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The opinion of the court was delivered by
Burch, J.:
The appeal is from an order denying a motion to set aside a sale of attached real estate and sustaining a motion to confirm the sale.
In October, 1928, defendant borrowed $6,000 of the bank, for which he gave his note payable in installments. He paid $600 in 1929, and $600 in 1930. Action to recover on the note was commenced on September 16,1931, and the petition prayed judgment for $4,800, with interest at the rate of ten per cent per annum from June 1, 1931. While the action was pending defendant paid a further sum of $1,200, and on April 8, 1932, judgment was rendered for $3,973.33.
When the note was given defendant secured payment of it by a mortgage on twenty-five acres of land in Shawnee county. The relief prayed for in the action did not include foreclosure of the mortgage. The mortgage was referred to in the petition, but only in connection with acceleration of maturity of the last installment of the note in the sum of $2,400, not due until June 1,1933, and in con nection with increase of rate of interest, because of default, from seven per cent to ten per cent per annum.
Defendant resided in Seattle, Wash., and was not served personally in this state, but a personal summons was served on him by the sheriff of the county in the state of Washington in which he resided. Service was also made on defendant by publication.
At the commencement of the action lot 74 on North Kansas avenue, in North Topeka, Shawnee county, was attached. Plaintiff notified defendant by letter of what had been done. The letter stated the banking department had ordered the note to be liquidated immediately. The letter further stated that, because defendant was a nonresident, it was necessary, in order to sue him in Shawnee county, to attach the lot.
Defendant did not appear, and when judgment was rendered a personal judgment was taken against him for $3,973.33, and the attached lot was ordered sold to pay the judgment. Afterwards defendant appeared specially, and moved to set the personal judgment aside. Plaintiff said the unauthorized personal judgment was taken “inadvertently,” and a nunc pro tunc order was entered correcting the original judgment to give plaintiff a lien only.
On May 31, 1932, the attached lot was sold to plaintiff, who was the only bidder, for $2,000. Motion to set aside the sale was denied, and motion to confirm was allowed on October 29, 1932. The motion to set aside was based on the ground the sale was for an inadequate price and was not in accordance with equity. The motion to set aside was supported by affidavit that, by plaintiff’s conduct in tying up all defendant’s real estate, defendant’s credit had been so impaired he could not secure money to pay the judgment or to bid at the sheriff’s sale.
Recapitulating dates and events, the loan for $6,000 was made October 9,1928. The action was commenced on September 16,1931, and before judgment was taken the sum due had been reduced by payment of $2,400. The judgment for substantially $4,000 was rendered April 8, 1932. The sale for $2,000 was made May 31,1932. The sale was confirmed October 29, 1932.
The affidavit in support of the motion to set aside the sale disclosed the following facts: The real estate mortgaged to secure the note was assessed for taxation for the year 1930 at $5,000, and for the year 1932 for $4,440, effective November 1, 1932. The attached lot was assessed for the year 1930 for $13,650, and for the year 1932 for $12,690, effective November 1. When the lot was attached at the commencement of the action in September, 1931, the lot was appraised at $12,000.
The court found the sale was made in conformity to law, and should be confirmed. The court also made the following findings:
“The court further finds that the property sold at said sheriff’s sale was an old building, and that although said building was assessed in 1930 at the sum of $12,690, said property has now decreased in value to a great extent, and that due to the current depression and conditions said property does not now have a value exceeding one-third of that amount, and that the amount for which said property was sold, namely, $2,000, was not inadequate and insufficient under the circumstances, and said sale should not be set aside for that reason.
“The court further finds that the plaintiff was the only bidder at such sale, and said plaintiff was guilty of no acts or conduct which were fraudulent, dishonest, or carried out in bad faith; and it is further found that, although the defendant has had from! the date of said sale to this date within which to find a purchaser for said property, other than this plaintiff, he has been wholly unsuccessful in such an attempt, and has failed to find such purchaser.”
The finding relating to decrease in the value of the lot appears to have been made on judicial knowledge. The finding is to the mathematical effect that the lot did not have a value exceeding $4,230. This sum was in excess of the amount of the judgment and interest at the time of confirmation.
There was testimony for plaintiff that it agreed to dismiss its action and release the attachment proceedings if defendant could procure a loan on the lot, but the source of the court’s information that defendant had been unsuccessful in attempt to find a purchaser within the five months elapsing between sale and confirmation is not disclosed, and the price at which defendant failed to sell the lot, if he did, is not disclosed.
While the finding acquits plaintiff of fraud, dishonesty and bad faith, there was no finding stating the sale was made in conformity with equity.
Years ago the statute was that if the court, after careful examination^ of the proceedings, should be satisfied a sheriff’s sale had been made in conformity with the provisions of the article of the code governing the subject, the court should direct the clerk to make an entry on the journal that the court was satisfied with the legality of the sale. Just as in the law of contracts, amount of consideration is not material, if there is consideration, very small price was not an illegality, and sales could not be set aside for inadequacy of price. The result was, a judgment-creditor might purchase all the debtor’s real estate for a small sum and still hold almost the entire judgment unsatisfied over his head. In part to mitigate this harshness the statute was amended, and confirmation was not authorized unless the court should find the sale proceedings were regular and in conformity with law and equity. (R. S. 60-3463.) The effect of the statute was to take price from the field of legality in confirming sales, and place it in the field of equitable consideration.
The tradition of inadequacy of price as a matter of legality only has colored the language of some of the opinions of this court in decisions under the amended statute, but when the decisions themselves are carefully scrutinized it will be found that inadequacy of price alone without addition of extraneous factors of equitable cognizance may make a sale inequitable.
In considering the function of the court under the amended statute, the subject of discretion of the court to confirm or not to confirm came into the opinions of the court. Strictly speaking, this involves an inaccurate use of the word “discretion,” which would permit the court to confirm or not to confirm on an established state of facts.
As applied to sale price, the word “adequate” refers to some requirement to be met, or to commensurateness with some standard. The statute fixes the standard to be applied when considering whether a sale shall be confirmed or set aside. The sale must conform with law, a matter of legality, and it must conform with equity, a matter of fairness and justice. While standards of this kind do not have mathematical certainty, and opinions may differ with respect to conformity, the court should apply the standard to the facts and, if in its judgment there is or is not substantial conformity, the court is not at liberty to refuse to act accordingly. The court ought not to say, this sale was not in conformity with equity, but it will be confirmed; or say, this sale was in conformity with equity, but it will be set aside.
To prevent oppression of the debtor by the creditor the legislature brought equity into a late stage of their relations, and, as a background against which the propriety of this sale may be viewed, the situation and conduct of the parties may be sketched.
When the note sued on was given, it was contemplated by both parties that payment in money would be made according to tenor of the paper. The bank was overtaken by adverse economic conditions. When it brought suit the bank acted under compulsion of the banking department, which required defaulted paper to be liquidated, in the ultimate interest of depositors and creditors. There is testimony the case was continued from time to time out of leniency to defendant, but judgment became inevitable, .and was taken. When the sale was made the bank was forbidden to purchase and hold real estate except for limited purposes. It was prohibited from bidding more than the amount of debt, interest and costs, and if the lot were not disposed of within five years, it had to be charged off out of 'earnings or surplus. In view of the uncertainties of the financial situation, the bank used its judgment with respect to what was safe to do and bid $2,000.
When the note was executed, defendant gave security for payment, which the bank accepted, and there is no suggestion in the record that defendant has had any disposition to evade his obligation. He, too, was overtaken by adverse economic conditions and could not meet installments as they fell due. He paid what he could as he could, and after he was sued he continued to pay. The circumstance that defendant was a nonresident gave the bank opportunity to proceed as if he were endeavoring to defraud. It attached the remainder of defendant’s real estate in Shawnee county and gave defendant a false reason for doing so. It kept in reserve its mortgage lien. It took advantage of its contract, sanctioned by law, whereby the larger portion of the unpaid debt, not maturing by its terms until June 1, 1933, became due and payable at once. It also took advantage of the contract, sanctioned by law, whereby the interest rate to an already embarrassed debtor went up from seven per cent to ten per cent. With interest accumulating at this rate, and with property mortgaged and attached valued at more than four and a half times any amount the judgment might be, the bank was willing to give defendant some time. The time was given to a nonresident debtor who had defaulted in payment of a note to a bank, who had been sued, and whose property had been attached. The time was within a period when it was difficult for any one to borrow money, and when valuable unencumbered real estate was practically unsalable, even at great sacrifice. Bound hand and foot, defendant could not move, judgment was taken, and in due time the attached real estate was sold.
Up to the time of sale the bank was privileged to act within the law, without regard to consequences to the hapless debtor, and it did so. At the sale it was required to change its attitude. At the sale the bank acquired real estate which, at its depreciated value, was worth a sum equal to the amount of judgment and interest and probably costs, at the time of confirmation. There was no showing that taxes on the land were or were not delinquent. The bank bid only half the amount of the judgment, and it held in reserve a mortgage on land valued for that year at more than enough to pay the judgment. Without debating the subject, the court holds the sale was not made in conformity with equity. In reaching this conclusion the court has not taken into account the statute enacted since the case was disposed of in the district court, and which reads as follows:
“An Act relating to judicial sales and the confirmation thereof, and defining the equity powers of the courts under section 60-3463 of the Revised Statutes of Kansas of 1923.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. The court in determining whether or not the proceedings in judicial sales are regular and in conformity with law and equity as expressed in section 60-3463 of the Revised Statutes of Kansas of 1923, may decline to confirm the sale where the bid is substantially inadequate, or in ordering a sale or resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the premises must be bid in if the sale is to be confirmed, or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require that the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate. This act is intended as declaratory of the equity powers now existent in the courts under section 60-3463 of the Revised Statutes of Kansas of 1923.” (Laws 1933, ch. 218, § 1.)
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the motion to set aside the sale.
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The opinion of the court was delivered by
Smith, J.:
One of these actions is an appeal from an order overruling a motion to reopen a final settlement in the probate court. The other is an action for a declaratory judgment determining title to real estate.
The facts are brief. Mollie Taylor Jones died and her will was admitted to probate. Christopher Columbus Caldwell was her only heir at law. The will devised the real estate in question to a life tenant with remainder to The Second Baptist Church of Junction City. When the executor filed his final report his petition for a discharge included a prayer that the probate court adjudge who were the heirs of the deceased. The probate court approved the final report and found that Caldwell was the sole heir at law and that the remainderman, The Second Baptist Church of Junction City, was not incorporated at the time of the death of decedent and that the remainder to the church failed for want of a legal devisee and that the remainder would go to the heir at law. This order of. the probate court was made on September 4, 1931.
On June 13, 1932, The First Colored Baptist Church of Junction City filed a motion in the probate court claiming that it was a corporation commonly known as The Second Baptist Church. It asked the court to set aside the finding and order of September 4, 1931. With this motion the church offered an answer to the executor’s petition. This answer alleged that The First Colored Baptist Church was granted a charter in 1873; that in the course of time the name was forgotten and it became known as The Second Baptist Church. The motion to reopen was overruled by the probate court. This order was appealed to the district court, where the action of the probate court was affirmed.
The first action that we have here is an appeal to this court from that order. We will consider that-case first. The motion of appellants follows the provisions of several statutes. The first paragraph of the motion follows R. S. 60-2530.- The last clause of the same paragraph follows R. S. 60-3001, paragraph 5. The second paragraph of the motion follows R. S. 60-3007, paragraph 7. Do these sections govern procedure in the probate court?
R. S.. 60-3823 provides, in part, as follows:
“Until the legislature shall otherwise provide, this code shall not affect . . . proceedings under the statutes for the settlement of estates of deceased persons. . . .”
Hence we must examine the provisions of the code to ascertain whether it was the intention that the sections in question were to apply to probate procedure.'
R. S. 60-2530 is, in part, as follows:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend . . .”
This section is part of the code which provides for constructive service by publication in the district court. The section provides for the opening of judgments that have been obtained after service pursuant to the sections immediately preceding it. Clearly the sections preceding this one would not be used to obtain service in a probate court. We hold that R. S. 60-2530 provides for opening a judgment that has been obtained by publication in the district court and does not apply to probate courts.
The second ground for setting aside the order of the probate court is that the church has discovered material evidence which it could not with reasonable diligence have produced at the trial. This follows subdivision 5 of R. S. 60-3001. That section is, in part, as follows:
“A new trial is a reexamination in the same court- of an issue of fact after a verdict by a jury, report of a referee or a decision by the court. The former verdict, report or decision shall be vacated and a new trial granted, on the application of the party aggrieved, when it appears that the rights of the party are substantially affected: Fifth. For newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.”
Clearly this section applies to trials in the district court. There is nothing about the section which would indicate that it was- intended to apply to proceedings in probate court.
The next ground of the motion is that unavoidable casualty or misfortune prevented petitioner from defending. This is brought under the provisions of subdivision 7 of R. S. 60-3007. That section is, in part, as follows:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: . . . Seventh. For unavoidable casualty or misfortune preventing the party from prosecuting or defending.”
This section under the provisions of R. S. 60-3016 applies to probate courts, but no showing of unavoidable casualty or misfortune is made. We hold that the allegations of the answer that was offered are not sufficient to constitute the showing required by the statute. The unavoidable casualty and misfortune pleaded is the loss of the records of the church and the forgetting of the name. One cannot rely on this statute to open a judgment when the casualty and misfortune have been caused by his own negligence and where he has been lacking in diligence. (See Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133.) From what has been said we have concluded that the trial court was correct in its ruling on the motion to open the proceeding in probate court.
We will now consider the second case. After the decision of the district court in the case just discussed the church brought a declaratory judgment action asking for a judgment that Christopher Columbus Caldwell had no title to the real estate in question. The petition set out the will and the reason as heretofore given why it was claimed that the church named in the will as The Second Baptist Church was really The First Colored Baptist Church. Caldwell was the defendant in that suit. He answered setting out various matters that were deemed to be defenses to the action. Among other defenses pleaded was the finding of the probate court that the remainder devised to the Second Baptist Church had failed because the church was not incorporated, and the adjudication that Caldwell was the sole heir. The church demurred to this paragraph of the answer. The demurrer was sustained. Caldwell appeals from that judgment to this court. If the probate court has power to determine who were the heirs and devisees, then the matter was res adjudicata and cannot be tried again in the district court. If the probate court did not have any such power then the matter was not res adjudicata and is being raised for the first time in this action.
The jurisdiction of the probate court is found in R. S. 20-1101, 7th subdivision. It is as follows:
“To have and exercise the jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons.”
The personal representative, as such, in this state has no right, title or interest in the real estate of deceased, nor in its rents or profits. This question was considered by this court in the case of Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50. There a widow had conveyed away her interest in the real estate by a deed and her interest in the personal property by a bill of sale. Final settlement of the estate was had and the probate court found the property should pass in accordance with the conveyances mentioned. Later the widow brought suit to set aside the conveyances because of fraud and lack of consideration. The person to whom the conveyances were made argued that the action could not be maintained because of the judgment of the probate court and the final settlement of the estate of Axel Lindholm, of which she had actual notice but did not appear. This court said:
“This contention cannot be sustained. The personal property of the estate of Axel Lindholm was more than sufficient to pay his debts and the expense of administration; there was a sum left for distribution. The administrator, therefore, had nothing to do with the real estate. His bond was based on the value of the personal estate only (R. S. 22-313). Crops growing on the land at the time of the death of decedent passed to the administrator as a part of the personal property of the estate. (R. S. 22-502; Blakely v. Blakely, 115 Kan. 644, 645, 224 Pac. 65.) The real property itself passed to the heirs (R. S. 22-108, 22-118), with right to possession, and rents and profits. The administrator had nothing to do with it unless it was necessary to pay debts, as provided by R. S. 22-801. (Head v. Sutton, 31 Kan. 616, 3 Pac. 280; Schmidt v. Loan & Trust Co., 112 Kan. 535, 537, 211 Pac. 630; Nagle v. Davison, 124 Kan. 230, 257 Pac. 962.) Although the personal estate only is to be appraised (R. S. 22-504), the inventory shall include all the real estate of the deceased. (R. S. 22-501.) There are several reasons why it is advisable to have the real estate listed in the inventory, but this listing gives the administrator no authority over it, and gives the probate court no jurisdiction to dispose of it, except under conditions specifically provided by statute.” (p. 229.)
If one is an heir to real estate the title passes to him on the death of the person whose heir he is. If he is a devisee of real estate the title passes to him when the will is probated. The executor as administrator is a stranger to the title and has no concern with it unless some of the conditions exist that are enumerated in Lindholm v. Nelson, supra. It is not argued that any of these conditions exist in this case. Since the executor had no interest in the title to the real estate in this case, it follows that no proceeding initiated by him could be the basis of a judgment determining title to real estate.
It follows that the demurrer to the paragraph of the answer that set up the adjudication in the probate court was correctly sustained.
The judgments of the trial court in both cases are affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by W. G. Haun against the board of county commissioners of Lane county to recover upon a contract for the sale of county warrants to be issued by the board for the purpose of building and equipping a courthouse and jail in the approximate amount of $70,000, or not to exceed the amount of $100,000. The petition set out the contract, the refusal of the board to issue and deliver the warrants to plaintiff; but that it had sold and delivered them to other parties. Plaintiff alleged that he had or could have sold the warrants at par plus accrued-interest if delivery had been made, and that his services were reasonably worth $2,750 when the contract was breached, and further that the breach of the contract resulted in the total damage ,to plaintiff in the sum of $4,333, which he claimed with interest from date. To the petition the defendant filed a demurrer on the ground that it did not state a cause of action against the defendant. The demurrer was sustained, and plaintiff appeals from the decision. The contract was in the form of a proposal by plaintiff and an acceptance by the defendant, as follows:
“We hereby propose to purchase the legally issued warrants of your county, issued for the purpose of building and equipping a courthouse and jail in the approximate amount of $70,000 or not to exceed $100,000.
“It is understood and agreed that this contract shall include all legally issued warrants issued for the above-mentioned purposes except those the county sells locally in an amount not exceeding $30,000 of the 1st maturities; said warrants to be dated the day the contract for the construction of your building is let, and maturing in not to exceed ten years; however, it is understood and agreed that said warrants are to be made payable to the contractor, person or persons performing labor and furnishing materials for said building and indorsed by them to us, and, said warrants are to be indorsed on the back thereof by the treasurer of the county ‘not paid for want of funds.’ The warrants are to be in denominations of one thousand dollars ($1,000) each, bearing interest at the rate of 4¾ per cent per annum, payable semiannually, both principal and interest payable at the Fourth National Bank of Wichita, Kan.
“For said warrants we will pay the flat face value thereof, the interest to be a part of the contract price.
“Provided, we are allowed the sum equal to $27.50 per thousand for our services, which shall include the printing of the blank . . . and our attorneys’ services in directing the transcript of proceedings.
“It is further understood and agreed that the warrants are to be put in escrow in the Fourth National Bank, Wichita, Kan., and the bank instructed to turn same over to us upon payment by us of a sum equal to the architect’s monthly approved estimates, and copy of which shall accompany the draft.
“It is further understood and agreed that we may, at our option, fund the warrants into bonds at the earliest possible date, said bonds to bear 4% per cent interest and to mature as do the warrants. Said bonds to be exchanged with us for said warrants dollar for dollar, par value.
“It is mutually agreed that the contract is to be let to a good reliable contractor satisfactory to both parties hereto.
“It is further agreed that prior to the delivery of said warrants to us and payment made therefor, you are to furnish us with a complete certified copy of the transcript of proceedings to evidence the legality thereof to the satisfaction of our attorneys.
“The county hereby agrees to pass such resolutions or orders and do all things required of them by us to carry this agreement into full force and effect.
“Respectfully submitted,
“W. G. Haun & Company — By W. G. Haun.
“We, the duly authorized officers of Lane county, Kansas, by virtue of a resolution duly and regularly passed, do hereby accept the above proposition this 27th day of March, 1930. R. L. Bowman,
Lyman S. Miller,
J. A. Hineman.”
The contention of the board of county commissioners was that the contract set forth was illegal and void in several particulars, among which are the issuance of warrants dated the day the contract was made, procuring the contractor to indorse them, then having the county treasurer indorse upon them that they were not paid for want of funds when they were to be placed in escrow in the Fourth National Bank of Wichita. It will be noted that the warrants were to draw interest at 4¾ per cent per annum from the date of the contract, and of course the interest would be accumulating before the structure was commenced and before plaintiff would be required to pay for them. Under the law warrants are to be drawn by a board for existing indebtedness. Under the scheme, if carried out, the board would be issuing warrants for sums in excess of the contract price of the sums due to the contractor, which would be a direct violation of R. S. 19-242, which provides:
“It shall be unlawful for any board of county commissioners to allow any greater sum on any account, claim or demand against the county, than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered, salaries or fees of officers, or material furnished,” etc.
It has been held that the issue of warrants by the county com missioners in violation of law subjects them to prosecution and punishment. (State v. Pierce, 52 Kan. 521, 35 Pac. 19.)
Another feature of the contract is that the power and function of the commissioners is interfered with and limited by the provision that the contract is to be let to a contractor satisfactory to both the parties. In the letting the plaintiff is given a part of the functions intrusted to the board. Under it the board could not let a contract unless the broker plaintiff was satisfied with the contractor chosen by the board. In a sense he would sit in as the fourth member of the board and might veto the decision of the three members elected thereon on the ground that the proposed letting to a designated contractor did not meet his approval. This provision was clearly void.
Again, there is the conversion of warrants into bonds provided for, which is also left to the option and discretion of the plaintiff and not to the board authorized to transact the business of the county and to manage the financial affairs of the county, including the execution of the bonds of the county. The commissioners had no power to delegate to plaintiff the functions conferred on themselves in the funding of warrant-s into bonds “at the earliest possible date.” No statutory authority for that interference of the plaintiff in county affairs is cited or found, and it must be held to be invalid.
In his petition plaintiff alleges that by reason of the refusal to deliver the warrants to him he was damaged to the extent of $27.50 per thousand of the amount of warrants, for his services specified in the contract to be paid him for printing blank warrants and for attorneys’ fees amounting to $2,750. Apart from the question of the right of the board to enter into a contract for the payment of the fees of plaintiff’s attorneys, he did not allege that blank warrants were printed and furnished or that any legal services were procured by him. Since the contract must be held void on other grounds it is not necessary to determine the question of what the liability of the county would be for the services of plaintiff in the transaction.
The plaintiff cites and relies on Lucas v. Lane County Comm’rs, 131 Kan. 589, 292 Pac. 765, on the right of the commissioners under sections R. S. 19-1506 and 19-1507 to borrow money in the manner provided for in the contract. As the warrants were to be issued payable in installments in future years they possess all the features of the borrowing of money. There is a provision of the statute that—
“The board of county commissioners shall not borrow money for the purposes specified in Laws 1911, chapter 141, section 1, without first having submitted the question of such loan to a vote of the electors of the county.” (R. S. 19-213.)
It is conceded that no vote of the electors of the county was taken on the proposition of building the courthouse and jail.
In the Lucas case the question decided was as .to the authority of the commissioners to purchase a site where the county already had one. It is evident from the opinion that the question of the borrowing of money without a vote of the people was not presented or, at least, it was not considered. The question presented on that branch of the case was confined to- the right of the board to purchase a site other than the'old one for courthouse and jail under R. S. 19-1506. That act, somewhat special in its nature, made provision for the building of a courthouse and jail in counties having a population not exceeding 10,000, to purchase a site, and also to equip the courthouse and jail and furnish the same, the aggregate cost of the site and the erection and equipment of the courthouse not to exceed $150,000, and of the jail not to exceed $15,000. It is said that the appeal was from that part of the judgment as to the right to purchase the site, and it was held that the purchase might be made.
The decision of the question as to the power of the board to purchase a new site when the county already owned one presents a different question than one to borrow as much as $150,000 without a vote of the people in violation of R. S. 19-213, a question not considered in the Lucas case.
It may be noted that in a test of the power of the board to make a contract a suit was brought against the board, and a judgment was rendered perpetually enjoining it from carrying out the contract. No appeal was taken from that judgment and it stands as a finality against it. It is true the plaintiff, Haun, was not named as a party in that action, and he can claim that it is not binding upon him. However, the board was a proper party, and the judgment against it is final and effectually enjoins it from executing the contract.
As already indicated, the judgment must be held to be absolutely void, and therefore the judgment' of the court must be affirmed. It is so ordered.
Hutchison, J.: not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in the nature of quo warranto for a declaratory judgment and seeking to have adjudged invalid a franchise granted by the city of Newton to the Newton Gas Company, primarily because of alleged corrupt practices at the franchise election. Both defendants moved to strike certain portions of the petition, which motions were overruled. They then demurred to the petition. The demurrers were overruled, and the Newton Gas Company has appealed. Since the demurrer raised all questions argued, we need not further notice the motions to strike.
The action is brought in the name of the state on the relation of the county attorney. Briefly, the petition filed February 23, 1932, alleges that Newton is a city of the second class operating under the city-manager form of government; that the Newton Gas Company is a corporation organized under the laws of this state and engaged in the business of distributing gas in the city of Newton; that on December 1, 1931, the governing body of the city passed a resolution calling a special election on January 12, 1932, to vote on a proposed franchise for the Newton Gas Company; that the notices for the election were published (a question wafe raised as to the validity of this publication, but that has been abandoned); that on January 12, 1932, an election was held as provided in the proclamation therefor; that at such election 1,472 ballots were cast in favor of the franchise and 1,328 against it; that on January 19, 1932, the governing body of the city of Newton caused to be published an ordinance purporting to grant the franchise, and on the same day the Newton Gas Company filed with the city clerk its written acceptance of the ordinance. Copies of the resolution calling the election, the notice published with affidavit of publication, the resolution of January 19, 1932, pertaining to the gas franchise, the ordinance granting the franchise, and the acceptance of the ordinance by the Newton Gas Company were attached to and made a part of the petition.
It is further alleged that the ordinance and the franchise granted by the city of Newton to the Newton Gas Company is invalid for the reason: That defendant, the Newton Gas Company, through its duly authorized agents (two of whom are named), resorted to illegal and corrupt practices which caused a sufficient number of votes to be cast in favor of the franchise, which otherwise would have been cast against it, to change or render doubtful the result, which illegal and corrupt practices, summarized, are as follows:
“(1) By promising employment to voters in the event the franchise carried; (2) by paying or promising to pay money to the voters for the purpose of influencing or procuring such voters to come to or remain away from the polls; (3) by paying money to and employing persons to convey voters to and from the different voting places on election day; (4) by corrupting, procuring, or attempting to corrupt or procure voters to give or forbear to give their votes, by gift, reward, office or employment, or by promise, agreement or security therefor; (5) by agreeing to give credit on the gas bills already rendered and earned, to a certain class of voters in event the franchise carried; (6) by publishing certain advertisements, copies of which advertisements are attached to plaintiff’s petition, . . . such advertisements promising: (a) Employment to a certain class of persons in event the election for the franchise carried; (b) cash consideration to a certain class of voters by way of credit on then earned gas bills; (c) to spend a large sum of money in the city of Newton, and (d) to employ local labor in rehabilitating their gas distribution system.”
It is further alleged: The Newton Gas Company is now operating under the franchise; that both defendants claim the franchise and ordinance to be valid, while plaintiff contends it is invalid for the reasons previously stated. The prayer is that the validity of the franchise and ordinance be determined by the court, and that they be held invalid.
The first question presented by appellant is the authority of the state to maintain the action. It is argued that the city is a subdivision of the state, with legislative powers, authorized to grant franchises (R. S. 14-1701), and is not charged with exceeding its powers or with illegal and corrupt practices in connection with the election; that the city is the real party in interest (R. S. 60-401) and might maintain the action (City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79; Olathe v. Railway Co., 78 Kan. 193, 96 Pac. 42), and to permit the state, which is not the real party in interest, to bring the action against a subdivision of the state, with legislative powers exercised in a way which the state does not criticize, is to permit a party, the state, to sue itself. We think there is no doubt about the authority of the state to maintain the action. While R. S. 60-1601 abolishes the writ of quo warranto, it provides that remedies previously obtainable by such a writ may be had in civil actions; R. S. 60-1602 authorizes an action to be brought in the supreme court, or the district court, when anyone shall unlawfully hold or “claim any franchise within this state,” and the next section authorizes the action to be brought by the attorney-general or the county attorney in the name of the state. Hence there is specific statutory authority for the bringing of this action in the name of the state on the relation of the county attorney. The state is a real party in interest in an action brought by it to correct corporate abuses. (State, ex rel., v. Comm’rs of Garfield County, 54 Kan. 372, 38 Pac. 559; Olathe v. Railway Co., supra; State, ex rel., v. Stock Yards Co., 94 Kan. 96, 145 Pac. 831; Telephone Co. v. Telephone Association, 94 Kan. 159, 146 Pac. 324; State, ex rel., v. National Industrial Ins. Co., 125 Kan. 119, 263 Pac. 1060; City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 Pac. 270.)
Appellant contends that our statutes relating to illegal or corrupt practices at elections do not apply to a special election for the adoption of a franchise in a city of the second class. The petition in this case attempts to charge violations of R. S. 21-804, 21-805 and 21-815, being the part of our crimes act relating to elections; also, R. S. 25-1701, 25-1702, 25-1705, 25-1709 and 25-1711, being sections of the corrupt-practice act relating to elections. R. S. 14-1206, relating to cities of the second class under a commission form of government, provides that the general election and primary election laws of the state shall apply, so far as applicable, to all elections held under the act; and R. S. 12-1003, relating to cities operating under the city-manager plan, provides that all nominations and elections in such cities shall be governed by the laws of the state relating to elections in cities under the commission form of government. The section of the statute under which this election was held (R. S. 14-1701) provides that the election may be held “at a general or special election called for the purpose.” If the general election laws apply to elections in the city, they certainly would be applicable to an election on the franchise, if held at a general election. We see no reason for excluding them if a special election be called for the purpose of voting on the franchise.
Appellant argues that the vote on the granting of a franchise differs fundamentally from a vote for a candidate for office; that at an election to grant a franchise, the real question before the voters is one of material advantages, much as it would be if the election were to locate a county seat, citing in this connection State v. Elting, 29 Kan. 397, where it,was held:
“But where the question is as to the location of a county seat, that question is one of convenience and material advantages; and where citizens of a town, contesting for such county seat, offer to donate money or other property to the county in case the county seat is located at such town, that offer presents no considerations which may not properly be considered by the electors, and vitiates no votes cast in pursuance of such offer.” (Syl. IT 4.)
Generally speaking, it may be said that an agreement is not invalid because it provides for the furnishing of certain facilities to the public, or the payment of money to a government or governmental subdivision, on consideration that a county seat or public building shall be located at a designated place. (13 A. L. R. 734; Currier v. United States, 184 Fed. 700; Hawes v. Miller, 56 Ia. 395, 9 N. W. 307; Thompson v. Board of Supervisors, etc., 40 Ill. 379; Davis et al. v. Board of Comm’rs of Choctaw County, 58 Okla. 77, 158 Pac. 294.)
The matter takes on & different aspect, however, which the courts do not approve, when the donation or gift is to an individual. (13 A. L. R. 740; Woodman v. Innes, 47 Kan. 26, 27 Pac. 125; Elkhart County Lodge et al. v. Crary, 98 Ind. 238; Whitaker v. First Nat. Bank of Sapulpa, 56 Okla. 270, 155 Pac. 1175.)
The granting of a franchise by a city to a public utility is not altogether one of convenience and material advantages, as those terms are used in the county-seat election case (State v. Elting, supra). The city, acting in its governmental capacity, grants the franchise to the utility for the purpose of carrying out a governmental or quasi-governmental function. The ability, integrity and fair dealing of the grantee of a franchise are just as important in the conduct of good government as those qualities are in a candidate for office.
Appellant contends the petition does not state facts sufficient to constitute a cause of action. A summary of the allegations of the petition was made earlier in this opinion and need not be repeated. Among them is the specific allegation that defendant paid, or offered to pay, electors to give or withhold their votes at the election. We deem this sufficient to state a cause of action. It was proper, therefore, to overrule the general demurrers to the petition. Since this appeal comes to us on the pleadings we need not speculate what the evidence will show under other allegations made, or attempt to determine in advance whether certain things would or would not vitiate the election. Those matters can be determined better after it is known how the conduct charged related to the election. Other points argued do not need special comment.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained by plaintiff, caused by the power company’s negligence in maintaining its electric transmission line. Plaintiff recovered, and defendant appeals.
Defendant negligently suffered its transmission line, carrying 13,-800 volts of alternating electric current, to sag and come in contact with a telephone wire beneath the transmission line. Plaintiff heard her telephone ring. She took down the receiver, placed it to her ear, and received a shock which produced severe and permanent injury.
Plaintiff charged defendant with negligence in ten particulars. In the first instruction to the jury the court stated all of plaintiff’s charges of negligence. In the second instruction the court stated the contents of defendant’s answer. The third instruction read as follows:
“The above are merely the claims, in substance, of the parties, and are no proof of their correctness or truthfulness. Your verdict is to be based only upon the evidence, under the court’s instructions.”
The fourth instruction stated defendant’s duty with respect to maintenance of its transmission line, and said that if the jury should find from the evidence defendant was guilty of negligence in any of the particulars charged by plaintiff, the verdict should be for plaintiff. Defendant complains of the first and fourth instructions. The first three instructions were proper, and the only objection to the fourth instruction is that charges of negligence not sustained by evidence were submitted to the jury. The objection is not well founded, because the jury were not authorized to find for plaintiff on any charge of negligence not established by the evidence. However, the jury were left to canvass the evidence and ascertain what charges were and were not sustained by evidence..
Two of the charges of negligence contained in the petition related to failure of defendant to insulate its wires. Lack of insulation at the point where contact was likely to occur and did occur was proved; but this subject was not important, because the evidence disclosed the transmission wire should not have been maintained in such close proximity to the telephone wire that local insulation would be suggested.
One charge of negligence related to failure to inspect the transmission line for clearance of the telephone wire. There was no direct evidence of failure to inspect, and that charge of negligence might.well have been excluded from consideration of the jury; but because of negligent maintenance in fact the subject was not important.
One of the charges of negligence related to the voltage which the transmission line carried while in‘dangerous , proximity to the telephone line. The negligence consisted not in excessive voltage, but in proximity of the line carrying the voltage to the telephone line, and that charge should not have been submitted to the jury.
One charge of negligence related to failure to turn off the current after contact occurred. Negligence in this respect was not-established, and that charge of negligence should not have been submitted to the jury.
Five of the charges of negligence contained in the petition related to dangerous proximity of the wires and likelihood of contact. The substance of these charges was fully proved, and negligence in permitting the contact which did occur is not disputed in this appeal. The result is, defendant’s contention respecting the instructions presents a purely academic subject — proper method of framing instruc tions in cases such as this. Generally, charges of negligence not supported by evidence should be definitely .withdrawn by the court from consideration by the jury; but in. this'instance an essay on the subject is not required.
After the jury was empaneled and before introduction of evidence commenced, the court took a recess. Before the court convened plaintiff was lying on a bench in the court room. The bailiff called the jury on his own initiative, as he usually did when court was about to convene. In the presence of the jury, plaintiff’s husband picked her up and carried her to her chair. Thereupon defendant moved that the jury be discharged, on the ground of misconduct of plaintiff, and the motion was denied.
The nature and extent of plaintiff’s disability were contested issues, and her ability to stand and walk was fully investigated at the trial. She did not assert she could not walk at all. She said she had walked for short distances, but did not have strength to walk very far. She said she got dizzy when she undertook to stand, felt tired and exhausted, and she expressed the belief she could not walk the distance across the court room. Plaintiff’s husband testified she could walk short distances without help, but he carried her when she wanted to go any distance, as through the house when at home, into the courthouse, and to the doctor’s office. Neighbors and friends of plaintiff testified regarding her ability to walk, and there was expert medical testimony bearing on the subject.
On the whole record, this court cannot declare, as a matter of law, that the questioned conduct was invented and staged to impress the jury, and it is a fair inference that if sincerity of the conduct had not been subsequently established to the satisfaction of the jury, the effect would have been prejudicial to plaintiff.
A contention that a new trial should be granted because an expert witness was permitted to express an opinion with respect to a relevant subject is not of sufficient importance to require discussion.
The verdict for plaintiff was for $15,000, and defendant contends the verdict was excessive. It would require many pages of the Kansas reports to present the evidence, discuss it, and state the reasons for the court’s conclusion. If this were done the decision would not be helpful in the decision of. any- other ease. Therefore-the court must ask-the parties to be content with announcement of the conclusion thatthe verdict was excessive, and that the judgment should be reduced to $10,000.
The judgment is reduced to the sum of $10,000, and, as reduced, is affirmed. If consent to the reduction be not expressed to the court by plaintiff within ten days after filing of this opinion,- the judgment will be reversed, and a new trial ordered.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the district court of Saline county sustaining a motion to dismiss an appeal to that court from the city court of Salina. The question involved is whether a bond to secure the cost of the appeal was given, as provided by statute.
In the action' brought in the city court of Salina that court rendered judgment in favor of plaintiff and against defendant for $230.92 and for costs in the sum of $4.95. Within ten days after the judgment was rendered defendant filed in the city court his notice of appeal to the district court, and on the same date filed a bond entitled “appeal bond,” the obligation of which reads:
“Now we, the undersigned, residents of said county, bind ourselves to the plaintiff in the sum of five hundred dollars, that said defendant shall prosecute his appeal to effect and without unnecessary delay, and satisfy such judgment and costs as may be rendered against him therein.”
This was signed by the defendant and one surety and was approved by the judge of the city court, who made up a transcript of the proceedings before him and transmitted the same, together with the papers in the case, to the clerk of the district court, where it was regularly docketed. Thereafter plaintiff moved to dismiss the appeal for the reason that defendant failed to file in the city court a good and sufficient bond “to secure the cost of the appeal,” as provided by section 2 of chapter 229 of the Laws of 1931 (R. S. 1931 Supp. 61-1002). On the hearing of this motion defendant moved the court for leave to amend the appeal bond, in case the court deemed the bond insufficient in form, in such manner as to make it comply literally with the words of the statute, or for leave to file a new bond. This request was denied, the motion to dismiss the appeal was sustained, and defendant has appealed to this court.
Chapter 229 of the Laws of 1931 (now R. S. 1931 Supp. 61-1001 to 61-1003a inclusive) revised in several respects the previous sections of the statute (R. S. 61-1001, 61-1002, 61-1003) relating to appeals in civil actions from justice of the peace and city and county courts. One of the purposes sought to be accomplished by the statute was to separate entirely the appeal itself from a stay of proceedings for the enforcement of the final judgment. Under the older statute a defendant against whom the judgment had been rendered, who desired to appeal to the district court, had to give a bond in double the amount of the judgment and costs. Cases had arisen in which that was a decided hardship. One of the purposes of the new statute was to permit appeals to be taken without the giving of a bond to stay the proceedings for a final judgment. Several other purposes were accomplished by the statute, but since they are not pertinent here we need not enumerate them. To perfect the appeal under the new statute two things are necessary: The party desiring to appeal must file a notice of appeal, specifying the order or judgment from which the appeal is taken, within ten days from the ruling or judgment. This notice need not be served upon the opposing party or his counsel, but it must be a notice of appeal and must be filed in the court from which the appeal is taken. This is an essential step in the appeal. (Brockman v. Bayman, 135 Kan. 238, 10 P. 2d 31.) Since it is conceded in this case that the notice of appeal was filed as required by this section, we need give this point no further attention.
The second thing which the party appealing is required to do is to file a good and sufficient bond in the court from which the appeal is taken “to secure the cost of the appeal.” In lieu of this bond he may, if the facts warrant it, file a poverty affidavit; but that was not done in this case. The statute then reads: “And thereupon the appeal shall be deemed perfected.” So the two things made by the statute essential to perfect the appeal are: (1) The filing of the notice of appeal, and (2) filing a bond “to secure the cost of the appeal.” These are essential in order that an appeal may be perfected. The procedure is clearly stated and one easy to follow.
The third section of the statue specifies the orders, rulings and judgments from which an appeal may be taken. The fourth section describes the duties of the justice or judge from whose court the appeal is taken, and how the appeal shall be tried in district court, and the fifth section provides for the staying of proceedings for the enforcement of a final judgment by the giving of a bond described therein. The bond given in this case conforms substantially to the requirement of section 5. No bond was given “to-secure the cost of the appeal,” as required by section 2. The result is, the appeal was not perfected.
Appellant complains that the court denied him leave to amend the bond given, or to file a new bond, citing R. S. 61-1009 and cases involving defective bonds. This statute and the authorities relied' upon would be applicable if a bond had been given in this case, attempting to conform to section 2 of the act, that was insufficient because of sureties or that was insufficient in form or amount; but since there had been no attempt to give a bond under section 2 of the act there was nothing to amend; hence, the court was justified in refusing to permit an amendment. The time had expired for the filing of a bond “to secure the cost of the appeal;” hence, it was not error to refuse permission to file a new bond.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landlord to recover on a note for $100 given for pasture rent. Liability on the note was not contested, but the tenant counterclaimed damages for injury to a crop of corn. Defendant recovered $120 above the amount of the note, and plaintiff appeals.
Plaintiff obtained title to the land through foreclosure of a mortgage. In the fall of 1929, and before the sheriff’s deed was issued, it appeared the landowner could not redeem, and defendant, the landowner’s son, was given privilege to sow wheat, which he did. Plaintiff was to receive one-third of the crop. In the spring of 1930, and after the sheriff’s deed was issued, plaintiff gave defendant a lease of the land. The lease is not abstracted in full. Plaintiff reproduces certain portions, and defendant other portions. The lease contained the following provision:
“That second party to have the privilege of harvesting any spring crop planted, when mature, it being understood that ground not now in crop may be planted to corn by second party.”
Defendant planted sixty acres of corn. Plaintiff sold the land to Knoll. Defendant vacated the premises on August 4, and Knoll’s stock greatly damaged the growing corn. Defendant did not pay the note, and this lawsuit followed.
The action was instituted before a justice of the peace. Defendant, c ounterclaimed for damages for injury to the corn crop by plaintiff’s stock, and recovered. Plaintiff gave a bad appeal bond, which was amended in the district court. In stating the case in the district court, defendant’s attorney said plaintiff contracted to pay damages in case the corn crop was injured, if defendant would comply with a notice to vacate on August 1. Plaintiff objected to the shifting from one cause of action to another in the district court. The liberal practice prevailing in justice court was applicable in the district court, plaintiff knew defendant wanted damages for injury to his corn crop-, no continuance was requested, the facts of the controversy were fully developed at the trial, and plaintiff suffered no prejudice on account of submission of the cause to the jury on the contract-theory.
Plaintiff contends the lease provided that possession would be given on August 1, and there was no consideration for the promise to pay damages if any were suffered if defendant would vacate on August 1. The matter is not so simple as that.
The lease was for the period of six months beginning March 1 and ending August 1. The lease was also for the period of twelve months beginning March 1. The lease provided the tenant would vacate on August 1. The lease also provided that in case the land was sold and the purchaser desired possession, possession would be surrendered on payment of the value of any growing and immature crops. The land was sold on an option contract providing for payment of $1,500 on or before August 1, when possession would be given. In May plaintiff wrote a letter to defendant stating the land occupied by defendant under lease expiring August 1 had been sold, and possession would be required at expiration of the Tease. The letter said one-third of the wheat and the pasture note would go to plaintiff, and the spring crop would go to the purchaser when matured. Afterward plaintiff served on defendant a notice that the lease terminated on August 1, and defendant “must quit and vacate said premises held by you as my tenant on or before that date.” There is some uncertainty respecting the date when this notice was served. Defendant did not vacate pursuant to the notice, or pursuant to the provision of the lease for surrender of possession on August 1. He remained in possession until August 4. Before he vacated, plaintiff’s agent, Gamble, gave defendant notice to move, and defendant testified the following conversation occurred:
“I says, ‘Well, I am willing to move.’ I said, T got this crop out here, and I might get some damage if I moved off.’ ‘Well,’ he said, ‘There ain’t nothing to that.’ He said, ‘We stand good for that.’ I said, ‘If you stand good for that — . . .
"Well, he gave me the notice, and told me I had to move. I said, T ain’t got nothing agin moving only if I get damage, I want my damage in the corn.’ He said, ‘There ain’t nothing to that.’ He said, ‘You get your damage.’ ‘We got a note agin you, and you just don’t pay the note,’ and that is as good as security, he said. I said, ‘If you stand good for that, and there ain’t no trouble, I move off and be done with it.’ I moved off.”
We have here an ambiguous lease, and a resulting situation in which both plaintiff and defendant were exposed to detriment. They composed the difficulty to their mutual satisfaction. Defendant acted accordingly, and plaintiff was bound.
There was no trial error of consequence, damages were fully proved, and the instructions to the jury sufficiently presented the contract issue.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action in replevin. Plaintiff as receiver of the International Mortgage Trust Company sought to recover possession of securities consisting of personal notes and notes secured by mortgages, all of the aggregate face value of $43,933.73. Defendants answered, setting up a history of the transaction between the mortgage trust company and the defendant Eddy as county treasurer, whereby he came into possession of the securities. Plaintiff’s reply denied that the securities were delivered to Eddy in compliance with the agreement alleged in his answer or by reason of any action on the part of the mortgage trust company, but if so delivered, the delivery was at a time said trust company was insolvent, and the delivery constituted an unlawful preference, and was void and of no effect against the creditors of said mortgage trust company and plaintiff as receiver thereof.
The case was tried to the court, which made findings of fact and conclusions of law as follows:
“Findings of Fact
“1. The International Mortgage Trust Company was incorporated in 1925 under the laws of the state of Kansas, with power to do a banking business, including the power to receive deposits of public funds subject to check, and has, since its organization, transacted such business in Topeka, Kan., until February 15, 1932. That at all times mentioned herein, and up to the time that the bank commissioner of the state of Kansas took charge of said trust company, Ira E. Henry was the duly, elected, qualified and acting secretary, treasurer, and active managing officer of said International Mortgage Trust Company.
“2. On Monday, February 15, 1932, H. W. Koeneke, bank commissioner of the state of Kansas, took charge of the said trust company and of its property and effects, and on February 17, 1932, said bank commissioner appointed the plaintiff herein as receiver of said trust company, and on said date the plaintiff herein qualified as such receiver.
“3. That on February 13, 1932, the cash market value of the assets of The International Mortgage Trust Company were insufficient to meet its liabilities, and this condition had existed at least three weeks prior to that date.
“4. That included among the assets of said trust company at all of the times in question herein, were notes, mortgages and other securities which constitute the subject matter of this litigation, and that during all of said times the trust company was the owner of such securities, and at all times maintained the physical possession thereof until the late afternoon of February 13, 1932.
“5. That the plaintiff has made due and legal demand upon the defendants for the return of said securities.
“6. The defendant, J. A. Eddy, is and was at all times referred to in plaintiff’s petition, the treasurer of Shawnee county, Kansas, and as said county treasurer had on deposit in said trust company a large sum of money, which trust company had theretofore legally been designated by the board of county commissioners of Shawnee county, Kansas, as a depository for said county funds. The trust company secured the deposit of the county funds by depositing with the county treasurer various securities, said securities being deposited with the defendant Eddy, under agreements which, except as to number, the amount and description of the securities and the dates of the agreements, were in form and terms the same as the agreement identified as ‘Plaintiff’s Exhibit 6,’ covering the specific securities involved herein, and which is as follows:
“Receipt for Securities.
“Amount, $....................
“Office of Treasurer, Shawnee County,
Date......................................................................
“This certifies that the International Mortgage Trust Company of Topeka, Kan., designated by the board of county commissioners of Shawnee county as a depository of county funds, has this day filed securities described below for the security of such funds. These securities are placed in the vault of the Fidelity State Savings by the county treasurer for safe keeping, in accordance with the provisions of the law, Senate bill No. 303, and will be released only on joint order of the county treasurer and the International Mortgage Trust Company, except in case the trust company fails to pay any check against a balance held by them belonging to Shawnee county, then the securities will be delivered to the county treasurer on his order.
(Sgd.) J. A. Eddy, County Treasurer.
(Sgd.) I. E. Henry, Bank Official.
“The following securities, the property of said trust company, are deposited as surety and made a part hereof:
“7. Said trust company did, from time to time, with the consent of the defendant Eddy, withdraw from the safety deposit vaults of the Fidelity Savings State Bank the securities theretofore deposited to secure the county funds, and at the time of such withdrawals either replaced and substituted the securities so withdrawn with other securities of equal value and amount or, as a condition to being permitted to make such withdrawals, agreed to promptly replace said withdrawn securities with other securities of equal value and amount.
“8. On December 31, 1931, the defendant Eddy withdrew from said deposit the sum of $30,000, leaving a balance on deposit as of that date of $180,009.84, to secure which he held $192,616.86 of securities. On January 2, 1932, the defendant Eddy deposited $29,947 at the request of the trust company and upon the express oral agreement of the trust company to promptly deposit additional securities to an amount at least equal to the whole deposit after the deposit of said sum of $29,947 in said trust company, which raised the total deposit to $209,956.84, to secure which the defendant Eddy then had on deposit securities of the face value of $192,616.86.
“On January 21, 1932, said deposit was credited with $350.96 of interest, thus raising the deposit to $210,307.80.
“9. On January 28, 1932, the trust company withdrew securities in the amount of $23,500 theretofore deposited by it to secure the county funds deposited with .it. At the time of the withdrawal of said securities, Ira E. Henry, the executive officer of said trust company and its secretary and treasurer, orally agreed with the defendant Eddy that if the defendant Eddy would permit the withdrawal of said securities that he would promptly replace the securities so withdrawn by other securities of equal value, and would deposit additional securities to cover the full amount of the county’s deposit in said trust company. Relying upon such agreement, the defendant Eddy permitted the withdrawal of the securities aggregating $23,500, which securities consisted of Kansas municipal, township and county bonds, and refrained from drawing out of the county’s account with the trust company an amount sufficient to bring the deposit within the amount of the securities deposited to secure the same.
“10. At no time since January 28, 1932, has an officer of the trust company or the receiver thereof returned or offered to return the securities amounting to $23,500 so withdrawn on January 28, 1932.
“11. For a considerable period prior to the time in question, Shawnee county had been depositing funds in said trust company, and whenever the amount of the county deposits in said trust company exceeded the face value of the securities deposited to secure such amount, the defendant Eddy would, and did, from time to time, request said trust company to deposit additional securities to cover such shortage; and the defendant Eddy did, on numerous occasions between January 28, 1932, and February 13, 1932, demand of said trust company additional securities to replace those withdrawn at that time and to increase the amount of pledged securities to equal the amount of the county’s deposit. On several occasions in December, 1931, and January, 1932, the defendant Eddy requested Ira E. Henry to deposit sufficient securities to bring the total amount thereof up to the amount of the county’s deposit, and was assured by the officers of the trust company that it would be done. It was to reduce the deposit so as to bring it within the amount of securities pledged that the defendant Eddy, on December 31, 1931, withdrew from the deposit said sum of $30,000.
“12. On February 11, 1932, the amount of the county’s deposit in said trust company, including a credit of $355.56 interest accrued on that date, was $210,-663.36, to secure which deposit the trust company had theretofore deposited securities in the aggregate amount of $169,116.86.
“On Tuesday, February 9; 1932, the defendant Eddy again reminded Mr. Henry of his prior agreement to deposit additional securities to fully cover the county’s deposits with said trust company, and was requested by Henry to return to the trust company on Thursday, February 11, 1932, at which time said securities would be ready.
“On Wednesday, February 10, 1932, Mr. Henry segregated from the assets of the trust company the various securities involved herein and described in ‘Plaintiff’s Exhibit 6.’ These securities had a rubber band around them, and a slip of paper with memorandum ‘County Treasurer’ was placed under the rubber band, and Mr. Henry then handed said securities to an assistant with instructions to make a list of the same and prepare the form of receipt and agreement under which securities were usually deposited, which list was prepared and completed on February 11, 1932, and was signed by Mr. Henry for the trust company on Thursday, February 11, 1932.
“On Thursday, February 11, 1932, the defendant Eddy again called at the office of the trust company and asked for the securities and was told by Mr. Henry that he was too busy to take care of it then, and would call him later.
“On Friday, February 12, 1932, being a holiday, the trust company was not open for business, but on said date its board of directors met and passed a resolution set forth in the minutes of the board of directors, which minutes are designated as ‘Defendant’s Exhibit 1,’ and are as follows:
“ 'A special meeting of the board of directors of the International Mortgage Trust Company of Topeka, Kan., was convened in the office of the trust company on February 13, 1932. After discussion and consideration of the matter, it was duly moved, seconded and earned that the officers be authorized to secure state and county funds on deposit in the trust company by putting up collateral in the form of securities and property.
(Here follows resolution with respect to state treasurer.)
'“There being no further business, the meeting adjourned.
“ ‘Ira E. Henry, Secretary.’
“In the late afternoon, about 5 p. m. of February 13, 1932, the securities mentioned in plaintiff’s petition, which theretofore had been set apart for Mr. Eddy as aforesaid, were delivered to him by the trust company; and Mr. Eddy did not know and was not acquainted with the particular securities making up the list until he obtained possession of them at that time.
“13. That the securities listed and described in ‘Plaintiff’s Exhibit 6’ aggregated the amount of $43,933.73, and were the only securities deposited by the trust company to secure the county’s account after the withdrawal of the securities aggregating $23,500 referred to in finding No, 9.
“14. On February 15, 1932, the defendant Eddy drew a check, bearing date of February 13, 1932, and before he had closed his books as of that date upon said trust company and against said deposit belonging to Shawnee county, Kansas, in the sum of $15,000, upon which check payment was refused by said trust company.
“15. The deposit of $29,947 on January 2, 1932, and the $23,500 of securities withdrawn from the pledged securities on January 28, 1932, augmented the assets of the trust company which passed to the receiver in an amount in excess of the difference between the amount of the deposit and the securities pledged from January 2 to February 13, 1932.
“16. (Statement of county treasurer’s account.)
“Conclusions op Law
“1. The securities involved herein were delivered to the defendant Eddy by the officers of the trust company for the purpose of securing the deposit of public funds deposited by said defendant Eddy, as treasurer of Shawnee county, Kansas, and constituted a valid pledge thereof.
“2. Under section 19-530 of the Revised Statutes of Kansas, 1923, it was the duty of the defendant Eddy, in making deposits of county funds in the trust company, to take a bond or bonds as therein provided to secure said deposits, or under section 9-142, Revised Statutes of Kansas, 1923, as, amended, to take securities to secure said deposits in lieu of a bond, in which latter instance said securities must, in order to make a legal deposit, at all times equal the amount of the county deposit. The deposit of the county funds accepted and received by the trust company without the giving of such bond or securities, became an unlawful and unauthorized deposit.
“3. When the trust company received deposits of public funds from the defendant Eddy, or had on deposit public funds belonging to the county in excess of the amount covered either by the lawful bond or other securities, it became a trustee ex maleficio for the excess amount for the use and benefit of the county; and to avoid circuity of action it is held that said securities are impressed with a trust in favor of the defendants, and the plaintiff was not entitled to their possession at the time this action was instituted.
“4. That the defendants shall recover their costs herein.”
The judgment of the court was that plaintiff take nothing and that defendant have judgment for the possession of the securities. During the pendency of the suit some of the notes had been paid to the clerk of the court, and this sum was ordered paid to the defendant. Plain tiff’s motions for a new trial and for judgment on the findings of fact and to set aside the findings of fact and conclusions of law and to render judgment for plaintiff were denied, and he appeals, assigning as error the entering of judgment in favor of plaintiff and the denial of his motions.
No complaint as to .the correctness of the findings of fact is made. Two propositions are submitted and argued by appellant. The first is that the trial court erred in holding that securities obtained by the defendant were impressed with a trust; the second, that the trust company could not legally pledge its assets to secure the county funds or deposits made with it.
Whether or not the court erred depends on the application of certain statutes.
R. S. 17-2002 provides the purposes for which trust companies may be formed, and the ninth paragraph recites:
“To receive deposits of money from any bank, savings bank, trust company, or from any public officer or board subject to check, or from any person, company, corporation or association upon certificates of deposit, and may allow interest on such deposits; to buy and sell foreign or domestic exchange, gold, silver, foreign coin, or bullion.”
R. S. 17-2003 requires that trust companies receiving deposits keep certain percentages, subject to check, etc. R. S. 17-2013 puts such companies under supervision of the bank commissioner, subject to examination, etc. R. S. 17-2014 makes certain provisions in the banking laws pertaining to failure to make publication of reports, refusal to permit examinations, etc., applicable to trust companies, and R. S. 1931 Supp. 17-2015 makes the provisions of the banking law relating to impairment of capital and insolvency and the duties of the bank commissioner applicable to trust companies.
R. S. 1931 Supp. 9-142 reads in part as follows:
“No bank, bankers, or bank officer shall give preference to any depositor or creditor by pledging the assets of the bank as collateral security, except that bonds of the United States, of the state of Kansas, or of some county, school district, or municipality of the state of Kansas, or other securities, may be deposited with the . . . and with any county treasurer ... or other fiscal officer responsible for public funds . . . for the security of such funds . . .”
R,. S. 9-138 recites:
“Any individual, firm or corporation who shall receive money on deposit, whether on certificates or subject to check, or shall receive money for which it issues its check, draft, bill of exchange or other evidence of indebtedness for which it charges a fee, shall be considered as doing a banking business, and shall be amenable to all the provisions of this act: Provided, That promissory notes issued for money received on deposit shall be held to be certificates of deposit for the purposes of this act.”
R. S. 19-530 recites:
“That in all counties of this state the county treasurer shall deposit daily all the funds and moneys of whatsoever kind that shall come into his possession by virtue of his office as such county treasurer, in his name as such treasurer, in one or more responsible banks located in the county and designated by the board of county commissioners as county depositories. . . . Before making such deposits the said board shall take from said bank or banks a good and sufficient bond . . . conditioned that such deposits shall be promptly paid on the check or draft of the treasurer of said county. . . .”
Plaintiff argues that under R. S. 17-2002 it is authorized to receive deposits, and that no requirement for security is made, and no authority to give security is authorized. It will be noted that the statutory authority to receive deposits is in general terms — i. e., “from any public officer.” However, a specific statute (R. S. 19-530) requires the county treasurer to do more. He must make his deposits daily in a bank located in the county and designated by the board of county commissioners, the statute requiring the bank of deposit to secure the depositing treasurer by bond as specified in the statute. The specific statute controls the general one. See 59 C. J. 1056, wherein it is said:
“Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative .policy; but to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, unless it appears that the legislature intended to make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage.”
Also, see Wulf v. Fitzpatrick, 124 Kan. 642, 261 Pac. 838.
Assuming for the moment that the trust company has the status 0* a bank, it must be held that before the county treasurer could lawfully deposit county funds in the trust company, the tfust company must have been designated as a depository and have given bond. It may here be remarked that by the provisions of R. S. 1931 Supp. 9-142 the bank could secure the deposit by pledging designated assets of the depository bank. It would thus appear that the only way in which the county treasurer could make and the trust com pany could receive deposits would be on the assumption that the trust company was a bank for that purpose. Regardless of the present contention of the receiver, and regardless of what may be the legal situation at the time deposits were made by the county treasurer and received by the trust company, the parties must have thought the trust company was acting as a bank, as is shown by the sixth finding of fact.
Under the circumstances noted did the trust company stand in the position of a bank? R. S. 9-138 provides that any corporation which shall receive money on deposit whether on certificate or subject to check — and the findings make it clear that the trust company did that — shall be considered as doing a banking business. In many particulars of the statute with reference to trust companies the banking law applies, and under the provisions of R. S. 1931 Supp. 9-101a to 9-lOlf, a state bank may acquire authority to act as a trust company, or a state bank and a trust company may consolidate.
In some respects the powers of a state bank and a trust company are common, and in other respects similar, as a reference to the banking laws (R. S. 9-101 et seq.) and trust company laws (R. S. 17-2001 et seq.), both as amended, will show.
Shortly after the bank commissioner took charge of the trust company certain creditors of the company filed an involuntary petition in bankruptcy against it. The receiver who brings the instant action and the state of Kansas on the relation of the attorney-general intervened and moved to dismiss the proceeding in bankruptcy for want of jurisdiction. The district court denied the motions, and an appeal was taken to the circuit court of appeals and there decided. (State of Kansas v. Hayes, 62 F. 2d 597.) The motion to dismiss was predicated on the ground that the trust company was by virtue of the laws of Kansas and in actual fact in operation as a banking corporation within the intent and meaning of the bankruptcy act. The statutes of Kansas pertaining to banks and trust companies were somewhat reviewed, and it was said:
“That many trust companies organized under the laws of this state have done a very large banking business by receiving public funds on deposit subject to check, and the moneys of savings banks, and other banks, for many years past, is a matter of common knowledge, as is shown by the record in this case, . . . It is thus seen that under the many provisions of the statutory law of this state trust companies are made banking corporations.” (pp. 598, 599.)
And the conclusion of the opinion is:
“From all the facts, matters and things stated, we are of opinion it must be held the trust company in question is a banking corporation within the contemplation of the lawmaking power of this state,” etc. (p. 601.)
Attention is directed to the citation of authorities in the case bearing on the proposition of what constitutes banking. While the decision is not conclusive, it is persuasive.
Under the findings of fact, it is clear that in receiving public deposits and in giving security therefor the trust company was acting in the same manner as though it were a bank, and our conclusion is that at least under these circumstances it was so far a bank that its giving of security by delivery of the notes referred to in finding 13 was a lawful act, binding on the trust company and on its receiver. It follows that the trial court’s conclusion of law was proper.
It appears also from the findings that deposits of money were made by the county treasurer without security either previously or at that time being given. Such deposits were in violation of law, for at the time they were made the county treasurer and the trust company knew that no bond as provided by R. S. 19-530 had been delivered, nor was security as provided in R. S. 1931 Supp. 9-142 given. Until the securities referred to in finding' 13 were delivered to the county treasurer, as set out in finding 12, the deposit was unlawfully made, the title did not pass, and the trust company was a trustee ex maleficio for ail unsecured deposits. (See Phillips v. Bank, 98 Kan. 383, 158 Pac. 23.) When the securities were furnished, the title passed and the trust relation ended, and the usual relation of a depository and a depositor with a secured deposit arose. The trial court’s finding as to trusteeship ex maleficio was not stated in an alternative way, but is subject to the construction that if the trust company was not held to the deposit of securities as a bank, then it held the excess deposits as trustee ex maleficio.
In view of what has been said, neither the question of the solvency of the trust company nor the question of preference need be discussed, nor need we concern ourselves with the proposition that the trust company must return the $23,500 of bonds mentioned in findings 9, 10 and 13, before being entitled to a return of the $43,933.73 of securities.
The trial court’s conclusion that the plaintiff was not entitled to the return of the securities and that he take nothing, and that defendant Eddy, as county treasurer of Shawnee county, have judg ment for the possession of the securities, or the cash for those paid during pendency of the suit, was correct, and the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal brings here for review an award of compensation to dependents of a workman, Oscar Miles, a caser of oil wells, who was accidentally killed while working for Jack Wyatt, who operated a casing crew and worked for a number of oil companies, including Fisher & Lauck, drillers and producers. Wyatt 'and his crew handled the casing jobs of the defendants, but did not work continuously for them. He worked only when casing jobs were called for. When at work on a job Miles received $8 per day, and when at work payment was made at the end of each week or when the job was completed. Miles had worked fifty-five days in the year previous to his death, for which he was paid $517.55. When not employed at casing for defendants he did some work for others, for which he was paid $192.85. The commissioner determined that his daily wage was $8 per day, and to compute his yearly earnings on the daily wage mentioned it should be multiplied by the number of working days in the year and not for the time when he was actually at work.
Aside from the fact that Miles was killed on March 15, 1932, it was stipulated by the parties that he received an accidental injury which caused his immediate death,, that notice of his injury was had, that demand for compensation had been made as required by law, and that the Employers’ Liability Assurance Corporation is the insurance carrier of the defendant, Fisher & Lauck. The commissioner found that Miles had a wife and three minor children, and that these were totally dependent upon the deceased, and that he was earning $8 per day or $48 a week of six days each. The award of the commissioner was $4,000. The defendants appeal.
Defendants contend that Miles had worked and earned, at his regular occupation during the last year, $517.55, to which should be added his earnings at odd jobs, $192.85, making a total of $710.40, and then multiplied this by three, making $2,131.20, and that this should have been the amount of the award. The statute must control. It is provided in R. S. 1931 Supp. 40-510 that:
"If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section eleven (11) of this act, but not exceeding four thousand dollars ($4,000) and not less than fourteen hundred dollars ($1,400):” etc.
with several provisos not important at this time.
Turning to R. S. 1931 Supp. 44-511, we find:
“The average annual earnings of a workman shall, for the purpose of the provisions of this act, be computed as follows: (a) where the workman has been continuously employed by the same employer for one year or longer, the actual amount of money paid by the employer to the employee as wages or remuneration for his services during the year immediately preceding the injury, undiminished by loss due to absence from work on account of illness or other unavoidable cause. (6) Where the workman has been employed less than one year by the employer in whose employ he received the injury fifty-two times the average weekly amount which, during the twelve months immediately preceding the accident, was being earned by a person in the same grade employed at the same work by the same employer, undiminished by loss due to absence from work on account of illness or other unavoidable cause; and if there is no person in the same grade employed at the same work by the same employer, then fifty-two times the average weekly earnings of a person in the same grade employed by the same or other employer in the same district at the same or similar work or employment, (c) Where the workman has entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average annual earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the injury.”
Reference was made to R. S. 1931 Supp. 44-511 for the computa tion, and it appears that the deceased was employed as a caser when called on by the Fisher & Lauck company for whom he was at work when he was accidentally killed. Then, according to the statute, since he was not employed for a year or longer, his compensation should be based on fifty-two times his average weekly earnings undiminished by loss due to illness or other unavoidable cause. It could not be determined in advance just when he might be called on for casing work, but when such work was demanded he was willing and ready to work at the fixed price of $8 per day. Defendants say that the loss of actual earnings is the basis of the compensation act and that the award given was more than he would have received had he lived, It is only a measure of compensation when the workman is accidentally killed while at work, and where he had not worked a full year when the accident occurred. It is not a case like one where the workman survived the accident. There are more than the immediate parties to the work interested. It has been said:
“Moreover, the workmen’s compensation act was not passed for the benefit alone of the injured employee and the employer. It is well understood that there were supposed to be three parties interested; the employer, the employee and the public, and that a broad public policy moved the legislature to enact the measure because of the waste of life and limb in industrial accidents, and because the public, in the end, paid for the financial loss in the increased price of the product.” (Cramer v. Railways Co., 112 Kan. 298, 303, 211 Pac. 118.)
A case quite similar to the one under review is McKinstry v. Coal Co., 116 Kan. 192, 225 Pac. 743. There the workman was paid so much a car, but the usual wage for the work was $8 a day. There he was regarded as an employee and had received the past year approximately $1,700 or $1,800 and was awarded the maximum amount of $4,000. It was there said that—
“When the mine in which the plaintiff worked was not in operation, he did not earn wages, but his compensation should not be reduced because the mine did not run full time. His compensation should be calculated for the period fixed by law, at the rate fixed by law, whether the mine was operated all the time or only part of the time.” (p. 194.)
See, also, Michael v. Jacob Dold Packing Co., 120 Kan. 684, 244 Pac. 1050; Shay v. Hill, 133 Kan. 157, 299 Pac. 263; 38 A. L. R. 839.
There are restrictions, in that a maximum is fixed at $4,000 and a minimum at $1,400. The days when by reason of unavoidable cause defendants were unable to furnish casing work for the de ceased, lost nothing to him as he held himself in readiness to perform such work when called up.on and, in fact, was working in that capacity with defendants at the time of his injury and death.
We think he came within the statute, that his dependents were within the statute for measuring the compensation, and that the evidence was sufficient to sustain it. It follows that the maximum of $4,000 was a proper award to be made, and hence the judgment will be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries. The jury answered special questions and returned a verdict for plaintiff for $3,000, upon which judgment was rendered. Defendants have appealed.
Appellants contend the court erred in overruling their demurrer to plaintiff’s evidence. They also argue that their motion for judgment upon the evidence, notwithstanding the general verdict and the answers to special questions, should have been sustained; but since this ruling was proper, if the evidence should have gone to the jury, we need give this point no further attention.
As to whether the demurrer to the evidence should have been sustained, the facts may be stated as follows; Plaintiff was em ployed by Butler county on road work, and with other workmen was transported to and from work in a county bus. This bus was so constructed that two workmen could ride on the seat with the driver. Directly behind the driver there was a solid board partition, except for a small window. Back of this was the passenger compartment proper, arranged with one long seat on each side. On the morning of August 5, 1932, plaintiff and seven other workmen were being transported to work in this bus. They left El Dorado about 7:30 o’clock, driving north. Two of the workmen were riding on the seat with the driver, the others were in the passenger compartment of the bus. Plaintiff was sitting on the left side of the bus near the rear, facing to the northeast, with his elbow resting on the window sill in such a way that the elbow extended from two to three inches outside the window. The road was an improved graveled highway twenty-two feet from shoulder to shoulder, and the traveled portion nineteen feet wide, and it was thoroughly dry, except that the east shoulder was a little soft. The bus had crossed a ravine and started up a grade and was traveling about thirty miles per hour. Defendants, driving a truck with a live-stock bed, came over the hill from the north, about a quarter of a mile, at a speed of perhaps forty-five miles per hour, traveling near the center of the highway. The driver of the bus slowed a little and pulled to the right near the edge of the road. The bus was six feet nine inches wide at its widest place, which was at the window sills. These window sills were five inches wide and six feet five inches above the road. The truck bed was seven feet ten inches wide. Defendants did not drive to their right side of the highway, but continued near the center of it and so close that the truck bed struck plaintiff’s elbow, causing him serious injury. The vehicles did not collide or strike each other.
It is clear from this statement that defendants were negligent in not driving to their own side of the road, but they argue that even if that be true plaintiff was negligent in' riding in the bus seated in such a way that his arm was on the window sill with the elbow protruding as much as two or three inches beyond the side of the bus; hence, appellants argue that plaintiff was guilty of contributory negligence, which bars his recovery as a matter of law. Appellants cite the railway and street-railway cases in which passengers were injured by having their arms or heads outside of the windows and being struck by trolley poles, other trains or cars, mail racks, bridges, or the like. This case is clearly distinguishable from those cases, for there the cars traveled on stationary tracks, and bridges, poles, mail racks and passing trains are essential to their operation. Appellants) also cite the cases where the injured person was riding on the running board or fender of an automobile. In some of those cases plaintiff was held negligent as a matter of law, in others it was held that his negligence was a question for the jury. There is evidence in this case that it was not unusual for those who rode in the bus to sit in such a position that an arm or elbow rested on the window sill, even extended from the bus a few inches. While plaintiff was so seated that he could not see far ahead of him because of the board partition of the bus, he could see and know that the bus -was being driven near the right-hand side of the highway. He also knew that a vehicle approaching from the north should be using the west side of the highway, and if that were true there would be several feet between the vehicles as they passed. In' that situation he was hardly called upon to anticipate that defendants would negligently drive their truck near the center of the highway rather than to the right-hand side. Under all the circumstances, we think the question of plaintiff’s negligence was a fair question to submit to the jury. The jury found he was in the exercise of due care.
We find no error in the record, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This action was brought to cancel and annul a written instrument called “Assignment of contingent equity.” Judgment was for plaintiffs. Defendant appeals.
The plaintiffs were the children of D. B. Ingram. D. B. Ingram was the nephew of John L. Draper, deceased. Under the terms of the will -of John L. Draper his widow was given a life estate in all his property. Upon her death the income was to be shared equally by D. B. Ingram and Mary Ingram. Upon the death of either of them leaving a child or children such child or children would receive in equal shares the income which the parent of such children would be entitled to-, if living, and upon the death of the last survivor of the nephew and niece, that is, D. B. Ingram or Mary E. Ingram, the entire estate was to be divided between the children of D. B. Ingram and Mary Ingram, share and share alike. It will be seen that at the time of the signing of the instrument in question the plaintiffs had an equitable interest in the estate of John L. Draper.
The petition alleged facts about as detailed here with reference to the estate. It then alleged that at the time of the execution of the instrument D. B. Ingram was seventy-four years of age and in a weakened physical condition and easily influenced; that prior to that time his wife had been operated on at the hospital and had been an invalid for several years, and that on account of these things he was sorély in need of money to pay his bills. The petition then alleged that D. B. Ingram had dealt with George T. Guernsey and the Commercial National Bank, and had great faith and confidence in George T. Guernsey, and on account of this .faith and confidence was easily influenced into doing the things set out.
' The petition then alleged that the Commercial National Bank, acting through George T. Guernsey, in order to secure by fraud a claim against the equitable interest of plaintiffs in the estate of John L. Draper, induced D. B. Ingram to make certain false representations to plaintiffs in order to secure their signatures to the instrument in question. The petition then alleged that Ingram told plaintiffs that his indebtedness to the bank was $2,000 and that' he had arranged to borrow $2,000 additional from the bank; that this would be all he would borrow from the bank; that he had no other indebtedness to the bank and that he carried life insurance in the amount of $4,000 which, in the event of his death, would pay all his obligations at the bank and that plaintiffs would be in no danger in executing the assignment. The petition then alleged that D. B. Ingram did have $4,000 life insurance, which was paid to his administrator and was used in paying debts of Ingram other than to the bank; that the bank had never agreed to advance Ingram $2,000 to pay .the bills due to his wife’s illness; that no such loan was ever made, and the bills were obligations against the estate of Ingram after his death; that at the time of the execution and delivery of the assignment Ingram was indebted to the bank-for a much greater sum than $2,000, but that plaintiffs were unable to give the exact amount of such indebtedness.
The petition then contained the following allegation:
“That said misrepresentations of fact, so made by D. B. Ingram to plaintiffs, at the instance and request of said Commercial National Bank, were fraudulently made, with full knowledge of their falsity by both D. B. Ingram and said Commercial National Bank and for the sole purpose and object on the part of said Commercial National Bank of obtaining by fraud from said plaintiffs said assignment and of securing a claim against the estate of John L. Draper, deceased, and of depriving plaintiffs of their interest in said estate.
“That said plaintiffs believed said statements to be true and relied upon them as being true, and without knowledge of their falsity, and without any consideration therefor, executed and delivered said assignment.”
The petition then set out' the specific acts of misrepresentation by Ingram, which contained the following allegation:
“That said D. B. Ingram made said statements at the instance and request of George T. Guernsey, Sr., president of the Commercial National Bank, made at Independence, Kan., orally that plaintiffs cannot give the full substance of such request, but that said George T. Guernsey, Sr., as president of said bank, asked and directed said D. B. Ingram to secure such assignment from plaintiffs, and that said D. B. Ingram, acting under such direction, did secure such assignments in the way and manner herein set out, and delivered them to said George T. Guernsey, Sr., president of said bank.
“That the said Commercial National Bank in inducing the said D. B. Ingram to procure said assignment from plaintiffs, was pursuing a scheme and plan by which it intended to and did induce plaintiffs, through a desire to assist their father in his difficulties, to execute to said bank said assignment and by fraud procured from plaintiffs the assignment of interest in the estate of John L. Draper, deceased.”
The petition then alleged that after the death of D. B. Ingram the defendant filed a claim against his estate upon his notes in the aggregate sum of $20,200 and prayed the probate court to have the claim allowed as secured claims against the interest of John L. Draper, deceased.
The petition then alleged that plaintiffs did not learn of the misrepresentation of facts to them until May 1, 1930, and did not discover the fraud practiced upon them until the 1st of May, -1930, and that on or about the 30th day of August, 1930, the receiver of the Commercial National Bank assigned all of its assets to The Security National Bank of Independence, Kan.
Plaintiffs prayed for an order annulling the assignment. Defendant answered claiming that the petition did not state a cause of action. It further answered with a general denial.
The answer further alleged that if Ingram was in the condition alleged in the petition it was well known to plaintiffs and they were obligated to inquire with that degree of diligence, commensurate with the circumstances, into the debts and financial condition of D. B. Ingram, and that their failure to do so was negligence barring their recovery in the action. The answer also charged that plaintiffs were guilty of laches in waiting from May 1, 1930, until March 4,1932, before filing suit.
The defendant further made the assignment an exhibit and attached it to the answer and alleged that plaintiffs became bound by its terms.
The answer then expressly denied that either the bank or Guernsey induced, authorized or persuaded Ingram to make any representations whatever to plaintiffs to procure them to execute the assignment and further denied that either the bank or Guernsey conspired or entered into any scheme or device to procure the execution of the assignment and alleged that plaintiffs signed it of their own free will. The answer then pleaded the two-year statute of limitations.
It will be seen from the pleadings that plaintiffs sought to cancel the assignment for the following reasons:
“1. That Dwight B. Ingram made certain false and fraudulent representations concerning his obligations, particularly to the bank, to his children, with the intent and purpose to defraud them.
“2. That such false and fraudulent representations were made at the instance and request of George T. Guernsey as president of the bank and in the consummation of a scheme and plan agreed upon by the bank and Dwight B. Ingram to defraud his children of their interest in the Draper estate.”
The answer relied on by the defendant in the main is a denial of the second of the above reasons. It became incumbent on plaintiffs to prove this in order to establish their cause of action.
The case was tried to a jury, which returned a verdict for plaintiffs. Judgment was rendered on the verdict. At the close of plaintiffs’ evidence defendant demurred to it. This demurrer was overruled. At the end of the case motions for judgment and for a new trial were overruled. The correctness of all these rulings is brought here on this appeal.
On account of the conclusion that we have reached as to the demurrer to the evidence we will pay particular attention to the evidence offered by plaintiffs.
As has been seen, the action was begun by the children of D. B. Ingram, Walter E. Skinner being the deceased husband of Edith M. Skinner. The evidence offered and relied on by plaintiffs is in the testimony of the children as to the statements of their father at the time they executed the assignment, together with the evidence of the surrounding circumstances.
Ruth Wilson testified that she was teaching school when her father came to the schoolroom to obtain her signature. Her father spoke of bills he owed, stated he did not need much, just enough to carry him until he could get on his feet. She testified that her father was seventy-one years old and that her mother had just returned from the hospital where she had an emergency operation and her father was in debt for the bills. At that time she was unmarried and living with her father and mother. Her father spent most of his time during the day down town on business.
Edith Skinner testified that at the time she signed the instrument she was at her parents’ house; that her father said the bills were so heavy that he needed money; he said it would not mean anything to her because he only needed $2,000. He said he owed the bank $2,000. Her father was seventy-one years old at the time and she had noticed he was failing. The instrument shows it was signed before Daisy Frazier as notary, but she did not go before Daisy Frazier to sign it. At the time she signed her sister had already signed. She did not learn about how much her father really owed the bank until the bank filed its claim in the probate court. Her father had one $2,000 life insurance policy which was paid to an aunt in'Massachusetts and one for $2,000 which was paid to the administrator of his estate.
Arthur Ingram was the son of D. B. Ingram. He testified that he signed the instrument at his place of business. He objected to signing because there was no consideration and no amount set out in the assignment. In answer to a question his father said he only owed $2,000 at the bank and that he needed $2,000 more to settle his bills. His father stated that he had two life insurance policies for $2,000 each and that if anything happened the children would have that money to take up the notes. After he signed the agreement his father put it in his pocket. His father then asked him to go over and tell Mr. Guernsey that he had signed it. The same day in the afternoon he went to see Mr. Guernsey and told him that he had signed. After a few days he became worried and again called Mr. Guernsey. He told Mr. Guernsey that the children had signed so that their father could get a little money to pay his bills, that he did not read it carefully, but as he remembered it there was no amount set in there — he could sign away the entire amount. Mr. Guernsey said, “Of course we don’t intend anything like that.” There was nothing said about the amount of the debt he owed except that it would just be a small amount. He learned about the full amount his father owed when the bank filed its claim in the probate court. His father had been doing business at the Commercial National Bank for about ten years.
At the beginning of the evidence plaintiffs introduced the ledger sheets of the bank that show the account of D. B. Ingram. This constituted all the evidence upon which plaintiffs rely to establish their cause of action.
They rely on certain surrounding circumstances to sustain the burden of proof that the bank conspired with Ingram to make the false representations. The circumstances are that Ingram was heavily indebted to the bank which had carried him for a long time. Ingram was old and broken in spirit. Ingram induced his children to sign the instrument by misrepresentation. No consideration passed from either him or the bank; neither he nor the bank obligated themselves at all; the liability ledger of the bank shows that no additional moneys were advanced by the bank after the assignment — he received no benefit from it.
They argue that Ingram must have been influenced by the bank, because no reasonable man would have induced his children to do such a thing. They point out that the assignment is cleverly drawn, evidently by a skilled lawyer interested in the bank’s welfare. It should be noted that there is no evidence of this. They point out that Guernsey himself deceived Arthur Ingram when he talked to him; that Guernsey knew of Arthur’s statements that his father had deceived him. Almost immediately after the assignment Mr. Guernsey went to Northampton to investigate the value of the estate. They argue that the liability ledger of the bank shows that it was manipulated so as to make it show — if inquiry had been made at the time of this assignment — that Ingram did not owe the bank.
Plaintiffs rely on cases where this court has held that conspiracy to defraud could be proved by surrounding circumstances. We have no quarrel with that rule. We hold, however, that the evidence in troduced must prove the cause of action. It must be sufficient to more than arouse a suspicion that the allegations of the petition are true. On its face the transaction here, as far as the bank is concerned, is regular. What more natural than that a bank, seeing' one of its customers in failing health and indebted to it, should require the customer to secure his indebtedness? It is done every day. The circumstances upon which plaintiffs rely to establish the fact that the bank knew about the misrepresentations of Mr. Ingram do not appear of sufficient weight to warrant a holding that the cause of action was established. We see nothing bad about having a lawyer draw up the instrument, nothing out of the way about Mr. Guernsey going out to look at the estate. The whole affair appears to us as the natural result when an aged man is asked to secure his indebtedness. He turned to the only place he knew of to obtain the security. The children were all adults and lived in the same city with their father and could very well have known about the condition of his affairs.
This court is reluctant to set aside a verdict of a jury and will examine the evidence upon which the verdict is based and indulge in every reasonable presumption from the circumstances to sustain the verdict. (See Ratcliff v. Paul, 114 Kan. 506, 220 Pac. 279, and cases cited.)
There is another rule to which we have always adhered. That is that fraud and deceit will not be presumed. Where a party has voluntarily signed an instrument and later seeks to avoid the effect of having signed on the ground that his signature was induced by fraud and misrepresentation, the fraud and misrepresentation must be made to clearly appear. See Buchanan v. Gibbs, 26 Kan. 277. There it was held:
“Where a party voluntarily signs and deliver’s an instrument affecting the property claims of others, and thereafter seeks to repudiate such instrument on the ground of ignorance of its contents or imposition by a third party, the fact of such ignorance or imposition should be made to clearly appear before such instrument is declared invalid.” (Syl. ¶ 1.)
See, also, Shriver v. Fourth Nat’l Bank, 121 Kan. 388, 247 Pac. 443; also, Elwood v. Tiemair, 91 Kan. 842, 130 Pac. 362. After a careful examination of the record in this case we have reached the conclusion that the evidence of plaintiffs did not sustain the burden of proof laid upon them by the above authorities.
Plaintiffs argue that there was no consideration for the making of the assignment on the part of the children. Plaintiffs did not plead want of consideration in their petition, and it is too late to raise it as a ground for recovery for the first time in this court. (Insurance Co. v. Baer, 94 Kan. 777, 147 Pac. 840.) There are two other reasons why this point would not have been good even had it been pleaded: First, the facts disclose that the father was extended leniency by the bank on account of securing the assignment from the children and that his notes were renewed subsequently. This was sufficient consideration to support the signing of the assignment by the children; second, the assignment was made by the children to the bank to secure the indebtedness of the father. It is not necessary that a consideration move to the surety in such a case. It is sufficient if it p.ass from the payee, that is, the bank here, to the principal, that is, the father. (See Security State Bank v. Mossman, 131 Kan. 508, 292 Pac. 935.)
From what has been said it follows that the trial court should have sustained the demurrer of defendant to the evidence of plaintiffs.
The case is reversed with directions to enter judgment for defendant.
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The opiniqn of the court was delivered by
Harvey, J.:
This is a proceeding to have a claim against the receiver of a failed bank allowed as a preferred claim. The trial court allowed it as a common claim in the sum of $9,000. Claimant has appealed, and contends that under the evidence $6,000 of the amount should have been allowed as a preferred claim. The receiver filed a cross appeal and contends the claim should not have been allowed in any sum, even as a common claim.
The facts disclosed by the pleadings, stipulated in writing and agreed to in open court, may be summarized as follows: The Farmers State Bank of Sedgwick, with Charles B. Harling, president, and H. B. Harling, cashier, as its principal active officers, functioned as a state bank for many years prior to May 27, 1931, on which date it failed and a receiver was appointed. The claimant, W. B. Sefton, was a customer of the bank. About October 5, 1918, Sefton left with the bank for safe-keeping a United States Fourth Liberty loan bond for $1,000 and received the bank's receipt therefor. On July 7, 1927, he left with the bank for safe-keeping four bonds of school district No. 168, Sedgwick county, for $1,000 each, and on July 20, 1927, three more of such bonds for $1,000 each, and on the same day two Marion county funding bonds of $500 each. The receipts given by the bank, except the first, described the bonds by issue, number and amount, stated they were received “for safekeeping in our bank vault,” and contained this paragraph:
“This bank will give the same care to property left for safe-keeping that it does to its own property, but beyond that does not assume responsibility. The above property to be delivered only to the person named hereon or his legal representative upon return of this receipt.”
On December 13, 1927, the bank sold to the Guarantee Title & Trust Company of Wichita, six of the above-mentioned bonds for $1,000 each, for their face value with accrued interest, under a repurchase agreement, which it exercised April 2, 1929. On June 5, 1929, the bank sold to the State Reserve Bank of Wichita five of the $1,000 bonds, for which it received $5,035.73. With this sale there was a repurchase agreement, which was not exercised. On October 19, 1929, the bank sold to the Brown-Crummer Company of Wichita two of the $1,000 bonds and received $2,000 therefor, and on October 29, 1929, the bank sold to the same company the two Marion county bonds of $500 each and received $891.77 therefor.
W. B. Sefton never received from the bank any of the bonds he left with it for safe-keeping. He did not know any of the bonds had been sold by the bank, and received none of the proceeds thereof. None of the bonds were in the bank when it failed and was taken charge of by the receiver.
On learning of the W. B. Sefton bonds and how they had been received and handled by the bank, the receiver presented an itemized claim to the bonding company, surety on the bonds, of the active officers of the bank, Charles B. and H. B. Harling. One item, No. 10 of this claim, was for $6,000 of the Sefton bonds. After an investigation the surety company recognized its liability on certain items of the claim presented and paid to the receiver substantially, the full amount of the bonds. Among the items of the claim so recognized and paid was No. 10 for $6,000 of the Sefton bonds.
Taking up the cross appeal of the receiver, in which it is contended the claim should not have been allowed in any sum, even as a common claim. In support of that contention it is argued that before the claimant should be entitled to have his claim allowed it was essential that he establish: (1) Ownership of the bonds, (2) the placing of the bonds with the bank for safe-keeping, (3) the conversion thereof by the bank, (4) the time of conversion, (5) demand and refusal to surrender the bonds, and (6) the damages sustained by failure to deliver the bonds on demand. It is conceded that the first three of these requirements have been met. As to the fourth it is argued that the time of conversion is not fixed, when the bank first sold part of the bonds in 1927, when it repurchased them in April, 1929, and when it later sold them, some in June and others in October, 1929; and in support of the contention that the date should be fixed, Avid v. Butcher, 22 Kan. 400, is cited. That case dealt with the statute of limitations. Here the claim was filed with the receiver within one year after his appointment, and no question concerning the statute of limitations was raised. It is argued that there has not been a specific demand for the bonds and refusal to deliver them. We regard the presenting of the claim against the receiver as a sufficient demand. It is true that was not a demand for the specific bonds,.but at the time it was made the parties knew that the bonds had been disposed' of and could not be delivered; hence, it was futile to demand the delivery of the specific bonds. A demand for their value was appropriate.
It is next argued that the amount plaintiff is entitled to .recover is not clearly established, since there was not a showing of the value of the bonds. It is argued that the face value may or may not be their real or market value. In the trial court it appears that the bonds were treated as being worth their face value, which was stipulated. Nothing in the record indicates that anyone connected with the trial contended that the bonds were worth more or less than the face value, and in its judgment the trial court treated the face value of the bonds as being their value. Were we to undertake to hold otherwise we would have nothing on which to base our ruling. We find no error in the ruling of the trial court that the claim should be allowed.
Turning now to the question as to whether any of it should have been allowed as a preferred claim. Before such a claim can be allowed it is essential that the sum sought to be allowed as a preferred claim is a trust fund, and that it passed into the hands of the receiver. (State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000.) Clearly, the first of these propositions is well established. (Schoen v. Johnson, 134 Kan. 612, 7 P. 2d 117.) The bonds were left with the bank for safe-keeping, to be returned. The only question remained: Did any part of these funds pass into the hands of the receiver? It was stipulated that as the bonds were sold the amount paid for their purchase passed to the bank. How the money was used by the bank before it failed is not shown, but the fact that the bank had taken and used the bonds, and thereby made itself liable to W. B. Sefton for them, was one of the items presented by the receiver to the surety on the bonds of the bank’s officers, and by reason thereof the receiver received from the surety company $6,000. It is stipulated in this case that the “surety company made payment to the receiver . . . said item 10 of the claim of said receiver in the sum of $6,000.” In this situation the receiver is not in position to say that he did not receive $6,000 of, or because of, the trust fund which Sefton had left with the bank. (Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68.)
The judgment of the court below is reversed with directions to allow $6,000 of the claim as a preferred claim and the remaining $3,000 as a common claim.
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The opinion of the court was delivered by
Harvey, J.:
This is a divorce case. The appeal is from a judgment refusing to allow alimony to a wife who was granted a divorce because of the fault and aggression of her husband.
Plaintiff and defendant were married in 1919 and made their home in Texas and then in Nebraska for about four years, but in 1922 moved to Emporia, where they continued to live until June, 1932, all of which time plaintiff worked as a brakeman for the Atchison, Topeka & Santa Fe Railway Company. They lived in a rented property until the fall of 1930, when the wife received $2,734 as an inheritance from a deceased relative. Of this amount they paid $1,000 on the purchase of a home and $783 for an auto mobile, and the balance was used for living expenses. They had no children, but about twelve years ago they took into their home a two-year-old girl to rear as their child. In June, 1932, the wife and girl went to Nebraska for a visit. The husband went to Kansas City, Kan., and instituted this action for divorce, alleging that his wife was a nonresident of the state and was guilty of abandonment, and sought service of process upon her by publication. She learned of the action and filed an answer denying she was at fault, and also filed a cross petition seeking a divorce from plaintiff because of his illicit association with other women. Thereafter plaintiff dismissed his action for divorce and the action was tried on defendant’s cross petition, and she called the plaintiff as one of her witnesses. Among other things it was shown at the trial that- plaintiff’s earnings had averaged about $2,200 a year for the last five years; that plaintiff, at the time of the purchase of the residence, with defendant’s money as the first payment, had agreed to make the payments on the mortgage as they came due; that he did so for a few months, then ceased; that the payments were in default and the mortgage subject to foreclosure; that plaintiff had ruined his home by his illicit relations with other women and his failure properly to provide for defendant and the girl they had taken to rear.
The court granted defendant a divorce from plaintiff because of his fault and set over to defendant as her property the automobile, household goods, and the interest of the parties in their Emporia home, and gave her judgment for $50 for her attorney’s fees, but-refused to allow defendant judgment for any sum as alimony.
Defendant appeals, and contends that the court erred in refusing to allow her any sum as alimony and in not allowing a greater sum for her attorney’s fees. Treating the last question first, we note that plaintiff wrongfully brought this suit at Kansas City, Kan., falsely charging defendant with being a nonresident of the state and with having abandoned him for more than a year. When defendant learned of the action it was natural for her to return to Emporia and employ an attorney where she was acquainted. The attorney found it necessary to go to Kansas City, not only for the trial, but for preliminary matters and to take depositions at Emporia. The sum allowed but little more than paid his expenses. A more liberal allowance should have been made, although we would not feel like reversing the judgment for that alone.
Turning now to the principal question in the case. Did the court err in refusing to allow alimony? Our statute (R. S. 60-1511), so far as here pertinent, reads:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored ... to all the property . . . owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; ...”
Here the wife had from her inheritance, less than two years before her divorce, $2,734, which was made use of by her and her husband for the necessities .and comforts of the family. It is true the court gave her all of that which had not been disposed of, but because of plaintiff’s derelictions in making payments the mortgage on the home was in default, with the defendant unable financially to prevent foreclosure. At the time of the hearing of the divorce case plaintiff testified that he had no property, and, although he was carried on the rolls of the railway company as an employed brakeman, with more than ten years of seniority of service, at the immediate time of the trial he was not working. His work for more than five years had been reasonably steady and his earnings reasonably uniform at about $2,200 a year. It is clear that his position with the railroad, with his years of seniority and his reasonably steady employment, was his principal financial asset. This the trial court appears to have overlooked. It has been repeatedly held that in the allowance of alimony, when the husband is .at fault, future earnings may be taken into account. (Nixon v. Nixon, 106 Kan. 510, 188 Pac. 227.) They should have been taken into account in this action. The amount which the court should have allowed as alimony is largely within the discretion of the trial court, and an allowance of alimony by the trial court will not be disturbed in this court unless the circumstances are such as to show an abuse of discretion; but it is not within the discretion of the trial court to refuse to allow alimony in a proper case. Under the facts in this case there should have been a substantial allowance. It was error for the court to allow nothing. (Metcalf v. Metcalf, 132 Kan. 535, 296 Pac. 353.)
The judgment of the court below is reversed, with directions to the trial court to render judgment allowing alimony to appellant in a reasonable sum, payable either in gross or in installments, as the court deems proper. The costs in this court, including the printing of appellant’s abstract and brief and $100 for her attorney, are taxed to appellee.
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The opinion of the court was delivered by
Burch, J.:
Defendant was prosecuted on an information charging embezzlement from A. W. Knisely and charging obtaining money from Knisely by false pretenses. Certain counts of the information were quashed, and a plea in abatement of the prosecution with respect to other counts was sustained. The state appeals.
Before stating the contents of the information, and the proceedings under it, it may be well to sketch composition of the embezzlement statute.
The embezzlement statute of 1868 provided that if any clerk, apprentice or servant of a private person or partnership, or if any officer, agent, clerk or servant of a corporation, should embezzle or convert to his own use, or should take, make away with or secrete, with intent to appropriate to his own use without his employer’s assent, money, goods, rights in action, valuable securities or effects coming into his possession or care by virtue of his employment or office, he should be punished in' a prescribed manner. (Gen. Stat. 1868, ch. 31, § 88.) This statute was subsequently amended to include trustees of express trusts, executors and administrators, guardians, public officers, and receivers.
In 1873 the section was amended by adding to it, at the end, a provision that any agent who should neglect or refuse to deliver to his employer, on demand, money, promissory notes, evidences of debt, or other property which came into his possession by virtue of his employment, after deducting fees as attorney, charges as agent, or stipulated commission for making collection of money, should be punished as provided in the section for converting money or other property to his own use. (Laws 1873, ch. 83, § 1.) This part of the statute was modified and elaborated by subsequent amendment. (Laws 1881, ch. 104, § 1.)
In 1899 the initial provision of the statute, “any clerk, apprentice, or servant,” etc., was amended to read, “any agent, employee, clerk, apprentice, or servant,” etc. (Laws 1899, ch. 139, § 1.)
As a result of these legislative emendations, the embezzlement statute under which the embezzlement counts of the information in this case were drawn became R. S. 21-545, which reads:
“Any agent, employee, clerk, apprentice or servant of any private person, or of any copartnership (except agents, employees, clerks, apprentices or servants within the age of sixteen years), or any trustee of an express trust, or any executor or administrator of any estate, or the guardian of the property of any minor, habitual drunkard, or person of unsound mind, or any officer, clerk, agent, employee or servant of any corporation, joint-stock association or other association, or any person employed in such capacity, or any officer of this state or any county, township, city, board of education or school district or road district therein, or any receiver appointed by any court or judge in this state, who shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to convert to his own use, without the assent of his employer, any money, bank bills, treasury notes, goods, rights in action, or valuable security or effects whatsoever, belonging to any such person, co-partnership, association, corporation, joint-stock association, estate, minor, habitual drunkard, person of unsound mind, state, county, city, board of education, township or school district, or road district, or the beneficiary of such trust fund, or being a part of the funds, assets or property of such receivership, which shall have come into his possession or under his care by virtue of such employment, office or trust, shall upon conviction thereof be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, taken or secreted; or if any agent shall, with intent to defraud, neglect or refuse to deliver to his employer or employers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt or other property which may or shall have come into his possession by virtue of such employment, office or trust, after deducting his reasonable or lawful fees, charges or commissions for his services, unless the same shall have been lost by means beyond his control before he had opportunity to malee delivery thereof to his employer or employers, or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.”
The first count of the information alleged that Rush was agent of Knisely, with authority to withdraw the sum of $8,000 from the deposit account of Knisely in the La Cygne state bank, for the purpose of investment of that sum by Rush in real-estate notes and mortgages to be taken and held by Rush in the name of and for and on behalf of Knisely; that Rush withdrew the money, but instead of investing it, converted it to his own use. The date of the embezzlement was charged as of June, 1918. This count was drawn under the first part of the statute, and did not allege neglect or refusal to deliver on demand after deducting reasonable or lawful fees, charges, and commissions.
Counts 2 to 19, inclusive, charged similar embezzlements on dates extending to April, 1929, of other sums of money withdrawn from Knisely’s bank account for purpose of investment, as charged in the first count.
Counts 20 to 38, inclusive, charged the same facts relating to authority and conduct of Rush with respect to the sums of money specified in the first 19 counts, but charged embezzlement by Rush as trustee of an express trust.
Counts 39 to 57, inclúsive, charged Rush with obtaining by false pretenses the money specified in previous counts.
Count 58 charged that Rush was agent of Knisely from 1918 to 1929, and that Rush neglected and refused to deliver to Knisely on demand money, promissory notes, securities and mortgages which had come into his possession by virtue of his employment, in the sum of $58,600, after' deducting reasonable and lawful fees, charges, and commissions for his services.
Each count of the information alleged concealment of the crime charged until a date within the statute of limitations.
Defendant filed a motion to quash. The motion was sustained with respect to counts 20 to 38, inclusive, charging embezzlement by Rush as trustee of an express trust, and was denied as to all other counts. A trial followed, at which the state’s evidence disclosed the following facts: Rush was cashier of the La Cygne state bank and active manager of its affairs. Knisely was a depositor in the bank. Knisely authorized Rush to withdraw money from Knisely’s account and invest it in farm-mortgage loans. Borrowers were to pay expense of closing loans, and Rush was to have a commission on loans, which were to net Knisely six per cent interest. Rush was to use his judgment in passing on loans, and was to see that the land was worth the money and the loans were good loans. At some date not specified it was agreed that on the first days of January and July of each year Rush would furnish to Knisely statements of loans which had been made, and such statements were furnished until the time the bank failed in April, 1929. In some instances Knisely investigated the value of the land covered by mortgages, but he trusted Rush on the subject of values. Knisely did not in fact receive any notes and mortgages except in the case of one small loan. When a loan did not appear on a statement, Knisely supposed Rush had reinvested the money.
At the conclusion of the state’s evidence defendant moved the court to require the state to elect on what counts of the information it would rely for conviction. The motion was allowed, and the state elected to rely on the first 19 counts. At the conclusion of all the evidence the court instructed the jury and the cause was submitted to the jury. The jury disagreed and was discharged.
When the case came on for second trial, defendant renewed his motion to quash the first 19 counts of the information, and filed a plea in abatement alleging former jeopardy on counts 39 to 58 inclusive. As indicated, counts 20 to 38 had been eliminated by motion to quash preceding the first trial. The motion to quash the first 19 counts was allowed, and the plea with respect to counts 39 to 58 was sustained, which ended the prosecution.
The occasion for the state’s appeal is the ambiguity resulting from the phraseology of the initial and the concluding portions of the statute. By the first provision, if money or securities of a principal come into the hands of an agent by virtue of his employment, he 'is guilty of embezzlement if he converts them to his own use, or if he takes, makes away with or secretes them with intent to convert to his own use and without consent of the principal. Under the last provision if money or securities of a principal come into the hands of an agent by virtue of his employment he is not guilty of embezzlement unless, with intent to defraud, he neglects or refuses, on demand, to deliver the money or securities to the principal, less the agent’s fees, charges, and commissions. Embezzlement under the first provision in effect constitutes a fraud on the principal, and embezzlement under the second provision in effect constitutes conversion.
