydraulic lift, and in general of all the surrounding appliances and conditions at the time of the accident? A. Yes, with the exception of condition and placing of block.”
III.
“(23) Q. Were not each of said gang competent and skilful in the lines of his respective work? A. Yes.” • =
“(28) Q. Does the evidence show that the person who placed said block in its position under said engine was of ordinary skill and was competent in his line of work? A. Yes.”
•“(36) Q. Does the evidence show that all the men composing said gang had been engaged in like work for many months and were all competent and skilful? A. Yes.”
“ (46) Q. Does not the evidence show that the plaintiff had worked for about a year in that particular gang of men? A. Yes.”
The defendant claims there is a variance between the pleading and the proof. The gravamen of the charge was that an insufficient block was negligently selected, and that the block selected was negligently adjusted. Although the petition ascribes to Hughes' the selection of the block, which either Metzger or Hop-wood picked out, the theory of the case was not changed and the negligent act alleged and proved was precisely the same. The additional negligence of a previously undisclosed person was not brought into the case as a new basis of recovery, as in A. T. & S. F. Rld. Co. v. Irwin, 35 Kan. 286, 10 Pac. 820. The rank or station of the employee making the selection was not a matter of any consequence, all the workmen being coem-ployees, so that the naming of the person who happened to be foreman was not a matter of substance. The choice of a weak block by the man whose duty obligated him to select a strong one, whatever his position or name might be, was the material thing. Besides this, the individual'who picked out the block and determined to use it was identified with such particularity that a description of him by name was not important. He was a member of a small group of employees, all of whom were named, who were at the time closely cooperating in the repair of the engine, and it seems almost fanciful that the defendant could have been misled with reference to the essential features of the plaintiff’s cause of action or prejudiced in any way because the evidence disclosed that one man did something imputed to another. If the defendant was misled the record should contain the showing made to satisfy the trial court of the fact, and the specification of the particulars in respect to which it was thrown off its guard.
“No variance between the allegations in a pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.” (Gen. Stat. 1901, § 4.567.) •
Nothing of the kind appears. If the question of variance was presented to the trial court it was only under a demurrer to the evidence or a request for a peremptory instruction to find for the defendant, and no opportunity for amendment was offered. Under the statute this is not sufficient and the claim that a material and prejudicial variance occurred and was disregarded cannot be maintained.
Coupled with the matter of variance the defendant argues the proposition that there was a failure of proof, in that Hughes did not select the block while the petition charges that the conduct of Hughes and Hopwood combined to produce the plaintiff’s injury. Since the cause of action in the petition is sustained by proof that the block was negligently chosen, no matter who in fact made the choice, the exculpation of Hughes does not affect the merits- of the plaintiff’s case.
The defendant further argues that Hughes was guilty of no negligence; that if-he was negligent it was in respect to nothing for which the defendant may be held responsible; that the jury regarded the negligence of Hughes as essential to a verdict in favor of the plaintiff (finding 37), and hehce that there is a failure of necessary proof. Finding 37 merely enumerates all the shortcomings which the transaction disclosed and names all the delinquent individuals. When asked specifically upon what acts of negligence on the part of the defendant the jury based their verdict they answered: “By not securing a proper block and by not adjusting properly.” (Finding 45.) Therefore, the verdict is not rested upon Hughes’s negligent, superintendence, and it is not necessary to follow the defendant through the remainder of its argument under this head.
The defendant says it had no notice of the fact that a defective block was about to be used or was used, and in other respects argues the case as if it had relieved itself of liability when it provided competent workmen, a safe place to work, safe machinery, and solid oak blocks to choose from. The fallacy of this argument lies in the assumption that this is a defective-appliance case. It is a fellow-servant case. The petition is clear and emphatic that the negligence of the defendant of which plaintiff complained is the negligence of defendant’s agents and employees in the performance of their duties. The negligence specified by the jury is not that the defendant failed to furnish a sound block of wood or a better lifting apparatus. It is negligent conduct on the part of an agent and employee in assorting the blocks furnished and in manipulating the one chosen. This being true, the case is governed by section 1 of chapter 393 of the Laws of 1903, which contains the following provision:
“Every railroad company organized or doing business in this state shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage.”
Under this statute the elements of a cause of action against a railway company are: Negligence of one employee in. some matter connected with the operation of the road, and damages.to another in consequence of such negligence. If, after the master’s common-law duties are all performed, a skilled employee negligently chooses and uses an insufficient appliance, or makes a negligent use of an appliance sufficient if properly handled, and as a consequence another employee sustains damage, the master is responsible; and the statute makes no provision for notice to the master, in advance of the act, that the employee is about to do a careless thing.
The failure of the defendant in this part of its argument, and in that relating to assumption of risk, to discriminate between cases based upon a failure of the master to furnish safe tools and fellow-servant cases, and a further failure to discriminate fellow-servant cases arising under the statute from those arising at common law, has led to the citation of many authorities to no purpose. It is not necessary to review them in detail. They announce correct principles but they do not apply.
It is said the plaintiff assumed the risk of injury from the use of a wooden block. But the question is, Did the plaintiff assume the risk of injury through the negligence of the defendant’s employees in picking out an insufficient block and carelessly adjusting it between the piston of the hydraulic ram and the deck-casting of the engine? Ordinarily a servant assumes the risk of injury through the negligence of his coservants if the master has exercised due care in choosing them. The statute changes this rule so far as' it affects railway employees engaged in the operation of the road, and such an employee assumes the risk of injury through the negligence of another only when he knows that the other is incompetent or habitually negligent and continues to work with him without protest and without inducement on the part of the employer that a change will be made. (See K. P. Rly. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780.) In this case the plaintiff had no occasion to doubt the judgment, skill or prudence of his associates, and no reason to anticipate the careless conduct which produced his injury. (Third group of findings, supra.) The lapse in vigilance which caused the engine to fall was as surprising to him as it was to the foreman, whose own hands were caught and mangled, and the statute clearly applies.
An attempt is made to deduce assumption of risk from the plaintiff’s experience and skill, his familiarity with the work to be done, with the use of the hydraulic ram, and with all the hazards usually attending the repair of an engine. But the plaintiff did not assume the risk of injury occasioned by the negligence of his co-employees. In cases not covered by the statute assumed risk does not include negligence for which the master is responsible (see Emporia, v. Kowalski, 66 Kan. 64, 71 Pac. 232), and to hold that it does so in this case would be tantamount to a nullification of the statute.
According to the plaintiff’s evidence it was no part of his duty to make a special investigation to ascertain what kind of a block was used or how it was placed. The engine was raised yrhen he returned with the iron blocks, and he had no opportunity to see how it was supported. He acted under, the direction of his foreman when he placed his arm in a position of danger. This evidence, considered in connection with the second group of findings quoted above, entirely disposes of the defense of contributory negligence.
The special findings are amply supported by the evidence, are apparently fair and candid, are entirely consistent with each other, and are in harmony with the general verdict.
The statement by witness Hughes that he did not observe the position of the plaintiff’s hand amounted to a practical withdrawal of the statement he had just before made. Even if this did not appear to be the effect of the testimony the court would not assume that the jury were driven to a verdict by the expression of a supposition by a witness who immediately added that he did not know the fact. That other testimony asked to be stricken out did not affect the verdict is shown by the special findings designating the negligence upon which the verdict was predicated.
The requested instructions were either properly refused or given in substance. No. 1 left out of account the very negligence upon which the action was based— that of fellow-servants. No. 2 placed all responsibility for his safety upon the plaintiff, practically eliminated the foreman from the job, decided for the jury — but against the plaintiff’s evidence — what some of the plaintiff’s duties were, assumed facts to be true which the jury found not to be true, and was sufficiently involved to be misleading. The vice of Nos. 3 and 5 is apparent from what has already been said with reference to the difference between cases prosecuted on' account of the failure of the master to provide safe tools and statutory actions based upon the negligent conduct of servants and agents. Nos. 6 and 7 were covered by instructions given. /
The verdict was not excessive, and the judgment of the district court is affirmed. | [
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Per Curiam:
We have examined the errors claimed to have been made upon the trial of this case and have found nothing which requires a reversal of the judgment rendered or which calls for extended discussion. The evidence fully sustains the special findings and the general verdict, and the verdict compels the judgment. The legal principles involved are quite fully discussed in Evans v. Concordia, 74 Kan. 70, 85 Pac. 813.
There seems to have been a fair trial, the evidence as well as the findings seem to establish the liability of the city for the injury sustained, and it is not claimed that the damages awarded are excessive.
The judgment is affirmed. | [
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Per Curiam:
In this case the court made a general finding against the plaintiff. The case was tried upon conflicting oral testimony. The plaintiff himself made many statements inimical to a right to recover. Infer- enees may be drawn from Ms testimony as a whole inconsistent with such right, and the testimony on the part of the city, which the court may have believed in full, is destructive of the theory upon which plaintiff apparently proceeded. This being true, this court cannot know what the trial court deemed to be the facts, and without facts it cannot apply the law.
The statute says the city shall specify the compensation of the city attorney by ordinance. (Gen. Stat. 1901, § 949.) Again it says the compensation of all city officers except justices of the peace and assessor shall be regulated by ordinance. (Gen. Stat. 1901, § 959.) This limits the power of the city to one method of dealing with the compensation of a city attorney. It must act by ordinance. A city attorney is bound to know this, and he cannot perform ordinary legal services for the city and then claim extra compensation pn the theory of an implied contract or estoppel. Cases like Mound City v. Snoddy, 53 Kan. 126, 35 Pac. 1112, have no application to claims for services rendered by a city officer who takes office upon condition that his salary must be regulated by ordinance. The “general consensus of six councilmen” that a city attorney should have extra pay will not do; the statement of six councilmen to a city attorney to “go ahead” and they will “see that he gets just compensation for his services” will not do; and a resolution of the mayor and council will not do. The bars to the city treasury cannot be let down in any such way.
The statute also provides that the city shall specify the duties of the city attorney by ordinance. This, however, may be done in general terms, and in construing such an ordinance all duties which naturally appertain to the office of city attorney will be held to be covered, unless the language clearly indicates to the contrary. The courts will not strain words to exclude anything a city attorney ought ordinarily to do. The ordinance fixing-the plaintiff’s duties clearly covers work like the preparation of ordinances and documents relating to bond issues. It expressly'covers all services in suits in the district court of Cowley county in which the city is interested, as well as those to which it is a party.
It is useless to attempt to discuss further what may be the law of the case, because it cannot be known from the record what view the court took of the facts. The court probably found that the plaintiff voluntarily took the chance that a faction of the council would get him extra pay against the continued opposition of another faction. In such a case the city cannot be made liable.
The evidence relating to the trip to Topeka was properly rejected, because it involved something which was not municipal business.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The parties to this action are farmers, living, near each other, in Phillips county. Veneman was injured by a prairie fire and sued Johnson for damages sustained thereby.
It appears from the evidence that early in the forenoon of March 2, 1904,' Johnson set out a fire on his farm to burn off a twenty-acre field of rye stubble. The object in burning this stubble was to prepare the ground for cultivation by removing the weeds, sand-burs and other rubbish that- had accumulated thereon. The burning was completed before noon and all fire extinguished, except that remaining in the bottom of a straw stack standing on the burned ground. When the fire was set out the weather was exceptionally calm and favorable for the safe management and control of such fires, but about two o’clock in the afternoon an extraordinary wind from the north swept over the premises, and soon afterward a fire started in the open grass-lands south of Johnson’s field and spread to, and over, the farm of Veneman, causing the injuries of which he complains.
There was a strip of burned ground more’than forty rods wide between the burning straw stack and where the fire started in the grass south of Johnson’s field. The jury found that the fire which burned the property of Veneman originated on the premises of Johnson, and escaped therefrom through his negligence. This finding was approved by the court.
It is contended here by the plaintiff in error that the evidence fails to establish any negligence on his part, but on the contrary shows that he exercised the utmost care and prudence in setting out and managing the fire on his premises; that he selected the most favorable timé possible for such a fire, the weather being unusually calm, clear and bright; that the straw stack, while on fire, was surrounded' with such a wide stretch of land freshly burned that no person would think it possible for fire to escape therefrom.
It may be conceded that farmers may set out fires on their premises for proper' agricultural purposes, and when done and cared for with proper prudence and diligence they will not be liable for damages resulting therefrom. What constitutes proper prudence and diligence, however, cannot be determined by any rule of universal application; every case depends upon its own facts, and whether in any given situation the proper degree of care has been exercised or not is a question of fact proper for the consideration of a jury.
In this case the jury found that Johnson was guilty of negligence. The verdict might well have been otherwise. It appears from the evidence, however, that a straw stack was left on 'fire which would necessarily ' continue to burn, if permitted to do so, for more than twenty-four hours; that although the fire was set out while the weather was calm and fair, yet it was in March, when strong winds might be expected at any time. Johnson says that he watched the burning stack all the following night, because he was afraid that fire would be blown therefrom and set out a new fire in the adjoining grass-land. This shows that he did not feel secure even with the wide margin of burned stubble-ground that surrounded the stack. A jury taken from the county where a prairie fire occurs is an eminently competent and proper tribunal to decide finally all questions of negligence relating thereto, and when so determined this court cannot disturb the finding, except for rare and exceptional reasons. In this case we are asked to do so because there is no evidence of negligence on the part of Johnson. No other question is presented.
We think the jury would have been justified in finding otherwise, but we cannot say that there is no evidence of negligence on the part of the plaintiff in error, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The only question presented in this case relates to the statute of limitations. The plaintiff claims that the note sued on represents the gross sum of $2100, due eleven years after March 1, 1891; that the provision therein for payment in annual instal-ments was designed merely as a convenience for the payors, without being obligatory upon them. It is conceded that under the provisions of the mortgage the whole debt became due on December 21,1897, when default in the payment of that year’s taxes occurred, but it is insisted that the subsequent redemption of the land waived the default and prevented the bar of the statute — that the whole debt therefore became due March 1, 1902, which was less than five years before suit was commenced.
Defendants insist that the default which occurred by the non-payment of taxes could not be waived or set aside without the consent of both parties, and that such consent not having been obtained the whole debt became barred December 20, 1902, more than two years before the suit was commenced.
The court did not adopt either of these theories, and the record does not show upon what conclusions its judgment was based. Apparently, however, it decided that the note, being the principal instrument, controlled, where inconsistent with the mortgage, and held that the note was payable in -annual instalments,- all of which were barred except the last two, for which with interest judgment was rendered for the plaintiff.
A note and the mortgage given to secure its pay ment, when executed at the same time and as parts of the same transaction, constitute the contract between the parties, and must be construed together as one instrument. (Chick and others v. Willetts, 2 Kan. 384; Round, et al. v. Donnel, et al., 5 Kan. 54; Muzzy v. Knight, 8 Kan. 456; National Bank v. Peck, 8 Kan. 660; Meyer v. Graeber, 19 Kan. 165.)
In this case the mortgage was executed long after the note was given. Its object, however, was to secure the note. The note was copied in the body of the mortgage and considered and referred to as if executed at that time. The two instruments were adopted by the parties as the contract thereafter existing between them. The execution of the mortgage after the date of the note cannot therefore change the rule above stated.
It has been decided that a clause in such a mortgage providing that the debt secured thereby shall mature immediately upon failure of the mortgagors to pay the taxes on the mortgaged premises when by law they should be paid is valid and enforceable by either party. (Stanclift v. Norton, 11 Kan. 218; National Bank v. Peck, 8 Kan. 660; Kennedy v. Gibson, 68 Kan. 612, 616, 75 Pac. 1044.) The legal effect of a failure to pay taxes as stipulated is to make the whole debt due at once, and this result cannot be waived or changed by either party without the consent of the other. (Stanclift v. Norton, 11 Kan. 218; Ellwood v. Wolcott, 32 Kan. 526, 4 Pac. 1056; Snyder v. Miller, 71 Kan. 410, 80 Pac. 870, 69 L. R. A. 250.) In the case last cited the foregoing propositions and the authorities relating thereto were fully considered and discussed. The case of Douthitt v. Farrell, 60 Kan. 195, 56 Pac. 9, relied upon by plaintiff, depends upon its own facts and is not controlling here.
When the mortgage in this case was executed it, together with the note, constituted the contract between the parties. The failure to pay the subsequent taxes when due and payable caused the whole debt to become due at once. More than five years elapsed afterward before this suit was commenced, and therefore the whole debt was barred by the statute of limitations., The redemption of the land after being sold for these taxes did not waive the default or affect the running of the statute.
The judgment of the district court is reversed, with direction to enter judgment for defendants for costs, and to proceed with the case as may be required by the interests of other parties. | [
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Per Curiam:
These cases present the same questions which were involved in the case of The State v. Thomas, 74 Kan. 360, 86 Pac. 499, and upon the authority of that case the judgments are affirmed. | [
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Per Curiam:
At the time the information was amended the county attorney had the right to amend it in form or substance as he desired.
The defendant having been lawfully arrested, and having given bond to abide the orders of the court and not to depart without leave, continued to be rightfully in custody. New process was not necessary to hold him.
The amendments having been interlined upon a filed document, it did not need to be refiled.
The evidence complained of was properly admitted. The verdict is sustained by sufficient evidence, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
E. J. Healy & Co., live-stock ♦commission merchants of Wichita, wrote to the Citizens Bank of Braman, Oklahoma, as follows:
“Healy & Co.,
Live Stock Commission Merchants.
Market reports furnished.
Wichita, Kan., 12/2,1902.
Citizens Bank, Braman, O. T.:
Sirs — Your letter reed. In reply will say that we will honor Mr. Payne’s draft for one thousand dollars on hogs or cattle. Should he want more at any time, have him call us by phone and we will make arrangements to handle his stock. We limit our customers as we have to keep our bank account up here; we think Mr. Payne O. K. We presume this is all you want, as it is all that is required of us by any other bank.
Yours in sincerity,
E. J. Healy & Co.”
The contents of the communication thus replied to are not shown. Upon the strength of this letter the bank cashed a draft for $296.60, drawn by Payne upon Healy & Co. The drawees refused to pay it and action was brought against them upon it by W. A. Stough, to whom it had been assigned. ' A verdict was given for the defendants, upon which judgment was rendered, and the plaintiff prosecutes error.
An instruction was. given to the effect that the letter was not an agreement to pay any draft except such as should be drawn on account of cattle or hogs shipped by Payne to Healy & Co., or at all events none except such as the bank should believe to be drawn upon that account. The plaintiff in error maintains that it was a promise to pay any draft within the amount named, without regard to the use made of the proceeds or to the shipment of any stock to the drawees. The only question necessary to be determined is, Which of these positions is correct? We agree with the trial court. There are many cases, of which Posey v. Bank, 24 Colo. 199, 49 Pac. 282, is an example, holding that a letter of this nature is to be strictly construed against the writer, on the ground that it is his duty to give clear éxpression to any limitation he intends to place upon his liability. This principle, however, does not require or justify a strained or unreasonable construction. In the present instance the letter-head used must have advised the bank that Healy & Co. were engaged in the business of selling live stock on commission. The reference to their practice of limiting their customers indicated plainly that they regarded Payne in that light — that is, as one who would ship stock to them for sale — and made the agreement to pay his drafts with that in mind. The statement that if he should want more than the thousand dollars they would upon notice arrange to handle his stock has the same effect. In view of these considerations their promise to honor his drafts “on hogs or cattle” could have but one reasonable meaning — that they would take care of such drafts as should be drawn against or on account of live stock shipped to them for sale.
No cases to which our attention has been directed conflict with this conclusion, although several may seem to have a tendency in that direction. The case of Coffman et al. v. Campbell & Co., 87 Ill. 98, turned upon the construction of a telegram reading, “Will pay A. Harper draft, twenty-three hundred dollars, for stock,” sent in answer to the inquiry, “Will you honor draft drawn by A. Harper for twenty-three hundred dollar??” It was contended that no obligation was thereby assumed excepting to pay a draft made for the purchase of stock which was shipped to the drawee. The supreme court denied this contention, although two justices dissented. There is a great and mánifest difference, however, between the expressions “for stock” and “on stock.” The one merely relates to the use the drawer is to make of the money he obtains for the draft; the other is equivalent to “against stock,” and clearly implies that the draft is to be drawn upon the strength of the stock — that the stock is to be made in a way security for the draft. And where the" phrase is used by commission merchants it requires no evidence of a custom to show that the character or security meant is that resulting from a shipment to them of the live stock purchased with the proceeds of the draft.
In Charles L. Bissell v. William Lewis et al., 4 Mich. 450, the drawees of a bill of exchange gave their agent a letter of credit reading:
“To enable you to make advances on grain or other produce to be consigned to us, or for us at Oswego, during the ensuing fall, you are at liberty to make drafts on us in amounts necessary for such operations, on such terms as you can make advantageously for us.”
The court held that this was an unconditional authority to the agent to draw upon his principals; that one who cashed his draft upon the strength of it thereby acquired an absolute demand against them, whether or not any shipment was in fact made. That decision is entirely consistent with what has been said here. The letter contained no suggestion of the drafts’ being made upon or against the produce. The agent was empowered to raise funds to enable him to do. certain things. They who supplied the funds were not charged with the responsibility of seeing that he faithfully performed his duty; so that as they did not knowingly assist him in perpetrating a fraud it was a matter of indifference to them what use he made of the money.
A very similar case is Merchants’ Bank v. Griswold, 72 N. Y. 472, 28 Am. Rep. 159. There the letter of credit read:
“To whom it may concern:
“This is to certify that I hereby authorize Horace Loveland, as my agent, to make drafts on me, from time to time, as may be necessary for the purchase of lumber for my account, and to consign the same to the care of P. W. Scribner & Co., Whitehall, N. Y.” (Page 476.)
In the opinion is was said:
“Here the authority was to draw bills to the extent necessary to purchase lumber. By the act of procuring the discount upon the faith of the authority, the agent represented both the necessity and the purpose, and it was proved- besides that actual representations were made to the same effect. According to the authorities cited the principal is bound by these representations, and as to the plaintiff they are to be deemed true. We have then the case "of an absolute authority to draw for the principal for any amount necessary for the purpose specified, and we have the representations of the agent, for which the principal is bound, that the necessity exists for the purpose named. The person discounting the bill need inquire no farther. . . . I do not think that the requirement to ship the lumber to a designated place can be regarded as a condition to the exercise of the power to draw. The liabilities of the parties were fixed at the time the draft was taken and the money advanced upon it. The act of shipping was to be performed subsequently, and to be performed by the agent of the defendant, who had confided to the agent the power and discretion in respect to that act. These directions were in the nature of instructions to the agent, rather than a limitation upon the power to draw drafts.” (Pages 478, 480.)
These extracts show that the principles governing the decision can have no application to the facts of the present case.
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The opinion of the court was delivered by
Burch, J.:
Two principal questions are presented by the petition in error in this case, one relating to a variance between the pleading and the proof, and the other relating to the admissibility of testimony.
The plaintiff entered into negotiations with the defendant for an agency to sell a cereal food manufactured by the defendant. The transaction involved the purchase of one thousand dollars worth of stock in the defendant company. The plaintiff, a resident of Topeka, went to the headquarters of the defendant at Battle Creek, Mich., to investigate the proposals made to him. There a contract was drawn up, but being still in doubt the plaintiff took it home with him for further consideration before signing. Afterward he indicated a willingness to close with the defendant, who thereupon sent an agent to Topeka for the purpose of completing the proposed arrangement. The plaintiff and the defendant’s representative, a Mr. Boyle, met, a contract was signed, the price of the stock was paid, a certificate of stock was delivered, and other steps were taken to install the agency. The plaintiff claims the contract agreed upon gave him the territory of the state of Kansas and Jackson county, Missouri. Upon making an attempt to conduct the business of the agency he discovered that he was limited to the state of Kansas only. He promptly rescinded, returned the stock, demanded a return of his money, and, upon the defendant’s refusal to pay, brought suit. The petition contains the following allegations :
“Plaintiff brought said contract with him to the city of Topeka, and thereafter formally accepted the terms proposed and agreed to sign the same, and afterward, to wit, on the 2d day of March, 1903, the said defendant came to the city of Topeka for the purpose of having said contract signed, and took the contract which had been delivered the plaintiff for the purpose of making a duplicate of the same, and that, upon the same day, the said defendant exhibited to this plaintiff the contract, which they had made, and pretended to sign the same, and the plaintiff at the time, believing that it was the same contract, a duplicate having been taken by the defendant, signed the same, and paid one thousand dollars, as provided by the terms of said contract.
“And afterward the plaintiff discovered that in the signing of said contracts by him and the company that the said defendant had wilfully and fraudulently substituted an entirely different contract from the one agreed upon, written out and accepted by the parties; and, that by reason of such wilful and fraudulent substitution this plaintiff at the time, without any knowledge of the wrongful act on the part of the defendant and believing that the contracts were the ones which had been agreed upon, signed the contract as presented, which limited his territory to the state of Kansas only. That said substituted contract was not the one by him agreed upon, and was not the consideration of the payment by him to said defendant of one thousand dollars, which he paid to the defendant.”
On the trial the plaintiff’s evidence tended to show that Boyle brought with him to Topeka a draft of a contract which had been executed on behalf of the company. This draft Boyle dated in plaintiff’s presence, and delivered to plaintiff as his copy. Plaintiff signed the draft he had brought home from Battle Creek and delivered it to Boyle. Each draft consisted of two unattached sheets of paper, the first containing the description of the territory covered and the second containing the signatures. When the plaintiff signed the draft which he had brought home from Battle Creek its original form remained unchanged. He testified that the substitution in that copy was made after the paper left his hands. But he further testified that the supposed duplicate which Boyle brought to Topeka and delivered to him when he signed the other did not cover Jackson county, Missouri, as he discovered "when he examined it after trouble arose.
The dating of one copy of the contract, the signing of the other, the exchanging of the duplicates, the payment of the money and the delivery of the stock certificate constituted in effect a single transaction, consuming about fifteen minutes of time, and occurred in a room at a hotel.
The plaintiff admitted to be incorrect the statement in his petition that Boyle, after coming to Topeka, took the draft of the contract which plaintiff had brought from Michigan for the purpose of making a duplicate, and admitted to be incorrect thé statement that Boyle signed, on that day, a copy of the contract which he exhibited, pretending it to be genuine.
It is said the plaintiff undertook to set forth in his petition the precise manner in which the fraud was committed. The first step was, to take the plaintiff’s draft of the contract, ostensibly for the purpose of making a duplicate. The next step was to exhibit a substituted draft as the true one, and to sign it as if genuine. As a result the plaintiff signed a substituted draft. To disprove these allegations the defendant did not need to extend its evidence beyond the time the plaintiff affixed his signature. The defendant’s witnesses lived in Michigan and their testimony had been taken by deposition.
Recognizing the cogency of this argument, the court is inclined, nevertheless, to the view that the discrepancy between the pleading and the proof was not vital and that the defendant’s testimony covered’the point upon which the case necessarily turned. The real specification of fraud was a substitution of documents. The details of the prestidigitation were not important, and the petition need not have, attempted to expose them. In civil actions only the substance of the issue need be proved, and in this case it was proved by showing a state of facts which opened the way to the inference that a substitution had occurred.
It was not important that, instead of taking the plaintiff’s draft of the contract to make a duplicate, Boyle brought with him a copy for use as a duplicate. This spurious duplicate was exhibited to plaintiff as a genuine paper — was actually delivered to him as truthful written evidence of the contract. Boyle did some writing at the time. Although he did not sign, he did fill in a date, thus making the act of writing contribute to the apparent honesty of the transaction. The exchange of documents took place at the same time. The plaintiff was entitled to a duplicate containing Jackson county, Missouri, as a part of the description of the territory involved. He was given one which omitted Jackson county, Missouri, so that at the time of signing up with the plaintiff a substitution pro tanto was effected. The plaintiff was defrauded then and there, and it was of small consequence when the top sheet of the genuine draft the plaintiff had signed was shifted.'
There was no dispute in the evidence that the plaintiff was given, at the hotel, the kind of a copy he said he received. The decisive question in the case was if he brought home from Battle Creek, kept in his possession, produced at the hotel, and signed, a different kind of a document. If he did, there could be no doubt of a substitution. If he never had the kind of a paper he claimed he was given at Battle Creek, substitution was impossible. Upon this question the defendant produced all the evidence at its command. From these considerations it follows the variance was not material and the defendant was not misled to its prejudice.
On cross-examination of the plaintiff he was asked if he had not commenced and dismissed a previous suit against the defendant, and he admitted that he had done so. The defendant then introduced in evidence the petition in the former suit, which counted solely upon a failure to perform, and made no reference whatever to any fraudulent substitution. This petition was filed after the date upon which the plaintiff claimed he discovered the fraud which was made the basis of the second suit. Thereupon the plaintiff produced a witness, J. S. Warner, who testified that, at a date between the time the plaintiff returned from Battle Creek and the time Boyle came to Topeka, the plaintiff exhibited to him and asked his advice concerning a contract which he contemplated making with the defendant. The witness described the contract which the plaintiff showed him and stated that it differed from the one attached to the defendant’s depositions (and claimed by the defendant to be the original signed by the plaintiff) in that the description of the territory involved included Jackson county, Missouri, in addition to the state of Kansas. The plaintiff had already testified without objection that he had shown to Warner the contract given him at Battle Creek by Boyle, and had taken Warner’s advice concerning it.
The defendant claims Warner’s testimony was inadmissible. The introduction in evidence of the plaintiff’s first petition tended to impeach him by showing that he had failed to charge a fraudulent substitution at a time when most likely he would have done so had grounds existed, and to lead to the inference that the fraudulent substitution theory was fabricated subsequently to the commencement of the first suit. The effect of the impeachment was greatly intensified when the defendant later read Boyle’s deposition, wherein he stated there never had been any reference whatever in any of his negotiations with the plaintiff to the inclusion of Jackson county, Missouri, in the contract, and that he had never submitted to the plaintiff any form of contract which included that territory. Under these circumstances the testimony of Warner falls fairly within the scope of the exceptional rule permitting the fortification of an impeached witness by showing consistent claims and statements made and consistent conduct exhibited at a time when their ultimate effect could not in the nature of things have been foreseen. (The State v. Petty, 21 Kan. 54, 59; The State v. McKinney, 31 Kan. 570, 3 Pac. 356; The State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; Cloud County v. Vickers, 62 Kan. 25, 61 Pac. 391; Stirn v. Nelson, 65 Kan. 419, 70 Pac. 355; 2 Wig. Ev. § 1129 et seq.)
The fact that before preliminary negotiations ended the plaintiff had in his possession and submitted to Warner a contract including Jackson county, Missouri, which he then claimed he had received from the defendant, strongly corroborated the plaintiff's story, and strongly tended to foreclose the inference that the whole matter of a contract including Jackson county, Missouri, was fabricated.
Some minor claims of error are discussed, but none of them is substantial, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is a suit to recover judgment on three promissory notes and foreclose a real-estate mortgage given to secure their payment. The defendants in an unverified general denial admitted the execution of the notes and mortgage, but by way of further answer and cross-petition pleaded the entire transaction, of which the notes and mortgage mentioned in the petition were only a part. The pleading stated, in substance, that the defendants purchased a steam thrashing outfit of the plaintiff, for which they gave the three notes sued on and six others, the latter being secured by a chattel mortgage upon the property purchased. The plaintiff warranted the machinery to be all right, and agreed to make it do good work or rescind the contract and return the notes and securities.
The outfit did not do good work, and several men were sent by the plaintiff to ascertain and remedy the defect, but they failed to do so. Finally an expert was sent, who took the machinery in charge and proceeded with a job of thrashing already begun. By the negligence of this expert while managing the, machinery fire escaped from the engine and destroyed the whole outfit, except the engine, which the plaintiff took under its chattel mortgage. It was further alleged that on account of the burning of the machinery defendants were prevented from fulfilling several contracts for thrashing, whereby they were greatly damaged in loss of profits. They asked for damages, and that the notes be canceled.
Plaintiff in reply denied all the new facts alleged. The case was tried upon these issues.
When ready to proceed with the trial defendants were permitted, over the objection of the plaintiff, to amend the allegations of their cross-petition relative to the claim for damages on account of loss of profits. To this amended pleading the plaintiff immediately filed a demurrer, and requested a ruling thereon before the trial proceeded. The court declined to decide the question at once, but took it under advisement and proceeded with the trial. Whether the court committed error in either or all of these matters has become immaterial, for the reason that before the close of the trial the whole question concerning this claim for special damages was withdrawn from the case.
After the evidence was introduced and each party had rested the defendants were permitted again to amend their cross-petition by specifically setting out the six notes involved in the purchase of the thrashing-machine not mentioned in the petition. The entire transaction involved in the negotiations for, and the purchase of, the thrashing outfit.had been fully shown by the evidence presented. The notes mentioned in the amendment were involved in the same transaction as those set out in the petition, and the facts elicited on the trial applied equally to all of them.
The amendment was manifestly in furtherance 'Of justice, and clearly permissible under section 139 of the code for the purpose of making the pleading conform to the facts proved. (Gen. Stat. 1901, § 4573.) It is the policy of our code to avoid a multiplicity of suits and to settle in one action the whole subject-matter of any controversy between the parties. (Flint v. Dulany, 37 Kan. 332, 336, 15 Pac. 208; Smith v. McCarthy, 39 Kan. 308, 312, 18 Pac. 204.) To determine completely the- controversy being litigated by .these parties it was necessary that all the notes involved therein should be within the power and jurisdiction of the court.
Complaint is made that the defendants’ answer contains a misjoinder of causes of action — one being at law, for a breach of warranty, and the other in equity, to cancel notes — and therefore that the demurrer to it should have been sustained. Sections 94 and 95 of the code (Gen. Stat. 1901, §§ 4528, 4529) expressly provide that this may be done when the causes of action joined arise out of the transaction set forth in the petition as the foundation of the plaintiff’s claim or are connected with the subject of the action. This case seems to be covered by these sections. (Goodman v. Nichols, 44 Kan. 22, 31, 32 Pac. 957.)
No written contract for the purchase of the machinery was produced at the trial; the defendants established their answer and cross-petition by parol evidence, without objection, and the plaintiff offered nothing in rebuttal. Under the evidence presented the defendants were clearly entitled to have the notes and mortgage canceled. The court, to make such an order effective, adjudged in addition to the decree of cancelation that the defendants recover a judgment against the plaintiff for the amount of the six notes not mentioned in the petition, with a provision that the judgment should be satisfied by the delivery of the notes to the clerk of the court within thirty days.
There are some other questions presented by the plaintiff, but the conclusions already reached dispose of them and they need not be separately considered.
Being unable to find any material error, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Numerous assignments of error were made on the motion for a new trial, which motion is copied in the plaintiff in error’s brief. There are, however, only two questions presented for our consideration.
The plaintiff called as a witness in his behalf two employees of the company, and upon cross-examination the attorney for the company was allowed over the objection of plaintiff to ask many questions not relating to the evidence in chief but to matters of defense. While a trial court is vested with much discretion in the conduct of a trial, it is a rule necessary to an orderly trial of the issues in a case that the party upon whom rests the burden of the issues shall first produce his evidence — all his evidence — before the opposing party is allowed to produce any evidence. This rule, long before recognized, is found in our statute. (Gen. Stat. 1901, § 4722.) It is not the less a violation of the-rule that the defendant does not call a witness to prove his defense during the production of plaintiff’s evidence, but, departing from the subject-matter of the examination in chief, elicits on cross-examination independent evidence to sustain his defense. It is even more prejudicial; especially so when the witness is, or appears to be, adverse to the plaintiff. We do not rest ■the reversal of the case upon this error, however, and. have commented upon it only because there is to be: another trial.
The ruling of the court sustaining the demurrer to-plaintiff’s evidence and rendering judgment against him for costs was, we think, erroneous. The plaintiff offered evidence ténding to show that shortly before- the injury he had been a passenger for hire upon defendant’s train; that he left the train and went to defendant’s depot at the suggestion and direction of the conductor in charge of the train; that at the time of the injury he was crossing defendant’s track by direction of defendant’s train dispatcher; that immediately before going upon the track he listened and looked in both directions along the track and failed to discover any approaching engine or train; that there was a deep shadow of a post near an electric light, which obscured the track and anything which might be upon it for some distance in the direction from which the engine which struck him came; that while he was walking across the first track, which it was necessary for. him to cross to get to his train as directed, he saw what appeared to be a “dark wall” coming upon him, which proved to be a switching-engine; that he jumped to avoid it, but was struck and knocked down and injured by it; that the engine was backing, and he was struck by the tender, upon which there was no light; that from the time he left the waiting-room till he was struck no bell was rung or whistle sounded, and there was no one there to admonish him of danger. The plaintiff also produced evidence tending to show that he was injured, the extent of his injury, that he was damaged thereby, and the. amount of his damages. This made a prima facie case against the defendant.
It is no answer to say that the other evidence given by plaintiff or by witnesses produced by him weakened or destroyed the effect of essential parts of this evidence. It is not the province of the court on demurrer to determine the effect of conflicting or' contradictory evidence, “but [the court] must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer.” (Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036, syllabus.) A portion of the opinion in Wolf v. Washer was cited with approval in an opinion by Mr. Chief Justice Doster in Farnsworth v. Clarke, 62 Kan. 264, 62 Pac. 655. It is terse and exhaustive of the subject. We again repeat it:
“In order to sustain a demurrer to the evidence the court must be able to say, as a matter of law, that the party introducing the evidence has not proved his case; and the court cannot, upon conflicting and contradictory evidence,, say that as a matter of fact the preponderance of the evidence shows that the party introducing it has not proved his case. If in the present case no demurrer to the evidence had been interposed, and the case had been submitted to the court upon the evidence introduced for a decision upon the merits and as to what the conflicting and contradictory evidence in fact proved, and the court had decided the case in favor of the defendants and against the plaintiff, the decision in all probability would be right; for in such a case the court would'have weighed the conflicting and contradictory evidence, and would have decided the case upon the preponderance of the evidence; but the court cannot do such a thing where a demurrer to the evidence is interposed, and where the court decides the case as a question of law upon the demurrer.” (Page 537.)
There is some discussion in the briefs as to the duty owed by the railway company to the plaintiff under the circumstances of this case, and as to the degree of care the plaintiff should have exercised to exonerate himself from the charge of contributory negligence. There was no specific ruling of the court, however, on these subjects, and hence there is nothing to review in this regard. It is sufficient to say that the evidence produced by plaintiff, regarded as required by the rule above stated, does not, as a question of law, show the plaintiff guilty of contributory negligence. This question should have been submitted to the jury under proper instructions.
The judgment is reversed and a new trial awarded. | [
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The opinion of the court was delivered by
MASON, J.:
S. A. Stotler applied for a policy in the New York Life Insurance Company, and for the first premium gave his negotiable note, payable to Herman Fist, the company’s agent. The note did not show the purpose -for which it was given or disclose that Fist was acting otherwise than in his personal capacity. Fist sold and indorsed the note to Howard Martindale, who after its maturity brought an action upon it against Stotler, also seeking to charge the insurance company, which he made a defendant, upon the ground that as the note was taken and sold in the course of the company’s business Fist’s indorsement bound the company. Upon a jury trial the plaintiff was given a judgment against the insurance company, but was denied relief against Stotler. The insurance company now seeks to reverse the judgment rendered against it, and Martindale asks that he be granted a new trial of his case against Stotler. Both claims of error must be sustained.
The insurance company cannot be held, for the reason that upon the face of the note there was nothing to connect it with the transaction or to suggest that Fist was acting as an agent. Although it is familiar law that ordinarily where an agent while acting as such executes in his own name a written contract which does not reveal the fact of his agency parol evidence is admissible to charge the undisclosed principal, it is equally well settled that an exception to this rule is made in the case of negotiable instruments.
“Where a person is not a party to a negotiable note or bill of exchange he cannot be charged upon proof that the ostensible party signed or indorsed as his agent, since persons dealing with negotiable contracts are presumed to take them on the credit of the parties whose names appear upon them.” ' (1 A. & E. Encycl. of L. 1141.)
Many authorities upon this proposition are collected in a note to the text quoted, and in an additional note printed in the first volume of the supplement to the work cited, at page 216. A number of them apply the same rule even where the maker adds to his signature the word “agent,” or some similar expression. Of the cases mentioned as supporting a contrary doctrine, several, as there indicated, were affected by the circumstance that the principal and agent were husband and wife; the cases of Mechanics’ Bank v. Bank of Columbia, 18 U. S. 326, 5 L. Ed. 100, and Baker v. Gregory and Wife, 28 Ala. 544, 65 Am. Dec. 366, turned upon the fact that the instruments there involved bore upon their face something from which an agency might be inferred; the case of Sharpe v. Bellis, 61 Pa. St. 69, 100 Am. Dec. 618, involved special complications; as stated in the later note the soundness of Sessums v. Henry, 38 Tex. 37, was challenged in McGregor v. Hudson (Tex. Civ. App.), 30 S. W. 489; and the court in Harper et al. v. Bank, 54 Ohio St. 425, 44 N. E. 97, professed to found the liability of the undisclosed principal, not upon the note, but upon the special facts of the case, of which the making of the note was but a part. It is therefore manifest that so far as relates to the question here presented the opposition to the current of authority is not strong enough to warrant treating it as open. Moreover, in Bank v. Bay, 62 Kan. 692, 64 Pac. 596, 54 L. R. A. 408, 84 Am. St. Rep. 417, this court has already applied the principle stated. (See, also, 7 Cyc. 549, 550; 20 L. R. A. 707, 708, note; Webster v. Wray, 19 Neb. 558, 27 N. W. 644, 56 Am. Rep. 754.)
As between Martindale and Stotler, the principal issue arose upon an allegation of an alteration in the note. Stotler testified that when it was presented to him for signature it bore the words “with interest at the rate of ten per cent, per annum”; that he then refused to agree to pay interest and the word “ten” was erased, the space being Left blank, whereupon he signed it; that afterward, without his knowledge or consent, the clause quoted was altered so as to read “with interest at the rate of five per cent, per annum from maturity.” Testimony that the change was made before execution was introduced by Martindale, who asked the court to instruct the jury that a note in which no rate of interest is expressed draws interest after maturity in virtue of the statute at the rate of six per cent, per annum. The request was refused, and the refusal is assigned as error.
Upon this branch of the case defendant in error Stotler argues that such an instruction was unnecessary, inasmuch as it merely stated what is a matter of common knowledge, with which the jury must be presumed to have been familiar. This consideration does not serve to excuse the omission to give the charge requested. The issue of fact was clear, the conflict of testimony direct. The jury were required to determine whether the figure “5” was inserted in the note before or after its execution. Surely nothing could be of greater importance in enabling them to arrive at a'just conclusion than that they should understand the difference in the legal effect of the instrument impendent upon the presence or absence of the figure “5” — that they should have authoritative information that the note as pleaded by the plaintiff bore interest at a lower rate than Stotler says it did when he signed it. Assuming that the jury entered the box with correct views on the subject, we cannot be sure that when they found the maker resisting payment of the note on the ground that it had been fraudulently altered by a lowering of the rate of interest their confidence in their judgment may not have been shaken. Under such circumstances they may have reasoned that the alleged change must have been against the maker rather than in his favor, and inferred that it originally bore no interest even after maturity, especially as in his answer he had pleaded that the note expressly stated that it should bear none. For the failure to cover this matter by a proper instruction the judgment in favor of Stotler also must be reversed.
It seems to be conceded that a note may be vitiated by an unauthorized alteration made by lowering the rate of interest, and properly so, for the contract shown by the paper as changed would be different from that entered into by the parties, and whether a better or worse one for the obligor is not material. (2 A. & E. Encycl. of L. 186, 225; 2 Cyc. 196, 197, note 85.)
Martindale also assigns as error the refusal to give an instruction requested in his behalf to the effect that because the law presumes that men act honestly there was a presumption that the note was not changed after its execution. The complaint is groundless, for the court told the jury that the burden of proof was upon Stotler to show that the alteration was made after delivery.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith,
Johnston, C. J., Greene, Burch, Smith, Porter, JJ., concurring.
Graves, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Porter, J.:
The trial court sustained a general demurrer to plaintiff’s petition in a suit for the specific performance of a contract for the purchase and sale of real estate. Plaintiff stood upon the petition and brings error.
The only question is whether the petition states a cause of action. The pleading is very lengthy, but in substance it alleged that Charles 0. Anderson, an unmarried man, was the owner of a farm in Butler county, subject to certain encumbrances, and on August 24,1904, a contract was entered into between them by which defendant agreed to sell the farm to plaintiff for $2100; that plaintiff was to have one-half of the corn in the field and defendant the other half; that the-purchase-price was to be paid to W. E. Brown, who was to pay off áll the encumbrances on the land from the proceeds, and pay the balance, if any, to defendant; that the following memorandum in writing was drawn up and signed by the parties át the time the contract was made:
“Augusta, Kan.190..
“Anderson to receive 2100 of Schneider. Anderson to have % corn, Schneider other half in field. Anderson to leave everything on farm, and to give possession October 1/04. Charles O. Anderson.
George Schneider.”
It was alleged that George Schneider was the duly authorized agent of Katie Schneider and signed the memorandum for her, and that his appointment was not in writing. The petition further alleged that at the same time, as a part of the agreement and for the purpose of carrying out the same, Anderson executed a warranty deed conveying the real estate to plaintiff, which was duly acknowledged before a notary public and was then and there deposited by the parties with W. E. Brown, who was to deliver the same to plaintiff upon receipt of the $2100. These, it was alleged, were the only writings executed by the parties in reference to the transaction. Copies of the memorandum and the deed were attached to and made a part of the petition.
The petition alleged that about September 6, 1904, defendant notified plaintiff that he would not carry out the terms of the contract, and other facts were pleaded to the effect that on September -9, 1904, defendant had placed an encumbrance on the land in favor of his mother, which it was averred was without consideration and for the purpose of defrauding the plaintiff. Other facts with reference to other encumbrances were set forth but are not important in the present consideration. It was alleged that defendant had appropriated to his own use the entire crop of corn, in violation of the agreement. Plaintiff averred full performance of all the conditions bn her part, a tender of the entire sum of '$2100 to W. E. Brown, and a demand for the delivery of the deed. The relief prayed for was the specific performance, of the contract, damages for the value of the part of the corn crop which plaintiff claimed, and the marshalling of the proceeds of the sale so as to protect her title from encumbrances beyond the amount stated in the contract.
The question, therefore, is whether the averments of the petition show an agreement or a note or memorandum thereof in writing, signed by Anderson, for the sale and conveyance of the lands. Our statute of frauds at the time this transaction occurred provided:
“No action shall be brought '. . . upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” (Gen. Stat. 1901, § 3174.)
This statute has since been amended by adding the' words “in writing” after the word “authorized.” (Laws 1905, ch. 266, § 1.) The object of the statute is. to protect persons from being imposed upon by parol agreements against their consent; to require written evidence of the substance of the contract, signed by the party to be charged. These purposes' are satisfied whenever there exists a written statement signed by the party containing either expressly or by necessary inference all the terms of the agreement, the names of the parties, the subject-matter of the contract, the consideration, and the promise, so that nothing remains, open to future negotiation.
The memorandum itself, it is contended, is not sufficient to satisfy the requirements of the statute. It recites that Anderson is to receive of Schneider $2100 and is to reserve one-half of the corn in the field, is to leave everything on the farm, and give possession October 1. What the $2100 is for is not shown with sufficient definiteness, and the land itself is not sufficiently described. In Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536, a description of the land as the “Snow farm” was held sufficient. But the ambiguity vanishes and all uncertainty disappears when, in connection with the memorandum, we look at the deed conveying the land to the plaintiff executed by Anderson at the same time and as a part of the same transaction. The $2100 appears at once to be the consideration for the sale of the farm, and there is no longer any uncertainty what farm he is to leave everything on and give possession of October 1.
The statute does not require that the contract shall consist of a single .instrument. “Several distinct and separate writings may be construed together as containing all the terms of the contract, though only one of them be signed by the party to be charged.” (29 A. & E. Encycl. of L. 850, 851, and cases cited. See, also, Pomeroy, Cont., 2d ed., §§ 84, 85, 91.) If from all of them the definite terms of a contract can be gathered it may be enforced notwithstanding the statute, provided the several writings relate to and are connected with the subject-matter of the contract so that they can fairly be said to constitute one transaction. (Ryan v. United States, 136 U. S. 68, 10 Sup. Ct. 913, 34 L. Ed. 447; Charlton v. Columbia Real Estate Co., 67 N. J. Eq. 629, 60 Atl. 192, 69 L. R. A. 394, 110 Am. St. Rep. 495; Johnson & Miller v. Buck, 35 N. J. Law, 338, 10 Am. Rep. 243; Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17; Peck v. Vandemark, 99 N. Y. 29, 1 N. E. 41; Kopp et al. v. Reiter et al., 146 Ill. 437, 34 N. E. 942, 22 L. R. A. 273, 37 Am. St. Rep. 156. See, also, Morrow v. Moore, 98 Me. 373, 99 Am. St. Rep. 410; Brown v. Brown, 33 N. J. Eq. 650.)
In Charlton v. Columbia Real Estate Co., supra, a duplicate lease of lands had been signed by defendant but not delivered. The memorandum of the contract was insufficient by itself. It was held error to refuse to admit the lease in evidence, and the cause was reversed. The court said: “If all the papers, taken together, contain the whole bargain, they form such a memorandum as will satisfy the statute.” (Page 632.)
In Ryan v. United States, supra, the exact question was decided. There was a written proposal by defendant to sell, and a written acceptance by the vendee. The writings, however, were themselves insufficient to take the case out of the Michigan statute of frauds, because there was lacking a description of the land. The vendor had executed and delivered a deed to "the officer of the government for examination, the United States being the vendee. Mr. Justice Harlan, speaking for the court, said:
“Whatever may be said as to the effect of this deed in passing title, if it was delivered only for purposes of examination, or if the previous memorandum of sale had been for any reason fatally defective under the statute of frauds, its recitals, coming as they do from the vendor, are competent for the purpose of showing the precise locality of the property which the memorandum of sale was intended to embrace.” (Page 84.)
The case of Jenkins v. Harrison, 66 Ala. 345, is cited with approval. To the same effect see Leonard v. Woodruff, 23 Utah, 494, 65 Pac. 199. In Thayer v. Luce and Fuller, 22 Ohio St. 62, it was said:
“In this case, upon inspection and comparison of the memorandum and the deed, although no reference is made in either to the other, we find with reasonable certainty that they do relate to the same transaction, and contain fully the terms of a contract of bargain and sale between the parties.” (Page 74.)
In Strouse v. Elting, 110 Ala. 132, 20 South. 123, it was held that where, upon mere inspection of the separate writings, an implication of their connection arises, parol evidence may be admitted to show the connection.
Both the writings here are signed by the party to be charged; they were executed at the same time and as part of the same transaction. Inspection alone shows their connection; and, taken together, we think they are sufficient to satisfy the statute. The memorandum and deed together show the parties, the subject-matter, the promises upon both sides, the price and consideration. These are all that are required. (Pomeroy, Cont., 2d ed., § 87; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Brundige v. Blair, 43 Kan. 364, 23 Pac. 482; Miller v. Railroad Co., 58 Kan. 189, 48 Pac. 853; Newton v. Lyon, 62 Kan. 306, 62 Pac. 1000.)
The courts are at variance upon the question whether a deed alone, when executed- by the vendor and deposited in escrow, to be delivered by the depositary to the grantee upon his paying the purchase-price or performing some other condition, is itself a sufficient memorandum to avoid the statute of frauds. (The cases are cited in 29 A. & E. Encycl. of L. 855.) A majority say that the deed alone is not a sufficient memorandum. But the better reasoning seems to be the other way. The ground usually stated for holding that the deed is not a sufficient memorandum is that, until it is finally delivered or the condition is performed, it does not constitute a contract. The reason given seems to be beside the question, which, in this character of cases, is not, Was there a written contract? but is, Is there a sufficient memorandum signed by the party which is evidence that a contract existed or which tends to prove that fact ? The evil the statute seeks to guard against is the use of oral evidence to prove a contract. This is obviated by the production of the deed which is a memorandum of a contract. In Miller v. Railroad Co., 58 Kan. 189, 48 Pac. 853, the case of Warfield et al. v. The Wisconsin Cranberry Co., 63 Iowa, 312, 19 N. W. 224, was quoted as follows:
“The statute was not intended to apply to written [contracts], but to the enforcement of oral contracts, when properly evidenced, as by the admission in writing of the party to be charged.”
By far the best-reasoned case we have examined is Jenkins v. Harrison, 66 Ala. 345, followed in Johnston v. Jones, 85 Ala. 286, 4 South. 748. It was said in the former case:
“A deed, drawn and executed with the knowledge of both parties, with a view to the consummation of the contract of sale, which, in itself and of itself, embodies the substance, though not all the details or particulars of the contract, naming the parties, expressing the consideration, and describing the lands, though not delivered, and its delivery postponed until the happening of a future event, is a note or memorandum of the contract sufficient to satisfy the words, the spirit, and purposes of the statute of frauds.” (Page 358.)
However, in the case at bar, we are not compelled to look to the deed alone; and, as before observed, we think the memorandum, together with the deed, amply sufficient to satisfy the statute. The demurrer to the petition should have been overruled.
The claim is made by defendant that there was no mutuality in the alleged contract because it was signed by him alone. The want- of mutuality arising from the failure of both parties to sign cannot be successfully pleaded as a defense by the party who did sign. (Guthrie v. Anderson, 47 Kan. 883, 28 Pac. 164, and the same case in 49 Kan. 416, 30 Pac. 459.) The filing of a suit for specific performance constitutes an acceptance and binds the plaintiff. (Forthman v. Deters, 206 Ill. 159, 69 N. E. 97, 99 Am. St. Rep. 145; Ullsperger v. Meyer, 217 Ill. 262, 75 N. E. 482, 2 L. R. A., n. s., 221.)
The judgment is reversed and the cause remanded, with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Smith, J.:
The petitioner was charged by information in the district court of Labette county with the crime, we will assume, of burglary and larceny. The value of the property stolen was alleged to be three dollars.
Upon arraignment the journal entry shows that he pleaded guilty to “felonious” larceny, as charged in the information, and thereupon, upon the motion of the •county attorney, the court ordered that the charge of burglary be, and the same was, dismissed.
Upon this plea the petitioner was sentenced to be confined in the Kansas state industrial reformatory until fully reformed and discharged therefrom as by law provided. This judgment was rendered on February 29, 1904,.and the return shows that the petitioner has ever since been and still is confined in the reformatory pursuant to the judgment. This action is brought by his next friend to secure his release therefrom.
The question whether the information sufficiently charged the crime of burglary is immaterial to, and need not be decided in, the determination of this case, as' that charge was dismissed.
The information charged the petitioner with the offense of petit larceny, under the provisions of section 80 of the crimes and punishments act (Gen. Stat. 1901, §2071), but did not charge any offense under section 806 of that act (Gen. Stat. 1901, § 2Ó73). The portion of the information necessary to the determination of this question reads:
“One A, Spaulding and one ——— did then and" there unlawfully,, feloniously, wilfully and burglar-iously break into a'nd enter a certain building, consisting of a St. Louis & San Francisco box ca’r, . . . said building being located and standing on the south side of the east-Y track; .. ... said building being used as a tool and supply house; . . . . and. did then and there unlawfully, feloniously and wilfully take, steal and carry áway the following-described articles of personal property, tó wit': Ohé pair óf men’s shoes of the value of $2, two towels' of the value of.50c, and five handkerchiefs of the value of 10c each, total 50c, all of the total value of $3.” ^
Section 806, previously referred to, reads:
“If any larceny be committed in any railway depot, station-house, telegraph office, passenger-coach, baggage-, express- or freight-car, or any caboose on any railway in this state, the offender may be punished by.confinement and hard labor not exceeding seven years.” (fcen. Stat. Í901, § 2073.)
It seems hardly necessary to say that a box car dismantled, set off the track and used as a tool and supply house is neither such a building nor such a car as is described or contemplated by section 806.
The defendant pleaded guilty to the larceny as charged, which is petit larceny, and the sentence as for a felony is not authorized and is void. We are prohibited by section 5167 of the General Statutes of 1901 from inquiring into the legality of any judgment of a court of competent jurisdiction in a habeas corpus pro ceeding for the purpose of correcting mere errors or irregularities which may be appealable. But where a court, having jurisdiction of the person and of the subject-matter, exceeds its power and pronounces a judgment not authorized by law — a void judgment— relief may be granted in a habeas corpus proceeding. (In re McNeil, 68 Kan. 366, 74 Pac. 1110.) In the McNeil case the petitioner had been convicted of a misdemeanor, and the penalty prescribed by statute was a fine or imprisonment; the court imposed both penalties. The petitioner satisfied the judgment as to the fine and this court discharged the defendant from the imprisonment imposed. In the case at bar the petitioner was lawfully convicted of a misdemeanor, and although he has apparently suffered a much greater penalty than the law imposes for the offense of which he was convicted he has not paid the penalty imposed by law. No legal judgment has been pronounced against him, and hence no such judgment could be satisfied. We have no power to substitute his illegal confinement in the reformatory for the penalty prescribed by law. (In re Howard, 72 Kan. 273, 83 Pac. 1032.)
It is the judgment of this court that the sentence is void, and, unless a valid judgment be rendered against him within ten days, the petitioner shall be discharged '■from the custody of the superintendent and board of managers of the Kansas state reformatory at Hutchinson, Kan. | [
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The opinion of the court was delivered by
Smith, J.:
At the termination of a trial in a criminal action the appellant was by the verdict of a jury found guilty of the crime of manslaughter in the fourth degree. This verdict was returned in the district court of Finney county on the 23d day of November, 1904, and was approved by the court, and appellant was sentenced to the penitentiary for a term not exceeding two years, the sentence being pronounced on December 31, 1904. From this judgment and sentence he appealed to this court, gave bond, and was given his liberty during the pendency of the appeal. While so at large he was again arrested, tried and convicted in the same court of the crime of burglary and larceny, alleged to have been committed on the 8th day of May, 1905. For the latter crime he was, on the 18th day of July, 1905, sentenced to confinement and hard labor in the penitentiary for a term not exceeding fifteen years, such imprisonment to commence at the expiration of his term in the former case. To test the validity of this judgment the appellant again comes to this court.
The appellant’s brief urges several trial errors, but the record is so lacking in statutory requirements that it was conceded on the presentation of the case that the only question for our consideration is whether this cumulative sentence can be sustained. This question must be answered in the affirmative. (1 Bish. New Crim. Law, § 953; Ex parte Turner, 45 Mo. 331; 19 Encyc. Pl. & Pr. 484.)
It is contended that under the. common law the rule is that successive sentences are concurrent and not cumulative; that a cumulative sentence in this state must be justified, if at all, under section 5695 of the General Statutes of 1901, and that as this case does not technically come within the provisions of the statute the sentence herein is erroneous. The authorities do not uniformly support the contention, but are conflicting.
The Missouri statute is substantially like our own, yet in Ex parte Turner, supra, we find a sentence sustained which is very analogous to the one at bar. In that case a prisoner before the expiration of his term escaped, and while at large committed another crime, for which he was arrested, tried, convicted and sentenced while still under sentence for the first offense. The second sentence was held valid, and it was also held that the term of imprisonment would commence at the expiration of the term under the first sentence.
While our statute only provides for cumulative punishment of an offender who has been convicted of two or more offenses at the same term of court, it indicates the legislative policy and the justice of adapting the punishment to the number as well as to the enormity of crimes committed by one person, and, without regard to strict technicality, it is incumbent upon the courts of the state so to conform the procedure as to make the purpose of the law effective.
It is further contended that a sentence must be so definite and certain that the prisoner and the officers responsible for his custody may know when his term of imprisonment begins and when it ends without consulting any record except the commitment. This is desirable, but not paramount, and must yield so far as is necessary- for the- accomplishment of jus-tive. (See 19 Encyc. Pl. & Pr. 484.) In Ex parte Jackson, 96 Mo. 116, 8 S. W. 800, a prisoner was sentenced for three felonies. The term of imprisonment for the second offense was by the sentence made to commence upon the expiration of the first term, and for the third offense to begin upon the expiration of the second term. He appealed, and the second judgment was reversed. He served out his first term, and thereupon through a habeas corpus proceeding sought to recover his liberty, but the supreme court of Missouri held that under the facts his third term commenced upon the expiration of the first and denied the writ.
The sentence in this case is as certain as to the beginning and ending of the imprisonment imposed as was possible under the circumstances.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for a breach of contract.
The subject of the controversy is titled “Option Agreement” and reads:
“This agreement entered into this 15th day of August 1947, between C. R. Nigh of Yates Center, Kansas and Leon M. Wondra of Lincoln, Nebraska wherein it is agreed as follows:
“That the first party, C. R. Nigh, has and is the owner of certain oil and gas leases on a structure known as the Graneros Structure about thirty miles south of Pueblo, Colorado, consisting of about 9200 acres, more or less;
“That in consideration of ten dollars and the subsequent stated covenants, the said first party agrees to transfer all of his right, title, and interest in and to said leases to the second party, Leon M. Wondra, except 1400 acres which he has chosen, on the condition that:
“1. The second party agrees to drill an oil and gas test well on said structure to- a depth of 3400 feet, unless oil or gas in paying quantities is encountered prior thereto or granite or igneous rock is encountered prior thereto.
“2. The second party to commence drilling operation on or before 20th of October, 1947.
“3. The second party, to deliver to the First National Bank, Pueblo, Colorado, a drilling contract together with the moneys necessary to complete the test well, both to be held in escrow by said bank for delivery of the money, to the contractor upon compliance with the drilling contract.
“4. The second party to exercise this option and deposit money and drilling agreement with bank on or before 24th of September, 1947.
“Witness, our hands and seals the day and year first above written.”
In substance the petition, which includes the contract by reference, alleges compliance by defendant with paragraphs 3 and 4 of the agreement and respecting performance under paragraphs 1 and 2 charges:
“That pursuant to said contracts Defendant commenced a well on said leases on or about 30 November 1947 and proceeded to drill said well according to the terms of said contract. That said well was drilled to the depth of 563 feet. That said Defendant willfully, intentionally, wantonly, maliciously and fraudulently ceased and abandoned the drilling operations aforesaid on or about 13 December 1947 and thereafter removed or caused to be removed the drilling rig and equipment from said well.
“That Defendant has neglected and refused to complete said drilling operations in accordance with the terms of said contract. That Plaintiff has at all times been ready, willing and able to perform each, every and all of the terms of said contract.”
Such pleading then itemizes the damages claimed to have been suffered by plaintiff as a result of defendant’s failure to complete the well to the depth required by the agreement and prays for the recovery of both actual and exemplary damages.
Summarized the answer admits execution of the instrument and alleges compliance with each and all of its provisions, denies the well was abandoned under the conditions and circumstances charged in the petition and asserts that on the contrary it was drilled by defendant to an approximate depth of 563 feet where granite or igneous rock was encountered necessitating, and under the terms of the contract permitting, abandonment of the well.
Along with the answer defendant also filed a cross petition seeking recovery of damages from plaintiff but, as will presently be disclosed, its allegations are not involved and hence need not be related.
In his reply plaintiff denies generally each and every allegation and averment of fact to be found in the answer and cross petition.
With issues joined as heretofore outlined the cause came on for trial by a jury. After plaintiff had adduced his evidence defendant demurred thereto upon grounds, first, that it disclosed the parties were operating under an option, and second, plaintiff at the time of the filing of the action was not in a position to perform under the agreement. After some consideration the trial court sustained this demurrer, discharged the jury, and rendered judgment for defendant. Thereafter, and within time plaintiff filed a motion for new trial which the trial court eventually sustained. It then set aside the judgment it had theretofore rendered.
The appeal is from the order granting a new trial but the real and, we might add, only issue defendant seeks to have here reviewed, is that such action resulted in actually overruling his demurrer to plaintiff’s evidence which he insists constitutes error requiring a reversal of the trial court’s action in sustaining the motion for a new trial and a directed judgment in his favor.
At the outset it can be said defendant is entitled to a review of the issue he thus presents. In Roddy v. Hill Packing Co., 156 Kan. 706, 137 P. 2d 215, we held:
“Where a demurrer to evidence was first sustained and then on a motion for a new trial the original order was set aside and vacated and a new trial granted, such action will be considered as tantamount to an overruling of the demurrer to the evidence and will be so considered on appeal.” (Syl. ¶ 1.)
It should, however, be pointed out that while appellant is entitled to a review of the issue to which we have just referred there is nothing about the unusual circumstances which bring it here to detract from the force and effect of the elementary and long established rule. (Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; Langston v. Butler, 165 Kan. 703, 199 P. 2d 190), that in testing evidence as against a demurrer it is to be given a liberal construction, including the resolving of all doubts against the litigant challenging its sufficiency, and that when so considered if there is any evidence to sustain a cause of action the action of the trial court holding to that effect must be upheld.
Appellant’s first and principal contention is that his demurrer to the evidence should have been sustained because the contract between the parties was an option contract which did not bind him in any particular. His position on this point is well illustrated by the following statement which appears in his brief “We may go so far as to state that under this contract the Defendant could commence the drilling operation and that he could drill 100 feet, or 200 feet or 500 feet, or any other given depth and at any time that he lost faith in his proposition or for any reason wish to withdraw, he could do so without incurring any penalty or liability for Breach of Contract.” The fallacy in the contention he thus makes is demonstrated at the very outset of his argument when after asserting the conditions of the contract are clear he concedes that under its terms all he was required to do was to drill the well to a depth of 3,400 feet unless he struck oil or gas in paying quantities or unless he encountered granite or igneous rock was encountered before it was drilled to the depth required by the contract. Thus it appears, at the very outset, that even on appellant’s own theory there is a controversial question of fact for the jury’s decision. However, we do not propose to base our decision on this point entirely upon the conclusion just stated.
Notwithstanding the concession to which we have just referred appellant insists there is nothing to be found in the instrument which binds him in any way. In support of his position he directs our attention to and quotes from page 243 of the opinion in Connell v. Kanwa Oil, Inc., 165 Kan. 241, 194 P. 2d 950, where there is language to the effect that it is the very essence of an option contract that one party has the choice of concluding or riot concluding a proposed transaction while the other party has no choice. Quite true. That is the rule up to a certain point and we adhere to it. However, appellant entirely overlooks the corollary of the rule, equally well-established, which is that once an optionee exercises the privilege accorded him under the terms of an option agreement the agreement itself ripens into a binding contract and thereafter its provisions are mutual and binding upon all the parties thereto. This is not a statement of any new or startling legal doctrine. Indeed, although somewhat differently stated, we recognize the principle on the very same page of the opinion from which appellant quotes where it is said:
“Was the transaction unilateral and therefore unenforceable? The transaction was based on mutual promises. Where the consideration is merely a promise for a promise all parties to the agreement must, of course, be bound thereby to make it enforceable. It is true appellee was not bound to perform. He did, however, perform and thereafter its provisions became mutual and binding. In other words, the promises thereafter ripened into a binding contract. (Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803.)” (p. 243.)
Other enunciations to the same effect are to be found in Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663; Nieschburg v. Northern, 101 Kan. 110, 165 Pac. 857. Many more decisions adhering to the same general principle could be cited but are not required. It suffices to say the rule recognized in this jurisdiction is in accord with the great weight of authority and supported by statements to be found in all well-recognized legal treatises and textbooks. See 12 Am. Jur. 526, 531, 538, §§27, 37, 45; 17 C. J. S. 451, § 100(e); 58 C. J. S. 356, 601, §§ 166, 225; 51 C. J. S. 613, § 64; Thornton on Oil and Gas 213 to 222, incl., §§ 120, 121, 122.
Under the foregoing authorities, since it is conceded appellant had exercised his option we have no difficulty, upon the examination of the terms of the contract, in concluding that his claim he was under no obligation to drill a well in accordance with its terms must be rejected. Once that point is reached we have even less difficulty in reaching a decision appellee’s evidence does support a cause of action in damages for abandonment of the well under conditions not authorized by the agreement for, whatever the fact may be, the record is replete with evidence which, if believed, supports such a conclusion.
It is next urged that because appellee had assigned the major portion of the leases referred to in the contract to other parties prior to the filing of the action and was himself unable to perform the contract at the time he brought suit against appellant for his breach thereof his evidence failed to establish a cause of action. There might be some merit to this claim if appellee was seeking specific performance of the contract. The short and simple answer to this contention is that this is an action for damages for breach of the contract not for its performance and hence the question whether performance according to its terms is longer possible is of no concern to the person charged with its breach.
Finally appellant insists his demurrer to the evidence should have been sustained because appellee’s testimony discloses that under his assignment of the involved leases to other parties he had retained more of an interest in the entire lease block than he would have had if his contract with the appellant had been performed. This contention requires little attention. Matters pertaining to the extent of damages must be determined by proof and at the present stage of the instant proceedings cannot be determined as a matter of law.
For reasons similar to the one last stated we are not disposed to attempt to comply with a suggestion that we should lay down an over-all rule as to the proper measure of damages for violations of contracts of the nature here involved. Consideration of that question must be deferred until it is presented under more propitious circumstances.
Having determined appellee’s evidence was sufficient to withstand a demurrer it follows the trial court committed no error in granting a new trial.
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The opinion of the court was delivered by
Harvey, C. J.:
This action started in the probate court of Pottawatomie county by Arthur Grobbe and his wife filing a claim in the estate of his mother, Louise Grobbe, deceased, in the sum of $10,-574.78 for food, clothing and care given the mother after the death of her husband, for which it was alleged she had orally agreed to pay. The claim was defended by the administrator of the estate and by Elsie Misamore, the only other heir at law of the deceased. After a hearing the court allowed the claim in the sum of $997.50. The claimants appealed to the district court, where the parties filed formal pleadings. After a hearing de novo, at which much evidence was received, the court found:
“That no contract existed or was ever entered into between the appellants, Arthur Grobbe and Mildred Grobbe, and Louise Grobbe, deceased, as alleged in appellants’ petition; that appellants are not entitled to recover upon quantum meruit in any amount for services rendered as alleged in their petition; that appellants are entitled to recover the value of the food and clothing furnished by appellants to the said Louise Grobbe, deceased, during her lifetime in the sum of $999.00, less payments received of $269.08, or in a total sum of $729.92; and that the appellee, John W. Brookens, as administrator of the estate of Louise Grobbe, deceased, shall pay the costs of this action.”
Judgment was rendered in harmony with these findings. Claimants’ motion for a new trial was overruled and they have appealed from the judgment and from the order overruling the motion for a new trial. The administrator and Elsie Misamore filed a motion for a new trial, which was overruled, and they have appealed from the judgment against the administrator and from the order overruling their motion for a new trial.
Some of the background of this case shown by the record may be stated as follows: Henry Grobbe and his wife, Louise, lived on a farm about eleven miles northeast of Wamego for many years. They were frugal, hard-working German people. Louise Grobbe was born in Germany. She had but little education, could not read, but could write her name. They lived much to themselves and did not visit with their neighbors nor attend social gatherings. He transacted all of the business, even to the buying of household needs. They took no newspapers until their first child, Elsie, had learned to read at school, when they subscribed to a weekly farm paper. Elsie married when she was twenty-one and she and her husband had .lived on a farm nine miles northwest of Wamego for twenty-five years at the time of the trial of this action. Sometime after her marriage, not definitely shown by the record, Henry Grobbe bought a residence property in Wamego and he and fits wife lived there until the time of their respective deaths. Arthur Grobbe, six or eight years younger than Elsie, grew up on the farm and was married at some date not shown, and appears to have lived on the farm and operated it, but at sometime he and his father, Henry Grobbe, became estranged and he moved from the farm. They had nothing to do with each other thereafter. On August- 19, 1938, Henry Grobbe executed his will, to which his wife duly consented, by which, after providing for the payment of his debts and funeral expenses, he gave all of his property to his wife, Louise Grobbe, for her life, with power of sale of any part of it she deemed necessary to provide the means for her care and comfort, and gave the remainder to his daughter, Elsie Misamore. He gave to his “son Arthur Grobbe any and all sums he may be owing me at the time of my death, and nothing more.” Henry Grobbe died June 9,1940. Three days later Louise Grobbe filed in the probate court a petition to admit to probate her husband’s will. After due notice and hearing the court on August 5, 1940, made an order admitting the will to probate and appointing C. B. Hilliard executori He duly qualified and administered the estate. On April 9, 1941, Louise Grobbe and Arthur Grobbe filed a notice of appeal from the order admitting the will to probate. Pending that appeal and on August 22, 1941, Louise Grobbe, as first party, Arthur Grobbe and his wife as second parties, and Elsie Misamore and her husband as third parties, each represented by able counsel, entered into a written “Stipulation of Family Settlement,” which, so far as here pertinent, provided that the appeal from the order probating the will should be dismissed; that the will of Henry Grobbe should stand and remain in force as probated; that Elsie Misamore and husband should execute a deed to Arthur Grobbe of a one-fourth interest in the home place in Wamego and the farm, subject to the life estate with power of disposal in Louise Grobbe, and that at the death of Louise Grobbe there should be paid in cash on hand arising from the rents or sale of real estate and from the real estate itself, the funeral expenses and any unpaid bills of Louise Grobbe.
Louise Grobbe continued to live in the home in Wamego until her death intestate March 18,1947, leaving her son, Arthur Grobbe, and her daughter, Elsie Misamore, as her sole heirs at law. Eleven days later Elsie Misamore filed in the probate court a petition for the appointment of an administrator of her estate. Arthur Grobbe filed and answer thereto opposing the appointment. After a hearing and on April 26, 1947, the court made appropriate findings and sustained the petition and appointed John W. Brookens as administrator of the estate. He duly qualified and is still acting. The inventory filed listed items of personal property appraised of the aggregate value of $469.10.
After the appeal from the judgment of the probate court upon the claim here in question to the district court the parties filed formal pleadings. Arthur Grobbe and Mildred Grobbe, his wife, filed a petition which alleged the estate of Louise Grobbe, deceased, was being administered in the probate court; that Elsie Misamore and Arthur Grobbe are the only heirs at law; that John W. Brook-ens is the duly appointed, qualified and acting administrator, and “that on or about September 1, 1941, said Louise Grobbe entered into an oral agreement with petitioners Arthur Grobbe and Mildred Grobbe whereby they were to keep themselves available at all times and perform any and all services and care required by her and that in consideration thereof the said Louise Grobbe agreed to pay the said petitioners the sum of $150 per month; that in addition thereto the said Louise Grobbe also agreed to pay said petitioners for groceries and clothing furnished by them for her”; that Louise Grobbe on numerous occasions stated that she was to pay and would pay petitioners for their services and for food and clothing furnished; that beginning about September 1, 1941, the petitioners cared for Louise Grobbe and furnished her food, clothing and care at their own expense; that they took care of the yard and made incidental repairs about her home and were on call when needed by her, and stayed with her and cared for her whenever requested, preparing meals for her in her illness and assisted with her business matters; that Louise Grobbe spoke only German and broken English and it was difficult for her to use the telephone; that petitioners assisted her in ordering her groceries and telephoning and furnished much of it at their own expense; that she was subject to occasional periods of despondency, which made it necessary for the petitioners to be available to nurse and care for her at those times, even losing jobs in order to assist and care for her; that the services and property were furnished pursuant to the aforesaid contract and continued until her death; that petitioners are entitled to $150 a month for 661%o months, or the sum of $9,940, which sum is also the fair and reasonable value of such services, and that during all of that time petitioners furnished food, clothing and other necessaries to Louise Grobbe as the same were required; “however, the petitioners are unable to furnish an itemized statement of the articles of food and clothing furnished but allege that the amount expended by them for such articles and the fair and reasonable value of such necessaries was in the sum of at least $15 per month for 66J%o months or the sum of $999, making a total of $10,989 for services and necessaries; that the said Louise Grobbe made payments periodically to these petitioners which payments were as follows, listing dates and amounts paid aggregating the sum of $414.22. Deducting the above amount there remains a balance unpaid of $10,574.78,” for which sum they pray that their demands against the estate be allowed.
The administrator answered, admitting the allegations of the petition as to the parties, but denied “the allegations of the Petition concerning the alleged oral agreement as set out in the Petition. However, said Administrator has been advised and therefore believes that the said Arthur Grobbe and Mildred Grobbe, his wife, assisted at times in caring for the said Louise Grobbe from. and after September 1, 1941, up until the time of her death, but that the services performed by them were such services as are ordinarily performed by a child for a parent and for which there is no pre sumption that such services were to be paid for by the parent; and that the sum claimed for such services, as set out in the Petition, is far in excess of the fair and reasonable value of the services so rendered, even if they had been performed by some person who was not a member of her family.
“For further answer said Administrator states that he has no means of knowing whether or not the claimants herein furnished food and clothing to the said Louise Grobbe at their own expense, or whether they performed any services in connection with the work about the home, for which they were not paid, and therefore, denies the allegations of the Petition relative thereto.”
The prayer was that strict proof be made of the alleged oral agreement, and of the items of food and clothing, the costs and items alleged to have been furnished, and that the court find and adjudge the sums paid by Louise Grobbe were in full payment.
Elsie Misamore filed an answer which contained a general denial of matters not admitted; admitted the allegations of the petition as to the parties, denied the existence of the oral agreement between Louise Grobbe and the petitioners alleged in the petition, and alleged if such an agreement was made it “was an unconscionable contract and this Court, sitting in equity, should refuse to enforce the same for the following reasons, to-wit: That on the date of the alleged contract the said Louise Grobbe was completely dominated by and under the strong persuasion and influence of the petitioners; that the sum of $150 per month was grossly excessive as compensation for the services to be performed by the petitioners under the alleged agreement; that the said Louise Grobbe was inexperienced in any and all matters of business and was not fully aware of the consequences of her acts and not permitted to consult with or receive the advice of her friends before entering into the alleged agreement, and the making of any such agreement on the part of the petitioners with the said Louise Grobbe was the taking of an unconscionable advantage of her.” The answer further denied that petitioners furnished to the said Louise Grobbe the items of food and clothing, and alleged that for any food and clothing furnished by them they had received compensation in full. It further alleged that during all of the time Louise Grobbe was able-bodied physically, able to perform her household duties, and that she did so and took care of herself without the assistance of the petitioners; that petitioners were absent from the premises of Louise Grobbe for long periods of time and were employed in various gainful occupations ; that if Louise Grobbe made the payments to petitioners, as alleged, such payments were in full and complete settlement for all things and services furnished to her by petitioners. The answer further set up the “Stipulation of Family Settlement” and alleged the oral agreement was in violation thereof, and that the intention of the agreement was that it should be in full and complete settlement of all the rights of the parties. It was further alleged that the services alleged to have been performed by the petitioners were such as are ordinarily performed by a child for a parent and for which there is no presumption in law or equity that such services are to be paid for by the parent, and that the sums prayed for by petitioners are in excess of any amount that would be fair and reasonable.
The petitioners replied to the answer of Elsie Misamore with a general denial, except it admitted the execution of the “Stipulation of Family Settlement” and alleged that under the terms thereof Louise Grobbe had power to mortgage or sell the real estate and thus had the resources subject to her disposal with which to meet the terms of the agreement alleged. It replied also to the answer of the administrator, which reply was a general denial.
When the case was called for trial on November 6, 1947, a trial by jury was waived and a trial was had to the court. Louise Grobbe will be referred to as Mrs. Grobbe and the wife of Arthur Grobbe as Mildred. The petitioners offered no direct evidence of the making of the oral agreement between them and Mrs. Grobbe on or about September 1, 1941, alleged in their petition. They did produce witnesses who testified to statements Mrs. Grobbe had made to them. This testimony may be summarized as follows:
Arthur Hoffset lived near Wamego and was engaged as a farmer and truck driver. He delivered wood to Mrs. Grobbe in 1939 and coal in 1942 and 1943. On October 7, 1943, he delivered coal. Arthur and Mildred were present. Mildred was working around the house. Arthur helped him put the coal in the bin. He was not employed nor paid by the witness. After the coal was in the bin he talked with Mrs. Grobbe. She said Mildred worked hard and could do almost anything and she had promised to pay them for their work. She thought |150 would be about right.
“State anything else she said. A. She said she had promised to pay them $150 a month for helping and taking care of her.”
Arthur and Mildred had worked for him at different times, sometimes one and sometimes the other. Mildred helped him fix fence and at one time helped him paint a truck.
John Zima lived at Emmett and was engaged in farming and buying hogs and cattle. One spring, two or three years before the trial, he went to Wamego to look for Arthur. He did not find him and went to Mrs. Grobbe’s home and asked where Arthur was. She said she did not know where he went.
“She asked what I wanted and I said I would like to hire him to help out on the farm. She said she didn’t think he would go. She said he was working and taking care of her and she did not suppose I would want to pay him as much as she was paying. I told her I would pay $125 a month and she said she was paying $150 and he would not come.”
Mrs. Joe Novak lived at Council Grove. She lived next door to Mrs. Grobe from September, 1942, to June, 1943, and became acquainted with her and with Arthur and Mildred.
“Mrs. Grobbe said that Arthur and Mildred looked after her, and she did not know what she would do without them, she hoped they would get their share of the estate.”
Mrs. Charles Cordts, Sr., lived in Wamego across the street from Mrs. Grobbe and visited her about once a week. She had conversations with her about Arthur and Mildred. On Decoration Day, 1946, she and her husband visited with Mrs. Grobbe, when she talked about her children.
“Q. What more did she say in regard to Mildred and Arthur? A. Said they were taking care of her and she intended to pay for it and said $150 per month.”
“Q. To refresh your memory did she ever say anything to you about an agreement or promise to pay for their services? ... A. She said it was her intention they should have $150 per month, that’s what she wanted done.”
John Nicklas, a cousin of Arthur’s and the son of Bertha Nicklas and her husband spoke of an occasion when he was at Mrs. Grobbe’s about a year and a half after her husband’s death.
“Q. Do you remember a statement Mrs. Grobbe made on that occasion in regard to Arthur and Mildred? ... A. She said she had made an agreement with them they were to take care of her the rest of her life and that they agreed to do' it and she had agreed to pay them $150 a month and I believe it was witnessed by Dr. Bruner.”
Elmo Polensky, Mildred’s sister, was acquainted with the family. She remembers an occasion on a Sunday evening in the fall of 1941 oi' 1942. Mildred was washing and Arthur was fixing a clock in the kitchen. In referring to Mildred and Arthur Mrs. Grobbe said:
“If she needed help they offered to take care of her. She said she paid them part but could not give them all of it; that she promised they could have $150 a month for taking care of her, felt they should have that much but she could not give it to them now.”
Lillian Phillis, Mildred’s sister, lived with Mildred and Arthur part of the time in 1943, 1944 and 1945 while her husband was away in the service. She spoke of an occasion when “Bud,” the son of Arthur and Mildred, was operated on for appendicitis in Topeka and she had taken Mildred to Topeka to see him and returned to tell Mrs. Grobbe how he was.
“She was glad to know he was getting along all right. She also mentioned how good Arthur and Mildred were to her and that they were doing everything they could for her; that they had agreed to take care of her and she had promised to pay them, pay part now and the rest when she could get it and she thought $150.00 per month would be right for them.”
Bertha Nicklas, Mrs. Grobbe’s sister, testified by deposition. She lived at Vliets and she and her husband visited Mrs. Grobbe about once a month. She and her husband would go there before noon, have dinner and leave about two or three o’clock. She talked in German with Mrs. Grobbe about Arthur and Mildred.
“Q. Now did Mrs. Grobbe ever say anything about paying the children for their work there? A. Ja. She said she paid them some and she would pay them more.”
August Nicklas, the husband of the previous witness, testified about the same as to their visits to Mrs. Grobbe.
“Q. Did she ever say anything about paying them for their work. A. Ja. She said she give them a little but she wanted to give him some more.
“Q. Did she say anything about paying Mildred, or were they both included in the same conversation? A. Probably in the same, I don’t know.
“Q. Did she make those statements to you more than once? A. Oh, ja, ja.
“Q. How frequently? A. Pretty near every time I was there.
“Q. That she had paid them some and wanted to pay them more? A. Ja.”
Mrs. Minnie Wrosch, Mrs. Grobbe’s sister, lived near Wheaton. She visited Mrs. Grobbe after her husband’s death, usually in the daytime. Mrs. Grobbe would say Arthur and his wife were pretty good to take care of her. She had seen Mildred there and also saw Arthur after Mrs. Grobbe’s arm was broken. She was not asked what, if anything, Mrs. Grobbe had said about paying Arthur and Mildred.
In the items of the petition which made up the sum of $414.22, for which petitioners had been given credit, Mrs. Grobbe’s check, dated December 27, 1941, to Arthur Grobbe for $80 bore the notation for “one month’s salary”; also a check dated April 18, 1942, to Mildred Grobbe for $65.14, which bore the notation, “one month’s salary.”
In the “Stipulation of Family Settlement” of the estate of Henry Grobbe it was agreed that there should be delivered to Mrs. Grobbe the full title to a 1926 Chrysler automobile and also to household goods, utensils and implements used in the home as her sole and separate property. When the estate of Henry Grobbe was settled there was a balance to be distributed of $410.54, which was paid to Mrs. Grobbe. After the estate was settled her only income was from the rents of the farm. The executor of the estate had leased the farm to Lawrence Osborne for one year, beginning March 1, 1941 for $400 cash rent, the tenants to furnish Mrs. Grobbe with wood at a dollar a rank [rick] delivered. Then a real estate man drew a lease from Mrs. Grobbe and Arthur to Mr. Osborne for $425 per year, the tenant to furnish Mrs. Grobbe as many as twenty-five ricks of wood per year, to be credited upon the lease, at one dollar per rick. The payments were to be made $200 in December and the balance in Februray. The first two or three payments he made on that lease were made to Arthur or Mildred. Thereafter he was told to make the payments to Mrs. Grobbe, and at her request he did deposit them in the bank for her. Aside from the property and money she got from her husband’s estate she had no income other than the rent from the farm.
Arthur Grobbe testified that he worked at various places all the time covered by his claim. As a workmen he. was classified as a common laborer. From September, 1941, to April, 1942, he worked for Lawrence Merts on a farm near Wabaunsee. He then worked on REA and on different jobs about town until the fall of 1942, when he worked for about six weeks as a carpenter at Fort Riley. He then worked for the township the rest of the winter and at this and other work about town until October, 1943, when he went to work for Mr. Ulrich on a farm. This continued until January, 1945. He then worked on the road until July of that year, when he went to work on the Dan Casement ranch four miles north of Manhattan, where he worked until July, 1946. After that time he was working on jobs about Wamego and upon a house he was building for him self and which he moved into in October, 1946, but which was not then fully completed. A number of witnesses testified to seeing Arthur working about Mrs. Grobbe’s place mowing the lawn, splitting the wood, and doing other work about the premises. Usually that was in the evening. When he was working away from Wamego he took his Sundays off and went to Wamego. Also he sometimes got off for a day or part of a day once or twice a month. In February, 1947, Mrs. Grobbe fell and broke her arm. She went to a doctor, who treated it and put on a splint, which she wore until her death, March 18. During a part of that time, at. least, Arthur stayed at Mrs. Grobbe’s home and took care of her. A witness testified to being there when he was cooking a meal, and there was testimony that Mrs. Grobbe said she hoped to get well soon so Arthur could go back to his work.
Mildred lived on the farm with her husband when he was working for Merts and also when he was working for Ulrich, and perhaps when he was working on the Casement ranch. When Arthur was working for the township or county or on other jobs they lived in Wamego. Much of the time Mildred, while living in Wamego, worked at a grocery store or at a restaurant, or in various homes in Wamego, where her services seemed to be in demand. At some time she left her electric washing machine and her electric refrigerator at Mrs. Grobbe’s because where she was living there was no electricity. It appears to have been her practice to take her own washing to Mrs. Grobbe’s and to do Mrs. Grobbe’s washing with hers. Sometimes she would go there of an evening and on some occasions stayed all night. Perhaps both she and Arthur did so on occasions.
There was evidence that Mrs. Grobbe was able to do her housework and that she was a neat housekeeper. She continued to grieve over the death of her husband and at times was somewhat despondent because of that fact and the fact that her daughter did- not visit her. It appears the daughter, Mrs. Misamore, did visit with her — in fact went and stayed several weeks at a time on two occasions — until 1941, when they had the trouble over their father’s will. After the family settlement she and her brother Arthur were estranged. She thought Arthur was controlling the mother’s activities and it appears she did not go to see her mother.
With respect to food and clothing furnished Mrs. Grobbe by the petitioners, Mr. Harold Miller testified that he was working in the grocery store in Wamego from 1941 to the time of Mrs. Grobbe’s death; that he took orders from over the telephone. She was hard to understand and sometimes there would be some confusion in the order. Arthur used to bring her to the grocery store and sometimes he would pay for her groceries and sometimes she would pay for them. Mildred sometimes brought her to the store and took the groceries for Mrs. Grobbe on her own account.
Mrs. Knecht lived in Wamego, across the alley from Mrs. Grobbe’s home, and worked at Larson’s which appears to have been a clothing store. Mildred or Arthur would come in the store once or twice a month with Mrs. Grobbe and they would purchase long-sleeved cotton dresses and underwear and some bedding and toweling that was for the use of Mrs. Grobbe. Mildred would pay sometimes with checks signed by Mrs. Grobbe and sometimes in cash.
Mrs. E. L. Hartloff and her husband operated a grocery store in Wamego in 1944 and 1945. A part of that time Mildred and Arthur lived on the Ulrich farm and part of the time at the home of the mother of the witness. Mildred did delivering and helped in the store about four days a week. Mildred had an account at the store. She delivered some groceries to Mrs. Grobbe that were charged to her account. A few times Mildred brought in a check from Mrs. Grobbe which was applied on her account. She did not remember the number or the amount of those checks. Other witnesses saw Mildred take groceries to Mrs. Grobbe’s home.
Harry Stone testified he lived in Wamego and was in the restaurant business; that Mildred worked for him as a waitress in the summers of 1941, 1942 and 1943. Mrs. Grobbe would call on the telephone and ask for Mildred and sometimes she would quit work and go to Mrs. Grobbe. This interfered with the work at the restaurant and on at least one occasion he fired her because he could not depend on her, but later he had her come back. Her hours of work were from six in the morning until two p. m. and then from five until eight in the evening. On one occasion he took her with his wife to Kansas City, where she bought wearing apparel of the kind suitable for Mrs. Grobbe. Mildred went with Mrs. Stone to Manhattan, where they bought canned goods at wholesale. Mildred bought two cases at a time, five or six times, that would cost from $3.50 to $4.50 a case, which she took home to her mother-in-law.