The first amendment of the statute of 1868 was made when the first provision of the statute read “clerk, apprentice or servant of any private person or copartnership.” In the case of State v. Bancroft, 22 Kan. 170, the question was who might be principal. In discussing the amendment by addition in 1873, it was said the amendment was doubtless aimed at lawyers and such other collection agents as are not liable, even in a civil action, until after demand, and the language of the amendment was purposely made general to include all such agents for whomsoever they were acting. The amendment of 1881 expanded the statute so it no longer applied particularly to collection agents, and it has ever since applied generally to other kinds of agents conducting other kinds of transactions for their principals.
The essence of the offense denounced by the concluding portion of the statute is failure or refusal to pay or to deliver to the principal, on demand, money or property coming into the hands of the agent by virtue of his employment. (State v. Hayes, 59 Kan. 61, 51 Pac. 905 [1898].) In that case the information for embezzlement charged that apples came into possession of the agent to be sold for the principal, and were sold, but only a part of the proceeds was accounted for. It was held the fact that the agent was indebted to the principal for money not promptly remitted did not constitute a crime, and the information was fatally defective for failure to allege demand and failure or refusal to pay.
In 1894 the case of State v. Yeiter, 54 Kan. 277, 38 Pac. 320, was decided. Yeiter was cashier of “The Bank of Ingalls,” an unincorporated bank conducted by a partnership composed of two in'dividuals. An examination of the bank disclosed the cashier- had appropriated large sums of money belonging to the firm, and he was prosecuted for embezzlement under the concluding portion of the statute. He kept the books, received deposits, paid checks, drew drafts, paid ordinary expenses of the bank, and in general performed the duties of a bank cashier. He was paid a salary. One of the partners was general manager of the bank, and the cashier was subject to direction and control of the firm and the managing partner. It was held the cashier was the clerk or servant of the firm, within the meaning of the first part of the statute as it then existed, and because the cashier was charged with embezzlement as agent and not as clerk or servant of the copartnership, the information was held to be bad. In the opinion, direction and control of the cashier by the firm or its managing partner were stressed as indicating service of the kind contemplated by the first part of the statute.
There is no line which so sharply divides the relation of master and servant from the relation of principal and agent that the distinction will be perfectly clear in all cases. In fact, a master is a species of principal, and a servant is a species of agent. (Restatement, Agency, § 2, comment a.) Perhaps because of the decision in the Yeiter case, the first part of the embezzlement statute was amended to read “agent, employee, clerk, apprentice, or servant,” the intention being to include persons who, although they do not have power to alter legal relations to the extent that the agents mentioned in the concluding portion of the statute possess, still have a modicum of independence in the conduct of the employer’s affairs. Interpreted in this manner, the first and the concluding portions of the statute do not overlap or conflict, and in considering an information for embezzlement, the facts of the relationship, and not merely the names which may apply to it, are controlling.
If it were permissible to interpret the first 19 counts of the information by the evidence offered in support of them at the abortive trial, Rush was indubitably an agent in the sense of the concluding portion of the statute, and the evidence would not have sustained conviction without proof of demand and neglect or refusal to pay or deliver. The money which the agent withdrew from the principal’s account was not to be handled in any routine fashion, as the money received by the city officer in the case of State v. Ricksecker, 73 Kan. 495, 85 Pac. 547. The withdrawals themselves were pursuant to a comprehensive authority to be exercised according to the agent’s judgment and discretion, the principal being interested only in the results of the transactions. Leaving the evidence at one side, the first 19 counts themselves disclosed agency of a-type wholly different from that contemplated by the first part of the statute, and those counts were properly quashed.
The plea in abatement was properly sustained. Defendant pleaded to the counts to which the plea in abatement was directed, a jury was empaneled, and the state introduced its evidence in support of them. Defendant was placed in jeopardy, and election of the state to rely for conviction on other counts ended prosecution on the counts abandoned by the election. The state cites cases relating to election between transactions proved to support the charge contained in a count. In such cases the state may, at a subsequent trial, prove and rely on any transaction disclosed by the evidence at the first trial, and the rule is the same whether the charge be of a misdemeanor or of a felony. (State v. Hibbard, 76 Kan. 376, 378, 92 Pac. 304.) This rule has no application to election between counts. The election withdraws the counts from the information as if a nolle prosequi had been entered, and after jeopardy has attached they cannot form the basis of further prosecution. The election to proceed on one count is even held to be equivalent to a verdict of not guilty on the other counts. (31 C. J. 792, § 363.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on two policies of insurance issued by a mutual fire insurance company.
The defense was that plaintiff had rendered the policies nugatory by obtaining additional insurance without the written consent of defendant indorsed on them as provided by the by-laws which were incorporated in the insurance contracts.
Plaintiff’s petition was in two counts, the first of which alleged that defendant had issued a policy, No. 54,054, for $1,000 on plaintiff’s farm dwelling and $500 on his household goods. The second cause of action alleged the issuance of a policy, No. 56,434, for $500 additional fire insurance on the same dwelling house.
Copies of the policies, including the by-laws, were attached to the petition. It also contained the usual allegations of good pleading touching the destruction of the house and goods by fire, plaintiff’s freedom from fault, proofs of loss, demand for payment and the like.
One provision of the by-laws read as follows:
“The entire policy unless otherwise provided by agreement indorsed thereon or added thereto by the secretary, shall be void' if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by the policy or if the hazard be increased by any means within the control or knowledge of the insured.”
Included also in plaintiff’s petition was the following paragraph:
“10. Plaintiff further alleges that this application for policy No. 56,434 was solicited for said defendant, The Republic Mutual Fire Insurance Company, a corporation, by one E. A. Cory, its agent, a member of the board of directors of said defendant, a member of its executive board and its duly qualified and acting treasurer; that when said policy was solicited as aforesaid, namely on July 23, 1932, plaintiff informed and advised said E. A. Cory, that he, said plaintiff, would procure additional insurance on said dwelling house No. 1 in the further sum of $1,000 and $500 additional on said household goods in another company; that said E. A. Cory as such agent and official of said defendant, The Republic Mutual Fire Insurance Company, a corporation, consented to such additional insurance, and fully knew that additional insurance would be procured by this plaintiff in another company; that additional insurance in the sum of $1,000 was placed on dwelling house No. 1 and the further sum of $500 on the household goods in another company five days later. That defendant, The Republic Mutual Fire Insurance Company, a corporation, has waived the right to a further notice of additional insurance, and has waived the right to forfeit the insurance in both of said policies sued on herein. That notice to said E. A. Cory as member of the board of directors, member of the executive board and treasurer of said The Republic Mutual Fire Insurance Company, a corporation, was sufficient notice to said defendant.”
The petition concluded with a prayer for judgment for $1,500 on the first cause of action, for $500 on the second, and for costs and attorney’s fee.
Defendant filed a demurrer to this petition, and while it was under consideration by the court plaintiff admitted that he had collected insurance from another company, The National Fire Insurance Company, and that such was the additional insurance referred to in paragraph 10 of plaintiff’s petition set out above, and that such fact should be considered by the court as if formally pleaded therein.
Defendant’s demurrer was sustained and judgment entered accordingly. Plaintiff appeals.
It is first contended that the provision of the by-law quoted above was waived because plaintiff .gave notice to Cory of his intention to procure additional insurance, that Cory was not only defendant’s soliciting agent; but also its treasurer and a member of its board of directors and a member of its executive committee. Plaintiff argues that Cory was related to defendant in so many capacities that notice to him should be construed as notice to it. Even so, notice of an intention to procure additional insurance would not strike down the provision of the by-laws that the policies sued on would be void if additional insurance were procured without agreement indorsed by defendant’s secretary on the policies sued on. Nothing in the by-laws of the defendant authorized Cory, who solicited the insurance, to waive or abrogate that by-law. Neither was he authorized to do so by his office of treasurer, or as a member of the board of directors, or as a member of the executive committee. It is elementary law that a director of a corporation has no authority to obligate it by the mere fact that he is a director. The corporate authority is exercised by the board itself, not by individuals comprising its personnel. (Buttrick v. Nashua, etc., R. R., 62 N. H. 413, 13 A. S. R. 578; 7 R. C. L. 439.) And the executive committee of a corporation are merely a selected few members of the directorate, sometimes including executive officers, authorized to act for the corporation when the board itself is not in session. It only has such power as the board of directors or the by-laws of the corporation provide. (14 C. J. 96, 97.) And nowhere in the by-laws, or by order of the board of directors, was the treasurer of the corporation authorized to waive, the provision which rendered nugatory any policy of insurance issued by defendant if or when the policyholder should procure additional insurance without the written, indorsement of the secretary giving defendant’s assent thereto.
Appellant cites the case of Pettijohn v. Insurance Co., 100 Kan. 482, 486, 164 Pac. 1096, in which it was stated that a provision in a fire insurance policy that the taking of other insurance without the consent of the secretary and general agent of the insurer would void the entire policy could be waived or abrogated by an authorized officer or agent of the company. That decision dealt with the liability of a commercial insurance company which is held to strict accountability. A mutual insurance company is the favorite of statutory law. (R. S. 40-421 et seq.; R. S. 1931 Supp. 40-1001 et seq.; Rickel v. Republic Mutual Fire Ins. Co., 129 Kan. 332, syl. ¶ 2, 282 Pac. 757.) In Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214, this distinction between commercial fire insurance companies and mutual companies, like this defendant, is discussed at length, and the philosophy underlying the statute which makes the distinction is expounded.
Appellant also cites Insurance Co. v. Knutson, 67 Kan. 71, 72 Pac. 526, where it was held that the company waived the provision which avoided the policy when additional insurance was procured after the secretary of the defendant company had received written notice thereof and took no steps to cancel the policy or to indorse the company’s consent to the additional insurance. This court holds that the analogy between that case and the one of present concern is too remote to be helpful. The instant case is not distinguishable in principle from that of the Kennedy case, supra, where it was held:
“A by-law of such company provided that a policy should be void, unless otherwise provided by agreement indorsed thereon or added thereto by the secretary, if the interest of the insured be other than unconditional or sole ownership, or if the subject of insurance be personal property encumbered by a chattel mortgage. A policy of insurance was issued which had no such agreement indorsed thereon or added thereto, and the subject of the insurance was personal property then encumbered by a chattel mortgage and title notes. Held, that- the policy was not valid.” (Syl. ¶ 2.)
To the same effect were Brenn v. Insurance Co., 103 Kan. 517, 175 Pac. 383; Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 234 Pac. 956. (See, also, Bodine v. Farmers Alliance Ins. Co., 136 Kan. 662, 17 P. 2d 934; and Bussell v. Mennonite Mutual Fire Ins. Co., 137 Kan. 542, 21 P. 2d 308.)
It seems clear that the procurement of additional insurance without an agreement with defendant indorsed on plaintiff’s policies 'by the secretary of the company avoided the policies, and the judgment of the district court was correct.
The judgment is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained in an automobile accident caused by a defect in the highway, U. S. 40-N., about a mile west of Goodland.
It appears that on the afternoon of October 7, 1931, the plaintiff was riding westward on the highway at a speed of thirty to thirty-five miles per hour. Her adult son was at the wheel and he held plaintiff’s infant grandchild between his knees. The road was graveled, and the weather was dry and clear. About a mile west of Goodland the road slopes gently into a swale known as Sappy creek. About two feet north of the center line of the traveled portion of the highway was a “chuck hole.” This hole was about two or three feet long, eighteen inches or two feet wide and six to eight inches deep. As motor vehicles on the highway ran across this “chuck hole,” the jolt made such a noise as to be heard at a farmhouse nearby. Some eight or ten days before the accident of present concern a Denver automobile had been upset at the same point and for the same cause. Following that accident, one Lester Ingram, an employee of the state highway commission, made some effort to repair the highway by filling the hole with loose sand and gravel, but the passing cars speedily dug it out again. Another witness had an experience similar to that of the Denver car. He testified that in driving home the evening before plaintiff’s accident his car hit the same hole and was turned over on account of it.
In the accident which befell plaintiff, the automobile turned over and she was severely and permanently injured in various particulars.
In her petition she pleaded the pertinent facts and alleged that the defect in the highway had existed for more than five days prior to the accident, and that defendant had more than five days’ notice of the defect, and that no warning signs had been placed on the highway.
On issues thus tendered, defendant answered with a general denial and a plea of contributory negligence.
. The jury returned a verdict for plaintiff and answered a number of special questions. Judgment was entered on the verdict and defendant appeals, its first contention being that the highway was not defective as a matter of law. To support this view, reference is made to the evidence which showed that there was ample space for plaintiff’s automobile to pass without running into the hole. While it is quite correct that it is not always required of the authorities in charge of public roads — state, county, or township — to maintain the entire width of a road in a safe condition for public travel (Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051), it is the bounden duty of every such authority to keep in a safe condition for public travel so much of the width of the road as is commonly used therefor. The commonly used portion of the highway where plaintiff’s car was upset was from twenty-five to thirty feet in width. Therefore the road to that width should have been kept in a safe condition for travel. Where some portion of a public road is defective and the road authorities have had notice of it, it is their duty to set about its repair with reasonable promptness, and until that can be done, suitable warning signs should be placed to caution the public that the road is not in its usual condition of safety for public travel. (Story v. Brown County, 116 Kan. 300, 226 Pac. 772; Rosebaugh v. Allen County Comm’rs, 120 Kan. 266, 243 Pac. 277.) Here, according to the jury’s special findings, no warning sign had been set although the defendant had given some testimony to that effect. As the defect in the highway was only about two feet from its median line, and that defect caused plaintiff’s automobile to upset, it seems useless to debate the point whether the road was defective as a matter of law.
It is next urged that defendant did not have five days’ notice of the defect. That point turns on the question whether notice to defendant’s employee Ingram was sufficient to bring home notice to the defendant. Ingram not only had five days’ notice of the defect, but during a period of eight or ten days immediately prior to the accident he had made repeated but ineffective efforts to repair it. He also knew of the accident to the Denver car some eight or ten days previously. A witness who lived near by and had heard the jolting of cars as they ran into the defect had told Ingram, about seven days before plaintiff’s accident, that “if the hole wasn’t filled up somebody would be upset.”
The statute provides that notice sufficient to bind the state highway commission exists where an employee of the commission ir charge of maintenance or upkeep of the highway has had five days’ notice of the defect. (R. S. 1931 Supp., 68-419; Williams v. State Highway Comm., 134 Kan. 810, 813, 814, 8 P. 2d 946.) Ingram was classified by defendant as an “extra laborer,” and that his duties were to put in culverts, clean them out, and to mow weeds. Ingram, called .as a witness for defendant, testified that he filled holes 'on this highway but did not know whether it was his duty to do so or not. A witness for plaintiff testified that Ingram had filled up this particular hole with dry dirt several times shortly prior to the accident, but that passing cars would promptly dig the hole again. After plaintiff’s accident effective steps were taken to keep the hole filled by wetting the dirt used to fill it.
The court holds that defendant’s contention that defendant did not have five days’ notice as prescribed by the statute cannot be sustained.
Another contention is that the driver of the automobile was guilty of contributory negligence as a matter of law and that his negligence barred plaintiff’s right of recovery. This contention is based on the fact that the driver had plaintiff’s eighteen-months’-old grandchild sitting on the seat between his knees as he drove the automobile and that plaintiff made no objection to that arrangement. The jury did not consider that fact as of any consequence, and to a special question propounded on the point it answered thus:
“6. Was Howard Collins exercising reasonable care and diligence, having due regard to condition and traffic of the road, in having the grandson of the plaintiff between his knees while driving the automobile? A. Yes.”
Clearly this was a circumstance for the jury’s determination, and it could not be ruled on as a matter of law.
Error is also based on an instruction touching the sufficiency of the notice to the employee Ingram to bind the defendant. Under the evidence the criticized instruction was a fair statement of pertinent law.
The record contains no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action against the surety on a bond given by a contractor who had undertaken to build a house for plaintiff.
The bond recited that on June 14, 1930, W. W. Stringer, of Wichita, hád entered into a written agreement with Fred W. Olmstead, of Anthony, to build a residence and garage for the latter in accordance with plans and specifications prepared by Ted Mason, architect. The principal obligation of the bond of present concern provided:
“Now, therefore, the condition of this obligation is such that, if the principal shall faithfully perform the contract on his part and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and further, that if the principal shall pay all persons who have contracts directly with the principal for labor or materials, failing which such persons shall have a direct right of action against the principal and surety under this obligation, subject to the owner’s priority, then this obligation shall be null and void, otherwise it shall remain in full force and effect.”
This bond was signed by the contractor and by defendant.
About the time the house was completed plaintiff was sued by Stringer on a demand arising out of the building contract, and liens by Stringer and various labor and material men were filed against his property. Plaintiff Olmstead notified defendant’s agents at Wichita and Kansas City of these proceedings, but the defendant surety company refrained from participating in that action and plaintiff had to bear its burdens alone. This, however, he did successfully, defeating Stringer’s demand and recovering judgment on a cross demand against Stringer for $260.77. However, in that action he was subjected to necessary expenses as follows:
Deposit for referee and stenographer by order of court............... §350.00
Expenses for witnesses.............................................. 70.00
Personal expenses................................................... 60.00
Attornes's’ fees paid.....................................!.......... 850.00
Total .........................................................§1,330.0,0
Plaintiff’s petition pleaded the foregoing facts, set up the bond signed by defendant, and prayed judgment against defendant for the sum awarded him against Stringer ($260.70 and interest) but which the latter had not paid; and plaintiff also prayed for recoupment against defendant for $1,330 for his expenses incurred and paid in the cáse of Stringer v. Olmstead, and in defeating the lien claims filed against his property,
Defendant’s verified answer included a general denial and an admission of some noncontroversial facts pleaded by plaintiff, and. alleged that it was not a party to the action and was not bound by the judgment in Stringer v. Olmstead, and that the prior action was to obtain payment for extra labor and material and not within the prp visions of the bond to which defendant had' obligated itself. Defendant also raised issues of law and of fact touching its liability on the items of expense set out in plaintiff’s petition.
The cause was tried before a jury which returned a verdict for the full amount prayed for by plaintiff.
Defendant appeals, assigning various errors which it summarizes into three points which will be noted in the order of their presentation.
1. It is contended that plaintiff was not entitled to recover the amount of attorneys’ fees and court costs he expended in the earlier litigation. No contention is made that these expenses were unreasonable, but that defendant was not liable for them under the terms of the bond set out above. It is perfectly clear, however, that if plaintiff had not bestirred himself to employ attorneys he would have incurred a judgment liability in behalf of Stringer and his property would have been subjected to a lien by Stringer'and liens in favor of other labor and material men who followed the cue given them by Stringer. The bond to which defendant set its. hand contained specific provision that any alterations in the terms of the building contract or the work to be done under it should not release the surety, and notice of any such alteration was expressly waived. It is quite understandable, of course, that some of the .matters in controversy between Olmstead and Stringer in the earlier litigation may not have been within the terms of the bond, but it was proper and necessary (to avoid the rule of res judicata) that all matters properly justiciable in that litigation should be adjudicated in that lawsuit whether defendant was concerned with all the details thereof or not. If defendant had performed its bounden duty in that lawsuit, it would have had its own attorneys on hand to keep separate whatever matters in litigation between Stringer and Olmstead there may have been in which it had no concern as surety on the bond now sued on. Moreover, the filing of lien claims by other creditors of Stringer necessitated the employment of a lawyer by plaintiff, since defendant wholly failed to give those matters the attention which under its bond it was obligated to do. It is not shown here that any of the services performed by Olmstead’s attorneys and the other expenses incurred by him were severable from the matters covered by the defendant’s bond nor that it was practicable to segregate those services and expenses so as to charge part thereof to defendant and the remainder to plaintiff, consequently the items as charged by plaintiff and sustained by the trial court’s findings of fact will have to stand. (City of Topeka v. Ritchie, 102 Kan. 384, 170 Pac. 1003; Ireland v. Bank, 103 Kan. 618, 176 Pac. 102 and citations; City of McPherson v. Stucker, 129 Kan. 262, 282 Pac. 703.)
2. Defendant’s next contention is that it was not bound by the judgment, because it was not a party to the action and was not notified of any default on the part of Stringer, the principal on the bond. It appears, however, that plaintiff gave due notice to two of defendant’s agents — the one who transacted the business with plaintiff in furnishing the bond, and that agent’s superior: Indeed one of these competent agents of defendant’s repeatedly assured Olmstead that the surety company would look after the Stringer lawsuit and the lien claims, and actually introduced to Olmstead the attorney who did attend to the case and its incidents, but did it, however, as the employed attorney of Olmstead and not of defendant. Defendant’s agent, Cook, testified:
“Mr. Olmstead came to my office and advised me that W. W. Stringer had filed suit against him. I told him he had better go hire an attorney.
. . . . . . . . . .
“Q. What else was said there? A. I told him that the company would take care of it.
“Q. That the company would take care of him? A. Yes, sir.
. . . . . . . . . .
“Cross-examination: . . . . . . . . . .
“Q. Now, did you have any other conversations with him at other times? A. A number of them.
. . . . . . . . . .
“Q. Do you remember him saying anything about mechanic’s liens filed? A. Yes.
. . . . . . . . . .
“Q. But you knew they were asking for judgment -against him, didn’t you? A. Yes, I knew that.
. . . . . . . . . .
“Q. But you knew at that time when he told you about the suits being filed on the liens wherein they were asking for money judgments that if somebody didn’t defend the case that they would get a personal judgment against Mr. Olmstead? A. I told him he better take care of it himself.
. . . . . . . . . .
“Q. That so far as you know did . . . the bonding company, . . . have any attorney to represent Mr. Olmstead or take care of any obligation under the bond? ... A. No, sir.
. . . . . . . . . .
“I told him he had better take care of these liens himself. I notified Mr. Meek of the liens being filed, but he did not arrange to defend Mr. Olmstead.
. . . . . . . . . .
“Mr. Meek is just a claim man for the Fidelity and Deposit Company, and is in charge of the claim department for the state of Kansas.”
It therefore appears that defendant’s contentions on this point are untenable. It was by its own choice that defendant refrained from participating in the earlier litigation. It had ample notice of it and of its possible consequences to the man to whom it had bound itself to save harmless from all outlay and expense to which he might be subjected on account of the contractual delinquencies of the principal on the bond. Moreover, it is now too late for defendant to urge legal points which might have availed it in the earlier litigation. (Kennedy v. Brown, 21 Kan. 171; Toelle v. National Surety Co., 115 Kan. 425, 223 Pac. 256; 50 C. J. 199.) In Ireland v. Bank, supra, it was said:
“The judgment would have been conclusive evidence [of plaintiff’s damages] if the. plaintiff had notified the defendants of the action, or had requested them to defend therein. (14 R. C. L. 61; 22 Cyc. 106; Note, 22 Am. St. Rep. 205 ; 3 Ency. of Ev. 277.)” (p. 621.)
3. It is finally urged that the trial court erred in refusing to submit certain interrogatories to the jury. The first of these reads:
“1. Do you include in your verdict an amount for attorney fees in the case of W. W. Stringer v. Fred W. Olmstead et al., heretofore tried before a referee in this court?”
Since the jury’s verdict was for the full amount prayed for, it was in effect an affirmative answer to this interrogatory,' and no prejudice can be discerned in the trial court’s refusal to submit it. Three other interrogatories which the trial court refused to submit would have required the jury to state how much of the attorneys’ fees the jury was allowing for their services in that part of the litigation between Stringer v. Olmstead, which pertained to Stringer’s demand against Olmstead, and what portion for the attorneys’ services in prosecuting Olmstead’s cross action against Stringer. Since there was no evidence on which the jury could segregate and itemize these details the trial court did not err in its refusal to submit them.
There is nothing approaching the gravity of material error in this record, and the judgment is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a mortgage. The holder of a tax deed was made a party defendant. The tax deed was set aside, but the holder was given a lien for the taxes paid and for permanent improvements. The land was sold to satisfy this lien. Within eighteen months thereafter the owner of the fee attempted to redeem. The court held the owner was not entitled to redeem, and he appeals.
The facts are, brief. The action was started to foreclose a mortgage given by H. W. Johnson and wife to E. M. Rogers. S. E. Notestine was made a defendant. He answered, setting up his tax deed, alleging that he was in actual possession of the land, and that he had made valuable and lasting improvements on the land of about $350 in value. The court set aside the tax deed, and upon his oral request gave Notestine a first lien for $191.41 for the taxes paid and $160 for the improvements. The land was directed to be sold if the lien of Notestine was not paid within ninety days. The land was sold by the sheriff on September 23, 1929, to Mr. Notestine for ,$413.79.
On February 23, 1931, and within eighteen months of the sheriff’s sale, one Frank Kucera, who had acquired the interest of the John-sons, paid to the clerk of the court $451.04. This was the amount due under the sheriff’s sale. The docket of the clerk shows a redemption. The next day Frank Kucera filed a motion in which he alleged facts about as given here and, in addition, alleged that during the time since the sheriff’s deed Notestine had been in possession of the property and had collected rent thereon, and that he had been unable to get rent from Notestine for the land. He asked judgment against Notestine for $300 for the rent of the land from July 10, 1928, the date of the judgment, to the date of the filing of the motion. On April 27, 1931, Notestine filed a motion setting out the judgment and the sheriff’s sale and asking that the court order the sheriff to convey the land by sheriff’s deed.
When the entire matter came on for hearing Notestine made an oral motion for confirmation of the sale and also moved to strike the motion of Frank Kucera from the files. On the hearing of these motions the record of the ownership of the land was introduced. Also letters of Mr. Notestine, one to Mr. Glenn, counsel for Frank Kucera, and another to the clerk of the court, were admitted. These letters show that Mr. Notestine gave Mr. Kucera credit for the amount he had received as rent from the property.
That is all the evidence that was introduced. The court rendered judgment confirming the sheriff’s sale, directing the sheriff to convey the land to Notestine and denying the interplea of Kucera. The appeal is from that judgment.
The question is, Does the general redemption law, R. S. 60-3439, apply to sales to foreclose a tax lien? The question was decided by this court in Davidson v. Cattle Co., 76 Kan. 462, 92 Pac. 705. There the court held:
“The holder of an invalid tax deed in possession of the real estate brought a suit to quiet his title. The tax deed was held void as a muniment of title, but the lien of the taxes was preserved and the land was ordered sold and was sold to satisfy it. Held, the redemption act (Laws 1893, ch. 109; Gen. Stat. 1901, sees. 4927 et seq.) has no application to such a sale, and neither the defendant owner nor the holder of a mortgage lien has any right to redeem therefrom.”
The opinion in that case contains a very complete discussion of the reasons for the enactment of the redemption law. It would serve no good purpose to recite them here. The reader might well think he was reading of the current depression. An examination of that opinion will convince one that this is not the first time in the history of the state that the landowners of the state have been hard up. It is very convincing, moreover, that the redemption statute was enacted for the benefit of the mortgagor who was about to lose his farm and not for the benefit of. the landowner who had neglected to pay his taxes. In the course of the opinion it was said:
“It is well established, both upon reason and authority, that taxes are not ‘debts’ in the usual sense of the term. The law relating to assessment and taxation makes elaborate provision for the collection of taxes and the protection and enforcement of tax liens. The redemption act does not purport to modify or repeal any portion of this law, and is not inconsistent with any of its provisions.” (p! 465.)
After careful consideration we see no reason to change the rule announced in that case.
Appellant points out that a portion of the amount for which this land was sold was a lien for permanent improvements put on the land by appellee. He argues that on this account the decision in Davidson v. Cattle Co. does not apply, and that he should have been permitted to redeem. This lien arose under the provisions of R. S. 60-1901. This is the statute known as the “occupying claimant statute.” By its terms it refers to a situation such as we have here. It should be construed in connection with the statute that provides for tax liens. When so construed the same reasoning applies to this contention that applied to the contention dealt with in Cattle Company v. Davidson, supra. The appellant urges that the letters of Mr. Notestine to counsel for appellant and to the clerk amount to an agreement to permit a redemption. We do not think so. At the most they indicate that Mr. Notestine, at the time he wrote the letters, was ignorant of his rights.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding in mandamus brought by the Chicago, Rock Island & Pacific Railway Company against the board of county commissioners of Ford county, also the county clerk and county treasurer, to compel compliance with an order of the state tax commission to issue to the plaintiff a refunding warrant in the sum of $476.95 to meet taxes illegally levied upon plaintiff’s property.
Upon pleadings, admissions and stipulations of the parties the case is submitted for decision. There is no controversy as to the material facts, a brief summary of which is that the railroad of the plaintiff passes through Ford county, with a branch line extending from Buckland to Dodge City. It passes through a city of the second class, two cities of the third class, six townships, thirteen school districts, and two rural high-school districts,-in each of which the plaintiff is a taxpayer, and it also pays taxes on each mile of its railroad in tire county for state and county purposes. The entire mileage is located in twenty-four different taxing districts, exclusive of the county.
It appears that six separate banks of the county brought suits against the defendants for certain taxes illegally imposed for the years 1927 and 1928, being levied at the general property rate instead of the intangible tax rate, and judgments were rendered in their favor. The total amount of the illegal taxes against the six banks was $11,446.44, but the proportion received by the county, of the excess levy, was only $1,819, and the claim is that the balance of the plaintiff’s claim should have been charged back to the taxing districts which received the benefits of the illegal tax collected.
To meet the judgments mentioned the county commissioners established what it termed the judgment fund to pay its obligations, as well as those of the taxing districts, and levied therefor a tax of .33 of a mill upon all the property in the county, including that of the plaintiff. The plaintiff paid the tax levied, under protest. Besides the protest the plaintiff applied to the state tax commission for relief, and its application was set down for hearing. That hearing was had with both parties present, and that tribunal found and decided that $476.95 had been unlawfully collected from plaintiff for the refund to the banks, holding that that amount should have been charged to the taxing emits benefitted by the excess tax collected and, further, that the county was only under obligation to refund to the extent of the tax on $1,828.21, and that that could have been raised by a levy of .048 of a mill and, therefore, decided and directed the defendant to issue a refunding warrant for that amount. This not having been done, a writ of mandamus is asked compelling the board of county commissioners to comply with the order of the state tax commission. The board of county commissioners declined to comply with the request, and the plaintiff has resorted to mandamus to compel the issuance to it of the refunding warrant.
The contention of the plaintiff is that the state tax commission is vested with full power to review and decide questions such as the imposition of illegal taxation and the refunding of the same when paid under protest, and that its decision on these matters is conclusive.
The contention that it is absolutely conclusive cannot be sustained. It has been held that—
“The tax commission is an administrative body, and its decisions in all matters within the scope of its supervisory power, involving administrative judgment and discretion, are conclusive upon subordinate taxing officials. In the exercise of its functions, the tax commission must as a matter of necessity interpret the tax laws, and such interpretations are prima jade binding.” (Robinson v. Jones, 119 Kan. 609, 612, 240 Pac. 957.)
Thus we see that the decision of the tax commission is only prima fade binding and does not preclude this court from examining the questions submitted and the rendering of a proper judgment. As we have seen, certain banks were assessed and required to pay an excessive tax, which was paid under protest. They brought several actions against the board of county commissioners, the county clerk and the county treasurer, to recover the same, and judgments were rendered against the defendants which included not only the amount of the excess tax paid to and received by the county but also amounts received and disbursed to the subordinate districts of the county. The case was prosecuted to judgment, and that judgment was not appealed from and has been acquiesced in for years, and it stands as a finality against the county. How shall the money be procured to. pay the judgments? That is provided for in R. S. 19-108, as follows:
“When a judgment shall be rendered against the board of county commissioners of any county, or against any county officer, in an action prosecuted by or against him, in his name of office, where the same should be paid by the county, no execution shall issue upon said judgment, but the same shall be levied and collected by tax, as other county charges, and when so collected shall be paid by the county treasurer to the person to whom the same shall be adjudged, upon the delivery of a proper voucher therefor.”
In this case the board of county commissioners proceeded to meet the judgment in the specific way prescribed by statute by levying a tax upon all the property in the county as is done to meet other county charges. The county could not avoid this duty because it had not received all of the benefit of the excess taxes unlawfully collected. In a case involving the levy of a tax to pay a judgment against the county {Investment Co. v. Wyandotte County, 86 Kan. 708, 121 Pac. 1097) there was a claim that the county was not liable on the claim for which the judgment was rendered, it being insisted that the judgment was void. After discussing the principle involved, it was said:
“It follows from the principle stated that in an application for a mandamus to compel the levy of a tax to pay a judgment against a county, the validity of the judgment cannot be successfully assailed by a showing that it was based upon a groundless claim. The authorities sustain this view -with practical, if not absolute, unanimity.” (p. 709.)
There it was contended that the placing of a claim in judgment was no more than an auditing or allowance of a demand to be measured by the character of the original claim which might be ascertained when the plaintiff seeks payment by mandamus, but the court responded by saying:
“The difficulty with this reasoning is that it denies the conclusive effect of the judgment; it conflicts with the proposition that the judgment decides the law as well as the facts, and determines that the county is liable to the plaintiff.” (p. 710.)
Since no appeal had been taken from the judgment and it had become final before the tax challenged by plaintiff was levied, the plaintiff is not in a position to ask the court in this proceeding to reexamine the judgments and determine that only a fraction of the amount named in the judgment had been received by the county and the balance should have been adjudged to other municipalities. As those judgments stand it must be held they are conclusive, and that plaintiff is therefore not entitled to the issuance of the writ. It may be said that although several of the subordinate taxing districts of the county are liable for refunds, it has not been deemed necessary to sue each of them separately. The board of county commissioners acts in a representative capacity in the taxation scheme. As said in Robinson v. Jones, supra:
“A board of county commissioners acts in a double capacity. It is a part of the taxing machinery and, as such, subject to control by the tax commission. It is also the governing body of the county, responsible for proper conduct of the county’s financial affairs. As such, the board has a special interest in the taxation of all property in the county subject to taxation, in retention of lawful taxes already paid to the county treasurer, and in the prompt collection of lawful taxes due and payable.” (p. 612.)
The fact that distribution among the subordinate municipalities has been made of taxes unlawfully collected by the county does not preclude an aggrieved taxpayer from securing the ordinary remedies to obtain taxes wrongfully collected, and that they can recover it from the party that extorted it has been decided in Hodging v. Shawnee County Comm’rs, 123 Kan. 246, 255 Pac. 46. Whether plaintiff is entitled to an adjustment of the taxes by the county commissioners on the basis of the benefits received by each municipality, and what remedy, if any, may be employed, cannot be determined in this proceeding.
The writ is denied.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to determine the ownership of certain stocks, notes and mortgages, the legal title and possession of which were in Mary D. Oakley, and which were claimed by the plaintiff administrator as a part of her deceased brother’s personal estate.
The facts which gave rise to this action may be stated thus:
In 1911 there resided in Kansas City, Kan., a family consisting of Mrs. Mary Oakley, a widow, and her four grown children, Fred C., Albert 0., Mary D., and Anna, who was an invalid. Fred C. Oakley married and left the family home the same year. Albert married and left home in 1913. These brothers held the title to the family home, and when they left home they conveyed it to their sister, Mary D. Oakley. She was a business woman of economical disposition who regularly earned from $85 to $120 per month from before her father’s death until 1928. With some assistance from her brothers Mary provided the living for her mother, her invalid sister and herself. About 1913 she started a savings account and accumulated $600 in three years:
In 1915 Fred C. Oakley returned to the family home, bringing his wife and two children. Two more children were bom in the family home. Fred was then a wage worker, earning about the same wages as his sister Mary. By agreement he and his sister put their earnings together in their mother’s checking account in a bank. Mary’s savings deposit also was placed there.. Later this account was kept in the name of Fred and their mother. From this account all the family expenses were paid by Fred or the mother. No arrangement was made for Mary D. to check on it, and ghe did not. During the World War, and following it, Fred’s income, salary and bonuses greatly increased until for a time it reached from $8,000 to $9,000 a year. Meantime the family expenses increased to $4,000 or $5,000 a year.
By agreement of Fred and Mary D. they begun to make investments in stocks and mortgages, including those in controversy. Title was usually taken in the names of Fred C. Oakley and Mary D. Oakley as joint tenants or to the survivor of them. Some of them were taken simply in the name of Mary D. Oakley. Some were taken in the name of Fred C. Oakley and by him assigned to his sister, Mary D. Oakley, with dating and signature of witness. One certificate of five shares of stock, typical of several, was made payable to—
“Fred C. Oakley and Mary D. Oakley as joint tenants with right of survivor-ship and not as tenants in common.”
Building and loan investments, of which there were a considerable number and variety, were held in title thus:
“F. C. Oakley or Mary D. Oakley, payable to either or to the survivor.”
Five notes secured by mortgages payable to the order of Fred C. Oakley were assigned by him thus: “Pay to the order of Mary D. Oakley without recourse. F. C. Oakley.” Unimportant variations of these recitals appearing on some of the instruments need not be set down . here.
As these stocks and securities were accumulated they were kept in a safety-deposit box which was rented jointly to Fred C. Oakley and Mary D. Oakley.
About 1916 the entire Oakley family began to plan for eventual removal to Wyoming. The mother, Fred C., Albert O., and even the invalid sister Anna, filed on government lands there. Some members of the family undertook to meet the government requirements of actual residence on those homesteads, while Fred C. and Mary D., the wage earners, kept on with their employment. In time some $25,000 or $30,000 of the family savings were invested in sheep-ranching properties in Wyoming, but that matter is not involved in this lawsuit.
On August 2, 1928, Fred C.' Oakley died as the result of an accident. Thereafter his widow, Minnie T. Oakley, and her children, Mrs. Oakley the mother, Mary D., and Anna built a substantial house on the mother’s homestead in Wyoming under some understanding that they would all continue to live together as a family. Minnie and her children had received about $12,000 in insurance, workmen’s compensation, etc., on account of Fred’s death.
Ten days after Fred’s death Mary D. Oakley made a will in which she devised all her property to the four children of Fred, subject to a small provision for her mother and invalid sister and a devise of some Wyoming land to the children of her surviving brother, Albert. In this will she named executors to manage her estate, in the event of her death, until Fred’s children would be come of age, and directed that the income be used for the education of the devisees.
In 1929 Minnie T. Oakley, widow of Fred, returned with her children to Kansas City and brought some sort of action to recover the stocks and securities involved in this action which were kept in the joint safety-deposit box of Fred and Mary. Later that action was dismissed, an administrator was appointed, and this action was begun against Minnie T. Oakley, Mary D. Oakley and one of Mary’s attorneys; but eventually that attorney and Minnie were dismissed out of it, and the cause proceeded against Mary D. Oakley.
In the administrator’s petition it was alleged that, in his life-time Fred C. Oakley had been the owner and in possession of certain stocks, notes and mortgages described, and that plaintiff was entitled thereto, but that the defendant, Mary D. Oakley, claimed title and interest therein and right of possession thereto, and that she had refused to deliver them to plaintiff.
Mary D. Oakley answered admitting her claim of ownership and the possession of the described property and denied all other allegations.
The cause was tried without a jury. The court found that at the time of the death of Fred C. Oakley, August 1, 1928, he and defendant, Mary D. Oakley, were the owners of personal property described in the judgment, and that—
“The said Fred C. Oakley, at the time of his death, was the owner of an undivided sixty-two/seventy-sevenths (66/77) thereof, and the defendant Mary D. Oakley was the owner of an undivided fifteen/seventy-sevenths (15/77) thereof, the legal title to the same being in Mary D. Oakley. . . .
“That the said personal property should be partitioned and divided between the owners thereof in proportion to their ownership therein, namely: to the plaintiff, as administrator of the estate of Fred C. Oakley, a sixty-two/seventy-sevenths (62/77) thereof, and to Mary D. Oakley, defendant, a fifteen/seventy-sevenths (15/77) thereof, and that the partition and division of the said personal property, as hereinafter contained in this judgment, is a fair and just division thereof between the plaintiff and the defendant, Mary D. Oakley, in proportion to their aforesaid ownership therein.”
The judgment then specified particular items of these stocks and securities to be set apart to the sole and separate use of defendant, Mary D. Oakley, and directed her to transfer, assign and deliver to plaintiff divers and sundry items of property standing in her name. Certain money and other assets in the hands of one Roy K. Stiles which he had collected and which were involved in this controversy were also disposed of by the judgment, but those are not of present concern.
Mary D. Oakley appeals, assigning error on the admission of incompetent testimony, on the insufficiency of plaintiff’s evidence to support the judgment, on the trial court’s failure to give judgment on the admitted facts and uncontradicted evidence, and on the rendition of a judgment outside the issues.
Touching these in order: Stiles, a loan broker who had sold the five mortgages in controversy to Fred C. Oakley and who had taken acknowledgment of Fred’s assignments of them to Mary D. Oakley, was permitted to testify over timely objection as follows:
“Fred told me he wanted this assignment made and the note assigned over in blank, that in case he should be killed it could be filled in and released by Minnie. In case both of them should be killed on the same trip — and he told me about the trips they made back and forth to the ranch — then the sister could fill in her name and likewise collect the money and release the mortgage.
“Q. Now, then, did he say anything about this money being the sister’s, in the event that he and his wife should die, or did he say anything about for whose benefit she should collect it, if he did say anything?
. . . . . . . . . .
“A. That in case he should be taken and Minnie likewise be taken, or Mrs. Fred C. Oakley be taken, that this money could then be handled here for these minor children.”
Stiles testified that Fred C. Oajkley made similar statements every time he acquired a mortgage through Stiles. On cross-examination he testified:
“Q. But- he went over the same rigmarole again, didn’t he? A. Whatever you would call it.”
Counsel for the appellee suggest that this evidence was admissible under the rule that where a person is the owner and in possession of property, declarations made by him against his own interest in it or in derogation of his own title are admissible against another to whom he afterwards transfers his title. This rule is a familiar one, and we have reread the cases cited by appellee in which it has been applied. (Piper v. Piper, 78 Kan. 82, 95 Pac. 1051; Kitchell v. Hodgen, 78 Kan. 551, 555, 97 Pac. 369; Butts v. Butts, 84 Kan. 475, 114 Pac. 1048; Kimball v. Edwards, 91 Kan. 298, 137 Pac. 948.) But this court cannot discern how that rule or the cited cases could justify the testimony of Stiles. In the statements attributed to Fred C. Oakley when acquiring these mortgages and in the course of executing assignments thereto, Fred said nothing against his own interest nor derogatory of his own title. Rather the contrary. Giving full credence to the testimony of Stiles and fair interpretation to what Fred was thus wont to say, it would appear that his statements tended to minimize the legal effect of the assignments he was making; he was declaring that those assignments should not pass title to his assignee, as they purported to do; and that, notwithstanding those assignments, he was still asserting full title in himself and making statements in his own interest and in behalf of his estate. Indeed, such is the significance which appellee contends should now be given to those statements of the deceased as testified to by Stiles. This court holds that Stiles’ testimony touching what Fred C. Oakley said to him was inadmissible to impeach the legal title of the securities standing in the name of Mary D. Oakley and which were assigned to her by Fred C. Oakley, whether such assignments were acknowledged before Stiles in blank or otherwise. The court holds that Stiles’ testimony to the effect that when he took Fred’s acknowledgment of the assignments the name of the assignee, Mary D. Oakley, did not appear, was not incompetent, although the fair inference deducible from that testimony was that either his veracity as a witness or his sense of official responsibility as a notary public was decidedly below par. His testimony in chief was destroyed on cross-examination, so far as it related to one of the five notes about which Stiles testified (the Pearson note and mortgage) ; and it was likewise discredited by a photostatic copy of 'the assignment itself which appears in the record in the indisputable handwriting of Fred C. Oakley. Indeed the trial court must have utterly discredited Stiles’ testimony, since its judgment was not based on that testimony in any degree.
Passing next to the testimony of Minnie T. Oakley, the widow of Fred, given in behalf of the plaintiff administrator. She testified over timely and repeated objections that she had heard a conversation between her husband and defendant touching the stocks involved herein:
“Q. Did you ever here Fred in any conversation with Mary with reference to these stocks, about how they should be placed, in whose name they should be placed, and why? You and Fred and Mary together, or Fred and Mary? ... A. Fred said he was going to put them in Mary’s name because she was a single woman and could handle affairs where I could not, being a married woman and having the children.
[Counsel for Defendant] : “He told you that?
. . . . . . . . . .
“The Witness: To me and to Mary and the family. His mother and his sister.
. . . . . . . . . .
“Q. What, if anything, did he [Fred] say about the writing of these names in the stocks, on the face of the certificates?
. . . . . . . . . .
“A. He asked a man by the name of Roy Olney how those thing should be handled. Roy Olney said the only way they could be handled was for him to sign his — these notes to Mary D. Oakley or the survivor of either, and that they could be handled properly that way.”
When the testimony just quoted' was given, Minnie T. Oakley was herself a defendant in this action. At this stage of the trial, however, it seemed good strategy to counsel for the administrator to have her dismissed as a party to the action. She was then recalled to the witness stand, and the following colloquy and testimony ensued:
[Counsel for Defendant] : “Just a moment. We object to this. I assume it is going to be testimony in favor of the administrator and not in favor of the defendant?
. . . . . . . . . .
“The Court: I wish counsel would state in the record here what they expect this testimony to show.
[Counsel for Plaintiff] : “Yes; I will. This witness, if she be permitted to testify, will testify in substance that she and her husband had frequent talks about these stocks — not the mortgages, now, because they didn’t have any talks about the mortgages, is my recollection of what she will say. But that she talked with him about these various stocks, stocks that he had acquired and that had been sold and stocks that were in his possession prior to the time of his death, and are now in litigation. And that he told her that inasmuch as she had not had any business experience and that Mary had, that he was going to take these stocks in the name of himself and Mary or the survivor of either, so that Mary could attend to them out of the fullness of her business experience — that is the substance of what she will say— for the benefit of these children. He wanted the children to have the benefit of these investments that he had made. And that is, in substance, what she will testify to. And she will further testify that he said that on numerous occasions, whenever he bought a new stock or whenever the subject of the conversation was brought up between them.
[Counsel for Defendant] : “The same objection that we just made, we renew to this offer.
“The Court: Well, now, under the rulings and construction as laid down by the supreme court there, it seems to me that the testimony should be admitted, especially under this statement here that the testimony will be in effect that the stocks and securities were acquired for the benefit of the children.
[Counsel for Plaintiff] : “They were not acquired for the benefit of the children, but he wanted them ultimately to get them.
“The Court : Well, let it go in.
[Counsel for Plaintiff] : “. . . He wanted it for the children, but he didn’t buy them for the benefit of the children, but if anything happened he wanted the children to have them.
[Counsel for Defendant] : “And not his wife?
[Counsel for Plaintiff] : “Yes; not his wife. He wanted the children to have them and not the wife, because he had provided for her, we claim, with something else.
“The Court: Overruled.
“Q. Now, in these stocks, as originally issued, I note that they are Fred C. Oakley or Mary D. Oakley or the survivor of either. Did you have any conversation with Fred C. Oakley about that particular thing? A. We did. I asked Fred why those things were arranged that way, and I was not satisfied, and he said it was because he wanted them to be handled by Mary because she was a business woman and he said he wanted them for the children in case anything happened to him. ...
“From my conversation with Fred I understood that these stocks and securities were placed in the joint name of Fred and Mary so that when Fred died they would go exclusively to the children.
. . . . . . . . . .
“I asked him how it was he was making arrangements to have Mary’s name on these bonds. All of these conversations from June, 1927, or 1928, up to the last one before his death were all just about the same. I told him I was not satisfied. I told him I was not satisfied with the arrangements that these stocks were to go to him and Mary or the survivor. . . .
“I didn’t like it, and told him I didn’t like it because this property was arranged so it was going to Mary when he died, and I wanted him to change it and talked to him on the average of about once a week, asked him to change it. At each of these times when I would ask him he would tell me it was better the way it was, and he didn’t want to change it.
. . . . . . . . . .
“I felt like this thing of turning the property all over to Mary was wrong, and I told him so all the time.”
Defendant contends that all the foregoing testimony was incompetent on one ground or another. But laying aside the objections to its competency, what did it tend to prove? For one thing, it certainly did not prove that the stocks in controversy were part of the estate of Fred C. Oakley. This testimony, so far as pertinent, tended to prove that the stocks were not a part of Fred’s estate. It tended to prove exactly what defendant claimed the facts to be, and to prove the authenticity of the title under which Mary D. Oakley held them — that they were issued to Mary D. Oakley, and in some instances to Fred C. Oakley or Mary D. Oakley, payable to either or to the survivor, and again to Fred C. Oakley and Mary D. Oakley as joint tenants with right of survivorship and not as tenants in common. We need not elaborate on the elementary rule of Kansas law that, except as to exempt personal property, a married man may dispose of his personal property as he sees fit, no matter how greatly his wife may be dissatisfied with such a course and no matter whether his spouse assents thereto or not. (Osborn v. Osborn, 102 Kan. 890, 172 Pac. 23, syl. ¶ 3.)
Furthermore, and assuming the truth of Minnie’s testimony, it becomes apparent that the administrator of Fred’s estate does not have the shadow of a valid claim to the stocks and securities in controversy. His duty and concern are- to get together and administer the personal estate of the deceased. By this testimony of the widow, the deceased husband had made an effective and complete disposition of his interest in those stocks in his lifetime — although “she did not like it”; and “was not satisfied”; and although she “felt it was wrong.” She testified that she was unable to pursuade her husband to refrain from disposing of his personal property in the way he was doing — -in the way “Roy Olney” had advised him.
Counsel for the administrator argue that the evidence shows that the property in controversy should be impressed with a trust by implication of law in favor of Fred’s widow and children. But the widow’s own testimony, which is the only substantial evidence in the record on the point relating to.a trust, was that Fred’s concern was in behalf of the children, and that his prudent, economical sister Mary was the one he wanted to handle this “trust,” not the widow, whom he did not regard as a business woman. Indeed, that point of view was gravely pressed on the trial court’s attention by counsel for the administrator. The record reads:
[Counsel fob Plaintiff] : “He [the deceased] wanted it for the children.
[Counsel for Defendant] : “And not his wife?”
[Counsel fob Plaintiff] : “Yes, and not his wife; he wanted the children to have them, and not his wife, because he had provided for her, we claim, with something else.”
If we adopt this theory of a trust in these stocks and bonds in Mary’s hands as created by her brother for the benefit of his children only, and not for his wife, then it becomes as plain as the noon day sun that the administrator has no claim to the stocks and bonds; he is charged with no duty as administrator concerning that trust, neither .to enforce it nor to terminate it and take over the trust property for the benefit of the Fred C. Oakley estate.
Defendant also complains of the admission in evidence of the deposition of one Garst, an attorney of Wyoming. He deposed that he was attorney for Minnie T. Oakley, and that the defendant and her surviving brother came to his office on his invitation, in an effort to compose differences between his client and defendant; and that while there she, Mary D. Oakley —
“Took a rather belligerent attitude toward me and told me that the stocks and bonds had been placed in her hands for her keeping by her brother, Fred, for the benefit of his wife, who I understood to be Mrs. Minnie Oakley, and for the benefit of their
. . . . . . . . . .
“. . . During the conversation she disclaimed any financial interest in these securities except the one mortgage.”
The testimony of this deponent was considerably shaken on cross-examination, and was altogether at variance with the testimony of Albert O. Oakley, defendant’s brother, who was present when the alleged conversation was had. It was contradicted by the testimony of Mary D. Oakley at the trial; and it was at variance with the theory of plaintiff’s counsel who, in the stress of the trial, declared that the securities were not for the wife, but for the children, because the wife had been otherwise provided for.' As this testimony was given by deposition this court has its own responsibility to determine its credence, and we are of united opinion that it was of no probative value in this lawsuit. It is also apparent that no credence was accorded to it by the trial court, in view of the judgment which it rendered in this cause; and to that matter we now turn.
The trial court found that at the time of his death Fred C. Oakley was the owner of an undivided 62/77 of the stocks and mortgages in controversy and that Mary D. Oakley was the owner of an undivided 15/77 of them. The court apportioned the securities between the administrator and Mary D. Oakley on that basis.
It is defendant’s contention that there was no foundation in the issues or the evidence for such an apportionment or such a judgment. The principal features of the evidence under which the administrator sought to establish his claim to the property have been considered above. However, the trial court laid plaintiff’s evidence completely to one side, and apparently on some computation based on the relative sums of money Fred C. Oakley and his sister Mary D. Oakley contributed over a period of twelve or thirteen years to their common fund out of which these stocks and mortgages were purchased, the court determined that their respective contributions had been in the proportion of 62 and 15, and gave judgment accordingly.
The record does not show what was the value of the property in controversy, but in the brief of appellee it is said to have had a face value of $.17,033 at the time of the trial. By appellee’s brief we are also advised that during the long period when Fred and Mary were pooling their earnings in a common fund Fred’s earnings were $73,662.50 and Mary’s were $14,485. To this contribution of Mary’s should be added the nest egg of $600 she had accumulated before Fred had acquired the habit of saving, and there should also be added thereto the sum of $2,900 which she turned into the common fund from the sale of her house which had served the purpose of a home for Fred and his family for a dozen years. There is nothing in the record upon which to make a computation of the relative expense of Fred’s family of six persons as compared to Mary’s individual living expense, other than that Fred kept two automobiles and was liberal towards his family, while Mary was rigidly economical. It would be fair, we presume, to charge the living expenses of the mother and invalid sister to Fred and Mary equally.
A diligent and protracted study of this record constrains this court to hold that the evidence was altogether insufficient to justify a pro rata division of the property, even if an equitable division of the property had been within the issues.
This court does not overlook the point that issues may be informally enlarged by tacit consent of the litigants and by the range of the unchallenged evidence. And on this point, in the brief of appellee, it is said:
“Assuming for the sake of argument . . . that the court received improper evidence in this case, in receiving the testimony of Stiles, Minnie T. Oakley and Garst, about which he complains . . . nevertheless its reception, if erroneous, was harmless, because there was ample competent testimony upon which to base the judgment; in fact, the judgment could have been based upon the testimony of the appellant herself, and his [its] findings are supported by ample, competent testimony, aside from any testimony of the witnesses whose evidence counsel complains about. Mary D. Oakley supplied all the evidence that was necessary to support the judgment.”
Mary’s testimony, upon which this theory of a partnership is argued, reads:
"Cross-examination.
“Q. What is it you claim about this? Do you claim these mortgages and stocks are yours? A. Yes, with the agreement we had.
“Q. How did you get them? A. With the agreement Fred and I had.
“Q. What was the agreement? A. That we would buy them jointly and if I should die he should get them and if he should die I should get them, with the right of survivorship. . . . We discussed and bought every one of the mortgages together. He gave the mortgages to me and the stocks were put in our name jointly. I am not claiming that I had enough money over and above my earnings to buy such a quantity of stocks and mortgages as these, but I claim I had an agreemient and that Fred was to give these things to me, and that agreement was right at the time we got them. Fred collected what interest was paid to Stiles up to the time he died. The interest that was collected off of these mortgages and other securities was put in the joint bank account, and it was not necessarily invested in other securities.”
Elsewhere Mary testified:
“Q. You may state what those arrangements were, or state your conversations back and forth. A. We pooled our interests.
“Q. . . . Did you have any understanding or agreement about what you would do with your — with the interests you pooled, and was there anything said on the subject? A. We did.
“Q. What was said? I want the conversations between you and Fred Oakley. A. Well, he would take our joint moneys and invest it, bank it in my mother’s account, and that he could draw on it, and we would be partners in the transactions that were going on after that.”
We cannot interpret this testimony to mean that the brother and sister were engaged in such a business adventure as the law characterizes as a partnership. She was merely using the common language of a layman to express the fact that she and her brother, pursuant to this agreement, were collaborating in the accumulation of securities which should belong to them jointly with right of survivorship. Such an agreement is valid under our law. (Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647.)
To summarize and conclude, this court holds that the evidence was insufficient to overthrow Mary D. Oakley’s legal title to the stocks and mortgages in controversy and' insufficient to support the judgment awarding the administrator any share thereof.
The judgment is reversed, and the cause remanded with instructions to render judgment for defendant.
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The opinion of the court was delivered by
Harvey, J.;
This is an action against a failed bank and its receiver to establish a claim for money alleged to have been loaned by plaintiff to the bank. The jury answered special questions and returned a verdict for plaintiff, and defendant has appealed.
The State Bank of Keats, with a capital of $10,000, appears from the evidence to have been managed almost entirely by Grace E. Wood, whose title was assistant cashier. Her husband had the title of cashier, but he was the postmaster and devoted most of his time to his position, the post office being conducted in the same building with the bank. Plaintiff carried an account at the bank. About March 3, 1927, he had received a check for $900, which he took to the bank with the intention of depositing it. He testified Mrs. Wood “asked me what I was going to do with it, and I told her I didn’t know what I would do with it right away, and she said the bank would like to borrow it and that they would pay me seven per cent interest on it, and she said I will give you a cashier’s receipt and you can get your money any time that you want it.” After some further conversation he accepted the proposition, indorsed the check and gave it to her, and she wrote out and handed him the following:
“THE STATE BANK OP KEATS
Keats, Riley County, Kansas, Mar. 3, 1927.
Received of J. W. Wkitacre
Nine hundred and no-100..........................................Dollars
Por note — at 7%
$900.00 Grace E. Wood.”
Under substantially the same agreement each time, plaintiff let defendant have $600 October 29, 1928, $4,500 February 27, 1930, and $2,500 July 5, 1930. For these items the plaintiff gave checks, signed by him but written by Mrs. Wood, on his account in the bank, and instead of naming a payee used the term “to be loaned,” or “for loaning,” in the space where the payee’s name ordinarily is written. The receipt for the $600 said nothing about a note nor the rate of interest, and was signed “Grace E. Wood, A. Cashier.” The other receipts had no official designation after her name. The one for $4,500 contained the statement “To be loaned at 1%,” and the one for $2,500, dated July 5, stated nothing about loaning, but contained this: “Int. from April 1, 1930.” There was evidence tending to show, and the jury specifically found in answer to special questions, that the money was used by the bank in its general banking business. After the bank had failed plaintiff learned in some way that Grace E. Wood was contending that she personally had borrowed the money from plaintiff. On the advice of his attorney he went to her and asked about it. She was then making up a list from a bunch of notes. He testified:
“She said they had a bunch of notes there and she didn’t know who they belonged to. ... I told her that my money was not in that bunch of notes. . . . She said, ‘I don’t know if it is in those particular notes or not.’ ”
Finally notes were tendered plaintiff as notes in which Grace E. Wood had invested his money. The notes had been made payable to the bank, two of them for overdrafts the makers owed the bank, and the others were renewals of notes which the makers owed the bank. Plaintiff declined to accept them and brought this action.
The real controversy in the case is whether plaintiff dealt with Grace E. Wood individually by letting her have his money to loan for him, or whether he dealt with the bank, loaning his money to the bank. Such conflict as there was in the evidence on that point was resolved in favor of the plaintiff by the jury and is amply supported. We have no reason to disturb it. Each six months until October, 1930, plaintiff was credited on his amount at the bank with interest on these several sums at the rate of seven per cent per annum.
It is argued by appellant that the contract, if made, was illegal, hence not binding on the bank. If the bank got the money on the agreement, as testified to by plaintiff, and used it, it is not in position to plead ultra vires. Appellant next argues that the receipts and checks show written contracts. The evidence showed they were written by Mrs. Wood. It is clear that they are ambiguous and do not purport to embody complete terms of contracts. In such a case the true contracts could be shown by parol evidence. There was evidence on behalf of defendant that when Mrs. Wood received the checks from plaintiff she placed them to the credit of what was called a “collection account” in the bank, and her testimony was to the effect that this was a personal account of hers and was the money of plaintiff and others she was handling personally. There is considerable evidence, however, to the effect that the account was one of those miscellaneous accounts sometimes kept in banks for such purposes as the bank’s officials see fit to keep them, and various transactions were handled through it. Aside from that there is no evidence tending to show that plaintiff knew how the books of the bank were kept, and we are unable to see how he was greatly concerned with that question. The rights of the parties depended upon their agreement, not on how the books of the bank were kept without plaintiff’s knowledge. At the trial there was some evidence with respect to an overdraft in this collection account, and perhaps in some other accounts at certain times. On the hearing of the motion for a new trial it was shown that at some time during the trial one of the jurors asked the court whether an overdraft was shown on a bank statement as an asset or a liability. Defendant objected to the question being answered by the court, and it was not answered. At a noon recess one of the jurors went to a bank at the county seat where the trial was being held and there saw a blotter on which was printed a statement of assets and liabilities of the bank. This statement showed an overdraft was listed as an asset. This blotter was taken to the jury room and the attention of some of the jurors was called to it. It is now argued that this was misconduct on the part of the jury. It was misconduct, for jurors should never hunt up evidence on their own account, nor receive evidence not admitted by the trial court. We are unable to see, however, that the misconduct was of such a character as to require or to justify the granting of a new trial. The only controverted question of importance in the case was whether plaintiff loaned his money to the bank or to Mrs. Wood, personally. Whether a bank in making up a statement listed an overdraft as an asset or a liability had little, if any, bearing on that question.
Finally, it is argued that recovery on the first item was barred by the statute of limitations. The evidence does not show the loan was made for a definite time, and interest was paid on it regularly until about the time the bank closed; hence, there is no merit in this contention.
We find no material error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action for damages for the breach of an alleged parol agreement. There was a jury trial, verdict and judgment for plaintiff for $2,100, and defendant has appealed.
The record discloses that on August 13, 1928, while plaintiff was employed by defendant, and both operating under the workmen’s compensation act, plaintiff received an injury by an accident arising out of and in the course of his employment, in which a heavy trip spear fell and struck plaintiff on his right leg between the knee and ankle, fracturing a bone and injuring the muscles, tendons, nerves, tissues and flesh. The injury was one to the foot, as that term is defined by our workmen’s compensation act, R. S. 1931 Supp. 44-510 (3) [c] (13), (16) and (19). Defendant recognized its liability under the workmen’s compensation act and began paying compensation at the rate of $18 per week, the maximum provided by statute [(19) supra], and continued such payments until July 5, 1929, at which time it ceased making payments in order that there might be a hearing to determine its further liability. Soon thereafter plaintiff filed his claim for compensation with the compensation commissioner. There was a hearing in September, 1929, at which time the compensation commissioner found plaintiff had sustained an injury to the foot compensable under the workmen’s compensation act, and allowed compensation for 24 weeks in addition to what had been paid, the amount then accrued to be paid in a lump sum and the remainder at $18 per week. Neither party appealed from this award. The defendant made the payments as directed in the award, and with its check for the last payment sent a final receipt to be signed by the workman. He accepted the check for the payment but declined to sign the receipt, and thereafter brought this action April 23, 1931. The total paid plaintiff by defendant was $2,182.25, plus hospital and doctor bills; the maximum which could have been allowed by the compensation commissioner for the loss of the foot was $2,250.
In the petition there were allegations outlining the matters above stated, and it was alleged that before final payment of the award defendant orally agreed with plaintiff, if he would forbear the prosecution of his claim for additional compensation and the making of an application for a review or modification of the award, which would necessitate expense to defendant, that defendant in consideration of such forbearance would continue paying the plaintiff the sum of $18 per week as long as plaintiff’s disability and inability to work continued, and that this agreement had been breached to plaintiff’s damage in the sum of $2,808.
Defendant’s demurrer to this petition was overruled and defendant answered. A trial followed, with the result as above stated.
Appellant argues that the petition did not state, and plaintiff’s evidence in support of it did not establish, a cause of action. It is well settled that the workmen’s compensation act establishes a procedure of its own (Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233; Murphy v. Continental Casualty Co., 134 Kan. 455, 7 P. 2d 84; Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396), and that it furnishes the exclusive remedy for a workman and the exclusive liability of his employer for injuries com pensable under the act. (See Echord v. Rush, 122 Kan. 260, 251 Pac. 1112; 124 Kan. 521, 261 Pac. 820; Leebolt v. Leeper, 128 Kan. 61, 275 Pac. 1087, and cases cited therein.)
It is further definitely determined that the award of the compensation commissioner, if not appealed from, is an adjudication of the rights and liabilities of the parties, and is open to review and modification or to be set aside only in the manner provided by the compensation act. (Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853; Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595.) It is true, as argued on behalf of plaintiff, that under the compensation act the parties might agree on the amount of compensation and the manner in which it should be paid without submitting the matter to the compensation commissioner, and such agreement if filed with and approved by the compensation commissioner would be binding, in the absence of fraud or other reason which would justify setting it aside. (Walker v. Kansas Gasoline Co., 130 Kan. 576, 287 Pac. 235; Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540.) The statute further provides, “Any award of compensation may be modified by subsequent written agreement of the parties . . .” (R. S. 1931 Supp. 44-526.) In other words, when an award has once been made by the compensation commissioner and has become final, either because it was not Appealed from, or was appealed from and affirmed, it is a binding adjudication upon the rights and liabilities of the parties which they may modify only by a subsequent written agreement. There is no contention that there was a subsequent written agreement in this case; hence the plaintiff’s case necessarily fails.
Other questions are argued in the briefs, but in the view we have taken of the question determined it is not necessary to consider them.
The judgment of the court below is -reversed with directions to enter judgment for defendant. | [
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The' opinion of the court was delivered by
Smith, J.:
This is an appeal from an order of the district court refusing to set aside an order of the probate court approving the final accounting of an executor.
Mary Jane Eadie died testate at Council Grove on July, 27, 1924. She left surviving her Martha G. Cotton, a daughter, Martha Lucille Wallace Orvis, a granddaughter, and Lawrence G. Wallace, a grandson. In January, 1929, Martha Lucille Wallace Orvis died, leaving two children, Dorothea Wallace Orvis and Frank Algernon Orvis.
Mary Jane Eadie made her home with her daughter and family, Mrs. Cotton, and Mr. Cotton, for eight or ten years before her death. Her will was admitted to probate September 4,1924. George Cotton was appointed executor. The will directed that the executor, not later than three years after the death of Mrs. Eadie, sell all prop erty, real and personal, and pay the debts of the estate. Section four of the will is as follows:
“One-half to my daughter, Martha G. Cotton, and the other half to be divided as follows:
“Three hundred dollars ($300) to be first given to my granddaughter, Martha Lucille Wallace, and after deducting said $300 therefrom the balance to be equally divided between my granddaughter, Martha Lucille Wallace, and my grandson, Lawrence G. Wallace.”
During her lifetime Mrs. Eadie had owned eighty acres of land in Clay county, Iowa, eighty acres in Tama county, Iowa, and 160 acres in Ford county, Kansas. In 1920 Mrs. Eadie sold the Clay county land for $5,000. During the proceedings in probate court appellants questioned the disposition that was made of the proceeds of that sale. It appears, however, that none of it ever reached the hands of the executor, and appellants in their brief state that this money appears to have been used by the'family in the four years during which she lived after the sale — hence the disposition of it cannot be considered in this appeal.
The inventory filed by the executors showed but one item, the 160 acres in Kansas.
On June 3,1918, Mrs. Eadie executed a conveyance óf the eighty acres in Tama county to Martha G. Cotton. The deed set out the consideration as one dollar and other good and valuable consideration, and also contained the following provision:
“It is understood and agreed by and between the parties hereto that a part of the consideration for this conveyance is the care and maintenance which the said party of the first part has received from the said party of the second part, which the said party of the first part hereby acknowledges that she has received from the said party of the second part.
“And it is further understood and agreed by and between the said parties hereto that as a further consideration for this conveyance from the party of the first part,'the said party of the second part hereby agrees and promises to care for and maintain the said party of the first part so long as the said party of the first part shall live.
“And it is further understood and agreed that the title to the within described premises shall remain in the said party of the first'.'part so long as she shall live, and shall not become vested in the said party of the second part until the death of said party of the first part.
. . . . . . . . . .
“To have and to hold the above granted premises unto the said party of the second part, her heirs and assigns forever, from and at the death of the party of the first part.”
The deed then contained the warranties of title that are usually found in a warranty deed. In these proceedings appellants claim that this was not a warranty deed, but was testamentary in character, and that since Mrs. Cotton did not cause it to be admitted to probate it is of no effect and conveyed no interest whatever in the land. The argument is that on that account the executor should have sold this land and distributed the proceeds.
Appellants argue the purported deed to the Tama county land was not a deed, but an attempt to convey property by will without complying with the formality of making a will. A decision on that point would involve an adjudication of the title to real estate. The proceeding under review is an order of a probate court approving a final report of an executor. Probate courts do not have jurisdiction to hear and determine actions involving title to real estate. (See R. S. 20-1101.) Hence the matter of the purported conveyance of the Tama county land was not properly before the trial court and may not be determined in this appeal.
George Cotton was appointed executor on September 4, 1924. On June 27, 1927, he filed a statement and asked for a final settlement and discharge. Notice was published, and on July 27, 1927, the. probate court approved the executor’s report and discharged him. On August 20, 1927, appellants, who lived in California, filed an application in which they asked the probate court to set aside the order of final discharge, and that the executor be required to make an accounting of the estate. This application alleged that no proof of the debts paid had been required by the executor; set out the facts with relation to the Clay county. eighty acres and alleged that the proceeds of this sale had been kept out of the estate by the connivance and collusion of Mr. and Mrs. Cotton; alleged that Mrs. Eadie was the owner of the Tama county eighty acres; and that Mr. and Mrs. Cotton had made no accounting of the rents and profits of this real estate and that the executor had concealed the condition of the estate from appellants with the intention of defrauding appellants of their proportionate share of the estate. This application was denied. At the hearing on this application evidence showing the final payment was heard, together with the objections of appellants. The court found that the estate had been fully administered and that there was not in the hands of the executor any property of Mrs. Eadie. Appellants appealed to the district court. The appeal was in form only an appeal from the order denying the application to set aside the final settlement. Appel lants argue that it was in effect an appeal from the order of final discharge. The district court found it was an appeal from the order refusing to set aside the final discharge. But this question makes but little difference as the district court heard evidence as to the entire matter of the estate.
The statute which appellants rely on is R. S. 22-915. It is as follows:
“When the account is settled in the absence of any person adversely interested and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within six months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, excepting that any matter of dispute, between two parties which had been previously heard and determined by the court shall not be again brought in question by the same parties, without leave of the court.”
The motion of appellants contained the following allegation:
“Your applicants further state that no proof of any of said debts against said estate has been filed, proved or allowed, as provided for by law and that the said executor is not entitled to credit upon his statement, as set forth therein.”
The application did not state nor did the proof show that any debts were paid by the executor that should not have been-paid. The executor met the above motion with what amounted to a general denial. The probate court found the issues generally in favor of the executor and refused to set aside the order of final discharge. This finding was made after a hearing at which evidence on both sides was taken and all parties were given' an opportunity to be heard.
When the district court heard.the appeal complete hearing was had. The findings of the court amount to a finding on conflicting evidence that the appellants did not establish the facts necessary to be established in order to conform to the provisions of R. S. 22-915.
We have therefore concluded that the judgment of the trial court should be and it is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case. On the hearing of a petition for review and modification of an award the commissioner and trial court refused to modify it, and claimant has appealed.
While claimant was employed by respondent and both operating under the compensation act he sustained an accidental injury consisting of the fracture of both bones of the right leg immediately above the ankle. He presented a claim for compensation, and after a hearing the commissioner found that his injury resulted in a sixty-per-cent loss of the use of a foot and awarded compensation accordingly. Neither party appealed from that award. Respondent made the payments as the award provided. Before the last payment was made the petition to review and modify was filed. On the hearing of that petition the same physicians who had examined claimant and testified at the former hearing again examined him and gave their testimony. In substance it was that there had been no material change since the former hearing with respect to the loss by claimant of the use of his foot. The commissioner and the trial court could do nothing under this evidence but refuse to modify the award previously made.
This did develop from the evidence: When the fractured bones healed one of them was not quite straight, but set at a slight angle. The result was that when claimant walked one side of his foot struck the floor or the pavement a little before the other side. At one time claimant tried to remedy this by putting an extra thickness of leather on one side of the sole of his shoe, but this seemed not to help and he quit it. He walks with a slight limp, which throws his body somewhat out of alignment and makes an unnatural use or strain upon the muscles of the leg and back. Upon this slender thread claimant presents this appeal and contends compensation should have been awarded for permanent partial disability instead of for the partial loss of the use of the foot. The petition is untenable for at least three reasons: (1) The findings and award made by the compensation commissioner at the first hearing, that the injury sustained by claimant was a partial loss of the use of the foot — -a scheduled injury, and hence not a permanent partial disability — unappealed from, was a final adjudication oil those questions and not open to review on a petition to modify. (Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540.) (2) The commissioner and the trial court found against claimant on the questions of fact now presented, and their findings are supported by substantial, competent evidence. This court reviews questions of law only, as distinct from questions of fact, hence the record presents no question of law for our review. (Orendoc v. Kaw Steel Construction Co., 131 Kan. 366, 291 Pac. 952.) (3) Fundamentally, almost any scheduled injury under our workmen’s compensation law produces some — perhaps slight, although it may be substantial — unnatural result upon normal bodily functions. If it were to be held that all such results constituted general partial disability under the statute there would be little or no purpose in having scheduled injuries. As to this the case is ruled by the holding of the court in Gallivan v. Swift & Co., 136 Kan. 234, 14 P. 2d 665, and allied cases.
There is no merit in the appeal, and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This case involves the right to a homestead in a farm home on which an execution was levied for the enforcement of a judgment rendered against the claimant. The claim of homestead right was sustained, and plaintiff appeals.
A judgment against A. B. Neely was rendered in favor of James G. Hammond, as receiver, on March 21, 1931. An execution was issued on March 31,1931, which was levied on the farm on April 29, 1931. Upon due advertisement by the sheriff, the land was sold on June 2, 1931. Before the sale Neely notified the sheriff that he claimed the land as his homestead and later filed a motion in court objecting to a confirmation of the sale on the ground that the land was the homestead-of Neely and his family.
On a hearing the lower court found that the land was a homestead, and set aside the sale made by the sheriff. Evidence was offered tending to show that the land was formerly owned by. Thomas Neely, the father of defendant, and that in 1898 Thomas Neely died seized of the land, and that by will he had given the land to his two sons, one of whom was the defendant, subject to a life estate in his wife, the mother of the sons. When the will was made she signed the will with a written election to take under its terms, and subsequently, when the will was probated, she filed a written election to take under the will and renounce her rights under the law. Immediately thereafter the defendant commenced to improve the land so devised, built a home, and also improved it by building barns and granaries, windmills and other like improvements, and his mother living with him knew that he was making these improvements and claiming to own the fee title, subject to her life estate. Subsequently he acquired his brother’s interest in the farm.
Prior to 1919 the mother purchased a home in Minneapolis, which is about six miles from the farm home, furnished it and. lived there until her death in November, 1930. The defendant had lived with his mother on the farm prior to her removal to Minneapolis, was a single man, and cared for his aged mother. Later he was married and two children were born to him, and they attended school in Minneapolis because of the better facilities there. The defendant’s family continued to live in the mother’s house until the close of the school year, but managed and worked the farm in the meantime. Two or three times during the week his wife would go out on the farm and assist with the work, and after school closed in the spring and until the vacation ended the family lived on the farm.
There was testimony, too, that the defendant had exercised the rights of a citizen in Minneapolis, the assessors had assessed his personal property there, and noted him to be a resident of the city, but it also appears that he voted in the township where the farm was located in August, 1930, at a primary, and also voted there at the general election the same year. It appears that the defendant took his family to the farm about June 1, 1931, which the court held was as soon as reasonable after the death of the mother, and that he had ever since resided on the farm with his family. That after the death of the mother the defendant had established himself on the farm as his home, and that within a reasonable time he had completed actual occupancy which impressed it with the homestead character from the beginning, and that the farm was his homestead before the judgment was rendered or the levy of the execution made.
It has been determined that one holding an interest inland subject to a life estate cannot support a homestead exemption on his estate in remainder during the life of the life tenant. (Caple v. Warburton, 125 Kan. 290, 264 Pac. 47.) Defendant, although he made vast im provements and treated the place as his own, did not acquire such an interest as will carry the homestead privilege. He had, of course, the time from the death of his mother, November 26, 1930, to the time judgment was rendered, on March 20, 1931, to declare his purpose in such a way as to make it his homestead. It has been determined that defendant had the intention at all times to establish his home on the farm on the death of his mother. At the primary election in 1930, as we have seen, he voted at the farm polls in Garfield township, and at the general election the same year he voted at the polls near the farm. There was the sending of the children to school in Minneapolis, because of superior facilities over the country school in Garfield township, and some other steps were taken in local matters which were similar to thipgs done by residents of the city, but the trial court found, on the whole, that the farm was defendant’s homestead when the judgment was rendered and the levy made thereunder on the farm. While occupancy of the estate by the family is essential to a homestead, it is not necessary that all members of the family should be residing there at the time that the owner determines to claim it as his homestead. In the early case of Edwards v. Fry, 9 Kan. 417, where the subject was under consideration, it was said:
“We know that the purchase of a homestead, and the removal onto it, cannot be made momentarily cotemporaneous. It takes time for a party in possession to move out, and then more time for the- purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now, the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio a homestead inviolability.” (p. 425.)
In a later case, where the subject was under consideration, it was said:
“A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.” (Monroe v. May, Weil & Co., 9 Kan. 466, syl. ¶ 3.)
In Bush v. Adams, 72 Kan. 556, 557, 84 Pac. 122, it was held that the property was not exempt as a homestead from sale on an execution, but in deciding the case the court remarked that—
“In order that property may be exempt on the ground of its homestead character it must be ‘occupied as a residence by the family of the owner.’ (Const. art. 15, sec. 9; Gen. Stat. 1901, sec. 3016.) In Kansas, and in other states having similar constitutional and statutory provisions, it is held that such occupancy need not always be actual or physical. The courts deal liberally with claims of homestead exemption asserted in good faith, but cannot extend the right beyond the language of the law defining it.” (See, also, Angola State Bank v. Fry, 130 Kan. 641, 287 Pac. 245, and cases cited therein.)
When defendant’s mother died the title to the farm was clearly in him, and if he then had a well-defined intention to occupy it as a homestead, and by overt acts manifested that to be his purpose before the judgment was rendered, his homestead right cannot well be questioned. He was on the farm as his home at the time of his mother’s death, and his right thus acquired ripened at once into a homestead by his well-defined purpose and his overt acts indicating it. When his mother went to Minneapolis to live, defendant went with her — that is, he “Came in in the evening and stayed with her. My wife stayed with her in the daytime. Her health was very poor, and she requested that we do that, and I was the only one that was left in the family and I felt that it was my duty to do that. . . The going back and forth to the farm was quite a sacrifice, but felt that it was my duty to do it.” He had a hired man, regarded the farm as his home, and had no intention of residing elsewhere. The hired man, who said he was with him the most of the time for the last three years, also said that Neely carried on the home, that he had horses, cows, sheep, pigs, chickens, dogs and cats on the place. That Neely was there practically all the time, that Mrs. Neely came out two or three times a week, and the whole family came out once in a while.
When the sheriff came to levy on the property the defendant still insisted on his claim of a homestead, notified the sheriff of his claim and that the property was exempt from levy. A few days later he notified the sheriff in writing that the farm levied on was his homestead, and that it could not be sold. This was done in accordance with R. S. 60-3502, which provides for the selection of what he regards as his homestead.
In the recent case of Farmers State Bank v. Weeks, 138 Kan. 376, 26 P. 2d 262, the children were attending school in Topeka, and the owner claiming the homestead in another county was with the children most of the time. Part of the time the children were at the homestead, and in that case it was said:
“Under the evidence we think that her action and statements and claims were made in good faith, and sufficient to establish a residence and home upon which to base the claim of a homestead right. The intent of the claimant enters largely into the creation and acquiring of a homestead. It is true, as appellant contends, that a mere representation of a purpose to occupy is not enough to establish a homestead right. There must be a bona fide intent and actual occupancy. Representations may be proven to show intent, likewise the physical acts of the claimant in the matter of occupancy may be shown, to prove that the acts concur with the declared intent. The reservation of a part of the residence and equipment of the same as a home, followed by actual occupancy .when not in Topeka with the children, tends to show good faith in establishing a homestead. When land is once impressed with the homestead character, the right is not lost by a temporary absence therefrom.” (p. 378.)
We think the trial court had sufficient evidence tending to show that the defendant had made the farm his homestead before the judgment against him was entered, although the children continued in school to the end of the term, and that all of the family have lived with him on the farm ever since that time.
The judgment of the trial court was that the farm had become the homestead of defendant before the judgment against the defendant was entered, and therefore its judgment in this case in favor of the defendant is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by the state from the judgment of the trial court sustaining a motion to quash an information whicli attempted to charge defendants with the violation of R. S. 1931 Supp. 44-201, in that while constructing a school building in the city of Wichita, under a contract with the board of education of that city, defendants did “employ laborers and other persons at a less wage than the current rate of per diem wages in the locality said work and labor was performed.” The statute above referred to, among other things, provides: “Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed” on contracts with the state, or its municipalities, for construction work. The statute contains a definition for the word “locality,” and for the phrase “the current rate of per diem wages,” and the state contends that R. S. 44-205 provides the penalty sought to be imposed.
The motion to quash, broadly speaking, was predicated upon two grounds: First, that the statute is so indefinite as to be unconstitutional; and, second, that the information does not state facts sufficiently definite and certain to form the basis of a prosecution or to enable defendants to know with what specific thing they are charged as constituting an offense.
As to the first ground, a statute of the state of Oklahoma, identical with our R. S. 44-201 (prior to its amendment by chapter 214, Laws 1931), was held void by the supreme court of the United States in Connally v. General Const. Co., 269 U. S. 385. The head-notes read:
“1. A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law.
“2. Oklahoma Comp. Stats. 1921, §§ 7255, 7257, imposing severe, cumulative punishments upon contractors with the state who pay their workmen less than the ‘current rate of per diem wages in the locality where the work is performed,’ — held void for uncertainty.”
In the opinion it was said:
“That the terms of a penal statute creating a new offense must be suf ficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized- requirement, consonant alike with ordinary notions of fair play and the settled rules of law.” (p. 391.)
citing International Harvester Co. v. Kentucky, 234 U. S. 216, 221; Collins v. Kentucky, 234 U. S. 634, 638. Also, United States v. Cohen Grocery Co., 255 U. S. 81, 92, where a section of the food-control act of 1917, which imposed a penalty upon any person who should make “any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,” was held to be invalid in that the words fixed no ascertainable standard of guilt and forbade no specific or definite act. Also, United States v. Capital Traction Co., 34 App. D. C. 592, where a statute which made it an offense' for the street-car company to run an insufficient number of cars to accommodate passengers “without crowding,” was held void for uncertainty. Considering the statute under review, requiring the contractor, at the risk of incurring severe and cumulative penalties, to pay his workmen “not less than the current rate of per diem wages in the locality where the work is performed,” the court said:
“We are of opinion that this provision presents a double uncertainty, fatal to its validity as a criminal statute. In the first place, the words ‘current rate of wages’ do not denote a specific or definite sum, but minimum, maximum and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of work done, the efficiency of the workmen, etc. . . . The statutory phrase reasonably cannot be confined to any of these amounts, since it imports each and all of them. The ‘current rate of wages’ is not simple but progressive — from so much (the minimum) to so much (the maximum), including all between; and to direct the payment of an amount which shall not be less than one of several different amounts, without saying which, is to leave the question of what is meant incapable of any definite answer. . . . the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the legislature meant one thing rather than another, and in the futility of an attempt to apply a requirement, which assumes the existence of a rate of wages single in amount, to a rate in fact composed of a multitude of gradations. To construe the phrase ‘current rate of wages’ as meaning the lowest rate or the highest rate or any intermediate rate or, if it were possible to determine the various factors to be considered, an average of all rates, would be as likely to defeat the purpose of the legislature as to promote it.” (Connally v. General Const. Co., 269 U. S. 385, 393, 394.)
There is a further discussion of the uncertainty of the word “locality.”
Following this decision of the supreme court of the United States, our legislature, in 1931 (Laws 1931, ch. 214), amended R. S. 44-201 so as to include definitions as follows:
“ ‘The current rate of per diem wages’ for the intents and purposes of this act shall be the rate of wage paid in the locality as hereinafter defined to the greater number of workmen, laborers, or mechanics in the same trade, occupation, or work of a similar nature. In the event that it be determined that there is not a greater number in the same trade, occupation or on similar work paid at the same rate, then the average rate paid to such laborers, workmen or mechanics in the same trade, occupation or work, shall be the current rate. The ‘locality’ for the purpose of this act shall be the county wherein the physical work is being performed: Provided, That where cities of the first or second class are located in said counties, each such city shall be considered a locality.”
Disposing first of the word “locality,” as thus defined and as 'applied to this case, we have no difficulty in saying that since the work here was being done in the city of Wichita, a city of the first class, the city is the locality referred to in the statute, although the contract under which the work was being done was made with the board of education of the city. Looking at the definition given in the statute of the phrase, “the current rate of per diem wages,” and comparing that with the reasons given by the supreme court in Connally v. General Const. Co., supra, the definition seems to be open to all the objections stated against it in that opinion. It is conceded in the argument in this case that our statute (R. S. 44-201), in so far as it attempted to fix criminal liability upon contractors or others for not paying “the current rate of per diem wages,” was open to the same infirmities as the Oklahoma statute, held invalid in Connally v. General Const. Co., supra. But it is argued that the amendment made in 1931 defining the term, “the current rate of per diem wages,” cured that defect and rendered the statute valid. We are unable to see that it has that effect. In fact, the definition does but little, if anything, more than to paraphrase the objections made to the statute by the court in Connally v. General Const. Co., supra.
Perhaps our legislature was prompted to make the amendment to the statute in 1931 by reason of the opinion of the court of appeals of New York in Campbell v. City of New York, 244 N. Y. 317, 155 N. E. 628, 50 A. L. R. 1473. In that case the city, in making a contract for public work, had inserted in the contract the provisions of a statute similar to our R. S. 44-201 and added provisions defining the word “locality” as signifying the city of New York, and the “prevailing rate of wage” to be the “rate paid to a majority of the laborers, workmen or mechanics engaged in the same trade or occupation in the city of New York”; and if there was not a majority paid “at the same rate, ‘then the rate paid to the greater number of such trade or occupation in the city of New York.’ . . . ‘Provided, that such greater number constitute at least 40 per centum,’ of such workmen. If less than forty per cent were paid at the same rate, then the prevailing rate was to be the ‘average rate paid to such laborers.’ ” Workmen employed under the contract were to be included in reckoning the total number. Certain taxpayers sued to enjoin the letting of the contract, or the performance of the work under it, on the ground that the statute, in so far as it prescribes the payment of such wages, is unconstitutional, being indefinite, and that the added definitions do not correct the uncertainty; that the bidders would be unable to bid with understanding and would be driven to increase their bids as a protection against obligations unknown and unknowable,-with resulting waste and injury to the city and its taxpayers. Chief Judge Cardozo, now a member of the United States Supreme Court, wrote the opinion, which turned almost entirely upon the question: Can a contract be said to be illegal when it follows the terms of the statute? In the opinion it was said:
“The form of contract being lawful to the extent that it repeats the provisions of the statute, there is no occasion to determine the remedies, criminal or civil, that will be available to the municipality if the claim shall be made hereafter that those provisions have been violated. Questions of that order, suggested in the briefs of counsel, are mentioned only to reserve them. (Italics ours.) We do not now determine whether Connally v. General Construction Co., supra, stands in the way of criminal prosecution. Distinctions of place and circumstance may conceivably exist. . . . This 'is not the time to attempt a definition of ‘the prevailing rate of wages’ with its background of legislative history and twenty years or more of practical construction. One finds it hard to believe that a cliché so inveterate is devoid of meaning altogether. Learned judges have said (citations) that it is synonymous with market rate. This might not exclude altogether the possibility of fluctuations and diversities at a given -day and place. There can be little doubt that it would furnish us with criteria of conduct adequate for civil, if not for criminal, liability. (Citations.) Other judges have believed that the range of variation is wider and less certain than any that is consistent with the standards of a market value. Even so, a customary minimum might coexist with a customary maximum, however varying the number of intermediate gradations. A standard so indefinite, if effective for nothing else, would prevent the fall of wages below the customary minimum. A level would be established below which the rate could not descend and still be characterized as 'prevailing.' The legislature may have thought that the statutory promise would not be wholly without value if it availed for this and nothing more. There would be no merciless exploitation of the indigent or idle.” (pp. 328, 329.)
In this connection it is worth while to note the decision of the Maryland court of appeals in Ruark v. Engineers’ Union, 157 Md. 576, 146 Atl. 797, holding a statute similar to our R. S. 44-201 to be constitutional even as a basis for criminal action. The discussion of that question in the opinion is difficult to be reconciled with Connolly v. General Const. Co., supra.
Let us now examine more carefully our own statute and its history. It was originally passed in 1891 (Laws 1891, ch. 114). The title of the act as passed read:
“An act constituting eight hours a day’s work for all laborers, workmen, mechanics and other persons employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality in said state, or by contractors or others doing work or furnishing material for the state of Kansas, or any county, city, township, or other municipality thereof, and providing penalties for violation of the provisions of this act.”
It contained five sections, the first three sections of which read:
“Section 1. That eight hours shall constitute a day’s work for all laborers, workmen, mechanics or other persons now employed, or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of any county,' city, township, or other municipality of said state, except in cases of extraordinary emergency which may arise in time of war or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life: Provided, That in all such cases the laborers, workmen, mechanics or other persons so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work: Provided further, That not less than the current rate of per diem wages in the locality where the work is performed shall be paid to. laborers, workmen, mechanics and other persons so employed by or on behalf of the state of Kansas, or any county, city, township or other municipality of said state; and laborers, workmen, mechanics and other persons employed by contractors or subcontractors in the execution of any contract or contracts within the state of Kansas, or within any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the state of Kansas, or of such county, city, township, or other municipality thereof.
“Sec. 2. That all contracts hereafter made by or on behalf of the state of Kansas, or by or on behalf of any county, city, township, or other municipality of said state, with any corporation, person or persons, for the performance of any work or the furnishing of any material manufactured within the state of Kansas, shall be deemed and considered as made upon the basis of eight hours constituting a day’s work; and it shall be unlawful for any such corporation, person or persons to require or permit any laborer, workman, mechanic or other person to work more than eight hours per calendar day in doing such work, or in furnishing or manufacturing such material, except in the cases and upon the conditions provided in section 1 of this act.
“Sec. 3. That any officer of the state of Kansas, or of any county, city, township or municipality of said state, or any person acting under or for such officer, or any contractor with the state of Kansas, or any county, city, township or other municipality thereof, or other person violating any of the provisions of this act, shall for each offense be punished by a fine of not less than $50 nor more than 11,000, or by imprisonment not more than six months, or both fine and imprisonment, in the discretion of the court.”
The fourth section provided it should not apply to existing contracts, and the fifth when it should take effect. Section 2 of the act is now R. S. 44-204, and section 3 is now R. S. 44-205. It will be observed that the title of this act pertained only to hours of labor and to providing penalties for the violation of the act. The only thing specifically characterized as being unlawful by the act (section 2) was requiring or permitting the laborer, workman, or mechanic to work more than eight hours except in case of emergency. The provision with reference “to current rate of per diem wages” was not referred to in the title, nor was its violation specifically made unlawful. Perhaps that proviso was inserted in the bill by an amendment when it was being considered in the committee of the whole, but its legislative history on that point is not clear. It is clear, however, that the framers of this bill, and the legislature which enacted it, did not intend to make the violation of that provision a criminal offense. Perhaps, as suggested by Judge Cardozo in Campbell v. City of New York, supra, it forms some basis or guide in civil litigation which might arise out of the contract or employment of workmen thereunder. Section 1 of the act was amended in 1913 (Laws 1913, ch. 220) by adding a provision that it should not apply to cities of the second and third class operating municipal light and water plants. As so amended it became paragraph 5870 of the General Statutes of 1915. The commission to revise our statutes, created under chapter 207 of the Laws of 1921, in making our Revised Statutes of 1923, revised this section as to its language and made two sections of it, being R. S. 44-201 and R. S. 44-202. In the first of these they corrected the language of the earlier section, and in the second they made it an offense for any officer of the state, or any municipality thereof having charge or control over such public work, to violate the provisions of the preceding section, and provided the grade of the offense and the punishment. It created no offense as against the contractor or subcontractor. The commission created to revise our statutes was required to submit its revisions to the legislature for reenactment (Laws 1921, ch. 207, § 3), which it did in 1923 (Laws 1923, ch. 144). It was therefore authorized to revise those enacted by the .legislature of 1921, or earlier sessions, but was not authorized to revise acts of the legislature of 1923, but simply incorporated those in the compilation of revised statutes'. The legislature of 1923 (Laws 1923, ch. 157) amended paragraph 5870 of the General Statutes of 1915, which was section 1 of chapter 114 of the Laws of 1891, as amended by chapter 220 of the Laws of 1913, by adding further provisions that it should not apply to township or county work in dragging or grading dirt roads. The commission revising the statutes, being uncertain how to treat its revision of paragraph 5870 of the General Statutes of 1915 in two sections, as appear in R. S. 44-201 and 44-202 and chapter 157 of the Laws of 1923, referred the question to former Chief Justice Frank Doster, who had been employed by the commission in an advisory capacity. Judge Doster gave a written opinion that both should be printed (see Report on Editing and -Compilation of Revised Statutes of 1923 by the Commission to Revise the Statutes, pp. 35, 98, 99). In accordance with this recommendation both were printed, and the act of the legislature of 1923 (Laws 1923, ch. 157) became R. S. 44-203. Naturally the title originally used in chapter 114 of the Laws of 1891 was, omitted in the Revised Statutes of 1923, it being the practice of the commission to omit the titles of former legislative acts. Such titles may be referred to, however, when it is important in a study of the history of the legislative enactment to determine the meaning or intent of the legislature. When we conclude, as we have heretofore done, that the legislature of 1891 did not make, and did not intend to make, the violation of the provision in section 1 of that act pertaining to “the current rate of per diem wages” a criminal offense, but that it was placed in the statute as a standard of civil liability with respect to those matters to which it is applicable, can it be said that the manner in which the subject was treated by the commission to revise our statutes, and the legislature which enacted the revision, made its violation a criminal offense? Certainly it is not clear that such was the intention, and we feel constrained to hold that the violation of that specific provision of the statute has not been made a criminal offense.
We are further persuaded in this view by the nature of the cases arising under this statute (Laws 1891, ch. 114)- and its amendments which have reached this court. All of them dealt with the hours of labor provision of the statute (State, ex rel., v. Martindale, 47 Kan. 147, 27 Pac. 852; In re Ashby, 60 Kan. 101, 55 Pac. 336; In re Dalton, 61 Kan. 257, 59 Pac. 336; Beard v. Sedgwick County, 63 Kan. 348, 65 Pac. 638; State v. Atkin, 64 Kan. 174, 67 Pac. 519 (affirmed 191 U. S. 207); State v. Wilson, 65 Kan. 237, 69 Pac. 172; State v. Ottawa, 84 Kan. 100, 113 Pac. 391) except one, State, ex rel., v. Construction Co., 99 Kan. 838, 162 Pac. 1175. That was an original proceeding in quo warranto in this court, brought in the name of the state on the relation of the attorney-general against a corporation which had a contract for constructing a bridge across the Kansas river in Wyandotte county. It was brought to oust the defendant from the corporate privileges or franchises of requiring laborers to work more than eight hours per day, and from paying laborers less than the current rate of per diem wages in the locality. The evidence before the court was by affidavit, which convinced the court that the requiring of laborers at a certain time to work more than eight hours a day was done only under an emergency, as defined in the statute. On the wage question the controversy was whether the current rate of wages for a certain class of workmen was sixty-five cents an hour, as contended by the state, or forty-five cents an hour, as paid by the defendant. The court held the burden of proof was on plaintiff and that it had not established the fact that the current rate of wages for workmen employed to do the work defendant was having done exceeded the amount it was paying. The case is important here for two reasons: First, that on the question involving the current rate of wages a civil action was brought by the attorney-general rather than a criminal action; and, second, it disclosed the difficulty, even in a civil action, of determining the current rate of per diem wages for the class of workmen employed and used by defendant.
Touching the second question raised by the motion to quash, that the information attempts to charge an offense in language so indefinite that defendants would be unable to prepare their defense, but little need be said. Naturally, in the construction of the build ing defendants employed laborers, workmen and mechanics of varying degrees of skill. Which of these are defendants charged with paying less than the current rate of per diem wages? What does the prosecution contend was the current rate of per diem wages for such persons, and what was paid by defendant? These are not stated in the information. How were defendants to know what specific charge was made against them? It is fundamental that an information should charge an offense with such certainty that the defendant may know the offense with which he is charged with such certainty as to perpare to meet it. The information in this case does not do that. It is true that when a statute creating an offense states the facts constituting it, the information may be in the language of the statute. But where the statute is in general terms only, the information should be more specific.
From what has been said above we conclude, first, that the provision in the statute to the effect that the contractor should not pay less than the current rate of per diem wages was not designed or intended by the legislature to form the basis of a criminal prosecution, but that its purpose was to form the basis of determining civil liability which might grow out of the relations of the parties; second, if it were intended to form the basis of criminal liability, it is void for uncertainty, under the authority of Connolly v. General Const. Co., supra; and, third, that the information itself was too indefinite to charge a specific offense.
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The opinion of the court was delivered by
Smith, J.:
This is a proceeding under the workmen’s compensation act brought by the dependents of a deceased workman. The commissioner of workmen’s compensation made an award in favor of the claimants! On appeal the district court made an award to the same effect. The insurance company and the employer have appealed.
The only question of fact before the commissioner was whether the death of the workman was caused by an accident. Many of the facts are not disputed.
On September 30, 1943, the workman was struck on the head by a steel gin pole on a truck. The blow produced lacerations on both sides of the head and rendered the workman unconscious for a short time. He was given treatment in the hospital for a short time and was off work for ten days. On February 21, 1944, he and his attorneys appeared before 'an examiner for the workmen’s compensation commission and proceedings were had whereby an award was made to him in the amount of $126 for the injury. This award was paid and Cooper returned to work.
On July 24, 1944, while working for his employer Cooper became ill. He started in an ambulance for a hospital accompanied by his wife. On the way to the hospital he died, July 25, 1944. This proceeding was begun by his wife and two minor children.
At the hearing before the commissioner testimony of the wife of deceased, his mother and a doctor was offered on the part of claimants. The claimants took the deposition of their doctor. When it was offered before the commissioner counsel for the respondents stated they had no objection to the deposition itself but objected to a hypothetical question contained in it because it did not contain all the history of the case and it was based upon facts not in evidence. The commissioner reserved his ruling upon that until he had an opportunity to read the deposition and proceeded with the hearing. The testimony of the wife of the deceased and his mother supplied details upon which the hypothetical question was based. The hypothetical question referred to certain facts beginning with the injury of the workman and describing his conduct and condition from his injury tó the time of his death and the circumstances surrounding his death. The last paragraph of the question and the answer was as follows:
“Now, based upon your learning, knowledge and experience in the field of medicine, considering these hypothetical facts and assuming them to be true, do you have an opinion, as a physician and doctor, as to what was the cause of the death of the subject? A. Yes.
“Q. I will ask you to state, doctor, what, in your opinion, was the cause of the death of this man, based on that hypothetical background. A. Well, in my judgment he had a-brain injury from the accident, possibly a traumatic meningitis, and from the history I take it that he suffered from that chronic condition after he got through the acute part of it, until his death, and when he did die my judgment is that he picked up a clot or thrombi that had sloughed off from his brain injury, and either gave him a brain condition that killed him immediately, or got in his heart and killed him immediately. That would be my judgment.”
The claimants had the burden of proving the death of tide deceased was caused by the injury. The hypothetical question to which reference has just been made is the only evidence in the case which actually sustains that burden.
Respondents argue here that the commissioner should not have considered the question and answer because it did not contain all of the uncontroverted facts in the case and asked the doctor to assume facts contrary to the evidence and facts unsupported by any evidence and omitted material uncontroverted facts known to claimants at the time the deposition was taken. If the respondents be correct in that argument, then there would be no substantial evidence to support^ the findings of the commissioner.
Reference has heretofore been made to the objection of the respondents to this question. The claimants argue in the first place that the point is not good because the objection to it was not made in time and the objection did not point.out in a clear manner the basis of the objection.
In Roark v. Greeno, 61 Kan. 299, 59 Pac. 655, this court held with' reference to a hypothetical queston as follows:
“An objection that a hypothetical question assumes facts not proved ought to point out with particularity the facts which are claimed to .be untruly stated.”
Nangle v. Packing Co., 112 Kan. 289, 212 Pac. 108, was a workmen’s compensation case. There we held:
“The rule that objections to evidence must be sufficiently specific to challenge the court’s attention to the ground relied upon, for the reason that error will not be presumed (Roark v. Greeno, 61 Kan. 299, 59 Pac. 655), is applied to objections to a hypothetical question asked of physicians, the ground of the objection in the court below being that it was not a proper hypothetical question, that it included facts not in evidence before the injury, and was incompetent, irrelevant and immaterial, the objection urged here being that it called for a conclusion of the witness upon the ultimate issues in the case.” (Syl. ¶1.)
To the same effect is Linscott v. Hughbanks, 140 Kan. 353, 37 P. 2d 26. See, also, Travelers Ins. Co. v. Drake, 89 F. 2d 47.
The objection in this case did not point out any particular in which the hypothetical question assumed facts not proven and failed to state facts which were admitted. It is true at the time the deposition was offered the respondents had not heard the evidence of the wife and mother of deceased from whom many of the facts were obtained. However, there was the opportunity for counsel for respondents to have renewed the objection after that evidence was introduced. At the close of the claimants’ case the deposition of the doctor was again offered and no objection made to it.
Moreover we have examined the record and find that the facts contained in the hypothetical question were substantially testified to by the two witnesses for the claimants.
Respondents first argue that there was no evidence at all that there was a marked change in the appearance and activity of the deceased after the injury and before his death. We find that the^e was substantial testimony of the wife of deceased from which the commissioner was entitled to draw such a conclusion.
They next argue that there was no evidence that deceased had frequent spells of unsteadiness on his feet after the injury. His wife testified that he frequently complained about being dizzy and of nausea. We could not say that there is not some evidence of such unsteadiness.
Respondents next argue that there was no evidence at all that the workman was often late to or absent from work. We do not find any exact evidence on that point, but there is some evidence by the wife that the deceased’s superior officer had said that Gene’s head was not right and that he ought to do something about it.
They next argue that there is no evidence at all that deceased was noticeably slow in his speech. ■ The wife and mother both testified to that.
They next argue that there is no evidence that the deceased was stricken with what «appeared to be a fainting spell, with redness of the face, excessive perspiration and pains in the chest and head after the blow on his head and before his death. Witnesses for both the claimants and respondents testified to that.
We conclude the hypothetical question was properly admitted and considered by the commissioner.
Respondents next argue that even though it be held that the hypothetical question was proper, still there was no substantial evidence to warrant the commissioner in finding that the death of deceased was the result of the blow on the head. The argument on this point is that the trial court should have drawn inferences and conclusions from testimony offered by the claimants as well as that offered by the respondents other than were drawn. We have read the abstract and counter abstract carefully as well as the briefs of both parties on this question. Able arguments are made on both sides. They were more properly addressed to the trial court, however, than to this court.
In Woodring v. United Sash & Door Co., 152 Kan. 413,103 P. 2d 837, we said:
“We must remind appellant that this court has little concern with disputed questions of fact in ordinary lawsuits, and none whatever in workmen’s compensation cases except to ascertain whether the record contains any evidence which on any theory of credence or want of credence would justify the trial court’s finding or conclusion of fact.” (p. 417.)
In Woodfll v. Lozier-Broderick & Gordon, 158 Kan. 703, 149 P. 2d 620, we said:
“It all comes down to this: Was there an entire want of evidence to support the trial court’s finding that the workman’s fall and consequent death was caused by an accident which arose out of and in the course of his employment? We cannot say so. This court has neither duty nor authority to weigh the evidence. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 624, 7 P. 2d 70.) It is of no consequence that if we were triers of fact we might hold that the case falls within the rule of Cox v. Refining Co.,, 108 Kan. 320, 195 Pac. 863, and later eases of that sort.” (p. 705.)
See, also, Raynes v. Riss & Co., 152 Kan. 383, 103 P. 2d 818; also Rubins v. Lozier-Broderick & Gordon, 160 Kan. 499, 163 P. 2d 364, and Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690.
We have so held many times. Nothing would be added to this opinion by setting out in detail the testimony offered and arguing the conclusions that each party was entitled to draw from it. All that was the work of the trial court. Various other errors of the trial court are assigned. However, argument’ was made by the respondents on the two questions that have already been discussed here and on no others.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This started as an action to quiet title but was tried on an amended petition in which construction of a will was sought as well as equitable relief. Judgment was for the defendants. Plaintiff appeals.
The action was commenced in the district court by Fred Asendorf. He named as defendants all his brothers and sisters and their children. All were the children and grandchildren of one Fritz Asendorf. He alleged he was the owner and in actual possession of a certain described quarter section of land; that his father left a will which was attached to the petition; that the will had been fully executed.and a sale of real estate would not be necessary for the payment of debts. He alleged further that under a paragraph of his father’s will the defendants claimed some right, title or interest in the real estate in question. He alleged that the portion of the will under which they claimed was void and of no effect and the plaintiff .was vested with a fee simple title to the land. He prayed that the defendants be required to set up any claim they might have to the real estate in question and that his title bé quieted as to the defendants. The will of Fritz Asendorf was attached and after giving his wife a life estate to the property in question contained the following clause:
“I give, devise and bequeath to my son Fred Asendorf the South-east Quarter (SE of Section twenty-five (25), Township Twenty-seven (27) south, Range Four (4) west; but without power to sell, transfer or 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.”
The defeiidant’s demurrer to this petition was sustained. An amended petition was filed by the plaintiff and before answer a second amended petition. This petition alleged that Fritz Asendorf died on the date stated and that his wife, Maggie Asendorf, had predeceased him; that the plaintiff and defendants were the children and grandchildren of Fritz Asendorf; that the plaintiff was married and childless at the time the action was filed. The petition then set out the paragraph of the will which has already been included in this opinion and alleged that it was void for the reason there was no provision for a gift over in case of the violation of the clause and that the will gave Fred Asendorf a fee simple title to the real estate.
The prayer of the petition was for judgment interpreting the will and settling the rights of the parties and for such other and further relief as the court might deem just and proper.
To this petition the defendants all filed a general denial. Testimony was taken, about which there does not seem to have been much dispute. The court made findings of fact and- conclusions of law to the effect it was the intention of the testator to bequeath to Fred and Lillie Asendorf a life estate with the remainder over to the living issue of Lillie and Fred, but that such issue failing and in default of such living grandchildren — issue of Fred and Lillie — the second contingent remaindermen, the then living grandchildren of the testator should be the owners in fee simple of the property. The court made conclusions of law interpreting the will generally in favor of the contentions of the defendants.
Motions of both parties for substituted findings of fact and conclusions of law and of plaintiff for a new trial were denied and judgment entered in accordance with the conclusions of law.
Various assignments of error are made. All are directed at the conclusions of law. When it appears from the record on appeal that there is doubt about whether the trial court had jurisdiction of the subject matter of the action we will consider that question and take appropriate action even though the matter of lack of jurisdiction was not raised by the párties. See In re Estate of Dix, 161 Kan. 364, 168 P. 2d 537, and authorities there cited.
When the oral presentation was made we. called to counsel’s attention our doubt as to whether the district court had jurisdiction of the subject matter of the action. Counsel asked for and were given leave to file additional briefs upon that question. These briefs have now been filed and considered. On account of the conclusion we have reached on that matter it will not be necessary for us to pass on the errors urged here on the original appeal. It will be noted the action was commenced in district court. The petition pleaded that certain paragraphs of the will were void. Its prayer was for a judgment interpreting the will and for such further relief as the court might think proper.
Under the provisions of chapter 219 of the Laws of 1937 probate courts were given jurisdiction to draw to themselves all decedent’s property, including his real estate. (See Page v. Van Tuyl, 150 Kan. 285, 92 P. 2d 110.) This jurisdiction over a decedent’s real estate was broadened by the provisions of chapter 180 of the Laws of 1939. (See Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438.) This case was one of the early ones wherein we laid down certain rules as to the exclusive original jurisdiction of probate courts in matters pertaining to the probate and winding up of estates. In that opinion we held, among other things:
“It was the intent and purpose of the framers of the Kansas probate code and of the legislature which enacted it to grant to probate courts exclusive original jurisdiction over all matters incident and ancillary to the settlement and distribution of decedent estates, except as to any matter over which that code expressly confers concurrent jurisdiction upon district courts. •
“Where a party has an adequate remedy for. equitable relief in the probate court and that court is exercising its jurisdiction, such party may not invoke the jurisdiction of a district court to accomplish the same purpose.
“Under the Kansas probate code, effective July 1, 1939, the probate court in which a will has been probated has exclusive original jurisdiction to entertain a proceeding to contest the will.” (Syl. HIT 3, 5, 6.)
That was an action against the executor of an estate to enforce a contract of decedent to bequeath real estate. It had been begun in district court and we held that it should have been brought in the probate court in the county where the estate was being probated. The case was further complicated by the fact that some of the real estate involved was located in a county other than the one in which the probate proceedings were pending. The plaintiff argued that since the action was to determine title to real estate it should be brought in the county where the land was located. We overruled that argument, however, and held as already indicated.
In this case, as appears from the record, the estate of Fritz Asendorf had been fully administered except for its final closing in probate court when this action was commenced. The estate had reached the point where G. S. 1945 Supp. 59-2246, 59-2247, 59-2248 and 59-2249 became applicable. The first of the above sections provides for partial distribution and we are -not concerned with it here. Section 59-2247 provides in detail for a petition for final settlement. Section 59-2249 provides for a hearing and final decree on the foregoing petition. It provides in part “On the hearing . . . Upon such settlement and allowance the court shall determine the heirs, devisees, and legatees entitled to the estate and assign the same tó. them by its decree. The decree shall name the heirs, devisees, and legatees, describe the property, and state the proportion or part thereof to which each is entitled ...”
The proceedings provided for is adversary. It is one of the hearings the legislature had in mind when it conferred equity powers on probate courts. (See G. S. 1945 Supp. 59-301 [12].)
Here the question was, who was entitled to the real estate of-which the testator spoke in paragraph 3 of the will. The proceedings provided for in those sections was intended to meet that very situation, among others. Should we hold that the case could be adjudicated in an action originally commenced in the district court we would be in a measure depriving the probate court of the exclusive original jurisdiction the legislature intended it should have. To so hold would be. to overrule much that has been said and held by us since the probate code was first enacted. See, also, Pennington v. Green, 152 Kan. 739, 107 P. 2d 760.
Counsel for appellees concedes .the foregoing to be the rule but urges that the district court can be called to the aid of the probate court under G. S. 1935, 60-3127 to 60-3132, inclusive, commonly known as the Declaratory Judgment Act. The appellees argue in their present brief that we should proceed to hear and determine this appeal under the provisions of that act even though there is doubt, about the original jurisdiction of the district court.
Appellant also relies on that act. The sections of the probate code we have discussed were all part of a comprehensive plan enacted so that all matters pertaining to estates would be considered and adjudicated in the first instance by the court where the probate proceedings were pending. To hold that an action so framed that, in form, it appeared to be for a declaratory judgment could be brought in the district court, while the estate involved was being administered in probate court, and-the same relief had as could have been obtained in the probate court pursuant to the sections to which reference has been made, would be to nullify the statutes and to overrule several of our decisions. This we do not care to do. There is a clear distinction between this action and the one decided in Kininmonth v. Carson, 156 Kan. 8,08, 137 P. 2d 173. That'was brought by the administrator who' was winding up an estate to' quiet his title as administrator to certain real estate of the deceased. He based title and right to possession of this real estate upon an order of the probate court made pursuant to G. S. 1945 Supp. 59-1401. Besides giving the' administrator the right to possession of the real 'estate, it specifically provided':
“He may by himself, or with the heirs or devisees, maintain an action for the possession of the real estate or to quiet the title to the same.”
We held that the above provision gave the administrator 'authority to bring an action in district court to quiet title to the real estate of deceased. We held the action was required under such circumstances to enable the administrator properly tó conserve the real estate.
Here, on the other hand, the action is brought by a devisee with the avowed purpose of striking down certain provisions of the will of deceased. Should the will be construed as contended for by plaintiff the result would be to deprive the grandchildren of deceased of any interest in the real estate in question. We have held, that such an action is the one of which the probate court has exclusive original jurisdiction. See Foss v. Wiles, 155 Kan. 262,124 P. 2d 438; Yeager v. Yeager, 155 Kan. 734,129 P. 2d 242, and In re Estate of Grindrod, 158 Kan. 345, 148 Pac. 278.
The judgment of the trial court is reversed with directions to dismiss the action. . | [
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The opinion of the court was delivered by
Parker, J.:
.This appeal involves the right of a district court to vacate a judgment rendered in a tax foreclosure proceeding and to set aside a sheriff’s sale had pursuant to such judgment.
On July 16, 1945, taxes thereon having been delinquent for many years, the Board of County Commissioners of Cherokee county as authorized by the provisions of G. S. 1945 Supp., ch. 79, art. 28, providing for judicial foreclosure and sale of real estate by the county, caused an action to be filed in the district court of that county for the purpose of foreclosing tax liens on two lots located in the business portion of Baxter Spring?. The petition listed the two lots as one tract and named as defendants all persons who had or claimed to have an interest in that real estate. On October 30, 1945, all defendants being in default, the court rendered judgment fixing the amount due for taxes, foreclosing the tax lien and ordering the property sold. The component parts of the judgment, following the petition, were based upon the premise the lots constituted a single and indivisible tract of land.
At this point, supplementing the foregoing statement, it should perhaps be said the owners of the property have no interest in this appeal and for that reason will not be referred to again.
Iii due course, after the rendition of the decree, an order of sale issued, a sale notice was published and on January 9, 1946, the sheriff sold the lots as one tract to Howard Barnard, the appellant herein, who now complains of tlie action and judgment of the district court setting aside the sale and vacating the original judgment.
So much for preliminary facts necessary for informative purposes and required to fully understand the more important issues raised by the appeal. We turn now to the chain of events determinative of the rights of the present parties. They will be related in chronological order as briefly as possible.
Shortly after the sale of the property, the purchaser having paid the sheriff the amount of the bid, the county attorney as the representative of the board filed a motion to confirm the sale. Such motion was not set down for hearing and for reasons presently to become apparent was regarded by all parties as having been withdrawn. Thereupon, and on February 7, 1946, the purchaser intervened and filed his motion to confirm such sale. On the same day, notwithstanding its first motion, the board filed a motion to set aside the sale in which, for the first time, the trial court's attention was directed to certain alleged defects in the sale proceedings. A hearing was had on the two motions last referred to, the parties presenting both oral and documentary evidence. At its conclusion the court took both motions under advisement. On April 11, 1946, the board filed an application to vacate the judgment and all subsequent proceedings in which it alleged that such judgment and subsequent proceedings were irregular and defective because of failure to comply with statutory regulations and requirements in judicial tax foreclosure proceedings. A few days later the purchaser filed a motion to strike this application from the files. Questions raised by the application and the motion last mentioned were pre sented to the court in due time and also taken under advisement. On April 27, 1946, the trial court sustained the board’s motion to set aside the sale and its application to vacate the judgment, denied all motions filed by the purchaser and rendered judgment accordingly. In doing so it expressly found, among other things, that the records in the office of the county clerk and county treasurer not only failed to show that the lots involved had ever been assessed together as one tract but affirmatively'disclosed that since 1929 they had been valued, assessed and taxed, separately by the taxing authorities of Cherokee county.
Before giving consideration to grounds relied on for reversal of the judgment it is necessary to direct attention to the defects and irregularities which, because of the requirements of our statute relating to judicial foreclosure and- sale of real estáte for taxes, appear in the various proceedings leading up to the rendition of such judgment and the ultimate sale of the lots in question. References hereafter are to G. S. 1945 Supp.', ch. 79, art. 28. With respect to those matters the record discloses: (1) The petition does not state the amount of taxes, charges, interest and penalties, chargeable to each tract, lot or piece of real estate involved (79-2801); (2) the décree of foreclosure does not set out (a) the amount of taxes, charges, penalties and interest, to the date of the filing of the petition chargeable to each particular lot, or (b) the name or names of the persons having an interest therein (79-2802); (3) the order of sale did not state or show) (a) the amount of the lien charged to each lot, (6) the costs, charges and expenses of the proceedings and sale chargeable to each such lot, (c) any amount claimed as a lien against either lot separately of as against both as one tract, and (d) the name of the ascertained owners of the lots as disclosed by the decree (79-2804); (4) the notice of sale did not state the lien for which each lot, or both lots as a single tract, were to be sold (79-2804); (5) the lots were not offered for sale or sold separately by the sheriff- (79-2804; (6) such lots were sold as a single tract without a court order authorizing that action (79-2803a).
Because of their nature two of appellant’s contentions should be decided before this appeal can be disposed of on its merits.
It is first contended that the appellee had no legal right to file a motion to set aside the sale or capacity to question its regularity. So what? It does not follow, as is assumed, that the setting" aside of the sale, even if the facts warranted it, was erroneous and re quires a reversal of the judgment on that account. Appellant’s argument in support of his contention ignores the statute (G. S. 1945 Supp. 79-2804), which requires the court to confirm the sale if regular and permits it to refuse to do so if the proceedings on which it is based are found to be irregular; likewise, entirely overlooks the fact that involved in the judgment is the denial of his own motion to confirm the identical sale and that he, not the appellee, seeks appellate review of the trial court’s ruling on that point. Notwithstanding, we believe appellant’s contention as he presents it is without merit.
G. S. 1945 Supp., 79-2804b, reads:
“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes,- interest and costs or any order of sale made under the provisions of section 79-2803 of the General Statutes Supplement of 1943 or amendments thereto, or any sale made under the provisions of section 79^-2804 of the General Statutes Supplement of 1943 or any amendments thereof, but every such action or proceeding, including those brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court. The provisions of this section shall apply to all judgments, orders of sale, and sales whether the purchaser at the foreclosure sale be the county or an individual.”
We find nothing in the section just quoted which limits the right to institute proceedings to set aside orders of sale to property owners or to purchasers at a tax foreclosure sale. To so construe it, in our opinion, is not only contrary to elementary rules of statutory construction but would do violence to legislative intent.
Supporting the conclusion just announced is Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988, which, although it involved other questions, was decided at a time when the tax foreclosure statute, insofar as it pertained to sales and confirmations, was not dissimilar to the one now in force and effect. In that case the right of the board of county commissioners to institute a proceeding by motion to set aside a sale to a third person was recognized and approved. It may be suggested the relief sought in that case was equitable in character and addressed to the discretion of the trial court under a statute which was, not then, as it is now (Sherman County Comm’rs v. Alden, 158 Kan. 487, 148 P. 2d 509), held to be so specific and complete in itself as to preclude resort to another statute having divergent provisions of more general application. Even so, Isenhart v. Powers, supra, is still to be regarded as a controlling precedent for our conclusion.
Appellant’s second contention is that appellee is estopped to complain of error in the court below. In support of his position he points to many of our decisions, including the recent case of Herl v. Herl, 154 Kan. 44, 114 P. 2d 817, all holding that where a party induces a court to try an action, or any part thereof, upon his own theory and thus leads the court into an error, he will not be heard to complain on appeal. We have no quarrel with the rule announced in the cited decisions. It is a good one and we approve it. The appellee is not here complaining' of any error on' the part of the trial court. On the contrary, having been successful in that tribunal, he now seeks to uphold — not overrule — its decision. In such a situation neither the rule nor the decisions are applicable or controlling.
With technical questions determined let us now direct our attention to a disposition of this controversy on its merits. Heretofore we have made mention of the fact the parties defendant in the action did not appeal from the foreclosure judgment. We indicated also that the appellant was not a party to such action and that his first appearance therein in any capacity came about from the filing of his motion to confirm the sale. Thus, regardless of how it is stated by the parties, it becomes apparent the primary question presented for appellate review is whether the record discloses facts and circumstances, equally applicable to either position, which warranted the trial court in refusing to confirm the sale on appellant’s motion or justified setting it aside on the motion of appellee.
At the outset we note the foreclosure judgment was rendered during the October, 1945, term of the district court, whereas the sale was had and the decree setting it aside was rendered during the January, 1946, term. Be that as it may, it cannot be successfully contended the court’s power to set aside the sale was limited to the term during which the original judgment was rendered. In the first place, the language appearing in G. S. 1945 Supp. 79-2804b contemplates that a proceeding to set aside a sale may be maintained at any time after such sale occurs, the only time limitation being that it must be commenced within six months from the date it was confirmed. Besides, to hold otherwise would mean that no sale held after the term at which the foreclosure decree was ren dered could be questioned regardless of its validity. Such an intolerable result, even if the language of the statute was indefinite or uncertain — which it is not — would not merit judicial sanction.
Before passing to consideration of irregularities and defects appearing in the sale proceedings we pause to point out that an order of sale is not complete until it is returned by the sheriff to the clerk of the court issuing it. On that account it must be remembered that the phrase “order of sale,” as it appears in the section of the statute heretofore quoted, includes all defects and irregularities in the various phases of the sale proceedings disclosed by the sheriff’s return and it is not limited to matters appearing on the face of such order as issued by the. clerk.
Early in this opinion we set forth at length certain defects and irregularities disclosed by the record and commented they must be so classified because of requirements of the statute. It now becomes necessary to determine whether they are of sufficient importance to require the conclusion the proceedings did not substantially comply with statutory requisites. If so, the trial court’s action in finding the sale was not regular, followed by the decree setting it aside, must be upheld.
The problem thus presented is not a difficult one. In Mitchell County Comm’rs v. Allen, 156 Kan. 701,137 P. 2d 143, as in the case at bar, the order of sale failed to state the amount of the lien charged to each tract or the name of the ascertained owners thereof as disclosed by the foreclosure decree. Likewise, the notice of sale did not state the amount of the lien for which each tract was to be sold. There, we held such irregularities were sufficiently substantial to make the sale voidable. On reexamination of the opinion we are convinced that case was correctly decided. Following such decision we hold the action of the trial court in refusing tó confirm, and in setting aside, the sale in the instant case must be sustained.
It can be added'that the same reasoning which resulted in the handing down of the decision to which we have referred would seem to require the conclusion that the record here discloses additional grounds for sustaining the trial court’s decision, namely, (1) failure of the order of sale to state the costs, charges and expenses, of the proceedings and sale chargeable to each lot, and (2) the fact the lots were not offered for sale and sold separately.
Appellant strenuously contends the question of whether, under the provisions of G. S. 1945 Supp. 79-2804b, the trial court had power to vacate the foreclosure judgment rendered at a former term is determinable in this appellate proceeding. Just as vigorously appellee contends that once the action with respect to the sale is sustained the appellant is not concerned with the original judgment and the propriety of the trial court’s ruling with respect to it is no longer an issue which can be raised by him. We are inclined to agree with appellee. Appellant, as we have heretofore indicated, was not a party to the action, he first appeared therein by intervention when he filed his motion to confirm the sale, his rights date from that appearance, and any relief to which he could possibly be entitled is based solely upon the validity of the sale. The defendants have not appealed from such judgment; Neither do they complain of the order vacating it. In fact, for all we know, they are in accord with that action and are relying upon it. Now that the trial court’s judgment in setting aside the sale has been sustained, to pass upon and perhaps deprive them of whatever additional rights they may have acquired under the order vacating the original judgment at the insistence of a third person whose status will not be in the least affected by what happens to it, would be outside any issue now presented by the appeal and highly improper. Therefore, without any indication of what our decision on the interesting and intriguing question raised .by appellant might be, we must decline to pass upon it and await the day when a similar issue is presented for determination in an appropriate proceeding.
The judgment is affirmed... | [
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The opinion of the court was, delivered by
Parker, J.:
This was an action for specific performance of an-oral contract to reconvey real estate and to quiet plaintiff’s title to the land therein described. The appeal is from a judgment sustaining a demurrer to plaintiff’s evidence.
The only evidence adduced at the trial was the testimony of the plaintiff himself. For that reason questions propounded to him as a witness, answers made in response thereto and objections to certain testimony, together with the rulings of the court thereon, will be set forth at considerable length. Pertinent portions of the record with respect to the matters just mentioned follow:
“Q. Now Mr. Peterson, in 1934, did you have some transaction with the defendant, F. L. Hagaman? A. Yes, sir, I did.
“Q. And borrowed some money from him, did you? A. Yes, sir.
“Q. And then later on, did you execute a deed to Mr. Hagaman for this property? A. Yes, sir.
“Q. And was the date of that deed 1938 — April 29, 1938? A. Yes, sir.
“Q. And at that time, did you have any conversation with Mr. Hagaman concerning possession, and who was to. occupy those premises? A. Oh, yes, I was to remain in possession.
“Q. And did you have any other conversation with him concerning the transaction surrounding that deed? A. Well, it was understood that it was simply to be a loan; not to be considered as a deed, but to be considered a mortgage.
“Q. And if you repaid the money, he was to have the property reconveyed —or, he was to reconvey the property back to you? A. Yes, sir, right.
“Q. Now in October, 1945, did Mr. Hagaman and you have a lawsuit in this Court? A. Yes, sir.
“Q. And at that time judgment was entered by agreement in favor of Mr. Hagaman for possession of the premises? A. That’s right.
“Q. ‘Now on this 6th day of October, 1945,’ . . . That is the judgment that was entered, is that right, Mr. Peterson? (Counsel hands paper to witness.) A. Yes, sir, that’s it.
“By Mr. McDowell: I would like to offer this in evidence as Plaintiff’s Exhibit ‘A,’ the judgment in Case No. 68405 — A.
“By Mr. Drennan: No objection.
“By the Court: All right, it will be admitted in evidence.
“Q. Now on the day that this judgment was entered, Mr. Peterson, did you have a conversation with Mr. Hagaman concerning the possession and the ownership of these premises? A. Yes, sir.
“Q. All right; now tell us what that conversation'with Mr. Hagaman was on October 6, 1945. A. Well, we had a conversation in the Court room before the matter came up.
“By Mr. Drennan: I object tó this, then, your Honor, as being before the judgment , and not having anything to do with the issues in this case, being before the rendition of judgment.
“By the Court: Objection sustained.
“Q. Did you have a conversation with Mr. Hagaman after the matter had been agreed upon in the Court room on October 6, 1945? A. I did.
“Q. All right, what was that conversation? A. Well, that was about December 1st, in connection with the fact that the time had elapsed.
“Q. Now by time elapsing, what do you mean? A. Well, the thirty (30) days that was allowed me there to raise the Two Thousand Dollars ($2,000) and take up the loan.
“Q. At the time the judgment was entered into in October of 1945, the judgment provided that execution would be stayed until December 1st. A. That’s right.
“Q. And the first conversation after that that you had with Mr. Hagaman, was on December 1st? A. That’s right.
“Q. Now what was that conversation again? A. Well, it was in connection with raising of Two Thousand Dollars ($2,000); the loan — I hadn’t been able to secure it, so I went to see him to find out if I was going to have to move.
“Q. All right, give the conversation. A. As I say, I went to report the • reasons I hadn’t been able to make the loan; the reasons were various ones, and I discussed them with him, and I wanted to find out if he was going to move in the matter.
“Q. And what did he say? A. He said he wasn’t if I would make an effort to secure the money, that he wouldn’t move, but would hold the matter open and wouldn’t set any definite date as to when he might move; that he would simply hold the matter open for me to further see if I could secure a loan, which I assured him I would do, and which I did.
“Q. Did he tell you what he would do if you did? A. Yes, sir, he would set the deed over and reconvey the property to me.
“Q. Now did you have any further conversation with him after December 1st — with Mr. Hagaman? A. Yes, sir, once or twice during the month of December, I reported my progress, or lack of it, to him.
“Q. And on each of those conversations, what was it you talked about? A. The same thing. I was endeavoring to make a loan and had seen various parties and hadn’t secured it, but I was still working on it.
“Q. And what was his attitude? A. The same as before; that I was to keep on making the effort to secure the loan, which I assured him I would do and did do.
“Q. And at the time this present lawsuit was filed you did tender into Court the money? A. That’s'right.
“Q. How much, Two Thousand Dollars ($2,000) ? A. Two Thousand Dollars ($2,000).
“Q. Up to the present time, Mr. Peterson, you are occupying the premises? A. That’s right.
“By the Court: Gentlemen, let me suggest this: I think the facts are that the man is living there and has possession of the property, is that true?
“By Mr. William Drennan: Yes, that’s true.
“By the Court: Now then, the question of whether or not it is unlawful, of course, will be determined by the Court.
“By Mr. McDowell: Yes, sir.
“By the Court: We will probably save time with that understanding. He is there claiming adversely, whether unlawful or not, and that is the point in issue in this case.
“By Mr. Drennan: That’s right.
“By Mr. Thomas: We' think that is a question for the Court.
“By Mr. McDowell: With that understanding, those are the facts in the case, we have no further questions.”
The judgment mentioned and described in the testimony was rendered in the district court of Wyandotte county, Kansas, on October 6, 1945, by consent of the parties thereto, who are the identical parties here. Such judgment gave the plaintiff, F. L. Hagaman, judgment for possession of the real estate now involved, stayed execution until December 1, 1945, and provided that in the event of failure of defendant, Claude L. Peterson, to deliver possession of such land on that date a writ of possession should issue ejecting him from the property.
It will serve no useful purpose to write an extended opinion on the issue raised by the appeal. Counsel for appellant with commendable candor concedes that, standing alone, an oral contract to reconvey land is ordinarily within the statute of frauds (G. S. 1935, 33-106) and unenforceable, but insists the present contract, which for purposes of the demurrer must be regarded as having been entered into in the manner and on the terms described by appellant, is without the scope of its provisions because of certain matters disclosed by the undisputed testimony. When analyzed, his claim is that since the demurrer concedes the uncontroverted facts are that Peterson was in possession of the land in question on December 1, 1945, when the contract relied on was entered into and has now complied with its conditions by paying the amount of his loan into court there has been, under our decisions, such a partial performance of the contract as to take it from under the statute and make it enforceable.
That under some circumstances performance and possession take • an oral contract for the sale of real estate, out of the operation of the statute of frauds is well settled law in this state. The two decisions (Witt v. Boothe, 98 Kan. 554, 158 Pac. 851, and Hoppas v. Bremer, 114 Kan. 609, 220 Pac. 251) — and many others could be cited — relied' on by appellant as supporting his position, so hold. However, we cannot subscribe to his claim that they are authority for his conclusion the facts testified to by him bring the contract within the rule of partial performance as announced therein or as recognized by our other decisions.
On examination of the record heretofore quoted it becomes immediately apparent that on the date of the execution of the contract in question appellant was not only then but for sometime prior thereto had been in possession of the real estate. Whether that situation had come about as a result of the 1934 agreement testified to by him, and which ceased to have any further effect by reason of the judgment rendered by consent on October 6, 1945, or be regarded as having originated as a result of such judgment is of little moment. The essential thing to be remembered is that he came into possession prior to the date of the execution of the contract. Appellant either overlooks this all-important bit of undisputed testimony or refuses to give it consideration in his application of the general principle of law on which he relies.
Long ago this court, in its consideration of what constitutes sufficient partial performance to authorize or justify a court of equity to decree a specific performance of a contract otherwise unenforceable under the statute of frauds, decided that possession of land, when relied upon by the vendee of a parol contract as having that effect, must have been taken and held pursuant to the contract in controversy and could not be referable to any other source.
See Baldwin v. Squier, 31 Kan. 283, 284,1 Pac. 591, which states:
“But to take a parol contract for the sale of land out of the statute of frauds by reason of a delivery of possession, such possession must be notorious, exclusive, and obviously in pursuance of the contract. . .”
Likewise, Hartshorn v. Smart, 67 Kan. 543, 73 Pac. 73, where it was held:
“The possession of land, to constitute a part performance of a contract invalid under the statute of frauds, must be connected with the contract and not referable to any other cause.” (Syl. ¶ 2.)
Also O’Brien v. Foulke, 69 Kan. 475, 77 Pac. 103, which holds:
“A possession, to be effective and to take an oral contract out of the statute of frauds, not only must be actual, notorious and exclusive, but it must have been taken and held in pursuance of such contract.” (Syl. If 1.)
And Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568, where the rule is stated thus:
“In a suit to enforce a parol agreement to convey land, where possession is relied upon as part performance to take the case out of the statute of frauds, the character of the possession is of the greatest importance. It must be notorious, exclusive, continuous, and in pursuance of the contract.” (Syl. ffl.)
For further recognition of the rule stated in the foregoing decisions and interesting comments respecting various situations to which it is applicable, see Eakin v. Wycoff, 118 Kan. 167, 180 to 182, incl., 234 Pac. 63, and McCracken v. Wright, 159 Kan. 615, 626, 627, 157 P. 2d. 814.
That in adhering to such legal principle this court is in line with the great weight of authority is evidenced by the following well-recognized legal treatises and textbooks: 49 Am. Jur. 745 to 747, inch, § 440; 101 A. L. R. (Anno, 923 X 5 [a] and [b]) 1011 to 1020, inch; 3 L. R. A., n. s., 807 to 813, inch; 58 C. J. 1007, 1008, §§ 203, 204 ; 2 Williston on Contracts (rev. ed.) 1430, 1435, 1436, §494; Pomeroy’s Specific Performance of Contracts (3d ed.) 286, 290, § 116, and Browne on the Statute of Frauds (5th ed.) 603, § 476.
In view of the foregoing authorities, inasmuch as the record does not reveal and it is not contended the making of lasting and valuable improvements subsequent to the contract constituted partial performance and, since it must be conceded payment alone is not sufficient to accomplish that result (Baldwin v. Squier, supra, and Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708), we have no difficulty in concluding the appellant’s own testimony wholly failed to sustain his claim he was entitled to specific performance of his parol contract on the ground of partial performance by possession. It follows the court was correct in sustaining the demurrer to his evidence.
As we conclude, although unnecessary to our decision, we feel constrained to add there is another sound reason for upholding the trial court’s action in sustaining the demurrer to the evidence. This court is committed to the doctrine that in order to maintain an action for specific performance of a contract, required by the statute of frauds to be in writing, it is necessary and essential that the contract established by- the evidence be definite and certain in its terms, conditions and purposes. (See Wing v. Mollett, 115 Kan. 116, 222 Pac. 119; Nichols v. Coppock, 124 Kan. 653, 261 Pac. 574; Bowen v. Galloway, 125 Kan. 568, 264 Pac. 1038; Haston v. Citizens State Bank, 132 Kan. 767, 297 Pac. 1061; and Barker v. Grainger, 158 Kan. 706, 149 P. 2d 625.) And where it is sought to enforce a parol contract for the sale of lands, claimed to be without the statute because of partial performance, the rule is the same.
Numerous other decisions to the same effect from this and other jurisdictions will be found in 65 A. L. R., anno. 7, 102, III j.
Careful examination of the appellant’s testimony, Which we have set forth at length for purposes of this final conclusion, convinces us that it falls far short of establishing a contract which meets the test of certainty and definiteness required by our decisions.
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The opinion of the court was delivered by
Wedell, J.:
Plaintiff prevailed in an action on an insurance policy to recover damages to crops of wheat and oats resulting from hailstorm. The defendant insurance company appeals.
Appellant does not claim there was no evidence of damage to the crops. Its sole contention is the evidence failed to establish the particular percentage of damage to each crop assessed by the special findings of the jury. The jury found the wheat crop was damaged forty-five percent and the oat crop thirty percent.
We shall first consider the evidence pertaining to damage of the wheat crop. It is, of course, elementary that on review this court is not concerned with evidence of either party that does not support or is contrary to the findings of the jury but is concerned only with ascertaining whether there is evidence which supports or reasonably tends to support the findings made. Appellant concedes this to be the rule on review. That the record before us would definitely support a finding of a larger percentage of damage to the wheat than that found by the jury cannot be doubted. Appellant, however, argues there is no specific evidence to support the percentage of damage to the wheat found by the jury and that, therefore, the finding cannot stand.
A-careful review of the record convinces us there is evidence which reasonably tends to support the finding. It is unnecessary to summarize all of such evidence. Two examinations of the damage were made. The first was made on the day following the hailstorm. The second was made twenty-five days later.
Appellee adduced evidence which, in substance, further disclosed:
A count was made by examining a given number of stalks, usually 100, in a single row; the rows were selected at random in different portions of the 100-acre field of wheat; thirty out of fifty stalks at the north side of the field were damaged; of the fifty at the north end ten were cut off entirely; farther south thirty-five or forty stalks were found broken or damaged; ten or fifteen out of the fifty stalks were cut off and thirty-five or forty stalks were bent over and bruised; some of the damaged or bruised stems might straighten up; the wheat yield was nine bushels per acre; the wheat when damaged was knee-high,.a good stand, and in the early boot stage.
In view of the foregoing and other testimony which might be narrated we think the jury was justified in considering all of the evidence and assessing the wheat damage at forty-five percent. The finding was reasonably within the range of the testimony. Under such circumstances the finding will not be disturbed. (Young v. Irwin, 70 Kan. 796, 79 Pac. 678; Balandran v. Compton, 134 Kan. 542, 546, 7 P. 2d 510; Sheftel v. Kansas City Public Service Co., 137 Kan. 79, 81, 19 P. 2d 434; Claggett v. Phillips Petroleum Co., 150 Kan. 191, 193, 92 P. 2d 52; Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d. 924.)
Does the evidence support the finding of thirty percent damage to the oat crop? Pertinent evidence adduced by appellee, in substance, disclosed:
The oat field of forty acres was located on the east side of appellee’s farm while the wheat field was located on the west side thereof; the hailstorm covered not only appellee’s land but also fields adjoining his farm on the southwest, west, across the road to the north and a farm located a quarter of a mile south; appellee had sowed over two bushels of oats to the acre during the latter part of March on.disked corn ground; there was a good stand of oats; it had jointed but had not headed; it was twelve to eighteen inches in height on May 12, the day of the hailstorm; three days after the storm the oats looked as. though a roller had rolled over them; they were'flat and lying down, some were cut off, and the ground was thick with foliage; the number of damaged stalks out of every hundred in a row was not counted because it was "impossible to get a hundred in a row to pull; the oats were down so badly they couldn’t tell much about the condition; very few of the. stalks were standing; the oats were thinned out so badly the field filled up with weeds; it was necessary to use a windrow, a power mower- with a windrow on it> to mow the oats; the crop was then picked up with a combine; the oat crop was not as advanced as the wheat crop and the damage to the oats would not be as great; it was estimated the oats made ten or twelve bushels to the acre.
Appellant argues no evidence established thirty percent damage or any other specific amount of damage to the oat crop and hence no finding of any specific amount of damage has support in the evidence. The principle of law contended for by appellant is the same with respect to the oat crop as it was with respect to the wheat crop. Appellant does, however, contend the principle on which it relies applies with even greater force to damage to the oat crop* than to the wheat crop in that there was no count made of the number of damaged oat stalks and no testimony of any percent of damage thereto. The principal cases relied upon by appellant are U. P. Rly. Co. v. Shannon, 33 Kan. 446, 6 Pac. 564; Railway Co. v. Davis, 64 Kan. 127, 67 Pac. 441; Telegraph Co. v. Morris, 67 Kan. 410, 73 Pac. 108; Campbell v. Brown, 85 Kan. 527, 117 Pac. 1010; City of Wichita v. Ferriter, 126 Kan. 648, 270 Pac. 592; Billings v. Aldridge, 133 Kan. 769, 3 P. 2d 639; Sheftel v. Kansas City Public Service Co., 137 Kan. 79, 19 P. 2d 434.
We adhere to the principles of law enunciated in those cases. We think the evidence here, however, was of such character as to permit the jury to determine the amount of the damage to the oats. This was not á case in which the issues j oined by t]he pleadings' required a verdict for any specific amount of damage or no damage. The evidence probably warranted an even larger verdict. Under such circumstances there is no denial of substantial justice to appellant in affirming the judgment and it is in no position to complain. (G. S. 1935, 60-3317; Graves v. Negy, 114 Kan. 373, 219 Pac. 286; Bryant v. Glenn, 139 Kan. 660, 664, 33 P. 2d 167; Manhardt v. Estate of Sheridan, 150 Kan. 264, 269, 270, 92 P. 2d 76.)
It is well to remember the crops at the time they were insured and at the time of damage were both immature. It was impossible for the jury to fix the value of either crop with absolute exactness immediately before the hailstorm and immediately thereafter. As to the Oat crop there was positive testimony it was impossible to make a count of damages on a percentage basis by reason o'f its condition caused by the hailstorm. The policy is not set forth and it is not contended it required ascertainment of the damage by any fixed method.
While we need not rest our decision of affirmance on another point it may be well to say the instructions are not before us. The evidence of the parties as to damage was highly conflicting. The jury may have been instructed that in view of the conflicting testimony and all the circumstances it was its province to reconcile the conflict and that in so doing it could call into exercise its own experience and general knowledge in the premises. (Young v. Irwin, supra; Johnson v. Gas Co., 90 Kan. 565, 570, 135 Pac. 589; Smith v. Railroad Co., 95 Kan. 451, 460, 461, 148 Pac. 759.) It is not contended the jury did not follow the instructions given. There is no objection to the instructions and for appellate purposes they, of course, in the absence of objections, become the law in a civil ease.
Reversible error does not appear in the record before us and the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to enforce a contract for the conveyance of real estate. Defendant’s demurrer to plaintiff’s amended petition was overruled and he appeals.
For present purposes, it may be said that the amended petition alleged that-the defendant had formerly owned the northeast quarter of section 1, township 34 south, range 2 east, in Sumner county, hereafter called the real estate, a,nd under date of July 1, 1934, had executed two described mortgages to secure payment of $2,200' and $1,100, and that the last mortgage was released of record on January 15, 1944. In 1938, the defendant and his wife conveyed the real estate by warranty deed to R. C. Hayes and Lovie J. Hayes, subject to the mortgages, and in the same year the last named persons conveyed the real estate by warranty deed to the plaintiff, subject to the mortgages. Payments on the mortgages became in default and foreclosure was threatened and as a result of conversations between plaintiff and defendant, on February 13, 1943, they entered into a contract, the general terms of which are pleaded. Copies of the contract and of the deed therein mentioned were made part of the amended petition and attached to it as exhibits.
The contract was dated February 13, 1943. It is not artistically drawn but in general it was provided that if Axley, party of the second part, would make the payments and perform the covenants to be performed by him, Alice Clark, party of the first part, would convey the real estate to him by warranty deed subject to the mort-. gage loan. Second party agreed to assume the loan and make the payments necessary to put the loan in good standing and to pay the delinquent taxes and to then endeavor to sell the land and divide all profits with first party on any sale made within two years from date “and first party [Clark] is also to be allowed to make sale of said land and if she sells the same then first party is to be paid his [her] part of the profit of said sale, if made within, two years, 'and second party [Axley] will, then ■ make a deed to the party buying said land, at any bona fide sale.” Provisions of the contract as to placing deed in escrow and for its delivery to Axley need not be reviewed.
The deed was dated February 13,1943, and was a wárranty deed from Alice Clark, a widow, to Eddie Axléy, conveying the real estate, the grantee assuming the mortgage loans and delinquent taxes.
It was further alleged in the amended petition that on January 25, 1945, and within the two years provided in the contract, plaintiff entered into a contract of sale with one W. E. Cradit, the contract and $200 earnest money being placed in escrow. It was alleged the sale was a bona fide one. A copy of the contract was attached as an exhibit and made part of the petition. The contract of sale is noted briefly. It stated that under the agreement between plaintiff and defendant, Mrs. Clark had the right to sell the real estate and that she agreed to sell the real estate and second party (Cradit) agreed to purchase it for $4,500, and that the contract and $200 earnest money should be placed in escrow in a named bank. Mrs. Clark agreed to procure from Eddie Áxley, as provided by the terms of the .agreement between them, a warranty deed executed by Eddie Axley and wife, which would convey marketable title. Reference was made to an abstract of title • that the property was subject to a mortgage and that the $4,500 was not over and above the mortgage but included it. Other provisions are not of present interest.
The amended petition further alleged that plaintiff caused to be served upon defendant a notice to quit the real estate and a demand for a deed, and requested defendant to meet her in order that they might calculate the profits from the sale and divide the same as agreed upon between them. Copy of this document was attached. Plaintiff further alleged that defendant had paid certain taxes, but she did not know the exact amount he paid the mortgagee, but that there was a substantial profit and she was entitled to one-half thereof under the agreement, and that defendant had refused to fulfill his part of the agreement.
Under a second cause of action plaintiff incorporated the allegations of her first cause of action, and alleged further that the sale of the real estate under her contract with Cradit was a bona fide sale and she was entitled to have her contract with defendant spécifically enforced, and that defendant had failed and refused to make a deed to Cradit. She prayed judgment on her first cause of action for one-half of the profits from the sale as calculated by the court in accordance with the terms of her contract with defendant, and on her second cause of action for a decree of specific performance of the contract between herself and the defendant and that defendant be ordered to execute a deed to Cradit within a time to be fixed by the court and on failure of defendant to perform, the court, by its judgment and decree, vest title in Cradit upon his payment of the purchase price, and that she have such other relief as equity and good conscience afford.
To this amended petition defendant'filed a motion, the purpose of which was to have plaintiff allege whether defendant was a single man when he contracted with her and whether defendant and his family.were occupying the real estate as their homestead, whether Axley’s wife was a party to the contract between plaintiff and defendant; whether plaintiff was acting as agent of Cradit, and to have certain allegations stricken. This motion was denied and defendant then filed his demurrer for the reason the petition stated no cause of action; that any cause of action stated was barred by the statute of frauds and the homestead statutes, followed by seven specifications to the effect that defendant’s wife did not sign the contract with plaintiff; that no cause of action for damages was stated; that as to the second cause of action Cradit and not plaintiff was the real party in interest and that neither defendant nor his wife had entered into any contract with Cradit, nor any contract in which Cradit’s name appears. This demurrer was overruled and defendant perfected his appeal to this court. His specifications of error coyer the trial court’s ruling on the motion and on the demurrer.
It may be observed that at this stage of the proceedings we are interested in the ruling on the motion only as it affects the liberal or strict construction to be given the allegations of the amended petition when tested by a demurrer.
Appellant first contends that the facts pleaded show that appellee is barred by the statute of frauds, because appellant’s wife was not . a party to and did not sign the contract between appellee and appellant, dated February 13, 1943, and that appellant’s wife had an inchoate interest in the real estate. In our opinion this contention cannot be sustained. The contract referred to was made at a time when appellee, not appellant, was the owner of the real estate, and it provided for a deed to appellant which was made the same day. In determining the rights of the parties both the contract and deed had to be considered. (In re Estate of. Garden, 158 Kan. 554, 148 P. 2d 745; Steele v. Nelson, 139 Kan. 559, 32 P. 2d 253; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594; Farmers Equity Coöp. Ass’n. v. Tice, 122 Kan. 127, 251 Pac. 421; Hudson v. Riley, 104 Kan. 534, 180 Pac. 198; and cases cited therein.) Any right that appellant’s wife would or could receive would be subject to the conditions under which appellant received the title.
It is also suggested that the contract is unenforceable under the statute of frauds because Cradit, who later purchased from appellee, did not sign the contract, and our attention is directed to Banta v. Newbold, 108 Kan. 578,196 Pac. 433, where it was held that a writing to be effective must not only be signed by the party to be charged but designate the party in whose favor he is to be charged. The instant contract satisfies that requirement for it is signed by appellant, who is to be charged and by appellee in whose favor he is to be charged. On the assumption appellant was correct on his first contention he further contends the reference in the contract between appellee and Cradit to the contract between appellant and appellee did not supply the claimed defect, citing Riffel v. Dieter, 159 Kan. 628, 157 P. 2d 831. We mention this latter contention only that it may not be said to have been overlooked. It cannot be sustained under the situation here existing.
It is also suggested by the appellant that under the facts alleged plaintiff may not recover because of our homestead laws, and our attention is directed to the rule that specific performance for the conveyance of a homestead cannot be compelled where the husband alone signed the contract without the knowledge or consent of the wife, citing Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; Thompson v. Millikin, 102 Kan. 717, 172 Pac. 534; Tucker v. Finch, 106 Kan. 419, 188 Pac. 235; Banta v. Newbold, supra. The rule' stated is correct but its application here is not. At the time the deed from appellee to appellant, dated February 13, 1943, was executed, and the contract of the same date between the same parties was made providing for delivery of the deed to appellant upon his performing his obligations under the contract, the real estate belonged to appellee, and- appellant and his wife had no homestead interest in the .real estate. At the time the contract was made the wife of appellant had no homestead rights in the real estate, she was not a necessary party to the contract between appellee and appellant, and the fact that appellant and his wife may, after the deed to him was delivered, have established a homestead on the real estate, did not make the previously executed contract unenforceable under any homestead law theory.' The rights of appellant’s wife could rise no higher than their source and were subject always to the conditions under which appellant obtained title to the real estate and as fixed by the contract of February 13, 1943.
With reference to the second cause of action, appellant argues that appellee seeks to enforce a contract for the benefit of a third person, and that under the contract of February 13, 1943, appellee was only an agent for appellant, and as such agent could make no contract binding upon appellant as her principal, citing Cox v. Chalfant, 105 Kan. 127, 181 Pac. 548; Firestone v. Jarvis, 133 Kan. 562, 1 P. 2d 250; Orr v. Rieger, 133 Kan. 558, 300 Pac. 1074. It is not necessary that we discuss these cases, for as we construe the contract presently involved, it cannot be said that appellee was acting in any capacity as agent of the appellant. Under the contract she reserved to herself an absolute right to make a bona fide sale within a period of two years, and under her allegations that is what she did. Under her contract with the appellant, he agreed to convey to her purchaser, and so far as the allegations of her petition are concerned there appears to be no reason why appellant should not perform. Appellant does not follow out at any length his contention that the second cause'of action is not for the benefit of appellee but for the benefit of a third person. It appears from the contract of February 13,1943, that appellee had a right to sell the real estate, and under that contract upon sale made, she was to receive an amount subject to calculation under the contract. Unless she can compel the appellant to perform, she loses the benefit of the contract. And it may be remarked that unless she can compel appellant to perform his contract with her, she ,may be subject to an action on her contract with Cradit. The fact, however, that Cradit will benefit from appellant’s performance of his contract with her does not mean that such performance is not for. her benefit, under the contract.
We conclude the trial court did not err in its ruling on the demurrer and it is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a prosecution for burglary in the first degree. Defendant was convicted and appeals.
The pertinent portion of G. S. 1935, 21-513, under which appellant was prosecuted provides:
“Every person who shall be convicted of breaking into and entering, in the nighttime, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein. . . .”
Appellant argues the evidence failed to establish (1) the burglary was committed in the nighttime; and (2) that at the time of the burglary there was a human being in the dwelling house.
We do not deem it necessary to narrate all of the evidence relative to the time element. The offense was alleged to have been committed in Topeka, Shawnee county. Appellant’s own evidence was that the records of the weather bureau office in Topeka indicated the sun set at 7:52' on June 24, 1946, the day of the alleged offense. Appellant’s witness, a city, police officer, dispatched a radio call to 1601 Harrison, the place of the alleged burglary, at 8:41 p.m. Other police officers, witnesses of the appellee, testified they received the radio dispatch at 8:41 p.m. while in their police car and they were at the time only nine blocks from the scene of the alleged burglary; that their car lights were turned on at the time; they were unable to discern human features without lights; they used the spotlight for that, purpose and when they arrived at 1601 Harrison they were unable to discern the features of appellant without use of a flashlight.
Other testimony of appellee relative to the time of the burglary ranged from 8:00 to 8:30 and 9:30 p.m.; the state’s witness who had knocked appellant down and wrestled with him after he had come out of the dwelling testified it was too dark to see appellant’s facial features sufficiently to recognize him and that he was able to discern his features only after the police car arrived and threw its lights onto appellant.
In the absence of a statutory definition of nighttime it appears the evidence was sufficient. In 9 Am. Jur., Burglary, § 18, it is said:
“At common law, as has been stated, the burglarious act must be committed in the nighttime. This is not confined to the exact period between sunrise and sunset. The rule is thus laid down by Blackstone: ‘If there be daylight or crepusculum enough, begun or left, to discern a man’s face withal, it is not burglarly. But 'this does not extend to moonlight.’ This rule of Blackstone is substantially supported in those states where there is no statutory definition of nighttime. The fact that features may be distinguishable by reflection from the street lights on the snow- or by moonlight does not affect the question of time with respect to burglarly.”
In. 9 C. J.,'Burglary, § 28 (2), it is stated:
“In the absence of statutory provision to,the contrary, the ‘night time,’ within the definition of burglarly, is as was held at common law, that period between sunset and sunrise during which there is not daylight enough by which to discern a man’s face. In some jurisdictions, however, nighttime is defined by the statutes, the definitions varying in the different jurisdictions.” (p.1021.)
See, also, 12 C. J. S., Burglary §§ 14, 60.
Appellant emphasizes certain testimony of the state which he contends shows the offense was not committed in the nighttime. Granting the existence of such evidence it remained the province of the jury to resolve the conflict and if, as here, the jury, after a consideration of all the evidence and under proper instructions, was convinced beyond a reasonable doubt the burglary was committed in the nighttime courts will not disturb the verdict. It is not contended the instructions were erroneous or inadequate.
Appellant also asserts it was not shown that at the time of the burglary there was a human being in the dwelling house. Whether the contention is sound depends upon whether the front porch, under our statutes and the circumstances to be narrated, constituted a part of the dwelling house.
The building was a duplex. It contained a large front , porch which, except for a few feet, ran the entire length of the east side of the dwelling. The porch was not screened or glassed. It was surrounded by a' railing except for that portion where the front steps led onto the porch. The porch was roofed and was permanently affixed to the dwelling house. The porch contained furniture and other items for the use of occupants of the home. It was a warm night. The porch was used and maintained a great deal of the time during the summer months as a part of the home. The Lawns, occupied the downstairs and the upstairs was occupied by William R. Palmer and his wife. The latter were not in the building at the time of the burglary. The Lawns were at home. By reason of the temperature they and their guests were occupying the front porch. The'porch was customarily so occupied during the summer months.
Was there a human being in the dwelling house within the contemplation of the burglary statute? With respect to this inquiry we are not left entirely without legislative assistance. ,G. S. 1935, 21-519, provides:
“No building shall be deemed a dwelling house or any part of a dwelling house, within the meaning of the foregoing provisions, unless the same be joined to or immediately connected with, and a part of, a dwelling house.”
It is true porches are not expressly named in the above statute. While all porches may not properly be classified as buildings it is a fact that porches ordinarily are, and this, porch was “ . . . joined to or immediately connected with, and a part of, a dwelling house.” In many of our Kansas homes porches are furnished as lavishly as some rooms in the dwelling house. In many more homes our porches are comfortably furnished for both recreational and practical dwelling house purposes. They perform numerous functions of a dwelling house. They, instead of the living room, recreation-room, study or library, are the portion of the dwelling frequently used for social functions. They are often employed as a dining room and this is especially true during the hot summer weather. Their use as sleeping quarters during the hot summer months is common and this is true irrespective of whether they are screened, glassed or open. In fact,, most porches in Kansas, as the porch in the instant case, are a structural part of the dwelling house and many of them serve dwelling-house functions. In short our porches ordinarily constitute an integral part of the dwelling house.
Had the front porch of this dwelling been screened and appellant had broken the screen or the lock on the screen door in the nighttime with the intent to rob a person sleeping thereon would we say the robbery was not committed in a part of the dwelling house? We do not think so. In the instant case appellant broke into the rear of the dwelling house on the first floor. Supposing appellant had come through the house and robbed the persons on the unscreened porch. Would we say they were not robbed in a part of the dwelling house when that was the part of their home they were using for dwelling purposes at the time? We do not think so. Was the front porch, under the circumstances any'the less a part of the dwelling because appellant may have intended to commit a felony in some other part of the dwelling? We do not think so.
The increased punishment for burglary in the first degree when a human being is at the time in the dwelling is provided by reason of the greater danger to human life than exists in the absence of a human being. It seems to us it would be difficult, if not impossible, to reasonably and logically conclude such danger would be greater if a human being were on the second or third floor of the dwelling, while the first floor of the dwelling was being burglarized, than it would be if a human being were on the porch, which in reality formed a portion of the first floor of the dwelling.
In the case of In re Brenner, 151 Kan. 788, 100 P. 2d 688, a majority of this court held:
“. . . that a defendant who plead guilty to stealing merchandise ‘from a baggage truck standing on the platform’ of a railroad station ‘within three feet of the wall of said station and under the canopy of said station extending over said platform’ was properly charged, convicted and sentenced under the provisions of section 21-1909, G. S. 1935, which provides the penalty for larceny ‘committed in any railway depot, station house/ etc.” (Syl.) (Emphasis supplied.)
It is true that was a larceny and not a burglary case and that a dwelling house was not involved. The case is not cited as being conclusive of the issue now under consideration but only as indicating that a building, a railway depot in that case, may embrace more than the inside portion of the building enclosed by walls. Appellant cites some cases from other jurisdictions on the proposition that ordinarily a porch is not a building or a house. We recognize the force of those decisions. With proper respect and regard for them and other similar decisions that might be cited we have upon careful consideration concluded that this porch, under our statutes and the facts in this case, should be regarded as being a part of the dwelling house for the purpose of determining whether a human being was in the dwelling house at the time of the burglary.
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The opinion of the court was delivered by
Burch, J.:
The appeal in.this case is from a judgment fixing a fine and punishment for indirect contempt arising by reason of the alleged violation of an injunction which prohibited the accused from practicing medicine and surgery. The indirect contempt proceedings were brought pursuant to G. ,S. 1935, 20-1204.
The first question presented is whether the word “thereupon” in the above-cited statute requires that when a defendant is cited to show cause why he. should not be accused and tried for contempt it is necessary, at the time the defendant appears in court in obedience to the citation, to file immediately and without any delay, a formal accusation against him. The second question presented is, when one is enjoined from engaging in the practice of medicine and surgery, may he be punished for contempt without accusation and proof being made by the state that he unlawfully performed surgery by reason of his having failed to obtain, subsequent to the issuance of the injunction, a license to practice medicine and surgery before he performed a surgical operation? In other words, was the burden upon the state to plead and prove that the accused was practicing unlawfully because he had not obtained a license before he violated the injunction?
The petition in the original action, which was brought to enjoin the defendant from the unlawful practice of medicine and surgery, alleged that the defendant was not and nearer had been licensed to practice medicine and surgery in Kansas; that on three occasions he had performed surgical operations for a fee and had dispensed medicine and drugs to patients, and that unless he was enjoined he would continue to practice medicine and surgery in violation of the laws of Kansas. After some preliminaries the defendant appeared and consented to a decree of injunction which ordered that the defendant should be permanently enjoined from practicing in the state medicine and surgery and drug therapy from and after February 1, 1945. On November 27, 1945, a motion was filed by Patrick J. Warnick as county attorney of Sedgwick county, Kansas, which recited the injunction decree and that in violation thereof the defendant, on September 14,1945, had performed a surgical operation on a certain party named therein. The motion requested that a citation be issued directing the defendant to appear on a day certain and to show cause why he should- not be proceeded against and punished for contempt. The court made an order citing the defendant to appear in court on December 3, 1945, to “show cause if any you may have, why you should not be accused, and placed upon trial, and punished for contempt of court.” The defendant appeared at the time commanded by the citation but made no showing at such time as to why he should not be accused. As a consequence the court entered an order providing therein that the plaintiffs file written accusations against the defendant within five days and that the defendant file his pleadings to said accusations within twenty days after the filing of the accusations. Within five days thereafter an accusation was filed formally charging the defendant with contempt of court arising by reason of his performing the sur gical operation hereinbefore referred to. Twenty days after the accusation was filed the defendant filed a, motion to strike it from the files. One of the reasons ■ given in support of the motion to quash was “that said accusation was not filed on the occasion and at the time required by G. S. 1935, 20-1204 and is therefore of no force or effect”; another reason asserted in support of such motion was that the accusation did not state facts sufficient to charge the defendant with any contempt of court. All other contentions raised by the motion to quash and by other motions filed in the case have been abandoned in this appeal except insofar as they may be germane to the two questions presented by the appeal. On May 6, the defendant filed an answer to the accusation of contempt, in which he denied generally and specifically every material allegation in the accusation except that the injunction had been issued. The answer alleged many other grounds of defense but it did not allege that the defendant, subsequent to the issuance of the injunction and prior to September 14, 1945, had obtained a license to practice medicine and surgery in the state. Trial on the issues thus joined by the pleadings occurred on June 18, 1946. In connection therewith the defendant objected to further proceedings upon all of the grounds set forth in the motions, including those specifically set forth herein. The defendant's objections were overruled and evidence was introduced which established that the defendant had performed the surgical operation on September 14 as charged in the accusation. No evidence was introduced, however, which proved that the defendant had not obtained a license to practice medicine and surgery before he performed the alleged unlawful operation. The defendant offered no evidence but at the conclusion of the evidence offered by the state filed a motion for discharge predicated upon the contention that the state had failed “to’ prove that the defendant ... is engaged in the unlawful practice of medicine or has engaged in the unlawful practice of medicine since the entry of the decree . . .” The trial court overruled the motion and entered judgment and sentence which provided “that the defendant pay a fine of $200 to the clerk of this court for the benefit of the common school fund of- this county and that he be committed to the county jail of Sedgwick county, Kansas, for a period of sixty days; and that he pay the costs of the prosecution and that he stand committed until such fine and costs shall be paid.” The judgment and sentence were stayed for a period of ten days to permit the defendant to file a stay bond in the amount of $500 pending the defendant's appeal to this court. Notice of appeal and filing of the bond followed.
Before giving consideration to the questions presented, we digress to observe that this court is not concerned in this appeal with any questions pertaining to the propriety of the issuance of the original injunction. Questions relative to the merits of any controversies which may exist among different schools of medicine likewise are not involved in the consideration of this case.
1. Does the word “thereupon” as used in the statute (G. S. 1935, 20-1204) mean “immediately”? The statute reads:
“That upon the return of an officer on process or an affidavit duly filed' showing. any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person be arrested and brought before the court or judge in chambers; and thereupon■ a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed, and the accused required to answer the same, by an order which shall fix the time therefor and also the time and place for hearing the matter; and the court or the judge in chambers shall, on proper showing, extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt. . . .” (Emphasis supplied.)
Attorneys for the defendant cite many of our cases holding, in substance, that the word “thereupon” has a meaning which is equivalent to “immediately” or “without delay or lapse of time.” To such effect they cite Dewey v. Linscott, 20 Kan. 684, 687; Hill v. Wand, 47 Kan. 340, 27 Pac. 988; Morrison v. Wells, 48 Kan. 494, 29 Pac. 601; Humbarger v. Humbarger, 72 Kan. 412, 83 Pac. 1095; Hallam v.Huffman, 5 Kan. App. 303, 48 Pac. 602. In some of the cited cases it was well recognized, however, that the word “thereupon” has at least two meanings. Its meaning is not always limited to the equivalent of “immediately,” but the word often refers to the next step of procedure following the performance of conditions precedent. It has been defined as meaning “upon this, or that.” It is used for the purpose of referring to a cause or condition precedent. (See Dewey v. Linscott, and Hill v. Wand, supra.) Reference to any dictionary, recognized as reliable, will confirm the fact that the word is -frequently used to denote a following or consequence of preceding events. When considered in statutory interpretation the word often is construed as referring to a succession of events in the order or sequence of their' performance rather than regarded as an adverb of time. (See Porphyry Paving Co. v. Ancker, 104 Gal. 340, 37 Pac. 1050; Cal. Academy Sciences v. Fletcher, 99 Cal. 207, 33 Pac. 855; People v. Wascher, 349 Ill. 114,181 N. E. 606; In re Opinion of the Justices, 309 Mass. 609, 35 N. E. 2d 5; Decker v. City of Toledo, 56 Ohio App. 344,10 N. E. 2d 955; Denver, W. & M. Ry. Co. v. Adkinson, 28 Okla. 1, 119 Pac. 247; and Yuma Water Ass’n v. Schlecht, 262 U. S. 138, 43 Sup. Ct. 498, 500, 67 L. Ed. 909.)
Since the word “thereupon” has at least two meanings and actually several more, we must consider which of its meanings was intended by the legislature when the statute under consideration was passed. Analysis of the statute does not lead us to the conclusion that it was ever the intent of the legislature to make time the essence of each step of procedure to be followed in proceedings pertaining to indirect contempt of court. ■ The statute does not attempt to set forth how soon, after an affidavit is filed asserting that, a person is guilty of indirect contempt, the writ of attachment or other lawful process must follow; neither does the statute fix the time in which .the accused shall be required to answer. It leaves decision upon that question to the discretion of the trial court and also leaves to its discretion the time and place to be fixed for the hearing and provides that the court may extend the time so as to give the accused a reasonable opportunity to purge himself of the contempt. Obviously, it was not the intent of the legislature, in enacting the statute, to be mandatory in determining the time in which all the various steps in the proceedings should occur.
Attorneys for the defendant advance the argument that the contempt sought to be charged was a criminal contempt and that, therefore, technical defenses, are available and that the statute must be followed with a high degree of strictness. In support of such contention they cite Holloway v. Water Co., 100 Kan. 414,167 Pac. 265; Smith v. Clothier, 113 Kan. 47, 213 Pac. 1071; Hartman v. Wolverton, 125 Kan. 202, 263 Pac. 789; and State, ex rel.,.v. Miller, 147 Kan. 242, 75 P. 2d 239. We will give reported consideration to the argument. In the case of State v. Fishback, 79 Kan. 679, 100 Pac. 656, we held that an accusation in a contempt proceeding need not possess the formalities of an indictment or an information. We also held in State ex rel., v. City of Coffeyville, 90 Kan. 164, 167, 133 Pac. 711, that supplemental charges could be filed in.a contempt proceeding provided the respondents were hot denied an opportunity to meet them. In 1910 this court held in Butler v. Butler, 82 Kan. 130, 107 Pac. 540, that the .filing of an accusation could be waived. If accusations can be waived, and.no doubt they often are, it is not practical to require that they be prepared in advance. The legislature apparently has approved such a construction of the statute by not changing its wording in such respect during the twenty-five years which have followed since the decision in the last-cited cáse. Also, it may be observed that indirect contempt proceedings are not always regarded as criminal in their nature. (See 12 Am. Jur. 433; and Heatherman v. Kingman County Comm’rs, 132 Kan. 590, 296 Pac. 707, and Alster v. Allen, 147 Kan. 489, 495, 77 P. 2d 960.) There is no necessity in this appeal for us to pass upon the question whether the defendant was guilty of the commission of a crime or merely guilty of civil contempt.
Even in criminal proceedings this court is not concerned with technicalities which do not affect the substantial rights of the parties. (See G. S. 1935, 62-1718, and cases cited thereunder; and, also, State v. Willhite, 161 Kan. 113, 166 P. 2d. 562.) Can it be said that the substantial rights of the accused in this case were affected by the five-day delay in the 'filing of the accusation? The motion filed prior to the citation and to the filing of the accusation set forth practically the same information as was later included in the accusation. Therefore, the defendant was adequately informed by the motion and by its reference to the injunction that he was to be accused of contempt because he had performed an operation in violation of the injunction. He cannot be heard to say that he was not familiar with the provisions of the injunction because he had consented to its issuance. The defendant was found guilty of contempt only because he had performed a surgical operation in violation of the injunction. All other charges, later embodied in the' accusation, were either abandoned or not sustained. The delay of five days in filing the accusation actually allowed the‘defendant more time in which to consider any defense he might have had to the accusation which was to be filed against him. In so far as the substantial rights of the defendant are concerned, the citation for appearance might just as well have commanded the defendant to appear five days later and in such event the defendant certainly would not have been in a position to complain because he. had not been cited to appear five days earlier. Nothing in connection with the delay handicapped the defendant in the preparation of his defense or penalized him in any manner. Therefore, we are unable to discern wherein his substantial rights were prejudicied by any technical error which it is asserted occurred by reason of the failure to file the accusation at the moment the defendant appeared in obedience to the citation. Moreover, the record does not disclose that the accused made any objection at the time of its issuance to the order of the court which required the accusation to be filed within five days rather than forthwith. If thé objection had been made at such time, probably the accusation could have been filed forthwith. We do not decide whether his failure to make the objection at such time resulted in the objection beihg waived because such a question has not been argued and briefed by the parties. We conclude that under the statute being given consideration the word “thereupon” should not be construed as meaning “immediately” and that the accusation may be filed within a reasonable time after the defendant appears following citation or other process. We also hold that five days is such a reasonable time 'and that such delay in this case did not impose upon the substantial rights of the accused.
2. The second point urged by defendant is predicated upon two principal contentions. The first, in effect, .is that the original injunction was erroneous because it was too broad in that it enjoined the defendant from practicing medicine and surgery when it should have enjoined him only from unlawfully practicing the same. The defendant did not appeal from the injunction order, however, and could not have done so because he had consented to its issuance. Since the trial court had jurisdiction of the defendant and of’the subject matter, any irregularities in the original injunction are not subject to collateral attack. (State, ex rel., v. Pierce, 51 Kan. 241, 32 Pac. 924; State v. Fishback, supra, Howat v. Kansas, 258 U. S. 181, 42 Sup. Ct. 277, 66 L. Ed. 550; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Swift & Co. v. United States, 276 U. S. 311, 48 Sup. Ct. 311, 72 L. Ed. 587; Fleming, v. Warshawsky & Co., 123 E. 2d 622; Fleming v. Alderman, 51 F. Supp. 800; and Wyman v. Bell, 96 Colo. 223, 41 P. 2d 242.) The cited cases are also authority for the rule that an injunction order which is not void but is merely irregular or. erroneous must be obeyed unless it is set aside by direct proceedings as distinguished from collateral. (See, also, 17 C. J. S. 21, and 43 C. J. S. 1006.)
The final contention of the defendant is that even though the injunction prohibited him from practicing any medicine or surgery, it must, nevertheless, be construed as only prohibiting him from practicing medicine and surgery unlawfully because the statute authorizing the issuance of an injunction in this type of case (now G. S. 1945 Supp., 65-1010) is limited in its application to the issuance of injunctions against the unlawful practice of medicine and surgery. The defendant, therefore, strenuously argues that it was the duty of his accusers to prove that he was practicing medicine and surgery unlawfully and that, consequently, the failure to prove that he had not obtained a license was a fatal omission. In other words, it is contended, in substance, that the- state having failed to negative a defense, a presumption of innocence therefore prevailed, and that the state failed to prove beyond a reasonable doubt that the defendant was guilty of indirect contempt because the evidence did not establish that the defendant was acting unlawfully. We are unable to find any merit iif the contention. Technically, under the decisions hereinbefore cited, the defendant would have been guilty of indirect contempt even if he had obtained a license before he performed a surgical operation because the injunction had not been dissolved and it prohibited him from practicing medicine and surgery regardless of whether he did so lawfully or otherwise.
If we ignore the aforestated technical rule, we are again confronted with the realization that the substantial rights of the defendant were not prejudiced by the failure to prove, as a part of the state’s case, that he had not obtained a license to practice medicine and surgery. The petition in the original injunction clearly set forth that the defendant did not have a license. As herein-before stated, he had consented to the issuance of an injunction justified by that fact. He had been fully informed by the petition as to the fundamental basis of the complaint against him. Unquestionably, he would have opposed the injunction if he had held a license. When he appeared in obedience to the citation in the indirect contempt proceedings, he could then have advised the court that there was no occasion to accuse him of indirect contempt if he could have shown that he had obtained a license after the issuance of the injunction. The motion for citation set forth that he had violated the injunction which, as aforesaid, was predicated upon his failure to have a license. Also, we again observe that the motion filed prior to the citation and prior to. the filing of the accusation set forth practically the same information as was later contained in the accusation. Therefore, the defendant, at ■all times throughout the proceedings, was adequately advised that all such proceedings were predicated primarily upon his failure to have a license. We cannot conclude, in such circumstances, that the substantial rights of the defendant were affected by either the omission of proof that he had not obtained a license or the failure to allege such fact in the accusation. Even an indictment or information may not be quashed in such circumstances. . G. S. 1935, 62-1011, reads:
“No indictment or information may, be quashed or Set aside for any of the following defects: . . . Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
(See, also, G. S. 1935, 62-1718, hereinbefore cited.) Even if we concede that indirect contempt proceedings have, in some cases, criminal aspects, though it is more accurate to state that each case is sui generis in that it is within a class of its own, nevertheless, there is a significant difference between proceedings for indirect contempt and ordinary criminal proceedings. Under the statute (G. S. 1935, 20-1204) the accused is required to answer the accusation and, therefore, issues are joined by pleadings. In this case, since the answer filed by the defendant did not allege that the defendant had obtained a license after the issuance of the injunction, that issue was not before the court and it was not incumbent upon the state to anticipate a defense which was not pleaded.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendant appeals from the judgment of the trial court dissolving a partnership and settling the rights of the parties. We have concluded this is a fact oase. The findings of the trial court are supported by the evidence and the judgment should be affirmed.
On April 21, 1970, the parties to this action formed a partnership to conduot a construction business. John E. Craig and Raymond L. Carney, d/b/a Carney & Craig Construction Company, filed a petition seeking a declaratory judgment to adjudicate a dispute between the parties, alleging the partnership had been dissolved as of March 1, 1971. Defendant answered, denying the partnership had been dissolved as of March 1, and filed a counterclaim praying for return of invested money, an accounting, an equal share of the partnership, an allegation of a transfer of equipment by plaintiffs, and a jury trial. Plaintiffs answered, praying that the court interpret the partnership agreement, adjudicate the dispute, and render a declaratory judgment.
The trial court filed a memorandum of decision on January 26, 1972, finding that the partnership had been mutually disolved, effective February 28, 1971, and that defendant was to receive from the partnership the following:
(a) The sum of $20,000;
(b) Six percent interest on said $20,000 from October 28, 1970, to March 1, 1971; and
(c) Ten percent of all profits, if any, as determined by the certified audit from April 21, 1970, to March 1, 1971.
Defendant appealed the decision, and this court reversed in Craig v. Hamilton, 213 Kan. 665, 518 P. 2d 539. Reference may be made to that decision for additional facts and the basis for the reversal.
The matter was again tried and the trial court announced in an oral decision that plaintiffs and defendant entered into an oral agreement for dissolution of the partnership. The agreement as determined by the court was that defendant was entitled to any unpaid interest at the rate of six percent on capital that was invested by him. Defendant was entitled to ten percent of the net profits of the corporation. He was entitled to have his capital investment returned to him. The court further found that the agreement was not predicated upon an instrument in writing to be drawn and signed, but the agreement was to be formalized for the protection of the parties. Defendant again appeals.
Defendant contends the trial court erred in determining he had agreed upon terms for dissolution when this court in the previous appeal determined he had not agreed to the dissolution terms. Defendant has no basis for saying this court found he had not agreed to dissolution terms. First, this was not an issue in the previous appeal. No finding was made by the trial court and this court had nothing before it to review. Second, it is not the function of an appellate court to make findings of fact and when an appellate opinion merely recites facts to form a background for an understanding of the reviewable issues, it cannot be construed as making findings of fact. (Bayless v. Wheeler-Kelly-Hagny Trust Co., 153 Kan. 81, 109 P. 2d 108.) We find no merit in this argument.
Defendant next contends the trial court erred in not determining the meaning of thé ambiguous contract as required by the opinion in the previous appeal. In the previous appeal we concluded the trial court construed an unambiguous contract as a basis for its decision. Whether an agreement had been made in connection with the dissolution of the partnership was not mentioned or determined by the trial court. The reversal was based on our conclusion that the partnership agreement was ambiguous and that the trial court erred in failing to permit evidence to be introduced on the issue of the rights of defendant in the partnership profits and assets.
We could not anticipate on a second trial that the court would find a binding agreement had been made 'between the parties in connection with the dissolution. We cannot say the trial court erred in its conclusion if evidence was admitted to support such an agreement. Neither can we say the trial court erred in not determining the terms of the partnership agreement when such a determination became immaterial in view of the conclusion that an agreement was reached in connection with the dissolution. We find no merit in defendant’s argument.
Finally, defendant contends the agreement of dissolution was not supported by sufficient competent evidence. In considering whether the findings of a trial court are supported by substantial competent evidence, this court has repeatedly held that it is required to consider the evidence in its most favorable aspect in relation to the parties who prevailed in the court below. (Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 522 P. 2d 438; Smith v. Union Pacific Railroad Co., 214 Kan. 128, 519 P. 2d 1101; Matthews v. Travelers Insurance Co., 212 Kan. 292, 510 P. 2d 1315.)
When findings of fact are attacked for insufficiency of evidence, or as being contrary to the evidence, the duty of the appellate oourt extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below. (Union National Bank & Trust Co. v. Acker, 213 Kan. 491, 516 P. 2d 999; Armstrong v. City of Salina, 211 Kan. 333, 507 P. 2d 323.)
Applying the foregoing rules to the record before us we find the evidence sufficient to support the findings of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey-, C. J.:
This was an action for damages which resulted to plaintiff for personal injuries sustained when she was riding in a bus operated by the defendant as a public utility and a passenger for hire through the alleged negligent action of defendant. The second cause of action made all the allegations of the first cause of action a part thereof and alleged:
“Second: That said plaintiff was at the time of the injuries, married and living with her husband at Planeview, Kansas. That she has three children. That she was doing all the necessary work as a housewife for and on behalf of her husband and her children. That by reason of the injuries above alleged, she has been unable to do any housework for and on behalf of her husband and family, but has been totally disabled to the date of this suit and will be forever partially disabled for performing such work by reason thereof. She brings this, her Second Cause of Action for and on behalf of her husband and family for the loss of her services [in a sum stated].”
Defendant demurred to the petition upon the ground that two causes of action were improperly joined. It also demurred to the first cause of action upon the ground that it did not state facts sufficient to constitute a cause of action. It also demurred to the second cause of action upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were by the court considered and overruled, and defendant has appealed.
The authority of plaintiff to recover upon the facts alleged in the second cause of action is found in our statute (G. S. 1935, 23-205), which reads:
“That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based upon the loss or impairment of her ability to perform services in the household and in the discharge of her domestic duties, shall be for the benefit of her husband so far as he shall be entitled thereto: Provided however, That nothing herein shall in any way affect the right of the husband to recover damages for the wrongful death of his wife.”
In this court appellant, contrary to its position in the court below, contends that plaintiff’s right to recover for damages to herself and her right to recover under the above statute for damages to her husband, both resulting from the same alleged negligence of defendant, constitute but one cause of action, and that in fact plaintiff has improperly split her cause of action into two parts. If we should assume that to be true, it is not a ground for demurrer set out in our statute. (G. S. 1935, 60-705.) It has been held that a demurrer to a petition must be upon some one of the grounds named in the statute. (Mayberry v. Kelly, 1 Kan. 116; Sparks v. Smeltzer, 77 Kan. 44, 45, 93 Pac. 338; Dassler’s Kansas Civil Code, 2d ed., p. 245.) Prior to the enactment in this state of the statute above quoted the rule in this state, and generally elsewhere,, was that when a married woman was damaged by the negligence of another she could recover for the damages she sustained, but could not recover for damages sustained by her husband resulting from the same negligence. The husband alone could sue for his damages. See City of Wyandotte v. Agan, 37 Kan. 528, 15 Pac. 529; Street Rly Co. v. Stone, 54 Kan. 83,100, 37 Pac. 1012; Railway Co. v. Pavey, 57 Kan. 521, 46 Pac. 969. Under that practice there were two trials upon the question of the liability of defendant. Our statute was enacted to avoid such a multiplicity of suits. (Anspaugh v. Dougherty, 153 Kan. 257,109 P. 2d 101.) We think it appropriate, at least, for the petition to be framed in two causes of action. There are elements entering into one which do not enter into the other. Each requires appropriate instructions not proper in the other alone; and it would also be appropriate to have different verdicts, since the elements of damage are different and the parties who have a beneficial interest in the proceeds of the litigation are different.
Counsel for appellant, in its brief says that in Clark v. Southwestern Greyhound Lines, 144 Kan. 344, 58 P. 2d 1128, the court “inferentially” said there was but one cause of action with two elements of damage. We find no such inference in that decision. They also cite Montgomery Ward & Co. v. Callahan, 127 F. 2d 32, and quote from the opinion (p. 36):
“The statute under consideration here does not create two separate rights, one for the wife and one for the husband which she maintains for his benefit. It creates in her a single right, the right to maintain an action against the wrongdoer for all loss suffered as a result of her injuries. This right is placed in the wife. (Citing Taylor v. S. H. Kress & Co., 136 Kan. 155, 12 P. 2d 808.) We can read nothing into the statute which would require splitting up a single cause of action belonging to the insane wife, solely on the ground that part of the recovery inures to the benefit of the husband.”
We find no occasion in the opinion for the court to use this language. The action was by the guardian of an insane wife in which she sought to recover “damages for personal injuries suffered as a result of the negligence of the Company, and the further sum . . . for the use and benefit of her husband.” The opinion does not disclose whether the petition in that case was in separate counts or whether the pleading was in one count. The objection made on appeal to the recovery for the benefit of her husband was that the statute “vests the right to maintain that action solely in the wife, and it may not therefore be maintained by the guardian of the wife.” We regard that as distinct from the question of whether the pleadings should be all in one count or in separate counts. In any event we do not construe it as a holding that the petition of the wife in such an action cannot be stated in two separate causes of action.
In this court appellant abandons its contention that the first cause of action does not state facts sufficient to constitute a cause of action. Its contention here is that the second cause of action does not state sufficient facts because plaintiff alleged that “She brings this, her Second Cause of Action for and on behalf of her husband and family,” the contention being that her husband’s family is not entitled to any part of the judgment on that cause of action, but that all of it goes to plaintiff’s husband.
This petition was not motioned. No doubt the court would have stricken out the words “and family” had it been requested to do so. We think the words may be regarded as surplusage. By their use plaintiff could neither enlarge nor diminish the statutory right of plaintiff to recover on behalf of her husband.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in mandamus. While it is framed in mandamus plaintiff and defendants and an intervening petitioner seek a declaratory judgment interpreting G. S. 1945 Supp., 17-1703, and G. S. 1935, 17-1704, as applied to the situation presented by the pleadings.
There is no dispute about the facts. Briefly, they are as follows:
The plaintiff is the Potentate of Arab Temple of the Ancient Arabic Order of the Nobles of the Mystic Shrine. This is a fraternal order. Arab Temple is located in Topeka and has some 1,350 members. Arab Temple holds a charter from the parent body, The Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America. . This body is incorporated under the laws'of Iowa as a fraternal organization. There is no intermediate lodge or group between the Imperial Council and Arab Temple. Arab Temple is not incorporated.
The defendants are members of the board of real-estate trustees for Arab Temple. These members were duly elected to this board by the members of Arab Temple, pursuant to its bylaws.
Prior to September 4, 1946, Arab Temple owned in fee simple two lots with the buildings thereon on Kansas avenue, in Topeka. The temple intended to use these lots and the buildings thereon for the purpose of providing suitable accommodations for the holding of its meetings and the transaction of its business. The record title to this property was in “Arab Temple, Ancient and Arabic Order, Nobles of the Mystic Shrine, an unincorporated association of Topeka, Kansas.” On September 4, pursuant to an offer from Capper Publications, Incorporated, the members of Arab Temple agreed to sell and convey the two lots to Capper Publications for $80,000. The members of Arab Temple instructed -its board of trustees to execute and deliver a deed to the two lots to Capper Publications. The abstract of title has been approved and the purchase price paid. At this point the question was raised by the purchaser as to the authority of the board of trustees of Arab Temple to convey title to the real estate for Arab Temple.
Plaintiff, the Potentate of Arab Temple, contends that the board does have that-authority and that it is the clear, legal duty of its members to make such conveyance when directed to do so by the members of the temple. The members of the board state they are doubtful whether they have such authority and being in doubt re,fuse to execute and deliver the conveyance..
The answer turns upon the provisions of G. S. 1945 Supp., 17-1703, and G. S. 1935, 17-1704, and the application of these provisions to the facts of this case.
The sections provide as follows:
“Any subordinate lodge, council or camp or other subordinate organization of any fraternal,. benevolent, patriotic or beneficial order or association now established or organized or which may be established or organized hereafter in the state of Kansas, and which is under the control of a supreme, grand or other superior organization, may purchase, own, manage, control, improve, mortgage and dispose of such real estate, including such suitable building or buildings as may be necessary to provide suitable accommodations for the holding of its meetings and transacting of its business, and may purchase, own, manage, control and dispose of stock in a corporation which has for its purpose the building, erection, control, management or ownership of such suit able building or buildings as may be necessary to provide suitable accommodations for the holding of meetings and transacting of business of any organization or organizations as are provided for herein: Provided, That any such building or buildings as are provided for herein may be used in part for other purposes.” (G. S. 1945 Supp., 17-1703.)
“The title to any property the ownership of which is provided for in this act shall be vested in the lodge or other subordinate organization, and transfers of the same may be made by the trustees or managers of such organization.” (G. S. 1935, 17-1704.)
These are sections of chapter 164 of the Laws of 1899, as amended from time to time.
It will be remembered that Arab Temple holds its charter from and is under the supervision of The Imperial Council of the Ancient Order of the Nobles of the Mystic Shrine, an Iowa corporation. There is no state organization for the shrine, such as the Grand Lodge for Masonic Bodies.
On this account the board of trustees examine G. S. 1945 Supp., 17-1703, and argue that it does not apply to this case because the .correct meaning to give it is that not only the subordinate lodge must be organized in Kansas but it must be under the control of a supreme grand or other superior organization organized in Kansas. On the other hand, plaintiff, the Potentate of Arab Temple, argues the correct meaning is that only the subordinate lodge must be organized in Kansas and- that it is a sufficient compliance with the statute if the subordinate lodge is under the control of a supreme, grand or other superior organization, wherever that body may have been organized.
The argument of the trustees is that the statute should be interpreted as though the words “organized in the state of Kansas” had been included by the legislature between the word “organization” and the word “may.”
We see no reason why the statute should be given this interpretation. The legislature did include these words when referring to the subordinate lodge. Had it been its intention to provide such a qualification for the supreme lodge it would have been a simple matter for it to have used the same clause. As the section was written it was no doubt thought the right to hold real estate as provided should be limited to lodges and camps of some substance and with a certain degree of permanance, not extended to organizations which might be here today and gone tomorrow. This end was accomplished by providing that the statute should apply only to those subordinate lodges which were under the control of a grand lodge. It was attained as well by writing the statute so that it applied to any grand lodge no matter where organized as well as by providing that it must be organized in Kansas.
At the time the statute was enacted there were and at all times since there have been many subordinate lodges in the state organized in Kansas but under the control of a grand lodge not organized in Kansas. Then there were and at all times since have been many subordinate lodges organized in Kansas and under the control of a superior organization in Kansas. No reason appears why there should- be one rule as to taking title to real property for the former and a different one for the latter.
In considering statutes words will be given their ordinary meaning in the English language. Where statutes are ambiguous or obscure in their meaning the courts will go a long way in construing them so that the legislature may not be thwarted in its clear intent.
A construction such as that for which the board contends, however, where a clause would have to be supplied by interpretation should not be given unless it clearly appears that such was the intention of the legislature. Here it appears the intention was to enact a statute such as is contended for by the plaintiff.
We hold that under the provisions of G. S. 1945 Supp., 17-1703, Arab Temple, Ancient and Arabic Order of the Nobles of the Mystic Shrine, an unincorporated association of Topeka, Kansas, is entitled to “purchase, own, manage, control, improve, mortgage and dispose of” the real estate in question.
Having reached the above conclusion, it follows that pursuant to the provisions of G. S. 1935, 17-1704, the board of trustees, defendants here,, had the authority, and it was the duty of the members thereof under the circumstances stated in this opinion to execute and deliver to the Capper Publications a conveyance of the two lots in question.
• Judgment will be for plaintiff. | [
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The opinion of the court was delivered by
Hoci-i, J.:
This was a common-law action against an employer to recover damages for the wrongful death of an employee, the wife of the plaintiff. The case is here on appeal by the plaintiff from an order sustaining the defendants’ demurrer to the petition. The demurrer was sustained on the ground that the injury resulting in death was within the workmen’s compénsation act and that therefore a common-law action for damages would not lie. The controlling question is whether the injury was a “personal injury by accident-arising out of and in the course of employment” within the meaning of the workmen’s compensation act (G. S. 1935, 44-501).
The case being here on demurrer, all facts well pleaded in the petition must be taken as true. The pertinent facts, disclosed by the allegations, may be summarized as follows: The defendant company, the Perry Packing Company, is a Kansas corporation which has for many years been engaged in the poultry and cold-storage business in Manhattan, Kan.; the three individual defendants named were the general manager, the superintendent of the poultry department, who was in general charge of the picking room where the injury occurred, and the foreman of the picking room who was subject only to the order and direction of the superintendent and general manager; the company was operating under the Kansas workmen’s compensation act and the employee whose wrongful death is alleged had not elected not to come within the workmen’s compensation act; at all times in question there wás in force in Manhattan an ordinance entitled Electrical Ordinance, which ordinance was referred to and made a part of the petition; said ordinance provided that all electric light, heat or power wires or apparatus should be installed in accordance with the requirements of the national electric code, provided that in certain cases deviation from such rules and requirements might be authorized by the electrical inspector; under the ordinance permits for electrical construction work may be issued only to master electricians who have complied with the provisions of the ordinance, and every person entering upon any electrical construction or erection of any light, heat or power wires in any new building in Manhattan — with certain exceptions not here material — is required to make application on forms furnished by the city to the electrical inspector for a construction permit before proceeding with such construction; the ordinance further provides that “all service wires shall be in conduit, and all main switches shall be enclosed in an approved steel cabinet of a safety enclosed type, and operated from the outside of the enclosure, and so marked as to indicate plainly, without opening the enclosure, whether the switch is in the ‘on’ or ‘off’ position. All service wires to be not less than No. 10 B. & S. gauge”; the ordinance further provides that “approved metallic conduit, armored cable or metal moulding shall be required . . ¡ in any installation requiring more than three feet of conductor in old buildings or additions thereto . . . and all such conduit, armored cable or metal moulding shall be installed according to the rules of the national electric code”; the defendants failed to comply with section 10 and with the provisions of the national electric code because they did not install the machine referred to, or the wires or apparatus connected with the machine, in accordance with the rules and requirements of section 10 or of said national electric code; the electrical inspector did not authorize any deviation from the rules and requirements, nor did the defendants apply for or obtain any permit for installation of the machine here involved and did not install it in accordance with above recited provisions of the ordinance, and “did not maintain said electrical apparatus in accordance with said ordinance in that the service wires were not placed in conduits, or metallic conduits, armored cables, or metal moulding, or comply with any other similar provisions of said ordinance, but maintained the said machine in an unsafe and dangerous condition”; for more than four years prior to July 17, 1944, the date of the fatal injufy involved, the defendant company had maintained an electrically operated machine in the picking room of its plhnt, which machine — being called a buffer — had a large cylindrical shaped part about two feet in diameter and six feet in circumference and about three or four feet long and equipped with rubber teeth; near one end of the machine was a steel 'platform large enough for one person to stand upon while applying scalded chickens recently killed to the buffer in a manner which would cause the feathers to be removed rapidly;- in performing this operation, the employee standing upon the platform would take hold of the scalded- chickens which were being transported above the buffer by a chain upon which said chickens were hung immediately after being scalded; the machine was located on a cement floor and the buffer was turned rapidly by an electric motor carrying 440 volts of electricity.
At the time when the injury to the employee occurred, and for about four years prior thereto, this electrically propelled machine was not grounded and all of the electric current was transmitted to the machine in what is known as “B’X wiring.”
On many occasions over a period of four years prior to July 17, 1944, and “by reason of the conditions obtaining and the faulty installation and handling of said electric current, sundry employees had received severe shocks through said machine and on many occasions flashes of fire resembling lightning had been observed by employees within said picking room and especially in and about said machine and buffer.”
Isabel Duncan, wife of the plaintiff and mother of his six minor children, had been employed by the defendant company during the months of May, June and until the 17th day of July, 1944, and at no time during that period had any such incidents occurred and she “had no knowledge whatever regarding the uncontrolled electric current and the shocking of persons and activities of said electric current in said picking room” and the plaintiff in the action had no knowledge thereof; other employees knew about these electric shocks suffered by persons and about flashes of electricity in the room and during all of the four years prior to July 17, 1944, the foreman and the superintendent had full knowledge thereof and at all times knew that the machine was not grounded and during all of the same period the general manager had intimate knowledge concerning the installation, shorting, the ungrounded condition and the flashes of fire as they appeared in the picking room; “all of said officers knew that said machine was dangerous to the life and limb of persons employed in said picking room” but notwithstanding this knowledge of these dangers they “willfully neglected and refused to mend said machine or correct or eliminate said dangers.”
On July 17, 1944, “Isabel Duncan, while in the performance of her assigned duties on said machine was suddenly electrocuted and killed in said picking room”; she was then thirty-eight years of age and in fine health; the defendants knew at all times that the uncontrolled 440 volts of electricity was inherently dangerous to the life and safety of every employee and especially to Isabel Dun can who had been' assigned to stand upon the platform heretofore mentioned, but notwithstanding that fact- they selfishly and willfully neglected and refused to eliminate the danger or do anything about it; defendants knew that Isabel Duncan had spent most of her life upon a farm, had had no experience with electric current, knew nothing about the dangers and hazards of electric current installed in the faulty manner heretofore stated, but “notwithstanding their full knowledge in that respect, they willfully neglected to tell her anything about that which she should know regarding the faulty installation, the ungrounded condition and the dangers obtaining in said picking room . . . and selfishly and willfully neglected and refused to advise or tell her anything about it”; the defendants knew that the electric current was ungrounded in the room which had a cement floor “and with the lavish use of water necessary in the scalding operation and handling of said chickens with 440 volts of electricity used in the propelling of said machine as faultily installed as herein alleged was a constant threat to any life which was working in and about said picking room and es^ pecially where Isabel Duncan was forced to stand while so employed,” but that notwithstanding such knowledge they selfishly and willfully neglected and refused to eliminate the danger or do anything about it; defendants knew that a heavy rubber mat should be placed upon the steel platform in question in order to protect the body of the 'employee against the electric current that might find its way into the platform but they selfishly and willfully neglected and refused to install such mat upon the platform; defendants knew that in the picking room a great amount of water was used in scalding the chickens, that the floor was constantly wet.and that water was constantly dropping from the chain transporting the chickens above the buffer to the floor and on the machine, and they knew that “the electric installation in and all about said picking room was made of what is known as ‘B’X’ installation, or insulation, and that said ‘B’X’ insulation absorbs water, and that under no circumstances should such ‘B’X’ insulation be used to conduct said electricity into said room and its use about said machine; that notwithstanding said knowledge, said defendants selfishly and willfully neglected and refused to install lead insulation which is a nonabsorbent of water and which .is the only proper insulation to be used in said picking room.” The injury to and death of said Isabel Duncan was “an event which should have been foreseen and anticipated” by the defendants, “and could have been easily guarded against and would not have occurred had the defendants complied with the provisions of said ordinance, or had installed said machine in a proper manner and had kept it properly grounded, and had used service wires that were properly insulated, and had taken usual and ordinary means for the proper protection of the said Isabel Duncan while operating the said machine.”-
Allegations substantially the same as those that have been recited, are repeated a number of times in the petition.
The general principles or purposes upon which workmen’s compensation acts rest are so well recognized as to require no elaboration' here. It is important, however, to bear them in mind in any approach to a question such as the one here presented. These acts are largely the outgrowth of modern industrial life. They give recognition to a broad social obligation, in furtherance of sound public policy. The public has come to realize that in many cases an injured employee engaged in a hazardous employment will be unable to establish actionable negligence on the part of the employer, but that it is unjust to deny relief to the employee on that account. For this and similar reasons, workmen’s compensation acts have shifted from the employee to the industry and indirectly to the general public certain burdens incidental to modern industrial operations (71 C. J. 242-249). Compensation is thus provided for injuries by accident arising out of and in the course of the employment, regardless of any showing of negligence on the part of the employer. On the other hand, the amount of compensation so provided is in many cases substantially less than might be secured by the injured employee in a common-law action, where the employer’s negligence is established. There is thus a sort of balancing of benefits in the common interest. Some employees may receive less compensation for injuries received than they would have been able to receive in a common-law action, while many other employees will receive benefits which they otherwise would not be able to receive because of inability to establish the employer’s negligence. In harmony with this general principle, the negligence of the employer is not a matter at issue in a workmen’s compensation case. Furthermore, it is provided in our statute and in such statutes generally that it shall not be a defense to the employer that the employee assumed the risk of the hazard resulting in the injury, that the injury or death was caused by the want of due care by a fellow servant or that the employee was guilty of contributory negligence (G. S. 1935, 44-544).
Our workmen’s compensation act (G. S. 1935, 44-501 to 44-565, ch. 44, art. 5, as amended) thus establishes a broad system covering all injuries by accident within its purview. And the act specifically provides that “save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act” (G. S. 1935, 44-501). Consonant with this specific provision and in harmony with the whole purpose and tenor of the-act, we have repeatedly held that “the workmen’s compensation act establishes its own procedure and furnishes a remedy which is substantial, complete and exclusive, from the inception of the claim to final judgment thereon” (Taylor v. Taylor, 156 Kan. 763, syl. ¶ 1, 137 P. 2d 147; see, also, cases cited in late case of Hoffman v. Cudahy Packing Co., 161 Kan. 345,166 P. 2d 613).
Was the injury resulting in the death of Isabel Duncan compensable under the act? It is conceded that the employer was under the act and that the employee had not elected not to come under the act. Clearly the injury occurred “in the course of” the employment. It occurred directly in connection with the work to which she had been assigned in operating the machine, and we cannot say it was not also one “arising out of” the employment.
Appellant urges, however, that while the injury may have been an injury “by accident” as far as the employee was concerned, it was not in reality an “accident” as far as the employer was concerned, being readily foreseeable' by him, in the light of the preventable peril to the. employee which he knew existed, but of whose existence the employee had no knowledge or warning. We find no support in the act or in the authorities to support this restricted definition of “accident.” The word “accident” has been frequently defined in our cases (Echord v. Rush, 124 Kan. 521, 261 Pac. 820; Gilliland v. Cement Co., 104 Kan. 771,180 Pac. 793; Barker v. Shell Petroleum Co., 132 Kan. 776, 297 Pac. 418; Kearnes v. Reed, 136 Kan. 36,12 P. 2d 820; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P. 2d 854). It has been said that the necessary elements of an accident are: (1) undesigned; (2) sudden; (3) unexpected; (4) usually of an afflictive or unfortunate character; (5) often accompanied by a manifestation of force; and (6) referrable to a definite time, place and circumstance. The injury here clearly falls within the definition. It is stated in 71 C. J. 571 that in de termining the statutory meaning of the word “accident” as used in workmen’s compensation laws “it is the expectation, intention, or design of the workman that is to be regarded.” In Gilliland v. Cement Co., supra, it was said:
“The word ‘undesigned’ must not be taken too literally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning may be extended regarding other elements of the definition.” (Italics supplied.) (p. 773.)
Furthermore, it should be noted that the plaintiff did not allege that the employer intended to injure the employee or that he knew that an injury to an employee was certain to result, or that any of the defendants harbored any ill will 'toward her.
Whether the facts alleged in the petition show negligence only or whether they show wantonness on the part of the employer may be debatable. But even if the acts or conduct alleged do' show wantonness, we find no authority either in the statute or in our decisions construing the statute that would justify us in saying that the injury was not compensable under the workmen’s compensation act. Considering the whole subject broadly, the legislature has made certain exceptions such as agricultural pursuits (G. S. 1935, 44-505), interstate commerce (G. S. 1935, 44-506) and others, but has not included “willful misconduct” or “wantonness” of the employer among the exceptions. Nor is there any distinction between “gross negligence” and any other degree of negligence, as far as applicability of the act is concerned (see 71 C. J. 1485). If so compensable, an action at common law will not lie. To hold otherwise would open a by-pass around the act and permit attempted recovery in common-law actions which the act was intended to supersede. If the plaintiff here had established the same facts in a proceeding to secure compensation under the act, can there be any doubt that he would have been entitled to an award? If so entitled, it follows, under our decisions, that such relief is exclusive.
The workmen’s compensation acts of some of the states — such as those of California, Massachusetts and Ohio — provide for increased compensation in the case of “willful misconduct” on the part of the employer. Decisions under such statutes are not in point here since our statute contains no such provision. But the fact that such a provision is omitted from our statute is in itself an indication that the legislature did not intend when it enacted the workmen’s compensation act, broad in its scope and provisions, to permit the injection of the question of wantonness or of willful misconduct of the employer into cases otherwise under the act.