Mrs. Edgar Miller lived in Wamego and she and her husband and son operated a grocery. She knew Mrs. Grobbe; talked with her over the telephone. She spoke broken English and when ordering she would get mixed in what she wanted. Mrs. Miller knew Arthur and Mildred and had seen them at the store with Mrs. Grobbe. They usually brought her down. They would come down at the end of the month and she would pay her bill. Arthur and Mildred also got things for her. Mrs. Grobbe paid for her groceries.
Lillian Phillis testified she knew of her own knowledge that Mildred bought clothing for Mrs. Grobbe; mentioned one time when she was with them in Topeka, where she bought some things at Montgomery Ward’s — a jacket and some long-sleeved dresses which she knew were taken to Mrs. Grobbe.
Mr. Osborne testified to having leased the farm and to payments made thereon and said he delivered an average of about fifteen ricks •of wood a year to Mrs. Grobbe. He did not have occasion to go to see Mrs. Grobbe more than once or twice a year. About September, 1946, he received a call from Mrs. Grobbe over the telephone and she said she wanted to see him. He went to her place the same day.
"She wanted to know what I thought about selling the place . . . and I told her I thought it advisable for her to keep the place. . . .
“Q. In that conversation did she mention Arthur and Mildred? A. She said they wanted her to sell the place.”
She made some statements that caused the witness to think she seemed to be provoked with them, although she did not use that word. He talked it over with her and told her she had to get along with someone. He advised Mrs. Grobbe not to sell the farm if she had sufficient to live on. In the course of the conversation she told him that she didn’t have any money, and though the rent was not due he went to the bank and made a deposit for rent. About a week later Mildred called him and said Mrs. Grobbe wanted some wood and he took a load to her. In the course of the conversation “she said they had washed at her place a year or something like that. She wanted to know if I didn’t think Arthur should split the wood. I told her that was out of my line. She continued and I said if you can afford to pay Arthur that is all right.
“Q. Did she say anything about paying him? A. S'aid she had paid him on the wood. . . .
“Q. Did Mrs. Grobbe ever tell you she owed anyone? A. No.
“Q. Did she tell you about paying anyone? A. Told me she had paid Arthur for splitting this wood.
“Q. Do you know who cut the grass around the house? A. She told me Arthur did. . . .
“Q. Did she tell you Arthur and Mildred did other things around there for her? A. She said Arthur took care of the wood and cleaned up the yard for her, said they would have to come up every two weeks and go down town with her to pay her bills up.”
When Arthur Grobbe was on the witness stand his attorney asked if he had an opinion as to the fair and reasonable amount that was expended by himself and wife for groceries and clothing for Mrs. Grobbe; also what, in his opinion, was the fair and reasonable value of the services of himself and wife to Mrs. Grobbe from September 1,1941, to the time of her death. The trial court sustained objections to these questions. At the hearing of the motion for a new trial Arthur Grobbe’s affidavit was offered, in which he stated that the reasonable amount spent for groceries and clothing was $15 per month and that the fair and reasonable value of the services rendered by himself and wife from September 1, 1941, to the time of her death was $150 per month.
In this court the appellants, Arthur and Mildred Grobbe, present as the questions of law to be determined:
“1. Whether or not claimants’ evidence was sufficient to permit them to recover upon an express contract, agreement or mutual understanding.
“2. Whether or not the claimants are entitled to recover on an implied contract if they did not prove sufficiently the express contract.
“3: Whether or not the Trial Court should have excluded evidence of the claimants as to the value they placed upon their services.”
Upon the first point the journal entry shows the court found “from the evidence that no contract existed or was ever entered into between appellants, Arthur Grobbe and Mildred Grobbe, and Louise Grobbe, deceased, as alleged in appellants’ petition.” In their brief appellants pray:
“The evidence in this case clearly discloses that there was a contract, a promise and an understanding that the services which Mildred and Arthur Grobbe rendered were to be paid for by the decedent at the rate of $150 per month, . . . The transcript contains evidence of eight witnesses who testified as to this agreement.”
We have set out the testimony of these witnesses. There was no witness to the making of the contract. It is true that the testimony of some of the witnesses, standing alone, tends to support the view that Mrs. Grobbe understood such a contract had been made. The testimony of the others tends to disprove it. It contained such expressions as: That was what she wanted to do; or what she thought would be about right; or that she wanted them to receive their share of the estate; or simply that she had paid them some and that she wanted to pay them more, without stating any amount. The fact that on December 27, 1941, Arthur accepted a check for $80 for “one month’s salary” tends to disprove any contract for $150 per month. It was the function of the trial court to weigh the testimony here referred to and all other evidence shown by the record that had any bearing upon the question; to pass upon the credibility of witnesses and to weigh their testimony. We cannot say the court erred in its conclusions upon those questions. In their reply brief appellants rely heavily upon the case of In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253, 166 Kan. 159, 199 P. 2d 793, but in that case there were three competent witnesses present at the time the contract was made. Here there were none. We think the case is not helpful to appellants.
Respecting the second question presented for our decision as to whether appellants are entitled to recover on an implied contract if they did not prove sufficiently the express contract, appellants in their brief here argue “that even if the court should find that there was no express contract, promise or understanding between the parties, still the claimants should be allowed to recover the reasonable value of their services on the theory of quantum meruit, or an implied contract.” Upon this point the court, as shown by its journal entry, found, “that appellants are not entitled to recover upon quantum meruit in any amount for services rendered as alleged in their petition.”
Appellants concede it is well settled by the authorities that when children live in the home with their parents as a part of the family they cannot recover for their services in the absence of a specific contract providing payment therefor, but contend this situation does not apply when the children are grown, have a home of their own, live away from their parents, but do perform services for them, in which event it is argued there is a presumption to pay for such services, citing 28 R. C. L. 680, 681, and Templeton v. Biegert, 79 Kan. 638, 100 Pac. 654, and authorities there cited. It may be said that both rules are predicated upon presumption, that is to say that when one resides in the home of the parents or near relative it is presumed the services to be performed by him are not to be compensated for unless there is a contract to that effect, while if the person performing the services lives away from the one for whom the services are performed there is a presumption to pay for the services performed. Either presumption may be overcome by proof. We shall not undertake to analyze either of these presumptions further than to say that under all the facts and circumstances shown by the evidence in this case, and the further fact that in their petition the appellants predicated their right to recover upon the oral contract, we think the court did not err in its conclusion upon this point.
Upon the third point, whether the court erred in excluding the evidence of Arthur as to the value he placed upon the services, there is authority to the effect that one suing on quantum meruit for services performed ordinarily may be permitted to testify to his view of the value of his services. The case was tried to the court and the court had Arthur’s views of that subject in his affidavit upon the motion for a new trial and no doubt gave it such consideration as he thought it was entitled to receive in view of all the facts and circumstances of the case as shown by the evidence. More than that, claimants in their petition predicated their right to recover upon contract. The result is, we find no error in the ruling of the court upon the appeal of Arthur and Mildred Grobbe and its judgment is affirmed.
We turn now to the appeal of Elsie Misamore and John W. Brookens, administrator of the estate, from the judgment of the trial court which allowed the claim of Arthur and Mildred Grobbe for food and clothing furnished Mrs. Grobbe during her lifetime in the sum of $729.92. The appellants contend no substantial, competent evidence justified the court in making that allowance. The point is well taken. Hereinbefore we have abstracted the testimony of the merchants from whom groceries were purchased to the effect that Mrs. Grobbe paid for her groceries. In addition to the evidence previously set out there was introduced the items making up the bank account of Mrs. Grobbe, including her checks and receipted bills. This showed total expenditures for groceries of $663.78, or $10.13 per month, over the term. It is argued by the claimants that this was grossly inadequate for her needs. There is no evidence on that point and we cannot take judicial notice of it. There is testimony of the merchants to the effect that sometimes Mildred bought groceries which were delivered to Mrs. Grobbe’s home which were charged to Mildred’s account; but as against that there was testimony that in some instances Mrs. Grobbe’s check was used by Mildred to pay on her account. All of this would tend to show that Mrs. Grobbe paid for groceries bought for herself. There is the matter of the canned goods, ten or twelve cases at $3.50 to $4 per case, which Mildred purchased while working for Mr. Stone and could get them at wholesale and which were taken to Mrs. Grobbe’s home. There is also evidence, when at Kansas City or Topeka, she bought some clothing for Mrs. Grobbe. There is no evidence that Mrs. Grobbe did not pay Mildred for these. The record shows a check to Mildred on February 23, 1943, of $47.83, another on April 3, 1944, of $15, and another on January 20, 1944, of $42.50. Apparently the judgment of the court was predicated alone upon the allegations of claimants’ petition that they had furnished Mrs. Grobbe groceries and clothing to the extent of $15 per month throughout the 65.6 months. This is insufficient.
The result is the judgment for petitioners for food and clothing furnished Mrs. Grobbe is not based upon any substantial competent evidence and should be reversed with directions to render judgment for the administrator and Elsie Misamore.
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The opinion of the court was delivered by
Thiele, J.:
This was a proceeding in mandamus to compel a transfer of bank stock. An alternative writ was issued. The defendants filed their motion to quash that writ, and that motion being overruled, they have appealed to this court.
Insofar as it is necessary to note, the motion for the writ alleged the status of the parties; that the defendant bank was chartered in 1928 and E. M. Wentworth at the time of his death owned thirty shares represented by certificate No. 180 dated July 2, 1929, for one share; by certificate No. 183 dated December 5, 1929, for nineteen shares; and by certificate No. 186 dated February 24, 1930, for ten shares; that Wentworth died July 6, 1944, and his will was duly admitted to probate in the probate court of Russell county; that under its terms Ellen B. Wentworth, the plaintiff, was bequeathed the stock; that administration of the estate was closed July 15, 1946, and the shares of stock t^fere dellvex.Mpo her pursuant to the bequest and the orders of the próbaík cqurt, and by' reference the probate court records were made part Q.f/the ^motion; that the shares were not presented to the bank for transfer on its books until March 3, 1948; that on January 7, 1948, at the regular annual meeting of the stockholders of the bank, by a majority vote, the plaintiff dissenting, the bylaws were amended to read:
“Section 20.
“Where the title or ownership of any share of stock of the corporation passes by Will or inheritance to beneficiaries, such share or shares, may be issued to any fiduciary, heir, or legatee legally authorized to act; Provided, That such transfer does not conflict with Section 21 of these by-laws and such fiduciary, heir or legatee may receipt for such stock and shall be allowed to vote the same at any meeting of the Stockholders by furnishing the Bank proper credentials.
“No fractional shares of stock in this corporation shall be issued.
“Section 21.
"Paragraph 1
“No stockholder shall sell or assign any shares of stock except to Stockholders of record on the books of the Bank, and who, in addition to being stockholders, shall have been bona-fide customers of the Bank for a period of not less than one 'year prior to said sale or transfer without first offering such stock to the Board at the price desired by the seller. Should the Board fail to accept such offer within five days from the date thereof, such stockholder shall then be permitted to sell said stock to any person selected by him, provided, however, that said stock shall not be sold at a less price or on better terms than offered to the Board.
“Paragraph &
“No stock shall be issued to surviving heirs at law or beneficiaries under Last Wills and Testaments of deceased stockholders or to Beneficiaries under Trusts, unless
“(a) Such heirs or beneficiaries reside within 50 miles of the City of Russell, Kansas.
“(b) If the heirs or beneficiaries reside more than 50 miles from the City of Russell, Kansas, then that either the decedent or the creator of the Trust shall have been actual bona-fide customers at least one year prior to the date of the death of the decedent or the creation of the trust, provided, that any such estate, trusts and/or beneficiaries shall have the right of disposing of such stock under the same limitations as imposed on living stockholders in Paragraph 1, of this section.
“Paragraph S
“All stock issued after the date of the adoption of these by-laws shall have paragraphs 1 and 2 of Section 21 printed on the stock certificate and all outstanding certificates shall be surrendered by the owners for re-issu anee into new certificates. No dividends shall become payable on any shares without said parts of Section 21 printed thereon and all old stock certificates shall be surrendered by the present stockholders for re-issuance.
"Paragraph 4
“The secretary and treasurer shall not issue any new stock to any new owners without permission of the Board.
“Paragraph 5
“It is the intent of the Stockholders under the terms and provisions of this section to prevent more stock getting into the hands of non-resident owners who do no business with the bank.”
It was further alleged that at a special meeting of the stockholders of the bank held February 10, 1948, for the purpose of amending the charter, by a majority vote, plaintiff voting in the negative, the charter was amended to include verbatim the language used in bylaw 20 and the first paragraph of bylaw 21 as quoted above. We note there is no allegation whether the amendments to the charter were ever submitted to the state banking board for its approval.
It was further alleged that plaintiff was eighty-three years of age and desired to secure a transfer of the stock to herself and her children and that she caused the certificates to be endorsed for one share to be transferred to her son, F. R. Wentworth, who resided in Russell, had done business with the bank for more than one year prior to her demand, but was not a stockholder of record; for one share to her daughter, Ruth, who resided in California, had not done any business with the bank within one year prior and was not a stockholder of record; and for twenty-eight shares to herself, and that she lived in Russell, did business with the bank, but was not a stockholder of record; that she.presented the stock certificates to the officers of the bank and requested reissuance of the thirty shares as above set forth upon the original forms and free and unencumbered by the restraints, restrictions, limitations and inhibitions required under the amended bylaws and charter, and that the bank, through its officers, refused to make such a transfer, and that such refusal was wrongful, arbitrary, capricious, illegal and willful, and designed and intended to deny her the full use and enjoyment of her bank shares.
It was then alleged in detail that the amended bylaws limited her rights as to the class of persons who could take from her, restricted the price at which she could sell, denied her the right to transfer her shares either by sale, gift or bequest, to her own children, or to procure a transfer to herself, and that she will suffer irreparable damage and injury if the bank is not directed to make the transfers requested; that the amended charter and bylaws constitute a deprivation of property without due process of law in violation of her rights under the fourteenth amendment to the constitution of the United States, a restraint of trade, devalue her stock by impairing and destroying the negotiability of her certificates of stock, deprive her of her right to freely bequeath, assign or sell her property, and of her constitutional rights under section 17 of the bill of rights to the constitution of Kansas, and that such charter and bylaws are willful, capricious, arbitrary, unreasonable, inequitable, unlawful and void.
The question presented by the appeal is whether the trial court erred in denying the motion to quash the writ. In discussing that question we shall refer to the parties as the plaintiff and the bank.
The bank first contends that the motion for the writ does not show upon its face that the plaintiff is entitled to maintain the action. The bank interprets the motion as alleging that E. M. Wentworth owned the thirty shares at the time of his death; that he died leaving a will under which the shares were bequeathed to the plaintiff; that the estate was closed and the stock was delivered to plaintiff who did not cause it to be promptly transferred to her; that the shares, when tendered for transfer were not accompanied by a proper written assignment, proof of plaintiff’s appointment as executrix, and a certified copy of the will and of the order of the court directing the transfer. It is to be borne in mind that a motion to quash an alternative writ is equivalent to a demurrer (see, e. g., Citizens Utilities Co. v. City of Goodland, 146 Kan. 172, 173, 69 P. 2d 318; Kansas City Life Ins. Co. v. Banaka, 150 Kan. 334, 336, 92 P. 2d 63; Gafney v. Wilson County Hospital, 150 Kan. 945, 96 P. 2d 613). Under familiar rules a petition attacked by demurrer is entitled to a liberal interpretation. We are of the opinion that the allegation that E. M. Wentworth owned the shares in his lifetime, bequeathed them to plaintiff by his will which was duly admitted to probate in the Russell county probate court and that on final settlement that court ordered the shares delivered to her, sufficiently alleged her ownership. It may be conceded the bank might be warranted in demanding proof of her right to a transfer of the shares before making such a transfer to the plaintiff, but in view of G. S. 1947 Supp. 9-903, that bank shares “shall be transferred on the books of the bank in such manner as the bylaws thereof may direct”; it would not seem to be a condition precedent that plaintiff plead the bylaws and compliance, but on the contrary, if there was any defect in her tender, that it be pleaded as a defense, for it is to be remembered she is not a stockholder of record charged with knowledge of the bylaws — she merely wishes to become one. What has been said applies also to the form of assignment and the manner of execution. Once it is conceded that the plaintiff is the owner of the shares, it follows she is entitled to a transfer of them to her or as she directs. If the form or manner of execution of the transfer does not meet the bank’s requirements the challenge should be made by answer and not by demurrer. In our opinion it may not be said that the motion for the writ did not, upon its face, show that the plaintiff was entitled to maintain the action.
The bank next contends that the motion for the writ failed to show facts sufficient to entitle her to the writ. Although it makes some argument that the plaintiff inferentially admits the bank would have issued certificates as requested by her, had they included the amendments to the charter, it correctly states that the plaintiff is not merely seeking transfer of the stock, but is seeking to compel transfer and the issuance of new certificates to plaintiff and her nominees upon the original forms used, and which shall not contain the restrictive provisions of the bylaws as quoted heretofore. We pause here to note that the forms of certificates issued to E. M. Wentworth contained a provision that before the stock could be sold it must be offered to the board of directors. That particular restriction is not the one presently in issue, and is not one of those to which plaintiff objected when she tendered her stock for transfer and what is later said does not refer to it. Her objection was to amendments adopted in 1948 and those are the ones to which we refer hereafter. The question actually presented is whether the amendments to the bylaws and charter are effective and binding upon the plaintiff. If they are, she is not entitled to the form of certificates demanded. If they are not, she is so entitled.
The bank premises its argument with a statement that the legislature, by Laws 1939, ch. 152, adopted a general corporation code, and that the bank comes under its provisions. The act appears as G. S. 1947 Supp. ch. 17, art. 24 to art. 45, both inclusive. References hereafter made are to chapter and section number. Our attention is first directed to 17-4501 which states that all private corporations shall be governed by the act, except that it shall not be deemed to supersede laws under which corporations of particular classes, including banks, have been created and concerning which particular provisions have been made, but that where the act is not inconsistent, it shall be construed as supplemental to such laws and not in derogation thereof. Apparently assuming consistency, a matter later mentioned, the bank directs attention to 17-3213 that every holder of stock shall have a certificate signed as therein provided, to 17-3215 that the certificate shall contain certain information and shall state any other provisions which may be required either by law or by the articles of incorporation, to 17-3001 (O) authorizing the corporation to adopt bylaws not inconsistent with the constitution and laws of the United States or of this state, among other things, “for the certification and transfer of its stock,” and to 17-3107 providing for the adoption of bylaws under conditions stated. No particular comment on the above sections is necessary. Our attention is also directed to 17-2803 which provides that the articles of incorporation may also set forth (B) any provision the incorporators may choose-to set forth for conduct of the affairs of the corporation, and “creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders . . . provided, such provisions are not contrary to the laws of this state,” and (F) “A provision reserving to the corporation and existing shareholders the right to purchase and acquire the stock of a selling stockholder before sale to a nonstockholder.” The only provisions of the statutes pertaining to banks and banking to which the bank directs attention are G. S. 1947 Supp. 9-1114, that the board of directors shall consist of not less than five nor more than twenty-five members, all of whom shall be stockholders, and that a majority shall be residents of the county or adjoining county, and to 9-1117 that no person shall be a director unless he be the owner of common stock of a par value of $500 which shall not be pledged, hypothecated or assigned in any way.
From all of the above it is argued that the amendments to the charter and bylaws have a statutory foundation.
Passing for the moment any provision of the statutes pertaining to banks and banking, we are of the opinion that neither bylaw 20 or bylaw 21, paragraph 1, which were incorporated into the charter of the corporation, are authorized by the provisions of the general corporation code. Lengthy discussion is not needed to demonstrate that there is no provision of the general corporation code which authorizes a limitation on the rights of prior existing stockholders or limiting the title or ownership of their shares passing either by will or inheritance as contemplated ip the first amendment, or that prevents the owner or his heir or legatee from giving away or selling the same, without first making an offer to the board (presumably the board of directors) and if that board refuse, to some other person on no better terms. Just how an owner could give his stock to his child either by present, gift, will or inheritance without offering it to the board on the same terms does not appear. Further, the general corporation code 17-3004 prohibits a corporation from acquiring its own stock except under conditions not of present importance. True, the present amendment says “Board” and that means either the board of directors or it means nothing. But the board is only the agent of the corporation and as such is an ineligible purchaser. If it was intended to mean the individual members of the board the provision would be contrary to the provisions of 17-2803 F. Nor can it be argued that the board would purchase for existing stockholders, for that is reading into the amendment something that is not there.
On the general power of a corporation to purchase its own shares, and holding it may not do so, see Steele v. Telephone Association, 95 Kan. 580, 148 Pac. 661.
Insofar as the amendments to the bylaws are concerned, and with reference particularly to the shares outstanding prior thereto, bylaw 21, paragraph 2, restricts descent of property and places restrictions thereon in a manner that finds no basis in the corporation code, and in violation of property rights as fixed by the probate code.
Insofar as amendment to bylaw 21, paragraph 3, is concerned, not much need be said. There is no statute which pretends to authorize it and that its effect is to take property without due process of law hardly seems debatable.
Even though the amendments to the charter and bylaws could be justified .under the general corporation code, they still would have to meet the requirements of the statutes pertaining to banks and banking (Laws 1947, ch. 102, G. S. 1947 Supp. ch. 9, art. 7 to art. 20, both inclusive). Under this act the charter must be approved by the state banking board. (Prior to 1947 approval was by state charter board, G. S. 1935, 9-101.) Under the entire act extensive provisions are made for listing of stockholders and liabilities of stockholders, but we note only 9-903 which provides that stock be deemed personal property and shall be transferred on the books of the bank in such manner as the bylaws thereof may direct, but that under conditions, stated and not of present importance there shall be no transfer; 9-1112 which provides that no bank shall acquire any of its shares, except upon conditions not here applicable; and 9-907 which provides for the sale of the stock of delinquent stockholders.
The substance of 9-903 has been the law of this state for many years. (See Laws 1897, ch. 47, § 52, appearing as G. S. 1935, 9-153.) In Bank v. Price, 79 Kan. 289, 100 Pac. 280, an action in equity to compel transfer of bank shares was under consideration, and it was there held that it was the statutory duty of a bank to make transfers of its stock upon its books, unless the registered holder was in-, debted to it or unless the bank was insolvent, as provided in the above statute, but if the restrictive' conditions did not appear the bank had no discretion in the matter. In that case it was also said that the person seeking transfer did not have an adequate remedy by action for damages and might maintain an action of mandamus or a suit in equity. There is no provision of the banking act which authorizes any limitation on ownership of shares of stock. The statutory provision for transfer on the books of the bank in such manner as the bylaws may direct, refers to the manner of making the transfer and does not confer power on the stockholders to make a provision that before stock may be transferred it must be first offered to the board of directors on the same terms as to another transferee.
No separate discussion of 9-1112 is necessary for what has been said previously as to sales to the board under the general corporation code also applies here.
Under 9-907 providing for the sale of stock of any stockholder delinquent under its terms, it is provided that if such stock be sold at private .sale and the price offered by any nonstockholder shall not exceed the highest bid of any stockholder, then such stock shall be sold to the stockholder. Eligibility of a purchaser at public sale is not specifically stated, but the whole section indicates a sale to the highest bidder. This section indicates lack of power in the stockholders or the board of directors of a bank to adopt either the amendments to the charter or to the bylaws.
The bank also presents some argument tending to show that the amendments to the charter and the bylaws were necessary to the continued prosperity of the bank and the community which it serves, and that plaintiff and her nominees should have no difficulty in meeting the requirements made. ’ We shall not discuss motives, good faith or the possibility of compliance, for they are not determinative of the issues presented. A somewhat similar argument in Steele v. Telephone Association, supra, was not considered a defense.
The bank also contends that the plaintiff had an adequate remedy at law and that she was not entitled to a writ of mandamus. In our opinion plaintiff did not have an adequate remedy at law. One of the bylaws demanded that she surrender the certificates of stock and accept others containing the restrictive provisions as a condition precedent to being entitled to dividends. Although perhaps not so intended, another required that she offer her shares to the board, presumably as a gift, before she could give them to her children. Another restricted the right of beneficiaries under her will, if she bequeathed the stock. If she surrendered the present certificates and accepted new ones, she probably would have waived objections. If she did not, and attempted a suit for damages, she would be confronted with great difficulty in establishing the amount thereof, in addition to which she would ultimately lose her stock, a thing she evidently did not desire to do.
In Bank v. Price, supra, which was a suit in equity to compel a transfer of stock, the defendant urged that plaintiff’s remedy was an action for damages rather than the relief sought. This court denied the contention, stating that the courts had recognized plaintiff’s right to maintain a suit in equity or an action of mandamus. In the course of its opinion the court said:
“It needs no witness to testify that the stock of small interior banks of this 'state is not found listed in general market reports. Nor is such stock a current commercial commodity in the locality where the bank is situated. Its real value depends upon many fluctuating factors which can not be established in dollars and cents. The book value is rarely, if ever, the actual value, and the consideration of sales is determined by the needs and desires of seller and purchaser rather than by any market or other standard of price. Besides this, the ownership of such stock is attended with certain well-recognized privileges and advantages, which enhance its value but which are not measurable in money. Therefore there is no fair or just way of arriving at the actual pecuniary damages a party would suffer if deprived of the registration of his stock. Beyond this, however, such stock has peculiar characteristics of its own which make it specially desirable. It gives the owner the right to be admitted into the corporation, to share in its government, and to participate in the exercise of its franchises. It is idle to say that he can take damage money and go out and possess himself of an equal number of shares of the same stock. If he could the bank might not allow them to be transferred. It is just as idle to say that he can satisfy his desires with other shares of other stock equally as good. Therefore it is not only inequitable and unjust that a shareholder should be compelled, at the caprice of the bank, which has no rights of its own in the premises, to market stock which he has just purchased, but the remedy at law for a refusal to register a transfer is inadequate.” (1. c. 293.)
In Steele v. Telephone Association, supra, which was an original proceeding in mandamus in this court, the question of another remedy is not discussed. In that case the writ was allowed.
We conclude that the bank’s contention, that the writ should have been denied because the plaintiff had an adequate remedy at law for damages, cannot be sustained.
We do not find it necessary to discuss appellee’s separate contentions that the amendments constitute unlawful discriminations in violation of section 17 of the bill of rights of our state constitution, or unlawful restraints of trade and of free alienation of property, that they are in violation of public policy, or that they deprive her of her property without due process of law in violation of the fourteenth amendment of the constitution of the United States.
We conclude that the trial court did not err in overruling the bank’s motion to quash the alternative writ of mandamus, and that the ruling should be, and it is, affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for divorce and for the settlement of property rights, and from the judgment rendered the plaintiff appeals.
In her petition plaintiff alleged her marriage to defendant and that he had been guilty of gross neglect of duty and extreme cruelty. She also alleged that at the time of her marriage she was the owner of certain described real estate known as 613 Franklin street, Kansas City, Kan., and also certain personal property. She then alleged at length the acquisition of other real estate as well as the equipment for a cleaning business carried on in one of the properties. In her prayer, she asked for a divorce, for alimony, and for an attorney’s fee; that she be awarded the property owned by her before her marriage; that she be awarded property subsequently purchased with her earnings and the cleaning business, the residence and furniture, and for other and further relief.
The defendant filed an answer admitting the marriage and denying all other allegations except those admitted by his cross petition. In his cross petition defendant alleged the plaintiff was guilty of extreme cruelty and gross neglect of duty. He also set up at great length his version of how the real estate and other property was acquired, and prayed for a divorce and for a fair and equitable division of the property. .
Plaintiff’s reply was a general denial.
After hearing the evidence, which went into considerable detail, the trial court rendered its judgment that plaintiff had not proved grounds for divorce from the defendant, and that defendant was entitled to a divorce from plaintiff on the grounds of extreme cruelty and gross neglect of duty. It then made findings of the value of the various pieces of real and personal property of the parties, the total so found being $27,037.50, and that all of the real property, except the property at 613 Ffanklin street, was property accumulated by the joint efforts of the plaintiff and the defendant, and that all of the property should be divided between them as equally as possible, and it then made such a division, allotting to plaintiff as part of her portion the real property at 613 Franklin street and a piano, chair and wardrobe, alleged by her to have been acquired and owned by her prior to the marriage. Plaintiff’s motion for a new trial was denied and in due time she gave notice of intention to appeal and served her notice of appeal and duly perfected the appeal, specifying error in the particulars hereafter discussed.
Appellant first contends the trial court erred in denying her a divorce. Under this assignment she reviews the evidence of herself and her witnesses, and in effect, argues she established her cause of action. The trial court was bound to consider all of the evidence of both parties and to place thereon such weight as it thought proper. There was evidence to support the judgment in this particular.
Appellant’s next contention is that there was no corroborating testimony to support appellee’s testimony, and that the trial court erred in granting him a divorce. No purpose will be served by reviewing the marital troubles of the parties. We have read with care the abstract, supplemental abstract and counter abstract and conclude the appellee’s evidence of appellant’s extreme cruelty and gross neglect of duty was amply corroborated.
Appellant says the trial court erred in allowing the sum of $800 for improvements on her separate property. Her argument seems to be that the amount is wrong because the appellee did not prove he paid the entire amount. As we read the record the trial court did not so find. It found only that appellant's separate property had been improved in that amount. There was evidence to sustain that.
Appellant presents together her three specifications of error that the trial court erred in expanding and enlarging upon the issues joined by the pleadings, in departing therefrom and introducing the issue of the value of the good will of the cleaning business and in considering that value in making the property division. The contention is that there was no direct evidence as to good will and its value. In a summary way it may be said that the appellee who was employed regularly and earning a substantial salary, started the cleaning business at which he and his wife both worked. As time went on she undoubtedly put in more time than he did, but from moneys which he supplied and the earnings of the business, it became a profitable going concern, occupying a site acquired by the earnings of both the parties, and it was clear from the evidence that as a business it had a value considerably in excess of the mere cost of the equipment in it. The trial court, which heard all of the evidence as to how the business was established, its conduct and earnings, expressed doubt as to the value of the good will but fixed it at $2,500. Appellant does not suggest that the good will had no value, she disagrees as to the amount, and argues that without that value being considered, the trial court did not divide the property as equally as possible between appellant and appellee, as the court found it should be. We are asked to reverse the trial court because it took the value of the good will into consideration. That cannot be done. In our'opinion the trial court having heard the evidence, was justified in assigning a value to each and every asset of the parties in order to determine the total for division. It did that, and its conclusion may not be avoided because one of the parties did not agree with the values assigned.
While the appellant also says the trial court erred in admitting irrelevant, incompetent and immaterial testimony, she recognizes that it is presumed that it considered only the competent testimony. In any event, she does not point out any evidence erroneously admitted.
The argument on the ruling on the motion for a new trial is answered by what has been said.
Under G. S. 1947 Supp. 60-1511, the trial court is directed to restore to the wife the property owned by her before the marriage and not previously disposed of and to make such division between the parties as may appear just and reasonable of the real and personal property acquired by the parties jointly during their marriage, whether the title be in one or both of them. It is not necessary that we detail here the' portions given to each party. Our examination of the record shows that the trial court, follow ing out its expressed intention to do so, assigned to the appellant the property owned by her prior to the marriage and that taken as a whole it made an equal division between appellant and appellee. There is no showing the trial court abused its discretion and its judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action to recover damages for abuse of process. The appeal is from an order and judgment sustaining a demurrer to plaintiff’s second amended petition.
The indisputable factual situation from which this controversy springs, as disclosed by the involved pleading, can be stated as follows:
The plaintiff and one G. Mitchell Jordan, at all times here involved, were each the owners of an undivided one-half interest in a tract of real estate located at 1015 E. First street in the city of Wichita, the title to which was acquired under and by virtue of the terms of the will of Mary A. Jordan, deceased, whose estate was closed in the probate court of Sedgwick county on September 23, 1943.
On January 31, 1945, G. Mitchell Jordan and the defendant, as his attorney, appeared in the probate court of Sedgwick county and made an oral application for the entry of a nunc fro tunc order in the Mary Jordan estate in support of which they represented that one George Little had been occupying the property above described for the last fifteen months and that the plaintiff, then known as Helen Holliday, should account and was indebted to G. Mitchell Jordan in the sum of $330. Thereupon, notwithstanding the estate of such named decedent had long since been closed, the probate court rendered what it termed a nunc fro tunc order and attempted to give Jordan a judgment against the plaintiff for the sum of $330 and a lien upon such real estate until the amount had been paid Jordan or the defendant.
Later, and on December 1, 1945, the same parties appeared before the same court and made application for what they termed another nunc fro tunc order in the Mary Jordan estate. On this occasion they represented that G. Mitchell Jordan had acted as custodian and caretaker for the property heretofore described from September 10, 1943, to January 20, 1944, and asserted that by reason thereof plaintiff was indebted to him -in the sum of $95. On the same date, and as requested in such application, the probate court rendered what it again described as a nunc fro tunc order in the Mary Jordan estate, this time attempting to give Jordan a judgment against plaintiff for $95 and an additional lien against the same real estate until that amount was paid Jordan or the defendant.
The two applications for nunc pro tunc orders heretofore mentioned did not purport to refer or have application to orders or judgments theretofore rendered in proceedings pending in the probate court of Sedgwick county in connection with the Mary Jordan estate. They were based entirely upon indebtedness allegedly due G. Mitchell Jordan from the plaintiff personally and the orders executed by the probate court in connection therewith disclose on their face that they were not nunc pro tunc orders relating to the estate of Mary Jordan but were in fact orders and judgments purportedly rendered in favor of G. Mitchell Jordan and against the plaintiff for purely personal obligations incurred by the latter with respect to matters and things transpiring after there had been a final settlement and closing of such estate.
On February 6, 1945, the defendant and Jordan filed a certified copy of the purported nunc pro tunc judgment first rendered by the probate court in’ the office of the clerk of the district court of Sedgwick county and caused an execution to be issued thereon, wherein the sheriff of such county was directed to levy on plaintiff’s property. Thereafter, and on May 5, 1945, pursuant to the direction of that instrument, such sheriff levied on the heretofore described real estate belonging to plaintiff and only refrained from selling it because restrained from so doing in an injunction proceeding instituted by plaintiff in the district court.
Later, on the 4th day of December, 1945, the defendant and Jordan procured a certified copy of the purported nunc pro tunc order and judgment rendered by the probate court on December 1, 1945,. and filed such copy in the office of the clerk of the district court of Sedgwick county as a lien on plaintiff’s real estate.
Subsequently the plaintiff filed an application in the probate court of Sedgwick county to set aside both nunc pro tunc orders. Upon the hearing on such application, at which G. Mitchell Jordan and the defendant as his atorney were present, that tribunal set aside the two orders, remitted all costs arising by reason of the rendition thereof and in connection therewith made the following findings:
“That at the time said orders were issued — they were filed and presented by G. Mitchell Jordan and his Attorney, Clarence Sowers, in good faith and that no false statements were made to the Court.
“The Court further finds that both of said Orders should be set aside, and It Is, Therefore, Ordered, Adjudged and Decreed, that the Nunc Pro Tunc Order of this Court issued January 31st, 1945, recorded in Book 423, at page 426, of the records of this Court, in which G. Mitchell Jordan was granted judgment against Helen Holliday in the sum of $330.00, be and the same is set aside and held for naught; and That the Nunc Pro Tunc Order of this Court issued December 1st, 1945, recorded in Book 432, at page 225, thereof, in which G. Mitchell Jordan was granted a judgment against Helen Holliday in the sum of $95.00, be, and the same is set aside and held for naught.”
The pleading now under consideration contains two causes of action. The first is based upon the defendant’s conduct and action with respect to the first order issued by the probate court while the second relates to his activities in connection with the second. However, the factual situation heretofore described has equal application to each. In addition such pleading contains charges, in substance to the effect defendant with full knowledge of all facts, heretofore related, for the purpose of extorting money from plaintiff which she did not owe and harassing and opressing her until she paid the amount so claimed by him and his coconspirator, G. Mitchell Jordan, not only assisted in procuring the rendition of the two void judgments in the probate court but filed certified copies of each in the office of the clerk of the district court and thereafter (1) caused an execution to issue on the judgment first rendered and a levy to be made on plaintiff’s real estate and (2) was responsible for the second judgment remaining on file in the office of such clerk as a lien thereon.
Defendant’s demurrer to the foregoing amended petition was sustained on the grounds therein stated, namely, that such pleading failed to state a cause of action in favor of plaintiff and against the defendant for the reason it affirmatively' showed on its face plaintiff could not recover.
For convenience we will first note the contentions advanced by appellee in support of the trial court’s ruling. His first point is that allegations in the pleading to the effect defendant unlawfully procured the judge of the probate court to sign the nunc fro tunc orders and file the same for record in that court without notice to plaintiff and without offering any evidence in support thereof are not such statements of ultimate fact as will support either cause of action. So what? We have not deemed such allegations of sufficient importance to justify their inclusion,in our factual statement. Appellee’s position on this point entirely overlooks the fact that the manner in which he obtained the involved orders and judgments is at the most merely an incident to be considered in determining whether their use after they were once procured resulted in abuse of process.
Appellee next points to the probate court’s order, heretofore quoted, setting aside the two nunc fro tunc orders,' which was at tached to appellant’s amended petition and made a part thereof by reference, and insists that she is estopped from asserting a cause of action based on the procuring of such orders by reason of the probate court’s finding that at the time such orders were made they were filed and presented by G. Mitchell Jordan and the appellee in good faith and without the making of false statements. In support of his positon he cities several of our cases dealing with suits on written instruments and holding that where a copy of such an instrument is attached to and made a part of a petition it controls all general recitals of the petition at variance with such copy. The short and simple answer to this contention is to be found in our conclusion the instant action is founded on abuse of process and not upon the manner in which the orders were obtained. But even if this were not so the contention would nevertheless be devoid of merit for a number of reasons. In the first place the probate court’s findings with respect to the nature of the statements made by appellee was extraneous and not properly a part of the decree setting aside the nunc pro tunc orders and appellee is not precluded or barred from attempting here to establish such statements were false. In the next, a claim of good faith is no excuse for consequences resulting from the performance of a wrongful act. Lastly, we are not here concerned with a suit on a written instrument at variance with the allegations of a pleading and the decisions on which appellee relies have no application.
Finally it is argued that inasmuch as the case at bar was not instituted until February 19, 1947, more than two years after February 6, 1945, the date on which execution was caused to be issued on the first nunc pro tunc order, any cause of action the appellant may have with respect thereto is barred by the statute of limitations (G. S. 1935, 60-306 [3]). This contention is also devoid of merit. When a writ of execution is wrongfully levied a right of action accrues at the time of the levy (33 C. J. S. 841 § 457 [c]; 50 C. J. 620 § 386; 1 Am. Jur. 192 § 36; American Digest System “execution” § 468). Under the allegations of the petition appellant’s cause of action, so far as this particular order is concerned, is based upon the levy made on May 5, 1945.
We fail to find anything in the appellee’s contentions or from our own examination of the second amended petition which will sustain the trial court’s ruling on the demurrer. While such pleading is not expertly drafted and, as appellee points out, is replete with conclusions and unnecessary allegations it nevertheless contains averments, to which we have heretofore referred, clearly charging and disclosing the procurance of void orders in probate court by appellee and the issuance of process thereon to appellant’s injury and damage. A pleading containing averments of that character, in our opinion, giving its allegations the benefit of inferences to which they were entitled in ruling on a demurrer, states a cause of action for abuse of process. A party is not protected from the consequences of his action in procuring a wrongful execution upon a void judgment (Allen and Barton v. Corlew, 10 Kan. 70; Duff v. Read, 74 Kan. 730, 734, 88 Pac. 263; 21 Am. Jur. 309 § 646; 33 C. J. S. 836 § 452). Analogous reasoning compels a similar conclusion with respect to responsibility for his action in filing a certified copy of such a judgment in the office of the clerk of the district court under authority of G. S. 1935, 60-3126, as a lien on real estate.
The judgment of the district court is reversed and the cause remanded with instructions to set aside its ruling on the demurrer, permit issues to be joined and proceed with the cause. | [
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The opinion of the court was delivered by
Smith, J.:
This is a proceeding involving a final accounting of an executor. The dispute is between á son of the testator on one side and the guardian ad litem for four minor grandchildren of testator on the other. In the probate court two sons of testator appeared and claimed certain parcels of real estate were given to each of them by the will in fee simple. Four minor grandchildren of testator appeared by a guardian ad litem and claimed that the sons named were given a life estate only with remainder to the grandchildren of testator as a class. A hearing was had in probate court. The court found that the land was given to the son in fee simple. The guardian ad litem for the minor grandchildren appealed to the district .court from so much of the order as applied to one only of the sons named in the order.
The district court heard evidence and made findings of fact and conclusions of law, in part, as follows:
“2. That Fred Asendorf was married to his present wife, Lily, at the time of the death of Fritz Asendorf, and they have never had any children, either natural or adopted.
“3. That no wife, present or future of Fred Asendorf, has any interest in the property in question.
“4. That the children, if any, of Fred Asendorf, whether by his present wife, Lily, or by a future wife, have no interest in the property in question except as they inherit by reason of being members of a class, as grandchildren of Fritz Asendorf, deceased.
“5. That it was the intention of the testator, Fritz Asendorf, to give to his son, Fred Asendorf, a life estate in the property in question, with remainder over to the members of a class, being the grandchildren of Fritz Asendorf, living at the time of the death of Fred Asendorf.
“Conclusions op Law
“1. That by the terms of the Will, the testator, Fritz Asendorf, gave to his son, Fred Asendorf, a life estate in the Southeast Quarter (SE14) of Section 25, Township 27 South, of Range 4 West, Sedgwick County, Kansas, with the remainder over to the grandchildren of Fritz Asendorf as a class, living at the time of the death of Fred Asendorf, with the fee simple title in said class effective as of September 19th, 1943, the date of the death of Fritz Asendorf, with enjoyment and possession postponed until the death of Fred Asendorf.”
The guardian ad litem appealed from so much of the judgment as appears in the last clause of finding No. 5. Fred appealed from all the orders and judgments rendered by the court. He also filed a motion for a new trial and moved the court to set aside the findings of fact because they were contrary to the law and the evidence and the conclusions of law were contrary to the law and the evidence.
Fritz Asendorf left surviving him six sons and daughters and seven grandchildren. Four of the grandchildren, that is, Wallace Asendorf, Laverna Asendorf, Delores Zerener and Darlene Zerener are minors. They are the parties for whom the guardian ad litem has appealed. This case has been here once before in Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535. That action was to construe the will of Fritz Asendorf. The action was started in district court. We held it should have been started in the probate court. Subsequent to our decision in that case the present proceedings were instituted and have now reached this court for final adjudication.
The will of Fritz Asendorf was, in part, as follows:
“Item 2. After the decease of my beloved wife, Maggie Asendorf, I give, devise and bequeath to my children all my property in the manner following.
“Item 3. I give, devise and bequeath to my son Fred Asendorf, the Southeast Quarter (SE!4) of Section twenty-five (25), Township Twenty-seven (27) South, Range Four (4) West; but without power to sell, transfer of mortgage during his natural life. Should my son, Fred Asendorf have no children, then at the decease of said son and his wife,, said real estate (as above described) is to be equally divided, share and share alike, to my then living grandchildren. This does not in no way hinder my son from leasing or selling royalty oil and/or gas on the above described real estate.
“Item 4. I give, devise and bequeath to my son, John F. Asendorf, the Northeast Quarter (NE%) of Section Twenty-five, Township Twenty-seven (27) South, Range Four (4) West; but without power to sell, transfer or mortgage said real estate during his natural life. This does not in no way hinder my son, from leasing or from selling oil and/or gas royalty on above real estate.
“Item 5. I give, devise and bequeath to my daughters, Anna Wiese nee Asendorf, Clara Lorenz nee Asendorf and Marie Zerener nee Asendorf, share and share alike, all of section twenty-one (21) Township Twenty (20), Range Twenty-one (21) west, Ness County, Kansas.
“Item 6. I give, devise and bequeath to my daughters, Anna Wiese nee Asendorf, Clara Lorenz nee Asendorf and Marie Zerener nee Asendorf, share and share alike the Southwest Quarter (SW14) of Section Twenty-Five (25), Township Twenty-seven (27) south, Range Four (4) west, with privilege of selling, mortgaging or transferring.
“Item 7. I give, devise and bequeath to my son, William Asendorf, the sum of Four thousand (4,000.00) dollars to be paid within one year after my decease, by my daughters, Anna Wiese nee Asendorf, Clara Lorenz nee Asendorf and Marie Zerener nee Asendorf. This bequeath is to be as a lien against the Southwest Quarter (SW14) of section Twenty-five (25), township twenty-seven (27) South, Range Four (4) west, until said sum is paid as above stated.
“Item 8. All the rest of my estate, personal, real or mixed of which I shall die seized or be entitled to at the time of my decease, I give, devise and bequeath to all my children, share and share alike.
“I nominate, constitute and appoint my wife, Maggie Asendorf, executrix of this, my last will and testament, and I direct that she shall not be required to give bond or other security in order to act as executrix of this, my last will and testament.
“In the event that my said wife, Maggie Asendorf, shall, for any reason not become the executrix of this, my last will and testament, or if, for any reason she shall fail to continue as such executrix before the entiy of a decree or order, approving her final accounts, as executrix hereunder, then, and in such event I nominate, constitute and appoint my son, Fred Asendorf, to be the executor of this, my last will and testament and I direct that in such event, he likewise shall not be required to give any bond or other security in order to act as executor of this, my last will and testament.”
The specific paragraph of the will with which we are concerned is No. 3. That is the paragraph where testator bequeathed a quarter section of land to his son Fred. It will be noted that after the words bequeathing the land the testator included the proviso “but without power to sell, transfer or mortgage during his natural life.” That is the first indication that testator intended Fred to take anything less than a fee simple estate. The will contains no provision creating a practical bar in case Fred should attempt to sell, mortgage or transfer. We hold that the provision referred to in Fritz Asendorf’s will was ineffectual and invalid and had no effect on the estate in the land to be taken by Fred. (See Guarantee Title & Trust Co. v. Siedhoff, 144 Kan. 13, 58 P. 2d 66, and opinions there cited.)
We pass then to the next provision of paragraph 3. The testator said “Should my son Fred Asendorf have no children, then at the decease of said son and his wife, said real estate is to be equally divided, share and share alike, to my then living grandchildren.” It was from the above provision the trial court held that Fred took only a life estate. It will be noted by the terms of the paragraph the gift over to the grandchildren was to take effect only if Fred had no children. There is no provision at all for a gift over to the grandchildren if Fred should have a child or children. By the clear terms of the paragraph the attempt to create a remainder in the grandchildren would be defeated by the birth of a child to Fred and his wife or the adoption of one by them. Such is undoubtedly the rule. (See Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606; also Gray v. Holmes, 57 Kan. 217, 45 Pac. 596; also G. S. 1947 Supp. 59-2103.)
Having reached that conclusion, we next pass to consideration of what effect that conclusion has on the question of what estate passed to Fred by the' will. His counsel argue that everything in paragraph 3 following the description is surplusage and should be disregarded. This construction would have the effect of holding that Fred received a fee simple estate with no limitations whatever.
Counsel for the guardian ad litem points out the rule that in construing a will the court should examine and consider the whole instrument from its four corners and carry out the intention of the testator at the time the will was executed. (See Weaver v. Chatter ton, 154 Kan. 696, 121 P. 2d 211, and cases there cited.) He argues that if we do that we must reach a conclusion that the testator only intended to confer on Fred a life estate with remainder over to testator’s grandchildren. There are some provisions of the will which give weight to that argument. In the first place, Fritz made a specific bequest to each of his six children. In paragraph 3 he gave the quarter section to Fred, with which this action is concerned. In paragraph 4 he gave a quarter section to his son John and made an ineffective effort to restrict the power to alienate but made no other effort to limit John’s estate to one for life and provided for no remainder to anyone. The probate court held this paragraph gave John a fee simple estate and there was no appeal. By paragraph 5 he gave the three daughters a section of land in equal shares. By paragraph 6 he gave the same three daughters another quarter section in equal shares and provided specifically that they could sell, mortgage or transfer it. Just why he put that proviso in paragraph 6 and omitted it from paragraph 5 does not readily appear. It is surplusage in paragraph 6. By paragraph 7 he gave his son William $4,000 to be paid by the three daughters, the amount to be a lien on the quarter section willed to the daughters in paragraph 6. It will be noted that testator made substantial gifts to each one of his children but the gift to Fred was the only one upon which he sought to place a restriction. This fact alone is persuasive that the testator intended to treat Fred differently than he treated the other children. We have already demonstrated that the gift over to the grandchildren does not take effect unless Fred has no children. Granted that Fred and his wife had no children when Fritz died and were still childless when the trial court made its judgment, still no one can say that will be the situation when Fred and his wife die. If Fred should have a child or children when he dies then the provision creating the remainder in the grandchildren then living becomes ineffective. The question cannot be settled, however, until Fred dies. The trial court erred, therefore, in concluding the will gave Fred only a life estate in the property, with the remainder over to the grandchildren of Fritz, with the fee simple title to vest in the grandchildren as of the date of the death of Fritz:
The trial court found that Fred had no children. At the present time then Fred has only a life estate. This clearly appears from paragraph 3 when considered with all the other provisions.
. The grandchildren do not take a fee simple title, effective as of September 19, 1943, the date of the death of Fritz with enjoyment and possession postponed until the death of Fred. They are prevented from taking this title because there are contingencies which may happen and prevent their taking anything, that is, Fred may have a child or children. Furthermore, the clause providing for a gift over to the grandchildren does not take effect until Fred and his wife are both dead. He may die before she does but the grandchildren would take nothing in any event until her death.
The court erred in making finding No. 3 that no wife, present or future of Fred Asendorf, has any interest in the property. What her interest will be if Fred has a child we will not decide here. The gift over to the grandchildren, however, does not take effect until after her death.
The court erred in finding No. 4 that the children, if any, of Fred Asendorf, whether by his present wife, or by a future wife, have no interest in the property in question except as they inherit by reason of being members of a class, being the grandchildren of Fritz. Their rights would be superior to those of the other grandchildren. The other grandchildren take nothing under this paragraph until it can be finally said that Fred had no children.
The trial court was correct in holding that as of the present time Fred takes only a life estate.
As to the appeal of the guardian ad litem for the four minor grandchildren, we have concluded that the grandchildren who will take, if any of them ever take anything, are those who are living at the time of the death of Fred or his wife, whichever dies last.
The judgment of the trial court is modified with instructions to render a judgment in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages for injuries sustained as the result of a collision of automobiles. The defendant’s demurrer to the petition was overruled and he appeals.
The action was commenced February 16, 1948. In his petition plaintiff alleged that U. S. Highway No. 160 extends west from Pittsburg, and that it is paved with black-top to a width of approximately twenty-four feet, and “that on the morning of March 18, 1946, at about the hour of 2:30 o’clock, and while it was dark,” defendant Reed stopped, parked and left his automobile standing on the above highway at a designated place west of Pittsburg, in a negligent manner as later set forth; that plaintiff, a farmer by occupation, was walking along on the shoulder of the highway on the north side of the pavement and had reached a point about twenty feet west of defendant’s automobile, when an automobile driven in a westerly direction by Lewis E. May struck Reed’s automobile with such force that Reed’s automobile was driven and forced in a northwesterly direction into and against plaintiff, causing him severe injuries which need not be detailed, and that all of the injuries were caused by the negligent and careless acts of Reed in the following particulars. We shall detail only the substance of the allegations of these particulars, which is: (1) That Reed parked his automobile on the left or north side of the pavement, the automobile being headed in a southeasterly direction and in such position that it obstructed the entire north half of the paved portion of the highway and extended over and onto the south half of the pavement. (2) That the automobile was parked at a place where it was practical to park it off of the paved portion of the highway, and was parked “in such a position that there was less than twenty-five feet of the pavement and traveled portion of the highway opposite his said automobile free and unobstructed for the passage of other vehicles and at a place where there was not a clear view of his automobile from a distance of two hundred feet” in each direction, in violation of G. S. 1945 Supp. 8-570. (3) That defendant parked his automobile between the hours of one-half hour after sunset and one-half hour before sunrise, without exhibiting and showing lights as provided by G. S. 1945 Supp. 8-586. (4) That defendant’s automobile was not disabled, but was in running condition, and was parked at such an angle across the highway it presented the appearance of a dark object not visible and was confusing and misleading to May. Other allegations are not of present importance.
Because of contentions later made we note that defendant filed his demurrer on the ground the petition did not .disclose facts sufficient to constitute a cause of action. This demurrer was orally argued and was taken under consideration by the trial court, the parties being given permission to file briefs. Before a ruling was had, plaintiff asked for and received permission to amend by inserting the letters “A. M.” following the words “2:30” in the first quotation -above, by striking the word “five” after the word “twenty” in the second quotation above, and to change a word in the allegation as to injuries sustained. Thereafter defendant filed his motion to strike the amendments, alleging they were made after the statute of limitation had run. He also filed a second demurrer, alleging the petition did not state facts sufficient to constitute a cause of action, and for the further reason the cause of action, stated by reason of the amendments to the original petition, was barred by the statute of limitations. The trial court then heard arguments on the second demurrer and upon consideration overruled it and defendant’s appeal followed.
Appellant first directs our attention to authorities holding that it is negligence as a matter of law for a motorist, to operate his vehicle on the highway at such a speed it cannot be stopped within the distance that objects can be seen ahead of it, and that the driver must be able to stop at night within the distance an object becomes visible in his- headlights, and directing attention to the allegation that his car was parked in such a position that there was less than twenty-five feet of the pavement free and unobstructed, argues there was room for May to have seen his car and to have passed it safely, and his failure to do so made May’s negligence the active and proximate cause of the collision. The premise assumed cannot be sustained for two reasons. Appellant’s argument that the allegations of the petition concede that May had up to twenty-five feet of clear highway is based on an isolated allegation interpreted unfavorably to the appellee. It was clearly alleged the pavement was about twenty-four feet wide and that appellant’s car occupied the north half and a part of the south half of the highway. Appellee was entitled to an interpretation. there was something less than twelve feet of unobstructed highway. The argument also ignores allegations that appellant’s car was on the wrong side of the highway, was unlighted, was in such, position there was no clear view of it from a distance of 200 feet, as well as other allegations subject to consideration. The second reason is that we are not presently concerned with whether May was negligent or not. The real question is whether appellant was guilty of negligence which was a proximate cause of plaintiff’s injuries.
Appellant’s contention that there was no sufficient allegation of his negligence is predicated in part on his contention the petition discloses that from the point where he parked his car to the south side of the traveled portion of the road left a clear space of up to twenty-five feet. What has been said is sufficient on that point. He also contends that the allegation of his violation of G. S. 1945 Supp. 8-586, is defective in that nowhere is there any allegation that no lights were displayed. The contention is without merit. The allegation that appellant parked his automobile “without exhibiting and showing lights” as required by the above statute was sufficient. Without any repetition of allegations, we think it clear that the petition sufficiently alleged that defendant parked his car, in the nighttime, at a place where such parking was not only prohibited by statute, but was inherently dangerous, and that he did nothing to warn other users of the highway of his act. Whether those acts made him guilty of actionable negligence depends on whether they were the proximate or legal cause of plaintiff’s injuries.
The gist of appellant’s argument that if he was guilty of any negligence, it was not the proximate or legal cause of the accident, is that where it is admitted that two distinct and successive acts, unrelated in their operation, conjoin to produce an injury, the question of remote and proximate cause becomes one of law and not one of fact (citing Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708; Richards v. Chicago R..I. & P. Rly. Co., 157 Kan. 378, 139 P. 2d 427); that mere violation of a statute regulating traffic is not of itself sufficient to constitute actionable negligence, and to make the actor liable, it must appear the violation contributed to the injury and was the proximate cause of it (citing McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074; Goodloe v. JoMar Dairies Co., 163 Kan. 611, 185 P. 2d 158; Crawford v. Miller, 163 Kan. 718, 186 P. 2d 116; Baker v. Western Cas. & Surety Co., 164 Kan. 376, 190 P. 2d 850); that the proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act (citing Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296); that the proximate cause is the producing cause, not the one supplying the condition, but the one producing the injury (citing Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416), and from all it is argued that appellant’s act in parking his car may have supplied the condition, but that only the act of May caused the appellee’s injuries; that although appellant’s act may have created a condition, there was no natural and continuous sequence of events that produced the appellee’s injuries; that May’s act was an efficient intervening cause which produced the injury and was not a natural and probable consequence of appellant’s act in parking his car at the time and place and under the conditions alleged.
In Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590, this court felt impelled to say that there were scores of our own decisions and thousands in the reported cases dealing with the law of negligence and that reference to any considerable number of them was an impossibility. In that case, where many authorities are cited, it was said that the negligence charged must have been the proximate or legal cause of the injury, and that ordinarily the question was for the jury, and that negligence, no matter of what it may consist, cannot create a cause of action unless it is the proximate cause of the injury of which complaint is made; that it is impossible to state an exact rule for determining when a cause is proximate or when it is remote, and that each case must be decided largely on the special facts belonging to it; that the test of proximate cause is that which determines an injury to be the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act, an additional condition sometimes stated being that it must appear that the injury was anticipated or that it should have been foreseen by the person sought to be charged with liability. In that opinion after some discussion of concurrent and intervening causes, it was said that if two distinct causes are successive and unrelated in operation, they cannot be concurrent, and that the rule that the causal connection between an actor’s negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause notwithstanding the intervening cause, and also that one who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of some third person may have contributed to the final result. In that case it was held that it was not a necessary'element of negligence that one charged with it should have been able to anticipate the precise injury sustained.
In Atherton v. Goodwin, supra, the court again considered the question whether alleged negligence was the proximate or remote cause of the damages alleged to have been sustained. In that case the question was whether negligent driving over a scale, causing it to weigh incorrectly, subjected the driver to damages to the owner for losses sustained by reason of paying for wheat incorrectly weighed on the damaged scale. Reference is made to the opinion for a discussion that whether the negligent action was the proximate cause of plaintiff’s loss was a question for the jury. In that case it was held:
“It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.” (Syl. ¶ 1.)
“The negligence charged must have been the proximate or legal cause of the injury.” (Syl. ¶2.)
“The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.” (Syl. f 3.)
“There is no precise formula for marking the line between proximate and remote consequences following a negligent act, and ordinarily, the questions of negligence, including proximate cause, and whether damages sought could have been foreseen or anticipated by the exercise of ordinary prudence and foresight, are for the jury.” (Syl. ¶[ 4.)
Although our own decisions cover the matter, we note that in Scott v. Simms, (Va.) 51 S. E. 2d 250 (opinion filed January 10, 1949), the supreme court of appeals considered a case quite similar to the one at bar. In effect it was there held that in order to constitute an intervening act relieving a defendant of negligence, such act must so entirely supersede the operation of the defendant’s negligence that it alone, without defendant’s contributing negligence, produced the injury.
In our opinion it is not debatable but that the allegations of the petition charged the appellant with acts which constitute actionable negligence if they are the proximate and legal cause of appellee’s injuries. We are likewise of the opinion that the parking of appellant’s car, under the circumstances, cannot be isolated from later events. The parking of the car did inore than merely furnish a condition. When appellant, in the nighttime, parked his unlighted car insuch manner that, facing in the wrong direction, it obstructed the north half of the highway and part of the south half thereof, he must have anticipated or foreseen that some other person using the highway might collide with it or be injured in person or property by its being left there. It was not necessary that he anticipate or foresee the particular injury sustained by the appellee. Under the circumstances pleaded it was clear that some harm to some person might well result. It ought not be said that the act of May in colliding his car with that of the appellant, in the circumstances alleged in the petition, was an independent and efficient intervening cause of the accident, for had the parked car been absent, May would have gone on down the highway and appellee would not have sustained his injuries. Appellant having negligently created the dangerous condition cannot escape liability for the natural and probable consequence which followed.
We have not overlooked appellant’s reliance on Cruzan v. Grace, 165 Kan. 638, 198 P. 2d 154, and Cotter v. Freeto, 166 Kan. 23, 199 P. 2d 484. It is not necessary that these cases be reviewed for a mere reading of them will disclose there is nothing in either at variance with our conclusion.
We conclude that the petition sufficiently alleged facts showing that appellant was gulity of negligence which was a proximate cause of the appellee’s alleged injuries, and that the trial court did not err in so ruling.
Appellant further argues that the petition discloses the appellee was guilty of negligence which contributed to his injuries. The basis for this contention is that appellee alleged that he was walking on the highway fifteen or twenty feet west of appellant’s car, the direction appellee was proceeding not being alleged; that if he was approaching, he should have been aware, and if he had already passed the parked car, he knew of its presence. Appellant filed no motion to ascertain the direction in which appellee was proceeding, and we shall not speculate thereon. Appellant relies on Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883, and Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P. 2d 692, in support of his contention that one aware of the danger of pursuing a given course and being under no compulsion to encounter the same, but who freely does so, cannot recover for injuries which he may sustain. The rule is sound but it has no-application here. From the allegations of the petition, we cannot say that appellee ever saw the applicant’s unlighted car, but had he seen it, he did not have to anticipate that some third person would drive into it and force it upon him. If there be any proof warranting submission thereof, the jury should determine the question of contributory negligence.
Appellant argues also that the trial court committed error in permitting appellee to amend his petition after the statute of limitations had run. Assuming the question is properly before us, a short answer is that the amendments did not change the cause of action stated in the original petition, nor did they supply any defect in the original petition. As shown by the first quotation heretofore made appellee alleged appellant parked his car on the morning of March 19, at about the hour of 2:30 and while it was dark. An amendment to insert the letters “A. M.” after “2:30” was unnecessary to fix the time, but the fact it was made neither changed the cause of action stated, nor did it prejudice the appellant. The other amendment objected to was to change “25” to “20” in the second allegation quoted above. The only purpose was to make the figure agree with that set forth in the statute mentioned. That amendment neither changed the cause of action nor prejudiced the appellant.
The trial court did not err in ruling on the demurrer and the ruling is affirmed. | [
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Rees, J.:
This is an appeal from a conviction for aggravated battery (K.S.A. 21-3414). We affirm.
On January 13, 1977, defendant approached four young men in a Salina tavern and offered to sell them some marijuana. Among the four men were William Enright and Terry Main, the victim of the battery. Defendant’s offer was initially refused; but, after further conversations, Main and Enright agreed to purchase. Main, Enright and the defendant drove, in Main’s car, to an apartment house where Main and Enright gave the defendant $130. Defendant entered the apartment house alone, ostensibly to purchase the marijuana, and did not return. When Main and Enright realized they had been taken, they began searching for the defendant in local bars. Ultimately they rediscovered defendant at the tavern where the three had initially met.
Main and Enright demanded their money but were informed that the money was at the defendant’s trailer. Defendant indicated that he would get the money and return to the tavern, in the meantime leaving his friend, Gary Lemon, with Main and Enright as security. After waiting a short time in vain for the defendant to return, Main, Enright and Lemon walked the short distance to defendant’s trailer.
Upon arriving at the trailer, Lemon stood in front of and a step or two above Main and Enright at the door of the trailer. When defendant opened the door, he was holding a shotgun aimed in the direction of the three men. Defendant threatened to “blow you away” if Main and Enright did not promptly leave.
Lemon told defendant that Enright and Main had something in his back. Defendant testified at trial that Lemon told him that Main and Enright had a knife in his back and would use it if defendant did not pay back the money.
After an undetermined length of time, Enright began to retreat away from the trailer, announcing his intention to summon the police. As Enright was departing from the trailer, defendant told him to wait, that he would get the money and return it. However, instead of getting the money, defendant ran to the back end of the trailer, jumped from another door on the same side, and ran toward Main. Using the shotgun as a club, defendant then struck Main over the head, causing a substantial cut. Main and Enright then made a hasty retreat and Main was taken to the hospital where nine stitches were required to close the wound.
1. Defendant’s first three issues on appeal concern the failure of the district court to give certain requested instructions and will be consolidated for consideration here. In a criminal action it is the duty of the trial court to instruct the jury on the law applicable to the theories of both the prosecution and the accused so far as they are supported by any competent evidence. State v. Nix, 215 Kan. 880, 886, 529 P.2d 147; State v. Hamrick, 206 Kan. 543, Syl. 3, 479 P.2d 854. However, the instructions given must be germane to the issues raised by the charge in the information and limited to those issues supported by some evidence. State v. Nix, supra, p. 886. There must be evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory. State v. McCorgary, 218 Kan. 358, 366, 543 P.2d 952; State v. Seely, 212 Kan. 195, 197, 510 P.2d 115; State v. Harden, 206 Kan. 365, Syl. 5, 480 P.2d 53.
Our review of the record does not indicate that there was evidence which, viewed in the light most favorable to defendant, would justify a jury finding in accordance with the defendant’s theory of voluntary intoxication. Although there was some negligible evidence that defendant had been drinking on the day of the offense and even that he appeared intoxicated when seen by witnesses both before and after the incident, the evidence did not require that an instruction on voluntary intoxication be given. As in State v. Wright, 221 Kan. 132, 139, 557 P.2d 1267, the defendant was able to describe the events of the evening in considerable detail and was specific as to his conduct at the time of the incident at the trailer. Defendant’s own testimony negated any possibility that he was intoxicated to the extent that he was incapable of forming an intent to injure. The present case is clearly distinguishable from State v. Seely, supra, where the evidence indicated the defendant was so drunk that he was unable to remember the battery with which he was charged.
Nor do we believe that the evidence, when viewed in the light most favorable to the defendant, would justify a jury finding in accordance with defendant’s theory of self-defense. The evidence at trial showed that during the crucial events at the trailer, defendant was possessed of a shotgun which he aimed at Main and Enright. The evidence does not indicate that either Main or Enright threatened defendant at the trailer or made any attempt to harm him. Additionally, we are unable to find in the record that defendant requested a self-defense instruction.
Further, we cannot say that there was evidence compelling the court to give an instruction upon defense of another. K.S.A. 21-3211 provides a defense for the use of force “against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” Viewing the evidence in the light most favorable to the defendant, we cannot say on this record that there is any evidence which would justify a jury in finding that the defendant could have reasonably believed that his conduct was necessary to defend either himself or Lemon against Main’s or Enright’s imminent use of unlawful force.
2. Defendant next contends that the statute under which he was charged and convicted (K.S.A. 21-3414(c)) is unconstitutionally vague and indefinite. K.S.A. 21-3414(c) provides as follows:
“Aggravated battery is the unlawful, touching or application of force to the person of another with intent to injure that person or another and which . . .
“(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.”
Defendant specifically objects to the phrase “can be inflicted” because the word “can” merely denotes a contingency that may or may not occur. Defendant contends the statute does not adequately apprise a person of common understanding as to the conduct proscribed and necessarily involves guesswork.
The test in determining whether a statute is unconstitutionally vague and indefinite was well stated in State v. Conley, 216 Kan. 66, 531 P.2d 36, as follows:
“The test whether a statute is so vague and indefinite and therefore fails to inform the accused of the nature and cause of the charge against him as required' by section 10 of the Kansas Bill of Rights is the same as that applicable in determining whether a statute violates the due process clause of the fourteenth amendment to the federal constitution.
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” (Syl. 1 and 2.)
A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. State v. Conley, supra, p. 67. At its heart the test for vagueness is a common sense determination of fundamental fairness. State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408.
The constitutionality of a statute is presumed and all doubts must be resolved in favor of a statute’s validity. Before a statute can be stricken it must clearly appear that it violates the consti tution and there is no reasonable way to construe it to be constitutionally valid. State v. Kirby, supra, p. 4; Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015. There must be ascertainable standards of guilt but impossible standards of specificity are not required. State v. Hill, 189 Kan. 403, 411, 369 P.2d 365, 91 A.L.R.2d 750.
K.S.A. 21-3414(c) meets the constitutional test. The statute contains the following elements: (1) unlawful touching or application of force; (2) to the person of another; (3) with the intent to injure; and, (4) done with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted. The elements are simple and certainly, within common understanding and practice. The terms of the statute are not so vague that persons of common intelligence must necessarily guess at their meaning and differ as to their application. See State v. Sanders, 223 Kan. 550, 575 P.2d 533.
3. Finally, defendant argues that the district court erred in denying him probation under K.S.A. 1977 Supp. 21-4618. Defendant argues that the mandatory provisions of K.S.A. 1977 Supp. 21-4618 may not be applied unless the question whether a firearm was used in the commission of the offense is determined in the affirmative by the trier of fact. It is undisputed that the jury was not instructed to determine, and did not determine, whether defendant committed the aggravated battery with the use of a firearm. Whether defendant’s use of the shotgun constituted use of a firearm in the commission of a crime within the meaning of K.S.A. 1977 Supp. 21-4618 is an issue not briefed by the parties and one that we do not now decide.
The cases relied upon by defendant are not controlling since they concern statutes from other jurisdictions wherein an additional and enhanced sentence may be imposed upon a defendant who commits a crime with a firearm. Such statutes frequently provide that one who commits a felony with a firearm may receive a separate sentence for the use of the firearm in addition to whatever sentence may be imposed for the felony. In construing such statutes, it has been held that the question as to whether a firearm was used must be determined by the trier of fact before the additional sentence may be imposed. Jordan v. United States District Court for the Dist. of Col., 233 F.2d 362, 367 (D.C. Cir. 1956); People v. Najera, 105 Cal. Rptr. 345, 8 Cal. 3d 504, 503 P.2d 1353 (1972); State v. Blea, 84 N.M. 595, 506 P.2d 339 (1973); Johnson v. State, 249 Ark. 208,458 S.W.2d 409 (1970). It has been said that such statutes define a new class of crimes by adding a new element, use of a firearm, and the existence of the new element requires an additional finding of fact. State v. Blea, supra, p. 342.
We believe K.S.A. 1977 Supp,. 21-4618 is distinguishable from those statutes of other jurisdictions construed in the cases cited by defendant. K.S.A. 1977 Supp. 21-4618, when read in conjunction with K.S.A. 1977 Supp. 22-3717(8), has the effect of imposing a mandatory minimum sentence for all Article 34 crimes in which the defendant used a firearm in the commission of the crime. State v. Freeman, 223 Kan. 362, 364, 574 P.2d 950. We have construed K.S.A. 1977 Supp. 21-4618 as precluding the suspension of sentence where defendant has been found guilty of an Article 34 crime with the use of a firearm. Esters v. State, 1 Kan. App. 2d 503, Syl. 4, 571 P.2d 32; State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559. While K.S.A. 1977 Supp. 21-4618 limits the range of authorized dispositions available to the trial court in some instances, it does not create a new class of crimes, add a new element to the statutory definition of already existing crimes, or provide for an additional sentence. Use of a firearm under the statute is not made an element of the offense charged, and is only pertinent to the authorized disposition the court may consider in the event of a conviction.
We believe the situation is analogous to sentencing under the provisions of the habitual criminal act, K.S.A. 21-4504. The State is not obliged to prove the prior conviction during the presentation of its evidence before the jury in such cases, and evidence of the prior conviction should be presented to the court after conviction. State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229; State v. Messmore, 175 Kan. 354, Syl. 1, 264 P.2d 911.
Therefore, we conclude that the question of defendant’s use of a firearm did not have to be submitted to the jury for determination. We do not believe the failure of the State to include in the information an allegation that the crime was committed with the usexof a firearm precluded use of K.S.A. 1977 Supp. 21-4618 in denying defendant probation.
Affirmed. | [
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Swinehart, J.:
This is an appeal from an order denying a motion for summary judgment. The appellant is the administrator of an estate wherein appellee filed a claim in the nature of an action to enforce an oral contract between herself and the decedent to convey his real estate to appellee. The motion was decided on the basis of the amended claim filed by appellee, affidavits filed by appellant and depositions of witnesses named by both parties. The trial court denied appellant’s motion stating in part that from the facts available
“1. There is a question of material fact as to whether an oral contract existed.
2. There is a question of material fact as to whether there was sufficient performance of the oral contract (if it existed) to require equity to recognize the contract.
3. There is a question as to whether the proof with respect to paragraphs (1) and (2) above is clear and convincing (definite and certain).”
The appellant appeals this decision under the provisions of K.S.A. 60-2101 and K.S.A. 60-2102, the pertinent parts of which are as follows:
“Appellate jurisdiction, (a) Court of appeals. The court of appeals shall have jurisdiction to hear appeals from district courts, except in those cases reviewable by law in the district court and in those cases where a direct appeal to the supreme court is required by law. In any case properly before it, the court of appeals shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse. Appeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 22-3601 and 22-3602, and any amendments thereto, and appeals from the district court to the court of appeals in civil actions shall be subject to the provisions of K.S.A. 60-2102, and any amendments thereto.” (K.S.A. 60-2101.)
“Invoking jurisdiction of court of appeals, (a) As of right. Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:
“(3) An order that appoints a receiver, or refuses to wind up a receivership or to take steps to accomplish the purposes thereof, such as directing sales or other disposal of property, or involving the tax or revenue laws, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States.
“(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. . . .” (K.S.A. 60-2102.)
The appellant alleges that the trial court erred in its refusal to grant summary judgment when all matters considered show that there remain no material facts or genuine issues to be resolved that have not been shown to be either sham, frivolous or so unsubstantiated as to obviate the necessity of trial.
It is apparent that the appellant and the trial court differ in their opinions regarding the validity and significance of the available evidence. The first question to be decided, however, is whether this court has jurisdiction to consider the appeal. We think not.
The order appealed from is clearly not a “final decision” over which this court has jurisdiction by virtue of K.S.A. 60-2102(o)(4). Interpreting the phrase “final order,” the Kansas Supreme Court has said: “A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues.” Connell v. Reno Construction Co., 192 Kan. 368, 374, 388 P.2d 830. The order denying the appellant’s motion for summary judgment was not determinative of all issues. It determined one issue only: that is, that the trial judge wished to have the evidence more fully developed before he made a decision regarding the principal issues of the existence of an oral contract and the sufficiency of the appellee’s performance under the alleged contract.
Neither do we find merit in the appellant’s argument that jurisdiction is granted by subsection (3), which authorizes an appeal of an order affecting title to real estate. When the trial court finally determines the issues of the case, it may well involve title to real estate; however, at this point the issues between the litigants involve only matters of contract law.
Even if the order did affect title to real estate, this in itself would not confer jurisdiction upon the Court of Appeals at this juncture. We have found no cases interpreting the meaning of K.S.A. 60-2102(a)(3) as it relates to orders involving title to real estate. However, the Supreme Court has considered the meaning of the subsection as it relates to the appeal of an order involving a constitutional question in In re Austin, 200 Kan. 92, 435 P.2d 1, and Cusintz v. Cusintz, 195 Kan. 301, 404 P.2d 164. In both of those cases, the court held that an order must have “some semblance of finality” to be appealable under subsection (3). We find that reasoning to be controlling, for we find nothing in the statute that indicates that we should differentiate between orders involving constitutional questions and those involving title to real estate. We therefore hold that the appellant’s attempt to appeal the denial of summary judgment is an interlocutory appeal, and appellant has failed to comply with the strict requirements of K.S.A. 60-2102(b) providing a method by which interlocutory orders may be appealed in certain, limited situations.
The appeal is dismissed.. | [
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Swinehart, J.:
This is an appeal from an adjudication of delinquency on two counts: (1) assisting another in the commission of rape (K.S.A. 21-3502 and 21-3205), and (2) aggravated burglary (K.S.A. 21-3716).
The appellant Nichols alleges that the trial court erred by refusing to admit into evidence his testimony which related to the prior sexual conduct of the rape victim, both with the accused and another person. The trial court, after a pretrial hearing as provided by K.S.A. 60-447a, denied the accused the opportunity to present evidence that for several months prior to this incident the accused and the complaining witness had intercourse on a regular basis, and that they had enjoyed “rough sex,” i.e., wrestling, etc. Further, the accused was denied the opportunity to present evidence which showed the method used by the parties to set up their sexual escapades; i.e., that the accused would come to the trailer home, flash his automobile lights, and tap on the complainant’s bedroom window. If the complainant’s mother was home, he would receive a signal not to come in. If she was not home, the door of the trailer would be unlocked and he would then open the door and enter the trailer. The trial judge also excluded evidence tending to show that the complaining witness had intercourse with another boyfriend a few hours prior to this incident.
Briefly, the facts are that the accused, in the company of two young men, came to the complainant’s home during the evening in question. When they did not receive the signal that the victim’s mother was home, they entered the trailer. The accused had sexual intercourse with the complainant, as he testified, and further, by force he assisted his two companions in having intercourse with the complainant.
This case, questioning the constitutionality and the application of K.S.A. 60-447a is one of first impression with the Appellate Courts of Kansas. K.S.A. 60-447a is as follows:
“Evidence of previous sexual conduct in prosecutions for certain sex offenses; motions; notice. (1) Except as otherwise provided in subsection (2), in any prosecution for the crime of rape, as defined by K.S.A. 21-3502, or for aggravated assault with intent to commit rape, as provided in K.S.A. 21-3410, or for an attempt to commit rape, as provided in K.S.A. 21-3301, or for conspiracy to commit rape, as provided in K.S.A. 21-3302, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, nor shall any reference be made thereto in the presence of the jury, except under the following conditions: A written motion by the defendant shall be made at least seven days before the commencement of the trial to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The seven-day notice required herein may be waived by the court. The motion shall state the nature of such evidence or testimony and the relevancy thereof, and shall be accompanied by an affidavit in which an offer of proof of such previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.
“(2) In any prosecution for a crime designated in subsection (1), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.
“(3) As used in this section, ‘complaining witness’ means the alleged victim of any crime designated in subsection (1), the prosecution of which is subject to this section.”
First, we must determine the scope of appellate review of orders made by a trial court when applying K.S.A. 60-447a. Because the statute makes relevancy the touchstone of admissibility of the evidence, the same standard of review applies to decisions made under this statute as applies to appellate review of any other question involving the relevancy of evidence: decisions regarding the relevancy of evidence rest within the sound discretion of the trial court, and the trial court’s decision should not be set aside absent a showing of abuse of discretion. See State Highway Commission v. Lee, 207 Kan. 284, 291, 485 P.2d 310 (1971), and State v. Gonzales, 217 Kan. 159, 161, 535 P.2d 988 (1975).
On appeal, the defendant argues that K.S.A. 60-447a is unconstitutional. He contends that the Kansas rape shield statute effectively denies his right to confront witnesses against him, as guaranteed by the Sixth Amendment of the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution.
The Sixth Amendment of the United States Constitution and its Kansas counterpart encompass two rights that are at issue here: the right of the accused to cross-examine witnesses against him and the right to present witnesses in his behalf. In Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965), the United States Supreme Court recognized that the right to cross-examine is inherent and essential under the Sixth Amendment and is made applicable to state proceedings through the general requirements of due process under the Fourteenth Amendment. In Washington v. Texas, 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920 (1967), the Court held that the Sixth Amendment also includes the right to present witnesses to establish a defense, and that this right was guaranteed to defendants in state proceedings through the Fourteenth Amendment. The fundamental, essential nature of these rights was stressed recently in Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038 (1973).
A recent Supreme Court case holds that a state’s juvenile shield law, designed to preserve the confidentiality of a juvenile’s record, must yield to an accused’s Sixth Amendment rights. Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105 (1974). The Kansas Supreme Court has reached the same conclusion when facing the identical question. State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974). It has been pointed out that such cases provide a useful analogy for considering the constitutionality of a rape shield law, for both rape shield statutes and juvenile shield statutes are designed to protect interests not directly related to the search for truth. Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1 (1977).
Although the cases discussed above provide useful insights into the balancing process in which courts must engage when assessing the strength of the state’s asserted interest in shielding an individual (whether it be a juvenile or a rape victim), and, in addition, serve to emphasize the extreme importance of the defendant’s right of confrontation, they are not determinative of the defendant’s challenge to K.S.A. 60-447a. The Kansas rape shield statute can be distinguished from the juvenile shield laws discussed above in one very important respect: the juvenile shield laws categorically prohibit the introduction of evidence of the juvenile record, whereas the Kansas rape shield statute would allow evidence of the victim’s prior sexual conduct if it is proved relevant to any fact at issue, such as the identity of the rapist, the consent of the victim, and whether or not the defendant actually had intercourse with her. The Kansas statute merely serves to focus both judges’ and attorneys’ attention upon the fact that the victim’s prior sexual activity is not generally relevant, reminding them that a victim’s lack of chastity has no bearing whatsoever on her truthfulness and generally has no bearing on the important issue of consent.
The Kansas statute does not offend the constitutional guarantees afforded an accused by the Sixth Amendment. Although the defendant’s interest in cross-examining witnesses against him and in presenting witnesses in his behalf is undeniably a fundamental one, the Sixth Amendment does not require that the defendant be permitted to introduce all the evidence he wishes or to cross-examine a witness against him in any manner he pleases. The defendant’s Sixth Amendment rights are subject to the same evidentiary rules as all other evidence. The threshold question for the admissibility of evidence is relevancy. The Kansas statute does not undermine the defendant’s right to present relevant evidence regarding the victim’s prior sexual conduct. It only requires that there be a pretrial determination of the relevancy of that evidence. The slight inconvenience to the defendant’s Sixth Amendment rights occasioned by K.S.A. 60-447a’s requirement of a pretrial determination of relevancy does not outweigh the state’s interest in protecting the rape victim from unnecessary embarrassment at trial. The state’s interest in protecting the victim is strong. It must be recognized that a rape victim suffers considerable trauma from the incident and that adding to her trauma by permitting untrammeled examination of the intimate details of her life is unnecessary. The statute serves another interest beyond that of protecting the victim: encouraging rape victims to report and aid in the prosecution of the crime. Most authorities agree that only a very small percentage of rapes are reported and that far fewer result in criminal charges. At least part of the victims’ reticence in aiding in the prosecution of their attackers stems from the system’s perceived hostility to the rape complainant, coupled with the singular shame of sexual assault. (Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, supra, pp. 5-6.)
Since the statute permits the admission of the evidence when it is truly relevant, excluding it only when and to the extent that it is irrelevant, the statute is constitutional. It is well suited to protecting the defendant’s constitutional rights, the victim’s interest in keeping her private life private, and the state’s interest in conducting rape trials without the obstruction of irrelevant and inflammatory evidence. The pretrial mechanism created by K.S.A. 60-447a for determining the relevance of such evidence is admirably suited to striking a balance between these conflicting interests.
The defendant argues that even if the statute is found to be constitutional, it was unconstitutional as it was applied to him. The defendant sought to introduce evidence of his prior sexual relationship with the prosecutrix, as well as evidence that she had engaged in sexual intercourse with her boyfriend earlier that evening. By this evidence the defendant hoped to prove that the prosecutrix had consented to have intercourse with him that evening, and that he did not have the intent to commit a felony when he entered the trailer, which is a necessary element of burglary.
Considering first the defendant’s specific allegation that the court erred in excluding evidence that the victim had engaged in sexual intercourse with her boyfriend a few hours prior to the incident, it is obvious that the trial court correctly determined that this evidence had no relevance to any issue. The defendant admitted that he had intercourse with the victim and the testimony shows that at least one of the defendant’s friends had intercourse with her. Thus, showing that the semen which medical evidence proved was present came from another source would have no relevance.
The question of the admissibility of the evidence of her prior consensual activities with the defendant, particularly as regards the rough type of sex that they enjoyed, is more difficult. The defendant wished to introduce this evidence to prove that she consented on this occasion also, or that he thought she did, and that he thought her struggles on the evening in question were merely her normal sex play. While it may be conceded that often the victim’s prior conduct with the defendant would be relevant to the consent issue and therefore should be admitted under K.S.A. 60-447a, it does not appear that the trial court abused its discretion in excluding the evidence under the special circumstances of this case. It must be remembered that the defendant arrived at the victim’s trailer in the company of two friends. It does not appear that the trial court acted capriciously in determining that the defendant should not have presumed that her prior consensual activity with him alone would imply her consent to having intercourse with his friends, or even to having intercourse only with him, but in the presence of his friends.
We can find no abuse of discretion in the trial court’s ruling excluding the proffered evidence for purposes of defending against charges of rape (K.S.A. 21-3502) and aiding and abetting another in the commission of a crime (K.S.A. 21-3205). The judgment of guilty for the violation of K.S.A. 21-3502 and K.S.A. 21-3205 is therefore affirmed.
However, we do find that the defendant should have been permitted to introduce evidence of their prior sexual activities for the limited purpose of disproving the element of intent to commit a felony on the aggravated burglary charge (K.S.A. 21-3716). Burglary is a specific intent crime, and requires a greater degree of proof to establish the intent than does a general intent crime (such as rape), where the requisite intent may be established by merely showing that the accused acted wilfully and wantonly (K.S.A. 21-3201). Also, it should be noted that K.S.A. 60-447a does not list burglary as one of those crimes for which prior sexual conduct is presumed to be irrelevant. The trial court’s decision to exclude the controverted evidence for purposes of the burglary charge constituted prejudicial error. The judgment of guilty of aggravated burglary is hereby set aside and a new trial is ordered.
The judgment of the trial court is affirmed in part and reversed in part. | [
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Spencer, J.:
In an action commenced for liquidation of partnership assets and for an accounting, the trial court made findings of fact in relevant portion as follows:
“1. Plaintiff and Defendant were partners in the real estate business, and dissolved the partnership by mutual agreement on or about the 1st day of May, 1975.
“2. That each partner was to share 50% of partnership profits and bear 50% of partnership expense.
“3. Plaintiff’s son, Thomas D. Stauth, made the first tentative purchase inquiries concerning the property known as ‘Highland Plaza #2.’
“4. Subsequently, on November 29, 1972, Defendant entered a contract to purchase ‘Highland Plaza #2’ in his own name. Defendant made a downpayment on the purchase contract with his own check but later reimbursed himself from the partnership checking account.
“5. From November 29, [1972], all transactions concerning ‘Highland Plaza #2’ were carried on the books of the partnership and all receipts and disbursements were handled through the partnership account. Profits were reflected in partnership income tax returns.
“6. By reason of the foregoing, ‘Highland Plaza #2’ was and is property of the partnership and Defendant should be ordered to account for one half of the rents and profits from said property from May 1, 1975.”
The court then imposed a resulting trust in favor of the partnership on that real estate known as “Highland Plaza #2” and held by defendant in^his own name. Defendant has appealed.
It is argued that, since record title to the real estate was in the defendant’s name alone, his wife had an interest in the property by virtue of K.S.A. 59-505, which required that she be made a party defendant. Defendant’s argument was completely answered in Hindman v. Shepard, 205 Kan. 207,468 P.2d 103 (1970), where it was stated:
“The inchoate interest of a husband in the wife’s real property declared in K.S.A. 59-505 does not include such real estate as is taken by legal proceeding prior to the death of the wife, and the husband in such a case is not an indispensable party to the proceeding.” (Syl. 6.)
Although the foregoing involves the husband’s interest in property titled in the wife, the rule applies equally to both spouses. Defendant’s record title was “taken by legal proceeding” in this case when it was adjudged that the real estate was in fact partnership property. Once this determination was made an additional reason arose for holding that the wife need not be a party. K.S.A. 56-325(£>)(5) provides:
“A partner’s right in specific partnership property is not subject to dower, courtesy or allowances to widows, heirs or next of kin.”
It is argued that the court erred in finding a resulting trust. K.S.A. 58-2406 provides that, subject to the provisions of K.S.A. 58-2407 and 2408, no trust shall result when a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another. K.S.A. 58-2408 provides in part that an exception exists “where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to. hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.”
The evidence was conflicting as to whether defendant was to hold the property for the partnership. Defendant testified that sometime after he had signed the real estate purchase contract, but prior to closing, it was agreed between plaintiff and defendant that they would share profits on the sales of houses and lots as long as plaintiff supervised construction on the lots. The lots were then entered as assets on the partnership records as a matter of convenience, and if plaintiff was to share in the profits, the expenses should be paid by the partnership. Plaintiff testified that the agreement prior to closing was that the lots were to be partnership property, but that defendant told him the lots could be held in defendant’s name alone as a convenience in making sales. In that way only defendant and his wife would be required to execute conveyances. Plaintiff stated that defendant told him that the attorney for the partnership had indicated that title to the real estate might be held in defendant’s name alone as long as there was a written agreement that the lots were indeed partnership property.
In 60 Am. Jur. 2d, Partnership § 93, pp. 22-23, it is stated:
. . An agreement that certain real estate should be part of the firm assets may be implied from the acts and conduct of the partners; the agreement need not be express.
“. . . [AJmong indicia of partnership ownership are the payment by the partnership of taxes. . . .
“Partnership books may also be considered to determine the question, as, for example, how the property was entered and carried on the books of the company. The manner in which the accounts are kept, whether the purchase money is severally charged to the members of the firm, or whether the accounts treat it the same as other firm property, may be controlling circumstances in determining such intention, and from these circumstances the agreement of the parties may be inferred.”
From the record, it appears that the purchase of the real estate was entered on the partnership records prior to the closing of that transaction. Thereafter, abstract fees, taxes, and payments on the purchase money mortgage were paid by the partnership. Profits were reported as partnership income.
Whether there is an agreement to hold in trust may be inferred from all the circumstances in the case. The test of the sufficiency of the evidence for such an agreement is that it must be clear and satisfactory to the trial court. Where two conflicting inferences are possible, the trial court does not err because it makes the one unfavorable to the complaining party. In re Estate of Gereke, 165 Kan. 249, 195 P.2d 323 (1948).
The trial court obviously found the intent of the parties to be that defendant was to hold the property for the partnership. It cannot be said that the trial court erred in so finding. On appeal, it is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. The reviewing court is concerned only with evidence which supports the trial court’s findings and not with evidence which might have supported contrary findings. Steele v. Harrison, 220 Kan. 422, Syl. 1, 552 P.2d 957 (1976).
Did the partnership provide the purchase money or some part thereof? Defendant made the down payment from his personal account but was reimbursed from partnership funds on the day of closing the transaction. The purchase money was provided by a 100 percent loan obtained in the names of defendant and his wife and secured by a mortgage on the real estate. This loan was entered as a liability on the partnership records on the day that purchase was finalized. The partnership made all payments on the loan. In the early case of Tenney v. Simpson, 37 Kan. 353, 15 Pac. 187 (1887), the court noted:
“ . . . [T]he consideration [required for a resulting trust] need not in any case pass directly from the cestuiqui trust, or beneficiary, to the grantor of the land. [Citations.] Besides, the transaction in the present case was a partnership transaction, and in such case real property may usually be considered in nearly the same manner as personal property, and the real intention of the parties with reference thereto, their contracts, promises or mutual understandings will govern, without reference to whether they have been reduced to writing, or not. [Citations.] In such cases the statute of frauds and kindred statutes have no application . . . .” (37 Kan. at 362-363.)
Even though funds for the purchase of the real estate were provided from another source, it is evident that the liability for repayment of those funds was assumed by the partnership, which thereafter did in fact make all payments that were made on the loan. There was evidence from which the trial court could properly find that the partnership paid the purchase money or some part thereof. It follows that the trial court did not err in declaring a resulting trust.
It is argued that the action was barred by the statute of frauds and the statute of limitations. As noted in Tenney, such limitations have no application in a case such as this. See also, 89 C.J.S., Trusts § 101, p. 942. Since resulting trusts are created by operation of law and are matters of equity, the statute of frauds and kindred statutes do not apply. Even if this action was to be considered one “upon contract, obligations or liabilities expressed or implied but not in writing” so as to bring into play the three-year statute of limitation of K.S.A. 60-512, the action would not be barred. The three-year period begins to run from the date of the breach of the agreement. Wolf v. Brungardt, 215 Kan. 272, 279, 524 P.2d 726 (1974). The petition in this matter was filed December 20, 1976. The allegation is that plaintiff did not learn that defendant would not consider the lots as partnership property until sometime after the partnership was dissolved in April of 1975. If the agreement was breached at that time, this action was commenced well within the limitation period.
Defendant contends that the court refused to hear evidence of his theory of the case in that plaintiff had failed to perform his part of the agreement to the effect that profits realized on the sale of lots be shared as long as plaintiff supervised the construction of improvements on the property. That portion of the record cited by defendant in this regard reveals that the court refused to hear evidence on collateral disagreements between the partners, i.e., plaintiff’s performance in the construction of a motel in which they were concerned. The record clearly establishes that defendant was allowed to testify as to his theory.
Defendant complains of “rambling” answers to his questions by plaintiff and of the court allowing leading questions. Trial was to the court. Both parties expressed a desire to make the trial as short as possible. When defendant received the “rambling” answers he has excerpted in his brief, he did not attempt to “pin down” the plaintiff. He went on to other questions and did not object. Both sides used leading questions with their own witnesses and in cross-examination. The extent and use of leading questions rests within the discretion of the trial court. State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970). Defendant has failed to show any resulting prejudice.
After judgment had been entered, defendant filed motions to confirm certain sales of real estate which had taken place pending the conclusion of the action, and to liquidate the remaining unsold property. These motions were that the court make appropriate orders for the disposition of the proceeds pending appeal. Plaintiff opposed the motion to liquidate and requested that he be given the lots as part of his share of the partnership property. The court confirmed the sales and ordered that, when payment was made to the escrow agent, the payment should be deposited with Dane Fitch, trust officer of the First National Bank, as trustee for the court. The court also gave plaintiff the option to purchase the remaining lots at a price suggested by defendant, provided that plaintiff deposited the purchase money with the trustee named.
Following these orders, the trustee received three checks drawn on “House of Real Estate Trust Account” payable to “Andrew M. Stauth and Helen L. Stauth” signed by Andrew M. Stauth as drawer and endorsed c/nly by “Andrew M. Stauth.” These checks were from the escrow agent “House of Real Estate” and represented payments on the sales of lots confirmed by the court. The trustee also received the agreed sales price from plaintiff for the remaining lots and a quit-claim deed to those lots from defendant. Plaintiff refused to accept this deed and the trustee petitioned the court for orders. The court thereafter ordered defendant to reissue the three checks in his name alone and to endorse them to the trustee. The court also ordered defendant to transmit to the trustee a deed from “Andrew M. Stauth as Trustee” by virtue of the resulting trust and to supply abstracts of title.
It is now argued that the court lacked sufficient evidence of identity to order defendant to reissue the three checks originally issued on the account of “House of Real Estate” as escrow agent to the trustee appointed in the action. The court, however, had the original checks which were issued over the defendant’s signature and could assume from that fact alone that defendant had authority to issue checks on the account. Not mentioned by the parties is the additional fact that the record reveals letters from the “House of Real Estate” with the letterhead containing the names “A. M. ‘Mike’ Stauth and Randy Stauth.” Randy is Mike’s son and “Mike” Stauth is Andrew M. Stauth. The court had authority to order defendant to reissue the checks.
It is argued that the court lacked authority to direct defendant to issue a deed “as trustee” under the resulting trust. We find no merit in this argument, nor do we find merit in the argument that there were any inconsistencies between the court’s oral orders and the written journal entry. A review of the record reveals no substantial variance. Even if there was, the written order was signed by the judge and must control. Gill Mortuary v. Sutoris, Inc., 207 Kan. 557, 485 P.2d 1377 (1971).
Judgment affirmed. | [
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Rees, J.:
This is an appeal from the denial of a K.S.A. 60-1507 motion to vacate sentence.
A complaint charging petitioner with possession of a concealed weapon in violation of City Ordinance P.O. 83, § 57, a misdemeanor, was filed by the City of Overland Park in the Municipal Court of Overland Park, Kansas, on January 28, 1969. The next day, January 29, 1969, a complaint was filed by the State in the Magistrate Court of Johnson County. The latter complaint charged petitioner with having a pistol under his control after prior felony convictions (K.S.A. 1961 Supp. 21-2611, since repealed), a felony. The state charge arose from the same conduct and incident as that out of which the city charge arose.
Petitioner appeared on the state charge in the magistrate court on February 7, 1969, and the case was set for preliminary hearing on February 21, 1969.
On February 19,1969, petitioner was tried on the city charge in the municipal court, found guilty, sentenced to ten days in jail, and fined $50.00. On that same day, petitioner filed a notice of appeal to the district court together with an appeal bond. Petitioner was entitled to a trial de novo on appeal.
Preliminary hearing on the state charge was held in the magistrate court on February 21, 1969, and March 4, 1969, and he was bound over for trial in district court. The information on the state charge was filed on March 6, 1969, in the district court; he was arraigned March 19, 1969, and on May 2, 1969, he was convicted upon entry of a guilty plea and sentenced to serve not to exceed five years at hard labor.
On May 5, 1969, the city dismissed its case against petitioner which he had appealed to the district court.
Petitioner did not appeal the conviction entered upon his plea to the state charge; however, he has not been inactive. He brought a K.S.A. 60-1507 proceeding challenging the conviction on double jeopardy grounds. That action was resolved against him in Cox v. State, 208 Kan. 190, 490 P.2d 381, and petitioner raises no double jeopardy arguments in the present cáse. Petitioner later brought a second K.S.A. 60-1507 proceeding concerning his right to credit on his sentence for time spent in the custody of federal authorities awaiting trial on federal charges. That action was finally resolved against him in Cox v. State, 214 Kan. 652, 522 P.2d 173.
Now, in this third K.S.A. 60-1507 proceeding, petitioner argues that the recent United States Supreme Court decision in Blackledge v. Perry, 417 U.S. 21, 40 L.Ed.2d 628, 94 S.Ct. 2098, compels the conclusion that petitioner was deprived of due process of law. We disagree.
In Blackledge, the defendant was charged with the misdemeanor of assault with a deadly weapon in the District Court of Northampton County, North Carolina, convicted, and sentenced to six months in jail. North Carolina had a two-tier trial court system similar to that of Kansas prior to court unification. After taking an appeal to the Northampton County Superior Court, where the defendant was entitled to a trial de novo on the misdemeanor charge, and prior to his appearance for trial there, the state prosecutor obtained a grand jury indictment charging the defendant with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. Defendant pleaded guilty to the felony charge and was sentenced to five to seven years. Ultimately, defendant brought an action in the federal courts for a writ of habeas corpus.
In its decision, the United States Supreme Court held that the procurement of the felony charge by the prosecutor after defendant had exercised his right to appeal the misdemeanor conviction gave rise to the possibility of a realistic likelihood of prosecutorial vindictiveness in contravention of defendant’s right to due process of law. The heart of the opinion is as follows:
“The lesson that emerges from Pearce, Colten, and Chaffin [North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072; Colten v. Kentucky, 407 U.S. 104, 32 L.Ed.2d 584, 92 S.Ct. 1953; Chaffin v. Stynchcombe, 412 U.S. 17, 36 L.Ed.2d 714, 93 S.Ct. 1977] is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.
“. . . A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U.S. 570.
“Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.” (417 U.S. at 27-29.)
The Supreme Court based its decision in Blackledge largely upon the prior case of North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072, where it held that the Due Process Clause of the Fourteenth Amendment requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial, and that he must be freed of the apprehension of such retaliatory action by the sentencing judge. The Court concluded in Pearce that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be stated and the facts upon which the enhanced sentence is based must be made a part of the record.
The holdings in Pearce and Blackledge were recently discussed by the United States Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, as follows:
“This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, that the Due Process Clause of the Fourteenth Amendment ‘requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.’ The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a ‘realistic likelihood of “vindictiveness.” ’ Blackledge v. Perry, supra, 417 U.S. at 27.
“In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction. . . .” 357 U.S. at 362.
We cannot say that under the facts of this case petitioner was denied due process. The crucial difference between Blackledge and the present case is the fact that the felony prosecution against petitioner was commenced prior to petitioner’s appeal of the misdemeanor conviction. The felony charge was already pending when petitioner was tried and convicted on the ordinance violation and filed his notice of appeal. Petitioner cites no case, and we know of none, in which Blackledge has been applied to vacate a sentence under similar circumstances.
There is no evidence that the felony charge was brought or prosecuted in a manner designed to discourage petitioner from taking his appeal or to retaliate against him for having done so. The State did not unilaterally impose a penalty upon petitioner for choosing to attack the misdemeanor conviction. In the words of Blackledge, there was no “upping the ante” when petitioner appealed. The ante was already high. There was no substitution or filing of additional charges subsequent to the appeal. We conclude there was no realistic likelihood of vindictiveness by the prosecutors in their handling of petitioner’s cases and, therefore, no deprivation of due process.
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Foth, C.J.:
This is an interlocutory appeal by the State from an order suppressing evidence.
The evidence suppressed consisted of:
1. approximately 300 pounds of marijuana in sacks;
2. approximately 50 marijuana plants;
3. a box of pipes and other paraphernalia associated with the use of marijuana and hashish;
4. a hashish cooker;
5. a trash compacter containing marijuana;
6. two scales.
It had been seized under a search warrant by the sheriff of Rawlins county from the grounds and outbuildings of the farmstead occupied by the defendant, Jerry Brown.
The suppression hearing was conducted by the trial court after the defendant had been bound over for trial on a charge of possessing marijuana with intent to sell. The court found that the warrant failed to describe the premises to be searched with sufficient specificity, and that the affidavit in support of the warrant did not contain adequate facts to support a determination of probable cause. Because we agree that the affidavit was inadequate we do not reach the other question.
The rules relating to the issuance of search warrants are well settled, and were recently recapitulated in State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977):
“Sufficient facts must be placed before the issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant’s personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause . . . .”
At a suppression hearing the burden of proving that the search and seizure were lawful and supported by probable cause is on the State. K.S.A. 22-3216(2); State v. Morgan, supra.
In this case the sheriff’s affidavit contained the following statements:
“On Friday, October 7, 1977,1 was in the area of the residence of Jerry Brown in Rawlins County, Kansas and while there I drove into the yard to see if he was at home and noticed what I believed to be marijuana growing in a corral southwest of the barn on said property. I again observed the plants believed to be marijuana in the same location on the following day. Allen Brooks was with me and we looked at the marijuana through field glasses on Saturday and Dal Argabright was with me on Friday. We also found on Friday that quite a bit of marijuana had been harvested in the area near his home recently and feel that with the marijuana growing in his yard that there is reason to believe that he has stored some of the other marijuana harvested in the area and that it is probably stored in one of the buildings on the farmstead. Consequently, a search warrant is needed to search the farmyard and all buildings on said farmstead.”
As may be seen, there are only two relevant factual allegations in the affidavit: (1) the sheriff and others had seen marijuana growing in defendant’s corral; and (2) marijuana had recently been harvested by someone in the area near defendant’s farm home. From these two facts the magistrate was asked to draw the inference that marijuana was “probably stored in one of the buildings on the farmstead.” We agree with the trial court that the inference may not properly be drawn.
First, the presence of marijuana growing in the corral does nothing to show the presence of cut marijuana in the barn. We take judicial notice of the fact that marijuana grows wild throughout most of Kansas. There is no indication in the affidavit that the growing marijuana was cultivated or that any of it had ever been harvested, or that the corral was in such use that defendant was necessarily charged with knowledge of its presence.
Second, the fact that unknown persons had recently harvested marijuana “in the area near” defendant’s home gave no indication that defendant was the harvester. The affidavit says nothing about how near defendant’s home the harvesting took place, whether it was accessible to casual passersby, who else lived close to the harvested crop, or who owned the land on which it grew.
In short, there was absolutely nothing to tie defendant to the harvested marijuana except a vague allegation of geographical proximity and the presence of growing but unharvested marijuana in his corral. We agree with the trial court that these facts give rise to at best a suspicion, and do not show probable cause.
The State also suggests that the defendant did not have standing to raise the search and seizure issue because the farm on which he lived was actually owned by a corporation. This issue is being raised for the first time on appeal and will not be considered. In addition, the sheriff’s affidavit itself describes the premises to be searched as “the farmstead occupied by Jerry Brown,” and the possession charge must necessarily depend on defendant’s being in possession of the premises where the marijuana was found. Such possession was enough to give him standing.
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REES, J.:
This is an appeal by defendants from convictions for conspiracy to commit bribery as defined by K.S.A. 21-3302 and K.S.A. 21-3901. We affirm.
The prosecution of these defendants arises out of the award by the State of Kansas in March, 1972, of an architectural contract for expansion of the Kansas University Medical Center in Kansas City, Kansas. Defendant Sidorowicz is an architect and officer of the corporate defendant, Marshall and Brown-Sidorowicz.
The award of the contract was the subject of an investigation by then Attorney General Miller in the autumn of 1973. Initially, Miller’s investigation produced no evidence of wrongdoing and a statement was issued to the Kansas House of Representatives indicating no impropriety had been found. However, after issuance of the statement, Miller had a conversation with Robert Brandt, whose role will be later described, during which Brandt stated that a political payoff was involved in the award. Statements of Brandt and Kenneth McLain, whose role also will be later described, led to the impaneling of a grand jury in Shawnee County and indictments.
On January 22, 1974, the grand jury returned an indictment in which eighteen individuals and five corporations were charged with conspiracy to commit bribery. The indictment alleged that the defendants had conspired to bribe Richard Malloy, appointments secretary for then Governor Robert Docking. Three individuals were named as unindicted co-conspirators. A separate indictment charged Malloy with bribery.
Each defendant charged, including these two, appeared before the District Court of Shawnee County for arraignment, pleaded not guilty, and posted bond. Sidorowicz filed a personal recognizance bond on May 8, 1974.
By special legislation, the 1974 Kansas Legislature authorized, and appropriated funds for, the appointment of a special prosecutor to handle all criminal proceedings arising out of the grand jury indictments. Chapter 22, 1974 Session Laws. Pursuant to the statutory authorization, a special prosecutor was selected by the Shawnee County District Attorney without the approval of the Shawnee County Commissioners.
Following the posting of bond, the defendants filed various motions attacking the sufficiency of the indictments, the jurisdiction of the district court, the grand jury selection process, and a variety of other matters. Several of the motions challenging the indictments and the jurisdiction of the district court were denied. A judge pro tem was assigned to hear and determine defense motions that alleged illegality in the selection of the grand jury. These latter motions were sustained and the indictments- were dismissed. The State appealed the dismissal and the defendants cross-appealed from adverse rulings by the district court on their other motions.
In State v. Campbell, 217 Kan. 756, 539 P.2d 329, cert. den. 423 U.S. 1017, 46 L.Ed.2d 389, 96 S.Ct. 453 (1975), it was ruled that the grand jury selection procedure employed in Shawnee County was valid and dismissal of the indictments was reversed. On the cross-appeals, the district court rulings as to the sufficiency of the indictments, the jurisdiction of the district court, and other matters were affirmed. The cases were remanded to the district court for further proceedings.
The three unindicted co-conspirators named in the grand jury indictments were granted immunity and were witnesses for the State. Some defendants were tried and acquitted; the charges against others were dismissed. At the time of the trial of these two defendants, only one indicted defendant, Marshall & Brown of Kansas, a corporation, had been found guilty and that was upon a plea of nolo contendere. The defendants in this case were the last to come to trial. After lengthy testimony, a jury verdict of guilty as to both defendants was returned on January 16, 1976.
The evidence at trial indicated that as early as July, 1970, a proposed expansion of the Medical Center was under consideration. The architectural firm of Kivett & Myers was employed by the Medical Center to perform preliminary work. The proposed project cost was $50 million. There was considerable interest within the architectural community as to the award of the architectural contract for the planning phase of the project.
McLain, one of the unindicted co-conspirators, was a partner of Sidorowicz immediately preceding McLain’s appointment to the office of State Architect by Governor Docking in November of 1971. After his appointment, several firms, including Kivett & Myers and the defendant Marshall and Brown-Sidorowicz, contacted McLain expressing interest in the project.
Marshall and Brown-Sidorowicz was a corporate association or “team” of architectural firms organized for the purpose of procuring and performing the Medical Center contract. Sidorowicz was president and Frank Fisher, an architect and another of the three unindicted co-conspirators, was secretary-treasurer. One-half of its stock was owned by Marshall & Brown of Kansas, and the other one-half was owned by Sidorowicz. Fisher was chairman of the board of Marshall & Brown of Kansas at his retirement in 1973.
“Dick” Docking (hereafter “Docking”) is the brother of then Governor Docking and was treasurer of his brother’s 1972 gubernatorial campaign. Docking was one of the defendants indicted by the grand jury. The charges against him were among those dismissed.
In late 1971, Fisher and other principals of Marshall & Brown of Kansas met with Docking in Docking’s office in Kansas City. Fisher and the others informed Docking that they were putting together a “team” that included Sidorowicz to procure the architectural contract for the Medical Center project. During the conversation, Docking indicated that his brother would be running for re-election and that there would be a need for contributions. One of the participants at the meeting assured Docking that “we could be expected to help in that sort of thing.” Fisher came out of the meeting with the impression that a contribution would be required if the “team” was to get the contract.
In December of 1971, McLain met with Docking at the Victory Hills Country Club in Kansas City, Kansas. Docking suggested the firm of Marshall and Brown-Sidorowicz for award of the contract.
Meetings were held in February and March, 1972, for a presentation by the principal members of the Marshall and BrownSidorowicz “team” to state officials involved in the appointment of associate state architects and the contracting for architectural services. Neither Kivett & Myers nor any other architectural firm was given an opportunity to make a presentation.
In March, 1972, McLain had a conversation with Malloy. As a result of the conversation, McLain made a telephone call to Sidorowicz and told him “it would be advantageous to consider this $30,000 political contribution in relation and in connection with the work at K. U. Med Center.” The $30,000 figure was six percent of the $500,000 architectural fee for the planning phase of the project. McLain testified that Sidorowicz did not appear surprised by McLain’s statement, nor did he refuse to pay the amount.
A meeting took place at the Townhouse Hotel in Kansas City, Kansas, on March 21,1972. According to the State’s evidence, this meeting was a crucial event in its proof of the conspiracy. In attendance were McLain, Docking, Malloy, Fisher, Sidorowicz, Brandt, and other members of the “team.” Brandt, then director of the Kansas Department of Administration, was shown by the evidence to have played an important role in the letting of state architectural contracts and was the third unindicted co-conspirator.
Fisher testified that during the Townhouse Hotel meeting Sidorowicz asked him, “What do you think we’ll get this for?” Fisher responded that he would not be surprised at ten percent. Sidorowicz then said, “No, we’ll get it for six . . .” Fisher understood Sidorowicz’ statement to mean that the “team” would have to make a total contribution of $30,000 in order to get the contract. Sidorowicz also informed Fisher that ten percent of the total contribution, or $3,000, would have to be produced in cash that day. Fisher told Sidorowicz he did not have the cash with him, and Sidorowicz indicated Fisher could pay his share later. Sidorowicz then said he had to cash a check and left the meeting. Testimony of McLain and Brandt tended to confirm Fisher’s testimony that Sidorowicz left the Townhouse meeting to go to his bank to get the $3,000. Brandt testified that Malloy referred to the money obtained by Sidorowicz as “good faith money.”
The State produced evidence that Sidorowicz drew a check for cash upon the Kaw Valley State Bank in Kansas City on March 21, 1972, in the amount of $3,000.
Brandt testified that he returned by car to Topeka with Malloy and McLain after the Townhouse Hotel meeting, and when he asked Malloy if he got the money, Malloy grinned and held up three fingers.
On March 23, 1972, two days later, State Architect McLain formally recommended to Governor Docking the appointment of Marshall and Brown-Sidorowicz as associate state architects for the planning phase of the Medical Center project. The recommendation was approved by Director of the Department of Administration Brandt, and the firm then was formally appointed by the governor.
There was substantial evidence in the record that Malloy played a significant role in the appointment of associate state architects and the award of state architectural contracts. McLain testified that Malloy was the person in the governor’s office with whom he always talked concerning architectural contracts and that Malloy was, in effect, the representative of the governor as to such matters.
Shortly after the Townhouse Hotel meeting, discussions were held between Sidorowicz, Fisher, and other principals of the “team” as to how the payments to Malloy were to be made. It was agreed that the amount of the payments would be proportionate to the fees received. The contract provided that the architects were to be paid in installments as work was completed.
McLain testified that after the “team” received a payment from the State, he would receive a telephone call from Malloy, and, as a result of his conversation with Malloy, he would call Sidorowicz in Kansas City. McLain would tell Sidorowicz a further contribution was needed proportionate to the payment by the State, and that it should be delivered to McLain’s apartment in Kansas City, Kansas. McLain and Malloy would then drive to Kansas City and, pursuant to the instructions given to Sidorowicz over the telephone, receive the money at McLain’s apartment.
Fisher testified that after the “team” received the first installment of their fee from the State, he received a telephone call from Sidorowicz in which he was advised that a payment should be made at McLain’s apartment in Kansas City, Kansas. Fisher then notified members of the firm of Marshall & Brown of Kansas and collected their shares of the payment to be made to Malloy. The payment was then delivered in cash to McLain’s apartment. After subsequent installments were paid by the State, Fisher received telephone calls from Sidorowicz informing him that further contributions were required, and advising him as to when and where the payments were to be made. Apparently, the last payment on the six percent contribution was collected and paid in December, 1972.
All payments made to Malloy by Sidorowicz, Fisher and the other members of the “team” were in cásh. With one immaterial exception, the official financial reports filed with the Secretary of State by Governor Docking’s various campaign organizations revealed no contributions made by either these defendants, Fisher, or any of the principals of the architectural “team.”
On appeal defendants raise nineteen separate points. Most are argued on multiple contentions.
1. Defendants’ first contention is that the district court lacked both subject matter and personal jurisdiction.
First, the defendants argue the omission of the name of the State of Kansas from the captions of the grand jury indictment and the summonses was a jurisdictional defect fatal to subsequent prosecution. The first assertion of this argument shown in the record occurred after trial.
The failure to include the name of the State of Kansas in the captions of the indictment and summonses was not a fatal defect. It is the body of the indictment rather than its caption that is important. If the body specifically states the essential elements of the crime and is otherwise free from defect, defect in the caption will not cause it to be invalid. 41 Am. Jur. 2d, Indictments and Informations § 45, p. 905. Misnomers, mistakes, and omissions in the caption of an indictment have been held to be not fatal to prosecution thereunder. State v. Tauscher, 227 Or. 1, 360 P.2d 764, 88 A.L.R.2d 674 (1961); Stillman v. United States, 177 F.2d 607 (9th Cir. 1949); State v. Rolph, 140 Minn. 190, 167 N.W. 553 (1918). Our Supreme Court held in State v. Bland, 91 Kan. 160, 163-164, 136 Pac. 947 (1913), the omission from the title of an indictment of a statutory designation was not, in that case, a material omission requiring reversal.
K.S.A. 22-2104 provides that “[a]ll prosecutions for violations of the criminal laws of this state shall be in the name of the State of Kansas.” We conclude the statute does not require the name of the State of Kansas be included in the captions of the indictment and summonses in the present case. In absence of constitutional or statutory provisions on the subject, a formal statement in the indictment that the prosecution has been brought and is being carried on in the name and by the authority of the State is not necessary if this fact appears elsewhere in the record. 41 Am. Jur. 2d, Indictments and Informations § 48, p. 907. The purpose of K.S.A. 22-2104 is to protect the people of this state from private prosecutions which might degenerate into persecutions, and from prosecutions by any foreign power or a sovereignty other than this state. Caples v. State, 3 Okla. Crim. 72, 104 Pac. 493 (1909). The statute directs that the state, in its name and by its authority, shall control a prosecution. It does not require that the indictment or summons say on its face that the action is “prosecuted in the name and by the authority of the state.” State v. Thompson, 4 S.D. 95, 55 N.W. 725 (1893); Savage and James v. State, 18 Fla. 909 (1882). See, also, Dixon v. Commonwealth, 288 Ky. 57, 155 S.W.2d 455 (1941); Monroe v. State, 56 Tex. Crim. 444, 120 S.W. 479 (1909).
Defendants’ reliance upon State v. Farmers Union Cooperative Association, 170 Kan. 171, 223 P.2d 747 (1950), is misplaced. When that case was decided, Kansas had a specific statute requiring that all indictments and informations contain the names of the parties. G. S. 1935 62-1004. That statute was repealed in 1970 upon enactment of the new criminal code and was not in effect when the indictment and summonses were issued in the present case. Further, in State v. Farmers Union Cooperative Association, supra, the Supreme Court noted that the fact the prosecution was in the name of the State of Kansas did not appear from any pleading filed in the case. (p. 172.) In the present case, although the name of the State of Kansas does not appear in the caption of the indictment or the summonses, the omission is supplied in other pleadings filed.
If we were to hold that the omission of the name of the State of Kansas from the caption of the indictment and summonses was a defect, it would be a defect of a formal or technical nature and not jurisdictional. Objections to an indictment or information based on formal and unsubstantial defects ordinarily will be deemed to have been waived if not timely raised. 5 Am. Jur. 2d, Appeal and Error § 599, p. 64. Complaints relating to formal defects in an information, indictment, complaint or warrant are waived in a criminal action by not objecting thereto in some appropriate manner in the preliminary stages of the proceeding. State v. Yowell, 184 Kan. 352, 354-355, 336 P.2d 841 (1959); State v. Toliver, 109 Kan. 660,202 Pac. 99 (1921); State v. Addington, 205 Kan. 640, 472 P.2d 225 (1970); State v. Barry, 183 Kan. 792, 332 P.2d 549 (1958); State v. Dye, 148 Kan. 421, 83 P.2d 113 (1938); State v. Edwards, 93 Kan. 598, 144 Pac. 1009 (1914). Here, defendants raised no objection to the form of the indictment or summonses until after trial, nearly two years after the commencement of the prosecution.
K.S.A. 22-2306 specifically provides that “[a] warrant shall not be quashed or abated nor shall any person in custody for a crime be discharged from such custody because of any technical defect in the warrant.” Although the statute refers to a warrant, we hold it applicable to a summons.
The omission of the name of the State of Kansas from the indictment and the summonses, not constituting a jurisdictional defect, was a matter waived by the defendants for failure to raise timely objection.
Second, defendants question the service of the summonses upon them. Three reasons are advanced as to why the service was improper: (1) Each summons was directed to the Sheriff of Wyandotte County but was served by a specially appointed process server; (2) the affidavit of service does not show the time of service as required by K.S.A. 60-312(a)(2); and (3) the special process server was without authority because he served the summonses prior to his appointment.
The alleged defects raised by defendants do not relate to subject matter jurisdiction. Defects that concern jurisdiction of the person may be waived by a defendant who appears in court, pleads, posts bond, and fails to make seasonable objection. State v. Addington, supra; State v. Barry, supra; State v. Munson, 111 Kan. 318, 206 Pac. 749 (1922); State v. Grady, 147 Kan. 268, 76 P.2d 799 (1938).
Where a summons addressed to the sheriff of one CQunty is served by the sheriff of another county, the service is defective and subject to timely objection. Finn, Administratrix v. Veatch, 195 Kan. 410, 407 P.2d 535 (1965); Branner v. Chapman, 11 Kan. (2d ed.) *118 (1873). However, such defective service may be waived where a defendant appears, submits himself to the jurisdiction of the court, and fails to raise a timely objection. Home Owners Loan Corp. v. Clogston, 154 Kan. 257, 259, 118 P.2d 568 (1941).
Defendants have similarly waived their other two arguments.
K.S.A. 22-3208(4) provides that “[a] plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime.” If defendants had any meritorious objections to personal jurisdiction, they were waived by the entry of plea, posting of bond and submission to the jurisdiction of the trial court without assertion of such objections until after trial. State v. Lucas, 221 Kan. 88, 557 P.2d 1296 (1976).
2. Defendants next argue no prosecution was properly commenced and the statute of limitations has since run, barring any future prosecution. Defendants’ argument rests upon two contentions: (1) No warrants were issued for defendants and the district court did not order that summonses issue instead of warrants; and (2) a summons is not sufficient to toll the statute of limitations (K.S.A. 21-3106[5]).
The record on appeal does not include an order of the district court that summonses issue instead of warrants. The summonses issued each bear the signature of a judge and the clerk of the Shawnee County District Court. The summonses properly commenced the prosecution of this action and, if it be material, served to toll the statute of limitations.
K.S.A. 22-2303(1) states that “[w]hen an indictment is returned, as provided by section 22-3011, a prosecution shall be deemed to have begun. . . .” K.S.A. 22-2303(2) provides that when an indictment is filed a warrant for the arrest of the defendant shall issue; however, the court may order that a summons issue instead of a warrant. A summons may be signed either by the magistrate or the clerk of his court. K.S.A. 22-2304(2).
The record establishes that an indictment was duly filed and summonses were issued thereon. The absence of a written order by a judge of the Shawnee County District Court ordering that summonses issue instead of warrants does not invalidate the subsequent service of process. We cannot and will not presume that summonses were issued by the clerk without proper authority from the district court. Public officials presumably will per form their duties in a rightful manner and will not act improperly. Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989 (1965); State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957); Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P.2d 51 (1946).
However, even if we determined, which we have not, that the manner of issuance of the summonses was defective, defendants have waived the defect by failure to raise timely objection. K.S.A. 22-3208(4); State v. Addington, supra; State v. Barry, supra; State v. Munson, supra; State v. Grady, supra.
We cannot agree with the defendants’ contention that the issuance of a summons does not satisfy K.S.A. 21-3106(5) with respect to tolling the statute of limitations. Although that statute speaks only in terms of the issuance of a “warrant,” an interpretation of K.S.A. 21-3106(5) that would limit commencement of a prosecution to the filing of a complaint, information or indictment, and the issuance of a warrant, to the exclusion of a summons, is patently unreasonable and would defeat the clear legislative intent of K.S.A. 22-2302 to provide an alternate form of criminal process. A criminal prosecution, commenced by the filing of a complaint, information or indictment, upon which summons is issued pursuant to K.S.A. 22-2302, has been properly commenced for the purposes of K.S.A. 21-3106(5) and the statute of limitations is tolled.
3. Defendants argue the proceedings were conducted on behalf of the State by one who had no authority to act as special prosecutor. We have examined defendants’ argument and find it without merit. The authority of the special prosecutor did not expire by operation of law at the end of fiscal year 1975. Chapter 22, 1974 Session Laws, which authorized the appointment of a special prosecutor for Shawnee County, provided that the special prosecutor was “to assist in the prosecution of indictments returned by any grand jury impaneled in Shawnee County and any criminal proceedings having any relation thereto . . .” The special prosecutor’s authority continues as long as criminal proceedings continue. The record discloses that the contract between the special prosecutor and the district attorney was approved by the Legislative Budget Committee as required by the special legislation. The fact that the appointment of the special prosecutor was not approved by the Shawnee County Commissioners is irrelevant. The legislature specifically exempted the appointment of this special prosecutor from the requirement of approval by the County Commissioners found in K.S.A. 22a-106(d). The fact that the special prosecutor appointed was not a regularly employed assistant county attorney and continued to engage in the civil practice of law did not destroy his authority to act as special prosecutor. The special legislation provided that “said special assistant shall not be prohibited from engaging in the civil practice of law . . .” Further, K.S.A. 22a-106(d) exempts a special prosecutor from the restriction that assistant district attorneys not engage in the civil practice of law.
4. Defendants argue that in his closing argument the special prosecutor went beyond the bounds of fair comment upon the evidence by repeatedly commenting upon the uncontroverted nature of some of the State’s evidence and the failure of the defendants to produce evidence. It is said the State’s argument was a gross deviation from prosecutorial standards and constituted comment upon the failure of defendant Sidorowicz to take the stand and testify.
The record reveals defendants made no objection during the State’s argument. Defendants’ counsel elected to wait until after the special prosecutor had concluded and then orally lodged a general motion for mistrial for improper comments. No request was made to admonish the jury to disregard the allegedly improper remarks. Under such circumstances, we must conclude the defendants waived this claim of error concerning the closing argument.
Reversible error generally cannot be predicated upon a complaint of misconduct of counsel in opening or closing argument where no contemporaneous objection is lodged. State v. Johnson, 210 Kan. 288, 297, 502 P.2d 802 (1972); State v. Arney, 218 Kan. 369, 374, 544 P.2d 334 (1975); State v. Anicker, 217 Kan. 314, 536 P.2d 1355 (1975); State v. Murrell, 215 Kan. 10, 523 P.2d 348 (1974); State v. Newman, 213 Kan. 178, 515 P.2d 814 (1973); State v. Jones, 137 Kan. 273, 279, 20 P.2d 514 (1933).
Defendants’ reliance upon State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976), to justify their failure to make timely objection is misplaced. There the results of a blood alcohol test were admitted as evidence. The defendant did not object until after the trial was concluded. It was held that the contemporaneous objection rule need not be strictly applied so as to preclude consideration of the defendant’s objection. The trial in Gordon was to the court. One factor which governed the decision on appeal was the fact that “no jurors had been swayed by the improper evidence . . .” (p. 652.) In the present case the trial was to a jury and the jurors had already heard the special prosecutor’s closing argument in its entirety before the defendants raised their objection. The need for timely objection in a jury trial is significantly greater than in a trial to the court as in Gordon. If defendants had raised an early and timely objection to the State’s closing argument, the remarks could have been stricken if they were improper, the jury admonished to disregard the comments, and further prejudice avoided.
We cannot accept defendants’ argument that contemporaneous objection is not necessary to preserve the issue for appellate review where there has been “plain error.” Failure to comply with the contemporaneous objection rule may bar a challenge, even upon federal constitutional grounds, to a conviction in a state court. Kansas does not follow the “plain error” rule utilized in the federal courts. State v. Fisher, 222 Kan. 76, 83-84, 563 P.2d 1012 (1977).
Even if the defendants in this case had preserved their objection for appellate review, we could not uphold their position. The trial court found the statements made by the special prosecutor were in the realm of fair comment. We agree. The test as to whether a comment made by a prosecutor constitutes an improper reference to a defendant’s failure to testify is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955); State v. Carpenter, 215 Kan. 573, 576, 527 P.2d 1333 (1974). Having reviewed the entirety of the special prosecutor’s closing argument, we conclude that none of the alleged improper remarks were manifestly intended as or of such a character that the jury would naturally and necessarily take them to be comments on the failure of the accused to testify. Our conclusion is based upon consideration of the challenged remarks individually and collectively.
5. Defendants say the district court erred in admitting testimony of extra-judicial statements made by various alleged co-conspirators without first presenting evidence of a conspiracy and without giving proper cautionary instructions.
As to the necessity of presenting evidence of a conspiracy prior to admission of hearsay evidence under the co-conspirator exception to the hearsay rule, K.S.A. 60-460(i), State v. Borserine, 184 Kan. 405, 337 P.2d 697 (1959), is determinative. There the Kansas Supreme Court said in part:
“A conspiracy may be established by direct proof, or circumstantial evidence, or both. Ordinarily when acts and declarations of one or more co-conspirators are offered in evidence against another co-conspirator by a third party witness or witnesses, the conspiracy should first be established prima facie, and to the satisfaction of the trial judge. But this cannot always be required. Where proof of the conspiracy depends on a vast amount of circumstantial evidence — a vast number of isolated and independent facts — it cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at the trial taken together shows that a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations. (State v. Winner, 17 Kan. 298.)” (Syl. 4.)
In the present case, the whole of the evidence introduced at trial, taken together, clearly showed that a conspiracy existed and it is immaterial whether the conspiracy was established prima facie before or after the introduction of the hearsay evidence.
Defendants rely upon the decision of the United States Supreme Court in Lutwak v. United States, 344 U.S. 604, 97 L.Ed. 593, 73 S.Ct. 481 (1953), and other federal decisions stemming therefrom, to support their argument that a cautionary instruction should have been given to the jury prior to the admission of any hearsay evidence under the co-conspirator exception to the hearsay rule.
Our review of the record fails to locate any timely objection by defendants to the trial court’s failure to give a cautionary instruction, and defendants have referred us to none. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires, stating distinctly the matter to which he objects and the grounds of his objection, unless the instruction was clearly erroneous. K.S.A. 60-251(h). The failure to give the cautionary instructions defendants now propose was not clearly erroneous.
However, even if defendants had made a timely objection, our review of Lutwak does not indicate that a cautionary instruction was required. Lutwak recognized the general rule that declarations of one conspirator, made in furtherance of the conspiracy, may be used against all co-conspirators on the theory that the declarant is an agent of the other conspirators. (344 U.S. at 617.) However, declarations of a conspirator, not in furtherance of the conspiracy, are admissible at trial only as to the declarant and to prove the declarant’s participation in the conspiracy, and such declarations are inadmissible a.s to all others. (344 U.S. at 618.) The Supreme Court stated that when a trial court admits into evidence hearsay declarations of a co-conspirator not in furtherance of the conspiracy it must instruct the jury at the time of the admission as to the limited consideration it may be given. (344 U.S. at 618.)
Even assuming, without deciding, the evidentiary rules set forth in Lutwak are wholly applicable in Kansas, they would not aid the defendants. Most of the hearsay admitted in the present case was that of co-conspirators made in furtherance of the conspiracy. Such evidence, according to Lutwak, is admissible as to all co-conspirators. The remaining hearsay, statements of co-conspirators Brandt and McLain allegedly made after the conspiracy had ended, was admissible under an exception to the hearsay rule other than K.S.A. 60-460(i), the co-conspirator exception. This latter hearsay will be discussed in the following section.
6. Defendants next contend that the district court erred in permitting Miller to testify as to conversations he had with State’s witnesses Brandt and McLain after the conspiracy had ended. Miller’s testimony was relevant evidence properly admissible under the exception to the hearsay rule embodied in K.S.A. 60-460(a).
Both Brandt and McLain were present at the hearing and available for cross-examination. When Miller was called as a witness, both Brandt and McLain had previously testified and had been cross-examined by the defendants. So far as is shown by the record, the defendants, if they had chosen to do so, could have requested Brandt and McLain be recalled for further questioning after Miller had testified. Under such circumstances, we must conclude Miller’s testimony as to his conversations with Brandt and McLain was admissible under K.S.A. 60-460(a). State v. Fisher, supra, p. 82; State v. Collazo, 1 Kan. App. 2d 654, 574 P.2d 214 (1977).
The fact that neither Brandt nor McLain was physically present in the courtroom when Miller testified is of no moment. The record indicates no effort was made to seek the return of Brandt and McLain to the courtroom while Miller was testifying. On the contrary, there is some indication the two were absent from the courtroom because of the defendants’ request that the State’s witnesses be sequestered. The absence of Brandt and McLain from the courtroom did not render them unavailable for cross-examination so as to exclude the admission of Miller’s testimony under K.S.A. 60-460(a). State v. Taylor, 217 Kan. 706, 712-713, 538 P.2d 1375 (1975).
The credibility of Brandt and McLain was assailed by defense counsel throughout the trial. References were made to the fact that both men were bitter about the lack of help they received from Governor Docking during their unsuccessful confirmation proceedings. Reference was made to the fact that each had received immunity from prosecution in exchange for his testimony. Impeachment occurs when a suggestion is made by direct proof or by nature of an examination that a witness has testified falsely for hope of reward, promise of immunity, fear, or malice. State v. Scott, 210 Kan. 426, Syl. 2, 502 P.2d 753 (1972). Where a witness has been impeached or his credibility has been attacked, prior statements consistent with his testimony may be shown to rehabilitate or support the witness. State v. Parrish, 205 Kan. 178, Syl. 2,468 P.2d 143 (1970); State v. Scott, supra, pp. 431-432. Miller’s statements were admissible to rehabilitate or support the prior testimony of Brandt and McLain.
7. It is claimed the district court erred in allowing the State to examine Charles Campbell on redirect examination concerning the plea of nolo contendere entered by Marshall & Brown of Kansas and in permitting the special prosecutor to comment upon the nolo contendere plea in his closing argument.
We are unable to find in the record a contemporaneous objection lodged by the defendants during either the questioning of Campbell or the State’s closing argument. Again, failure to comply with the contemporaneous objection rule bars defendants’ challenge. State v. Fisher, supra, pp. 83-84. There is strong authority from other jurisdictions that a defendant is not entitled to a reversal on the basis of a prosecutor’s statement before the jury that a co-defendant has pleaded guilty to the same offense where defense counsel fails to make a timely objection or to request curative action from the court. People v. Shegog, 44 Mich. App. 230, 205 N.W.2d 278 (1972); State v. Hodgson, 44 N.J. 151, 207 A.2d 542 (1965); Lowery v. State, 21 Ala. App. 352, 108 So. 351 (1926); Grandbouche v. People, 104 Colo. 175, 89 P.2d 577 (1939).
Defendants’ reliance upon United States v. Harrell, 436 F.2d 606 (5th Cir. 1970), for the proposition that an appellate court may consider the propriety of a prosecutor’s reference to a co-defendant’s plea of guilty, in absence of a timely objection by the defendant, is misplaced. That decision rests upon the federal “plain error” rule, and, as noted earlier, Kansas has no such rule. State v. Fisher, supra, p. 84.
Additionally, and assuming there was error resulting from the special prosecutor’s references to the nolo contendere plea of Marshall & Brown of Kansas, it was provoked and invited by the defendants. There can be no real doubt but that defendants, as a part of their trial strategy, intentionally injected into the trial the fact that other defendants had been acquitted or the charges against them had been dismissed. This occurred through statements of defense counsel made on several occasions beginning with the voir dire and continuing throughout the trial.
One who by his acts invites error is in no position to complain or take advantage of it on appeal. State v. Thomas, 220 Kan. 104, 551 P.2d 873 (1976); State v. Champ, 218 Kan. 389, 543 P.2d 893 (1975); State v. Cantrell, 201 Kan. 182, 440 P.2d 580 (1968); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970). There is no prejudicial error when a statement of a prosecutor is provoked and made in response to previous statements of defense counsel. State v. Clark, 222 Kan. 65, 563 P.2d 1028 (1977); State v. Robinson, 219 Kan. 218, 547 P.2d 335 (1976). It has generally been held that a defendant may not predicate error upon a prosecuting attorney’s argument or a disclosure during trial that another defendant has been convicted or has pleaded guilty, where such argument or disclosure was provoked or induced by the defendant’s counsel. 48 A.L.R.2d, Anno.: Conviction or Guilty Plea of Another § 4[e], p. 1031; Klose v. United States, 49 F.2d 177 (8th Cir. 1931).
8. The next argument of defendants is that the trial court erred in admitting the testimony of McLain and Brandt as to statements made by Malloy. Defendants contend the testimony was hearsay not admissible under the statutory exceptions.
We are unable to find in the record any reference in McLain’s testimony to statements made by Malloy, and defendants’ brief refers us to none.
Brandt testified as to two statements by Malloy. It was Brandt who testified that during the trip back to Topeka after the Townhouse Hotel meeting Malloy indicated, by holding up three fingers, that he had received money at the meeting. There was no contemporaneous objection. This testimony is not subject to review. K.S.A. 60-404.
The other reference by Brandt to statements of Malloy occurred during direct examination of Brandt concerning the Townhouse Hotel meeting. After Brandt testified that the luncheon was delayed, the following exchange occurred:
“Q. Now, did you discuss with anyone what the delay was?
“A. Yes. I said what’s the delay? Why don’t we sit down and eat.
“Q. Who were you discussing this with?
“A. Probably Malloy — Malloy, Dick Docking.
“Q. All right, and when you asked what the delay was, what was the response.
“MR. HECHT: Objection — hearsay.
“THE COURT: Mr. Bennett, do you want to respond to that objection.
“MR. BENNETT: Well, Your Honor, it would be our position, the same position that we have taken previously in that regard, that if the individual who made the statement or any of those individuals alleged to be co-conspirators- — that’s an exception to the hearsay rule.
“THE COURT: Permit the witness to answer.
“A. Well, the answer was that [Sidorowicz] had to go out and get the money.
“Q. . . . What money?
“A. Well, it was referred to as ‘good faith money.’
“Q. Who referred to it as ‘good faith money’?
“A. Dick Malloy.”
Thus, Brandt testified that Malloy had told him that Sidorowicz had left the meeting for the purpose of getting the “good faith money.”
There was evidence in the record that Malloy, if called to testify, would exercise his Fifth Amendment right to remain silent. Relying upon State v. Oliphant, 210 Kan. 451, 502 P.2d 626 (1972), defendants claim Malloy was not available for cross-examination within the meaning of K.S.A. 60-460(a), and therefore this testimony was inadmissible hearsay.
We need not decide whether Brandt’s testimony would have been admissible under K.S.A. 60-460(c) since it was admissible under another exception to the hearsay rule, the co-conspirator exception. K.S.A. 60-460(i), which we have heretofore referred to but not quoted, provides in part as follows:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(i) Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination . . .”
The State’s evidence sufficiently proved that Malloy and Sidorowicz were “participating in a plan to commit a crime . . .” The statement made by the declarant Malloy and heard by the witness Brandt was relevant to the criminal plan and was made while the plan was in existence and before its complete termination. The testimony was admissible.
9. Defendants maintain that the district court erred in allowing the special prosecutor to argue during closing argument that the defendants had failed to prove their innocence. Defendants point to four passages in the State’s closing argument that they contend constitute reference to their failure to prove their innocence. The challenged argument, defendants claim, deprived them of their constitutional right to remain silent and to require the State to prove its allegations against them beyond a reasonable doubt.
Once again, defendants did not make a timely and specific objection to the State’s allegedly prejudicial closing argument. The rule of waiver discussed earlier is applicable here. And, also once again, reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument to the jury where no timely objection is lodged. State v. Johnson, supra; State v. Anicker, supra; State v. Murrell, supra. Furthermore, examination of the argument compels us to conclude that the statements made cannot be reasonably construed as argument that defendants failed to prove their innocence.
10. It is urged that defendants’ convictions must be reversed because of “misconduct of the prosecutor in advising and in forming the witness Robert Brandt what to testify to in regard to the Townhouse Hotel incident.” We disagree. Brandt testified that after returning to Topeka with Malloy and McLain on March 21, 1972, he traveled to Kansas City a second time and checked into the Townhouse Hotel. He identified his hotel registration card which was admitted as an exhibit. On cross-examination he testified that he registered some time between 10:24 p.m. and 5:30 a.m. that night. When asked how he knew his registration was within that time span, the substance of his response was that the special prosecutor had informed him that the State’s investigation had developed the information. His personal knowledge was “it could probably be 10:30 [p.m.].” A representative of the Townhouse Hotel later testified that the registration was taken by an employee who had been on duty between 10:30 p.m. and 7:00 a.m.
However viewed, Brandt’s testimony is not shown to have been false. It was elicited on cross-examination. Although his second statement of the time was based on his personal recollection, his first statement of the time was based on information furnished by the State. There was no motion to strike his first statement.
A witness is qualified to testify only as to those facts which he knows of his own knowledge, and if on cross-examination it appears that a witness does not know the facts to which he has testified, his evidence should be excluded. 81 Am. Jur. 2d, Witnesses § 75, p. 114; Mann v. National Bank, 34 Kan. 746, 10 Pac. 150 (1886); Gas Co. v. Glass Co., 56 Kan. 614, 44 Pac. 621 (1896).
We discern no misconduct on the part of the special prosecutor requiring reversal. There is no evidence that the special prosecutor knowingly offered false or inadmissible evidence. The challenged testimony was not offered by the State; it was not false; and there was no request that it be stricken after having been elicited on cross-examination by the defense.
11. The defendants assert that the district court erred in failing to strike from the indictment the alleged overt acts of those co-defendants who had been acquitted or had charges against them dismissed and in admitting evidence of out-of-court declarations made by them under K.S.A. 60-460(i).
The cases relied upon by the defendants stand for the proposition that where all but one of the charged co-conspirators are acquitted, a verdict against one will not stand. Romontio v. United States, 400 F.2d 618 (10th Cir. 1968); Herman v. United States, 289 F.2d 362 (5th Cir. 1961). The corollary rule is that “where the substantive offense is the overt act supporting conviction on the conspiracy count, an acquittal of the substantive offense operates as an acquittal of the conspiracy count, if the acquittal of the substantive offense constitutes a determination that the overt act was not committed. . . .” Herman v. United States, supra, p. 368.
In addition to these defendants who have been found guilty of conspiring to bribe Malloy, the indictment named three unindicted co-conspirators who were never prosecuted by the State and no determination as to their guilt or innocence was ever made. The Tenth Circuit recognized in Romontio, supra, p. 619, that “the result might well be different” where other known conspirators named in the indictment were not included as defendants. The conviction of one remaining defendant in a conspiracy prosecution is unaffected by failure to convict his co-defendants where it is alleged and proved that there were others not brought to trial because they were granted immunity. 91 A.L.R.2d, Annot.: Conspiracy — Other Parties — Disposition § 10, p. 721. Here, one other conspirator named in the indictment, Marshall & Brown of Kansas, pleaded nolo contendere and was found guilty. Of the 46 overt acts alleged in the indictment, several involved actions by these defendants, the three unindicted co-conspirators, and Marshall & Brown of Kansas. Under such circumstances, we must conclude that the cases relied upon by defendants are not applicable to the present case.
A jury may properly consider overt acts of acquitted or dismissed co-conspirators in the trial of other co-conspirators where they are not the only overt acts alleged. United States v. Musgrave, 483 F.2d 327, 333-334 (5th Cir. 1973).
The fact that other alleged co-conspirators were acquitted or had charges against them dismissed does not necessarily and standing alone render K.S.A. 60-460(i) unavailable to the State for the purpose of introducing evidence of their out-of-court declarations.
Generally, in conspiracy cases, broad discretion and great latitude are permitted in the reception of evidence. 15A C.J.S., Conspiracy § 29, p. 690; Phelps v. United States, 160 F.2d 858, 873 (8th Cir. 1947); Wangrow v. United States, 399 F.2d 106 (8th Cir. 1968).
In Kansas, out-of-court declarations have been held admissible under the co-conspirator exception to the hearsay rule even though the declarant has not been joined in the indictment and no conspiracy is charged therein. State v. Borserine, supra, Syl. 2; State v. Shaw, 195 Kan. 677, 680, 408 P.2d 650 (1965); State v. Adamson, 197 Kan. 486, 419 P.2d 860 (1966).
If a proper foundation establishing a prima facie case of a conspiracy, including some extrinsic evidence other than the hearsay itself, between defendant and declarant (State v. Borserine, supra; State v. Nirschl, 208 Kan. 111, 114, 490 P.2d 917 [1971]) is made out, and the other statutory requirements are met, then the out-of-court declarations of a co-conspirator are admissible under K.S.A. 60-460(1). We have been directed to no Kansas, or other, case law which would require us to create an exception to the foregoing rule in every instance where the declarant has previously been acquitted of the conspiracy charge or had charges dismissed.
The acquittal and dismissal of other charged co-conspirators upon separate trials does not necessarily amount to more than that there was failure of proof as to those defendants. Their cases were tried to other juries. They may have been tried on other evidence. Their acquittals may have been for any number of reasons having nothing to do with their guilt. See Platt v. State, 143 Neb. 131, 142-143, 8 N.W.2d 849 (1943); State v. Holzer, 102 Cal. Rptr. 11, 25 Cal. App. 3d 456 (1972); Rosecrans v. United States, 378 F.2d 561 (5th Cir. 1967).
12. Defendants next argue they were denied their constitutional right of confrontation because the trial court permitted the State’s witnesses to testify as to out-of-court statements made by unidentified persons. Defendants contend that much of the testimony of Brandt and Fisher concerning what was said by the participants at the Townhouse meeting on March 21, 1972, was inadmissible hearsay since those witnesses could not identify by whom the statements were made.
We have reviewed all parts of the record referred to by the defendants in their briefs and find that, with one exception, defendants failed to raise timely objections to the disputed testimony. We shall not review any of the testimony to which no objection was lodged.
During direct examination of McLain defendants did make a timely and specific objection. McLain had stated that someone, whom he could not identify, had told him where Sidorowicz had gone during the Townhouse meeting. When the State asked McLain what he had been told by the unidentified declarant, defendants objected on the ground it was hearsay. The court overruled the objection and McLain was permitted to testify that someone told him Sidorowicz had gone to the bank.
Again, we must conclude that the evidence was admissible under K.S.A. 60-460(i). There was evidence that all the participants at the Townhouse meeting “were participating in a plan to commit a crime . . .” and whoever made the statement to McLain, although the declarant could not be identified, was a co-conspirator. State v. Borserine, supra; State v. Shaw, supra; State v. Trotter, 203 Kan. 31, 453 P.2d 93 (1969).
13. Defendants argue that the district court’s instruction No. 2 was erroneous. The instruction set forth the elements of conspiracy and bribery. Defendants claim the instruction was erroneous for two reasons.
First, it is said the instruction was erroneous because it failed to exclude all overt acts committed by those co-conspirators against whom charges had been dismissed or who had been acquitted. Defendants contend the district court should have instructed the jury that overt acts performed by the individuals in question could not be considered by the jury. We have held above that the district court did not err in refusing to strike from the indictment the overt acts allegedly committed by those persons who were subsequently acquitted or against whom charges were dismissed. Having so ruled, we discern no error in permitting the jury to consider overt acts committed by those indicted co-conspirators who were subsequently acquitted or had charges dismissed. United States v. Musgrave, supra, p. 333.
Secondly, defendants contend the instruction was erroneous in that it instructed the jury that defendants could be found guilty of bribing Malloy even though Malloy had no power or authority to bring about the ends the defendants allegedly sought. Defendants contend there was no evidence that there was a power or duty on the part of Malloy that could cause anyone to be appointed to the position of associate state architect. They assert that Malloy, by virtue of his position as appointments secretary to Governor Docking, had no power or authority as to the selection of associate state architects.
K.S.A. 21-3901 defines bribery as follows:
“(a) Offering, giving or promising to give, directly or indirectly, to any public officer or public employee, any benefit, reward or consideration to which he is not legally entitled with intent thereby to influence such officer or employee with respect to the performance of his powers or duties as such officer or employee . .
Although the evidence did not indicate that Malloy had direct authority to award architectural contracts or appoint associate state architects, there was substantial evidence that he played a large, and possibly decisive, role in the process of selecting associate state architects and awarding architectural contracts. The fact that Malloy did not have the final authority to appoint associate state architects is not controlling. In State v. Campbell, 73 Kan. 688, 85 Pac. 784 (1906), a board of education had given authority for the letting of cleaning contracts to a superintendent of buildings. A member of the board was found guilty of bribery for receiving money to influence the superintendent to award the contract to a particular party. Federal cases are persuasive authority because the federal bribery statute (18 U.S.C. § 201) is similar to the Kansas bribery statute. In United States v. Carson, 464 F.2d 424 (2nd Cir. 1972), cert. den. 409 U.S. 949, 34 L.Ed.2d 219, 93 S.Ct. 268, it was held that an administrative assistant to a United States Senator was subject to the federal bribery statute in relation to his attempt to influence a federal agency, even though there was no direct power on his part to effect the result desired from the agency. In the opinion, cases from several federal circuit courts are cited for the following statement:
“There is no doubt that federal bribery statutes have been construed to cover any situation in which the advice or recommendation of a Government employee would be influential, irrespective of the employee’s specific authority (or lack of same) to make a binding decision. . . .” (p. 433.)
Under the evidence, Malloy’s recommendation as to the appointment of associate state architects was a substantial influence upon the ultimate selection. There was no error.
14. Marshall and Brown-Sidorowicz argues the district court erred in not requiring the State to identify which of its officers were agents engaged in the conspiracy. The argument is based on the general rule that an indictment or information must be sufficient to apprise a defendant of the charge against him.
It has been specifically held that an indictment need not allege for whose act a corporation is being charged in a criminal case. United States v. Detroit Sheet Metal & Roofing C. Ass’n, 116 F. Supp( 81, 91 (E.D. Mich. 1953); United States v. Van Allen, 28 F.R.D. 329 (S.D.N.Y. 1961); State v. Oregon City Elks, 17 Or. App. 124, 520 P.2d 900 (1974).
We are unable to apprehend how Marshall and BrownSidorowicz was prejudiced. It had only two officers: Sidorowicz was president and Frank Fisher was secretary-treasurer. Moreover, the only shareholders were Sidorowicz and Marshall & Brown of Kansas. The listing of overt acts in the indictment was sufficient to inform Marshall and Brown-Sidorowicz which of its officials, or both, had engaged in the conspiracy.
15. Defendants next contend that the district court erred in denying their motions for mistrial, new trial, for acquittal, and for judgment n.o.v. This is a catch-all argument which presents nothing additional for our consideration. The propriety of the district court rulings upon the defendants’ motions depends upon the propriety of its decisions as to the substantive issues discussed elsewhere in this opinion.
16. Defendants argue the district court erred in denying their motion for separate trials and that serious prejudice resulted from such denial. In review of the record, we find no proper motion for separate trial filed by either of these defendants. A motion was filed by various former co-defendants as to their interests in Marshall and Brown-Sidorowicz; however, no motion was made for a separate trial by and on behalf of the corporation itself. Under such circumstances, we conclude that review of the district court’s action is unnecessary. Further, the granting or denial of a motion for a separate trial is a matter within the sound discretion of the trial court and will not be overturned on appeal absent a clear abuse of discretion. State v. Norwood, 217 Kan. 150, 158, 535 P.2d 996 (1975); K.S.A. 22-3204. We find no abuse of discretion in the present case. Where two or more defendants are indicted for a joint transaction, it is inadvisable to split up the cases into many parts for separate trial in absence of very strong and cogent reasons therefor. United States v. Smith, 209 F. Supp. 907, 914 (E.D. Ill. 1962); United States v. Wolfson, 294 F. Supp. 267, 275 (D. Del. 1968).
17. Defendants argue it was reversible error for the district court to deny Sidorowicz the opportunity to have a board of paroles review his case. Sidorowicz contends that, since K.S.A. 20-2305 and K.S.A. 20-2305a provide for compensation for the district court judges who make up the paroles board, the district court is therefore obligated to convene the paroles board when requested to do so by a defendant. We cannot agree.
K.S.A. (now 1977 Supp.) 20-2301 authorizes the creation of a board of paroles in multi-judge districts such as Shawnee County. It is permissive. K.S.A. 20-2302 and K.S.A. 20-2303 prescribe the powers and duties of a board of paroles.
Nothing in the foregoing statutes compelled the district court to convene its board of paroles when asked to do so by a criminal defendant. We find no error in the refusal of the district court to grant Sidorowicz’ request for board review.
18. Defendants assert the evidence was insufficient to sustain a verdict of guilty as to either defendant.
An appellate court’s function in reviewing sufficiency of evidence, whether circumstantial or direct, to support a conviction is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt. State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977); State v. Duncan, 221 Kan. 714, 562 P.2d 84 (1977); State v. Ritson, 215 Kan. 742, 529 P.2d 90 (1974).
In the present case there was sufficient evidence for a reasonable inference of guilt as to both defendants.
As to Sidorowicz, there was testimony by McLain that he told Sidorowicz that a $30,000 political contribution to Governor Docking’s campaign would be “advantageous” to Marshall and Brown-Sidorowicz’ prospects for award of the Medical Center architectural contract. McLain testified Sidorowicz was not surprised by the request for a contribution, nor did he refuse to make it. McLain also testified that during the meeting at the Townhouse Hotel in Kansas City, Kansas, on March 21, 1972, he had been told, upon noticing that Sidorowicz had left the meeting, that Sidorowicz had gone to the bank to get $3,000. Brandt’s testimony corroborated McLain’s that Sidorowicz had left the Townhouse Hotel meeting to get the money. Brandt stated that the money Sidorowicz went to get was referred to by those in attendance at the meeting as “good faith money.” A cashier and custodian of records at Sidorowicz’ Kansas City, Kansas, bank testified that Sidorowicz withdrew $3,000 on March 21, 1972. The check was admitted into evidence at the trial.
Fisher testified that Sidorowicz told him at the Townhouse meeting that Marshall and Brown-Sidorowicz would get the Medical Center architectural contract in exchange for a contribution equaling six percent of the contract. Sidorowicz also told Fisher that a ten percent down payment upon the political contribution would have to be paid that day in cash. McLain also testified as to telephone conversations with Sidorowicz, subsequent to the Townhouse meeting, in which he told Sidorowicz when further installments of the political contribution were required and when and where payments were to be made. There was testimony that Sidorowicz would call Fisher when further payments to the Docking campaign were required and would advise Fisher as to how payment was to be made. McLain testified how, according to instructions he gave Sidorowicz over the telephone, the money was collected at McLain’s Kansas City, Kansas, apartment. There was evidence that none of the financial reports filed by Governor Docking’s campaign organizations disclosed any contribution made by these defendants. The foregoing evidence is sufficient to establish a reasonable inference that Sidorowicz engaged in a conspiracy to bribe Governor Docking’s appointments secretary, Malloy, for the purpose of procurement of the architectural contract.
The same evidence is applicable to the corporate defendant Marshall and Brown-Sidorowicz. Sidorowicz was president of the corporate defendant and Fisher was secretary-treasurer. The acts of both officers were imputable to the corporation.
19. The defendants last assert that the prejudicial cumulative effect of the claimed errors previously designated and discussed resulted in a denial of a fair trial to both defendants. We do not agree. The points raised by defendants, whether considered individually or cumulatively, did not deny defendants a fair trial. We have examined in some detail the lengthy record on appeal in this case. We are impressed with the district court’s skillful handling of the complex issues which arose. The rights of the defendants were protected and a fair trial had.
As a final matter, we note that subsequent to the briefing of this case by the parties our Supreme Court has filed opinions in State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), and State v. Moody, 223 Kan. 699, 576 P.2d 637 (1978). We have studied the opinions and are satisfied that our views and conclusions are not contrary thereto.
Affirmed. | [
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Spencer, J.;
Defendant was brought to trial on September 26, 1977, on an information charging him with twenty counts of forgery (K.S.A. 21-3710). During voir dire defense counsel told the jury that, in a civil case as opposed to a criminal case, “nobody is going to be put in jail, nobody is going to be deprived of his liberty.” The trial judge sustained an objection to the statement and cautioned defense counsel not to argue possible sentence to the jury. The matter was later discussed in chambers with the trial judge again admonishing defense counsel to make no reference to possible sentence.
On the fourth day of trial, a tape-recorded statement of Joan Norwood, the State’s principal witness, was played to the jury. In that statement, Norwood indicated that defendant had stolen the checks, provided her with identification, and accompanied her when she cashed the checks at banks and retail stores. She also stated that no promises or threats had been made to her before she gave her statement to the police.
During cross-examination, defense counsel asked Norwood the following question:
“Did you understand, when you were talking about admitting to writing all of those checks and passing all of those checks, that each incident held the possibility of three to ten years in prison?”
The State immediately objected and, outside the presence of the jury, moved for a mistrial “for the reason that Mr. Phelps has interjected into the record on cross-examination the possibility of sentence in a Class D felony forgery case, referring to the very same counts, some of them, that Mr. Fisher is charged with . . . .” The motion was sustained and a mistrial was declared over objection by defendant.
Defendant subsequently filed a motion for discharge on grounds of double jeopardy. The trial court denied the motion and defendant has appealed to this court.
We are immediately confronted with the issue of the jurisdiction of this court to consider on appeal a pre-trial order denying a motion for discharge on grounds of double jeopardy.
It has repeatedly been held that the “right to an appeal is neither a vested nor constitutional right, but is strictly statutory in nature . . . .” In re Waterman, 212 Kan. 826, 830, 512 P.2d 466 (1973); State v. Burnett, 222 Kan. 162, 563 P.2d 451 (1977).
K.S.A. 1977 Supp. 60-2101(a) provides in part:
. . Appeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 1977 Supp. 22-3601 and 22-3602, and any amendments thereto . . .
K.S.A. 1977 Supp. 22-3602(a) provides in part:
“An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed . . .
In State v. Hickerson, 184 Kan. 483, 337 P.2d 706 (1959), the court noted what is now K.S.A. 1977 Supp. 22-3602(a), supra, and stated:
“. . . It is clear that the statutes pertaining to criminal procedure and to appeal in criminal cases only provide for an appeal by a defendant in a criminal case after a final judgment therein . . . (184 Kan. at 484.)
In Hickerson, it was specifically held that, in a criminal action, an appeal does not lie from an order sustaining a demurrer to a plea of former jeopardy until after trial and final judgment. The court there directed attention to the case of State v. Wallace, 172 Kan. 734, 243 P.2d 216 (1952), and cases cited therein.
Defendant urges this court to accept jurisdiction and has referred us to the case of Abney v. United States, 431 U.S. 651, 52 L.Ed.2d 651, 97 S.Ct. 2034 (1977). Defendant argues that, regardless of what the law of Kansas may have been prior to Abney, such must now yield to the construction given the United States Constitution by the United States Supreme Court. While that position is accurate, the issue is not so clearly defined.
The question in Abney was not whether there was a constitutional right to appeal from denial of a pre-trial motion to dismiss an indictment on grounds of double jeopardy, but whether such denial was a “final decision” within the meaning of 28 U.S.C. § 1291. That section provides:
“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.”
This statute applies to both civil and criminal appeals in the federal courts. Abney, supra, at n. 4. In Kansas, however, K.S.A. 1977 Supp. 60-2101(a), supra, makes appeals in criminal cases subject to the separate criminal appeals statutes, K.S.A. 1977 Supp. 22-3601 and 3602, while appeals in civil cases are subject to K.S.A. 60-2102. The latter statute in subsection (a) (4) is virtually identical to the federal statute (28 U.S.C. § 1291) construed in Abney. It allows appeals to the court of appeals from “[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law . . . .” (Emphasis added.) On the other hand, K.S.A. 1977 Supp. 22-3602(a), supra, provides for appeals by the defendant as a matter of right in criminal cases from any “judgment against said defendant . . . .” (Emphasis added.)
In holding that the order denying the motion to dismiss on grounds of double jeopardy was a “final decision,” the United States Supreme Court relied upon the “collateral order” exception to the final judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L.Ed. 1528, 69 S.Ct. 1221 (1949). As explained in that case, quoted in Abney, this doctrine is concerned with “‘that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’” (431 U.S. at 658-659.) We are unaware of any authority in this state wherein the “collateral order” exception to the final judgment rule has been adopted or even considered.
In Abney, the Supreme Court held that the denial of a motion to dismiss based on double jeopardy fits within the “collateral order” exception because first, the order constitutes a complete and final rejection of the double jeopardy claim; second, the very nature of the double jeopardy claim makes it separable from and collateral to the issue of the trial, i.e., the guilt or innocence of the accused; and third, since the double jeopardy protection extends not just to being twice convicted of the same crime, but to bé twice placed on trial, in order to “enjoy the full protection of the Clause, [defendant’s] double jeopardy challenge to the indictment must be reviewable before that subsequent exposure [to trial] occurs.” (431 U.S. at 662.)
The United States Supreme Court in Abney also stated that the federal appeals statute did not “uniformly limit appellate jurisdiction to Those final judgments which terminate an action’ . . .” and pointed out that Justice Jackson, the author of Cohen, had later stated:
“ ‘[I]t is a final decision that Congress has made reviewable .... While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment.’ Stack v. Boyle, 342 U.S. 1, 12 (1951) (separate opinion).” (431 U.S. at 658.)
For a further discussion of Abney, see United States v. MacDonald, 435 U.S. 850, 56 L.Ed.2d 18, 98 S.Ct. 1547 (1978).
As the previous discussion illustrates, Abney dealt with the construction of the federal appeals statute which allows appeals from “final decisions” in criminal cases. Kansas, on the other hand, provides for appeals in criminal cases only from “any judgment” against the defendant. As Abney indicates, there is a distinction between final decisions and judgments.
As in Abney, we recognize that the Fifth Amendment to the Constitution of the United States and Section 10 of the Bill of Rights to the Constitution of the State of Kansas protect against being twice put in jeopardy for the same offense, and that such includes the right not to be tried twice for the same offense. State v. Carte, 157 Kan. 673, 143 P.2d 774 (1943); State v. Bloomer, 197 Kan. 668, 421 P.2d 58 (1966). We recognize also that this important constitutional right may be lost to the defendant if he is compelled to again go to trial on the charges against him without having been able to present the issue of former jeopardy to an appellate court. However, there is no constitutional right to appeal and our statute, as interpreted by the Supreme Court, precludes review of that issue in this manner at this time. If error was committed by . the trial court in denying the motion for discharge, this court is without jurisdiction to correct that error in these proceedings.
As a final point, defendant also argues that the State, on hearing of the motion below, agreed that the order was appealable. Be that as it may, the State cannot by acquiescence confer jurisdiction on this court if it does not exist. State v. Hickerson, supra; Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977).
Having so decided, we express no opinion as to the merits of defendant’s motion for discharge and, with considerable reluctance, dismiss this appeal. | [
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Rees, J.:
Defendant appeals from his convictions on four counts of conspiracy (K.S.A. 21-3302), six counts of forgery (K.S.A. 21-3710[fc]) and three counts of giving worthless checks (K.S.A. 21-3707).
Incorporated as part of the information were copies of nine checks which were the subject of the nine non-conspiracy counts. Defendant founds his contention of reversible error upon admission of testimony concerning numerous other “bad” checks and admission of 27 exhibits that were only some of these other checks.
Defendant argues the testimonial and documentary evidence concerning the checks other than the nine upon which the forgery and giving worthless check charges were brought was evidence of other crimes and inadmissible under K.S.A. 60-455. The State answers that the testimony and exhibits were admissible as proof of overt acts in furtherance of the alleged conspiracies.
Although we do not undertake to recite particular correlation, we note that conduct proving the allegations of certain of the non-conspiracy counts could have constituted proof of overt acts in furtherance of certain of the alleged conspiracies. Similarly and as defendant has implicitly argued, some if not all the checks that were the subject of the challenged testimony or that are said to have been erroneously admitted as exhibits could have been the subject of separate and individual charges of forgery or the giving of worthless checks.
The State argues that the contested evidence was relevant to prove overt acts in furtherance of the alleged conspiracies and was admissible even if not mentioned in the information. We agree.
Evidence otherwise relevant and admissible in a criminal action is not rendered inadmissible by K.S.A. 60-455 because it discloses other or independent offenses. State v. Glazer, 223 Kan. 351, 360, 574 P.2d 942 (1978); State v. Solem, 220 Kan. 471, 475-476, 552 P.2d 951 (1976); State v. Calvert, 211 Kan. 174, 181, 505 P.2d 1110 (1973); and State v. Martin, 208 Kan. 950, 952, 495 P.2d 89 (1972).
A trial court has broad discretion and great latitude in ruling on the admissibility of evidence of a conspiracy. State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 205, 577 P.2d 803, rev. den. 224 Kan__(June 15, 1978). It is not erroneous to admit and consider evidence inadmissible under one rule of evidence if such evidence is admissible under another. See State v. Marshall & Brown-Sidorowicz, supra, 199, 202-203.
In our consideration of this case we find United States v. Adamo, 534 F.2d 31, 37-38 (3rd Cir. 1976), cert. den. sub nom. Kearney v. United States, 429 U.S. 841, 50 L.Ed.2d 110, 97 S.Ct. 116 (1976), persuasive. There the defendant was involved in a fraudulent credit card scheme existing over a period of two years and involving more than twelve persons. Of the three counts with which defendant was charged and convicted, Count I alleged a conspiracy to commit mail fraud (18 U.S.C. § 371 [1970]). Without detailing the evidence objected to at trial, defendant’s conviction was affirmed and in the opinion it was said:
“Kearney [defendant] next argues that the Government failed to prove any of the fourteen overt acts alleged under Count I, the conspiracy count, of the indictment and that such a deficiency in proof constitutes a fatal variance from the indictment. In the district court, the Government responded to this argument by asserting that, even assuming arguendo it had not proved any of the alleged overt acts, it had proved other overt acts in furtherance of the conspiracy. Proof of any overt act, it contended, is sufficient, regardless of its mention in the indictment.
“There is general agreement that the Government is not limited in its proof at trial to those overt acts alleged in the indictment. E.g., United States v. Quesada, 512 F.2d 1043, 1046 (5th Cir. 1975), U. S. appeal pending; United States v. Clay, 495 F.2d 700, 706 (7th Cir.), cert. denied, 419 U.S. 937, 95 S.Ct. 207,42 L.Ed.2d 164 (1974); Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965); Marcus v. United States, 20 F.2d 454, 456 (3rd Cir. 1927). Moreover, the Government is under no obligation to prove every overt act alleged. United States v. Williams, 474 F.2d 1047 (5th Cir. 1973); United States v. Fellabaum, 408 F.2d 220, 223 (7th Cir.), cert, denied sub nom. Pyne v. United States, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 (1969).” United States v. Adamo, supra, pp. 37-38.
Also see United States v. Pugh, 437 F. Supp. 944, 946 (E.D. Pa. 1977).
Although we have found no Kansas case specifically holding that upon trial for conspiracy the State is not limited in its proof to those overt acts alleged in the information, such a view would be consistent with Kansas law. Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(h); State v. Nemechek, 223 Kan. 766, 769, 576 P.2d 682 (1978). It cannot be denied that evidence of any overt act in furtherance of an alleged conspiracy is relevant. The determination of relevance is within the discretion of the trial court. State v. Beard, 220 Kan. 580, 584, 552 P.2d 900 (1976); and Manley v. Rings, 222 Kan. 258, 261, 564 P.2d 482 (1977). We find no abuse of discretion and hold that in its proof of conspiracy, the State is not limited to the overt acts alleged in the information.
Defendant also argues in passing, without citation of authority or material briefing, that the sheer number of checks involved in the challenged evidence was so voluminous as to be prejudicial. The State has not responded to this argument in its brief.
We are satisfied the State could have well and successfully tried the conspiracy charges as alleged without reference to so many specific checks. However, we decline to find in this case that a “so voluminous as to be prejudicial” line was crossed because of the failure of the parties to sufficiently present the issue on appeal.
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Spencer, J.:
Defendant appeals from conviction by a jury of possession of marijuana (K.S.A. 1976 Supp. 65-4127b[a][3]).
On May 6, 1976, Topeka police officers executed a search warrant for marijuana at 3316 DuPont in Topeka. When the officers arrived, they found the defendant in the process of backing a van out of the driveway. Defendant was stopped and he and the van were searched, but no contraband was found. The officers then proceeded to make a search of the dwelling, in which they found and seized two pipes which smelled strongly of marijuana, a screen, and an envelope from the Topeka Legal Aid Society addressed to defendant at that address. In a hall closet they found a coat, in the pocket of which were marijuana cigarette butts. The size of the coat made it obvious that it did not belong to defendant. In front of the house they found a trailer containing gardening equipment, which defendant acknowledged belonged to him and was used by him in doing yard work. The trailer was covered with a canvas top. When the canvas was removed, the officers found a paper bag containing about one pound of marijuana, which had been placed beneath a small garden tractor on that trailer. When first asked his address the defendant replied it was 808 Wood, but when asked where he was now staying he replied at the house in question, 3316 DuPont. There was a path across an open area near the house and the trailer used by people as a shortcut between DuPont and Colfax. After the search was made, the defendant and another individual, who also resided at that address, were arrested. Charges against the other individual were subsequently dropped. No issue is presented as to the validity or scope of the search.
Defendant contends that the evidence was insufficient to support the verdict. He argues that the evidence was circumstantial and the verdict was based on inferences and not on facts. The rule on review was recently stated in State v. Johnson, 222 Kan. 465, 565 P.2d 993:
“When considering the sufficiency of circumstantial evidence to sustain a conviction of a crime on appeal the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and the trial court. The appellate court’s function is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt.” (Syl. 1.)
“Possession” of marijuana is having control over the marijuana with knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence. State v. Faulkner, 220 Kan. 153, 551 P.2d 1247. Possession may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. State v. Woods, 214 Kan. 739, 744, 522 P.2d 967.
When a defendant is in nonexclusive possession of premises on which drugs are found, the better view is that it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. See Annot., “Conviction of Possession of Illicit Drugs Found in Premises of which Defendant was in Nonexclusive Possession,” 56 A.L.R.3d 948 (1974). Such parallels the rule in Kansas as to a defendant charged with possession of drugs in an automobile of which he was not the sole occupant. State v. Faulkner, supra. Incriminating factors noted in Faulkner are a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where the drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possessions to the drugs.
There is nothing to link defendant with the marijuana found in the pocket of the coat and the evidence is insufficient to support an inference of knowing possession as to the marijuana found there. However, the evidence is clear that the trailer located in the front yard of the premises, and the equipment on that trailer, belonged to defendant and were used by him in doing yard work. In light of that fact, the marijuana paraphernalia consisting of the two pipes and the screen, which the evidence indicates were found in plain view in the house, becomes relevant. The open display of such paraphernalia tends to show knowledge and absence of mistake bearing on defendant’s intent to possess the marijuana found in his trailer. We conclude that a reasonable inference of defendant’s guilt was established. Although they might well have found otherwise, the question was properly one for the jury.
Defendant argues that the paraphernalia and the envelope from the Legal Aid Society were improperly admitted into evidence. He contends that the paraphernalia could only raise an inference that defendant used marijuana, which could in turn be used to support the inference of knowing possession as to the marijuana found in the trailer. Since the paraphernalia so viewed would be part of a chain of inference on inference, and could not support a conviction (State v. Gobin, 216 Kan. 278, 531 P.2d 16), defendant argues the items lacked relevance and should not have been admitted. As has already been stated, the openly displayed paraphernalia served not just as the basis for an inference that defendant used marijuana (although such an inference might be warranted), but as evidence of his knowledge and intent, both elements of possession. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact. State v. Faulkner, supra; State v. Baker, 219 Kan. 854, 549 P.2d 911. The items were relevant and properly admitted. The admission of the envelope was to show that defendant lived at the address in question. Although not an element per se of the charge, the fact that defendant lived in that house was relevant to the question of his control over marijuana found on the premises, and there was no error in admitting the envelope.
Defendant next contends that the trial court erred in giving the jury an additional instruction after the jury had begun deliberations, and in not allowing further argument to the jury after the additional instruction had been given. The court’s instructions provided in part:
“No. 2
“The law places the burden upon the State to prove the defendant is guilty ....
. . . The test you must use is this: If you have a reasonable doubt as to .the defendant’s guilt of any element of the offense, you should find the defendant not guilty. If you have no reasonable doubt as to his guilt of all the elements of the offense, you should find the defendant guilty.”
“Instruction Number 4
“Unlawful possession of a prohibited drug as contemplated by the law is the exercise of dominion thereover or the right and authority to possess, control and manage its use and disposition with knowledge of and the intent to have such control.”
“Instruction Number 5
“Mere proximity to a drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession.”
After the jury had deliberated for a short time, the court received the following written communication from the jury:
“Is it possible under this law especially Instruction # 5 to find a person guilty of possession of marijuana?
“We would like further interpretation of what is meant by ‘without more.’
“Does ‘without more’ actually mean more evidence, more marijuana, or something else.
“What constitutes ‘reasonable’ doubt?
“Does this have to do with the difference between probable and possible?
“What is in ‘control of’?”
After consultation with both attorneys, the court prepared the following additional instruction:
“Members of the Jury:
“This is in response to your request for further instructions.
“It is possible under the law and as you were instructed by instruction No. 5 to find a person guilty of possession of marijuana if you find from the evidence the State has sustained its burden of proof as the State’s burden of proof is defined by instruction No. 2.
“The words ‘without more’ may have been a poor choice of words so rather than use those words further I will restate the point I attempted to convey by instruction No. 5. Instruction No. 5 was intended to instruct you that if the State only proves the defendant was in the proximity of a drug or that the drug was present on his property the State has failed to prove the defendant possessed the drug. Before you may find the defendant guilty you must find the defendant possessed the drug as possession is explained in instruction No. 4.
“The State’s burden of proof is greater than proving the defendant is probably guilty, but the State is not required to prove the defendant’s guilt beyond any possibility of doubt.
"The Court is unable to express the idea intended to be conveyed by the use of the words ‘reasonable doubt’ and ‘control’ more clearly by the use of any other words. These words have no special legal meaning and you are to assign to these words their definition as they are used in ordinary usage.
“These additional instructions in response to your request should be construed in the light of the instructions initially given you by the Court and considered along with them.”
The State made no objection to the additional instruction. Defendant objected generally to giving the additional instruction, but stated that “if the Court is to further instruct at all, the instruction as given is the best; that the defendant feels is the best thing that could be said specifically to them . . .
K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
The giving of an additional instruction under this statute rests in the sound discretion of the trial judge (State v. Sully, 219 Kan. 222, Syl. 8, 547 P.2d 344), but circumstances may create a duty to provide further instructions (State v. Bandt, 219 Kan. 816, Syl. 3, 549 P.2d 936). In State v. Bandt, supra, defendant was charged with receiving stolen property. The key issue was whether he had knowledge that the items were stolen at the time he received them. The court correctly instructed the jury that it had to find the defendant received the property, knowing it to be stolen. After deliberating for a time, the jury asked further guidance as to whether the defendant had to have that knowledge at the time he received the property or if it was sufficient that he gained such knowledge at any time after the property was in his possession. The trial court, after allowing argument on the point before the jury, refused an additional instruction. The Supreme Court reversed noting K.S.A. 60-248(e), which at that time was similar to K.S.A. 22-3420(3), and stating that although the original instructions were correct:
... In view of the confusion of the jury the trial court had a positive duty to clarify its former instructions by instructing the jury that the defendant must have had knowledge that the property was stolen at the time it was delivered to him by Trammel. The failure of the trial court to give to the jury this additional information was clearly prejudicial and denied to the defendant a fair trial. We wish to make it clear that instances may sometimes occur in the course of a trial where the jury raises questions which are irrelevant or which are already adequately covered by the original instructions. Under those circumstances the trial court may decline to answer such questions and direct the jury to reread the instructions already given. A trial court is vested with a great amount of discretion • in answering questions directed to him by a jury after the jury has begun its deliberations. The important consideration is that the jury be properly instructed on the essential issues presented at the trial and this is particularly true in a criminal proceeding where the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried.” (219 Kan. at 823-824.)
In this case, the question of the jury indicates confusion and the court did not abuse its discretion in giving the additional instruction.
Defendant contends the trial court should have allowed further argument to the jury after giving the additional instruction. State v. Neal, 215 Kan. 737, 529 P.2d 114, was a case wherein the defendant was charged with unlawful possession of a firearm. The trial court rejected a requested instruction defining possession and did not instruct as to the need to find intent to control and use the firearm. After retiring, the jury requested information as to the “role of intent” in the offense. The trial court responded with an additional instruction somewhat misleading as to intent. The Supreme Court held that the failure to give an instruction defining possession as including the necessary intent was error. The additional instruction was held not to cure this error because it was misleading and also because defendant was denied a fair opportunity to present his theory of the case measured by the applicable law. Since the additional instruction presenting for the first time the element of intent was given the jury after oral argument, defendant was precluded from making any effective argument based on the needed element of intent. (215 Kan. at 741.)
The ABA Standards for Criminal Justice, Trial by Jury (Approved Draft, 1968) § 5.3(d) provides that when an additional instruction is given after the jury has retired “the court in its discretion shall decide whether additional argument will be permitted.” The commentary to this section states:
“Although there are few cases which deal with the issue, the general rule seems to be that the defendant has a right to additional argument on any new or different principles of law contained in the new instructions if he makes a timely assertion of his right. Annot., 15 A.L.R.2d 490 (1951). Most of the decisions say it is prejudicial error to deny the defendant his opportunity to make this additional argument, although one court has held that this is a matter in the discretion of the trial court. State v. Linden, 171 Wash. 92, [17] P.2d 635 (1932). The Advisory Committee is of the view that the court should have the discretion to decide whether the new instructions call for further argument to the jury, and section 5.3(d) so provides. This discretion may be abused, of course, as when argument is refused after additional instructions which submit another offense to the jury.” (p. 145.)
Where, as in State v. Neal, supra, a new element is introduced in the additional instruction, the sound exercise of judicial discretion will ordinarily require further argument. In this case, however, no new element was presented in the additional instruction. It merely clarified what had already been given the jury. Defendant’s counsel had argued the evidence as to possession in his closing statement. Under the circumstances, we cannot say the trial court abused its discretion in not allowing further argument.
Defendant’s contention that the refusal of additional argument constituted a denial of his constitutional right to counsel is without merit. His counsel was consulted in the preparation of the additional instruction and the elements of that instruction were included in his closing argument.
It is urged that the additional instruction was coercive in that the first sentence subtly suggests that the judge believes the defendant to be guilty. No objection to the content of the instruction was made at trial. In fact, defendant’s counsel stated that, if an additional instruction was to be given, the one given was the best. No party may assign as error the giving of an instruction unless he objects before the jury retires, stating distinctly the matter to which he objects. K.S.A. 22-3414(3); State v. Wilson, 221 Kan. 92, Syl. 2, 558 P.2d 141. This rule applies to additional instructions given after the jury has previously deliberated. State v. Giddings, 216 Kan. 14, 25-26, 531 P.2d 445. Even if defendant’s claim that the additional instruction was coercive was considered, it is without merit. The additional instruction must be considered together with the instructions already given (State v. Williams, 196 Kan. 628, 636-637, 413 P.2d 1006), which it directed the jury to do. The instructions together correctly stated the law, told the jury that the State had the burden of proof, and that only if the jury believed defendant to be guilty without a reasonable doubt on all of the elements of the crime could they find him guilty.
As his last point on appeal, defendant argues that he was prejudiced by a witness’ reference to a previous trial matter. The record reveals that, at the time the warrant was executed, certain photographs were used in the trial of this matter in magistrate court. During trial in district court, the officer who had taken the photographs was asked if he had since seen them, to which he replied: “Yes, they were introduced in another trial matter.” Defendant contends this statement was prejudicial because it implied that he had previously been found guilty. In response to objection, the trial court immediately restricted further questioning in reference to the photographs. We cannot say that defendant was prejudiced by this statement and reversible error has not been shown.
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Abbott, J.:
The defendants were tried jointly for the crime of indecent liberties with a child (K.S.A. 1975 Supp. 21-3503). Both defendants were found guilty by a jury. The defendant Anthony J. Holt was also charged with and acquitted of aggravated sodomy (K.S.A. 21-3506).
The defendant Holt contends the trial court erred in admitting into evidence a statement he gave to a detective after having requested at two prior interrogations that an attorney be present.
Holt was arrested at approximately 7:35 p.m. on Saturday, June 12, 1976, suspected of having committed the crimes of rape and aggravated sodomy. His rights pursuant to Miranda were read to him. He stated he wanted to confer with his lawyer before making a statement, and the request was honored. The interview was terminated and he was taken to the police station.
At the police station, Holt was taken into an interview room where Detective Stokes read his Miranda rights to him. Again defendant declined to discuss the allegations without an attorney present, and the request was honored. The second interview was terminated. Defendant was then booked and placed in jail.
Detective Blanton interviewed Holt the following morning at approximately 10:30. Holt testified he again requested a lawyer and was ignored. The detective denied that defendant requested a lawyer. Holt signed a waiver of his Miranda rights. He then made a statement admitting having had sexual intercourse with the victim on June 12, 1976, but denied using force. At the trial, Holt took the stand and again admitted having intercourse with the victim, but denied using force and denied the minor female engaged in oral sodomy.
The trial judge found the waiver and statement were freely, voluntarily and intelligently given and admitted the statement into evidence. The jury found Holt guilty of indecent liberties with a child and not guilty of aggravated sodomy.
Holt’s position is that the police should not have interviewed him after he made requests for the presence of counsel. He relies on Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321 (1975), and State v. Boone, 220 Kan. 758, 768, 556 P.2d 864.
The pertinent portions of both Mosley and Boone, supra, have their origin in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). The crux of the problem originates in the Miranda decision where the court sets forth the procedure to be followed after the necessary Miranda warnings have been given. The United States Supreme Court first considered the Fifth Amendment right of one accused of a crime not to be a witness against oneself. The court stated that where a defendant elects “to remain silent, the interrogation must cease.” (p. 474.)
In Mosley, the United States Supreme Court ruled that the language in Miranda which requires police to cease interrogating when the suspect indicates his desire not to speak neither creates a blanket proscription of indefinite duration upon further police questioning, nor imposes a blanket prohibition of the taking or admitting of voluntary statements, nor permits a resumption of the questioning after a mere momentary lapse of time. The court concluded that the admissibility of statements made by an individual after he has decided to remain silent “depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Mosley, supra, p. 104.) The statement given by the suspect to a second officer concerning a murder was then held to be admissible, because the defendant had knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel despite the fact that an hour or so earlier the suspect had expressed a desire to remain silent to a different officer investigating a robbery. Kansas has followed that line of reasoning in State v. Kanive, 221 Kan. 34, 37, 558 P.2d 1075.