Appellant stresses the case of Boek v. Wong Hing, 180 Minn. 470, 231 N. W. 233, 72 A. L. R. 108, in which the plaintiff was permitted to maintain a common-law action for damages notwithstanding the fact that defendant was operating under the act. In that case the defendant had intentionally struck the plaintiff, inflicting serious injury. In that case it was said (pp. 2 and 3, appellant’s brief):
“No ease has been cited where it has been held that one who wilfully assaults and injures a workman while in the course of his employment, be he an employee, employer, or a stranger, when sued for the tort*can successfully interpose as a defense that the plaintiff and his employer are under the Workmen’s Compensation Act and his sole remedy is thereunder. . . . An employer who intentionally and maliciously inflicts bodily injuries on his servant should occupy no better position than would a third party not under a Compensation Act and should not be heard to say, when sued at law for damages, either that the injury was accidental or that it arose out of the employment.”
(p. 471.)
We find no analogy between that case and the one before us. It is clear that injury inflicted upon an employee by an employer’s assault is not an injury arising by accident out of and in the course of the employment. No such situation exists in this cáse. It is not alleged that the employer intentionally injured the employee. There are many cases similar to the Minnesota case involving assault or other acts by the employer clearly unconnected with the employment, but no purpose would be served by reviewing them since the distinction between these cases and the instant one is obvious.
Considerable analogy to the case here is to be found in cases involving failure of the employer to comply with laws or regulations as to installation of safety appliances or proper safeguards, especially in the case of dangerous machinery. The general rule is that in the absence of specific statutory provision therefor,. such failure does not affect the rule as to exclusive remedy (71 C. J. 1484, 1485)i Our statute contains no such provision.
It follows from what has been said that the demurrer was properly sustained.
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The opinion of the court was delivered by
Wedell J.:
This was ah action for divorce, custody, control and support of two minor children, temporary and permanent alimony and for a restraining order. The plaintiff appeals from an order setting aside the service of summons and certain temporary orders.
The petition alleged the necessary residence of appellant in Cowley county, Kansas, and further, insofar as here material, in substance, alleged:
Defendant was residing at the Lagonda Hotel, Winfield, Kan. The parties were married in 1938; by their joint efforts they had accumulated real estate at 1507 Maxey Lane in Nashville, Tenn., of the value of $12,000 and personal property consisting of household goods and furnishings of the value of $1,500; defendant was interfering with plaintiff’s custody of the children and should be restrained from visiting them except at reasonable hours; defendant should be restrained from disposing of any of the real and personal property until further order of the court; temporary orders should be made for the custody of the children and for the support of them and the plaintiff.
At an ex parte hearing the requested temporary orders were made.
The sheriff had not served appellee personally. His return showed he served the summons by leaving a certified copy thereof at appellee’s usual place of residence on the 15th day of May, 1946.
The trial court, on a special motion of appellee to quash the service of summons, set aside the service and the temporary orders after hearing the evidence of the parties on the motion. The motion to quash challenged the jurisdiction of the court on the grounds'appellee was not served personally within Cowley county and was not served with summons by leaving a copy thereof at his usual place of residence. „
The first question presented is whether the summons was left at appellee’s “usual place of residence.” We do not deem it necessary to narrate all the testimony. The pertinent parts thereof, in substance, were:
Appellee had been in the service since 1943; the parties owned their home and household furniture and furnishings at Nashville, Ténn.; that is where the family resided when ajppellee entered the service; as in many similar cases during the war, appellant accom panied appellee from place to place when it was possible to do so; during his absence appellant spent substantial periods of time in Winfield, Kan., the home of her parents; appellant left Winfield and returned to her own residence in Nashville, Tenn., on April 26, 1946; she had been notified by appellee he would be released from the service on May 2, following, and would be coming home; on ' May 3 appellant left Nashville with the children and returned to Winfield; appellee arrived in Nashville on May 4 and found appellant and the children had left the state; appellee learned from a Nashville attorney that his wife had engaged him to file a divorce action; appellee spoke to appellant by telephone, attempted to learn her intentions and endeavored to ascertain when service would be obtained on him in Tennessee; he desired to leave in two or three days to visit -his wife and the children in Winfield; on May 9 he arrived in Winfield and registered at the Lagonda Hotel; on May 14, in order to reduce expenses, he moved to 509 East 13th street, where the summons was left on May 15; he left Winfield on May 17 to return to his residence in Tennessee; he obtained some temporary employment with the Cities Service Oil Company at Winfield to help defray expenses while visiting there; he at all times intended to return to his home in Nashville after he visited his wife and children.
There was other evidence of plans plaintiff and defendant had made between December, 1945, and February, 1946, to continué their residence in their home at Nashville upon defendant’s return from the service.
There was evidence of their plans that appellee would establish a packing house business in the neighboring town of Murfreesboro with the understanding, however, they would continue to reside in Nashville where' appellant desired to live. There was evidence of appellee’s intention to complete the contemplated business transaction at Murfreesboro and to obtain possession of their home in Nashville from the tenant.
G. S. 1935, 60-2507 reads:
“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.”
G. S. 1935, 77-201 (24) provides:
“The terms ‘usual place of residence’ and ‘usual place of abode,’ when applied to the service of any process or notice, shall be construed to mean the place usually occupied by a person. If such, person have no family, or do not have his family with him, his office or place of business, or if he have no place of business, the' room or place where he usually sleeps shall be construed to be such place of residence or abode.”
In commenting on the evidence the trial court said:
“It seems to me from the conduct of the parties as shown by all of the testimony and by the plaintiff herself, and their conduct, it is all consistent with the idea of maintaining a home in Nashville, Tennessee. I am inclined to think that they didn’t acquire residencé here, because of the expressed intention and conduct of the parties. The motion to quash is sustained.”
The trial court incorporated a formal finding in the journal entry of judgment as follows:
“Thereupon, both parties having completed argument of their cause and the Court being duly advised in the premises finds that the defendant, Charles Byron Arnette, Jr., did not, and does not have a residence in the State of Kansas, that said defendant did not have such a place of residence, abode or business in the State of Kansas that he could be personally served with Summons by leaving a copy of same thereat, that the address of the place at which said copy was left was not his ‘usual place of residence, abode or business,’ that the pretended service of summons and restraining order entered herein should be quashed, set aside and held for naught.”
It is conceded the residence of appellee and his family was Nashville, Tenn., prior to appellee’s entrance into the service of his country. A citizen, as we have said, may change his residence either temporarily or permanently. And whether he does so, or which he does, is determined by his acts and his intentions. (State, ex rel, v. Corcoran, 155 Kan. 714, 719, 128 P. 2d 999, and cases therein cited.) When, if ever, did appellee’s residence change? The general rule is that when a residence is once shown to have been established it is presumed to continue until it is clearly shown to have been abandoned. (Keith v. Stetter, 25 Kan. 100.) The trial court did not believe their residence in Tennessee was ever abandoned. It was convinced the evidence disclosed it was the intention of both parties to continue the established residence.
Counsel for appellant contend no rule requires any stated time one must abide at a place in order to establish his residence; that a new place might become one’s residence the first day he arrives there, and they cite Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054; Blair v. Blair, 149 Kan. 3, 85 P. 2d 1004. The contention is sound and the cited decisions support it. On the other hand, the cases are not authority for the proposition that mere abiding at a place for an even longer period necessarily establishes such place as one’s “usual place of residence.” The fundamental principle enunciated in both of the cases relied upon by appellant is that a change of residence to be effectual really involves two separate intentions, “. . . one to abandon the old location, and one to abide in the new. If the last intention be formed, it necessarily includes the other.” (Ford, Adm’x, v. Peck, supra, p. 76.)
In the early case of Hart v. Horn, 4 Kan. 232, the true doctrine was aptly declared to be:
“But we find it laid down in all the authorities that an original domicile, whether of birth or otherwise, if once fixed, ‘clings closely,’ and we conceive that it can never be changed by the mere intent of the party. The act must accompany and verify the intent. As the homely proverb asserts that ‘actions speak louder than words,’ actions must corroborate, and confirm the words. ‘The fact and the intent must concur.’ ” (p. 239.)
Counsel for appellant recognize these established principles but contend the fact appellee had obtained a room in Winfield, less than two blocks from where appellant lived, and had secured employment in Winfield is evidence he had established his “usual place of abode” in'Kansas, and that the service of summons was valid.
We agree that evidence could not be ignored as bearing on the subject of intent. But we have no doubt the trial court carefully considered, it and weighed it together with all other testimony indicating, or tending to indicate, appellee’s intent. Where a trial court makes a specific finding of fact on apparently conflicting, or actually conflicting, evidence, our only function on appeal is to ascertain whether there is substantial competent evidence which supports, or tends to support, the finding made and not whether there is some evidence to support a contrary finding had one been made! (State v. Garlinghouse, 157 Kan. 91, 138 P. 2d 421; Irwin v. Irwin, 162 Kan. 185, 188, 174 P. 2d 1021.)
Appellant next urges appellee accepted service of summons by acknowledgment thereof. G. S. 1935, 60-2515, provides:
“An acknowledgment on the back of the summons, or the voluntary general appearance of a defendant, is equivalent to service.”
In the argument on this particular point appellant does not contend appellee acknowledged service on the back of the summons or that he voluntarily entered his general appearance in the action. The factual point emphasized and relied upon by appellant is that appellee admitted to his friends and in open court he had received the summons and had notice of the action. He did admit he re eéived the summons which was left at the residence room in which he slept the preceding night. He had discussed the action with others. Whatever the rule may be in some jurisdictions the facts appellee admitted do not constitute a legal acknowlegment of service under our statute. No decision of this court holding the admitted facts constitute a valid acknowledgment of service is cited and we are aware of none.
It is finally contended the evidence introduced by appellee in support of his motion to quash went to the merits of. his cause of action and converted his special appearance into a general appearance for all purposes, citing King v. Ingels, 121 Kan. 790, 250 Pac. 306. The general rule governing such conduct is well established and plainly stated in the King case. The question here is did appellee, by the evidence he introduced, raise an issue of law or fact which constituted a general appearance. A careful examination of the evidence introduced fails to disclose it raised any issue of law or fact involving the merits of the action. The testimony introduced disclosed appellee’s conduct in attempting to acquire an interest in a packing business in the neighboring town of Murfreesboro, Tenn., which transaction he and his wife had discussed in December, 1945, and February, 1946, prior to the filing of the instant action in May, 1946. The testimony also disclosed appellee and a brother-in-law had contemplated engaging in the packing business together and that appellant did not object, but made it very clear to the brother-in-law she wanted to continue to ' live in Nashville. The testimony of a real-estate agent disclosed he had handled the renting of the home of the parties in Nashville during the years appellee was in the service and that, pursuant to instructions from appellee, he had communicated with the tenant on April 4, 1946, relative to surrendering possession thereof. The testimony also showed that thereafter appellee had made a new agreement with the tenant to remain in the home for a short, indefinite period until some personal matters were cleared up. The testimony of appellee’s, father disclosed that since appellee had not yet taken any action on the Murfreesboro deal he, the father, had contracted for the purchase, of the property, had paid $8,000 therefor and had put a packing house on it.
The foregoing evidence was not directed to, and did not involve, the merits of any issue in the divorce action. It was intended to, and did, show conduct in harmony with appellee’s expressed inten tention to continue his residence in Nashville,' Tenn. ■ Some of it tended to show a similar intention of appellant. The testimony went to the question of residence, a jurisdictional isáue, raised by appellee’s special' appearance and did not constitute a general appearance for all purposes. (Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648; Sooy v. Brinkman, 129 Kan. 723, 726, 727, 284 Pac. 375; Cox v. Pabst Brewing Co., 152 Kan. 375, 378, 103 P. 2d 871; Garvey v. Long, 154 Kan. 85, 114 P. 2d 821.)
The testimony mentioned in connection with appellant’s last contention was taken by deposition. Some of it was objected to at the time the depositions were taken. Appellant does not now complain concerning the admissibility of such evidence. We assume the point has been abandoned and shall, therefore, not treat it. In any event we think there was substantial competent testimony to support the finding of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
Plaintiff purchased a used automobile from defendants. Subsequently he brought action to recover damages for fraud and misrepresentation in its sale. The trial court sustained a demurrer to the evidence, hence this "appeal.
It will serve no useful purpose to relate allegations of the petition or detail the evidence at length. The petition alleged the automobile was guaranteed and warranted by the defendants in numerous respects and charged 'false and fraudulent representations as to each and all of them.
The trial court’s judgment in line with the demurrer theretofore made to plaintiff’s evidence, was based upon two grounds, one that the evidence affirmatively showed the controversy was “summated” and payment had been made to plaintiff; the other, that it affirmatively disclosed he did not rely upon defendants’ representations in purchasing the automobile, but upon his own investigation and inspection of that vehicle.
Appellees, for purposes of appeal, quite properly admit appellant’s testimony sustains the fraudulent representations alleged in the petition to have been made by them or their agent. Their claim is not that he failed to establish representations sufficient to support a cause of action for fraud and deceit but that, even so, he had no right of action against them under the facts and circumstances disclosed by the record.
Appellant’s specification of errors reads:
“1. The court erred in sustaining the demurrer to the plaintiff’s evidence.
"2. The court erred in overruling the 'plaintiff’s motion for a new trial.
“3. The court erred in refusing to allow the admission of certain pertinent evidence on behalf of the plaintiff and his witnesses.
“4. The court erred in refusing to allow the introduction by the plaintiff of an exhibit containing a memoranda of the oral contract made with the defendants.
“5. The court erred in usurping the prerogatives of the jury by testifying as to a conclusion with reference to the agency of the witness, Harry E. Austin.
“6. Erroneous rulings of the court on hypothetical questions propounded by the plaintiff.”
Before proceeding further we deem it necessary to call attention to the fact errors numbered 3, 4, 5 and 6, assigned in the specification just quoted, are not mentioned or discussed in appellant’s brief and that under-such circumstances they must be regarded as abandoned and cannot be considered ■ on appeal (Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859, and Henderson v. Deckert, 160 Kan. 386, 162 P. 2d 88). Likewise to point out that assignment No. 2 is not reviewable because neither the motion for new trial nor its grounds are set forth in the record (See Hamilton v. Binger, 162 Kan. 415,176 P. 2d 553).
We turn now to the only issue presented for review. Reasons assigned by the trial court for its decision on the demurrer will be considered in the order heretofore mentioned.
Whether it can be held as a matter of law appellant’s claim had been summated and payment made requires critical review of the, pertinent evidence relating to that subject.
Appellant, who was somewhat of a mechanic in his own right and had testified that he knew engines and cars, purchased the automobile on May 26,1944, from a Mr. Parry, who so far as the record shows had full and complete authority to transact the appellees’ business. He had trouble with it the day he drove it home. On May 30th following he took it back to appellees’ place of business, told them it was no good and stated that he was there to rescind the contract. After a prolonged conversation with respect to what he claimed was the matter with it he was advised to come back after having driven it another week. A week later he returned. On that occasion, after more discussion as to the condition of the automobile, one of the partners told him there was nothing wrong with it and refused to take it back. Sometime during the middle of June he took it to the McClure Motor Company at El Dorado and had it repaired. At this point it is worthy of note that a Mr. Austin, who was sales manager for that concern and testified as a witness for appellant, stated that after they had repaired it he would say the car was in A-l condition. Either on June 21 or 22 appellant took the automobile from the McClure Motor Company garage and paid the repair bill. He then went back to appellees’ place of business. What happened there and then will be quoted from appellant’s own testimony as it appears in the record:
“Direct Examination
“Q. What was said by you or Mr. Parry at that time? A. I presented the bill to Mr. Parry and Mr. Parry says, ‘We’re not paying that bill,’. I says, ‘Very well and good.’ He stood there for an instant and he says, ‘Well, we’ll pay the half of it.’ Audi says, ‘No, Mr. Parry, I would not take one penny off of that bill — not one penny.’ Then Mr. Parry called up Mr. Austin down there and questioned him as to why it was so much. Am I right on it?
“Q. ■ If you heard the conversation. A. He questioned him on the price of the bill, and the stuff that was put in it. I couldn’t hardly hear his conversation.
“Q. All right, what further, if anything, was said there between the two of you? A. Mr. Parry gave me a check on it, and I thanked him for it and went out.”
“Cross-Examination
“I talked to Mr. Parry about payment of the McClure bill for repairs on the car. He said he would not pay more than one-half of it and I told him I would not take one penny off it and he then paid me.”
It is true, as is strenuously urged by appellant, that in our con-, sideration of a demurrer to the evidence we must accept all evidence as true, give.it the benefit of all reasonable presumptions and resolve all' inferences in favor of the one adducing it. Even so, we are compelled to conclude that under all the circumstances disclosed by plaintiff’s own testimony and evidence he accepted appellees’. check, which he. concedes was paid, in full,.settlement of his claim.. He knew the condition of the automobile and how it had been ré- • paired. He stood by and heard appellee’s conversation with the concern repairing it as to why the bill was so large. Appellees were fully aware that he knew the automobile’s condition for theretofore he had told them what was wrong with it. In the face of all that when appellees told him they would pay one-half of the bill he said, “No, Mr. Parry, I would not take one penny off that bill— not one penny.” Then, when they agreed to pay the entire amount he took their check without even so much as indicating that his acceptance of it was anything less than a settlement of his claim. In that situation there is room for but one conclusion, that is, when the check was paid his claim against appellees was satisfied.
Beck v. Batt, 161 Kan. 107, 166 P. 2d 690, supports our decision. There we held:
"In an action to recover money, the record is examined and it is held that plaintiff’s evidence established that checks delivered by defendants to the agent of the plaintiff were offered in full satisfaction of plaintiff’s claim and accepted by the agent under circumstances that constitute full payment of the claim.” (Syl. ¶ 1.) n
See, also, Hoop v. Kansas Flour Mills Co., 124 Kan. 769, 262 Pac. 544, holding:
“Where a creditor and debtor have a dispute as to the amount of a debt, and the debtor remits checks for the amount of what he .contends the debt to be, intending such remittance to be in full payment thereof, and the creditor accepts and knowingly retains the amount thus remitted, the legal consequence is that of an accord and satisfaction, notwithstanding the creditor immediately wrote to the debtor stating that' he had deposited the checks, indorsed under protest, and that he expected the debtor to pay him the balance claimed by him to be still due from defendant.” (Syl.)
And Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P. 2d 508, which holds:
“An accord is a contract between creditor and debtor for the settlement of the claim by some performance other than that which is due. Satisfaction takes place when the accord is performed.” (Syl. ¶ 1.)
The conclusion just announced bars appellant’s recovery and means that the ruling of the trial court on the demurrer was correct. It does away with any necessity for consideration of the other reason given by that tribunal for its decision. However, we have examined the record on the point. In the light of all the evidence, particularly in view of the fact it shows appellant, was granted only a limited opportunity to make inspection of the automobile, we seriously doubt if it can be said as a matter of‘law that in-pur chasing such vehicle he relied not upon appellees’ representations but upon his own investigation and inspection.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
John J. Gardner, an Olathe attorney, brought this action to recover unpaid attorney fees and disbursements of $3206.60. The defendants were Edwin A. Rensmeyer, his wife Maxine Rensmeyer, and two closely held corporations with which they were affiliated, Premium Brokers Exchange, Inc. (PBX), and Sibert Enterprises, Inc. Plaintiffs bill, the amount of which is undisputed, was for services alleged to have been performed for all four defendants, and after a trial to the court judgment was rendered against all four. Only the defendants Edwin Rensmeyer and PBX have appealed. They assert that they did not contract to pay for plaintiffs services, and that the evidence does not support the trial courts finding that they did. The question essentially is one of agency.
Edwin Rensmeyer is a certified public accountant who, in 1971, ventured into the airport and commuter airline business in Oxford township, Johnson county. The airport was located at 111th Street and Highway 1-35, from where shuttle flights were run to Kansas City International, several miles north of Kansas City, Missouri. The land on which the airport was located was owned by four separate entities, of which Mr. and Mrs. Rensmeyer were one. They leased the balance of the land from the other three owners, and then subleased the entire parcel to Sibert Enterprises, Inc. Sibert, the operating entity, was wholly owned by Edwin Rensmeyer, and he served as president, treasurer and director. His wife was vice-president, secretary and director.
In 1971 Rensmeyer applied for and received from Oxford township a special use permit authorizing the airport operation. Then, late in the year, he learned that the city of Lenexa was going to annex the airport. In February, 1972, he first met with plaintiff and engaged plaintiff’s legal services to insure the continuation of the special use permit after the annexation.
Plaintiff s notes of that interview reflect the names of both Sibert Enterprises, Inc., and the appellant PBX. The latter corporation was owned by Mrs. Rensmeyer and her sister, Bemadine Cook, with the sister holding the bulk of the stock. Edwin Rensmeyer, while owning no stock in PBX, was its vice-president and treasurer, served on its board of directors, and acted in an advisory capacity to the two women. In the airport operations PBX furnished the capital, buying the planes, gas truck, and a trailer used at the airport, and leasing them to Sibert. Owning and leasing airport equipment had not been the purpose for which PBX was incorporated, but became its line of business at the suggestion of Edwin Rensmeyer.
Plaintiff’s services covered a period from February, 1972, through June, 1973. They included not only the original zoning problem but real estate title work for Mr. and Mrs. Rensmeyer, and in particular the defense of a suit brought by neighboring landowners to enjoin the operation of the airport in which Edwin Rensmeyer, individually, was the sole defendant named. Plaintiff’s bills were all addressed to Rensmeyer. The first, dated July 28, 1972, eventually produced a $500 check in partial payment, drawn by Rens meyer on an account in the name of “Western Aviation Service and Equipment Co.” From other exhibits we infer that this was a trade name employed by Sibert Enterprises, Inc.
It is the appellants’ theory that in engaging plaintiff’s services Rensmeyer acted only as the agent of Sibert, the corporate airport operator, and not on behalf of either himself or PBX. (Their position as to the role of Maxine Rensmeyer is not clear, and since she has not appealed from the judgment against her we shall not concern ourselves with it.) The trial court, in its findings of fact, took a contrary view:
“1. That the defendants Premium Broker’s'Exchange, Sibert Enterprises, Inc. and Maxine Rensmeyer acting' through their agent Edwin A. Rensmeyer contracted for services with the plaintiff and plaintiff has performed services requiring 97.1 hours and the value of those services is $3,706.60, including advancements in the sum of $50.00 to the City of Lenexa and $2.40 for Xerox copies. Furthermore, that $500.00 has been paid on that account and there is now due and owing $3,206.60 to the plaintiff.
“2. The Court further finds that Edwin A. Rensmeyer, at the time in question herein, was the vice-president and treasurer of Premium Broker’s Exchange, Inc. and a director and that he was the President and director of Sibert Enterprises, Inc.
“3. The Court further finds that at all of the above times the defendant Edwin A. Rensmeyer was acting as an officer and agent of the defendants Premium Broker’s Exchange, Inc. and Sibert Enterprises, Inc. and Maxine Rensmeyer, and in that capacity contracted to employ the plaintiff and that said contract was within the scope of his authority and reasonably incidental to his authority even though not expressly authorized in writing by said corporations and that the defendant Maxine Rensmeyer and defendants Premium Broker’s Exchange, Inc. and Sibert Enterprises, Inc. accepted the fruits of the legal services of the plaintiff.
“4. Accordingly, the plaintiff is granted a personal judgment against the defendants Premium Broker’s Exchange, Inc., Edwin A. Rensmeyer, Maxine Rensmeyer and Sibert Enterprises, Inc., and each of them in the sum of $3,206.60 plus the costs of this action.”
The appeal of Edwin Rensmeyer can be disposed of rather easily. His contention is that under the trial court’s findings he was acting only as the agent of the other defendants when he hired the plaintiff. Hence, he argues, as an agent for disclosed principals he cannot be held personally liable on the contract. (Cf., State, ex rel., v. Triplett, 213 Kan. 381, 384, 517 P. 2d 136, and authorities cited.) The argument overlooks the fact that by rendering judgment against Rensmeyer personally the trial court impliedly found that he was also acting on his own behalf. Although Rensmeyer claimed to have told plaintiff he was acting only on behalf of Sibert, plaintiff had no recollection of any such conversation and proceeded throughout his representation as if the Rensmeyers and the two corporations were one entity. Plaintiff testified:
“A. The only thing I have in my file is rough notes. I have both corporate names written down and outside of that, none of my functions as I recall involved either stating that I was representing either corporation or Mr. Rensmeyer; from there on through we just used Mr. Rensmeyer’s name, knowing at the same time that he was going to involve both of these corporations in the operating of this some way.”
The trial court’s express findings, to be sure, were devoted to the question of agency — presumably because that was the real issue in the litigation. The evidence, however, clearly disclosed that Rensmeyer hired plaintiff and as an individual was the primary beneficiary of plaintiff’s efforts. (No effort was made by any of the parties to break down plaintiff’s bill; it was assumed by all that the services rendered were an integrated package.) The title work, for example, was for the Rensmeyers individually, and the neighbors’ lawsuit was against Edwin Rensmeyer individually. He was the client in name and in fact, and the trial court was fully justified in finding that he was personally obligated to pay the fees of his attorney.
The evidence as to PBX is not quite clear, but we think it sufficient to support the trial court’s finding of agency when viewed, as an appellate court must view it, in the light most favorable to the prevailing party. See, Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P. 2d 719.
The trial court, it will be noted, found that Rensmeyer hired plaintiff as the actual agent of PBX, even though he was “not expressly authorized in writing” to hire counsel. We are dealing, therefore, with an “implied” agency, i. e., one that may be inferred from the dealings between the principal (PBX) and the agent (Rensmeyer). We are not dealing with an “ostensible” agency which depends on the principal’s conduct toward third parties and rests on a theory of estoppel. For a recent discussion of the distinction see Brown v. Wichita State University, 217 Kan. 279, 286-88, 540 P. 2d 66.
In Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803, we quoted the following as being in accord with our decisions on the subject of implied agency:
“The relation of agency need not depend upon express appointment and acceptance thereof, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create it, the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not the parties understood it to be an agency.” (p. 54.)
In the syllabus the rule was formulated in this way:
“The authority of an actual agent may be either express or implied. It is express if the one sought to be charged has delegated authority to the agent by words which expressly and directly authorize him to do a delegable act. It is implied if from statements of the parties, their conduct and other relevant circumstances it appears the intent of the parties was to create a relationship permitting the assumption of authority by an agent which when exercised by him would normally and naturally lead others to believe in and rely on his acts as those of the principal.” (Syl. 4.)
We look, then, to the relationship between Edwin Rensmeyer and PBX, and particularly the other two members of the board of directors of PBX, his wife and sister-in-law. We find, as noted above, that he served as vice-president, treasurer and director. Mrs. Rensmeyer, the president of PBX, accompanied her husband and plaintiff to assorted hearings. She testified that her husband aoted “in an advisory capacity.” When, as an advisor, he suggested that what was originally an insurance premium financing company become an aircraft leasing company, his suggestion was adopted. As to her husband’s specific role, Mrs. Rensmeyer testified: “As vice president, Mr. Rensmeyer was active for Premium Broker’s Exchange; he is a certified public accountant and would be the logical one.” The fair implication of this testimony is that Edwin Rensmeyer was the executive officer charged with carrying on the day-to-day activities of PBX.
This was virtually conceded by Rensmeyer himself in this exchange when he was on the witness stand:
“Q. Well, you conducted business on behalf of Premium Broker’s Exchange, did you not? In carrying out the administrative functions?
“A. Well, I suppose you could assume that, yes. You could infer or imply that something I did was carrying out a business, yes. Also with their approval.”
When taken together we think these circumstances are sufficient to support the trial court’s finding that Rensmeyer had implied authority to retain counsel for PBX.
The judgment is affirmed as to both appellants.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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Per Curiam.
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The opinion of the court was delivered 'by
Prager, J.:
This is an action brought against a sheriff and his surety in which, plaintiff seeks to reoover damages for a violation of his right of privacy. The plaintiff-appellant is James David Monroe who will he referred to in this opinion as plaintiff or Monroe. The defendants-appellees are Johnny Darr, sheriff of Sedgwick county, and his surety, Ohio Casualty Insurance Company. This action arose as the result of a non-oonsensual entry into Monroe’s apartment by sheriff’s deputies in February of 1973.
The factual circumstances are not in dispute and are essentially as follows: At approximately 7:50 a. m. on February 8, 1973, an automobile driven by Maurice G. Hackworth was forced off the road by the driver of another vehicle. Hackworth was then assaulted by being hit in the back of the head with a revolver after the assailant discovered that Hackworth did not have any money. Hackworth called the sheriff’s office and described his assailant as a white male, approximately 20 years of age, about 6 feet tall, and weighing about 200 pounds, with long brown hair and a long beard. Hackworth first described his assailant’s vehicle as a 1960-61 light blue Dodge Lancer with a dented trunk lid and bearing no license tag. At 8:50 a. m. a 1960-61 Plymouth Valiant was observed parked at the Royal Regency apartments in Wichita. Sheriff’s deputies arrived at the scene and immediately sought out the apartment manager. The apartment manager was advised of the attempted robbery, the description of the assailant, and the fact that a vehicle in the parking lot of the Royal Regency apartments seemed to match the description of the vehicle used in the attempted robbery. The manager stated that this sounded like the people that lived in the basement apartment downstairs on the right side. The apartment manager then arranged for the maintenance man of the complex to accompany the officers to the apartment. The officers knocked loudly at the apartment door. When no answer was received, the maintenance man at the request of the deputies opened the door with a pass key. As the deputies entered the apartment, sheriff’s deputy Maxey carried a shotgun. The plaintiff Monroe was sleeping in his bed at the time and was awakened by the deputy sheriff who was pointing the shotgun at Monroe. The deputy ordered Monroe to remove his hand from underneath the pillow upon which he had been sleeping. According to Monroe the deputy then advised him that he was looking for a black man with a beard. It was undisputed that the police entered the Monroe apartment without the permission of Monroe. The officer immediately decided that Monroe was not involved in the attempted robbery of Hackworth an hour before. The officers left the Monroe apartment about two minutes after they entered the same. The officers then investigated several other apartments in the building but left when the victim of the attempted robbery arrived and advised them that the vehicle in the parking lot had the dent in the trunk lid on the wrong side and was not his assailants vehicle.
On February 15, 1973, a week after the occurrence, Monroe filed an action against sheriff Darr and his surety, Ohio Casualty Insurance Company, to recover damages on the sheriff’s bond for invasion of his right of privacy. The defendants filed a motion to dismiss the action for failure of the petition to state a claim upon which relief could be granted. The district court sustained the motion and Monroe appealed to this court. We reversed and remanded the case with directions to proceed with trial. (Monroe v. Darr, 214 Kan. 426, 520 P. 2d 1197.) In the first appeal we held that a sheriff and his sureties are responsible for acts of the sheriff’s deputies performed or committed in discharging their official duties under the provisions of K. S. A. 19-805. We further held that the plaintiff’s petition sufficiently stated a claim against the sheriff and his surety for damages for invasion of Monroe’s privacy and the assault committed by the sheriff’s deputies.
Following reversal of the case a pretrial conference was held by the district judge on April 25, 1975. On April 28, 1975, the action came on for trial before a jury. Prior to the commencement of the trial, counsel for the defendants moved to strike the plaintiff’s claim for punitive damages for the reason that there was no evidence of willful or wanton misconduct on the part of the sheriff’s deputies so as to justify punitive damages. The court gave the plaintiff no opportunity to present evidence on his claim of punitive damages and on the basis of 'the pleadings and the pretrial order struck the plaintiff’s claim for punitive damages. The case then proceeded to trial. After the plaintiff had presented his evidence and rested, the district court sustained the defendants’ motion for a directed verdiot and to dismiss the action for the reason that the plaintiffs evidence failed to show that he had sustained any damages and there was an insufficient evidentiary basis for the jury to award plaintiff a judgment for money. The plaintiff Monroe’s case was dismissed and he has appealed to this court.
Monroe’s first point on the appeal is that the trial court erred in striking his claim for punitive damages before he was afforded an opportunity to introduce evidence on that issue. The record discloses that in the prayer of his petition plaintiff sought to recover $5,000 exemplary damages in addition to $5,000 actual damages. The plaintiff continued to assert his claim for punitive damages at the pretrial conference. The pretrial order specifically states that a mixed question of law and fact to be determined is whether or not the plaintiff is entitled to recover punitive damages. Plaintiff maintains that it was prejudicial error for the trial court to strike his claim for punitive damages before trial without affording plaintiff an opportunity to prove his claim.
The general rule is that punitive damages may be recovered for an invasion of the right of privacy where 'the defendant has acted with malice. (62 Am. Jur, 2d, Privacy, §47; Santiesteban v. Goodyear Tire & Rubber Co., [5th Cir., Fla. 1962] 306 F. 2d 9; Munden v. Harris, 153 Mo. App. 652, 134 S. W. 1076; Hinish v. Meier & F. Co., 166 Or. 482, 113 P. 2d 438; Summit Loans, Inc. v. Pecola, 265 Md. 43, 288 A. 2d 114.) A plaintiff seeking to recover punitive damages has the burden of proving malice on the part of the defendant. In the present case the trial court prematurely entered its order striking the plaintiff’s claim for punitive damages before the plaintiff had an opportunity to introduce evidence on that issue. However, at the trial the plaintiff, in order to show the factual circumstances surrounding the invasion of his apartment by the sheriff’s deputies, offered into evidence statements taken from various sheriff’s deputies who were involved in the affair. The plaintiff accepted the statements of these officers as true and rested his case upon them. In these statements the sheriff s deputies stated unequivocally that they entered the Monroe apartment because they were in search of an unknown person who might have been involved in the attempted robbeiy of Maurice Hackworth approximately one hour before. Although the actions of the deputy sheriffs could well be described as overly zealous in invading Monroe’s apartment without first obtaining a search warrant, there is nothing contained in the evidence relied upon by Monroe which shows that the sheriffs deputies acted with malice or were chargeable with willful or wanton misconduct. We have held that exemplary or punitive damages are not recoverable from a sheriff unless fraud, malice, oppression or improper motives are shown. (Win-stead, Sheriff, v. Hulme, 32 Kan. 568, 4 Pac. 994; Dow, Assignee, v. Julien, 32 Kan. 576, 4 Pac. 1000.) We have concluded that, although the district court acted prematurely in striking plaintiff’s claim for punitive damages before trial, in view of the fact that the undisputed evidence offered by plaintiff at the trial fails as a matter of law to show malice or improper motive plaintiff was not prejudiced by the ruling of the district court. On the undisputed facts Monroe is not entitled to recover punitive damages from sheriff Darr or his surety. We, therefore, hold that Monroe’s first point does not justify a reversal of the case.
Monroe’s second point on the appeal is that the trial court erred in directing a verdiot in favor of the defendants at the close of the plaintiff’s case. The defendants moved to dismiss the case and for a directed verdict for three reasons: (1) Probable cause for entry into the plaintiff’s apartment by the sheriff’s deputies had been shown; (2) since the sheriff could not discharge the deputies at his pleasure, he was not liable for the deputies’ acts; and (3) plaintiff’ s evidence failed to show that he had sustained any damages. The district court overruled the motion on the first two grounds but held it should be sustained for the reason that proof of damages was remote and speculative and therefore the plaintiff’s evidence failed to show that he had sustained any damages.
It was undisputed that the sheriff’s deputies physically intruded upon the seclusion of the plaintiff Monroe. Such intrusion, unless justified by the circumstances, would constitute an actionable invasion of Monroe’s right of privacy. (Restatement, Second, Torts, § 652B; Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993; Dotson v. McLaughlin, 216 Kan. 201, 531 P. 2d 1; 56 A. L. R. 3d 434 and cases cited therein.) The elements of damage which may be recovered in an action for the invasion of privacy are stated in Restatement, Second, Torts, § 652H to be as follows:
Ҥ 652H. Damages
“One who has established a cause of action for unreasonable invasion of his privacy is entitled to recover damages for
“(a) The harm to his- interest in privacy resulting from the invasion;
"(b) His mental distress proved to have been suffered if it is of a kind which normally results from such an invasion; and
“(c) Special damage of which the invasion is a legal cause.” [Tentative draft No. 21.]
An invasion of privacy action is primarily concerned with compensation for injured feelings oar mental suffering of the injured party. (Munsell v. Ideal Food Stores, 208 Kan. 909, 924, 494 P. 2d 1063.) The gist of the cause of notion for invasion of privacy is for direct wrongs of a personal character which result in injury to the plaintiffs feelings. (62 Am. Jur. 2d, Privacy, § 45 and cases cited therein.)
Kunz v. Allen, 102 Kan. 883, 172 Pac. 532 (1918), was the first Kansas case to recognize an action for breach of privacy. That case involved a demurrer sustained by the trial court on the ground that plaintiff failed to prove any actual damages from the invasion. This court reversed saying it was not necessary for the plaintiff to prove the amount of her damages in dollars and cents as long as the evidence tended to show the effect of the wrong upon the plaintiff. A similar rule is applied in cases of assault and battery. (Schaap v. Hayes, 99 Kan. 36, 160 Pac. 977.) A correct statement of the Kansas law may be found in Manville v. Borg-Warner Corporation, (10th Cir., 1969 ) 418 F. 2d 434. There the court held that although a plaintiff in a privacy suit can recover without proof of special damages and is not required to show general damages in specific amounts, he is required to introduce some evidence to show that he suffered anxiety, embarrassment, or some other form of mental anguish. In the present case the trial court in sustaining the defendants’ motion for a directed verdict held that Monroe’s evidence was insufficient to show' that he had suffered general damages by way of mental distress as a result of the invasion of his privacy. We have concluded that the trial court erred in this regard. Although somewhat skimpy, the evidence was sufficient to submit the issue of general damages to the jury.
At the trial the plaintiff Monroe took the stand and testified that since the incident he could not sleep well at night, that he was more nervous than he was before, that he had feelings of apprehension, and no longer felt safe. Monroe’s wife testified that since the incident her husband had become extremely nervous, hears noises at night, has had more attacks of asthma than he had before the incident, has trouble going to sleep, and that he does not trust law enforcement officers any more. She further testified as to his mental distress on the date the incident occurred. It was not necessary for the plaintiff to call medical witnesses to testify as to his condition and to show mental anxiety and suffering. It was not necessary for him to introduce evidence to show the value of his mental distress in dollars and cents. The amount of damages which should be allowed for the plaintiff’s mental distress was a question for the determination of the jury. The district court in our judgment erred in taking the case away-'from the jury and entering judgment in favor of the defendants since the plaintiff introduced evidence showing that he suffered mental distress and anxiety as a result of -the incident. The case must be reversed and remanded to the district court for a new trial.
The defendants in their brief have raised a point which was not briefed or argued by the plaintiff on the appeal. Essentially the defendants contend that the trial court properly directed a verdict in favor of the defendants and dismissed the plaintiff’s action because the plaintiff had failed to show any wrongful or tortious act on the part of the sheriff’s deputies on which a recovery may be based. The defendants concede that the sheriff’s deputies entered the Monroe apartment without first obtaining a warrant. They maintain, however, that under all the circumstances there was probable cause to enter the apartment without first obtaining a warrant. We do not agree. The blue Valiant which was parked in front of the apartment complex had not been identified by the robbery viotim as being the automobile of his assailant. All that the police knew was that the robber was driving either a 1960-61 Dodge Lancer or Plymouth Valiant which had a dent somewhere in the trunk lid and a vague identification of the assailant as a white male, with a long beard and long brown hair, about 6 feet tall, and weighing about 200 pounds. In our judgment this information did not justify the sheriff’s deputies in entering Monroe’s apartment without a warrant. Probable cause alone is not sufficient to justify a warrantless search or entry into a private residence. In addition to probable cause it is necessary for the police officer to show exigent circumstances which make an immediate warrant-less search imperative. (Warden v. Hayden, 387 U. S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642.) It is true that in some cases circumstances may be present where police officers in hot pursuit of a clearly identified robber are justified in entering a private residence which he has been seen entering, in order to make an arrest. Such a rule is not applicable, however, under the facts and circumstances shown in the present case. The right of the people to be secure in their homes is a basic right guaranteed by the Kansas Constitution in § 15 of the Rill of Rights. Entry into a private home or apartment by police officers constitutes an invasion of the right of privacy of the members of the family residing there and unless justified by legal privilege gives rise to a cause of action for breach of privacy. Under the facts and circumstances shown in this case we find no justification for the entry by the sheriffs deputies into the Monroe apartment without first obtaining a search warrant from a judicial officer.
The defendants further take the position that the sheriffs officers were exercising their discretion in deciding to enter the Monroes’ apartment, and assuming there was a violation of Monroe’s privacy, there was no wantonness or malice present so as to make them liable. The sheriff and his surety rely upon Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 536 P. 2d 54, where we held that a public officer exercising discretion in the performance of his official duties is not liable for resulting injuries in the absence of malice, oppression, wantonness, or willful misconduct. The difficulty with this position is that the acts of the sheriffs deputies: in invading the Monroe apartment went beyond the mere exercise of discretion in arriving at an administrative decision. Here the sheriffs deputies committed acts of actual invasion into the seclusion of the plaintiff s home. In the past this court has held a sheriff and his surety liable on the sheriffs bond under K. S. A. 19-805 for intentional or negligent acts of the sheriffs deputies where such acts did not involve malice or wantonness or willful misconduct. Where a deputy sheriff makes a levy upon property not authorized by the writ of execution, the sheriff is responsible with him for damages. (Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379; Jones v. Simmons, Sheriff, 115 Kan. 505, 223 Pac. 284.) In Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P. 2d 886, this court held the sheriff and his surety liable under K. S. A. 19-805 where the deputy sheriff in making an arrest under a warrant used excessive force by discharging a tear gas gun into the plaintiffs eyes at close range and thereafter failed to provide needed medical attention. This court rejected the defendant’s argument that there could be no recovery since “fraud, deceit, or oppression” were not alleged. In Duran v. Mission Mortuary, 174 Kan. 565, 258 P. 2d 241, a sheriff was held responsible for negligent acts of a deputy in driving a patrol car which resulted in personal injuries to the plaintiff.
In the first appeal in this case we held that the plaintiffs petition stated a claim against the sheriff and his surety for damages for invasion of Monroe’s privacy and the assault committed by the sheriffs deputies. In view of our prior cases construing K. S. A. 19-805 discussed above and our decision in this same case on the prior appeal, we reject the contention of the defendants that sheriff Darr and his surety may esoape liability in this case for invasion of Monroes right of privacy simply because such invasion was not committed by the sheriff s deputies with malice, oppression, wantonness, or willful misconduct.
The judgment of the district court is reversed and, for the reasons set forth above, the case is remanded to the district court with directions to grant the plaintiff Monroe a new trial. | [
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Per Curiam:
This is another case involving the no-fault insurance law, the Kansas automobile injury reparations act, K. S. A. 1975 Supp. 40-3101, et seq. The defendant, The Western Insurance Companies, appeals from a judgment against it and in favor of the plaintiffs, Mr. and Mrs. Charles Davis.
The case was tried below upon a stipulation of facts which we summarize as follows: Mr. and Mrs. Davis, residents of Morton County, Kansas, were the insureds in an automobile policy written by the Western. The policy included all the coverages required by K. A. I. R. A. On February 19, 1974, the Davis automobile was involved in a collision with a vehicle driven by Terry W. Robertson. Mrs. Davis was injured and her automobile was damaged. Robertson was covered by a liability policy written by the Trinity Companies. The Davises settled their property loss with Trinity, and we are not concerned with that loss.
The Western paid the Davises $1,006.24 under the personal injury protection (PIP) provisions of its policy. That payment covered medical expenses and partial loss of wages.
Mr. and Mrs. Davis then employed counsel to recover all damages sustained by them by reason of the negligence of Robertson, including the damages for which the Davises had received payment from the Western under their PIP coverage. The total damage claimed was $2,125.84. Plaintiffs’ attorney sent a letter demanding that amount to Trinity, with a copy to the Western. On the following day the Western advised plaintiffs’ counsel that it anticipated no difficulty in obtaining reimbursement from Trinity; the Western desired no assistance from plaintiffs’ counsel in recovering its PIP payments; and if it became necessary for the Western to file a claim, it would do so through its own counsel or submit the matter to arbitration. Plaintiffs’ counsel promptly advised Trinity that plaintiffs claimed the exclusive right of action for all damages sustained by them by reason of the collision with Robertson, and the exclusive right to negotiate settlement; any payment made by Trinity without plaintiffs’ consent would be treated as voluntary; and any credit therefor against the Davis’ claim would be stoutly opposed. Eventually Trinity agreed to pay the full amount demanded and issued its draft payable to Mr. and Mrs. Davis, their attorney, and the Western. Plaintiffs endorsed the draft and sent it to the Western with a letter asking the Western to endorse and return the draft to plaintiffs’ counsel, who would then remit to the Western $806.50, being the amount of the PIP payments less $215.50, the latter being a pro rata share of the attorney’s fees plaintiffs had incurred in effecting settlement. The Western returned the draft without endorsement.
Mr. and Mrs. Davis then commenced this action against the Western, seeking an order of the court requiring the Western to endorse the draft, approving the pro rata share of attorney’s fees of $215.50, and awarding plaintiffs attorney’s fees in this action pursuant to K. S. A. 40-256. The Trinity draft was deposited with the clerk of the court.
After submission of the matter on stipulation and briefs, the trial judge wrote to counsel stating that he was granting judgment to the plaintiffs. His letter reads in part:
“. . . The basis for this decision is that the relevant portion of K. S. A. 40-3113 being the phrase ‘exclusive of reasonable attorney’s fees . . .’is construed as the sum to be repaid is not including the attorney fees required to collect the sum. The same result is. obtained by construing the words ‘exclusive of’ as ‘excluding’ which I find to be the legislative intent.
“Judgment is also granted plaintiffs for attorney fees herein . . .”
A formal order followed. It charged the Western with a portion of plaintiffs’ attorney’s fees, $215.50, and taxed an additional $420 against the Western as attorney’s fees for plaintiffs in this action.
The Western contends that the district court erred in awarding plaintiffs judgment against it for attorney’s fees under the provisions of K. S. A. 1975 Supp. 40-3113. It claims that under the stipulated facts, it is entitled to full reimbursement in the amount of the PIP benefits paid, without deduction for attorney’s fees or expenses, and that the statute so provides.
This contention is governed by our decision in Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P. 2d 117, this day decided. We there held that when an injured person, who has received PIP payments, recovers from the tort-feasor as damages a sum which exceeds the PIP benefits received plus reasonable attorney’s fees and expenses of suit, the statute requires the insured to fully reimburse the PIP carrier. Accordingly, under the facts before us, the Western is entitled to full reimbursement of the PIP benefits which it has paid in the amount of $1,006.24, without deduction for attorney’s fees or expenses.
The Western also contends that the district court erred in awarding plaintiffs additional attorney’s fees for the prosecution of this action. We agree. K. S. A. 40-256 provides for the allowance of an attorney’s fee in any action on a policy of insurance when the insurance company has refused without just cause or excuse to pay the full amount of a loss. The Western did not refuse to pay a loss under its policy. It paid the policyholders promptly and in full for their loss. It later challenged the right of the Davises, under K. S. A. 40-3113, to charge a part of an attorney’s fee against funds which had been recovered from a third party, funds upon which the Western has a lien. K. S. A. 40-256 does not apply to such a state of facts, and is wholly inapplicable. But even if it were applicable, the Western quite obviously had just cause to challenge plaintiffs’ asserted construction of K. S. A. 40-3113. Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 452, 517 P. 2d 173; Parker v. Continental Casualty Co., 191 Kan. 674, 684, 383 P. 2d 937.
For the reasons stated, the judgment is reversed.
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Per Curiam:
The only questions presented on this appeal in the appellant’s statement of points relate to the admissibility of evidence. He was convicted by a jury of attempted theft, a class E felony under K. S. A. 21-3301. The only issue for review is whether the admissible evidence supports a finding, inherent in the verdict, that the merchandise sought to be taken was of a value of more than fifty dollars.
The merchandise consisted of three packages of wrenches taken from the hardware department of the Sears-Roebuck retail store in Wichita. The testimony of one Sears employee described the method, with which he was familiar, of pricing and placing retail price tags on new merchandise placed on the counters for sale. The price tags on the three packages showed a total retail value on the date of the attempted theft of $56.77.
Another employee, also familiar with pricing practices, obtained his valuation figures from checking the records from the stock numbers of the items, arriving at the same result.
The objection to the evidence was that it was inadmissible hearsay. Evidence of retail prices for new merchandise is proper evidence of market value for the purpose of establishing the degree of crime. (State v. Rogers, 217 Kan. 462, 467, 537 P. 2d 222, 227; Clinton v. State, 210 Kan. 327, 328, 502 P. 2d 852, 853.) (See, also, State v. Mall, 112 Kan. 63, 209 Pac. 820, Syl. 5.)
While the testimony was not in the form of opinion as to value, the retail prices were established by the store records. The price tags were placed on the merchandise in the due oourse of business. The price tags were in evidence. The foundation testimony was sufficient to qualify the price tags under K. S. A. 60-460 (to) as memoranda or records of acts to prove the facts stated, made in the regular course of business by a method and under circumstances-as to indicate their trustworthiness. The same may be said of the stock numbers which led one witness to the price records.
As the result of cross-examination of the state’s witnesses it was shown that the mark-up over cost prices in retail merchandising at Sears was about 45%, putting the value at wholesale below the fifty dollar figure. But on redirect examination it was established that the difference was largely absorbed by overhead costs so that the retail prices actually represented only a 5% profit. On the basis of 95% of retail the value of the articles was fixed at $53.97. Where there is evidence of both retail and wholesale prices the determination of actual value is for the jury. (State v. Rogers, supra.)
In his brief appellant says, for the first time, that his constitutional right of confrontation is violated by the admission of the records of retail value. This claim is without merit.
Though it is not one of his points on appeal, appellant now asserts that the evidence does not support the conviction. An examination of the record shows the evidence to be ample to sustain the verdict of guilt of attempted felonious theft.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This action originated in the probate court when the executor of an estate filed a supplementary report in which he asked the probate court to determine the effect of a contract he had discovered amongst the papers of Maggie Z. Smith, deceased. On motion of an interested party the matter was transferred to the district court. In that court the Alumni Association of The Kansas State College, of Manhattan, Kan., filed what amounted to a petition for specific performance of the contract. Issues were joined by the answer of some of the legatees and devisees of Mag gie’s will, the cause tried and judgment entered decreeing specific performance as prayed for by the association. The legatees and devisees have appealed.
The essential facts are admitted. Maggie Z. Smith was the only child of Caleb R. Davis and Mrs. Davis, pioneer citizens of Rice county. She was their only heir and inherited the land in question from them. She was the wife of John S. Smith, who died in 1934. She died July 3, 1945. She and her husband had no children.
On January 10, 1929, Maggie and her husband entered into the contract with the Alumni Association, which is the subject of this action. That contract provided in the first paragraph as follows:
“In consideration of the stipulation and agreements hereinafter enumerated to be performed by the party of the second part, the parties of the first part agree to give to the party of the second part such property and (or) such sums of money as they shall see fit at such times as they shall see fit including the following described real estate in Rice County, Kansas, to wit:”
After a description of the. real estate the contract provided as follows:
. . deeds to which have been executed in favor of said party of the second part and placed in escrow with the Citizens State Bank of Little River, Kansas, said deeds to be delivered to the duly elected and qualified president of the said Alumni Association of the Kansas' State Agricultural College by said bank immediately upon the death of Maggie Z. Smith, one of the parties of the first part, provided that the parties of the first part or either of them shall have the right to withdraw said deed or deeds from escrow at any time that they may see fit during the lifetime of said Maggie Z. Smith, and said Citizens State Bank is hereby instructed to deliver said deed or deeds to Maggie Z. Smith in the event that at any time she may demand it.
“The party of the second part hereby agrees that such sums of money and the proceeds from the sale of such property as may be transferred to it'by the parties of the first part shall be managed, loaned and expended in its discretion to aid worthy students in obtaining education at the Kansas State Agricultural College.
“The party of the second part further agrees that, for the aforementioned purpose, it will organize and maintain, in such form as to it in the exercise of its discretion may seem from time to time necessary or desirable, an organization to be known and administered as and in the name of the C. R. Davis Memorial Fund.”
The deeds to which reference is made in the above-mentioned ' contract were found after Maggie’s death in the hands of an officer of the bank named as escrow holder. These deeds, three in number, were in an envelope along with the contract. They were duly executed by Maggie and her husband, but the name of the grantee was not written in at the place provided. The record discloses that sometime subsequent to the execution of the contract and deeds Maggie sold and gave a warranty deed to eighty acres of the real estate in question. No question is raised about her right to do this. Only 580 acres are involved here.
Maggie died testate. She' made her will on January 20, 1938, subsequent to the execution of the contract and deeds, to which reference has been made. Besides some specific bequests she provided that the residue should go to eleven named persons. Appellants are those persons. The land with which we are concerned was not mentioned in this will. There is no dispute about the above facts.
In the district court the alumni association filed a petition. It alleged that Maggie inherited the property from her father, a pioneer farmer, and that prior to January 16, 1929, Maggie and her husband had planned to establish an endowment fund in memory of Maggie’s father; that shortly before that date they called the. officers of the association to their house and told them they desired to establish such a fund and they would establish it provided the association would create and maintain it in the name of “The C. R. Davis Memorial Fund”; that all parties did enter into the contract already mentioned; that on 'the date the contract was executed Maggie and her husband performed it by executing warranty deeds to the land in question with the petitioner named as grantee and placing them in a bank with instructions to comply with the contract; that as provided in the contract Maggie did remove from the bank one deed covering a described eighty acres and selected the property contracted to be conveyed by leaving the remaining deeds in the bank; that in compliance with the terms of the contract petitioner had made the necessary preparations and was ready, willing and able to perform all the conditions of the contract.
The petition prayed for specific performance of the contract and that the association be adjudged to' be the absolute owner in fee simple of the land and that the escrow holder be ordered to forthwith deliver to petitioner all the deeds.
The legatees and devisees named in the will -filed a motion for judgment on the pleadings in which they set out various legal reasons why the petitioner should not have the relief asked. This motion was denied.
The devisees then filed an answer. In this answer they admitted that Maggie and her husband made the contract and signed the deeds; that they owned the land and that subsequent to the execution of the deeds and contract Maggie had conveyed eighty acres of the land to a third party.
They denied that either Maggie or her husband had performed the contract, or had contracted by its terms to convey any land to the association or that they ever made any selection of property or that Maggie ever removed any deed from the escrow holder. They also denied that the association had authority under its charter to enter into such a contract.
The answer then alleged that the contract showed on its face that the association had no interest in the property; the instrument contained no words of conveyance; there was no delivery of the deeds and the grantors retained full control over them until the death of Maggie; that from the time of their signature until the day of Maggie’s death, Maggie or her husband retained full control over the property described in them by way of executing oil leases and collecting rents and royalties; that the so-called contract was void for want of mutuality and for want of consideration; that it was testamentary in character and was not executed in the manner prescribed by statute for testamentary instruments; that Maggie’s will did not mention either the land in question or the alumni association; that she died seized of the property.
These devisees prayed the contract be held void; that the real estate in question be adjudged part of Maggie’s estate and that the association be barred of any right, title or interest in the land.
With the issues thus drawn the ease was tried by the court. Counsel for the association made a somewhat lengthy opening statement. A portion of it with which we are concerned is as follows:
“Yes, sir, that’s right. In conclusion I just want to say to your honor or tell your honor exactly what our position is in this case. This is a suit on a contract and we are alleging and contending that there was a valid consideration for the contract; that Mrs. Smith, after the execution of the contract, made a selection of the property that was to go to the alumni association under the terms of the contract.”
The trial court found that the alumni association was the owner of the fee simple title to the real estate in question; that it was no part of Maggie’s estate and the residuary devisees under her will had no interest in it. Judgment was entered accordingly and motion for a new trial was overruled. Hence this appeal.
The cause was tried in the court below and is argued by appellees here on the theory that it was brought to enforce the contract. Appellees take the position the contract was for a valuable consideration; that the only uncertainty about it was how much land would pass at the death of Maggie and when- she died leaving deeds for 550 acres of land in the hands of the escrow holder she thereby selected that much land to pass by the contract. The trial court in entering judgment for the appellees remarked that our holding in Southwestern College v. Hawley, 144 Kan. 652, 653, 62 P. 2d 850, compelled such a holding. Appellees rely in a large measure on that opinion. On account of the conclusion we have come to in this appeal we shall first discuss what we deem to be the distinction between that case and this one. That case involved a subscription to the endowment fund of a college. The instrument upon which the claim was filed was as follows:
“Form 4-Estate Pledge
“Fortieth Anniversary Advance
“$1,340,000 $1,340,000
“Southwestern College
“Dated at Arkansas City, Ks., 12/19/25.
“In consideration of the importance of Southwestern College as an institution of higher Christian learning, its need for endowment and sustentation, and in consideration of pledges being made by others for the same purposes, I hereby pledge and promise to pay to the Southwestern College, Winfield, Kansas, the sum of one thousand and no/100 dollars ($1,000), which sum shall become due upon my decease and shall be payable out of my estate.
“This pledge shall bear no interest and shall be paid out of my interest in the west half of the southeast quarter of section nine, township thirty-five, range four, Cowley county, Ks.
“(Signed) C. Lundstrom.
“Witness: W. C. Robinson, Jr., Arkansas City, Kansas.
“Witness: R. A. Dadisman, Winfield, Kansas.
“(Notation on Back)
“It is agreed by the Southwestern College that at any time the donor wishes to take up this pledge by the payment of cash it will [be] and is to him an annuity bond bearing interest at the rate of one half of one percent above his age at the time of issuing said bond.
“Southwestern College,
“By R. A. Dadisman, Field Secretary.”
It was placed with an escrow agent and'was in its hands when the signer died. We held it to be a valid claim' against his estate.
It will be noted that the above instrument was in the form of a promissory note. As far as the instrument itself was concerned it was an unconditional promise to pay a definite amount. The only detail left uncertain was the date when it should become payable. This was certain to occur some time, the exact date only was uncertain. It is true the escrow holder was permitted to testify that the maker of the note had, when he delivered the note to him, reserved the right at any time he saw fit to reclaim it. This was a matter between the signer of the note and the escrow holder. As far as the instrument itself was concerned it was a definite promise to pay a definite amount.
Such cannot be said, however, of the contract here. The first clause was no more than a promise to give to the association at some indefinite time in the future, to be fixed as the promisor saw fit, such property or sums of money as the promisor should see fit.
After the description of the property, we find the provision about depositing the deeds. Then following the provision to the effect that once the deeds were deposited either Maggie or her husband had the right to withdraw any or all of them at any time they saw fit during Maggie’s life. Thus we see the right of withdrawal was a part of this instrument while the withdrawal features in the Southwestern College case only appeared in the instructions of the maker of the note to the escrow holder. We examined the contract in this case carefully and we find no provision that actually bound Maggie and her husband to do anything beyond what they wished to do and could have done without any contract. As a matter of fact such seems to have been the practical interpretation placed on the contract by the parties since Maggie did convey away one eighty which was included in the land covered by the contract, and a deed to which was included among the deeds deposited with the escrow holder. She seems not to have had any idea but that she could convey any of this land she saw fit.
Since appellees insist that this is an action to enforce a written contract to convey land they must look to its provisions for any rights they may have. If we construe the contract and the deeds and the escrow agreement together, we find that Maggie and her husband never did part with control over the deeds. The plain language of the contract as well as the conduct of the parties show there- was never any such intention on their part. Under such circumstances even had the name of the officers of the association been written in the deeds as grantees no title would have passed. See Sample v. Reed, 130 Kan. 524, 287 Pac. 614; also, Roberts v. McCoach, 145 Kan. 407, 65 P. 2d 289, and Hush v. Reeder, 150 Kan. 567, 95 P. 2d 313.
Once we reach the conclusion that the giving of the deeds, together with the contract, did not entitle appellees to specific performance, we must consider the question of whether .the contract by itself is enforceable. It provided that the parties of the first part “agree to give.” The question arises at what time in the future was the gift to take place. Clearly at the death of Maggie. No title was to' pass until then. In Lowry v. Lowry, 160 Kan. 11, 159 P. 2d 411, in syllabus paragraphs^one and two we held:
“1. If from the terms of a written instrument, designated ’ as'a warranty deed, it appears the maker intended to immediktely vest title to real property, therein described, in the grantee,-the instrument is a deed; but if its terms disclose the grantor intended to vest title in the grantee only at the death of the grantor the instrument is testamentary in character and can be valid only if executed in the manner provided by statute for making a will.
“2., Two instruments, designated as warranty deeds, examined, and held: They disclose the grantor warranted title to the property described therein only as of the date of delivery; the grantor expressly specified delivery thereof was to be at her death and the instruments were testamentary in character.”
In the opinion we said:
“All parties agree the instruments were not executed in accordance with the law of wills but were in the form of deeds. Were the instruments testamentary in character? That depends upon whether the interest they conveyed to the grantees was intended to vest presently or only after the death of the grantor. If the former was intended the instruments were deeds. If, on the other hand, the latter was intended the instruments were wills.” (p. 14.)
See, also, Imthurm v. Martin, 150 Kan. 906, 96 P. 2d 860. No one argues that the contract here was executed as a will should have been.
If by depositing the deeds with' the escrow holder the Smiths intended to pass a present interest in the land to the association, what they actually did fell far short of accomplishing that, as we have already demonstrated.
Appellees argue that this contract created an educational trust and point out that such trusts have always been favorites of the law. It asks us to carry out what was the manifest intention of the Smiths. It clearly was the intention of the Smiths to retain title to this land and control of the deeds until Maggie’s death. Under the circumstances we must pass on the matter in the light of what the parties actually did rather than in the light of what it appears they might have intended. It follows that the real estate in question was part of Maggie’s estate when she died.
The judgment of the trial court is reversed with directions to enter judgment in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a declaratory judgment action brought by Lakeview Gardens, Inc., a cemetery corporation, to obtain judicial interpretation of K. S. A. 16-301 as it may apply to Lakeview’s preneed funeral contracts for the sale of caskets. Lakeview unsuccessfully sought to obtain an order of the trial court declaring its contracts for the sale of caskets to be outside the provisions of the statute. The trial court declared the contracts to be covered by the statute and ordered all monies received by Lakeview from such sales to be placed in trust in accordance with K. S. A. 16-301, et seq. Lakeview appeals.
The statute provides:
“Any agreement, contract or plan requiring the payment of money in a lump sum or installments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body, or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the delivery of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be deposited in a bank or trust company which is authorized to do business in this state and insured by a federal agency, all as herein provided, and subject to the terms of an agreement for the benefit of the purchaser or said agreement, contract or plan. For the purposes of this act, personal property of funeral or burial merchandise shall include caskets, vaults and all other articles of merchandise incidental to a funeral service, but shall not include grave lots, grave spaces, grave memorials, tombstones, crypts, niches and mausoleums.” (K. S. A. 16-301. Emphasis supplied.)
The facts set forth in the following paragraphs of the petition were stipulated by the parties:
“4. Plaintiff offers for sale caskets (i. e., ‘Eternal Rest Crypt Beds’) which are burial merchandise within the meaning of K. S. A. 16-301, and plaintiff has entered into sales contracts whereby plaintiff has sold to purchasers a substantial number of caskets. A copy of the sales contract is attached hereto, marked as Exhibit ‘A’ and by reference made a part hereof.
“5. Pursuant to the terms of the sales contract, plaintiff immediately tenders delivery of the casket to the purchaser. The purchaser has the option of removing the casket to such place as he desires or he may direct plaintiff to store it on plaintiff’s premises at no charge. However, by electing to have plaintiff store the casket, the purchaser does not waive his right under the contract to take possession of the casket at any time.
“6. Plaintiff has sold a substantial number of caskets pursuant to this contract, having a total retail value of approximately $322,000.00. Each casket is identified with a number. An index book is maintained with the purchasers’ name correlated to numbers so that any purchaser’s casket can be readily identified.”
The contracts for the sale of caskets did not include the cost of mortuary professional services or the expense of opening and closing burial spaces. The sample form of contract attached to the petition is in such form that it can be made to cover the sale of cemetery lots (interment spaces), caskets (burial vaults), bronze memorials, lawn crypts or mausoleum crypts. However, the parties by stipulation have limited the court’s consideration of the contracts to an interpretation of the statute as applied to the sale of Lakeview caskets.
The parties agree that the court’s interpretation of the statute will necessarily depend in large part upon the efficacy of the following paragraph in the contracts:
‘‘Purchaser hereby acknowledges receipt of the above described burial vault(s) or Eternal Rest Crypt Bed(s) specified above, delivered to Purchaser by Lakeview. Purchaser authorizes and directs Lakeview to store said burial vault(s) or Eternal Rest Crypt Bed(s) free of charge. Purchaser has the right at any time to remove said burial vault(s) or Eternal Rest Crypt Bed(s) from storage.”
Our consideration of the contracts is restricted, by facts stipulated, to caskets which have been purchased at wholesale by Lake-view and then resold. Upon execution of each sale contract a casket is immediately tendered to the purchaser. The purchaser then, under terms of the contract, directs Lakeview to store the casket in a warehouse. Each casket when stored is identified by a number affixed thereto. An index book is maintained by Lakeview with the purchaser’s name correlated with the number on the casket. The purchaser’s casket can be identified in the warehouse by its number, and under the contract he may take possession of the the casket at any tíme, although taking actual possession of a casket prior to death would appear somewhat implausible to a normal individual.
In determining whether K. S. A. 16-301 applies to particular contracts under facts stipulated by the parties, this court must ascertain and give effect to the intent of the legislature. In so doing we must consider the language of the statute; its words are to be understood in their plain and ordinary sense. (Hunter v. Haun, 210 Kan. 11, 13, 499 P. 2d 1087; Roda v. Williams, 195 Kan. 507, 511, 407 P. 2d 471.) When a statute is plain and unambiguous this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. (Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, 647, 518 P. 2d 453; Jolly v. Kansas Public Employees Retirement System, 214 Kan. 200, 204, 519 P. 2d 1391.)
In the present case both parties insist the statute is clear and unambiguous. The words of the statute to which our attention is called are: “Any . . . contract . . . wherein the delivery of the personal property ... is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be deposited in a bank or trust company . . .”
The appellant, Lakeview, contends its contracts are not those contemplated and covered by K. S. A. 16-301, since the contracts require delivery of a casket at the time each sale is completed.
The appellee contends the words “immediately required” should be interpreted to mean “when needed by reason of the death of the person for whom the casket is purchased.” Appellee argues a casket cannot be “immediately required” until a person dies. Therefore all monies paid for caskets must be deposited in trust unless they are purchased on the death of the person whose body will occupy the same.
Both parties rely heavily on quoted portions of our opinion in State, ex rel., v. Anderson, 195 Kan. 649, 408 P. 2d 864. Our discussion in that opinion was not limited to the sale of caskets, as it must be in the present opinion. In Anderson the provisions of the cemetery corporation contracts examined by this court covered the sale of cemetery lots, the sale of caskets and memorial grave markers and a further provision calling for cancellation of future payments in event of the death of the purchaser. The provision for the sale of cemetery lots was governed by a construction of K. S. A. 17-1311, which is not in our present case. The present contracts for the sale of caskets contain no provision for cancellation of future payments in event of the death of the purchaser, so we have no insurance question presented. The sale of memorial grave markers has likewise been eliminated from our consideration by the stipulation of the parties. We will discuss other distinguishing features of the Anderson case as we examine the present contract.
The statute with which we are concerned relates to agreements, contracts or plans for the sale of prearranged burial merchandise. Certain contracts are declared against public policy and void unless all money paid under them is placed in trust. The reason for the concern of the legislature in this area is explained in Anderson. The concern of the legislature expressed by this statute emanated from the possibility for fraud which can arise from sales of burial merchandise to young persons where the purchase price is collected long in advance of any actual need for such merchandise. Because of the time lag between the time of bargaining and the time of performance requiring delivery of the merchandise there are hazards not present in ordinary retail sales. Not only do such sales present opportunities for fraud and deceit but delivery of the merchandise may become impossible of performance when a seller has suffered economic woes and has gone out of business. The purpose of requiring that purchase price payments be held in trust is to assure those who purchase preneed caskets and burial merchandise that they will have either the benefit of their purchase, the merchandise, or their money back at the time the need for the merchandise occurs.
The legislature did not restrict all sales of caskets. It is only those sales wherein the delivery of the casket is not immediately required that fall within the restriction. An intent to restrict all preneed contracts for the sale of caskets could have been clearly expressed without reference to delivery, if such was the intent of the legislature.
When we examine the statute it restricts any contract wherein delivery of burial merchandise is not immediately required. The word “wherein” relates back to “any agreement, contract or plan” for they are the subjects of the 149 word sentence by which the legislature expressed its intent. Under the Lakeview contracts the purchaser acknowledges that the casket he purchased has been delivered to him. In the contract he then authorizes and directs Lakeview to store the casket for him. Storage is free of charge. Each casket bears the identifying number of the purchaser, and the casket may be removed from storage by the purchaser at any time.
In State, ex rel., v. Anderson, supra, no casket was delivered, constructively or otherwise, and the purchaser had no claim to a casket until he had completed all payments on the contract. In Anderson ninety percent of the sales were oik an installment payment basis extending for as long as six years. Those sales covered both a casket and a memorial grave marker. No merchandise was on hand and the cemetery corporation could collect and use the purchase money for any purpose it desired. There was nothing in the Anderson contract which required them to purchase the merchandise to fulfill their contract until after full payment and demand was made.
In the present case Lakeview has paid for and acquired the caskets. A casket is tendered to each purchaser when the contract of sale is executed regardless of whether the sale is for cash or on installments. Each casket is identified by number correlated to the name of each purchaser and placed in a warehouse where each is immediately available to the purchaser on request.
The appellee argues that Lakeview has attempted to subvert the language and spirit of the act by providing in the contract for constructive delivery of the casket. We must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. The restriction in the statute relates to contracts wherein the delivery is not immediately required. So the primary question would seem to be whether there was a sufficient delivery to remove the sale from the trust provisions of the statute.
The acts and facts which will constitute delivery of property vary in different classes of cases and depend upon the character, quantity and condition of the property, as well as the circumstances of the particular case. (Galemore v. Mid-West National Fire & Cas. Ins. Co., [Mo. 1969] 443 S. W. 2d 194; 26A C. J. S., Delivery, p. 165.)
Delivery may be either actual or constructive. Constructive delivery is a general term comprehending all those acts which, although not truly conferring a real possession on the vendee, have been held by construction of law equivalent to acts of real delivery. (Galemore v. Mid-West National Fire & Cas. Ins. Co., supra; 77 C. J. S., Sales, § 155, p. 881.) A constructive delivery is effectuated when, without actual transfer of the goods or their symbol, the conduct of the parties is such as to be inconsistent with any supposition other than that there has been a change in the nature of the holding. (Swafford v. Spratt, 93 Mo. App. 631, 635, 67 S. W. 701.)
There may be a completed delivery although the goods remain in the possession of the seller if the seller’s possession is as an agent or at the request of the buyer under an agreement to store or care for the property, and nothing further remains to be done by either party to complete the sale. (Taylor Machinery Corp. v. Brent, 249 Miss. 704, 709, 163 So. 2d 747; Brewton et al. v. Woodall et al., 92 Ga. App. 714, 89 S. E. 2d 835; 77 C. J. S., Sales, § 161, p. 886.)
In Brewton et al. v. Woodall et al., supra, a commission merchant after holding an auction sale set aside bags of pecans in a special area of a warehouse allotted to the vendee. Numbers were placed upon the bags to indicate they were the property of the vendee. It was held the sale of pecans to the vendee was complete and title passed when the bags were identified and segregated since this constituted constructive delivery of the pecans.
Under the facts stipulated in the present case we have a written contract of sale in which the purchaser acknowledges the casket purchased has been tendered to him and the purchaser then authorizes Lakeview to store the same for him. The casket is set aside and identified by a number correlated with the purchaser’s name in a book kept for that purpose. Under these facts constructive delivery to the purchaser has been effectuated.
The statute (K. S. A. 16-301) speaks merely in terms of delivery. Both actual and constructive delivery are recognized in the law. Had the legislature intended to void a contract for the sale of burial merchandise wherein delivery was constructive only it could easily have so declared in clear and unmistakable terms. It did not do so. Therefore this court must give effect to the language of the statute as the words are understood in their ordinary sense. It is our duty to determine the intention of the legislature as expressed rather than determine what the law should or should not be.
Both parties rely upon certain abortive legislative proceedings which occurred in 1963 and 1966 in the area of prearranged or preneed funeral contracts. The wording of the statute which is being considered in the present case has remained unchanged, for all practical purposes, since its enactment in 1953. The change adopted by the legislature in 1973 merely added the last sentence of K. S. A. 16-301 defining burial merchandise. The change in 1976 merely added savings and loan associations to those financial institutions authorized to accept trust monies. The legislative committee reports and proposed changes in 1963 and 1966 were never brought to a vote of the legislature and we fail to see the significance of such abortive proceedings as an aid to interpreting the 1953 law. In interpreting the provisions of the 1953 law we seek to determine the intent of the legislature in 1953, not at some later time.
Accordingly we hold under the facts as stipulated by the parties in this particular case Lakeview’s contracts for the sale of caskets do not fall within the purview of K. S. A. 16-301. The monies received from the sale of caskets actually or constructively delivered to the purchasers do not have to be placed in trust.
Judgment reversed. | [
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The opinion of the court was delivered by
Miller, J.:
Michael E. Burrow and Mark E. Dohlmar were each convicted of murder in the second degree in violation of K. S. A. 21-3402 at the conclusion of a lengthy jury trial in the district court of Sedgwick County, and each was sentenced to imprisonment for not less than fifteen years nor more than life. This is a direct appeal from those convictions. The sole question presented is whether the trial court erred in refusing to instruct on lesser included degrees of homicide, voluntary manslaughter (K. S. A. 21-3403) and involuntary manslaughter (K. S. A. 21-3404).
The appellants, along with Hector A. Conde and Edward Stephen Weser, were charged with conspiracy, aggravated kidnapping, and first-degree murder. Conde entered a plea of guilty to the included charge of murder in the second degree and he testified as a witness for the prosecution. Burrow, Dohlmar, and Weser were tried together. The jury acquitted them of conspiracy and aggravated kidnapping but found each guilty of murder in the second degree. All three appealed; however, Weser escaped from the penitentiary and during the time he was a fugitive his appeal was dismissed.
We turn now to the bizarre facts disclosed by the record. A number of young men, including Burrow, Dohlmar, Conde, Weser, and the deceased, Dennis Lee Plumly, together with several young women, were living in a house on East Bayley Street in Wichita. Weser was the unofficial head of the “family,” the members of which were heavily involved in the use and sale of drugs. Several members of the family, Weser, Burrow, Dohlmar, Conde, Plumly, and James Smith, went to Cloud County, Kansas, near the city of Concordia, to harvest wild marijuana on Tuesday, September 19, 1972. Burrow, Dohlmar, Weser, and Plumly were arrested by the authorities; Conde and Smith escaped detection and hitchhiked back to Wichita. Weser, Burrow and Dohlmar were formally charged with the possession of marijuana. Plumly was not charged; instead, he was released, and was provided with transportation back to Wichita by various law enforcement agencies. Weser, Burrow, and Dohlmar ultimately posted substantial appearance bonds and were released. The bondsman, Bob Morey, suggested that it would be better if Plumly did not show up during the trial. The members of the family agreed; they concluded that Plumly had “snitched” on them.
Weser, Burrow, and Dohlmar met in a back bedroom of the Bayley Street house on Thursday and decided that they would have to kill Plumly. Conde, Weser, and Dohlmar met on Friday and reached the same conclusion. Weser directed Conde, an expert in karate, to “rough up” Plumly, and he instructed Dohlmar to “shoot him up” (with drugs) and take him out and bury him. Weser would provide some lye to pour on the body.
Early on Saturday evening, Burrow, Dohlmar, Conde, Plumly, and Smith left the Bayley Street house in Burrow’s Ford van. They drove to Smith’s residence on East Pine. Smith, Conde, and Plumly went into Smith’s house; Burrow and Dohlmar drove to the home of friends, borrowed shovels, and returned. Plumly did not appear to be under the influence of drugs when he arrived at Smith’s house. Conde struck Plumly three hard blows, twice in the chest and once in the stomach. Burrow and Dohlmar took him to the kitchen and put him in a chair. Dohlmar then dissolved some capsules and drugs in cold water, filled a syringe with the solution, and injected it into Plumly. He prepared a second mixture, and injected that into Plumly. Next, Burrow, Dohlmar, and Conde loaded Plumly into a van and drove to a remote spot where Conde got out and dug a hole. Plumly was still alive but blood was flowing from his mouth and he was going into convulsions. When he died, they put him in the hole face down, poured lye over him, and covered him up. 'they stripped branches off of a tree, obliterated their footprints, and placed the branches over the grave.
Burrow testified on behalf of himself, Dohlmar, and Weser, and gave a somewhat different version of the events. He claimed that Plumly’s death occurred on Friday night. He had known Plumly for a year and a half; he trusted Plumly. Plumly had no reaison to snitch on any of them. None of them caused Plumly’s death, and if they did cause his death, they did not intend to do so. Burrow said that he, Dohlmar, Conde, Plumly, and Smith were drinking at the Bayley Street house. They all left about 7 o’clock p. m. to get some drugs and on their way dropped Smith, Plumly, and Conde off at Smith’s house. Burrow and Dohlmar drove to a park where Dohlmar purchased 50 "reds” — secobarbital capsules of 50 milligrams each. When they returned to Smith’s home, Smith and Conde were beating Plumly. He was conscious, but was bleeding from his mouth, his nose, and the back of his head. Burrow and Dohlmar intervened, stopped the beating, and gave aid to Plumly. They helped him to a chair, wiped the blood from his face, and gave him a glass of water. Dohlmar wanted to take an intravenous shot of the barbiturate so he mixed some of the capsules for himself. Plumly saw this. He was nervous and shaky and he asked for a shot. At his request, two of the 50-milligram “reds” were administered to him by Dohlmar. Sometime thereafter, Plumly said that his heart was giving him trouble. This had happened a year or so before, while Burrow and Plumly were living together, and Burrow had taken Plumly to the hospital at that time. Accordingly, on this occasion, they helped Plumly into the van and started to take him to St. Francis Hospital. Burrow was driving, Dohlmar was in the passenger seat, and Conde was with Plumly in the rear of the van. While they were en route to the hospital, Burrow heard a commotion in the back, turned around, and saw that Plumly was completely limp. Dohlmar said that Conde had struck Plumly on the side of the throat with his fist. Dohlmar then proceeded to check Plumly as to breathing and pulse; Conde announced, “You don’t need to check him; he’s dead.” Burrow was then afraid to take Plumly to the hospital because he was badly beaten and bleeding. Conde suggested that they bury him. Burrow then drove to a friend’s house and borrowed some shovels. They drove west of Wichita and Conde selected the place for burial. Burrow and Dohlmar dug the grave. Conde dragged Plumly from the van and struck him on the Adam’s apple. Both Dohlmar and Conde said that Plumly was dead. Conde rolled the body into the grave, sprinkled something that he got from the van, probably Drano, over the body, and directed Burrow and Dohlmar to cover it. They covered the grave with shrubbery and grass, and Conde brushed their tracks with a tree limb in order to cover them.
Both defendants asked the trial judge to instruct on voluntary and involuntary manslaughter. The court concluded that the elements of those offenses were not present and denied the requests. Instructions were given only as to murder in the first and second degrees.
K. S. A. 21-3107 (3) makes it the duty of the trial court to instruct the jury not only as to the crime charged, but as to all lesser crimes of which the accused might be found guilty under the information. The court’s duty to instruct on lesser degrees under this statute arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. State v. Goodseal, 220 Kan. 487, 553 P. 2d 279.
As Justice Fontron stated in State v. Clark, 214 Kan. 293, 521 P. 2d 298:
“It is the duty of a trial court to instruct the jury not only as to the crime charged specifically in the information but also with respect to such lesser offenses included therein as may be justified by the evidence. The rule is firmly imbedded in our jurisprudence. In State v. Cunningham, 120 Kan. 430, 243 Pac. 1006, it is framed in these words:
“‘. . . The instructions should cover every issue or theory in the case which has support in the evidence. Whether the evidence tending to support the lower degrees of the offense appears to the court to be weak and unsatisfactory, the accused is nevertheless entitled upon request to have the issue and the effect of the evidence submitted to the jury. . . .’ (p. 431.)
“The evidence pointing to a lesser offense of which an accused might rationally be found guilty in a given case need not be strong or extensive to require instructions to the jury with regard thereto. . . . Nor need the trial court be satisfied as to its weight or conclusive character. Long ago this aspect of the rule was given expression in State v. Buffington, 66 Kan. 706, 72 Pac. 213:
“ ‘The defendant in a criminal prosecution has a right to have the court instruct the jury in the law applicable to his contention, if it be supported by substantial evidence, however weak, unsatisfactory or inconclusive it may appear to the court. . . . [The test is] whether there is any substantial evidence tending to prove an inferior degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court so to instruct.’ (pp. 709, 710.)” (pp. 296-299.)
Now we must apply these rules to the evidence in this case. In order to support a conviction of voluntary manslaughter, the evi dence must establish that: (1) the defendant killed the victim (in this case, Plumly); (2) that it was done intentionally; and (3) that it was done upon a sudden quarrel or in the heat of passion. K. S. A. 21-3403.
PIK Grim. 56.04 (e) (1975 Supp.) defines “heat of passion” as “any intense or vehement emotional excitement which was spontaneously provoked from circumstances.” “Intentionally” means purposefully and willfully and not accidentally.
Burrow testified that Conde killed Plumly; that Burrow, Dohlmar, and Weser did not kill him, and did not intend to do so. Entirely lacking from his testimony is any evidence that the killing was done by any of those three upon a sudden quarrel or in the heat of passion. Burrow did not testify that any of the three struck Plumly or took other action which might have caused his death upon any spontaneous emotional excitement. Weser was not present; neither Burrow nor Dohlmar struck Plumly; instead, according to Burrow, both intervened in Plumly’s behalf, attempted to assist and comfort him, gave him a mild sedative at his request in an effort to calm his nervousness and shakiness, and were taking him to the hospital when Conde assaulted and killed him. None of the elements of voluntary manslaughter were established by this testimony.
Involuntary manslaughter is defined as:
“[T]he unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. . . .” K. S. A. 21-3404.
Involuntary manslaughter is distinguished from voluntary manslaughter and second-degree murder by the lack of malice and intent to kill. State v. Wilson, 215 Kan. 437, 524 P. 2d 224. In that case the defendant contended that he was entitled to an instruction on involuntary manslaughter. The deceased was killed by a fall from the fourth tier of cells in the penitentiary, and Wilson was charged with intentionally causing the fall. The only defense advanced was a denial of the killing; Wilson contended that the deceased fell by accident, and that he was not pushed over the rail by the defendant. We held that the evidence would not support an instruction on involuntary manslaughter.
In State v. Childers, 217 Kan. 410, 536 P. 2d 1349, the defendant was charged with second-degree murder. Testimony indicated that Childers fired shots out of a bedroom window and struck the deceased, who was running away from the window during the night time. Defendant testified that he was not shooting at any person, but was just shooting into the ground. He had no intention to shoot the deceased. We noted that involuntary manslaughter is distinguished from voluntary manslaughter by the lack of intent to kill. Involuntary manslaughter is a killing done unintentionally. We held that the evidence was sufficient to support the defendant’s theory that the killing was done unintentionally, and thus a jury instruction on involuntary manslaughter was required.
Again, in State v. Clark, 218 Kan. 18, 542 P. 2d 291, we examined the evidence in order to determine whether an instruction on involuntary manslaughter should have been given. Clark admitted shooting his wife, but contended that he blacked out temporarily and was not fully aware of what he was doing. We concluded that the evidence was sufficient to support a conviction of involuntary manslaughter, and thus the trial court erred in not giving such an instruction.
The question was again before us in State v. Gregory, 218 Kan. 180, 542 P. 2d 1051. We examined the evidence and found that a jury issue was presented as to whether the killing was intentional. Gregory admitted shooting the deceased, but testified that he did •not intend to kill him but only “to stop him.” We held that it was proper for the trial court to instruct the jury on involuntary manslaughter.
We turn now to the record before us. Burrow testified that neither he nor Dohlmar killed Plumly, nor did they intend or agree to kill him. Weser was not present. Burrow and Dohlmar interceded in Plumly’s behalf, stopped others from beating him, gave him a drink of water and Dohlmar gave him an injection of two fifty-milligram secobarbital capsules at his request. Dr. Morton F. Mason, a toxicologist who examined various organs from the deceased’s body, stated that he found large concentrations of sodium amytal and sodium secobarbital in these specimens, and that a single therapeutic dosage of secobarbital of 100 to 200 milligrams could not produce the extreme concentrations found.
Dr. William G. Eckert, a pathologist and deputy coroner of Sedgwick County, testified that in his opinion death was caused by an overdose of barbiturates, both amytal and seconal. Thus it is clear from the medical testimony that the small amount of secobarbital which Burrow testified Dohlmar gave the deceased could not and did not cause death.
Appellants in their brief summarize the testimony of Burrow as follows:
“Appellant Burrow testified that Conde killed Plumly. That the intent of Conde was not known by the Appellants and certainly was not agreed to by Appellants and indeed was not the intent of either of these Appellants. He testified that these Appellants did not in fact participate in causing the death of Plumly nor did they intend his death. . . .”
We believe the record fully justifies this summarization. The defense, in short, was that Conde killed Plumly, and that neither Burrow, Dohlmar, nor Weser participated therein. This testimony negates participation in any unlawful killing by Burrow, Dohlmar, or Weser. If the jury believed the testimony of Burrow, it could not find Burrow, Dohlmar, or Weser guilty of any offense. The defendants were either guilty of murder, or they were not guilty.
We conclude that the court properly refused to instruct the jury on the lesser offenses of voluntary and involuntary manslaughter.
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The opinion of the court was delivered by
Parker, J.:
This is an action to foreclose a mechanic’s lien. The claimant failed to recover in the court below and now seeks appellate review of the judgment rendered against him.
H. E. Atchison owned a tract of land in Sedgwick county and on June 19, 1945, entered into a written contract'with Alfred Gibson, whereby he agreed to sell the property to the latter upon a monthly payment plan and convey it to him by warranty deed when each and all of such payments had been made in the manner provided for therein. The agreement expressly provided that second party (Gibson) acquired no right, title or interest in the real estate until such time as all sums due and payable under its terms had been paid. By another provision Gibson was to have immediate possession but was to assume all rights claimed by a tenant who was then occupying the premises under a lease and operating some sort of business in a building located thereon, known as the Village Barnl After execution of the contract Gibson took possession and shortly thereafter the plaintiff performed the labor on this building which now serves as a basis for the lien claimed by him.
The petition alleged plaintiff’s work on the building was performed under an oral agreement with Alfred Gibson and H. E. Atchison, the owners of the real estate, stated the amount due for such labor, charged 'that it had not been paid, and asserted the filing of a statement for a mechanic’s lien in the manner provided by law. It prayed for personal judgment against the parties named for the amount alleged to be due and a decree awarding plaintiff a mechanic’s lien on the entire tract to secure the payment of such judgment. In due time Atchison filed an answer denying generally all allegations of the petition except the one stating he owned the property. He admitted that allegation but specifically denied , he had at any time entered into an agreement with anyone to make improvements on such premises or that plaintiff was entitled to a mechanic’s lien thereon. In addition, he set out a copy of his contract with Gibson, denied that such person had ever been the owner of the real estate and alleged that on the 16th day of January-, 1946, another division of the court in which the plaintiff’s action was then pending -had rendered judgment against Gibson canceling such contract for his failure to make the conditional payments required by its terms.'
• Insofar as they pertain to the parties involved in this appeál the issues thus raised by the pleadings were tried by the district court without a jury. - That tribunal, after hearing the evidence, refused to render personal judgment against defendant Atchison, and held plaintiff was not entitled to a mechanic’s lien on the real estate described in the petition to secure payment of the personal judgment it had rendered against-Gibson, who had made no-' defense and was in default of answer.
There is no occasion for an extended recital of the evidence bn which the trial court’s judgment is predicated. Briefly stated, the plaintiff’s own testimony regarding his oral contract of employment, alleged to have been made with Gibson and Atchison-, was that it was made with Gibson and that he did -not even become acquainted with Atchison until after .he had'commenced work on the job. The record discloses the only interest Gibson ever had in the. real estate was what he Acquired under the .terms' of the contract to which we have heretofore referred and that that interest was wiped out by judgment of a court of competent jurisdiction for failure to comply with the conditional agreements of such contract prior to the rendition of judgment in the instant proceeding. With respect to express authorization for the work, it reveals Atchison at no time ever entered into a contract or other agreement with plaintiff for the performance of labor, and fails to show that he at any time gave anyone authority to take that action for him. As to implied .agency the most to be said is, excepting the contract itself to which we shall presently refer, it divulges that after plaintiff had commenced work Atchison, pursuant to his oral agreement with Gibson, was seen upon the premises, sometimes as often as two or three times a week, and that on such occasions he would look around, comment upon the progress of such work, make suggestions regarding it, and even indicate how he would like to have it done. At one time he went so far as to suggest they could use 2 by 6’s out of the balcony to make joists for the ceiling. On the other hand, there is evidence — some of it by plaintiff’s witnesses — indicating he simply appeared to be looking around “seeing what Gibson was doing to the premises.” In addition the record shows Atchison’s denial that he had anything to do with, or control over, what was being done, and his testimony to the effect that whatever comments were made by him regarding it were suggestive, not directive, and made at a time when he had gone down to the building to see and talk to Gibson about collecting past-due and unpaid installments on the sale contract. Also his statement that he merely gave consent to Gibson to use the 2 by 6’s in the balcony.
Our statute granting a mechanic’s lien on real estate to persons performing labor on buildings located thereon is G. S. 1935, 60-1401. It reads:
“Any person who shall under a contract with the owner of any tract or piece of land, or with a trustee, agent, ... of such owner . . . perform labor or furnish material for the erection, alternation, moving or repair of any building, improvement or structure thereon . . . shall have a lien upon the whole of said piece or tract of land, the building and appurtenances . . . Such lien shall be preferred to all other liens or incumbrances . . . subsequent to; the commencement ... of the making of such repairs or improvements.”
Appellant, doubtless because of the undisputed record evidence, no longer bases his right to a mechanic’s lien on his alleged oral contract with Atchison. Neither does he claim that right on the ground of express agency. His position now is the trial court erred in failing to hold that agency of Gibson to contract for the performance of the repair work done by him on the building, thus subjecting the land to a mechanic’s lien, was implied from the undisputed facts and circumstances disclosed by the record.
That authority of an agent to bind his principal may be either express or implied is too well established to require citation of authorities dealing with the subject. In the recent case of Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803, we held such authority is implied if from the statements of the parties, their conduct and other relevant circumstances it appears their intent was to create a relationship permitting the assumption of authority by an agent which, when exercised by him, would normally and naturally lead others to believe in and rely on his acts as those of the principal. In the opinion we stated the test to be applied in determining whether implied authority exists is the one set forth in 2 C. J. S. 1045, § 23, where it is said:
“The relation of agency need not depend upon express appointment and acceptance thereof, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create it, the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not the parties understood it to be an agency. On the other hand, where it does not appear that there was any express or implied intention to create the relation, it will not be held to exist, as where it appears that the agent was acting on his own behalf.
“An implied agency must be based on facts for which the principal is responsible, they must, in the absence of estoppel, be such as to imply an intention to create the agency, and the implication must arise from a natural and reasonable, and not from a forced, strained, or distorted, construction of them. They must lead to the reasonable conclusion that mutual assent exists, and be such as naturally lead another to believe in and to rely on the agency. The existence of the relation will not be assumed.
“While the relation may be implied from a single transaction, it is more readily inferable from a series of transactions.
“An agency will not be inferred because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem natural and probable and to the advantage of the supposed principal, nor from facts which show that the alleged agent was a mere instrumentality.”
The first contention advanced by appellant in support of his position is double-barrelled and not altogether consistent with his general statement as to the issue involved. On the one hand, he argues the sale contract in and of its own terms shows implied authority on the part of Gibson to contract as Atchison’s agent for repair of the building and, on the other, insists that by virtue of its terms Gibson was the owner of the property and in that capacity subjected the real estate to a mechanic’s lien by contracting for and allowing him to perform work on the building situated thereon.
As supporting his position the contract shows implied agency on its face, appellant relies on Shearer v. Wilder, 56 Kan. 252, 43 Pac. 224; Potter v. Conley, 83 Kan. 676, 112 Pac. 608; Brown v. Walker, 100 Kan. 542,164 Pac. 1092, and Meadows v. Oil Co., 108 Kan. 228, 194 Pac. 916. We have carefully examined the cited decision's but time and space will riot permit their extended analysis in this opinion. It will suffice to say they do not uphold appellant’s contention. The contracts there under consideration contained provisions permitting a conclusion the landowner had either contemplated or authorized improvement of the premises involved. Here, the agreement between Atchison and Gibson made no mention whatsoever of repairs or improvements and, as has been heretofore indicated, it expressly provided the purchaser acquired no title to the land until all sums due thereunder had been paid. We know of no decisions which go so far as to hold that such a contract, in and of itself, can ever be construed as conferring implied authority to a purchaser of real estate to create a lien thereon. If we were, to so construe the instant contract we would be reading something into it that is not to be found there.
It is true that we do not place a narrow or illiberal interpretation upon the ownership necessary to the creation of a mechanic’s lien. Time and again we have held the possessor of an equitable title to be the “owner” of property for all intents ,and purposes of the mechanics’ lien statute. Two of our decisions to that effect are Lumber Co. v. Osborn, 40 Kan. 168, 19 Pac. 656, and Lumber Co. v. Arnold, 88 Kan, 465, 129 Pac. 178. Many others could be cited but it is not here important that wé specifically méntion them. Nevertheless, it does not follow that Gibson was the owner of the real estate by virtue of his contract of sale as claimed by appellant.
■ Long ago, in Harsh v. Morgan, 1 Kan. 293, when confronted with a somewhat similar contention this court said:'
“The statement of facts shows that the defendant, Connell, had no title to the lot in question, except what he might derive from an agreement, in writing, between himself and said Harsh, never recorded, by which it was stipulated'that said Harsh should convey the premises to said Connell on payment of one thousand dollars. This was the extent of Connell’s interest in the land the house was erected upon. The plaintiffs who furnished labor'or materials for said- house, in pursuance of contracts made with Connell, can claim no greater or higher interest in the land than Connell had. The stream cannot rise higher than its fountain, nor could Connell, by his contract with the plaintiffs, convey 'to them a higher title to the land than he possessed.” (p. 302.)
Later, in Lumber Co. v. Schweiter, 45 Kan. 207, 210, 25 Pac. 592, to which we have consistently adhered, we laid down the principle of law applicable to situations where persons seek to foreclose mechanics’ liens on real estate for work done or for materials furnished under an agreement with one who has. an executory contract for the purchase of such property. The case, as we view it, is decisive of appellant’s claim. There we held:
“In an action to foreclose the lien- of the lumber company, that the, contract under which J. held limited his interest and ownership, and his right to create liens on the lots, and that the lien of the lumber company is subordinate to the mortgage liens given in pursuance of the contract.” (Syl.)
And in giving the reasons responsible for our conclusion said:
“To create a valid lien for material or labor, it is necessary that the person for whom they are furnished should be an owner within the meaning of the statute, and have a right at the time the contract for the same is made to create a lien. The only claim which Jones had upon the land was derived from his contract with the owner, and any one who relies on the contract to establish ownership in Jones must be governed by the limitations and conditions therein contained. When the lumber and material were purchased and furnished, Jones did not have the legal title, and by the terms of the contract which he made he did not have the equitable title, and he could create a lien on no greater interest than he held. ‘In general, it must be said-, that only the interest of the contracting party can be subjected to the lien; and if he has no interest, there is nothing to which the lien can attach.’ (2 Jones, Liens, § 1245; Wagar v. Briscoe, 38 Mich. 587; Hayes v. Fessenden, 106 Mass. 230.) If the lumber company had examined the public records when the material was sold and delivered, it would have ascertained that the legal title was in Schweiter; and if it had pursued the inquiry as it should have done, it would have learned of the contract between Jones and Schweiter, with all of its conditions and limitations. As has been said:
“ ‘They should have exercised some care and caution as to whether their employers — or the purchasers — had such an interest in the > property as they could subject to a lien for the lumber and material furnished. Under the statute, no lien attaches to the building unless the person with whom {he contract is made’ has some interest or estate in the' land, on which''it"is situate. The lien is upon the realty with the building attached to the ext'ent of the ownership of the one who contracted for the construction of the building, and no further; and if .there is no ownership,-there is no lien on either land or building.’ (Huff v. Jolly, 41 Kan. 537.)
“The lumber company, therefore, can claim only through the contract under which Jones held, and must take subject to the restrictions and limitations therein imposed on Jones. . . .” (p. 210.)
The doctrine just announced, as we have stated, precludes appellant’s recovery on a claim based on ownership by virture of the executory contract where the purchaser failed to obtain title because of failure to comply with his agreement. It is particularly applicable in a case where — as here — it is conceded the purchaser’s contract has been cancelled and any rights acquired thereunder have been extinguished by judgment of a court of competent jurisdiction.
No more need be said on the point in question. We desire, however, to briefly refer to the decisions cited by appellant and on which he relies to sustain his position. All deal with executory contracts, held to pass equitable title, and uphold a mechanic’s lien created by the purchaser. We shall not attempt to relate the factual situations in such cases. Our purpose is to merely point out that notwithstanding their result each recognize and approve the doctrine which we have applied in reaching the conclusion just announced.
Getlo v. Friend, 46 Kan. 24, 26 Pac. 473, holds:
“In actions to foreclose mechanics’ liens for work done and for material furnished, under a contract with one who has an executory contract for the purchase of a city lot and is in possession thereof, the lien of the mechanic or materialman must be measured by the extent of the equity of the purchaser under the executory contract.” (Syl. ¶[ 2.)
Mortgage Trust Co. v. Sutton, 46 Kan. 166, 170, 26 Pac. 406, states:
“This case is different from Lumber Co. v. Schweiter, 45 Kan. 207, because there the purchasers of the material had no legal or equitable estate in the lots upon which the house was erected . . .”
Lumber Co. v. Arnold, 88 Kan. 465 469, 129 Pac. 178, is distinguished by an identical statement.
In Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019, a person in possession of real estate under a verbal agreement to convey title subsequently acquired the fee pursuant to its terms. We held:
“When a person in possession contracts for material for the erection o'f a building upon the premises, and a portion of the material has been furnished and the construction of the building begun, and afterward, pursuant to said agreement, the full title is conveyed to him, held, that the lien for the material so contracted, if filed in time, is prior to mortgage liens obtained subsequent thereto.” (Syl. IT 2.)
Appellant’s final argument, although strenuously urged, amounts to nothing more than a claim the undisputed reóord facts and circumstances required the trial court to find Gibson had implied authority to subject the real estate to a valid mechanic’s lien. It has no substantial merit. The judgment holding appellant was not entitled to a lien includes a finding there was no authorization, either express or implied, to create one. Of a certainty, when measured by the rule to which we have heretofore referred it cannot be successfully urged the record compels a finding of implied agency as a matter of law. Conceding testimony on the point was conflicting there can be no question but that it discloses sufficient substantial and competent evidence to sustain the trial court’s decision on the factual issue. In that situation the judgment must be upheld (McHenry v. McHenry, 150 Kan. 498, 501, 95 P. 2d 261).
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Wayne E. Wright, appeals from jury convictions of aggravated battery (K. S. A. 21-3414) and aggravated weapons violation (K. S. A. 21-4201 [1] [b] and 21-4202). The charges arose out of the stabbing of Michael (Mike) Smith outside of defendant’s apartment in Wichita. The stabbing took place during the last of three altercations between Mike and defendant which occurred during the course of the evening.
The state’s evidence reveals that in the late afternoon on November 2, 1974, the victim, Mike, and his brother, Randy Smith, drove to the home of a young female friend, Donna DeWater, about 5:30 p. m. Donna testified that Mike and Randy had been drinking and they continued to do so while she was with them. Mike, Donna and Randy returned to Mike’s house for a short time and then decided to visit Max Burgess, who was a former classmate and friend of Mike. Upon discovering that Max was not at home in his apartment, they walked next door to an apartment occupied' by defendant, Wayne Wright, and his girl friend, Edith Trotter. Mike testified that he was merely acquainted with the defendant, but knew Edith Trotter quite well, having lived in the same apartment with her for a month or two. According to Mike, Edith left him and immediately moved in with defendant in his apartment. Despite these, close — but recently broken — ties, Mike testified there was no animosity between him and either the defendant or Edith, and that he had had no difficulties with defendant until the altercations which precipitated this criminal prosecution.