Unlike the above cases which turn on the Fifth Amendment, this case turns on the defendant’s right to counsel under the Sixth Amendment. In the same paragraph of Miranda where the court sets out the procedure to be followed when a defendant makes known to the law enforcement officers that “he wishes to remain silent, the interrogation must cease” (Miranda, supra, p. 474), the court also sets out the procedure to be followed when the suspect exercises Sixth Amendment right to counsel. The court said, “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” (Underscoring supplied.) (Miranda, supra, p. 474.) Where the Fifth Amendment right to remain silent is concerned, the court directed the interrogation is merely to “cease,” whereas in considering the procedure to follow where the suspect exercises his right to counsel under the Sixth Amendment, the interrogation is to cease “until an attorney is present.” (Miranda, supra, p. 474.)
The United States Supreme Court has clearly stated that, “[a]fter 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.” (Miranda, supra, p. 479.) Clearly it was intended that a suspect can knowingly and intelligently waive his right to an attorney before he requests the assistance of an attorney. The Supreme Court of the United States has not had occasion to rule on a case where the suspect has first requested an attorney and later waived the right to counsel without consulting an attorney prior to the waiver.
We do not find State v. Boone, supra, to be applicable to the facts of this case. In Boone, interrogation of the defendant continued after he requested assistance of counsel. The statement was then used to impeach the defendant. The Kansas Supreme Court cited footnote seven of Mosley, supra, as authority for the statement, “After a request to see an attorney is made, all questioning must cease until an attorney is present.” (Boone, supra, p. 768.) Defendant uses that quote as authority for his position in this case. The quoted statement is from the Miranda decision and is so set forth in footnote seven. The statement is taken out of context by defendant and we recognize it for its intended purpose, which was to state the general proposition expounded in Miranda. Boone, Supra, did not consider the question before the court in this case.
The trial judge relied on State v. Law, 214 Kan. 643, 522 P.2d 320 (a 1974 case decided prior to Mosley, supra), and conducted a preliminary inquiry on the admissibility of the extrajudicial statement made by the accused, determined the statement was freely, voluntarily and intelligently given, and admitted the statement into evidence. If the procedure used to obtain the statement did not violate the accused’s constitutional rights, this court on appeal should accept the trial judge’s determination if it is supported by substantial competent evidence. (Kanive, supra; State v. Creekmore, 208 Kan. 933, 495 P.2d 96.)
We interpret Law, supra, to hold that a suspect can waive his right to counsel, as well as his right to remain silent, provided the waiver is freely, knowingly and intelligently made, even though he first requested counsel, was subsequently incarcerated, and after a few hours waived his right to counsel without having been afforded counsel prior to the subsequent interrogation.
We are unable to find a distinguishing feature in the case at bar from the facts in Law, supra, other than the fact the waiver in this case was made after the defendant on two separate occasions requested counsel as opposed to only one prior request in Law. In view of Law, we are not inclined to hold that a suspect’s constitutional rights have been violated as a matter of law When he knowingly and intelligently waives his rights after having on two separate occasions requested assistance of counsel or that the suspect may not thereafter effectively waive his right to counsel without first having consulted counsel.
The court of appeals is duty-bound to follow Law, supra, in the absence of some indication the Supreme Court has departed from the view expressed therein, and no such indication exists.
We have examined the record, and while we might not have reached the same conclusion as the trial judge, there is substantial competent evidence of the same quality, quantity and nature as set forth in Law, supra, to support the trial judge’s finding that the waiver was freely, voluntarily and intelligently made. Of equal importance, there is no showing any of the detectives had knowledge of the suspect’s prior exercise of his right to remain silent and to have counsel present during the interrogation. No evidence was offered that the police department had conducted itself in a similar manner in the past when a suspect requested counsel.
Miranda prohibits repeated interrogations when a suspect elects to remain silent or requests counsel. The state has a heavy burden of demonstrating the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel without being threatened, tricked, or cajoled. There are no allegations that the statement in this case was coerced. The defendant was repeatedly and adequately informed of his rights, and he specifically waived his right to counsel. Although this case stretches the permissible limits of acceptable conduct on the part of law enforcement officers under the guidelines of Miranda to their outer limits, the record in this case demonstrates substantial competent evidence to support the trial court’s determination that the waiver was freely, voluntarily and intelligently made. We .therefore hold the prohibition against continued interrogation in the face of prior refusals to talk or prior requests for counsel to be present during interrogation does not invalidate a statement thereafter given where the suspect voluntarily, knowingly and intelligently waived his rights under the Fifth and Sixth Amendments. The extrajudicial statement of Holt was properly admitted into evidence.
The defendant Hayes also challenged the infringement upon Holt’s constitutional rights. Having determined the identical argument adversely to Holt, we need not consider Hayes’s argument on that point.
The defendant Hayes also contends the police used a passkey to gain admission to the apartment where the crime was commit ted without obtaining a search warrant. The apartment was leased to a girl friend of Hayes with whom Hayes was living. The girl friend was out of state when the incident occurred. The police were attempting to apprehend the individual responsible for the crime they at the time were investigating as a rape and aggravated sodomy case. The apartment house manager opened the apartment door, at the request of the police, with a passkey. No one was in the apartment, and the search did not provide direct evidence as to any of the elements of the offense charged. One officer did testify he saw an envelope with Ronald Hayes’s name upon it. Hayes was occupying the apartment with the manager’s permission and she knew Hayes’s name. As a result, Hayes’s name and the fact he occupied the apartment were readily available to the police and, in all likelihood, were known to the police before they entered the apartment.
The search resulted in harmless error. “In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.” (State v. Hamilton, 222 Kan. 341, Syl. 4, 564 P.2d 536; State v. Thompson, 221 Kan. 176, Syl. 5, 558 P.2d 93.)
Two girls positively identified Hayes, and Holt gave testimony at trial that incriminated Hayes. There is no likelihood that excluding the police officer’s testimony of finding Hayes’s name on an envelope in an apartment, which other witnesses testified he occupied, would have changed the result of the trial. In addition, the defendant failed to make specific objections in violation of the contemporaneous objection rule.
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Foth, J.:
This is an action by a railroad worker against his employer under the federal Safety Appliance Acts. A jury returned a general verdict for $150,000.00. The defendant appeals raising four points concerning the amount of the verdict, the manner in which it was reached, and the elements of damage submitted to the jury.
1. Defendant’s first and primary claim of error is based on the fact that the trial court gave the jury no tables or mathematical formulae for reducing lost future earnings to present worth, as the court’s instructions required it to do. The issue was raised below only after defendant had rested and after court and counsel had settled on the instructions to be given. At that time defendant requested the court to take judicial notice of and submit to the jury certain annuity tables proffered as exhibits by counsel. The trial court denied the request.
We cannot fault the trial court for rejecting the exhibits, particularly considering the time they were offered. Whether to permit defendant to reopen its case at that stage to offer this additional evidence was within the discretion of the trial court. See, e.g., City of Wichita v. Unified School District No. 259, 201 Kan. 110, 118, 439 P.2d 162. In addition, defendant proffered no testimony or other evidence, either then or during the trial, relating to the authenticity or genuineness of the tables. Assuming the tables could be shown to be matters of generalized knowledge under K.S.A. 60-409(b)(4), judicial notice was not mandatory because of defendant’s failure to comply with the foundation requirements of 60-409(c). See also, 60-410(c).
On appeal defendant shifts its ground somewhat. Rather than rely on the rejection of its exhibits as error, defendant now claims the trial court was required to include their equivalent in its instructions; i.e., to give the jury a specific formula for reducing future earnings to present worth. The instruction given required the jury to “reduce to its present worth, the amount of the anticipated future loss, by taking (1) the interest rate or return which the plaintiff could reasonably be expected to receive on an investment of the lump-sum payment, together with (2) the period of time over which the future loss is reasonably certain to be sustained; and then reduce, or in effect deduct from the total amount of anticipated future loss whatever that amount would be reasonably certain to earn or return, if invested at such a rate of interest over such future period of time; and include in the verdict an award for only the present-worth — the reduced amount — of the total anticipated future loss.”
The appellant contends that federal law requires the giving of a more specific instruction on the means of calculating present value when it is requested. There are two problems with this argument. First, while federal law does govern the substantive rights of the parties under FELA actions including the right to proper instructions on damages, the law of the forum controls procedural and evidentiary matters. See, Ches. & Ohio Ry. v. Kelly, 241 U.S. 485, 60 L.Ed. 1117, 36 S.Ct. 630 (1916). In this case, the appellant failed to take the procedural steps necessary to get more detailed instructions on calculating present worth. No evidence was in the record on the mathematical calculations, and more importantly, no proposed instruction was offered. Second, the holding of only one circuit clearly supports the view that evidence on the calculation of present worth is essential. In Ballantine v. Central Railroad of New Jersey, 460 F.2d 540 (3d Cir. 1972), that court held that there could be no recovery for future losses absent some guidance in the method of reducing the amount lost or present value. See also, Haddigan v. Harkins, 441 F.2d 844 (3d Cir. 1970) and Russell v. City of Wildwood, 428 F.2d 1176 (3d Cir. 1970). Decisions in other circuits suggest that where, as here, a proper request for more detailed guidance is not made, a general instruction on reducing to present worth is adequate. Pennsylvania Railroad Company v. McKinley, 288 F.2d 262 (6th Cir. 1961), citing numerous state cases; Duncan v. St. Louis-San Francisco Railway Company, 480 F.2d 79, 87 (8th Cir. 1973), cert. den. 414 U.S. 859, 38 L.Ed.2d 109, 94 S.Ct. 69; Heater v. Chesapeake and Ohio Railway Company, 497 F.2d 1243, 1249 (7th Cir. 1974); Baynum v. Chesapeake and Ohio Railway Company, 456 F.2d 658 (6th Cir. 1972). These circuits reason that jurors are familiar enough with interest that they can intelligently take into account the earning power of money.
So, in this case, if defendant had laid a proper foundation for the admission of its tables, and then made a request for an appropriate instruction on their use, the trial court might properly have given a more detailed instruction. The instruction given was not clearly erroneous, and on the state of the record we cannot find error.
2. In its second point, defendant claims error in refusing to receive testimony from the jury foreman that the jury did not in fact reduce lost future earnings to present worth. Quite apart from defendant’s violation of Rule No. 181 (220 Kan. lxix) by subpoenaing the jury foreman without prior court authority, the proffered testimony that the jury failed to follow the court’s instructions would have been inadmissible as going to the “mental processes by which [the verdict] was determined.” (K.S.A. 60-441.) See, Hogue v. Kansas Power & Light Co., 212 Kan. 339, 510 P.2d 1308 (testimony on method of calculating damages should not have been received); State v. Morgan, 207 Kan. 581, 485 P.2d 1371 (testimony of jurors that the jury failed to follow the instruction regarding the defendant’s failure to testify properly excluded); Smith v. Union Pacific Railroad Co., 214 Kan. 128, 519 P.2d 1101 (testimony that instructions not clear to some jurors properly excluded); Henderson v. Deckert, 160 Kan. 386, 162 P.2d 88 (improper to allow juror to testify that the jury was confused by special question); Milling Co. v. Edwards, 108 Kan. 616, 197 Pac. 1113 (affidavit of juror on how the instruction was understood properly disregarded).
The two cases cited by the railroad for the proposition that verdicts in violation of the instructions must be set aside do not support the reception of the kind of juror testimony offered here. In those cases, it was apparent from the verdict itself that the jury had misunderstood or disregarded the instructions. In U. P. Rly. Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312, there was a conflict between answers to special interrogatories and the general verdict; in Railway Co. v. Schroll, 76 Kan. 572, 92 Pac. 596, the verdict was obviously inconsistent with an instruction to accept the plaintiff’s admission of contributory negligence as true. In neither of the cases was the conclusion that the instructions had been disregarded based on the testimony of a juror. The case at bar, however, is not one in which it is apparent from the facts and circumstances that the verdict resulted from jury disregard of the instructions. Only by questioning the jurors could the verdict be impeached, and that cannot be done.
3. In its third point, defendant asserts error in submitting the damage element of future medical expenses when they were not specially pleaded or specifically mentioned in the pre-trial order. The element came into the case, as it were, by mutual consent and acquiescence. (See K.S.A. 60-215[fc]; Moore v. Bayless, 215 Kan. 297, 524 P.2d 721, Syl. 3 and cases cited.) There was medical evidence that plaintiff would need to continue his current treatment, to wear a brace, and to take medication; and there was testimony by plaintiff and his wife that he currently was taking medication and had a doctor’s appointment in the near future— all admitted without objection. It was clear from the evidence that there would be future medical expenses in fact incurred. Although the evidence as to amount was somewhat skimpy, as the trial court noted, there was enough for the issue to go to the jury. Under the circumstances, it was not an abuse of discretion to submit it, by amendment of the pre-trial order if deemed necessary.
4. The final claim is that the verdict was excessive. The verdict was general, so there is no way of telling how much was attributable to lost future earnings (defendant’s chief complaint) and how much was for past and future pain and suffering, or any of the other elements submitted. As plaintiff points out, the injuries here are quite similar to those in Ketner v. Atchison, T. & S. F. Rly. Co., 212 Kan. 453, 510 P.2d 1220, where the court approved a verdict of $173,000. We cannot say the $150,000 awarded here is “so grossly excessive as to shock the conscience of the court.” (Riggs v. Missouri-Kansas-Texas Rld. Co., 211 Kan. 795, 802, 508 P.2d 850.)
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Foth, C.J.:
Veryl L. Morris filed this petition under K.S.A. 60-1507 to vacate two consecutive sentences of fifteen years to life which had been imposed on his plea of guilty to two counts of aggravated sodomy. The trial court appointed counsel, held a hearing, and denied the motion. This appeal followed.
The record indicates that petitioner was originally charged with thirteen felony counts, including the two involving young boys to which he pleaded guilty. He had at least two prior felony convictions, one of which also involved sexual offenses with children. As a result of plea bargaining he was permitted to plead to the two counts here in question, with eleven counts being dismissed. The habitual criminal act was not invoked.
On appeal he raises four points:
1. Petitioner makes no serious argument in this court to support his claim that his original trial counsel did not act competently. No factual basis is asserted, and the plea bargain struck represents probably the best that could have been done with the petitioner’s case.
2. The two sentences imposed were for the same type of offense, but were based on separate incidents constituting separate crimes. He was not subjected to double jeopardy.
3. There is nothing to support his claim that his plea was involuntary or that there was a breach of any promise to him. The trial court carefully interrogated him at the time of the plea concerning his physical and mental condition, his understanding of the possible consequences of the plea as explained by the court, and the nature and extent of the plea bargain. Some of the same ground was retraced at the time of sentencing a month later. No complaint was registered then or in the interim. No suggestion appears of any promises by the prosecution or the court as to any particular sentence. In addition, the same judge presided over the plea, sentencing, and the hearing in this proceeding during which the previous transcripts were reviewed. The trial court thus had independent knowledge as to the merits of petitioner’s claim of judicial involvement in the plea bargain.
4. Petitioner’s only serious contention is that his plea was taken in chambers, rather than “in open court” as required by K.S.A. 22-3210(1). The record shows that the proceedings were removed to the judge’s office without objection because the venire from which petitioner’s jury would be drawn was present in the courtroom. The move was deemed advisable so that the prospective jurors would not be prejudiced should the proposed guilty plea proceedings be commenced but not consummated and a trial should prove necessary. The alternative was to clear the prospective jurors from the courtroom.
The contention that the proceedings were “in chambers” is without merit. The distinction between that term and “in court” is aptly noted in People v. Valenzuela, 259 Cal. App. 2d 826, 66 Cal. Rptr. 825 (1968), cert. denied, 394 U.S. 949, 22 L.Ed.2d 482, 89 S.Ct. 1286 (1969). In that case, as in this, the proceedings were removed to the judge’s office. There the defendant waived a jury and consented to a trial by the court. To be valid such a waiver was required by the California constitution to be made “in open court.” The court observed:
“The meaning of the word ‘chambers’ varies with the context in which it is used. It may mean a room adjacent to a courtroom in which a judge performs the duties of his office when his court is not in session. The word ‘chambers’ is also commonly used in a different sense. When a judge performs a judicial act while the court is not in session in the matter acted upon, it is said that he acted ‘in chambers’ whether the act was performed in the ‘judge’s chambers,’ the library, at his home, or elsewhere. (Citations omitted.)
“If, in the judge’s chambers, the court is in session as to the matter on trial, the judicial action is taken in court, and not ‘in chambers.’ ...” (p. 831.)
The case relied on by petitioner here, The State v. Start, 62 Kan. 111, 61 Pac. 394, involved judicial action taken by a judge while the court was in vacation and not in session. Under the Valenzuela definition such action was clearly “in chambers.” Just as clearly, the action taken here was taken by the court while in session, and was thus “in court.”
The Valenzuela case also discusses the “open” aspect of the phrase “in open court.”
“In the present case, the waiver of jury trial was made in court, and it was in open court if the public was not excluded.
“We do not believe that ‘in open court’ means any more or less than ‘public trial,’ which is guaranteed by the Constitution.
“A court session which is ‘public’ is also ‘open’ and it is appropriate to look to the definitions of ‘public trial.’
“ ‘Under normal conditions a public trial is one which is open to the general public at all times.’ (People v. Byrnes, 84 Cal. App. 2d 72, 73, [190 P.2d 290].)
“ ‘The trial should be public in the ordinary common-sense acceptation of the term. The doors of the courtroom are expected to be kept open, the public are entitled to be admitted, and the trial is to be public in all respects, as we have before suggested, with due regard to the size of the courtroom, the conveniences of the court, the right to exclude objectionable characters and youth of tender years, and to do other things which may facilitate the proper conduct of the trial.’ (People o. Hartman, 103 Cal. 242, 245, [37 P. 153, 42 Am.St.Rep. 108].)” (pp. 831-832.)
After discussing cases in which the test was said to be whether any member of the public or the press who desired access would have been barred, the court concluded:
“The record does not show that before moving the trial to the judge’s chambers the court declared a recess or indicated in any manner that the session in chambers was to be private. There was no evidence that the door between the two rooms was closed at any time during the court session in chambers. Full effect must therefore be given to the presumption that the court accepted the waiver of jury trial in open court and not behind closed doors.
“Appellant’s contention that his waiver of jury trial was not in open court finds no support in the record.” (pp. 832-833.)
The same result has been reached by other courts faced with similar fact situations. See, e.g., People ex rel. Walsh (Franco) v. Warden of Sing Sing, 176 Misc. 627, 27 N.Y.S.2d 273 (1941); People v. Fiato, 206 Misc. 111, 132 N.Y.S.2d 188 (1954); People v. Dudla, 39 Misc. 2d 498, 241 N.Y.S.2d.404 (1963). Cf. Loke v. State, 254 S.W.2d 137 (Tex. Cr. App. 1953), and Rush v. State, 253 Ala. 537, 45 So.2d 761 (1950), in both of which it was held that the drawing of prospective jurors’ names in the clerk’s office met a statutory requirement that it be done “in open court” where the court was in session and the proceedings were accessible to the public. And cf. State v. Rhone, 219 Kan. 542, 548 P.2d 752, where the court approved the adjournment of a jury trial to a private home to hear the testimony of a key prosecution witness who was ill.
In our opinion the procedure employed here amounted at most to an irregularity, not requiring that the resulting judgment be set aside. Present when the plea was entered were the judge, the prosecutor, the defendant, defense counsel, and the official court reporter. There is no showing that anyone was excluded from the proceeding, and no objection was made or question raised by the defendant or his counsel about the location. If the purpose of the “open court” provision is the same as the constitutional guarantee of a “public trial,” i.e., to eliminate secret proceedings with their potential for tyranny and coercion, that purpose was adequately fulfilled in this case.
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Swinehart, J.:
This is an appeal by prospective adoptive parents from a district court order denying their petition to adopt. The issues on appeal, both of first impression in Kansas, are whether the natural father of an illegitimate child has a paramount right over non-parents to custody of that child, and whether that portion of the Kansas adoption statute which requires the consent of the unwed mother but not the unwed father for adoption is unconstitutional. The trial court held that the natural father of an illegitimate child has a paramount right to custody as against non-parents where both the adopting parents and the natural father are found to be fit, and denied the adoption petition. The prospective adoptive parents appeal the trial court’s ruling regarding this issue. The court did not address the constitutional issue; the natural father brings a cross-appeal challenging the court’s refusal to resolve this question.
It is undisputed that appellee Leon Scott, Jr., and the natural mother are the biological parents of Baby Girl Lathrop, a minor. Unmarried, this couple lived together for several months in the state of Louisiana. During this period of time, the subject of this action was conceived. Several months prior to the birth of the child, the mother returned to the state of Kansas, terminating the previous living arrangements with Leon Scott, Jr. Sometime between the date of her return to Kansas and the birth of the child, Leon Scott, Jr., moved to Colorado. Baby Girl Lathrop was born in Kansas City, Wyandotte County, Kansas, on August 16, 1976. On August 18, 1976, the natural mother executed before a notary public a document entitled “Consent of Unmarried Mother to Adoption of Minor Child.” Included in that document was a waiver of further notice of the final hearing and entry of decree of adoption. She further stated therein that Leon Scott, Jr., was the natural father of Baby Girl Lathrop; that she had not received support from him; and that his whereabouts were unknown to her. Based on the mother’s consent, the appellants filed a petition for adoption on August 18, 1976. By probate court order, they received custody of the subject child pending a hearing on their petition of adoption, and they have had custody of the child continuously from that date to the present time. Leon Scott, Jr., was not originally notified of the filing of the petition for adoption, nor was his consent to the adoption obtained. The record does not reveal how he learned of the birth of the child or the pending adoption. Suffice it to say, the appellee did learn of the facts and he appeared at the proceeding, filed his objection to the adoption and requested custody of the child. The appellee admits that he is the natural father of the child, and he further states that he paid some support to the child’s mother, as well as medical expenses made known to him.
A hearing on the petition for adoption was conducted on October 18, 1976, in probate court. Oral testimony and briefs were presented. The probate court denied the adoption and awarded custody to Leon Scott, Jr. Petitioners appealed to the district court. The case was tried to the district court de novo on the briefs and the stipulated facts and admissions filed in the probate court. The district court found that the appellee was the natural father of the minor child; that the woman who had executed the consent was the natural mother and had legally executed the consent to adoption; that the appellee had standing to object to the proposed adoption; that the appellee had timely appeared, objected and withheld his consent to the adoption and had requested custody of said child; that appellants and appellee were fit persons to have custody of said child; that the parental preference rule was applicable to these facts and that the appellee’s rights as a natural father were paramount to those of petitioners; that appellee’s rights as a parent to said child would not be terminated; and that the adoption would be denied. The court further ordered that the State of Kansas, department of vital statistics, issue a corrected birth certificate showing that Leon Scott, Jr., was the father of said child and changing the name of Baby Girl Lathrop to the surname of the natural father and first and middle names of his choice. The appellants subsequently obtained a stay of custody pending appeal of the decision.
The thrust of the appellants’ argument on appeal appears to be that the natural parents, by entering an illicit relationship, waived their constitutional rights of due process and equal protection regarding custody of their child. The appellee counters that in the absence of a finding of unfitness, case law and the federal and state constitutions protect his paramount right to custody of his natural child. Disposition of the issue requires consideration of the parental preference rule in Kansas, and the recent United States Supreme Court decisions in Quilloin v. Walcott, 434 U.S. 246, 54 L.Ed.2d 511, 98 S. Ct. 549 (1977), and Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972).
It is well established in Kansas by statute and case law that natural parents are to be given preference as to custody of their children when such a contest occurs with a non-parent. Herbst v. Herbst, 211 Kan. 163, 505 P.2d 294; In re Armentrout, 207 Kan. 366, 485 P.2d 183; In re Marsolf, 200 Kan. 128, 434 P.2d 1010.
However, there are several ways that a parent may be deprived of his parental rights on a permanent basis. First, K.S.A. 1977 Supp. 38-824 provides a method by which a child or children may be declared dependent and neglected and parental rights consequently severed. In re Nelson, 216 Kan. 271, 531 P.2d 48; In re Bachelor, 211 Kan. 879, 508 P.2d 862. Second, K.S.A. 60-1610(a) authorizes a trial court hearing a divorce or separate maintenance suit to terminate parental rights of either or both parents if the court finds that they are unfit. Finally, K.S.A. 59-2103 provides that when adoption occurs the natural parent’s rights in and to said child or children shall cease. There are other instances provided for parents to divest themselves of the rights to children, but the facts in this case do not necessitate their enumeration.
The issues in this case can be narrowly framed: (1) does an unwed father have parental rights, including custody, to his child which are paramount to those of third party adoptive parents due to the parental preference rule; and (2) do the Kansas statutes dealing with adoption afford an unwed father due process and equal protection?
The United States Supreme Court clearly established in its landmark decision, Stanley v. Illinois, supra, that an unwed father does have parental rights in his children and that those rights are substantial. The court there stressed that the rights to conceive and raise one’s own children are essential rights, and further stated, “The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley, supra, p. 651. The Stanley decision was based on an appeal by an unwed father, challenging the constitutionality of the Illinois statute that declared illegitimate children wards of the state upon the death of their mother. Stanley had lived with the mother of the children intermittently for a period of 18 years, and during that time he had assumed parental responsibilities toward the three children that he fathered by her. Upon the death of the mother the State of Illinois attempted to declare the three children wards of the state without affording Stanley a hearing regarding his fitness. The Supreme Court held that Stanley had parental rights which were substantial. Balanced against those important rights was a comparatively weak state interest in avoiding a complex fitness hearing. Therefore, the court ruled that due process required that he be afforded a fitness hearing before his parental rights were severed. The court also engaged in an analysis of equal protection, stating that the classification between wed and unwed fathers and unwed fathers and unwed mothers was invalid because it failed to meet the two-pronged test for a valid classification: it was not a logical and rational distinction, because unwed fathers may be as capable of being loving, nurturing parents as married fathers, or mothers, either married or unmarried; moreover, the classification did not further the enunciated state interest of placing children in a nurturing home atmosphere, even though this state interest was in itself a valid state objective.
Appellants attempt to distinguish the Stanley case, pointing out the father in Stanley had raised the children whereas the instant respondent has never had custody of his child. However, appellants ignore the import of State ex rel. Lewis v. Lutheran Social Services, 59 Wis. 2d 1, 207 N.W.2d 826 (1973). That case was decided on remand from the United States Supreme Court with instructions to grant a putative father a “fitness” hearing in light of Stanley. The father in Lewis, as the father here, had not had custody of his child. The Wisconsin court found the father could not be faulted because the adoption agency and prospective adoptive parents had kept him from his child. Fitness determined, custody was given the father. See also: Miller v. Miller, 504 F.2d 1067 (9th Cir. 1974); Vanderlaan v. Vanderlaan, 9 Ill. App. 3d 260, 292 N.E.2d 145 (1972); Peo. ex rel. Slawek v. Covenant Child. Home, 52 Ill. 2d 20, 284 N.E.2d 291 (1972); and Hammock v. Wise, 211 S.E.2d 118 (W. Va. 1975).
This court has carefully considered the most recent pronouncement of the United States Supreme Court regarding the rights of a putative father in Quilloin v. Walcott, supra. That case involved the petition of a stepfather, now married to the natural mother of the child, to adopt a twelve-year-old illegitimate child. The natural father of the boy sought to prevent the adoption, arguing that under Stanley he was entitled to a fitness hearing before his parental rights could be terminated. He had never had custody of the child and had assumed only minimal responsibilities for his welfare and support. Furthermore, he was not requesting that he be given custody of the child; he only wished to prevent the adoption. The court stated, “Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.” (p. 248.) The court emphasized the strong state interest in having children reared in a family setting, and stressed that the adoption would confirm and stabilize an already existing family unit. Balancing this strong interest against the weak interest of the father in vetoing the adoption, the court found that under the facts of the case, the natural father’s rights of due process had been adequately protected by a “best interest of the child” hearing, which of course requires a lesser quantum of proof than does a fitness hearing. The natural father also advanced an equal protection argument, asserting that his interests were indistinguishable from those of a divorced or separated father or a mother no longer living with her child. The court summarily dismissed this argument, stating, “We think appellant’s interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissively give appellant less veto authority than it provides to a married father.” (p. 256.) In support of this statement, the court pointed to the difference in the extent of commitment to the support and welfare of the child.
It is clear that Quilloin does not abrogate the basic premise of the Stanley case; that is, that a putative father does in fact have parental rights in his child. The holding of the Quilloin case is actually quite narrow: the constitutional rights of an unwed father who merely seeks to veto the adoption of his child, without seeking custody of the child, are adequately protected by something less than a fitness hearing, and under the facts of that case his rights were protected by a “best interest of the child” hearing.
Applying the case and statutory law discussed above to the facts of the case at hand, we hold that Leon Scott, Jr., has parental rights to the custody of his child and under those circumstances that those rights must be given preference and will prevail over those of the adoptive parents due to the parental preference rule. Stanley establishes his parental rights and Quilloin does nothing to diminish those rights in this situation, where he appeared and asserted his desire to have the custody of his daughter soon after her birth. We agree with the Lewis court that a father like Leon Scott, Jr., who has been prevented from bestowing parental care on his child from the time of its birth by outside agencies (such as adoption agencies, or in this case, adoptive parents), cannot be faulted, nor can his parental rights be lessened by virtue of his failure to perform his parental responsibilities. We think that due process requires that a putative father who appears and asserts his desire to care for his child has rights paramount to those of non-parents, unless he is found to be an unfit father in a fitness hearing. The trial court found that he was a fit parent; therefore his right to have custody of his child is clear.
We next consider the constitutional question raised in the cross-appeal by Leon Scott, Jr.; that is, whether the parental rights of a father to his child born out of wedlock are adequately protected under existing Kansas law. We think they are.
First, K.S.A. 59-2278 provides that notice of the proposed adoption be given to all interested parties. In view of the fact that the father of an illegitimate child does have parental rights, we hold today that he is an “interested party” within the meaning of the statute, and that due process and equal protection require that he be given notice of the pending adoption of his child. Actual notice should of course be given whenever possible; and when the father’s identity and whereabouts are unknown and unascertainable by due diligence, constructive notice must be given in a form reasonably calculated to actually inform him of the adoption, while at the same time duly protecting the privacy rights of the mother.
However, we do not think that due process and equal protection require that the consent of a putative father be obtained before his child is adopted. K.S.A. 59-2102 requires the consent of both living parents of a legitimate child unless a parent has failed to assume parental responsibilities for a period of two consecutive years in which case his or her consent is not required. It further provides that only the mother of an illegitimate child need give her consent to the adoption of that child.
If after being given notice of the pending adoption the father appears and asserts his desire to assume parental responsibilities toward the child, his rights in the child must be given preference over those of third-party adoptive parents, unless he has failed to assume parental responsibilities for the statutory period of two years or he is found to be unfit. However, if he chooses not to appear and make known his desire to care for the child, his rights are de minimis and may be terminated without his consent by finalizing the adoption.
We do not think that due process requires his consent. As stated above, a father who fails to appear after being given notice has only minimal rights in his child. Balanced against these minimal rights is a strong state interest in placing children in a stable, nurturing family atmosphere. Requiring only the mother’s consent when a putative father refuses to acknowledge his child by signing a consent will facilitate and expedite adoption proceedings.
Neither do we think that equal protection requires that an unwed father’s consent be obtained before his child is adopted. Leon Scott, Jr., argues that the distinction between wed and unwed fathers or the distinction between unwed fathers and unwed mothers implicitly established by K.S.A. 59-2102 is constitutionally infirm. While it is true that the statute does create a classification by requiring only the consent of mothers, wed or unwed, and the consent of fathers of legitimate children (subject to the exception for those parents who fail to assume parental responsibilities for two years), we feel that the classification is not invidious. It is based on a rational and logical difference between the two groups: their respective legal relationships to the child and the accompanying difference in their responsibilities toward that child. Furthermore, the classification is logically related to and advances the legitimate state interest in facilitating the adoption of children born out of wedlock.
Under our holding today, to the extent that the father of an illegitimate child who seeks custody may veto an adoption unless he has been found unfit or has abdicated his parental responsibilities for two years, such a father is placed in the same category as the father of a legitimate child. We would emphasize that this result is based on a construction of our existing statutes which do not clearly deal with the subject, and not on any constitutional requirement. Quilloin makes it clear that absolute equality between the two classes of fathers is not constitutionally required, and that different treatment may be justified where proper state objectives require it. Hence our holding today is not a bar to further legislative treatment of the problem so long as it recognizes the father’s right to notice and an opportunity to be heard, and makes distinctions rationally related to the objectives to be achieved.
Because we find that a putative father’s rights of due process and equal protection are satisfied by requiring that he be given notice as an interested party pursuant to K.S.A. 59-2278 and an opportunity to appear and assert his desire to assume parental-responsibilities toward his child, we find the constitutional objections to the consent provisions of K.S.A. 59-2102 to be without merit. Therefore, the fact that the trial court did not rule on the issue does not constitute reversible error.
We think it wise to add that we will limit the effect of our decision to those adoptions, other than the case at hand, that occur after the date our opinion is issued. Strong policy considerations militate against giving this decision retroactive effect and thereby subjecting already existing adoptive family units to attack.
The temporary restraining order previously issued is hereby set aside. The cross-appeal is denied. Judgment of the trial court is affirmed. | [
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Abbott, J.:
This is a direct appeal by defendant from a conviction for battery against a law enforcement officer, contrary to K.S.A. 21-3413. Defendant raises three issues on appeal, contending (1) that he did not make a knowing and intelligent waiver of counsel; (2) that he did not sufficiently understand the charges against him to prepare a proper and adequate defense; and (3) that while a pro se defendant should not be allowed to waive a record, even if it is allowed the defendant here did not knowingly and intelligently do so. The case is before us on an agreed statement, no record of the proceedings having been made.
The defendant was arrested following a disturbance at Lake Afton in Sedgwick County, Kansas, during which defendant was sprayed with Mace and then allegedly struck a park ranger. Defendant was arrested by Darrel Long, Chief of Police of Goddard, Kansas, and David Cisneroz, a Sedgwick County deputy sheriff. Defendant was placed in the rear seat of a law enforcement vehicle. Officer Cisneroz drove and Chief Long rode in the back seat with the defendant. While enroute to the Sedgwick County jail, the defendant kicked Officer Cisneroz on the back of his shoulder.
The record does not indicate whether or not defendant was booked into the Sedgwick County jail, and if he was booked, whether it was for the incident that occurred at the lake or for the incident that occurred on the way to the jail. A complaint was filed three days later on June 21, 1977, alleging an assault upon “David N. Cisneroz, a uniformed and properly identified county law enforcement officer . . . .”
The defendant appeared pro se on the morning of the trial. The trial judge engaged the defendant in the following colloquy concerning defendant’s right to counsel and waiver of a record:
“THE COURT: Mr. Daniels, I see from the arraignment sheet in the court file that you have waived your right to the assistance of counsel in this case, is that correct?
“DEFENDANT: Yes sir.
“THE COURT: Do you understand that you have a right to assistance of counsel in this case?
“DEFENDANT: Yes sir.
“THE COURT: And with knowledge of that right, is it your desire to proceed in this case without assistance of counsel?
“DEFENDANT: Yes sir.
“THE COURT: Do you understand that in the defense of this case, you will be held to the same standard as an attorney?
“DEFENDANT: Yes sir.
“THE COURT: Mr. Daniels you are charged with battery against a law enforcement officer. That charge carries a maximum term of one years imprisonment, do you understand that?
“DEFENDANT: Yes sir.
“THE COURT: Do you wish to have a record made in this case?
“DEFENDANT: No, I don’t believe that is necessary.
“THE COURT: Very well. Does the State wish to make an opening statement?”
The arraignment sheet is a preprinted form and the only reference to waiver of counsel contained therein is one sentence which reads: “Said defendant(s) then announce that the services of an attorney are * Q desired * [X] waived.”
Officer Cisneroz and Chief Long testified for the state. The defendant explained that he had witnesses present to testify in his defense regarding the incident at the lake, as he had assumed that was what he was being tried for in view of having been arrested at the lake. He then declined to cross-examine the witnesses against him or to present any defense in his behalf. He was found guilty and was sentenced to ninety days in jail. This appeal followed.
The United States Supreme Court first made the Sixth Amendment’s guaranty of the right to counsel through the due process clause of the Fourteenth Amendment applicable to state prosecutions in Gideon v. Wainwright, 372 U.S. 335,9 L.Ed.2d 799, 83 S.Ct. 792 (1963). Although the Supreme Court spoke of “[t]he right of one charged with crime to counsel,” some question remained in legal circles as to whether the decision was limited to indigents charged with felonies.
In Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972), the United States Supreme Court considered a factual situation wherein the state of Florida refused to appoint counsel for an indigent defendant charged with a misdemeanor, an offense punishable by maximum imprisonment of six months. The Supreme Court laid down an easily understandable rule of law that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at diis trial.” 407 U.S. at 37.
A defendant may waive the right to counsel. The waiver, however, may not be presumed from a silent record, and the state has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made. Camley v. Cochran, 369 U.S. 506, 8 L.Ed.2d 70, 82 S.Ct. 884 (1962). The right to counsel in a case where a person may be imprisoned is a right guaranteed by the United States Constitution and as such the attempted waiver of that right should be strictly construed. Whether an accused knowingly and understandably waived his or her right to counsel after the assistance of counsel was offered would depend on the particular facts and circumstances of each case. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975).
The state relies on language found in James v. State, 220 Kan. 284, 553 P.2d 345 (1976), that a valid waiver of counsel was reflected in a journal entry which stated the defendant acknowledged in open court that he had not consulted an attorney, did not desire to do so, and waived his right to have an attorney advise him. From that finding the state concludes that if a court informs an accused of his right to the assistance of counsel, and the defendant responds affirmatively to a direct inquiry from the court as to whether he desires to proceed without assistance of counsel, then a valid waiver is shown. We do not agree. The James case was pursuant to K.S.A. 60-1507 wherein the defendant collaterally attacked an Oregon conviction which had been introduced and used by a Kansas judge in imposing the habitual criminal sentence. The sole question was the sufficiency of the record introduced in Kansas. That is a question far different from the one that faces this court.
The record before this court is barren of any evidence to show defendant was informed that counsel would be appointed by the court to represent him at no expense to him if he could not afford counsel. The defendant was declared to be indigent the day following the alleged waiver of counsel, and we were advised at oral argument that the defendant was indigent at all times material to this decision. We are unable to make a valid distinction between waiving the right to counsel at trial and waiving the right to have counsel present during custodial police interrogation. Individuals held for interrogation may not waive their right to have counsel present during interrogation without first being told in clear and unequivocal terms that they have a right to the presence of an attorney during the questioning, and that if they are unable to afford an attorney one will be appointed at no expense to them. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). The right protected in Miranda is the Fifth Amendment privilege against self-incrimination. If the Fifth Amendment requires a potential defendant to be advised of his or her right to counsel before a knowing and intelligent waiver can be made, then we have no difficulty concluding that the Sixth Amendment right to counsel requires equal notice to one accused of and being tried for a crime. When any person is accused of an offense, whether misdemeanor or felony, for which he or she may be imprisoned (as defined in Argersinger v. Hamlin, 407 U.S. 25), that person must be informed of the right to retained or appointed counsel before he or she can make a knowing and intelligent waiver of counsel.
In addition to informing the defendant of the right to counsel, either retained or appointed, the trial court must make more than a routine inquiry when a defendant attempts to waive the right to counsel. Von Moltke v. Gillies, 332 U.S. 708, 92 L.Ed. 309, 68 S.Ct. 316 (1948); State v. Cunningham, 222 Kan. 704, 567 P.2d 879 (1977). A waiver is an intentional relinquishment of a known right, made with full awareness of the effect. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938). While it is not necessary for us to determine the adequacy of the trial court’s inquiry in view of our holding above, we do comment and offer guidelines for the court.
A defendant has a constitutional right to self-representation if the election to do so is knowingly and intelligently made. State v. Ames, 222 Kan. 88, 99, 563 P.2d 1034 (1977). The trial judge’s duty, after fully advising the defendant in clear and unequivocal language of his right to counsel to aid in his defense, is to ascertain if the defendant then knowingly and intelligently desires to waive the right. As Justice Kaul stated in State v. Cunningham, 222 Kan. at 706, the record must establish that the defendant knew what he was doing and “made his choice with his eyes open.”
The ABA Standards Relating To the Function of the Trial Judge, § 6.6 at 84, 85 (Approved Draft, 1972), suggest the trial judge’s inquiry show that the defendant:
“(i) has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
“(it) possesses the intelligence and capacity to appreciate the consequences of this decision; and
“(iti) comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.”
To that, we would suggest that the trial judge also inform the defendant (1) that defendant will be held to the same standards as a lawyer; (2) that the trial judge may not aid the defendant in his defense; and (3) that it is advisable to have a lawyer due to the specialized knowledge necessary to conduct a trial and the fact that a lawyer is trained in the law.
We turn now to whether an indigent pro se defendant can waive a record even if the waiver is knowingly and intelligently made. We are immediately faced with the state’s argument that a defendant in a misdemeanor case is not entitled to a record. The state relies on a series of cases holding that a transcript is not the only acceptable record on appeal. That is the rule in Kansas. State v. Hornbeak, 221 Kan. 397, 559 P.2d 385 (1977). We have no quarrel with the Hombeak decision; however, it dealt with a factual situation in which a court reporter had taken stenographic notes of a preliminary hearing. The question was whether or not an indigent defendant was entitled to a transcript of the preliminary hearing at state expense. The Supreme Court of Kansas held that, upon a showing that the transcript is necessary to an adequate defense and that adequate alternative devices are not available, an indigent defendant is entitled either to a free copy or use of the state’s copy.
A district court in Kansas is a court of record (K.S.A. 20-301), and it is the duty of the official court reporter to attend and take full stenographic notes of the proceedings tried before the court as the judge thereof shall direct. K.S.A. 1977 Supp. 20-915, Rule No. 354.
The Kansas Supreme Court has stated that while it is the better practice to take full stenographic notes of the entire proceeding, it has not made a record mandatory in jury trials except when evidence is presented to the jury for its consideration. State v. Guffey, 205 Kan. 9, 26, 468 P.2d 254 (1970). We see no valid distinction between requiring stenographic recording of all evidence taken in the presence of a jury and requiring similar recordation of all evidence presented to the judge when he sits as a trier of fact.
Although failure to make a record is not automatically reversible error, certain portions must be recorded either stenographic-ally or electronically. One such area is the waiver of counsel (State v. Oldham, 178 Kan. 337, 285 P.2d 775 [1955]); another is the waiver of right to a jury trial. To those we would add that an indigent defendant appearing pro se may waive a record but must make such a waiver knowingly and intelligently and after being fully apprised of his or her rights for the record. People v. McConnell, 11 Ill. App. 2d 370, 137 N.E.2d 558 (1956).
In the case at hand, the trial judge inquired of the defendant, “Do you wish to have a record made in this case?” The defendant replied in the negative. The court did not inquire of defendant whether he knew for what purpose a record is made, how it is used, or what effect the lack of a record would have on an appeal. More importantly, the defendant was not told that there would be no charge to him to make a stenographic or electronic recording of the proceedings; and although there would be a charge for transcribing the proceedings, defendant was not told that if he were indigent and showed a need, use of the transcript would be furnished to him at no charge. Without being fully advised, a pro se defendant cannot make a knowing and intelligent waiver of a record and it is error to permit him or her to do so.
Not all trial error, however, is reversible error. Here defendant has not been prejudiced by the lack of a full verbatim transcript. Although prejudice may be inferred in many instances, it will not be inferred here when the defendant prepared a statement that was incorporated into an agreed statement of facts and approved by the trial judge. Defendant does not allege or attempt to prove prejudice and we find none, either express or inferred. No controversy exists which a record might clarify, and we find that the error in failing to make a record does not require reversal. However, the inadequacy of the waiver of counsel described above does require reversal.
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Foth, C.J.:
After her motion to dismiss was overruled appellant Delores White was convicted of soliciting for prostitution in violation of an ordinance of the City of Junction City. In an imaginative and well-written brief she contends that the ordinance unconstitutionally impinges on her right of privacy and is unconstitutionally vague. Despite the superficial plausibility of some of her arguments we cannot agree.
Her privacy argument is based primarily on three cases, Gris-wold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965); Eisenstadt v. Baird, 405 U.S. 438, 31 L.Ed.2d 349, 92 S.Ct. 1029 (1972); and Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705 (1973). Griswold held that married couples could not be prohibited by law from purchasing contraceptives. The court there recognized for the first time a constitutional “right of privacy” covering their activities in the bedroom. Eisenstadt held that the Equal Protection clause extends the same right of access to contraceptives to unmarried persons. Roe decreed that under certain circumstances the choice of a woman to terminate a pregnancy is a personal choice which may not be regulated by the state. To this trio may be added Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243 (1969), holding that the right of privacy protects one who wishes to peruse obscene literature in his home.
No case suggests, however, that the right of privacy protects a prostitute when she solicits a stranger in a public place. Indeed, “privacy” is antithetical to the act of solicitation. While it may be possible for a prostitute to ply her trade in private once a cus tomer is acquired, the act of solicitation requires at least a modicum of public exposure. In this case we deal only with solicitation, and not with prostitution.
The answer to appellant’s privacy argument is found in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628 (1973):
“A man may be entitled to read an obscene book in his room, or expose himself indecently there .... We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places — discreet, if you will, but accessible to all — with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not. . . .” (p. 59. Emphasis in original.)
In that case the court held that the individual’s right to view obscene material in his home did not extend any rights to the commercial purveyor of the same material because of the difference in the interests involved, noting:
“The protection afforded by Stanley v. Georgia, 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243] (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. . . . Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage.” (413 U.S. at n. 13.)
We therefore hold that soliciting customers by a prostitute is not an activity which is constitutionally protected.
In her void-for-vagueness argument appellant notes that the ordinance prohibits the solicitation of “any other person for purposes of prostitution or any other illicit sexual act for hire.” This, she says, is broad enough to cover the “solicitation” of a sexual encounter by even a “nice girl” or “lonely widow” in situations where payment takes the form of dinner and a night on the town. The result, it is argued, is selective enforcement in that police concentrate their attention on streetwalkers and call girls, while leaving nice girls and lonely widows alone.
The argument is more properly one of overbreadth rather than vagueness. Since appellant is concededly a professional she has no standing to challenge the ordinance as it might apply to amateurs. Cf, State o. Thompson, 221 Kan. 165, Syl. §§ 4, 5, 558 P.2d 1079 (1976). To withstand a vagueness challenge a statute must convey “a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.” State v. Kirby, 222 Kan. 1, Syl. 1, 563 P.2d 408 (1977). The ordinance in question, supplemented by the prostitution ordinance, amply meets that test.
Appellant makes additional arguments challenging the “compelling justification” for anti-prostitution ordinances in general. Compelling justification is only required where legislative control is exerted over constitutionally protected activities. We are satisfied that prohibiting prostitution is within the police power of the state, so that such arguments should be more appropriately addressed to the lawmakers.
The motion to dismiss was properly overruled.
Affirmed.
The two ordinances are:
12-509 — SOLICITING OR PROCURING. Any person who shall solicit, procure, entice, or induce any other person for purposes of prostitution or any other illicit sexual act for hire shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be punished as provided under the General Penalty section of this ordinance.
12-508 — PROSTITUTION AND OTHER ILLICIT SEXUAL ACTS. Any person who shall engage in an act of sexual intercourse for hire or any other illicit sexual act for hire, or any person who shall persuade, entice, induce, procure, or assist in persuading, enticing, inducing, or procuring any other person to engage in an act of sexual intercourse for hire, or any person who shall persuade, entice, induce, procure, or assist in persuading, enticing, inducing, or procuring any other person to engage in any illicit sexual act for hire shall, upon conviction thereon, be deemed guilty of a misdemeanor and shall be punished as provided under the General Penalty section of this ordinance. Such illicit sexual acts shall include, but not be limited to, the following offenses: anal copulation, oral copulation, any fondling or touching of person done or submitted to with the intent to satisfy or arouse the sexual desire of person. | [
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Abbott, J.:
This is a direct appeal from a conviction for possession of marijuana contrary to K.S.A. 1977 Supp. 65-4127b(a)(3). Defendant’s appeal is based on the trial court’s overruling of appellant’s motion to suppress evidence which defendant alleges was the fruit of an unreasonable search and seizure prohibited by the constitutions of both the United States and Kansas. The state takes the position that the search may be justified on either of two independent grounds: (1) That the search was incident to a lawful arrest, or (2) that the location of the marijuana in plain view provided probable cause, and the fact that it was in a motor vehicle supplied an exigent circumstance justifying the seizure.
The facts are simple and were stipulated to by the parties. Police officers on a routine patrol were driving down an alley in Mulvane, Kansas, at approximately 1:40 a.m. They observed an apparently unoccupied vehicle with its lights on parked behind a laundry. The police officers stopped to investigate, and when they reached the automobile they found the defendant lying on the front seat either asleep or unconscious. The officers attempted to arouse the defendant. The stipulation is not clear as to whether or not they reached through an open window and touched or nudged defendant in an effort to arouse him. In any event, in attempting to arouse the defendant they observed a plastic bag sticking out of a tear in the cloth near the crotch of his trousers. The officers observed that the clear plastic bag contained a “green botanical substance” which one of the officers associated with marijuana. The defendant was then informed that he was under arrest for the possession of marijuana. He was given the standard Miranda warning and the plastic bag was seized. Only then was the car door opened and the defendant removed from the vehicle and placed in the police car.
We hold that the seizure of the marijuana was reasonable on two grounds. First, the prohibited substance was in plain view of police officers who had a right and duty to be where they were when they viewed the prohibited substance, and exigent circumstances existed to seize the prohibited substance. Second, the prohibited substance was seized incidental to a lawful arrest for a crime being committed in the presence of the officers.
The “plain view — exigent circumstances” analysis was recently reaffirmed by this court in State v. Jones, 2 Kan. App. 2d 38, Syl. ¶ 2, 573 P.2d 1134 (1978). In Jones, we held: “One of the exceptions to the warrant requirement is seizure of evidence in plain view where (1) the initial intrusion which affords the authorities plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating nature of the evidence is immediately apparent.”
As appellant concedes in his brief, when the officers discovered him he was “sound asleep or passed out.” The officers had no way of knowing whether defendant had been the victim of a crime, was in need of medical attention, or that some other emergency existed. Our Supreme Court has acknowledged the need for prompt action in similar situations. In State v. Boyle, 207 Kan. 833, 839, 486 P.2d 849 (1971), the court noted:
“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.”
Both Boyle and Jones involved the actual entry of police into private dwellings, an intrusion which has traditionally been afforded greater constitutional protection than an intrusion into an automobile. Both Boyle and Jones allowed the seizure and introduction into evidence of contraband which fell into plain view of an officer who had the right to be in the position to have that view.
It is evident from the record here that the discovery of the marijuana was inadvertent and that its status as contraband was evident at once to the officer.
An equally valid exigent circumstance is provided by the presence of the evidence located on a person seated in an automobile. Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975, reh. denied 400 U.S. 856, 27 L.Ed.2d 94, 91 S.Ct. 23 (1970). The fact that evidence is located in an easily movable vehicle has been held to justify a search which would not be allowed if a house or office were involved. State v. Hays, 221 Kan. 126, 130, 557 P.2d 1275 (1976). In the case at bar, as in Hays, the defendant while in an automobile available to be driven off was alerted to the fact that police officers were present, a situation which falls under the provisions of K.S.A. 22-2401(c)(2)(i).
We also hold that a crime was being committed by the defendant in view of the officers, which is an exception recognized by the courts as justifying the warrantless search for evidence. State v. Brown, 198 Kan. 473, 426 P.2d 129 (1967); K.S.A. 22-2401(d).
In order for a warrantless search to be justified under this particular exception, it is first necessary that there be probable cause to arrest the defendant. Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223 (1964); State v. Blood, 190 Kan. 812, 378 P.2d 548 (1963). Probable cause to arrest has been defined in numerous cases as that quantum of evidence which would lead a prudent person to believe that the offense has been committed. Henry v. United States, 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168 (1959). In a case where, as here, officers on the street must make such a determination, probable cause exists where the facts and circumstances within the arresting officer’s knowledge are sufficient in and of themselves to warrant a belief that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925). It is not necessary that the evidence be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the available data lead a reasonable officer to believe that guilt is more than a possibility. State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972).
Defendant argues that this case is indistinguishable from State v. Schur, 217 Kan. 741, 538 P.2d 689 (1975) wherein the Supreme Court held that an officer, who was standing unobserved outside the defendant’s apartment and saw what to him appeared to be a marijuana cigarette, was not justified in entering the apartment over the defendant’s objection and seizing the cigarette without first obtaining a search warrant. We believe Schur is distinguishable. First, the police officer was not unobserved when he saw what he believed to be contraband. Rather, he was in the process of arousing the defendant when the contraband was spotted. Having started to arouse the defendant, the officers had no way of knowing whether or not the defendant and the automobile would be present when they returned with a warrant. In addition, the Supreme Court, in State v. Hays, 221 Kan. at 130, distinguished Schur from an automobile case by stating that the expectation of privacy is significantly higher in one’s own apartment than in one’s automobile.
Affirmed. | [
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Foth, C.J.:
This is a proceeding under K.S.A. 60-1507 in which petitioner seeks to set aside his convictions in two separate cases because in each there was evidence that upon his arrest he refused to talk to the arresting officers. He relies on Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), which holds that a defendant’s silence after being given the Miranda warning may not constitutionally be used to impeach an exculpatory story told for the first time at trial.
The trial court denied relief on three grounds; (1) that there were no exceptional circumstances excusing petitioner’s failure to raise the question at trial as required by what is now Rule No. 183; (2) that Doyle v. Ohio is not retroactive and is not applicable to petitioner’s convictions, which had become final some five months before Doyle was decided; and (3) on the merits, that the thrust of the state’s evidence on silence went to petitioner’s refusal to disclose his name to the arresting officers, rather than to his failure to make an exculpatory statement at that time. On appeal petitioner challenges all three grounds.
In October, 1973, petitioner was convicted of carrying a dangerous weapon (a hunting knife) knowingly concealed on his person within five years following a felony conviction. In November, 1973, he was convicted of kidnapping, aggravated assault and rape. He appealed those convictions and in opinions rendered on January 24, 1976, the Supreme Court affirmed the conviction for carrying a conceafed weapon in State v. Lassley, 218 Kan. 752, 545 P.2d 379 (1976), and the convictions for kidnapping and rape in State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976) (although in that case it reversed the conviction for aggravated assault).
At both of petitioner’s trials reference was made to his post-Miranda silence, but this was not raised as a point of error in either direct appeal. At the time petitioner’s appeals were heard, Kansas law allowed the introduction of evidence of silence where it would logically impeach a defendant’s exculpatory story.
On June 17, 1976, however, the United States Supreme Court decided Doyle, which had the effect of abrogating our prior ruie. In State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976), Kansas recognized the Doyle rufe and overruied its cases to the contrary. See also, State v. Heath, 222 Kan. 50, 563 P.2d 418 (1977); State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977); State v. Hamilton, 222 Kan. 341, 564 P.2d 536 (1977); State v. Dodson, 222 Kan. 519, 565 P.2d 291 (1977); State v. Smith, 223 Kan. 294, 574 P.2d 161 (1978). Where there is such an intervening change in the law between a direct appeal and a collateral attack, the failure to raise a constitutional question on direct appeal is excused. See, Cox v. State, 214 Kan. 652, 522 P.2d 173 (1974); Johnson v. State, 210 Kan. 498, 502 P.2d 838 (1972); Rule No. 183(c)(3), 220 Kan. Ixx. We therefore conclude that if Doyle is applicable, petitioner’s previous failure to raise the issue does not preclude him from raising it in this proceeding.
That Doyle must be applied in this case is, we think, established by Meeks v. Havener, 428 U.S. 908, 49 L.Ed.2d 1213, 96 S.Ct. 3215 (1976), a memorandum decision filed three weeks after Doyle. In that case the Supreme Court vacated a judgment of the United States Court of Appeals for the Sixth Circuit (516 F.2d 902) which had affirmed the denial of a writ of habeas corpus. The case was remanded “for further consideration in the light of Doyle v. Ohio.” The essential times may be gleaned from the opinion on remand, Meeks v. Havener, 545 F.2d 9 (6th Cir. 1976).
In that case Meeks had been convicted in state court of armed robbery in a trial at which his post-Miranda silence had been mentioned. The exact date his conviction became final is not clear, but it was obviously some time before he filed his federal habeas corpus action, in which relief was denied by the trial court in 1974. Since the Supreme Court directed that Doyle be applied in that case, where the conviction had been final for more than two years prior to Doyle, we find the inference inescapable that the rule is to be applied retroactively.
We are left, then, with the question of whether the error was prejudicial or harmless. Since we are dealing with constitutional error, in order to find it harmless we must be able to make such a finding beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967). Put another way, we must be able to say beyond a reasonable doubt that the error “had little, if any, likelihood of having changed the result of the trial.” State v. Thompson, 221 Kan. 176, 182, 558 P.2d 93; State v. O’Neal, 204 Kan. 226, 232, 461 P.2d 801 (1969). To make that determination requires an evaluation of the quantity and quality of the evidence in each case.
Looking first to the weapons case, we find there was no dispute over the fact that when he was arrested, petitioner was carrying a “dangerous” knife on his belt in a concealed manner. In addition, he stipulated he had previously been convicted of a felony within the prescribed statutory period. The only issue being tried by the jury was whether he carried the knife “knowingly,” or whether he should have been excused by his claim that after using the knife on his job he forgot to take it off and didn’t realize he had concealed it under a jacket put on later. (Whether the knife, as a tool of his trade, could be a “dangerous weapon” under the statute was a question of law for the court, and not a jury question.) The state’s evidence was that when first stopped petitioner gave his name, address and employer, and was allowed to proceed. On cross-examination petitioner was asked if he didn’t refuse to give his name when arrested; he replied that he had given it when first stopped. Asked if he had told his story about forgetting he was wearing the knife to the arresting officer he said “Yes.” No rebuttal evidence by the state is cited to us, nor is any mention of the point by the prosecution in closing argument.
In short, in the weapons case, the state attempted to show post-Miranda silence but was unsuccessful. In view of the undisputed evidence we conclude that this abortive effort to impeach the defendant was harmless beyond a reasonable doubt.
In the kidnapping-rape case the references to post-Miranda warning silence were all during the state’s case-in-chief, and not in cross-examining the defendant or in rebuttal. Two officers testified that after being given the Miranda warning, the defendant refused to talk to them — one saying he refused even to give his name. In addition, there was testimony that the victim confronted the petitioner face-to-face after identifying him in a line-up. She spoke to him, but he just dropped his head and grunted. This confrontation was mentioned in argument to the jury, but we do not regard it as the same kind of exercise of Fifth Amendment rights dealt with in Doyle. While this evidence was all designed to show guilty knowledge, none was directly used to impeach defendant’s alibi except by way of anticipation.
In this case, also, the evidence was overwhelming. The victim positively identified defendant at a line-up and at trial. Her identification was buttressed by her refusal to make an identification at a previous line-up, which did not include the defendant, and during a series of escorted expeditions to businesses and manufacturing plants in the area where she observed numerous men in an attempt to locate her assailant. In addition, the circumstantial evidence was almost conclusive: defendant’s boot matched a footprint found at the scene, and laboratory analysis showed his hair matched specimens recovered from a cloth which the assailant had worn over his head. Finally, defendant took, and before taking it stipulated to the admissibility of, a polygraph “lie detector” test. The KBI agent who administered the examination testified that defendant lied on all the significant questions concerning the attack. In view of all this evidence, we cannot believe the jury could have been influenced in its decision by also learning that defendant remained silent after his arrest. His refusal to talk to the officers was not made an issue in closing argument, and we do not have the same kind of cross-examination for impeachment purposes and prosecutorial persistence found objectionable in State v. Heath, supra.
We therefore conclude that the error was harmless beyond a reasonable doubt, and the trial court correctly refused to vacate the convictions. Affirmed. | [
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Parks, J.:
This appeal stems from a controversy over the submission of deficient drawings and specifications for the McKnight Fine Arts Center at Wichita State University.
By the terms of a Memorandum of Appointment executed on January 6, 1971, the defendant, Charles McAfee, as associate architect, was to prepare plans, drawings and specifications to be used in the construction of the center.
In making its claim for damages, the state alleged that during the summer of 1972, the defendant delivered drawings and specifications which were inadequate and faulty. It is also alleged that he failed to correct the drawings after the deficiencies were brought to his attention. In order to correct the resulting constructional deficiencies, it was necessary to cut tunnels through poured concrete, install additional piping, re-route existing piping and reconstruct a penthouse structure which was to contain a multi-zone air handler.
The attorney general, as relator on behalf of the state of Kansas, filed this action in January, 1976, three, and one-half years after the discovery of deficiencies in defendant’sAvork'pro'duct.
The trial court dismissed this action on the grounds that the activity of hiring an architect is proprietary in nature, the gravamen of the action sounded in tort, and the action was barred by the two-year statute of limitations. The state appeals.
At the outset we will consider whether statutes of limitation run against the state.
K.S.A. 60-521 deals with the applicability of the limitations of actions to public bodies:
“As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties, except in (1) actions for the recovery of real property or any interest therein, or (2) actions to recover from any former officer or employee for his or her own wrongdoing or default in the performance of his or her duties.”
In State Highway Commission v. Steele, 215 Kan. 837, 528 P.2d 1242 (1974), an action was brought by the State Highway Commission to recover damages to a bridge which was struck by an automobile owned by defendant Ethel E. Steele and driven by defendant Ronald W. Steele. The sole question was whether the action was barred by the two-year statute of limitations for tort set forth in K.S.A. 60-513(a)(4).
The Steele court made the following observations: K.S.A. 60+ 521 clearly makes a distinction between actions arising out of proprietary functions of public bodies and actions arising out of their governmental functions or activities with respect to the applicability of limitations (p. 838). Causes of action arising out of governmental functions are omitted from the text of K.S.A. 60-521, thus it is to be construed as excluding those actions which are not specified (p. 839).
The Steele court also pointed out that it has consistently held that statutes of limitation do not run against the state unless specifically provided by statute. See Board of County Commissioners v. Lewis, 203 Kan. 188, 453 P.2d 46 (1969); and Riggan v. Director of Revenue, 203 Kan. 129, 453 P.2d 52 (1969).
The conclusion to be drawn is that statutes of limitation do not run against the state when the action arises out of the performance of a governmental function.
We now turn our attention to the question of whether the hiring of an associate architect is a proprietary or a governmental function of the state.
Governmental functions are those which are performed for the general public with respect to the common welfare and for which no compensation or particular benefit is received, while proprietary functions are exercised when an enterprise is commercial in character or is usually carried op by private individuals or is for the profit, benefit or advantage of the governmental unit conducting the activity. Brown v. Wichita State University, 217 Kan. 279, 305, 540 P.2d 66 (1975) (Brown I); rehearing granted and opinion modified in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976) (Brown II) and cases cited therein.
The question of whether the contracting for incidental professional services is a proprietary or a governmental function was answered in Wilcox v. Salt Lake City Corporation, 26 Utah 2d 78, 484 P.2d 1200 (1971). There it was held that the city in contracting with doctors for examination of X-rays in connection with the city’s annual renewal of waitresses’ health permits was not acting in a proprietary capacity but in a governmental capacity.
Our Supreme Court held in Board of County Commissioners v. Lewis, supra, that in building and maintaining public roads and bridges a county performs those functions in its governmental capacity and the purchase of materials to be used for those purposes is a governmental function.
There is no question but that the state was performing its governmental function of providing public education when it exercised the powers conferred by the legislature to hire an associate architect pursuant to K.S.A. 75-5401, et seq. See Smith v. Board of Education, 204 Kan. 580, 584, 464 P.2d 571 (1970). The procuring of the architect’s services is incidental to and a part of the state’s overall duty to provide public education for the citizens of the state. We conclude that the hiring of the associate architect was a governmental function of the state.
The conclusion we have reached makes it unnecessary for us to consider the other points raised on appeal.
The judgment of the district court is reversed, and the cause is remanded with directions to proceed to trial on the merits. | [
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Spencer, J.:
In a suit for damages for personal injuries, the jury returned its verdict in favor of defendant and plaintiff has appealed.
On September 28, 1971, plaintiff was selling and delivering newspapers to patients and employees in defendant hospital. Plaintiff was in the front lobby of the hospital with a bag of tightly packed newspapers resting on her left shoulder when Danny Rome, who was employed by defendant as a janitor, approached her from behind and attempted to remove a newspaper from the bag. In the process, Rome lifted or jerked the bag in such a manner that plaintiff was injured.
Rome was first employed by defendant in September, 1969, and for most of the time his work had proved unsatisfactory. It was known to defendant that Rome had a tendency to talk with others rather than complete his assigned work; that he was careless in failing to return his equipment to proper storage areas; and that on one occasion a visitor to the hospital had slipped and fallen in an area where Rome was spray-buffing without having first displayed appropriate warning signs. Rome was repeatedly the subject of administrative discussion and attempts to improve his work habits. On November 25,1969, the director of housekeeping prepared a report on Rome as follows:
“This report is written about the happenings with Mr. Dan Rome regarding his employee and work relations here at Stormont-Vail Hospital.
“1. Mr. Rome consistently disregards instructions given him by supervisors,
“2. He is not willing to put forth the effort to do a good job without strict supervision or someone assigned to assist every minute,
“3. He cannot be trusted to complete work assignments properly,
“4. He either does not have the capability or his attitude is such that he is not willing to learn from just criticism,
“5. Due to all of the above reports, the emergency area has deteriorated due to the complete stripping and refinishing which is quite time consuming,
“6. Conversations and lack of interest also a factor of this report, and
“7. Finally, having considered all of the above points, I recommend Mr. Rome to be placed on a wall washing job only, knowing that if this does not work out satisfactorily to both parties, Mr. Rome will be terminated. A given amount of time approximately two weeks will be probationary.”
On September 3, 1971, his supervisor prepared a memo on Rome stating in part:
“. . . This employee never does complete a job to the expectancy of a good Housekeeping employee. The man has been warned several times by me alone, and when he does work it is in a haphazard way, his equipment is laying around, is dangerous to patients and other employees. Dan Rome has a habit of stopping work and talking to any one that comes along.”
This memo suggested that Rome be terminated but also indicated that termination should be delayed for thirty days “to bring this employee into shape . . . .” There was evidence that the injuries to plaintiff occurred because Rome was attempting to play a prank or a practical joke on her and Rome testified that, at the time of the accident, he was teasing plaintiff and attempting to have some fun with her. There was also evidence that defendant permitted plaintiff on the hospital premises for the purpose of selling and delivering newspapers to patients, employees, and supervisory personnel and that defendant permitted employees of the hospital to buy newspapers from her.
The petition alleged two causes of action: First, that defendant was liable under the doctrine of respondeat superior because Rome was acting within the permitted and accepted scope of his employment at the time of plaintiff’s injury; and, second, that defendant was negligent in failing to exercise reasonable care in the selection, employment, training, control, and retention of Rome as an employee. The petition was subsequently amended to allege gross negligence and wanton and reckless conduct on the part of defendant and to seek an additional amount as punitive damages. Issues were joined, discovery completed, and on August 13, 1974, the court sustained defendant’s motion for summary judgment as to the first cause of action (respondeat superior) and as to plaintiff’s claim for punitive damages. The motion for summary judgment was overruled as to the second cause of action and the case went to the jury on plaintiff’s theory of negligence.
Pertinent portions of instructions No. 2 and No. 3 as given to the jury are as follows:
“INSTRUCTION NO. 2
“The plaintiff claims that she was injured and sustained damages as a direct result of the negligence of the defendant. Specifically, plaintiff alleges:
“(a) That Danny Joe Rome was an incompetent or unfit employee of the defendant;
“(b) That defendant was negligent in employing said Danny Joe Rome and in retaining him in its employment when said defendant knew or should have known of such incompetence or unfitness of said Danny Joe Rome; and
“(c) That plaintiff was injured and sustained damages as a direct result of the incompetence and unfitness of defendant’s servant, Danny Joe Rome.
“In order for plaintiff to recover on her claim against the defendant, plaintiff must sustain the burden of proving the foregoing allegations.
“The defendant denies that it was negligent in employing and retaining in its employment Danny Joe Rome, that plaintiff was injured as a direct result of any incompetence and unfitness on the part of its employee, Danny Joe Rome, and that plaintiff has sustained damages to the extent claimed.
“If the jury finds from all the evidence that the plaintiff has met the burden of proof on each of the allegations concerning which the burden of proof rests upon said plaintiff and that the defendant has failed to meet the burden of proving its affirmative defense of contributory negligence, then you should return a verdict in favor of plaintiff.
“If the plaintiff sustained the burden of proving all the allegations of her claim and the defendant sustained the burden of proving that plaintiff failed to avoid or minimize damages, then the jury should reduce the amount of plaintiff’s recovery by any amount of damages which could have been avoided by plaintiff by the exercise of reasonable care and diligence.”
"INSTRUCTION NO. 3
“An employer may be negligent when it has reason to know that an employee, because of his qualities, is likely to harm others. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor. The dangerous quality in the agent may consist of his incompetence or carelessness.
“Such an employer is not liable merely because the employee is incompetent or careless. If liability results, it is because, under the circumstances, the employer has not taken the care which a reasonable and prudent man would take in selecting or retaining the employee for the work at hand. What precautions must be taken depend upon the situation. One can normally assume that another who offers to perform simple work is competent.
“Liability results under this rule not because of the employer-employee relationship of the parties, but only if the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by plaintiff should have been foreseen by the defendant.”
At the appropriate time, plaintiff objected to the giving of instruction No. 3 because the instruction was not clear and it failed to instruct the jury in accordance with the plaintiff’s theory of the case.
On appeal, plaintiff has analyzed instruction No. 3 by lifting various words and phrases from the text suggesting the impact each may have had on the deliberations of the jury. It does not appear that the specific defects now referred to by plaintiff were brought to the attention of the trial court, although the general objection to the instruction was argued at some length. K.S.A. 60-251(h) provides that no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires “stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous. . . .” See also, Bott v. Wendler, 203 Kan. 212, 453 P.2d 100 (1969).
It is argued that the basic law of the case and the issues and theories upon which the jury should have been instructed are to be found in the cases of BalIn v. Lysle Rishel Post No. 68, 177 Kan. 520, 280 P.2d 623 (1955), Murray v. Modoc State Bank, 181 Kan. 642, 313 P.2d 304 (1957), and Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 388 P.2d 824 (1964). This argument overlooks certain fundamental differences. In Stricklin, the employer had or should have had knowledge of its employee’s dangerous inclination toward pranks and practical jokes. In Murray, the bank had knowledge of its managing officer’s violent dislike for plaintiff and his inability to control his emotions. In this case, defendant had knowledge that Rome was not doing his work properly, had displayed a lack of interest in his job, and that the haphazard way in which he did work and left his equipment around was dangerous to patients and other employees. The resulting situation is nearer that in Balin since there as here defendant had little or no knowledge of its employee’s propensity for dangerous “horseplay.” In Balin, it is said:
“A master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant.” (Syl. 4.)
“A master is not liable for injuries inflicted by one employee upon another employee when the act which caused the injury was not authorized by the master, was not done to promote the master’s business and was not part of the employee’s duties.” (Syl. 5.)
Because of factual differences, the district court determined that the rule as stated in Stricklin and in Murray was too broad, and relied upon Restatement (Second) Agency, § 213, to provide a narrower instruction better suited to the facts in this case. The gist of instruction No. 3 is that there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee’s particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable.
General principles to be followed by an appellate court in determining whether instructions of the trial court are in error are set forth in Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 545 P.2d 334 (1976), as follows:
“(1) The function of instructions is to advise the jury with respect to the law governing all issues joined by the pleadings upon which evidence is adduced and to advise the jury regarding the verdicts it is possible to render on the evidence actually adduced ....
“(2) The jury should be instructed on the law applicable to the theory of both parties so far as they are supported by any competent evidence ....
“(3) It is not necessary for a court to instruct the jury on an issue made by the pleadings if not supported by the evidence ....
“(4) Instructions should be impartial, accurate statements of the law and drawn with careful attention to supporting authorities ....
“(5) Instructions should be stated in brief, simple language that would be clear and understandable to laymen ....
“(6) Instructions should be general in nature insofar as possible, and should not be argumentative or unduly emphasize one particular phase of the case. Stated in another way, jury arguments should be left to the summations of counsel ....
“(7) A court should not single out a particular theory or circumstance and give it undue emphasis although the requested instruction correctly states the law ....
“(8) Instructions are to be considered together and read as a whole, without isolating any one instruction ....
“(9) If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole', and if the jury could not reasonably be misled by them, the instructions should be approved on appeal . . . .”(218 Kan. at 600-601.)
With these principles in mind, we note that by instruction No. 2 the jury was charged that, in order for the plaintiff to recover, she must prove that Rome was an incompetent or unfit employee, that defendant was negligent in employing and retaining Rome when defendant knew or should have known of such incompetence or unfitness, and that plaintiff was injured and sustained damages as a direct result of the incompetence and unfitness of Rome; and, if plaintiff was successful in doing so and defendant did not prove its affirmative defenses, a verdict in favor of plaintiff was to be returned. Considered with instruction No. 3, the jury was fully instructed as to plaintiff’s theory of the case. Instruction No. 3 is somewhat lengthy. However, an instruction may be lengthy, involve all conditions of the right of a party to recover, and set out those conditions in detail. Hospital Co. v. Odd Fellows, 99 Kan. 488, 162 Pac. 302 (1917). Instruction No. 3 in its totality adequately sets forth the law applicable to this case as supported by competent evidence, is impartial and not argumentative, and when considered with instruction No. 2 and the other instructions given could not reasonably have misled the jury.
After deliberations had commenced, the jury made inquiry of the court as follows:
“Could we have a definition of the words 'incompetent’ or 'unfit,’ as they are used in the instructions to the jurors on page 2, part a?
“Does this imply a certain period of his employment, or are we to decide if he was fit or unfit the entire time of his employment?
“In part ‘b’ in instruction 2, does the word ‘employing,’ the first time it appears, mean ‘hiring,’ or does it mean employing, as the time he worked there?
“Part ‘b’ is a two part statement, and uses the conjunction ‘and’ to separate the two parts. Can we construe this as ‘or’ also?”
After conferring at some length with counsel for both sides, the court prepared a response which was given to the jury as follows:
“In response to your question the Court informs the jury that such words as ‘incompetent’ or ‘unfit’ refer to personal qualities, characteristics or propensities of the employee which one could reasonably anticipate would create an unreasonable risk of harm to others.
“And in further response to your questions, the Court informs the jury that if the Defendant hospital created or permitted an unreasonable risk of harm to persons entering or using the hospital by retaining Danny Joe Rome in its employment, said hospital would be liable for any harm which occurred as a direct result of such unreasonable risk. However, the hospital is not responsible for every conceivable risk created but only for those risks which a prudent man in the position of the hospital would consider unreasonable.
“The foregoing response should be construed in the light of and in harmony with Instructions previously given by the Court. If this response is unclear or does not fully answer your questions, you are free to so indicate.
Plaintiff argues that the court did not properly define the words “incompetent” and “unfit” and failed to respond to certain of the remaining written inquiries of the jury. K.S.A. 1975 Supp. 60-248(c), then in effect, provided:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of, or after notice to, the parties or their counsel.”
The matter of responding to the request of a jury for further information on the law or evidence in a case, made after the jury has retired for deliberations, is generally addressed to the discretion of the trial court. State v. Sully, 219 Kan. 222, 547 P.2d 344 (1976). Circumstances may create a duty of the trial court to clarify its former instructions by giving additional information as provided by K.S.A. 60-248(c) and the failure to do so may constitute reversible error. State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1976); State v. Bullocks, 2 Kan. App. 2d 48, 574 P.2d 243, rev. denied 223 Kan. clxxii (1978). As stated in Bandt:
“. . . We wish to make it clear that instances may sometimes occur in the course of a trial where the jury raises questions which are irrelevant or which are already adequately covered by the original instructions. Under those circumstances the trial court may decline to answer such questions and direct the jury to reread the instructions already given. A trial court is vested with a great amount of discretion in answering questions directed to him by a jury after the jury has begun its deliberations. The important consideration is that the jury be properly instructed on the essential issues presented at the trial . . . (219 Kan. at 823-824.)
The trial judge made no attempt to respond with precision to each and every inquiry made by the jury. However, it is apparent that his response was compatible with the instructions initially given and that the jury was properly instructed on the essential issues presented at trial. It is equally apparent that the jury accepted the response as sufficient and made no further inquiry. We find no abuse of discretion.
Prior to trial and in the course of granting a partial summary judgment in favor of defendant, the trial court stated that the case would go to trial on the theory set forth in Stricklin v. Parsons Stockyard Co., supra. At the close of the evidence, plaintiff offered her requested instructions No. 3 and No. 4 which the court refused to give, even though as argued by plaintiff there is direct authority for them in Stricklin.
As noted earlier, the rules enunciated in Stricklin and in Murray were considered too broad for the facts of this case and the court correctly formulated a narrower instruction. Furthermore, the substance of plaintiff’s requested instruction No. 3 appears in instruction No. 2 which the court did give to the jury. The rule that requested instructions are properly refused when the substance is contained in the instructions given is too well established in this jurisdiction to require extensive discussion. Can-field v. Oberzan, 196 Kan. 107, 410 P.2d 339 (1966); Kettler v. Phillips, 191 Kan. 486, 382 P.2d 478 (1963); Goldman v. Bennett, 189 Kan. 681, 371 P.2d 108 (1962). Requested instruction No. 4 was weighted in favor of the plaintiff’s case and could easily have confused and misled the jury, and refusal to give that instruction was entirely proper. The fact that the district court departed from the strict language of Stricklin and Murray to formulate an instruction better suited to the facts of this case does not constitute error. Instructions should not be composed by carving from opinions certain statements which are applicable or controlling only in those cases in which they appear. Instructions should be general in their nature and should not emphasize certain factors and omit others in such manner that they, in effect, become argumentative. Kerby v. Hiesterman, 162 Kan. 490, 178 P.2d 194 (1947).
Error is urged in the granting of summary judgment in favor of defendant upon plaintiff’s theory of respondent superior. Plaintiff relies heavily upon the decision in Williams v. Community Drive-in Theater, Inc., 214 Kan. 359 520 P.2d 1296 (1974), and contends that, since many of defendant’s employees bought newspapers and read them while on the job, the buying and reading of newspapers was within the scope of Rome’s employment. Plaintiff argues that the court focused upon the wrong act in determining whether Rome was acting within the scope of his employment when the injury occurred, suggesting that consideration should have been given to the act of buying a newspaper rather than determining whether the act of playing a practical joke was within the scope of his employment.
Plaintiff’s injuries were not caused by the act of purchasing or reading a newspaper but occurred when Rome attempted to pull a newspaper out of the bag plaintiff was carrying. Rome states that, although he did not intend to hurt plaintiff, he was teasing her and attempting to have a little fun with her that day. The act which resulted in plaintiff’s injuries was Rome’s prank and had little or nothing to do with the purchase or reading of a newspaper.
An employee is acting within the scope of his authority when he is performing services for which he has been employed or when he is doing anything which is reasonably incidental to his employment. The test is not necessarily whether the conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it. The liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was willful and intentional or was unintentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer’s business and within the scope of his authority or had stepped aside from that business and had done an individual wrong. The now generally recognized rule is that the employer is liable for the reckless, willful, intentional, wanton, or malicious acts of his employee as well as for his heedless and careless acts if they are committed while the employee is acting in the execution of his authority and within the course of his employment, or with a view to the furtherance of his employer’s business, and not for a purpose personal to the employee. Williams v. Community Drive-in Theater, Inc., supra. See also, Beggerly v. Walker, 194 Kan. 61, 397 P.2d 395 (1964). It is indeed difficult to comprehend how Rome’s conduct which resulted in plaintiff’s injury could be within the scope of his authority or reasonably incidental to his employment. Rome’s conduct in this instance could not reasonably have been foreseen from the nature of his employment or the manner in which he performed his duties. His act could only have been for a purpose personal to him. If an assault by an employee is motivated entirely by personal reasons such as malice or spite or by a desire to accomplish some unlawful purpose, and does not have for its purpose the furtherance of the employer’s business, it will be considered personal to the employee and not such as will make the employer answerable. Williams v. Community Drive-in Theater, Inc., supra; Murray v. Modoc State Bank, supra.
Finally, plaintiff alleges error in the granting of summary judgment against her claim for punitive damages. Having determined that the trial court was not otherwise in error, this point is now moot. McDonald v. Bauman, 199 Kan. 628, 433 P.2d 437 (1967); Watkins v. Layton, 182 Kan. 702, 324 P.2d 130 (1958). Moreover, there was no evidence in this case that the defendant or its employees realized there was an imminent danger of Rome playing a dangerous prank upon a visitor. Without prior notice of Rome’s propensity for pranksterism, there could be no wanton or reckless disregard of plaintiff’s rights.
Judgment affirmed. | [
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Spencer, J.:
This is an appeal from an order of unrestricted wage garnishment entered in proceedings initiated by the Johnson County District Court Trustee per K.S.A. 23-496. At issue are: (1) Is there an appealable order? (2) Is wage garnishment for past due child support an exception to the restrictions set forth in K.S.A. 60-2310(b)?
The parties were divorced by decree entered July 10, 1975. Plaintiff was awarded custody of their two minor children and defendant was ordered to pay $35 per week child support and $15 per week alimony. Both parties remarried and defendant has a child by his second marriage.
Defendant was approximately $4,555 in arrears in combined alimony and child support when civil contempt proceedings were instituted against him early in 1977. On March 9, 1977, the trial court reduced defendant’s child support obligation to $15 per week. It is presumed the obligation for alimony ceased upon plaintiff’s remarriage.
On March 17, the court trustee secured an order of garnishment of defendant’s wages. On March 29, defendant filed a motion to quash that order. On April 1, the City of DeSoto as garnishee filed an answer stating that defendant’s total wages for the period of March 15 to March 31, 1977, were $315, of which $274.90 were disposable earnings. On April 4, a hearing was held on defendant’s motion to quash and the court took the matter under advisement. On April 8, the court ordered the garnishee to pay in fifty percent of the disposable earnings owed defendant for the garnishment period. On April 21, defendant filed his reply to the garnishee’s answer. The trial court overruled defendant’s motion to quash by decision entered May 16 and defendant filed his notice of appeal from that order on May 19. A journal entry was filed May 23, 1977.
Plaintiff has challenged the jurisdiction of this court, noting that the overruling of a motion to quash an order of garnishment is not a final decision appealable as of right, citing Gulf Ins. Co. v. Bovee, 217 Kan. 586, 538 P.2d 724 (1975). He also notes that the order to pay in the garnished funds would be a “final decision” subject to appeal.
This case would not differ materially from Gulf Ins. Co. v. Bovee, supra, except that an order directing the garnishee to pay has in fact been entered. Such an order to pay constitutes a final judgment in a garnishment proceeding. Although the point has not been raised, it appears that the trial court may have “jumped the gun” in entering its order to pay in. That order was entered April 8, 1977, just eight days after the answer of the garnishee. Under K.S.A. 60-718(c), defendant had twenty days from the date of filing the garnishee’s answer in which to reply. This he did on April 21, 1977. His reply raised the same issues as his motion to quash, which had been heard before thé order to pay in but was not decided until sometime later. The effect of this procedure was that the court’s ruling on the motion to quash resolved all of the issues raised by the defendant against the garnishment and the order directing the garnishee to pay in was allowed to stand.
Such, therefore, was a “final decision” from which the jurisdiction of this court may be invoked by appeal as a matter of right per K.S.A. 60-2102(a)(4).
At the time of garnishment, K.S.A. 60-2310 provided in part:
“(b) Subject to the provisions of subsection (e) of this section, only the aggregate disposable earnings of an individual may be subjected to wage garnishment, and the maximum part of such earnings of any wage earning individual which may be subjected to wage garnishment for any workweek or multiple thereof may not exceed either (1) twenty-five percent (25%) of his or her aggregate disposable earnings for that workweek or multiple thereof, or (2) the amount by which his or her aggregate disposable earnings for that workweek or multiple thereof exceed an amount equal to thirty (30) times the federal minimum hourly wage, or equivalent multiple thereof for such longer period, whichever is less ....
“(é) The restrictions on the amount of disposable earnings subject to wage garnishment shall not apply in the following instances:
“(1) Any order of any court for the support of any person . . .
Defendant contends that the exception to the restriction on wage garnishment noted does not apply in this case. He argues that past due child support payments under a divorce decree are judgments and not orders; that there is a distinction between these concepts; and, had the legislature intended to include such judgments within the exception, it would have done so in clear language.
It is true that installments for the support of a child become final judgments as of the dates due and may be enforced as other judgments. Strecker v. Wilkinson, 220 Kan. 292, Syl. 4, 552 P.2d 979 (1976). It is also true that orders and judgments are distinct, although “final orders” which determine the rights of the parties are sometimes included within the scope of “judgment.” 46 Am. Jur. 2d, Judgments § 3, p. 315. Under rules of statutory construction, however, past due child support payments which have become judgments must be said to come within the exception.
K.S.A. 60-2310 was patterned almost verbatim after 15 U.S.C. § 1673. The legislative history to that section stated in part:
“The restriction on garnishment provided for in the bill does not apply to any debt due to a court order for the support of any person (domestic relations cases) or for State or Federal taxes.” 2 U.S. Cong, and Admin. News 1968, p. 1978. (Emphasis added.)
The precise issue here considered was determined adversely to defendant’s position in Pellerin v. Pellerin, 259 Ark. 546, 534 S.W.2d 767 (1976). Besides pointing to the legislative history of 15 U.S.C. § 1673, the court in Pellerin noted that a construction which limited the support exception to “orders” as distinct from “judgments” would render the exception meaningless. This was because under Arkansas law garnishment was not available on a support order that had not been reduced to judgment. Similarly, K.S.A. 60-715 provides that, where garnishment proceedings affect the earnings of the defendant, they shall not be commenced before judgment on plaintiff’s claim in the principal action. Thus, wage garnishment is not available to enforce an order to support which has not become a judgment. Temporary and interlocutory orders for support may be enforced only by non-wage garnishment prior to judgment. Since the restrictions and exceptions of K.S.A. 60-2310 apply only to wage garnishment, interpretation of an exception which would limit it to pre-judgment claims would be meaningless.
The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained. Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977). A statute is not to be given an arbitrary construction according to the strict letter, but one that will advance the sense and meaning fairly deducible from the context. Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131 (1973).
While it may be true that recovery of past due child support will serve to reimburse those who have previously provided such support, we believe it evident that the legislative intent was that past due child support payments which have become judgments are within the exceptions to the restrictions on wage garnishment.
Defendant argues that one hundred percent garnishment makes it impossible for him to pay his current child support obligation of $15 per week. The short answer is that the garnishment as ordered is fifty percent. Finally, defendant argues that the garnishment is for the entire amount of his past due payments, whereas there is no order for the combined amounts but only for $35 per week, each of which is “an order.” The answer to this argument is found in Fangrow v. Fangrow, 185 Kan. 227, 341 P.2d 998 (1959), where it is said:
“. . . Furthermore, when payment of child support is ordered to be made in installments, a final judgment results as each installment becomes due and unpaid, or, so many of them as may be due and unpaid at any one time may be determined to be the total judgment by a simple mathematical calculation. It is unnecessary for a court to reduce due and unpaid installments to a lump-sum judgment before each of such judgments, or a total of them, may be enforced.” (185 Kan. at 230, emphasis added.)
Judgment affirmed. | [
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Parks, J.:
Gerald and Susan Atwood, the parents of four-year-old Nicholas Wayne Atwood, are appealing a district court order wherein they were adjudged unfit parents and their parental rights permanently severed. Gerald and Susan were divorced prior to the district court hearing in this case and therefore appeal separately.
Recitation of the facts giving rise to the original petition is not required for disposition of these appeals.
We note that necessary prerequisites to the severance of parental rights are findings that the child is dependent and neglected and that the parents are unfit. To establish unfitness the state must show by clear and convincing evidence that the natural parents are unsuitable, incompetent or not adapted for their roles as parents. Cf. In re Penn, 2 Kan. App. 2d 623, 585 P.2d 1072 (1978); In re Nelson, 216 Kan. 271, 531 P.2d 48 (1975); In re Armentrout, 207 Kan. 366, Syl. ¶ 3 and 370,485 P. 2d 183 (1971). Here the trial court both orally and in its journal entry based its findings on the parents’ inability to provide a proper home “except for dependence on some other state rehabilitation service.” Such action by the court violates K.S.A. 1977 Supp. 38-802(g)(5), which clearly states that a child shall not be classed as a dependent and neglected child solely because of the fact that he or his parent, or both, receive assistance under the social welfare acts or otherwise receive support from public funds.
Mere conclusions that the child was dependent and neglected, that the parents were unfit and that parental rights should be severed, are inadequate to permit meaningful appellate review particularly where, as here, the only reason given by the trial court for its decision is statutorily prohibited. Good practice dictates that a trial court give reasons for its decision, advising the parties and the reviewing court of the standards applied which governed the determination and persuaded the trial court to arrive at its decision. Under the circumstances, this court has no alternative but to remand the case for new findings and conclusions. K.S.A. 60-252(a); Supreme Court Rule No. 165 (223 Kan. lxx); Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 254, 564 P.2d 472 (1977).
Since this cáse is being remanded for a new hearing, we deem it appropriate to consider the recognized policy and rules applicable to the termination of parental rights. To determine that the best interests of the child would be served by a termination of parental rights, the court must find that under no reasonable circumstances can the welfare of the child be served by a continuation of the parent-child relationship. This test requires the court to explore and specifically eliminate alternative remedies before imposing the drastic remedy of parental severance. See People, Int. of M. M. 184 Colo. 298, 520 P.2d 128 (1974). The welfare and best interests of children are primarily the concern of their parents, and it is only when parents are unfit to have the custody, rearing and education of children that the state as parens patriae, with its courts and judges, steps in to find fitting custo dians in loco parentium. In re Armentrout, 207 Kan. at 370 citing In re Kailer, 123 Kan. 229, 255 Pac. 41 (1927). See also In re Bachelor, 211 Kan. 879, 882, 508 P.2d 862 (1973); In re Vallimont, 182 Kan. 334, 321 P.2d 190 (1958).
Judgment is reversed and the case remanded for a new hearing on all the issues in the light of intervening events and the views expressed in this opinion. | [
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Foth, C.J.:
This is an appeal by the city from an order of the district court dismissing a prosecution. The defendant was tried in municipal court and convicted of disorderly conduct and resisting an officer, in violation of city ordinances. He appealed to district court and there moved that the case be dismissed because the complaint had not been sworn to. The district court found that the complaint had been properly verified but, on its own initiative, inquired into the adequacy of the original notice to appear in municipal court. The uniform complaint and notice to appear which had been utilized did not specify a date and time but, in accordance with local practice, provided that the defendant could appear at any time during court hours within seven days of the issuance of the complaint and notice. The district court found that this latitude granted to the defendant did not comply with Kansas statutes and dismissed the action.
Although the city urges us to determine the validity of its open-time notice to appear, we do not reach that question because we think it clear that in this case the defendant waived any defects in the notice to appear. The defendant secured his release from jail by signing a recognizance bond to appear for trial at a specified day and time. He did appear in municipal court, as required by the bond, pleaded not guilty, and was tried. The “notice to appear” did not set his time for appearance — the recognizance bond did that. The notice in this case served only as a written complaint, which the trial court found to be properly verified.
In City of Wichita v. Hibbs, 158 Kan. 185, 146 P.2d 397 (1944), the defendant was arrested and charged orally with driving while intoxicated and destroying city property. A trial date was set and he posted bond for appearance. The defendant was convicted in police court and appealed to district court. In district court he argued for the first time that he should be discharged in part because there had been no written or verified complaint against him. The district court denied his motion to dismiss and he was tried and found guilty. On appeal, the Supreme Court noted that the defendant had not demanded a written complaint under oath at the time he was arraigned in police court or at any time during his trial. The court held that “[t]he execution of an appearance bond and/or a recognizance for appeal waive all defects in the process . . . under which a defendant has been . . . brought before the court for trial.” (Syl. 2)
In State v. Barry, 183 Kan. 792, 332 P.2d 549 (1958), the defendant was convicted in county court of driving while intoxicated. He appealed to the district court where he moved for a discharge on the ground that the county court had failed to affix its seal to the complaint, warrant, and transcript of proceedings filed in the district court. The district court denied the motion and on appeal the court affirmed. The court stated that defects of this character are “waived by a defendant when, without having objected thereto, he gives a bond for appearance in the county court and/or furnishes a bond for appeal to the district court.” (Syl. 1)
In State v. Dye, 148 Kan. 421, 83 P.2d 113 (1938), the defendant contended on appeal the court should reverse on the grounds that the complaint was insufficient. The defendant alleged that the complaint was signed and sworn to before it was filled out. Our court ruled that the “defect, however serious it may have been, was waived by the defendant when he, without objection thereto, gave bond for his appearance at court.” (428-429).
While none of these cases deal specifically with a notice to appear, they do illustrate the general rule that objections to personal jurisdiction must be made at the outset of an action or are lost. (See also, 22 C.J.S., Criminal Law § 147 and 5 Am. Jur. 2d, Appearance §§ 5 and 6.) The defendant in this case appeared and submitted to the jurisdiction of the court. Since any deficiencies in the notice to appear were waived by defendant’s appearance in municipal court without objection, the district court erred by dismissing the case.
The judgment is reversed and the case is remanded with directions to proceed to trial. | [
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Swinehart, J.:
The defendant appeals from a jury verdict awarding actual damages in the amount of $3,888.99 and punitive damages in the amount of $15,000 to the plaintiffs in an action arising out of the sale of cattle infected with brucellosis.
The plaintiffs are husband and wife. Mr. Kiser died soon after the conclusion of the trial in district court and his wife was substituted as administrator of his estate in the appeal.
In late 1973, the plaintiff, Mr. Kiser, decided to go into the dairy business. He was retired and in ill health at the time. He made arrangements with Mr. Gordon Gaede to go into partnership with him. The basic agreement was that Mr. Kiser would furnish the cattle and Mr. Gaede would furnish the labor. Mr. Kiser made arrangements for a bank loan which he used to purchase the dairy herd. Between December 1, 1973, and February 26, 1974, the plaintiffs made six different purchases of dairy cattle, totaling twenty-two cattle, from the defendant Mr. Gilmore. They also purchased two dairy cows from another seller.
On March 22, 1974, plaintiffs’ entire dairy herd was quarantined for brucellosis. Brucellosis is a contagious disease in livestock. State law requires that any animal which is found to have brucellosis must be slaughtered. K.S.A. 47-658b. In spite of small government subsidy payments to stockmen whose animals must be slaughtered, the discovery of brucellosis in a herd generally means financial hardship. It is especially serious for dairymen, for it is prohibited to sell milk from cattle possibly infected with the disease because it can cause a dangerous disease in humans — undulant fever.
The evidence presented at trial shows overwhelmingly that the disease originated in the defendant’s herd. Mr. Kiser bought all of the cows except two from the defendant. The two that were purchased from the other source did not have the disease. A bull which the plaintiffs rented from a third party did have brucellosis. However, the bull’s owner testified that none of his cattle had brucellosis, and that the bull was clean before being put with the plaintiffs’ herd. An expert witness for the plaintiffs testified that bulls often catch brucellosis from cows but that cows very rarely are infected with brucellosis by a bull. The most significant evidence presented which tends to show the defendant’s liability, however, is the fact that the defendant’s entire herd was under quarantine at the time that he sold the animals. Under K.A.R. 9-2-23, animals under quarantine for brucellosis may not be sold, except for slaughter.
The defendant excuses the sale of the animals under quarantine by claiming that he erroneously believed that the quarantine had been released. Two quarantines were issued to the defendant in September of 1973 because of his failure to meet import requirements of the state of Kansas. Pursuant to K.A.R. 1977 Supp. 9-7-1 and 9-7-4, livestock imported into the state must be tested for brucellosis before being brought into the state. If they have not been tested or if they come from an area which has a particularly high incidence of brucellosis, the animals are segregated and quarantined inside the state and tested for the disease. The two quarantines issued to the-defendant in September, 1973, were for failure to meet import requirements, not because of suspected brucellosis. On October 11, 1973, the defendant received a release of these two quarantines. However, on October 4, 1973, the defendant had received a quarantine for all of his cattle within the state of Kansas except steers and heifers less than six months old. This quarantine was issued because brucellosis had been discovered in his herd. It was not released until April 14, 1975. Therefore, the defendant’s sale of cattle to the plaintiffs during the period from December, 1973, until February 26, 1974, was in contravention of Kansas law which forbids the sale of animals quarantined for suspected brucellosis.
When the plaintiffs learned that a number of their dairy cattle would have to be slaughtered for brucellosis, they decided to abandon their faltering business venture. Kiser first went to the defendant asking him to repurchase the cattle for what they had paid for them, and to pay various incidental damages such as pasture rent, interest on the loan, etc. The defendant refused this settlement.
Mr. Gaede then offered to buy sixteen of the cattle from the plaintiffs. The defendant cosigned a bank note with Gaede to help him raise enough money to purchase sixteen of the cows. Mr. Kiser met with Mr. Gaede at a bank in April, 1974. The defendant was not present at the time the bill of sale was signed. At the trial he testified that he had no knowledge of what was contained in the bill of sale, and did not participate in the transaction in any way except to furnish money to Mr. Gaede.
In spite of the fact that the plaintiffs were able to dispose of sixteen of their cattle in this manner, they suffered some financial loss from the transactions. Accordingly, they filed suit against the defendant, alleging that the defendant had breached express warranties, implied warranties of merchantability and fitness for particular purpose; that the defendant had violated the Kansas Consumer Protection Act; and that the defendant had committed fraud.
The defendant’s brief sets out five allegations of error. At oral argument, he abandoned his contention that the appeal should be dismissed because Mrs. Kiser is not a real party in interest as required by K.S.A. 60-217(a). The remaining allegations of error are: (1) that the trial court erred in instructing the jury on “willful, wanton and malicious” conduct because the plaintiffs’ petition did not set forth such conduct as a potential ground for recovery; (2) that the trial court should have instructed on the defendant’s theory of release; (3) that the trial court should have submitted written interrogatories to the jury; and (4) that the trial court should have granted a remittitur as to all or a part of the $15,000 punitive damages assessed against the defendant.
Briefly summarized, the jury was instructed that the plaintiffs sought to recover damages on two alternate theories. One theory was that the defendant’s acts constituted breach of warranty: an express warranty (K.S.A. 84-2-313), an implied warranty of merchantability (K.S.A. 84-2-314), or an implied warranty of fitness for a particular purpose (K.S.A. 84-2-315). The defendant does not challenge the propriety of this instruction, which explains the grounds upon which the plaintiffs’ prayer for actual damages was based. The defendant’s contention on appeal is that the trial court erred in instructing the jury that it could award punitive damages to the plaintiffs if it found that the plaintiffs were entitled to recover actual damages and if the jury found “that the conduct of the defendant was willful, wanton, malicious or constituted fraud.” The defendant alleges that the use of the language “willful, wanton or malicious” was erroneous because the petition and the pretrial order only set forth fraud as grounds for recovery of punitive damages.
The defendant argues that fraud and willful, wanton and malicious conduct constitute two separate and distinct causes of action, and that it was therefore error to instruct on an issue not raised by the pleadings. In support of this contention, he cites Simms v. Webb, 219 Kan. 675, 676, 549 P.2d 570 (1976), where the Supreme Court said, “The instructions given must be germane to the issues raised by the pleadings, and must be limited to those issues supported by some evidence.” He argues that the instructions were prejudicial to him because fraud must be proved by clear and convincing evidence (Hoch v. Hoch, 187 Kan. 730, 732, 359 P.2d 839 [1961]), but the award of punitive damages for willful, wanton and malicious conduct only entails proof that the parties’ claim is more probably true than not true.
The plaintiffs’ cause of action is primarily a contract action, alleging a breach of express warranties, implied warranties of merchantability and fitness for a particular purpose, and a violation of the Kansas Consumer Protection Act. The rule relating to the award of punitive damages in an action for breach of contract is stated in Hess v. Jarboe, 201 Kan. 705, 443 P.2d 294 (1968). The Supreme Court said:
“It is a well accepted general rule that an unjustified breach of a contract does not entitle a party to punitive damages. [Citations omitted.]
“An exception to this general rule is recognized when some independent tort or wrong results in additional injury which justifies the assessment of punitive damages by way of punishment of the wrongdoer. In such a case the proof of the independent tort must indicate the presence of malice, fraud or wanton disregard for the rights of others.” pp. 708-709. (Emphasis supplied.)
The defendant’s claim that the court erred in instructing the jury on willful, wanton and malicious conduct is without merit. K.S.A. 60-215(h) provides:
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
Judge Gard, discussing the purpose behind this portion of the Kansas Code of Civil Procedure, states:
“Since under these rules pleading is not an end in itself, and because the outcome of litigation should turn on the facts and not on the pleadings, amendments should be freely made to conform them to the evidence. Likewise, failure to amend does not affect the outcome on issues actually tried, whether they have been pleaded or not.” Gard’s Kansas C. Civ. Proc. § 60-215(b) (1963).
Kansas cases which discuss and apply 60-215(h) demonstrate the propriety of the court’s instructions on willful, wanton and malicious conduct, in spite of the fact that it was not set forth as a ground for recovery in the petition or the pretrial order.
The evidence presented at trial clearly shows that the defendant either committed actual fraud or acted in willful, wanton and malicious disregard for the rights of the plaintiffs and the public át large. The plaintiffs, of course, alleged fraud in their petition. Actual fraud requires as an essential element the intent to deceive. Loucks v. McCormick, 198 Kan. 351, 356, 424 P.2d 555 (1967). The defendant at trial testified that he did not sell the quarantined cattle with the intent to deceive the plaintiffs. Accepting for the sake of argument the defendant’s explanation of why he thought the final quarantine for suspected brucellosis had been released, his conduct is at the very least willful and wanton. Any seasoned stockman is aware of the seriousness of brucellosis, and failure to pay careful attention to notices relating to quaran tines for the disease would certainly support a factual finding that one who treated the matter so lightly had acted in a willful and wanton manner.
In Forster v. Fink, 195 Kan. 488, 407 P.2d 523 (1965), the Supreme Court considered the applicability of 60-215(h) to a situation where the plaintiff had filed a general denial to the defendant’s cross-petition for breach of contract. At trial the plaintiff presented evidence, without objection by the defendant, tending to show confession and avoidance, an affirmative defense which must be specifically pleaded. The Supreme Court refused to find error, holding that the defendant had impliedly consented to the trial of the issue by not objecting to evidence relating to confession and avoidance, and that the pleadings should be treated as amended. The Court said, “A party impliedly consents to the introduction of issues not raised in the pleadings by his failure to make timely objection to the admission of evidence relating thereto.” 195 Kan. at 493.
Another case which stands for the proposition that a party’s failure to object to evidence tending to prove an issue not alleged in the pleading constitutes implied consent to trying that issue is Schreppel v. Campbell Sixty-six Express, Inc., 201 Kan. 448, 441 P.2d 881 (1968). In the case at hand, not only did the defendant fail to object to the admission of evidence relating to willful, wanton and malicious conduct, he himself introduced much of that evidence. The situation is analogous to that presented in Tripp v. The Reliable Life Insurance Co., 210 Kan. 33, 499 P.2d 1155 (1972). There the plaintiff did not allege estoppel in his pleadings, but both parties introduced evidence tending to prove estoppel. Applying K.S.A. 60-215(h), the Supreme Court found that no reversible error had occurred, despite the fact that the case was finally determined on the estoppel ground.
The defendant also argues that the fact that willful, wanton and malicious disregard for the plaintiffs’ rights was not mentioned in the pretrial order should preclude instructing the jury on the issue. This argument is untenable in light of Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 440 P.2d 548 (1968), where the Supreme Court affirmed the decision of the trial court, even though acknowledging that the ultimate order of the court went beyond the literal scope of both the pleadings and the pretrial order.
The trial court’s decision to submit the issue of willful, wanton and malicious conduct as a ground for awarding punitive damages fits within the scheme and purpose of our code of civil procedure as announced in Walker v. Fleming Motor Co., 195 Kan. 328, 404 P.2d 929 (1965), where it was said:
“As a general rule, amendments to pleadings are favored in law and should be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits. . . .
“Motions for leave to amend are addressed to the sound discretion of the court, but its discretion is not to be exercised arbitrarily or used to defeat the ends of justice.” p. 330
Finally, we would note that the plaintiffs’ failure to make an actual amendment of the pleadings is irrelevant. K.S.A. 60-215(b) specifically provides that “failure so to amend does not affect the result of the trial of these issues.” Substantial justice was done by submitting to the jury the issue of whether punitive damages should be assessed against the defendant for willful, wanton and malicious disregard for the plaintiffs’ rights. The instructions were supported by the evidence introduced at trial and they were relevant to the plaintiffs’ plea for punitive damages.
The defendant’s second allegation of error is that the court failed to instruct on his defense theory of release. The defense is based on the bill of sale set forth below:
Bill of Sale Personal Property
KNOW ALL MEN BY THESE PRESENTS, that in consideration of Seventy-Five Hundred & no/100-Dollars the receipt of which is hereby acknowledged, _do GRANT, SELL, TRANSFER and DELIVER unto William Gilmore and Gordon Gaede their heirs, executors, administrators, and assigns, the following goods and chattels, viz: 16 head of Holstein and Guernsey heifers they will pick from my herd of Holstein and Guernsey cattle. It is warranted that these cattle are being sold free and clear of any feed bills or claims against them of any nature. It is further agreed and made a part of this sale, that if the purchasers have the cattle they pick out tested it is at their expense and the seller disclaims any responsibility as to the results of the tests, due to the fact that one of the buyers, Gordon Gaede and the seller were formerly co-owners of the cattle. The seller hereby forfeits any claim against the buyers for any ‘reactors’, or cattle that test bad, that he will retain in his possession, or is owned by him.
TO HAVE AND TO HOLD, All and singular, the said goods and chattels forever, and the said grantor hereby covenant with the said grantees, he is the lawful owner of said goods and chattels that they are free from all incumbrances; that he has good right to sell the same as aforesaid, and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
IN WITNESS WHEREOF, the said grantor has hereunto set_hand, this 26th day of April, A.D. 1974.
Executed in the presence of /s/ Wayne F. Kiser
Examination of the face of the document indicates that the plaintiffs sold the cattle to the defendant Gilmore and one Gordon Gaede. The testimony presented at trial, however, shows that the plaintiffs sold the cattle to Gaede and that the defendant was involved in the transaction only as a cosigner of Gaede’s note at the bank for the money borrowed to purchase the cattle.
The record does not contain a copy of the proposed instruction, nor does it show that the defendant made an objection, specifically stating the grounds for it, to the court’s failure to include the proposed instruction before the jury retired to consider its verdict. Case law clearly shows that failure to comply with these requirements of K.S.A. 60-251(o) and (b) precludes a party from predicating error on the omission of instructions on appeal. Apperson v. Security State Bank, 215 Kan. 724, 731, 528 P.2d 1211 (1974); Bott v. Wendler, 203 Kan. 212, 222, 223, 453 P.2d 100 (1969).
The one exception to this rule is that a party may appeal the failure to give an instruction without strictly complying with K.S.A. 60-251 when the failure to instruct was clearly erroneous. The defendant has failed to show that such was the situation in this case. The plaintiffs alleged that the defendant’s actions were in violation of the Kansas Consumer Protection Act (K.S.A. 50-623 et seq.). Section 50-625(c) of the Act provides:
“A settlement in which the consumer waives or agrees to forego rights or benefits under this act is invalid if the court finds the settlement to have been unconscionable at the time it was made. The competence of the consumer, any deception or coercion practiced upon the consumer, the nature and extent of the legal advice received by the consumer, and the value of the consideration are relevant to the issue of unconscionability.”
K.S.A. 50-627(fc) further states that the determination of whether any act is unconscionable under the Act is a question for the court, not the jury. On the facts of this case, the trial court could well have based its refusal to instruct on release on a finding that the so-called release was unconscionable. Thus, the refusal to give the requested instructions was not clearly erroneous, and therefore this Court is precluded from reviewing the question by reason of the defendant’s failure to preserve the question for appeal by complying with the requirements of K.S.A. 60-251(a) and (b).
The defendant’s third point on appeal was that the trial court’s refusal to submit special questions to the jury constituted reversible error. The questions were three in number:
“1. Did you, the jury, find that the defendant, William Gilmore, fraudulently sold cattle to the plaintiffs?
“2. Do you, the jury, find that the defendant, William Gilmore, sold cattle to the plaintiffs in a willful, reckless, or wanton manner?
“3. Do you, the jury, find that the defendant, William Gilmore, breached any warranties in the sale of the cattle to the plaintiffs?”
K.S.A. 60-249(fe) provides that if a party makes a written request, the trial judge may submit written interrogatories upon one or more substantial questions of disputed fact on which a decision is necessary to reach a verdict. The language of the statute suggests that the decision of whether to submit special interrogatories is a matter of discretion with the trial court. Case law clearly establishes the discretionary nature of the decision. In Thompson v. General Finance Co., Inc., 205 Kan. 76, 101, 468 P.2d 269 (1970), the Supreme Court held that the decision of whether to submit special questions to the jury under K.S.A. 60-249 is discretionary, “even though the questions relate to issues of fact raised by the pleadings or evidence.” The rule was stated and followed in Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 6, 535 P.2d 865 (1975), where the Supreme Court refused to find reversible error in the fact that the court had refused to submit special questions to the jury because the appellant had failed to demonstrate that the trial court abused its discretion.
The defendant has failed to show that the trial court abused its discretion in this case. The defendant attempts to do this by saying that if the special questions had been given, he could have determined upon which ground the jury allowed recovery of actual and punitive damages. All of the plaintiffs’ theories - breach of express warranties, breach of implied warranties of merchantability, or breach of implied warranties of fitness for a particular purpose - were adequately supported by the evidence, and any of these theories would support the award of all of the plaintiffs’ actual damages. Furthermore, as already discussed, either intentionally fraudulent conduct or willful, wanton and malicious conduct could equally well serve as a basis for the award of punitive damages. The court clearly and carefully in structed the jury on the difference between actual and punitive damages and what had to be proved in order to award either to the plaintiffs. We must assume, absent any showing to the contrary, that the jury followed these instructions. Thus, the defendant has shown no way in which the trial court’s refusal to submit the special questions to the jury prejudiced him. The court did not abuse its discretion.
The last allegation of error was the court’s refusal after the trial and verdict to grant a remittitur in awarded punitive damages.
Although the defendant is correct in contending that the ratio of punitive to actual damages is unusually high in this case, his analysis is based on only one facet of a multi-faceted problem. The cases he cites in his brief involve misrepresentation in sales of automobiles, real estate and stocks; assault and battery; false arrest; and slander, etc. None involve a situation in which the gravity of the defendant’s acts remotely resembles the seriousness of the defendant Gilmore’s.
A good statement of the rules relating to determining whether punitive damages are excessive is stated in Will v. Hughes, 172 Kan. 45, 238 P.2d 478 (1951):
“Was the verdict for exemplary damages excessive? It is difficult to lay down a precise rule by which to test the question of an excessive verdict for punitive or exemplary damages. [Citations omitted.] If the verdict appears to be grossly excessive it may be reduced in the same manner as excessive verdicts for actual damages. [Citations omitted.]
“The law establishes no fixed ratio by which the excessiveness of exemplary damages to the actual damages allowed is to be measured although the actual damage is sometimes considered. In assessing exemplary damages the nature, extent and enormity of the wrong, the intent of the party committing it, and, generally all the circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be considered.” p. 55.
The language quoted above clearly establishes that ratio is not the only factor to be considered, and in fact is not the determinative factor. Considering the purpose of awarding punitive damages, it would seem that the nature of the defendant’s wrongful act should be of primary importance. In Sweaney v. United Loan & Finance Co., 205 Kan. 66, 468 P.2d 124 (1970), (where, incidentally, an award of $3,000 in actual damages and $18,000 in punitive damages was upheld), the Supreme Court said:
“Punitive 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 wrongful and wanton invasion of the injured party’s rights, the purpose being to restrain or deter others from the commission of like wrongs.” p. 74.
The defendant’s acts were of a very serious nature in this case, not only in regard to the plaintiffs, but also in regard to the public at large. Evidence was presented showing repeated violations by the defendant of Kansas law requiring that livestock imported into the state be tested for brucellosis. It was also shown that he had sold livestock to a number of buyers other than the plaintiffs in violation of his quarantine. State officers charged with enforcing the Kansas laws and regulations designed to control brucellosis testified about the defendant’s recalcitrance in cooperating with them in the testing and quarantine. It must be remembered that brucellosis is not only an economic threat to a key Kansas industry (livestock), but it is also a threat to human health, for undulent fever is a critical, sometimes fatal, disease. The jury was fully aware of the enormity of the defendant’s wrong when it made the determination that punitive damages of $15,000 were necessary to deter this defendant and others similarly situated from committing a wrong of this nature again. The award of punitive damages is upheld.
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Parks, J.:
Plaintiff, Vatlyn Carder, brought this action for property damages arising from a one-car accident which occurred on a township road maintained by Grandview Township in Ford County. This action was brought pursuant to K.S.A. 68-301 which imposes liability upon townships for damages caused by highway defects. The defendant, Grandview Township, appeals from the $2,500 judgment which the jury awarded the plaintiff.
On the night of December 4, 1974, plaintiff was driving upon an unfamiliar road which formed the stem of a T-intersection. There were no warning signs posted. As he approached the intersection, a slight rise in the road caused his headlights to point up into the air. It was not until he crested the rise that his lights disclosed that the road ended abruptly; at that point he was unable to slow enough to negotiate the necessary right-angle turn. Plaintiff’s automobile was damaged when it proceeded across the intersection, hit a metal culvert and landed in a wheat field.
We have considered and rejected defendant’s contentions that it should be released from liability as a matter of law.
The controlling issue is whether the absence of a “T symbol” warning sign on the township road constituted a defect within the meaning of K.S.A. 68-301. In substance this statute provides that townships are liable for damages caused by defective highways if the township trustees had notice of the defect for at least five days prior to the time such damage was sustained. Such liability attaches only if the plaintiff was without contributing negligence.
Whether an alleged defect comes within the purview of K.S.A. 68-301 is a question of law to be determined by the court in the absence of any factual dispute. (Coffman v. Fisher, 203 Kan. 618, 455 P.2d 490, Syl. ¶ 1.)
In the instant case no evidence was presented by the defendant, so there is no dispute as to what happened or as to the conditions that existed at the intersection in question. In fact, defendant admitted that there never was a sign warning of the T-intersection and that the plaintiff would not have to prove that aspect of the case.
Plaintiff’s evidence showed that others driving the road, Joe Davis a month before and deputy sheriff Steve Adams on the night of the accident, experienced similar difficulty in seeing the intersection and stopping once they crested the rise in the road.
Whether a particular condition constitutes a defect within the meaning of an applicable statute must be determined under the facts of each case. (Schroder v. Kansas State Highway Commission, 199 Kan. 175, 181, 428 P.2d 814; Cronin v. State Highway Commission, 182 Kan. 42, 45, 318 P.2d 1066, and cases cited therein.) The condition described herein, i.e., the rise in the road which obstructed the driver’s view of the intersection and the lack of a warning sign, was clearly established by the evidence and the jury so found.
We need not decide whether the absence of a sign would constitute a defect if the road had been level so that a person keeping a proper lookout would have seen the intersection in time to turn. We hold only that in this case the township did permit a defect to exist through its failure to erect a sign warning approaching traffic of this T-intersection, obscured as it was by the rise in the road. Therefore, we hold that the court correctly ruled, as a matter of law, that the lack of a posted sign warning of a T-intersection constituted a defect in the highway.
We next consider the question of notice to the township trustee. In our opinion, the notice requirement of K.S.A. 68-301 was met when Louis Conrardy, trustee of Grandview Township, acknowledged in his testimony that although it had been several years prior to the accident, he had personally traveled the road in question and didn’t think there was a warning sign at the intersection.
Defendant asserts that the plaintiff was contributorily negligent and that the trial court erred in denying its motions for judgment notwithstanding the verdict and for a new trial. The only evidence bearing on contributory negligence was plaintiffs testimony that he was driving 40 or 45 miles per hour when he topped the rise. We are unable to say this amounted to negligence as a matter of law. Contributory negligence is a jury question unless reasonable minds could not differ. (Carpenter v. Strimple, 190 Kan. 33, 38, 372 P.2d 571.) In this case, we think the jury could reasonably find that plaintiffs speed was not excessive, particularly in the absence of any warning.
On appellate review this court will not overturn the decision of a jury if there is substantial evidence to support the verdict. Nor will we set aside a trial court’s order denying a motion for new trial unless it is shown that the trial court clearly abused its discretion. (Stremel v. Sterling, 1 Kan. App. 2d 310, 564 P.2d 559.) No abuse having been shown, the trial court’s orders will not be disturbed.
Judgment affirmed. | [
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Parks, J.:
This is an action upon a guaranty agreement whereby defendant Ruth King promised to pay the plaintiff bank for loans made to and for the benefit of her husband, Ellis King.
Plaintiff, First National Bank of Anthony, Kansas, sued Ellis King on certain promissory notes in the Harper County district court (Case No. 10,045). King set up his prior discharge in bankruptcy as a defense and filed a counterclaim alleging malicious prosecution. Plaintiff and Ellis King reached a compromise, and by agreement the case was dismissed with prejudice.
Ellis and Ruth King then executed a promissory note to the plaintiff for the sum of $7500, to be secured by a mortgage on their homestead. That note and mortgage were executed in the presence of the bank’s president, its attorney, and Ellis King’s attorney. Prior to executing the instruments, Ruth King asked whether the note would settle all matters disputed between plaintiff, her husband, and herself. Mr. Hamilton, attorney for Ellis King, responded that it would, in fact, settle all matters in dispute and that the only remaining obligation which the Kings would owe the bank was the $7500 note. Neither Mr. Albright, attorney for the bank, nor Mr. Briggs, its president, said anything in response to the question or in contradiction to the statement made by Mr. Hamilton.
A little more than a year after the dismissal of Case No. 10,045, plaintiff filed this action alleging that Ruth King, as guarantor of loans made to her husband, was liable for the promissory notes previously signed by him. The amount of this claim was the total value of the notes, less the $7500 note which had been paid as part of the compromise.
The trial court held that Ellis King was released and all of his prior obligations extinguished by the dismissal of Case No. 10,045 and furthermore, that the defendant Ruth King was likewise released as guarantor of such obligations. The bank appeals.
The primary question raised by plaintiff on appeal is whether the dismissal of Case No. 10,045, with prejudice, extinguished the original debt relieving defendant Ruth King of her obligation under the guaranty agreement.
“A guaranty is a contract between two or more persons, founded upon consideration, by which one person promises to answer to another for the debt, default or miscarriage of a third person, and, in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking. The contract of a guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and is not an engagement jointly with the principal to do the thing. A guarantor, not being a joint contractor with the principal, is not bound like a surety to do what the principal had contracted to do, but answers only for the default of the principal. The original contract of his principal is not his contract. (Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P.2d 72 [1956], 58 A.L.R.2d 1265, and authorities cited therein.)” Trego WaKeeney State Bank v. Maier, 214 Kan. 169, 173, 519 P.2d 743 (1974).
In order to be relieved from his obligation to pay, a guarantor must establish one of three facts: (1) extinguishment of the debt; (2) a valid release or discharge; or (3) the bar of the statute of limitations as to himself. Bomud Co. v. Yockey Oil Co., supra, p. 113.
The record clearly shows that the dismissal approved by the plaintiff and by defendant’s husband in Case No. 10,045 was based on the same promissory notes and security agreement which plaintiff now seeks to enforce against the defendant. The dismissal with prejudice is a matter of record. After examining the journal entry, we conclude that it was the intention of the parties to release Ellis King from further liability. Thus the dismissal extinguished the debt owed by Ellis King.
Upon appellate review, this court accepts as true the evidence, and all inferences to be drawn therefrom, which supports or tends to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 4, 548 P.2d 719 (1976).
We find no reason that justifies disturbing the trial court’s findings and conclusions that Ellis King’s obligations were extinguished and that defendant Ruth King was likewise relieved of the obligations as guarantor.
Our conclusion on this issue makes it unnecessary for us to discuss the other points raised by the appellant.
Judgment is affirmed. | [
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Foth, J.:
The defendant, Walter Davis, was convicted of the theft by deception of $300 belonging to the Brown Chapel, AME Church, of Parsons. Two of his arguments on appeal have merit, including one which requires reversal.
His first argument is that the evidence did not support the verdict. In fact, there was a substantial variance between the proof and the charge. Taken in the light most favorable to the state, the evidence showed that the defendant sold the church’s mimeograph machine without authority. He thus exercised unauthorized control over the machine in violation of K.S.A. 21-3701(a). The charge, however, was obtaining $300 of the church’s money by deception, in violation of K.S.A. 21-3701(b). The state’s evidence also tended to show that defendant falsely represented to the purchaser that he was authorized to sell the machine, thus acquiring control over $300. Whose $300 it was is yet another question — only by recognizing defendant’s apparent authority to sell could it be said that the purchaser acquired title to the machine and the church title to the $300. While there was evidence on this issue there was no argument and no instruction.
We need not determine, however, whether this variance was fatal because we think a second issue requires a new trial. The testimony of the Reverend John A. Trigg, one of the key witnesses against the defendant, was admitted by way of a transcript of his testimony at defendant’s preliminary hearing. Defendant repeatedly objected to the use of the transcript, asserting his right to confront the witness and cross-examine him in front of the jury. He thus asserted a constitutional claim evoking well-established rules for its determination.
Federal and state constitutional standards normally require the state to produce a witness at the trial. Motes v. United States, 178 U.S. 458, 44 L.Ed. 1150, 20 S.Ct. 993 (1900); Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318 (1968); State v. Terry, 202 Kan. 599, 451 P.2d 211. Only (1) when the witness has testified at a previous judicial proceeding against the defendant in which the defendant had an opportunity to cross-examine, and (2) the witness is unavailable, is it acceptable to read the testimony from the previous hearing. Barber v. Page, supra; State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-460(c)(2) and 60-459(g). Since it is clear that testimony of a witness at the preliminary hearing satisfies the first prong of the test (Barber v. Page, supra; State v. Bey, 217 Kan. 251, 535 P.2d 881; State u. Washington, 206 Kan. 336, 479 P.2d 833; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Terry, 202 Kan. 599, 451 P.2d 211), the inquiry in this case focuses on whether the witness was unavailable.
The controlling test in Kansas for unavailability is the so-called “reasonable diligence” rule. That rule was expressed in State v. Washington, 206 Kan. 336, 479 P.2d 833, as follows:
“Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a ‘good faith effort’ to obtain the witness’s presence at trial (Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-459[g]).” (p. 338.)
To establish “reasonable diligence” the state must present evidence of the effort made to secure the attendance of the witness. C.J.S. states the general rule that “[t]he preliminary proof should be full and convincing.” 31A C.J.S., Evidence, § 391, p. 963. In State v. Brown, 181 Kan. 375, 312 P.2d 832, the court made it clear that evidence of the state’s diligence must be produced. In Brown the court stated:
“Statements of counsel, however, are not evidence any more than are the opening statements of counsel in the presentation of a case before a jury or to the court. The foundation, which the law contemplates, is a foundation in evidence. It is proof that is required. Proof that due diligence has been exercised and that the testimony of the witness is not available. A proper foundation for the introduction of testimony of the character now under consideration required that the assistant county attorney and the deputy sheriff, as well as the other necessary witnesses, testify under oath with respect to the facts relied upon as the foundation, giving the defendant full opportunity to cross-examine. In addition, documentary evidence relied upon for the foundation should be properly introduced in evidence.” (pp. 394-5.)
In this case the only evidence of Rev. Trigg’s unavailability was the assertion of the prosecutor that the witness lived in Springfield, Missouri, and that he had been served there with a Kansas subpoena but was not present. Even assuming the prosecutor’s statements in open court had the effect of sworn testimony, they fall far short of showing “reasonable diligence” in securing the witness’s personal attendance at the trial. There was no showing of any effort to secure voluntary attendance through personal contact or persuasion, much less any resort to the uniform act to secure the attendance of witnesses from without the state. The service of the Kansas subpoena in Missouri proved only that the witness was there at the time it was served — we are left to speculate as to what the witness was told or understood about his duty to appear in response to the subpoena. If he inquired, we would assume he was told he need not attend.
In State v. Tyler, 187 Kan. 58, 353 P.2d 801, the court took judicial notice that an out-of-state witness’s location in Miami, Oklahoma, was but a three-hour automobile ride from Olathe, the place of trial, over excellent roads. In ordering a new trial it held: “In a criminal case, the state did not sufficiently lay a basis for the introduction of a transcript of the former testimony of an absent witness by merely offering testimony of a deputy sheriff that he attempted to serve a subpoena upon the witness and found that witness had moved to Oklahoma. It was further agreed that the state had made no effort to secure the voluntary appearance of the witness or to employ the uniform act to secure the attendance of witnesses from without the state.” (Syl. Emphasis added.)
We note that Springfield, Missouri, is no further from Parsons, the place of trial here.
“The absence of a witness from the jurisdiction does not provide a sufficient ground for suspension of the confrontation requirements of the Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution, particularly in view of the procedural tools now available to the prosecution to insure attendance of material witnesses and the increased cooperation between states and the federal government with respect to securing the attendance of witnesses from without this state.” (State v. Kirk, 211 Kan. 165, 170-71, 505 P.2d 619.)
As the court noted in Kirk, it is not always necessary to utilize the uniform act, but it is necessary to demonstrate a good faith effort. Here, so far as the record shows, the state’s effort was at best perfunctory. We therefore hold that it was error to admit the transcript on the strength of the meager showing made.
Because the error infringed the appellant’s constitutional right to confront the witnesses against him, to find it harmless this court would have to conclude beyond a reasonable doubt that “the error had little, if any, likelihood of having changed the result of the trial.” (State v. Hamilton, 222 Kan. 341, 345, 564 P.2d 536.)
The challenged testimony contradicted most of the key points in defendant’s version of the events. In contrast to defendant’s testimony, the witness testified that neither he nor the board of trustees authorized the sale of the machine, that the sale of church property had to be approved by both himself as the minister and the quarterly conference of the church, and that no money could be disbursed without his approval. He also denied receiving any money or groceries from the defendant, and denied knowledge of the sale, while defendant’s story had the minister accompanying him when he cashed the check, receiving groceries and later cash from the proceeds, and reading defendant’s report of the sale. We cannot conclude beyond a reasonable doubt that the challenged evidence had no substantial impact on the jury.
In view of our conclusion on this issue we need not reach the other questions raised. The conviction is reversed and the case is remanded for a new trial. | [
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Rees, J.:
This is an appeal by an insurer (“Ranger”) from a determination that it afforded coverage under an automobile liability insurance policy.
On February 2, 1975, a Chevrolet automobile was involved in an accident. Beverly J. Teter, a passenger, was injured. The driver was Jerry L. Corley. The car was owned by Jerry’s father, Herbert E. Corley, who had no insurance. There was in effect an automobile liability insurance policy issued by Ranger to Jerry as its named insured. Jerry’s Chevrolet van was the “owned automobile” under Ranger’s policy.
Beverly and the Insurance Company of North America obtained judgments against Jerry for damages resulting from the accident. They then successfully prosecuted this garnishment proceeding to satisfy the judgments. Ranger contends it afforded no coverage.
Ranger’s policy provided coverage for liability arising out of use of a temporary substitute automobile. The latter is defined by the policy as follows;
“ ‘Temporary substitute automobile’ means an automobile not owned by the named insured or any resident of the same household while temporarily used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair, or because of its breakdown, loss or destruction.”
Ranger has effectively conceded that Jerry’s use of the car came under its coverage as use of a temporary substitute automobile but for the definitional element of non-ownership by “any resident of the same household.” Accordingly the sole issue is whether Jerry was a resident of the same household as his father on the date of the accident. The trial court held he was not. We are asked to hold as a matter of law that he was.
Review of the record discloses that the following findings of fact by the trial court aptly reflect and summarize the evidence:
“1. On the date of the accident Jerry Corley and his wife were experiencing matrimonial difficulties. On January 5, 1975, they had come to a parting of the ways and both left the matrimonial domicile and went their separate paths. Jerry was sleeping in an assortment of places. First, he started at his sister’s house until January 10, and next he slept at a tavern which he owned on South Lorraine until about January 13. Then to his Grandmother’s place he went, where he had stored his furniture, leaving Grandma on January 16. The next couple of nights he spent at the tavern and then went back to his sister’s home where he remained until January 25th at which time he moved in with his wife in an attempt to effect a reconciliation. This effort lasted until approximately January 31, when he moved to his father’s house and spent the following two nights sleeping on the floor.
“2. On the night of the accident, February 2,1975, Jerry stayed all night at the hospital to which Beverly had been taken, and then he went to his grandmother’s place again, staying until the 6th, when he moved to his father’s home, where he stayed about a month. On March 7, he moved into a house where a girl friend stayed. Thereafter he went to his father’s home until he moved to Wellington.
“3. During his peregrinations, Jerry kept his clothes in the car and ate most of his evening meals with his folks under an arrangement with his mother to pay $2.00 per meal or $65.00 per month, with the understanding he could sleep there when he had no other place to lay his head. During this period of time, Jerry was looking for and answering want ads, looking for a place to rent.
“5. On January 25, Jerry consulted Mr. McKibben, an agent for Ranger Insurance Company. He was accompanied by a woman, apparently his wife. Jerry told Mr. McKibben he wanted to insure his father’s car, but was advised he couldn’t do this but that if he wanted to insure his own car, a Chevrolet van, he would be covered if he drove his father’s vehicle. At this time Jerry’s address was in a state of flux and Mr. McKibben suggested he use his tavern’s address and then notify him when he acquired a permanent one.
“6. Mr. McKibben gave Jerry a receipt for the premium he paid, but no policy was delivered to the insured until demand was made after the insurance company had denied coverage.”
An obvious reason lying behind Ranger’s denial of coverage was that on various occasions when Ranger contacted Jerry in its investigation of the accident and the question of coverage, Jerry gave Ranger his parents’ address as his address as of and at other times after the accident date. In this general regard, the trial court found:
“4. Jerry used his father’s address, RFD 4, as a place for receiving mail and a place through which he could be contacted, in as much as he was taking his evening meals there.”
In the trial court and before us, Ranger has taken upon itself the burden of proof to establish that Jerry and his father were residents of the same household. Having failed to do so, in the judgment of the trial court, it was held as a conclusion of law that:
“3. It has not been established that on February 2, 1975, Jerry Corley was a resident member of his father’s household within the meaning of the exclusionary clause of the policy issued by Ranger Insurance Company.”
The trial judge gave the parties the benefit of comments concerning his consideration of the case. He had taken into account, among other matters, statutory definitions of “residence” and “householder” (K.S.A. 77-201, Twenty-third and Twenty-fifth) as well as Vaughn v. American Alliance Ins. Co., 138 Kan. 731, 27 P.2d 212 (1933), and General Leasing Corp. v. Anderson, 197 Kan. 327, 416 P.2d 302 (1966). Most directly he said:
“. . . I believe it cannot be said that on February 2, 1975, Jerry Corley had become a ‘resident member’ of any household. His pattern of living was peripatetic at best: he was a foot loose wanderer, going from relative to relative, taking root nowhere.
“Nor am I able to infer an intention on his part to return habitually to his father’s home. Neither before nor subsequent to February 2d, is a pattern of stability discernible.”
Although not automobile liability insurance cases, Estate of Schoofv. Schoofi 193 Kan. 611, 612, 396 P.2d 329 (1964); Buehne v. Buehne, 190 Kan. 666, 676, 378 P.2d 159 (1963); Irvin v. Irvin, 182 Kan. 563, 566-567, 322 P.2d 794 (1958); Gleason v. Gleason, 159 Kan. 448, Syl., 155 P.2d 465 (1945), are authority for the rule that a determination of residence by a trial court is generally a question of fact which will be upheld on appeal when supported by substantial competent evidence. We discern no reason for the rule to be otherwise here.
The law concerning the establishment and continuance of a “residence” is well stated in Estate of Schoof v. Schoof, supra, as follows:
“The establishment of residence requires the concurrence of two factors: one physical, the other intellectual. There must be bodily presence at a location coupled with intent to remain there either permanently or for an indefinite period, before residence can be said to have been acquired. A residence once established is presumed to continue until the same has been abandoned. (Keith v. Stetter, 25 Kan. 100; Palmer v. Parish, 61 Kan. 311, 313, 59 Pac. 640.) To effect a change of residence, there must be transfer of bodily presence to another place coupled with an intent to abide in the new location either permanently or indefinitely. (Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054.) The length of the stay in the new abode is not of controlling importance, for no stated period of time is required to complete a change of residence; the change may be effectuated on the first day of arrival in the new location provided the requisite intent to establish residence therein be present. . . .” (193 Kan. at 614.)
In reality, two separate intentions are involved: one to abandon the old location and one to abide in the new. If the last intention be formed, it necessarily includes the first. Arnette v. Arnette, 162 Kan. 677, Syl. 4, 178 P.2d 1019 (1947).
We believe the definition set forth in Estate of Schoof v. Schoof, supra, is controlling, that is, “residence” requires two elements: (1) bodily presence at the location, and (2) intent to remain there either permanently or for an indefinite period.
A case similar to the one before us is State Farm Mutual v. Smith, 206 Va. 280, 142 S.E.2d 562 (1965). The insured had moved from California to Virginia to live with her sister and brother-in-law. The insured intended to live with her relatives only until her baby was born. Some eight weeks after moving to Virginia, the insured was involved in an accident while driving her brother-in-law’s car which was uninsured. The determinative question was whether the insured was a resident of her brother-in-law’s household on the date of the accident. In holding that she was not, the court said in part:
“The meaning of ‘resident’ or ‘residence’, a prolific source of litigation, depends upon the context in which it is used. Here, we must interpret the meaning of ‘resident’, when followed by ‘of the same household’. The word ‘household’, . . . connotes a settled status; a more settled or permanent status is indicated by ‘resident of the same household’ than would be indicated by ‘resident of the same house or apartment’. We interpret the language of the policy as excluding coverage if [the insured] had assumed a residence and become so intertwined with the [brother-in-law’s] family as to become a member of that family, and as extending coverage if she was a visitor or sojourner in the [brother-in-law’s] home.
“The proper conclusion to be drawn from the facts of this case is that [the insured] was a visitor or sojourner in the [brother-in-law’s] home and, therefore, was driving a ‘Non-Owned Automobile’ at the time of the accident. She came to Norfolk for a limited period of time, limited to the remaining period of her pregnancy. . . .” (206 Va. at 285-286.)
Another similar case is Goens v. Arinder, 248 Miss. 806, 161 So. 2d 509 (1964). The issue there was whether a daughter of the insured was a “relative of the named insured who is a resident of the same household.” (p. 811.) A daughter and her husband were living with the insured pending the completion of their own home and the birth of the daughter’s baby. They had moved some of their furniture, including a bed, washing machine and refrigerator, into the insured’s home. They slept in the insured’s home and took their meals there. In concluding the daughter was not a resident of her father’s household at the time of the accident, the Mississippi Supreme Court said in part:
“The word ‘resident’ means one having more than physical presence. The transient visit of a person for a time to a place does not make him or her a resident while there. The word ‘resident’ imports a fixed abode for the time being, as distinguished from a place of temporary abode or a temporary sojourn. 77 C.J.S., pp. 305-307. In the instant case, the [daughter and her husband] were building a home into which they had already moved part of their furniture, and were simply visiting or sojourning for the time being in the [insured’s] house, until [the daughter] could have a baby and their house was completed. Hence she was not a resident of the [insured’s] household within the meaning of the exclusion clause (l)(b). State Farm’s contention to this effect is contradicted by the facts.” (248 Miss, at 811.)
Simon v. Milwaukee Automobile Mutual Ins. Co., 262 Minn. 378, 115 N.W.2d 40 (1962), relied upon heavily by Ranger, is clearly distinguishable. There the insured had resided in his father’s home for a period of several years prior to the accident. On the date of the accident the insured had not yet relocated to a new residence where he intended to live in the future. Not having established bodily presence at the new residence, no change of residence from his father’s home had yet been effected.
There is ample evidence that Jerry never established a residence at his father’s home and was only temporarily present there.
Ranger argues the temporary substitute automobile coverage was not meant to apply to the type of use of a non-owned vehicle present in this case. Relying upon case law construing so-called “drive other cars” clauses in automobile insurance policies (Aler v. Travelers Indemnity Co., 92 F. Supp. 620 [D. Md. 1950]; Leteff v. Maryland Casualty Company, 91 So. 2d 123 [La. App. 1956]), Ranger argues that the continued and unfettered use of his father’s automobile by Jerry is not the type of use covered by the policy. Reference is made to evidence that Jerry had been driving his father’s car on a regular basis for one or two weeks prior to the accident and intended to continue doing so for several weeks after the accident. It is urged that such continued and unfettered use of a non-owned automobile is the very situation sought to be avoided in basic automobile insurance policies.
Ranger’s argument overlooks the difference between a “drive other cars” clause and a temporary substitute automobile provision. The purpose of a “drive other cars” clause is to extend the driver’s regular insurance to casual driving of cars other than his own without the payment of additional premium. In order to confine the extended risk to such casual driving the coverage is made inapplicable to the driving of other cars usually at hand and regularly used. General Leasing Corp. v. Anderson, supra, at 330.
Ranger’s policy confains typical temporary substitute automobile provisions. Coverage is afforded while the substitute vehicle, not owned by the insured, is being temporarily used in place of an insured vehicle withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction. The purpose is not to narrow or defeat liability but to reasonably define coverage by limiting the insurer’s risk for non-casual driving to one operating vehicle at a time for a single premium. 12 Couch on Insurance, 2d, § 45:219, p. 261; State Farm Mutual Automobile Insurance Company v. Lietz, 122 Ga. App. 596, 598, 178 S.E.2d 218 (1970); Nelson v. St. P. Merc. Ins. & Clark et al, 83 S.D. 32, 38, 153 N.W.2d 397 (1967).
Though we deem it unnecessary to our decision, it may be noted that it has been held in other jurisdictions that a substitute automobile provision in an automobile liability insurance policy is for the insured’s benefit and is to be construed liberally in favor of the insured if any construction is necessary. Insurance Co. v. Insurance Co., 279 N.C. 240, 182 S.E.2d 571 (1971); Gabrelcik v. National Indemnity Co., 269 Minn. 445, 447, 131 N.W.2d 534 (1964).
There was substantial competent evidence to support the trial court findings and conclusion that Jerry and his father were not residents of the same household.
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Parks, J.:
This is an appeal from a jury verdict which found William D. Bircher (defendant-appellant) guilty of aggravated burglary (K.S.A. 21-3716) and aggravated battery (K.S.A. 21-3414) arising from an attack on Henry Huebner on January 25, 1976.
Sixteen-year-old Henry Huebner was asleep in his bedroom with stereo headphones covering his ears when he was awakened by a man beating him with a cast-covered hand and forearm. Henry recognized his assailant as a former neighbor, the defendant Bircher. Henry fled but his attacker followed and stabbed him in the chest with a long screwdriver, causing serious injury. Henry escaped and summoned help.
Following his arrest later that same day, defendant made an oral statement to detective Jerry Bullins. Various pretrial motions were filed, including a motion for discovery and inspection of any written or recorded statements or confessions made by the defendant. This motion was sustained by the court.
On November 29, 1976, a twelve-member jury was empaneled and sworn. Due to the late hour, the jury was admonished and excused. The next morning when the court reconvened, one of the jurors was ill and unable to attend. After being admonished, the other eleven jurors were again excused. The next day, over the objection of the defendant, an alternate juror was selected to replace the indisposed juror and the case proceeded to trial.
Defendant has appealed and attacks the proceedings in the lower court on three principal grounds. He first argues that he was placed in jeopardy when the original twelve jurors were empaneled and sworn, and that the trial court erred in selecting an alternate juror two days later after one of the original jurors became ill. He next contends that it was error to allow Officer Bullins to testify from notes which had not been delivered to defendant’s counsel in accordance with the pretrial order for discovery. And finally, it is contended that the district court erred by allowing the state to draw a sample of defendant’s blood and by allowing the results of tests on that sample to be introduced into evidence during the trial. We think that each of defendant’s contentions is without merit.
The opening statements had not been made prior to the selection of the alternate juror. The only procedure accomplished before the juror’s illness was the selection and swearing in of the original twelve persons. Defendant, relying on K.S.A. 21-3108, objected to the selection of the alternate juror on the ground that jeopardy attached at the time that the first jury was sworn to try the case. He further argues that the delay in empaneling the alternate juror was prejudicial to his rights.
A similar factual situation was before the court in People v. Hess, 107 Cal. App. 2d 407, 237 P.2d 568 (1951). There, two alternate jurors were sworn four days after the original jury of twelve as empaneled was sworn. One of the original jurors was excused because of illness, and one of the alternate jurors was substituted in her place. Defendants’ motion to discharge the jury on the ground of former jeopardy was denied. In response to defendants’ contention that the court erred in excusing the juror and substituting an alternate, the court said:
“We fail to perceive any invasion of appellants’ substantial rights or any resultant prejudice to them in directing the selection of two alternate jurors in the manner aforesaid. They were selected prior to the introduction of any evidence and before the district attorney made his opening statement. They sat from the very inception of the proceedings that began with the introduction of the evidence; they had all the opportunities that were possessed by the regular jurors to see and hear the witnesses, and were bound by the same oath that was taken by the others to ‘well and truly try the matter in issue and a true verdict render according to the law and the evidence.’ The three essentials and substantive attributes or elements of a trial by jury, viz., number, impartiality and unanimity, were preserved. The inviolability of trial by jury was not therefore impinged upon or outraged. . . .” (p. 425.)
We adopt the foregoing rule as being logical, sound and dispositive of the alternate juror selection/jeopardy issue raised in this case.
We note in passing that the trial court erroneously cited K.S.A. 60-248(/i) as controlling the selection of the alternate juror in this criminal case; the correct citation is K.S.A. 22-3412. The error is harmless. If the trial court renders a correct judgment under the facts and the law, the judgment will not be disturbed merely because wrong reasons were given for its rendition. Boldridge v. Estate of Keimig, 222 Kan. 280, 564 P.2d 497.
With reference to the defendant’s second contention, it is sufficient to say that the court held a Jackson v. Denno-type hearing and determined that the longhand notes (the alleged confession) could not be construed to be a written statement of the defendant within the meaning of K.S.A. 22-3212 and that the pretrial order had been complied with. We agree. K.S.A. 22-3213 governs, not 22-3212; therefore, the notes would not be available for inspection by the defendant until after the witness had testified. State v. Mans, 213 Kan. 36, 515 P.2d 810.
We now consider defendant’s third contention, that the court erred in allowing the state to draw and test a sample of his blood and to enter those test results into evidence. The record is clear that the state withdrew its motion for taking the defendant’s blood sample and never renewed it. Rather, the court allowed the endorsement of an additional witness, Alice Copp, who testified that she had personally typed the defendant’s blood on January 18, 1976 — seven days before the attack on Henry Huebner. Relying upon hospital records, Ms. Copp testified as to the defendant’s blood type. This information was recorded in the regular course of business of the hospital and was admissible under K.S.A. 60-460(m), the business entries exception to the hearsay rule. In re Estate of Bematzki, 204 Kan. 131, 460 P.2d 527, Syl. ¶4. Moreover, the testimony of Alice Copp was relevant to the issue of whether the blood on the defendant’s clothing was his own blood or that of the victim, Henry Huebner. The evidence showed the defendant’s blood type to be “A” positive, whereas his clothing was stained with type “O” blood, the victim’s blood type.
We find no error and the judgment is affirmed. | [
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Rees, J.;
Defendant was convicted of illegal possession of heroin (K.S.A. 1977 Supp. 65-4127a). He appeals. We affirm.
On the night of December 22, 1976, two Topeka police detectives staked out an apartment complex. A confidential informant had reported that defendant planned to return to Topeka from Junction City at about midnight with a quantity of heroin and he would be driving a 1975 silver Lincoln Continental. The information proved accurate. Defendant was apprehended and charged. He was tried and convicted. On defendant’s motion, the trial court set aside the conviction and declared a mistrial for prosecutorial misconduct in the prosecution’s closing argument. Defendant was tried a second time and again convicted. This appeal is from defendant’s second trial and conviction.
Defendant first complains that the prosecutor failed to disclose exculpatory evidence. Defendant argues the identity of the confidential informant who provided the information that led to defendant’s arrest became exculpatory evidence during the first trial when one of the defendant’s witnesses implicated the informant as having committed the crime rather than defendant. The identity of the informant was not disclosed by the prosecution prior to or during the first trial but it was disclosed to defendant at his request four days before the second trial. Defendant argues that failure to disclose the allegedly exculpatory evidence during the first trial required or requires dismissal of the charges against defendant. We disagree.
If the informant’s identity was exculpatory evidence and if its non-disclosure constituted error, the error occurred during the first trial. That trial was declared a mistrial. Defendant had knowledge of the informant’s identity prior to the second trial. Defendant has cited no cases and we have found none where anything other than an order for a new trial has been the remedial action for failure to disclose exculpatory evidence. Defendant’s second trial was a new trial.
The only possible error relating to disclosure of the informant’s identity upon which defendant might now rely would be its timeliness in relation to his second trial. Disclosure was made upon defendant’s request four days prior to that trial. The record indicates that defendant did not request a continuance to seek out the informant. Nor did defendant cause a subpoena to issue for the informant’s presence at trial. Furthermore, defendant had relied on the defense that the informant had committed the crime at the first trial. The fact that she was an informant neither prevented defendant from seeking her out nor affected his defense on the claim she was the guilty party. Even if it might be assumed that the informant’s identity was exculpatory, defendant has failed to in any way show that there was a lack of timeliness that was prejudicial to his substantial rights. Thus there is no reversible error. Kansas Savings & Loan Ass’n v. Rich Eckel Construction Co., Inc., 223 Kan. 493, Syl. ¶ 1, 576 P.2d 212 (1978).
Defendant next contends that the prejudicial comments of the prosecutor at the first trial which led to the declaration of a mistrial plus a later press release by the prosecutor required or requires dismissal of the charges against defendant. Defendant’s argument is that the conduct of the prosecutor was so grossly prejudicial that the second trial should have been barred on the ground defendant was placed in double jeopardy.
The prosecutor made the following comments in his closing argument to the jury at the first trial:
“Based upon the evidence, based upon your own common sense, the law that’s given to you, you have two choices. If you think that Mr. Baylor is not guilty, you can find him such and we will all go about our ways. Mr. Baylor will go his and we will go ours; or you can find him guilty as charged and make a dent in a heroin community of Topeka.”
The press release of which defendant complains resulted in an article appearing in The Topeka Daily Capital. The article gave defendant’s name, age, and address; stated that defendant had been found guilty but his conviction had been set aside because of a mistrial; quoted the prosecutor’s prejudicial remarks; gave a brief summary of the evidence against defendant; and concluded that defendant was set free on bond until retrial.
Although defendant’s argument appears novel to reported Kansas cases, it is well established elsewhere that where prosecutorial or judicial misconduct causes a defendant to seek a mistrial and such is granted, double jeopardy may bar retrial under some circumstances. United States v. Jorn, 400 U.S. 470, 485, 27 L.Ed.2d 543, 91 S.Ct. 547 (1971); United States v. Dinitz, 424 U.S. 600, 611, 47 L.Ed.2d 267, 96 S.Ct. 1075 (1976); Lee v. United States, 432 U.S. 23, 32-33, 53 L.Ed.2d 80, 97 S.Ct. 2141 (1977); Divans v. California, 434 U.S. 1303, 54 L.Ed.2d 14, 98 S.Ct. 1 (1977); Arizona v. Washington, 434 U.S. 497, 54 L.Ed.2d 717, 98 S.Ct. 824 (1978). The State with all its powers and resources should not be allowed to make repeated attempts to convict an individual thereby subjecting him to added embarrassment, expense and ordeal, and causing him to live in a continuing state of anxiety and insecurity. Green v. United States, 355 U.S. 184, 187-188, 2 L.Ed.2d 199, 78 S.Ct. 221 (1957). The rule is applied to bar retrial where “bad faith conduct by judge or prosecutor” causes a mistrial and affords the prosecution a more favorable opportunity to convict. United States v. Dinitz, 424 U.S. at 611. The bar to retrial is not applicable where defendant seeks a mistrial on grounds other than prosecutorial or judicial misconduct which amounts to overreaching. United States v. Dinitz, 424 U.S. at 607.
The issue at hand is whether the conduct of which defendant complains was prosecutorial “overreaching.”
Other states have dealt with the question of what constitutes prosecutorial overreaching. See Commonwealth v. Bolden, 472 Pa. 602, 640-641, 373 A.2d 90 (1977); State v. Pulawa, 58 Hawaii 377, 569 P.2d 900, 905 (1977), cert. denied 436 U.S. 925 (1978); People v. Baca, _Colo__, 562 P.2d 411, 414-415 (1977). It is clear that not all prejudicial misconduct by a judge or prosecutor leading to a mistrial will bar defendant’s retrial on double jeopardy grounds. There must be some intent or motivation on the part of the judge or prosecutor “to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” United States v. Dinitz, 424 U.S. at 611.
Defendant makes no showing that the prosecutor’s closing remarks exhibited intent or motivation to provoke defendant’s motion for mistrial. There is nothing to indicate that the trial was going badly and that the prosecutor made the prejudicial remarks hoping to obtain a chance to bring defendant to trial a second time. Several Kansas cases have held that similar prejudicial remarks were cured by an admonishment to the jury. State v. Perales, 220 Kan. 777, 780, 556 P.2d 172 (1976) (“that defendant committed the crime and will do it again unless he is convicted”); State v. Lamb, 215 Kan. 795, 799, 530 P.2d 20 (1974) (“.‘if you let Mr. Lamb go today, the next time you drive down U. S. Highway 169 you may be the one that is stopped’ ”); State v. Warbritton, 215 Kan. 534, 535, 527 P.2d 1050 (1974)- (jury should convict defendant “ ‘to give the authorities the opportunity to do something with this man, help him’ ”); State v. Kelley, 209 Kan. 699, 704-705, 498 P.2d 87 (1972) (reference was made to the consequences of acquittal on future lawlessness in the community).
The alleged prejudicial press release provided no information not allowable under the Code of Professional Responsibility. See K.S.A. 7-125, D.R. 7-107(C).
The cases cited by defendant involved a much greater degree and intensity of prosecutorial misconduct. They are factually distinguishable. See United States v. Martin, 561 F.2d 135 (8th Cir. 1977); United States v. Grasso, 552 F.2d 46 (2nd Cir. 1977), U. S. appeal pending; United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976); United States v. Broderick, 425 F. Supp. 93 (S.D. Fla. 1977).
The prosecutor’s remarks here were not so grossly prejudicial as to be considered prosecutorial overreaching. Defendant’s mo tion to dismiss made at the second trial on double jeopardy grounds was properly denied.
Defendant’s last contention is that an illegal search and seizure of his person was conducted during his apprehension. Defendant’s conviction was based upon his possession of numerous balloons containing heroin.
Immediately prior to defendant’s apprehension, the two detectives who had been observing defendant called to him and requested that he talk with them. Defendant was in an outer stairway in the apartment complex. The detectives observed defendant extend his arm through an opening over a balcony in a rapid motion such as one would make to throw something away. The detectives could only see the back of defendant’s hand and were unable to see if anything was actually thrown or dropped. Later, several balloons were found on the ground below the balcony. Upon confrontation by the detectives, defendant became combative and a struggle ensued. It was not known whether defendant was armed so one of the detectives attempted to pat down defendant during the struggle. It was at this time that balloons in a plastic bag were found in defendant’s pocket. Defendant contends the balloons in his pocket were illegally seized.
Where there is probable cause for an arrest, a prior search is permissible as a search incident to the lawful arrest provided the arrest follows closely in time. However, the evidence obtained during the search cannot form the basis of the probable cause for the arrest. State v. Barnes, 220 Kan. 25, 28-30, 551 P.2d 815 (1976). The detectives’ stakeout of defendant’s residence was based upon the informant’s report concerning defendant’s return from Junction City to Topeka with heroin. This information coupled with defendant’s furtive behavior when confronted constituted sufficient probable cause to arrest defendant.
Further, the Kansas “stop and frisk” statute (K.S.A. 22-2402) permits an officer to stop a person whom he reasonably believes is committing or has committed a crime and to search that person if he reasonably suspects his personal safety requires it. Here the detectives had reasonable grounds to believe defendant was committing a crime. It was not known whether or not defendant was armed. Defendant became combative with the detectives when confronted. A struggle ensued. Under the circumstances, a pat down was clearly justified for the personal safety of the two detectives.
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Swinehart, J.:
This case commenced in the Overland Park, Kansas, Municipal Court, where Sandy was convicted of possession of stolen property, marijuana, and num-chucks, an unlawful weapon. Sandy appealed the conviction to the district court. There he made a pretrial motion to suppress the physical evidence, which was sustained. The City has taken this interlocutory appeal.
Appellee Sandy alleges that the City of Overland Park does not have the right to take an interlocutory appeal pursuant to K.S.A. 1977 Supp. 22-3603, and further that if such authority exists appellant has failed to comply with Supreme Court Rule 6.10, which provides that the attorney general shall approve the brief of appellant herein.
Both grounds are without substance and the same are denied.
The City of Overland Park, Kansas, was prosecuting an appeal to district court of a criminal offense, a violation of municipal ordinances, which provided for fines and jail sentences. K.S.A. 1977 Supp. 22-3603 provides for interlocutory appeals in criminal cases and this case is within that classification even though it involves a misdemeanor as provided by a city ordinance. A city, in the enforcement of its ordinances, is alleged by appellee Sandy to be an agency of the state prosecutorial system and as such must comply with the Appellate Rules of the Supreme Court, i.e., Rule 6.10, which requires the attorney general’s approval of briefs. Rule 6.10 does not have application to appellant. The City of Overland Park is not appearing on behalf of the State of Kansas or as an agent or officer thereof; therefore, the attorney general’s approval of its brief is not required.
Considering the question of whether the physical evidence was properly suppressed, the following facts are relevant. Appellee and a friend were driving in a lawful manner through the City of Overland Park, Kansas, at approximately 1:00 a.m., when observed by a police officer. At that time, the two cars were traveling in opposite directions. The officer turned his car and followed appellee, who shortly turned from the roadway into a convenience store parking lot. The officer followed and conducted a routine driver’s license check on appellee. While so doing, he flashed his flashlight into the back seat area and observed a set of scales. The officer had observed similar scales in the near past at police headquarters and knew that like scales had been reported stolen from some of the high schools in the area and some had been recovered. Appellee was then questioned about how he came to be in possession of the scales, and when the officer determined the explanation was not satisfactory, he requested consent to search the automobile. This was voluntarily granted and that search revealed the marijuana and the num-chucks. The appellee was then arrested, charged, tried in the municipal court and found guilty of possession of stolen property (scales) and possession of marijuana and a dangerous weapon (num-chucks).
As previously stated herein, appellee appealed this conviction to the district court and, during that proceeding, the articles of the search were suppressed and the City appealed.
The sole question to be decided here is whether K.S.A. 8-244 authorizes police officers to stop an automobile in order to make an isolated spot check for a driver’s license. If it does, the discovery and seizure of the scales are justified under the plain view doctrine, and the evidence discovered in the subsequent consent search is not contaminated under the fruit of the poisonous tree doctrine. Resolution of the question requires an interpretation of K.S.A. 8-244 and a definition of the scope of authority it confers upon law enforcement officers.
The statute provides:
“Every licensee shall have his or her. driver’s license in his or her immediate possession at all times when operating a motor vehicle, and shall display the same, upon demand of any officer of a court of competent jurisdiction or any peace officer, examiner or officer of the division of vehicles. . . .”
Although the statute itself does not specifically authorize an officer to stop a car under any circumstances to make a license check, the statute must be read as implicitly granting some sort of right to stop vehicles for that purpose. Otherwise, the statute would be meaningless for want of enforceability. The precise scope of the right to stop automobiles to make a driver’s license check has apparently never been considered by the Supreme Court of Kansas.
Kansas cases which are related to the problem contain some dicta which is of limited usefulness. State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976), and State v. Karney, 208 Kan. 677, 494 P.2d 1204 (1972), are cases which examine the admissibility of evidence seized from cars under the plain view doctrine. However, in both of these cases the initial police action in stopping the particular cars was based upon probable cause to believe that the cars’ occupants were engaged in criminal activity. These cases differ from the one at hand in that, here, the only possible reason for the stop was for the officers to check and determine whether or not the driver was in the possession of the required driver’s license as provided by K.S.A. 8-244. In Boone and Karney, the court did find that the evidence was in plain view and subject to seizure. Several other cases establish that, when a motor vehicle is stopped for a traffic violation, no matter how minor, items visible in plain view are subject to seizure. In State v. McMillin, 206 Kan. 3, 476 P.2d 612 (1970), the Supreme Court upheld the admissibility of items seized in plain view from a car originally stopped for speeding. In State v. Robinson, 203 Kan. 304, 454 P.2d 527 (1969), the defendant’s car was stopped for improper lights. State v. Grabowski, 206 Kan. 532, 479 P.2d 830 (1971), dealt with the admissibility of evidence seized after the defendant gave his consent to the search of his automobile. In that case, the defendant’s car, which was carrying out-of-state license tags, was seen by the police in an area known to contain a heavy growth of marijuana. When the defendant re-entered the car and drove away, the police stopped him for a license check pursuant to K.S.A. 8-244. The Supreme Court held that the stop was proper, stating:
“Defendant’s car was first observed under very unusual and suspicious circumstances. The routine check of his driver’s license was entirely proper and was authorized by K.S.A. 8-244. . . .” (p. 534.)
Thus, although the court did not specifically hold that an officer’s right to stop a car for a license check was limited to those situations where he had reason to believe that some violation was taking place, the language concerning “suspicious circumstances” could be interpreted to be a limiting factor when deciding the question here before the court.
Another Kansas case dealing with the right of a police officer to stop a car for a license check is State v. Frizzell, 207 Kan. 393, 485 P.2d 160 (1971). There, the police officer was conducting a systematic roadblock check of licenses. When Frizzell’s car was stopped, the officer saw a pile of clothing lying in the back seat of the car. Since all of the items of clothing bore price tags and none of the occupants of the car could satisfactorily explain why they were there, the clothing was seized and the Supreme Court held that it was properly admitted into evidence under the plain view doctrine. The court therein stated:
“Under the provisions of K.S.A. 8-244, [the officer] was lawfully authorized to stop the automobile to check the operator’s driver’s license. . . . It is clear [the officer] did not stop the vehicle as a ruse or subterfuge to see what was in it, but rather as a good faith effort to check the driver’s license.” (p. 397.)
Here, again, it might be said that the Supreme Court did not by this case authorize the random, arbitrary type of license check which took place in the case we are now considering.
A review of cases from other jurisdictions shows a split of authority regarding a police officer’s power to make a random spot check such as the one challenged here. Two cases will serve to illustrate the dichotomy.
People v. Ingle, 36 N.Y.2d 413, 330 N.E.2d 39 (1975), involves a statute which authorized police to check vehicles on the high way for possible equipment violations. Although this case does not involve checking for a driver’s license, the state interests in enforcing vehicle equipment regulations are similar enough to those in enforcing license laws to warrant consideration of the Ingle case. There, a police officer stopped a 1949 automobile for an equipment check, even though to all appearances the car was in perfect condition. In the process of checking the car, the officer discovered marijuana. To ascertain whether the evidence was admissible, the New York Court of Appeals engaged in a balancing process to determine whether the seizure was reasonable under the Fourth Amendment. Balancing the state’s vital interest in safety on public highways against an individual’s expectation of privacy and freedom of movement in his automobile, the court concluded that an arbitrary stop of a single automobile for a routine check is impermissible unless the officer reasonably suspects a violation of the vehicle code.
The contrary rule is illustrated by Palmore v. United States, 290 A.2d 573 (D.C. App. 1972). There, in the process of making a license check on the driver of a single car randomly stopped, officers seized an unregistered hand gun which was in plain view. The Palmore court engaged in the same balancing process as did the Ingle court, weighing the state’s interest in limiting highway use to licensed, competent drivers against the individual’s interest in privacy. Focusing on the momentary nature of the interruption of the individual’s activities, the court held that the stop and subsequent seizure of evidence were permissible under the Fourth Amendment standards. The court went on to say:
“We hasten to add that the courts, including ours, have warned law enforcement officers, specifically and emphatically, that a so-called ‘spot check’ is not to be ‘used as a substitute for a search for evidence of some possible crime unrelated to possession of a driver’s permit.’ . . (p. 582.)
After due consideration of these two lines of reasoning, we have concluded that K.S.A. 8-244 implicitly authorizes an officer to randomly single out an automobile to check the driver’s license, even though the officer has no cause to believe that the driver or the automobile is in violation of the vehicle code. The state’s vital and compelling interest in public highway safety outweighs the objection an individual may have to the momentary intrusion into his privacy which is necessary to make a license check. This is not to say that an officer may use such a scheme in order to carry out a plain view search upon an unfounded suspicion that the driver of the vehicle is involved in other illegal or criminal activities. Since the initial stop was justified, the officer’s seizure of contraband which was in plain view does not offend the Fourth Amendment’s prohibition against unreasonable search and seizure.
We are well aware that our ruling is not so restrictive as the appellee would have it to be. However, we assume that those persons charged with the responsibility of enforcing our laws will themselves obey the law, and will not use this power to harass or as a guise for seeking evidence of other crimes.
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Meyer, J.:
This is an appeal from a proceeding in which appellant was found guilty of indirect contempt for refusing to answer questions during a district attorney’s inquisition.
On June 8, 1977, appellant plead guilty to drug conspiracy charges and was sentenced. The prosecutor recited a plea agreement to the court. On October 10, 1977, the trial court modified appellant’s sentence, placing him on probation for five years. That same day, appellant was served with a subpoena to appear at a district attorney’s inquisition. The appellant and his attorney appeared at the district attorney’s office on November 9, 1977, pursuant to the subpoena. At this time appellant was given a grant of immunity, but, on counsel’s advice, refused to testify. The district attorney then contacted the trial judge by telephone, and the judge ordered appellant incarcerated overnight. The next morning, November 10, 1977, the trial court conducted a hearing on the matter of the inquisition. Appellant objected to being compelled to testify, stating that it was in violation of his plea agreement. The trial court found that the plea agreement was not violated by the inquisition and ordered appellant to appear at the district attorney’s office on November 14, 1977, to answer questions. Appellant was then released.
On November 14,1977, appellant appeared with counsel at the district attorney’s office, but again refused to answer questions. The district attorney applied for a writ of attachment in contempt for appellant on November 16, 1977, and filed an accusation. The trial court gave appellant until November 28, 1977, to file an answer to the accusation, and set December 23, 1977, as a trial date for the contempt proceeding. Later the proceedings were continued to January 6, 1978, at which time the trial court found appellant guilty of indirect contempt of court and sentenced him to 90 days in jail or until such time as appellant elected to testify.
The appellant first contends that the inquisition was unconstitutional. The subpoena had never been filed with the court. Neither a judge nor a reporter was present at the inquisition. However, appellant did have advance notice and was represented by counsel. Therefore, we find that the inquisition was within the limits of K.S.A. 1977 Supp. 22-3101(2).
Appellant’s primary contention is that he had a right to refuse to answer the inquisition questions. He bases this argument on two grounds: (1) that he is entitled to his Fifth Amendment right not to incriminate himself; and (2) that questioning him was in violation of his plea agreement.
As to the Fifth Amendment issue, appellant claims that the statute under which the district attorney granted him immunity would not protect him from prosecution by Arizona, Colorado, or the federal government.
We turn to federal law to see what that law is regarding prosecution in state courts other than the state where immunity was granted. In Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489 (1964), the court said:
". . . The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.” (p. 8.)
“. . . The State urges, however, that the availability of the federal privilege to a witness in a state inquiry is to be determined according to a less stringent standard than is applicable in a federal proceeding. We disagree. We have held that the guarantees of the First Amendment . . . are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. . . . (p. 10.)
. . What is accorded is a privilege of refusing to incriminate one’s self, and the feared prosecution may be by either federal or state authorities.” (p. 11.)
Malloy v. Hogan, supra, does not directly meet the situation where one state has granted immunity and another state intends to compel self-incriminating testimony. However, in Murphy v. Waterfront Comm’n, 378 U.S. 52, 12 L.Ed.2d 678, 84 S.Ct. 1594 (1964), the court, at page 53, states:
“We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, [supra]. This case presents a related issue: whether one jurisdiction within our federal structure may compel a witness, whom it has immunized from prosecution under its laws, to give testimony which might then be used to convict him of a crime against another such jurisdiction.”
At page 54, the court further states:
“Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U.S. 547 [35 L.Ed. 1110, 12 S.Ct. 195], we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. . . .”
At page 77, the Murphy court, after reflecting that the rule had been otherwise before, held as follows:
“The Court has today rejected that rule, and with it, all the earlier cases resting on that rule.
“The foregoing makes it clear that there is no continuing legal vitality to, or . historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.”
The high court then directly addressed the effect of their holding in Murphy on existing state immunity statutes as follows:
“We must now decide what effect this holding has on existing state immunity legislation. In Counselman v. Hitchcock, 142 U.S. 547 [35 L.Ed. 1110, 12 S.Ct. 195], this Court considered a federal statute which provided that no ‘evidence obtained from a party or witness by means of a judicial proceeding . . . shall be given in evidence, or in any manner used against him ... in any court of the United States. . . .’ Id., at 560.” (p. 78.)
Finally, in Murphy v. Waterfront Comm’n, supra, at pages 79-80, the court concludes:
“It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court’s decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. . . .”
In In re Birdsong, 216 Kan. 297, Syl. 4, 532 P.2d 1301 (1975), the Kansas Supreme Court held:
“The grant of immunity pursuant to the Kansas statute (K.S.A. 22-3415 [Weeks]) affords a witness protection from self-incrimination in state prosecutions and under the federal case law a similar protection from federal prosecution is afforded on account of any transaction or matter contained in any statement or about which such witness shall be compelled to testify. Such compelled statement or testimony shall not be used against such witness in any prosecution for a crime, state or federal.”
Thus, it is the decision of this court that a district or county attorney in Kansas, by granting statutory immunity to a defendant, can ordinarily compel the answer of the defendant. According to the above United States Supreme Court authority, such immunity would be binding not only in Kansas but in federal court and other state courts as well.
Issues 2, 3, and 4 all concern the plea bargain and will be treated together. Did appellant have a right to refuse to answer questions that he claimed were in violation of his plea agreement, thereby subjecting him to the charge of indirect contempt? Both the appellant and the state argued vigorously concerning the terms of the plea bargain. The plea bargain recited to the trial court on the day of appellant’s sentencing is as follows:
“. . . The Defendants presently before the Court are charged with numerous other cases at this point, Your Honor. We have agreed that in exchange for a plea of guilty in this case and in exchange for a plea of guilty on the part of both defendants to 77 CR 517, and further in exchange for a plea of guilty on the part of the Defendant Talsma to 77 CR 512 that the State would recommend the minimum sentence in all of these cases, that the State would recommend that the sentences in these three cases run concurrently, one with the other. The State would not request these Defendants to voluntarily testify against other co-defendants in these cases. The State would dismiss all other pending actions against these two Defendants. The State would request that the Court, after having set these sentences concurrently with each other, to run these sentences concurrent with any further penalty Mr. Dunn might incur by virtue of a pending charge in Wellington, Sumner County, Kansas, for possession with intent to sell marijuana. Now, this is my understanding of the plea negotiations as they exist.” (Emphasis added.) (Transcript of Guilty Pleas, pp. 5-6.)
Thereupon the court inquired of appellant’s counsel as follows:
THE COURT: “Does that meet with your understanding, Mr. Vannerson?”
MR. VANNERSON: “That is my understanding, Your Honor.” (Transcript of Guilty Pleas, p. 6.)
The appellant claims that the agreement as transcribed was not the actual plea bargain entered into by the parties. Appellant contests that portion of the plea bargain that states:
“The state would not request these Defendants to voluntarily testify against other co-defendants in these cases.”
Because the recorded plea bargain is ambiguous, we have examined the entire record.
The.U. S. Court stated, in Blackledge v. Allison, 431 U.S. 63, 74, 52 L.Ed.2d 136, 97 S.Ct. 1621 (1977), that although “declarations in open court carry a strong presumption of verity .. . the barrier of the plea or sentencing proceeding record ... is not invariably insurmountable.” The Black-ledge test is whether the appellant’s allegations “when viewed against the record of the plea hearing, were so ‘palpably incredible’ ... so ‘patently frivolous or false’ . . . as to warrant summary dismissal.” Id., at page 76. The high court then found that, based upon the record of acceptance of the guilty plea and the ambiguity surrounding the bargaining process, the defendant should have an evidentiary hearing.
At page 48 of the Transcript of Motions on Inquisition for proceedings had on October 10, November 10, November 14, and November 18, 1977, the assistant district attorney stated to the court:
“Q. And what was the final agreement with regard to that point as you recall it?
“A. That we would not voluntarily ask him to testify against his co-Defendants or his friends or anyone else that might be charged in these cases. I assured Mr. Vannerson that in no case would we call his client as a witness in any capacity, voluntarily or involuntarily, while he was still in the penal system.”
When questioned why the above quoted testimony had not been related to the court, the assistant district attorney replied, at page 50 of that transcript:
“For the reason that it was not a part of our plea negotiations. That was a private assurance from myself to Mr. Vannerson so that he could convey that to his client to put his mind at ease.”
The state’s claim that this assurance was not part of the plea bargain cannot be accepted. We note the assistant district attorney gave appellant’s counsel his assurance expressly so that counsel could convey it to defendant to put his mind at ease.
We conclude that this express assurance was in fact a part of the plea bargain; therefore, we must determine whether or not appellant, while on probation, was “in the penal system.” We conclude as a matter of law that the appellant is “in the penal system,” so long as he is on probation. This term, to us, does not necessarily mean that a person be confined within the walls of a correctional institution. Certainly, for the duration of his probation — the remainder of five years — appellant is subject to certain rules and conditions of probation; should appellant violate those conditions, he would be subject to incarceration.
We must once again examine the record to see whether the trial court actually made an evidentiary finding of fact concerning the plea bargain. At page 28 of the Transcript of Proceedings held on December 23, 1977, the court states:
“. . . I will tell you what I think on the matter; I think the whole matter revolves around what the term Voluntarily testifying’ means. I am not inclined to go behind what was said in open court." (Emphasis added.)
At page 4 of the Transcript of the Hearing of January 6, 1978, the court says:
“All right. The plea negotiations in this case that were recited to the Court at the time the plea was entered were, among other things, to the effect that the Defendant would not voluntarily testify against any of his co-Defendants. Mr. Vannerson has come in and testified in court that he thought this meant that the Defendant would not testify, period. I think that his testimony is an attempt to collaterally attack the plea agreement that was recited in court. I am going to hold that the Defendant is not in this case voluntarily testifying. To the contrary, his actions in this matter evidence an extreme reluctance to testify. He is fighting the matter tooth and toenail. It might be that the State would not have done what they had done if the word, ‘voluntary,’ had not been in the plea agreement. . . .”
(Emphasis added.)
While the trial judge listened to the testimony of both attorneys relative to the claim of each as to the actual plea bargain, the above quotations by him indicate that he based his findings solely on what the plea bargain said as recited into the record of the sentencing proceedings. The trial judge, in fact, specifically states he is “not inclined to go behind what was said in open court” (obviously meaning, by the context in which it appears, the statement of the plea bargain as made at the time appellant was sentenced). At another time during the proceedings, the trial court referred to the testimony of the attorneys as an attempt to “collat erally attack” the plea bargain that was recited in court. The trial court made no specific finding as to what the plea bargain consisted of, unless we can infer that the trial court’s finding was that such plea bargain was as stated in the record at the time of appellant’s sentencing. Such might be a proper inference were it not for the fact that the trial judge stated he would not go behind the record, nor would he allow the terms of the bargain to be “collaterally attacked.” In effect this had to refer to the record of the sentencing as distinguished from the entire record. The statements rebut any inference of a specific finding by the court, and could as well mean a refusal to make a finding as to the terms of the plea bargain.
We conclude that the trial court could have looked behind the announced plea bargain to the entire record in determining the terms of the plea bargain. He is not bound by the announced plea bargain if he finds conflicts after a study of the entire record.
The state has admitted of record that it would not call appellant as a witness “voluntarily or involuntarily, while he was still in the penal system,” and it is bound by this admission. Since we have also concluded that at all times material to this case the appellant was in the penal system, we hold that the examination of appellant by way of inquisition was in violátion of the plea bargain. Accordingly, the judgment of contempt must be reversed and vacated.
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Abbott, J.:
This is a direct appeal from a jury verdict convicting defendant of unlawful possession of heroin. (K.S.A. 1977 Supp. 65-4127a.)
On September 3, 1976, at 9:50 p.m., Wichita police officers obtained a search warrant authorizing a search of the north half of a duplex at 2029 North Volutsia in Wichita. The application for the search warrant was sworn to on information and belief, and related information received by the affiant from a confidential informant.
The item to be seized was an unknown quantity of heroin. The search warrant was executed some thirty minutes later, at 10:20 p.m. At least six plainclothesmen and one uniformed officer participated in the search. They knocked on the front door and received no response. They knocked again, identified themselves as police officers and stated the purpose of their visit. Almost simultaneously they forced the door open with a seventy-five-pound battering ram.
The defendant was observed standing in a hallway separating the living room and kitchen areas of the residence. He had a telephone in his hand. As the officers approached, the defendant threw the telephone to the floor. He was observed to bring his right hand down and out of sight and then back to his mouth, appearing to put something into his mouth. The officers did not observe any object in defendant’s hand, nor did they see any object pass from defendant’s hand to his mouth.
Defendant was immediately seized and forced to the floor. One of the officers grasped defendant by the throat and exerted “a great deal of pressure” to prevent him from swallowing. Defendant was requested to “spit it out” but he refused to open his mouth. No attempt was made by any of the officers to physically force open defendant’s jaws. One officer explained that he had been bitten so severely in a previous attempt to force a suspect’s jaws apart that he had required medical attention. At this point, at least five officers were directly involved with the defendant in the hallway. One detective requested a can of Mace from the uniformed officer. The Mace was handed to Officer Janssen, who placed the can in front of defendant’s face. Almost immediately defendant spit out a Kleenex containing eight rolled and knotted balloons. It was subsequently determined the balloons contained heroin.
The defendant was charged with possession of heroin. After preliminary hearing, defendant filed a motion to suppress the physical evidence and to compel the state to identify its informant. The motion to suppress was overruled. The case proceeded to trial and defendant renewed his motions. The heroin-filled balloons were admitted into evidence over defendant’s repeated objections. The defendant was convicted as charged and he appeals.
Defendant alleges the trial court erred in (1) failing to suppress the physical evidence; (2) not requiring the state to identify its informant or in not conducting an in camera examination of the informant; (3) not giving a “fleeting possession” instruction; (4) allowing expert opinion as to the contents of the balloons taken from defendant where the opinion was based on scans produced by an infrared spectrophotometer and the scans had been destroyed prior to trial; and (5) not granting a new trial for an inflammatory remark made by the prosecutor during closing argument.
1. Motion to Suppress.
As his first point on appeal, defendant contends the trial court erred in overruling his motion to suppress the heroin-filled balloons. He first attacks the affidavit used to establish probable cause for the issuance of the search warrant. He contends the affidavit is insufficient to establish probable cause for its issuance in that it is not positively sworn to but is based on “information and belief”; it does not comply with the requirements of Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964), in that it does not set forth facts sufficient to establish the reliability of the confidential informant and the underlying circumstances from which it could be concluded that the informer had reliable information that the contraband was located on the premises in question; and it fails to disclose circumstances indicating there was probable cause to believe heroin was on the premises at the time the affidavit was executed.
Defendant cites a ninety-four-year-old Kansas case (State v. Gleason, 32 Kan. 245, 250, 4 Pac. 363 [1884]) wherein the Kansas Supreme Court held that an arrest warrant based upon an oath “that the several allegations . . . are true, as he has been informed and verily believes” was not supported by oath or affirmation as required by section 15 of the bill of rights in the constitution of the state of Kansas. While State v. Gleason, supra, has never been overruled, it has been limited to issuing a warrant for the arrest of a defendant and an oath or affirmation and belief has been held sufficient for all other purposes. (State v. Etzel, 2 Kan. App. 673, 43 Pac. 798 [1896]; State v. Blackman, 32 Kan. 615, 5 Pac. 173 [1884]; State v. Longton, 35 Kan. 375, 377, 11 Pac. 163 [1886].)
The requirements for a search warrant based on hearsay obtained from a confidential informant were considered in Aguilar v. Texas, supra. The court stated at p. 111:
“[W]hen a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,’ [Jones v. United States, 362 U.S. 257, 270], and will sustain the judicial determination so long as ‘there was substantial basis for [that determination]. . . .’ ”
The United States Supreme Court concluded that mere belief or suspicion is an insufficient basis. They rejected an affidavit where the police officer who swore to the affidavit indicated the unidentified informant merely believed or concluded that there were narcotics in the defendant’s possession.
Hearsay evidence may be the basis for a search warrant. (Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725 [1960].) In Jones, the court held an affidavit established probable cause where the affidavit was based on hearsay so long as a substantial basis for crediting the hearsay was present. The affidavit recited that (1) the unnamed informant had purchased narcotics at the accused’s apartment that was to be searched; (2) the unnamed informant had previously given accurate information; (3) the informant’s story was corroborated by other sources of information; and (4) the accused was known by the police to be a user of narcotics. Jones was the forerunner of Aguilar. In Aguilar, the Supreme Court of the United States determined that there need not be information independent of the confidential informant to establish probable cause as long as the affidavit sets forth facts from which a detached and neutral magistrate could find there was probable cause to believe narcotics were present. Justice Goldberg, speaking for the court in Aguilar, said:
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant [cite omitted], the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [cite omitted], was ‘credible’ or his information ‘reliable.’ . . .” (p. 114.)
The Kansas Supreme Court has considered the question as recently as State v. Sanders, 222 Kan. 189, 563 P.2d 461 (1977), and approved a search warrant issued on an affidavit of a police officer based on hearsay of a confidential informant where the informant is shown to be reliable and credible.
When tested against the requirements of Aguilar, the affidavit is technically sufficient. The underlying facts on which the source bases his information are described — he was present in the house and he was shown the balloons. It is thus clear that the informant was speaking from his personal knowledge and not relating hearsay. Furthermore, the police officer set forth the reasons to support his belief that the informant was reliable — he had previously supplied information concerning the location of narcotics which proved reliable.
We are satisfied from a review of the affidavit that it was properly sworn to and that there was a substantial basis for the issuing judge to find probable cause to conclude that heroin was present at the address alleged. The question then remains whether there was probable cause to believe the heroin was still present when the affidavit states it was present at the named address “within the past two days.”
We are troubled by the language found in State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977), where the Kansas Supreme Court stated:
“Evidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location; however, where an affidavit gives evidence of activity indicating protracted or continuous conduct at a particular location and that evidence provides a reasonable basis to infer drugs are still present, probable cause may exist.” (Citations omitted.)
The instant affidavit does not allege any occupant of the residence to be searched was either a user of or trafficker in narcotics, nor does the affidavit set forth a repeated course of suspicious activity occurring around the suspected address.