Donna testified that when she, Mike, and Randy knocked on the door of defendant’s apartment they were invited in. They stayed for about twenty minutes and everyone drank beer and Bloody Marys. She further testified that Randy became drunk and fell asleep in the front room in defendant’s apartment. When Max Burgess returned he was included in the group, which then moved back and forth between the two apartments. Donna further testified that she was a friend of Candra Smith, a sister of Mike and Randy, and that it was decided to pick up Candra and bring her to the party. As they prepared to go to the car, Mike and defendant had to help Randy because he could barely walk. When they got to the parking lot, adjacent to the apartment house, the first alterca tion took place and was soon followed by the second when the group returned to defendant’s apartment. The two incidents were described by Donna:
“. . . Randy either fell down or was pushed down. Mike said he didn’t like it and he and Wayne started fighting. When they started, they just stood back arguing and then Wayne pushed Mike and Mike pushed him back once and Wayne had a knife behind his back. The knife was about 8 inches long with a 4 to 4iá inch blade. I never did see him strike at Mike with it.
“After they scuffled, they walked back into the house as if they were friends again; about 5 minutes later I went into the house and they were arguing in the kitchen once more. They started shoving each other back and forth. I saw Wayne push Mike into a chair after which he grabbed a butcher knife off of the cabinet. Wayne then got on top of Mike for a few minutes and I couldn’t see him. Then I saw Wayne help Mike over to a chair in the living room and Mike had a gash on his head. (The witness indicated that the gash was on the left forehead.) I didn’t actually see anything that happened in the kitchen the first time; all I noticed was that Mike, apparently in the scuffle, got his head cut over the temple.”
It was then decided that Mike needed to go to the hospital — so defendant went next door and got Max Burgess to help take Mike out to the car. After Mike was put in the car the third altercation took place which was described by Donna as follows:
“. . . Mike then said ‘I’m going to come back and get you,’ whereupon Wayne, who didn’t say anything, pulled him out of the car and threw him on the ground and hit him about 3 times with his fists. Then Wayne left and went back in the house; Max and I just stood there and didn’t say anything. At that time it was pretty dark and raining. I didn’t actually see what happened between Mike and Wayne, after Mike had been put in the car, and when they were scuffling on the ground.
“The car they placed Mike in was Max’s station wagon and they had put the back seat down so that he was in a reclining position. The car was in back of the apartment complex.
“After the incident, Wayne went back into the house and got a butcher knife and brought it back and Mike was still lying on the ground face down. Wayne then pulled Mike over and got on top of him with his back toward me and I couldn’t see the rest of what happened.
“The butcher knife was about 12 inches long with a 731 inch blade.
“While Wayne was on top of Mike, Mike was lying face up. Wayne stayed on top of him for three to four minutes. I couldn’t see what Wayne was doing with his hands but I did hear him say he would kill Mike. I then saw Max put Mike back into the car and I could see that Mike had two wounds in his chest. The wounds were in the area of the heart and I had not seen the wounds prior to this last incident.”
Thereafter, Max and Donna drove Mike to the hospital where he was treated by Dr. James Newby.
Dr. Newby testified that Mike had no palpable blood pressure or pulse and had been without obtainable blood pressure for approximately an hour and twenty minutes. Mike had a penetrating wound in the left chest which was somewhere between 3/2 to 4 inches in depth and had penetrated the heart wall and also a small laceration in the left temple that was not deep in penetration. Dr. Newby further testified:
“If the victim had not received medical attention as quickly as he had he would have died very shortly.”
Mike Smith’s testimony generally corresponded with that of Donna’s up to a point when they were in defendant’s apartment drinking Blood Marys. He testified:
“. . . I can’t remember if we made the Bloody Marys before we brought in the six-pack or afterwards. I don’t remember anything that happened to me, or any conversations, after drinking them. My memory goes blank after that point at which I had been in Edith’s apartment for 30 to 45 minutes. . . .”
Defendant testified in his own behalf. He admitted participation in the first two altercations, but claimed that he was acting in self-defense. He denied that the third altercation took place. Concerning the first incident, when he and Mike were trying to get Randy into the car, defendant testified that after Randy fell down and was being picked up, Mike hit him on the side of the head and that the fight ensued and finally:
“. . . I said, ‘This is not for us, you and I,’ so he come at me again, and I hit him. All right. Randy Smith comes at me. I shove him down. There here comes Mike again, and I knocked him down again. He’s just kind of laying back on the ground looking at me, you know. I go over and help him up, and we go into the house.
“Q. You and Mike Smith?”
Concerning the second altercation defendant testified that after they were back in his apartment he remembered Mike saying, “ Tm going to get you now,’ ” and when defendant turned around and looked Mike had a knife and was coming at him. Defendant testified that after it was discovered that Mike had a cut on his head he got Max to help him take Mike to the parking lot and put him in the back seat of Max’s station wagon. Defendant testified as follows:
“Q. Then what happened?
“A. Put him in the car, and I went back in the house. From there, I went upstairs. My clothes were bloody, and I changed clothes.
“Q. Did you see Donna at that particular time?
“A. I saw her when I was going to put him in the front seat of the car. She was next to Max in the middle, in the front seat.”
Defendant testified that he was not carrying a knife at all and that he did not know of any knives in the kitchen other than the one Mike had.
On cross-examination defendant reasserted that he did not have a knife that evening, but did admit that he had been told that he had a knife. He denied any participation in the stabbing incident, described by Donna, and reasserted that after he put Mike in the station wagon he turned directly around, walked in the house, and went upstairs to change his clothes.
In his first point on appeal defendant contends the court erred with respect to count one by failing to instruct the jury on the lesser included offenses of battery (K. S. A. 21-3412) and criminal injury to persons (K. S. A. 21-3431 [now 1975 Supp.]). Defendant concedes that no request was made for such instructions at trial, but on appeal he contends the trial court committed clear error in this regard.
An affirmative duty is imposed upon the trial court, in a criminal case, to instruct the jury as to all lesser crimes of which the accused might be found guilty by K. S. A. 21-3107(3) which reads:
“(3) In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
The state concedes that battery and criminal injury to persons are lesser included offenses within aggravated battery. It is the state’s position that no evidence was presented that could support either of the two lesser included offenses and, thus, no instructions in this regard were necessary.
The enactment of 21-3107(3), which became effective July 1, 1970, worked significant changes in the law concerning the trial court’s duty to instruct on lesser included offenses. (See, State v. Weyer, 210 Kan. 721, 504 P. 2d 178.) It has been a point on appeal in many cases since its enactment. While we have always recognized the duty explicitly imposed upon the trial judge by the statute, we have consistently held that the duty to instruct on lesser included offenses arises only where there is at least some evidence on which the defendant might reasonably have been convicted of the lesser offense. (State v. Goodseal, 220 Kan. 487, 553 P. 2d 279; State v. Gander, 220 Kan. 88, 551 P. 2d 797; and State v. Ponds and Garrett, 218 Kan. 416, 543 P. 2d 967.) It follows that if no evidence is presented that could support a contention of a lesser crime, no instruction is necessary. (State v. Ponds and Garrett, supra; State v. McDermott, 202 Kan. 399, 449 P. 2d 545, cert. denied 396 U. S. 912, 24 L. Ed. 2d 187, 90 S. Ct. 226.)
The distinction between aggravated battery under 21-3414 and simple battery under 21-3412, and criminal injury to persons is the intent to injure required in the first offense, but not essential to the latter two. (State v. Gander, supra; State v. Seely, 212 Kan. 195, 510 P. 2d 115; and State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152.)
Criminal injury to persons defined in K. S. A. 21-3431 [now 1975 Supp.] is the successor to K. S. A. [1965] 21-435 (maiming, wounding, disfiguring or causing great bodily harm) which previously appeared as section 42 of the crimes act. (Gen. Stat. 1909, § 2530.) The lack of intent to injure was recognized as the distinguishing feature between 21-435 and the higher degrees of assault and battery offenses. (State v. Wright, 112 Kan. 1, 208 Pac. 630; State v. McCullough, 96 Kan. 453, 152 Pac. 766; and State v. Powers, 92 Kan. 220, 139 Pac. 1166.) Concerning §21-3431 in 10 Vernon’s Kansas Statutes Annotated, Criminal Code, 1976 pocket part, (Spring &' Ryan), the authors comment:
“This section to some extent overlaps sections K. S. A. 21-3412 through 3415, which deal with batteries. It does fill a gap, however, with respect to unintended injuries.” (p. 75.)
In its recommended instruction under 21-3431, the PIK Committee states an element of offense in these words:
.“2. That this act was done without the specific intent to injure or endanger the life of_; and” (PIK[Criminal] 1975 Supp. 56.18-A.)
In the instant case, defendant gave no testimony nor was there any other evidence submitted which would support a theory of lack of intent to injure in the stabbing altercation which gave rise to the charges filed. The defendant described in considerable detail his participation in the first two altercations as to which he claimed self-defense. Concerning the third and serious altercation, in which the stabbing took place, defendant emphatically denied any participation whatsoever. Lack of intent was not made an issue as in State v. Warbritton, supra.
While Donna DeWater did not actually see the stabbing she testified that defendant did go back into his house, got a butcher knife about 12 inches long with a 7/2 inch blade, came back to Mike, rolled him over, got on top of him while he was lying face up on the ground, and stayed on top of him for three or four minutes. She could not see what defendant was doing with his hands, but heard him say he was going to kill Mike. She could see Mike’s chest wounds when he was again put into the car by Max Burgess. Intent, like any element of a crime, may be shown by circumstantial evidence, and one is presumed to intend all the natural consequences of his acts. (State v. Gander, supra; and State v. Townsend, 201 Kan. 122, 439 P. 2d 70.) One who stabs a person in the chest with a knife, with a 7/2 inch blade, may be presumed to intend to injure the victim. Absent any evidence negating an intent to injure, the trial court had no duty to instruct on either of the lesser offenses.
In connection with his contention that instructions should have been given on the lesser included offenses, defendant makes the further argument that he was entitled to such instructions since the trial court apparently thought there was evidence of intoxication sufficient to require the submission of an instruction on voluntary intoxication. Defendant relies on State v. Seely, supra. It is true we said in Seely that voluntary intoxication would be a defense if it rendered an accused incapable of forming a particular intent, which was a necessary element of the crime charged. In Seely we found error in the trial court’s refusal to give requested instructions on the lesser included offense of battery, where the main thrust of defendant’s evidence on intoxication was that he was incapable of forming the intent required by aggravated battery. In Seely the defendant started drinking at 9 a. m., the battery took place at 8:45 p. m. Defendant remembered nothing concerning the aggravated battery in question. Defendant’s condition was described in the Seely opinion as follows:
“The last thing appellant remembered of that afternoon was being at a friend’s house between 3:30 and 5:00 p. m. After that all was blank until he woke up sick that night, and again until he found himself the next morning at the Sedgwick county prison farm. He didn’t remember ever seeing either of the victims before encountering them in court.” (p. 196).
In the instant case defendant described the events of the evening in considerable detail and was specific as to his conduct at the time of the stabbing, which was established by the testimony of Donna DeWater. Under the record presented here it appears the trial court was overgenerous in giving an instruction on voluntary intoxication. Defendant’s own testimony negates any possibility that he was intoxicated to the extent that he was incapable of forming an intent to injure.
Defendant next contends the trial court erred in overruling his motion for a new trial based on newly discovered evidence. Defendant’s argument is based on the failure of Edith Trotter to appear as a witness at trial. The record discloses that the state twice attempted, without success, to serve a subpoena upon her and defendant’s counsel, in argument on motion for a new trial, stated that he had tried to locate her without success. However, Edith Trotter did appear at the time of argument on defendant’s motion for a new trial. Defendant now claims that since Edith was finally located, the trial court’s refusal to grant a new trial was an abuse of discretion and constituted reversible error.
Whether a new trial, based on newly discovered evidence, is to be granted rests generally on the sound discretion of the trial court. It must appear to the court’s satisfaction that the alleged newly discovered evidence was not within the defendant’s knowledge at ■the time of trial. (State v. Williamson, 210 Kan. 501, 502 P. 2d 777; and State v. Lora, 213 Kan. 184, 515 P. 2d 1086.) The record is silent as to what Edith Trotter’s testimony might have been, and there is no indication that a proffer was made in connection with defendant’s motion for a new trial.
In State v. Law, 203 Kan. 89, 452 P. 2d 862, this statement appears:
“We have said that a new trial should not be granted on the ground of newly discovered evidence unless the trial court is satisfied the evidence would probably produce a different verdict, and that the credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Harris, 126 Kan. 710, 271 Pac. 316; State v. Jella, 132 Kan. 509, 296 Pac. 350.) Our appellate review of the order denying a new trial is limited to whether the trial court abused its discretion. (State v. Jella, supra; Weed v. United States, 380 F. 2d 914.) We find it did not.” (p. 92.)
Where the record is silent as to what the newly discovered evidence might be, we, of course, cannot find abuse of discretion in the trial court’s denial of a new trial. We further note that defendant did not seek a continuance when Edith Trotter failed to appear at trial. On the record presented, we find defendant’s contention to be wholly without merit.
Defendant next contends the trial court erred in overruling his motion for discharge on count two (the aggravated weapons viola tion) on the ground there was insufficient evidence to support the jury’s verdict. Defendant argues that as to the third altercation the evidence of the alleged length of the knife was so sparse and speculative as to be incapable of providing a basis for the jury’s finding that the knife blade was in fact more than four inches in length. Defendant also complains that the trial court did not treat the three altercations as separate incidents, but allowed the jury to consider them as a single occurrence. It is true Donna DeWater described three separate altercations and two different knives. However, her description of the butcher knife, which she saw in defendant’s hand during the third altercation, was specific and put the knife within the proscription of K. S. A. 21-4201 (b). The jury believed Donna. Applying the test to be applied in ruling on a motion for judgment of acquittal, as set out in our holding in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, we find no error in the trial court’s denial of defendant’s motion.
Finally, defendant claims his rights to due process were denied because of alleged irregularities in the information and journal entry of judgment. His complaint in this regard stems from what appears to have been a typographical error in the information, wherein the statutory reference on the aggravated weapons charge was written K. S. A. 21-4204, instead of K. S. A. 21-4202. The erroneous citation was repeated in the journal entry. The information was properly drawn in the language of 21-4201 and 21-4202, and no complaint is made in this regard. Defendant does not contend that he was misled or in any manner prejudiced; he bases his contention solely on the technical error. Defendant’s contention is without merit. Subsection (2) of K. S. A. 22-3201, (Amended, Laws 1976, Chap. 163, Sec. 14), provides in pertinent part:
“. . . The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule, regulation or other provisions of law which the defendant is alleged to have violated. Error in the citation or its omission shall be not ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.”
A careful examination of the record discloses no trial errors which would justify the granting of a new trial.
The judgment is affirmed. | [
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Foth, C.
Affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is what is deemed a malicious-prosecution case. Harry Larson, the defendant, is the owner of a farm in Chase county on which a crop of wheat and rye was grown in 1931. It was harvested with a combine, and plaintiff, Clinton Baker, was employed by the defendant to haul wheat, sown the prior year by another, from the combine to the bins on defendant’s farm, for which plaintiff was to be paid in wheat. He was also employed to haul part of the wheat to the market at Plymouth. When the hauling was done defendant claimed that plaintiff had embezzled some of his wheat. Defendant then filed a complaint before a justice of the peace charging Baker with willfully and feloniously embezzling wheat of the defendant of the value of $44. On this complaint a warrant was issued on which plaintiff was arrested and placed in jail, where he was held for some time, until counsel was procured and a bond given for an appearance at a future hearing. In the hearing, the justice, on the evidence presented, found- and decided that it did not appear that there was probable cause for believing that Baker had committed the offense charged, and he was discharged. No further prosecution of plaintiff was ever instituted by Larson, and further prosecution of the charge has been abandoned by him. Baker then brought this action alleging in effect that Larson instituted the prosecution maliciously and without probable cause, to the great injury of plaintiff; that he was compelled to employ attorneys to defend himself, and had been confined in jail for a time, for which he asked actual damages for attorney’s fees in the sum of $150, $12 for the time he was in jail, and $10,000 as punitive damages.
In the trial with a jury the finding was that the prosecution instituted by Larson was brought maliciously and without probable cause, and plaintiff was awarded damages in the sum of $150 for attorney’s fees, $12 for loss of time, and $1,100 as punitive damages. Judgment was accordingly given, from which defendant appeals.-
There was no dispute as to the institution of the prosecution by Larson; the arrest and imprisonment of Baker; the subsequent hearing before the justice of the peace, and that.Baker was discharged; no dispute that there was an agreement that Baker should haul wheat to Larson’s bins and was to be paid in wheat. There is a dispute as to the quantity of wheat that Baker should receive for that service. Larson testified he was to receive 100 bushels of wheat, while Baker’s testimony was that he was to be paid 100 bushels and also the wheat grown on a volunteer wheat field, estimated to produce 175 bushels. Later, those running the combine refused to cut the volunteer wheat because of weeds in it. Larson, it was found, then agreed that Baker should have 175 bushels out of the wheat grown on other fields, as a substitute for the volunteer wheat. This constituted the principal controversy between the parties as to the payment for the services rendered by Baker. Upon this theory Baker was entitled to 275 bushels, but Larson insisted that, he was only entitled to 100 bushels. Baker had placed in his own bins, out of the wheat hauled, about 267 bushels, a little less than the agreed quantity of 275 bushels. Larson' contended that Baker had appropriated to himself out of the wheat an excess quantity, and proceeded to prosecute him for embezzlement. On this question Larson testified that no agreement was made that Baker was to have 175 bushels because the volunteer wheat could not be cut and delivered to him, and he procured a witness who testified that Baker had admitted the misappropriation of wheat and had agreed to restore it.
On the trial Baker produced the evidence of three witnesses who testified to the effect that when it was learned that the volunteer wheat could not be cut, because the field was so weedy, Larson then agreed that Baker should have 175 bushels of wheat grown on the other fields, in place of the volunteer wheat. These witnesses stated that the agreement was made in plaintiff’s kitchen at a stated time while the harvesting was in progress and in their presence. Upon the testimony the jury made these findings:
“1. Did the defendant act maliciously in causing plaintiff’s arrest? A. Yes.
“2. If your answer to No. 1 is ‘yes,’ state the facts that indicate malice. A. Withholding facts from his attorney intentionally.
“3. Did the defendant consult an attorney and follow his advice, in good faith, in causing plaintiff’s arrest? A. No.
“4. Did the defendant make a full statement of the facts to such attorney, as he then believed them? A. No.”
It cannot be questioned that there is sufficient evidence to support the findings of the jury on the principal question as to malice and the want of probable cause for the prosecution of plaintiff.
It is contended by the defendant that whether there was probable cause was a question for the court to determine and not for the jury. It appears, however, that the question of probable cause was a mixed question of law and fact, and therefore one for the jury, under proper instructions. There was a real dispute here as to misappropriation of wheat and therefore as to probable cause for the prosecution, and it has been repeatedly decided that in such a case it is proper to submit the question to the jury where the court has instructed and determined that certain established facts do or do not constitute probable cause. Generally speaking, the matter of probable cause for instituting a prosecution is a question primarily for the court, but where there is a dispute as to the facts and the court instructs what will constitute probable cause, and that if certain facts are found to be true there will be a lack of probable cause, and where that fact is found to be true and the court renders a judgment on the finding, the court has practically determined that there was a want of probable cause for the prosecution.
In Bell v. Matthews, 37 Kan. 686,16 Pac. 97, syl. ¶ 2, it was said:
“In an action for malicious prosecution, the question of probable cause is properly submitted to the jury, when about the facts tending to prove its existence there is a substantial dispute.”
In A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, 15 Pac. 877, it was said that if the facts are not in dispute, the question is primarily one for the court:
“But if the facts tending to establish -the existence' or want of probable cause are in dispute, then it is the duty of the court to submit the question to the jury.”
And added the burden of proving want of probable cause was upon the plaintiff, who alleged it.
There are cases with varying results depending to some extent on the nature of the dispute, but where the question of probable cause rests on disputed facts it is the duty of the court to submit the question to the jury upon proper instructions. The question is primarily one for the court, but it was decided again in McGarr v. Schnoor Cigar Co., 125 Kan. 760, 266 Pac. 73, that—
“With the conflict in the evidence which there is in this case on the question of probable cause and the companion question of malice, the trial court very properly referred both of them to the jury with instructions.” (p. 766.)
As to the disputed facts it was held that—
“The court may properly conclude such matter is in dispute where' there is conflicting testimony, even if some of the isolated facts, standing alone, might be sufficient to make it a matter of law for the court.” (Syl. ¶ 1.)
It is to be noted that the trial court carefully protected the interests of the defendant in its instructions. The jury were told:
“If the jury believe from the evidence that the defendant, when he instituted the prosecution complained. of, honestly believed that the plaintiff was guilty of an offense against the laws of this state, and that his belief was founded on a knowledge of circumstances tending to show such guilt, and would sufficiently induce, in the mind of an ordinarily prudent and reasonable man, the belief in such guilt, then such belief on the part of the defendant negatives the idea of the want of probable cause.”
There was testimony that the defendant consulted a reputable lawyer, as well as the county attorney, before making the complaint and procuring the arrest. The jury were instructed that:
“If one acts in good faith on, and in reliance upon, the advice of the county attorney or other competent legal counsel, given upon a fair disclosure of all the facts, and in good faith follows such advice, it is a complete defense to an action for malicious prosecution.”
And further along in the charge the jury were instructed that if he fairly presented the facts within his knowledge to counsel and instituted the action upon their advice, it would be a complete defense to the suit.
Another instruction of which there is complaint is where the court presented the issue as to whether a contract was made to give Baker 175 bushels of wheat to replace the volunteer wheat that could not be harvested, and that if the defendant did not agree to give the 175 bushels in place of the volunteer wheat, and the plaintiff took and sold that much wheat and refused to account for it, the jury were instructed that that would constitute reasonable grounds for the prosecution and the plaintiff could not recover, but—
“On the contrary, however, in event you find and believe by a preponderance of the evidence that defendant had agreed with plaintiff that he was to and should have 175 bushels of wheat to take place of 175 bushels of volunteer wheat in the field in question, then and in such event you are instructed that no probable cause existed for the prosecution complained of in this case.”
This instruction merely summarizes the facts in the main controversy between the parties, and we see no fault in it.
Counsel for the plaintiff refers to the fact that defendant undertook to commence the prosecution in Chase county, presenting the matter to the county attorney of that county, who upon interrogation of both parties, concluded not to direct a prosecution. After that the defendant went to the county attorney of Lyon county and procured the issuance of the warrant and the arrest of the plaintiff. It is clear that the information with reference to the subsequent contract to give the 175 bushels of wheat in place of the volunteer wheat was withheld from the county attorney who advised the prosecution, and under the law the withholding of that information by the defendant, who is still insisting that no such contract ever was made, negatived the defense that he had begun the prosecution in good faith and with probable cause.
We have considered the instructions of the court, although it appears that defendant made no objection to them when they were given, and did not request that other or different instructions be given. The rule is that one who does not object to instructions or request that others of a different import be given is not in a position to complain of them in an appeal. (State v. Jones, 137 Kan. 273, 276, 20 P. 2d 514, and cases there cited.)
However, as the instructions dealt with the law of the case as to probable cause, we have examined the same and are of the opinion that defendant has no reason to complain of them or that anything in them approaches material error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for assault and battery. Each of the defendants answered denying liability and by cross petition sought to recover similar damages from plaintiff. The jury answered special questions and returned'verdicts which were construed by the court as being against each of the parties seeking to recover. Plaintiff has appealed.
It appears from the record that plaintiff had a hay-baling outfit with which he went from farm to farm throughout the neighborhood baling hay at an agreed price per bale. The defendant John Nordstrom and his married son, Ruben, lived together on a farm which they operated. They employed plaintiff to bale their hay, which he did one day, finishing in the evening. Plaintiff reported to defendants that he and one of the workmen had counted the bales and there were 293, and John Nordstrom gave plaintiff a check for the baling of that number of bales. The next day defendants hauled the hay to the haymow of the barn and in doing so counted the bales and found only 221. Defendant John Nordstrom then went to the bank on which the check was drawn, and after discussing the matter with the banker concluded to stop payment on the check given plaintiff until he could see plaintiff to make the proper settlement. A few days later plaintiff went to defendants' home and they talked about the check and the number of bales and went to the haymow of the barn to count them. There is a decided conflict in the testimony as to what was said by each of the parties, both at the house and while they were in the haymow. We need not repeat the different versions of this testimony. While in the haymow plaintiff started to count the bales on two different occasions, but quit before he got through, contending the hay was piled in such a way he could not count them well. He finally asked defendants where the rest of the hay was, intimating, aa they thought, that they had not brought all the hay to the barn. This inflamed the tense feeling already existing between the parties. Plaintiff started to go down from the haymow. In doing so he passed near Ruben Nordstrom. From the haymow he went down the narrow stairs, which turned near the bottom into a small room used for a harness room or a feed room. Ruben followed not far behind him. Near the bottom of the stairs he and plaintiff got into a fight. The testimony of each lays the blame for starting it on the other. John Nordstrom came down the stairs soon and found Ruben lying on the floor and plaintiff on top of him, and they were fighting. Plaintiff was a larger man and stronger than Ruben. John Nordstrom grabbed or struck plaintiff and pushed or pulled him off Ruben, and all three of them fought. Plaintiff begged them to quit hitting him and said he would leave if they would let him up. They let him up, he went out and got in his car, and drove away. All of the parties were bruised to some extent, plaintiff the more severely, particularly about the face, and he had been struck with something across one eye. Perhaps he sustained that injury at some time during the melee when he fell or was pushed against a bushel basket of oats in the feed room.
The principal injury for which plaintiff claimed damages was the loss of the sight of the injured eye, and there was evidence on his behalf that the loss of sight of the eye resulted from the injury. There was other evidence that the loss of the sight of the eye could not have resulted from the injury; that for years, perhaps from birth, there had been only partial vision in that eye; that the condition was one which naturally grew worse, and that this was not affected at all by any injury received in the fight. The jury answered special questions as follows:
“1. Was the apparent danger to the defendant Ruben Nordstrom, at the time John Nordstrom took part in the encounter between Ruben Nordstrom and Emanuel Schwab, such as to induce a person exercising reasonable and proper judgment, to interfere in order to prevent injury to his son, Ruben? A. Yes.
“2. If you answer the preceding question in the affirmative, then state whether John Nordstrom used more force than was necessary to protect his son. A. We do not know.
"3. At the time the plaintiff, Emanuel Schwab, left the hayloft, did he intend to leave the premises of John Nordstrom? A. Yes.
“4. If the defendants had remained in the hayloft for a short interval of time, would the altercation have occurred between the plaintiff and defendants? A. We do not know.
“5. Did the plaintiff lose his eyesight in the left eye as a result of any injures he received on August 18, 1930, in the altercation with the defendants? A. We do not know.
“6. If you answer question No. 5 in the negative, please state whether or not he could see out of his left eye up to the 18th day of August, 1930. A. Yes.
“7. Did the defendants, John Nordstrom and Ruben Nordstrom, on the 18th dajr of August, 1930, in the altercation with the plaintiff, use more force than was necessary to protect themselves or either of them from any injuiy that might have been doné to them by the plaintiff? A. We do not know.”
Other questions answered relate to whether the parties were engaged in mutual combat, and the jury found they were not.
Appellant contends that the court should have required the jury to give more definite answers to questions Nos. 2, 4, 5 and 7. The answers given by the jury to questions 2, 5 and 7 were properly construed as against the party on whom was the burden of proof with respect to the matters to which the questions relate. (Meek v. Wheeler, etc., Investment Co., 122 Kan. 69, 72, 251 Pac. 184.) Question 4 is purely a speculative question, and perhaps the jury answered it as well as anyone could. We regard both the question and the answer as immaterial. (Litsch v. Electric Co., 95 Kan. 496, 504, 148 Pac. 632.)
The jury first returned a verdict which is not in the record. After conferring with counsel the court asked the jury to retire and return, a verdict, or verdicts, upon forms furnished. Later the jury returned three verdicts. One was for the plaintiff and against both defendants and assessed plaintiff’s recovery at "no damages actual or punitive and assess one-third (⅓) of the court costs to the plaintiff.” Another verdict was in favor of John Nordstrom against the plaintiff, and the amount of his recovery was fixed at no damages actual or punitive and one-third of the costs were assessed to him. The third verdict was in favor of Ruben Nordstrom against the plaintiff, and the amount of his recovery was assessed at no damages actual or punitive and one-third of the costs were assessed to him.
The parties agree that the efforts of the jury to assess costs should be treated as surplusage. (Hall v. Kansas City, 112 Kan. 752, 212 Pac. 875.)
Appellant argues that when the jury found in favor of plaintiff and against each of the defendants it was error not to assess some damages, hence that the court should not have received the verdict, or that a new trial should have been granted. But the same argument can be made with respect to each of the defendants. While the forms of the verdicts are awkward, considering all of them, it is clear that the jury found that none of the parties claiming damages had made out a case in which he was entitled to recover damages. That is the view taken by the trial court. There is evidence in the record from which the verdicts as so interpreted can be harmonized. While plaintiff was the more severely injured, there is evidence, although conflicting, from which the jury might very well have found that plaintiff was the aggressor and for that reason not entitled to recover any sum as damages. With respect to the verdicts for each of the defendants, without allowing them damages, these may be sustained upon the view that although plaintiff was the aggressor the actual damage sustained by each of the defendants was inconsequential. This was the second trial of the case, the jury having been unable to agree at the first trial. The judge of the trial court had heard both trials. The court had no difficulty in interpreting the verdicts as above outlined, which ap-. pears to be the only reasonable interpretation to give them, and approved the verdicts and declined to grant a new trial. General verdicts should be construed to'give them effect if that can reasonably be done. In 27 R. C. L. 859 it is said:
“If by a reference to the record any uncertainty in the verdict can be explained, it is sufficient to sustain the appropriate judgment; and if the parties could not have been prejudicially affected, the fact that the form is unusual and not according to practice is not such a defect as to justify a reversal.”
To the same effect, see 38 Cyc. 1777,1778, and 64 C. J. 1066.
We are unable to see anything in the record which requires a reversal, and the judgment of the court below is affirmed.
Johnston, C. J., and Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Hoch, J.:.
The question presented is whether sections 13-1078a and 13-1079, G. S. 1945 Supp., which deal with the paving or other improvements of streets and alleys) in certain cities, are in violation of section 17, article 2, and section 1, article 12, of the constitution of Kansas. Proceeding under the provisions of these statutes, the city of Kansas City, Kan., instituted a paving project, and a resident against whose property a special assessment had been made, under the statute, commenced an action to enjoin the city from enforcing the assessment, from issuing special tax bills, or otherwise proceeding to carry out the project. It is unnecessary to set out the pleadings in full. It is sufficient to say that among the issues raised- was the constitutionality of the' statutes in question. Acting upon a motion by the defendant city to determine this ques- ' tion of law in advance of trial, the trial court held that the statutes were in violation both of section 17, article 2, ■ and of section 1, article 12. From that order, the city appeals.
Section 17, article 2 of the constitution'reads as follows:
“All laws of a general nature shall have a uniform operation throughout the state; and in all eased where-a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
Section 1, article 12 of the constitution reads as follows:
“The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.”
The question of whether the statutes are in violation of section 1, article 12 of the constitution was neither briefed nor argued on appeal, and we shall consider only whether the statutes are in violation of section 17, article 2 thereof.
Simply stated, the question is whether these statutes are in fact special laws enacted under the guise of a general law and to meet situations where a general law might be made applicable.
Sections 13-1078a and 13-1079 are complementary. Their basic-provisions were originally enacted in 1927 (Laws of 1927, ch. 133). A number of amendments have subsequently been made, most of which are not pertinent to the issues here. Both sections of the statute are lengthy, and no helpful purpose would b„e served by quoting them in full. Without attempting a comprehensive or detailed summary of the provisions of the two sections, it may be said that section 13-1078a provides means and methods for the improvement of streets and alleys by certain cities, action to be taken on the petition of property owners affected and the costs of the improvements to be assessed against the various properties made subject to the assessment and to be paid by special tax bills issued to the contractor doing the work; that section 13-1079 provides that these special tax bills shall be issued to the contractor payable in not to exceed ten annual installments, and shall be issued against each particular piece of property involved and become a lien upon the property superior to all other liens except the lien for general taxes,' that no liability shall attach nor shall any claim arise against the city on account of such tax bills, that if assigned to bearer by the contractor, such tax bills shall become negotiable instruments and may be bought and sold by banks and trust companies subject to regulations prescribed by the bank commissioner and the state banking board.
As originally enacted these sections of the statute applied to “any city of the first class now having or hereafter acquiring á population of over 110,000.” The constitutionality of the act was attacked on the grounds that Kansas City was the only city in the state qualified to exercise power under the act; that the act was a special act enacted in a case'where a general law could be made applicable and therefore was in violation of section 17, article 2 of the constitution. In State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032, this contention was rejected and the constitutionality of the statute upheld. In 1931 the statute was amended by changing the population figure to 120,000. We are advised that this amendment was made to prevent the statute from becoming applicable to Wichita.
We come now to the amendments which appellee contends made the act unconstitutional. In 1941 there was added at the end of section 13-1078a this proviso:
“Provided, however, That this section shall not apply to any city located within a county having an assessed tangible valuation in excess of $150,000,000.”
■ In.1943 a similar proviso was added to section 13-1079. We thus have' an act which provides procedures general in character for street improvements, but which is only applicable to cities of more than 120,000 population which are located in counties having an assessed tangible valuation not in excess of $150,000,000. The effect of the valuation proviso was to make the act inapplicable to Wichita, whose population had greatly increased following the change in the population figure in the statute to 120,000, and to leave it applicable only to Kansas City.
Under the terms of the law, if the population of any city increases to more than 120,000, the statute becomes applicable, provided that the assessed valuation of the tangible property of the county in which the city is located has not increased to more than $150,000,000. No reasonable basis has been suggested for such a classification and we discern none. The obvious purpose of the amendment was to make the statute apply only to Kansas City, and the result is that if the tangible property valuation of Wyandótte county should increase to more than $150,000,000, the statute would then cease to apply even to that city.
This question has been treated in such recent decisions of this court that there is no need now to again treat the subject at length. The instant case is clearly controlled by the decision in the recent case of State, ex rel., v. Wyandotte County Comm’rs, 161 Kan. 700, 171 P. 2d 777. In that case the court had before it the question of the validity of sections 68-1223 and 68-1224, G. S. 1945 Supplement, which related to the construction, reconstruction, improvement, or relocation and the use of bridges. The limitations upon applicability of those sections of the statute were almost identical with the ones before us. It is not necessary to set out in detail the provisions of those statutes. By their terms they were made applicable only to bridges in counties having populations of more than 130,000 and assessed valuations for taxation purposes of less than $150,000,000. The statutes were held invalid as being in contravention of section 17, article 2 of the state constitution. In support of that conclusion many of our later decisions were cited (page 706) and the citations need not be repeated here. In the opinion it was said:
“While the legislature has power to pass a law which applies to and operates uniformly on all members of a class without violating the mandate of. the constitution the classification so created must be natural and genuine and based upon distinctions which have a reasonable and substantial relation to the subject matter involved in order for such law to be upheld as general in nature. On the other hand, if the classification attempted by its provisions is arbitrary, illusory, capricious or fictitious, the entire enactment is stricken down as being within the inhibition of the constitutional provision.” (p. 706.)
and
“We fail to find anything in the facts disclosed by the record or presented in the argument of defendants which presents a sound or substantial reason for restricting the application of the - law here involved to one particular county of the state. And this is true even though due consideration has been given to the purposes sought to-be accomplished by its provisions. In our opinion the classification attempted cannot be justified on the theory it is germane to the subject matter or based upon a real tand substantial distinction.” (p. 707.)
It would certainly be hard to draw any distinction between a statute dealing with the construction and location of bridges and one dealing with the paving of streets, and appellant suggests none.
A short time prior to the decision in the Wyandotte County Comm’rs case, supra, a similar conclusion was reached in the case of State, ex rel., v. Schoeppel, 160 Kan. .396, 162 P. 2d 80. In that case the court had under consideration chapter 175, Laws of 1945, which created the office of commissioner of elections and which by its terms was made applicable only to counties having a population of more than 100,000 and an assessed valuation of less than $150,000,000. The act was held to be in contravention of section 17, article 2, and in the opinion it was said:
“We can see no -relationship between the assessed valuation in a county and the control of rural voting. Neither do we feee any relationship between the difference in population of 80,000 and 100,000 and a control of rural voting. We are forced to the conclusion that the classification in this case which makes the statute apply to Wyandotte, and Wyandotte county only, is an arbitrary one and that it cannot be sustained under the provisions of article 2, section 17 of the constitution of the state.” (p. 399.)
Similar statements might be quoted from other cases cited in the Wyandotte County Comm’rs case. It is unnecessary to extend this -opinion by doing so.
The subject of street paving by cities is one to which a general law may be made applicable. Various general statutes of that nature are in effect. In enacting such a general law, the legislature has power to make the statute applicable only to cities of a certain class provided the classification created is not an arbitrary one and rests upon a natural and substantial basis or distinction. We find no such basis in the statute here considered. It follows that sections 13-1078a and 13-1079, G. S. 1945 Supp., contravene the provisions of section 17, article 2 of the state constitution and are■therefore invalid.
It seems well in conclusion to note the facts with reference to the enactment of these two sections. Section 13-1078a as it now appears in the 1945 Supplement to the General Statutes was enacted as a part of chapter 122 of the Laws of 1941. That act, which was one “relating to cities of the first class,” contained fourteen sections and amended numerous statutes dealing with a variety of subjects, some of which are uñrelated to the subject here considered. Section 2 of said chapter 122, Laws of 1941, provided: “Section 13-1078a of the General Statutes of 1935 is hereby amended to read as follows:” etc. The prior'section 13-1078a was then reenacted with the added proviso limiting the section to cities located within a county having an assessed tangible valuation not in excess of $150,000,000. Section 13 of chapter 122 repealed the twelve prior statutes which had been amended in chapter 122 including section 13-1078a.
Section 13-1079, G. S. 1945 Supp.,. came into existence as a separate enactment, being chapter 100 of the Laws of. 1943. Section 1 of that act amended the prior section 13-1079 by reenacting it with the same property valuation proviso that had been added to section 13-1078a. Section 2 of the act (Laws of 1943, ch. 100) repealed the prior.section 13-1079.
It will thus be noted that in both of the acts further limiting the applicability of sections 13-1078a and 13-1079 by adding the proviso with reference to property valuation, the two sections as they had theretofore existed were repealed. The question of what effect, if any, the invalidation of the new sections 13-1078a and 13-1079 has upon the provisions for repeal, or in other words upon those sections as they existed prior thereto, was not presented by this appeal, was not argued or briefed, and is not here determined.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
After the original submission of this cause an opinion was filed January 26,1946, which appears in 160 Kan. 722,165 P. 2d 419. A rehearing was granted, the appeal has been reargued and upon consideration the court has concluded that a correct decision was not made in its first opinion. To avoid references to the first opinion for a statement of the facts, tbe case will be restated.
The action out of which the appeal arose was one to quiet title to real estate, under circumstances more fully set out later. The trial court rendered judgment in favor of the plaintiff and the defendant appeals. The parties will be referred to hereafter as Magnolia and Moyle.
In its petition filed in March, 1944, Magnolia alleged it was a corporation under the laws of Texas and qualified to transact business in Kansas; that it was the owner in fee simple of an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from the northwest quarter of section 23, township 31, range 38 west, in Stevens county, Kansas, and that Moyle claimed an adverse interest, but that Magnolia claimed he had no interest and should have its title quieted against him, and it prayed for judgment accordingly.
Moyle filed his answer and cross petition. Insofar as it is necessary to notice, the answer contained a qualified general denial and an allegation that Moyle was the owner and in possession of the above described real estate under a sheriff’s deed recorded October 15, 1942, and under the proceedings leading up to its execution and delivery, in the action of Board of County Commissioners of Stevens County v. Andrews et al., and hereafter referred to as the tax foreclosure action, and that Magnolia’s rights were adjudicated in that action and such adjudication had become final. Under his cross petition Moyle sought to quiet his title against the Magnolia.
In its reply the Magnolia pleaded that it had acquired title to the mineral rights by a deed from J. C. Gerrond, dated November 2, 1927, and recorded January 2, 1928, in Book F Misc., at page 370, and that since the filing of the deed Stevens county duly assessed and levied taxes on its mineral interest and it had paid the taxes, and that since October 31,1927, it had been in peaceable possession. A copy of the deed was attached as an exhibit and is referred to later. It admitted the proceedings under which the sheriff’s deed to Moyle was issued but denied that-the deed affected its title. It also pleaded that it was duly authorized to do business in Kansas on October 31, 1927, and at all times since and had appointed a registered agent on whom process might be served; that no process had ■been served upon it in the tax foreclosure suit; that no process or service of summons had been made upon it except by publication although actual service of summons could at all times have been obtained upon it and that it had no knowledge of the tax foreclosure proceedings or the issuance of the sheriffs deed until during the month of October, 1943. Magnolia’s answer to Moyle’s cross petition need not be noticed.
The deed from J. C. Gerrond to Magnolia conveyed—
“An undivided one-hglj interest in all minerals, including oil, gas, coal, and all other minerals, whether solid, fluid, or volatile, lying in or under or that may be produced or reduced to its possession and saved upon the following described real estate situated in the county of Stevens in the state of Kansas, to-wit:
“The North One-half of Section 23, Township 31 South, Range 38 West.
“Together with the perpetual and irrevocable right, privilege and easement of ingress and egress in, upon, and from said lands at all times for the purpose of mining, drilling, and exploring said land for oil, gas and all other minerals and removing the same therefrom together with the use of such amount of the surface of said land as is necessaiy or useful to produce, save, store, refine, mill and remove said minerals, including salt water, or any of them if found, and to extract or manufacture any produce therefrom and to conduct all operations and erect or use thereon all such buildings, derricks, tanks, structures, machinery, and equipment as may be necessary or proper for any or all such purposes, and to have the right of way on said land for, and the right to lay and operate thereon pipelines, erect and operate telephone and telegraph lines for the use of grantee in the business conducted thereon, to repair and remove from said lands any of grantee’s properties thereon, including the right to draw and remove casing therefrom, and to have and to use, free of charge, water from said land, except water from grantor’s well, for operations thereon, and to have and enjoy all other rights, easements and privileges necessary, incident to, or convenient for the economical operation of said land for the production of said mineral or minerals, or as are reasonably required for conducting and carrying on all things herein granted, provided, however, that grantor upon payment to grantee of one-half of all expenses and costs of producing such minerals, shall thereupon be entitled to one-half (%) of the net profits arising from the sale and disposition of said minerals in their natural state and as produced from and sold on said realty.”
It was further provided in the deed that:
“It is hereby expressly declared that it is intended by this, instrument to convey the fee simple title to an undivided one-half of all the minerals and mineral rights, including oil, gas, and all other minerals, whether solid, fluid, or volatile in, within, upon, or underlying or that may be produced from the above described lands, and all the grantor’s rights to operate for said minerals, and deal or contract with regard thereto, including the leasing thereof as fully to all intents and purposes as if the said grantee were the absolute owner of the entire title and estate in said lands and without any obligation whatsoever on the part of the grantee, either express or implied at any time to drill, mine, develop or otherwise explore for any oil, gas, or other minerals in or upon said lands, but in the event grantee, its successors or assigns, develops said minerals and produces oil, gas or other minerals from said described lands, then grantor shall have the right to repay grantee their proportionate share of all expenses for developing and saving said minerals and receive their proportionate share of the net profits arising from the sale of said minerals in their natural state as produced from and sold on said realty. In the event grantee o executes a mineral lease upon said premises, which it is hereunto duly authorized so to do, grantor shall be entitled to a one-half 'undivided interest in all of the royalties, rentals and bonuses provided for in such lease.”
The parties entered into a stipulation of facts covering the status of the parties, the execution and filing of the mineral deed; that the mineral interest of Magnolia was assessed for taxation and that it had paid the taxes thereon; that Moyle was the grantee named in a sheriff’s deed, a copy of which was made part of the stipulation, which deed was issued pursuant to the tax foreclosure proceeding, a copy of the proceedings being made a part of the stipulation; that in that action no service was attempted upon the Magnolia other than by publication. It was further stipulated that about May 25, 1937, the then owners in fee simple of the above described real estate executed and delivered to Magnolia an oil and gas lease on the described real estate and 'that there ha,d been no default by ■ Magnolia in the payment of rentals in lieu of drilling or otherwise at any time prior to the execution and delivery of the sheriff’s deed above noted, and further that the land had not been explored for oil or gas.
It is not necessary that we detail the various proceedings in the tax foreclosure action for there is no contention that the pleadings in and of themselves are faulty. We do npte, however, that these proceedings disclose that a sheriff’s sale of the real estate involved to Moyle, was confirmed on October 7, 1942. In disposing of contentions hereafter considered, we shall make such reference to the tax foreclosure action as is necessary.
The quiet-title action was submitted to the trial couj;t upon the stipulated facts, and it rendered judgment quieting Magnolia’s title to an undivided one-half interest in all of the oil, coal, gas and other minerals lying in and under the above described real estate, “together with all other propérty and contract rights vested in plaintiff (Magnolia) by reason of the mineral deed recorded in the office of the Register of Deeds of Stevens County, Kansas, in Book F, Misc., at page 370, . . .”
From the above judgment Moyle duly appealed to this court, upon consideration of which this court rendered its decision mentioned above.
It may here be noted that when Magnolia filed its motion for a rehearing additional briefs were filed, and amici curiae were also permitted to file briefs. From these briefs, and from the argument on rehearing, it appears there is no dispute as to the regularity of the tax foreclosure proceedings, except as hereafter noted, and that unless the proceedings and the judgment rendered thereunder may be attacked collaterally by Magnolia, it is not entitled to recover. Two main questions are presented: 1. Was Magnolia properly served with summons in the tax foreclosure action? 2. Did the district court have jurisdiction of that action insofar as Magnolia was concerned? These will be considered in order. In the discussion of both questions, it is noted that the tax foreclosure action was commenced April 8, 1942, and the sheriff’s sale held under it was confirmed October 7, 1942. References hereafter made are to the tax foreclosure statutes and other statutes then in effect.
1. Was Magnolia properly served with summons in the tax foreclosure action? If the service was fatally defective the judgment against it was open to collateral attack. The petition in that action alleged that with respect to the real estate presently involved, the company was an owner, supposed owner or a party having or claiming to have some interest therein or thereto. An affidavit for service by publication was made by the county attorney. No complaint is made as to its form or sufficiency and we note only that it was stated it was not known whether Magnolia Petroleum Company was legally existing or dissolved, and if not in existence, whether there were any officers or successors, trustees or assigns, etc., and that with due diligence plaintiff was unable to procure actual service of summons within the state of Kansas and desired to obtain service by publication of summons. No complaint is made of the publication of summons which followed, nor of proof thereof. The journal entry of judgment stated that the court had carefully examined the publication notice and proof thereof and approved them.
On the original submission the question of service of summons was not. stressed and received only brief attention in our first opinion.
The argument now presented that Magnolia was not properly served runs thus: Magnolia is a foreign corporation authorized to do business in Kansas and actual service of summons could have been had upon it. The corporation was doing business in Kansas and under G. S. 1935, 17-501, was required to file an irrevocable consent 'that service of summons for it might be served upon the secretary of state; that under G. S. 1941 Supp., ch. 17, art. 44, it was required to designate a registered agent; that notwithstanding any allegation in the affidavit for service by publication that it was a foreign corporation, the trial court judicially knew that it was legally and factually possible to procure actual service within the state and, therefore, that service of summons by publication was not permissible under the civil code (G. S. 1935, 60-2525 et seq.). The record does not sustain the premise for the argument. The tax foreclosure statute provided for service, either personally or by publication, as provided in other cases under the civil code. (See G. S. 1941 Supp., 79-2801.) The civil code provides for publication summons, where the “plaintiff upon diligent inquiry is unable to ascertain whether a corporation, domestic or foreign named as defendant, continues to have legal existence or not . . .” (G. S. 1935, 60-2525.) (Emphasis supplied.)
The affidavit for service by publication was in accordance with the above provision. There was no allegation Magnolia was or was not a foreign or domestic corporation. It makes no difference that in the quiet-title action it was agreed that Magnolia was a foreign corporation and authorized to do business in Kansas — that situation was not disclosed by the record in the tax foreclosure case.
No appeal was taken from the judgment in the tax foreclosure action, nor has that judgment, including approval of the service by publication, ever been directly attacked. Even though some statements of the affidavit were false, the service cannot be collaterally attacked. (See Davis v. Land Co., 76 Kan. 27, 90 Pac. 766.) The basis for Magnolia’s contention not being present in the situation now before us, we need not decide whether it is any longer possible to obtain service by publication on a foreign corporation authorized to do business in this state. Previous decisions of this court have ■ held, however, that statutes providing for service against foreign corporations by serving some designated person within the state are cumulative and supplementary to other methods of service and are not exclusive. See Betterment Co. v. Reeves, 73 Kan. 107, syl. ¶ 3, 84 Pac. 560; Jones v. Insurance Co., 83 Kan. 44, syl. ¶ 1, 109 Pac. 1077; Nowak v. Insurance Co., 103 Kan. 778, 176 Pac. 654. Notice, also, the language used in G. S. 1941 Supp., 60-2522.
2. Did the district court have jurisdiction of the action insofar as Magnolia was concerned?
The general contention of Moyle is that in the tax foreclosure action the trial court had jurisdiction of the subject matter of the action and of the parties; that the petition alleged the involved real estate had been bid in at a tax sale duly held as provided by law; that the court in due course had rendered a judgment; that by the judgment the rights of Magnolia in the real estate were adjudicated; that no appeal was taken from the judgment nor was there any timely attack thereon; that that judgment may not be attacked collaterally, and therefore the trial court erred in permitting a collateral attack and in rendering its judgment in the quiet title action. Magnolia contends that the district court, in a tax foreclosure action, although generally a court of general jurisdiction, is for the purposes of such an action a court of limited jurisdiction,, and that it is a condition that tax on its property be actually due and unpaid before the district court acquires any jurisdiction over the real estate sought to be sold. As we understand, Magnolia does not dispute the general principles relied on by the appellant and we shall not dwell thereon.
It may be observed first that it has been held repeatedly by this court that the whole matter of taxation, including the levy and collection of taxes, is statutory and does not exist apart from statute. (See, e. g., Equitable Life Assurance Society v. Hobbs, 155 Kan. 534, 127 P. 2d 477; and Sherman County Comm’rs v. Alden, 158 Kan. 487, 492, 148 P. 2d 509, and the cases cited therein.) The present case presents no situation where that principle should not be adhered to, and we therefore examine the tax foreclosure statute as it existed in 1942 when the foreclosure in question was had, and the -decisions of this court arising under former but like tax foreclosure statutes. Under such circumstances, it is not necessary that we discuss separately whether the jurisdiction of the district court - is limited rather than general.
. The opening sentence of the statute under which the tax foreclosure action was brought (G. S. 1941 Supp., 79-2801) reads:
“That in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale and shall remain or shall have remained unredeemed for the period of three years . . . the board of county commissioners shall order the county attornejr ... to institute an action . . .”
Although the situation disclosed by the pleadings in the tax foreclosure action, and the agreed facts at the trial of the quiet-title action have been heretofore set forth, we here direct attention to the fact that the mineral deed to Magnolia was duly recorded (see G. S. 1935, 79-420), that its mineral interest was listed for taxation and that it paid all of the taxes assessed against that interest. The only conclusion that can be reached is that no tax ever having been in default, no tax lien could exist, the mineral interest could not have been lawfully sold and bid in by the county at any delinquent tax sale, and therefore the statutory condition to bringing the tax foreclosure action did not exist.
We are not concerned with differences as-to specific procedures of the two acts, but the legislature by Laws 1877, ch. 39, provided for the sale of lands sold and bid in by the county for unpaid taxes. ■The opening sentence of that act read:
“That in all cases in which,real estate has been or shall be sold and bid in by any city or county at any delinquent tax sale, and shall remain or shall have remained unredeemed and the certificate of sale untransferred for the period of three years after such sale, it shall be the duty of the attorney of such city or county to file a petition ...”
No comment as to similarity of language is necessary.
Magnolia directs our attention to the four following cases:
In Doty v. Bassett, 44 Kan. 754, 26 Pac. 51, it appears that certain taxes were assessed against land in 1871 while it was still government land, and that it was sold to the county for the tax unlawfully assessed against it. The grantors of Doty acquired title and paid the taxes for 1872 and subsequent years. In 1877, an action was brought under the provisions of the statute last above mentioned and a judgment was subsequently rendered. The land was bid in by the county and yms sold to parties who conveyed to Bassett. Doty brought his action to quiet his title. From a judgment for Bassett, Doty appealed. This court held the proceeding was one in rem; that a tax, when duly levied, became a lien which might be enforced as the legislature prescribed; that the real estate was government or public land and not subject to assessment or taxation in 1871; that as the land was not taxable in 1871 and had not been sold or bid in by the county for any delinquent taxes, the statute had no application and the district court had no jurisdiction to condemn or sell the land, and that where lands are not taxable there are no taxes due and unpaid. It was further stated the alleged tax of 1871 was not merely voidable, but absolutely void, and there being no delinquent tax, the district court had no jurisdiction.
In Spicer v. Wheeler, 53 Kan. 424, 36 Pac. 736, which arose out of a sale held under the statute of 1877, the rule of the Doty case, supra, is referred to but the decisipn of the court is not based on that rule, but on a rule first made in the Doty case, and later withdrawn. The case was decided on the question of the sufficiency of the pleadings in the tax foreclosure action, and is not helpful on the question now before us.
In Wyandotte County v. Kerr, 112 Kan. 463, 211 Pac. 128, the question was the sufficiency of pleading to open a judgment rendered on publication service in a tax foreclosure action. We are not now interested in that particular question, but in that case it was said:
“Probably the only defenses that can be set up in an action to foreclose tax liens held by a county are that the property was not subject to taxation; that the taxes, or some part of them, were illegal; or that the taxes had been paid.” (1. c. 464.)
In Montgomery County v. Wilmot, 114 Kan. 819,221 Pac. 276, the court considered an appeal from an order setting aside a judgment and a sheriff’s deed based thereon in a tax foreclosure suit. In that case the action was commenced and service by publication was had upon Arra Ballard, who owned real estate on which the tax had not been paid. A judgment was rendered and subsequently the property was sold and a sheriff’s deed issued and recorded. After the judgment, but before the sale, the mother' of Arra Ballard paid the county treasurer a certain amount and received a redemption but we need not review that. In about fifteen months, and within time under the then applicable statute, Arra Ballard, a minor, by her next friend, filed her application in the original action to open the judgment. The attack being in time the court had no occasion to discuss the specific question of whether the trial court was without jurisdiction, but in affirming a judgment of the trial court allowing relief, it was said:
“Perhaps it is not stating it too broadly to say that one of the fundamental prerequisites to a valid sale of real property for taxes is that there is a tax due and unpaid at the time of the sale. Not only is this prerequisite essential to fair dealing between a sovereign and its citizens, but it is either specifically or necessarily by implication embodied in every provision for the sale of real property for taxes. In this case, whether we treat the evidence as showing a substantial compliance with the statute relating to redemption in a suit to foreclose a tax lien, which we do, or a proper redemption by a minor, which seems clear, though this question has not been argued, the fact remains that the sovereign had its tax in full twenty days before it attempted to sell the property. At the time of the sale the sovereign had no charge or claim against the property for taxes and therefore had nothing to sell. Though it went through the form of a sale it sold nothing and hence conveyed nothing.” (1. c. 824.)
In addition to what was said in the above cases, attention is directed to cases holding that compliance with tax statutes is essential to the acquisition of jurisdiction. See Morris County Comm’rs v. Cunningham, 153 Kan. 340, 110 P. 2d 783; Bryner v. Fernetti, 141 Kan. 446, 41 P. 2d 712; Madigan v. Smith, 137 Kan. 269, 20 P. 2d 825; Crawford, County Comm’rs v. Radley, 134 Kan. 704, 8 P. 2d 386; and see, also, 61 C. J. 1120, 1121, and 51 Am. Jur. 896, as bearing on the question, last discussed.
We conclude that the tax on Magnolia’s mineral interest having been paid in due time, it could not have been sold for delinquent taxes and bid in by the county, and therefore in any tax foreclosure action that may have been filed, the court did not and could not acquire any jurisdiction of the particular real estate, and that any judgment respecting that real estate, including an order of sale, approval of sale or issuance of a sheriff’s deed was void.
Such a holding however does not warrant an unqualified affirmance of the trial court’s judgment in the quiet-title action. It not only quieted title of Magnolia to its mineral interest, but as shown above, included certain contract rights included in the mineral deed to Magnolia. As is shown more specifically by the quotation heretofore made, Magnolia acquired the undivided one-half interest in the minerals and, under the provisions of G. S. 1935, 79-420, that interest so conveyed was assessed for taxation, and it is that tax which Magnolia paid. For present purposes we may assume that a right of ingress and egress was so much an appurtenant to the estate conveyed that it may be said to be part thereof, and therefore included in the assessment for taxation of the real estate. But the right to use the surface for storage, refining and milling of minerals found, to manufacture any produce therefrom, to conduct operations, erect structures, lay pipe lines, and other things provided, were rights creating easements on the real estate not conveyed to Magnolia, and that they were not taxed is too clear for argument. It may be difficult to classify that portion of the mineral deed giving Magnolia the right to ' operate for minerals and deal or contract with respect thereto, including the leasing thereof as fully to all intents and purposes as if Magnolia were the absolute owner of the entire title and estate, but it cannot be said it did not create some interest of Magnolia in the real estate in addition to the undivided one-half of the minerals conveyed. None of these additional rights were separately returned for taxation and the tax paid by Magnolia. On the contrary, the tax assessed on the real estate, as distinguished from the tax on the mineral interest, included not only the iand itself but the tenements and hereditaments and all rights thereto and interest therein, legal as well’as equitable- (G. S. 1935, 77-201, Eighth). It is conceded that the taxes assessed against the real estate, excepting the . mineral interest, were not paid; that they were adjudged delinquent and unpaid; that the real estate was ordered sold, was sold, the sale confirmed and a sheriff’s deed issued to the purchaser, the appellant herein. The proceedings in the tax foreclosure action, except as to Magnolia’s mineral interest, are not attacked in any way.
It is not necessary that we treat the well-established rule that a judgment rendered in one action may not be collaterally attacked in another action, except on jurisdictional grounds. Such grounds do not exist as to the matter just discussed. The judgment of the trial court quieting Magnolia's title in "all other property and contract rights vested in plaintiff (Magnolia) by reason of the mineral deed . . .” was erroneous.
3. We note that in his brief Moyle makes some contention that . Magnolia is barred by reason of the statute of limitations contained in the tax foreclosure statute (G. S. 1941 Supp., 79-2804b). In his answer and cross petition Moyle did not plead any statute of limitations. The matter was not an iksue in the trial court. Although if it had been, no error was specified on any claimed ruling and the matter is not before us for consideration.
4. The judgment of the trial court .quieting Magnolia’s title to its mineral interest in the involved real estate is affirmed and its judgment quieting its title to the other property and contract rights by reason of the mineral deed recorded in Book F, Misc., page 370, in ' the office of the register of deeds of Stevens county, is reversed. | [
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The opinion'of the court was delivered by
Hoch, J.:
This appeal is from an order allowing a claim for attorneys’ fees against an estate. The appeal has not been heard upon its merits but is before us now upon motion of the appellees to dismiss on the ground that service of notice of the appeal was not personally served as required by the statute (G. S. 1935, 60-3306).
Appellees are attorneys residing at Newton, Harvey county, Kansas, and the claim was allowed both by the probate court and upon appeal by the district court of that county, where the estate is being administered. Attorneys for the estate reside at Hutchinson and at Newton, Kan.
The record here is somewhat incomplete but sufficient to justify our proceeding upon the theory that notice of the appeal was sent by registered mail by appellant’s Newton attorney to appellees at their Newton office, with request for return receipt, and that the card acknowledging receipt of the notice was signed by appellees or by an employee acting for them and was returned to the sender. The question is whether such service complies with the requirement of section 60-3306, G. S. 1935, the pertinent provisions of which read as follows:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court ... A copy of such notice must be personally served on all adverse parties ... or, if such service cannot be made within the state, service may be made by a notice, properly addressed to such persons or their attorneys of record at their places of residence, deposited ih the mail, if their places of residence are known. Proof of such service shall be made by affidavit, and in case the residence of the party and his attorney is not known, an affidavit of the appellant or his attorney may be attached to the notice filed with the clerk, stating that the residence of such , party and his attorney is unknown, and that the appellant is unable to ascertain the same; . . .”
Appellees rely upon the case of Thisler v. Little, 86 Kan. 787,121 Pac. 1123. In that case the notice was not sent by registered mail but by ordinary mail and strictly construed the case would not be controlling. However, there were statements made in the opinion which justify the appellees in invoking the case as a precedent here. On the other hand, the court took note in the Thisler case, that in a case decided-only two months previously, delivery by registered mail of notice of a motion to open a judgment had been held sufficient, and said:
“In Taylor v. Woodbury, ante, p. 236, 120 Pac. 367, notice of a motion to open a judgment was sent by registered mail to the attorney of record whose signature on the return card acknowledged its receipt, and this was held to be prima jade proof of service. It was said: 'We think that service of a motion made in this way is not objectionable and ought to be upheld; it is a substantial compliance with all the requirements of the code and furnishes its own proof of the fact and character of service.’ (p. 237.) But we have no similar showing here. The fact that duplicates were mailed to the appellee and his attorney of record is proof that they were started on their journey but not that they were personally served.” (p. 791.)
It is true that the statute with reference to service of motions (G. S. 1935, 60-724) was not and is not now identical with section 60-3306, but any distinction between the two statutes is not essential to determination of the question here. After all, the purpose of the statute is to ensure that a copy of the notice of appeal shall be personally received by adverse parties residing within the state. We are not called upon here to lay down a general rule as to sufficiency of proof that such notice has been received. Certainly it has long been a practice of attorneys to use registered mail, with return receipt requested, for securing personal service of notices of appeal. In this case it is not denied that the notice was received or that the card acknowledging receipt was signed and returned to the sender, which at least constitutes prima facie proof of personal service. To require the sender or his agent to take the notice and hand it personally to the adverse party who might reside four hundred or more miles away would impose a burden which a reasonable construction of the statute does not require. The showing of personal service here made is sufficient under the statute. Insofar as any statements made in Thisler v. Little, supra, are inconsistent with the holding in this case, they are here disapproved.
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The opinion of the court was delivered by
Hoch, J.:
This was an application for review of an order of a school reorganization committee. The district court made an order vacating the order of the committee on the ground that it was unlawful and unreasonable. The school reorganization committee appealed to this court. The appellees have filed a motion to dismiss the appeal on the ground that the statute does not provide for it.
The entire proceeding is based upon G. S. 1945 Supp. 72-5601 et' seq., being chapter 291 of the Laws of 1945. The act provides generally for a reorganization of the common-school system, with special attention to territory. Since there are so many common-school districts in the state, a sweeping, comprehensive statute was required.
The first section defines terms as used in the act. The second section provides for the creation of the division of school reorganization within the state department. The third section provides for reorganization committees to be appointed by the board of county commissioners of each county and makes it the duty of the county attorney to advise this committee and to assist at hearings. The fourth section provides for the organization of this committee. The fifth section provides for a per diem compensation and the employment of a stenographer. The sixth section provides for. meetings and for the election of officers. The seventh section provides for reorganizing the school districts of the county and what elements must be considered in making such reorganization, and that in case of school districts containing territory lying in two or more counties the reorganization committee.of each county shall meet in joint session. The eighth section provides for the committee fixing dates and places for meetings and giving notice to all patrons of districts affected. The ninth section provides for the making of orders to properly organize or disorganize, number or renumber the school districts affected in the county. The tenth section, provides that any party dissatisfied with any order of the county committee may, within thirty days after the last publication of the order,- apply in writing to the county committee, for a rehearing, and that no cause of action arising out of any plan or order of the committee shall accrue unless such party shall make application for rehearing, and provides that in case any published order of the committee is changed or modified upon rehearing, then any party aggrieved, whether a party to the dispute or not, may appeal to the district court as provided in the next section. The next four sections, 72-5611, 72-5612, 72-5613 and 72-5614, relate to a review of the order of the reorganization committee after the application for rehearing has been passed upon. They provide as follows:
“Within thirty days after an order on the application for rehearing is made, any party aggrieved may apply in writing to the district court of the county in which the order of the committee is to become effective for a review of such order. If the order of the committee is to become effective in more than one county, the application must be to the district court of any one of such counties. The application for review shall be filed in the office of the clerk of the district court of the proper county and shall specifically state the grounds for review upon which the applicant relies and shall designate the order sought to be reviewed. The clerk of the district court shall immediately serve a certified copy of said application upon the proper county committee or committees, as the case may be, by transmitting such certified copy personally or by registered mail to the secretary of the committee. Said sercretary or secretaries shall immediately notify all parties who are recorded as having appeared at the committee’s rehearing by mail that such application for review has been filed: Provided, That no more than one application for review involving the same, territory shall be pending at any one time and any subsequent application, if filed, shall be made a part of the proceedings in the first application filed, or any aggrieved party may become a party to' said original action. The clerk of the district court shall, at the time of filing, mark the day and hour thereof upon said application.
“The secretary of the committee upon receipt of said copy of the application for review shall forthwith transmit to the clerk of the district court in which the application for review has been filed, a certified, transcript of the application for rehearing and of the stenographic record of the proceedings on the rehearing: Provided, The parties, with the consent and approval of the committee, may stipulate in writing that only certain portions of the record be transcribed. Said certified transcript shall be admissible in evidence. Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the order on rehearing inquired into and determined, and the district court shall have power and jurisdiction to vacate or set aside such order on the ground that same is unlawful or unreasonable. All proceeding^ under this section shall have precedence in any court in which they may be pending, and the hearing shall be by the court without a jury.
“No new or additional evidence may be introduced upon the trial or any proceedings to review under the provisions of sections 10 to 15 [72-5610 to 72-5615], inclusive of this act, but same shall be heard upon the questions of fact and law presented by the record as certified under the provisions of section 12 [72-5612] of this act: Provided, If it shall be shown to the satisfaction of the court that any party to said proceeding has additional material evidence which could not, by the exercise of due diligence, have been presented at the hearing given by the committee, or which for some good reason was prevented from presenting it at such rehearing, or if upon the trial of the proceeding the court shall find that the committee has erroneously refused to consider material evidence offered by any party at the rehearing given by the committee, the court may, in its discretion, stay the proceedings and make an order directing the committee to hear and consider such evidence. In such cases it shall be the duty of the committee immediately to hear and consider such evidence and make an order modifying, setting aside or affirming its former order or decision, and thereupon a certified copy of the order or decision together with a transcript of the additional evidence shall be certified and transmitted to the clerk of the district court in which such proceeding is pending, and said court shall, on motion of any interested party, proceed upon the transcript as supplemented to determine if the order or decision of the committee as originally made or as modified is in any respect unlawful or unreasonable.
“The filing or pendency of the application for review provided for in section 11 [72-5611] of this act shall stay and suspend the operation of any order of the committee only as it applies to the specific original district or districts affected by the application.”
It will be noted that any party aggrieved may apply in writing to the district court of the county in which the order of the committee becomes effective for a review of such order. The section then provides how the review shall be carried on, that is, the procedural steps. It provides for the court referring the case back to the committee for further hearing if the court deems it necessary. G. S. 1945 Supp. 72-5612 provides, in part, as follows:
“Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the order on rehearing inquired into and determined, and the district court shall havte power and jurisdiction to vacate or set aside such order on the ground the same is unlawful or unreasonable.”
G. S. 1945 Supp. 72-5611 also provides that the application for review shall specifically state the grounds for review upon which the applicant relies and shall designate the order sought to be reviewed.
There is nowhere in the act any provision for an appeal to the supreme court.
The appellees, that is, the parties who filed the application for review in the district court, argue that this appeal should be dismissed because there is no appeal provided for in the statute.
They cite first Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, a workmen’s compensation case brought pursuant to chapter 232 of the Laws of 1927. That chapter provided for a comprehensive plan of workmen’s compensation and in terms provided only for an appeal to the district court. Section 42 of the act provided, in part:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the commission to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the commission.”
An appeal had been taken to the district court from a judgment entered in favor of the workman. When the company attempted to appeal to this court, we held the act was an elaborate, comprehensive plan for the administration of workmen’s compensation. Since the act did not provide an appeal to the supreme court, no such appeal existed. Later the workmen’s compensation act was amended so as to provide for such an appeal. (See Laws 1929, ch. 206, same being G. S. 1935, 44-556.)
To the same effect is National Bank of Topeka v. State, 146 Kan. 97, 68 P. 2d 1076. That was an action where an executor of an estate had paid to the county treasurer of Shawnee county a tax as provided by G. S. 1935, 79-1517. He then filed a petition for abatement of the tax, as provided in the same section. This was denied. He then filed a petition in the district court of Shawnee county asking the court to review the order of the inheritance tax commission. This was pursuant to G. S. 1935, 79-1517, which provided as follows:
“That any such executor, administrator, trustee or grantee may apply to any district court of competent jurisdiction for a review of any such order, and until final decision shall be entered by any such court such money shall not be refunded by said county treasurer.”
The commission did not plead any answer to this action. Judgment was entered in favor of the executor. When the inheritance tax commission attempted to appeal to the supreme court, we held that since the act did not provide for an appeal to this court, none existed. The authorities are reviewed in the opinion. The constitution does not provide for an appeal to the supreme court as a matter of right. It provides:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law. It shall hold one term each year at the seat of government and such other terms at such places as may be provided by law, and its jurisdiction shall be coextensive with the state.” (Const, art. 3, § 3.)
G. S. 1935, 20-101 provides:
“The supreme court shall be- a court of record, and in addition to the original jurisdiction conferred by the constitution, shall have jurisdiction in all cases of appeal and proceedings in error from the district and other courts in such manner as may be provided by law; and during the pendency of any appeal of proceedings in error, on such terms as may be just, may make an order suspending further proceedings in the court below, until the decision of the supreme court.”
Appellants argue that the statute in reality provides for a trial by the court and that the decision is a final order, and that an appeal lies from it in accordance with the code of civil procedure. In National Bank of Topeka v. State, supra, we considered an analogous question and held that a similar application for review was neither an action nor a special proceeding, and that the remedy was as pi’ovided in the act.
Some force is given the argument of appellees here by the fact that in such statutes as the oil proration statute, there is a provision for an appeal to the supreme court. G. S. 1945 Supp. 55-606 has a provision as follows:
“Appeals to the state supreme court may be taken from the judgment of the district court as in other civil actions.”
As heretofore stated, there was no such provision in the first workmen’s compensation act. (See. Laws 1927, ch. 232, § 42.) The fact that the legislature saw fit to provide for an appeal to the .supreme court in those statutes is persuasive that by not providing it in this statute it was the intention that there should be no such appeal.
The appeal is dismissed. | [
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The opinion of the court was delivered ’by
Harman, C.:
This is an appeal by the condemner in an eminent domain proceeding in which the landowner was awarded damages by a jury in distriot court for restriction of access to its property.
On October 29, 1971, the city of Overland Park filed its petition in eminent domain to acquire an interest in land owned by Kohn Enterprises, Inc., in connection with the city’s improvement of the intersection located at 63d street (U. S. highway No. 50) and Foster street. The interest to be acquired was described as a temporary construction easement on an L-shaped tract on Kohn’s land consisting of a strip ten by seventy-eight feet along U. S. 50 and fifteen by fifty feet along Foster street. Kohn owned a rectangular tract in the northwest quadrant of the intersection with a frontage of 170 feet on U. S. 50 and 610 feet on Foster street upon which it operated a restaurant and a ninety-three unit motel. The petition made no mention of the acquisition or restriction of Kohn’s access to its land.
Prior to the improvement a rock wall existed along the east side of Kohn’s property adjoining Foster street southward to a stop sign along the northeast side of a large sign on Kohn’s property which advertised its business. North of the sign there was no access to Kohn’s property on Foster street. This sign was about forty to forty-four feet north of a catch basin or storm sewer at the intersection. Kohris south property line was about fifteen to seventeen feet south of the sign; however, there was no defined boundary line or demarcation at the comer of the intersection between the asphalt on die streets and that on Kohns property leading into its restaurant and motel, with the result traffic could and did regularly turn oflf Foster street, south of the commercial sign, onto Kohn’s property. Traffic could similarly turn oif U. S. 50 onto the motel property. The motel restaurant and office were in a building adjoining the west line of Kohn’s property with two separate motel units, separated by a swimming pool, to the north or rear. Prior to the taking there was free access to Kohns property along its 170-foot frontage on U. S. 50 although the front part of the restaurant and office building was less than a car length north of the highway right-of-way.
The court-appointed appraisers filed their report appraising Kohn’s damage by reason of the temporary construction easement. The amount so awarded was paid into court December 17, 1971. Kohn appealed the matter to district court.
Thereafter as a part of its street improvement program the city made several changes in the intersection, which program had been completed at the time of trial. The grade along Foster street adjoining Kohn’s property on the west was lowered. At the intersection both U. S. 50 and Foster streets were widened to provide protective left turn lanes and an exclusive right turn lane on Foster; the lanes were clearly defined and channelized by the use of raised medians; on the outside new curb- and guttering were provided; a large steel pole with a mast arm out from the pole for a traffic signal was. installed at the northwest corner of the intersection; the pole was on the existing right-of-way between the curb and Kohn’s property line. A curb about five or six inches high was erected around the northwest -comer of -the intersection in order to protect the pole. The curbing extended from -the commercial sign around the corner and continued westward for a distance of seventy-eight feet along U. S. 50.
Recause of these changes restricting its access Kohn constructed a new thirty foot driveway from Foster street onto its property about 100 to 130 feet north of the sign.
After Kohn had taken its appeal from the appraiser’s award and prior to trial herein this court decided the case of McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P. 2d 1165, opinion filed July 17, 1974, involving a property in the same condemnation which was directly across the intersection east of Kohn’s motel. Thereafter the city attempted to secure from the trial court a pretrial ruling that no evidence should be received as to anything that happened after December 17, 1971, the date of the taking of the property, and further that there has been no compensable taking of access from Kohn. Its argument was that the city had not taken access but had only regulated trafile in a reasonable manner and in no event should an inverse condemnation for a restricted access claim be combined with a proceeding involving a direct condemnation. The trial court declined to make the pretrial rulings sought but in doing so made it clear the taking of access would be an issue in the trial, that it would hear evidence and then rule on the matter prior to submission of the damage issue to the jury.
Trial proceeded accordingly at which both sides offered evidence. The jury found the value of the entire tract prior to the taking to be $600,000 and after the taking to be $580,750, thereby awarding Kohn $19,250 damages. This appeal by the city ensued.
The three points raised by the city on appeal are closely related, with some overlapping in the arguments made in support. As stated in its brief they are:
“I. The Court erred to the prejudice of the condemnor in its ruling that parol evidence was admissible to show an alleged taking of access or other interest in landowner’s property.
“II. The Court erred to the prejudice of the condemnor in failing to determine as a matter of law prior to trial whether or not the condemnor acquired access to landowner’s property thereby requiring the case to be tried on two different conflicting and inconsistent theories.
“HI. The Court erred to the prejudice of condemnor in its ruling that the evidence showed a compensable taking of access rather than a noncompensable regulation of traffic.”
The argument in support of the first two amounts to this: Evidence as to any damage to Kohn’s property beyond that which was stated to be taken in the eminent domain petition (a temporary construction easement) was, over the city’s objection, improperly received by the trial court; an alleged taking, not mentioned in a formal condemnation proceeding, is a de facto taking and the subject of an inverse condemnation, which should not be combined and heard at the same time with a formal condemnation; that to do so requires a case to be tried on two different, conflicting and inconsistent theories; that the court’s failure to rule prior to trial whether or not access had been taken had this result, all to the city’s prejudice.
In Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934, we said:
“In all condemnation cases the only question presented for the jury’s determination is the loss to the owner because of the property taken. The fact that there was a taking has been previously determined by the court. . . .
“. . . [I]n an inverse condemnation proceeding a trial court should either instruct the jury that there was a compensable taking or direct a verdict for the defendant.” (pp. 366-367.)
In Brock the landowners were not made parties to a condemnation action but instead brought the suit themselves after the highway commission constructed a frontage road on land already owned by the commission and which lay between plaintiffs’ land and a through highway. This court recognized that where the right of eminent domain has not been exercised by the highway commission and an abutting property owner is aggrieved because he feels that his access to a highway has been unreasonably restricted, his remedy is by way of an action for damages in the nature of a suit on an implied contract. Such action is sometimes denominated an inverse condemnation.
Our condemnation statute, K. S. A. 26-508, provides in part:
“. . . An appeal by the plaintiff or any defendant shall bring the issue of damages to all interest [interests] in the tract before the court for trial de novo. . . . The only issue to be determined therein shall be that of just compensation to be paid for the land or right therein taken at the time of the taking and for any other damages allowable by law.”
K. S. A. 26-513 (d) 2. provides that factors to be considered in ascertaining the amount of damages to be awarded shall include access to the property remaining.
In the case at bar the trial court held two pretrial conferences after a largely perfunctory pretrial order had been entered. At the conclusion of the second conference the positions of the parties and of the court were made quite clear. Kohn was asserting damages for loss of access — it sought no more than nominal damages for the temporary construction easement but was asserting from $75,000 to $100,000 damages by reason of restricted access. The city contended there was no unreasonable restriction of access and, therefore, no compensation was owing. The trial court expressed some reservation about the matter but made clear the issues for trial. Its position was well summarized by the following colloquy:
“The Court: Does it make any difference also, in this case, whether that [restricted access by reason of curbing] is considered as an inverse condemnation or merely a part of the damages arising out of the condemnation?
“Mr. Rainey: The damages, I would suggest, would be the same — in my opinion they would be the same, whether inverse or condemnation.
“The Court: It makes no difference what we call it then.
“Mr. Rainey: That is true. It does make a difference on procedure. It puts us in an impossible position from a procedural standpoint to try an inverse condemnation .at the same time we try the formal condemnation.
“The Court: I plan to consider that the same as considered in the McCall ease, as merely another item which can be considered as possible damages. At this point, I’m not going to have a separate prior hearing of testimony to make the determination as to whether or not this was, in fact, a taking, and is, therefore, compensable. It, however, would be a matter subject to proof during the trial. And in the event the evidence is such that there is a ruling that it is not compensable, then we are faced with two possibilities: Either grant a new trial, or, if it appears it would be adequate, strike all that testimony and all of the values based on that as being the taking, and so instruct the jury. I think both parties are at this point aware of the dangers involved.
“Mr. Rainey: We are, Your Honor, I want to respectfully suggest that the Court has, by implication, ruled that evidence of the alleged taking should be, or is admissible.
“The Court: Yes.”
At an earlier pretrial conference held some time in advance of trial, at which Kohn was asserting loss of access, the trial court remarked: “As I stated, it appears to me it comes within the purview of the McCall case, and this is a compensable damage in this lawsuit.”
At the conclusion of the evidence the court ruled, as a matter of law, that access had been taken and instructed the jury accordingly. No complaint is raised as to the instructions 'given, they are not reproduced in the record on appeal and presumably they were correct.
We do not think that the rale in Brock is to be so rigidly applied as urged by the city or that the city was prejudiced by the procedure employed. The city’s petition in eminent domain recited that the taking was required for the improvement of a portion of 63d street (U. S. 50) and Foster street and also for “intersection improvement” as shown by prepared plans on file. Some of these plans were identified as exhibits at pretrial conference. At trial the landowner produced evidence respecting 'the physical situation after the improvement was completed and evidence as to its purported damage. The city had ample notice as to what to expect. It deliberately charted the course it pursued at trial. The court in effect gave the city an extra opportunity, beyond that afforded by the city’s plans and the contentions of Kohn’s counsel, to demonstrate there had been no compensable taking. The city chose to ignore the amount of damage arising from alleged loss of access and relied instead on its contention there had been no compensable taking. After the court ruled as a matter of law that there had been a compensable faking the city made no effort to adduce further evidence on the issue.
Much the same contentions arose in McCall, which involved a filling station property at the northeast comer of the same intersection and was a part of the same condemnation and intersection improvement as that of Kohn’s. Access to the west entrance of the filling station on U. S. 50 was disturbed and changed by reason of a curbing around the intersection. There the city argued that no access rights were taken by condemnation since neither the petition nor the appraisers’ report described any access as being taken and it contended that parol evidence should not be admitted to show that the effect of the improvement ‘amounted to a taking in the nature of inverse condemnation. This court rejected the contention, saying:
. . The value of a service station is dependent almost entirely upon the access the traveling public has to the service station. Where, as here, the taking of property in an eminent domain proceeding surrounds a service station it affects access to the service station. Under these circumstances the effect of the taking upon the access of the traveling public to the service station may be taken into consideration in determining the before and after value.” (p. 394.)
Our holding here is that the city was not prejudiced by the trial court’s failure to rule in advance of trial whether there had been a compensable taking of access and the court did not err in hearing parol evidence on the issue.
Finally, the city contends the trial court erred in ruling that the evidence showed a compensable taking of access rather than a noncompensable regulation of traffic under the city’s police power. As indicated, the court heard evidence pro and con on the matter. Prior to the taking Kohn had access to its motel from Foster street south of the commercial sign for a distance of about forty-four feet. This access was barred by the erection of the curbing around the intersection. Kohn felt compelled to and did build another access from Foster street about 130 feet north of the sign but its testimony showed use of this access resulted in a loss of security in not having the view from the motel office of persons entering the premises and loss of privacy for motel facilities such as swimming pool, ice and other items provided for patrons.
On U. S. highway 50 access was severely restricted by reason of the curbing extending seventy-eight feet westward from the comer of the intersection. Access remained on the west part of Kohn’s property. However, according to the city’s exhibit A the motel restaurant and office were less than a car length from the highway right-of-way and there was testimony that the closeness of this building to the highway restricted a motorist’s ability to turn onto the motel property on the remaining access, especially if he was driving a large truck. Kohn’s expert testimony was that the diminution in value to its property by reason of these access changes amounted to $60,000.
We think this issue is similarly controlled by our holding in McCall. There we quoted approvingly from Brock the following:
“ ‘Regardless of the source of origin there has developed a universal rule that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. However, the rights of an abutting owner must be subordinated to the right of the public to the proper use of the highway and the right of governmental agencies to enforce proper police regulation. The right is subject to reasonable regulation and restrictions for the purpose of providing reasonable safe passage for the public, but the regulations or limitations cannot be enforced where they unduly limit or unreasonably interfere with the rights of the abutting owners. The established easement which has been used for access purposes cannot be taken without compensation, but, while the entire access may not be cut off, an owner is not entitled to access to his lands at all points in the boundary between it and the highway. If the owner has a free and convenient access to his property and to his improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has sustained no compensable loss.’ (pp. 367, 368.) (Emphasis added.)” (p. 397.)
In upholding a jury’s award of damages for restricted access on U. S. highway 50, we held:
“The right of governmental agencies to impose proper police regulations or limitations cannot be enforced where they unduly limit or unreasonably interfere with the rights of the abutting owners of property.” (Syl. para. 5.)
A motel property is similar to that of a filling station in its dependence upon access by the motoring public. The property here sustained the same type of access loss as in McCall. It is true the city offered evidence as to its position with respect to providing safe traffic regulations but we cannot say the situation presented was such as to take the Kohn property out of the ambit of the rules applicable to its neighbor across the street. Nothing offered by the city compelled such differentiation as a matter of law. The court gave the city the benefit of any question in holding an evidentiary hearing on the matter and its ruling that there was a compensable taking of access was amply supported by the evidence.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by Hector Bribiesca (plaintiff-appellant) from the trial court’s order dismissing his action against the City of Wichita, Kansas (defendant-appellee), on the ground that the City is immune from suit under the doctrine of governmental immunity.
On appeal the appellant contends the common law doctrine of governmental immunity, whether applied to proprietary or governmental-operational functions, is erroneous in that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and Sections 1, 2 and 18 of the Bill of Rights of the Kansas Constitution.
Hector Bribiesca is a resident of 2926 South St. Paul, Wichita, Kansas. Sheldon Wulf is a detective with the Wichita Police Department. On August 29, 1974, Detective Wulf, then off duty and in civilian clothes, went to watch his son play football at a school near Mr. Bribiesca’s home. As Detective Wulf, his wife and son were walking down South St. Paul, a small half German shepard dog named “Chico,” owned by the plaintiff or his brother, started barking and allegedly attacking the Wulf family. Detective Wulf sent his family to safety. Mr. Bribiesca said he appeared and tried to call the dog back. Detective Wulf said Mr. Bribiesca appeared and told the dog to “sic him” and to “get him.” The dog, which never bit anyone, was called back by another member of the plaintiff’s family.
Detective Wulf called the Wichita police dispatcher who sent uniformed officer M. J. Fraipont to the scene. Fraipont issued a citation for simple assault under Wichita City Ordinance 5.10.010. Upon trial of the matter in the Wichita municipal court on January 21, 1975, Hector Bribiesca was found not guilty of the charge of simple assault.
On May 13, 1975, the plaintiff filed a damage claim with the City of Wichita pursuant to K. S. A. 12-105. The Wichita City Commission denied the claim on June 11, 1975.
On August 5, 1975, the plaintiff filed his petition against the City of Wichita, Detective Wulf and Officer Fraipont under 42 U. S. C. 1983 and the common law theories of malicious prosecution or abuse of process and false arrest. The plaintiff alleged:
“Plaintiff has suffered damage in that his right of privacy has been invaded, his reputation has suffered, plaintiff has suffered mental stress aggravating a pre-existing condition and plaintiff has been put to the expense of defending himself."
The plaintiff sought actual damages of $5,500 and punitive damages of $15,000.
On August 20, 1975, the City moved to dismiss the action. It contended it was not a person under 42 U. S. C. 1983, which provides that every person who under color of state law deprives another of rights, privileges or immunities secured by the Federal Constitution and laws, shall be liable to the injured party. The City, which had no liability insurance for these acts (see K. S. A. 74-4716), also contended it was immune from liability under the doctrine of governmental immunity.
After a hearing the trial court sustained the City’s motion to dismiss. It first found the City was not a “person” under 42 U. S. C. 1983. On appeal the appellant does not contest the dismissal of his action against the City on this theory. (See Monroe v. Pape, 365 U. S. 167, 187-192, 5 L. Ed. 2d 492, 81 S. Ct. 473; and City of Kenosha v. Bruno, 412 U. S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222.)
The trial court also found the City to be immune from liability for the acts of its police officers under the doctrine of governmental immunity. The appellant’s action against the police officers as individuals is pending in the trial court and is not affected by this appeal.
The sole question on appeal is whether on the facts in this case the trial court erred in holding the City immune from, liability for the acts of its police officers.
It must be conceded there is a dispute in American jurisprudence as to the proper test to be applied for the determination of municipal immunity. (See Annot., 60 A. L. R. 2d 1198 [1958].) However, the appellant cites no cases which adopt his constitutional arguments on equal protection and due process.
In Gardner v. McDowell, 202 Kan. 705, 451 P. 2d 501, this court said:
“. • • Under the decisions of this court the city is immune from liability for the acts of its police officers. . . . Similar decisions have been handed down by federal courts. (See Cuiksa v. City of Mansfield, 250 F. 2d 700, cert. den. 356 U. S. 937, 2 L. Ed. 2d 813, 78 S. Ct. 779.” (p. 708.)
Under no theory advanced by the appellant can the City of Wichita be held liable for the acts of its police officers herein. (See Wommack v. Lesh, 180 Kan. 548, 305 P. 2d 854; Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347; Gardner v. McDowell, supra; Daniels v. Kansas Highway Patrol, 206 Kan. 710, 482 P. 2d 46; Allen v. City of Ogden, 210 Kan. 136, 499 P. 2d 527; and Bradford v. Mahan, 219 Kan. 450, 548 P. 2d 1223.)
Accordingly, the trial court properly sustained the City’s motion for summary judgment.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal in this case is from a judgment entered upon an interlocutory judgment of divorce obtained in California which provided that the appellee should pay the sum of $60 a month as alimony commencing on the first day of September, 1931. The trial court entered judgment in favor of the appellant for the amount of the installments which became due and payable during the five years preceding the filing of the petition, together with interest thereon. The appellant contends that the trial court erred in not rendering judgment in favor of the appellant for the full amount of the installments and interest which had matured from the date of the rendition of the judgment in California. The specifications of error, in substance, set forth that the trial court erred in not entering judgment for the proper amount and in overruling the appellant’s motion for a new trial.
The appellee contends that the present appeal presents nothing for review by this court because the appeal from the judgment was not perfected in time and because the motion for a new trial presented nothing more than a request for a second ruling upon the same question of - law which had been passed upon by the trial court in entering judgment. The appellee further contends that in such circumstances the pendency of the motion for a new trial did not extend the time in which an appeal from the judgment might have been taken. The contentions are sound if the record supports them.
Examination of the record discloses that an authenticated copy of the interlocutory judgment entered in the superior court of California was introduced. The appellant testified that none of the $60 payments provided for in the judgment had been paid. She also attempted to testify as to the whereabouts and residence of her former husband since the date the judgment was entered in California. Cross examination revealed that she based -her testimony in such respect upon hearsay and the court, consequently, sustained an objection to that part of her testimony. No contention is now made in this court that the trial court’s ruling as to the hearsay character of her testimony was erroneous. Appellant’s brief reads: “There is only one legal question involved in this appeal, namely: That the court erred in limiting the amount of recovery to those installments which became due within the last five years preceding the bringing of this cause of action in the Kansas court, and excluding all previous installments.” From the foregoing it conclusively appears that the trial court entered judgment upon the authenticated copy of the California judgment and the testimony of the appellant that no part of the $60 installments had been paid.' The appellee did not offer any testimony. Therefore, the trial court entered judgment upon a'question of law as no disputed question of fact was involved. The judgment was entered on May 8, 1946. The notice of appeal was not served until October 9,1946,' or five months after the judgment was entered. Our applicable statute (now G. S. 1945 Supp. 60-3309) reads:
“The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken: . . .”
The record discloses further that the appellant filed a motion for a new trial and we will assume that such motion was filed within three days after the judgment was entered, although the record does not clearly disclose such fact. It should be noted specifically, however, that the motion for new trial was filed after the trial court had entered judgment and was not filed and considered by the court before entering the judgment. The motion for a new trial sets forth that it should have been granted because (1) the judgment of the court was in part contrary to the evidence; (2) of newly-discovered evidence material to the case which the appellant could not have discovered and produced at the trial with reasonable diligence; (3) of erroneous rulings on the admissibility of evidence; and (4) the judgment was contrary to the law applicable to the case.
• In connection with the proceedings on the motion for a new trial no new evidence whatever was introduced and the asserted erroneous rulings on the admissibility of the evidence were not complained of. Consequently, the only question considered by the trial court upon the motion for a new trial was the same question of law originally presented to the trial court before the judgment was entered. Appellant’s brief concedes such fact. In such circumstances the pendency of a motion for a new trial does not extend the time in which an appeal may be perfected from a judgment entered upon a question of law. The entry of a judgment is a separable, appealable order, the same as an order sustaining or overruling a demurrer, and a motion for a new trial, which amounts only to a request for a second ruling upon the same question of law applicable to the same facts upon which the court entered judgment, does not extend the time in which the appeal from the judgment can be taken. Almost the exact question presented by this appeal has been passed upon recently by the court in two cases. (See Stinson v. McConnell, 160 Kan. 1, 159 P. 2d 406, and Robbins v. Kansas City, 160 Kan. 425, 163 P. 2d 630, and cases therein cited.) It is unnecessary to set forth additional citations. In Stinson v. McConnell, supra, after stating that a ruling on a question of law will be considered where the ruling precedes the judgment and the appeal from the judgment is taken in time, the opinion continues as follows:
“A different result occurs in cases wherein a motion for a new trial, filed after judgment, amounts only to a request for a second ruling upon the same question of law applicable to the same facts upon which the court entered judgment and the appeal is taken in time only from the order overruling the motion for a new trial. Under such circumstances, a motion for a new trial does not extend the time in which an appeal may'be taken to this court . . .” (p. 3.)
Regardless of the possible merits of appellant’s contentions, the appeal from the judgment which the appellant seeks to have reviewed was not perfected in time. Therefore, this court has not acquired jurisdiction to consider the contentions and the appeal must be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from a trial to the court on consolidated informations in which Willie McKinney, a/k/a Marshall Medlock, a/k/a Ronnie Medlock (defendant-appellant) was found guilty of three counts of aggravated robbery (K-S. A. 21-3427), one count of aggravated assault on a law enforcement officer (K. S. A. 21-3411) and one count of possession of a firearm after a previous felony conviction (K. S. A. 21-4204 [1] [b]).
The sole question presented is whether the trial court erred in failing to advise the defendant of his right to testify in his own behalf.
On October 10, 1973, two armed men robbed the Wichita City Teachers Credit Union of approximately $500. Herb Stucky, the manager, Arylene Campbell, a teller, Edward Provence, a security officer, and Michael Parker, a credit union customer, all identified the defendant as being the gun-wielding robber. The codefendants’ convictions arising from this robbery were affirmed in State v. Williams & Reynolds, 217 Kan. 400, 536 P. 2d 1395.
On February 27, 1974, three men robbed Ronnie’s Amusement Service of $622. Sue Buffington, the secretary-receptionist, and Alice Cameron, the bookkeeper, both identified the defendant as one of the gunmen.
On March 5, 1974, three armed men robbed the Government Employees Credit Union of over $6,900. Judy Kracke, a bookkeeper, identified various exhibits taken by the robbers and further identified the defendant as one of the robbers.
Wichita Police Detectives Zettl and Burnett who arrived shortly after that robbery saw three men walking toward a nearby alley. When told to halt one man drew his gun and shot at least twice at the detectives. Detective Zettl testified the defendant had a gun in his hand, but Detective Zettl did not see the defendant shoot it. The robbers were apprehended a short time later when the vehicle they were driving collided with a Wichita Police Department truck. Four guns and the money taken from the Government Employees Credit Union were recovered.
At a preliminary hearing, Mr. Moore, the defendant’s first trial attorney, requested a jury trial. The defendant stood up in open court and contradicted his attorney, saying he did not want a jury trial, but rather, a trial to the court. On July 2, 1974, the two in-formations were consolidated for trial. The defendant pled not guilty to the charges. The trial court then asked:
“The Court: And you’ve heretofore in other proceedings waived your right to a jury trial on the charges in this case. Do you likewise waive your right to a jury trial on the amended information on which you have just been arraigned?
“The Defendant: Yes, sir.”
The trial court made no mention of the defendant’s right to testify.
At trial, the state presented its case and rested. The defense then took a recess. A dispute arose as to what occurred during the recess. However, Mr. Moore, the defendant’s counsel, testified that during the recess he told the defendant of his right to take the stand.
Following the recess the defense moved to dismiss the charges and for a judgment of acquittal. The trial court overruled this motion. The defense announced it had nothing further to offer. The court did not advise the defendant of his right to testify. The court then found the defendant guilty of all the offenses charged.
On July 31, 1975, Mr. Moore’s motion for a new trial was overruled. The defendant then filed a pro se motion contending, among other things, he was denied the right to take the stand on his own behalf. Another attorney, Mr. Dougherty, was appointed to represent the defendant on this matter.
Mr. Moore, the defendant’s first attorney, filed an affidavit con cerning the disputed recess conference. The affidavit stated in part:
“. . . I told the Defendant that the State had presented all its evidence and asked him if he wanted to take the stand and testify. I might add, this was something we had previously discussed but I told the Defendant if he wanted to testify, now was the time. The Defendant was very emphatic and said no, he did not want to testify; that all the witnesses who had testified for the State proved nothing’; that all they had done was ‘to say their opinion’ and that wasn’t any evidence. He insisted that ‘nothing has been proved one way or the other’. He then told me, I was to ‘get this case dismissed and if I couldn’t do it, he would get a lawyer who' could . . .’ .”
Mr. Moore was called as a witness at the hearing on the second motion for a new trial and was cross-examined by Mr. Dougherty on behalf of the defendant. Mr. Moore reaffirmed the statements in his affidavit.
The court ruled against the defendant on the other points asserted in his pro se motion. The court further found:
“. . . [T]hat he has not been deprived of his right to take the stand. I find that he voluntarily relinquished that right, knowing that it existed, and being possessed of sufficient advice and of his faculties to avail himself of that right at the time of the trial. . . .”
Appeal from the court’s judgment was duly perfected.
The appellant asserts the trial court erred in failing to advise him of his right to testify in his own behalf. He argues there is an obligation on the trial court to inform the accused of his right to testify in his own behalf, unless the accused affirmatively waives such right. He contends the record must affirmatively show such waiver.
The appellant cites two cases which allegedly support his position. In People v. Degraffenreid, 19 Mich. App. 702, 173 N. W. 2d 317 (1969), the trial counsel failed to object to evidence which might have been suppressed had an objection been lodged. Dicta at one point states there are certain rights which are so essential to the concept of due process that no lawyer can waive them for a defendant, and the defendant’s waiver is not to be presumed from a silent record. The case does not relate to the trial court’s failure to advise an accused of his privilege to testify in his own behalf.
The record here is not silent regarding the appellant’s privilege to testify. Here the record indicates a deliberate choice by the appellant not to testify.
•The second case cited by the appellant is Poe v. United States, 233 F. Supp. 173 (D. D. C. 1964), aff'd 352 F. 2d 639 (D.C. Cir. 1965), where the petitioner’s trial counsel urged him not to take the stand and testify before a jury, because of trial counsel’s erroneous belief that illegally obtained statements might be used for impeachment. The petitioner “reluctantly” agreed not to take the stand. In what the concurring appellate judge stated was a “most unusual case,” the district court, without citing any authority, said:
“The right to testify is a basic right, and there is an obligation on the part of both the court and trial counsel to inform the accused of his right to testify, if he so desires. Further, it is the duty of both to assure that the exercise of this basic right by the accused is a free and meaningful decision.” (p. 176.)
In the instant case there is no showing of erroneous advice given the accused by the trial counsel to prevent the accused from testifying.
Poe cannot be construed as a general rule requiring the trial court to advise an accused of his privilege to testify. In a trial to the jury, as in Poe, it is clear the trial judge should not, in the presence of the jury, call attention to the privilege of the accused to testify. (21 Am. Jur. 2d, Criminal Law, § 356, p. 383; and United States v. Ives, 504 F. 2d 935 [9th Cir. 1974], vacated on other grounds [relating to mental competency as enunciated in Drope v. Missouri, 420 U. S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896] 421 U. S. 944, 44 L. Ed. 2d 97, 95 S. Ct. 1671.) Our cases hold that a prosecuting attorney cannot comment upon failure of an accused to testify. (State v. Holloway, 219 Kan. 245, 254, 547 P. 2d 741; and State v. Carpenter, 215 Kan. 573, 527 P. 2d 1333.)
We think the better rule is that announced in United States v. Ives, supra, where the court said:
“. . . It would make no sense and, in the light of Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), it would introduce possible error into the trial to require that the court or the prosecutor ask the defendant whether he wishes to testify. That is the reason why the defendant must claim his privilege to testify or be deemed to have waived it.” (p. 940.)
Our conclusion is supported by many cases dealing with pleas of guilty, which hold that the record does not have to affirmatively and specifically show a waiver of every constitutional right or privilege. (Stinson v. Turner, 473 F. 2d 913 [10th Cir. 1973]; Wade v. Coiner, 468 F. 2d 1059 [4th Cir. 1972]; United States v. Frontero, 452 F. 2d 406, 415 [5th Cir. 1971]; Todd v. Lockhart, 490 F. 2d 626, 628 [8th Cir. 1974]; and United States v. Sherman, 474 F. 2d 303, 305 [9th Cir. 1973].)
This is in accord with out prior opinion in Winter v. State, 210 Kan. 597, 502 P. 2d 733. There we noted the decisions which are to be made by the accused after full consultation with counsel are: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify in his own behalf. (See also State v. Jackson, 218 Kan. 491, 494, 543 P. 2d 901.)