A number of cases have held search warrants valid when the affidavit revealed much longer lapses of time between the observation of the contraband and the making of the affidavit. In State v. Seven Slot Machines, 203 Kan. 833, 457 P.2d 97 (1969), seven days elapsed. In United States v. Harris, 403 U.S. 573, 29 L.Ed.2d 723, 91 S.Ct. 2075 (1971), a purchase of illicit alcohol “within the past two days” was sufficient. In United States v. Jones, 366 F.Supp. 237 (W.D. Pa. 1973), a four-day interval was approved. Eight days was approved in Irby v. United States, 314 F.2d 251 (D.C. Cir. 1963) and People v. Montgomery, 27 Ill. 2d 404, 189 N.E.2d 327 (1963). Even longer periods have been approved where the trial court determined that no more than a “reasonable” time had elapsed. (100 A.L.R.2d 525, § 6, p. 534.) How much time will be permitted to elapse before a reasonable belief is destroyed that the contraband continues to be present at the place described must be answered on a case-by-case basis.
The judge who issues a search warrant is not required to leave his common sense at home. Heroin is normally found in the possession of either a user or a trafficker. A quantity of heroin was observed on the premises within two days of the issuance of the warrant, and a reasonable inference was that a portion of the prohibited narcotic would still be present when the warrant was issued. Considering the facts of this case, the trial judge did not err in denying defendant’s motion to suppress due to a lapse of time which at the maximum did not exceed two days.
Defendant next contends there was no probable cause to search him, and therefore neither a valid premises search warrant nor K.S.A. 22-2509 gives the police the right to search an individual who is “incidentally” on the premises.
The police officers were on the premises under authority of a validly issued search warrant. The warrant was executed within thirty minutes of its issuance. There was some evidence the police wanted to execute the search warrant at a time when someone was present, preferably the defendant, Ricky Jacques. The evidence discloses that the police officers arrived in the area and, within minutes after they were organized, conducted the search. The police should be encouraged to search a residence while its occupant is present, and we do not find the short delay in executing the warrant in this case to be unreasonable. The exact time of execution of a search warrant is discretionary with the law enforcement officers and we do not find an abuse of discretion. (State v. Morgan, supra.)
The Kansas Supreme Court has previously held that where a valid search warrant is issued authorizing a search for narcotics, the officer executing the search warrant may reasonably detain and search any person on the premises. (State v. Loudermilk, 208 Kan. 893, 494 P.2d 1174 [1972].) In State v. Loudermilk, the court held:
“In the execution of a search warrant, under the provisions of K.S.A. 1971 Supp. 22-2509, the reasonable detention and search of a person found on the described premises do not offend against the Fourth Amendment to the Constitution of the United States or Section 15 of the Kansas Bill of Rights where the purposes of the search are within those specified in the statutes.” (Syl. ¶ 1.)
State v. Loudermilk is controlling on the right of the officers to search the defendant under the facts of this case and the trial court was correct in so holding.
The real issue is whether the officers conducted the search in a reasonable manner. What constitutes a “reasonable manner” is a question of fact which necessarily must be decided on a case-by-case basis. The guiding principle is set forth in Rochin v. California, 342 U.S. 165, 96 L.Ed. 183, 72 S.Ct. 205 (1952), where the Supreme Court of the United States reversed a conviction on the grounds that the conduct of the police violated due process of law. There the defendant swallowed contraband and was taken to a hospital where his stomach was forcibly pumped. The court noted this was conduct that “shocked the conscience” and that “convictions cannot be brought about by methods that offend ‘a sense of justice.’ ” Thus, we are faced with determining whether the search in this case was conducted in an unreasonable manner so as to offend a sense of justice.
Here the officers were faced with a situation where they had a valid search warrant to search the premises for heroin. The affidavit for the search warrant revealed that the heroin was rolled in balloons and last seen on the premises in the possession of the defendant. The officers testified that they recognized the defendant when they entered the house, and it appeared to them that he put something into his mouth. They further testified they had been involved in prior incidents where a suspect swallowed contraband contained in tightly rolled balloons and were aware that it is a common practice for suspects in narcotics cases to swallow the evidence. The officers thus had reasonable grounds to believe the defendant was attempting to swallow the contraband for which they were authorized to search.
Defendant cites a number of cases where evidence has been suppressed because of significant intrusions into the body of the defendant. An individual discussion of the cases cited by the parties is not justified since none are identical to the facts before us.
Defendant suggests that he was choked and Mace was sprayed in his face. It is defendant’s position that either act standing alone is sufficient to justify suppression of the evidence thereby obtained.
Despite the fact the only testimony concerning the use of Mace came from police officers, the question of whether or not Mace was used is disputed. At the preliminary hearing before Judge Ballinger, Detectives Fulton and Easter unequivocally testified that Detective Janssen sprayed Mace in the defendant’s face. When the incident occurred, Easter was applying pressure to defendant’s throat to prevent defendant from swallowing and Detective Fulton was aiding in restraining defendant. Both officers were within an arm’s length of defendant and were in a position to know if Mace was used.
A motion to suppress was subsequently filed and was heard by Judge Raum. Detective Fulton was the only officer to testify on the motion to suppress. He then testified he did not see any Mace sprayed, did not smell Mace, and that the defendant gave no indication he had been sprayed with Mace. Fulton did testify that Detective Janssen placed the Mace directly in front of defendant’s face immediately prior to observing a Kleenex and eight balloons in little balls roll out of defendant’s mouth. On cross-examination, Fulton testified he had assumed Detective Janssen shot some of the Mace. The transcript of the preliminary hearing was available but the record does not reveal that it was offered into evidence and considered by Judge Raum. No findings of fact were made. The journal entry indicated that evidence was taken, arguments of counsel considered, briefs filed on the issue, and the motion to suppress overruled.
The case was tried to a jury with yet another judge presiding. At trial, defendant renewed his motion to suppress. Detective Janssen testified, yet neither side inquired of Janssen whether he sprayed defendant with Mace. Officer Fuson, who did not testify at the preliminary hearing, testified he was the only officer present at the scene who had a can of Mace; that he had given his Mace to Officer Janssen; that he broke the spray button off the can of Mace taking it out of the pouch and as a result it would have been impossible for Detective Janssen to have sprayed the Mace. The can of Mace was turned in to the Wichita Police Department two or three weeks after this incident and was not available for examination.
Detective Easter testified that Janssen placed the can of Mace in front of defendant’s face and defendant spit out the Kleenex and balloons. He further testified he did not observe any Mace come out of the can. In response to a direct question of whether he knew if Mace was sprayed, he testified, “I can’t tell you now whether Mace was sprayed or whether it was not sprayed.” No effort was made to impeach Detective Easter despite the fact he had testified at the preliminary hearing that:
“. . . Someone asked if anybody had any mace and . . . the only person I saw with the mace was Detective Janssen: The defendant had turned his face towards me by this time which was to the east, and I was looking directly into his face. And at that time Detective Janssen sprayed his face with mace and I let go of my hold around his throat. . .
Detective Fulton again testified he did not see Mace sprayed, nor did he smell it. On cross-examination he testified he assumed Janssen sprayed the Mace. He also read his report as follows: “The uniformed officer, I believe, then handed Detective Janssen a can of mace, and it was sprayed in Ricky Jacques’ mouth, at which time he extracted eight balloons along with some Kleenex from his mouth.” The defendant did not testify at any of the proceedings.
The trial judge found that the force used in searching the defendant was reasonable under the circumstances.
We are hampered by the failure of the hearing judge to make a finding as to whether or not Mace was actually sprayed in defendant’s face. We note, however, that the entire incident occurred in a hallway approximately three feet wide. At least five officers and the defendant were in the confined space. Neither the defendant nor any of the police officers showed any signs of having been sprayed with Mace. We find it a bit difficult to believe that a trial judge could have concluded anything other than that Mace was in fact sprayed. It is obvious, however, that a minimal amount of Mace was used in view of the fact that neither the defendant nor any of the officers showed any after-effects of being sprayed. We are thus faced with the dilemma of remanding the case to the trial court for findings of fact as to whether or not Mace was sprayed, or going on the assumption that a minimal amount of Mace was used and then determining as a matter of law whether or not the use of a minimal amount of Mace under the existing circumstances offends “a sense of justice.”
The police officers were faced with two alternatives. They could allow the defendant to swallow the contraband (in which case we have no existing statutes which would authorize the defendant to be held without bond long enough to recover the contraband by allowing nature to run its course), or they could force his mouth open in a reasonable manner. Trying to force open the mouth of a young, healthy, adult male involves substantial risk both to the police and to the defendant. It would seem to us to be more humane to use a minimal amount of Mace rather than brute force.
The use of any Mace approaches the outer limits of acceptable conduct on the part of the police officers, and we would have no hesitation in holding that the excessive use of Mace would shock our sense of justice. Here, there is no evidence that the defendant suffered any ill effects as the result of the use of Mace, and we cannot say the use of Mace standing alone is so unreasonable as to offend “a sense of justice.”
Whether or not pressure could be applied to a defendant’s throat to prevent him from swallowing evidence presents a different issue. Legal authorities tell us that the rule in California is clear. A reading of their cases, however, does not necessarily support that conclusion. A police officer in California may not choke a defendant in order to prevent him from swallowing evidence. (People v. Martinez, 130 Cal. App. 2d 54, 278 P.2d 26 [1954].) They do permit a police officer to place his hands on the throat of a defendant and apply pressure without actually choking him for the purpose of convincing him to expel evidence from his mouth. (People v. Mora, 238 Cal. App. 2d 1, 47 Cal. Rptr. 338 [1965]; People v. Larkin, 52 Cal. App. 3d 346, 125 Cal. Rptr. 137 [1975].) We were unable to reach a rational decision based on whether or not the policeman testified he “choked” the defendant or merely “applied pressure.” A criminal trial should be a search for the truth and not dependent upon semantics chosen by an officer.
We prefer to adopt the rule that when an officer has probable cause to believe that a criminal offense is being committed in his presence he has the right to take reasonable measures to insure that incriminating evidence is not destroyed, and he may use reasonable force to subdue the defendant and prevent the defendant from swallowing the evidence. (See United States v. Caldera, 421 F.2d 152 [9th Cir. 1970], and Hernandez v. Texas, 548 S.W.2d 904 [Tex. Crim. 1977].)
We have a specific finding by the trial judge who heard evidence concerning the pressure applied to the defendant’s throat that the police officers used reasonable force under the circumstances. A mugshot taken of defendant within the hour does show the presence of two places on the throat of the defendant where the skin was broken by the police officer’s fingernails. No bruises, discolorations, or abrasions of any other nature appear on the defendant’s neck. Having examined the photographs and the record in this case, we cannot say that the trial court erred in finding the force applied to the defendant’s neck to prevent him from swallowing the evidence was not unreasonable. Nor do we find under the circumstances that the force used to subdue the defendant to prevent him from swallowing the evidence and the minimal amount of Mace used, when taken together, constitute unreasonable force.
2. Failure to Identify Informant.
Defendant next contends the trial court erred in overruling the defendant’s motion for disclosure of the identity of the state’s confidential informant or, in the alternative, conducting an in camera examination of the informant. His position is that the informant’s identity was necessary to insure a “fair determination of the issues” of probable cause to issue the search warrant and the defense of “entrapment” and “fleeting possession.” None of defendant’s contentions requires reversal of the conviction.
Defendant contends the informant never existed. That contention goes to whether or not there was probable cause for the search warrant to issue and would have no bearing on the guilt or innocence of the defendant. When probable cause for a search warrant is in issue rather than the defendant’s guilt or innocence, the state generally need not disclose the identity of the informant. (State v. Robinson, 203 Kan. 304, 454 P.2d 527 [1969].) Kansas does not allow a defendant to dispute the matters alleged in an affidavit supporting a search warrant which, upon its face, es tablishes probable cause. (State v. Sanders, supra; State v. Wheeler, 215 Kan. 94, 523 P.2d 722 [1974]; State v. Lamb, 209 Kan. 453, 497 P.2d 275 [1972].)
The identity of the informant must be disclosed when essential to a fair determination of the issues. (K.S.A. 60-436; see 76 A.L.R.2d 262.) Under the facts of this case, the defense of “entrapment” or “fleeting possession” could not have been made. The facts are uncontroverted that the defendant attempted to secrete the contraband in his mouth and swallow it. In view of the evidence the defense of “fleeting possession” or an “innocent handling” would be untenable. Likewise, the defense of entrapment would not aid the defendant. The record fails to show the informant participated in the crime. Since the informant had no actual involvement in the commission of the offense, nor was he a material witness, the informant cannot be found to have somehow trapped the defendant into committing the offense of possession of heroin. (State v. Braun, 209 Kan. 181, 495 P.2d 1000 [1972].)
There is presently no requirement that the trial judge conduct an in camera inquiry of an informant to ascertain either the existence of an informant or whether the affidavit to support a search warrant is accurate. Clearly, the judge should require the personal testimony of an informant when there is any reason to question the accuracy of the supporting affidavit prior to issuing the search warrant. If a question arises after the warrant issues, the judge may conduct an in camera hearing when he deems it necessary to protect the life of the informant. Here, the assistant district attorney, an officer of the court, assured the trial court on the record that the confidential informant did in fact exist.
We cannot say the trial court abused its discretion by not requiring the identity of the informant to be disclosed or by failing to conduct an in camera hearing.
3. Instruction on “Fleeting Possession.”
The defendant in a criminal action is entitled to an instruction on his theory of defense if it is supported by any competent evidence. (State v. McCorgary, 218 Kan. 358, 543 P.2d 952 [1975].) However, the theory of defendant must be supported by competent evidence. The trial judge gave an instruction on intent as well as on possession. The instruction given on possession is framed in terms of knowledge and control. We recognize that the defendant would have preferred the requested instruction; however, the instruction given contains all the essential elements of the crime. The defendant’s actions were inconsistent with the defense of “fleeting possession.” The defendant concealed the evidence and attempted to destroy the same which is sufficient to support the same inference of possession found in State v. Knowles, 209 Kan. 676, 498 P.2d 40 (1972). The trial court properly instructed the jury as to the applicable law in view of the evidence.
4. Expert Opinion Testimony.
The state’s expert witness testified as to the nature of the tests she performed on the substance retrieved from the balloons. Three separate tests were performed. The first test was a Marquis reagent test. The result of that test indicates only that an opium derivative is present. It is not conclusive. The second test performed was a thin-layer chromatography. The record does not show whether or not this test is conclusive. The third test was by infrared spectrophotometry. Simply stated, the third test is made by mixing the suspected material and placing it in a machine. The machine produces a graph which is then compared with a graph of a known substance. The expert witness testified that a lay person would not be qualified to compare the graphs and that it took special expertise to do so. She further testified that after the machine produced the graph and she compared it with the graph of a known substance, she destroyed the graph. Defendant objected to her giving her expert opinion that the material contained in at least one of the balloons was heroin. He contends that it violated the “best evidence rule” and there was an insufficient foundation for the expert’s testimony. We are here confronted with a situation where ample material remained from the testing process for the defendant to conduct any tests he deemed necessary to insure the expert had not made a mistake. We are not faced with a critical situation where all of the material was consumed by the testing procedure and none remains available to the defendant for an independent test. The “best evidence rule” is contained in K.S.A. 60-467. It prohibits the admission of secondary evidence “except as otherwise provided by these rules.” K.S.A. 60-456 specifically allows the introduction of opinion evidence when the testimony of the expert is based on facts personally known by the witness and within the scope of his special knowledge. We deem this situation comparable to Kollmorgan v. Scott, 447 S.W.2d 236 (Tex. Civ. App. 1969), where the Texas Court of Civil Appeals held there was no error in allowing a physician to give his expert opinion based on X-ray findings without producing the X-rays in court. Such films are not subject to interpretation by lay jurors, as are other photographs, and are not intelligible without an interpretation by medical experts skilled in the art. The best evidence was held to be the doctor’s interpretation of the X-rays and not the X-ray film itself. In State v. Jefferson, 204 Kan. 50, 54, 460 P.2d 610 (1969), a ballistics expert was allowed to testify as to the test results, although the bullets and casings were inadvertently lost. The court, speaking through Justice Fromme, stated, “In addition, the testimony of an expert as to tests, results thereof and demonstrations by him may be permitted and rests in the judicial discretion of the trial court.”
There was ample testimony in this case that a layman would not be capable of making a comparison. There was no testimony to the contrary. Thus, under the evidence presented the trial court did not err in allowing the expert to give her opinion on the contents of the writing without producing the writing itself.
It is within the sound discretion of the trial court to determine whether or not an adequate foundation has been laid to introduce expert testimony as well as whether the expert witness is qualified to state an opinion. The judge’s ruling will not be disturbed on appeal absent a clear abuse of judicial discretion. (State v. Jones, 209 Kan. 526, 498 P.2d 65 [1972]; State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 [1976].) The record reveals that the expert had demonstrated sufficient training and expertise in the area involved to express an opinion, and a sufficient foundation for her expert testimony was established. There was no abuse of discretion in either area.
5. Inflammatory Comments.
The assistant district attorney in his closing argument stated the law enforcement officers were attempting to “stop the possession of heroin, heroin, which is a despised drug in our community, which is a — and as everyone knows, it kills people — .” Defense counsel immediately objected and the trial judge sustained the objection on the grounds that it was designed to impassion the jury. Counsel did not request that the jury be instructed to disregard it, and the trial judge did not so instruct the jury. After the jury had retired, defendant sought a mistrial and at that time pointed out to the trial judge that the jury had not been instructed to disregard the statement. The trial judge is authorized to declare a mistrial under the provisions of K.S.A. 22-3423 upon a finding that prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. The decision to grant a mistrial is discretionary with the trial judge and the decision to deny a mistrial will not be set aside on appeal absent evidence of a clear abuse of discretion. (State v. Rueckert, 221 Kan. 727, 561 P.2d 850 [1977].) Where the evidence of guilt is of such direct and overwhelming nature that it can be said the misconduct of counsel in closing argument could not have affected the result of the trial, such misconduct is harmless error. (State v. Hamilton, 222 Kan. 341, 564 P.2d 536 [1977].) An examination of the record discloses the evidence of guilt is of a direct and overwhelming nature. Misconduct on the part of the prosecution amounted to harmless error (K.S.A. 60-2105), and thus we cannot say the trial judge abused his discretion in not granting a new trial.
Affirmed.
. The affidavit in pertinent part reads:
“That the basis of his probable cause is:
“I am a detective with the Wichita Police Department assigned to the Narcotics Section.
“I have been informed by a reliable confidential informant that the informant within the past two days has been inside the north half of the single-story frame duplex located at and known as 2029 North Volutsia, Wichita, Sedgwick County, Kansas; that the duplex is green in color and has white trim; that while inside the north half of the frame duplex the informant spoke with the occupant of the north half of the duplex; that the occupant is known to the informant by the name Rickie Jacques; that the occupant showed the informant several rolled and knotted balloons and told the informant that the balloons contained heroin; and that when the informant left the north half of the duplex, the rolled and knotted balloons were still inside the duplex. The informant also told me that he has seen heroin packaged in an identical manner on numerous occasions.
“I know that the informant is reliable. On one prior occasion the informant provided information to the Wichita Police Department which resulted in the issuance of a search warrant for a quantity of heroin. That search warrant was issued and executed within the past two weeks. When that search warrant was executed, a quantity of heroin was seized. As a result of the execution of that search warrant, a charge for possession of heroin was filed and is now pending in the Sedgwick County Court of Common Pleas.
“Based on the information provided to me by the reliable confidential informant, I believe that there is probable cause to believe that a quantity of heroin is presently located in the north half of the duplex known as and located at 2029 North Volutsia, Wichita, Sedgwick County, Kansas.” | [
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Meyer, J.:
On January 1, 1973, Raymond Worrel contracted with Exhibitor’s Film Delivery and Service Co., Inc. (EFD) to furnish EFD with six trucks and drivers. Worrel was to obtain liability insurance naming EFD as a co-insured for the term of the contract. Worrel requested an American Family Mutual Insurance Company (AFM) policy co-insuring EFD. Although AFM’s exclusive agent assured Worrel that EFD was covered, the AFM policy issued to Worrel did not list EFD as a co-insured. AFM’s home office did not know of the Worrel-EFD agreement, and no request had been made of that office to file a certificate of insurance with KCC. Worrel knew at the time he was operating under EFD’s KCC permit.
Liberty Mutual Insurance Company (LM) issued a policy to EFD effective January 12, 1972, with limits of $250,000/500,000. Attached to this policy was a KCC-endorsed schedule pursuant to KCC regulations and K.S.A. 66-1,128, listing a pickup owned by Worrel. Also attached to the LM policy was a “Long Haul Truckmen” endorsement, which contained the following provision:
“(d) With respect to any automobile of the commercial type while leased or loaned to any person or organization, other than the named insured, engaged in the business of transporting property by automobile for others, or any hired private passenger automobile, the insurance under this endorsement shall be excess insurance over any other valid and collectible insurance available to the insured. Otherwise, the insurance under this endorsement is primary insurance. ” [Emphasis added.]
Both policies listed the Worrel truck — AFM on its policy to Worrel, and LM on its policy to EFD.
On September 20, 1972, a collision occurred between an automobile driven by LeRoy Schoenfelder, in which Deborah Schoenfelder was a passenger, and the pickup truck insured by both insurance companies. This pickup truck was owned by Worrel and operated by Charles F. Drake, Worrel’s employee. The pickup had EFD signs on it and was being used in the course of business for EFD under the Worrel-EFD contract.
Plaintiffs filed suit September 18, 1973, against EFD, Worrel, Drake and AFM. On March 27, 1974, plaintiffs amended their petition, substituting LM for AFM. AFM answered on behalf of EFD, Worrel and Drake. LM answered on its behalf only, and filed a third party petition against AFM.
Ultimately AFM settled with plaintiffs for $30,000.00 and then counterclaimed against LM for this amount plus $2,800.00 previously paid by AFM, plus costs and attorney fees.
AFM and LM filed motions for summary judgment, each claiming the other to be the primary insurance carrier. The district court sustained LM’s motion; AFM appeals.
AFM lists the following as the issues to be decided on appeal:
“1. Whether the court erred in granting LM’s motion for summary judgment on all issues after settlement of the plaintiffs’ claims.
(a) Did the court err in finding AFM’s policy was primary as to the general public when Worrel, AFM’s insured, (1) had no KCC authority nor any policy filed with the KCC, (2) when Worrel was operating under EFD’s authority, (3) EFD had secured and filed the LM policy with the KCC, (4) LM had the appropriate KCC endorsement added to its policy, and (5) when Worrel’s truck was specifically insured and described on LM’s policy?
(b) Did the court err in finding AFM could and should respond to the public under the holdings in Sterling v. Hartenstein, 185 Kan. 50, and Johnson v. Killion, 178 Kan. 154, regardless of the fact that Worrel had no KCC authority?
(c) Did the court err in finding that LM was a third-party beneficiary of the lease agreement between Worrel and EFD?
“2. Whether the court erred in overruling AFM’s motion for summary judgment.
(a) Was LM “legally responsible for the use of” the pick-up insured by AFM and LM as that phrase is used in AFM’s policy?
(b) Do the facts that LM had issued its policy pursuant to K.S.A. 66-1,128 and had the required certificate filed with the KCC and the required endorsement to its policy make its coverage primary and impose the primary duty to defend?
(c) Did the court err in denying AFM’s claim that the language in LM’s policy, without reference to the KCC filing, made it primary?
(d) Did the court err in denying AFM’s claim for contribution?
“3. Whether the court erred in denying the portions of AFM’s motion to alter or amend the judgment as the suggested facts that were not adopted by the trial court were amply supported in the record and the finding of those facts should have resulted in a finding that LM had primary coverage.
“4. Whether the court erred in granting attorneys’ fees and expenses to LM when a majority of the attorneys’ fees and expenses were incurred in trying to extricate LM from the lawsuit and not in the defense of the plaintiffs’ claims.
(a) Was there any statutory authority upon which the court could have awarded attorneys’ fees and expenses to LM?
(b) Did LM have standing to recover attorneys’ fees and expenses?”
Without attempting to answer each of appellant’s numerous issues individually,we feel AFM places far too much stress on K.S.A. 66-1,128. The purpose of K.S.A. 66-1,128 is to protect the public from uninsured motor carriers. No operating permit is issued to a public motor carrier unless and until insurance protecting the public is obtained. Since AFM’s exclusive agent promised coverage, AFM is bound thereby and thus was a primary insurer. See: Johnson v. Killion, 178 Kan. 154, 283 P.2d 433 (1955); Sterling v. Hartenstein, 185 Kan. 50, 341 P.2d 90 (1959); and Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P.2d 798 (1968).
On the other hand, the specific terms of LM’s “Long Haul Truckmen” endorsement, the issuance of the LM policy pursuant to K.S.A. 66-1,128, and the filing of the LM certificate with the KCC, all served to make LM a primary insurer, as well.
Since both AFM and LM have primary liability, the effect is co-insurance covering the losses incurred.
In American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 571-572, 545 P.2d 399, (1976), the court commented upon the claim of co-insurance between two competing insurance companies. In that case, the court noted:
“The doctrine of equitable contribution has long been recognized by this court as a remedy available to one who is compelled to bear more than his fair share of a common burden or liability to recover from the others their ratable proportion of the amount paid by him. (Bituminous Casualty Corporation o. American Fire & Casualty Co., 192 Kan. 233, 387 P.2d 159.) It is a principle of equity applicable only where the situations of the parties are equal under a common liability or burden. (18 Am. Jur. 2d, Contribution, § 1, p. 6.) Between insurers, it is generally a prerequisite to enforcing contribution that their policies insure the same interests. (New Hampshire Ins. Co. v. American Employers Ins. Co., 208 Kan. 532, 492 P.2d 1322; 16 Couch on Insurance 2d, § 62:161, p. 570.)”
We fail to find any statutory authority for an award of attorney fees in this case, for either party. In Kansas, attorney fees incurred by prevailing parties in an action are not chargeable as costs against the defeated party in the absence of clear and specific statutory provisions therefor. (Stover v. Johnnycake, 9 Kan. 367 [1872]; Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P.2d 775 [1952]; Walker v. Davis Van & Storage Co., 198 Kan. 452, 424 P.2d 473 [1967]; and Brewer v. Home-Stake Production Co., 200 Kan. 96, 434 P.2d 828 [1967].)
We hold that the AFM policy as it should have been written (including EFD as an insured) and the LM policy by virtue of its Long Haul Truckmen endorsement, insured the same interest. Both policies specifically and primarily insured the risk that the Worrel pickup, while in the course of EFD’s business, might be involved in an accident. Consequently, the doctrine of equitable contribution applies to this case, and AFM and LM must share the liability incurred. We do not view AFM as a “volunteer” in going forward with settlement, especially in view of the fact that LM insisted that it do so.
The judgment of the trial court is reversed in part with instructions to enter judgment for $16,400.00 in favor of AFM and against LM, so that the outcome is such that both AFM and LM share the burden of the $32,800.00 paid by AFM to plaintiffs, equally. Attorney fees should be awarded to neither party.
Reversed in part; affirmed in part. | [
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Foth, C.J.:
The defendant appeals from a conviction for bail jumping, i.e., aggravated failure to appear under K.S.A. 21-3814.
The primary issue is whether entrapment is a defense to a criminal charge where (1) the officers claimed to have done the entrapping were known by the defendant to be officers, and (2) they accomplished their purpose solely by threats, without any deception or representations which would lead the defendant to believe the crime would not be detected or prosecuted. The trial court sustained a motion in limine by the state, ruling that evidence proffered in support of the entrapment defense was inadmissible. The defendant was convicted and now appeals. We affirm.
The defendant, Peter C. Jones, was originally charged on June 3. 1974, with possession of heroin, burglary, two counts of theft, and possession of a firearm after a felony conviction. After several continuances he failed to appear for his preliminary hearing scheduled for September 5, 1974, thereby forfeiting his appearance bond. When he did not surrender himself within thirty days, a complaint was filed in the present case. He was finally arrested in January, 1976, in California, and was brought back to Sedgwick County to stand trial in both cases.
The defendant’s first trial on the bail jumping charge ended in a hung jury. At that trial the court allowed him to introduce evidence in support of the entrapment defense, and the court instructed the jury on entrapment. A second trial, where the court granted the state’s pretrial motion in limine resulted in the present conviction.
At the hearing on the state’s motion defendant’s evidence was proffered through the statements of counsel and of the defendant himself. Testimony at the first trial was referred to, although it does not appear that a transcript was available. In any event the form of the proffer was deemed acceptable by the court and counsel. What defendant offered to show was a rather elaborate police scheme put in motion during the three months between his arrest and the time he absconded, allegedly designed to induce him to leave the jurisdiction. The proffer included testimony that:
1. The police broke into his house on two occasions. (The prosecutor asserts they were executing search warrants.)
2. He received two threatening notes. One said “If you are around by the first of September you are going to be a dead man.” The second was a bereavement card, with a written message “Sorry to hear about your death.”
3. He received telephone calls asking if he received the second note. Defendant claimed to recognize the voice of the caller as that of a police officer he knew.
4. There were knocks on his door at night, but when he answered no one was there.
5. The police advised him there was a “contract” out on his life with a Kansas City, Missouri, assassin, and they were giving him twenty-four hour protection. This allegation, denied by police at the first trial, was corroborated at that trial by defendant’s mother and sister and a television reporter, all of whom said the police had told them of the threat and protection.
6. Three different officers told him he should leave town or he might be killed. ,
7. The idea of leaving hadn’t occurred to him until the officers suggested it.
The question before us is whether defendant’s evidence, accepted at face value, makes out a case of entrapment.
The defense of entrapment was unknown to the common law of England, but developed recently in the common law of this country as a matter of public policy. The landmark case, firmly establishing that the defense is available in federal prosecutions, is Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210 (1932). That the defense is one to be delineated by each jurisdiction for itself, and not a matter of constitutional law, is settled by United States v. Russell, 411 U.S. 423,36 L.Ed.2d 366, 93 S.Ct. 1637 (1973). Over the years most but not all states have adopted the defense in one form or another. See annotations, 18 A.L.R. 146, 66 A.L.R. 478, 86 A.L.R. 263.
The defense is most commonly encountered in prosecutions for violation of laws regulating material such as liquor, narcotics or obscenity, but the defense is not limited to those areas. In addition to the annotations cited above see 41 A.L.R.3d 418 (contempt); 10 A.L.R.3d 1121 (larceny); 77 A.L.R.2d 792 (obscenity); 75 A.L.R.2d 709 (fish and game laws); 69 A.L.R.2d 1397 (bribery); 55 A.L.R.2d 1322 (liquor); 53 A.L.R.2d 1156 (abortion); 52 A.L.R.2d 1194 (sexual offenses); 33 A.L.R.2d 883 (narcotics); and 31 A.L.R.2d 1212 (gambling).
In Kansas the defense was recognized even before the adoption of the 1970 Criminal Code. See, State v. Wheat, 205 Kan. 439, 469 P.2d 338 (1970); State v. Reichenberger, 209 Kan. 210, 495 P.2d 919 (1972). In Reichenberger the court recognized Sorrells as the primary source of guidelines for the defense, not only in the federal courts but also for “state courts in jurisdictions wherein the defense of entrapment is recognized.” (209 Kan. at 215.) And in State v. Houpt, 210 Kan. 778, 504 P.2d 570 (1972), the court characterized our present statute as being, in essence, “merely a codification of what [the] court has said in Reichenberger and State v. Wheat, [supra].” (210 Kan. at 782.) That codification is as follows:
“Entrapment. A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:
“(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or
“(b) The crime was of a type which is likely to occur and recur in the course of such person’s business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.” (K.S.A. 21-3210.)
The basis for recognizing the defense has been stated and restated many times in many different ways. In Sorrells, Chief Justice Hughes quoted approvingly from Butts v. United States, 273 F. 35, 38 (8th Cir. 1921):
“The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Here the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it. . . .”
The high court went on to quote from Newman v. United States, 299 F. 128, 131 (4th Cir. 1924):
“. • • It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor. . . .”
The separate opinion of Justice Roberts, concurred in by Justices Brandéis and Stone, characterizes the defense this way:
“Society is at war with the criminal classes, and courts have uniformly held that in waging this warfare the forces of prevention and detection may use traps, decoys, and deception to obtain evidence of the commission of crime. Resort to such means does not render an indictment thereafter found a nullity nor call for the exclusion of evidence so procured. But the defense here asserted involves more than obtaining evidence by artifice or deception. Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” (287 U.S. at pp. 453-4.)
In Sherman v. United States, 356 U.S. 369, 372-3, 2 L.Ed.2d 848, 78 S.Ct. 819 (1958), the Court observed that “[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” The distinction depends in part on the previous state of mind of the defendant, or his “predisposition” to commit the crime. It is clearly recognized by the exceptions in our statute, supra, especially in subsection (a), referring to the defendant’s origination of the criminal purpose.
In State v. Houpt, supra, our court expanded on this concept:
. . The limitations on the conduct of an officer or his agent in subsection (a) that he ‘merely afford an opportunity or facility for committing the crime’ echoes what was said in Reichenberger relating to the conduct of officers or agents involved. In this connection we repeat our holding in Reichenberger that, in considering the facts relative to the issue of entrapment, it is essential to distinguish between a trap set for the unwary criminal and a trap set to ensnare the innocent and law abiding citizen. The valid purpose of the defense of entrapment is to protect the innocent from trickery or impermissible conduct on the part of a law enforcement officer or his agent so designed as to create a substantial risk that a person would [commit a crime] in the absence of criminal purpose to do so originating or previously existing in the mind of such person. . . .” (210 Kan. at 782-3.)
The evidence proffered by defendant falls into two categories. First, there was evidence that he was harassed and threatened, either by the police or parties unknown. The trial court found that regardless of the source of the threats they were not a defense under the doctrine of State v. Milum, 213 Kan. 581, 516 P.2d 984 (1973). In that case the defendant sought to defend a charge of escaping from the penitentiary by showing that the deputy warden had threatened to have him killed if he didn’t escape. The proffered defense was regarded as being “compulsion” under K.S.A. 21-3209(1), and was rejected by the trial court because the threat of harm was not “imminent” as required by the statute. The Supreme Court agreed.
The trial court here also relied on United States v. Miller, 451 F.2d 1306 (4th Cir. 1971), where evidence of threats upon the defendant’s life was held not admissible when offered as a defense in a bail jumping case. The defendant’s recourse, the court said, was to surrender to the authorities or seek protective measures rather than flee the jurisdiction.
Insofar as defendant’s proffer here dealt with threats we agree with the trial court. Milum appears controlling (and Miller is persuasive) on the proposition that threats of future violence, even by the authorities, are not the kind of compulsion which will excuse the commission of crime.
That might' end our discussion except that defendant correctly points out that the entrapment theory was not dealt with in Milum. Conceding that the threats did not amount to legal compulsion, he says the officers nevertheless put into his mind for the first time the idea of committing the crime. He argues that this is enough to come within the terms of the statute, which speaks of criminal conduct “induced or solicited” by an officer.
As a matter of semantics and common understanding we believe the defendant is wrong. Webster says that to induce is to move or lead “as by persuasion or influence.” (See, Webster’s Third New International Dictionary.) As opposed to its synonyms “persuade” or “prevail,” the word is said to indicate overcoming indifference, hesitation or opposition, “usually by offering for consideration persuasive advantages or gains.” Thus, “inducements” are generally equated with rewards, and action is generally “induced” by the offer of positive gains, not by threats.
The same authority gives as its first modern meaning for “solicit” to “make petition to” and especially “to approach with a request or plea (as in selling or begging).” Included in the definitions is “to endeavor to obtain by asking or pleading.” All definitions connote a request which may be refused; none include the concept of a threat.
We may concede that under some secondary definitions threats might be considered to be inducements or solicitations. We cannot believe the legislature intended to use the terms in such a strained sense, but we do not base our decision on dictionary definitions alone. At a more basic level we do not believe the police conduct alleged here comes within the underlying concept of the entrapment defense. The name itself, “entrapment,” suggests some sort of covert activity resulting in a trap. A trap, we suppose, is something one enters unknowingly — known traps are avoided. Hence the reference in the quotations above to “ensnaring” the innocent and law-abiding, and to traps for the “unwary” innocent and the “unwary” criminal. In every one of the multitude of entrapment cases we have reviewed one of two types of deception was practiced: Either the officer or agent was operating under some sort of cover, pretending to be an ordinary citizen; or the entrapping agent pretended to be a co-conspirator or participant in the criminal activity whose silence could be counted on because of his self interest. The typical case of the first sort is the undercover agent who sets up a buy of liquor or narcotics; of the second sort, the co-worker who sets up a bribery or “pay-off” scheme. When the trap is sprung there is always the element of surprise at detection, and a sense of betrayal by one whom the defendant trusted.
Defendant cites us no case and we have found none where entrapment was considered an arguable defense under circumstances remotely resembling those present in this case. Defendant here claims that he knew those urging him to flee were officers. Further, there is no claim that they participated in the crime in any way, or led him to believe he could commit it with impunity. The result is that even if the idea originated with the officers, defendant went into the transaction with his eyes open. There is no reasonable way in which he can claim he was “entrapped.”
To sustain the defense under these facts would have implications which strike us as unacceptable. First, it would undermine the rationale of Milum; threats of future harm by an officer would be a defense even though they did not amount to compulsion. The public policy reflected in the statute, as explicated in Milum, excuses criminal conduct only where the defendant reasonably deems it necessary to prevent a disaster which is about to happen. If there is time for reflection and a possibility of choosing an alternative, noncriminal method of preventing the threatened harm, society demands that the noncriminal course be pursued.
Second, our whole criminal code presupposes that an individual possesses a free will and is accountable for his rational conduct; the exceptions are few and narrowly drawn. E.g., insanity is a defense only if M’Naghten standards are met (State v. Smith, 223 Kan. 203, 574 P.2d 548 [1977]); ignorance of the law or mistake are excuses under only limited circumstances (K.S.A. 21-3203); intoxication must be involuntary, and must produce a near -M’Naghten state, or it may be considered only on the issue of specific intent (K.S.A. 21-3208); compulsion, as discussed above, must in effect leave the defendant no realistic alternative to crime, and even then it does not excuse intentional homicide (K.S.A. 21-3209).
Entrapment, we think, must be similarly circumscribed. It cannot be a total defense to a criminal charge simply to say, “An officer suggested I do it.” This defendant, when urged to leave town, was required to make up his own mind what course he would pursue. When, acting under no compulsion recognized by the law and suffering no delusions about the police attitude, he elected to jump his bond, he subjected himself to criminal liability. We therefore hold that defendant’s evidence would not, as a matter of law, constitute entrapment even if believed, and the trial court did not err in rejecting it.
Since there was no evidence of entrapment before the jury, the trial court was not required to instruct on that defense. State v. Jordan, 220 Kan. 110, 116, 551 P.2d 773 (1976); and cf., State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977).
Defendant also urges error in admitting various documents from the court file of the underlying felony charges. At worst these documents were cumulative, establishing in documentary form certain elements of the crime, i.e., that defendant had been charged with a felony, that his bond had been forfeited, and when he was returned to custody. The state was entitled to prove its case in this way. Cf., State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 (1975); State v. Wilson, 215 Kan. 28, 32, 523 P.2d 337 (1974).
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Foth, C.J.:
This is an appeal by a creditor from the denial of its claim against a decedent’s estate because it was barred by the nonclaim statute, K.S.A. 59-2239. The issue raised is whether a creditor may constitutionally be barred when the only notice given of the appointment of a decedent’s personal representative is publication notice in accordance with K.S.A. 59-2236.
The creditor, Gano Farms, Inc., has its principal place of business in Graham County. It sold merchandise to Donald D. Kleweno, a resident of Ness County. When Kleweno died, administration of his estate was commenced in the probate court of Ness County, and notice to creditors was published in Ness County. Gano’s managers did not learn of Kleweno’s death in time to make a timely claim and Gano filed its claim more than six months after the first publication. In probate court the claim was disallowed as too late. On appeal to the district court summary judgment was rendered in favor of the estate on the' following stipulation:
“(1) That the only Notice given to creditors of the decedent, Donald D. Kleweno, was notice by publication as provided in K.S.A. 59-2236 and K S A 59-2239.
“(2) That no effort was made to locate and notify said creditors, other than said Notice by publication.
(3) That the Petition for Allowance of Demand of Gano Farms, Inc. was not exhibited within six (6) months of the first published Notice to Creditors.
“(4) That the officers of Gano Farms, Inc. reside in Graham County, Kansas, and they do not subscribe to any Ness County newspapers and did not learn of the death of the said Donald D. Kleweno until after the expiration of said six (6) month period.
“(5) That Plaintiff’s said Petition for Allowance of Demand was heard by the Probate Court of Ness County, Kansas on November 5, 1976, and Plaintiff’s demand was held barred under K.S.A. 59-2239; that Plaintiff timely and duly perfected an appeal from the order disallowing such demand, to the District Court of Ness County, Kansas.”
On appeal to this court Gano contends that to bar its claim with only publication notice to it denies it both due process of law and the equal protection of the laws. It urges us to hold that K.S.A. 59-2236, which requires no more than publication notice to creditors, is unconstitutional on both grounds.
Gano relies on the line of cases having its source in Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950). The line includes: New York v. New York, N. H. & H. R. Co., 344 U.S. 293, 97 L.Ed. 333, 73 S.Ct. 299 (1953); Walker v. Hutchinson City, 352 U.S. 112, 1 L.Ed.2d 178, 77 S.Ct. 200 (1956); Schroeder v. City of New York, 371 U.S. 208, 9 L.Ed.2d 255, 83 S.Ct. 279, 89 A.L.R.2d 1398 (1962); Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967); Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (1970); In re Estate of Barnes, 212 Kan. 502, 512 P.2d 387 (1973) and Weaver v. Frazee, 219 Kan. 42, 547 P.2d 1005 (1976).
The teaching of those cases is that when the state proposes to take judicial action which will deprive any person of a property right it must give that person notice of its intention to act, and further, that the notice given must be reasonably calculated to reach the attention of the person whose property will be affected. To that end service by publication alone is not sufficient where the party’s whereabouts are known or reasonably ascertainable. In such a case service by mail is at least required, in addition to the publication required by statute. The cases are applications of the twin principles that (a) when the state proposes to “deprive any person of life, liberty, or property” it must under the Fourteenth Amendment afford “due process of law,” and (b) notice and an opportunity to be heard áre essential elements of due process.
The problem with applying the doctrine of those cases to the notice required under the nonclaim statute arises from the different function of the notices, and from the difference in the nature of the right being affected. In each of the cases cited above the person to be notified was, in effect, made an actual party to the litigation by the notice, and the judgment of the court operated directly on that person’s property.
Thus, in Mullane the parties served by publication were beneficiaries of the-trust, in which the bank had filed an accounting; once the account was settled their rights were forever adjudicated. In New York the party was a lienholder whose lien on real estate would be barred. In Walker it was a landowner whose property was being condemned. In Schroeder it was a landholder whose interest in a flowing stream was being condemned. In Pierce it was the owner of land being sold at a tax foreclosure sale. In Chapin it was the owner of a mineral interest being subjected to the same fate. In Barnes it was an heir whose interest in an estate would be barred by admission of a will to probate. And in Weaver it was the owner of an interest in land which was being sold on execution under an order of attachment. In each case the effect sought to be given to the notice, at least as to the property right involved, was the same as if the party had been personally served and made a party to the proceeding, and in each a specific, identifiable property right was the subject of the court’s order.
The notice under the nonclaim statute, on the other hand, does not make a creditor a party to the proceeding, but merely notifies him that he may become one if he wishes. It does no more than put into operation a special statute of limitations. It is true that the creditor’s claim will be barred if not presented before the statute runs, but that is true of any statute of limitations. No order is entered which specifically bars the claim unless, as here, the creditor seeks to enforce the claim after the statute has run.
The characterization of the nonclaim statute as a special statute of limitations is found throughout the Kansas cases. See, In re Estate of Dumback, 154 Kan. 501, 119 P.2d 476 (1941); Hutchinson v. Pihlblad, 157 Kan. 392, 139 P.2d 835 (1943); Jardon v. Price, 163 Kan. 294, 297, 181 P.2d 469 (1947); In re Estate of Bowman, 172 Kan. 17, 238 P.2d 486 (1951); In re Estate of Brasfield, 168 Kan. 376, Syl. 5, 214 P.2d 305 (1950); In re Estate of Wood, 198 Kan. 313, Syl. 2, 424 P.2d 528 (1967).
Other jurisdictions take the same view. E.g., Storm v. Cluck, 168 Neb. 13, 95 N.W.2d 161 (1959); New York Merch. Co. v. Stout, 43 Wash. 2d 825 (1953); Rabin v. Krogsdale, 346 S.W.2d 58 (Mo. 1961); Kuzma, Admrx. v. Peoples Trust & Sav. Bank, 132 Ind. App. 176 (1961).
The Washington court was squarely faced with the due process contention made by Gano in this case. It said:
“In support pf its contention that [the nonclaim statute] does not accord due process of law in that it goes no further than to require publication of notice to creditors in a newspaper, appellant cites Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652. That case has no application to such a statute as [ours]. Its doctrine was applied to a case where property rights were being brought before a court for adjudication such as those of beneficiaries under trusts, and where the addresses of such beneficiaries were known to the trustee. The basis of the decision is that notice by publication alone is not sufficient to accord due process under such circumstances.
“Appellant is the victim of its own fault and nonaction by its failure to comply with a mandatory statute of nonclaim, for which the courts can give it no relief.” (43 Wash. 2d at 827-8. Emphasis added.)
In Kuzma the Indiana court observed that:
“ ‘The constitutional prohibitions against the taking of property without due process of law forbid the legislature from taking away a vested right, and similarly forbid any legislative attempt to take away immediately and completely all legal means for the enforcement of said right, as that would amount to a subversion of the right itself.’
“The provisions of [the nonclaim statute] do not take away any vested right, but merely impose as a condition precedent the appointment of an administrator within one (1) year after death before such a claim as the one before us here may be enforced.” (p. 183.)
The Nebraska Supreme Court explained in Storm v. Cluck, supra, that nonclaim statutes are special statutes of limitations that are more rigorously enforced than general statutes of limitations. The defense of nonclaim generally cannot be waived by the administrator, and the statute runs regardless of the minority or incompetency of the claimant. The court there reasoned that “it would be novel indeed if it were argued that a possible defendant in a tort action is required, in the absence of statute, to notify a possible plaintiff in the action that in 4 years his claim will be barred by the statute of limitations governing tort claims. Obviously, due process of law does not require notice in such a case. By analogy, notice is no more required in connection with the running of a statute of nonclaim, which an administrator cannot waive as a defense, than it is for a general statute of limitations which may generally be waived or used as a defense.” (pp. 21-22.)
While the latter two cases may be distinguished on their facts, they do point out that, by analogy to a general statute of limitations, notice to a creditor that it has commenced to run is not required at all. Under that reasoning, even publication notice is not constitutionally necessary, and may be regarded as a legislative act of grace.
That view is reinforced by considering the plight of a creditor whose debtor dies and no administration is begun. It is clear that under K.S.A. 59-2239 such a creditor must take the initiative by securing the appointment of an administrator and presenting his claim — both within the time prescribed by statute — or he will be barred. See, In re Estate of Dumback, supra; Jardon v. Price, supra at Syl. 1; In re Estate of Jordon, 180 Kan. 581, 306 P.2d 135 (1957). And cf., In re Estate of Brasfield, supra; In re Estate of Wright, 170 Kan. 400, 227 P.2d 131 (1951).
No one would suggest, we suppose, that the heirs must seek out the decedent’s creditors and notify them of the death, or that their failure to do so deprives the creditor of his property without due process of law by the running of the statute of limitations, even though he may not have been aware that it was running.
The same sort of reasoning applies to Gano’s equal protection claim. An heir is entitled to more than publication notice. In re Estate of Barnes, supra. But an heir has a totally different kind of interest from that of a creditor. A decree admitting a will to probate cuts off his right of inheritance and deprives him of property which would otherwise pass to him by operation of law. Hence he is a necessary party to the suit, and jurisdiction over him must be obtained because he will be bound by the judgment. A creditor, on the other hand, is not a party to the proceedings unless and until he chooses to become one. He is not bound by any order of the court until his claim is submitted and passed upon. True, his claim may become barred, but that would be because of the lapse of time and the operation of the (nonclaim) statute of limitations, and not because of any judgment of the court operating directly on his claim. Apart from the practical problems involved in searching out creditors, as opposed to heirs, we think the difference between the interests of the two classes is sufficient to justify the disparate legislative treatment.
We would observe in this connection that the holder of a will giving him the entire estate, who is not also an heir, may be similarly cut off by the lapse of time. Such an inchoate benefi ciary who fails to learn of the death of his testator is barred in nine months from offering the will (K.S.A. 59-617), and thereby loses his right to claim the estate. Such a “beneficiary,” however, is not entitled to notice of the death of his testator or of the institution of probate or administration proceedings. Like the creditor, he has no vested interest in the decedent’s estate and, like the creditor, it behooves him to make periodic inquiry after the health of his would-be benefactor.
We conclude that neither the due process nor the equal protection clause requires notice to a creditor that a decedent’s estate is being administered, and that the notice provisions of K.S.A. 59-2236 are constitutional. Since Gano’s claim was barred by K.S.A. 59-2239, the trial court properly rendered summary judgment in favor of the estate.
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Swinehart, J.:
This is an appeal from an order which allowed the plaintiff-appellee Carnation Company to levy execution on real property owned by intervenor-appellant Edward Detrixhe, based upon a judgment lien. The defendant in the original action, Midstates Marketers, Inc., is not a party to the appeal.
The facts are that Carnation filed a petition on August 10, 1973, against Midstates Marketers, Inc., for $11,500, said sum being the balance due on an open account. Carnation was granted default judgment for said amount on September 20, 1973.
Midstates Marketers, Inc., also had other creditors, one of which was the Small Business Administration. That particular obligation was secured by a first mortgage on the real property which is the subject of this action. Shortly after Midstates Marketers was sued by Carnation and before judgment was entered, Midstates conveyed the realty by warranty deed dated August 31, 1973, to the Small Business Administration. The warranty deed was filed of record on September 17, 1973.
Default judgment in the case of Carnation v. Midstates was granted September 20, 1973, and the journal entry of judgment was entered and filed of record in the clerk of the district court’s office on the same date. The clerk entered judgment in the judgment docket. However, the entry, though correct by name of parties and month and day of judgment, was improperly dated as to year. The date entered was 1974 rather than the correct date of 1973. In July of 1975, S.B.A. quitclaimed its interest in the property to the appellant, and said deed was recorded July 29, 1975. In March of 1977, Carnation instituted proceedings to satisfy its judgment lien on the real estate. The appellant filed a motion to stay execution, which was denied upon the court’s determination that the judgment lien was valid and execution on the subject property was proper. He appealed, alleging that the defect or error in recording in the judgment docket defeated the effective attachment of the judgment lien to the subject property and that such defective entry in the judgment docket did not impart notice of judgment lien to a bona fide third party purchaser.
The judgment lien here involved exists by virtue of statutory law and the exact nature of said lien must be decided by an interpretation of K.S.A. 60-2202 (Corrick):
“Judgments of courts of record of this state, and of courts of the United States rendered within this state, shall be liens on the real estate of the debtor within the county in which the judgment is rendered. The lien shall be effective from the time at which the petition stating the claim against the judgment debtor was filed but not to exceed four (4) months prior to the entry of the judgment. . . .”
The cases cited by defendant are from foreign jurisdictions which generally state that clerical errors in recording a judgment debtor’s name destroy the notice to third parties. Venetsky v. West Essex Bldg. Supply Co., 28 N.J. Super. 178, 100 A.2d 291 (1953); Trust Co. v. Currie, 190 N.C. 260, 129 S.E. 605 (1925); and Holman v. Miller, 103 N.C. 118, 9 S.E. 429 (1889).
K.S.A. 60-258(b) (Corrick), which governs the decision in this case, defined entry of judgment, and provided that a judgment could be entered of record by notation by the clerk on the appearance docket of the judgment entered, or by filing with the clerk of the court a journal entry of judgment. The statute states, “Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing.”
The two quoted statutes make it obvious that entry of judgment occurred on September 20, 1973, the date that the default judgment was rendered and the journal entry embodying it was filed with the clerk of the district court. Thus, according to K.S.A. 60-2202 (Corrick), the lien attached and became effective from the time that Carnation’s petition against Midstates was filed on August 10, 1973. The appellant’s argument that the erroneous recording of the date on the judgment docket affects the validity of the lien is therefore without merit.
The appellant’s argument that the improper entry on the judgment docket failed to impart notice is likewise without merit. K.S.A. 60-2601 (Corrick) defines the duties of the clerk of the district court as regards maintaining dockets and journals. The statute provides that the clerk shall maintain an appearance docket in which civil actions are listed chronologically and assigned consecutive file numbers. The judgment docket is defined as an index, in which the name of each person against whom judgment is entered is to appear in alphabetical order. The entry on the judgment docket is to include the following information: the names of the parties, the amount and nature of the judgment and costs, and the date of its rendition. The judgment docket also reflects the file number assigned to the case. For purposes of this appeal, the other pertinent portion of the statute relates to the clerk’s duty to keep a file on all papers and documents delivered to him in an action. He is to maintain a separate file folder or envelope labeled with the title of the action wherein the papers and documents are filed.
Under this statutory scheme, it is apparent that the appellant’s argument that he had no notice of the lien is without foundation. The entry on the judgment docket is intended to serve as an index which alerts an interested party that judgment has been rendered. Specific and detailed information regarding the action is located in the appearance docket and the court file. A reasonably diligent search of the records available to the appellant would have revealed that judgment was entered on September 20, 1973, for that was the date reflected in the appearance docket and the court file containing the journal entry of judgment. Furthermore, the fact that the judgment date as entered on the judgment docket was erroneous was obvious. Although the judgment docket is alphabetically arranged, entries on each separate page are listed chronologically. On the page of the judgment docket upon which the entry in question appeared, three other judgments were listed, respectively dated July 26, 1973, October 1, 1973, and December 3, 1973. The September 20, 1974, date appeared after the July date. This alone should have alerted a reasonably diligent searcher of the fact that the 1974 date was erroneous.
We have considered the recent decision of the Supreme Court in Luthi v. Evans, 223 Kan. 622, 576 P.2d 1064 (1978), where the court held that an instrument containing a “Mother Hubbard” clause does not create a transfer effective against third parties unless they have actual notice of the transfer. That decision has no application to the case at hand. In fact, it is supportive of our decision, for the court there said.
“We also wish to make it clear that in situations where an instrument of conveyance containing a sufficient description of the property conveyed is duly recorded but not properly indexed, the fact that it was not properly indexed by the register of deeds will not prevent constructive notice under the provisions of K.S.A. 58-2222. (See Gas Co. v. Harris, 79 Kan. 167, 100 Pac. 72.)” (Emphasis supplied, p. 630.)
The defendant’s contention that the subject lien of judgment did not attach is without merit. The statute provisions have been complied with for the recording of said judgment and the correctness thereof is not herein challenged, and upon reasonable care and diligence on the part of the defendant and/or his agent, he could and should have reasonably been placed on notice by the appearance of a judgment docket and entry which on its face was incorrect.
Both arguments of appellant are without merit. The judgment of the trial court is affirmed. | [
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Swinehart, J.:
This is an appeal by Wayne Gatewood, hereinafter referred to as the plaintiff, from the district court’s order dismissing his action in tort for failure to exhibit his demand against the estate of Floyd E. Bosch within the period of time established by K.S.A. 59-2239. Floyd E. Bosch and Kenneth W. McClintock will hereinafter be referred to as the defendant and the special administrator, respectively.
This action arose on April 21, 1974, when the defendant’s cow left her pasture and went onto U. S. Highway 56 in Morris County. The plaintiff’s automobile struck the defendant’s cow. The automobile sustained damages in the alleged amount of $1,400 and the cow died. The plaintiff commenced this litigation against the defendant on December 18,1974. The defendant died intestate on March 5, 1975. Before his death, he had filed his answer and counterclaim for the value of the cow. On December 9, 1975, a determination of descent proceeding was filed in Morris County for the estate of the defendant. On February 13,
1976, the defendant’s counsel filed a suggestion of death on the record in this litigation.
On April 5,1975, the plaintiff procured the appointment of and issuance of letters of special administration to Kenneth W. McClintock. On April 29, 1976, the plaintiff filed a motion pursuant to K.S.A. 1975 Supp. 60-225 to have the special administrator of the estate of Floyd E. Bosch substituted as the party defendant. The special administrator was personally served this motion. However, notice of the hearing on the matter was not personally served on the special administrator.
On July 23, 1976, the trial court sustained the motion for substitution. Both the special administrator and Harold L. Haun, the attorney who had represented Bosch prior to his death and who then represented the special administrator on the motion to dismiss, appeared personally at this hearing. The journal entry was approved by the special administrator and Haun. The motion to dismiss was filed on November 15,1976, argued on January 25,
1977, and a journal entry dismissing the cause of action was filed March 9, 1977.
The plaintiff appeals, alleging the district court erred (1) in finding that the service of process on the special administrator was insufficient and therefore the court lacked jurisdiction over the special administrator; (2) in ruling that the plaintiff did not properly revive the action by proper substitution of parties pursuant to K.S.A. 60-225; (3) in determining that the plaintiff failed to complete the revivor of this action by not completing the revivor and substitution of parties within 9 months after the date of death of defendant; and (4) in ruling that the plaintiff failed to commence his action against the special administrator pursuant to K.S.A. 59-2239 and further that the plaintiff failed to have appointed, and file suit against, the special administrator within two years as provided by K.S.A. 59-2239(2) and K.S.A. 60-513.
We will consider first the plaintiff’s allegations that the court erred in ruling that it lacked jurisdiction over the special administrator because the plaintiff failed to comply with the requirements of K.S.A. 1975 Supp. 60-225(a). We first note that revivor (or substitution of parties) is purely a matter of statutory law and strict compliance with statutory requirements must be shown before a revivor is effective. Thompson v. Bennett, Administrator, 196 Kan. 129, 132, 410 P.2d 291 (1966).
K.S.A. 1975 Supp. 60-225 is set out in pertinent part below:
“(a) Death of party. (1) Where claim not extinguished. If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”
According to this statutory scheme, two documents must be filed of record: a suggestion of death on the record and a motion for substitution. The statute provides that the motion for substitution, together with a notice of hearing on the matter, may be served on one who is already a party in the same manner that pleadings are served under K.S.A. 1975 Supp. 60-205. However, the requirements for service of the motion on a non-party are most stringent: he must be served in the same manner as process is served. It is unnecessary to discuss in detail the methods for service of process established by Article III of Chapter 60, Kansas Statutes Annotated. It is sufficient to point out that generally personal service is required.
The facts of this case show that the special administrator was personally served with the motion for substitution on April 29, 1976. He was not personally served with the notice of hearing, as required by K.S.A. 1975 Supp. 60-225(a)(l). In spite of this technical irregularity, however, we find that the trial court was in error in ruling that the plaintiff’s service of process was insufficient to give the court jurisdiction over the special administrator. K.S.A. 60-204 (Corrick) provides:
. . In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status or property were subject to being affected.” (Emphasis added)
Personal service of the motion constituted substantial compliance with the requirements of Article III, and the special administrator was made aware of the pending action, for he personally appeared at the hearing on the motion for substitution.
We next consider the remainder of the issues raised on appeal by the plaintiff. Those issues concern the time limitations imposed by K.S.A. 59-2239 on presenting claims against the estate of a decedent. Examination of the court’s journal entry dismissing the action reveals that the court’s principal reason for dismissing the action was that it was barred by the statute of limitations established by K.S.A. 59-2239. In this case the suggestion' of death on the record was filed on February 13, 1976, and the plaintiff did nothing to substitute parties for some time. The plaintiff had the special administrator appointed on April 5, 1976, and served the motion to substitute on him on April 29, 1976.
K.S.A. 59-2236 et seq. is the portion of the probate code that establishes the mechanism for presenting demands against an estate. Briefly stated, in order to collect from an estate, a creditor must “exhibit his demand” against the estate in the probate court (now a division of the district court). The statute in effect at the time these proceedings took place (K.S.A. 1975 Supp. 59-2236) provides that claims must be exhibited within 6 months of the date of the first publication of the notice to creditors or be forever barred.
K.S.A. 59-2238 (Corrick) defines the meaning of “exhibiting a demand” as it relates to lawsuits against a decedent’s estate. Subsection (1) of that statute provides that when an action is pending at the time of the decedent’s death, as was the case here, it is considered a “demand legally exhibited” from the time the action is revived. Revivor is, of course, governed by K.S.A. 60-225, as discussed above.
K.S.A. 1975 Supp. 59-2239 sets up a time frame within which “all demands” (emphasis added) must be exhibited against an estate or be barred. The phrase “all demands” clearly includes demands in the form of lawsuits against the decedent’s estate, made under K.S.A. 59-2238 (Corrick). Case law establishes that K.S.A. 59-2239 is a statute of limitations. In re Estate of Wood, 198 Kan. 313, 316, 424 P.2d 528 (1967). K.S.A. 1975 Supp. 59-2239 provides that no creditor “shall have any claim against or lien upon the property of a decedent other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed within nine (9) months after the death of the decedent.” Once the administrator or executor is appointed, publication of the notice to creditors would occur almost immediately, and K.S.A. 1975 Supp. 59-2239 and K.S.A. 1975 Supp. 59-2236 both require that demands be exhibited within 6 months of publication or be barred.
K.S.A. 1975 Supp. 59-2239(2) provides a limited exception to the 6-month and 9-month limits generally imposed on those making demands against the estate. It provides that an individual who has a tort claim against the decedent may file suit against the personal representative at any time within the statute of limitations for the tort action itself (K.S.A. 60-501 et seq.), notwithstanding the limitations of K.S.A. 1975 Supp. 59-2239.
Under the statutory scheme described above, the plaintiff obviously had available several ways to proceed against the estate:
(1) petition for administration or probate by December 5, 1975 (9 months after the defendant’s death); revive the action pursuant to K.S.A. 60-225 within 6 months after publication of the creditors’ notice and proceed against the substituted party in district court where the action was originally filed;
(2) petition for administration or probate by December 5, 1975 (9 months after the decedent’s death), and then, without reviving the original action, file suit against the estate by serving process on the administrator or executor under K.S.A. 59-2238(2) (Corrick). If he had chosen this course, K.S.A. 1975 Supp. 59-2239 would allow him two alternatives as to when to commence the action: either within 6 months of the publication of the creditors’ notice, or within the two year statute of limitations for the tort action. (See K.S.A. 1975 Supp. 60-513.)
The key element that is missing from the plaintiff’s course of action is the petitioning for probate or administration. It should be noted that K.S.A. 59-2221 (Corrick) provides that “any person interested in the estate” may petition for probate or administration of an estate. Clearly the plaintiff, who claims $1,400 in tort damage against the estate, is an interested party who could have petitioned for probate or administration. We need not decide whether the plaintiff’s petition to have the special administrator appointed pursuant to K.S.A. 1975 Supp. 59-710 would satisfy the requirements of K.S.A. 1975 Supp. 59-2223, because even if it would, it was not done until April 5, 1976, four months after the December 5, 1975, cut-off date. Since the plaintiff failed to petition for probate or administration by December 5, 1975, the trial court was correct in ruling that the statute of limitations contained in K.S.A. 1975 Supp. 59-2239 barred his claim.
Even though the plaintiff did fail to petition for probate or administration by December 5,1975, he still could have saved the situation by filing suit directly against McClintock pursuant to K.S.A. 1975 Supp. 59-2239(2) by April 21, 1976. This was a very realistic possibility since McClintock was appointed special administrator on April 5, 1976. But the plaintiff failed to do this also, since he did not serve process on the administrator until April 29, 1976, eight days too late.
The plaintiff advances several arguments that he claims excuse his failure to initiate his action before the tolling of any of the above statutes of limitations.
First, he points to the language in K.S.A. 1975 Supp. 59-2239(1) that excepts liens against a decedent’s property existing at the time of decedent’s death. He claims that he has a pendente lite lien against the defendant’s property by virtue of K.S.A. 60-2201 and 2202 (Corrick). The fallacy of this argument is that the pendente lite lien only applies to property which is the subject of the pending action.
The plaintiff also argues that the time limitations of K.S.A. 1975 Supp. 59-2239 do not apply to pending actions that have been revived under K.S.A. 1975 Supp. 60-225. He argues that the only time limit to be imposed on him is that he must move to substitute within a “reasonable time” after the filing of the suggestion of death on the record, which in this case occurred on February 13, 1976. This argument lacks merit in light of the plain meaning of the statutory language. Section 59-2238 speaks in terms of a pending action constituting a legally exhibited demand as of the date of revivor, and section 59-2239 requires that all demands be exhibited within 6 months of the publication of the creditors’ notice. The statute further provides that “no creditor” has any claim against the estate unless there has been a petition for probate or administration within 9 months of the death. The only exception made is for those creditors having liens as of the date of death. Claimants reviving actions were not excluded; therefore it must be presumed that they were intended to be included under K.S.A. 1975 Supp. 59-2239, the nonclaim statute.
The plaintiff also argues that since he could not begin the revivor procedure until a suggestion of death on the record was made, it would be unfair to permit the opposing party to delay the revivor beyond the limitations of K.S.A. 59-2239 by not filing the suggestion of death within that time. There are two fallacies in this argument. First, the plaintiff himself could have filed a suggestion of death. Second, plaintiff could have chosen one of the two methods that do not require revivor, and thus could have sidestepped the delay in filing of the suggestion of death on the record.
Although the trial court was in error in ruling that the plaintiff had failed to properly substitute parties pursuant to K.S.A. 1975 Supp. 60-225 and that the court therefore lacked personal jurisdiction over McClintock, the decision is affirmed because the court was correct in determining that the plaintiff’s claim was barred by all pertinent statutes of limitations.
The trial court’s judgment is affirmed. | [
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Rees, J.:
This is an action for false arrest. A jury verdict in favor of plaintiff was returned in the amount of $25,000 for compensatory damages. The trial court reduced the award by $10,000 and entered judgment for $15,000. Both sides appeal.
1. Defendants first contend the trial court erred in failing to grant them a directed verdict. They argue there was no evidence that either of them directed, requested, commanded or otherwise caused the plaintiff’s arrest. We disagree.
On review of a ruling on a motion for a directed verdict, this court is governed by the same standards applicable to the trial court. Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211 (1974). The question here presented is whether there was any substantial evidence to support the jury finding that the defendants were liable for false arrest. Bishop v. Capitol Life Ins. Co., 218 Kan. 590, 592, 545 P;2d 1125 (1976); Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 485 P.2d 1309 (1971).
One seeking to recover for false arrest must prove he was unlawfully caused to be arrested by the defendant and, though it is not necessary that the arrest be directly ordered by the defendant, it must appear that the defendant either instigated it, assisted in it, or by some means directed or encouraged it. Thompson v. General Finance Co., Inc., 205 Kan. 76, 88, 468 P.2d 269 (1970); Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 494, 241 P.2d 1192 (1952). As to what constitutes direction or instigation of an arrest so as to render a defendant liable for false arrest, 32 Am. Jur. 2d, False Imprisonment, § 35, says in part:
“What is direction or instigation sufficient to impose liability on a private citizen for a wrongful arrest made by an officer, within the rule imposing liability on a citizen at whose request or instigation an arrest is made without a warrant, depends on the facts of each case. It is not necessary, to impose liability, that the defendant expressly direct the arrest. Nor need he be present when the arrest is actually made. However, he must take some active part in bringing the arrest about — that is, there must be some affirmative act on his part which induces the officer to make the arrest. . . .” (pp. 98-99.)
The record discloses that defendant Mrs. Cundiff was a Johnson County landowner. Plaintiff was the lessee of 320 acres which included most of the land surrounding her residence. Excluded from the lease was that land “which Lessor is now using for her private residence — yard, driveway, private lake (immediately east of the residence), an area of approximately five (5) acres.” Plaintiff grazed cattle on the leased acreage. Since 1971, he had used a driveway which runs by Mrs. Cundiff’s residence to gain access to the leased pasture. The evidence at trial was conflicting as to whether the driveway used by plaintiff was the particular driveway excluded by the lease. The driveway appears to have been plaintiff’s only means of access to the pasture other than by driving across hay and brome fields. Plaintiff or his employee used the driveway at least every two or three days to enter the pasture to feed the cattle.
In late 1972 or early 1973, a dispute arose between plaintiff and Mrs. Cundiff concerning damage to the driveway allegedly caused by plaintiff’s truck. Mrs. Cundiff informed either plaintiff or his employee that further use of the driveway would not be permitted.
Defendant Bob Cundiff frequently visited his mother, Mrs. Cundiff, on weekends and performed maintenance duties around the farm. On the morning of February 3, 1973, he was present at his mother’s residence. Mrs. Cundiff had left the farm that morning to go to her other residence in Kansas City. Before leaving, she instructed her son to keep the gate to the driveway locked and to deny plaintiff access.
Plaintiff and his employee drove up to the gate and asked Bob Cundiff to unlock it. He refused and threatened to call the sheriff if plaintiff attempted to enter. Plaintiff and his employee drove away. They returned approximately twenty minutes later and placed some railroad ties across a ditch next to the locked gate. Plaintiff unfastened the strands of barbed wire from one fencepost and pulled the wire back to permit entry. Plaintiff then drove his truck across the ditch, through the fence, and down the driveway to the pasture. As he proceeded along the driveway, plaintiff either swerved to avoid Bob Cundiff, who was standing in the middle of the driveway, or intentionally drove at him. Which occurred depends upon whose testimony is believed.
Bob Cundiff twice telephoned his mother in Kansas City that morning and informed her of the events transpiring at the farm. She twice advised him to call the sheriff. Taking that advice, he called the sheriff’s department and summoned them to the scene.
Ultimately, three sheriff’s cars arrived. The deputies talked briefly with both Bob Cundiff and the plaintiff. There is evidence that Bob Cundiff told one deputy the plaintiff had taken down or cut “our fence” and had driven down “our private drive” after being told to stay out. Bob Cundiff testified he told a deputy, “That man came right at me and veered off” and he asked the deputy, “What can we do about it . . .” A deputy testified that he was told by Bob Cundiff that plaintiff had destroyed Bob Cundiff’s wire. Plaintiff observed Bob Cundiff engaging in an animated conversation with a deputy and pointing at the plaintiff just prior to the arrest. After talking with Bob Cundiff, one of the deputies accused plaintiff of having cut the fence and intruding. There is no evidence in the record that Bob Cundiff at any time attempted to explain to the sheriff’s deputies that plaintiff was his mother’s lessee.
Plaintiff was handcuffed by a deputy. He was driven to the Johnson County courthouse in Olathe where he was briefly interrogated and then detained in the jail area prior to release less than two hours later. The sheriff’s report of the incident listed the offense as “destruction of property.” No formal charges were filed and no warrant ever issued.
Although the foregoing does not indicate that either defendant expressly directed the sheriff’s officers to arrest plaintiff, it includes substantial evidence upon which to base a finding that Bob Cundiff instigated the arrest. The fact that a defendant instigated a false arrest may be established by circumstantial evidence. Knupp v. Esslinger, 363 S.W.2d 210 (Mo. App. 1962); Sylvester v. Buerhaus, 71 R.I. 335, 45 A.2d 150 (1946).
Defendants contend that an individual cannot be held liable for false arrest if the officers making the arrest conduct an independent investigation of the situation prior to making the arrest. We do not quarrel with the rule that the mere giving of information to a peace officer tending to show that a crime has been committed is not enough to render the informer guilty of resulting false imprisonment by the officer. 21 A.L.R.2d Anno.: False Arrest — Liability — Private Person, § 23, p. 694; 32 Am. Jur. 2d, False Imprisonment, § 35, p. 100. One is not liable for false arrest where he merely states to a peace officer his knowledge of a supposed offense and the officer makes the arrest entirely upon his own judgment and discretion. Jensen v. Barnett, 178 Neb. 429, 134 N.W.2d 53 (1965).
In the present case there was substantial evidence that Bob Cundiff did more than merely supply the deputies with information. The evidence was sufficient to support a finding that he actually instigated or encouraged the arrest.
The record discloses little evidence that the deputies conducted an independent investigation beyond questioning Bob Cundiff and briefly speaking with plaintiff. The trial testimony of the deputies shows they remembered very little about the incident. One deputy testified he remembered that both parties to the disturbance were interviewed and “the complainant stated that the suspect cut some wires to his fence and entered his property. And he wanted to stop him.” The deputies noticed that the barbed wire had been removed from one of the fenceposts, but “couldn’t decide who was right or who was wrong, but to make sure, we brought him in so we could make some phone calls to get more facts on the case.”
The jury was correctly instructed that defendants were not liable for false arrest if they merely informed the officers of the circumstances and left it to the officers to take such action as the officers deemed proper. The jury apparently determined that Bob Cundiff did more than merely inform the officers of the circumstances of the disturbance, and we are unable to disturb that determination.
Defendants argue that even if they did instigate plaintiffs arrest, the trial court still erred in failing to hold as a matter of law that they were free from liability because defendants had legal cause and justification for their actions. Again, we do not quarrel with the general rule that a party may not be held liable for false arrest where legal cause or justification existed for the restraint. Ordinarily, the owner of property, in the exercise of his inherent right to protect it, is justified in restraining another who seeks to interfere with or injure it where the restraint is reasonable in time and manner. 32 Am. Jur. 2d, False Imprisonment, § 74, p. 134.
The jury in the present case was instructed that defendants were not to be held liable if the charge made by them was well-founded and justified. We must conclude the jury found that the charge by Bob Cundiff was not well-founded or justified. We find the previously outlined evidence, together with inferences reasonably drawn therefrom, sufficient to support that determination by the jury.
Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of candid persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. Schmid v. Eslick, 181 Kan. 997, Syl. 5, 317 P.2d 459 (1957). However, the rule is not applicable in the present case. The evidence was such that the minds of candid persons could draw differing inferences and arrive at opposing conclusions.
2. Defendants next contend the trial court erred in failing to direct a verdict in favor of Mrs. Cundiff. Defendants argue there was no evidence upon which Mrs. Cundiff could be held directly or vicariously liable for false arrest of plaintiff.
What constitutes agency and whether there is any competent evidence reasonably tending to prove the relationship is a question of law. Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 370, 548 P.2d 719 (1976); Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 453 P.2d 486 (1969). It is our province to determine if the record reveals any substantial competent evidence on 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). This court must disregard any conflicting evidence or inferences and accept as true the evidence and inferences which support or tend to support the findings of the trial court. Highland Lumber Co., Inc. v. Knudson, supra, p. 371; Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, 524 P.2d 690 (1974).
There is substantial evidence of an agency relationship present in the record of this case. Plaintiff testified that prior to the incident Mrs. Cundiff advised him he should contact her son as to all her business transactions. Plaintiff testified, “[S]he told me Bob would be from there on, to do all transactions with him because she wasn’t going to be involved any more . . .” Bob Cundiff testified that he spent weekends with his son at his mother’s farm; he and his son did the maintenance work around the farm; and he considered the maintenance their responsibility. It appears Bob Cundiff was present during all significant negotiations between Mrs. Cundiff and the plaintiff. The evidence is undisputed that on the morning of the incident Mrs. Cundiff told her son to keep the gate locked if plaintiff should try to use the driveway. Later, Bob Cundiff twice called his mother and was told on both occasions to call the sheriff. Bob Cundiff testified the decision to call the sheriff was not a result of his own independent judgment but was a result of his telephone conversations with his mother.
We conclude the evidence was sufficient to require the submission of the agency question to the jury. An agency may be shown by circumstantial evidence. Linscott v. Conner, 85 Kan. 865, 118 Pac. 693 (1911). The jury was fully and correctly instructed as to agency. Its finding that Bob Cundiff was his mother’s agent must stand.
3. Defendants argue the trial court erred in allowing plaintiff to amend his prayer for damages. At the close of all the evidence, the trial court, on defendants’ motion, struck plaintiff’s claim for punitive damages but, over defendants’ objection, permitted plaintiff to amend his prayer for actual damages from $10,000 to $50,000.
Without citations or authority, defendants first contend allowance of the amendment violated K.S.A. 77-201 First, which sets forth the rule of statutory construction that “[t]he repeal of a statute does not . . . affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. . . .” We do not find the rule applicable.
Defendants next contend the allowance of the amendment constituted an arbitrary abuse of discretion by the trial court. K.S.A. 60-215 governs the amendment of pleadings and provides that leave to amend be freely given when justice so requires. Amendments after the commencement of trial are within the discretionary powers of the trial court; the allowance or denial of an amendment will not constitute grounds for reversal unless it affirmatively appears that the substantial rights of the adverse party were affected by the trial court’s ruling, and, further, that the ruling was a clear abuse of discretion. Garcia v. Southwestern Bell Tel. Co., 216 Kan. 591, 533 P.2d 1242 (1975); Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 522 P.2d 438 (1974); Commercial Credit Corporation v. Harris, 212 Kan. 310, 510 P.2d 1322 (1973). The trial court is given wide latitude and discretion in permitting or refusing amendments of pleadings in the interest of justice. Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P.2d 914 (1967). We recognize such discretion is not unbridled. Walker v. Fleming Motor Co., 195 Kan. 328, 330-331, 404 P.2d 929 (1965). As a general rule, however, amendments to pleadings are favored in law and shall be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits. Walker v. Fleming Motor Co., supra, p. 330. Trial courts are given broad discretionary powers concerning the amendment of pleadings, before or after judgment, when the amendment does not change substantially the claim or defense. Collins v. City Cabs Inc., 192 Kan. 394, 396, 388 P.2d 597 (1964).
In the present case, the claim was for damages for false arrest. The claim was not changed by the amendment — only the amount sought. Collins v. City Cabs Inc., supra, p. 396. Although the trial court’s reasons for allowing the amendment are less than crystal- clear, we find implicit in the court’s action a finding that the evidence did support an award in excess of $10,000.
We are unable to conclude that the trial court abused its discretion in this case. However, we believe the allowance of an increase of a prayer for monetary recovery after all the evidence is in is not good practice where nothing has developed during trial demonstrating plaintiff’s actual damage to be other than that known to him at the commencement of trial. The defendants have failed to show they were substantially prejudiced. Although defendants say they would have tried the case differently if the compensatory damages claim had been for $50,000 from the outset, we perceive no demonstration of how the defense of the case would otherwise have been conducted.
4. Plaintiff contends the trial court erred in refusing to submit the issue of punitive damages to the jury. We disagree.
Kansas has long recognized that an award of punitive damages may be made incident to false imprisonment or false arrest. Wiley v. Keokuk, 6 Kan. 94 (1870). In all three of the most recent Kansas false arrest cases, the additional issue of punitive damages was permitted to go to the jury and an award of punitive damages was made. Sweaney v. United Loan & Finance Co., 205 Kan. 66, 468 P.2d 124 (1970); Thompson v. General Finance Co., Inc., supra; Hammargren v. Montgomery Ward & Co., supra.
Punitive damages are recoverable in an action for personal injury based on tortious conduct involving malice, willfulness or wanton disregard of the plaintiff’s rights. Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975); Beverly v. McCullick, 211 Kan. 87, 505 P.2d 624 (1973).
Upon a full review of the record on appeal, we conclude the trial court did not err in its determination that the issue of punitive damages should not go to the jury for the reason that the evidence was insufficient to support a finding of the requisite conduct incident to the tort of false arrest.
5. Plaintiff also argues that the trial court erred in granting defendants’ motion for remittitur and in reducing the judgment from $25,000 to $15,000 without plaintiff’s consent and without giving plaintiff the option of a new trial.
The record shows that following the trial defendants made motions for new trial, judgment notwithstanding the verdict, and remittitur. Those motions were argued to the court at which time the motions for new trial and judgment notwithstanding the verdict were denied. However, the court took the motion for remittitur under advisement. Subsequently, a journal entry and memorandum decision were filed by the court granting defendants’ motion for remittitur and ordering the reduction of the verdict in the amount of $10,000. In neither the journal entry nor the memorandum decision did the trial court state the verdict was being reduced with the consent of the plaintiff or that plaintiff had been offered the option of a new trial. Nothing in the record indicates that plaintiff consented to the reduction or that plaintiff was ever offered the option of a new trial in lieu of the reduced verdict.
The law in Kansas concerning remittitur was set forth in Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976), as follows:
“The authorities unanimously hold that a court, whether trial or appellate, is powerless to reduce the verdict of the jury in an action for unliquidated damages and render judgment for a less amount, unless the party in whose favor the verdict was rendered consents to the reduction, since a reduction under such circumstances invades the province of the jury, and violates the Seventh Amendment right to jury trial under the United States Constitution. The proper course, if a remittitur is refused, is to set aside the verdict and grant a new trial. (Annot., 53 A.L.R. 779 [1928]; Kennon v. Gilmer, 131 U.S. 22, 33 L.Ed. 110, 9 S.Ct. 696; Dimick v. Schiedt, 293 U.S. 474, 79 L.Ed. 603, 55 S.Ct. 296; and Annot., 95 A.L.R. 1163 [1935].) Language to the contrary in Rooks v. Brunch, 202 Kan. 441, 449 P.2d 580 and Madison v. Wichita, Sedgwick County Health Dept., 213 Kan. 736, 518 P.2d 935 is disapproved.” (p. 276.)
Accordingly, the trial court erred in reducing the compensatory damages award from $25,000 to $15,000 and the judgment entered by the trial court on the jury’s verdict in accordance with its journal entry filed March 25, 1977, is reinstated.
Having fully and carefully reviewed the facts and circumstances as disclosed by the record on appeal, we agree with the trial court and conclude that the verdict for compensatory damages was too large by $10,000 and should be reduced by that amount.
Therefore, the judgment for compensatory damages is reduced to $15,000 upon the condition that the plaintiff accept the reduced amount of compensatory damages in writing within ten (10) 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 are granted a new trial as to both liability and compensatory damages. | [
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MEYER, J.:
This is an appeal in an adoption proceeding which was instituted in the probate court of Leavenworth County, Kansas, on December 27, 1976, by the appellees, David and Marjorie Seamon, husband and wife. Appellees allege that the natural mother’s (Clara Foster Aslin, appellant) consent was unnecessary because of her failure and refusal to assume the duties of a parent for two consecutive years next preceding the filing of this adoption petition, pursuant to K.S.A. 59-2102(3).
The trial court found that appellant placed the two minor children, Linda and Tina Foster, with appellees in November, 1973. Marjorie Seamon testified before the district court that she had cared for the children for about a month in late 1973, but had then returned them to the natural parents. Mrs. Seamon testified that the children have lived with her continuously since January, 1974. Testimony of the other witnesses began with events occurring on September 18, 1974. Therefore, appellees’ continuous care of the minor children began sometime in January, 1974.
Appellant lived with William L. Thompson, the alleged father of the children, from 1972 until January, 1974. At that time, after a violent quarrel with appellant, Thompson took the children to the home of his sister, the appellee. The children remained with appellees until September 18, 1974. On that date, appellant apparently signed a hand-written note indicating that appellees could care for the children. Appellees thereupon moved from Leavenworth, Kansas, to Missouri, and subsequently back to Leavenworth. Appellant claims she lost contact with appellees during that time.
On September 24, 1975, appellant married Darwin Aslin. The trial court found that on November 12, 1975, appellant and her husband contacted the Leavenworth county attorney’s office regarding the recovery of her two children. The court also found that appellant asked appellees to return the children to her on November 12, 1975, and again on December 25, 1976; appellees refused. On December 27, 1976, appellees filed a petition for adoption of Tina and Linda Foster. Although the two children were born out of wedlock, and William Thompson had never been legally determined to be their father, he signed a consent to the adoption. Appellees alleged that appellant had failed to assume her parental duties for two years prior to the filing of the adoption petition, and that pursuant to K.S.A. 59-2102(3), the natural mother’s consent to the adoption was unnecessary.
The trial court found that William Thompson was the natural father and had consented to the adoption; that the natural mother had failed to assume her parental duties for two years previous; and appellees were granted their petition for adoption of the Foster children. The trial court stated that parental obligation requires more than appellant’s sporadic attempts to show concern, affection, and interest toward the children.
K.S.A. 59-2102 reads in pertinent part:
. . Before any minor child is adopted, consent must be given to such adoption:
(1) by the living parents of a legitimate child or
(2) by the mother of an illegitimate child or
(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent . .
The trial court based its decision on K.S.A. 59-2102(3) and the applicable case law. In In re Herbst, 217 Kan. 164, 535 P.2d 437, the natural mother had visited her child three times and had given the child one present during the relevant two-year period. The Kansas Supreme Court stated that three visits were not sufficient to evidence assumption of parental duties. In In re Sharp, 197 Kan. 502, 419 P.2d 812, the court held that the natural mother’s visit to her child six days before the filing of the adoption petition was insufficient to necessitate her consent to the adoption.
We think that the instant case is distinguishable from Herbst and Sharp, supra. Although appellant Aslin’s contacts with her children were few, she did not approach appellees for the purpose of visiting her children; she went to recover her children with the idea that she would resume full parental duties from that date on.
We find that the trial court erred in ruling that the mother failed to assume duties of a parent for two years. The undisputed facts disclose that the mother was prevented from exercising those duties:
While we feel that the foregoing error of the trial court is sufficient in itself to require reversal of its decision, it can also be said that equitable considerations would favor the appellant as hereinafter set out.
In deciding custody as between natural parents, the weight of Kansas authority is that the best interests and welfare of the child are' paramount. When the dispute is between a parent and a stranger, the parent has rights superior to all others absent a finding of unfitness. In Gardner v. Gardner, 192 Kan. 529, 389 P.2d 746, it was stated:
“Where the contest for child custody is between a parent and a third party, a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against the third party or others who have no permanent or legal right to custody. . . (p. 533)
Clara Aslin had never been found to be unfit, was willing and able to care for her children, and was the only person who could claim legal custody. If she had filed a petition for a writ of habeas corpus on December 25, 1976, the court would have been obligated to return the children to her. In In re Rhea, 207 Kan. 610, 485 P.2d 1382, the natural mother had voluntarily “given” her baby to her sister for the sister to raise as her own child. Nearly two years later (minus one week), the natural mother filed a petition for habeas corpus to regain custody. The trial court awarded custody to her sister, but the Kansas Supreme Court reversed, stating, “Our cases are legion that a minor child cannot be the subject of a valid gift and a parent cannot merely by giving away a child be deprived of the right to its custody.” (Rhea, supra, at 612.) The Kansas court said that despite the trial court’s good faith in attempting to determine the best interests of the child, the decision of the trial court could not be upheld upon any ground, as there had not been a finding of unfitness. The natural mother’s right to her child was superior to that of any other person.
A similar situation existed in In re Eden, 216 Kan. 784, 533 P.2d 1222. The natural father had entrusted his three children to another family when he was financially unable to provide for them. Several months later, the foster parents filed a dependency and neglect petition to enable them to sign consents for the children’s medical treatment. Temporary legal custody was given to the foster parents. Twenty-one months after he had left the children with the foster parents, the natural father attempted to regain custody. The trial court denied his attempt. The Kansas Supreme Court held that because the father had never been adjudged unfit, the district court had no choice but to return the children to their father. The court also mentioned that the father’s improved circumstances indicated that custody should be awarded to him. The court in Eden said that the “best interest of the children” test has always been used when the custody dispute is between two parents. Absent a finding of unfitness, the natural parent’s right to his children must prevail.
In both Rhea and Eden, supra, the parents had left their children with others for a period of nearly two years. In both instances, the Kansas Supreme Court said that custody of the children was with the natural parent. In the instant case, as in those two cases, the parent has not been found unfit. It is not necessary to contemplate whether there was evidence to support a finding of unfitness, but we address the issue briefly.
There was no evidence that appellant ever abused or neglected her children while they lived with her. The only evidence that might support a finding of unfitness is the fact that Clara waited more than a year before she first demanded the return of the children. Relinquishing the children to the Seamons could be construed as evidence of her concern for the children’s best interests. Clara was financially unable to support a family of three by herself, as was the father in Eden, supra. As in Eden, Clara’s circumstances are now substantially improved. The social worker’s report stated that Clara maintains a meticulous, well-ordered home; that she has been working steadily for some time; and that her husband appears to be an intelligent, stable person. The Seamons’ natural children have a long and consistent history of not completing school. Conditions are so crowded at the Seamons’ home that the children have to sleep in shifts. Clara would have only two children to care for; the Seamons have to divide their attention among many.
The provision of K.S.A. 59-2102 allowing adoption without the parent’s consent if the parent has failed to assume parental duties for the previous two years should not be construed as contrary to Eden and Rhea, supra. Yet, the trial court’s construction of legislative law, K.S.A. 59-2102(3), violates the well-established court-made law. That could not have been the intent of the legislature in enacting K.S.A. 59-2102(3). That particular provision was probably included so that those “hard-to-locate, occasional-drop-in” parents who seemingly have little or no interest in their children, would not prevent the children’s being adopted into a good, loving home. That is not the case here. Clara Aslin did not just attempt to visit her children; she demanded that they be returned to her, so that she could resume her parental duties.
On December 25, 1976, after being told for the third time that her children would not be returned to her, Clara threatened the Seamons with criminal charges of kidnapping. An attorney would know that such a charge would be unwarranted and futile, and that the proper action is habeas corpus. As a person not learned in the law, however, Clara reasonably believed that either the county attorney or the police would aid her in enforcing her legal right. Both agencies refused to take action. Her threat gave the Seamons warning that she was going to take legal action to regain her children, and the Seamons petitioned for adoption two days later.
After years of precedent favoring the natural mother’s rights, custody of the children was determined by who filed legal action first. The Seamons filed first, so they won custody.
In summary, the mother did not merely visit her children two times; she demanded that they be returned to her on three occasions, all within the statutory time. Her failure to recover them through no fault of her own should not now be held against her.