Here the accused after full consultation with his counsel decided not to testify in his own behalf. No inquiry from the trial court was necessary or appropriate.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action by three plaintiffs who were owners of certain real estate and improvements to recover on policies of insurance issued by the thirteen defendant insurance companies. The parties will be referred to hereafter as the plaintiffs and defendants. At the trial the defendants demurred to plaintiffs' evidence and the demurrer being overruled, the trial proceeded. At the conclusion of all of the evidence, the plaintiffs moved for judgment in their favor, which motion was denied. Plaintiffs then requested the trial court to give the jury a certain instruction with reference to the burden of proof, and the defendants requested the trial court to instruct the jury to render a verdict in favor of defendants, both of these requests being denied. Without detailing intervening steps, it may be said that the jury were unable to agree on a verdict and were discharged and a mistrial was declared. Thereafter the defendants appealed from the rulings on their demurrer, on their motion for judgment and on the trial court’s refusal to direct the jury to return a verdict in their favor. The plaintiffs filed a cross-appeal from the rulings of the trial court refusing to give their requested instruction, and in giving certain instructions.
We observe first that if the trial court erred in refusing to give requested instructions or in giving instructions, the errors were trial •errors, and are not now subject to appellate review. The ruling on the demurrer of defendants to the evidence of plaintiffs is appeal-able. Whether the ruling on plaintiffs’ motion for judgment is appealable need not be presently decided.
A short review of the petition discloses that plaintiffs secured issuance to them of sixteen policies of insurance by the thirteen defendant companies, all of form similar to one issued by the Home Insurance Company, a copy of which was attached to the petition as an exhibit, and, as pleaded, and as shown by the copy attached, the policies were what is commonly called standard fire insurance policies, and insured the premises described against direct loss or damage by fire. Attached to the policies were supplemental contracts under which the coverage was extended to include direct loss or damage by explosion. This supplemental contract contained special stipulations, terms and conditions applicable to explosions including the following:
“This company shall not be liable for loss or damage by explosion originating within steam boilers,” ,
and other designated equipment and machinery. The petition further alleged that:
“Thereafter, and while each of said policies were in full force and effect, and on the . . . day of September, 1941, these plaintiffs suffered a direct loss and damage to said buildings by fire, which later resulted in an explosion in the. steam boiler in said building, located on the rear of Lot Nine (9), Block eighty (80), Arkansas City, Kansas; that said fire was accidentally caused, by no fault or neglect of plaintiffs, but by gas accidentally escaping from pipes in said building, and becoming accidentally ignited, without fault pr negligence on the part of tfiese plaintiffs, the exact cause of such escape, or the ignition thereof, being unknown to these plaintiffs; said gas so accidentally escaping and becoming ignited thereafter, while still burning directly caused an explosion in the steam boiler located in said building said fire originating near to and in the neighborhood of said furnace in the building on the rear of the above described Lot 9, in which building the explosion occurred.”
It was further alleged that the building on the rear of Lot 9 was entirely demolished and destroyed, to plaintiffs’ damage in the sum of $500 and that “as a direct result of said fire and resulting explosion” the division wall between Lot 9 and Lot 10 was demolished and destroyed, damaging plaintiffs in the further sum of $500. The prayer of the petition was for judgment for $1,000 and attorneys’ fees.
For present purposes, it may be said the defendants admitted execution of the policies and denied generally. The answer was later amended to plead the provision in the supplemental contract that the' company should not be liable for loss or damage by explosion originating within steam boilers. Plaintiffs’ reply was a general denial.
The question presented by the defendants’ demurrer to the plaintiffs’ evidence is whether that evidence disclosed that plaintiffs suffered a direct loss and damage to their buildings by fire which later resulted in an explosion in the steam boiler on Lot 9, the fire being caused by gas accidentally escaping and becoming ignited and causing the explosion, as more fully appears from the allegations of the petition quoted above. In order that the evidence as to cause may be more readily followed, we first review the evidence as to the situation of the buildings, their occupancy and equipment.
The above Lot 9 was immediately north of Lot 10, both lots facing east on Summit street and abutting on an alley to the west. On Lot 10 was a two-story building which extended from the street • to the,' alley, and the ground floor of which was occupied by a dry ■cleaning establishment operated by one Clingman. In the front or east end of the room was a counter, and about midway back there was a low partition and to the west was some equipment. At the rear there was a door leading to the alley. The north wall of this building was constructed of hollow tile. On the east end of Lot 9 was a one-story building with which we are not concerned. To its west was a small building, used by Clingman as a cleaning rpom, and we are not concerned with it. Further to the west and next to the alley was another small building, its size not being stated. Its south wall was the north wall of the building on Lot 10 and there were no doors, windows or other openings in the wall between the two rooms. The small building on Lot 9 contained two boilers, one of which was not used and with which we are not concerned. The other boiler was about six feet long and three feet in diameter and was set lengthwise in an east and west direction along the common wall, and it was fired by gas which was piped in from the alley. There was no pilot light, a torch was used to light the burners, and an ordinary stop valve was used to turn on the gas.
Insofar as the alleged fire and explosion was concerned there was no contention but that the boiler exploded. The plaintiffs’ evidence showed the following: Ed Clingman, operator of the dry cleaning establishment, came to work a little before 8:00 o’clock a. m. on September 22,1941. Two of his employees, who did not testify, and his wife, who did testify, were there. There was an explosion about 8:00 o’clock. He and his wife were at the counter in the front end when he noticed a flash. His first thought was that it was a fire. The flash came from the door leading out to the alley. He told his wife to call the fire department and he took a fire extinguisher and went to see if anyone was injured. A large hole had been blown in the wall between the south building and the boiler room, and a table in the south building had been pushed over and equipment was jammed together. He also stated that in lighting the boiler they customarily used a torch, a cloth wrapping on a stick, and sometimes used a match and that there was some of that equipment there in the boiler room, that he didn’t know for how long, but they kept a soaked rag.
Mrs. Clingman testified she was at the place on the morning of September 22, 1941; that Davis, a colored boy, usually lighted and looked after the boiler; that she had been there only a few minutes and was talking with her husband and saw a flash and heard the explosion; that the flash came through the partition between the cleaning room and the boiler room and at the time the flash occurred and she heard the noise, the wall began to come in.
Joe Hutchinson, assistant fire chief, testified he took fire trucks and answered the call, and was at the above described place and had lines run in about four minutes. He went in the building which housed the boiler and saw no big blaze. There was a box along the west side of the boiler room about two feet square filled with rags, paper and trash which was on fire; that he did not know what started the fire, all he knew was there was a fire there and it must have been burning awhile for it had burned down in the box; that it wasn’t a big fire, about two or three inches high. He further testified that he checked for gas leaks and didn’t find any and that the gas had been shut off; that he just walked around to see if any pipes had burst or anything of that kind. He didn’t find any pipes open but didn’t try any pipe by lighting matches.
Gerald Thomas, a fireman, testified about seeing a ball of paper or rags which was smoldering outside the boiler room and which he extinguished. Dick Frantzen testified that after the fire department left he visited the scene and saw a small particle like a rag or burlap sack which was barely smoldering. It was east and a little north of where the boiler had been.
Without reviewing details, it may be said the evidence showed that' the explosion caused destruction of the boiler room and a part of the wall between that room and the building on the south.
It may here be noted that in plaintiffs’ brief some reference is made to what certain exhibits show, although it is not stated who offered the exhibits. In the abstract and counter abstract no reference'is made to any exhibits. As there is no contention that defendants’ evidence supplied any defect there may have been in plaintiffs’ proof, we ignore defendants’ evidence and plaintiffs’ evidence in rebuttal.
The gist of defendants’ contention their demurrer should have been sustained is that plaintiffs’ evidence not only failed to show that there was a fire which later resulted in an explosion in the steam boiler, as pleaded, but that there was no evidence of any fire causing damage; that the plaintiffs affirmatively sought to recover upon the theory escaping gas ignited and the fire thus, created caused an explosion in the steam boiler, and that there was no evidence to sustain such a theory.
' The gist of plaintiffs’ contention the trial court’s ruling on the demurrer.should be sustained is that the applicable law and not the pleadings determine the burden of proof that if the explosion originated in the boiler and for that reason defendants were not liable, it was because of the exception to that effect in the policies of insurance ; that in such case the burdén of proof was upon the defendants who may not question plaintiffs’ proof for that particular reason, and that otherwise their proof was sufficient to prove a fire and an explosion following the fire. It is to be observed that the petition did not allege simply that there had been an explosion and con- ' sequent damage, nor was the proof so directed, as is clearly disclosed by the review made of the pleadings and of the evidence.
Plaintiffs devote considerable space to the rule that when á de7 fendant in an action on an insurance policy seeks to avoid liability on the ground that the loss is covered by an exception in the policy, the burden is upon him.to prove the fact which brings the case within the exception. Defendants concede that is the general rule, and we shall not discuss it. Defendants do contend however that where the plaintiffs seek to recover on a theory that escaping gas became ignited and that the resulting fire caused an explosion in the boiler, they must prove their allegations, and that they did not do so.
We shall not discuss at any length the question of burden of proof. Regardless of whose duty it was to bring forth the evidence, it was brought forth, and as brought forth is the subject of,our consideration. Although the type of action was not the same, this court has repeatedly held that while the burden is upon the defendant to prove 'contributory negligence, if plaintiff’s own testimony shows him to be guilty of negligence, the defendant may take advantage by demurrer. See Crowe v. Moore, 144 Kan. 794, 797, 62 P. 2d 846; Parsons v. State Highway Comm., 146 Kan. 476, 480, 72 P. 2d 75; Cruse v. Dole, 155 Kan. 292, 295, 124 P. 2d 470; Slaton v. Union Electric Ry. Co., 158 Kan. 132, 141, 145 P. 2d 456; Moler v. Cox, 158 Kan. 589, 595, 149 P. 2d 611; and eases cited. Under the reasoning' of the above cases if plaintiffs’ proof showed the exception in the policy applied, the defendants could raise the question by a demurrer to plaintiffs’ evidence.
In the briefs of both parties are definitions of friendly fires and hostile fires, but in view of the evidence we need not pursue that matter fully. Certainly a fire purposely placed under the boiler would be a friendly fire and one which might be caused from leaking gas lines becoming ignited would be hostile.
As has been stated, the plaintiffs’ petition alleged, in substance, that gas accidentally escaped from pipes in the building and became accidentally ignited, resulting in an explosion in the steam boiler. As we read the record as abstracted there is no evidence of any escaping gas becoming accidentally ignited. On the contrary, what proof there is shows that after the explosion the assistant fire chief made an examination and found no gas leaks. The only direct evidence of any fire not under the boiler'was that after the explosion, a small box in the boiler room was afire and was blazing up two or three inches. That this small' fire, even if hostile, could have produced an explosion in the boiler is not contended. The only-other evidence tending to show there might have been a fire is the statement of Mr. Clingman and his wife that they saw a flash and heard the explosion and then the wall came in. They were not in a position where they could have seen the fire in the boiler room— they did not explain what they meant by flash, but it is apparent they either saw some reflected light through the rear door of their main- room, or they referred to the blast of the explosion as a flash. Under all of the testimony there was but one sound of an explosion, and in view of the pleadings and the admissions the explosion heard was that of the steam boiler and not of exploding gas. Had the evidence showed two explosions it might then well be said that there was a first explosion caused by gas or some other cause and a second resultant explosion of the boiler, but giving the plaintiffs’ evidence the benefit of all inferences, it may not -be said there was proof of any escaping gas becoming accidentally ignited and causing an explosion of the steam boiler.
In Redfield v. Chelsea Coal Co., 143 Kan. 480, 482, 54 P. 2d 975, it was said that a fact is not proved by circumstances which are merely consistent with its existence and that the rule was particularly in point where the only evidence directly on the question leads to.a contrary conclusion, citing Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, where there is a more complete statement. In the latter case it was held that a judgment predicated upon mere conjecture as to a defendant’s negligence cannot be permitted to stand.
' Even if it be assumed the evidence showed facts, consistent with plaintiffs’ claim of an explosion of escaping gas which ruptured the boiler, that same evidence showed facts equally consistent with defendants’ claim that the boiler exploded from internal pressure. The evidence as to cause is circumstantial and not direct. In such case the circumstances relied on must be of such a nature and so related one to the other that the only reasonable -conclusion to be drawn therefrom-is the theory,sought to be established. (Cornwell v. O’Connor, 134 Kan. 269, 271, 5 P. 2d 861.) It may further be observed that the explosion of the boiler having been admitted and there having been no showing of external force, it might well be cpncluded the boiler .was ruptured by internal pressure. The evir dence is not such that a conclusion to that effect may be declared as a matter of law. It does appear, however, that under the evidence it would be a mere conjecture which of the two assigned causes was the 'real cause. When plaintiffs’ evidence showed such a situation, they had not made the prima facie showing required.
In view of what has been said, we need not discuss the trial court’s ruling on the motion of defendants for judgment in their favor.
We are of the opinion the trial court erred in overruling the demurrer of the defendants to the evidence of the plaintiffs. The cause is remanded with instructions to sustain the demurrer. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from a jury verdict wherein defendant Everett E. Burnett was found guilty of eleven counts of burglary (K. S. A. 21-3715), eight counts of felony theft and two counts of misdemeanor theft (K. S. A. 2.1-3701 [a]). Defendant alleges the trial court erred (1) in allowing rebuttal witnesses to testify about crimes committed in Oklahoma, (2) in failing to give limiting instructions, and (3) in not instructing the jury on conspiracy to commit burglary as a lesser included offense of burglary.
The facts indicate that on March 6, 1974, a number of Wichita residences were burglarized. In most instances, entry was gained by twisting a doorknob with a large vise-like tool. One victim was Nelson S. Remington. As he returned home at about 2:30 p. m., he saw two men running from the vicinity of his home to a late model black Ford pickup with a black topper and Texas license tags. They joined a man already in the truck. At about the same time, Remington noticed a doorknob to his house was lying on the ground and he concluded a burglary had taken place. He followed the pickup, using his CB radio to contact his wife, who in turn informed police of the pickup’s location. A Wichita police helicopter spotted the truck and followed it to a parking lot where two men, later identified as Bobby Wayne Huían and Kenneth Wayne Cottrell, were apprehended.
The pickup contained a variety of items, including a stereo, a rifle, television sets, and other miscellaneous items. Although none of the victims could identify the burglars, Remington identified a dark green metal box found on the front seat of the pickup as one taken from his home.. Another victim identified the rifle found in the cargo area of the pickup.
Michael Hill, a Wichita police sergeant, left the arrest area to check on the reported burglary of the Remington residence. He was returning to the site of the arrest when he spotted another black Ford pickup in a Safeway parking lot. It also bore Texas license plates differing from the first by only one number. It was almost identical to the first pickup except it had a white topper. Although it was locked, officers could see it was loaded with various articles. Hill remembered there was a walkie-talkie in the first pickup and suspected more individuals might be involved in the burglaries.
Officers staked out the second pickup and shortly thereafter a taxi pulled into the parking lot. Two individuals alighted, got in the truck and drove off. Police stopped the vehicle and arrested Jimmy Williams and the defendant. A walkie-talkie was also found in the second pickup, along with stolen property.
Subsequent to arrest, Williams and defendant, along with the two other co-defendants, were given Miranda warnings and transported to the Wichita police station. Williams confessed that he came from Dallas to Wichita to rob houses. Defendant did not confess but told police he had just made a non-stop trip to Wichita from Dallas.
Williams and the other two codefendants pled guilty. Burnett exercised his right to a jury trial and pled not guilty. At trial defendant attempted to show he was innocently associated with 'the three codefendants and knew nothing of their criminal activity. Williams testified he gave defendant a ride to Wichita from Dallas because defendant was looking for carpentry work at a Wichita job site. He further stated defendant had nothing to do with the burglaries. Defendant’s testimony corroborated Williams’ story. He told the jury he started out for Wichita to look for work when he had car trouble. Williams was going to Omaha and offered him a ride. The day of the burglaries Williams dropped defendant off near some apartments under construction and met him again about 4:00 p. m. at a doughnut shop.
Defendant offered an alibi for the time from the Remington burglary until his arrest. From approximately 1:00 p. m. until 4:00 p. m. he said he was at a doughnut shop. A waitress at the shop testified defendant came into the shop shortly after noon. Another man came in later and the two men left together in a taxi about 4:30 p. m.
Both defendant and Williams testified they did not make any stops in Oklahoma on their way to Wichita. Over defense counsel’s objection, rebuttal evidence was presented by the state. Dale Croft, Nancy Stacy and Judy Gross, all of Oklahoma, testified their residences had been burglarized on the day before the Wichita burglaries and the items taken had been recovered in the two black pickups stopped in Wichita. Two persons testified they saw a black pickup with a white topper (similar to the pickup defendant was in when arrested) shortly before a burglary took place. An Edmond, Oklahoma, police officer stated that a burglary had been committed by three white males in a black Ford pickup with a white topper. At about the same time another black Ford pickup with a black topper and bearing Texas license plates was observed in a parking lot twenty-two blocks from one of the burglaries.
The jury returned a guilty verdict on all counts. Motion for a new trial was overruled. Defendant had two prior felony convictions and was sentenced to a term of nine to thirty years. Appeal was duly perfected.
■ Defendant first contends the trial court erred in allowing rebuttal witnesses to testify to prior crimes committed in Oklahoma. He contends this is improper rebuttal testimony in violation of K. S. A. 60-421 (limitations on evidence of conviction of crime as affecting credibility) and 60-455 (other crimes or civil wrongs). We cannot agree. Use of 60-421 and 60-455 was ruled out by the state as a basis for the evidence. It was introduced solely for rebuttal purposes. Rebuttal evidence is that which is presented to deny some fact an adverse party has attempted to prove or has placed in dispute. (State v. Norwood, 217 Kan. 150, 154, 535 P. 2d 996; State v. Freeman, 195 Kan. 561, 568, 408 P. 2d 612, cert. denied, 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.) In State v. Emery, 218 Kan. 423, 543 P. 2d 897, this court said:
“ • ■ Rebutting evidence is that which is given to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but also evidence in denial of any affirmative fact which the answering party has endeavored to prove.’ [29 Am. Jur. 2d, Evidence, § 250, ppj_29899.]” (p. 427.)
(See also, Jacks v. Cloughley, 203 Kan. 699, 457 P. 2d 175.)__..The use and extent of rebuttal rests in the sound discretion of the trial court. (State v. Barnes, 220 Kan. 25, 551 P. 2d 815; State v, Emery, supra; State v. Norwood, supra; Jacks v. Cloughley, supra; State v. Neff, 169 Kan. 116, 125, 218 P. 2d 248, cert. denied, 340 U. S. 866, 95 L. Ed. 632, 71 S. Ct. 90, and cases cited therein.) The ruling of the trial court will not be ground for reversal unless it appears discretion has been abused to appellant’s prejudice. (State v. Freeman, supra; State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853.)
When a defendant takes the stand, he takes his character and integrity with him and cannot complain because he is subjected to the same inquiries and tests as other witnesses. (State v. Bly, 215 Kan. 168, 182, 523 P. 2d 397; State v. Jackson, 201 Kan. 795, 797, 443 P. 2d 279, cert. denied, 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019; State v. Wilson, 108 Kan. 433, 435, 195 Pac. 618.) This includes the right to cross-examine a defendant within the limits of K. S. A. 60-421. (State v. Jackson, supra at 797-98.) Furthermore, cross-examination of an accused in a criminal case is subject to the same rules which apply to any other witnesses. (State v. Roth, 200 Kan. 677, 681, 438 P. 2d 58, and cases dted therein.) For this reason, a defendant waives immunity on matters to which he testifies and may be cross-examined further on those subjects. (State v. Harris, 215 Kan. 961, 963, 529 P. 2d 101, and cases cited therein.) In State v. Pappan, 206 Kan. 195, 477 P. 2d 989, we held:
“A defendant cannot avoid cross-examination on matters to which he has testified in chief. When a subject is opened on direct examination, the cross-examination may develop and explore various phases of that subject.” (Syl. 1.)
(See also, State v. Ralph, 217 Kan. 457, 537 P. 2d 200; State v. Ralls, 213 Kan. 249, 515 P. 2d 1205; State v. Scoggins, 199 Kan. 108, 427 P. 2d 603.) The extent of cross-examination in these instances lies largely within the discretion of the trial court. (State v. Nirschl, 208 Kan. 111, 116-17, 490 P. 2d 917, and cases cited therein.)
Defendant told a story which if believed could have resulted in his acquittal. He attempted to paint a picture of a man who had innocently and unsuspectingly associated himself with three criminals. As a part of his scenario he denied he had been in a location at a time when similar burglaries were being committed. Thus, his relationship with the codefendants and his knowledge of their activities were placed squarely in issue. The state properly responded to the defense with rebuttal evidence. (State v. Phippen, 207 Kan. 224, 230, 485 P. 2d 336; State v. Caldrone, 205 Kan. 828, 834, 473 P. 2d 66, cert. denied, 401 U. S. 916, 27 L. Ed. 2d 817, 91 S.Ct. 896.)
While a defendant has a privilege to testify or refuse to do so in his own defense, and is protected by K. S. A. 60-421 and 60-455, those privileges and protections cannot be construed as a license to commit perjury with impunity. (State v. Faulkner, 220 Kan. 153, 551 P. 2d 1247; State v. Giddings, 216 Kan. 14, 531 P. 2d 445.) In Giddings, this court quoted from Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643, pp. 225-26:
“. . . 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. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.’” (p. 24.)
(In accord, State v. Barnes, supra; State v. Crowe, 207 Kan. 473, 486 P. 2d 503; State v. Jackson, supra.)
Defendant also argues the trial court erred in not giving a limiting instruction for use of the rebuttal testimony, citing K. S. A. 60-455. The point is not well taken. Recause the evidence was not introduced by the state for any purposes listed in 60-455, a limiting instruction was not necessary. (State v. Ralph, supra; State v. Rasler, 216 Kan. 582, 586, 533 P. 2d 1262; State v. Bly, supra at 176.)
Defendant argues as his last point that a lesser included offense for conspiracy to commit burglary should have accompanied the jury instruction for burglary. No request for the instruction was made at trial.
For an offense to be considered a lesser included offense of another, all the elements necessary to establish the lesser offense must be present and be required to prove the elements of the greater offense. (State v. Evans, 219 Kan. 515, 548 P. 2d 772; State v. Collins, 217 Kan. 418, 536 P. 2d 1382; Wisner v. State, 216 Kan. 523, 532 P. 2d 1051; State v. Giddings, supra, and cases cited therein.) If each offense is separate and distinct, requiring proof of an element not necessary in the other, then neither can be a lesser offense of the other. (State v. Evans, supra; Wisner v. State, supra; State v. Woods, 214 Kan. 739, 522 P. 2d 967.)
K. S. A. 21-3302 (1) defines criminal conspiracy in the following words:
“A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.”
The essence of conspiracy is an agreement between two or more persons to commit a crime (State v. Campbell, 217 Kan. 756, 539 P. 2d 329, cert. denied, 423 U. S. 1017, 46 L. Ed. 2d 389, 96 S. Ct. 453; Hudspeth v. McDonald, 120 F. 2d 962 [10th Cir. 1941], cert. denied, 314 U. S. 617, 86 L. Ed. 496, 62 S. Ct. 110, reh. denied, 325 U. S. 892, 89 L. Ed. 2004, 65 S. Ct. 1181), such crime being one which does not necessarily require the participation of two persons for its commission. (State v. Campbell, supra; Johl v. United States, 370 F. 2d 174 [9th Cir. 1966]; State v. Lennon, 3 N. J. 337, 70 A. 2d 154 [1949]; 15A C. J. S., Conspiracy, § 47b, p. 762.)
As a general rule conspiracy to commit a crime and the substantive crime are held to be separate and distinct offenses. (Morrison v. Hunter, 161 F. 2d 723 [10th Cir. 1947]; Spencer v. Hunter, 139 F. 2d 828 [10th Cir. 1944]; Blue v. United States, 138 F. 2d 351 [6th Cir. 1943]; Hostetter v. United States, 16 F. 2d 921 [8th Cir. 1926]; United States v. Iannelli, 339 F. Supp. 171 [W. D. Penn. 1972]; State v. Faillace, 134 Conn. 181, 56 A. 2d 167 [1947]; State v. Pooler et al., 141 Maine 274, 43 A. 2d 353 [1945]; 16 Am. Jur. 2d, Conspiracy, § 5, p. 130; 15A C. J. S., Conspiracy, § 47, p. 758.)
Conspiracy to commit burglary requires an agreement between two or more persons to commit a burglary. Burglary is an offense which may be committed by a single person, without an agreement with another person. Proof of a burglary does not prove all the elements required to prove conspiracy; therefore, conspiracy to commit burglary is not a lesser included offense of burglary.
While this issue is one of first impression in this jurisdiction, our decision that burglary and conspiracy to commit burglary are separate and distinct offenses has support. (United States v. Johnson, 426 F. 2d 1112 [7th Cir. 1970]; United States v. Kramer, 289 F. 2d 909 [2d Cir. 1961].)
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.;
This was an action in ejectment. The plaintiff, Craig, prevailed and the defendant, Paulk, appeals, asserting error in overruling his demurrer to plaintiff’s evidence and in giving certain instructions to the jury and in refusing other instructions requested. To simplify the narrative, the parties will be referred to by name.
The controversy relates to the ownership of a strip of land comprising ten or eleven acres in township 33 south, range 9 west of the 6th P. M. in Harper county. Craig asserts ownership and right of occupancy as title holder to the northwest quarter (except fifteen acres thereof not here in controversy) of section 32, and Paulk claims the disputed strip as owner of the north half and the southeast quarter of the northeast quarter of section 31, which section lies immediately to the west of section 32. Both Craig and Paulk claim title to the land described in their deeds under chains of title not here in dispute. The controversy resolved itself into the single. issue of whether the strip was a part of the northwest quarter of section 32 or a part of the northeast quarter of section 31.
Craig bought his land in 1942. Paulk bought in 1941,'his contract of purchase covering the north half and the southeast quarter of the northeast quarter and also the northeast quarter of the northwest quarter of section 31. North of sections 31 and 32 is a travelled road, and there is no contention that this east-and-west road is not properly located. A short distance east of Paulk’s house is a north-and-south road which has long been traveled. This road extends straight on north between the sections which lie north of 31 and 32. The disputed strip, running north and south, lies immediately east of the north-and-south road. Paulk contended that the north-and-south road is not the proper boundary between sections 31 and 32, but that the east line of his land is about 210 feet farther east.
The case was tried by a jury and considerable evidence received. The jury brought in a general verdict for Craig and judgment was entered for recovery and possession by Craig and quieting his title to the disputed strip as against Paulk. This appeal followed.
Extended recital of the evidence is not necessary. It is not denied that Paulk has been farming the strip nor that a number of his predecessors in occupancy of the northeast quarter of section 31 have farmed it. On the other hand, it is not denied that Craig alone has paid taxes on the northwest quarter of section 32. There is no claim that any part of such taxes was ever paid by Paulk or his predecessors.
Paulk testified: ■ “The strip of land we are talking about is across the road on the east side. There are some trees on the land. There is a grove of trees by the house and over on the line is cottonwoods. There are cottonwood trees on the line. There are a group of trees and one possibly three feet through and scattered along- down and several at the south end. They go clear through to the south line and clear along .on my south line. The trees are along the east side of this strip along the east and north and a small grove across from my house.”
One witness testified that he had lived in the county since 1906; that he owned land close to that in controversy and had been going by it since 1906; and that for a great many years the strip east of the road has been farmed by “the people farming the place west of the road.” He testified that he did not think there was a row of trees along the east side of the strip; that there was a fence there for several years; that for a short time there was a lane along the east side of the strip but he didn’t think there was ever a road there. Persons who had owned the land west of the road testified that there was a strip of about ten acres on the east side of the road “that went with this farm.” One testified that he farmed the strip “and no one ever made any claim to it.” He testified that he thought there was a road on the east side and at one time “there was quite a row of trees on the east side and a fence all the time I owned it.” There was- other similar testimony in behalf of Paulk. On the other hand, there was some testimony that at certain periods prior to about 1920, the st/ip had been farmed by persons who were farming the quarter section now owned by Craig. There was considerable testimony concerning the finding of a stone marker 168 feet east of the intersecting line of the two roads referred to.
H. B. Stout, county surveyor of Harper county, testified that he had been employed by both sides to make a survey and he submitted a chart which he had prepared and which was introduced in evidence. This chart shows the location of the north-and-south road heretofore referred to, and also the east-and-west road north of sections .32 and 31. Stout testified that there was a government stone in the center of the intersection at the northeast corner of section 32 and that there was a government stone on the Barber county line at the northwest corner of section 31; that he took a measurement 5,280 feet west from the government stone at the northeast comer of section 32 and a measurement east from the government stone on the Barber county line with the result that there was a gap of eleven feet between the measurements. In any event, according to the plat or chart which he submitted, the disputed strip appears as a part of the northwest quarter of section 32, owned by Craig. Stout testified that he did not find any stone at the intersection of the two roads referred to; that he found a stone about 168 feet east of the north-and-south road and 31 feet west of the east side of the disputed strip, but he did not have any record of that stone in any of his surveys and he did not know how it got there. He testified further that the submitted plat was drawn “according to Mr. Paulk’s deed,” and that if the disputed strip were attached to Paulk’s land, it would leave Craig’s quarter section ten or eleven acres short.
The northwest corner of section 32 and the northeast corner of section 31 might have been established in the manner provided in sections 19-1423 to 19-1427, G. S. 1935. However, the result of the survey made by the county surveyor — employed by both sides — constituted competent, though not conclusive, evidence under the specific provisions of section 19-1414, G. S. 1935. The verdict being supported by substantial evidence, the judgment must be affirmed unless the matters complained of on the motion for a new trial constitute trial errors which require a new trial.
Appellant contends that the trial court erred in not instructing the jury on the matter of adverse possession. The appellee answers, first, by saying that in the course of the trial, appellant abandoned any claim based on adverse possession. As to that, we think that what was. said by counsel for appellant may at least be open to the construction that he was only disclaiming any claim based upon payment of taxes on-the northwest quarter of section 32. It is clear, however, that appellant’s sole contention was that the disputed strip was not a part of the northwest quarter of section 32 but was part of the northeast quarter of section 31.
In cases from other jurisdictions there are divergent views upon the question of whether there can be adverse possession of a boundary strip occupied under mistake as to the true boundary line. (1 Am. Jur. 914 et seq.; 97 A. L. R. 14 et seq.) Although other statements of the law made later in the text are difficult if not impossible to harmonize, it is asserted in 1 Am. Jur. at page 914 that “the-great weight of authority is to the effect that an'open, notorious, and hostile possession of property for the statutory limitation period is sufficient for the acquisition of title by adverse possession, and that the fact that the possession was taken under a mistake as to the boundary lines is immaterial.” This view is stated as follows in a comment note in 80 A. L. R. at page 158:
“When a person goes into possession of land under a deed, he regards himself as the owner of specific land, of the particular ground which he sees with his eyes and furrows with his plow. His ownership, in his own mind, is not of an abstract parcel described by metes and bounds, or of a certain number of acres, but of particular land. The fact that the occupant might, if he knew: that he was on his neighbor’s land, recognize and accede to the, latter’s title, does not affect the adverse character of his possession, where, because there has never been any question or doubt as to the location of the boundary, he possesses and uses the property as his own, and does not recognize or accede to any superior title.”.
A different view has been taken in this state. It has been held in a series of cases that title to a boundary strip,cannot be established by adverse possession where the possessor occupies the boundary strip simply upon a mistaken belief that a fence or other line constitutes' the true boundary line. In Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, the rule was stated as follows:
“Where a fence is believed to be the true boundary and the claim of ownership is up to the fence as located, if the intent to claim title exists only on-the condition that the fence is on the true line the intention is not absolute, but conditional, and the possession is not adverse. (Scott v. Williams, 74 Kan. 448.) If, however, in such a case there is a clear intention to claim the land up to the fence,- whether it be the correct boundary or not, the possession will be held adverse.” (Italics supplied; syl. 113.)
In Steinbruck v. Babb, 148 Kan. 668, 84 P. 2d 907, in which that view was reaffirmed, many of our cases stating the rule were collected and discussed. This rule was again adhered to in the recent case of Simpson v. Goering, 161 Kan. 558, 170 P. 2d 831. In that case, the defendant and his predecessors in title had farmed the disputed strip up to a wire fence under the mistaken belief that the wire fence was the dividing line between their land. A survey by the county surveyor established the fact that the true line was 131 feet east of the. wire fence. We held that the fact that the defendant and his predecessors had farmed the disputed strip did not give him title to the strip by adverse possession. In syllabus paragraph 2 it was said:
“. . . the fact that defendant and his predecessors in title had farmed this strip of land between the wire fence and the line established by the survey under a mistaken belief that the wire fence was on the true line between the farms did not establish title to the strip of land in defendant by adverse possession and did not prevent plaintiff from quieting his title to the strip of land as against defendant.”
In the instant case, Paulk made no contention that even if the disputed tract was in fact within the northwest quarter of section 32, he and his predecessors had established ownership by adverse possession. He rested his case solely upon the contention that the strip was a part of the northeast quarter of section 31. Such being the issue, our cases just cited are applicable and controlling and there was no occasion for an instruction relative to an issue of adverse possession.
Appellant complains of instructions 8 and 9. In instruction 8 the jury was instructed to find for plaintiff if it found that the disputed strip was a part of the northwest quarter of section 32 “according to the original government survey of the lands of said county,” and in instruction 9 it was similarly instructed to find for defendant if it found that the strip was a part of the northeast quarter of section 31. Appellant’s contention is that there was no evidence as to the original government .survey “except the one measurement on the county engineer’s plat.” We cannot say that such testimony constituted no substantial evidence upon which to predicate the instructions. No question was raised as to the proper location of the government stone at the northeast corner of section 32 nor as to the location of the government stone two miles west on the Barber county line.
Examination of other instructions to which objection was made discloses nothing which requires discussion. Appellant’s contention that the trial court erred in overruling his demurrer to plaintiff’s evidence is disposed of by what has already been said.
We find no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.;
This was an action for for personal injuries sustained in a collision of two motor vehicles. A jury trial resulted in a verdict for defendant, upon which judgment was rendered, and the court overruled plaintiff’s motion for a new trial. Plaintiff has appealed.
The location of the collision was the intersection of Seventh and Tennessee streets in Lawrence. Seventh street is an east-and-west street, paved forty feet wide, and is also a part of Federal Highway No. 40 and State Highway No. 10. It is intersected at right angles by Tennessee street, which is paved thirty feet wide. On the west side of Tennessee street there is a stop sign about seventeen feet north of the pavement on Seventh street. There is a similar stop sign on the east side of Tennessee street about the same distance south of the pavement on Seventh street. Plaintiff lives near Clinton, a few miles southwest of Lawrence. On the day of the collision she rode into Lawrence with her neighbors, Mr. and Mrs. Kennedy, as their guest. Mr. Kennedy was driving a pickup truck. They rode in the seat of the cab of the truck, Mr. Kennedy on the left driving, his wife in the center, and plaintiff on the right. Each of the women was holding on her lap her baby, less than a year old. He was driving east along Seventh street about the middle of the south half of the street at about twenty-five to thirty miles per hour. Defendant, with his wife riding with him,, was driving his automobile south on the west side of the pavement on Tennessee street, crossing Seventh street. When he was almost across Seventh street his‘ .car was struck on the right side back of the door, near the right rear wheel, by the truck in which plaintiff was riding. She was seriously injured. •
In her petition plaintiff alleged among other things that defendant’s negligence consisted in his failure to stop at the stop-sign before entering the intersection; in driving his car into and across the intersection at a reckless rate of speed, to wit, twenty miles per hour; in failing to look for traffic on the street as he proceeded into and across the intersection, and failure to exercise due regard for the rights and safety of others; and in failing to yield the right of way to the truck in which plaintiff was riding, which had entered the intersection first. Several sections of the city ordinance pertaining to the duties of drivers of vehicles at such intersections were set out and it was- alleged that defendant was negligent in failing to conform to the ordinance. The petition also alleged the extent of plaintiff’s injuries, which need not be detailed. In his answer defendant denied the negligence charged against him in plaintiff’s petition and alleged facts tending to show his own due care, and negligence on behalf of the driver of the truck in which plaintiff was riding, and also the negligence of plaintiff which contributed to her injuries. These allegations were put in issue by the reply.
We need not detail the evidence. On the issue controverted by the pleadings, as to whether defendant stopped at the stop-sign before entering Seventh street, the plaintiff and Mr. and Mrs. Kennedy testified they did not know whether he had stopped or not; that the first they saw of defendant’s car it was in the intersection. The plaintiff and Mr. Kennedy estimated that at the time they saw defendant’s car starting into the intersection, or further along in the intersection, they were forty to fifty feet west of the intersection. Some of the testimony of Mrs. Kennedy tends to locate them-farther west, perhaps as far west as the alley west of Tennessee street, which the evidence shows was 125 feet; but she frankly stated she was not good at gauging distances, and further that she was giving more attention to her baby on her lap than she was to the exact location of the truck in which she was riding at the time defendant’s car was first seen.
Mr. Joe Hemphill, a witness called by plaintiff, had driven his car from the south on Tennessee street towards Seventh street and had stopped at. the stop sign south of Seventh street. He testified that he saw defendant’s car on Tennessee street north of Seventh street and approaching it, and that the defendant had stopped at that stop sign. 'Both the defendant and his -wife, testifying for defendant, said that he had stopped at the stop-sign north of Seventh ■ street before he drove into the intersection. Plaintiff and Mr. and Mrs. Kennedy testified that when plaintiff saw defendant’s car in the intersection she called out “Car,” and Mr. Kennedy testified that he promptly put his brakes on, but was unable to avoid the collision. There was a conflict in the testimony as to how fast defendant drove through the intersection. Plaintiff and Mr. Kennedy estimated his speed at fifteen miles per hour. Defendant said that after he stopped at the stop-sign he started in low and did not change gears before the collision, and estimated his speed at five miles per hour when he entered the intersection and perhaps ten miles per hour at the time of the collision. The parties agree that the collision occurred in the southwest corner of the intersection. It would appear from the testimony that neither- driver turned to the right or left as he drove forward. Perhaps there are other minor discrepancies in the testimony.
One of the controversies in the case was whether defendant was guilty of any act of negligence charged. The jury returned a verdict in which they found “for the defendant, Ralph Russell — not guilty of negligence as charged.” Prom the record we assume that is the form of the verdict submitted to the jury; at least no point is made of its being otherwise.
Plaintiff filed a motion for a new trial upon three grounds: First, “Erroneous rulings and instructions of the court.” No erroneous ruling of the court is called to our attention. Complaint is made of one of the instructions pertaining to the city ordinance pleaded, that it is so worded as not exactly to conform with the ordinance. That matter was not called to the attention of the court when the instruction was given. Examining the instruction given and the ordinance we see no just grounds for criticizing the instruction.
Second, “The court’s failure to fully instruct the jury as to all matters and legal questions involved in the action.” At the trial plaintiff made no complaint of any instruction given by the court, neither was any instruction requested. Appellant now contends that the court’s instruction should have included a discussion of several of the sections of our uniform act relating to traffic on highways (G. S. 1945 Supp. 8-501 et seq.). As far,as the record is concerned, this question is raised here for the first time, although appellant in her brief states that it was presented to the court on the hearing of the motion for a new trial. While differently worded upon the points here involved, we think the city ordinance covers every element covered by the statute which would be applicable to this action. The point now made by appellant is not well taken.
The time for proper instructions to be given is at the trial so that the jurors may know the law of the case. Where a party contends that an instruction given might, have been stated better in different language it is imperative that he call the attention of the court to the matter. (Lambert v. Rhea, 134 Kan. 10, 14, 4 P. 2d 419.) Appellant contends that where the instruction is clearly erroneous as a matter of law it is not necessaiy for him to call the court’s attention to it before the jury retires, citing Sams v. Commercial Standard Ins. Co., 157 Kan. 278, syl. ¶ 9, 139 P. 2d 859, and au-, thorities there cited. Conceding the rule to be correct and at times to be properly applied the fact remains that if a litigant desires his case decided upon sound rules of law, properly applicable to it, and knows or realizes that an instruction given is clearly an inaccurate rule of law,' he owes a duty to the court and to the litigants to call the court’s attention to it. We shall not labor the matter, for a careful examination of the instructions given in this case does not show that any of them states an erroneous rule of law. We deem it unnecessary to set out the instructions and make a lengthy discussion of the points.
Third, “That the verdict of the jury is wholly contrary to the evidence introduced in said action.” That was a matter properly addressed to the trial court for its consideration. No doubt the court did consider it, since the court denied the motion for a new trial and approved the verdict. In all these questions raised on the motion for a new trial appellant argues them upon the basis that defendant did not stop at the stop sign before entering the intersection. We have heretofore stated the evidence on that point. Examining this record as a whole we think the evidence presented a proper case to submit to the jury and that the jury’s findings for defendant contained in the general verdict approved by the trial court should not be disturbed.
Counsel for defendant filed a demurrer to plaintiff’s evidence, which was overruled, and at the close of all the evidence filed a motion for a directed verdict, which was overruled. A cross-appeal was taken from those rulings. We assume defendant does not care to press the cross-appeal in view of the conclusion we have reached on plaintiff’s appeal; but, aside from that, we are of the opinion that the rulings of the trial court were correct. It necessarily follows the judgment of the trial court should be affirmed. It is so ordered. | [
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ORDER OF PUBLIC CENSURE
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Charles G. Stewart, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Charles G. Stewart, Grainfield, Kansas, after filing a claim for a secured creditor against a bankruptcy estate, was appointed trustee of the estate, which resulted in a conflict of interest. Respondent failed to withdraw as attorney for the creditor or to notify it of the necessity of filing an amended claim, and later as trustee he filed objections to the creditors claim. The conduct of respondent constitutes a violation of DR 2-110 (A) (2) relating to withdrawal from employment, and of DR 5-105 (A) and DR 5-105 (C) relating to conflict of interest (214 Kan. Ixxxii, Ixxxvi), and
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said Charles G. Stewart be disciplined by “Public Censure” as provided by Rule 203 (a) (3) (220 Kan. xxviii [Adv. Sheet No. 2]), and
Whereas, In accordance with Rule 213 (c) (220 Kan. xxxiii [Adv. Sheet No. 2]), a copy of the report, findings and recommendations of the Board was mailed to respondent on November 18, 1976, along with a citation directing respondent to file with the court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
Whereas, Under date of December 8, 1976, the respondent filed his response to the citation, stating that he did not wish to file exceptions to the report, findings and recommendations, and
Whereas, Upon consideration of the record and being fully advised in the premises, the Court accepts the report, findings and recommendations of the State Board of Law Examiners.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Charles G. Stewart be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports.
By Order of the Court, dated this 1st day of February, 1977. | [
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The opinion of the court was delivered by
Phager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Max Franklin, was charged with murder in the first degree (K. S. A. 21-3401) and aggravated battery (K. S. A. 21-3414). He was convicted by a jury of murder in the second degree (21-3402) and aggravated battery.
The essential facts of the case are not greatly in dispute and are as follows: On August 12, 1975, the defendant Max Franklin was released from the Kansas State Penitentiary. He returned to Kansas City, Kansas, where his wife, Carol Franklin, and two daughters were living. Upon his return to Kansas City, Carol informed him that she could no longer live with him and wanted a divorce. Re-tween August 12, 1975, and August 30, 1975, the defendant repeatedly threatened Carol. He advised her that if he could not have her, he would mess her up so that no one would want her but him. He physically abused her on several occasions and one evening he rammed his fist through the wall of Carol’s home and with scissors cut a circular piece from the wall stating to Carol that that was what he was going to do to her. Toward the end of the month of August, Carol moved in with her mother, Doris Ronn, at the latter’s residence in Kansas City, Kansas.
On the evening of August 30, 1975, Carol Franklin, James R. Gilchrist, Doris L. Ronn, and David Bigley went to a private club in Kansas City, Missouri. They returned to the Ronn residence shortly after midnight. Doris Ronn and David Bigley retired for the night in one bedroom. Carol and James Gilchrist went to the back bedroom. On the same evening the defendant went to a private club and consumed alcoholic beverages for two to three hours. According to the defendant he then went to his mother-in-law’s house to make arrangements with his wife to take' her and the children to a circus on the following day. Upon his arrival at the Ronn house defendant observed a light on in one window and a truck parked in front. He looked in the window and at the trial testified that he saw his wife in bed with another man. He did not recognize this man. According to the defendant he desired to get his wife out of the house and, not knowing what to expect from the stranger, went to his car and obtained a meat cutter’s knife. The defendant was a butcher by trade. Armed with the knife defendant proceeded to the house, physically broke down the door, and entered the darkened premises. He was familiar with the house, having been there before. He proceeded to the back bedroom where he had seen his wife with the strange man. From this point on there is a dispute in the evidence as to what occurred.
The state’s witnesses heard scuffling and screaming from the back bedroom. Then James Gilchrist walked into the front bedroom, fell partially into a closet and never moved again. He had been fatally stabbed, once in the chest on the left side and once through the armpit on the right side. According to the physician who performed the autopsy, the penetrating wound in the chest was nine inches in depth and required a knife of at least nine inches in length to produce the wound. The chest wound caused Gilchrist’s death. The second wound passed through the skin and rib cage and into the lower lobe of the right lung.
Next, Carol Franklin entered her mother’s bedroom crawling, dragging her bleeding right leg behind her. Max Franklin followed Carol into the room waving a butcher knife in his right hand repeating again and again, “Let me at her. Let me at her.” The defendant said he was going to kill them both. Doris Ronn screamed, “He killed Rusty and Carol is as good as dead.” David Bigley then told the defendant that he had done all the damage he could do there and it would be best for him to leave. The defendant stated, “They are going to send me back up there anyway, and I might as well kill them both.” David Bigley then said, “You already killed him and Carol is as good as dead.” The defendant thereupon left the Ronn residence and was apprehended later at another place.
The defendant, Max Franklin, testified in his own behalf at the trial. He denied making the statements attributed to him by the state’s witnesses and gave a somewhat different version of the tragic happenings in his wife’s darkened bedroom. According to the defendant, after obtaining a knife from his car he ran to the house, broke down the front door by running through it, and ran through the living room and dining room into the back bedroom. He went there to get his wife. There is a step down between the dining room and the bedroom. Defendant testified that as he entered the bedroom he fell over the ledge at the top of the step down and fell to the floor of the bedroom. He got up, felt his way to the doorway, stepped back on the ledge, and hollered for someone to please turn on the lights. At that time he still had the knife in his hand and the room was dark. Then someone unknown tackled him. He fell backwards hitting his head on a stand in the dining room causing his glasses to fall to the floor. He felt around in the darkness and found his glasses. He started to put them on and at that time someone landed on top of him. He did not know who the person was or whether the person was male or female. He pushed the person off so he could get up and as he did so his hand felt the blade of a knife which was sticking in the unknown person’s body. He pulled it out. He had no further contact with this person and does not know where that person went. The person never touched him again. The defendant sat up and then the lights came on in Doris Ronn’s bedroom. He looked again into the back bedroom and saw Carol sitting on the floor with her back to the bed. He went over and picked her up with his left hand. At that time he had the knife in his right hand. He carried Carol into the dining room and Carol seemed to collapse. He tried to talk to her. She said something but he could not remember what it was. At this point the other occupants of the house entered the dining room and discovered that Carol had been stabbed.
At the trial on direct examination Max Franklin testified that when he entered Doris Ronn’s home that early Sunday morning he did not have any intention of killing or stabbing anyone. He denied that he had stabbed Carol Franklin or that he had stabbed James Gilchrist. He stated that he never saw Gilchrist and would not know him if he saw him. He did not know that Carol was dating another man. He loved his wife. As we construe the defendant’s testimony his defense was that he did not stab either Carol Franklin or James Gilchrist. Whoever fell upon him in the darkened bedroom must have accidentally fallen on the knife causing the fatal wound. As noted above the defendant denied any intention to kill anyone when he entered the house. However, he did not testify as to his intent at the time the stab wounds were inflicted. The defendant’s version of the homicide left many questions unanswered. For example, how the three knife wounds could have been inflicted on two different people by accident. It is understandable why the jury concluded that the defendant was guilty of murder in the second degree and aggravated battery. Following his conviction, the defendant appealed to this court claiming trial errors.
The defendant’s first point on the appeal is that the trial court erred in admitting into evidence three gruesome photographs. Two of the photographs showed the body of the deceased, James Gilchrist, lying partly in a bedroom closet, with blood all over the floor and the body. The third photograph showed the upper- half of Gilchrist’s body covered with blood with knife wounds in the chest and under the right arm. The defendant contends that these three pictures were admitted only for the purpose of inflaming the jury. These pictures are not similar to those pictures admitted in State v. Clark, 218 Kan. 18, 542 P. 2d 291, or in State v. Boyd, 216 Kan. 373, 532 P. 2d 1064.
In State v. Wilson, 220 Kan. 341, 552 P. 2d 931, in discussing photographs showing the body of the deceased, we stated:
“In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds ■ inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome.” (Syl. 5.)
Similar holdings may be found in State v. Campbell, 210 Kan. 265, 500 P. 2d 21; State v. Randol, 212 Kan. 461, 513 P. 2d 248; State v. Jones, 218 Kan. 720, 545 P. 2d 323; State v. Villa & Villa, 221 Kan. 653, 561 P. 2d 428.
We have examined the testimony in the case concerning the three photographs and find no error in their admission. The pictures served to illustrate the nature and extent of the knife wounds inflicted and were relevant to show the location of the deceased’s body and the manner in which the wounds were inflicted. The photographs corroborated the testimony of certain witnesses and tended to show that accidental injury was highly unlikely. We find no error in their admission.
The second point raised on the appeal is that the trial court erred in failing to instruct the jury on the crime of involuntary manslaughter (K.S.A. 21-3404) as a lesser included offense of the crime of first-degree murder. The court did instruct the jury on the crimes of murder in the second degree (K. S. A. 21-3402) and voluntary manslaughter (K. S. A. 21-3403). The defendant requested an instruction on involuntary manslaughter which request was denied.
Where a defendant is charged with murder in the first degree, involuntary manslaughter is considered to be a lesser degree of the crime charged. In State v. Seelke, 221 Kan. 672, 561 P. 2d 869, we discussed various cases dealing with the necessity of instructing on involuntary manslaughter in a murder case. We do not deem it necessary to repeat that discussion in this opinion. In many cases we have emphasized that under K. S. A. 21-3107 a trial court’s duty to instruct on a lesser degree of a crime arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. (State v. Masqua, 210 Kan. 419, 502 P. 2d 728; State v. Clark, 214 Kan. 293, 521 P. 2d 298; State v. Gregory, 218 Kan. 180, 542 P. 2d 1051.)
The basic issue presented on this point is whether the factual circumstances shown by the record in this case required the trial court to instruct on the lesser offense of involuntary manslaughter. We have concluded that the trial court did not err in refusing to instruct on the lesser offense of involuntary manslaughter. Reduced to its essence the defense to the charge of murder in this case was that the defendant did not stab anyone. Although the defendant testified that he did not intend to kill anyone at the time he entered the house, he did not testify that he stabbed Gilchrist without the intent to kill him.
It is important to note in this case that there was no evidence whatsoever that the defendant was intoxicated to such an extent as to prevent the existence of an intention to kill. There is no evidence tending to show that the defendant’s life was unlawfully threatened by Gilchrist or that the defendant as a result of extreme fear acted impulsively in stabbing Gilchrist. Although the defendant may have been upset by observing his wife in bed with another man, this would have been no justification for the defendant’s proceeding to his automobile, selecting a meat cutter’s knife, breaking his way into Doris Ronn’s home, and then proceeding with knife in hand into the darkened bedroom of his estranged wife. The de fendant was the aggressor and self-defense was not available to him as a defense under the circumstances. (K. S. A. 21-3214.) On the basis of the factual circumstances shown in the record, we hold that the trial court did not err in refusing to instruct on the lesser offense of involuntary manslaughter.
The defendant’s third and last point is that the trial court erred in not instructing on the crime of simple battery as a lesser offense of aggravated battery as charged in count No. 2 of the information. Under count No. 2 the trial court instructed on aggravated battery (K. S. A. 21-3414) and criminal injury to persons (21-3431) as a lesser offense. The defendant testified that he did not stab Carol Franklin. Since the victim Carol Franklin suffered great bodily harm (a severely disabling knife wound) we hold that there was no evidence to justify an instruction on simple batteiy under (K. S. A. 21-3412). We find no error in the refusal of the trial court to give an instruction thereon.
For the reasons set forth above the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C.J.:
This is an appeal from a judgment denying a motion to quash garnishment proceedings for the collection of past-due alimony and to terminate alimony granted in a previous divorce decree.
The basic facts which are not disputed follow: the appellee, Irene J. Fleming, was granted a divorce from the appellant, Frank M. Fleming, in 1969, and awarded alimony of $50 per week for one year and $30 per week thereafter until further order of the court. The payments were contingent on the death or remarriage of the appellee.
On February 26, 1974, the appellant filed a motion to terminate alimony payments, .alleging that the appellee had remarried. A hearing was held and on April 9, 1974, the motion was denied. At the hearing, the appellant’s sole contention was that the appellee had entered into a common-law marriage with Elmer Schlarman.
Subsequently, and on April 1, 1975, the appellant again filed a motion to terminate alimony, as well as a motion to quash a gar nishment order which had been issued to collect delinquent payments. He again alleged the appellee had entered into a common-law marriage with Elmer Schlarman. He also contended that if such a marriage was not found to exist, it was nonetheless contrary to public policy to continue to compel him to pay alimony when his former wife was openly cohabiting with another man.
On April 21, 1975, at the hearing on these motions, the court excluded all evidence as to a common-law marriage between the appellee and Schlarman which dealt with conduct prior to the April 9, 1974, hearing. The court stated its previous ruling was res judicata on such matters, and further ruled the appellant had failed to sustain his burden of proving that a common-law marriage existed. The court also ruled there was no law in the state which would dictate termination of alimony under the circumstances presented. The divorced husband has appealed.
We first turn to the appellant’s contention the district court erred in concluding the evidence did not establish the existence of a common-law marriage.
In a long fine of decisions, this court has laid down the basic constituents which constitute a common-law marriage. They are: first, a capacity of the parties to marry; second, a present marriage agreement between the parties which may be shown by circumstantial evidence; and third, a holding out to the public as their being husband and wife. (See Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933; Gillaspie v. Blair Construction Co., 192 Kan. 455, 388 P. 2d 647; Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988; Schrader v. Schrader, 207 Kan. 349, 484 P. 2d 1007; and the most recent case, In re Estate of Keimig, 215 Kan. 869, 528 P. 2d 1228.)
It is not sufficient to prove one of these elements; they must all be established. In the instant case, there is no question as to the capacity of the parties to marry. However, a careful examination of the record discloses no present agreement to marry was established by the evidence, although there may have been evidence of consent to cohabit. In the absence of a present marriage agreement, it would serve no useful purpose to discuss the contention further. We conclude the district court did not err in finding that a common-law marriage was not established.
The appellant next contends the district court erred in prohibiting the appellant from establishing and relying upon the conduct of the appellee and Mr. Schlarman prior to the April 1974 hearing as their conduct and admissions tended to establish a common-law marriage. There is little merit to the contention.
The district court found, and properly so, that the evidence was not sufficient to establish a common-law marriage. We have been cited no Kansas case, and we have found none touching upon the question whether the doctrine of res judicata should apply. Re that as it may, 'the court is of the opinion there is no logical reason why the doctrine of res judicata should not apply to actions to establish common-law marriages, the same as in any other action. All litigation must be brought to an end. The continued trial on the same issues and the same fact or facts which were established at a previous trial would make the courts a vehicle for harassment.
The appellant claims no discovery of new evidence during the period prior to April 1974. The testimony of the witnesses at the April 1974 hearing is set out in the record. A careful examination discloses no evidence which would tend to prove a present marriage agreement between the appellee and Mr. Schlarman. The restriction of the evidence could not therefore have prejudiced the rights of the appellant.
The appellant makes a final contention the district court erred in failing to find that public policy prohibited the appellee from continuing to receive alimony from the appellant while maintaining over a period of years a relationship with Mr. Schlarman wherein she received all the benefits of marriage when the decree of divorce provided for a cessation of alimony upon the appellee’s remarriage.
It should first be suggested the appellee did not receive all of the benefits of marriage in her relationship with Mr. Schlarman because the very necessary element of support was lacking. There was no evidence of support nor was there evidence of a present agreement between the parties to be married, which would have constituted a common-law marriage and an implied legal obligation to support.
The appellant calls our attention to no cases which directly support his contention; however, he does quote from Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465, at page 54 where we state:
“. . . It is distasteful to permit a divorced wife to hold both her former husband under a decree of alimony and her present husband under the marital duty of support which inheres in every marriage contract.”
and again from the same page:
". . . It is a general principle in many courts that it is contrary to public policy for a woman to receive support from both a former and present husband.”
We find no fault with the statements made above; however, here we are not dealing with a former and a present husband. We are dealing with a former husband and a present boy friend with no obligation to support. Alimony is based on the obligation to support an ex-wife and is not to be measured in the future by her chastity or moral conduct.
Under the divorce deoree, the divorced wife was to receive alimony until her death or remarriage. It has not been established that either has occurred.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Harry F. Duncan was convicted by a jury of murder in the first degree (K. S. A. 21-3401). He was sentenced to im prisonment for life and appeals from his conviction and sentence.
He raises three trial errors including a claim of insufficient evidence to warrant a conviction. It is necessary to relate in detail the facts as developed by the evidence at the trial.
The nude body of an unidentified woman was discovered in a clump of trees along Frisby Road south of Bonner Springs in Johnson County, Kansas, on June 18, 1974. The body was found in a secluded area, had no teeth and was in a state of decomposition. The officers at the scene found no clues to the womans identity. Items of clothing were found in a neat pile near the nude body. An autopsy disclosed that death was caused by several blows to the face and head by a heavy blunt instrument, such as a hammer. There was a fracture on the left side of the skull. The upper jaw was fragmented. The bones of the nose and nasal cavity had been fractured and there was an absence of bony structure around the left eye socket.
The deputy coroner who visited the scene placed the approximate date of death on June 15, 1974. He noted a lack of blood around the area and testified some 14 months later at the trial that the lack of blood might point to the fact that the death occurred elsewhere. The body was covered with fly larvae since the death had occurred in warm weather and the body was outdoors. He further testified that any blood spattered about during the homicide might disappear in the loose, sandy soil and be consumed by the large number of flies which were present.
Seven months after the body was found the police received a tip from an informer and defendant Duncan was arrested. Further investigation disclosed that sheriff’s deputies had been in that general area three days before the body was found but at that time they were not aware of the presence of the body. They had been called to help two motorists stranded on Frisby Road at 5:00 a. m. on June 15, 1974. The motorists were Harry F. Duncan, defendant, and Beverly Jean Thompson. They had left their car and walked to the first house down the road but were advised to go to the next house. The couple went to the second house, were refused help and were walking on down the road when the officers arrived. The people in the second house had called the sheriff’s office.
The couple advised the officers that the battery on their car had run down while they were making love in the car with the car lights on. The officers noticed nothing strange about their appearance and took them back to their car. The car was a mile or so down the road and was parked near the clump of trees where the woman’s body was found several days later. The officers used jumper cables to start the car. Mr. Duncan and Mrs. Thompson then drove away. The officers noticed no blood on the car and nothing strange about the area.
When Duncan was arrested for the murder 7 months later the foregoing facts surfaced and both Duncan and Mrs. Thompson were questioned. Duncan gave a statement to Detective Donald D. Hall. Mrs. Thompson testified at the trial as an eyewitness to the homicide. Her bizarre story was quite similar to the oral confession by Duncan. Duncan’s statement or confession was related to Detective Hall and Detective Hall testified concerning the statements made to him by Duncan.
Mrs. Thompson testified that Duncan had been living with her for some time. They had been drinking on the night of June 14 and on the morning of June 15, 1974. They visited at least two night clubs where they engaged in drinking and then drove over to Kansas City, Missouri. Duncan was driving Mrs. Thompson’s car and he picked up a woman somewhere on Broadway. They did not know the woman but she got into the car with them. Mrs. Thompson testified the woman was wearing a dark pullover top and a light pair of slacks. The woman carried no purse. The woman was advised they would take her some place to eat. They then drove to the area where the body was found, stopped the car and left the car lights burning. They all got out of the car and Duncan ordered the unknown woman to take off all her clothes. She did so and then Duncan picked up “something” and began to sexually molest her. He rammed a stick or “something” into her groin area, then he ordered her to lean against the car. He then stuck “something” into her rectum or possibly her vagina two or three times. Mrs. Thompson testified the woman did not utter a sound until Duncan attempted to cut or pinch off one of the woman’s breasts and then the woman said, “I am a hurt woman”. Duncan then started hitting the woman on the head and on the left side of her face with a hammer.
Mrs. Thompson testified that she attempted to intervene but was struck with the hammer and she retreated to the back of the car. She reported that three of her ribs were cracked by Duncan in the melee. She begged Duncan to take the woman to a hospital but he refused saying “he had to kill her”. Mrs. Thompson said she watched Duncan drag the victim to a clump of trees. The woman was still partially able to move under her own power. Ten minutes later Duncan returned with a hammer in his hand. Mrs. Thompson testified that when Duncan returned to the car the headlights were dim and they were unable to start the engine. They began walking down the road to obtain help, stopped at two houses and finally received help from the sheriff’s officers.
On cross-examination she stated that her story to the officers about making love with the car lights on was untrue. She did not tell them about the murdered woman because she was in a state of shock and feared for her own life. Duncan had threatened and tortured her in the past. She testified that Duncan threw the hammer out of the car while they were driving home. During examination on the witness stand Mrs. Thompson stated she had first met Duncan when both were inpatients at the Rainbow Mental Health Unit at Osawatomie. When they were released Duncan came to live with her. Her former husband was in the penitentiary. Two weeks after Duncan was arrested her former husband, Wesley, was released and came to live with her.
The items of clothing found in the pile near the body of the victim, including a dark pullover top and a light pair of slacks, were identified by Mrs. Thompson as the clothes worn by the murder victim.
Detective Donald D. Hall testified that he interviewed Harry F. Duncan shortly after his arrest on January 19, 1975. The interview was conducted in the afternoon and lasted two or three hours. To the best of his recollection KBI Agent Jim Malson and Detective Dwight Cobb were present during the interview. The oral confession of Duncan, which Detective Hall related on the witness stand, followed closely the facts given by Mrs. Thompson. In addition, he related that Duncan advised him that when he had been drinking he had to torture a woman to get sexual release and reach a sexual climax. Duncan had previously used such means of reaching a sexual climax with Beverly Thompson.
Agent Malson was not available and did not testify at the trial. Detective Cobb testified that when he arrived in Detective Hall’s office the interrogation of Duncan was underway. To the best of his recollection the interrogation of Duncan ended within five or ten minutes after he arrived. At no time while he was present did Duncan admit any part in the homicide or any knowledge thereof.
Defendant Duncan testified at the trial. He admitted drinking with Mrs. Thompson on June 14 and 15, 1974, driving out on Frisby Road where the car stalled, receiving help from the officers and returning to Mrs. Thompson’s home. He denied any knowledge of the unidentified woman, denied being in Kansas City, Missouri, and denied any part in the homicide. He admitted talking to Detective Plall in his office about the evening’s activities on June 14, but stated he never admitted any knowledge of the murdered woman or said anything to indicate he had killed her. When asked if he heard Detective Hall’s testimony on the stand, he said that Hall lied about what he had told the detective.
Various other witnesses testified on peripheral matters during the trial but their testimony need not be detailed here.
Defendant-appellant points to various matters in the evidence which are conflicting or questionable. He points out that the body of the victim bore no wounds in the groin, rectal or vaginal areas. There was an absence of blood in the area where the body was found, indicating that death had occurred elsewhere. The officers who helped the stranded motorists noticed no blood on the defendant’s clothing or hands and none on or around the car when they raised the hood and applied the jumper cables. The story of Mrs. Thompson was incredible as to various details of the beating, especially when the woman’s only outcry was, “I am a hurt woman”. Mrs. Thompson, although interceding on behalf of the woman and being injured by Duncan, said nothing to the officers who helped them start the car.
Appellant further points out that Detective Hall’s testimony was impeached by Detective Cobb who testified that he did not take part in the interrogation of Duncan, was present no' more than five or ten minutes and heard no admission by Duncan that he committed the crime. Detective Hall testified a secretary was present and took notes during his interrogation of Duncan but the notes were not offered in evidence at the trial.
Recause of these and other contradictions and conflicts appellant states the evidence on which the conviction stands is so inherently implausible and incredible that the probability of error should be too great for this court to tolerate. He cites selected cases from other jurisdictions in which other courts have reversed convictions based upon evidence termed so inherently incredible or inherently implausible a jury could not find a defendant guilty beyond a reasonable doubt. These courts have exceeded the accepted scope of appellate review in Kansas.
The first protection built into our system of justice is for the guidance of the jury. A jury must find a defendant guilty beyond a reasonable doubt before returning a guilty verdict. It is the prerogative of a jury to determine the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence. (State v. Gustin, 212 Kan. 475, Syl. 3, 510 P. 2d 1290.) The second protection afforded an accused is placed in the hands of the trial court. It may be called on to assess the evidence both before and after a verdict is reached. A trial judge in passing on a motion for directed verdict of acquittal considers the evidence of the prosecution, keeping in mind the prerogative of the jury, and if he concludes no reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt of the crime charged, he must acquit the defendant and discharge him. (State v. Wilson & Wentworth, 221 Kan. 359, 559 P. 2d 374.) If the judge concludes upon the evidence a reasonable mind might fairly decide that a defendant is guilty beyond a reasonable doubt the case must be. presented to the jury. (State v. Gustin, supra.) Then if a guilty verdict is reached the defendant may again test the evidence upon which the verdict is based by filing a motion to set aside the verdict and enter a judgment of acquittal. On a motion to set aside a verdict and enter a judgment of acquittal the trial court again determines whether the evidence is sufficient to sustain the conviction. (K. S. A. 22-3419.)
It is not until these protections have been afforded a defendant in a trial court that the case comes before this court. On appellate review the question is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence was sufficient to form a basis for a reasonable inference of guilt. (State v. Wilson, 220 Kan. 341, Syl. 1, 552 P.2d 931.)
Admittedly there is much that appears odd about the testimony in this case. However, it comes down to a matter of what testimony should be accepted as true. The rules of appellate review in Kansas were set out in State v. Soverns, 215 Kan. 775, 529 P. 2d 181:
“It is well settled that the credibility of witnesses will not be passed upon and conflicting evidence will not be weighed on appellate review. (State v. Griffin, 210 Kan. 729, 504 P. 2d 150.) A defendant has no cause to complain if the jury believed the state’s witnesses rather than his own. (State v. Mae McLaughlin, 207 Kan. 584, 485 P. 2d 1352.) In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence which supports the verdict. It does not weigh the evidence and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. (State v. McCollum, 211 Kan. 631, 507 P. 2d 196.) . . .” (p. 775.)
Here there was evidence sufficient to form a basis for a reasonable inference of guilt which is the scope of review applied to appeals in this court. We decline to adopt the rule urged by appellant. The rule of “inherent incredibility” requiring a reversal of a verdict “when the probability of error is too great to tolerate” is too general in nature to be satisfactorily applied. It would require this court in each case to invade both the province of the jury and of the trial court. It is not our function on appeal to retry the case.
As appellant’s next point on appeal he asserts the trial court prevented him from introducing his testimony and that of Detective Cobb at the hearing to determine the admissibility of his oral statement. Under K. S. A. 22-3215 on motion a hearing is to be held to determine the admissibility of a confession. The burden of proving the admissibility of a statement or confession is upon the prosecution. (K. S. A. 22-3215 [4].) On motion it is the duty of the trial court, before admitting a purported confession into evidence, to conduct a hearing separate and apart from the jury to determine from the evidence as a preliminary matter whether the confession was freely and voluntarily made by the accused. (State v. Wilson, supra.) The inquiry is to determine whether the statement or confession was voluntary, and the determination must be based upon a consideration of the totality of the circumstances bearing on voluntariness. If the court determines that the statement or confession was the product of a rational intellect and a free will the statement or confession should be admitted into evidence. (State v. Milow, 199 Kan. 576, 433 P. 2d 538; State v. Wilson, supra.)
In State v, Milow, supra, it is stated:
“The reliability of a confession has nothing to do with its voluntariness— proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant’s will has been overborne.” (Syl. 6.)
Discrepancies in the facts not bearing on voluntariness or which relate to the credibility of a witness to a confession are irrelevant to the inquiry. (3 Wigmore, Evidence, § 822, p. 334, n. 21 [Chadboum rev. 1970]; 23 C. J. S., Criminal Law, §818, p. 197.) If the statement or confession is voluntary the credibility of the witnesses and the weight to be given to the statement are left to the province of the jury and should be submitted at the trial. (K. S. A. 22-3215 [5]; State v. Wheeler, 215 Kan. 94, 99, 523 P. 2d 722.) The trial judge has discretion in determining relevancy and should keep the inquiry within the proper bounds. However, the range of inquiry in such a collateral hearing should be broad and the inquiry must be based upon a consideration of the totality of the circumstances bearing on voluntariness.
At the hearing in this case the prosecution called but one witness, Detective Hall, who testified fully as to the facts and circumstances of the interrogation and the substance of the oral confession. He testified that various detectives were in and out of the room during the interrogation but that Agent Malson and Detective Cobb were present when the confession was made. The prosecution rested and the appellant’s attorney then made the following request:
“Your Honor, due to the impact that this statement would have on the jury, we will request there were other people present and we would request that they be allowed to testify before as to whether this statement was actually made in their presence before the witness here is allowed to make the statement to the jury that he indicates the defendant made, because he now makes statements that have no relationship to the statement that was taken down or very slight relationship. It is completely different than what the defendant has allegedly said on the 19th or 20th day of January.” (Emphasis added.)
The court then stated: “The defendant’s application for an order directing the testimony of other persons, the Court rules upon the matter now before the Court is considered and denied.”
There was no further request by the defendant to call witnesses, no prospective witnesses were suggested by name and no proffer of evidence was made. The court ruled that defendant’s confession was freely and voluntarily given. As previously stated Detective Hall was examined and cross-examined during the trial concerning the facts and circumstances of the interrogation and the demeanor of the defendant. Detective Cobb testified and was later recalled to testify for the defense. He was not questioned regarding the voluntariness of defendant’s statement and in fact stated he was present during the last five or ten minutes and heard nothing which would incriminate the defendant. Defendant testified during the trial and flatly denied that he confessed to the crime. He denied telling Detective Hall about picking up a woman in Kansas City and killing her on Frisby Road.
In a motion for new trial defendant alleged that the trial court erred in denying defendant’s motion to present evidence on the voluntariness of the confession. In denying the motion for new trial the trial court stated:
“The Court after hearing and considering the defendant’s motion for a new trial finds that the defendant did not request an opportunity to present evidence on the voluntariness oí his alleged confession.
“That the defendant did not request an opportunity to present his own testimony as to voluntariness, but rather suggested to the Court as I recall that the state in substance be allowed to or be required to call other witnesses who were alleged to have been present to determine whether the statement or confession was actually made in their presence, and apparently to determine the truthfulness of the alleged confession.
“The Court certainly did not at the time the request was made, consider it as a request by the defendant to present evidence on the voluntariness of his confession, alleged confession, and does not after reviewing the record consider it as an application on the part of the defendant to present evidence in regard to the voluntariness of the defendant’s alleged confession.” (Emphasis added.)
We have previously held that a trial court must hear all testimony offered by both the prosecution and the defendant bearing on the voluntariness of the confession when it hears a motion filed under K. S. A. 22-3215. When a defendant has not been allowed to testify or call witnesses at such a hearing we have found reversible error. See State v. Milow, supra, and Barnes v. State, 204 Kan. 344, 357, 461 P. 2d 782. In such circumstances we have remanded the cases for a collateral hearing in the trial court to determine the voluntariness of the confession. If at the conclusion of such a hearing on remand the trial court considers the confession was voluntary, a new trial is unnecessary and the conviction stands affirmed. If the confession is found by the court to be involuntary, a new trial is ordered and the confession is then excluded from evidence. (State v. Milow, supra, p. 590.) We should not be understood as retreating from our position in the above cases; however, there are two matters apparent in the present case which compel us to the decision that if there was error on the part of the trial court the error was harmless beyond a reasonable doubt. The first is, that the evidence which defendant states should have been permitted is not relevant on the issue of voluntariness as indicated by the court in ruling on the motion for new trial.
The second is, that if sent back for a consideration of the evidence the trial judge would hold the confession to be voluntary even after hearing the testimony of the defendant and Detective Cobb. Their testimony was taken at the trial and is available in the record. The defendant did not contend the confession was involuntary. See State v. Watkins, 219 Kan. 81, 547 P. 2d 810. He testified that he signed the written waiver of Miranda rights prior to the interview but that he did not confess and that Detective Hall lied. Detective Cobb did not testify that the confession was involuntary. He merely stated that he was present only a short time and defendant confessed to nothing while he was present. We were informed on oral argument that Agent Malson, the only other possible witness, had moved out of the country and could not be called to testify. Since Agent Malson was a law enforcement officer working for the KBI it is extremely doubtful that his testimony would be helpful to the defendant, even if he might be found.
The determination of the relevance of evidence bearing on voluntariness and its admissibility for that purpose rests within the sound discretion of the trial court in the first instance. This court will not reverse the trial judge on a discretionary matter except for an abuse of discretion which affirmatively appears to have affected the substantial rights of the party complaining. See K. S. A. 60-2105 and State v. Winston, 214 Kan. 525, 530, 520 P. 2d 1204; see also 29 Am. Jur. 2d, Evidence, § 585, p. 642. We find no abuse of discretion which affirmatively appears to have affected the substantial rights of the defendant at the hearing.
The final point raised by appellant concerns a ruling on admissibility of evidence. On cross-examination defense counsel questioned Detective Hall on whether the crime could have been committed elsewhere and the body disposed of along Frisby Road. The state objected on the ground the question asked “for a conclusion, or asking the witness to conjecture.” The objection was sustained. The witness had just testified that he did not view the body at the scene and was not familiar enough with the case to interview the defendant -without the help of other detectives. When the testimony sought requires proper foundation and knowledge to express an opinion, and it is not shown the witness has such knowledge, the opinion testimony is so conjectural as to lack probative value and may be properly excluded by a trial court. (State v. Zimmer, 198 Kan. 479, 502, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298.)
K. S. A. 60-419 provides:
“As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required.
The question asked of Detective Hall in this case called for opinion testimony. The trial court is vested with discretion in receiving expert or other opinion testimony. See K. S. A. 60-456 (a) and cases listed in case annotations following this statute.
Even if we assume it was error in this case to exclude the evidence such error would be cured by the testimony of other witnesses who testified on the same subject. See State v. Zumalt, 202 Kan. 595, 451 P. 2d 253. The deputy coroner and another police officer who were at the scene gave testimony that the lack of blood in the area and the neat pile of clothes beside the nude body indicated that death might have occurred elsewhere. The trial court did not err in restricting the testimony of Hall on this subject. Hall had not visited the scene and had no sufficient information from which an opinion could be expressed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.;
Claimant in a workmen’s compensation case was injured on October 24, 1972, when his sand truck ran off a road between Kinsley and Gray, Kansas. As his truck ran into the ditch and caught fire, sand in the box pushed the cab forward, pinning claimant. He felt a sharp pain in his left hip. By crawling through the windshield he escaped the burning truck. At the time of the accident claimant was hauling a load of sand for the respondent, Kinsley Sand & Gravel, Inc. As a result of the accident claimant suffered bums, superficial abrasions and injury to his lower left quadrant.
At a hearing before the workmen’s compensation examiner, where it was stipulated that claimant sustained a personal injury, claimant was found to have sustained temporary total disability and a twenty-five percent permanent partial disability, and was awarded compensation on that basis. This award was approved by the workmen’s compensation director.
On appeal the issues were whether an employer-employee relationship existed between claimant and respondent at the time of the accident, and the nature and extent of disability. The district court found the employer-employee relationship did exist, but found claimant did not suffer permanent partial disability and denied recovery.
Claimant has appealed, claiming the district court’s finding that he had no permanent partial disability is contrary to the law and the evidence. Respondent’s cross-appeal asserts the finding by the district court that an employer-employee relationship existed at the time of claimant’s injury is not supported by substantial competent evidence.
A search of the record fails to disclose any effort on the part of claimant to relate his injury to the type of work he was performing at the time the injury occurred. We must determine whether claimant is entitled to recover for functional disability when he has failed to relate the functional disability to work disability.
Charles F. McElhinney, M. D., testified that claimant was referred to him by Dr. McKim of Kinsley, who rendered emergency treatment; that he first saw claimant on October 24, 1972, and at that time he was complaining of pain in his chest and upper abdomen, in his left buttock, left hand and arm, and pain and numbness around his left eye; that examination revealed a large abrasion and loss of superficial tissue over the left buttock and lower left hip, first and second degree burns on the left buttock and left hand and arm, pain in the left hip with motion, as well as “guarding and tenderness . . . and rebound” in the upper abdomen. Since claimant had been administered narcotics which -failed to relax abdominal muscles, internal abdominal injury was suspected and an exploratory laparotomy was performed disclosing no major abdominal injury. X-rays of claimant’s left hip and pelvis were negative.
Dr. McElhinney testified that at that time his major concern was possible internal injury; therefore, he did not focus his examination on the hip problem. During claimant’s hospitalization he was at bed rest and hip pain was therefore minimal. After claimant was released from the hospital, he complained to the doctor of hip pain. The doctor noted complainant walked with a limp and had some atrophy of the left thigh muscle. He was still experiencing those problems when Dr. McElhinney released him on January 16, 1973, to return to work.
In a letter to claimant’s counsel, dated February 9, 1973, Dr. McElhinney stated that at the time he released claimant from his care, claimant was no longer disabled and was able to return to work. On direct examination he indicated his statement meant the bums had healed, as had the abdominal incision, and it did not refer to claimant’s hip and leg problems. He testified that if claimant was continuing to have pain, weakness and limitation of motion in the hip and leg, that would constitute a disability. He did not have an opinion as to the degree of disability.
Larry E. Stout, D. C., testified that he treated claimant from March 30, 1973, until September 17, 1974; that claimant complained of pain in the left hip radiating into the groin area, a burning sensation between the shoulder blades, and numbness in the left eye; and that complainant indicated the pain he experienced in his left leg while walking subsequent to the accident had lessened but would not go away. Dr. Stout conducted the Fabere-Patrick test of the left hip socket, which produced pain in the left hip. X-ray examination revealed a curvature in the dorsal spine, malformation in the articulation of the lumbosacral joints causing instability of the back, an increase in the lumbosacral angle, and a narrowing of the posterior of the disc space between the fifth lumbar vertebra and the sacrum, all of which the doctor attributed to a sprain and strain injury to the low back as a result of the accident. Treatment resulted in some improvement of claimant’s condition, but he continued to experience pain, weakness and limitation of motion in the left hip and leg.
Dr. Stout determined claimant had fifteen percent permanent partial general bodily disability, precluding work such as carrying heavy objects or climbing, which would aggravate the pain in the left leg and hip; that bending and squatting would also aggravate his condition; and that it was doubtful future treatment would improve the condition.
Claimant testified that he went to work as a punch press operator when Dr. McElhinney permitted him to do so. Later, he became a welder and was so employed at the time of the hearing. He testified he experienced pain and weakness in his left hip and leg in lifting heavy objects while he welded; that when he dressed and was standing on his left leg to get his right leg into his pants, he had to hold on to something to steady himself; that fast walking and running movements were restricted because his legs tired out; that he had trouble climbing and stepping up on to objects; and that he had to stop occasionally to pop his hip into place. Based on these facts, he estimated his disability at thirty percent.
Claimant’s father-in-law testified he had observed claimant since the accident and claimant could not play golf or hunt as he did before the accident because he couldn’t walk that far anymore. Weather also seemed to affect claimant’s hip and leg, as there were times when he limped worse than usual.
The record fails to disclose any evidence produced by respondent relative to claimant’s injuries. The only evidence introduced by respondent related to the issue of whether claimant was an employee of respondent.
The primary purpose of the workmen’s compensation act is to burden industry with the economic loss to a workman resulting from accidental injuries sustained by the workman in the course of his employment. (K. S. A. 44-501; Craig v. Electrolux Corporation, 212 Kan. 75, 510 P. 2d 138; Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676.) To make such legislative intent effectual, the courts are directed to interpret the act liberally in favor of the injured worker. (Streff v. Goodyear Tire & Rubber Co., 211 Kan. 898, 508 P. 2d 495; Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P. 2d 754; Taylor v. Armour & Co., 186 Kan. 51, 348 P. 2d 632.)
In construing the act, our decisions have held that the loss of earning power of the workman is the theoretical basis for allowance of compensation. (Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278; Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012.) We have repeatedly stated that the correct standard for determining loss in earning capacity is the extent to which a workman’s ability has been impaired to procure in the open labor market and to perform and retain work of the same type and character he was able to perform before he was injured. (Reichuber v. Cook Well Servicing, 220 Kan. 93, 551 P. 2d 810; Davis v. Winchester Packing Co., 204 Kan. 215, 460 P. 2d 617; Gray v. Beller, 199 Kan. 284, 428 P. 2d 833; Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457; Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414.) This rule has been followed even in those cases where the injured workman may actually earn a greater salary after the injury than he did before. (McGhee v. Sinclair Refining Co., 146 Kan. 653, 659, 73 P. 2d 39.)
We have reviewed all the workmen’s compensation cases appearing before this court and have failed to find a fact situation similar to the instant case. The distinction between functional disability and work disability has been accepted by this court in most instances without explanation. Functional disability is the loss of a part of the total physiological capabilities of the human body. Work disability is that portion of the job requirements that a workman is unable to perform by reason of an injury. Work disability generally oarries a higher percentage of disability than functional disability. Many of our cases center around an effort on the part of the claimant to transpose a lower functional disability into a higher work disability. Out of these cases arose the standard for determining loss in earning oapacity of an injured workman as hereinbefore stated. If we apply this standard strictly to the facts in this case, the claimant should be denied permanent partial disability. It was on this basis the district court denied compensation. Its memorandum decision stated:
“. . . We do not have a claimant that has always engaged in occupations requiring hard physical exertion. Claimant here was a truck driver and after an accident engaged in an occupation requiring hard physical exertion and claims he cannot do 30% of what he could do before the accident. Since there is no evidence to suggest that claimant cannot perform the same labor he was able to perform prior to the injury, the Court would conclude that claimant has no[t] suffered a permanent partial disability.”
The effect of the trial court’s judgment could result in a denial of workmen’s compensation benefits, even though the workman suffered a substantial injury, if he could not relate it to his work. This would be true of any sedentary employment such as a bookkeeper, cashier or bank teller receiving a non-scheduled injury. Upon a showing that this type of employee could perform his duties despite his injury, no compensation would be allowed. Similarly, in the instant case, the absence of a showing that claimant was unable to resume duties he was performing at the time of the injury would be a bar to the allowance of compensation.
We question the logic of this result and doubt it fulfills the intent of the workmens compensation act. We have heretofore stated that recovery for loss of earning power is a basic purpose of the act. In accordance with this principle we conclude a workman is entitled to recover an award equal to the percentage of his physiological capabilities lost by reason of an injury occurring within the scope of his employment. Stated more distinctly, he should recover his functional disability.
We believe the following illustration might serve to disclose the logic of our decision. Assume three employees of a construction company — a common laborer, a timekeeper, and a supervisor —were working on the same job. In the course of their employment and while traveling from one job site to another, they were involved in an automobile accident The common laborer received a whiplash injury which resulted in a ten percent functional disability. The timekeeper sustained a serious leg injury, which required amputation above the knee. The supervisor suffered a back injury which required a laminectomy and a fusion, resulting in a twenty-five percent functional disability.
At the workmens compensation hearing, the common laborer presented evidence to establish his ten percent functional disability resulted in a sixty percent work disability. The propriety of doing so is justified by our decisions of Gray v. Beller, supra; Puckett v. Minter Drilling Co., supra; Gutierrez v. Harper Construction Co., supra; and Taber v. Tole Landscape Co., 188 Kan. 312, 362 P. 2d 17. If the proof is convincing to the trier of the facts, the laborer should recover an award based on a sixty percent permanent partial disability.
At the timekeepers compensation hearing, he established that he received a scheduled injury for the loss of his leg. Because he was not required to prove his scheduled injury affected his work ability, he was entitled to recover compensation under the schedule. (Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 587, 552 P. 2d 1360.)
At the hearing for the supervisor, it is established that he received an injury during the course of his employment, resulting in a twenty-five percent functional disability. He failed to establish that the injury affected his ability to obtain or retain employment of the same or similar nature as he had at the time of the accident. Under the rationale of the trial court, he would receive no compensation (other than temporary partial or temporary total disability and medical) because he failed to relate his injury to his work. This would be true even though two co-workers injured in the same accident received awards.
The plight of the supervisor is analogous to the position of claimant in the instant case. He, too, was denied recovery because he did not relate his functional disability to work disability. Applying the rules of construction heretofore set forth, it would appear it was not the intent of the legislature to deny recovery to the supervisor and permit recovery by the common laborer and timekeeper. Giving consideration to the purpose of the act and to the heretofore stated rules of liberal construction, the foregoing illustration supports the logic of our belief that the supervisor in the illustration and the claimant in the instant case should be entitled to recover an award equal to the percentage of functional disability irrespective of its relationship to work disability.
We are charged with the rule that we should eonsider all the testimony in the light most favorable to the prevailing party below and if the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed. (Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259.) We cannot apply this rule where the evidence is uncontradicted. In Berry v. Wondra, 173 Kan. 273, 246 P. 2d 282, this court said:
“Uncontradicted evidence which is not improbable or unreasonable cannot be disregarded unless shown to be untrustworthy, and is ordinarily regarded as conclusive.” (Syl. 3.)
The evidence before the district court was uncontradicted that claimant suffered a functional disability which was permanent in nature. We cannot say the evidence was inherently improbable, unreasonable, self-contradictory, or inconsistent with facts or circumstances in evidence. For this reason we believe it proper to reverse the judgment of the district court and remand the case, with instructions to determine the percentage of functional disability based on the record and enter an award in accordance with the determination.
Turning to the cross-appeal, we face the issue of whether claimant was an employee of the respondent sand company. The dis trict court found an employer-employee relationship existed. The scope of review of such an issue was set forth in Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108:
“Under K. S. A. 44-556, the appellate jurisdiction of this court in workmen’s compensation cases is limited to reviewing questions of law only. Whether the district court’s judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846, 148 A. L. R., Anno., 1131; Coble v. Williams, 177 Kan. 743, 747, 282 P. 2d 425; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P. 2d 391.) In reviewing the record to determine whether it contains substantial evidence to support the district court’s factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence. . . .” (pp. 778-79.)
The test for determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee and whether the employer has the right to direct the manner in which the work is to be performed, as well as the result which is sought to be accomplished. (Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416, 416 P. 2d 771; Atwell v. Maxwell Bridge Co., 196 Kan. 219, 224, 409 P. 2d 994; Jones v. City of Dodge City, supra at 779-80; Snyder v. Lamb, 191 Kan. 446, 448, 381 P. 2d 508; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 723, 78 P. 2d 868.)
The employer-employee relationship has been established applying the above stated test, in several cases involving owner-drivers of trucks. Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P. 2d 1274; Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10; Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725; Shay v. Hill, 133 Kan. 157, 299 Pac. 263.)
We believe the record contains sufficient competent evidence to support 'the finding of the district court. The record indicates hauling sand was an inherent part of respondents business operation. On many occasions respondent selected the route the truck owned by claimant was to take. Respondent determined the kind and quantity of material to be loaded into the truck, where each load was to be taken, and the quantity of sand to be spread upon roads when claimant unloaded. Under these circumstances the fact claimant owned his own truck, paid his own expenses, and sometimes chose his own routes, is of little significance.
The judgment of the district court is reversed with directions on the appeal and affirmed on the cross-appeal. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a jury conviction of aggravated battery (K. S. A. 21-3414). The victim was defendant Margaret Smolin’s ten-month-old daughter, Golda.
On the morning of July 26, 1975, defendant brought her daughter to Asbury Hospital in Salina, Kansas. Golda was treated at the hospital by Dr. Frederick Gans, who observed the child had lost contact with its environment and had incurred superficial bruises over the body, bums on the top and bottom of both feet, a bum on the left shoulder and swelling of the right leg above the knee. A spinal tap was performed which indicated injury to the central nervous system. X-rays revealed fractures to the right lower thigh and left wrist. Because he felt the injuries could not have been, accidental and he did not expect the child to live, Dr. Gans contacted the police.
When the hospital staff questioned defendant concerning the origin of the injuries, she stated the bum on the back was sunburn. She could not account for the other bums or injuries.
Officer Richard Edgington, of the Salina police, began the investigation of the case. When he arrived at the hospital he observed the child and was advised by a nurse that the baby had a broken arm and leg, and brain damage. She also informed him the attending physician believed the injuries were- intentionally inflicted. After being advised of her Miranda rights, defendant told Edgington that she and a Robert Berkowitz had sole control and custody of the injured child. Defendant was then transported to the Salina police station for further questioning.
Defendant made several oral and written statements to police. She told police she and her child had been living with Berkowitz. She often left Golda in his care while she worked or ran errands. Until July 17, 1975, her daughter was normal and healthy. On that date she noticed a bum on Golda’s back and shoulder before she went to work. When she questioned Berkowitz about it, he stated it was a sunburn Golda received when he took her to the lake. When defendant came home from work later that day she noticed bums on the baby’s feet.
On July 25, defendant left Golda with Berkowitz when she went to work. After she got off work she ran errands and returned home at about 5:00 p. m. She and Berkowitz left the apartment about 6:30 p. m., leaving the baby unattended until they returned home about 12:30 a. m. Because the two had been arguing, Berkowitz went into the apartment first and defendant remained outside. A few minutes later Berkowitz called to defendant and asked her to come upstairs because the child was moaning and in “shock.” They slapped Golda, sprinkled cold water on her, and pumped her arms and legs to revive her. When these efforts failed, defendant wrapped the baby in a blanket and fell asleep holding Golda in her arms. The next morning she took the child to the hospital.
Defendant told one officer she did not take Golda to the hospital that night because she wanted to wait until morning to see if the child was better. She told another officer she was afraid to go to the hospital because she couldn’t explain the injuries.
Although defendant denied any knowledge of the oause of the injuries, she told police the bruises might have been caused by the child’s bumping into the side of the crib, the head injuries might have been caused when the child fell off the bed on July 23, and the broken arm and leg might have been inflicted when they tried to revive the child early in the morning of July 26.
Defendant was charged with aggravated battery. Prior to trial defendant filed a motion to suppress her statements. After a full hearing, the trial court denied the motion. The statements were admitted into evidence at trial over defendant’s objection.
At trial, Dr. Gans testified extensively concerning the nature and cause of the injuries. He stated the shoulder bum could not have been caused by the sun, but only by the direct application of heat. The bums on the feet were caused by the application of a hot object, probably a cigar, a cigarette lighter or some hot metal object. The broken arm and leg were caused by the use of considerable force and could not have been caused by pulling the limbs back and forth in the manner defendant described to police. The head injury was not accidental. He surmised the fractures and head injuries were less than forty-eight hours old and were inflicted at the same time. The bums occurred sometime earlier.
Defendant took the stand and told essentially the same story she told police. In addition, she stated she did not suspect her child was being abused. She did not know what caused the injuries but thought the child might have been burned by a cigar while crawling on the floor.
Defendant first challenges her conviction because she was charged with aggravated battery but tried as having aided and abetted the principal, presumably Robert Berkowitz. She claims this practice failed to apprise her of the evidence she would be required to meet at trial and was prejudicial.
By statute and case law this jurisdiction has long held that any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. (K. S. A. 21-3205; State v. Jackson, 218 Kan. 491, 543 P. 2d 901; State v. Williams & Reynolds, 217 Kan. 400, 536 P. 2d 1395; State v. Ingram, 211 Kan. 587, 506 P. 2d 1148; State v. Campbell, 210 Kan. 265, 500 P. 2d 21; State v. Ogden, 210 Kan. 510, 502 P. 2d 654; State v. Edwards, 209 Kan. 681, 498 P. 2d 48; State v. Ridge, 208 Kan. 236, 491 P. 2d 900; State v. Sharp, 202 Kan. 644, 451 P. 2d 137; State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. denied, 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019.) Moreover, defendant’s argument that she should have been charged in the information with aiding and abetting the aggravated battery rather than with the substantive offense has been rejected by this court. (State v. Motor, 220 Kan. 99, 102, 551 P. 2d 783; State v. Curtis, 217 Kan. 717, 723, 538 P. 2d 1383; State v. Turner, 193 Kan. 189, 392 P. 2d 863.)
Defendant further contends there was insufficient evidence for the trial court to instruct the jury on aiding and abetting. Her argument rests primarily on the assumption that the state failed to identify a principal. If this were true defendant’s authorities might prevail, but we believe the record amply identifies the principal. Evidence of defendant’s actions was sufficient for an instruction on aiding and abetting. In a case similar to the instant case, the Supreme Court of Indiana, in Mobley v. State, 227 Ind. 335, 85 N. E. 2d 489 (1949), stated:
“Even if the jury had not believed that violence by the mother caused or helped to cause the child’s death, it reasonably could have found that she aided and abetted Fagan in causing it. We have a statute which provides that every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command or otherwise procure a felony to be committed, may be charged by indictment or affidavit, and tried and convicted in the same manner as if he were a principal. Section 9-102, Burns’ 1942 Replacement; White v. State (1941), 219 Ind. 290, 296, 37 N. E. 2d 937. It is true that the mere presence of an accused at the time and place of the crime alleged is not sufficient to make such accused guilty, but if from the facts and circumstances surrounding defendant’s presence at the time and from defendant’s conduct it appears that defendant’s presence did in fact encourage someone else to commit the act, guilt may be inferred. Schaffer v. State (1930), 202 Ind. 318, 325, 173 N. E. 229.
“Actively to countenance and support the doing of a criminal act by another is to encourage it, within the meaning of the aiding and abetting statute last above referred to, Guetling v. State (1926), 198 Ind. 718, 724, 153 N. E. 765, and a person encouraging the commission of a felony is guilty as a principal and subject to prosecution and conviction the same as the principal, under the statute last referred to. Simpson v. State (1925), 195 Ind. 633, 637, 146 N. E. 747. While it is true that the mere presence of a person at the scene of a crime is insufficient to constitute him a principal therein, in the absence of anything in his conduct showing a design to encourage, incite, aid, abet or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that he assented to the commission of the crime, lent his countenance and approval thereto and thereby aided and abetted it. People v. Smith (1945), 391 Ill. 172, 62 N. E. 2d 669, 673; State v. Fox (1904), 70 N. J. L. 353, 57 Atl. 270. This, it seems to us, is particularly true when the person who fails to interfere owes a duty to protect as a parent owes to a child. See Thornton v. State (1904), 119 Ga. 437, 46 S. E. 640, 641-2.” (pp. 343-44.)
(See also, People v. Henson, 33 N. Y. 2d 63, 304 N. E. 2d 358, 349 N.Y. S. 2d 657 [1973].)
Wé believe the reasoning of the Indiana court is sound and the rule stated in Mobley should be adopted in this state. Applying Mobley here, we find the evidence indicates defendant was aware of the presence of suspicious bums and bruises on her child for several days prior to hospitalization on July 26. She did not take any action to discover the cause of the injuries or to prevent their reoccurrence. The child was in the sole custody and control of defendant and Berkowitz. Even when she discovered the child was in “shock,” she failed to seek medical aid for nearly ten hours. When authorities questioned her about the cause of the injuries defendant could offer no explanation; however, she became disturbed when hospital authorities told her they had called police. Defendant’s explanation for the injuries was contrary to the facts according to Dr. Gans. There was sufficient evidence for the jury to receive an aiding and abetting instruction.
Defendant submits the jury was exposed to color photographs which were so shocking and repetitive as to prejudice her rights. Nine photographs were taken by Salina police on July 26 and introduced into evidence at trial. Exhibit 1 showed the bum on the shoulder, which defendant said was a sunburn. Exhibit 2 showed bruises on the left arm. Exhibits 3 and 6 showed bruises on the child’s face. Exhibits 4, 5, 7, and 10 showed the circular burns to the top and bottom of the child’s feet. Exhibit 9 showed bruises on the legs and buttocks.
This court has repeatedly held that the admission of photographs is not error when it assists the jury in understanding the nature, degree and extent of injuries, the violent nature of the crime, or a physician’s testimony. (For recent cases, see State v. Steward, 219 Kan. 256, 547 P. 2d 773; State v. Watkins, 219 Kan. 81, 547 P. 2d 810; State v. Sully, 219 Kan. 222, 547 P. 2d 344; State v. Jones, 218 Kan. 720, 545 P. 2d 323; State v. Anicker, 217 Kan. 314, 536 P. 2d 1355; State v. Randol, 212 Kan. 461, 513 P. 2d 248.) The pictures were used by the attending physician to describe the nature of the injuries he treated. Furthermore, the nature and cause of the injuries were controverted and it was incumbent on the jury to determine whether they were the product of accidental or intentional acts. We have viewed the photographs and find no prejudicial error in their admission.
Defendant’s third point alleges the jury was exposed to evidence of prior crimes and was not given a limiting instruction. (K. S. A. 60-455.) Evidence of the alleged crimes was introduced during the state’s direct questioning of defendant’s mother, who testified as to burns and other injuries she had observed. In response to defendant’s objection, the state told the court it was proceeding on the theory all the injuries were part and parcel of one continuous battery. The witness then told the jury the child appeared to be normal until July 16 or 17 when she noticed the bum on the shoulder. She questioned defendant, who told her it was a sunburn. Later, defendant told her mother Berkowitz said it was a sunburn, but it really was not. On July 19, defendant’s mother noticed burns on the child’s feet when she went to pick up the child from Berkowitz. On July 24 she again saw the child and it was normal, but had facial bruises. On July 26, she saw new injuries when she and defendant took Golda to the hospital.
Defendant’s argument fails. First, the state proceeded on the theory all the injuries constituted one crime although composed of separate acts. A similar practice was approved by this court in State v. Fahy, 201 Kan. 366, 440 P. 2d 566. There, the defendant was convicted of child abuse and torture. The state introduced evidence of abusive acts spanning two days. Because the dates were set out as specifically as possible in the information and the evidence was the same as presented at preliminary hearing, the defendant was not prejudiced.
Even if the state had not proceeded on the single battery theory, this court has allowed evidence otherwise relevant in a criminal prosecution to be admitted when it shows a crime other than that charged. (State v. Rasler, 216 Kan. 582, 533 P. 2d 1262; State v. Crowe, 207 Kan. 473, 486 P. 2d 503.) Since the testimony was admitted independent of K. S. A. 60-455, a limiting instruction was not required. (See, State v. Burnett, 221 Kan. 40, 558 P. 2d 1087.
Defendant next complains the trial court erred in denying her motion, to suppress her in-custody statements because they were the product of an illegal arrest." The argument fails for two reasons. First, based upon the facts obtained by Officer Edgington at the hospital, he had probable causé tq believe a felqny had been committed by defendant and the arrest was proper. (State v. Curtis, supra; State v. Boyle, 207 Kan. 833, 486 P. 2d 849.) Second, courts have not held that all statements made during an unlawful detention are per se excluded. They are excluded only if they are involuntary and a product of the detention. (State v. Barry, 216 Kan. 609, 533 P. 2d 1308; State. v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. denied, 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981; Walton v. United States, 334 F. 2d 343 [10th Cir. 1964], cert. denied, 379 U. S. 991, 13 L. Ed. 2d 612, 85 S. Ct. 706.)
The trial court held a hearing and determined the statements were voluntary, and defendant had been properly advised of her Miranda rights, which were intelligently and knowingly waived. That ruling is binding on this court if it is supported by substantial competent evidence. (State v. Barry, supra at 616; State v. Wilson, 215 Kan. 28, 523 P. 2d 337.) We think the record amply supports such a finding. Defendant was advised of her rights on several occasions. Each officer testified she indicated she understood those rights and was willing to speak with them. On several occasions she requested to speak with certain officers. She did not request an attorney. Officers testified she was never threatened. They offered her food and drink; when she refused it, they allowed her mother to bring food to her. The trial court did not err in admitting her statements.
As defendant’s fifth and sixth points, she alleges her motion for acquittal was erroneously denied and there was insufficient evidence to sustain her conviction.
The rule for assessing a motion for acquittal was set forth in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, where this 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. Holloway, 219 Kan. 245, 547 P. 2d 741; State v. Rasler, supra; State v. Williams & Reynolds, supra.)
In State v. Roy, 203 Kan. 606, 455 P. 2d 512, we stated:
“In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction stands. . . .” (p. 607.)
(See also, State v. Faulkner, 220 Kan. 153, 551 P. 2d 1247; State v. Martin, 206 Kan. 388, 480 P. 2d 50; State v. Trotter, 203 Kan. 31, 453 P. 2d 93; State v. Scoggins, 199 Kan. 108, 427 P. 2d 603; State v. Shaw, 195 Kan. 677, 408 P. 2d 650.)