While the foregoing portion of this opinion is sufficient reason to reverse the trial court’s decision, there is an additional reason why that decision must be reversed. The court below was without jurisdiction to grant the adoption. The appellees did not have the written consent of any person legally authorized to consent to the adoption (see K.S.A. 59-2102). The father of an illegitimate child does not have authority under the laws of the state of Kansas to place a child for adoption. In the absence of a judicial determination of paternity, the father of an illegitimate child is not a “parent” pursuant to K.S.A. 59-2102(3). The consent of the mother was therefore indispensable, and in the absence of the mother’s consent the trial court was without jurisdiction to grant the adoption.
We are aware that the court in the adoption proceedings found that William Thompson was the natural father of the Foster children. We hold, however, that the father of illegitimate children must be adjudicated the natural father, in proper proceedings, before he can execute a valid consent to the adoption of those children.
The judgment of the trial court is reversed and remanded to the district court with instructions to grant immediate custody of her children to Clara Aslin. | [
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Meyer, J.:
This is an action for conversion brought by a secured creditor, the North Central Kansas Production Credit Association (PCA), against Iowa Beef Processors, Inc. (IBP), the purchaser of livestock in which PCA had a perfected security interest, and the sellers of the livestock, Galen and Mary Boese. The trial court entered judgment in favor of the defendant, IBP, on its motion for summary judgment and PCA has appealed. At the same time, the trial court entered judgment against Galen and Mary Boese on PCA’s motion for summary judgment against them. No appeal has been taken from the judgment against the Boeses.
The material facts are as follows:
Boese sold cattle in which PCA had security interests on the following occasions:
Date__ No. of Head Purchase Price
1. December 3, 1973 20 cows $ 7,750.00
2. January 23, 1974 18 heifers 7,600.00
3. February 19, 1974 34 steers 17,541.74
4. March 17, 1974 60 heifers 23,568.85
2 steers 869.90
5. July 10, 1974 94 heifers 36,429.16
The separate checks for the first three sales were all made payable to Boese only and were either deposited in his personal checking account and a check issued to PCA for the sale or they were endorsed by Boese to PCA.
On March 19, 1974, PCA’s vice president, Darwin Householder, inspected Boese’s feeding operation and noted a shortage of cattle. Boese consequently advised PCA of the March 17, 1974, sales (which were to IBP), adding that he had not yet been paid. Householder told Boese to mail or deliver “a check for the proceeds of the 67 head of cattle. . . .” Although Boese never did deliver payment, PCA took no further action until June of 1974.
On March 21, 1974, Boese endorsed and cashed both March 17 transaction checks, but did not remit the proceeds to PCA.
In late June of 1974, Householder made an informal visit to Boese’s, discovered fewer cattle than PCA thought there should be, and called Boese to meet with him at PCA’s Mankato office.
On July 1, 1974, at Mankato, Householder and James D. Ganson (PCA’s president) confronted Boese with the cattle count discrepancy. Boese initially denied the discrepancy, but then admitted that he had sold some cattle without forwarding the proceeds to PCA (PCA, of course, already knew this because they had not received the proceeds of the March 17 sale). Boese told PCA he had used the proceeds to cover losses in grain speculation.
On July 3, 1974, Ganson and Householder inspected Boese’s operation and counted his cattle. They told Boese that he could determine when the cattle were ready to be sold and could make the sale.
Householder visited Boese’s feedlot again on July 8, 1974. Boese told Householder that a prospective buyer for the larger cattle was coming that night, but if the buyer did not offer what Boese considered a fair price, he would show the cattle to other buyers.
On July 10, 1974, Boese sold IBP 94 heifers for a net purchase price of $36,429.16. IBP issued its check payable to Galen H. Boese. Boese took this check to the Fremont Casino in Las Vegas, Nevada, cashed it, and lost virtually all of it. In a federal court action to determine ownership of the check (as among IBP, PCA, and the Fremont Casino), the court awarded the check to the Fremont Casino.
In response to IBP’s request for admissions concerning PCA’s practice of letting the buyer sell cattle and handle the proceeds, PCA replied:
“Admit that on two occasions one other PCA borrower sold cattle, but failed to turn over the proceeds to PCA; but PCA did not change its custom of allowing its borrowers to sell cattle without prior express permission, relying on them to turn over the proceeds to apply against their debts either by endorsing the purchaser’s check over to PCA or by depositing the proceeds in their personal bank accounts and issuing checks to PCA.”
We have fully considered Clovis National Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 (1967) and Garden City Production Credit Assn. v. Lannan, 186 Neb. 668, 186 N.W.2d 99 (1971); together with North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., 223 Kan. 689, 577 P.2d 35 (1978). We note that in the latter case, the court followed the rationale of the Lannan case.
It appears to us that neither PCA nor IBP followed proper business standards. On one hand, PCA permitted grossly improper conduct on the part of its debtor. Although PCA knew, or should have known, that the debtor was not remitting proceeds to them (specifically from the March 17 sale), they waited months before doing anything about it. Even then, they did nothing to change the situation. Had PCA taken corrective action then, a major part of this litigation would have been avoided.
On the other hand, IBP, while attempting to invoke equitable relief, was also guilty of using careless business methods. They had the temerity to argue before the district court that they were too large a business to be bothered with checking security agreement records every time they made a purchase. The trial court summarily rejected their argument, and we agree.
We feel that the equity stance of the parties is comparable, and that equity should not come to the aid of either.
In line with what has been decided by the Kansas Supreme Court in North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., supra, it is important to distinguish between the March 17 and July 10 cattle sales.
As to the March 17 sale, the record reflects that on March 19, 1974, before Boese had received the proceeds of the sale, a conversation occurred between Ganson and Boese. Ganson told Boese to mail or deliver “a check for the proceeds of the 67 head of cattle.” Ganson’s instructions had to be premised upon his knowledge that the check would be sent to Boese and made payable to Boese only. Had PCA thought the check would be payable to PCA and Boese jointly, the instructions would have been unnecessary. Boese alone could not cash a joint check. Thus, PCA’s statement to send “a check” is tantamount to their expressly consenting to Boese’s receiving the check in his own name. Ganson’s directive was an express waiver — an express consent — as to the March 17,1974, transaction. We conclude that PCA, through its officers, expressly consented to Boese’s selling the cattle and accepting payment; therefore, that transaction falls directly within the purview of North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., supra.
The July 10 sale presents a different set of circumstances. In that sale, as the following questions and answers from Householder’s deposition reveal, PCA expressly demanded that all future checks be made jointly payable:
“Q. Was there any discussion about how he would handle the sale of the cattle?
A. Yes, sir.
Q. What was that discussion?
A. We told him very definitely that any cattle that were sold should be made jointly to he and to the association.
Q. How did you put it to him as best as you can recall?
A. As best as I recall, I said that in all future cattle circumstances, the check must be made jointly to you and to the North Central Kansas Production Credit Association. [Emphasis added.]
Q. And you said that rather than Mr. Ganson?
A. I think we both said it.
Q. Did Mr. Ganson say it the same way you said it?
A. Yes, sir.”
Again on July 1, 1974, after PCA knew that Boese had lost the March 17 proceeds on grain futures rather than remitting to PCA, the following conversation between Ganson and Boese occurred:
“Q. Did you discuss with him at that time what he should have done?
A. No, sir, we discussed with him the only way that we would continue on this basis, and that would be on the basis of feeding the cattle; and that would be with complete cooperation, and when the cattle were sold that the check had to be made jointly.
Q. What do you mean by complete cooperation?
A. That he would take care of the cattle and see that they were fed and to get the best possible gain out of them as possible; and then as I say, whenever the cattle were sold the check would be made jointly.”
Under authority of North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., supra, we find that the decision of the district court should be affirmed insofar as it relates to the March 17, 1974, sale of cattle. Under authority of the same case, the judgment of the district court must be reversed as to the proceeds of the July, 1974, sale.
Affirmed in part. Reversed in part.
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Abbott, J.:
This is an appeal by L. Frank Dougan, the plaintiff landowner, in an action for damages to plaintiff’s property caused by flooding. The trial judge granted summary judgment in favor of the defendant, Rossville Drainage District, after finding plaintiff’s claim to be barred by the statute of limitations. (K.S.A. 60-513.)
The defendant, Rossville Drainage District, was established as an organized drainage district in 1905 and has operated as such since that time. Shortly after its creation, the defendant con structed a network of ditches and waterways for drainage purposes. During the period from 1942 to 1954, changes and alterations in the system were made by the drainage district without the knowledge and consent of the chief engineer of the Division of Water Resources.
When this action was commenced, the defendant’s ditches and waterways collected the surface water drainage from approximately seven thousand acres of land between the towns of Ross-ville and Silver Lake, Kansas. The water is collected and carried east by the drainage system where it is deposited into Silver Lake. Plaintiff’s land lies to the south of Silver Lake and is not in the defendant drainage district.
Silver Lake is a natural lake and is believed to be an old river bed. It was in existence when the government originally surveyed the area in 1862. (Dougan v. Shawnee County Comm’rs, 141 Kan. 554, 43 P.2d 223.) Water enters the lake from the west and drains from the eastern shore in a southwesterly direction through a natural waterway across plaintiff’s property to the Kansas River. The drainage district ends at the western edge of Silver Lake. Neither Silver Lake nor the channel connecting Silver Lake to the Kansas River is in the Rossville Drainage District.
A county road runs east and west across the southern portion of plaintiff’s land and across the waterway which drains Silver Lake into the Kansas River when the lake overflows. A floodgate has been installed in a culvert under the county road at its intersection with the waterway. The floodgate, which is on plaintiff’s land and is operated by plaintiff, is opened to permit water from Silver Lake to drain into the river when the level of the lake is higher than the river. The floodgate is closed when the level of the river is higher than the lake to prevent river water from backing up into the lake and flooding plaintiff’s land. When the floodgate is closed and the lake is overflowing, the lake cannot drain into the river and the extra water from defendant’s ditches causes the lake to flood plaintiff’s land.
Since 1954, plaintiff’s land has been flooded twice — in March 1967 and October 1973. The parties have stipulated that on both occasions “the primary source of the flood waters was the Ross-ville Drainage District.” After the 1967 flooding, defendant and the plaintiff’s mother (who owned the land at that time) discussed a solution to the problem. As a result of the discussions, defend ant dredged the channel connecting Silver Lake to the Kansas River. The defendant drainage district dredged the channel at its own expense even though the channel was not owned by defendant nor within its district. Plaintiff’s property was again flooded in October 1973. Plaintiff filed this case on February 11, 1974. Plaintiff requested (1) a permanent injunction enjoining the defendant from discharging water across plaintiff’s property, (2) compensation for permanent damages to the real estate and (3) temporary damages for the loss of growing crops.
For purposes of defendant’s motion for summary judgment, the parties submitted an agreed statement of facts. The trial judge found that plaintiff’s land was permanently damaged in 1967, that the statute of limitations (K.S.A. 60-513[a][4]) commenced to run in October of that year and hence plaintiff’s cause of action was barred. This appeal followed. The sole question presented on appeal is whether plaintiff’s claims are barred by the statute of limitations (K.S.A. 60-513[a][4]). Plaintiff concedes there is an adequate remedy in law and therefore a permanent injunction would not be a proper remedy.
By stipulating to the facts the parties have placed this court in a position where we can determine what is shown by the stipulated facts as readily and as fully as the trial court. (Wallace v. Magie, 214 Kan. 481, 488, 522 P.2d 989.) We will give the benefit of all inferences that may be drawn from the stipulated facts to the party against whom summary judgment is sought. (Timi v. Prescott State Bank, 220 Kan. 377, 386, 553 P.2d 315.)
The question of when a cause of action accrues as a result of a party causing another’s land to be flooded has been extensively litigated in Kansas. Not all of the Kansas authority is in harmony. Obviously, each case must be decided on its own facts, giving due regard to established law.
Kansas has adopted the rule of law that an upper proprietor of land may not gather and divert surface water from its natural course of flowage and thereby exceed the carrying capacity of the natural watercourse in which the surface water is deposited if that action causes damages of a serious and sensible nature to a lower landowner. (Baldwin v. Ohio Township, 70 Kan. 102, 108, 78 Pac. 424.) Logically, this rule has been followed even though the overflow and damage occurs some distance downstream from the point where the upper riparian proprietor discharges the surface water into the natural watercourse. (Grant vs. Kuglar, 81 Ga. 637, 8 S.E. 878 [1889].) The upper riparian proprietor cannot compel a lower landowner to provide drainage facilities to avoid being flooded by a volume of water in excess of the natural drainage level which the upper landowner has caused to be discharged into the watercourse. (Pierce Family, et al. vs. Magness Construction, et al., 43 Del. Ch. 425, 235 A.2d 268 [1967].)
The Kansas Supreme Court has considered whether the injury was permanent or temporary as the determinative factor in when the statute of limitations commences to run against damage from flooding caused by construction. In Henderson v. Talbott, 175 Kan. 615, 621, 266 P.2d 273, the Supreme Court approved language from 56 Am. Jur., Waters §§45 and 443 (now 78 Am. Jur. 2d, Waters §§ 35, 39, 122, 123, 128 and 367) to the effect that if an injury is permanent, or if the causative structure or condition is of such a character that injury will inevitably result, and the amount of damages can be determined or estimated, a single action for both past and future damages should be brought. Henderson adopts a rule which would allow as many successive recoveries as there are successive injuries, where the construction or continued existence of the structure is not necessarily injurious, but may or may not be so, or where the flooding is merely temporary, occasional, or recurrent, causing no permanent injury to the land. Successive recovery was also approved where the possibility or likelihood of the alteration or abatement of the causative condition existed. The statute of limitations starts to run when plaintiff’s land or crops are harmed and each injury by flooding brings a new cause of action until the injury becomes permanent. (Simon v. Neises, 193 Kan. 343, 348, 395 P.2d 308.)
In Henderson v. Talbott, supra, the court determined that the injuries were temporary in nature and not barred by the statute of limitations as to any injuries that occurred within two years of the petition’s being filed. There the amount of water on Henderson’s land “was not stationary but ebbed and flowed, depending on the season of the year and the amount of rainfall.” (P. 620.) The court found no permanent injury despite the fact the water was impounded behind a dam Talbott constructed on his land more than two years prior to the commencement of suit.
The reasoning and holding in Henderson v. Talbott, supra, has been reaffirmed in Klotz v. Board of County Commissioners, 176 Kan. 325, 330, 270 P.2d 281; Spacek v. City of Topeka, 189 Kan. 645, 648, 371 P.2d 165; Simon v. Neises, supra; Lockridge v. Tweco Products, Inc., 209 Kan. 389, 397, 497 P.2d 131; and Gowing v. McCandless, 219 Kan. 140, 144-145, 547 P.2d 338.
Based on the stipulated facts, it would be unjust to require plaintiff to file suit following the 1967 flooding. Damages cannot be awarded on mere conjecture or speculation. The plaintiff’s land has been flooded twice in the last twenty-four years. Had plaintiff been required to bring his action within two years of the 1967 flooding, his chance of recovery would have been slim. It would have been nearly impossible for plaintiff to have sustained the burden of proof as to permanent damages. Plaintiff’s damages were not reasonably capable of judicial ascertainment. Although it was apparent there might be some damage in the future, their nature and extent would have been highly speculative. The flooding of plaintiff’s land was contingent upon a number of events occurring at approximately the same time. First, a substantial rain had to occur at a time when Silver Lake did not have sufficient capacity to handle the additional water discharged into it by the drainage district. At the same time, it would be necessary for the Kansas River to be at flood stage. Flood stage on the Kansas River is affected by rains that occur upriver. The Kansas River level is further affected by the water storage capacity available at that time in the numerous reservoirs on the Kansas River tributaries. In 1967, it would have been highly speculative as to whether the necessary combination of events and circumstances would again occur in the proper sequence to flood plaintiff’s land, and, if so, at what frequency.
The flooding in this case is temporary, occasional and recurrent. There is no indication or allegation that the flooding caused permanent injury to the land itself in 1967. We cannot say plaintiff’s cause of action was barred by the statute of limitations under the facts before the court. This court cannot consider the magnitude of plaintiff’s problems in supporting the degree of proof required in order for him to prove causation of his damages at trial.
This court did consider the plaintiff landowner’s argument that the drainage district made changes between 1924 and 1954 in the waterways and ditches without the permission of the chief engineer of the Division of Water Resources in violation of K.S.A. 24-126. The plaintiff then relies on Gowing v. McCandless, supra, for authority that the waterways and ditches are abatable and not permanent until approved by the state, and hence his cause of action for damages occurring within two years of the commencement of suit cannot be barred by the statute of limitations. The drainage district maintains that permission of the chief engineer of the Division of Water Resourses was not necessary for the changes made. The stipulation does not set forth facts sufficient to bring the drainage district within the ambit of K.S.A. 24-126 with the requisite clarity required by law, and it therefore was not considered by this court.
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Abbott, J.:
This is a direct appeal from a jury conviction of burglary (K.S.A. 21-3715) and attempted theft of property valued at more than fifty dollars (K.S.A. 21-3701 and K.S.A. 21-3301).
Defendant was jointly charged and tried with his brother, Danny West. James M. Sheeley was counsel for both Danny and Kenneth. Kenneth brings this appeal, asserting the trial judge erred in not granting a severance of the trials or in refusing to allow counsel to withdraw from representation of one of them. We agree.
During the early morning hours of May 16, 1976, a telephone report was received by the Kansas City Police Department that a vehicle was in the process of being burglarized. Two police officers in a mobile unit were dispatched to the scene. Upon arrival, they observed two persons inside the vehicle and one standing outside the vehicle. Both officers testified they recognized one of the individuals in the car. One officer recognized Danny West and the other recognized Kenneth.
All three of the suspects ran. Kenneth West was apprehended hiding under a sleeping bag beside the porch of the residence adjacent to the parked vehicle. He had two 8-track tapes and a can of lacquer thinner in his possession. The arresting officer testified that Kenneth was “pretty high” from inhaling lacquer thinner vapors. The other parties escaped by running between the houses and jumping a fence. A second police unit was dispatched to Danny West’s residence and he was arrested ten or fifteen minutes later as he approached his home. The record does not indicate whether the third person was ever apprehended or charged.
James M. Sheeley was retained to represent both Danny and Kenneth West. A pretrial conference was held on September 21, 1976. Defendant’s counsel stated he did not intend to file any preliminary motions. Sheeley was subsequently allowed to withdraw from the representation of Kenneth on October 14, 1976. The reason for his withdrawal is not apparent from the record. On November 12,1976, Sheeley was appointed to represent Kenneth. The case was set for trial on January 17, 1977.
The morning of trial, Sheeley moved to withdraw from the representation of Danny West stating, among other things, that there was a conflict between the defenses of Kenneth and Danny West. The pretrial conference journal entry clearly indicates that Kenneth West was defending in part on the theory he was too intoxicated to form the necessary intent. The trial judge denied the motion “because of the lateness of the hour and the fact that the case is set for trial at this particular time.”
Defendant’s counsel did not specifically request separate trials. He nonetheless contends that the request to withdraw should be treated as a motion for severance. He bases this argument on the theory that the nature of the motion was one for severance. We do not agree. Our examination of the record fails to reveal any language which reasonably could be construed to request a severance.
The burden is on the movant not only to request severance, but also to show that actual prejudice is likely to result from a joint trial. (State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255 [1975]; State v. Sully, 219 Kan. 222, 547 P.2d 344 [1976].) The Kansas Supreme Court has stated, “Where two or more defendants are jointly charged with a crime and a defendant proceeds to trial without requesting a separate trial he is deemed to have waived any right to a separate trial and is foreclosed from claiming error in this regard on appeal.” (State v. Daugherty, 221 Kan. 612, Syl. ] 2, 562 P.2d 42 [1977].) Defendant has waived any right he might have had to severance.
Defendant, however, has a constitutional right under the Sixth Amendment to the effective assistance of counsel. The Supreme Court of the United States has heretofore held that requiring an attorney to represent codefendants whose interests are in conflict denies them the effective assistance of counsel. (Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457 [1942].) Glasser does permit one attorney to represent multiple defendants under certain circumstances.
The Supreme Court of the United States has recently reviewed, reaffirmed, and broadened Glasser in Holloway v. Arkansas, 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173 (1978). We see only one distinction between the case at hand and Holloway, and that distinction, in our opinion, does not require a different result. In Holloway, the defendants made timely motions for appointment of separate counsel, whereas in this case the motion was not made until the morning of trial. Noting that defense attorneys might take advantage of the possibility of a conflict for purposes of delay by filing motions at the last moment, the court stated:
“The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court’s ability to deal with counsel who resort to such tactics. Cf. United States v. Dardi, 330 F.2d 316 (CA2), cert. denied, 379 U.S. 845 (1964); People v. Kroeger, 61 Cal. 2d 236, 37 Cal. Rptr. 593, 390 P.2d 369 (1964). Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client. See State v. Davis, [110 Ariz. 29, 514 P.2d 1025 (1973)]. In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections and representations made to it, and no prospect of dilatory practices was present to justify that failure.” (pp. 486-87.)
The state, as well as defendant’s counsel, should have been aware of the possible conflict at the pretrial conference some four months prior to trial. Counsel for defendant subsequently withdrew and was reappointed two months prior to trial. He had a duty to request permission to withdraw as counsel for one of the defendants as soon as he ascertained his duty to one might conflict with his duty to the other. The Supreme Court appears to have left the door open for a trial court to find dilatory practices of sufficient magnitude to justify a refusal to continue a trial or allow counsel to withdraw. However, we do not find sufficient justification here in view of the fact the record conclusively shows all parties had or should have had knowledge of the possible conflict as early as the pretrial conference.
Since Kenneth obviously would implicate Danny West as a participant in the crime, counsel could not place Kenneth West on the witness stand to testify as to his intoxication and participation without doing irreparable damage to his other client’s case. As a result, Kenneth West did not testify. That is precisely one of the events Holloway seeks to prevent. Chief Justice Burger, speaking for the court, stated, “[T]he evil . . . is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.” (Holloway, at 490.)
The Supreme Court specifically rejected the application of the harmless error rule, stating that any requirement that a defendant show a conflict of interest has prejudiced him in some specific fashion is not susceptible to even-handed application and, in most instances, would require an appellate court to use unguided speculation in determining whether the error was harmless.
The denial of a timely motion to withdraw from joint representation renders the assistance of counsel ineffective where the basis of the motion is that counsel’s duty to one of the defendants might conflict with his duty to the other. The effective assistance of counsel under the Sixth Amendment is a “constitutional right” so basic to a fair trial that its denial can never be treated as harmless error.
Holloway leaves several questions unanswered. The Supreme Court specifically declined to state what affirmative duty the trial judge has to act on his own motion when it appears a conflict may exist. It further declined to define the scope and nature of the trial judge’s duty to investigate the possibility of a conflict where a single counsel represents more than one defendant. We do not intend to answer that issue other than to hold that where examination of the trial court records as early as pretrial conference reveals conflicting defenses, counsel’s motion to withdraw from representation of one or both defendants must be granted, even though not timely, so long as it is made prior to the jury’s being impaneled. Under these circumstances, the defendant may not be deprived of his constitutional right to effective counsel.
Such a holding is not inconsistent with Holloway, nor does it appreciably enlarge the scope of Holloway. In Holloway, the motion was filed three weeks prior to trial. However, the court equally emphasized the fact that a motion was also made the day of trial before the jury was impaneled — the same situation we have before us. (See, also, Sanchez v. Nelson, 446 F.2d 849 [9th Cir. 1971]; State v. Sullivan & Smith, 210 Kan. 842, 504 P.2d 190 [1972]; and State v. Young, 196 Kan. 63, 410 P.2d 256 [1966].)
If the trial judge is of the opinion that a motion was purposely filed late in an effort to delay or obstruct the orderly conduct of the trial, other avenues which do not affect defendant’s constitutional rights are available to deal with counsel. For instance, the trial judge could assess court costs against counsel personally or, where warranted, file a complaint under the Kansas code of professional responsibility. (K.S.A. 7-125.)
The judgment is reversed and the case remanded for retrial in harmony with this opinion. | [
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Foth, C.J.:
Defendant was convicted by a jury of aggravated assault, committed with a pistol. It appears that defendant offered to shake hands with one Gary Blacksmith, a younger man who was seated at a table in a Horton tavern. When Blacksmith didn’t respond, defendant chided him for not standing to shake hands with his elder, then placed a loaded pistol under the victim’s chin, forcing him to rise.
On appeal defendant raises five points. Four of them can be disposed of summarily.
1. Defendant made no showing of community prejudice re quiring a change of venue. The newspaper stories offered, standing alone, were insufficient. See State v. McCorgary, 218 Kan. 358, 367, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976).
2. A new trial was not required by any of the factors cited by defendant, (a) The cross-examination of the victim as to the reason for his incarceration was inadmissible to impeach his credibility by virtue of K.S.A. 60-421. On the issue of the victim’s supposed incapacity to be put in fear by a loaded pistol placed under his chin, it had marginal relevance if any. Assuming it was offered for this purpose, its exclusion was not an abuse of discretion. Jackson v. State, 1 Kan. App. 2d 744, 573 P.2d 637 (1977), rev. denied 223 Kan. clxxi (1978). (b) There is no showing that a “psychological profile” of the victim, in the possession of a prosecutor in another county, was exculpatory or that it was in fact suppressed. Cf. State v. Hombeak, 221 Kan. 397, Syl. ¶ 5, 559 P.2d 385 (1977). The fact that the victim of the assault was himself capable of violence had little bearing on his capacity to incur fear in the face of a loaded gun. (c) As will be discussed under point 5, defense counsel’s failure to object to the prosecution’s closing argument did not require a new trial because the argument itself was not improper.
3. The mandatory sentencing law for crimes committed with a firearm, K.S.A. 1977 Supp. 21-4618, is not unconstitutional. State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978); State v. Stuart and Jones, 223 Kan. 600, Syl. ¶ 3, 575 P.2d 559 (1978).
4. The trial court lacks power under that statute to suspend the execution of sentence. State v. Stuart and Jones, 223 Kan. at 600, Syl. ¶ 4.
5. Defendant’s final point is the alleged ineffective assistance of counsel, and encompasses six separate areas where counsel’s conduct of the trial is said to be deficient. Of these six, five are without merit.
(a) An objection was not required to either the prosecution’s closing argument or the testimony of Arnetta Cutshell, who was present during the assault. At issue was the reasonableness of the victim’s testimony that he was put in fear. The argument merely asked the jury to put themselves in the victim’s shoes — surely a legitimate argument and wholly unobjectionable. Cutshell’s testimony that the incident put her in fear and the prosecutor’s argument based on it merely added color to the incident and were both relevant to the same issue and not subject to objection. Neither can we fault defense counsel for keeping from the jury references to the “Strawberry Hill” incident. Any objection, however well founded, may give the jury the impression that counsel is hiding something. That effect is something counsel must constantly weigh during a trial in deciding whether to object. While a pretrial motion in limine might have avoided the dilemma, we are not prepared to say one was required.
(b) Despite counsel’s ingenious argument on appeal there was simply no evidence which would have justified a self-defense instruction. See State v. Childers, 222 Kan. 32, 48-9, 563 P.2d 999 (1977). Failure to request one was not a sign of ineffectiveness of trial counsel.
(c) The instructions adequately defined assault and aggravated assault. The PIK instructions given (56.12 and 56.14) included the element of intent, and counsel was not remiss in failing to request a further instruction on that element.
(d) Defense counsel did not attempt to show that Blacksmith was incapable of fear, but did attempt to show that Blacksmith was not in fact in fear of bodily harm. The closing argument of defense counsel makes repeated reference to what was claimed to be a failure in the State’s proof on this element. The fact that there was no pursuit of what strikes us as an improbable, even fanciful, theory of defense does not mean that counsel was “ineffective.” In our opinion few if any reasonably competent defense lawyers would have based their defense on attempting to establish the existence of aman with no fear of loaded guns. Cf. Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶ 3, 582 P.2d 292 (1978).
(e) Finally, we reach the contention which we find requires a remand. Agent James V. Young of the Kansas Bureau of Investigation testified as to his interrogation of defendant in the Brown County Law Enforcement Center on May 9,1977, after defendant had been in custody for about a week. Agent Young testified that he gave defendant the Miranda warning and that defendant thereafter described the assault, beginning with the loading of the pistol earlier in the day.
No objection was made to this testimony except on grounds of the relevance of certain preliminary questions. No Jackson v. Denno hearing had been held, and there was no express determination by the trial court at any time that defendant’s confession was voluntary. On cross-examination defense counsel sought first to show that the statement was involuntary and was given as the result of psychological pressures induced by defendant’s incarceration. It is now contended that the trial court and counsel should have done more to determine the voluntariness of defendant’s confession before admitting it. We agree.
The right to a judicial determination of the voluntariness of a confession before it is presented to a jury was first established in this state in State v. Milow, 199 Kan. 576, 433 P.2d 538 (1967). The case was followed in Baker v. State, 204 Kan. 607, Syl. ¶ 7, 464 P.2d 212 (1970). In Baker the court also added:
“Foundation proof relating to the admissibility of a confession must be heard outside the presence and hearing of the jury, even though no request for such hearing is made, unless there has been a knowing and intelligent waiver of that right hy the accused.” (Syl. ¶ 8. Emphasis added.)
In Baker, as here, the defendant’s confession had been admitted without objection and without a Jackson v. Denno hearing. The Court noted that “there are facts in substantial dispute concerning the voluntariness of petitioner’s confession.” The Court also observed that “we are not inclined to dispose of a matter so fundamental as the voluntariness of a confession of guilt on any theory of waiver.” (204 Kan. at 617.) The result, in that proceeding under K.S.A. 60-1507, was a remand for a hearing on voluntariness.
Here there was no request for a hearing, but Baker teaches us there must be one even in the absence of a request. The lack of objection might be deemed a waiver if it were shown to have been a “knowing and intelligent” waiver; i.e., the calculated choice of counsel after consultation with the defendant. See Barnes v. State, 204 Kan. 344, 352,461 P.2d 782 (1969); Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). We are unable to find a waiver meeting that standard here, particularly in light of counsel’s effort on cross-examination to attack the voluntariness of the confession.
It may be conceded that on this record the substantiality of the dispute over voluntariness does not appear as clearly as it did in Baker, but that may be attributed to the fact that in this case no hearing has been held, whereas in Baker there had been an evidentiary hearing in the 60-1507 proceeding.
We conclude that the proper disposition in this case is a remand to the district court for a hearing on the voluntariness of defendant’s confession, to be held in accordance with Milow, Baker, and Jackson v. Denno itself, 378 U.S. 368, 393-5, 12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205 (1964). If the confession was voluntary, then defendant’s trial was not invalid and the conviction will stand. If the confession is found to be involuntary, defendant is entitled to a new trial at which it is not admitted.
The case is remanded to the trial court for further proceedings in accordance with this opinion. | [
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Per Curiam:
Plaintiff appeals from the order of dismissal entered in this action by the District Court of Shawnee County. The sole issue on appeal is whether the district court’s dismissal was proper. Plaintiff’s allegations of wrongful conduct by various electors or by the contest board are not before us for determination.
The action arises out of a primary election contest initiated by plaintiff, a candidate for nomination as the Democratic candidate for election to the Kansas House of Representatives from the 53rd District. In the primary election held on August 1, 1978, plaintiff lost to his opponent by fifteen (15) votes. Plaintiff filed timely written objection to the election with the contest board pursuant to K.S.A. 25-308, as amended. See L. 1978, ch. 138, § 20, pp. 615-616.
The contest board, comprised of the lieutenant governor, secretary of state and attorney general, met, heard testimony, received affidavits and considered the matter on August 29, September 7 and September 8. At its last meeting and with plaintiff in attendance by his counsel, the board overruled plaintiff’s objection and assessed costs to plaintiff by unanimous vote. This final decision of the board was reduced to writing and filed with the secretary of state on September 28. It constituted final determination of all issues before the board.
•The assessment of costs to plaintiff was made by the board pursuant to L. 1978, ch. 138, § 20(c). Plaintiff was notified by letter dated September 28 that the costs were in the amount of $185. His response was a letter dated October 3, which, among other things, demanded a breakdown of the costs. The secretary of state provided an itemization of the costs by letter dated October 10.
On October 16, 1978, twenty-two (22) days before the general election to be held November 7, plaintiff commenced this action by filing a petition in the district court. As explicitly stated in the verified petition, “the Plaintiff seeks relief in mandamus and injunction.” A hearing was held on October 17 during which defendants orally moved to dismiss the petition for lack of jurisdiction and failure to state a cause of action upon which relief can be granted. The motion was reduced to writing on October 18 and set for hearing the next day. Also on October 18, plaintiff filed a “First Amendment to Petition” by which he alleged that the petition, “with this amendment, also is intended to serve as a notice of appeal pursuant to K.S.A. 60-2101(d).”
The parties filed memoranda, and oral arguments were heard on October 19. The court orally announced its decision the next day, October 20. In summary, the district court concluded it was without jurisdiction to hear the matter since plaintiff had not timely filed his action pursuant to L. 1978, ch. 138, § 20(f):
“All mandamus proceedings to compel an officer to certify and place upon the ballot any name or names, and all injunction proceedings to restrain an officer from certifying and placing upon the ballot any name or names, must be commenced not less than thirty (30) days before the election.”
The court also concluded that an appeal pursuant to K.S.A. 60-2101(d) was not available to plaintiff. The issue of the constitutionality of L. 1978, ch. 138, § 20, raised in plaintiff’s memorandum in opposition to the motion to dismiss was not expressly ruled on by the district court. On the same day, a judgment form was entered and plaintiff filed notice of appeal to this court.
On October 25, we heard oral arguments on plaintiff’s motion to advance. The parties agreed to file briefs forthwith and oral argument was heard on November 1.
After having considered the briefs and arguments, we conclude that the district court decision should be affirmed. We have expedited our consideration of this case and the preparation of this opinion because of the imminence of the general election to be held November 7.
Plaintiff alleges the district court had jurisdiction for either of two reasons: (1) appellate jurisdiction pursuant to K.S.A. 60-2101 (d); or (2) jurisdiction by way of a properly filed mandamus and injunction action.^We will deal with each contention separately.
The contest board created by L. 1978, ch. 138, § 20, and its predecessor statutes, is administrative in nature and performs a quasi-judicial function. Miller v. Clark, 62 Kan. 278, 288, 62 Pac. 664 (1900); Allen v. Burrow, 69 Kan. 812, 814, 77 Pac. 555 (1904). Appellate jurisdiction of actions of administrative bodies is not inherent but must have some statutory basis. Miller v. Clark, 62 Kan. at 288; State, ex rel., v. Unified School District, 218 Kan. 47, 50, 542 P.2d 664 (1975); Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978).
L. 1978, ch. 138, § 20(c), provides that the decision of the contest board'“shall be final.” Early Kansas cases have interpreted predecessor statutes having the same language to mean that the decision of the contest board is not subject to appellate review. Miller v. Clark, 62 Kan. at 281, 282; Allen v. Burrow, 69 Kan. at 818; Hay v. Keeshan, 83 Kan. 438, 439, 111 Pac. 436 (1910); State, ex rel., v. Penner, 124 Kan. 285, 286-287, 259 Pac. 785 (1927); see also Thompson v. Pettijohn, 107 Kan. 548, 550, 192 Pac. 749 (1920). Since the above cases were decided, the statute has been amended. The language “shall be final” has remained unchanged. It is presumed that the legislature acted with full knowledge and information of the prior judicial interpretations of the predecessor statutes. Rogers v. Shanahan, 221 Kan. 221, 225, 565 P.2d 1384 (1976).
Although appellate review is not permitted, extraordinary remedies may be utilized to review decisions of the contest board which were induced by bad faith or the result of arbitrary acts showing wrongful conduct amounting to fraud, corruption or oppression (Miller v. Clark, 62 Kan. at 284; Allen v. Burrow, 69 Kan. at 820-821) or to compel the board to act where it refused to do so (Griffin v. Gesner, 78 Kan. 669, 97 Pac. 794 [1908]).
More recent cases are in accord, although they do not specifi cally deal with L. 1978, ch. 138, § 20. It is now well established that if no appeal from an administrative decision is provided for, district court jurisdiction is limited to original actions to determine if the administrative body acted illegally, fraudulently or oppressively. Thompson v. Amis, 208 Kan. 658, 661, 493 P.2d 1259 (1972); State, ex rel, v. Unified School District, 218 Kan. at 50; Brinson v. School District, 223 Kan. at 467. In Bush v. City of Wichita, 223 Kan. 651, Syl. ¶ 2, 576 P.2d 1071 (1978), it was held:
“In the absence of a statutory provision for appellate review of an administrative decision no appeal is available but relief from illegal, arbitrary and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction.”
Plaintiff argues he should be allowed to appeal the contest board decision under K.S.A. 60-2101(d). The scope of review permissible under K.S.A. 60-2101(d) is somewhat broader than that allowed when an original action is brought. Brinson v. School District, 223 Kan. at 469. On its face, K.S.A. 60-2101(d) may seem controlling. It is not. K.S.A. 60-2101(d) is a general statute and does not apply where the legislature has provided a special procedure as in L. 1978, ch. -138, § 20. Specific statutes control over general statutes in the area of appellate procedure. In re Waterman, 212 Kan. 826, 833, 512 P.2d 466 (1973); Brinson v. School District, 223 Kan. at 467-468.
We conclude that the language of Miller v. Clark, 62 Kan. at 288, is consistent with recent decisions and is controlling precedent:
“It may be conceded that this tribunal [contest board] is endowed with quasi-judicial power. It is important that it act expeditiously, and to permit appeals or proceedings in error to be taken from its decisions would-often defeat the purpose of its creation. The right of appeal is not an inherent one.”
Even if appeal pursúant to K.S.A. 60-2101(d) were available to plaintiff, he has not complied with its procedure for prosecution of an appeal. No notice of appeal was filed with the contest board as required by that statute.
Plaintiff’s only remedy was to seek review of the contest board decision by extraordinary remedy. This he did. The district court determined it had no jurisdiction because the action was not timely filed pursuant to L. 1978, ch. 138, § 20(f). Plaintiff commenced this action for relief in mandamus and injunction on October 16, 1978, twenty-two (22) days before the general election on November 7. L. 1978, ch. 138, § 20(f), requires all such actions be commenced “not less than thirty (30) days before the election.”
In construing L. 1978, ch. 138, § 20(f), it is proper to inquire into the legislative intent by examining the historical background of the statute, the objectives sought to be obtained, and the effect the statute may have under various suggested constructions. State, ex rel., v. Kalb, 218 Kan. 459, 464, 543 P.2d 872 (1975), modified 219 Kan. 231, 546 P.2d 1406 (1976). It is obvious that the time limit in which to commence mandamus and injunction proceedings has as its primary purpose the speedy resolution of election contests. To permit untimely actions to delay and impede the orderly election process would be to defeat that purpose. Miller v. Clark, 62 Kan. at 288. The Kansas Constitution provides that “[e]ach house shall be the judge of elections, returns and qualifications of its own members.” Kan. Const, art 2, § 8. In this instance, the legislature has limited the time in which to contest an election by means of mandamus or injunction. The intent of the legislature in enacting L. 1978, ch. 138, § 20(f) can only be construed as a bar to plaintiff’s action.
The district court held that by reason of L. 1978, ch. 138, § 20(f), it lacked jurisdiction of plaintiff’s action. We view the statute as more in the nature of a statute of limitations (State v. Tipton, 166 Kan. 145, 151, 199 P.2d 463 [1948]) than a jurisdictional statute (see Ginns v. Savage, 61 Cal. 2d 520, 39 Cal. Rptr. 377, 393 P.2d 689 [1964]. Contra, Duggan v. Bailey, 317 P.2d 200 [Okla. 1957]; Mitchell v. Carroll Independent School District, 435 S.W.2d 280 [Tex.Civ.App. 1968]).
However, defendants’ motion to dismiss stated an alternative ground: failure to state a claim upon which relief can be granted. K.S.A. 60-212(b)(6). Defendants’ motion' to dismiss raised the question of the limitations bar prescribed by L. 1978, ch. 138, § 20(f).
K.S.A. 60-212(h) provides:
“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 . . . .”
See also Edmonds v. Union Pacific Railroad Company, 294 F. Supp. 1311, 1313 (D. Kan. 1969).
The district court had before it the following uncontroverted facts: (1) the contest board unanimously voted that plaintiff’s objection be overruled on September 8; (2) the written order of the contest board was filed with the secretary of state on September 28; (3) a copy of the written order was received by plaintiff not later than October 3; (4) in a letter dated October 3, plaintiff requested a breakdown of the $185 in costs assessed to him; (5) in a letter dated October 10, the secretary of state responded to plaintiff with a breakdown of the costs, one-half the reporter’s fee; and (6) on October 16 plaintiff commenced this action for relief in mandamus and injunction. While other facts may be disputed, the above facts are all that are necessary for determination of the existence of a genuine issue as to timeliness of plaintiff’s action. Disputed facts which are immaterial to a controlling issue do not preclude summary judgment. Bowen, Administrator v. Lewis, 198 Kan. 605, Syl. ¶ 1, 426 P.2d 238 (1967); Smith v. Engel, 206 Kan. 298, 300, 477 P.2d 937 (1970); In re Estate of Messenger, 208 Kan. 763, 768, 494 P.2d 1107 (1972).
There is no genuine issue as to the material facts. The final decision of the contest board was rendered and made known to plaintiff on September 8; the decision was reduced to writing and filed on September 28. A copy of the written decision, including recitation of assessment of costs to plaintiff, was received by plaintiff not later than October 3. Time to file his action for relief in mandamus and injunction within the time permitted by L. 1978, ch. 138, § 20(f), was available to plaintiff. The letter of October 3 from plaintiff to the secretary of state requesting a breakdown of the assessed costs did not extend the “finality” date of the contest board decision. Plaintiff’s action was barred by L. 1978, ch. 138, § 20(f), regardless of whether the statute be regarded as one of limitations or one of jurisdiction. We therefore affirm, even though our reasoning is slightly different than that of the trial court. Belger Cartage Sera., Inc. v. Holland Constr. Co., 224 Kan. 320, 334, 582 P.2d 1111 (1978).
Plaintiff contends that L. 1978, ch. 138, § 20(f), requiring that mandamus and injunction proceedings be commenced not less than thirty (30) days before the election, is unconstitutional .as a violation of Kan. Const, art. 2, § 16, which provides in part:
“No bill shall contain more than one subject except appropriation bills and bills for revision or codification of statutes. The subject of each bill shall be expressed in its title. . . . The provisions of this section shall be liberally construed to effectuate the acts of the legislature.”
Plaintiff did not raise this issue in the pleadings below, but rather in his memorandum submitted to the district court following the initial hearing on October 17. In his memorandum plaintiff stated that the applicability of the statute was raised by the defendants at the initial hearing. Plaintiff argued that the statute is not applicable, but that if it is, it violates the above quoted constitutional provision.
The issue is not addressed by the trial court in either its oral findings or the judgment form. It would seem that the issue was presented to the court and must necessarily have been determined. By implication the district court held the statute constitutional.
Plaintiff’s argument to the district court and before us is that the statute is unconstitutional in two particulars: (1) it contains more than one subject, and (2) the title does not clearly express the content. The title of L. 1978, ch. 138, is in material part as follows:
“AN ACT relating to elections; prescribing the procedure for the conduct of certain contests of elections; relating to candidacy for school board member; amending K.S.A. 25-308, as amended by 1978 Senate Bill No. 797, and K.S.A. 1977 Supp. 25-2020 and repealing existing sections . . . .”
Sections 1-19 of the statute prescribe procedure for the contest of general elections, as opposed to primary elections, to various offices and is essentially a revision of K.S.A. 25-1401, et seq. Section 20, with which we are here involved, is an amendment to K.S.A. 25-308. Subsection (f), providing that all mandamus and injunction proceedings must be commenced not less than thirty days before the election, is simply a carry-over of that subsection as it read before the amendment.
In State v. Roseberry, 222 Kan. 715, 567 P.2d 883 (1977), the Supreme Court recently stated:
“Provisions of Article 2, Section 16, of the Kansas Constitution are a mandate to the legislature that no bill enacted into law shall contain more than one subject and that subject must be clearly expressed in the title, but it is not necessary that the title be an abstract of the details of the entire act. It is sufficient if the title indicates clearly the general scope of the act and if the details in the body of the act are all germane to the subject expressed in the title. When attacked as violating the foregoing constitutional provision a title of an act will be liberally construed.” (Syl. f 1.)
The defendants point to the language of art. 2, § 16, which excepts from the single subject requirement “appropriation bills and bills for revision or codification of statutes.” Defendants argue that this language (added in a 1974 revision of the article) is sufficient to answer plaintiff’s argument that the statute contains more than one subject because, they contend, the act is one “for revision or codification of statutes.”
Even if the constitutional language of exception is not considered, however, the statute appears to be within the constitutional restrictions. In Brickell v. Board of Education, 211 Kan. 905, 508 P.2d 996 (1973), the title of the statute attacked was as follows:
“ ‘AN ACT concerning education; issuance of bonds by school districts in certain cases; amending K.S.A. 1971 Supp. 72-8213 . . . ” (211 Kan. at 911.)
The court stated that “the declaration that [the act] concerns education is broad enough to cover any of the subject matter of the act” (211 Kan. at 913) and discussed some previous cases:
“This court considered the problem in depth in the case of City of Wichita v. Sedgwick County, 110 Kan. 471, 204 Pac. 693, wherein the constitutionality of sections of an act pertaining to allocation of expenses in connection with suppression of smallpox or other contagious diseases was challenged on the ground that such provisions were not within the scope of the title ‘An act relating to cities of the first class.’ In support of its decision upholding the act, the court, by way of analogy, referred to the general act of 1876 relating to public education entitled ‘An act for the regulation and support of common schools.’ The act embodied the entire foundation of our public school system. The court had this to say about the scope of the title to that act:
“ ‘. . . But though the title to this act gives no hint of these far-reaching details, yet because they are mere details of the general scheme of the act for the effective regulation and support of common schools, and are germane and pertinent to the principal purpose of the act, they are not subject to constitutional infirmity under section 16 of article 2.’ (p. 473.)
“In the more recent case of Colorado Interstate Gas Co. v. State Corporation Comm.., 192 Kan. 30, 386 P.2d 288, the subject matter of the Gas Conservation Act of 1959 was held to have been sufficiently expressed in the title of the act and it was said in the opinion:
“ ‘A title is sufficient if it indicates clearly, though in general terms, the scope of the act. The more general the language of the title, the broader the subject matter of the act may be.’ ” (211 Kan. at 912-913.)
The title of the act with which we are concerned provides that it is “AN ACT relating to elections . . . It would seem that it is broad enough to encompass all the provisions of the act so as to comply with the constitutional single subject requirement.
As to clear expression of content, the discussion in Brickell is equally applicable and it should be noted that the title specifically provides that the act amends K.S.A. 25-308. Brickell also speaks to this point:
“Where subject matter in an amended act was included in the original act and the title of the original act was sufficient, the requirements of Article 2, Section 16 of the Constitution of the State of Kansas are satisfied as to the title of the amended act insofar as the original subject matter is concerned.” (211 Kan. 905, Syl. ¶ 3.)
Insofar as L. 1978, ch. 138 provides that mandamus or injunction proceedings may not be commenced less than thirty (30) days before the election, the reference in its title to “amending K.S.A. 25-308” is sufficient to give notice of its content, since the original act contained that same provision. L. 1978, ch. 138 is not unconstitutional as a violation of Kan. Const, art. 2, § 16.
Affirmed.
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Meyer, J.:
The jury in this personal injury case entered a verdict for the plaintiff, James Scales (hereinafter referred to as “appellee”), finding appellee’s employer, International Multifoods, Inc. (hereinafter referred to as “Supersweet”), and defendant St. Louis-San Francisco Railway Company (hereinafter referred to as “appellant”), each guilty of 50 percent of the causal negligence resulting in the injury. The trial court entered judgment against appellant only, for the full sum of appellee’s damages. Appellant had moved for joinder of Supersweet, pursuant to K.S.A. 60-258a(c). The trial court allowed Supersweet to be considered for purposes of “comparison only,” but following Beach v. M & N Modern Hydraulic Press Co., 428 F. Supp. 956 (D. Kan. 1977), assessed the full amount of appellee’s damages against appellant. The trial court also refused appellant’s requested instructions concerning the theory that plaintiff was a licensee, rather than an invitee.
Appellant’s issues are as follows:
I.Should the trial court have directed a verdict for appellant or granted appellant’s motion to set aside the judgment in accordance with it's motion for directed verdict on the ground that:
A. Appellee was a licensee to whom appellant owed no duty except to refrain from willfully or wantonly harming him where there was no evidence of breach of such duty?
B. Even if appellee were considered an invitee, appellant owed him no duty with respect to open and obvious dangers of the existence of which appellee testified he was fully aware?
C. Appellee was guilty of more causal negligence as a matter of law than was appellant?
II.Did the court err in dismissing Supersweet as a party?
III.Did the court err in admitting evidence that:
A. Several years previously another employee had been injured by the same device without any showing that the circumstances and conditions were the same or similar, or that appellant had notice of such injury?
B. Appellee and his wife do not now intend to have children because of appellee’s disability?
IV.Did the trial court commit error:
A. In instructing the jury that appellee was an invitee and refusing appellant’s instruction concerning the duty owed a licensee, where the petition did not plead that appellee was an invitee but that he was the employee of a tenant, and where the evidence showed that appellee was, at most, a licensee?
B. In instructing the jury that the appellant owes to an invitee the duty both to make the premises safe and to warn him of dangerous conditions of which the proprietor knows and which are not known to the invitee, rather than stating that duty in the alternative, i.e., either to make the premises safe or to warn invitees of dangerous conditions not known to them, and omitting a requested instruction that the jury find appellee did not know of the condition?
C. In instructing the jury by Instruction 9 concerning the effect of a finding of negligence of appellee and in permitting appellee’s counsel to argue the effect of a finding of contributory negligence and apportionment of damages?
D. In giving confusing and conflicting instructions by instructing the jury in Instruction 9 that appellee’s award was to be reduced by the ratio of his negligence to the total negligence of appellee and appellant, instructing the jury in Instruction 10 that they were not to reduce the damages by any percentage of fault, and instructing the jury in Instruction 11 that the jury “should allow appellee such amount of money as will reasonably compensate him” and that the jury “should award such sum as will fairly and adequately compensate him?”
E. In defining negligence in Instruction 9 as something that “an ordinary person” would or would not do rather than by the accepted standard of a “reasonably careful person?”
F. In omitting from Instruction 2 appellant’s tendered issue of appellee’s negligent failure “to keep a reasonable lookout where he placed his foot” by omitting from said instruction the words following “lookout?”
G. In instructing the jury by Instruction 5 that appellee did not have a duty to look for danger where there was no reason to apprehend any when said instruction was directly contrary to appellee’s own testimony, and by omitting from said instruction the language submitted by appellant and adapted from PIK 13.06 concerning appellee’s duties?
H. In instructing the jury by Instruction 6 that appellee had a right to assume that Supersweet had furnished him a safe place to work and safe machinery when all of the evidence was directly to the contrary, and in omitting from said instruction language submitted by appellant concerning Supersweet’s duties under K.S.A. 44-104?
V. Did the trial court commit error in privately instructing the jury foreman concerning certain issues in the absence of counsel for both parties and in the absence of the other jurors?
VI. Did the trial court commit error in refusing to grant a new trial on the grounds that the verdict was against the weight of the evidence concerning appellee’s contributory negligence and was induced by passion and prejudice?
VII. Did the trial court commit error in refusing to alter or amend the judgment to assess only one-half of the damages found against appellant?
The discussion that follows does not specifically address appellant’s issues in the order they appear above. However, the opinion encompasses all of such issues which we feel have merit.
Appellant owned a spur track that ran along the east edge of a grain elevator and other industrial buildings to the south before merging with the main line track. An underground shaft ran from a point beneath the spur track into the grain elevator. Super-sweet’s auger was set in this shaft. There were two openings or “pits” in the shaft, one underneath and between the rails of the spur track, and the other two or three feet west of the first. Both openings had, at one time, been covered by grates, but the bars of the grates had eventually all been broken off.
Two written agreements between appellant and Supersweet were in effect at the time of appellee’s injury: (1) a maintenance and use agreement; and (2) a lease agreement whereby Super-sweet leased a portion of appellant’s premises.
A. The spur track itself was not within the leased area, but the lease agreement gave Supersweet the right to install and maintain additional equipment (on the leased property) and to operate and maintain the auger as described in a memo appended to the lease agreement.
B. Paragraph 12 of the agreement provided that Supersweet would indemnify (and hold harmless) appellant for any injury to persons caused or directly contributed to by Supersweet’s use or occupancy of leased premises. Any injury arising from concurrent negligence of both parties would be shared equally.
C. Paragraph 6 of the agreement stated that although Supersweet would install any unloading device, it could not leave any such device in use unattended.
D. Paragraph 9 of the agreement stated that lessee must keep the premises neat and in safe condition, free of debris and obstructions.
The purpose of running the shaft underneath the spur track was to facilitate unloading of the hopper cars, which were unloaded from the bottom. Supersweet employees then swept the spilled grain into the shaft while the auger was running. When the auger was not in use, the openings were covered by metal plates to keep out snow and rain.
On the evening of November 12, 1974, a boxcar of rice was unloaded. The following morning, appellee and another Super-sweet employee began cleaning up the spilled rice. The other employee heard appellee scream. He looked up, realized the situation, ran into the elevator and turned off the auger.
Appellee testified that he was near the spur track and had been on the south side of the auger sweeping grain into the west pit opening. He “slipped, somehow” into the east opening beneath the track. He tried to stop the auger by jamming his broom handle into the auger. His right foot was caught up into the mechanism. As a result of the accident, appellee’s leg was amputated below the knee.
Appellee alleged by his petition that: (a) his injury occurred on appellant’s property; (b) appellant had a common-law duty to maintain his premises, the track and all improvements thereon, in a safe condition; and (c) by its contractual agreement with Supersweet, appellant had an additional duty by reason of contract to appellee.
At the beginning of the trial, appellant moved to join Super-sweet, pursuant to K.S.A. 60-258a(c). The court granted the motion initially, but later modified the order to conform with Beach v.M & N Modern Hydraulic Press, supra. As a result, Supersweet was dismissed as an actual party, but included for purposes of comparison and apportionment of fault only, in the same manner as the employer of the plaintiff in the Beach case.
The court instructed the jury on the basis that appellee was a business invitee, but refused appellant’s requests for instructions on licensees and duties owed thereto. No instruction was given on appellee’s pleaded theory of lessor-lessee.
The court gave several instructions on comparative negligence. No. 9 informed the jury that appellee’s award of damages would be reduced by the ratio which his percentage of negligence bore to the total amount of negligence. No. 10 instructed the jury not to reduce the damages by any percentage of fault.
The jury found appellant 50 percent at fault, Supersweet 50 percent at fault, and appellee 0 percent at fault; they found appellee’s damages to be $165,000.
Appellant discovered, after return of the verdict, that the jury foreman had spoken privately with the trial judge sometime during deliberation. Neither counsel was present. The judge told counsel of the meeting later and said he had advised the jury foreman on a matter concerning workmen’s compensation.
The court granted judgment in favor of the appellee and against the appellant for $165,000, the full amount of the jury’s findings of damage.
The trial court overruled all of appellant’s post-trial motions, and this appeal followed.
We turn first to the issue of whether appellee was an invitee or a licensee. To support either definition, there must be an implied consent by the landowner. There is ample evidence to support a finding that appellee had appellant’s consent to enter upon the premises. The distinguishing factor in determining whether one is an invitee or a licensee is whether the landowner derived a benefit from the entrant’s presence on his land. See Graham v. Loper Electric Co., 192 Kan. 558, 389 P.2d 750 (1964); Weil v. Smith, 205 Kan. 339, 469 P.2d 428 (1970); Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P.2d 748 (1960); Smith v. Board of Education, 204 Kan. 580, 464 P.2d 571 (1970); Lemon v. Busey, 204 Kan. 119, 461 P.2d 145 (1969); and Gerchberg v. Loney, 1 Kan. App.2d 84, 562 P.2d 464 (1977), aff’d 223 Kan. 446, 576 P.2d 593 (1978).
The owner of the land owes an invitee a higher degree of care than he owes a licensee. The duty is active and positive (no showing of willfulness or wantonness is necessary), and is that of reasonable or ordinary care for the invitee’s safety. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated (Weil v. Smith, supra).
Appellee argues that, based on a mutual benefit theory, appellee was an invitee. Because hopper cars could only be unloaded from the bottom, Supersweet’s underground auger operation was for the mutual benefit of appellant and appellant’s shipping customers.
Appellant first argues that appellee was no more than a licensee. The lease agreement granted Supersweet a liberal license to use that part of the premises not actually leased to Supersweet. Appellant had to reserve a use of the spur, however, for access to the other industries to the south. Appellant claims the license was solely for the convenience of Supersweet, generating no additional benefit to appellant.
The auger shaft under the railroad tracks was to the economic benefit of both appellant and Supersweet. The railroad benefited from its carriage of the grain, and had, in fact, strictly limited the use of the spur track by other, competitive railroad companies. It was also advantageous to the appellant to have its cars unloaded as quickly as possible.
Appellant next contends that even if appellee were an invitee, a landowner’s duty to an invitee is to either exercise ordinary care to make the premises safe, or to warn the invitee of dangers that are unknown to him and not likely to be discovered. The appellant cites several Kansas cases which state the duty in the disjunctive: Graham v. Loper Electric Co., supra; and Smith v. Board of Education, supra.
Appellee contends the duty is conjunctive; that is, the landowner must make the premises safe and warn the invitee of dangers that are unknown to him. Kansas cases which hold that the duty is in the conjunctive are: Thompson v. Beard and Gabelman, Inc., 169 Kan. 75, 216 P.2d 798 (1950); Little v. Butner, 186 Kan. 75, 348 P.2d 1022 (1960); and Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971). PIK 12.02 also states the duty of the landowner in the conjunctive.
The Restatement (Second) of Torts, § 343, pages 215-216, provides:
“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk or harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”
Restatement (Second) of Torts, § 343A, page 218, further provides:
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
“(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.”
Section 343A, comment (e), states that if an invitee is informed of the danger, he can make an intelligent choice as to whether the advantage of entering the land is sufficient to justify the risk. In the instant case, we question what choice appellee had other than quitting his job. He had complained of the dangerous condition over a considerable period of time; neither Supersweet nor the appellant did anything to alleviate the danger. Section 343A, comment (f), recognizes situations in which the landowner should anticipate harm regardless of the invitee’s knowledge of the danger. In those cases, the landowner may be required to positively diminish the risk. This “stricter duty” may arise where the owner has “reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Id. at page 220.
We feel such is the situation in the instant case. Appellee worked under conditions where the slightest slip could bring injury. Under such conditions, even a reasonably careful, non-negligent person could be injured. The appellee claims he was using ordinary care at the time of his injury; to sweep grain into the pits and turn the auger on only when the pits were full would be unreasonable, and would constitute “extraordinary” care. Apparently, this was also the jury’s conclusion in finding appellant guilty of 0 percent negligence.
Where reasonable minds may differ, the question of contributory negligence should be submitted to the jury. See Frevele v. McAloon, 222 Kan. 295, 564 P.2d 508 (1977); and Smith v. Union Pacific Railroad Co., 222 Kan. 303, 564 P.2d 514 (1977). It follows that under the law of comparative negligence, allocation of each party’s proportionate negligence must be a question for the trier of fact.
We turn now to defendant’s argument that Supersweet should have been made an actual party, rather than a “phantom” party for purposes of comparison only. Supersweet was immune from suit under the Workmen’s Compensation Act (specifically K.S.A. 1977 Supp. 44-501), but was a necessary “party” to provide a basis for allocation of fault. The employer’s retention for mere comparison purposes was proper. We are guided by Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). The court, in considering K.S.A. 60-258a(c), said at page 206:
“The next preliminary question that presents itself is — will proportionate liability be defeated when a party joined under subsection (c) has a valid defense such as interspousal immunity, covenant not to sue and so forth? The added party in such case would not be a party “against whom such recovery is allowed” and if subsection (d) is taken literally such a party’s percentage of fault should not be considered in determining the judgment to be rendered. It appears after considering the intent and purposes of the entire statute that such a party’s fault should be considered in each case to determine the other defendant’s percentage of fault and liability, if any. The proportionate liability of the other parties to the action under K.S.A. 60-258a(d) should not be increased merely because a party joined under subsection (c) has a valid defense to plaintiff’s claim, other than lack of negligence.”
The court further states at page 207:
“. . . [T]he intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.”
The appellant contends that the trial court erred in the admission of certain evidence. We conclude that it was highly relevant that another person had been injured by the same device (the auger) several years previous. We also find the evidence that appellee and his wife had abandoned plans to have children (because of appellee’s disfigurement) relevant to determine the amount of damages.
For the reasons previously discussed, we conclude that the trial court properly instructed the jury as to duty owed an invitee only. The evidence before the trial court demonstrated that appellant derived financial benefit from appellee’s presence on appellant’s property. See Graham v. Loper Electric Co., supra; Weil v. Smith, supra; and Smith v. Board of Education, supra.
We turn now to the question of whether it was error for the trial judge to answer a question for the jury in the absence of counsel. K.S.A. 60-248(e) provides:
“If after the jury has retired for deliberation, it desires further information as to any part of the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court in such manner as directed by the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response to the request of the jury as the court finds to be required under the circumstances.”
In Howard v. Miller, 207 Kan. 246, 485 P.2d 199 (1971), the court said at page 249:
“Since territorial days we have continuously had statutes providing that communication between court and jury as to the law in the case shall take place in the presence of, or after notice to, the parties or their counsel. . . .”
We conclude it was error for the trial court to answer a juror’s question in the absence of counsel. The question remains whether this constituted prejudicial error. To decide this, we must determine from the record, as best we can, what was said. At page 339 of the trial transcript, Mr. Mullins, in argument to the court, states:
“. . . After the man, who turned out to be the foreman, Mr. Seely, had gone back into the jury room and the jury had resumed their deliberations on the morning of the day they returned the verdict, the Court advised Mr. Fleming and me that that juror, Mr. Seely, had come in and asked the Court a question concerning the obligation of the compensation carrier to make future payment, I believe the Court said for medical expense on behalf of the plaintiff, and I am not sure, but I believe about that time the Court was interrupted by a telephone call, but as I understood it, the gist of the Court’s response was something to the effect that they would be so obligated, although the Court said something to us, to Mr. Fleming and me, and I am not sure whether the Court may have said it to the juror or not, I didn’t get that straight, about there being a lid on that obligation. The effect that any of that may have had, or precisely what was said, as I understand it, was not reported, is that correct, that the court reporter was not present at the time that went on, sir?
“THE COURT: That is correct. You have correct the substance of what was said. They asked one question. At the time the man came to the door and asked me that, counsel were not in the building, and it was a simple question that had a simple answer and I answered it.”
While it is error for the court to answer questions for the jury, except after prior notice to counsel for the parties, such error is not always of a sufficient gravity to require a new trial. Such error must be scrutinized in each case as to whether the same was harmless. Under all the circumstances of this case, we conclude this exchange with the juror was harmless and did not prejudice the substantial rights of the appellant.
Appellant’s claims that (1) appellee’s being found guilty of no negligence is contrary to all the evidence in the case; and (2) the verdict is excessive, are without merit. We have already answered the first part of this complaint. The verdict would not appear excessive considering that appellee has lost part of a leg. The function of the appellate court, however, is not to weigh conflicting evidence or pass on the credibility of witnesses. This court’s concern is with the evidence which supports the jury’s findings, and not with findings which might have been supported. Steele v. Harrison, 220 Kan. 422, 552 P.2d 957 (1976). If a jury verdict is supported by substantial competent evidence, the findings will not be disturbed on appellate review. Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975).
Appellant complains of various instructions as being confusing and conflicting. For the most part, we find appellant’s complaints in this regard to be without merit. Instructions No. 6 and 9 require our attention.
Instruction No. 6 said in part that appellee had a right to assume Supersweet had furnished him a safe place to work. The instruction more properly should have stated Supersweet’s duty without noting what appellee had a right to assume. We feel, however, that if this was error, it was harmless.
Instruction No. 9 informed the jury of the effect of its answers to the special verdict questions (apportioning the parties’ negligence). Appellant’s first objection to instruction No. 9 concerns the following portion of that instruction:
“Under the laws of Kansas applicable to this case, plaintiffs award of damages is reduced by the ratio which his percentage of negligence bt i.s to the total amount of negligence allocated among plaintiff, James Scales, and defendant, St. Louis-San Francisco Railway Company.”
Appellant argues that this is a case of first impression in Kansas, but it has been the rule in other comparative negligence states that the jury is not told the effect of their special answers, either by instruction or argument. We are not bound by the law of other jurisdictions. K.S.A. 60-258a is unique from the comparative negligence statutes of other states. Juries in civil cases have always known the effect of their verdict in monetary terms. They have always been instructed that should they decide in plaintiff’s favor, they should award plaintiff such sum of money as would properly compensate him for his injuries. This is logical because the amount of damages to a prevailing party is a question of fact that the jury is asked to determine. We hold that it was not error for the court to advise the jury of the effect of their special answers on appellee’s award of damages.
We come now to appellant’s last claim of error in which appellant claims the trial court committed error in refusing to assess only 50 percent of the damages found against defendant. The trial court’s judgment was predicated upon Beach v. M & N Modern Hydraulic Press Co., supra. Because we now have the benefit of Brown v. Keill, supra, the decision of the trial court must be reversed insofar as it levies the entire judgment against appellant. It is ordered that the trial court’s judgment be modified by awarding judgment against appellant for $82,500 instead of the $165,000 previously awarded.
Affirmed in part; reversed in part. | [
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Parks, J.:
This is an appeal from a jury verdict which found William J. Brady guilty of two counts of perjury (K.S.A. 21-3805).
The facts may be summarized as follows: Defendant Brady drafted a will for Ruth Janet Hunter, who was a patient in an Atchison, Kansas, hospital. Miss Hunter signed the will which was witnessed by Brady and his secretary on July 17, 1975.
Following Miss Hunter’s death in August, 1975, Brady offered this will for probate. The validity of the testatrix’s signature was questioned by one of the heirs and an investigation followed. The defendant’s deposition was taken on October 27, 1975, and he appeared as a witness during the probate proceedings in November, 1975. On both occasions, he testified under oath that Miss Hunter needed no assistance in affixing her signature to the will.
In a January 31, 1976, statement which was also made under oath, defendant repudiated his prior testimony. This time, he testified that at the testatrix’s request, he had guided her hand when she signed the will.
We first consider the state’s claim that this court has no jurisdiction of this appeal due to the untimely filing of the notice of appeal by the defendant.
K.S.A. 22-3608(2) reads:
“If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within ten days after the order suspending imposition of sentence.”
The state, in reliance upon the above statute, contends that the trial judge announced on November 12,1976, that he was placing the defendant on probation for a period of three years and that the time in which an appeal may be taken begins to run from the date the judgment or order is rendered and not from the date a journal entry is filed. We disagree.
K.S.A. 60-258 (Weeks), amended by Supreme Court order dated July 28,1976, provides that no judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.
In this case, counsel for the state was directed to prepare “separate orders” relating to: (1) The judgment of the court denying defendant’s motions for judgment of acquittal and new trial and the conditions of probation, and (2) the requirements for submitting periodic medical reports to the court. The journal entry was not approved by the parties, signed by the trial judge, and filed until November 23, 1976. There is no entry in the appearance docket or other document which would give the judgment any effective date prior to the filing date of November 23,1976. Following the filing of the journal entry, defendant filed his notice of appeal on November 29, 1976.
Except as otherwise provided by statute or rule of the Supreme Court, the statutes, and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases. K.S.A. 22-3606.
Supreme Court Rule No. 16 [214 Kan. xxxiii], which was in effect at the time of this appeal, provided that a notice of appeal filed subsequent to an announcement by the judge of the district court, but prior to the actual entry of judgment as provided in K.S.A. 60-258 should have the same effect as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with K.S.A. 60-2103(h). This rule supports the view that the filing of a journal entry is a necessary step to the filing of an appeal. While the statutes 60-258 and 60-2103 are civil, no reason is apparent why they should not apply to a criminal case. Ramsey v. Hand, 185 Kan. 350, 360, 343 P.2d 225 (1959); K.S.A. 60-201; K.S.A. 22-3606, supra.
We conclude that the order suspending imposition of sentence was not entered until the filing of the journal entry on November 23, 1976. Accordingly, we hold that the appeal is timely. Rewerts v. Whittington, 1 Kan. App. 2d 557, 559, 571 P.2d 58 (1977); Carnation Co. v. Midstates Marketers, Inc., 2 Kan. App. 2d 236, 577 P.2d 827 (1978).
The primary question is whether the trial court erroneously denied the defendant’s motions for judgment of acquittal.
Judgment of acquittal on a defendant’s motion is governed by K.S.A. 22-3419. The tests to be applied by the trial court when ruling on a motion under that statute are set out in State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), wherein the court held:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
See also, State v. Goodwin, 223 Kan. 257, 260, 573 P.2d 999 (1977); State v. Jones, 222 Kan. 56, 62, 563 P.2d 1021 (1977); and State v. Holt, 221 Kan. 696, 700, 561 P.2d 435 (1977).
The state’s evidence established that on two separate occasions the defendant, under oath, testified that the testatrix signed the will without any assistance from him. The evidence also showed that until his sworn statement on January 31,1976, defendant had continuously asserted that the execution had been routine. It was then that he admitted, “I just put my hand over hers and guided her right through her name.”
We believe the record, reviewed in the light required by our rules of appellate review, supports the trial court’s denial of defendant’s motions. The evidence is sufficient to warrant that a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Colbert, 221 Kan. 203, 210, 557 P.2d 1235 (1976); State v. Holloway, 219 Kan. 245, 547 P.2d 741 (1976).
Judgment is affirmed. | [
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Swinehart, J.:
William Clyde Turner appeals from a jury conviction on a charge of unlawful possession of a firearm (K.S.A. 21-4204). The defendant raises three points of error: that the court abused its discretion (1) in denying his motion for a mistrial; (2) in admitting prosecution rebuttal testimony concerning evidence procured through an illegal search and seizure; and (3) in denying certain requested instructions.
The defendant and two others were tried for aggravated robbery and various weapons violations. All were acquitted on the robbery charge. The defendant was found guilty of a violation of K.S.A. 21-4204.
On the evening of June 11, 1976, Sedgwick County sheriff’s officers staked out a grocery store in Wichita. They had information that the store would be robbed that evening. They had been told to be on the lookout for a Cadillac that belonged to the defendant McCarther and a yellow Mustang belonging to the defendant Turner. Three men were picked up as a result of this stakeout — McCarther, Turner and Hurst.
Turner was arrested driving the Mustang. At the time he was arrested, his car was searched. A gun was found in the car, hidden from sight in a bag of dirty clothing. The gun, a Smith & Wesson 9-mm. automatic, was seized by police officers. Since the defendant had been convicted of a felony within a five-year period immediately preceding this incident, his possession of the gun was unlawful; accordingly, he was charged with unlawful possession of a firearm pursuant to K.S.A. 21-4204. The next day while he was in custody, an officer went to his apartment. A search warrant was not obtained. Turner’s mother used her key to his apartment to let the officer in. She did not occupy the apartment. As a result of this warrantless search, the officer seized a box that a 9-mm. Smith & Wesson was originally packaged in and a clip for the same type gun.
At the trial, the defendant contended that he had been framed. He alleged that he had no knowledge that the gun was in his car, that it had been planted there by the same individual who informed the police that a robbery was going to take place at the grocery store that night. The defendant presented the testimony of a number of witnesses who claimed that the informant, one Flescher, had threatened to frame the defendants. The defendant Turner’s theory is that Flescher had planted these items in his vehicle and in his apartment. At the trial, he testified that he had no knowledge that the gun was in the car. To rebut this testimony, the officer who searched the defendant’s apartment was permitted to testify that he had found a gun box, cartridge clip and a gun cleaning kit in the defendant’s apartment. The gun box was for a 9-mm. Smith & Wesson, as was the clip and the cleaning kit.
The defendant’s first point of error arises out of the following facts. After the trial commenced it was called to the attention of the court that a juror had seen and spoken to a witness at a social event during the course of the trial. That witness was Detective Reed, who testified at the trial that the 9-mm. Smith & Wesson gun found in the possession of the defendant was his gun and that it had been stolen from his home in early 1976. Detective Reed also testified that it had been determined that this defendant had not participated in the burglary because he was in jail at the time it occurred. The conversation between the juror and Detective Reed occurred at a square dance, where the juror sought out Detective Reed inquiring about his presence in the courtroom. Detective Reed, in response, related the above facts. These facts were brought to the court’s attention out of the presence of the jury, and at this time the defendant moved for a mistrial. Defendant’s motion was denied.
K.S.A. 22-3423 provides in part that the “trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because ...(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. . . .”
Here, the conduct involved a juror and a witness. A recent case, State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976), fairly summarizes the rules governing the misconduct of a juror warranting declaration of a mistrial under K.S.A. 22-3423(c):
“Whether a specific instance of juror conduct falling within the broad statutory grounds defined in K.S.A. 22-3423(c) requires a declaration of mistrial is a matter of discretion with the trial court. (State v. Culbertson, 214 Kan. 884, 522 P.2d 391; State v. Finley, 208 Kan. 49, 490 P.2d 630.) Jury misconduct will not constitute a ground for reversal unless it is shown to have substantially prejudiced the rights of either the defendant or the prosecution. (K.S.A. 22-3423[c]; State v. Collins, 215 Kan. 789, 528 P.2d 1221; State v. Arney, 218 Kan. 369, 544 P.2d 334.)
“In determining whether a particular instance of improper communication between a juror and a witness amounts to prejudicial misconduct which will prevent a fair trial the nature of the communication is of considerable significance. When the communication is entirely unrelated to defendant’s case courts generally find insufficient prejudice to require a mistrial (State v. Culbertson, supra; see also Anno., Jurors — Communications With Witnesses, 9 A.L.R.3d, § 9, p. 1289.) When the communication is related to the defendant’s case the trial court may find prejudice and then a mistrial will be declared. (State v. Finley, supra; see also Anno., Jurors—Communications With Witnesses, 9 A.L.R.3d, § 10, p. 1294.)” p. 148.
In addition to these rules, an important consideration is whether or not the juror thinks that he can be impartial. In State v. Finley, 208 Kan. 49,490 P.2d 630 (1971), the Supreme Court held that the juror’s admission that he could not be impartial was a controlling consideration and affirmed the trial court’s grant of a mistrial.
In Finley, the Supreme Court approved the trial court’s grant of a mistrial in a situation where the defendant’s girlfriend sought out one of the jurors and tried to convince him that the defendant was not guilty. This sort of communication is, of course, substantially different from that in the case at hand.
In State v. Arney, 218 Kan. 369, 544 P.2d 334 (1975), the Supreme Court held that it was not error for the trial court to refuse to grant a new trial for juror misconduct. The misconduct in question consisted of the juror’s investigation of the scene of the crime and his report back to the other members of the jury. Although the Court recognized that the juror’s actions constituted misconduct, it was held that the trial court’s decision not to grant a new trial was not an abuse of discretion because the defendant had made no showing that his rights were substantially prejudiced.
In State v. Rhodes, 219 Kan. 281, 546 P.2d 1396 (1976), the Supreme Court approved the trial court’s refusal to grant a mistrial for alleged juror misconduct. In that case a juror talked with the complaining witness in the hall during a recess. They both testified that they did not discuss the case. They knew each other because the juror bought fish at the complaining witness’s fish market. They testified that they discussed fish.
In State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977), the Supreme Court approved the trial court’s refusal to grant a mistrial when a juror and the State’s expert witness exchanged pleasantries in the hall. In an in camera examination, both testified that they did not know of each other’s role in the trial and that nothing was said about the case.
In State v. Jakeway, 221 Kan. at 148, a juror talked to the complaining witness and the juror asked the witness why he was there. The witness replied that he was a witness in a case. He did not explain which case it was, and both testified that they exchanged comments about the juror’s business of hauling hay.
The testimony presented by the juror and Detective Reed out of the presence of the jury was that the conversation was very general in nature. The juror said he did not think he would be prejudiced, and that he could hear all of the evidence and be impartial in his consideration of the issues. Detective Reed’s testimony was only to the effect that the 9-mm. Smith & Wesson gun found in the defendant’s car was his gun, that it had been stolen from his home at a time prior to this offense, and that he was satisfied the defendant was not involved with that theft.
This testimony had very little, if any, bearing on the defendant’s guilt or innocence of possession of a gun in violation of K.S.A. 21-4204. Further, the defendant has failed to show that this incident in any way affected his right to a fair and impartial jury to determine his guilt or innocence. The trial court did not abuse its discretion in denying the new trial.
The defendant’s second ground of error deals with the State’s evidence admitted to rebut the defendant’s testimony. The testimony arose out of a search of the defendant’s apartment a day subsequent to his arrest. This search was conducted by the police without the benefit of a search warrant. Access to the apartment was gained by obtaining a key from defendant’s mother. It is conceded that the testimony admitted would not have been admissible in the State’s case in chief because of Fourth Amendment violation.
The illegal search produced a gun box, a cartridge clip and a gun cleaning kit for a 9-mm. Smith & Wesson, the caliber and make of the gun found in the sack of dirty clothing in the defendant’s car when he was arrested. The officer who conducted the search was permitted to testify, over the defendant’s objection, about the presence of these articles in defendant’s apartment In order to rebut the testimony of the defendant that he had been set up on this charge and that he had never seen or possessed the gun found in his car. The defendant notes in his brief that the articles found in the apartment were not offered and admitted as evidence. Whether these items were admitted or merely discussed in testimony makes no difference vis-a-vis the Fourth Amendment rights of the defendant.
K.S.A. 21-4204 (unlawful possession of a firearm) requires the knowing and intentional possession of the firearm. Here, if the jury were to believe the defendant’s testimony, he would not be guilty of a violation of this law. State v. Neal, 215 Kan. 737, 529 P.2d 114 (1974).
The defendant testified on direct examination that he did not know that the gun in question was in the sack on the day of his arrest. On cross-examination and without objection to the prosecutor’s question, the defendant testified that he had never seen or possessed the gun. Even though the officer’s testimony might be held to have no relevance or probative value to prove knowing and intentional possession of the gun on the date of arrest, we conclude that it was relevant rebuttal of the defendant’s denial of possession of the gun at any time. It challenged the defendant’s credibility. The weight to be given the testimony was up to the jury.
Analysis of case law dealing with the admissibility for impeachment or rebuttal purposes of evidence otherwise made inadmissible by the exclusionary rule concerning illegally obtained evidence indicates that the trial court did not err.
In Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (1954), the United States Supreme Court held that for the purpose of impeachment of the defendant’s testimony it was permissible to introduce testimony describing physical evidence seized from the defendant’s home in violation of the Fourth Amendment. Walder was accused of selling heroin. At trial, he denied participation in the narcotic sale and further claimed that he had never dealt in or possessed any narcotics. In order to impeach his testimony, the prosecution was permitted to introduce testimony that heroin had been seized from him two years previously in a separate and distinct incident. In Walder, the Supreme Court said:
“He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” p. 65.
In United States v. Fox, 403 F.2d 97 (2d Cir. 1968), the Second Circuit Court of Appeals was asked to apply the Walder theory to permit admission of statements obtained in violation of the Miranda warnings. The Court refused to extend Walder to permit the use of statements illegally obtained in order to impeach the defendant’s credibility on collateral matters or matters bearing directly on the question of guilt or innocence. The Court there expressed no view concerning the continued viability of the Walder decision with regard to the admission of evidence seized in violation of the Fourth Amendment but did hold that the Miranda decision barred any trial use of statements taken in violation of the Miranda requirements.
A few years later, the United States Supreme Court had occasion to rule on the admissibility of statements obtained in violation of Miranda in order to impeach a defendant’s testimony. In Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643 (1971), the Court overruled the effect of the Fox decision and revitalized the theory beyond Walder, extending it to include impeachment on matters directly relating to the crimes for which a defendant was on trial. The Court said:
“It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the court in Walder. Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. ” p. 225. (Emphasis added.)
The Court further said:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . .” p. 225.
See also Stone v. Powell, 428 U.S. 465, 482-489, 49 L.Ed.2d 1067, 96 S.Ct. 3037 (1976).
Although we have found no Kansas cases that specifically deal with the admissibility of rebuttal evidence obtained in violation of the Fourth Amendment, the Kansas Supreme Court has followed the Harris rule in holding that evidence obtained in violation of the Fifth Amendment is admissible to rebut a defendant’s testimony. In State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976), the Supreme Court held that a statement obtained in violation of the Miranda rule was admissible in order to rebut the defendant’s trial testimony. There the Court said:
“Evidence which is inadmissible in the case in chief because of noncompliance with Miranda requirements may, however, be used for impeachment under certain circumstances. Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643 (1971), held that statements of a defendant obtained in violation of Miranda rules, so as to render them inadmissible to establish the guilt of the defendant, may be used for purposes of impeachment where (1) such statements are inconsistent with defendant’s trial testimony bearing directly on the crimes charged, and (2) defendant makes no claim that his statements were coerced or involuntary. See 5 Am. Jur. Trials, Excluding Illegally Obtained Evidence, § 32, p. 99 (1976 Supp.).” p. 768.
The Boone court relied on an earlier Kansas case, State v. Osbey, 213 Kan. 564, 517 P.2d 141 (1973), where the Court said: “[T]he shield provided by Miranda could not be perverted into a license to use perjury by way of a defense, free from risk of confrontation with prior inconsistent utterances.” p. 574.
Thus, for the reasons set forth above we find that the trial court did not err in the admission of this testimony to rebut the defendant’s testimony.
Finally, the defendant argues that the court erred in refusing his requested instructions.
The instructions which the defendant alleges should have been given are set forth below:
“2. The defendant William C. Turner is charged with the crime of unlawful possession of a firearm. The defendant pleads not guilty.
To establish this charge, each of the following claims must be proved:
1. That the defendant knowingly had possession of a firearm with a barrel less than twelve (12) inches long:
2. That the defendant within five years preceding such possession had been released from custody for a felony; and
3. That this act occurred on or about the 11th day of June, 1976, in Sedgwick County, Kansas.”
“4. At times during the trial, the Court has ruled upon the admissibility of evidence. You must not concern yourself with these rulings. I have not meant to indicate any opinion as to the facts or as to what your verdict should be by any ruling that I have made or anything that I have said or done.”
“5. Evidence has been admitted tending to show that on other occasions two of the defendants committed offenses similar to those with which they are charged in this case. You will consider the evidence concerning Razook and Brown only in the case against the defendant McCarther and the evidence concerning Luper only in the case against the defendant Turner. The LaCount evidence may be considered against either or both of these defendants. You may consider this evidence as it relates to the plan, preparation or identity of the persons who allegedly robbed the Seneca IGA store on May 27,1976. You will not consider this evidence for any other purpose.”
“6. You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him.
Any evidence which was limited to William C. Turner should not be considered by you as to any other defendant. Any evidence which was limited to Richard L. McCarther should not be considered by you as to any other defendant. Any evidence which was limited to Joseph T. Hurst should not be considered by you as to any other defendant.”
Among the instructions which the court actually gave to the jury are the following:
“2. Count Six charges the defendant William C. Turner with Unlawful Possession of a Firearm. In order to establish this charge, the following elements must be proved:
1. That the defendant possessed a firearm with a barrel of less than 12 inches;
2. That he did so within five years after having been released from custody for a felony;
3. That this act occurred within the two years prior to June 14, 1976 (the date this case was filed) in Sedgwick County, Kansas. . . .
You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law applicable to him.”
“4. The possession and control of a gun contemplated by Counts Two through Six is a willful or knowing possession of the weapon with the intent to control the use and management thereof. Ownership of the weapon is not required.”
“5. Evidence has been admitted tending to show that on other occasions two of the defendants committed offenses similar to those with which they are charged in this case. You may consider this evidence as it relates to the plan, preparation or identity of the persons who allegedly robbed- the Seneca IGA store on May 27, 1976. You will not consider this evidence for any other purpose. You will consider the evidence concerning Razook and Brown only in the case against the defendant McCarther and the evidence concerning Luper only in the case against the defendant Turner. The LaCount evidence may be considered against either or both of these defendants.”
“7. Since the intent with which an act is committed is nothing more than a mental state of the party accused, direct proof of it is not required. The intent is generally derived from and established by the surrounding facts and circumstances as shown by the evidence, and may be established by proof that the conduct of the defendant was purposeful and intentional and not accidental. In any event, a person is presumed to intend the natural and probable consequences of his voluntary acts; this presumption may be overcome if you are persuaded from the evidence that the contrary is true.
So, in this case, the intent with which the defendant committed the offense(s) charged, if you find that he committed such offense(s), must be determined by you and from all the evidence in the case.”
In reviewing the propriety of the instructions given to the jury, the Supreme Court has said: “Error cannot be predicated on the refusal to give specific requested instructions where those which were given cover and include the substance of those refused.” State v. Ponds and Garrett, 218 Kan. 416, Syl. ¶ 3, 543 P.2d 967 (1975). Applying this rule to the defendant’s allegation of error, it is clear that defendant’s proposed instruction No. 2 was substantially covered by the court’s instructions No. 2, No. 4, and No. 7. These instructions adequately informed the jury that possession of the weapon must be knowledgeable and intentional. The defendant’s instruction No. 5 was given to the jury in the court’s instruction No. 5 in virtually the same form. The only difference is the location of some of the sentences. Although the defendant argues that the location of the sentence “you will not consider this evidence for any other purpose” would have made a more lasting impression on the jury had the instruction that he proposed been submitted to the jury, it is impossible to say that the court’s instruction No. 5 did not substantially cover and include his proposed instruction. It appears that the substance of the defendant’s instruction No. 6 was included in the last paragraph of the court’s instruction No. 2. Examination of the two shows that the defendant’s instruction No. 6 is simply a more elaborate explanation of what the court said in its instruction No. 2.
The defendant’s requested instruction No. 4 was taken from PIK Crim. 51.05. The trial court gave no similar instruction to the jury. The only instruction which the trial court gave which is similar to the requested instruction is No. 1 where the court said: “You may consider as evidence whatever is admitted in the trial as part of the record, whether it is the testimony of witnesses, an article or document, or other matter admitted.” Also, in instruction No. 9, the court said: “Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and applying the law. They are not evidence, and you must disregard any statement which has no basis in the evidence.” While it cannot be said that these instructions substantially cover and include the requested instruction, it does not appear that the trial court committed reversible error in refusing to give the requested instruction No. 4. Although an instruction similar to instruction No. 4 undoubtedly should be given as a matter of good trial practice, the defendant has demonstrated no prejudice which resulted to him from the failure to give the instruction. No cases have been located that hold that an instruction similar to PIK Crim. 51.05 must be given.
Since the defendant has not demonstrated any prejudice flowing from the court’s refusal to give the instructions requested, this court will not reverse on that ground.
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Rees, J.;
This is an appeal from a jury conviction of aggravated battery (K.S.A. 21-3414). The charge arose out of a stabbing during an argument over payment to the band following a dance at a private party. Defendant was a member of the band. He did not testify.
Defendant contends the trial court erred in refusing to admit proffered evidence consisting solely of selected portions of a hospital record reciting nothing other than reported statements made by defendant to hospital personnel. The entire hospital record was marked as an exhibit but not proffered. The State objected to admission of the proffered evidence on the ground it was hearsay. We hold the trial court did not err.
The common law hearsay rule and its exceptions, as judicially and legislatively modified in Kansas, are codified. K.S.A. 60-459 et seq. Defendant’s sole contention to the trial court was that the proffered evidence was admissible under K.S.A. 60-460(m), the business records exception to the hearsay rule. No other basis for its admissibility having been presented to the trial court, admis sibility under any other exception to the rule cannot be argued on appeal. State v. Darling, 208 Kan. 469, 475, 493 P.2d 216 (1972). The issue of admissibility of the proffered evidence under K.S.A. 60-460(Z), the statutorily expressed exception to the hearsay rule for statements of physical or mental condition of the declarant, is not before us and we express no opinion as to its applicability to the proffered evidence.
Assuming appropriate foundation for admission of all or part of the hospital record in this case, the problem is that double hearsay is involved. The proffered evidence constitutes hearsay statements of hospital personnel reporting statements of the defendant. It was offered to prove the truth of such included statements. The business records exception, K.S.A. 60-460(m), renders admissible hearsay statements of hospital personnel but does not render admissible included hearsay statements absent admissibility of the included statements under some other exception to the rule. K.S.A. 60-463.
“The mere fact that recordation of third party statements is routine, as in official reports or hospital records, is no guaranty of the truth of the statements themselves. In this situation there are two hearsay barriers. The exception for business entries removes one of the barriers, and the removal of the other must depend on whether there is an independent basis for admissibility of the included hearsay declarations under some other exception to the hearsay rule.” 2 Jones on Evidence § 8.8 (6th ed. 1972), pp. 178-179.
In State v. White, 72 Wash. 2d 524, 530, 433 P.2d 682 (1967), a case involving the admissibility of a hospital record, it is said:
“Although the Uniform Business Records as Evidence Act allows regularly kept business records in evidence when proof that their custody, control and making shows prima facie that they are maintained in the regular course of business, the statute ipso facto does not render admissible such parts of the records as are otherwise excludable under well-established rules of evidence. If regularly maintained under a prearranged and established scheme, business records may be admitted to show the occurrence of events, conditions, conduct and status of things existing or occurring contemporaneously with the making of the records, but they are not admissible as a narrative of occurrences antedating the making of the notations. In short, although the Uniform Business Records as Evidence Act establishes a statutory exception to the common-law rule against hearsay evidence, it does not in all respects render admissible evidence contained in the record which should ordinarily be excluded.”
Defendant’s reliance upon In re Estate of Bernatzki, 204 Kan. 131, 134-135, 460 P.2d 527 (1969), is misplaced. Bernatzki held medical records admissible under K.S.A. 60-460(m). The state ments there at issue were of the entrants, hospital personnel, not a third party declarant. In this case, defendant is a third party declarant. Defendant’s reliance upon State v. Brierly, 109 Ariz. 310, 509 P.2d 203 (1973) [blood type, see p. 318]; Henson v. State, 332 A.2d 773 (Del. 1975) [physician’s clinical findings, see pp. 774, 775]; State v. Finkley, 6 Wash. App. 278,492 P.2d 222 (1972) [physician’s finding, see p. 280]; and People v. Terrell, 138 Cal. App. 2d 35, 291 P.2d 155 (1955) [physician’s diagnostic conclusion, see pp. 56-57], is distinguishable. In none was there the issue of admissibility of double hearsay.
In Ferrier v. State, 5 Md. App. 553, 248 A.2d 501 (1968), the defendant was convicted of assault and battery. He argued on appeal that the trial court erred in admitting into evidence as a prosecution exhibit the hospital record concerning treatment of the victim’s injuries. Part of defendant’s argument was that the victim’s statement of medical history was not “pathologically germane” to treatment and therefore not admissible. The Maryland Appellate Court held that as to the particular statement involved it saw no error in its admission and in the context of other trial evidence if there was error in admission of the hospital record it was not reversible error. 5 Md. App. at 557. As to the case before us, Ferrier is not in point because we do not have before us the question of applicability of K.S.A. 60-460(1).
People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940), held hospital records inadmissible in a criminal action. People v. Herrera, 12 Mich. App. 67, 162 N.W.2d 330 (1968), reversed on other grounds, 383 Mich. 49, 173 N.W.2d 202 (1970), limited Letois. In Herrera, defendant’s conviction of manslaughter of her husband was affirmed upon a finding of nonprejudicial error. The defense of temporary insanity was a trial issue. The defendant had been admitted to a hospital on a date four months prior to the killing of her husband. She offered as an exhibit the hospital record that concerned her hospital admission, her apparent physical condition and her consumption of an unknown amount of phenobarbital. It was found that under the Michigan business entries statute the trial court erred in its refusal to admit the exhibit but not as to the diagnosis made at the time of her admission. 12 Mich. App. at 76-77. Whether the hospital record included statements of defendant or any other third party declarant is not disclosed by the opinion. Accordingly, Herrerais of no assistance in our decision.
We hold the trial court refusal of defendant’s proffered evidence was not because of misapplication of the business records exception.
Aggravated battery, in contrast to battery (K.S.A. 21-3412), includes an element of particular or specific intent, that is, the “intent to injure.” State v. Warbritton, 211 Kan. 506, 508, 506 P.2d 1152 (1973). Under K.S.A. 21-3208(2), the fact of voluntary intoxication may be taken into consideration in determining such intent. Defendant claims error in the refusal of the trial court to instruct the jury as to the substance of K.S.A. 21-3208(2).
It is correctly argued on appeal that the trial court is duty bound to instruct on any defense supported by evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory. State v. Seely, 212 Kan. 195, 197, 510 P.2d 115 (1973). The question before us is whether there was sufficient evidence to require that the jury be given a voluntary intoxication instruction in this case.
The purpose of a voluntary intoxication instruction is to direct the jury that it may consider whether defendant’s mind was so affected by alcohol or drugs that defendant was incapable of forming the requisite specific intent. See State v. Boyd, 216 Kan. 373, 379, 532 P.2d 1064 (1975). Where the giving of a voluntary intoxication instruction has been approved, there has been affirmative evidence that the defendant had no recollection of the occurrence or events out of which the charge arose. State v. Seely, 212 Kan. at 196-197. Our limited research has disclosed no Kansas case reversing for failure to give a voluntary intoxication instruction. Where the existence of a mental state incapable of forming a specific intent has been negated by evidence, the lack of the instruction has been held not erroneous. State v. Kleber, 2 Kan. App. 2d 115, 117, 575 P.2d 900, rev. denied, 224 Kan__ (May 5, 1978); State v. Wright, 221 Kan. 132, 139, 557 P.2d 1267 (1976); State v. Gross, 221 Kan. 98, 100, 558 P.2d 665 (1976).
What evidence was there of voluntary intoxication of defendant? There was none other than the testimony of his wife and the proffered evidence which we have found was not erroneously excluded. No attempt was made by defense counsel to elicit testimony of any other witness in the nature of affirmative evidence of defendant’s intoxication.
In regard to Mrs. Davis’ testimony, defendant contends she was prevented from testifying that defendant was drunk. This argument does not hold up. Although objections to various questions directed to her were sustained, the record discloses she testified that at the time of the argument defendant appeared to her to be drunk.
In summary, Mrs. Davis also testified that during the course of the evening, from 9:00 p.m. to midnight or 12:30 a.m., defendant “had about twenty beers”; “[e] verybody was drinking. I was even drunk myself. Everybody was” (emphasis supplied); defendant “was kind of staggering around” after the dance; and his eyes were red.
It is not contradicted that throughout the evening defendant’s physical dexterity was such that he successfully played guitar in the band. He had such control of his faculties that he was an active participant in the post-dance argument over payment by check or in cash. He had sufficient presence of mind to obtain a shovel with which to defend himself when about to be accosted after the stabbing and then to abandon the shovel and depart the immediate scene of the confrontation.
Mrs. Davis not only described defendant as drunk, she also described herself and all others involved as having been in the same condition. Yet she and these same other persons who testified were each able to describe the events of the evening and at the time of the incident in considerable and specific detail.
The recollection and specific descriptions of Mrs. Davis and the other witnesses to the affray, as displayed by their trial testimony, must be considered in this case to be the yardstick by which defendant’s mental condition was to be found. As such, their testimony negates defendant’s claim of incapability to form an intent to injure. In the absence of any other evidence, Mrs. Davis’ description of defendant as drunk, “kind of staggering” and red-eyed, was insufficient to afford a reasonable basis for a jury finding that defendant’s mental state was such that he was incapable of forming the required specific intent. The trial court did not err in refusing the requested involuntary intoxication instruction.
Eight witnesses to the events of the evening testified. The victim, Becker, testified he was stabbed but he did not know by whom or with what. Talley testified he saw a knife with a three or four-inch blade in defendant’s hand and saw defendant then stab Becker in the abdomen with the knife. Chapman stated he did not see the stabbing, but afterward he saw defendant fold up a knife and put it in his pocket. The other five witnesses testified for the defense. They saw neither a knife nor a stabbing.
All the elements of aggravated battery were supported by the eyewitness testimony of Talley. It cannot be said there was insufficient evidence to support the verdict. The issue on appellate review is not whether the evidence shows guilt beyond a reasonable doubt, but whether the evidence is sufficient to form a basis for a reasonable inference of guilt when viewed in the light most favorable to the State. State v. Berry, 223 Kan. 566, 570, 575 P.2d 543 (1978).
Defendant’s trial defense is difficult to discern. Its essence seems to have been that there was reasonable doubt preventing conviction because five of the eight witnesses saw no knife or stabbing. However, in his argument to the trial court concerning admissibility of the proffered evidence, defense counsel stated that an issue upon which he was relying was defendant’s intoxication and lack of specific intent.
Failure of the trial court to instruct as to the lesser included offense of battery (K.S.A. 21-3412) is claimed reversible error. The duty to instruct on a lesser included offense arises only where clearly required by the evidence and where defendant might reasonably be convicted of the lesser offense if the instruction is given. K.S.A. 21-3107(3); State v. Buckner, 221 Kan. 117, 121, 558 P.2d 1102 (1976). We conclude that, as in State v. Wright, 221 Kan. at 136-138, there was no evidence on which defendant might reasonably have been convicted of the lesser offense of battery; there was no evidence reasonably negating an intent of defendant to injure; and there was no duty to instruct on the lesser offense. Defendant was charged with aggravated battery. He was either guilty or not guilty. The jury justifiably concluded he was guilty.
It is contended that the instruction on burden of proof and reasonable doubt was erroneous. The instruction given varied from defendant’s requested instruction and PIK Crim. 52.02 only in that the phrasing of the last sentence is reversed. PIK Crim. 52.02 has been approved on appeal. There is no error if an instruction covers and includes the substance of a requested instruction. State v. Taylor, 212 Kan. 780, 784-785, 512 P.2d 449 (1973); State v. Wilkins, 215 Kan. 145, 153, 523 P.2d 728 (1974). It did not reasonably mislead the jury and is to be approved. Klaus v. Goetz, 211 Kan. 126, 130, 505 P.2d 726 (1973).
We hold refusal of defendant’s motion for a new trial was not erroneous because we hold none of the claimed errors asserted in defendant’s motion constituted error.
Defendant was not denied a fair trial. State o. Floyd, 210 Kan. 383, 502 P.2d 744 (1972), cited by defendant, is neither to the contrary as applied in this case nor in point.
Defendant’s final arguments challenging the constitutionality of our habitual criminal statute (K.S.A. 21-4504) and its application in the sentencing of defendant have all been considered and decided adversely to defendant. State v. Steward, 219 Kan. 256, Syl. ¶ 15, 270, 547 P.2d 773 (1976); Churchill v. State, 216 Kan. 399, 532 P.2d 1070 (1975); State v. Collins, 214 Kan. 247, 248, 519 P.2d 1396 (1974); Clinton v. State, 210 Kan. 327, 328-329, 502 P.2d 852 (1972). See also State v. Eaton, 213 Kan. 86, 90, 515 P.2d 807 (1973).
Affirmed. | [
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Parks, J.:
Defendant William (Billy) Alan King appeals from a jury conviction of aggravated juvenile delinquency. K.S.A. 21-3611(l)(f).
In March, 1977, the defendant was committed to the Youth Center at Topeka, Kansas. At that institution he was treated for psychological problems by psychiatrist Dr. Roman Rodriguez, who prescribed the medication Stelazine for him. Once before and twice after the drug regimen was initiated, defendant ran away from the Youth Center. All three elopements occurred within a six-month period, and are the basis for the aggravated delinquency charge. The defense was that he was not acting voluntarily when he ran away but was involuntarily intoxicated by the drugs being given to him.
Lawrence Penny, Youth Center superintendent, was called as the state’s first witness. He testified on cross-examination as to certain medical entries in the defendant’s institutional record. One such entry indicated that on June 25, 1977, 10 milligrams of Stelazine were prescribed for the defendant. The entry in the “side effect/result” column for the same date contained the phrase “went AWOL.”
After Mr. Penny testified, the state moved to endorse the treating psychiatrist, Dr. Rodriguez, who could testify about the side effects of the drug prescribed for the defendant. It was the state’s contention that going AWOL is not a side effect. At that point, counsel for the defendant argued that he too would need to call an expert witness experienced in drug treatment and well informed about the side effects of drugs. Defendant requested funding for these services under K.S.A. 22-4508.
Both counsel were questioned by the court about their reasons for not requesting the services before the trial. The defendant was aware of the medical entry prior to the trial, had requested jury instructions based upon involuntary intoxication and had brought the matter into issue during cross-examination of Mr. Penny. Defense counsel explained, “We didn’t think expert testimony was necessary, the record speaks for itself.” On the other hand, the state claimed surprise in that it had no idea that the defendant was going to use an involuntary intoxication defense or anything related to medication.
Without making any preliminary findings, the court agreed to allow both sides to endorse and call an expert. After initially suggesting that both parties utilize the services of Dr. Horne, the psychiatrist for the Unified Court Services, the court ruled that Dr. Horne would be made available to the defendant. Dr. Rodriguez was later permitted to testify for the state.
The sole issue is whether the trial court erred in refusing to allow the defendant funds to employ an expert witness of his own choosing.
K.S.A. 22-4508 provides in pertinent part:
“Upon finding, after appropriate inquiry in an ex parte proceeding, that the [expert’s] services are necessary . . . the magistrate or court shall authorize counsel to obtain the services on behalf of the defendant.”
Whether expert services are necessary to an adequate defense is a matter left to the sound discretion of the trial court. A denial of an application for expert services will not be disturbed in the absence of a showing that the court abused its discretion to the extent that the defendant’s substantial rights have been prejudiced. State v. Burnett, 222 Kan. 162, Syl. ¶ 3, 563 P.2d 451 (1977). Under the terms of K.S.A. 22-4508 there must be a finding by the court that the services are necessary and a determination as to the necessity for them rests within the sound discretion of the court. State v. Campbell, 210 Kan. 265, 274, 500 P.2d 21 (1972); State v. Frideaux, 207 Kan. 790, 792, 487 P.2d 541 (1971).
Here the defendant requested expert services in order to rebut Dr. Rodriguez’s testimony. The trial court made no finding, as required by statute, that those services were necessary. Absent that finding, the trial court had no duty to grant the request.
This court finds no abuse of discretion on the part of the trial court.
Judgment is affirmed. | [
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Foth, C.J.:
The sole issue in this case is whether the grant of authority to prosecuting attorneys conducting inquisitions under K.S.A. 1977 Supp. 22-3101(2) to issue “subpoenas” includes the authority to issue subpoenas duces tecum. We hold that it does.
The action was precipitated by a subpoena issued by the district attorney of the eighteenth judicial district (Sedgwick county) in connection with an investigation of alleged violations of the narcotics laws. The subpoena commanded the security manager of the Southwestern Bell Telephone Company to appear before the district attorney and bring with him all records in possession of Bell showing telephone numbers charged with making calls to certain telephone numbers in Kansas for a specified three month period.
The response from Bell was this suit for a declaratory judgment, seeking to enjoin the enforcement of this subpoena and the issuance of any more like it. The trial court, reading the statute as authorizing a subpoena for a witness to testify but not a subpoena duces tecum, granted the injunction prayed for. The district attorney has appealed.
K.S.A. 1977 Supp. 22-3101, the “inquisition” statute, has three subsections. The first applies to the investigation of any crime, and provides for subpoenas to be issued by a judge upon application by a prosecutor. Subsection (3) deals with taking testimony and provides that refusal to testify may be adjudged contempt of court. Subsection (2), under which this subpoena was issued, authorizes subpoenas by the prosecutor, without the necessity of judicial action, in the investigation of certain specified crimes. It provides:
“(2) If the attorney general, assistant attorney general or county attorney of any county is informed or has knowledge of any alleged violation of [the statutes of] this state pertaining to gambling, intoxicating liquors, criminal syndicalism, racketeering, bribery, tampering with a sports contest, narcotic or dangerous drugs or any violation of any law where the accused is a fugitive from justice, he or she shall be authorized to issue subpoenas for such persons as he or she shall have any reason to believe have any information relating thereto or knowledge thereof, to appear before him or her at a time and place to be designated in the subpoena and testify concerning any such violation. For such purposes, any prosecuting attorney shall be authorized to administer oaths.”
The case was submitted below on stipulated facts and the arguments of counsel. The trial court reached three conclusions of law:
“1. K.S.A. 1977 Supp. 22-3101(2) confers specific authority upon the District Attorney to personally issue subpoenas to persons to appear before him and testify under oath. This specific authority cannot be broadened by judicial interpretation to include the power to issue a subpoena duces tecum.
“2. This Conclusion in no way implies any restriction upon the power of the District Judge to issue subpoenas in an inquisition proceeding brought pursuant to K.S.A. 1977 Supp. 22-3101(1).
“3. Plaintiff’s allegations concerning the constitutionality of said statute becomes moot by virtue of this ruling.”
On appeal the district attorney challenges the first conclusion. Bell relies solely on that conclusion; it filed no cross-appeal, and does not seek to support the judgment on any alternative ground or reasoning. Bell concedes it has the information sought. Hence we do not consider whether this particular subpoena was over-broad or oppressive, or whether it was issued in good faith for a legitimate law enforcement purpose. The parties are agreed that the judgment below must stand or fall on a pure question of statutory interpretation.
The parties devote a good deal of their briefs to the question of whether the civil code provisions for subpoenas are incorporated into the inquisition statute by virtue of references to them elsewhere in the code of criminal procedure. We do not find this discussion of much help in answering the question posed by this case, although we would probably agree with Bell that the inquisition statute stands on its own even though it is part of the code of criminal procedure. The trial court apparently relied on the inquisition statute alone, and gave a strict construction to its language permitting subpoenas for “persons” to appear and “testify.” Bell argues that such a construction is warranted because, it says, the statute is penal in nature, and because subpoenas duces tecum are specifically authorized elsewhere in the statute book.
The first argument we view as fallacious; the power to investigate crimes and issue subpoenas has nothing penal about it. The statutes defining crimes are obviously penal, and are strictly construed because people are entitled to fair notice of what conduct may subject them to penalties. Here, a contempt of court penalty may be imposed for failure to comply with the subpoena, but not for violation of the statute. The subpoena itself may be strictly scrutinized to see if there has been willful disobedience justifying punishment, but we do not see that as a reason to strictly construe the authorizing statute. If we must categorize it, we would think it a remedial statute which should be liberally construed to effectuate its purpose.
The second argument, invoking the doctrine of expressio unius, has more substance but does not convince us. It is true that under K.S.A. 50-153 the attorney general, when conducting an inquisition in antitrust cases, is specifically authorized to issue subpoenas duces tecum. However, the grand jury statute (K.S.A. 1977 Supp. 22-3008), enacted at the same time as our present inquisition statute as part of the 1970 code of criminal procedure, also speaks only of process to bring “witnesses to testify,” and makes no mention of the production of documents. Likewise, subsection (1) of K.S.A. 1977 Supp. 22-3101, dealing with judicially supervised inquisitions, also speaks only of subpoenas for “witnesses” to “appear and testify.” Yet we would suppose no argument would be made that subpoenas issued under either statute could not command the production of documents. Indeed, the court below in its second conclusion of law specifically recognized the right of a judge to issue subpoenas duces tecum under 22-3101(1), despite the fact that its language is no broader than that of 22-3101(2).
The only justification for distinguishing between the subpoena powers under the grand jury and judicial inquisition statutes on the one hand, and the prosecutorial inquisition statute on the other, is to recognize and rely on the inherent right of courts to issue subpoenas — a right not possessed by prosecutors. While the authorities generally recognize that proposition, we doubt that the legislature chose its language with that in mind. It strikes us as more probable that in employing similar language in all three cases the legislature expected the power granted to be construed as being the same in all three.
As we see it, the real task in this, as in all statutory construction cases, is one of determining legislative intent. Expressio unius and all other “rules” of statutory construction are merely aids to assist in that chore, and are to be applied only where they are helpful in achieving that end. Commerce Trust Co. v. Paulen, 126 Kan. 777, 271 Pac. 388 (1928); Harkrader v. Whitman, 142 Kan. 186, 46 P.2d 1 (1935). In this case we are to determine simply whether the legislature intended a prosecutor who was conducting a criminal investigation to be able to compel the production of documents, or whether it meant to limit him to the interrogation of witnesses.
On this issue the district attorney makes an argument which we find compelling. There can be no doubt that the county prosecutors of this state, along with the attorney general, have a duty to investigate all criminal activity which comes to their attention, and that the inquisition statute is a primary tool entrusted to them by the legislature to assist in that function. State, ex rel., v. Rohleder, 208 Kan. 193, 490 P.2d 374 (1971); State v. Brecheisen, 117 Kan. 542, 232 Pac. 244 (1925). If information about criminal activity is in the hands of an individual, it can clearly be acquired by compelling that individual’s testimony. If, as here, the information is in the hands of a corporation in the form of corporate records, the construction adopted below would mean it is beyond the reach of the official charged with the duty of investigating and prosecuting. We find it hard to believe the legislature intended the forces of law enforcement to go into the battle against crime with half their guns spiked.
As we read the cases cited by Bell, they stand for the proposition that agents of the executive branch (such as a county prosecutor or attorney general) have no subpoena power in the absence of express statutory authority. We have no quarrel with that general proposition. For example, in State ex rel. Woodahl v. District Court, 166 Mont. 31, 530 P.2d 780 (1975), the trial court had declined the attorney general’s request to convene a grand jury because, inter alia, it found he had statutory subpoena power under which he could accomplish the desired investigation. On this issue the Montana Supreme Court construed the applicable subpoena statute as applying only to cases actually pending in court, and held that a grand jury should be convened. The scope of such subpoenas was not in issue. The same kind of reasoning led the Georgia court to deny the subpoena power in Williams v. Bolton, 227 Ga. 671, 182 S.E.2d 440 (1971). There the attorney general was authorized to investigate the “affairs of any department” of state government. This was held not to include an investigation of individual wrongdoing by a single state employee. Again, the scope of the subpoenas was not considered. In the same vein, Com. ex rel. Margiotti, Aplnt. v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951) holds that under the Pennsylvania Administrative Code the subpoena power was granted to administrative agencies (including the department of justice) only in connection with a hearing, and not a mere investigation.
Only one of Bell’s cases bears directly on the question before us. In Donatelli Bldg. Co. v. Cranston Loan Co., 87 R.I. 293, 140 A.2d 705 (1958), a city council committee issued a subpoena duces tecum under a statute authorizing it to “issue subpoenas to witnesses to testify” in any matter pending before it. The court held that the statutory grant extended only to subpoenas ad testificandum, and not to subpoenas duces tecum. Further, it held that a court could not lend its own subpoena power to assist an agency not possessing it. Although our research has been limited, the case is the only one we find which takes such a restrictive view of the extent of the subpoena power, once it is determined that the power exists.
Bell’s final case on this subject, In re McGowen, 303 A.2d 645 (Del. 1973), does nothing for its position and in fact cuts the other way. There the attorney general had issued a subpoena duces tecum directing a news photographer to turn over a photograph to a policeman. The court held the subpoena should have been quashed because it did not comply with the authorizing statute, in that it was not returnable at the attorney general’s office and was not issued as part of an attorney general’s investigation.
The statute in question authorized the attorney general to “subpoena witnesses and evidence.” The court saw no substan tial difference between this statute and its progenitor which had merely authorized process to “compel the attendance of witnesses.” The court said:
“The purpose of this statutory grant of power was to ‘confer upon the Attorney General, in the investigation of crime and other matters of public concern, powers similar to those inherent in grand juries’, including the grand jury’s power to ‘compel the appearance of witnesses and the production of documents.’ In re Hawkins, Del. Supr., 123 A.2d 113 (1956). The Statute was originally enacted in 1873. At that time, there were only two sessions of the grand jury each year. As explained by Chief Justice Southerland in Hawkins: (123 A.2d at 115)
“ ‘The legislature may well have thought it desirable to clothe the Attorney General, in the exercise of his prosecuting function, with full investigatory powers during the long vacations. (The original act of 1873 used the phrase “in vacation”.) Whether or not this surmise be correct, it is clem that the general investigatory powers of the grand jury are now shared, at least to a substantial extent, by the Attorney General.’
“As further stated in Hawkins, the statutory grant included the power, in aid of investigations of suspected violations of the law, to compel the production of documents ‘for examination by the Attorney General.’ ” (Id. at 647. Emphasis added.)
The Hawkins case, quoted in McGowen, dealt with whether the power to issue “process” for “witnesses” included the power to compel the production of documents. As noted, the answer was yes, the court saying:
“The phrase used in the quoted statute — ‘process to compel the attendance of witnesses’ — naturally includes both kinds of subpoena, since both me designed to elicit from a witness facts in his possession, whether drawn from his memory or from his records. There is no significant difference in our practice between the right to issue a subpoena ad testificandum and the right to issue a subpoena duces tecum. Either issues as of course in any lawsuit, at the direction of counsel. Woolley, Delaware Practice, §§ 570, 573. Indeed, the form of the latter writ is identical with that of the former except that it includes an additional clause specifying the documents to be produced by the witness. Woolley, op. cit. § 573.” (In re Hawkins, 123 A.2d 113, 115 [1956].)
New Jersey takes the same view as to the identity of the two types of process. In Catty v. Brockelbahk, 124 N.J.L. 360,12 A.2d 128 (1940), the court considered a statute dealing with proceedings in aid of execution, authorizing “process of subpoena ad testificandum. ” The question was whether a subpoena under that statute could require the production of documents. Yet in the face of such apparently restrictive language the court held a subpoena duces tecum was authorized, observing:
“A subpoena ad testificandum does not lose any of its identity or its quality and become something else because there is added thereto a clause of requisition to the witness to bring in certain records in his possession pertinent to ‘the matters involved’ without which the power of process to compel his testimony might well be valueless. Textwriters seem to take the position that the term subpoena ad testificandum is a technical and descriptive name for the ordinary subpoena. 60 C.J. 689; 70 C.J. 43, sec. 22G; and that a power to compel testimony by subpoena as a general rule connotes authority to include therein a duces tecum requirement. 70 C.J. 48, sec. 34. And it seems to me to be a sensible view. After all, the words 'sub poena’ looking to the meaning, certainly have no relation whatever to process. Custom and tradition have, however, made the words synonymous with process of a certain kind. It is an erroneous view to my mind to hold that subpoena duces tecum is something different and apart from subpoena ad testificandum and that the latter term does not include the former. . . .” (Id. at 363.)
Catty was quoted approvingly in In re Saperstein, 30 N.J. Super. 373, 104 A.2d 842 (1954), in construing the subpoena provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. The term there used was “summons,” which was statutorily defined to include “a subpoena, order or other notice requiring the appearance of a witness.” Relying on Catty and other cases of the same tenor, the court found a subpoena duces tecum was authorized, saying:
“In view of the earlier determinations of our courts on matters concerning somewhat similar statutes and the fact that the Uniform Act was enacted in aid of comity between states to assist the orderly and effectual administration of justice and prosecution of criminal conduct, we conclude that the Legislature, in enacting [the New Jersey statute] was aware of the case law holding the term ‘subpoena’ to embrace ‘subpoena duces tecum and intended no change in that viewpoint, else it would have been made by that body.” (Id. at 379-80.)
[Contra, In re Grothe, 59 Ill. App. 2d 1, 208 N.E.2d 581 [1965].)
Finally, among foreign cases, we are impressed by State ex rel. Pollard v. Marion Crim. Ct. et al., 263 Ind. 236, 329 N.E.2d 573 (1975). The issue there was whether the Indiana statutes governing grand juries authorized subpoenas duces tecum or only subpoenas ad testificandum. The statutes used the term “subpoena” without qualification, and spoke of requiring witnesses “to appear and testify.” The Indiana Supreme Court did not rely on the inherent power of courts to issue subpoenas, but looked at the problem as one of statutory interpretation in which it was required to meet the same kind of “expressio unius” argument made here.
In doing so it discussed at length the investigative role of the grand jury throughout the history of this country, noting that “[i]t has long been recognized that a primary function of the grand jury is to conduct investigations which have been pejoratively called inquisitions.” (Id. at 245.) The court concluded that the function was still a vital one, and recognized as such by the legislature when it charged the grand jury with its ongoing duty:
“The grand jury as a powerful arm of the court has not been withered by the legislature. In view of its broad purpose in ferreting out criminal conduct, we are reluctant to wither that arm by reading the statute as relators would have us read it. To do so would render the legislative command to the grand jury to inquire into ‘wilful and corrupt misconduct in office of public officers of every description’ ... a nearly impossible task. If the personal records of public officials bear the indelible marks of illegal conduct, those records should, with proper safeguards, be made available for the grand jury’s inspection. We, therefore, conclude that the grand jury may require witnesses to produce papers and documents relevant to the grand jury investigation.” (Id. at 247-8.)
The analysis, it will be seen, is the same as ours in this case.
In practice in this state grand jury investigations are relatively rare, while prosecutorial investigations are relatively frequent. We ordinarily commence our prosecutions by complaint and preliminary hearing rather than by indictment. We think it may be fairly said that the inquisition statutes we deal with here have largely replaced the grand jury investigation as a working tool of law enforcement, and that fact was surely known to the legislature when it enacted the 1970 code of criminal procedure. If we are to give a common-sense construction to the statute we must hold that the power to subpoena a witness to testify encompasses the power to compel the production of unprivileged documents in the possession of the witness.
Bell makes some argument that the conclusion we reach would be unconstitutional. United States v. Miller, 425 U.S. 435, 48 L.Ed.2d 71, 96 S.Ct. 1619 (1976), cited by Bell, establishes that bank customers have no Fourth Amendment interest in their bank records, so that such records could be lawfully obtained by a grand jury through subpoenas duces tecum addressed to a bank. We would suppose this disposes of any claim which might be made by Bell’s customers. More recently, in Zurcher v. Stanford Daily, 436 U.S. 547, 56 L.Ed.2d 525, 98 S.Ct. 1970 (1978), it was held that documentary information about suspected criminal activity could be obtained from an innocent third party — even a newspaper — by means of a search warrant. The Court there rejected the argument (accepted by the courts below) that the prosecutor should have first proceeded in a less drastic fashion, by way of a subpoena duces tecum. That case would appear to dispose of Bell’s interests, which surely do not rise to the level of the First Amendment rights of a newspaper. And cf. United States v. New York Telephone Co., 434 U.S. 159, 54 L.Ed.2d 376, 98 S.Ct. 364 (1977).
Bell also points to the possibility of abuse if the prosecutor’s discretion is unfettered. The short answer is that there is no claim of abuse in this case. Beyond that, the courts are always open to prevent abuse in suits such as this one, if the need arises. In the meantime, we indulge in the customary presumption that public officers will act in good faith.
The judgment is reversed and the case is remanded with directions to dissolve the injunction and render a declaratory judgment in favor of the district attorney. | [
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Swinehart, J.:
This is an appeal of the trial court’s refusal to issue an injunction preventing the workmen’s compensation examiner or director from modifying a preliminary award under K.S.A. 1977 Supp. 44-534a.
The appeal to this court was submitted on the following agreed statement of facts as provided by Supreme Court Rule 3.05.
“1. On the 31st day of March, 1977, this Plaintiff/Appellant filed an Application for Workmen’s Compensation Benefits with Bryce C. Moore, Workmen’s Compensation Director of Kansas. In addition thereto this Appellant, on the 5th day of April, 1977, filed an Application for Preliminary Hearing for benefits pending the final disposition of his Workmen’s Compensation Claim. This application was scheduled for hearing on April 26, 1977, and the hearing was held as scheduled with Alvin E. Witwer as Examiner for the Workmen’s Compensation Director. On April 29, 1977, this Examiner made an order which, in pertinent parts is as follows:
“ ‘WHEREFORE, IT IS ORDERED that the respondent Aquadyne, Inc., and its insurance carrier, Aetna Casualty & Surety Company, pay to the claimant temporary total disability benefits at the weekly rate of $112.67 from April 5, 1977, until the claimant is able to resume substantial gainful employment or until further Order of the Director; and that the respondent and its insurance carrier furnish medical treatment to the claimant, said medical treatment to be given by H. James Armstrong, M.D. or by such treating orthopedic physician as the respondent and insurance carrier shall select.’
“2. That on the 26th day of July, 1977, the aforesaid employer and its insurance carrier filed a motion to terminate the preliminary award as above stated. This motion was set to be heard August 9, 1977. On August 9, 1977, the Examiner was informed that Appellant (claimant) had undergone surgery at Mt. Carmel Medical Center, Pittsburg, Kansas on August 5, 1977, and was, at that time, in the hospital and would remain there for an indefinite period. The Examiner told counsel that the motion would be taken up on August 23,1977. On August 11, 1977, the Examiner notified the parties by letter that the motion would be heard on August 23, 1977. On August 23, 1977, restraining order was served upon the Examiner. Plaintiff further states that, as provided in K.S.A. [1977 Supp.] 44-534a, provisions are made for preliminary benefits as follows:
“ ‘Upon a preliminary finding that the injury to the workman is compensable and in accordance with the facts presented at such preliminary hearing, the Director or Examiner may make a preliminary award of medical and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim.’
“3. The Plaintiff, in his Petition, alleges that he will sustain irreparable damage if a restraining order is not made forthwith preventing the said Examiner from rescinding and vacating said temporary award. This matter was set for hearing and was heard by the District Judge on the 14th day of September, 1977, and an order was made, copy of which is attached hereto and made a part hereof. The Plaintiff thereafter filed his Notice of Appeal and the matter is now pending in the Court of Appeals of the State of Kansas. The sole issue herein is whether or not the Examiner has authority to rescind the order he had earlier made on April 29, 1977, prior to a final award being made.”
The trial court found that it was without jurisdiction, citing Bushman Construction Co. v. Schumacher, 187 Kan. 359, 356 P.2d 869 (1960), and Wilson Certified Foods, Inc. v. Reid, 211 Kan. 613, 507 P.2d 339 (1973).
The appellant Short, the claimant, alleges the trial court erred when it found that Chapter 44 of K.S.A. (Workmen’s Compensation Act) is complete and exclusive in dealing with the rights and responsibilities of the workman and the employer and the duties of the director and examiner in relationship to this problem, and therefore the court was incorrect in determining that the parties must exhaust their administrative remedies before appeal to or review by the district court is possible.
The appellant maintains that K.S.A. 1977 Supp. 44-534a does not provide for a review or modification of this preliminary award. The statute does in fact provide that such award is not appealable. The appellant further argues that the workman is without a means to prevent the employer, examiner or director from modifying said award prior to final determination of the claim, as was done in this case, if in fact the injunctive action herein is disallowed. The appellant maintains that K.S.A. 1977 Supp. 44-534a provides that the temporary award is not appeal-able and that the injunction proceedings should be allowed to prevent the examiner and/or the director from reviewing said order prior to final determination of the workman’s claim.
Without passing on the meaning of the provisions as to finality and non-appealability of a preliminary award under the provisions of K.S.A. 1977 Supp. 44-534a, we find that the cases of Bushman Construction Co. v. Schumacher, supra, and Wilson Certified Foods, Inc. v. Reid, supra, are controlling, and the Workmen’s Compensation Act of the state of Kansas provides the exclusive remedy for an injured workman. It follows that a workman may not subject an examiner to a separate and independent action to compel or enjoin the performance of his duties under the Workmen’s Compensation Act until the workman has exhausted his administrative remedies under the Act; that is, until he has obtained a final award.
This court’s finding that the district court lacked jurisdiction to hear the workman’s petition for injunction makes moot the question of the rights of the parties and duties of the director under K.S.A. 1977 Supp. 44-534a.
Judgment is affirmed. | [
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Abbott, J.:
This is an appeal from a court order finding the natural father, John Hambelton, to be an unfit person to have the care and custody of his son, Eric Hambelton, and permanently depriving him of parental rights. The issues are the sufficiency of the evidence to support findings of dependency and neglect and of parental unfitness.
Eric Hambelton was born December 12, 1969. Eric’s natural parents are Barbara Hambelton and the appellant, John Hambelton. Barbara Hambelton’s parental rights were severed on February 4,1976, and this appeal does not involve her in any manner.
The Hambeltons voluntarily placed Eric with Mr. and Mrs. Paul Glenn when Eric was three weeks old. Eric has continuously lived with the Glenns since that time. The Hambeltons and the Glenns live on the same street in the same trailer court. Eric was placed with the Glenns as the result of a babysitting agreement. The Hambeltons were to compensate the Glenns twenty dollars per week for their services.
The Glenns requested intervention of the juvenile court and a petition to sever parental rights was signed on November 24, 1975, and filed on January 7, 1976. The hearing, which was completed on February 4, 1976, resulted in the mother’s parental rights being permanently severed and the father, John Hambelton, being found unfit. No record was made of the hearing and thus no transcript is available. John Hambelton was ordered to present a complete child-care plan by the end of the school semester. The plan was to include housing, financial and babysitting arrangements for Eric. Eric was to be evaluated by the Wyandotte County Mental Health Center. John Hambelton was granted overnight visitation privileges with his son every other weekend and was ordered to pay twenty dollars per week for support. The question of severance of the natural father’s parental rights was taken under advisement.
A review hearing was held on June 23, 1976. Substantially the same order was entered which had previously been entered on February 4, 1976, with one exception — John Hambelton was ordered to have no contact with Eric.
A second review hearing was held on August 23,1976. Eric was ordered to continue therapy at the mental health center and the Glenns and John Hambelton were ordered to participate in therapy. Overnight visitation privileges were again granted to John Hambelton on alternate weekends. The court further ordered “that when, and if, the previous orders have been completed, when Mr. Hambelton obtains a job, and a complete child care plan is submitted, a review hearing will be scheduled.” The question of severance was again taken under advisement.
No record was made of any of the proceedings until the final hearing on February 17, 1977. Court unification had taken place by this time and a record was made of the final hearing. At this hearing, the natural father’s parental rights were permanently severed and this appeal followed.
Prior to reaching the merits of this case, we are faced with a jurisdictional question. Final judgment was entered on February 17, 1977, and the notice of appeal was not filed until April 11, 1977. The notice of appeal does contain one sentence concerning the failure to file a notice of appeal within thirty days from the entry of judgment that reads, “This notice is pursuant to the Journal Entry of the 1st day of April, 1977, wherein the time for filing a notice of appeal was extended to April 18,1977.” Nothing further appears in the record to explain why the appeal was not filed within thirty days, and the journal entry of April 1, 1977, is not in the record.
The district court has no authority to extend the thirty-day period within which an appeal may be taken 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 days from the expiration of the time otherwise allowable. (K.S.A. 60-2103[a].) In the absence of that finding, this court has no jurisdiction to hear an appeal which is not filed within the statutory period.
Inquiry by this court produced a journal entry dated April 1, 1977, that overrules the appellant’s motion for a new trial. A timely motion for a new trial suspends the time for appeal until the motion is acted on. (K.S.A. 60-2103[a].) A notice of appeal served and filed within thirty days after the denial of a motion for a new trial is timely. (Loose v. Brubacher, 219 Kan. 727, 549 P.2d 991.) Although the lower court’s files do not contain a copy of the motion for a new trial, it is obvious the trial judge was aware of the motion and acted on it. On oral argument, appellant’s counsel informed the court that her law firm was employed by appellant after the appeal period had expired, and therefore a motion for a new trial was not filed until March 23, 1977. The thirty-day appeal period having expired prior to the motion for a new trial having been filed, this court has no jurisdiction unless the trial judge makes the necessary findings under K.S.A. 60-2103(o). We are informed appellant filed an affidavit stating he did not receive notice until March 18, 1977. The affidavit is not in the record nor the court files.
In the April 1, 1977, journal entry denying appellant’s motion for a new trial, the court also found “that due to the question of when the defendant received notice of the court’s decision to sever his parental rights . . .” the court would extend the appeal time until April 18, 1977. No specific finding of excusable neglect was made and it is questionable whether the trial court found the appellant had not learned of the entry of judgment. No record of the hearing on the motion for new trial is included.
Counsel for the appellant was given opportunity to brief the jurisdictional question, but has not assisted the court by doing so. In view of the state of the record in this case, the court would be justified in dismissing the case for lack of jurisdiction. However, after carefully reviewing the trial judge’s order denying a new trial, we conclude the effect of the trial judge’s findings is to say that appellant did not receive notice of the entry of judgment and that his failure to do so was excusable neglect. The trial judge, having in effect made the appropriate findings, had authority to grant an additional thirty days in which to appeal. The appeal was therefore filed within sixty days of the appealable order thus giving this court jurisdiction to hear the matter.
The record contains a statement of evidence prepared by appellee under Supreme Court Rule 3.04. The statement does not show the approval of the trial judge. Although the rule does not appear to require written approval by the trial judge, good practice would dictate that he do so. No objection is raised by appellant and we therefore assume the statement was so approved.
The burden of proof on the state to establish unfitness is high. This court will not permanently deprive a natural parent of the custody of a minor child unless the parent’s unfitness is established by clear and convincing evidence. (In re Vallimont, 182 Kan. 334, 338, 321 P.2d 190; In re Nelson, 216 Kan. 271, 531 P.2d 48.) In reviewing the evidence, we consider it in the most favorable light to the party who prevailed in the trial court. (In re Bachelor, 211 Kan. 879, 880, 508 P.2d 862.)
The Kansas Supreme Court has considered on several occasions what renders a natural parent unfit for custody. In the case of In re Armentrout, 207 Kan. 366, pp. 371-2, 485 P.2d 183, the Supreme Court defined “unfit” as meaning, 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. Unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.’ ” The term “moral delinquency” was not further defined. We would define it as being delinquent in one’s habits of life or mode of conduct.
In the case of Vallimont, supra, at p. 340, the Supreme Court stated that a parent who neglects or refuses, when able to do so; to provide proper or necessary support or other care necessary for the child’s well-being is unfit. The court went further and stated that apart from other moral defects, the incapacity to appreciate and perform the obligations resting upon parents might render a parent unfit.
In this case, the natural father placed his son with a babysitter at three weeks of age. The Glenns have made all the normal parental decisions concerning Eric all of Eric’s life. The father was contacted only when the Glenns needed a parental consent form signed for such things as medical treatment and school. The Glenns were to receive twenty dollars per week for caring for the boy. That sum was not paid regularly.
Most damaging to the father is what occurred after the proceedings were instituted. At the outset, the court found Eric’s father unfit, but it did not permanently sever his parental rights. It is obvious the court intended to return Eric to his father as soon as the father affirmatively indicated to the court that he was willing and able to assume parental responsibility. The father was ordered to submit a child-care plan showing housing, financial and babysitting arrangements for Eric and was granted overnight visitation with his son every other weekend. Such a plan was not submitted until the final hearing, despite a second order to do so on August 23, 1976. Then the child-care plan that was submitted was handwritten by the father’s court-appointed lawyer on one sheet of yellow legal paper and handed to the judge at the final hearing. The plan, in part, states the father would work from 10:00 p.m. to 6:00 a.m. and would take Eric to a babysitter in South Kansas City, Missouri, on the way to work and pick him up after work at 6:00 the following morning. No evidence was presented as to who would care for Eric while the father slept. Having failed for one year to furnish a child-care plan demonstrates an incapacity to appreciate or assume the obligations of a parent.
The court ordered the father to participate in the treatment Eric was receiving at the mental health clinic. Eric was taken to the mental health clinic forty-eight times by the Glenns. The father did not participate in the therapy, nor did he take or accompany Eric to the mental health clinic. The evidence discloses the father was unemployed and available during most of the period treatment was provided.
Despite the fact the father was receiving social security payments monthly for Eric’s benefit as a result of Eric’s natural mother being disabled, he did not regularly pay the twenty-dollar weekly payment the court ordered. No payments were made from May of 1976 until after notice was given of the February 17, 1977, hearing to sever parental rights. The father then attempted to pay the past-due amount some three days prior to the hearing. Money was available from the social security payments to make the weekly payments as they fell due. In addition, Eric’s father sold a piece of real estate in November of 1976, and those funds were available for two months without any effort being made to comply with the support order.
Evidence was offered that visitation privileges were not exercised by the father and he did not cancel them in advance. The Glenns testified that only two visits were made between the August hearing and severance of parental rights in February. Those visits were of short duration and occurred in the Glenns’ home some four and a half months prior to parental rights being severed.
Evidence was introduced by a qualified expert that Eric was emotionally immature and noticeably infantile. Mrs. Glenn testified that Eric preferred to remain in the house and watch television rather than play with other children.
The trial court gave Eric’s father an opportunity to change his habits and to act as a father to his son. During the one-year period the father knew the court was considering severing parental rights, the father showed indifference to the child’s welfare and toward the child by his lack of action, a lack of desire to spend time with his son, and his failure to support the boy at a time when funds were available. The court’s orders were unable to motivate him to change his course of conduct from what it had been since the child’s birth. The father was not maintaining a healthy environment in which Eric could develop normally. To live only a few doors away and have so little contact, when viewed with the other evidence, clearly and convincingly proves the father was unsuitable and incompetent, and that he had not adapted to being a father.
The record reveals clear and convincing evidence of parental unfitness on appellant’s part and substantial evidence to support a finding that Eric Hambelton is a dependent and neglected child pursuant to the provisions of K.S.A. 38-802(g) and K.S.A. 38-824(c).
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Foth, C.J.:
This is an appeal by the defendant from an order granting plaintiff’s motion for a new trial. The action arises out of a 1973 automobile collision. Plaintiff prayed for $136,500.00 in damages, based on medical expenses, pain and suffering, and the loss of a year’s wages. The jury returned a verdict for $4,264.41.
One of the grounds for plaintiff’s new trial motion was “misconduct of the jury.” At the hearing on the motion two jurors were called to testify. The foreman of the jury, Merlyn Broxterman, testified the jury misunderstood the court’s instruction as to “quotient verdicts” and believed it to permit the use of the quotient method if the jury was otherwise unable to arrive at a verdict. Broxterman said each juror wrote down a figure, and the figures were added together and divided by the number of jurors to obtain the verdict. Once the figure was obtained there was no discussion about changing it. Juror Mary Jean Flory testified there had been no advance agreement among the jurors to be bound by the quotient struck; however, she admitted there was no further discussion of the amount after the quotient was figured.
Based on this evidence the trial court granted a new trial “for the reason that the jury misunderstood the Court’s instructions pertaining to a ‘quotient verdict’ and that said new trial should be granted on both issues of liability and damages.”
While this appeal was pending plaintiff moved to dismiss on the ground that the order appealed from was not appealable. We postponed consideration of that issue until the hearing on the merits. We now dismiss the appeal for lack of jurisdiction.
K.S.A. 60-2102(a)(4) permits an appeal as of right from a “final decision in any action.” Since Oertel v. Phillips, 197 Kan. 113, 415 P.2d 223, the first case dealing with the subject under our present code of civil procedure, it has been recognized as a general proposition that an order granting a new trial is not a “final decision.” Hence an appeal from such an order is an interlocutory appeal, which may be taken only by permission under K.S.A. 60-2102(b). Appellate jurisdiction being purely a matter of statute, an interlocutory appeal not taken according to the statute must be dismissed for lack of jurisdiction. Oertel v. Phillips, supra; Fredricks v. Foltz, 221 Kan. 28, 557 P.2d 1252; Henderson o. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108.
Appellant, however, relies on the so-called “jurisdictional” exception to the general rule carved out in three cases: Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P.2d 398; Herbel v. Endres, 202 Kan. 733, 451 P.2d 184; and Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356. We believe the reliance is misplaced. Each of those cases held in essence that the six grounds for granting a new trial enumerated in K.S.A. 60-259(a) are exclusive, and that if a trial court grants a new trial on some different ground it acts beyond its jurisdiction. Such an order which exceeds the court’s jurisdiction, as opposed to one which is merely erroneous, was held to be appealable despite its interlocutory nature.
Thus, in Landscape, the trial court granted a new trial because it could not “approve” the verdict. The Supreme Court said:
“K.S.A. 60-259(a) sets forth, in plain and unmistakable language, the grounds on which a new trial may be granted to all or any of the parties. There are six of them. We see no need to list them now. It is sufficient, here, to say that the reason assigned by the trial court in this case, ‘that the Court cannot approve the verdict of the jury, period,’ is not one of the six grounds listed in the statute.
“We deem the grounds delineated by statute to be exclusive and to constitute a limiting factor upon the authority of a trial court to grant a new trial. . . .” (197 Kan. at 132-133.)
In Herbel, the new trial was granted because the trial court was “dissatisfied” with the verdict. Once again the Supreme Court entertained the appeal and reversed, saying:
“We hold the trial court’s order setting aside the verdict and granting a new trial did not comply with the requirements of 60-259(e), supra, and was ineffective. The trial court had no jurisdiction to grant a new trial simply because it was dissatisfied with the verdict. This is not one of the grounds for which a motion for new trial may be granted.” (202 Kan. at 737.)
In Mettee, the most recent case, the trial court ordered a new trial because the verdict was, in the statutory language, “contrary to the evidence.” In support, however, it elaborated by finding that the verdict was “grossly excessive under the credible evidence.” (Mettee v. Urban Renewal Agency, supra at 168.) The Supreme Court found that the trial judge’s conclusion necessarily reflected a reweighing of the evidence — evidenced by the trial court’s reference to the “credible” evidence. It concluded:
“The trial court complied with the form of the present statute, but not the substance. The court’s order stated that the verdict was contrary to the evidence. K.S.A. 1975 Supp. 60-259(a). The court also set forth specific reasons for its order. However, the reasons set forth constitute an impermissible basis for granting a new trial. Those reasons amount to a substitution of the court’s judgment for that of the jury. . . .” (219 Kan., at 169.)
Thus, the Supreme Court found the trial court’s grant of a new trial was based upon an independent assessment of the credibility of the evidence and not upon the statutory grounds that the verdict was contrary to the evidence. The trial court had employed the language of K.S.A. 60-259(a) to cover what was actu ally a substitution of its judgment for that of the jury. That, of course, was what the trial courts had done in Landscape and Herhel, without the benefit of the statutory language. The error found in all three cases was the trial judge’s assertion of his role as the “thirteenth juror,” a role honored in pre-code history but forbidden under the present code.
From this trilogy the following rules emerge:
(1) An order granting a new trial is not ordinarily a final order or judgment from which an appeal can be taken as a matter of right.
(2) An appeal from an order granting a new trial may be taken where the order exceeded the court’s jurisdiction.
(3) An order granting a new trial is beyond the court’s jurisdiction if it is granted upon grounds not enumerated in K.S.A. 60-259(a). The grounds in K.S.A. 60-259(a) are exclusive and act as a limitation upon the power of the trial court to grant a new trial.
(4) . The trial court, in granting a new trial upon grounds listed in K.S.A. 60-259(a), must do more than merely comply with the form of the statute but must also comply with the substance. The trial court may not use any of the grounds of K.S.A. 60-259(a) as a subterfuge for a substitution of its judgment for that of the jury.
Defendant’s challenge in this case is twofold. He necessarily concedes that if the jury in fact returned a quotient verdict it was guilty of “misconduct” justifying a new trial. Flaharty v. Reed, 170 Kan. 215, 226, 225 P.2d 98; Blevins v. Weingart Truck & Tractor Service, 186 Kan. 258, 264, 349 P.2d 896. He nevertheless contends, first, that the trial court didn’t find the verdict to be a quotient verdict, and second, that even if the court did make such a finding it was not supported by the evidence.
It is true that the journal entry recites merely that “the jury misunderstood the Court’s instructions pertaining to a ‘quotient verdict.’ ” We believe the fair implication of this language is that the misunderstanding led to the return of a quotient verdict. That was the testimony, and that was the claim made in the motion which the court sustained. While the order could have been worded more explicitly, when read in context it appears to us to say that a quotient verdict was in fact returned, although not in willful contravention of the court’s instructions. That being the ground, ordering a new trial based on jury “misconduct” was within the jurisdiction of the trial court.
Defendant’s second contention, that the testimony did not disclose a true quotient verdict, goes only to whether the finding of misconduct was erroneous and not to the court’s jurisdiction to order a new trial on that ground. It would be reviewable in any future appeal from a final order, but is not properly before us at the present interlocutory stage. Otherwise any order granting a new trial would be appealable on a simple assertion that the trial court was wrong in finding the existence of one of the six statutory grounds. If that were so the general rule would give way totally to what is at best a rather narrow exception.
The same reasoning applies to one additional contention made by the defendant. At the hearing on plaintiff’s motion for a new trial defendant moved for an additur which would raise the judgment from $4,264.41 to $15,118.51. (The gesture cost nothing, since defendant’s liability insurance carrier had already advanced the latter amount, and under K.S.A. 40-275 couldn’t recover any of it in any event.) The trial court denied the motion for additur at the same time it ordered a new trial. Defendant asserts that his offer to have a judgment rendered against him larger than the amount any single juror wished to award would have cured any possible prejudice to plaintiff resulting from a quotient verdict.
Assuming without deciding that the trial court had the power to order an additur, the decision to cure the jury’s perceived misconduct by a new trial rather than by an additur was one the trial court had jurisdiction to make. Defendant’s contention on this issue is again that the decision made was erroneous, not that it was made without jurisdiction. Like the conclusion that a quotient verdict was in fact returned, this decision is reviewable only after a final decision in the case is rendered.
The appeal being interlocutory we are without jurisdiction and it is dismissed. | [
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Parks, J.:
This is a suit brought by H. Lynn White, Inc. (hereafter referred to as plaintiff or White) against John T. Leftwich (defendant or Leftwich) for damages incurred from wrongful delivery of carpet valued at $1,867.42. The trial court, after hearing evidence, found in favor of defendant. Plaintiff appeals.
The lawsuit arose from a complex series of transactions involving the purchase, sale and delivery of the carpet. In early 1974, Mr. and Mrs. Kenton Granger ordered carpet for their home from Casa Bella, a Johnson County, Kansas, retail interior decorating firm. The Casa Bella representative who was responsible for the Granger transaction was John Harris. Because Casa Bella did not have the carpet in stock, Harris ordered it from plaintiff, a wholesale carpet dealer in Kansas City, Missouri. Casa Bella’s delivery instructions requested that the carpet be shipped directly to the defendant, who was to install the carpet in the Granger home.
Plaintiff in turn ordered the carpet from a California mill for delivery to defendant’s place of business in Lenexa, Kansas. There had been no arrangements between plaintiff and defendant regarding the carpet, yet it was addressed to Decorator’s Showroom, plaintiff’s trade name, in care of defendant. The sidemarks read Casa Belía/Granger and Harris/Granger. The carpet arrived in two shipments, one on March 6, 1974, and another on April 17, 1974. It was later installed in the Granger home between May 8th and 15th, 1974.
After the carpet was delivered, defendant called the Grangers to set an installation date. Granger told defendant that he was not ready for the carpet because the painters were still working in his house. Granger also asked defendant, and defendant agreed, to hold the carpet for him until he was ready for the installation.
Following this conversation with Granger, defendant received a telephone call from plaintiff advising him not to release the carpet. Defendant admits receiving these instructions which were later reduced to writing on May 3 and May 6, 1974. However, he contends that the telephone calls and letters from the plaintiff were received after he had advised Granger that the carpet had arrived and after he had agreed to hold it for him. It appears from the record that Casa Bella “went into bankruptcy” in early May, 1974.
The trial court held that “(1) Under K.S.A. 84-2-702(1), where the seller discovers the buyer to be insolvent, he may refuse delivery except for cash and stop delivery of goods in the possession of seller’s bailee under certain conditions as provided by K.S.A. 84-2-705. (2) The Defendant in the present case is a bailee of the carpet in question. (3) The seller (Plaintiff) could not stop delivery of the carpet after notification to the buyer (Granger) by the bailee (Defendant) that the bailee holds the goods for the buyer. K.S.A. 84-2-705(2)(fe).”
The issue is whether plaintiff’s order to stop delivery of the carpet was binding on the defendant. K.S.A. 84-2-705 provides:
“(1) The seller may stop delivery of goods in the possession of a carrier or other bailee when he discovers the buyer to be insolvent. . . .
“(2) As against such buyer the seller may stop delivery until
“(a) receipt of the goods by the buyer; or
“(b) acknowledgment to the buyer by any bailee of the goods except a carrier that the bailee holds the goods for the buyer; or
“(c) such acknowledgment to the buyer by a carrier by reshipment or as warehouseman. . . .”
The issue before us was addressed by the U.S. Court of Appeals in Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583 (3rd Cir. 1975). There the court construed a New Jersey statute which is identical in pertinent part to K.S.A. 84-2-705 and held that the existence of a bailment relationship is a prerequisite to finding a third party liable for wrongful delivery of goods.
The Donegal facts are strikingly similar to those presently before this court. In both cases, the buyer requested that the seller ship the goods directly to a third party. Each seller complied with the shipping instructions but later became aware of the buyer’s insolvency, at which time it ordered the third party who held the goods to stop delivery. No contractual relationship existed between the seller and the third party, and in both cases, the goods were delivered notwithstanding the stoppage order.
In refusing to penalize the third party in Donegal, the Court of Appeals reasoned that the concepts of 12A N.J.S.A. § 2-705 (like our K.S.A. 84-2-705) contemplate a bailment for mutual benefit. Shipment to a third party, rather than to the buyer directly, is merely an incident of accommodation resulting from the buyer and seller’s contract as opposed to a bailment contract “voluntarily entered into” by the third party and the seller.
Kansas, like New Jersey, defines bailment for mutual benefit as follows:
“If the custody or use of the bailed article is incidental to some other business transaction between the parties, it may result in a bailment for mutual benefit, even though the loan is gratuitous and for the use of the bailee. 4 Williston on Contracts (Rev. ed. 1936), § 1040. Thus, if the gratuitous loan is made for trial purposes to induce a purchase . . . or if a promise, express or implied, that a later gratuitous loan will be made forms part of the consideration for the purchase, a bailment for mutual benefit results . . . .” (Global Tank Trailer Sales v. Textilana-Nease, Inc., 209 Kan. 314, 316, 496 P.2d 1292 [1972], quoting the view expressed in Nelson v. Fruehauf Trailer Co., 20 N.J. Super. 198, 202-203, 89 A.2d 455 [1952].)
See also Adventure Line Mfg. Co. Inc. v. Western Casualty & Surety Co., 214 Kan. 820, 826, 522 P.2d 359 (1974).
Because the transaction in the present case is so closely akin to that of Donegal, we conclude that no bailment relationship existed between White and Leftwich. The delivery of the carpet to Leftwich rather than directly to Casa Bella or Granger was an incident of accommodation and not a bailment contract with White. In the absence of a bailment relationship, as contemplated by K.S.A. 84-2-702 and K.S.A. 84-2-705, Leftwich may not be held liable for disregarding White’s demand to withhold delivery of the carpet to Granger.
The conclusion we have reached makes it unnecessary for us to discuss the other points raised on appeal.
Judgment is affirmed. | [
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Meyer, J.:
This case was brought by appellants for the wrongful death of their daughter in an automobile accident, against the Kansas State Highway Commission. Appellee’s motion to dismiss for failure to comply with a statutory notice requirement was sustained by the trial court.
Appellant states the sole issue is whether under the particular circumstances of this case, the appellee is equitably estopped from asserting the defense of failure to comply with a statutory provision of K.S.A. 68-419. The pertinent part of K.S.A. 68-419 is as follows:
“. . . [N]o such action shall be maintained unless within ninety (90) days after the sustaining of such damage, written notice, stating the date, when, and place where such damage was sustained, the name and correct post-office address of the person sustaining such damage, and the character of the damage sustained, shall be served upon the director of highways, either in person or by registered or certified mail .... [M] ailing of the notice required by this section by registered or certified mail within ninety (90) days after such damages are sustained, shall be deemed sufficient service of notice of a claim.”
The accident at issue occurred on April 21, 1975. On May 5, 1975, appellant mailed a letter containing the facts required by K.S.A. 68-419 to:
“Kansas State Highway Commission Legal Department State Office Building 7th floor Topeka, Kansas 66612”
The letter was not sent by registered or certified mail. Shortly thereafter, appellants received from the chief attorney, legal department, State Highway Commission of Kansas, a copy of a form called “Attorney Assignments.” This form showed the attorney assigned was John W. Strahan; it was dated May 5, 1975. It contained the notation, “FILE REFERENCE: DEFECTIVE HIGHWAY-90 Day Notice,” and other specific data pertaining to the accident. It also contained the following statement:
“NOTICE TO ORIGINATING OFFICE: Please Direct any questions concerning this file to the attorney to whom it has been assigned.”
Appellants received no other response to their May 5,1975, letter.
On May 23, 1975, appellants directed a letter to Mr. Strahan, again setting forth the facts required by K.S.A. 68-419. This letter also showed the notation: “File Reference: Defective Highway-90 day notice.” Appellants then received a reply dated July 3, 1975, acknowledging receipt of the May 5, 1975, and May 23, 1975, letters, and advising appellants that “the State Highway Commission denies any liability in this matter.” This letter was signed by Sara N. Langland, staff attorney, legal department.
It is the appellants’ contention that their letters to the legal department of the State Highway Commission constituted compliance with K.S.A. 68-419, or at least substantial compliance with that statute, and further that the state is now estopped from asserting the defense of failure to comply with the statutory notice requirements of K.S.A. 68-419. The appellants interpreted the copy of the “Attorney Assignments” form as the state’s acknowledgment of receipt of a 90-day notice.
On the other hand, appellee claims that the attorney assignments form was merely an interoffice memo. Appellee further contends that K.S.A. 68-419 must be strictly complied with, and that non-compliance was demonstrated in two ways: (1) that the “notice” was not directed to the director of highways (now the secretary of transportation); and (2) that the notice was not sent by registered or certified mail as required by the statute.
The appellants argue that the director of highways himself (by deposition testimony) stated he expected to be bound by the conduct of his chief attorney.
The appellee responds that the deposition testimony was that the director of highways had no actual knowledge of this claim prior to the date the case was filed (more than 90 days after the accident).
In Shields v. State Highway Commission, 178 Kan. 342, 286 P.2d 173 (1955), the accident occurred on April 6, 1952, and the notice was mailed on July 5, 1952 (by registered mail).
In the instant case, as in Shields, there was a substantial compliance with the statute. The court, in Shields, at page 345, states as follows:
“. . . This court has consistently held that a person in order to recover against the state must show himself clearly within the statute. We have no right to enlarge the scope of the statute nor to amend it by judicial interpretation. (Phillips v. State Highway Comm,., 148 Kan. 702, 705, 84 P.2d 927.)”
That court later stated at page 346 as follows:
“The language of the statute is plain. It states that written notice shall be served on the director of highways, either in person or by registered mail at his office in Topeka within ninety days after the damage is sustained. An allegation of plaintiff’s failure to give the required notice in the manner specified by the statute constitutes a valid defense to the action. Since the legislature did not expressly provide that service of notice under the mentioned statute was effected merely by deposit in the registered mail, this enlargement of the statute cannot be done by judicial interpretation. . . .”
In Brown v. Wichita State University, 219 Kan. 2,547 P.2d 1015 (1976), the court upheld the validity of K.S.A. 46-901. Thus, the state is immune from tort liability except as specifically provided by statute, as for example, by K.S.A. 1976 Supp. 68-419 (now 1977 Supp.). The Supreme Court recently stated, in Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978), that the holding of Brown, supra, was reaffirmed in Whitmire v. Jewell, 223 Kan. 67, 573 P.2d 573 (1977), and would not be disturbed in Probst. Thus, there is no question but that immunity exists except as provided by statute, and we are left with the sole question of whether appellants herein satisfied the requirements of K.S.A. 68-419.
Here the director of highways testified that he had no notice within the 90-day period. Considering this, we feel that Shields is controlling here, and that we have no right to enlarge the scope of the statute or to amend it by judicial interpretation. We do not decide whether substantial compliance with the statute would suffice had the director of highways had actual notice.
The statute K.S.A. 68-419 has a specific requirement that the notice “shall be served upon the director of highways, either in person or by registered or certified mail.” Even where there is substantial compliance with that statute, the director of highways (now the secretary of transportation) cannot be estopped under the circumstances of this case when he had no actual notice within the 90-day period.
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Spencer, J.:
This is an action commenced by the plan committee and the corporate trustee of a qualified employee benefit plan, seeking court instructions for the distribution of trust funds upon termination of the plan incident to the dissolution of the corporate employer.
On March 27, 1961, Sam P. Wallingford, Inc., adopted a pension plan, effective that date, for the benefit of its employees. Eligibility was extended to every full-time non-union employee who had been in the service of the company for one year or longer. The plan was funded entirely by contributions from the company to the trustee designated in a separate trust instrument.
On February 6, 1974, the board of directors of the company adopted a plan of liquidation which was approved by the stockholders on February 26, 1974. Thereafter, a sale of the operating assets of the company was negotiated resulting in an agreement entered into under date of April 30, 1974. The closing date specified in that agreement was May 1, 1974, and all company employees were terminated as of that date. The fiscal year of the company ended March 31, 1974.
By the terms of the plan, the company-employer agreed to make an annual contribution to the trustee of an amount determined each year by the board of directors within upper and lower limits as certified by the plan actuary. Such a contribution was made each year over the life of the plan although there was evidence that the provisions to ascertain the amount of the contribution each year were not strictly adhered to. However, for at least the years 1971, 1972, and 1973, the company had made an annual contribution of $35,148. During fiscal year 1973-1974, the company had accumulated one-twelfth of that amount each month in anticipation of a contribution to be made as of March 31, 1974.
On March 28, 1974, plaintiff Ralph Moore, as president of the company, directed transfer of the sum of $35,148 to the trustee. He stated that he did so pursuant to his efforts to get everything wound up as much as possible by March 31 and, since that item was on the statement for the company, he assumed it was to be paid as it had been the year before. Although Moore was a member of the board of directors, the board had not expressly authorized the contribution for that year.
In August, 1974, Moore was told by the company attorney, who was neither an officer nor a director, that the contribution should not have been made. Sometime thereafter, Moore talked to the trustee concerning the matter and in April, 1975, the funds so contributed were returned to the company by the trustee in response to a written request from the company.
There is no evidence that the plan was ever terminated by formal resolution pursuant to its terms, nor that the plan terminated for failure to make a necessary contribution. § 8.5(b) provides that, in the event of the sale or dissolution of the company without continuation of the plan, it shall be mandatory for the board of directors and the plan committee to terminate the plan as provided by § 8.3. That section provides that, in the event of termination, the plan committee, as of the first March 31 accounting date thereafter, shall instruct the trustee that the trust fund held by the trustee shall be gradually liquidated “to pay benefits as provided under the Pension Plan, with priorities as follows: 1. Pensioners and Beneficiaries who are already receiving benefits, and Participants eligible for normal retire ment. 2. Participants eligible for early retirement. 3. All other Participants.”
This action was commenced October 25, 1974. All participants, past participants, pensioners, and beneficiaries of the plan were made parties defendant. Several answered, but only defendants L.J. Holgerson and Pete Alford are appellees.
On July 23, 1975, while the present action was still pending, the plan committee issued its final instructions to the trustee for distribution of the pension funds. In accordance with § 8.3 of the plan, each participant was placed in one of the three priority groups and individual entitlements were determined. On July 29, 1975, plaintiffs filed a motion for approval of such final instructions. On September 19, 1975, the trial court entered its order of approval. On that same day, Holgerson filed a motion to set aside the order of approval, which was subsequently joined by Alford. Apparently they are the only two defendants to take exception to the proposed final instructions. On September 26, 1975, the trial court set aside its order of approval as to Holgerson and, on October 21, 1975, as to Alford.
Holgerson had been a long-time employee of the company and became a participant under the plan on the date it became effective. In 1968 he became company president but was removed from that office and his employment was terminated on July 31, 1973. At the time his employment was terminated, Holgerson was fifty-six years of age and had thirty-eight years of continuous service with the company. As such, he was eligible under § 11.3 to apply for early retirement. § 11.8(c) of the plan provides:
“ . . . [A]ny Participant whose employment was so severed after such Participant was eligible to apply for Early Retirement shall be entitled to payment under the provisions of paragraph 11.8(b) hereof, of a severance benefit in an amount which is the actuarial equivalent of the Early Retirement Pension . . .
§ 11.8(b) provides that the severance benefit be held by the trustee until “the third March 31 date subsequent to severance” and at that time be paid over to the severed participant in one lump sum. Thus, Holgerson’s lump sum severance benefit was payable on March 31,1976, a date after termination of the plan on April 30, 1974. The proposed instructions of the plan committee did not provide for Holgerson’s lump sum severance benefit. Instead, Holgerson was placed in priority group two, i.e., those “eligible for early retirement.” As such, he was assigned a monthly benefit for life, provided that all benefits for those in priority group one had been paid and provided further that, if funds were insufficient to pay the assigned benefit to all those in priority group two, the benefit to each of that group would be reduced proportionately.
Alford had also been placed in priority group two but prior to trial he settled with plaintiffs and was placed in priority group one. The only issue on appeal involving Alford is the allowance of $3,500 for his attorney’s fee.
By pre-trial order, the propriety of the trustee’s return to the company of the March, 1974, contribution was also made an issue. The trial court found that the contribution had been improperly returned to the company and surcharged the trustee in the amount of $35,148. The trial court held that Holgerson was entitled to the lump sum severance benefit, stating:
. . . The Court finds that defendant Holgerson, except for his rights as a terminated participant pursuant to paragraph 11.8, would be properly classified as to the priorities under the Plan in Group No. 2. However, the Court finds that defendant Holgerson is entitled to a lump sum distribution, and such payment became due and payable as of March 31, 1976; and the Court makes the further finding that defendant Holgerson is entitled to such lump sum payment from the funds of the Plan in an amount as determined by the provisions of paragraph 11.8.”
The trial court also awarded Holgerson his attorney’s fee and entered a finding that the determination of the plan committee as to Holgerson’s status and rights under the plan had been made in good faith.
Plaintiffs have appealed contending that it was error for the trial court to substitute its judgment for that of the plan committee by concluding that Holgerson was entitled to a lump sum severance benefit, in surcharging the trustee for the amount of the March, 1974, contribution, and in awarding Alford and Holgerson their attorneys’ fees.
In support of their contention that Holgerson is not entitled to payment from the pension fund of a lump sum severance benefit, plaintiffs argue that § 8.3, supra, provides the exclusive method of distribution upon termination of the plan. Thus, severed employees who had not then received their deferred lump sum severance benefit must necessarily fall within group three, “All other Participants.” It is only because Holgerson was eligible for early retirement at the time of his severance that he was placed in group two. Plaintiffs also argue that § 6.9, which provides that the plan committee shall have power to determine all questions as to the “status and rights” of participants, and § 6.7, which provides that any determination by the plan committee shall be “final and conclusive,” as well as § 10.2, which provides that any interpretation of the provisions of the plan document made by the plan committee “in good faith shall be binding upon” all persons acquiring or claiming rights to any part of the trust fund, preclude court review of the acts of the plan committee beyond a determination of good faith.
We agree with plaintiffs in that judicial review of a decision properly within the discretion of the plan committee is limited to a determination of whether the committee has been arbitrary or has acted in bad faith or in a fraudulent manner. See, Wyper v. Providence Washington Ins. Co., 533 F.2d 57 (2d Cir. 1976); Miller v. Associated Pension Trusts, Inc., 541 F.2d 726 (8th Cir. 1976). The rule parallels that in Kansas and elsewhere as to judicial review of a trustee’s discretion. Jennings v. Murdock, 220 Kan: 182, Syl. 1, 553 P.2d 846 (1976). Since the trial court found that the determination of the status and rights of Holgerson had been made in good faith, we are faced with the question of whether Holgerson’s right to the payment of a lump sum severance benefit is a matter properly within the discretion of the plan committee.
Holgerson argues that § 8.3 does not apply to his lump sum benefit, which was determined prior to the termination of the plan, and that the section merely determines priorities among those receiving periodic payments from the trust. He also argues that his right to the lump sum benefit had “vested” prior to termination and could not, therefore, be defeated either by the termination of the plan or by the exercise of the committee’s discretion as to “status and rights.” To determine the question we must consider the plan document.
The weight of recent authority holds that, as to employees who continue in their employment for the requisite period of time, a private non-contributory pension plan is a contractual obligation of the employer. Compare, Jacoby v. Grays Harbor Chair & Mfg., 77 Wash. 2d 911, 468 P.2d 666 (1970); Graham v. Hudgins, Thompson, Ball & Associates, Inc., 540 P.2d 1161 (Okla. 1975); Southwestern Bell Tel. Co. v. Gravitt, 551 S.W.2d 421 (Tex. Civ. App. 1976); with Friedman v. Romaine, 77 Misc. 2d 134, 352 N.Y.S.2d 351 (Sup. Ct. 1974). See generally, Anno. 42 A.L.R.2d 461 (1955) and particularly the Later Case Service thereto. Under the view that the pension plan is a contract, it has been held that the rights of employees who have qualified for benefits under the terms of the plan may not be defeated by the exercise of discretionary power, retained by the employer, to terminate the plan. Cantor v. Ins. Co., 171 Ohio St. 405, 171 N.E.2d 518 (1960); Ellis v. Ernhart Mfg. Co., 150 Conn. 501, 191 A.2d 546 (1963); Delaware Trust v. Delaware Trust, 43 Del. Ch. 186, 222 A.2d 320 (1966); Stopford v. Boonton Molding Co., Inc., 56 N.J. 169, 265 A.2d 657 (1970). All of these cases, however, deal with the contractual obligation of the employer to provide the pension payment when the plan, upon termination, lacks sufficient funds to do so. Other cases have given effect to specific provisions of the plan involved which limit the employer’s liability to contributions already made upon termination of the plan. Baake v. General American Transportation Corporation, 351 F. Supp. 962 (N.D. Ill. 1972); Hauser v. Farwell, Ozmun, Kirk & Company, 299 F. Supp. 387 (D. Minn. 1969); Boase v. Lee Rubber & Tire Corporation, 437 F.2d 527 (3rd Cir. 1970) (applying New York law).
Under the posture of this case, however, we need not decide whether Holgerson has an enforceable right against the company for the full amount of his lump sum severance benefit. The company is not a party to the case. At issue is only whether Holgerson is entitled to the full amount of his lump sum severance benefit from the pension fund upon termination of the plan. Under familiar rules for the construction of written instruments, we conclude that he is not.
Where the provisions of a written instrument are clear and unambiguous, there is no occasion for applying rules of construction. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976). Here, however, an examination of the pension plan, specifically § 8.3 and § 11.8, reveals sufficient ambiguity and conflict to justify application of established rules of construction.
A written instrument is to be interpreted from its four corners, and all language used anywhere in the instrument should be taken into consideration and be construed in harmony with other provisions. Gibbs v. Erbert, 198 Kan. 403, 424 P.2d 276 (1967). The meaning of a written instrument should be ascertained by consideration of all the pertinent provisions and never by a critical analysis of a single or isolated provision. Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P.2d 803 (1964). When a written instrument is ambiguous, the intent of the parties is not ascertained by resort to literal interpretation but by considering all language employed, circumstances existing when the instrument was made, objects sought to be attained, and other circumstances, if any, which tend to clarify the intent of the parties. Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 551 P.2d 918 (1976).
Applying these rules to the plan here involved, it becpmes clear that § 8.3 and § 11.8 must be read together. Holgerson’s entitlement under § 11.8 to the deferred benefit cannot be viewed in isolation from the provisions of § 8.3, specifically indicating priorities of distribution upon termination of the plan. § 11.8 does not indicate what effect termination will have upon the deferred payment. We conclude that the plan, by its terms, provides that Holgerson’s right to the deferred benefit is subject to the possible termination of the plan prior to the date his severance benefit otherwise would be paid.
This interpretation is reasonable and consistent with the purpose of the plan. At the time of termination, Holgerson was not the only former employee who had met all the requirements of the plan for entitlement to benefits. Those who had retired, either under regular or early retirement, were entitled to and receiving benefits. It is possible there were former employees who had qualified for disability benefits. If Holgerson was paid the entire amount of his benefit from the pension fund, he would receive priority over other employees who had also met all the requirements for entitlement. To allow an employee who had been severed from employment priority over employees who continued in their employment until retirement or disability would defeat the purposes of the plan. § 8.3 provides a reasonable preference to those employees who remained with the company until the plan was terminated. Severed employees awaiting their deferred severance benefits were provided for under priority group three (all other participants). If Holgerson had remained with the company until the plan’s termination, he would only have been eligible for group two (those eligible for early retirement). Under the interpretation of the plan he now advances, the fact that he was severed from employment gives him priority even over those in group one (those receiving benefits and those eligible for normal retirement). We do not view this as a reasonable interpretation.
Although a vested right under a pension plan may not be limited or abrogated solely because its payment is deferred, the plan itself may provide for abrogation upon occurrence of a condition between vesting and payment. Far from supporting his position, Keller v. Graphic Systems of Akron, Inc., Etc., 422 F. Supp. 1005, (N.D. Ohio 1976), cited by Holgerson, provides that a deferred benefit may be defeated by intervening competitive activity of the former employee.
We hold that Holgerson’s right to a deferred benefit from the trust was subject to the possible termination of the plan prior to the date such benefit was to be paid and, in the event of such prior termination, his rights were governed by the priorities established by § 8.3 of the plan. Having so determined, we hold that placing Holgerson in priority group two was a matter within the discretion of the plan committee and that the trial court erred in adjudging Holgerson entitled to a lump sum benefit to be paid from the trust fund.
Plaintiffs next contend that the trial court erred in surcharging the trustee for its return of the March, 1974, contribution. By definition, surcharge is a remedy designed to make the trust estate whole, primarily where losses have been incurred through the negligence or bad faith of the trustee. Jennings v. Murdock, supra, Syl. 14.
Plaintiffs argue that the transfer by Moore to the trustee of the. amount accumulated in the pension fund reserve account was by mistake and without authority; that, accordingly, no contribution was ever made; and that the trustee violated no duty in returning the amount to the company.
Holgerson argues that, since the pension plan was not properly terminated until after March 31, 1974, the company had an obligation to make a contribution for the fiscal year ending on that date. Holgerson also argues that the prior course of dealings by the board of directors authorized the company president to make a contribution in the amount transferred in this instance and that, even if Moore was not authorized to make the contribution, his action in doing so was ratified by the board of directors. He then contends that, since the contribution was properly made and the company had no reversionary interest in the contribution under the plan, the trustee violated its duty under the trust in returning the contribution to the company.
The trial court concluded that the plan terminated on the date of the sale of the company assets and that the company had an obligation to contribute to the pension fund for the fiscal year which ended March 31, 1974. It concluded that the return of the contribution was not proper.
Plaintiffs support their argument that no contribution was ever validly made by citing authorities to the effect that the settlor of a trust may rescind a trust created by him as a result of material mistake. Flora Appeal (No. 2), 180 Pa. Super. Ct. 243, 120 A.2d 181 (1956); III Scott, The Law of Trusts, § 333.4 (2d ed. 1956); Restatement (Second), Trusts § 333, comment e, pp. 150-151. There are two reasons why this rule and plaintiffs’ authorities are not pertinent to the present situation. First, what is involved is not the establishment of the trust itself, but an annual contribution to the trust; and, second, the stated authorities recognize:
. . . [W]here the owner of property receives consideration for making a transfer of the property in trust, the rules applicable to transfers for value and to contracts are applicable, and the fact that the owner made the transfer under a mistake is not of itself a sufficient ground for setting aside the transfer . . . Restatement (Second), Trusts § 333, comment e, pp. 150-151.
It is only where the creation of the trust is gratuitous that the settlor’s unilateral mistake is sufficient ground for.rescission. We have already determined that under the modern view private non-contributory pension plans are not gratuities but contractual obligations of the employer. Even if we were to view the establishment of the pension plan here involved to have been gratuitous, the continuation in their employment of the company employees with knowledge of the plan’s existence must be held to have transformed the gratuity into a contract by the time of the 1974 contribution.
We agree with plaintiffs, however, that the company was not bound to make a contribution for fiscal year 1974. Although § 12.1 states that the corporation agrees to make a yearly contribution, § 8.2 impliedly allows the company not to do so, as failure to make a yearly contribution which in turn causes the plan to be actuarially unsound results in automatic termination of the plan. Accordingly, we must conclude that the trial court erred in holding the contribution properly made on this ground.
The real question in this issue is Moore’s authority to make the contribution.
, Although the record fails to disclose that Moore had express authority to make the contribution, it does show that he had implied authority. In Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), vacated in part on other grounds, 219 Kan. 2, 547 P.2d 1015 (1976), it was stated:
. . . The test utilized by this court to determine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency; in which event, the relation may be held to exist, notwithstanding either a denial by the alleged principal or whether the parties understood it to be an agency . . . .” (217 Kan. at 286-287.)
See also, Gardner v. Rensmeyer, 221 Kan. 23, 557 P.2d 1258 (1976).
Moore testified that he instructed the treasurer to make the payment as part of his effort to wind up the affairs of the company. At the directors’ meeting on February 6, 1974, where it was decided to sell the company assets, a resolution was adopted giving the officers the authority to “take any and all other action which, in the discretion of the officers, is deemed necessary or appropriate in connection [with the liquidation].” Moore was a member of the board of directors himself. He stated that he had ordered the contribution the year before (fiscal year 1973) without express authorization from the board, although the board may have authorized it before he became president in July of 1973. Although he had been a member of the board for a number of years, he did not know if the board had authorized the fiscal year 1973 payment because he was a member in name only and had not been invited to the meetings for two years before becoming president. He further stated that the board of directors looked at the company balance sheet each month and, therefore, knew that one-twelfth of the $35,148 was being accrued each month as a reserve, and that no one objected to that expense. Paul Walling-ford, also a member of the plan committee and a director, testified that the $35,148 payment for 1974 was the same as for 1971, 1972, and 1973. He also stated that the limits of the contribution had not been certified each year by an actuary, and that the board had not each year gone over whether they should contribute or the amount to be contributed. The usual procedure was that the contribution would be approved informally by the directors, specifically by whoever was in town.
Against such circumstances, it was not until some five months after the payment was made that Moore, a director, was informed by the company attorney, a non-director, that the company would not be making a contribution for fiscal year 1974. There is no evidence that the company attorney spoke for the remaining directors in this matter. In addition, it would appear that, if the directors were faithfully performing their duties and examining the monthly balance sheet each month as Moore testified they did, they should have been aware that a charge had been made against the reserve account accumulated until March 31, 1974, and thus aware that the money had been paid out.
A course of business conduct is sufficient to establish implied authority in an officer to do a certain act. 19 C.J.S., Corporations § 1030, pp. 515-516; cf., Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099 (1902); Livermore v. Ayres, 86 Kan. 50, 119 Pac. 549 (1911). In determining whether the facts establish implied authority, the facts should be viewed most favorably to the party prevailing below. Gardner v. Rensmeyer, supra. We conclude from all of the facts of this case that the directors intended that Moore have the authority to make the contribution in the amount already set aside in the reserve. It follows that the contribution was valid. Therefore, we need not determine whether the contribution was also ratified.
This brings us to the question of whether the trustee was properly surcharged for returning the contribution. § 3.2 of the plan provides in part:
"... Upon the transfer by the Employer of any money or other property to the Trustee all interest of the Employer therein shall cease and terminate, the Employer retaining no beneficial or reversionary interest whatsoever in any of the assets, profits, earnings, forfeitures, or increment of the said Trust Fund.”
Plaintiffs correctly note that this provision is undoubtedly in the plan to satisfy the dictates of I.R.C. § 401(a)(2) as a requirement of a qualified plan for tax purposes. Nonetheless, the trustee of the fund should be charged with knowledge of the provisions of the plan. The trust officer in charge of the fund testified by deposition that he was not aware of § 3.2 when he returned the contribution. The question is whether the trustee should be liable to the trust for the amount of the returned contribution.
Under the trust agreement, the trustee had the duty to hold and manage all the funds it received as contributions from the employer (§ 2.1). It had the duty to pay out funds only on the written direction of the plan committee, but in no event was it to pay out funds except for the exclusive benefit of the participants (§ 3.6). Restatement (Second), Trusts § 226, p. 523, provides:
“If by the terms of the trust it is the duty of the trustee to pay or convey the trust property or any part thereof to a beneficiary, he is liable if he pays or conveys to a person who is neither the beneficiary nor one to whom the beneficiary or the court has authorized him to make such payment or conveyance.”
The trustee is so liable even though he acts in good faith and under reasonable mistake of law or fact. If he is in doubt as to the proper course, he can apply to a court for instructions. Restatement (Second), Trusts § 226, comment b, p. 524, § 201, comment b, p. 442; In re Estate of Woods, 181 Kan. 271, 311 P.2d 359 (1957); Coolbaugh, Trustee v. Gage, 182 Kan. 145, 319 P.2d 146 (1957).
It follows that in this case the trustee is liable for the contribution it incorrectly returned to the company, even though it acted in good faith in doing so.
Finally, it is argued that the trial court erred in allowing attorney fees to Holgerson and Alford. Plaintiffs argue that, if the trial court’s order surcharging the trustee is reversed herein, the award of attorney fees should be similarly reversed since the only other issues raised by Holgerson and Alford relate to their personal interests and not to those of the trust as a whole. Since we have concluded that the court correctly surcharged the trustee for return of the 1974 contribution, and since the services of the attorneys for both Alford and Holgerson have proved beneficial to the trust estate, the award of attorney fees is affirmed. 90 C.J.S., Trusts § 261, pp. 321-322. Cf. Jennings v. Murdock, supra, p. 215. Holgerson’s and Alford’s rights to attorney fees are not supported by the Employee Retirement Income Security Act (29 U.S.C. § 1001, et seq.). Although their cause of a'ction may not have arisen until July 21, 1975, as found by the trial court, the action was in relation to a pension plan which had terminated on May 1, 1974. As such, the plan was never subject to ERISA, which for purposes of this case was effective only as to plan years (i.e. plan fiscal years) beginning after September 2, 1974. 29 U.S.C. § 1061. Thus, unlike the case of Keller v. Graphic Systems of Akron, Inc., Etc., supra, the plan was never subject to ERISA and no part of this action was governed by its provisions.
This cause is remanded to the trial court with directions to enter judgment in accordance herewith.
Affirmed in part, reversed in part. | [
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Rees, J.:
This is an interlocutory appeal by the State from an order suppressing certain evidence obtained by electronic eaves-' dropping.
On September 3, 1976, the then district attorney of Johnson County made an application to Judge Walton, a district judge of the Tenth Judicial District, for an order authorizing electronic eavesdropping. The application was granted and authorization was given for the interception and recordation of telephonic communications passing through a telephone located at an address in Kansas City, Kansas. An interception bridge was effected and a monitoring station established next door to the tapped telephone. The telephone, the interception bridge, and the monitoring station were all physically located in Wyandotte County in the Twenty-ninth Judicial District.
Subsequently, the defendants in the present case were charged with conspiracy to distribute heroin. Motions to suppress the evidence obtained by interception of telephonic communications under authorization of the order were heard and sustained by a judge of the Tenth Judicial District other than Judge Walton. The basis for the order of suppression was a determination that under applicable Kansas statutes Judge Walton was without statutory authority and jurisdiction to authorize a wiretap outside the Tenth Judicial District. We affirm.
The governing statute in this case is K.S.A. 1976 (now 1977) Supp. 22-2516(3), which provides in part as follows:
“(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing the interception of wire or oral communications within the territorial jurisdiction of such judge . . .” (Emphasis supplied.)
K.S.A. 1976 (now 1977) Supp. 22-2516(3) was enacted by the legislature in 1976 and became effective on May 8 of that year as a part of a comprehensive act regulating the authorization and use of electronic eavesdropping. The statute is clearly patterned after 18 U.S.C.A. § 2518.
Pursuant to the statute, a district judge may authorize the interception of wire or oral communications within his “territorial jurisdiction.” The statute gives no authority to a district judge, and he has none, to grant orders for the interception of wire or oral communications outside his “territorial jurisdiction.” We conclude that the “territorial jurisdiction” of Judge Walton, for the purpose of authorizing the interception of wire or oral communications under K.S.A. 1976 (now 1977) Supp. 22-2516(3), was the Tenth Judicial District.
The territorial limit of the jurisdiction of state courts is defined by state statutes and constitutional provisions. In re Jewett, 69 Kan. 830, Syl. 3, 77 Pac. 567 (1904). The jurisdiction of a court may be territorially limited by constitutional or statutory provisions to a part of the territory of the sovereignty to which it belongs. 20 Am. Jur. 2d, Courts, § 153, p. 499. Our district courts have only such jurisdiction as may be provided by the legislature. City of McPherson v. State Corporation Commission, 174 Kan. 407, 411, 257 P.2d 123 (1953).
Article 3, § 6, of the Kansas Constitution (K.S.A. 1977 Supp.) provides as follows:
“ § 6. District courts, (a) The state shall be divided into judicial districts as provided by law. Each judicial district shall have at least one district judge. . . .
“(b) The district court shall have such jurisdiction in their respective districts as may be provided by law.”
K.S.A. 1976 (now 1977) Supp. 20-301a provides as follows:
“Classes of judges of the district court. There shall be three classes of judges of the district courts established pursuant to K.S.A. 1976 Supp. 20-301: District judges, associate district judges and district magistrate judges; and as used in this act, the term ‘judge of the district court’ shall mean any of such judges. Such judges shall have the jurisdiction, powers and duties prescribed by this act and otherwise prescribed by law. The judicial power and authority of a judge of the district court in each judicial district may be exercised anywhere within such judicial district, and may be exercised anywhere within any other judicial district when assigned to hear any proceeding or try any cause in such judicial district, as provided in K.S.A. 1976 Supp. 20-319.” (Emphasis supplied.)
By statute, Johnson County constitutes the Tenth Judicial District (K.S.A. 1976 [now 1977] Supp. 4-211) and Wyandotte County constitutes the Twenty-ninth Judicial District (K.S.A. 1976 [now 1977] Supp. 4-230).
We believe the term “territorial jurisdiction” as used in K.S.A. 1976 (now 1977) Supp. 22-2516(3), when applied to a district judge and when considered in light of Article 3, § 6 and K.S.A. 20-301a, means the judicial district within which the district judge sits.
The case of Granese v. State, 232 Ga. 193, 206 S.E.2d 26 (1974), supports our conclusion. There the Georgia Supreme Court was presented with the issue whether the superior court judge was required to sign a wiretap order within the county where the electronic device was to be located. The court decided that the order could be signed anywhere within the judge’s circuit, saying in part:
“The Federal statute, 18 USCA § 2518 (3), provides that: ‘Upon such application the judge may enter an ex parte order, . . . authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, . . .’
“The territorial jurisdiction of a judge of the superior courts is the judicial circuit in which he presides. . . .” (p. 197.)
Since the Georgia judicial circuit is the equivalent of our judicial district the decision is persuasive authority, even though the precise issue before us was not then before the Georgia Supreme Court.
We do not find that the question raised by the State on this appeal has been determined by the Kansas Supreme Court. However, the Supreme Court has tended to narrowly construe the statutes governing electronic eavesdropping and has required strict compliance with their terms. In re Olander; 213 Kan. 282, 515 P.2d 1211 (1973); State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975); State v. Dowdy, 222 Kan. 118, 563 P.2d 425 (1977). The court has noted that “[n]o area of the law is more sensitive than that of electronic surveillance, since such activity intrudes into the very heart of personal privacy. . . In re Olander, supra, p. 285.
We do not believe case law dealing generally with the subject of searches and seizures and the issuance of search warrants is applicable to the present case. Search warrants are not subject to the same strict procedural requirements and degree of judicial oversight as is electronic eavesdropping. The legislature has created separate and comprehensive statutes to govern electronic eavesdropping (K.S.A. 1977 Supp. 22-2514, et seq.) independent of the general search and seizure statutes (K.S.A. 22-2501, et seq.). Nothing in the search and seizure statutes expressly limits the power of district judges and associate district judges to issue warrants within the “territorial jurisdiction” of the judge as K.S.A. 1976 (now 1977) Supp. 22-2516(3) limits the issuance of electronic eavesdropping orders.
Where there is interception of telephonic communications, and the locations of the telephone as to which the intercept is conducted, the intercepting device and the monitoring are within the same judicial district, a district judge sitting in another judicial district has no power under K.S.A. 1976 (now 1977) Supp. 22-2516(3) to authorize the interception.
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