A review of the record discloses sufficient evidence to support the conviction.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Appellant, Louis Herald Jakeway, appeals from a conviction of felony theft (K. S. A. 21-3701). The theft consisted of taking a currency and coin collection, two rings and other items from the place of business of Lawrence Deaver in Garden City, Kansas. Appellant is the former son-in-law of Deaver. The facts in evidence will be developed-as we consider the respective specifications of error raised by appellant Jakeway.
Appellant contends that his conviction should be reversed because he was not formally arraigned as required by K. S. A. 22-3205. When the appellant and his attorney appeared before the district court on April 15, 1975, the court was advised that a copy of the information had been delivered to appellant. However, appellants attorney requested and was granted a continuance to prepare for argument on a motion to suppress evidence. The arraignment and the motion to suppress were set for May 30. Later, this setting was postponed to June 25, at the request of defendants counsel. On that date the motion to suppress was heard and overruled and a jury trial date was set for August 18 and later continued to September 16. The appellant took part in the trial proceedings which began on that date and no objection was lodged because of the lack of formal arraignment until after the verdict was entered. Apparently arraignment had been overlooked by the county attorney and the trial court proceeded with the trial as if a plea of not guilty had been formally entered.
The absence of a formal arraignment and plea of the defendant is effectively waived by the acts of the defendant in going to trial without objection and submitting the question of his guilt to the jury impaneled to try him, contesting every question in the case as fully as if there had been a formal arraignment, and not raising any objection as to the nonobservance of the formality until the verdict of the Jury is returned. (State v. Trams, 189 Kan. 393, Syl. 3, 369 P. 2d 223; In re Bundy, 144 Kan. 64, 58 P. 2d 80; State v. Cruse, 112 Kan. 486, 212 Pac. 81; State v. Stitz, 111 Kan. 275, 206 Pac. 910.) The requirement of arraignment and plea was effectively waived by appellant in this case.
Appellant challenges the order of the trial court overruling the motion to suppress allegedly illegally seized evidence. Because of the different circumstances giving rise to this claim we must consider the question of the admissibility of certain keys separately from the question of admissibility of a box and its contents. We first consider the admissibility of the box and its contents.
A warrant for the arrest of appellant had been issued on an entirely separate and distinct charge which concerned a burglary of the Pappas Concrete Company. The Finney County officers proceeded to the mobile home of a Mr. Palacio, where appellant had been staying, but appellant was not there. They did talk to both Mr. Palacio and to a Mr. Besel at that time. Both were advised of the purpose of the official visit. Later that evening Mr. Besel called the officers and they returned to the mobile home of Mr. Besel, which was next door to Mr. Palacios mobile home. Mr. Besel gave the officers a steel box which he said had been given to him by Mr. Jakeway for safekeeping. Mr. Besel stated he did not know what was in the box but he had kept it in his mobile home.
The officers noted the box was locked and they remembered seeing a ring of keys in one of the rooms in the mobile home of Mr. Palacio. On previous inquiry they had learned the room was being used by Mr. Jakeway. At the request of the officers, Mr. Palacio let them into his mobile home and the officers obtained the keys which opened the box. The box contained a pistol, 24 $1.00 bills, 15 $2.00 bills, 2 $5.00 bills, a $10.00 bill, a coin collection, two rings and other items. The currency, coin collection and the rings were later identified by Lawrence Deaver as belonging to him and his wife and were the basis for the felony theft charge presently before this court.
During the trial Jakeway testified that he had never previously seen either the box or the contents, that he had not given them to Besel for safekeeping and that he had never owned or possessed them.
One who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property. (State v. Boster, 217 Kan. 618, 539 P. 2d 294; State v. Sumner, 210 Kan. 802, 504 P. 2d 239; Brown v. United States, 411 U. S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565.)
The box and its contents were in the possession of Mr. Besel prior to the time they were delivered to the police. No premises were searched to obtain this property and Jakeway denied that he owned or possessed the seized property. Therefore it is clear that Jakeway was not the victim of an invasion of privacy when the police obtained the box and its contents and he had no standing to challenge the admissibility of this evidence. The trial court properly overruled the motion to suppress these items.
We now direct our attention to the keys. Appellant denied owning or .possessing these keys yet they were obtained by the police inside Mr. Palacio’s mobile home from a night stand in a room being used by appellant. He did have a proprietary or possessory interest in the room from which the keys were taken.
At the outset it should be noted that only unreasonable searches and seizures are prohibited but unreasonableness cannot be stated in rigid and absolute terms. (Harris v. United States, 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098; State v. Boyle, 207 Kan. 833, Syl. 3, 486 P. 2d 849.) All searches without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid search warrant. (Stoner v. California, 376 U. S. 483, 11 L. Ed. 2d 856, 84 S. Ct. 889, reh. den. 377 U. S. 940, 12 L. Ed. 2d 303, 84 S. Ct. 1330.) One of the exceptions to the requirement of a search warrant is a search made with consent or waiver voluntarily, intelligently and knowingly given. (State v. Boyle, supra; see also Anno: Search and Seizure — Consent, 31 A. L. R. 2d, § 3, p. 1081.)
Where two persons jointly occupy living quarters, the consent of one of them may be sufficient to form the basis for a valid search. (State v. Boyle, supra; White v. United States, 444 F. 2d 724 [10th Cir. 1971].)
In State v. Boyd, 206 Kan. 597, 481 P. 2d 1015, cert. den. 405 U. S. 927, 30 L. Ed. 2d 800; 92 S. Ct. 977, McCarty and Boyd occupied living quarters above a Topeka tavern. McCarty gave his consent to search the premises. It is held McCarty’s consent was sufficient to form the basis for a valid search.
In State v. Stein, 203 Kan. 638, 456 P. 2d 1, cert. den. 397 U. S. 947, 25 L. Ed. 2d 128, 90 S. Ct. 966, we hold a high school principal having custody and control of school lockers and having access thereto, and possessing a master list of all lock combinations and a key which will open every locker, is empowered to open and search the same for contraband upon the request of officers.
Now let us turn to the facts of the present case. Mr. Palacio was the owner and lived in the mobile home from which the keys were taken. The record does not indicate that he was in the business of renting rooms in his mobile home. Mr. Palacio and Mr. Jakeway were mutual friends and acquaintances. Mr. Palacio had obtained a divorce and lived alone until September 1974. Mr. Jakeway, pending divorce proceedings, moved from his home to Mr. Palacio’s mobile home in September 1974. Jakeway moved his belongings into the bedroom where the keys were found. He used other rooms in the mobile home and had stored some clothes in another room. He remained until January 1975, so his occupancy was temporary. At the time of the trial he had returned to live with his former wife. There was testimony by Mr. Palacio that during these four months Mr. Palacio had never entered the room in which Mr. Jakeway slept except when he permitted the officers to pick up the keys. He further testified Mr. Jakeway did pay some rent for use and occupancy of the room and the mobile home. Mr. Palacio testified that he alone had a key to the mobile home. From these facts it would appear that the arrangement was temporary and between mutual acquaintances. There is no question that Mr. Palacio intelligently and knowingly gave his consent for the officers to enter the premises to pick up the keys.
The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light-of attendant circumstances by the trier of facts and will not be overturned on appeal unless clearly erroneous. (State v. Boyle, supra; State v. Stein, supra; White v. United States, supra.) The trial judge noted that the arrangement for occupancy was between friends and of a temporary nature. Mr. Palacio was the owner in charge of the premises and had the only key to the mobile home. The officers were aware of the location of the keys by reason of their previous entry to execute the arrest warrant. They had been given the box by Mr. Besel and could have opened the same by force without the keys. It seems reasonable under the circumstances that the officers should obtain permission from Mr. Palacio to get the keys rather than damage the box. Their search was limited to entering the room and picking up the keys from the night stand in one of the rooms where appellant had his belongings.
We cannot say that the trial court’s order was clearly erroneous on the basis of the evidence at the trial. The order was proper since it was based upon a finding that the search and seizure was a consensual search of jointly occupied premises by one having authority.
Appellant’s next point is that the state failed to establish the value of the items taken. Among the items taken and introduced in evidence were 42 silver certificates issued by the United States Government. This currency alone had a face value of $74.00. Judicial notice may be taken of the value of the currency and coin issued by the United States Government and proof of its value is unnecessary. (State v. Pigg, 80 Kan. 481, 103 Pac. 121.)
In addition appellant contends there was no evidence to establish that the money introduced in evidence was that taken from the place of business of Mr. Deaver. Mr. Deaver testified that he and his wife habitually saved silver coin and silver certificates received by them in the business. These were kept in a box below the counter in the store. Not only did he testify that the currency taken from the box looked like that he had accumulated but he was able to positively identify two of the bills. One was a $2.00 bill which had the name “Mrs. John Dohogne” written on the face of it. The other was a $1.00 bill similarly marked with the word “Hawaii.”
In order to sufficiently identify money to make it admissible as relevant evidence, it is not necessary that the witness identify each bill or coin separately; it is generally sufficient if the witness testifies it appears to be the same money alleged to have been stolen after considering its amount, denominations, packaging and general appearance. (State v. Watkins, 219 Kan. 81, 547 P. 2d 810; State v. Baker, 219 Kan. 854, 549 P. 2d 911.) The lack of positive identification of money as the same money alleged to have been stolen goes to its weight as evidence and not its admissibility. (State v. Ridge, 216 Kan. 73, 530 P. 2d 1213; see also State v. Oswald, 197. Kan. 251, 417 P. 2d 261.)
The admissibility of physical evidence is a matter resting within the sound discretion of the trial court and is to be determined by the court on the basis of the relevancy of the evidence and its connection with the accused and the crime charged. (State v. Beard, 220 Kan. 580, 552 P. 2d 900.)
There is sufficient evidence of identification here and the currency, coin and other items were properly admitted in evidence.
The next point raised relates to juror misconduct. Appellant complained when the complaining witness, Deaver, was seen conversing with a juror during a recess. Both Deaver and the juror were called into the chambers of the trial judge and questioned. They testified they knew each other by sight, they did not discuss the pending case and they merely exchanged comments about the juror’s business of hauling hay. The juror asked Deaver why he was in the courthouse and he replied that he was a witness in a case.
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.)
In the present case the matter was explored by the trial court and no prejudice was found. No abuse of judicial discretion appears in the record before us. (See State v. Rhodes, 219 Kan. 281, 283, 546 P. 2d 1396.)
Appellant’s remaining points concern the trial court’s refusal to direct a verdict in his favor and to grant a new trial. These points are based upon those matters specifically covered in the preceding points and are without merit.
The judgment on conviction is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Donald W. Howard appeals from his conviction by a jury of unlawfully using a credit card to obtain property of the value of more than $50 in violation of K. S. A. 21-3729 (1) (a), a class E felony, and from his sentence to imprisonment for not less than one nor more than five years.
The main thrust of defendant’s argument on appeal is that the statute requires that a credit card be physically produced and displayed in the commission of the offense. Based upon this premise, Howard contends that the evidence failed to establish a prima facie violation of the statute, and that the court erred in its correlative instructions to the jury. Additionally, he claims that the court erred in refusing him a requested continuance, in declaring a mistrial, and in making reference in the instructions to matters not in evidence.
Mrs. Glen Taylor was employed at a Safeway store in Wichita, Kansas on March 27, 1974. At approximately 10:45 o’clock that morning she took a coffee break, and at the end of the break she placed her purse on a shelf inside of the courtesy booth. Next, the defendant was observed in the store. He walked past the manager at the number one checkstand, proceeded out the door, entered a brown car, and drove off. Shortly after 11 o’clock a. m. the manager found Mrs. Taylor’s purse lying open on the floor, six to twelve feet away from the courtesy booth. Her billfold, containing her Sears credit card, social security card, and Missouri driver’s license, was missing. The credit card was in the name of Glen Taylor. The card had not been cancelled or revoked, and the Taylors had not given anyone permission to use it.
On the same date defendant and Terence Walters appeared at the television department of a Sears store in Wichita. Defendant stated that his name was Glen Taylor. He selected a nine-inch portable color TV set priced at $279.95, plus tax. He purchased it on credit, giving the clerk the number of the Glen Taylor credit card account. Howard had the number written down on a piece of paper; he did not show a credit card to the salesman. When asked for further identification he said that he had to go downstairs, that his wallet had been stolen, but his wife had her identification with her. The defendant left and returned shortly, producing Mrs. Taylor’s social security card and Missouri driver’s license, and saying that these belonged to his wife. Defendant signed the sales slip “Glen Taylor” and then left the store, taking the TV set with him.
That afternoon, the defendant and Walters entered King’s Pawn Shop in Wichita and attempted to pawn the portable color TV set, which was still wrapped and in the original box. The proprietor refused to make the loan and Howard and Walters departed, leaving behind the wrapping paper and sales slip.
Later that day, at approximately 5 o’clock p. m., defendant and Walters entered Local Loan North, another Wichita pawn shop, and pawned the portable color TV set for $100. Defendant again represented himself to be Glen Taylor and had that name written on the pawn ticket. The set was identified by serial number.
The statute involved reads in applicable part as follows:
K. S. A. 21-3729. “(1) Unlawful use of a credit card is any of the following acts done with intent to defraud and for the purpose of obtaining on credit money, goods, property, . or . services . . .:
“(a) Using a credit card issued to another person or entity without the consent of the person or entity to whom it is issued; or
“(b) Knowingly using a credit card, or the number or description thereof, which has been revoked or canceled; or
“(c) Using a falsified, mutilated, altered or nonexistent credit card or a number or description thereof.
“(2) The term ‘credit card’ as used herein means an identification card or device issued by a business organization authorizing the person or entity to whom it is issued to purchase or obtain goods, property or services on credit.
“(4) Unlawful use of a credit card is a class E felony if the money, goods, property, services or communication services obtained within any seven (7) day period are of the value of fifty dollars ($50) or more . . .”
The information charged a violation of subsection (a) substantially in the words of the statute: that the defendant did “unlawfully, wilfully with the intent to defraud Sears, Roebuck and Company . . . and to obtain property, to-wit: a Sears brand color television set, 54260607, and 1 pair of mens dark brown 14 inch western boots, size 10D, of the value of over $50, . . . use . . . Sears Credit Card No. 7-50201-501459, issued to Mr. Glen Taylor without the consent or authority of said Mr. Glen Taylor.”
The trial court instructed on the elements of the offense (see PIK Criminal, 1975 Supp. § 59.34) in language substantially following the statute and the information, and in addition, and over the defendant’s objection, gave instruction No. 7, as follows:
“To find that the defendant ‘used a credit card’, you must find either:
“1. That the defendant displayed or physically delivered the credit card for the purpose of obtaining property, goods or services; OR
“2. That the defendant acquired a number from a credit card and used that number for the purpose of obtaining property, goods or services.”
Defendant points out that subsections (b) and (c) of K. S. A. 21-3729 (1) make it unlawful, under certain circumstances not here present, to use the number or description of a credit card. Subsection (a) contains no such language. Thus defendant claims that the evidence is insufficient to make out a prima facie case because there is no evidence that he displayed the actual credit card or “used” it in making the “purchase.” He likewise contends that paragraph (2) of instruction No. 7 misstates the law. Ingenious as this line of argument is, it is erroneous. “Use” is a verb of common usage. Ordinarily it means to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end. Webster’s New Collegiate Dictionary, 1975.
The state’s evidence, liberally construed as it must be, shows that the defendant pilfered three items — the credit card, the social security card, and the driver’s license. He then utilized all three without the consent of the owner for the purpose of obtaining fraudulently, on credit, the TV set. He availed himself of the credit card and took from it the credit account number for a fraudulent purpose. Such use of the card, we believe, is clearly proscribed by the statute. Instruction No. 7 (2) required the jury to find that the defendant “acquired a number from a credit card and used that number . . .” The taking of a number from a credit card for the stated purpose is an unlawful use of the card under the statute.
We are not unaware or unmindful of the rule requiring strict construction of penal statutes in favor of the persons sought to be subjected to their operation. State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P. 2d 1011; State v. Bishop, 215 Kan. 481, 483, 524 P. 2d 712. The rule simply means that ordinary words are to be given their ordinary meaning. It does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language. State v. Walden, 208 Kan. 163, 166, 167, 490 P. 2d 370. Upon a careful reading of the statute, could one be led to believe that defendant’s actions were not forbidden? Clearly not. He used the card to gain the account number. He represented that he had the card and that it had been issued to him. He usurped the credit that the card represented. The clear import of the statute here under consideration is to bar fraudulent use of credit cards, and that includes the fraudulent use disclosed by this record. We hold that the evidence discloses a prima facie violation of the statute, and that instruction No. 7 was not erroneous.
Defendant gave notice of alibi and listed as his alibi witness, Willie Coleman. He issued two subpoenas for Coleman, giving first his residence and later his employment address. The sheriff was unable to find the witness. Defense counsel’s secretary attempted to reach Coleman by telephone and talked with his sister, who agreed to tell him when to appear. When the defense was ready to present its case on the third day of the trial, the witness failed to appear. The court granted a half-day continuance until 1:30 o’clock that afternoon. Counsel for the defendant then sought a two-week continuance which the court denied. There was no showing of what the witness would say, nor was there any indication that the witness could be reasonably expected to appear if a continuance were granted. On motion for new trial defense counsel stated that the address given on the subpoena, prepared by counsel’s secretary, showed “911 Piatt” and this was an error; the correct address was “1911 Piatt.” The correct address would appear to be only 15 to 20 blocks from the Sedgwick County courthouse where the case was tried. K. S. A. 22-3401 provides that continuance may be granted to either party for good cause shown.
As Justice (now Chief Justice) Fatzer stated in State v. Hemminger, 203 Kan. 868, 870, 457 P. 2d 141, cert. den., 396 U. S. 1045, 24 L. Ed. 2d 689, 90 S. Ct. 696:
"The well-established rule in this jurisdiction is that the granting or denial of continuance in a criminal prosecution is largely within the sound discretion of the district court, and its ruling will not be disturbed in the absence of a showing that there has been an abuse of discretion which has prejudiced the defendant’s substantial rights. . . .”
And see, State v. Bentley, 218 Kan. 694, 695, 545 P. 2d 183.
When a continuance is requested during the trial of a case, the trial judge must weigh the many factors involved — possible prejudice to the defendant, the diligence (or lack of it) disclosed in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness’ appearance at a later date if the continuance is granted. Upon the facts disclosed in this record, the trial judge did not abuse his discretion in failing to grant the requested two-week continuance.
Defendant next claims that the trial court erred in declaring a mistrial. A jury was selected on the morning of September 16, 1974. The voir dire was completed shortly before noon and the trial was recessed until after lunch.
It is apparent from the record that the court advised counsel that one of the jurors came to him during the noon hour and disclosed that the juror had heard from his wife over the lunch hour. His wife had gone to school with the defendant and she was very much afraid of him. She placed substantial pressure on her husband regarding how he might vote and how he might aot as a juror in the case. Counsel for the defendant conferred with his client and advised the judge that the defendant would not consent to be tried to a jury of less than twelve. When court reconvened the judge explained to the jury that something had come up during the noon hour which required the court to excuse one of the jurors. Since the defendant did not wish to proceed with a jury of less than twelve, the judge declared a mistrial and excused the remaining eleven jurors.
Defendant moved promptly for a judgment of acquittal for the reason that the jury had been sworn and jeopardy had attached. The court stated:
“. . . [T]he Court is bound to see that this defendant gets a fair trial. “Now, after talking to the juror that the Court excused, it’s my opinion . . . tlrat it is impossible for him to sit as a juror in this case and give this defendant a fair trial. . . . And it’s my opinion that . . . the Court has not only [the] right, but in this particular case [the] duty, to declare a mistrial and start all over again. . . .”
A new panel of jurors reported that same afternoon, a new jury was selected, and the trial proceeded. Appellant contends that it was error for the court to declare a mistrial without providing in the record sufficient basis for the declaration of a mistrial and without affording counsel an opportunity to inquire of the particular juror on the record, the nature of the problem he had in serving on the jury.
As we have noted, the record indicates that the judge conversed with the juror off the record during the noon hour. He then advised counsel of the situation so that the parties were not surprised by the action taken by the judge when court reconvened. Counsel for the defendant made no request to examine the juror in open court.
A fact situation similar to that in the case at bar is found in State v. Hansford, 76 Kan. 678, 92 Pac. 551. During trial a juror announced that when he heard certain testimony, it refreshed his memory and aroused such a prejudice that he felt that he could not try the case fairly. The trial judge dismissed the juror and declared a mistrial; defendant objected to the ruling and raised double jeopardy when the case was brought to trial. Upon appeal this court said:
“. . . If the disqualification is such as would frustrate the ends of justice and prevent a lawful verdict the rights of the defendant, as well as the interests of the public, require the court to arrest the progress of the trial and start afresh with a legal and impartial jury. If during the trial the court should learn of a corrupt interference with a juror or that through some outside sinister influence one of the jury had agreed to vote for conviction regardless of the testimony it would be conceded that a pressing necessity for the discharge of the jury had occurred. When a juror, as in this case, confesses to an incurable prejudice which disqualifies him from exercising the functions of a juror or acting impartially as between the parties a continuance of the trial would be a farce, as the objeot of a trial — a fair and impartial verdict — becomes an impossibility. After learning of this situation by a judicial inquiry nothing was left for the court except to discharge that jury and impanel another.
“The sufficiency of the inquiry and of the finding of a necessity for the discharge is challenged. To warrant a discharge it has been decided that there must be, ‘first, an absolute necessity for such discharge; second, the court must make inquiry and find and determine that such necessity existed at the time of the discharge; and, third, the essential facts as to such necessity and the finding of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge.’ (The State v. Allen, 59 Kan. 758, 761, 54 Pac. 1060.) . . . The facts brought out in the inquiry, as well as the findings of the court, were made a matter of record, thus complying with thé rule stated in The State v. Allen, supra.” (pp. 682-687.)
For other cases dealing with similar problems, see State v. Gray, 189 Kan. 398, 369 P. 2d 330; State v. Finley, 208 Kan. 49, 490 P. 2d 630; and State v. Rhodes, 219 Kan. 281, 546 P. 2d 1396.
It is within the discretion of the trial court to declare a mistrial in a criminal jury trial when it is shown that a juror is or becomes so prejudiced during the trial that he or she cannot serve as a fair and impartial juror and give both the state and the defendant a fan trial. Applying that rule to the case before us leads us to the conclusion, that the trial judge did not abuse his discretion in the action taken. We note that the essential facts showing the necessity for this action appear in the record after the mistrial was declared. The better practice would be to have the juror sworn and to permit counsel to examine him in open court, out of the hearing of the other jurors. However, counsel were here notified of the developments by the trial judge during the noon recess and neither counsel requested an opportunity to examine the juror nor was there any objection by the defendant to the procedure prior to the time the juror was excused and a mistrial was declared. We conclude that the record establishes a sufficient basis for excusing the juror and declaring a mistrial, and that under the circumstances it would have been error to proceed with trial with this juror as a member of the panel.
Finally, defendant contends that it was error for the court to make reference in instructions 2 and 6 to a pair of mens boots, since the boots were not in evidence. The information charged the defendant with the fraudulent use of a credit card to obtain a TV set and a pair of boots. Defendant’s objection to the state’s proffered testimony relating to the boots was sustained. The court instructed the jury that the state was not required to prove that the defendant obtained both the TV set and the boots. Under the circumstances this instruction was proper.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action by Frank B. Ward against the appellants to recover damages for false arrest. A jury found that he was entitled to damages to the extent of $600, and judgment was entered for that amount. Defendants appeal.
The plaintiff was a carpenter by trade, was thirty-nine years of age and had been in. the United States army, and was drawing veteran’s compensation. On the evening of November 21, 1931, he and a companion had come down on the street and had been listening to the Salvation Army at a corner. - It began to rain,- and he and his companion went across the street 'tó the store of S. H. Kress & Co., and were standing near the dóór 'talking when the police came up and interviewed plaintiff. He-had been pointed out by one of those.acting for the company, and Bastien, the manager, came up and told the officer to take him down, “He looks like a snake [sneak] and a crook.” He was arrested by Sweet, the policeman, and held in the jail for a day and a half, until Monday, the 23d of November, 1931. No one appearing to prosecute, he was then discharged. The general verdict was against all of the defendants, and with it the jury returned answers to special questions that had been submitted as follows:
“1. Was the defendant Bastien present at the time and place officer Sweet questioned the plaintiff on the evening of November 21, 1931? A. Yes.
“2. Was the defendant Wischer present at the time and place officer Sweet questioned the plaintiff on the evening of November 21, 1931? A. Yes.
“3. Was the plaintiff loafing or loitering in the defendant company’s store on the evening in question? A. No.
“4. If you answer the foregoing question in the negative, then state what the plaintiff was doing in the defendant company’s store on the evening of November 21,1931. A. Standing in out of the rain.
“5. If you find in favor of the plaintiff, then state how much you allow, if any, for (a) actual damages, $300; (5) punitive damages, $300.”
Defendants complain of the overruling of their demurrer to plaintiff’s evidence, that the findings and verdict were not sustained by the evidence, and further that there was error in the instructions. The complaint as to the sufficiency of the evidence and as to defendants’ demurrer to evidence, as well as to the findings and verdict, arose mainly through plaintiff’s speaking of the defendant, Bastien, the general manager of the S. H. Kress & Company, as a floor walker of the store. He stated that he had seen Bastien acting in the manner of a floor manager in the store, but there was no mistake in the identity of Bastien, as the plaintiff at the trial pointed out Bastien as the one who directed the arrest. Bastien, it appears, was wearing a blue suit of clothes, while defendant Wischer; the floor walker, was wearing a gray suit. The witness stated that it was the man in the blue suit, indicating Bastien, that had told the officer that plaintiff was a sneak and a crook, and to take him down. It appears that it was Wischer, the man in the gray suit, who called the attention of the police officer to the fact that plaintiff was in the store and requested the officer to investigate plaintiff. Wischer testified that Bastien requested him to have the officer investigate plaintiff,' and on his request pointed out plaintiff to the officer, and further that he was present when the officer questioned plaintiff. When the interview was in progress the testimony is that Bastien, the manager, came along and directed the arrest in the manner stated.
There is no real trouble as to the identity of Bastien, the manager, or Wischer, the floor walker; each of them was definitely pointed out at the trial. Bastien admitted he was the manager, and Wischer said that a part of his duties was floor walking, and that he called the attention of the police officer to plaintiff with the request that he interview and investigate plaintiff.
In his testimony Bastien denied that he ordered the arrest of plaintiff, but the evidence in the case was to the contrary, and that conflict in the evidence has been settled by the jury in favor of plaintiff.
It is said that Bastien had a right, as a citizen, to have an officer make an investigation, and that evidently the officer arrested the plaintiff on his own judgment after making the investigation. It is contended that a citizen acting in good faith has the right to request an officer to investigate supposed violators of the law, or of grounds for arrest, and where the officer, after making investigation, on his own judgment makes an arrest,' the party requesting the investigation would not be responsible for such arrest. Here, however, Bastien did more than that. He directed the arrest, and it was at once made by the officer. The part taken by the two employees of the company in securing an arrest, and the holding of plaintiff in prison from Saturday evening until the following Monday morning, was sufficiently shown by the evidence, and the motions of defendants were rightly overruled.
The challenged instructions appear to be fair enough toward the defendants. In one of them it was said:
“You are further instructed that when a person in good faith, acting as a reasonable, cautious and prudent man under the circumstances upon the information which he has received, believes that the actions of a person are suspicious, he has a right to inform the police of the fact and of his belief so formed, and if in doing so he acts without any malice or sinister motive, he is not responsible for any arrest which may follow, made by the police authorities acting upon their own volition although based in whole or in part upon the information that he may have given such police authorities, unless you find that such person actually directed the police officer to make the arrest.”
Some complaint is made about the amount of the verdict, but in view of the arrest and imprisonment, and under the evidence, it cannot be regarded as excessive.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action which originated before a justice of the peace to recover the purchase price of a quantity of fertilizer which defendant had bought from a farmers’ association at the railway point of Dennis, in Labette county.
Plaintiff alleged that it was the owner of the fertilizer which was in the possession of the farmers’ association under a consignment agreement between plaintiff and the association of several years’ standing; that on September 20, 1931, the association, as agent of plaintiff, had sold to defendant ten tons of fertilizer at $26.50 per ton; that defendant had failed to> pay the amount due, to wit: $265; and for this sum and interest it prayed judgment.
Attached to plaintiff’s bill of particulars was a copy of the consignment agreement dated and executed by plaintiff and The Earmers Union Cooperative Association, of Dennis, August 27, 1926. By its terms the association became plaintiff’s agent to sell fertilizer at prices to be furnished by plaintiff, settlement was to be guaranteed in cash on July 1 and December 1 each year for all goods sold. Discounts and commissions were to be dictated by plaintiff. Another provision of the contract read:
“Ownership : All fertilizer consigned to agent; all notes, accounts, cash and other proceeds from the sale of fertilizer are the property of Darling & Company. All cash, notes and accounts received by agent through the sale of Darling’s fertilizer shall be kept separate from other moneys and accounts.”
Plaintiff’s bill of particulars also alleged—
“4. Plaintiff alleges that when said contract was made and executed, the above-named defendant, F. C. Petri, was a director of said corporation and as said director was actively engaged in the management and oversight of the business of said corporation. . . . That subsequent to said 27th day of August, 1926, said F. C. Petri was in and about the office of said cooperative association at Dennis, Kan., two to four times per week, and as a director of said corporation attended all, or nearly all, of the meetings of the board of directors of said corporation subsequent to the execution of said contract. That as a director of said corporation, said F. C. Petri was familiar with the constitution and by-laws of said corporation. . . . That said defendant was familiar with the terms and conditions of the written contracts of said agent corporation.”
The pleaded defense was a general denial.
A jury was waived. The evidence took a wide range and the record is voluminous. It was shown that defendant resided near the business office of the local association, that he had been a stockholder and director of it since its inception nine years previously; that he was actively engaged in the business of buying and selling grain and live stock and was in and out of the association’s business office in Dennis two or three times a week; that he- attended nearly all of the meetings of the board of directors; that in 1931 the association was in financial difficulties. One director testified that as early as March, 1931 (nine months before it was adjudged bankrupt), its condition was the subject of solicitous concern on the part of its board of directors. On cross-examination he testified:
“I thought at that time that the business appeared to be in a failing condition. That was my conclusion from the time the matter was discussed in March, 1931. I told the board that. The other members of the board did not exactly agree with my conclusion.”
Some time prior to the purchase of the fertilizer by defendant (which was on September 22, 1931) the association had borrowed a sum of money from defendant upon its promissory note. Payments had been made on this note, so at the time of the fertilizer transaction the balance due thereon was $245 and $13 accrued interest, totaling $258. The association had an account for miscellaneous items of goods supplied to defendant and his tenant amounting to $41.29. Defendant returned to the association its note and his check for $41.29 in payment for the fertilizer and to settle the account. Plaintiff never received payment for the fertilizer.
The trial court made findings of fact, some of which read:
“4. That the merchandise received by said corporation (The Farmers Union Cooperative Association, of Dennis, Labette county, Kansas) from plaintiff was on consignment and remained the property of plaintiff until sold by said corporation as agent of plaintiff, all as provided by the terms and conditions of said contract.
“5. That defendant did not know the terms and conditions of said written contract of agency at any time during its existence.
. . . . . . . . . .
“8. That on the 21st day of September, 1931, said agent corporation delivered to defendant ten tons of plaintiff’s fertilizer of the market value of $255, and in exchange therefor defendant returned to said agent corporation a certain note which he then owned, payable to himself on demand, with a balance due thereon in the sum of $245, on which there was then due the sum of $13 interest, which note was signed as maker by said agent corporation.
“9. That note which defendant held and owned against said agent corporation was of very little, if any, value on September 21, 1931; that said note was marked paid and canceled, and that instead of cash or a note signed by defendant on the forms provided by plaintiff being received in payment of the purchase price of said fertilizer, there was attempted to be substituted the obligation of said agent corporation, which was then in a failing condition; that such a transaction was not within the scope or apparent scope of said agent’s authority.
“10. That it was the duty of the defendant, as a member of the board of directors of said agent corporation, to know the terms and conditions of said written contract of agency; that said contract was available to said defendant upon search or by inquiry from a manager, C. N. Stafford; that said defendant was negligent in the performance of his duties as a director of said agent corporation in that he failed and neglected to inform himself of the terms and conditions of the written contract of agency or the financial condition of said agent corporation.
‘'Conclusions op Law
“Therefore, the court concludes as a matter of law that judgment should be rendered in favor of plaintiff and against the defendant in the sum of $255, with interest thereon at the rate of six per cent per annum from September 21, 1931, and for costs of suit.”
Judgment was entered accordingly, and defendant appeals.
At the onset plaintiff challenges defendant’s right to be heard by reason of a certain recital in the journal entry of judgment to the effect that when the motion for a new trial came on for hearing counsel for defendant “advised the court that he did not care to submit any argument or authorities other than the arguments heretofore made and the briefs heretofore offered on the conclusion of the trial of said cause in support of said motion.”
Elsewhere it recited:
“And said motion . . . [was] submitted by agreement of counsel without argument and without appearance of counsel either for or against said motion.”
While the ordinary rule is that a motion for a new trial submitted to the trial court without argument presents nothing for appellate review (State v. Toelkes, 128 Kan. 293, 278 Pac. 20, syl.), yet where the legal questions involved in the motion have been briefed and argued at some earlier stage of the trial, the litigant does not lose his right of review when his counsel advises the trial court that he can add nothing to what he has already said in support of his view of the rulings which should have been made in the course of the trial. (Beam v. Farmers Union Mutual Hail Ins. Co., 127 Kan. 234, 238, 273 Pac. 440.)
Turning now to the errors assigned by defendant, it is first contended that the contract between plaintiff and the Farmers Union Cooperative Association of Dennis was between vendor and vendee, and not one of consignment. We cannot assent to that. Contracts of consignments have long been familiar in business circles in this state and have frequently required consideration by this court. (Renoe v. Milling Co., 53 Kan. 255, 36 Pac. 329; McKinney v. Grant, 76 Kan. 779, 93 Pac. 180; Van Arsdale v. Peacock, 90 Kan. 347, 133 Pac. 703; Dannenberg v. Teeters, 126 Kan. 28, 266 Pac. 744; Baldwin Piano Co. v. Lyon County State Bank, 126 Kan. 519, 268 Pac. 859.) And see Annotation — Consignment Contracts, L. R. A. 1917B 626-651; 17 A. L. R. 1437-1441; 43 A. L. R. 1259; 63 A. L. R. 364, 365; 6 C. J. 1091.
From the contract itself, as well as the evidence touching the dealings of the parties under its terms, the relationship of plaintiff and the farmers association at Dennis was that of principal and agent. Departures from the literal terms of the contract were slight and inconsequential. While the association did not always remit cash for sales precisely as specified, that fact did not change the contract from one of consignment to one of sale, nor relieve the association of its character and duty as agent of the plaintiff. When the association sold fertilizer on time, receiving purchasers’ notes therefor, those notes were made payable to' plaintiff and were delivered to it, and the association also signed the notes as security, not merely as indorser or assignor.
In Williston on Sales, 2d ed., 786-788, it is said:
“Where goods are consigned for sale, it is always the hope, and generally the expectation, that the goods consigned will be sold by the consignee and money instead' of the goods be returned to the owner. Nevertheless, it is clear that the consignee is properly to be described as a bailee if his holding is for the consignor and the sale is made by him as agent for the consignor.
. . .
“As against the creditors of the consignee the consignor’s right should also be protected, for the transaction is certainly no more misleading than a conditional sale, and the right of the consignee in the goods is far less than that of the buyer in a conditional sale. The question has not infrequently arisen in regard to the rights of the consignee’s trustee in bankruptcy to the goods thus consigned, and the consignor has been' generally and rightly protected. Nor does the' consignor lose his rights because it was a term of the contract that the consignee should guarantee the payment of the price of any goods sold by him. This is the case of a del credere agent.”
The evidence and the trial court’s finding were that defendant did not in fact know the terms and conditions of the consignment contract under which plaintiff supplied the fertilizer to the association from August, 1926, until September, 1931. Should that fact be permitted to relieve defendant of liability?
Can a director of a corporation be heard to say that he does not know the nature of the business his corporation is conducting? The duty of a director as a member of its board of directors is to direct, guide and manage its corporate affairs. He is in effect a trustee. To discharge these responsibilities it is his duty to keep himself informed of its business activities, and especially in respect to its business policies. In Gay v. Mercantile Institution et al., 37 Utah 280, 288, the plaintiff conveyed a tract of land to defendant to provide for the payment of her husband’s debt. The land was to be sold for the best price obtainable and any balance returned to her. Defendant sold and conveyed the property at a sacrificial price to one Rockhill, a member of its board of directors. He did not know personally of the arrangement whereby the corporation had acquired the property from plaintiff. Plaintiff recovered a judgment for the difference between her husband’s debt to the corporation and the fair value of the .property. Touching Rockhill’s position, the court said:
“But is appellant Rockhill also liable to the respondent? . . . Whenever a corporation of this state exercises its powers, it must do so through the board of directors, since, under our statute (Comp. Laws, 1907, section 324), all corporate powers are vested in and ‘shall be exercised by the board of directors.’ No doubt the majority of the board, when regularly convened, may exercise any of the corporate powers in the absence of the minority. . . . The minority is not only bound by the acts of the majority, but the minority members are charged with knowledge of all the legal corporate acts that are exercised as aforesaid. . . . In 21 A. & E. Ency. L., 2d ed., 896, the law upon that subject is stated in the following language:
“ ‘As a general rule an officer or director of a corporation is chargeable with knowledge of all matters relating to the affairs of the corporation which he actually knows or which it is his duty to know. Thus, in actions by strangers against an officer or director, the defendant will generally be charged with knowledge of all facts relating to the condition and business of the company which he might have known by the exercise of due diligence, whether actually known to him or not.’ ” (pp. 287, 288.)
In one of our own cases, Harvester Co. v. Hardware Co., 101 Kan. 488, 167 Pac. 1057, where the general subject of a director’s duty to know about his corporation’s concerns was under consideration, it was said:
“One form in which the rule has been stated is that the director is chargeable with all matters which it is his duty to know.” (p. 490.) See, also, 14a, C. J. 100.
Under the statute authorizing the creation of cooperative corporations like the one of which defendant was a director, it is provided that it must be managed by a board of directors (R. S. 17-1510), and that the duties of directors should be prescribed by by-laws. The pertinent by-law prescribed by defendant’s association defined the duties of the directors as follows:
“To make rules for the management of the association, and for the several departments and branches thereof that may from time to time be established. To enter into any or all lawful contracts or obligations essential to the transactions of the affairs of the association, and to issue all such notes, bills or other evidence of' indebtedness as the rules and regulations of the association may provide for, and to convert into cash any such notes, bills or other evidence of debt as are in the .custody of the said directors and are the property of the association.”
Defendant testified that he read the by-law years ago.
“Q. You read that language in this book did you not? A. Yes, I suppose I did.”
At the monthly, quarterly and annual meetings of the board of directors, at which defendant was a regular attendant, there must have been a general survey of the corporation’s business — which of its corporate activities were profitable and which were not. In any such survey the fact was bound to come out that the corporation was handling Darling & Company’s fertilizer in carload lots under a consignment contract, and some report must have' been made touching the commissions it earned on that business. It is unnecessary here to say that a director is bound to know the details of his corporation’s activities; he would be unlikely to know with precision whom it owed and who owed it. But it would never do for this court to say that Director Petri was not chargeable with notice of the existence of some such contract as the one under consideration here, under which business had been transacted between plaintiff and the cooperative association of Dennis for five years, and which could only have been undertaken and carried on by the active or passive assent of the association’s board of directors.
It seems perfectly clear that the trial court’s judgment on this question was correct.
Defendant presses on our attention the ordinary rule of law that directors are not personally liable for the wrongful acts or delicts of the corpoi-ation unless they intentionally participate therein. That rule has no bearing on this case. Nor is the present question quite fairly stated as “a lawsuit for the purpose of determining whether defendant must pay twice for ten tons of fertilizer.” But, however many times he pays, he must pay once to the party justly entitled to receive such payment, and that party is the plaintiff.
The other objections to the judgment have been carefully considered, but they warrant no further discussion.
The judgment is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by plaintiff, Gertrude Cummings, who procured a divorce from defendant, Lester A. Cummings, in Texas, for division of property in this state acquired while the marriage relation existed. Plaintiff recovered, and defendant appeals.
The district court made a statement of the nature of the case and returned findings of fact and conclusions of law as follows:
“This is an action for the division of personal property consisting of stocks and bonds located in Wichita, Kan., the same being the result of earnings of husband and wife during coverture. The questions involved are, first, has this court a right to make a division of such property where a divorce was decreed to the wife under the laws of the state of Texas, where alimony was not and could not have been obtained; and second, what amount, if any, should be allowed plaintiff.”
“Findings op Fact
“1. Plaintiff is now a resident of El Paso county, Texas. Defendant is a resident locally. Plaintiff and defendant, Lester Cummings, were married August 2, 1907. In 1918 a home was purchased in Madison, Kan., where defendant was a dentist, and placed in the name of the plaintiff. Defendant was commissioned first lieutenant in the world war, was located at Kansas City, Kan. After his discharge he returned to Madison, Kan., and engaged in the practice of dentistry and also became interested in the oil and gas business, taking up some leases. In the summer of 1922 plaintiff and defendant moved to Chicago, 111., where he was engaged in hospital work. Up until that time they had accumulated approximately $5,000, and among their belongings being certain oil and gas leases. In August, 1922, the defendant husband was stricken with a mental disease, was removed to the government hospital at Marion, Ind., and on November 28, 1924, was in that state adjudged insane, and on the 6th day of December, 1924, was adjudged insane in the probate court of Greenwood county, Kansas. He was confined in government hospitals of Indiana, Illinois and Texas, until the 13th day of November, 1930.
“2. During his confinement his -wife made visits to see him and in December, 1924, was appointed guardian of his estate. The husband received compensation from the government and still receives compensation in the sum of $182.50 per month.
“The wife, during the time her husband was incompetent, handled the property, making sales of the leases, collecting income, and also during her guardianship. The entire amounts involved herein are the results of their joint efforts and of her own efforts while so acting for both. In the latter part of 1930, following confinement in the state hospital of El Paso the defendant was in the state of Texas adjudged sane and on December 1, 1930, he was adjudged sane and restored to full rights of citizenship and possession of his property by the probate court of Greenwood county, Kansas. After such adjudication in Texas and Kansas, and on the 31st day of December, 1930, plaintiff filed an action for divorce against the defendant in El Paso county, Texas. This was with the full knowledge of the defendant, who was part of the time in Texas and part of the time in New Mexico, he going back and forth between the two places. Personal service was not, however, obtained upon him.
"3. In accordance with the laws of Texas substituted service was had on the defendant by out-state notice accompanied by a certified copy of the petition in the divorce action, said notice and copy of petition being received by him while in the state of Kansas. Decree of divorce was granted plaintiff in the disti'ict court of El Paso county, Texas, on April 7, 1930. No alimony was granted nor division of property made by the Texas court, for the reason that the Texas court deemed itself without jurisdiction because of the character of service had upon the defendant and because the personal property was outside the state of Texas.
“4. During the years of the defendant’s incompetency he received support from the government and some money forwarded from the estate; his wife supported herself out of the joint earnings and from allowance made by the probate court of Greenwood county and from the government.
“5. At the time of the decree there was some real estate in Kansas in the name of the defendant, an oil royalty and a Buick automobile; the home in the name of the plaintiff, and the property in question, which is the subject of this litigation, consisting of approximately $14,000 in stocks, bonds and first-mortgage obligations held in the possession of the -Wheeler, Kelly, Hagny Trust Company of Wichita, Kan.
“6. No mismanagement, inefficiency, negligence or bad faith on the part of the plaintiff in the handling of the estate or properties and the business affairs of the parties has been shown.
“Conclusions of Law
“1. The district court of El Paso county, Texas, was without jurisdiction or power to grant alimony or division of property in connection with the decree of divorce, and did not have jurisdiction of the personal property in Kansas.
“2. The decree of the Texas court is res adjudícala on the question of divorce but is not res adjudicata upon the rights of the respective parties in property the result of their joint efforts. No adjudication has ever been made as to the same.
“3. This court has jurisdiction of the parties and the personal property within the state of Kansas for the purpose of making an equitable division thereof.
“4. Under the facts in this case plaintiff should receive as a fair and equitable portion of the property in question five thousand dollars ($5,000), par value, from the stocks, bonds and mortgages held in trust in the Wheeler,. Kelly, Hagny Trust Company of Wichita, Kan., to be set off kind against kind and value against value in so far as it is possible to do so. Plaintiff is also entitled to judgment for costs of this action.”
The meritorious question presented by defendant is whether the district court had jurisdiction to make division of property in this state after the parties were divorced in Texas, the Texas decree not having dealt with the subject of division of property.
The first conclusion of law is in strictness a finding of fact relating to the law of Texas. That law was pleaded in the petition and was proved at the trial. The service on the defendant in the divorce action was constructive only, and he entered no appearance. The property of the parties was all outside the state of Texas, and under the law of Texas the divorce court had no jurisdiction to adjust property rights of the parties.
When the court of a foreign state has jurisdiction in a divorce action to adjudicate property interests, but the decree of divorce is silent on the subject, a court of this state will not consider division of property because the matter is res judicata, (Roe v. Roe, 52 Kan. 724, 35 Pac. 808, followed in numerous subsequent cases.) Manifestly this cannot be true when adjudication was impossible for lack of jurisdiction.
The law of this state recognizes that a wife has an interest in property accumulated by husband and wife while the marriage relation existed. The interest is distinct from alimony. (Hardesty v. Hardesty, 115 Kan. 192, 222 Pac. 102; Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804.) Alimony has for its basis right to maintenance only. Division of property has for its basis right to a just and equitable share of property. (Bowers v. Bowers, 70 Kan. 164, 167, 78 Pac. 430.) In this instance the marriage relation could be and was dissolved, but the divorce court was powerless to wind up the affairs of the marital venture completely. It could not lawfully adjudicate interests in property not within the jurisdiction of the court, and did not attempt to do so. Under these circumstances the question arises whether the wife lost her interest in property in this state which was accumulated while the marriage relation existed. This court is of the opinion she did not, and the district court of this state having jurisdiction over the property was authorized to make a proper division of it.
In the case of Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241, a man married a woman who had a husband living. The man brought an equitable action for annulment of the colorable marriage, and it was held the action could be maintained. It was also held that in such an action the woman could not recover alimony, but the court said that in all judicial separations of persons who have lived together as husband and wife there should be a fair and equitable division of property.
The action in the case of Werner v. Werner, 59 Kan. 399, 53 Pac. 127, was one for divorce. It appeared that although the parties lived together, the marriage was void from the beginning. The pleadings were so framed that it was within the power of the court to grant relief independently of the divorce statute, and the decree was one of nullity. It was held alimony could not be granted, but that the court had power, independently of the divorce statute, to decree a division of property which had been jointly accumulated by the parties.
In the case of Reese v. Reese, 132 Kan. 438, 295 Pac. 690, a woman, supposing she was divorced from her husband, married another. In fact, no divorce had been granted. The second husband procured a divorce and a decree settling property rights. After-wards, and in 1921, the parties commenced to live together as man and wife and continued to do so until 1927, when they separated and the man married another woman. In due time the woman from whom he separated commenced an action for an accounting of prop erty accumulated while they were living together. In the opinion the court described the nature of the action as follows:
“The plaintiff is not seeking to recover as the wife of the defendant. She is not seeking to recover from the defendant on a contract. She is not seeking to recover property held by the defendant in his own right. She is seeking to recover a part of the property which she assisted in accumulating 'and which justly belongs to her.” (p. 441.)
The court held she could recover.
The authorities referred to are controlling here. Plaintiff and defendant were husband and wife in law and in fact until the divorce was granted. She did not sue as wife, but she sought to recover part of the property which justly belonged to her and which the Texas decree did not preclude her from recovering.
Defendant complains of the amount of property awarded to plaintiff, but the complaint is without substantial merit. The question whether a restraining order preventing the custodian of the property from delivering any of it to defendant while the action was pending became moot with rendition of final judgment.
The judgment of the district court is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On December 19, 1932, Robert Hall was arrested upon a warrant issued by Harry Brice, a justice of the peace, charging Hall in two counts with possession and transportation of intoxicating liquors. His bond was fixed at $1,000, which was given by the defendant and approved by the court. After several continuances, and on March 30, 1933, the case came on for trial before the justice of the peace, defendant appearing in person and also with his attorney, Walter Bullock. The state produced its evidence, but the defendant produced no testimony, and upon the testimony the justice of the peace found that he was guilty on both counts, one for possession and the other for transportation of intoxicating liquors, as charged. The sentence was that he pay a fine of $100 on each count and be confined in the county jail thirty days on each count.
The defendant at once perfected an appeal to the district court, and accordingly the proceedings were certified to the district court by the justice of the peace as follows:
“The State of Kansas, Plaintiff, v. Bob (Robert) Hall, Defendant. — Filed this 4th day of April, 1933. — (Sgd.) W. D. LeVan.
State of Kansas, Gray County, ss.:
“I, the undersigned, a justice of the peace of Cimarron township, in said county, hereby certify that the within is a full, true, complete and perfect copy of the proceedings in the above action, had by and before me, at my office in said township, as the same appears of record in my docket 4, page 11.
“Witness my hand, at Cimarron, in said county, this 4th day of April, 1933.
(Sgd.) Harry Brices, Justice of the Peace.’’
The original complaint and warrant were attached to and made a part of the transcript of the proceedings so certified.
The appeal was called for trial in the district court on April 5, 1933. Walter Bullock, his attorney, who represented, him in the trial before the justice of the peace, was present, but the defendant did not appear. His attorney, however, announced that he was ready for trial. A jury was impaneled and then counsel for defendant stated to the court that he had called on the defendant that morning and advised him the case was coming up for trial on that day and asked him to attend. He also stated to the court thát he did not believe the defendant would appear and then asked permission to withdraw from the case. The court declined to grant the request, and the attorney continued in court and participated in that trial of the case, which resulted in a conviction.
In the course of the trial upon appeal, counsel for the defendant, in order to facilitate the trial, admitted that containers of liquor presented in evidence by the state were those found in possession of defendant in his automobile, and further that the liquor therein was intoxicating. The jury found defendant guilty on both counts.
There was a motion for a new trial, in which defendant stated that he did not suppose the trial would occur until the November term, and that something said by the sheriff had led him to that notion. He admitted, however, that Bullock, who had arranged to try the case at the April term, was his attorney and had full authority to represent him and to handle his case. He also stated that his attorney had directed him to appear and had informed him that the trial was to be had at the April term and advised him to attend. After hearing the evidence on the motion for a new trial it was overruled.
In this appeal it is contended that the refusal of the court to allow counsel to withdraw from the case was an abuse of the discretion vested in the court. Defendant recognizes the rule that misdemeanor cases may be tried by counsel for the accused in his absence. It is a matter within the discretion of the court whether a trial shall proceed in the absence of a defendant in view of the circumstances presented. Ah accused may waive his right to be present where, having notice of the case to be tried, he voluntarily absents himself from the trial. (State v. Sexton, 91 Kan. 171, 136 Pac. 901, and cases cited. State v. Johnson, 82 Kan. 450, 108 Pac. 793.)
The defendant, as we have seen, had been fully informed by his counsel that the case was coming on for trial on the day it was actually tried, knew that his counsel would attend the trial and had full authority to represent him, and yet he purposely remained away from the trial. After the trial had been called and a jury impaneled, defendant not then having appeared, counsel requested that he be allowed to withdraw from the case. In view of the circumstances, it cannot be held that there was an abuse of discretion, but rather that the court exercised its discretion properly, by proceeding with the trial at that stage of the.case. The postponement of the case at that time might have given rise to a question of former jeopardy if the withdrawal had been permitted.
It has been assigned as error that the defendant had been tried upon a complaint that was not properly certified. The case was tried on the original complaint, but there was no individual certification written on that paper. As shown, the original complaint was attached to the transcript of the proceedings, and it, with the warrant and other papers, was attached and the whole certified to be a full, true and complete copy of the proceedings in the case. While the original complaint transmitted was a proceeding in the case, there was no individualization of the certificate and no statement that it was the complaint on which defendant was tried. The certification of the complaint has been held to be essential, and that a copy of it is not sufficient or safe. (State v. Anderson, 17 Kan. 89.) Later it was held that the court cannot compel a defendant, convicted of a misdemeanor from which an appeal has been taken, to go to trial over his objection upon a complaint found among the papers which "has not been certified nor authenticated in any manner.” (State v. Anderson, 34 Kan. 116, 8 Pac. 275.) While the complaint had not been certified as the statute provides, it cannot be said that it was not authenticated in any manner. However, it does not appear that any objection was made to a defect in the certification of the complaint. No motion was made to quash it. No plea in abatement was filed, and no objection to the admission of evidence on that specific ground was interposed, nor does it appear that the question was raised on the motion for a new trial.
The objection made on this appeal comes too late. The complaint on which he was tried was verified. It stated a public offense; on it a trial was had before a justice of the peace in which defendant participated. He had full opportunity to learn what the charge was and, still more, that it was a genuine and valid complaint, and he allowed the case to be tried on it clear through to a judgment without objection that the certification was insufficient. On reason as well as authority the irregularity affords no ground for a reversal.
In State v. English, 34 Kan. 629, 9 Pac. 761, it was held:
“When a defendant appeals to the district court from a judgment of a justice of the peace in a criminal action, and there submits to trial without objection, upon a complaint which was not certified to by the justice of the peace, but which was sufficient in other respects and stated precisely the same offense for which he had been tried before the justice of the peace, he will be held to have waived the want of certification.” (Syl. ¶ 2.)
See, also, State v. Allison, 44 Kan. 423, 24 Pac. 964; City of Salina v. Laughlin, 106 Kan. 275, 187 Pac. 676.
The evidence, although challenged, strongly sustains the verdict and judgment. The sheriff testified that when he saw defendant’s automobile on the street, something in its appearance made him suspicious of the character of the articles therein, and so he made an effort to investigate the contents of the automobile. Defendant started to drive away and although the sheriff, wearing the star or emblem of authority, demanded in the name of the law that the defendant halt, he drove on. The sheriff followed in his car and tried to head off the defendant and stop his car, but defendant was driving at high speed, and the effort of the sheriff was unavailing. The sheriff then dropped back and began shooting at the tires of defendant’s automobile. There was a long dramatic race along the highway between the contestants. At one stage of the race defendant threw out on the highway cans of roofing nails which he subsequently admitted was done for the purpose of puncturing the tires of the sheriff’s automobile, but the sheriff drove so close to the side of defendant’s car that he avoided the intended effect. Finally one of plaintiff’s shots punctured a tire of defendant’s car, which caused it to run into a ditch, and thus the sheriff won the race. In the course of the race several gallon jugs were thrown out of defendant’s car, but there still remained two jugs of liquor in the car when defendant was apprehended. These were produced in court, and counsel for defendant admitted that they were the containers carried by defendant, and that they were filled with intoxicating liquor. It appears that when defendant was caught he had a gallon jug of whisky in his hands, and that he threw it down at the sheriff’s feet and broke the jug. After his arrest he offered the sheriff $50 to turn him loose. When this offer was refused he asked the sheriff if he would accept $100 for release. When that offer was refused defendant asked the sheriff if he would not consider a $500 Christmas present, and the reply of the sheriff was that he could not accept a gift under these conditions.
On the record of the proceedings, it is useless to contend over the sufficiency of the proof. The findings were abundantly sustained.
The judgment is affirmed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order removing a guardian of an insane person.
Sarah F. Downard was adjudged to be feeble-minded, and on May 15, 1931, Mattie Kenney was appointed as guardian of her person and estate. On December 10, 1931, the probate judge made an order removing the guardian. The journal entry refers to R. S. 39-209 making it the duty of the guardian to prosecute and defend actions in behalf of and against the ward and recites that the guardian permitted to go undefended an action wherein judgment was rendered against the insane person for the sum of $575, and that the guardian had neglected her duties and violated her oath of office, and, under provisions of R. S. 39-229, said guardian was removed.
Thereafter the guardian filed a motion to strike the above order from the files on the ground that it was made ex parte and without notice. The court overruled this motion on December 13, 1931, and the guardian immediately appealed to the district court.
In the district court the matter was tried de novo. The guardian filed a demurrer to the proceeding, which was overruled, and thereafter testimony was taken and at the conclusion the trial court made its order finding that the guardian had been duly removed by an order of the probate court, and that the evidence fails to show abuse of discretion of the probate court in issuing the order of removal, and dismissing the appeal.
Thereafter a motion for a new trial, alleging as reasons therefor every ground mentioned in the code of civil procedure, was filed, which motion the court denied. Then followed this appeal.
The evidence taken on the hearing in the district court is not abstracted, and we must therefore assume that the judgment of the trial court was supported by the evidence.
In that part of the statutes pertaining to insane and incompetent persons is the provision that “The several probate courts shall have power to remove such guardian at any time for neglect of duty, misconduct, or mismanagement, or disobedience to any lawful order, and appoint another. . . R. S. 39-229. Appellant contends under that statute she was entitled to notice, and that she was not given any notice she was to be removed or any opportunity to show cause why she should not have been. Assuming, which we do not decide, that notice is necessary, it is true the record shows no written notice, but it does show that she was in court and defended against her removal, both in the probate court and in the district court. The district court, after hearing evidence, which, as stated, the appellant has not brought before us, found she had been duly removed and that the probate court had not abused its discretion. These findings include a finding that the appellant had notice, and that everything required to be done had been done. (Buckwalter v. Henrion, 111 Kan. 781, syl. ¶ 2, 208 Pac. 645; Mallory v. Johnstone, 112 Kan. 566, 567, 212 Pac. 117; Starr v. Cook, 127 Kan. 122, syl. ¶ 4, 272 Pac. 138. See, also, cases cited in West’s Kansas Digest, Appeal and Error, § 907, and Hatcher’s Kansas Digest, Appeal and Error, § 420.)
The appellant has failed to show any error in the proceedings in the lower court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a fire-insurance policy. Plaintiff prevailed, and defendant appeals.
The policy covered a dwelling house in Beloit. On the night of September 10, 1931, it was much damaged by fire. The next forenoon defendant’s local agent, E. W. Reiter, notified defendant of the fire, and that the estimated loss was $1,500. On December 12 defendant wrote Reiter that it had written and wired the Universal Adjustment and Automobile Fire Casualty Inspection Company, of Salina, to give the matter immediate attention, and had requested (the adjuster to see Reiter before making adjustment. Subsequently, H. S. Wright, H. W. Tharp, and another, representatives of the adjustment company, proceeded to Beloit, made an examination of the building, and negotiated with plaintiff for settlement of loss. Carpenters prepared estimates, and various propositions of settlement were considered — to rebuild the house, to take it down and build a new house, and to pay money. In the course of the negotiations the subject of proof of loss was mentioned, and Wright said he needed no additional proof of loss. Wright finally said plaintiff’s figures were too high, and said, “We will make settlement, and we will pay $1,500.”
The policy required proof of loss giving specified information. The petition pleaded proof of loss. When it appeared defendant had merely been notified of loss, plaintiff asked leave to amend to show waiver of proof of loss. The amendment was allowed, and defendant complains. The amendment substituted one allegation for another according to the facts, and was manifestly proper.
There is no dispute the Salina company was defendant’s adjuster, and that Wright and his associates represented the Salina company. The weight of authority is that an adjuster has apparent authority to waive pi’oof of loss. (26 C. J. 394.) In this instance defendant said the Salina company had been asked to give the loss referred to in Reiter’s telegram immediate attention. No limitation on the adjuster’s authority in attending to that fire loss was indicated. Wright and his associates came on the scene as agents of defendant, held out as having authority to do whatever the company could do with respect to the subject of loss. By conduct and conversation they endeavored to make speedy and conclusive adjustment of the loss, and in the progress of the negotiation Wright said he did not need any additional proof of loss.
The waiver was a parol waiver. The policy contained a provision to the effect that nobody representing the defendant could waive any term of the policy unless the waiver were indorsed on or were attached to the policy. It is familiar law in this state that an insurance company may not so restrict its own capacity for future action, and the weight of authority is that an agent having authority or apparent authority may waive proof of loss by parol, notwithstanding the policy provision. (26 C. J. 395.) The question of waiver was well presented to the jury by the instructions, and no substantial error was committed by the court in dealing with any phase of the subject.
Defendant amended its answer “to conform to the proof” by alleging that, subsequent to delivery of the policy, plaintiff gave a real-estate mortgage on the house, in violation of the terms of the policy.' There was testimony the instrument was without consideration, was used solely for plaintiff’s own private purposes, created no obligation or lien in favor of anybody, and, in fact, was not a mortgage. The matter was properly submitted to the jury, the jury believed the testimony, and found for plaintiff.
A defense that the fire was of incendiary origin was so lacking in-merit that the court properly withdrew it from the jury.
There are numerous complaints of the proceedings which have not been referred to. They have all been considered. No error was committed which affected the substantial rights of defendant, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
These two actions were tried together in the court below and presented together here. The plaintiff, Edna Price, seeks to recover for personal injuries sustained when the car which she was driving collided with a telephone pole of the defendant, and both plaintiffs seek to recover for the wrongful death of their daughter in the same casualty. The jury answered special questions and returned verdicts for plaintiffs. Defendant has appealed, and contends, (1) that negligence on its part was not shown, and (2) that the collision of the automobile with the telephone pole was not the proximate cause of the injury. Other questions are argued, but it may not be necessary to discuss them.
The principal facts are not seriously controverted, and may be stated as follows: A township road runs north from the city of Republic. About a mile north of the city it is intersected by an east- and-west county road. For more than twenty years prior to the casualty which gives rise to this lawsuit defendant had maintained and operated a telephone line along the south side of the county road to the intersection from the east where it crossed the road to the north or northwest. Prior to the fall of 1928 the intersection of the two roads above mentioned was the ordinary square intersection of two highways, but in 1928, under the direction of the county engineer, the southeast corner of the intersection was rounded. This was done by first obtaining from the landowner an easement for the new road rounding the corner. Across the right of way thus obtained a roadway was laid out on a curve with a 200-foot radius connecting the township road south of the old intersection with the county road east of it. The old intersection was, of course, left for north-and-south and east-and-west traffic. This left a triangular tract southeast of the old intersection and between that and the new curved road connecting the two highways. One of defendant’s telephone poles was in this triangular tract, and the next one east of that was about the middle of the new curved road. About the time this work was commenced the county engineer called the manager of the telephone company and told him of the work to be done and that there were telephone poles in the way. He replied he would send men to move them. That afternoon he sent men, who moved the pole that was in the new curved road. There was evidence tending to show that the men did not have time that afternoon to move the pole in the triangular tract above mentioned. It is what is spoken of as a “key” pole, the line changing there to the north or northwest, and it being guyed with a guy wire, for which reasons it would take more time to move it. The county engineer told the workmen there was no hurry about moving that pole, for the reason that it was not in the traveled portion of the highway. He testified that the men there agreed to move it later. About that time considerable road work was being done in the county. The county engineer made several requests of defendant’s manager to have poles moved, and always received good cooperation and prompt service. The manager of the telephone company testified that he received several requests from the county engineer for the moving of poles, and always complied with them promptly. At the time of the trial of this action, about five years after the work was done on the corner, he had no recollection of any request having been made of him for the removal of this corner pole. It is not contended that a written request was made for the removal of the pole in the triangular area, nor does the evidence show that it was the practice to make requests in writing for the removal of poles for road improvement. No record was kept by the county engineer of what poles he requested moved, and none was kept by defendant’s manager of poles removed at the request of the county engineer. Before the improvement of the corner in 1928 there were ditches, varying perhaps from a foot to a foot and a half deep, extending east and south from the southeast corner of the intersection. At the time the road was improved in 1928 these ditches were filled, or nearly so. The curve was so constructed that the inside of the curve was lower than the outside, where there was a slight ridge of dirt, leaving a drainage for the curved road to the southeast, where there was a culvert which carried the water to one of the ditches along the county road. The triangular area was left practically level, except for the ridge of dirt along the outer edge of the curve, and at the time of the casualty was sparsely covered with grass and weeds, except the corners where they had been rounded somewhat by travel. At the northwest corner of the intersection there was a hedge fence extending north, and another one west, from the corner. These were kept trimmed down for a distance of from forty to fifty feet north and west from the corner, to enable travelers approaching the intersection from the west better to see cars coming from the north, or those approaching from the north to see cars coming from the west.
The intersection was maintained as above described from the fall of 1928 until after September 4, 1931 — the date of the casualty which gives rise to these actions. Frequently within that time inspectors of defendant examined its poles and lines, and knew that one of its poles with the guy wire was situated in the triangular area above described. Neither the county engineer who supervised the improvement of the intersection in 1928, nor his successor in office, made any complaint after that work was done about the pole and guy wire remaining where they were.
Plaintiffs lived on a farm about a mile and a quarter north of this intersection and had lived there for nine years. They frequently went to Republic, were familiar with the road and with this intersection, and with the location of defendant’s telephone pole near the southeast corner of the intersection, both before it was improved by the rounding of the southeast corner in 1928 and since that time. The county road at this point was down grade from a point some distance east of the intersection, through it, and west a quarter of a mile or more to a bridge across a creek. From the north to the intersection, for a short distance, the township road was slightly upgrade and from the intersection south was slightly downgrade. On the day of the casualty, shortly after one o’clock in the afternoon, the plaintiff, Edna Price, started to drive from her home to Republic. The car she was driving was owned by plaintiffs, and she had driven it frequently and had been driving cars for more than fifteen years. Her daughter, fourteen years of age, was with her, riding on the seat beside her. As she approached this intersection, some little distance before she reached it and while driving at about thirty miles per hour, she looked to the west for cars or dust from cars approaching. She could sometimes see a cloud of dust better than she could see a car. She saw none and drove on to the intersection, where she slowed down to perhaps fifteen miles an hour. Just after entering the intersection she observed a car coming rapidly from the west, driving about the middle of the highway. Her car was equipped with four-wheel brakes, in good condition, but she thought she did not have time to stop and did not apply her brakes. She turned her car to her left toward the east, and perhaps speeded up a little, hoping to avoid the approaching car. The car coming from the west was driven by a young man, Mr. Madsen. Three other young men were riding in the car with him. They had been driving at from sixty to seventy miles an hour. When they came in sight of the intersection, one of the men called Madsen’s attention to it and he took his foot off of the gas accelerator and the car slowed a little. When he saw the car Mrs. Price was driving in the intersection he put on his brakes hard enough that the wheels slid on the road for about 100 feet and entered the intersection at about 40 miles per hour. He tried to turn south at the intersection, but was going too fast to make the turn. The result was that his car collided with Mrs. Price’s car, and at a point about ten feet north and perhaps twenty to thirty feet west of defendant’s telephone pole. Neither car appears to have been hurt seriously by this impact. They separated, the Madsen car going southeast under the guy wires south of the telephone pole, which seriously damaged the top of the car, and finally stopped about 200 feet almost directly east of the pole. The course of Mrs. Price’s car was changed more to the east. Tracks on the ground indicated that the tires were moving partly sideways rather than straight ahead. She was trying to guide the car, but did not see, or think of, the telephone pole. The front of her car missed the telephone pole, but about the center of the car struck the pole with much force. Glass was broken, the side of the car damaged, the handle on the door torn off and the door thrown open, plaintiff’s daughter was catapulted from the car a distance of about twenty feet to the edge of the curved road, and the car itself made a semicircle in the road and stopped, facing west, on the north side of the county road, a little east of the telephone pole. The daughter died in a few hours from injuries sustained, and Mrs. Price was seriously injured.
Plaintiffs settled with Madsen both for Mrs. Price’s injuries and for the death of their daughter, but in doing so specifically reserved any right of action they had against the telephone company or others liable for the damages. The court in its instructions properly told the jury to take that settlement into account if any judgment were rendered for plaintiffs. It is not contended that the judgments in these cases, aggregating $4,000, are excessive if plaintiffs are entitled to recover.
The accompanying plat shows more clearly the situation as it existed just after the casualty. Its scale as reproduced here is 30'=1". The letter A shows the location of the telephone pole in question, and B the anchor of the guy wire 12' 3" south of it; C is a telephone pole at the northwest corner of the intersection; D is the culvert on the inside of the curved highway for the drainage of the curved road and perhaps a part of the intersection; E is approximately at the place where the two cars collided, although some witnesses placed it a little nearer to the telephone pole; F is the place to which the child’s body was thrown from the impact of plaintiff’s car with the telephone pole; G marks the place plaintiff’s car came to a stop, facing west; and H where the Madsen car came to a stop; I shows the location of drainage ditches along the sides of the road. The two lines about the triangular tract inclose the approximate area not ordinarily used by the traveling public and on which there was a growth of weeds and grass. The pole was about eight feet south of the south line of travel on the county road, about twenty feet east of the east line of travel on the township road, and about the same distance from the west line of travel on the curve.
It will be noted that neither of the cars which collided was using this rounded curve. Plaintiff’s car came from the north, and Mrs. Price planned to drive on south across the intersection. The Mad-sen car came from the west, and its driver intended to proceed eastward across the intersection. The collision was not affected in any way by this curved roadway. We are unable to see that it had any effect on the liability of the parties, unless the improvement at the time it was made left the telephone pole at a place where it discommoded the traveling public.
Turning now to the legal question argued: Was defendant negligent in maintaining its pole in the location it was on the day of the casualty? Our statute (R. S. 17-1901) provides:
“Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, . . . upon and across any of the public roads, ... of this state, in such manner as not to incommode the public in the use of such roads, ...”
And the next section (R. S. 17-1902) provides:
“Telephone companies shall have all the rights and powers conferred and be subject to all the liabilities imposed by the general laws of this state upon telegraph companies.”
Under these statutes the telephone company was authorized to set its poles upon or in the highway if, in doing so, the poles were not so placed as to incommode the public in the use of such roads. Under the authorization granted by this statute telegraph and telephone companies have placed their poles near the side of, but within, many of the public roads throughout the state. Their right to do so, if they are so placed as not to incommode the public in the use of the roads, is fully recognized under the statutes above quoted and by the former decisions of the court. (McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870; Wichita v. Telephone Co., 70 Kan. 441, 78 Pac. 886; Telephone Co. v. Concordia, 81 Kan. 514, 106 Pac. 35; State, ex rel., v. Weber, 88 Kan. 175, 127 Pac. 536. See, also, Postal Tel.-Cable Co. v. Depew, etc., Conduit Co., 222 N. Y. S. 104, as to similar rights under federal statutes.) It is not seriously contended in this case that prior to the improvement of this intersection in 1928 the defendant was guilty of negligence in maintaining its telephone pole where it was located, marked “A” on the plat, but it is argued on behalf of appellees that when the corner was rounded in 1928 and defendant was requested by the county engineer to remove the pole, and its employees promised to do so at a later date, it became and was thereafter negligent in maintaining it at the place where it then was located. But it will be remembered that the county engineer told defendant’s workmen that there was no hurry about moving this pole, for the reason that it was not in the traveled portion of the highway, and it is not clear from the testimony, either of the county engineer or of defendant’s manager, that any request was made of defendant’s manager for the removal of this pole, and it remained there without objection from the county engineer, or anyone, until after this collision. Sometime thereafter, and before the trial, it was removed, but in the meantime the two north corners of this intersection had been rounded, and whether the removal of the pole was because of the casualty which gave rise to this lawsuit, or for some, other reason, is not disclosed. The question naturally suggests itself: If this pole were not in the portion of the highway used by the public for travel, or where it discommoded the public with such use of the highway, did the county engineer have any authority to request its removal? But since that question is not briefed and appears not to have been specifically ruled upon by the trial court, we shall give it no further attention. Naturally the telephone company had no authority under the statutes and cases above cited to place its poles where they would incommode the public in the normal and ordinary use of the highway. Whether a pole such as this, either near an intersection or at any other place along the highway, is so near the traveled portion of the highway as to incommode the traveling public, is frequently a question of fact for the jury. (Phillippi v. Farmers’ Mut. Telephone Co., [W. Va.] 168 S. E. 762. See, also, cases collected in the annotation 82 A. L. R. 395.) Here the pole was as much as six to eight feet south of the south line of the traveled portion of the east-and-west highway, and approximately twenty feet east of the east line of travel of the north-and-south highway, and about the same distance from the nearest line of travel on the curved highway. The way to state it most favorably for plaintiff is to say that it was a question for the jury whether the pole was situated where it would interfere with or discommode the traveling public. On this point the following question was submitted to and answered by the jury:
“Q. Was the defendant’s telephone pole located so it interfered with the usual and customary use of the highways surrounding it? A. No.”
We feel compelled to hold, under the record in this case, and particularly under the finding of the jury above set out, that defendant was not guilty of negligence in maintaining its pole at the place in question.
Passing now to the question of proximate cause. Appellee correctly argues that the concurring negligence of two or more parties may be such that the negligence of each is a proximate cause of an injury. (Pacific Telephone & Telegraph Co. v. Hoffman, 208 Fed. 221.) This doctrine cannot be availed of here for two reasons: First, the defendant, under the record and the specific finding of the jury, was not guilty of negligence; and, second, it is clear that the collision of the two cars caused the Price car to be thrown against the telephone pole (Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416; Wyatt v. Telephone Company, 158 Va. 470, 163 S. E. 370). Madsen, if the cars collided by reason of his negligence (and we may assume that they did), would have been responsible for all injuries resulting to plaintiffs, not only that which occurred at the immediate time the cars collided, but the subsequent injuries when plaintiff’s car was thrown or diverted from its course by that impact against the telephone pole. See Mayer v. Mellette, 65 Ind. App. 54, 114 N. E. 241, where the driver of a car at an intersection was forced against a telephone pole by the negligence of another car and recovered from the latter for the damages sustained.
While some other questions pertaining to trial errors are discussed, in view of the conclusion we have reached upon the principal points in controversy it is not necessary to determine them.
The judgment of the court below is reversed, with directions to enter judgment for defendant.
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The opinion of the court was delivered by
Johnston, C. J.:
Mike Moses brought this action to recover damages from the Missouri Pacific Railroad Company for injuries and loss sustained by him at a point where the railroad crosses a highway on which he was traveling in his automobile at 11:30 p. m. on July 15, 1931, and where the defendant negligently backed a string of cars against him on the crossing. Plaintiff recovered a judgment for $1,577.50, made up of several items for medical care, pain and suffering, loss of earnings and permanent injury. Defendant appeals.
The plaintiff alleged and contended that he was traveling in his automobile, near the town of Carona, at a speed of about twenty- five miles an hour until he approached the railroad track, when he slowed down his car to from ten to twelve miles an hour; that he looked and listened for trains on the track, and not seeing or hearing one he drove onto the crossing. When he came within about ten feet of- the track he discovered a string of approaching cars backing down the track in the darkness, without light on the end of the string; and without sounding a whistle or giving a warning of any kind the defendant recklessly backed the train over the crossing in front of him and he had no opportunity to avoid a collision. He testified that when he did discover the backing cars he put his foot on the brake and endeavored to stop the car, but the backing train struck the front of his automobile, causing serious injury to him.
The defendant’s pleading was a general denial, and it also alleged contributory negligence on the part of plaintiff in not having his automobile under control when he approached the crossing. On the evidence the jury made the following special findings of fact in response to questions submitted:
“1. At what rate of speed was plaintiff traveling in his automobile at the time he approached the railroad tracks? A. Ten to fifteen miles per hour.
“2. What, if anything, did plaintiff do to prevent the accident? A. Put on brakes.
“3. What negligence, if anything, was defendant guilty of? A. No light or warning.
“4. Could the accident have been prevented if plaintiff had been driving at a slower rate of speed? A. No.
“5. When plaintiff first saw the train how far was he from the railroad track? A. Ten to twelve feet.
“6. What was there to have prevented plaintiff from stopping before going on crossing after he saw defendant’s train? A. Lack of distance.
“7. Did defendant’s train block said crossing from the time it arrived at Carona, Kan., until accident occurred.? A. Evidence didn’t prove that crossing was blocked.
“8. If you answer the above question yes, then state what, if anything, there was to prevent plaintiff from seeing the train in time to have avoided the accident. A.-.
“9. How much do you allow plaintiff for: (a) Medical care? A. $50. (b) Mental pain and suffering? A. $280. (c) Loss of earnings? -A. $247.50. (d) Permanent injury? A. $1,000.”
Defendant assigns as error the refusal of the court to give judgment for defendant on the opening statement made by plaintiff at the beginning of the trial. Error is also assigned on the overruling of defendant’s demurrer to plaintiff’s evidence and the refusal to direct a verdict for defendant. Complaint is made of the instructions and in not requiring more specific answers to the questions submitted to the jury.
There was no error in refusing to give judgment on the opening statement of counsel for plaintiff. That can only be done where the concessions plainly and understandingly made in the statement will as a matter of law preclude a recovery. (Hall v. Davidson, 73 Kan. 88, 84 Pac. 556. See, also, Smith v. Insurance Co., 108 Kan. 572, 196 Pac. 612.)
Here the statement set out the facts showing obvious negligence of defendant, and certainly the statements with reference to the approach of the plaintiff to the track and the care exercised by him did not amount to an admission that plaintiff was guilty of contributory negligence as a matter of law. That question was plainly one for the jury.
On the question that plaintiff’s evidence was insufficient and required a directed verdict and judgment, the contention is not that defendant was free from ordinary negligence but was rather that plaintiff was himself guilty of contributory negligence. No good defense could well be made for backing a string of cars across a street or highway in the nighttime without light on the advancing cars and without sounding a warning of any kind. The train was composed of thirty-four cars and had been run down to the station at Carona, about one-fourth of a mile from the crossing. There the train was cut, leaving the hind end of it on the main track and cutting off seven cars which were backed towards a switch and switch track. The light on the engine pushing the cars was reflected in the opposite direction from that in which the cars were moving. The testimony of plaintiff was that when he approached the track he both looked and listened for trains and cars, and that he neither saw nor heard any until he came within about ten feet of the track. One taking these precautions might reasonably assume that he could cross the track without danger. He had no cause to anticipate that a train would be pushed or pulled over the crossing in the nighttime without lights or warning of some kind. If the brakeman had been posted on the end of the advancing string of cars with a swinging lantern, it would have constituted some warning to the plaintiff; and if such a precaution had been taken, probably the casualty would have been averted. It is urged that plaintiff might have stopped his automobile after discovering the approaching cars when he was within ten or twelve feet of the track. According to the testimony he attempted to do so, and whether his failure to do so in that limited space and time was contributory negligence was a fair question for the determination of the jury. This court is not warranted in declaring as a matter of law that his failure to do so in the brief time and space available constituted contributory negligence.
The defendant claims that error was committed in not requiring more specific answers to questions numbered two, four and six. In answer to question number two: “What, if anything, did plaintiff do to prevent the accident?” The answer was: “Put on brakes.” Question number four: “Could the accident have been prevented if plaintiff had been driving at a slower rate of speed?” The answer was: “No.” And question six: “What was there to have prevented plaintiff from stopping before going on crossing after he saw defendant’s train?” The answer was: “Lack of distance.”
The answers, while brief, are reasonably specific. Beyond that, however, the record discloses that defendant did not move to make the answers to the questions two, four and six more specific. Even if they are subject to the objection now made, it is not available as a ground of error since the defendant did not bring it to the attention of the court and ask for more specific answers. It appears that the plaintiff did require the jury to make more specific answers to questions seven, eight and nine, but no complaint is now made that the answers to these questions are not sufficiently specific nor that there was error in denying the request. Hence these do not require consideration.
Complaint is made of failure to give requested instructions and, also, some criticisms of those that were given. So far as the requested instructions are concerned, the rules of law involved in them appear to have been embodied and fairly covered by those given. As to those given, it may be said that not all the instructions given are preserved in the record, but those that are included appear to be appropriate to the issues joined in the case. They were the standard instructions given in this class of cases and are free from material error.
We find no error in the record, and the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This is a will case.
Two instruments, one executed in 1941, the other in 1943, are involved. Anthony H. Lampe and Blanche A. Lampe, his wife,, appellants, are two of the beneficiaries named in the last instrument. That instrument is appended hereto arid made a part hereof. Appellants are named as executors théreof. John H. Wille, the executor named in the first instrument, presented that will for probate. The two instruments were considered for probate at the same time in the probate court of Woodson, county. ' The first instrument, conceded to be a will, was admitted to probate while probate was denied to the latter instrument. On appeal to the district court appellants were likewise unsuccessful and have appealed to this court. In the district court, in response to a motion of appellees, which was sustained, appellants were required to separately state and number what appellees and the trial court regarded as separate causes of action. The first cause of action was predicated on the theory the last instrument constituted a will and revoked the former will. In the second cause of action it was, among other things, in substance,’ alleged that if it be, determined the last instrument did not constitute the last will and testament of decedent it constituted a contract between him and appellants whereby the latter become owners of the particular property therein set off to them. The trial, court sustained a demurrer to the second cause of action. Appellants aré not particularly complaining of that ruling. They insist the last executed instrument is a will and that all pertinent questions are involved in their first cause of action.
The witnesses to the instrument testified and other oral testimony was adduced by the parties. The trial court made findings of fact and conclusions of law. Appellants’ motion for a new trial and a motion to strike portions of the findings made and to make additional findings of fact were overruled.
A few preliminary and undisputed facts may be stated before we turn to an examination of the instrument involved. The decedent was about sixty-five years of age at the time he died. He had been suffering with organic heart trouble for a number of years. His condition fluctuated. He lived alone. Neighbors, including appellant^, had been kind to him over a period of years prior to -his last illness and had helped him in various ways. On January 1, 1943, he came to the home of appellants and continued to live with them until March 1 when he reluctantly went to the hospital at the direction of Doctor Christian', who had treated him on occasions for several years prior to 1943. Doctor. Christian had made two or three calls on decedent at appellants’ home before he sent him to the hospital. The doctor wanted decedent to be in the hospital where he might be nearer to him and because he believed decedent could obtain better care and attention there. The instrument in question was executed January 28,1943. The trial court did not find decedent lacked testamentary capacity and there is no contention he was not in complete possession of his mental faculties prior to and on that date. Decedent entered the hospital March 1, 1943, and died on the tenth of March.
The trial court found that while the instrument in question was testamentary in character it was not decedent’s last will and testament but was really a bilateral contract. The parties agree the first question presented is whether the instrument is a will. The instrument bears the label “Agreement,” uses that term in its first sentence and refers to decedent as “first party” and to appellants as “second parties.” It states what appellants agree to do both before and after decedent’s death in consideration of the benefits the instrument provides for them. Decedent and appellants are also designated as parties under the signature lines. An acknowledgment form was attached but was not executed.
On the other hand, the instrument in its first sentence, following the words “This Agreement” also contains the words “and this Will and Testament.” The second paragraph emphasizes decedent’s age, bad health, the absence of relatives in whom he had an interest, the need of someone to whom he might look for aid, constant attention and assistance during the remainder of his life. It then acknowledges the marked assistance appellants previously had been to him in providing him comfort and material aid in sickness. In consideration of those things and the agreement of appellants to provide for him during the remainder of his life and to assume certain obligations at his death, all as indicated in paragraph three, the instrument states decedent'is doing certain things. What are they? He revokes all former wills; he appoints appellants sole executors of “his last Will and Testament;” he directs they shall serve without bond; he gives, devises, wills, bequeaths, grants, transfers and sets over to appellants any and all of the property which he shall own or •of which he shall be seized, both personal and real, at the time of his decease, except the property otherwise disposed of -in the instrument. He further agrees that upon the performance of the duties and obligations which appellants assume all the property which decedent owned is to become the absolute property of appellants upon decedent’s death.
In the concluding paragraph decedent agrees that out of the personal property owned at his death specified amounts shall be paid to other designated beneficiaries and finally that all personal and real property, except the last mentioned items, shall become the sole property of appellants at the time of his death and after appellants have performed the conditions enumerated.
The last sentence refers to the instrument not only as “This Contract” but also as “this Will and Testament.” Instead of executing the attached acknowledgment two persons signed their names under the word “Witnesses.”
If the instrument is a will it would not have been invalidated had it been notarized. (Derr v. Derr, 123 Kan. 681, 686, 256 Pac. 800.)
The character of an instrument is not determined by a characterization or label the parties may place upon it. Its real character and legal effect are determined by its terms, provisions and intent. (Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177.) 'What the instrument intended to accomplish must be gathered from its four corners and not by single words, isolated phrases or even sentences. Facts and circumstances surrounding its execution become competent only in the event the instrument is ambiguous on its face and requires aid to clarify its intent. (Shannep v. Strong, 160 Kan. 206, 211, 160 P. 2d 683.) So ah instrument denominated a “contract” has been held to be testamentary in character. (Imthurn v. Martin, 150 Kan. 906, 96 P. 2d 860.) Likewise an instrument labeled “warranty deed” has been declared to be testamentary in character. (Lowry v. Lowry, 160 Kan. 11, 159 P. 2d 411.) In fact the term “will,” as used in our statute, includes every kind of testamentary act taking effect from the mind of the testator and .manifested by an instrument in writing, executed and attested in conformity with the statute. (Derr v. Derr, supra, syl. ¶ 3.) The fact an instrument is contractual in character does not destroy its validity as a will if its terms disclose it was intended the title to the property involved should not pass from decedent presently but should vest in the beneficiaries named only after the decedent’s death. (Imthurn v. Martin, Lowry v. Lowry, both supra, and cases therein cited.)
As previously indicated this instrument employed some language appropriate to contracts and other language appropriate only to wills. The vesting of title in appellants was definitely deferred not •only until after Koellen’s death but also until appellants had performed conditions imposed upon them by the contract. The instrument speaks for itself. It starts with the words “This Agreement, .and this Will and Testament.” It ends in the same manner. The provisions in the body of the instrument disclose on their face it was a contractual will and clearly was intended to be just that. Where the intent reasonably can be ascertained it will be declared and executed unless it be contrary to law or public policy. (Shannep v. Strong, supra, p. 211.) A contractual will is neither contrary to law nor public policy.
The mere fact, however, an instrument is testamentary in character does not mean it is a valid will and entitled to probate. In order to operate as a will it must be executed in the manner provided by statute. (Imthurn v. Martin; Lowry v. Lowry, both supra.)
Both witnesses to the will were farmers. The testimony of the • witness, Paul Guatney, in substance, was:
They came to appellants’ home, where decedent resided, at the request of one of the appellants; he had known decedent seven or eight years; decedent had the instrument in his pocket; he took it out of his pocket and said, “I would like for you boys to witness an agreement between myself and Lampes;” decedent handed the instrument to the witness to look at, to read; they read it over; they were with him about fifteen or twenty minutes; he observed nothing wrong with decedent’s mental condition; decedent seemed to be able to discuss the instrument intelligently with them; he handed it to them and they read it over; that is about all he remembered being said; he and Mr. Beatty signed the instrument as witnesses after decedent had signed it.
The witness’, George Beatty, testimony was much the same as that of the witness Guatney except when asked to state what decedent said to them when he requested them to sign as witnesses. The witness said: “0, he (meaning the deceased) just says asked us boys if we would mind signing a will or contract, I forget which he called it.” On cross-examination the witness stated he did not know whether decedent called it a will, a contract or either one. When confronted with his testimony at the probate hearing he admitted his testimony there was that decedent said he wanted him to witness a paper or contract or agreement with Tony (Lampe) and his wife.
Doctor Christian testified decedent was able to discuss matters intelligently on the date the instrument in question was executed but that he did not discuss business matters, with him.
In view of what previously has been- said we need not dwell upon the precise name by which reference may have been made to the instrument when it was executed. Decedent was of sound mind. He had the instrument in his possession and took it from his pocket. He asked two persons to witness his signature thereto. He handed it to them to read. They were with him fifteen or twenty minutes. They read it over. Whether they read it audibly does not appear. They saw him sign it. When he did so the witnesses subscribed their signatures thereto. G. S. 1945 Supp. 59-606 provides:
“Every will, except an oral will as provided in section 44 [59-608], shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge' the same.” ,
■ Did the testimony of the witnesses satisfy requirements of the 'statute? We think it did. It will be observed our statute does not require publication. Publication is the act of making it known in the presence of the witnesses that the instrument to be executed is the last will and testament of the testator. (1 Page on Wills, Lifetime ed., § 376.) Our statute does not require the instrument to be read to the witnesses by the testator. It does not require the witnesses to actually know it is a will. And this is the rule under the great weight of authority where the statute does not expressly require publication.
In ruling this instrument was not entitled to probate the trial court made findings that the facts, which we have just stated our statute does not require, had not been shown. The findings were attacked by motion to ■ strike. The motion was overruled.' Appellees contend appellants were obliged to. show the witnesses knew ' and' understood the instrument they subscribed was a will and in support cite Fuller v. Williams, 125 Kan. 154, 264 Pac. 77. While such a statement is found in the course of that opinion it is not contained as a statement of law in the syllabus. Our careful reconsideration of the precise point convinces us such a statement in that or in any of our other cases is too broad.
An excellent statement on the subject is found in 1 Page on Wills, 2d ed., § 360. While it is somewhat long we think it merits quota-, tion. It reads:
“If the Wills Act does not provide for publication in express terms, and merely provides that the attesting witnesses shall sign the will, it is held, by the great weight of authority, that publication is not necessary; and that the witnesses need not be informed that the instrument which they are attesting and signing is a will. Where, under such a statute, the testator showed witnesses a. paper with his signature and asked them to attest it, it was held to be a sufficient acknowledgment of the signature arid a valid attestation; even if testator deceives the witnesses as to the nature of the instrument which they are signing, as by representing that it is a business document.This result is justified on the theory that the legislature has made full and ample provisions for the formalities which are necessary to a valid will; and that the courts have no power to add to such requirements.
“In some jurisdictions, however, it has been held that the attesting witnesses must be informed that the instrument is a will, even though the statute does not, in terms, require publication. This result has been justified on the theory that the word ‘attestation.’ implies that the subscribing witnesses must know the nature of the instrument which they attest. This meaning of the word ‘attest’ is not, however, the one usually accepted. It is probable that, in some of these cases, the court, when it says that the witnesses must understand the nature of the instrument, means only that they must know that it is some sort of a legal document which they are asked to attest. In some of the other states, where it had once been said that publication was necessary, although not required, in terms by statute, such an explanation has been adopted in later Cases. In Vermont, the courts have used language which seemed to imply that publication was necessary; but when the question was presented for decision subsequently, the court said that the earlier cases did not require that the witnesses should know that the instrument was a will, but only that it was an instrument which testator wished to execute, and that they attested his execution by adding their signatures. In some cases in which it is suggested that the witnesses should know the nature of the instrument, the point was not presented squarely for decision.” (p. 576.)
In section 361 of the same text it is said:
“It is not necessaiy that the witnesses should know the contents of the will, whether the statute requires publication, or whether the necessity of publication is inferred although not required in express terms, or whether publication is not necessary. Still less is it necessary that the will should be read to the witnesses.”
See, also, 1 Page on Wills, Lifetime ed., § 379.
The trial court further found the ’evidence did not. show by whom the instrument was written, that decedent intended to make a will or that he knew what the instrument contained. We know of no statute or decision of this, court which requires proof of who the scrivener was as a condition precedent to probate. Touching the other findings just mentioned it is sufficient to say decedent had the will in his own pocket. He desired to sign it and he requested two persons to witness his signature. While it is, of course, indispensable to the validity of a will that a testator should know its contents at the time of execution, knowledge will ordinarily be presumed from the execution of the instrument. The presumption is only a prima facie one and may be rebutted. (68 C. J. § 226, p>. 606.) In the instant case the presumption prevails as there was no affirmative evidence the testator did not know what it contained.
The trial court also found that during the later years of his life decedent had failing eyesight and during the latter months of his life he was unable to read. That is not proof the instrument was not read to or fully explained to decedent before he executed it. The same would be true in the case of a testator who had perfect eyesight but was unable to read. It would be true where a testator had directed the scrivener how he wanted his property disposed of by will and the scrivener prepared it exactly as directed and so advised the testator. The testator may not have read the will in any of these instances. Morover, he might not have understood the legal significance of the language employed if he had read it.
The trial court, in substance, further found that a day or two before decedent’s death and while in the hospital decedent told , Father Gorges he had only one signed will, which could be found in the second drawer of his desk at his residence, and that O. W. Lair found the will, as indicated, in the presence of Father Gorges and William Westerman. This was the first will executed in 1941 which the-later contractural will revoked. The testimony relative to what decedent told Father Gorges was objected to on the ground Father Gorges was an incompetent witness to testify concerning a conversation between himself and decedent, his parishioner. The statement was no part of a confession made to the priest in his professional character in the course of discipline enjoined by the church to which decedent belonged. The priest, therefore, was not an incompetent witness under our privileged-communication statute. (G. S. 1935, 60-2805.) See, also, 70 C. J., § 615, p. 451. But manifestly such oral testimony could not nullify the existing contractural will under the express contrary provisions of our law. G. S. 1945 Supp. 59-611 provides:
“Except as provided in section 46 [59-610], no will in writing shall be revoked or altered otherwise than by some other will in writing; or by some other writing of the testator declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, tom, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence by his direction.”
See, also, what provision a written revocation would need to contain in order to revive the first will upon which appellees rely. (G. S. 1945 Supp. 59-612,)
Appellees argue decedent and appellants occupied a confidential relationship and that the inference from the testimony is, appellants, or one of them, was the scrivener of this instrument. Appellees point out there was no evidence decedent had independent advice. Upon the alleged inference as to who the scrivener was, appellees' argue the instrument, if a will, was invalid as to the appellant beneficiaries because the statute requires decedent should have had independent advice. (G. S. 1945 Supp. 59-605.) The contention can not be sustained. It is sufficient to say the trial court made no finding that the evidence supported any inference with respect to who the scrivener may have been. A careful examination of the record compels us to conclude no inference with respect to who the scrivener may have been was properly deducible from the evidence.
Appellees contend this court should affirm the challenged findings of the trial court that appellants failed to perform the conditions imposed upon them by the instrument. These findings were:
“3. . . . The said Koellen had an aversion relative to going to the hospital . . . .there is nothing in the evidence to-show that they [appellants] ever went to the hospital to see or visit him, comfort him, shave him,' or in any other manner to aid or assist him or to provide' for his comfort during his final days.
i.,
“7. That neither Anthony H. Lampe, nor Blanche A. Lampe have paid the funeral expenses nor the doctor bill of Doctor Christian, who was the attending physician for Mr. Koellen; that the Lampes had knowledge of the said funeral expenses and doctor bill and that they had a reasonable time in which to pay the same, but they have failed to do so.”
It is true decedent had been in the hospital previously and did not like it. His specific complaint, as disclosed by the evidence, was that he was overcharged. But whatever the exact reason may have been we need not labór that point. Assuming he personally preferred to remain in the home of "appellants such a preference would tend to indicate he was not dissatisfied with the treatment he was receiving at their hands. But we may also pass that point. The fact remains the only reason, disclosed by the record, for his return to the hospital is that he did so solely on the direction of his own physician.
What did appellants fail to do for decedent during the ten days he was under the supervision and care of the hospital authorities that would justify striking down the contractual will? What could or should they have done in view of his condition that would justify nullifying the will? Decedent’s own doctor testified concering his condition just prior to and while he was in the hospital as follows:
“. . . he observed the deceased in the Lampe home, discussed matters and the deceased was able to discuss matters intelligently with him up until about February 23, 1943 . . . after he went to the hospital, he' didn’t have very much to say . . . right away, about the time they took him into the hospital, he went kind of off, out of his head, and from then on, he wouldn’t talk to you at all. He wasn’t really conscious out there (St. John’s hospital); I think he had a cerebral hemorhage of some kind out there.”
Moreover, there was no indication whatsoever that every rea sonable need, aid and comfort was not generously provided by the doctor and the hospital attendants.
The funeral expenses were $495.25. The unpaid balance' of Doctor Christian's bill was $21. The amount of the hospital bill is not disclosed and it would appear it was paid by appellants but we shall not assume that fact. John H. Wille was appointed executor under the 1941 will. Appellants were named sole executors in the 1943 will. The testator died March 10, 1943. On the day following his funeral Wille’s son learned appellants claimed part of decedent’s property. Thereafter events moved rapidly. A special administrator was appointed immediately and on April 8, appellees filed a petition for the probate of the first will. Within less than one month thereafter appellants filed a petition for the probate of the contractual will. Before a hearing'was had on these petitions and before it could be determined which of the wills would be admitted to probate or which of the executors named in the respective wills would be authorized to administer the estate, the funeral bill was paid by the special administrator. A claim for that bill was filed on May 5 and was paid by the special administrator on July 23, 1943.
It was therefore obvious from court records, if not otherwise, as early as April 8, and within less than one month after testator’s death, that only litigation could determine what rights appellants had in and to decedent’s property, if any. Were appellants, under these circumstances, obliged to rush in and pay these claims against decedent’s estate before the special administrator paid them? Did their failure to do so deprive them of their rights under the contractual will?. We do not think so. Of course, the property being devised to them was burdened with the obligations specified in the will and appellants will be required to meet them before the property vests in them. The will so provides.
The judgment is reversed with directions to-enter judgment in favor of appellants in accordance with the views herein expressed.
"AGREEMENT
“This Agreement, and this Will and Testament, this day made between Joe C. Koellen, of Piqua, Kansas, and Blanche A. Lampe, "and Anthony H. Lampe, also of Piqua, Kansas, hereinafter referred to as first and second parties respectively, -
“WlTNESSKTH :
“First party having arrived at an advanced age, and being in bad health, having no relatives or anyone who he can depend for help and assistance, and in need of someone on and to whom he can look for care, aid and assistance during the remainder of his life, and being in such a condition of health that he is in need of constant aid and attention, hereby agrees with second parties who heretofore and for a great many years prior to this time have been of marked assistance to first party in providing him comfort and material aid in time of sickness.
“First party revokes all former wills, and appoints second parties sole executors of his last Will and Testament, and to serve without bond, and now gives, devices, will, bequeaths, grants, transfers, and sets, over to second parties any and all the property which first party shall own or be seized of, both personal and real, at the time of first party’s decease; said property and all of it with the exception of the exceptions hereinafter contained and recited to the said second parties, for the following consideration, covenants and things to be done by said second parties, Second parties in consideration of the above covenants and deeds and the things done and performed by the party of the first part, same being the giving, devising, willing, bequeathing, granting, transferring, and setting over of all property, real and personal, to them, agree to provide a home for the party of the first part, and care for, maintain and look out for him during the balance of his natural life time, and on any and all occasions, to do everything within their power to provide for his present and future comfort through health and sickness, and to see that he is provided not only a proper home and comfort, maintenance and help during his life time, but at his decease providing proper burial and interment, and further, to provide all the expenses incited to the above services for and in behalf of the party of the first party, -and upon the decease of first party, all of the property which first party owned is to go and become the absolute property of second parties.
“It is further agreed mutually and by all parties signatory hereto that out of the personal property which first party and decedent shall own at the time of his decease, shall be paid the sum of Five Hundred ($500.00) Dollars to St. Martin’s Church of Piqua, Kansas, and an additional sum of Two Hundred ($200.00) Dollars to William Massoth, and an additional sum of One Hundred ($100.00) Dollars to Emma Sicka, all of Piqua, Kansas, said Church having been through the decedent’s and first party’s life', the church in which decedent was a parishioner, and the two others last mentioned parties having been helpful and friendly and having performed many kindnesses to said decedent, and with the exception of said above-excepted items, all of the personal and real property is to become the sole' property of second parties, herein at the time of his decease, and after second parties performing of the conditions herein enumerated.
“This Contract, this Will and Testament, made and executed by parties signatory here on the 28 day of January, 1943.
“Joe C. Koellbn, First party.
“Blanche A. Lampe,
“Anthony H. Lamps, Second parties.
“Witnesses
George Beatty
Patji, Guatney
“State of Kansas
“County of........................................................
“Be it remembered, on this....................day of............................................ 194........ personally appeared before me, the undersigned notary public in and for the above' named County and State, Joe C. Koellen, to me personally known to be the party who executed the within and foregoing instrument and duly acknowledged the execution of the same.
“In Witness Whereof, I have hereunto affixed my notary seal on the day and year last above mentioned.
Notary Public.
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The opinion of the court was delivered by
Smith, J.:
This action was commenced in the city court of Wichita to recover judgment for $820 under the terms of the Emergency Price Control Act of 1944. Judgment was for plaintiffs. The defendant has appealed.
The petition in the city court first pleaded section. 205 (e) of the Emergency Price Control Act (56 Stat. 23, as amended by 58 Stat. 632; 50 U. S. C. App. § 925 [e]). The action was brought pursuant to the act, which, among other things, provided that where any. person violated a price schedule providing a maximum charge the buyer might bring an action on account of the overcharge and that “in such action the seller shall be liable for reasonable attorney’s fees and costs, as determined by the court . . plus whichever of certain sums set out was the greater. Then followed a provision for the recovery of three times the amount of overcharge* unless the seller should prove that the overcharge was neither willful nor the result of failure to take practical precautions against the occurrence of the violation. Next it provided that an order as to rents should-be regarded as a price control order. The act then contained the following proviso:
"Any action under this subsection by either th'e buyer or the Administrator, as the case may be, may be brought in any court of competent jurisdiction.” (58 Stat. 641.)
The petition then alleged that the plaintiffs were tenants of the defendant in an apartment at an agreed rental of $60 per month; that the maximum registered rental price for that apartment was $40 a month; that by reason of the overcharges defendant had collected an excess over the maximum required rent in the amount of $20 per month for seven months or $140 and that plaintiffs were entitled to judgment against the defendant for three times the amount of the overcharge, or $420, and reasonable attorney’s fees. The prayer was for judgment for $420 and for attorney’s fees in the amount of $250. At the trial in city court defendant’s demurrer to the plaintiffs’ evidence was sustained. The plaintiffs appealed to the district court. The notice of appeal stated that plaintiffs appealed from the judgment, orders, rulings and. decisions of the court in the action and specially from the judgment sustaining the demurrer. Two appeal bonds were filed — one was signed by Bonnie Hinds and Wanda ' Nixon, plaintiffs, and Gerald H. Grange and Julia Gay Nielson, sureties, and the other was signed by Bonnie Hinds, Frankie N. Storm, another plaintiff, and the same sureties. The plaintiffs filed a motion in the district court to require the defendant to file written pleadings. This motion was sustained. The defendant filed a motion to dismiss the appeal for the reason that it was not made in the manner provided by law. That motion was overruled. The defendant’s answer contained allegations to the effect that she had not made an overcharge and that if she had it was not willful on her part. She also alleged that plaintiffs did not appeal from the Wichita city court in the manner provided by law, and that in plaintiffs’ notice of appeal they appealed from the court’s ruling on the demurrer, and did not state whether it was from the ruling on the demurrer to the original bill of particulars or her demurrer to the evidence', and that they did not say .they appealed from the final judgment dismissing the plaintiffs’ case. She also alleged that plaintiffs had posted two appeal bonds and because of the foregoing the appeal did not conform to the statutes and was void and the action should be dismissed.
At the trial the jury returned a verdict-in favor of plaintiffs in the amount of $340. It answered special questions to the effect that it allowed plaintiffs $140 on account of overcharge and $200 as attorney’s fees.
Motion for a new trial was overruled. Judgment was entered for the plaintiffs in the amount of the verdict. The defendant has appealed.
The defendant set out eleven specifications of error. The principal one, however, is that the court erred in not dismissing the action on motion of the defendant since it did not have power, sitting as a justice of the peace court on appeal from such court, to de termine and render judgment for attorney’s fees as it was a court of limited statutory jurisdiction on which the statutes did not confer power to fix and allow attorney’s fees. There was a further specification of error that the district court erred in not dismissing plaintiffs’ appeal because the appeal was not made and perfected in the manner provided by law. This specification was based on the fact that two separate appeal bonds were filed instead of one, and that in their notice of appeal plaintiffs stated they were appealing from the order of the city court sustaining a demurrer to the evidence rather than from a final judgment.
We shall first notice the argument of the defendant that the district court did not have power, sitting as a justice of the peace on appeal from such court, to give judgment for attorney’s fees.
All parties concede that where a matter is appealed to the district court from the justice court the district court takes only such jurisdiction and power as the justice had in the first instance. (See McCracken v. Wright, 159 Kan. 615, 157 P. 2d 814; also Ohio Hydrate & S. Co. v. H. W. Underhill C. Co., 141 Kan. 213, 40 P. 2d 337.)
The Emergency Price Control Act provides that the action to recover for overcharge and attorney’s fees may be brought in any court of competent jurisdiction. We have held that such an action even though it is provided for by a federal statute may be brought in one of our state courts provided the court possesses the requisite jurisdiction of the subject matter and jurisdiction to give the relief sought, in other words, is a “court of competent jurisdiction.” (See Thomas v. Chicago B. & Q. Rld. Co., 127 Kan. 326, 273 Pac. 451; also Graves v. Armstrong Creamery Co., 154 Kan. 365, 118 P. 2d 613.)
Whether a particular state court has jurisdiction of the subject matter and to grant the relief prayed for depends upon the local law. The question was considered in several cases reported as Second Employers’ Liability Cases, 223 U. S.T. These were several actions for damages brought against different common carriers in state courts pursuant to the Employers’ Liability Act. In considering the question of whether congress could provide that rights could be enforced in a state court the Supreme Court of the United States said:
“We are quite unable to assent to the view that the enforcement of the rights which the congressional act creates was originally intended to be restricted to the Federal courts. The act contains nothing which is suggestive of such a restriction, and in this situation the intention of Congress was reflected by the provision in the general jurisdictional act, ‘That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States. August 13, 1888, 25 Stat. 433, c. 866, § 1. Robb v. Connolly, 111 U. S. 624, 637; United States v. Barnes, 222 U. S. 513. This is emphasized by the amendment engrafted upon the original act in 1910, to the effect that ‘The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.’ The amendment, as appeal's by its language, instead of granting jurisdiction to the state courts, presupposes that they already possessed it.
“Because of some general observations in the opinion of the Supreme Court of Errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction as prescribed 'by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress and susceptible of adjudication according to the prevailing rules of procedure. We say ‘when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion,’ because we are advised by the decisions of the Supreme Court of Errors that the Superior Courts of the State are courts of general jurisdiction, are empowered to take cognizance of actions to recover for personal injuries and for death, and are accustomed to exercise that jurisdiction, not'only in cases where the right of action arose under the laws of that State, but also in cases where it arose in another State, under its laws, and in circumstances in which the laws of Connecticut give no right of recovery, as where the causal negligence was that of a fellow-servant.” (p. 56.)
This brings us to the question of whether under our constitution, statutes and decisions, the City Court of Wichita had jurisdiction of an action such as this to recover the amount of an overcharge and attorney’s fees as provided for by the Federal Price Control Act. Defendant argues that it did not have such jurisdiction and relies in a large measure on Hopkins v. Barnhardt, 223 N. C. 617, 27 S. E. 2d 644. That was an action brought before a justice of the peace to recover attorney’s fees by reason of an alleged violation of the Emergency Price Control Act. Judgment was for the plaintiff in the justice court for the amount of the overcharge and attorney’s fees. On appeal to the superior court the same judgment was entered. The question with which we are concerned was'not raised by the parties on appeal to the Supreme Court of North Carolina but that court raised it on its own motion. The court first demonstrated that justices of the peace were limited in their authority and jurisdiction by the constitution and the statutes of the state. The court then pointed out that an action to recover a penalty is an action ex contractu, of which the justice court would have jurisdiction provided the amount claimed was. within the statutory limit. The court then said “We know of no statute authorizing justices of the peace to fix and award attorneys’ fees in any proceeding. Nor can it be held that a justice of the peace has the inherent or equitable power to fix and award such fees.” From what is said further in that opinion we gather that the court viewed the matter from the standpoint of equity and equity powers. The only cases in which it appeared to the North Carolina Supreme Court that any court could allow attorney’s fees' was in the exercise of chancery power or by express statute, and the court said they were usually awarded out of funds in the custody of the court or out of the sum recovered in the litigation in which the attorney was employed. We have no quarrel with the decision in Hopkins v. Barnhardt, supra, that justices of the peace have no equity powers. Such is the rule in this state. If they have jurisdiction to award attorney’s fees the power is conferred by statute as construed by us. We shall examine our pertinent statutes, constitutional provisions and our opinions from that point of view.
The city- court of Wichita was created by chapter 130 of the Laws of 1899. . The statute, as amended, is now found in G. S. 1935 and G. S. 1945 Supp., 20-2001 to 20-2025, inclusive. Section 20-2002, G. S. 1945 Supp., among other things, contains the following provisions:
“The court . . . shall . . . have original jurisdiction in civil actions for the recovery of money only, and to try and determine the same, where the amount claimed does not exceed one. thousand dollars; ... In all other respects the said court hereby established shall have the same jurisdictions, civil and criminal, as justices of the peace now have in this state; and for the purpose of the jurisdiction, hereby conferred, and of its proper and necessary exercise, all the laws of this state relating-to the powers, duties and jurisdiction of justices of the peace and practice, pleadings and proceedings in justice courts-which are not in conflict with the provisions of this act shall apply to said city court and the judge thereof and to the mode of practice therein, and to the power thereof, original, mesne, and final, so far as the same may be applicable.”
It will be seen that from the outset the city court was given general power, authority and jurisdiction of a justice of the peace. Justices of the peace were provided for in the constitution. Sec- • tion 9 of article 3 provides, in part, as follows:
“Two justices of the peace shall be elected in each township . . . whose powers and duties shall be prescribed by law.”
The powers and duties of justices of the peace were provided for in chapter 81 of the General Statutes of 1868. Section 2 of that chapter provided, in part, as follows:
“The justices of the peace shall have jurisdiction and authority: . . . Eleventh, Under the restrictions and limitations herein provided, to have exclusive original jurisdiction of' civil cases where the amount claimed does not exceed one hundred dollars, and concurrent jurisdiction with the district court in actions on contract, express or implied, for the recovery of money only, when the amount claimed exceeds one hundred dollars, and does not exceed three hundred dollars.”
Thus it will be noted that from the beginning justices of the peace and the city court of Wichita had jurisdiction generally of actions for the recovery of money, the only limitation being as to the amount involved.
Old statutes are always interesting. These, however, are especially so to us here on account of another legislative policy developed early in our state, to which attention will now be called.
Ordinarily attorney’s fees may not in the absence of statute be recovered in actions for the recovery of money. Our legislature initiated the policy to which reference was just made in the enactment of chapter 94 of the Laws of 1874. Section 1 of that act provided that a railway company should be liable for killing animals in the operation of the railway irrespective of negligence of either party. Section 2 provided that upon failure of the company to pay on demand the owner might sue and recover the value of the animal or damages with a reasonable attorney’s fee for the prosecution of the suit in any court of competent jurisdiction in the county. Gulf Rld. Co. v. Shirley, 20 Kan. 660, was an action by a farmer to recover damages for stock killed by the railway company in its operation. The actions were commenced in justice court, where judgment was for the defendant. On appeal to the district court judgment was for plaintiff. A question was raised on appeal to this court about the power of the district court to allow any attorney’s fees to'the plaintiff for services performed in the justice court since plaintiff was defeated there. On that question this court said:
“In the latter court judgments were rendered in favor of the plaintiffs for the value of the stock killed, and attorney-fees in the justice’s as well as the district court. And this presents the first question. Where the stock-owner is defeated in the trial before the justice, and appeals to the district court, can he, if successful in the latter court, recover anything for the services of his attorney in the trial before the justice? We think he may. The statute provides that the owner may recover from the railway company the value, ‘together with a reasonable attorney-fee for the prosecution of the suit.’ Now the judgment finally rendered on the appeal established the fact of plaintiff’s right to recover, and that upon the merits of the controversy the justice erred. The attorney-fee is for the prosecution of the suit; and this covers the entire prosecution from the commencement until its final termination in the district, court. The company was in the wrong for not paying the claim. Its wrong compelled the action. The skill and ability of its counsel delayed the plaintiff in his recovery. Should it profit by causing this delay? Suppose such skill and ability should prolong the contest in the district court, hang one jury, secure an adverse verdict from another, and only be defeated after a long and wearisome litigation; would it be right that the plaintiff should recover no larger attorney-fee than if without struggle it had suffered the party to take the judgment to which he was entitled? The -extent of the litigation, as well as the amount in controversy, is an important factor in determining the proper fee to be awarded. It must be a ‘reasonable fee’ — reasonable, considering all the elements in the particular case which affect the proper amount of the attorney’s compensation. The law may be a stringent one. Perhaps its very stringency was necessary to make it adequate protection to those who are sought to be protected by it; or it may be, that it is unwisely and needlessly stringent. But these matters are for legislative consideration. The question with the courts is one of power, and not of policy. And that question having been solved heretofore in favor of the law, it only remains to apply its various provisions to the cases as they arise.” (p. 661.)
This court had considered the constitutionality of this act in K. P. Rly. Co. v. Mower, 16 Kan. 573. The general provisions were upheld as a proper exercise of the police power. The defendants argued also that the provision as to the plaintiff being entitled to an attorney’s fee, if he was successful in the litigation, while denying the same right to the defendant, violated the constitutional provision guaranteeing equal rights to all. In dealing with that argument this court upheld the provision, and said:
“We do not think the contention of counsel can be sustained. While the law may be harsh and rigorous, (and yet its rigor may have seemed to the legislature as essential to its value, for, if a claimant for stock killed was compelled to pay his own attorney’s fees, it might well happen that in all cases the amount of his claim — such amounts being uniformly small — would be consumed by attorney’s fees, and so leave the claimant in no better condition than before,) we see no reason to hold it beyond the power of the legislature. It is no uncommon thing for legislatures to provide, in cases where a failure to pay seems to imply more than ordinary wrong, that such failure should carry with it something in the nature of a penalty. Sometimes double or treble damages are given. The Iowa stock-law gave double damages. Our trespass act provides for both double and treble damages; (Gen. Stat. p. 1095, §§ 1 and 2.) Ten percent may sometimes be added in the discretion of the court. Other illustrations might be suggested. Some other matters are suggested, but it is unnecessary to prolong this opinion. We are of opinion that the act is constitutional, and applicable to the plaintiff in error.” (p. 582.)
These actions were both commenced in justice court. We quote them here not merely because in Gulf Rld Co. v. Shirley, supra, this court held that the district court on appeal from the justice court allowed attorney’s fees for services performed'by attorneys for the plaintiff in justice court, but on account of the reason given, that is, that the attorney’s fee was a penalty provided by the statute for the benefit of the plaintiff. The reason given is persuasive upon us in this appeal. This is also- true of K. P. Rly Co. v. Mower, supra.
St. L. & S. F. Rly Co. v. Curtis, 48 Kan. 179, 29 Pac. 146, also, Mo. Pac. Rly Co. v. Henning, 48 Kan. 465, 29 Pac. 597, were both actions brought pursuant to what is now G. S. 1935, 66-232 and 66-233. They were both commenced in justice court.
That section was enacted, in 1885. It provided that the owner of property destroyed or damaged on account of the operation of a railroad could recover therefor regardless of his contributory negligence. It also provided that “in all actions commenced under this act, if the plaintiff shall recover there shall be allowed him by the court, a reasonable attorney’s fee, which shall become a part of the judgment.” The plaintiff recovered in St. L. & S. F. Rly Co. v. Curtis, supra, more for attorney’s fee than was asked in the bill of particulars. On appeal this court reduced the attorney’s fee allowed to what was prayed for.
In Mo. Pac. Rly. Co. v. Henning, supra, the defendant complained because there was insufficient evidence as to the value of the services of the attorney for plaintiff. This court upheld the allowance and stated further:
“The attorney’s fees are made a part of the judgment by the plain words of the statute, and they are payable to the plaintiff, and not to the attorneys.” (p. 470.)
Defendant realizes that these actions were brought in the justice court in the first instance for damages including an attorney’s fee and allowed by the district court on appeal. She argues, however, the question she is pressing here was not raised — hence the cases are not in point. It is true the precise question was not raised, at least it was not dealt with in the opinion. It would be a little surprising if this precise question had not been raised since it was settled apparently so conclusively by the court in the two cases heretofore cited. The point is the attorney’s fee was always regarded as part of the recovery for which the plaintiff was allowed to bring suit in certain cases provided by statute, and always for the same reason. See, also, Abbey v. Railway Co., 108 Kan. 85, 194 Pac. 190, also, Machinery Co. v. Smith, 87 Kan. 331, 124 Pac. 414.
It will l>e noted that in both the above cases this court sustained the constitutionality, of the provision for attorney’s fees on the ground that it was in the nature of a penalty for failure to fence. (See, also, 11 A. L. R. note 884.)
Hopkins v. Barnhardt, supra, holds that an action for a penalty is an action ex contractu and hence one of which a justice of the peace has jurisdiction.
In Livingston v. Oil Co., 113 Kan. 702, 216 Pac. 296, we dealt with two statutes having to do with a corporation’s duty to pay its employees promptly when discharged. Two statutes were involved, each providing for a penalty when an employee was discharged and not paid at once. The first of these excepted from its terms steam surface railway companies and all corporations engaged in the production of farm and dairy products. We held that such a provision rendered the act unconstitutional.
The other act provided that when an employee was not paid upon written demand when discharged, then as a penalty for such nonpayment the wages of the employee should continue from the date of discharge until paid, provided that such wages should not continue for longer than sixty days unless action should have been commenced. We upheld this statute, and said:
“Is there any constitutional infirmity in this statute to justify the trial court’s ruling on the demurrer? While the statute does say that the continued allowance of wages after discharge is a penalty, we think it is essentially compensatory in its nature, as discussed above. It is a private wrong to turn off a workman without his pay. It is particularly a grievous thing for a corporation to do so. A corporation is an intangible entity, with many officials and functionaries. A laborer is oft-times mystified in attempting to deal with its numerous responsible heads. He may go from superintendent to manager and from manager to president, if these can be reached, only to be put off or sent on tedious or fruitless journeys to see other functionaries of the corporation before he can get his pay.” (p. 707.)
This case is of interest to us here because it indicates that this court from the beginning has treated statutes such as this which provide for a recovery by an individual of more than is actually due, as for the benefit of the person wronged, and the amount of the penalty is simply an additional amount to be recovered by him.
Once we reach the conclusion that the attorney’s fee is a penalty, and that penalties may be recovered in an action as a part of the sum actually due, then the conclusion that a justice court or city court has jurisdiction to give a judgment for attorney’s fees naturally follows.
The Emergency Price Control Act is analogous to the two statutes on which we have commented. It was enacted for the benefit of people who ordinarily do not have attorneys on their pay roll. The amounts due would in many instances be small. Had there not been a provision for penalities and attorney’s fees landlords would in many instances have been able to violate the schedule with impunity because the amount at issue would have been too small to bother with. The reason given in Gulf Rld. Co. v. Shirley, supra, for holding that attorney’s fees in a statute such as this are penalities for the benefit of the plaintiff, exists here. We agree with the conclusion reached by the trial court on this point.
Defendant also argues that the plaintiffs’ appeal to the district court,should have been dismissed because two appeal bonds were filed, one signed by one of the plaintiffs and two sureties and the other by two of the plaintiffs and the same two sureties. The pertinent statute is G. S. 1935, 61-1002. That section provides, in part, as follows:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal . . .”
Here there were three appellants and a joint appeal. We hold that the two bonds were a sufficient compliance with the statute.
Defendant next argues that the plaintiffs’ appeal should have been dismissed because in the notice of appeal the plaintiffs stated' they were appealing from the “judgment, orders, rulings, and de cisions of the court in the above action . . . and especially from the judgment sustaining the demurrer of the defendant . . . announced ... on the 22d day of October, 1945.” The record states that “on October 22, 1945, the appellant’s demurrer to the plaintiffs’ evidence was sustained and upon this being done the case was dismissed at the cost of the plaintiffs.” Defendant’s point here is that the notice of appeal should have stated that the appeal was being taken from the order dismissing the action at the cost of the plaintiffs rather than from the order sustaining a demurrer to plaintiffs’ evidence. We have concluded that the order dismissing the action followed as matter of course the order sustaining the demurrer to plaintiffs’ evidence and the notice of appeal was sufficiently definite that there was no question as to the finality of the judgment from which the appeal was taken.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action by resident taxpayers of School District No. 40 of Johnson county against the school board to enjoin defendants from issuing certain emergency warrants. A trial by the court resulted in judgment for defendants, and plaintiffs have appealed.
The legal question turns upon the interpretation of certain language in section 1 of chapter 371, Laws of 1941, now G. S. 1945 Supp. 79-2941. The title of the act reads:
“AN ACT relating to taxing districts in certain counties, authorizing such taxing districts to issue emergency warrants, and to make emergency tax levies.”
The section reads:
“That whenever it shall be apparent to a majority of the members of any board authorized to levy taxes in any taxing district in any county adjoining a United States army post or military reservation, or to any officer solely charged with that duty therein, that the rates of levy in the particular taxing district under consideration are so limited as to be insufficient for the raising of funds necessary to supply the needs of said taxing district for general maintenance expenses for the current tax year, such officers or officer shall have the authority to issue warrants to meet such general maintenance expenses for the current tax year to the amount of money not exceeding fifty percent of the amount of money which can be raised in such taxing district by using the rates limited by law: Provided, That no such authority to issue warrants shall be exercised until an application for such exercise shall be made to the tax commission, which body, if the eyidence submitted in support , of the application shall show an emergency need for the issue of warrants for the said additional amount hereby authorized or any part thereof, is hereby empowered to order the issuance of such warrants as may be shown to be necessary, but no order for the issuance of such warrants shall be made without a public hearing before the state tax commission, and notice of such hearing shall be published in two issues of,a paper of general circulation within the district applying for such authority at least ten days prior to such hearing. The notice shall be in such form as the state tax commission shall prescribe, and the expense of such publication shall be borne by the district making application: And provided further, That at no time shall the issuance of such warrants authorized by the tax commission in any such taxing district exceed in amount fifty percent of the amount of money that can be raised by taxation in any such district for the current tax year under the existing rates.”' (Emphasis supplied.)
The facts are agreed to in the pleadings or specifically stipulated as follows: That School District No. 40 is a regularly established school district of Johnson county; that the defendants named are its officers and the governing body of the school district; that they were preparing to issue emergency warrants of the school district in a sum not to exceed $10,000; that defendants claim authority to issue such emergency warrants based upon an application to and an order of the State Tax Commission; that pursuant to defendants’ application, upon a notice of hearing before the State Tax Com mission on a date stated, the hearing was conducted and the commission made a finding of the existence of an emergency in the taxing district in that the rates of levy under which the district operates are so limited as to be insufficient for the raising of funds necessary to supply the needs of the taxing district for the general maintenance and expenses for the current year; and further found that the application complies with the law; that the allegations and statements therein contained are true, and that there is a need for an additional $10,000 in the general fund of the taxing district. An order was issued in accordance with the findings authorizing defendants to issue emergency warrants in the amounts of not to exceed $10,000.
It was stipulated that the Olathe naval base is a military reservation wholly within the boundary lines of Johnson county; that there is no military reservation lying outside of Johnson county which joins the county, and that the nearest point on the boundary line of the Olathe Naval Base is about eighteen miles from the nearest boundary line of School District No. 40.
It was the contention of plaintiffs in the court below, and their contention here, that the statute above quoted did not authorize the State Tax Commission to consider the application of defendants and to make an order authorizing the issuance of the emergency warrants. There is no contention but what the proceeding before the State Tax Commission was in proper form. The contention is that it lacked authority under the statute, the grounds being that School District No. 40 in Johnson county is not such a taxing district and so related to the military reservation as to make the statute applicable to it.
The principal legal question presented is the correct interpretation of the first four lines of the section of the statute hereinbefore quoted, which read:
“That whenever it shall be apparent to a majority of the members of any board authorized to levy taxes in any taxing district in any county adjoining a United States army post or military reservation . . .”
Appellants contend the language means that the taxing district itself must adjoin the post or military reservation, and argue that where the language of a statute admits of two interpretations attention will be given to certain rules of construction: (1) To conditions leading to the enactment, the manifest purpose of the legislature and the results that will naturally stem from the alternative interpretations. (2) To rules of grammatical construction and the common acceptation in the use of words. (3) To application of the rule that doubts should be resolved in favor of the taxpayer.
Appellees contend that the language “in any taxing district in any county adjoining” the post or reservation is not ambiguous and does not call for the consideration of the rules suggested by appellants; hence, that it is not essential that the taxing district in question adjoin the post or reservation. We concur in this view and hold that any taxing district in a county which adjoins a military reservation may take advantage of the act if the facts justify it in dping so.
With this view it is not necessary to discuss -at length the rules argued by appellants. We may say, however, that we have considered everything presented in the briefs of counsel pertaining to the rules suggested and a full discussion and examination would not justify us in reaching a different conclusion.
Appellants argue that this construction would lead to absurd results by making it possible for the county itself, a drainage district, cemetery, township, school district, incorporated city, etc., anywhere in the county which adjoins an army post or military reservation to issue such warrants and levy taxes to pay them. This result would not follow. The officers of the taxing district under this statute do not simply exercise their own judgment concerning the matter. If they conclude they need to issue such warrants they must first make application to the State Tax Commission, give notice and have a hearing, show the necessity, and obtain authority to issue such warrants, all of which was done in this case. Hence, rash or extravagant action'is not likely to occur.
In making its findings in this case the commission found that the taxing district, at the' regular tax rate, could not raise sufficient funds for the general maintenance expenses of the district for the current year “because of the proximity of the taxing district to” an army post or military reservation. Counsel for appellants criticize the use of the word “proximity” and point out that the commission did not specifically say whether the taxing district had to adjoin the post or reservation or be in a county which joined it, and suggest that the commission “made its own law” instead of following the statute. We shall not take space to analyze fully all the commission’s findings to determine whether this criticism is just, but assuming if to be, that fact would not defeat the validity of the commission’s final order. It is well settled, of course, that the reason the court gives for its decision is immaterial if the decision it makes is correct. In short, we look to the decision rather than to the reasons for it. The ‘ commission had authority under the law to consider the application made to it, to hear the evidence, and to make a final ruling,' which it did. There is no contention to the contrary. Indeed, there is no contention now that the evidence before the commission did not justify its order authorizing defendant to issue the warrants in question.
Counsel for appellants argue that the construction we have given to this statute would render it unconstitutional, making it violate article 2, section 17, >of our constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
Concededly this question was not raised in the trial court, and we might ignore it for that reason under the authority of Fitzpatrick v. Bean, 128 Kan. 473, 279 Pac. 7. But, passing that, we regard the point as not well taken. Counsel agree that World War II had been declared only a few months before the statute in question was enacted and that the army posts and military reservations in this state had become active for building and construction work as well as for the assembling and training of army and navy forces. We think that presented a situation where the legislature was authorized to enact legislation pertaining to conditions existing in the state near the army posts arid military reservations. Among those conditions was the influx of workmen and military personnel and their families, which sorely taxed housing conditions, school facilities and other situations, which made it prudent for legislation dealing with the subject.
The other principal question in the case is whether Johnson county is a “county adjoining a . . . military reservation.” It was stipulated that the Olathe naval base is a military reservation and that it lies wholly within Johnson county. Counsel for appellants argue strenuously that since the military reservation is wholly within Johnson county it cannot be adjoining it. Various definitions of the words “join” and “adjoining” are set out in the brief and decisions are cited construing those words, which we need not take space to set out and discuss.
Counsel for appellees point out that the military reservation in question, having been taken over by the Federal government, is no longer a part of Johnson county in a governmental sense. The point is well taken.
The federal constitution (art. 1, sec. 8, cl. 17) provides:
“The Congress shall have power ... To exercise exclusive Legislation in all Cases whatsoever, . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
Our legislature, by G. S. 1935, 27-101 and 27-102, gave the consent of this state to the acquisition by the United States by purchase, condemnation, or otherwise, of any land in the state of Kansas, which has been, or may hereafter be, acquired for custom houses, courthouses, post offices, national cemeteries, arsenals, or other public buildings, or for other purpose of the government of the United States, and specifically provided that “exclusive jurisdiction over and within any lands so acquired by the United States shall be, and the same is hereby, ceded to the United States, for all purposes;” saving certain rights for the service of process and taxing certain property. Hence, the Olathe naval base, being a military reservation, is exclusively within the jurisdiction of the federal government, except for purposes not here important, and is taken out from under government by the laws of the state of Kansas. Crime committed, within the reservation is punishable only under the laws of the federal government and in the federal courts. Even residents of the reservation are not entitled to vote at our state elections. (See Herken v. Glynn, 151 Kan. 855,101 P. 2d 946, where the authorities are collected.) It is true the federal government is not required to take full jurisdiction of property it may desire for some-governmental-purpose (State, ex rel., v. Corcoran, 155 Kan. 714, 128 P. 2d 999), but whep it does take exclusive jurisdiction the area is taken out from under the control of our state laws. There is no suggestion in the record that the jurisdiction of the federal government is less than exclusive over the military reservation of the Olathe naval base. Since this reservation is wholly within Johnson county it necessarily follows that Johnson county adjoins it, not only at one place, but on all sides.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for personal injuries. Judgment was for defendant sustaining its demurrer to plaintiff’s amended petition. The plaintiff has appealed.
The amended petition alleged that the defendant was a corporation licensed to do business as a concern manufacturing airplanes; that on January 3, 1945, without fault on his part, plaintiff was injured as the proximate result of the negligence of employees, of defendant; that plaintiff is a painter by trade and’on January 3, 1945, was employed by one Ed Coultis who was working under a separate contract employing several men, among them plaintiff, painting a building of defendant known as “Plant Number One.” The petition then contained allegations which on account of their importance in this appeal will be set out here, as follows:
“That on January 3, 1945, at about 10:00 a.m. this plaintiff was on a ladder, at or near the top thereof, which ladder was approximately thirty feet in height, at work, painting over his head, holding his paint brush in his right hand; that there is, and was at all times pertinent herein, an overhead traveling crane in said Plant Number One; that said crane, and the tracks upon which it ran, and operated, were at about the same height, above the floor, as was this plaintiff, as he worked, painting over his head, as aforesaid, on said ladder; that at said time and place, while this plaintiff was at work, the operator of said traveling crane, one Bartel, then and there the duly authorized and acting agent, servant, and employee, of the defendant company, and at the direction of the defendant, suddenly, and without any warning of 'any kind or character, started said crane in motion, and ran said crane toward, onto, and against this plaintiff; that all times pertinent herein the plaintff upon his ladder was in full, plain and unobstructed view of said crane but that notwithstanding said facts, said operator, Bartel, continued to operate and propel said crane toward, upon, and into this plaintiff, in such manner as to catch, and enmesh the right hand and arm of this plaintiff in the machinery of said crane, mangling said right hand and arm, simultaneously knocking the ladder upon which the plaintiff had been working to the floor, thus leaving the plaintiff hanging by his right hand and arm; that before the plaintiff’s helper could raise the fallen ladder to attempt to rescue the plaintiff, said defendant company, acting- by and through its duly authorized and acting agent, servant, and employee, the said crane operator, Bartel, so manipulated the machinery of said crane that the plaintiff was freed from said crane, and was dropped with great force and violence fo the concrete floor approximately thirty feet below;
“The plaintiff further alleges that said accident and resulting injuries to him were the result of the carelessness and negligence of the defendant company as follows:
“(a) By reason of the carelessness and negligence of said crane operator in using and operating said overhead crane, and the carelessness and negligence cf said defendant company in maintaining said overhead crane.
“(b) Plaintiff says he does not know and it is not within his knowledge whether said accident was caused by improper or defective equipment of said defendant company or by the improper, negligent and careless operating of said overhead crane by said Bartel, but that the same is within the knowledge of the defendant company.”
The-foregoing is referred to in the record and in this opinion as paragraphs 5 (a) and 5 (b).
Damages were asked in- the amount of $89,000.
To. this amended petition the defendant first interposed a motion to require the plaintiff to make his petition more definite and certain in certain particulars, also a motion to require the plaintiff to elect whether he would rely for recovery on the specific negligence charged in his amended petition or on the character and fact of the accident alone, as alleged in paragraph 5 (b) of his amended petition.
On the argument of this motion counsel for plaintiff announced in open court that the cause of action in plaintiff’s amended petition was based upon the doctrine of res ipsa loquitur exclusively. Counsel for plaintiff also advised the court by letter that plaintiff asked leave to amend his amended petition by striking therefrom the words “willfulness” and “wantonness.” This leave was granted.
The first paragraph of the motion of defendants to require plaintiff to make his petition more definite and certain asked that he state how and in what manner the defendant was negligent, careless, willful and wanton. This paragraph of the motion was overruled because of the election to proceed under the doctrine of res ipsa loquitur and the striking from the petition of the above words.
In paragraph 2 of the motion to make definite and certain defendant asked that plaintiff be required to state upon what rung of the ladder he was standing at the time of his injury. The trial court overruled this motion on the ground that it would require the plaintiff to plead his evidence.
In the third, fourth and fifth paragraphs of the motion defendant asked that plaintiff be required to state what part of the crane ran against the ladder, what part of the crane caught the hand of plaintiff and what part of the crane knocked the ladder to the floor. These were all overruled because the plaintiff had announced that he intended to rely .upon the doctrine of res ipsa loquitur.
In paragraph six of the motion defendant asked that plaintiff be ordered to state how he was dropped and thrown to the floor by the crane. The trial court overruled this motion because plaintiff asked and was given leave to strike the word “thrown” from his petition.
In the seventh paragraph of the motion defendant asked that the plaintiff be ordered to state with- definiteness and certainty in subsection (a) of the fifth paragraph what the carelessness and negligence of the crane operator was. The court overruled this motion because the plaintiff had expressed intention to rely upon res ipsa loquitur exclusively.
In the eighth paragraph of the motion defendant asked that plaintiff be required to state how the acts described were willful, wanton, grossly careless and negligent. This was overruled and defendant’s motion to strike from the amended petition references to willfulness, wantonness and grossness was sustained.
Defendant asked in its motion that plaintiff be ordered to strike subsection .(b) of the fifth paragraph for the reason 'that it constituted no part of an affirmative allegation of plaintiff’s purported cause of action. This motion was overruled because plaintiff had announced that he was relying exclusively on the doctrine of res ipsa loquitur.
The defendant in its motion to strike also asked that the three paragraphs describing the injuries be stricken. This was overruled.
The motion of defendant to require plaintiff to elect whether he would rely for recovery on the specific acts of negligence charged in the amended petition or upon the character and fact of the accident alone as alleged in paragraph 5 (b) of his amended petition was overruled because plaintiff had announced in open court that his cause of action was based exclusively on the doctrine of res ipsa loquitur.
The result of all these motions and the court’s ruling on them was that the plaintiff was in court with a petition that stated he was at the top of a thirty-foot ladder painting, with his back turned to the moving crane, and an employee of defendant without warning ran the crane against the ladder, and knocked it down and caught the hand of plaintiff in the machinery, held him in the air for a while, then dropped him to the cement floor, injuring him.
Subparagraph 5 (a) was out. All that remained of paragraph 5 was subparagraph 5 (b). For the sake of emphasis it will be repeated-here:
“(b) Plaintiff says he’ does not know and it is not within his knowledge whether said accident was caused by improper or defective equipment of said defendant company or the improper, negligent and careless operating of said overhead crane by said Bartel, but that the same is within the knowledge of the defendant company.”
To this amended petition defendant interposed a general demurrer on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant.
The trial court sustained this demurrer and in a letter announcing. its decision said:
“The Court is of the opinion an action at common law cannot be maintained in this case, relying principally upon Bailey v. Mosby Hotel Co., 160 K. 258 and Hoffman v. Cudahy Packing Co., 161 K. 345.
“Also, the doctrine of res ipsa loquitur does not apply, relying principally upon Sipe v. Helgerson, 159 K. 290 and Starks Food Markets Inc. v. El Dorado Refining Co., 156 K. 577.”
On account of the conclusion we have reached it will be necessary to consider both these reasons.
The basis for the first reason was that the plaintiff should have sought to recover under the workmen's compensation act.
It will be remembered that the third paragraph of the amended petition was as follows:
“Plaintiff further alleges that he is, and was, at all times pertipent herein, by trade, a painter, which trade he had followed for many years prior to January 3, 1945, and on said date he was employed by Ed Coultis, who in turn was working under a separate contract, employing several men, among them, this plaintiff, painting the interior of that building of the defendant company, known as Plant Number One.”
Defendant argues that this action is controlled by G. S. 1935, 44-503. That section reads as follows:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor .of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him;”
The action was argued in the court below and submitted here on the theory that if the plaintiff could recover under the workmen’s compensation act then he could not maintain this common law action for damages and that the trial court was correct in sustaining the demurrer on the first ground.
Workmen’s compensation is entirely a matter of statute. The question is whether under the facts pleaded in the petition the plaintiff is under the act. Considerable attention has been paid in this opinion to the motion of defendant to require plaintiff to make his petition more definite and certain. This was done because the defendant made a strenuous effort to have that part of the petition describing the manner in which the injury occurred made definite and certain but was satisfied to level his demurrer at the petition just as it was at first drawn as far as the relationship of the parties was concerned. There we have the simple statement that the defendant was in the business of manufacturing airplanes and parts, and on the date of plaintiff’s injury he was employed by Ed Coultis, who in turn was working under a separate contract employing several men, among them plaintiff, painting the interior of a building of defendant, known as Plant Number One. That is all we know from this petition about the relationship of the parties. The action is brought against the aircraft corporation. The plaintiff was not employed by that company. The only relationship between the plaintiff and the aircraft company is that the aircraft company had contracted with the employer of plaintiff to do certain work and plaintiff was working for this person with whom the aircraft company had contracted.
Defendant bases its argument that plaintiff should have made a claim under the workmen’s compensation act on the provisions of G. S. 1935, 44-503, which has already been quoted in this opinion. That section provides that “Where any person (in this section referred to as principal) ” — that under the allegations of the petition in this case would .be the aircraft company — “undertakes to 'execute any work” — that would be under the allegations of this petition painting the interior of that building of the defendant company known as Plant Number One — “which is a part of his trade or business” — these words refer back to the person to whom reference was made in the first of the section and means here the aircraft company — these words will be discussed a little later — “and contracts with any other person (in this section referred to as the contractor) ” ■ — in this petition these words refer to Coultis the employer of plaintiff — to do “any part of the work undertaken by the principal”— these words refer to the work to which reference was made in the first sentence of the section and mean “work which is a part of” the trade or business of the aircraft company — “the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him.”
It seems that to bring a workman under this act he must have been doing work which was a part of the “trade or business” of the principal.
Defendant argues that the allegations of this petition compel a conclusion that the work plaintiff was doing when he was hurt was a part of the trade or business of the aircraft company.
The question is not free from doubt. In Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701, the plaintiff was employed by a contractor “to clean, wax and polish” the floors of the coffee-shop, an eating place on the first floor of the hotel building. He alleged he was injured by the negligence of the hotel company while on his way to start polishing and waxing the floors. He brought a common law action against the hotel company. The hotel company argued that the plaintiff was under the workmen’s compensation act under the provisions of G. S. 1935, 44-503. We so held and said:
“The third contention, strongly urged by appellant, is that cleaning and waxing floors was no part of appellee’s regular business as operator of the hotel. It must first be noted that although appellant argues that the evidence would disclose that the work was to be done ‘by a special process’ the pleadings contain no such allegation. Plaintiff simply alleged in his petition that the contract was to ‘clean and wax the floor’. In the reply it was alleged that the work was to be done ‘according to the plaintiff’s and his employer’s own methods.’ If the latter be regarded as enlarging the allegations of the petition in a manner to state a new cause of action then it must be disregarded under the rule of law heretofore stated. However, -we need not consider it so significant. There is no averment that the employer’s ‘own method’ was specialized, out of the ordinary, or one requiring unusual equipment.
“We do not think it necessary to labor the point. It is common knowledge that cleaning and waxing the floor of an eating place is common practice. It could almost be said to be a routine matter in any well-conducted eating place. According to the petition the eating place in question is the coffee- , shop in a ten-story hotel.” (p. 264.)
It should be noted, we said, “cleaning and waxing the floor of an eating place is common'practice.” “It could almost be said to be a routine matter.” The decision on that point turned on th.e above conclusion. Here the petition does not state whether the painting being done by plaintiff was on a new building under construction or a building that had been constructed for some time and was being painted as a matter of maintenance. The petition does not disclose 'whether the plaintiff was under the supervision of defendant or not. We are not prepared to say just what difference these facts would make because the question was not briefed but in the absence of a motion to require the petition to be made more definite and certain, on a demurrer the petition will be construed in favor of the plaintiff.
The petition alleged that defendant was organized and licensed to do business as a concern manufacturing airplanes and parts. It was having the interior of the building painted. Was such painting a part of its trade or business?
The authorities are carefully reviewed in Bailey v. Mosby Hotel Co., supra. Bittle v. Shell Petroleum, Corp., 147 Kan. 227, 75 P. 2d 829, was a case where the petroleum corporation made a contract with one Churchill, who was engaged in the business of welding, to come upon one of its leases and weld a boiler. Churchill sent one of his employees on the lease to carry out the work. He was injured by the negligence of the petroleum company and brought a common law action. The company argued that pursuant to the provisions of G. S. 1935, 44-503, he should have made a claim under the workmen’s • compensation act. We held:
“In an action for damages for injuries sustained by plaintiff when a truck in which he was riding struck and broke a gas pipe line laid across a private roadway on defendant’s premises, where, the escaping gas caught fire and severely burned the plaintiff, the petition examined, and held, that as against a demurrer its allegations touching the facts of the accident and the cause of plaintiff’s presence on defendant’s premises at the time and place did not show that plaintiff’s right of redress was governed by the workmen’s compensation act, and did plead a common-law action for damages for the negligence alleged.
“Under the facts stated in the petition and summarized in the opinion, plaintiff’s immediate employer was an independent contractor; and plaintiff’s legal right of redress against defendant was not governed by the workmen’s compensation act.” (Syl. ¶¶ 1, 2.)
Lehman v. Grace Oil Co., 151 Kan. 145, 98 P. 2d 430, was a case where the oil company was owner and operator of an oil and gas lease. Will Ashcraft was engaged in the business of moving houses, the oil company made a contract with Will Ashcraft to move a house onto the lease and Ashcraft employed Lehman to help him with the job. While working on the moving job Lehman was injured by a low hanging telephone wire. Lehman made a claim for workmen’s compensation. The commissioner of workmen’s compensation and the trial court denied compensation. The workman conceded on appeal that Ashcraft was employed by the oil company to move the building and that Lehman was employed solely by and was .under the supervision and control of Ashcraft. Lehman contended that under the provisions of G. S. 1935, 44-503 (a) it was immaterial whether the trade or business in which Ashcraft was engaged was the trade or business of the oil company if the work in which claimant was engaged facilitated or advanced the 'interests of the business in which the oil company was engaged. We analyzed several authorities upon which the workman relied and pointed out that these cases turned upon the fact that the work being done by the injured workman was part of the business of the respondent and a necessary incident to the prosecution of its primary business. We cited Bittle v. Shell Petroleum Corp., 147 Kan. 227, 75 P. 2d 829; Setter v. Wilson, 140 Kan. 447, 37 P. 2d 50, and Shrout v. Lewis, 147 Kan. 592, 77 P. 2d 973. We then inquired as to what the business of the independent contractor — that of moving buildings — had to do with the trade of the oil company and said “obviously nothing.” We said further—
“In. other words claimant was not injured in work which was a necessaiy incident of operation, but in specialized work which was designed to equip the lease for operation. That trade or business of the independent contractor, according to the evidence, was a specialized trade or business, which, first, was no part of the trade or business of the principal, the oil company, and second, was not work which the principal had contracted to perform'for anyone. A careful examination of the subdivision (a) of the statute will clearly disclose the principal is not liable for compensation unless the work falls within one of the two classifications above stated.” (p. 153.)
The appellee here cites and relies upon Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613, and Swift v. Kelso Feed Co., 161 Kan. 383, 168 P. 2d 512.
We have examined those cases and have concluded they do not quite support appellee’s contention.
See, also, Horrell et al. v. Gulf & Valley, etc., Co. Inc., 15 La. App. 603,131 So. 709; and note in 150 A. L. R. 1214. We have concluded, therefore, that the allegations of this petition do not compel a conclusion that the work upon which plaintiff was engaged was a part of the work or business of the .defendant, and as far as the first reason assigned for sustaining the demurrer the trial court was not correct.
This alone does not compel a reversal of the judgment, however. It will be remembered that the court also sustained the demurrer on the ground that the doctrine of res ipsa loquitur did not apply, that is, the court held that the action was one where specific acts of negligence should have been pleaded rather than a statement such as is contained in paragraph 5 (b) of the petition that the plaintiff did not know and it was not within his knowledge whether the accident was caused by improper or defective equipment or the improper negligence and careless operating of the crane but that all this information was within the knowledge of the defendant company.
It will be remembered the defendant filed several motions directed at this portion of the petition with the result that plaintiff announced in open court and took the position that he was depending upon the doctrine of res ipsa loquitur.
The trial court in sustaining the demurrer to the petition on the ground that the doctrine of res ipsa loquitur did not apply cited Sipe v. Helgerson, 159 Kan. 290, 153 P. 2d 934, and Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102. Consideration of whether the ruling was correct may well start with an examination of the opinions in those two cases.
The Foods Market case was one where a truck containing' a large quantity of gasoline, then operated by the defendants, was driven into.the garage for the purpose of delivering gasoline to the tenant operating it and that while delivery of gasoline from the tank truck was being made by the driver “to one of the portable gasoline tanks of said tenant within such garage and that while said gasoline tank truck was then ,and there standing within said garage in the rear ■ portion of it . . . said driver negligently and carelessly caused, allowed, suffered and permitted the ignition of gasoline and a fire in and about said tank truck and portable tank” causing an extensive fire and resulting in damages specifically alleged. The petition contained a further allegation as follows:.-
“That at the time of such delivery of gasoline from said tank to such portable tank and at, the time of said ignition of said gasoline and accompanying fire there was no other person in said garage except said driver of said tank truck and said gasoline were then and there within and under the exclusive and sole control, care and supervision of defendants . . . and that said ignition and accompanying fire resulted solely from causes then and there existing which were then and there within the exclusive and sole control and knowledge of defendants.” (p. 580.)
The plaintiff relied upon the doctrine of res ipsa loquitur. The trial court overruled defendants’ demurrer to the petition.. In reversing we said:
“It is first observed that the doctrine of res ipsa loquitur, which means ‘the thing speaks for itself’ is a rule of evidence and not of substantive law. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; 38 Am. Jur. 994; 45 C. J. 1196.) However, it has been held that cases dealing with the doctrine as a rule of evidence are authority on the question of pleading in such cases (45 C. J. 1082). Such a holding appears to be sound for it would seem that for a petition to be sufficient, it must contain allegations of fact which, if proved, would warrant application of the doctrine. We therefore may consider our own decisions, where sufficiency of proof was under consideration, as well as other authorities.
“It is settled law that the mere fact an accident happens or an .event occurs in which injury results is not sufficient to establish liability; that negligence is never presumed but must be established by proof; that where direct proof is lacking the circumstances may be proved, and if they are such as to leave no reasonable conclusion to be drawn other than that the defendant be at fault, they may be shown to make a prima facie case, and to warrant application of the doctrine of res ipsa loquitur. Of course if the plaintiff proves specific negligence the doctrine does not apply. Nor where it may apply, is the defendant precluded from showing an intervening cause, the act of a third person causing the injury, vis major, or other proper’ defense to relieve himself of liability. See Mayes v. Kansas City Power & Light Co., and Stroud v. Sinclair Refining Co., supra. See, also, 45 C. J. 1210, and 38 Am. Jr. 997.
“The doctrine is based in part on the theory that a defendant in charge of an instrumentality which causes the injury has either knowledge 'of the cause or the best opportunity of ascertaining it, while a plaintiff is without such knowledge and must rely upon proof of circumstances in order to establish that the injury would not have occurred except for the defendant’s negligence.” (p. 581.)
After stating the above’ rule we pointed out various circumstances the petition did not allege and which might very well have been the cause of the fire.' We said:
“If on trial the facts alleged were all that were shown, the trier of the fact could only indulge in conjecture as to the cause of the fire. In such case the doctrine of res ipsa loquitur should not be applied.” (p. 583.)
The holding in Sipe v. Helgerson, supra, is to about the same effect.
We see no reason to depart from the rule announced in those two cases and the authorities cited in the opinions. Our trouble comes from applying this rule to the facts pleaded in this petition. In the first place, the petition pleads that plaintiff was at or near the top of a thirty-foot ladder, a place where under the allegations his duty as a painter took him. A dangerous place, no doubt, but the ceilings of rooms thirty feet high must be painted and one means of doing that job is by men at the top of thirty-foot ladders; that he was painting over his head, the work he was hired to do. The petition then tells how there was an overhead crane there at about the same height as the plaintiff on the ladder and that while he was working with his back to the crane an agent of defendant without warning ran the crane against the plaintiff so as to catch his right hand in the machinery and at the same time knocked the ladder down so that plaintiff was hanging from the crane by his right hand and that the agent of defendant so operated the crane that plaintiff was suddenly released and dropped to the cement floor. For the purpose of this opinion it will be presumed that the plaintiff could prove every fact above stated. If so, we could not say he had not established a cause of action against defendant. The facts are peculiarly well' adapted to the fundamental reasoning of the doctrine of res ipsa loquitur. The reason the doctrine was adopted in the first place was to permit recovery when the agency causing the damage was in the possession of and under the control of one of the parties so that it was impossible for the injured party to state just what caused the damage, so long as the circumstances which could be proved under the allegations would lead to no other reasonable conclusion than that the defendant was at fault. See Sipe v. Helgerson, supra; also Clarke v. Cardinal Stage Lines, 139 Kan. 280, 31 P. 2d 1; Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599.
Defendant argues here that since under the allegations of this petition two instrumentalities were involved, that is, the crane and the ladder, and since only one of them was under the control of defendant the doctrine of res ipsa loquitur may not be relied on. The allegations plead that defendant was on the ladder painting, as he had 'a right to be. He might as far as the petition shows have continued painting without injury until quitting time, when he could have descended from the ladder, put his brushes away and gone home, there to spend a peaceful evening secure in the consciousness of a .day’s work well done without being injured, had it not been for the crane knocking-the ladder from under him, and suspending him in mid-air. The ladder was not an instrumentality of the injury. It was simply one of the working tools of plaintiff. Furthermore under the doctrine of res ipsa loquitur the defendant could in answer to this petition plead and prove, if facts warranted, that there was another cause of the injury not under its control. See Starks Food Markets, Inc., v. El Dorado Refining Co., supra; Mayes v. Kansas City Power & Light Co., supra; also Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77.
Defendant argues that the doctrine does not apply because the injuries may have resulted from other causes than the fault of the defendant. It argues that plaintiff could have been unnecessarily alarmed and jumped from the ladder when he saw the crane in motion ; he could have slipped from the ladder; he might have become frightened and fallen from the ladder; the ladder might have slipped, throwing him therefrom.
The rule is that in order to make res ipsa loquitur inapplicable the facts must warrant a reasonable conclusion that some cause other than'the negligence of the defendant caused the injury. It would not be reasonable to conclude from the allegations of this petition that any of the contingencies mentioned happened. The petition alleged as clearly as the use of words permits that while plaintiff was working the agent of defendant caused the overhead crane to hit plaintiff and the ladder upon which he was standing and knocked the ladder from under him, while holding him in the air by his hand.
Furthermore, even though the action be based on res ipsa loquitur the defendant may by way of answer allege and prove if the facts warrant that the injury was the result of some intervening cause or it may plead and prove any proper defense. See Starks Food Markets, Inc., v. El Dorado Refining Co., supra; also Mayes v. Kansas City Rower & Light Co., supra; Stroud v. Sinclair Refining Co., supra; 45 C. J. 1210, and 38 Am. Jur. 997.
The judgment of the trial court is reversed.
Harvey, C. J., and Burch, J. dissent from paragraph 2 of the syllabus and the corresponding part of the opinion. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Dalton Holt, appeals from convictions by a jury on two counts charging the sale of Lysergic Acid Diethylamide (LSD) in violation of K. S. A. 1976 Supp. 65-4127b and 65-4109, and one count charging the sale of Cannabis Sativa L. (marijuana) in violation of K. S. A. 65-4105 (d) and K. S. A. 1976 Supp. 65-4127b (b) (3).
The state’s evidence consisted of several trial exhibits, testimony of a forensic chemist, who identified the exhibits as LSD and mari juana, and the testimony of John J. Washington, a black undercover narcotic agent employed by the Kansas Bureau of Investigation (KBI), who testified that he made purchases of the described substance from the defendant. Washington testified he had previously worked as a Youth Counselor for the Federal Government and that he had also been employed by the Federal Bureau of Prisons. He became interested in the eradication of narcotics violations and, therefore, commenced his present work for the KBI. He testified that during the summer of 1974 he was using the name of John Long in his undercover work in Coffeyville. He. made the purchases from defendant which gave rise to the charges herein on July 29 and August 11, 1975, in Coffeyville. Washington had become acquainted with a young black man named Gerald Higgins, who was present when the July 29th purchase was made. Concerning this July 29th purchase, Washington testified he contacted the defendant near a Coffeyville restaurant on that date and asked him about finding some LSD. About 5:50 p. m. Washington, accompanied by Higgins, set out to find defendant and located him at the residence of one Frank L. Fullard on East Sixth Street. Washington testified he asked defendant about getting some “acid” and was told that defendant’s brother, Jesse Hutchinson, had some LSD, but they would have to come back later to get it.
Washington and Higgins returned to the defendant’s residence at approximately 6:25 p. m. On this occasion defendant told them his brother was at the hospital with sixty “hits” of the LSD that Washington wanted. Thereupon, defendant got into a station wagon with a young woman, later identified as his sister, Dorothea Holt, and drove to the Coffeyville Memorial Hospital. Washington and Higgins followed in Washington’s automobile.
Once at the hospital parking lot, defendant parked his station wagon and got into Washington’s automobile, directing him to park near a blue Chevrolet Impala automobile bearing tag number MG H 11. Defendant went to the blue Chevrolet and talked to its occupant for a short time. He then returned to Washington and reported his brother had only fifty-one hits. According to Washington a deal was made for $102.00 and he gave $110 in cash. Defendant went back to the Chevrolet Impala and returned with $8.00 in currency and a vial containing fifty-one yellow tablets. Washington took Higgins back to the bar where he met him and drove alone to his motel room, where he tagged and stored the vial and its contents in an evidence box located in the state vehicle he was driving. On August 11, 1975, this vial was delivered to the KBI Narcotics Division Headquarters in Topeka.
Approximately two weeks after the first purchase, on August 11, 1975, Washington again made contact with defendant in the same bar in which he had previously met Higgins. Washington inquired about buying some more drugs. Defendant replied he had “4 bags of pot” and “5 hits of acid.” Defendant got into 'the automobile with Washington and produced four bags of a “green leafy substance.” Washington then drove with the defendant to his residence on East Fifth Street, where, according to Washington, the defendant waved to his sister, Dorothea, who, thereupon, brought to the car a small vial containing several tiny yellow tablets. Washington testified he gave the defendant $90.00 and left with the vial and the four bags of vegetable matter. Within twenty-five minutes Washington tagged these containers and placed them in the evidence box. On August 15, 1975, he delivered these items to the KBI laboratory in Topeka. A check on the car bearing MG H 11 license number revealed that it belonged to Jesse Hutchinson of Independence, who was identified by defendant as his brother.
Defendant took the witness stand in his own behalf and denied selling any drugs to Washington, whom he had known as John Long. He recalled seeing Washington and Gerald Higgins at Frank Fullard’s house on July 29, but testified that Washington stayed in the car and had no conversation with him. Defendant testified he stayed in Fullard’s house all day and until after the time of the alleged sale at the hospital. He denied having gone to the hospital that day and denied having seen his brother, Jesse Hutchinson, on that occasion. Defendant also contradicted the narcotic agent’s testimony, stating that his brother drives a 1972 steel gray Impala with a black vinyl top and not a blue car.
Regarding the alleged sales on August 11 defendant recalled seeing Washington that afternoon and testified that Washington asked him if he knew where he could get some drugs. Defendant testified he replied “No” to this question and denied giving Washington any drugs. He also stated his sister did not deliver a vial of drugs to Washington at the family residence as the agent had previously testified.
Defendant called Frank L. Fullard, a neighbor of his, to corroborate his testimony that Washington stayed in the automobile and never came to Fullard’s house.
Dorothea Holt was also called on defendant’s behalf. She denied riding to the hospital with her brother and also denied delivering the vial of pills to Washington on August 11.
Defendant’s brother, Jesse, denied seeing the defendant on July 29, 1975, and denied giving or selling him any drugs. He said he came to Coffeyville about 7:30 p. m. on this date to take his wife to the hospital, but did not see his brother. He was at the hospital the time Washington testified the sale was made.
Defendant also called Stanley B. Hendrix who testified he was with defendant during the afternoon of August 11, 1975, when they were contacted by Washington who asked defendant if he knew anybody who had some drugs or “weed.” Hendrix testified that defendant told Washington no and that no money or drugs changed hands.
Defendant raises three points on appeal. He first contends the trial court erred in overruling his motion for a continuance filed on December 8, 1975, the date set for trial. Defendant renewed his motion at the close of the state’s evidence. Defendant’s motion was denied in both instances. The ground asserted for a continuance was the absence of Gerald Higgins, who was alleged to be the key witness.
Under the provisions of K. S. A. 22-3401 a continuance may be granted either party for good cause shown. In State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255, we held:
“The granting of a continuance lies within the sound discretion of the trial court and its refusal to sustain a motion for continuance will not be overturned in the absence of a clear abuse of discretion.” (Syl. 3.)
Defendant did not subpoena Higgins nor did he make any other showing of diligence in attempting to secure the attendance of the alleged key witness. In State v. Williamson, 210 Kan. 501, 502 P. 2d 777, wherein we upheld the trial court’s overruling of the defendant’s motion for a continuance made under circumstances similar to that at bar, we said:
. . When a party seeks a continuance because of the absence of a witness, he must show due diligence to procure the witness’ testimony; . . .” (p. 506.)
Under the circumstances shown to exist we cannot find an abuse of discretion in the trial court’s denial of the motions.
In his second point on appeal defendant contends the trial court erred in failing to sustain his motion for discharge made at the close of the state’s evidence and renewed at the close of all of the evidence. Defendant argues the preponderance of the evidence at trial was in his favor since the state’s evidence consisted only of the uncorroborated testimony of one undercover agent of the Kansas Bureau of Investigation.
Judgment of acquittal on a defendant’s motion is provided for by K. S. A. 22-3419. The tests to be applied by the trial court when ruling on a motion under the statute are set out in State v. Gustin, 212 Kan. 475, 510 P. 2d 1290, wherein we held:
“A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
See, also, State v. Thomas, 220 Kan. 104, 551 P. 2d 873; State v. Holloway, 219 Kan. 245, 547 P. 2d 741; State v. Williams & Reynolds, 217 Kan. 400, 536 P. 2d 1395; and State v. Rosler, 216 Kan. 582, 533 P. 2d 1262.
Concerning the trial judge’s function in ruling on a motion for judgment of acquittal we made this further observation in State v. Gustin, supra.
“It is not for the judge, ruling on a motion for judgment of acquittal, to assess the credibility of witnesses, weigh the evidence, or draw inferences of fact from the evidence. These are functions of the jury.” (p. 479.)
While the state’s case was based almost entirely on the testimony of Washington, his descriptions of the times and places at which he had met with defendant were corroborated by the defendant and several of his witnesses who were his friends, neighbors and relatives. The principal divergence between the state’s and the defendant’s evidence was the denial by the witnesses called by defendant of the negotiations leading up to the sales and the actual transfer of the drugs. Defendant’s brother, Jesse Hutchinson, testified he was at the hospital at or about the time Washington stated the first sale was made. Washington’s testimony concerning this sale is further corroborated by the fact the tag number of the automobile, from which the fifty-one tablets of LSD were obtained, was registered to defendant’s brother, Jesse. The record shows that Washington had a reputable background and took meticulous notes of each contact and transfer of drugs and carefully marked and bagged the evidence following each encounter.
It is the function of the jury, not of an appellate court, to weigh the evidence and pass upon the credibility of the witnesses; and if a verdict is secured on substantial competent evidence it will not be disturbed on appellate review. (State v. Maier, 214 Kan. 547, 520 P. 2d 1258; and State v. Smith, 209 Kan. 664, 498 P. 2d 78.) A further time-honored rule of this court governing appellate review is that where the sufficiency of the evidence is challenged in a criminal case, this court’s function is limited to determining whether there was sufficient evidence to form a reasonable basis for the jury to form a reasonable inference of guilt. (State v. Eatmon, 220 Kan. 510, 553 P. 2d 309; and State v. Austin, 209 Kan. 4, 495 P. 2d 960.)
After a careful review of the evidence presented by the record herein, we find no error in the trial court’s disposition of defendant’s motions for judgment of acquittal. Neither do we find any reason shown to disturb the verdict of the jury.
Finally, defendant contends the trial court erred in not granting a new trial on the ground that the jury was biased or prejudiced against him as a black man since there were no black people on the jury. In his brief defendant concedes this point was not raised below, thus, appellate review is precluded. (State v. Ambler, 220 Kan. 560, 552 P. 2d 896; and State v. Estes, 216 Kan. 382, 532 P. 2d 1283.)
Nevertheless, we have examined the record in this regard and find no evidence of systematic or purposeful exclusion of black persons in the selection of the jury. Thus, even if the point had been preserved for 'appellate review, it would fall on its merits. (See Roth v. State, 218 Kan. 413, 543 P. 2d 939; State v. Walker, 217 Kan. 186, 535 P. 2d 924; State v. Reed, 214 Kan. 562, 520 P. 2d 1314; and State v. Clip, 202 Kan. 512, 449 P. 2d 1006, cert. den. 396 U. S. 910, 24 L. Ed. 2d 186, 90 S. Ct. 225.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
PIoch, J.:
This case arose out of the purchase of a used automobile. The principal question is whether under the facts disclosed, the purchaser, appellant here, can avoid the provisions of certain written instruments — some of which were signed by both seller and purchaser — delivered to the purchaser at the time, or very soon after, the deal was agreed upon. The action was begun by the seller to recover an unpaid balance due on the car. The defendant filed a cross-petition to recover for property damage and personal injuries suffered in a car accident, alleging that the accident resulted from defective tires which the seller had fraudulently represented to be in good condition. In its answer to the cross-petition, the plaintiff set up the'written instruments, presently to be considered. At the close of the trial, the court sustained plaintiff’s motion for judgment on the pleadings and also sustained a demurrer to defendant’s evidence in support of his cross-petition and gave judgment for the plaintiff. From those orders the defendant appeals.
We shall omit from the narrative many details not material to the question before us. ■ Orva E. Clark, appellant, negotiated with appellee, the McKay Motor Company of Wichita, for purchase of a used car, his own used car to be traded in as part payment. Agreement was reached for purchase of a Dodge sedan at a price of $1,446.12, appellant’s Dodge coupe to be taken in at $675, leaving a balance due of $771.12, for which amount appellant gave his check, drawn on a California bank. Shortly thereafter, appellant and his wife started for the Pacific coast and when they were near King-man, Kan., one of the tires.blew out. The car was overturned and badly damaged, and appellant' suffered serious injuries. He im mediately wired to California stopping payment on the check. Payment being refused by the bank, action was brought by the motor company to recover $775.12 — the amount of the check, plus protest fee. The defendant filed an answer and a cross-petition. In his answer he admitted the purchase of the car and that he had given the check and had stopped payment upon it. He denied, however, that he was indebted to the plaintiff for the reason that the plaintiff had secured the sale through fraud and deceit; that the plaintiff had represented that the tires were in good condition and free from defects when in fact they had many concealed defects all of which were known to the plaintiff but were not known to defendant; that by reason of this fraud and deceit the automobile was wrecked and he was seriously injured, and that by reason thereof, his damage and injuries were greatly in excess of the balance owed upon the car. In his cross-petition, the defendant alleged that the plaintiff had been engaged in the automobile business for many years and was familiar with the condition and value of used cars and the condition of tires; that on October 13, 1944, having accepted a position in Tacoma, Washington, he went to plaintiff’s place of business and discussed the purchase of a used car suitable for pulling a house trailer on the trip to Tacoma; that he was shown a 1941 Dodge sedan which plaintiff represented to be in good mechanical condition with good tires, free from defects and in first class serviceable condition and safe for making the proposed trip; that the tires on the 1941 Dodge were “from a view from the side of the automobile, in such serviceable condition”; that he had no opportunity to inspect the tires further, and that relying upon plaintiff’s representations, he agreed to purchase the sedan for $1,446.12, the plaintiff accepting defendant’s old car at $675, and that he then gave the plaintiff his check for the balance of $771.12. He further alleged:
“That such representations made by the plaintiff to the defendant, which were oral, relative to the tires, as hereinbefore alleged, were material in the making of the sale in that the defendant would not have purchased the automobile in' question had he not believed such representations to be true.”
He then alleged that the tires were not in good, safe, serviceable condition and free from defects, but were in very bad condition and—
“Were so turned that the bad part of the tires were on the inside of the wheels and could not be detected without the wheels being taken off or on inspecting from underneath the automobile. That in thus practicing deceit and fraud in making false representations relative to the condition of the tires as hereinbefore alleged, which condition of the tires was well known to the plaintiff, or should have been known by him, and was not known by this defendant, the said plaintiff procured a sale of the automobile in question to this defendant, as hereinbefore alleged. That all of said false and fraudulent representations were oral.”
In tbe cross-petition, the defendant then recited facts about the accident, asserting that while they were driving at a speed of about thirty-five miles per hour, two tires blew out without warning, resulting in the damage and injuries heretofore mentioned. Averments as to the injuries and his subsequent illness and hospitalization need not be recited in detail. Defendant admitted that there was a balance due upon the contract of $771.12, but asserted that it should constitute a set-off against his claim for damages in the amount of $17,846.12.
The plaintiff filed a reply and an answer to the cross-petition. In its reply, the plaintiff denied that it or its employees had made any misrepresentations concerning the car, and alleged that the defendant had purchased it upon his own judgment and inspection after having examined it on different occasions and having driven it in and around the city of Wichita for a short time. In its answer the plaintiff repeated its denial of any misrepresentations, fraud or deceit, set out at some length the circumstances under which the car was bought by the defendant and averred that following the negotiations the contract was “reduced to writing and said original sales and purchase agreement ,was duly executed by the defendant and the plaintiff, through the plaintiff’s agent and employee.” A copy of this sales agreement was attached and made a part of the answer. Plaintiff further alleged that “at the time when the aforesaid sales and purchase agreement was entered into between the plaintiff and the defendant a certificate of transfer of the aforesaid 1941 Dodge used sedan, as provided under the provisions of the maximum price regulation No. 540 of the office of price administra-. tion was executed by the plaintiff and defendant concerning the sale and purchase of the aforesaid 1941 used Dodge sedan.” A copy of this certificate of transfer was also attached and made a part of the answer.
The plaintiff further alleged that under the provisions of the certificate of transfer, the 1941 Dodge was sold “under what is known as the maximum price for said vehicle with dealer’s warranty”; that in keeping with this agreement “the plaintiff issued unto the defend ant the dealer’s used car service policy or warranty as specified by the Office of Price Administration M P R 540 and the defendant accepted of and from the plaintiff the aforesaid used car warranty No. M P R 540, and signed and delivered a receipt for said dealer’s warranty policy unto the plaintiff.” A copy of this “service policy or warranty” was attached to the answer.
In the answer it was further alleged that after these transactions had been completed^ the defendant drove the car away, but on the following day brought it back requesting that the front wheels be balanced and that the tires and wheels on the front end of the car be shifted to the rear end; that this request was complied with and that this work of shifting the wheels was done under the general inspection of the defendant and that he “had full opportunity to fully inspect the tires and conditions thereof upon said car.” In the answer it was specifically denied that the accident and injuries complained of were in any way due to the plaintiff’s negligence, misrepresentations, fraud, or breach of warranties.
To the plaintiff’s answer to the cross-petition, the defendant filed a reply,, unverified, in which he first denied that he signed the sales and purchase agreements and then asserted that if he did sign them, he did so subsequent to the purchase of the automobile and subsequent to the representations made by the motor company and its employees and “that the signing of said sale orders or other papers were not part of the contract of purchase of the automobile in question between the plaintiff and defendant, but were signed on the representation made by the agents and servants of the plaintiff, R. D. McKay Motor Company, that it was necessary to comply with certain regulations of the O. P. A., and that such signing was subsequent to the purchase and subsequent to the time the plaintiff, R. D. McKay Motor Company, accepted the check in full payment of the purchase price of the automobile.” (Italics supplied.)
On these pleadings, the case went to trial. Upon examination of the pleadings, the court ruled that the defendant had admitted the facts with reference to the signing of the check and that the plaintiff was entitled to judgment upon his petition subject to the defendant’s rights as determined upon the defendant’s cross-petition, the answer thereto, and the reply. Thereupon the plaintiff moved for judgment upon thq pleadings. This motion was overruled temporarily, with final ruling reserved. Upon conclusion of defendant’s evidence, the plaintiff demurred to the evidence. Final ruling upon the demurrer being reserved, plaintiff introduced its evidence, and after instructions not here in issue, the case went to the jury. After being out for a couple of days, the jury reported that it was not able to agree upon a verdict, and was discharged. Thereupon, plaintiff again renewed its motion for judgment on the pleadings and its demurrer to the defendant’s evidence, both of which were later sustained, and judgment was entered for the plaintiff for $846.65, being the balance due on the car, together with interest. This appeal followed.
In considering first the motion for judgment upon the pleadings, we must note precisely the situation presented. First, the execution of the written sales contract, the certificate of transfer, and the receipt by appellant of the policy, must be accepted as true under the provisions of section 60-729, G. S. 1935, having been set up in appellee’s answer and no verified denial having been made by appellant. Moreover, appellant does not deny that he signed the instruments. Second, appellant does not allege that he was induced to sign the written instruments as a result of fraudulent representations as to their content, or with any misunderstanding of the provisions they contained, or that the appellee misled him into thinking that they carried a warranty as to the condition of the tires. Appellant’s position, disclosed by the pleadings, is that these written instruments constituted a separate and distinct transaction, entirely divorced from the prior, oral contract of purchase. His only reference to the written instruments is to be found in his reply, wherein he asserts that if he signed them, they were signed subsequent to the purchase of the car and upon the representation that their signing “was necessary to comply with certain regulations of the O. P. A.,” and subsequent to delivery of a check in full payment of the purchase price. We cannot construe the allegation that he signed because he was told the O. P. A. regulations required it, into an allegation of fraudulent representation as to their content.
It is impossible to accept appellant’s view, embodied in his reply, that “the signing of said sale orders or other papers were not part of the contract of purchase.” Clearly the preliminary negotiations and the signing of the instruments were part of the same transaction. In the first place, it was necessary under the then existing law for sellers and buyers of used cars to execute such instruments setting forth compliance with O. P. A. regulations as to the sale price et cetera. Appellant must be charged with knowledge that %he sale could not be lawfully completed otherwise. Moreover, if the writ ten instruments constituted a transaction independent of a sale already consummated, they have no significance, being without consideration. Appellant does not attack them’ upon that ground.
Extended citation of authorities is not necessary to support some well-established rules of law that are here applicable. The first is the general rule that when preliminary negotiations lead to the signing of a written contract, such negotiations are merged into the written document, from which the terms of the contract are to be determined. (12 Am. Jur. 756, 757, and cases cited; 17 C. J. S. 750, 872. Restatement, Contracts, Yol. 2, §446; Setchell v. Reed, 153 Kan. 818, 820, 113 P. 2d 1050; Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441.) Another elementary and related rule is that parol evidence is not admissible to vary the terms of a written in- ' strument. (82 C. J. S. 784, § 851; 20 Am. Jur. 958, § 1099.)
One exception to the latter rule — if it can properly be regarded as an exception — is that a written contract may be voided on the ground that the execution of the contract was induced by fraud. (12 Am. Jur. 636-639; 17 C. J. S. 505, et seq.) But the mere fact that a party who signed a written contract did not know its contents is not alone sufficient to permit him to avoid it. (12 Am. Jur. 628.) And, in this case, as heretofore noted, the appellant does not plead that the written instruments should be set aside on the ground that he was induced to sign them by fraudulent representations as to their content. He does not plead that the written contract should be voided because of fraud. He asserts only that the written instruments are not a part of the transaction and seeks to recover under an oral contract unaffected by them.
This brings us to an examination of the written instruments. They are quite lengthy and need not be set out in full. First, as to the “Used Car Sales Order.” This instrument, signed both by appellant and appellee, sets out descriptions of the car which the appellant was buying and of the one which he was trading in — serial numbers, motor numbers, license numbers et cetera,. It contains terms as to title, right of possession, terms of payment et cetera. Then it contains these paragraphs:
“It is understood that I have examined said motor car and accept it in its present condition and agree that there are no warranties or representations expressed or implied, not specified herein, respecting the goods hereby ordered.”
and—
“It is agreed that no change, alteration, interlineation, or verbal agreement of any kind shall be effective to change, alter or amend the printed terms of this agreement.”
Just above the signatures appear these words: “Type of Guarantee — Life Time.”
The certificate of transfer of the car to appellant, also signed by both parties, contains — in addition to formal recitals — the following provisions:
“For sales between persons who are not dealers and sales by a dealer to a person who is not a dealer. This certificate is to be prepared by the seller and signed by both the seller and the purchaser. The purchaser must present this certificate to the local War Price and Rationing Board when he applies for gasoline rationing coupons for the purchased vehicle. •
“The undersigned hereby certify that they have complied with the requirements of Maximum Price Regulation No. 540. Maximum Prices for Used Passenger Automobiles, and that the actual sale price of the vehicle is not more than the maximum selling price as established by Maximum Price Regulation No. 540, and further certify that no payment directly or indirectly was or will be made in addition to the actual sale price of the vehicle as shown on this certificate.”
Also, upon this certificate of transfer, the following appeared among other items:
“3. Maximum price for vehicle without dealer warranty: (Total of 1 and 2a, b and c)......................................... 1,145.00
4. Maximum price for vehicle if sold with dealer warranty........ 1,431.00
5. State and local taxes which may be collected by seller.......... 15.12
6. Actual sales price for vehicle including taxes...-............... 1,446.12”
At the time the two instruments above described were signed by the parties, the appellee handed to the appellant a policy which was headed
“Lifetime
Used Cae Service Policy”
Appellant signed a receipt for this policy. A considerable portion of the policy relates to rights of the owner to have inspection of the car at certain periods, to receive, free, certain car lubrications, to receive certain discounts on labqr at the shop of the seller, and discounts on car parts purchased from the seller.
We come to the pertinent portions of the policy relating to warranty. Under a heading—
“Terms and Conditions op Policy Warranty”
appear the following provisions:
“The used car described above is hereby warranted to be in good operating condition, and to remain in such condition under normal use and service for a period of 30 days after delivery, or 1,000 miles, whichever may first occur.
■ “This warranty does not extend to tires, tubes, paint, glass, upholstery, or to any repairs or replacements made necessary by misuse, negligence or accident.”
It is well settled that where a written contract is evidenced by-several instruments, it is not necessary that all instruments be separately signed by the parties. It is sufficient if the unsigned documents are clearly identified or referred to and thus made a part of the written instrument or instruments which are signed by the parties. (37 C. J. S. 661 [,b]; 49 Am. Jur. 697, § 393; Restatement, Contracts, Yol. 1, § 208 [b] [ii]; Riffel v. Dieter, 159 Kan. 628, 638, 157 P. 2d 831.)
It cannot reasonably be said that the policy was not sufficiently identified in the signed instruments. In the first place, as already noted, there appeared immediately above appellant’s signature these words: “Type of Guarantee Life Time.” The policy which was then handed to him and for which he gave a receipt was headed “Lifetime.” Again, in the certificate of transfer signed by appellant, appears the following:
“If you are a dealer selling with a warranty, did you deliver to the purchaser a copy of the warranty? Yes.”
The delivery of no other warranty was pleaded nor is any contention now made that any other warranty was delivered.
Appellant calls attention to the fact that on the certificate of transfer are shown the O. P. A. maximum selling prices of the car “with dealer warranty” and “without dealer warranty,” and that he paid the price with the warranty which was $286 more than without warranty. Since the sales order provided that there were no warranties except those specified, and since the sales order itself contained no specific warranties, it is then argued that appellant got no dealer’s warranty at all for his $286, if appellee’s position is upheld. That result does not follow. The sales order did incorporate, by identification, the policy, and by no means can it be said that the policy carried no dealer’s warranty. It is true that the policy specifically excluded warranty as to tires and some other items, but it' did contain a warranty that the car was in “good operating condition,” and that it would remain in such condition under normal use and service for thirty days or for one thousand miles. This covered a very substantial dealer’s warranty —a warranty that the motor, the drive, the brakes, the chassis, the wheels et cetera, were in good operating condition when the car was sold.
It is clear that under the terms of the written contract, into which all prior oral negotiations were merged, there was no warranty by appellee as to the condition of the tires. Appellant does not allege that he signed the contract under any misrepresentation of its terms nor assert that he should not be bound by it because its execution was induced by fraud. Under the issues as framed by the pleadings, appellant is bound by its terms, and the motion for judgr ment upon the pleadings was properly sustained. To hold otherwise would do violence to rules of law long established.
This conclusion makes it unnecessary to consider the demurrer to the evidence, which was substantially in harmony with the pleadings. It may be added that we have, of course, given no consideration to the question of whether, if the written contract could be discarded, there was evidence of fraudulent representations which would require submission of the case to the jury.
The judgment is affirmed.
Harvey, C. J., Smith and Parker, JJ., dissent. | [
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The opinion of the court was delivered by
Foth, C.:
Hazel Birch appeals from her conviction by a jury of first degree (felony) murder (K. S. A. 21-3401) and of the felonious possession of a firearm (K. S. A. 21-4204). The victim was her husband, Webster Birch. The felony she was committing when the homicide occurred was the firearms offense, i. e., possession of a pistol within five years after having been convicted of the felony of aggravated assault.
On appeal defendant asserts but one claim of error, namely, that the court failed to give an adequate instruction on what constitutes “possession” of a firearm. Since the firearm charge was an integral part of the felony murder charge, if she is correct both convictions must fall. There is no contention that the unlawful possession of a pistol is not such a felony as will support a conviction for felony murder, an issue recently laid to rest in State v. Goodseal, 220 Kan. 487, 553 P. 2d 279.
She made.no objection to the instructions given, and requested none of her own. Our inquiry, therefore, is limited to determining whether the instructions given were “clearly erroneous.” (K. S. A. 22-3414 [3]; State v. Sully, 219 Kan. 222, 547 P. 2d 344.)
On the firearms charge the court instructed the jury that the state had to prove, “[t]hat Hazel L. Birch did wilfully possess a firearm having a barrel less than 12 inches in length.” (Emphasis added.) The court amplified this in its definition instruction, where it told the jury: “Wilfully means conduct that is purposeful and intentional and not accidental.”
The defendant nevertheless contends that the court should have further defined “possession” in terms of an intent to exercise dominion and control, as opposed to an innocent handling. She relies on State v. Phinis, 199 Kan. 472, 430 P. 2d 251; State v. Runnels, 203 Kan. 513, 456 P. 2d 16; and State v. Neal, 215 Kan. 737, 529 P. 2d 114.
In Neal the two earlier cases were discussed and then summarized: “When taken together, Phinis and Runnels fashion the rule that the possession proscribed by the statute is not the innocent handling of the weapon but a willful or knowing possession with the intent to control the use and management thereof.” (215 Kan. at 740.) The instructions given conform to this rule, first by positively requiring a “purposeful and intentional” possession; and second, by negativing an “accidental” possession, which we take to encompass an “innocent” handling. We cannot find that the instructions given are clearly erroneous.
Our conclusion is reinforced by a comparison of the facts in this case to those in the cases relied on by the defendant. In Phinis the defendant took a revolver from a table and fired it into the floor to frighten an intruder. We held that such a handling of the weapon would support a conviction under an instruction that conviction required an intent to control as opposed to an innocent handling. In Runnels the defendant’s story was that he had lent his car to his brother and later discovered a gun in it. The court charged the jury that it must find the defendant “did wilfully have or keep a pistol in his possession with the intent to control the use and management thereof.” (203 Kan. at 515.) This instruction on intent was held to be sufficient to cover the “innocent handling” concept of Phinis. Finally, in Neal, we held it was error to refuse a requested instruction defining possession, but there the theory of the defense was that the defendant had been merely a messenger in first procuring the gun and later pawning it for the owner and true possessor.
In each of these cases “innocent handling” of the weapon, without an intent to use it as such; was the theory of the defense. And, as was said in Neal, “[a] defendant is entitled to have his theory of the case presented at his trial.” (215 Kan. at 740.)
In this case, however, there was no “innocent handling” theory of defense. The defendant apparently did not testify, and there was nothing in the states case to indicate such a theory. The evidence showed that the defendant, suspecting her husband of a dalliance with one Joyce Tuggle, drove up and down Broadway in Wichita on the morning of August 17, 1974, looking for her husband’s car. At 9:00 a. m. she located it at a motel. She went to the desk clerk, identified herself as Mrs. Birch and asked for a key to Webster Birch’s room, saying she had been locked out. She entered the room with the key, breaking a chain night lock from the door jamb.
Joyce Tuggle, who was in bed with Webster Birch, woke to the sound of a shot and found the defendant by the side of the bed, gun in hand. The defendant said “I have shot you,” and accused Mrs. Tuggle of trying to take her husband away from her. Mrs. Tuggle discovered she had, indeed, suffered a flesh wound in the thigh. Both women attempted to arouse Birch without success; the bullet which went through Mrs. Tuggle’s thigh also penetrated Birch’s skull, from which it was later recovered.
The women summoned the management with a request for the police and an ambulance. While waiting Mrs. Tuggle saw defendant unsuccessfully attempt to unload the revolver before dropping it in her purse. Defendant then left the motel and went towards her husband’s car. The police found the defendant outside and found the gun in Webster Birch’s car with one expended shell in the cylinder. The bullet taken from his skull was identified ballistically as having come from the same gun.
As may be seen, the facts here left no room for an argument that defendant’s possession of the pistol was an innocent handling without any intent to control its use and management. Persons who deliberately shoot someone are hardly in a position to argue that they didn’t intend to control the use of the gun. That doubtless is why defense counsel requested no instruction which would more pointedly inject these concepts into the court’s instructions. Had there been any ambiguity in the defendant’s intent with respect to the gun, and had there been a request for a further instruction on that element, one might well have been given in accordance with Neal. Under the circumstances, however, the instructions given were not clearly erroneous, and the conviction is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
This action arose out of an automobile accident in Hutchinson, Kansas. Plaintiff recovered a jury verdict and defendant appeals raising one point. He claims the trial court erred in refusing to continue the trial to afford defendant an opportunity to present his medical expert. We agree with defendant and grant a new trial, but limit the new trial to the issue of damages.
Plaintiff was driving a pickup truck north and defendant was driving an automobile south on Monroe Street. As the two parties approached one another at the intersection of Monroe and 56th Streets, defendant apparently attempted to turn left and pulled into the left lane of traffic directly in front of plaintiff. Plaintiff applied his brakes but could not stop before striking defendant nearly head-on. On impact plaintiff was thrown about in his vehicle and sustained injuries.
Damages were hotly contested. Plaintiff introduced evidence tending to show that prior to the accident he had been a healthy, hard-working, injury-free man; that as a result of the accident he sustained temporary and permanent injury to his chest, hip, leg, knees, upper back and head; that despite extensive medical treatment he still had considerable pain and disability; and that since the time of the accident he was unable to work regularly.
Defendant proceeded on the theory that plaintiff was not injured in the accident, and if disability did exist it was due to prior job-related injuries as a construction worker. Both defendant and a sheriff’s officer testified that at the scene of the accident they inquired if plaintiff was injured and received a negative reply, and plaintiff appeared to them to be uninjured. During cross-examination plaintiff admitted he had been treated for various back, neck and other body discomforts prior to the accident.
On the first day of the three-day trial plaintiff called two witnesses — the sheriff’s officer and plaintiff; whereupon, the court was forced to recess because other plaintiff witnesses were not available. The next morning defendant introduced two witnesses out of order to accommodate a lack of plaintiff witnesses. Plaintiff then presented four other witnesses. Defendant took the stand. At the end of the second day of trial plaintiff announced he had no further witnesses until 1:30 p. m. on the following day when he would call Dr. John Lance of Wichita, Kansas. The following transpired:
“The Court: Anything else?
"Mr. Turner: I have nothing more at this time, your Honor.
“Mr. Levy: Not at this time.
“The Court: Well, the 7th of March I scheduled this case for trial. I allowed four days. I have seven criminal cases starting Monday and three civil cases after that as fast as we can go. How you schedule your witnesses is fine but I do not want to recess until tomorrow at 1:30 because by the time you get through with all of them you’ll be clear up to Friday night again. I can’t juggle this jury and go on with my other cases. I don’t think I should be required to recess until 1:30 tomorrow because of lack of witnesses.
“Mr. Turner: In responding to the Court’s statements, I have one other witness to call, that’s Joseph Lichtor. I had arranged to fly him back from Mexico and have him present in court today, then I was advised by the Plaintiff attorney that he did not intend to call Doctor Lance until tomorrow afternoon at 1:30. Of course, under the rules Plaintiff presents their evidence, rests, and I’m entitled to present my evidence last. I’ve been interspersing my evidence to help Plaintiff along. In view of the fact he hasn’t completed his case yet, I think it’s important to note he has not completed his case, and I’m within my rights to wait until his doctor, his specialist has testified to put on my specialist. That’s all I have left to do and I was fully prepared to have him here today until I was advised a few days ago they wouldn’t be finished until tomorrow afternoon.
“Mb. Levy: If it please the Court, these are matters that probably should be taken up outside the presence of the jury.
“The Court: Ladies and gentlemen, would you mind stepping outside a minute, please?
(The jury left the courtroom)
“The Court: Did you take his deposition?
“Mb. Levy: He was not any more available for deposition.
“The Court: Was Doctor Lance’s deposition taken?
“Mr. Levy: No, it has not been. Your Honor, so the record is clear, in Sedgwick County we have what’s known as a Medical-Legal Code which requires really we bend over backwards to make arrangements for the doctors, especially when they’re going to have to be out of town to testify. We give them the opportunity to schedule it. We do not issue subpoenas to doctors unless we call them up two weeks in advance and tell them we are going to subpoena them. Doctor Lance is just back to his office having been either on vacation or gone at least for a couple of weeks. He got back, he had all these schedules, he is full solid. I asked him and his secretary when we could make him available, he said Thursday afternoon was the first chance that they would have to cancel. At that time they were cancelling something like twenty appointments for him to be here then. I did try — I have tried again to see if he would come, if he could come in the morning. He is now going to be in surgery in the morning. I understand the Court’s position, I understand he wants to get the case tried as much as — no more than I want to get it tried, but I’ve done my best to get him here.
“The Court: Did you subpoena him? He’s subject to subpoena, and remember that we had that out with that Overland Park doctor on whether they were going to come and testify.
“Mr. Levy: I’m trying to explain in Sedgwick County we do have this code that we are committed to abide by and to follow.
“The Coubt: This is not Sedgwick County. To my knowledge we have no code that says a doctor is not subject to subpoena the same as anybody else.
“Mr. Levy: I understand.
“The Court: I don’t think I’m bound by it. In other words, what you’re saying, a lawyer can force a court to delay a trial until he decides — until he gets his doctor up here without subpoenaing, and I don’t think that’s right. I don’t know. I think maybe the Supreme Court can test it out. Are there any witnesses we can call at all now?
“Mr. Turner: I have one more, Doctor Lichtor.
“The Court: He’s not here?
“Mr. Turner: No. No, I had arranged when I heard it would be Thursday, I arranged to fly him back. He’ll be here tomorrow to testify after Doctor Lance.
“The Court: Well, my problem is this, if we start tomorrow afternoon then we’ll run all day on Friday and we’ll not have time for a jury by the time we get through with the evidence, Instructions, and we’re going to have the jury going over till Monday again.
“Mr. Levy: I think we can get to the jury if we work till 6:00 o’clock tomorrow. I believe we can get to the jury Friday morning.
The Court: Right or wrong, I’m going to test it out in the Supreme Court, he better be here at 9:00 o’clock tomorrow morning. That’s it. Subpoena power is available.
“Mr. Turner: Okay. I’ll be here.
“The Court: I’m wasting now the rest of the afternoon. We’ll recess until 9:00 o’clock. Call the jury back in and we’ll recess them until tomorrow.”
The following morning plaintiff announced Dr. Lance could not appear until 1:30 p. m. At that point the trial court announced that plaintiff had rested his case. The court then instructed defendant to proceed. Defense counsel told the court his only remaining witness was Dr. Lichtor, of Kansas City, who had not yet arrived. Upon request of defense counsel the court granted a ten-minute recess- When court reconvened defense counsel told the court the doctor was on his way. The court proceeded to give jury instructions. Dr. Lichtor arrived in the courtroom as the court concluded instructions. The court did not allow the doctor to testify.
A trial court has the inherent authority to control its docket to eliminate procrastination and delay in order to expedite the orderly flow of business, but the power is not absolute and should be exercised with sound discretion. (Carter v. State Department of Social Welfare, 186 Kan. 187, 348 P. 2d 609; City of Wichita v. Houchens, 184 Kan. 297, 335 P. 2d 1117; 88 C. J. S., Trial, § 18, p. 49.)
In Bane v. Cox, 75 Kan. 184, 88 Pac. 1083, this court stated:
“It is the duty of litigants to exercise great diligence both in prosecuting and in defending actions in court, and, as there are usually many cases set for hearing at each term of the district courts, the orderly dispatch of the business and the protection of other litigants from expensive delays and accumulating costs make it the duty of the court strictly to require the parties to every action to be ready for trial promptly at the time the case is set for hearing or to prove that in the exercise of due diligence they have been unable to do so. So great is the necessity for the prompt dispatch of court business that the statute authorizes courts to and they generally do impose upon the unfortunate litigant who, even through no fault of his own, is unprepared to proceed at the time set all the costs of the necessary delay. This is usually sufficient to insure the making of every reasonable effort to be ready at the time appointed, unless vexation and delay be the real object of the litigation or unless some real or fancied advantage may accrue to one party by a course of procrastination. In such cases of designed obstruction or in case of gross or reckless inaction, if the fault be on the part of the plaintiff, it may become the duty of the court to dismiss his action; if the defendant be at fault he may be penalized by proceeding with the trial notwithstanding his unreadiness.
"The incidents of life, however, refuse to conform themselves to the plans of any man or to march in regular procession on the order of any court or earthly power. Even death steps in at the most unanticipated times to stay proceedings. It should be borne in mind that mere order and regularity of proceeding are not the purpose for which courts exist and are held, but are only aids to the grand purpose of dispensing justice, and should not be carried to the extreme and become the cause of injustice. ‘Extreme justice is injustice.’ ” (pp. 185, 186.)
Several cases have held it to be an abuse of discretion to refuse a recess to permit the reception of a physician’s testimony. In Logan v. McPhail, 208 Kan. 770, 494 P. 2d 1191, the trial court dismissed an automobile negligence case when the plaintiff’s expert medical witness was five minutes late in arriving. This court held the action was an abuse of discretion and reversed. In O’Malley v. City of New York, 16 App. Div. 2d 942, 229 N. Y. S. 2d 489 (1962), the corut held exclusion of a medical examiner’s testimony error when the evidence showed he was on his way to the courthouse. In Simon v. Goldberg, 39 App. Div. 2d 758, 332 N. Y. S. 2d 214 (1972), a similar ruling was made in an automobile negligenoe case where two physicians needed two hours to get to the court and one physician would testify that the injured plaintiff had a previous back injury and laminectomy five years earlier. The supreme court in Herbert v. Garner, 78 So. 2d 727 (Fla. 1955), reversed the trial court’s decision in another automobile negligence case because the trial court refused to grant an overnight delay when the physician, who lived thirty miles away, would have been present except for the existence of a medical emergency. Finally, in Pepe v. Urban, 11 N. J. Super. 385, 78 A. 2d 406 (1951), the trial court was reversed for refusing an overnight delay when a physician, who would testify on damages, could not appear because he was performing an operation. See also, Matter of Bluttal, 37 App. Div. 2d 530, 322 N. Y. S. 2d 18 (1971); Jarvis v. Stoddart, 215 App. Div. 523, 213 N. Y. S. 829 (1926).
The problem before this court is a troublesome one. On one hand the trial court is charged with the responsibility of moving cases and promoting the orderly dispatch of judicial business. The expert medical witness, on the other hand, is often engulfed in a demanding professional practice which, because of tight schedules and unforeseeable emergencies, makes it difficult to appear at a time convenient to court and counsel.
The power to grant a recess is inherent within the trial court’s power to control the orderly movement of cases within sound judicial discretion. (Mooney v. Olsen, 22 Kan. 69, 80, 81; 88 C. J. S., Trial, §45, pp. 113-15.) This includes the right to deny or grant a recess due to the absence of a witness. Exercise of this discretion, however, demands consideration of many factors. In ruling on a motion to recess because a witness is unavailable the court must consider and balance factors including counsel’s diligence and effort to gain attendance of the witness, the reason the witness is not present, the nature of the witness’s expected testimony, whether the testimony is critical evidence or merely cumulative, the amount of the delay expected, the effect of the delay on the docket of the court, and the overall injustice which might result if the delay were denied.
Our decision is based on the circumstances existing at the time the trial court refused to delay the trial. At that time the trial court knew (1) that Dr. Lichtor was on his way from Wichita to Hutchinson by auto; (2) that his testimony would contradict plaintiff’s evidence as to plaintiff’s injuries; (3) that his testimony was important to the defense and was not cumulative; (4) that when plaintiff had no available witnesses, defendant accommodated plaintiff by using defendant’s witnesses out of time; (5) that defendant had the right to assume he could use Dr. Lichtor after Dr. Lance testified and he was not aware the 'court would refuse to permit Dr-Lance to testify at 1:30 p. m. on Thursday until the afternoon before; (6) that even if the court permitted Dr. Lichtor’s testimony it was not likely the court’s schedule of cases for Monday would be affected; and (7) that without the testimony of Dr. Lichtor an injustice might result.
Having objectively considered the foregoing balancing factors, we believe a new trial should be granted. Since the issue of liability has been litigated and decided by the jury the new trial should be limited to the issue of damages. (Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620.)
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Per Curiam:
This is an aotion for damages for personal injuries arising out of an assault and battery, and for damages sustained by plaintiff when his bred gilt was attacked by defendants dogs. A jury returned a verdict for plaintiff for compensatory damages of $63.63 and punitive damages of $1750. Defendant appeals.
The issues are whether the trial court erred in failing to grant a new trial because of misconduct of the jury; in admitting evidence as to damages to the hog; and in submitting the issue of punitive damages to the jury in the absence of evidence of actual damages.
The plaintiff, Wilbur Webber, fifteen years of age, lived on a farm-in Montgomery County with his sister, Shirley, and her husband, Fred Witwer. In September, 1973, plaintiff purchased a registered Rerkshire bred gilt as an FFA project. In the early morning hours of September 25, 1973, Fred Witwer was awakened by the sounds of dogs barking and a pig squealing. He loaded his shotgun and went to the door of the barn from whence the noise came. Two animals ran out the door and he shot them. At that time he did not know whether they were dogs or coyotes. He then turned on the headlights of his car and discovered that the animals were large boxer type dogs. They had blood all over their mouths. Inside the bam he found the gilt, which had sustained several serious wounds. He then roused the plaintiff who treated the wounds and called a veterinarian.
Later that morning plaintiff learned that the dogs were similar to the dogs owned by Ron Patton. Webber went to Patton s home and related the incident to him. Patton knocked plaintiff down, grabbed him by the hair and pulled him to his feet, pulling out a handful of hair in the process, and told plaintiff to get in his car and get out of there. Plaintiff complied. Plaintiff’s evidence was that he suffered pain and incurred medical expenses of $7 as a result of the battery. He incurred veterinary expense of $26.63 for care of his hog, and $40 for loss of the animal. After the attack, the hog was no longer suitable for use in the FFA project and was returned to the seller from whom another gilt was purchased. Plaintiff also sought $2000 as punitive damages.
With reference to alleged misconduct of the jury, defendant claims that one of the jurors, Clayton, did not tell the truth when he denied knowing Fred Witwer on voir dire. It appears that Witwer had been a member of the same venire, and sat as a member of two jury panels with Clayton prior to the trial of this case. Further, the defendant’s father-in-law testified upon the hearing of the motion for new trial that before the voir dire he was sitting in the courtroom near Mr. Clayton and heard him express the opinion that Patton should go ahead and pay what Webber was asking because he had the money and it would not bother him to pay it.
The juror testified that his only knowledge of Fred Witwer was through his association of being on the jury. He denied making the statement attributed to him by Patton’s father-in-law.
The record shows that counsel for the defendant, at the time of the voir dire, was aware, that Fred Witwer was to be a witness for the plaintiff, and that Witwer had been serving on the jury panel. The trial court heard the testimony of the juror and of defendant’s father-in-law, determined that substantial misconduct was not established, and denied the motion for new trial.
The question of whether a juror is disqualified because he has formed or expressed an opinion on the case must be decided on the facts of the particular case, and the trial court’s findings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Williams, 182 Kan. 468, 322 P. 2d 726. The law on the issue of whether a new trial should be granted on the ground of jury misconduct was recently outlined in Smith v. Union Pacific Railroad Co., 214 Kan. 128, 519 P. 2d 1101, where we said:
“K. S. A. 1973 Supp. 60-259 (c) authorizes the granting of a new trial on all or a part of the issues when it appears that the rights of a party have been substantially affected by misconduct of the jury or of a party, or the verdict was procured by the corruption of tire party obtaining it. The trial court has a wide discretion in this area. This court on appeal will not reverse an exercise of judgment by a trial court which depends upon the credibility of witnesses who testify on a motion for new trial. A clear abuse of judicial discretion is necessary for a reversal. (Citing cases.) There can be no abuse of judicial discretion if a court listens to conflicting evidence on the subjects of misconduct of the jury and of corruption of a party and conscientiously finds from the evidence that such misconduct or corruption was not established.” (pp. 130, 131.)
Under the circumstances here disclosed we cannot say that the trial court abused its discretion.
Next we turn to the receipt of evidence of damages for the loss and care of the hog. The petition made claim for such damages. The pretrial order specified as an issue of fact the amount of damages sustained by the plaintiff, if any. A check made to the veterinarian and receipts from the Lakeside Berkshire Farm from which the original and the replacement hogs were purchased were marked and identified as exhibits during the pretrial conference. We conclude that loss of value of the hog and the cost of veterinary services were within the issues delineated by the pleadings and set forth in the pretrial order. More importantly, appellant did not object to such evidence and under the contemporaneous objection rule, waived his right to complain that the introduction of this evidence was erroneous. K. S. A. 60-404; State v. Carter, 220 Kan. 16, 551 P. 2d 821. The verdict in this area can also be supported by the provisions of K. S. A. 47-645, which make the owner of a dog liable for damage it inflicts upon domestic animals, although that statute was not relied upon by appellee.
We turn to appellant’s final contention that the court erred in submitting the issue of punitive damages to the jury in the absence of evidence of actual damages, and in failing to set aside the award of punitive damages because it was not supported by the evidence. Before punitive damages may be awarded, a plaintiff must establish a right of recovery of actual damages. Watkins v. Layton, 182 Kan. 702, 706, 324 P. 2d 130. Here, as pointed out above, plaintiff did establish his right to recover actual damages for his pain, suffering and medical expenses, and for the loss of value and treatment of his hog. Though these amounts were small, they constitute actual damages.
The extent of appellate review of an award of punitive damages is outlined in the case of Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 491 P. 2d 891:
“When a charge of excessive verdict is based on passion or prejudice of the jury and depends for support solely on the amount of the verdict, the trial court will not be reversed for refusing a new trial unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.” (Syl. 2.)
Here there is substantial competent evidence, from the appellants own testimony, that he acted in willful and wanton disregard for the rights of Webber. In the light of this evidence, the amount of the punitive damages awarded was not excessive.
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The opinion of the court was delivered by
Hoch, J.:
This is an original proceeding in habeas corpus. The petitioner, W. L. Kendall, seeks release from the state penitentiary where he is serving a sentence of from one to twenty-one years for the crime of rape as defined in G. S. 1935, 21-424. Upon proper showing that the petitioner was without funds, he was permitted to file his petition without a deposit for costs, and Mr. Harold M. Slater, a reputable attorney at law and a member of the Shawnee county bar, was appointed by the court to .represent him; After investigation and one or more personal interviews with the petitioner, Mr. Slater filed a brief in his behalf and on the date set for hearing, the case was submitted upon briefs for petitioner and the state.
Some of the contentions made by petitioner relate to issues of fact or alleged trial errors which cannot be considered in this pro ceeding. A habeas corpus proceeding is not a substitute for appellate review. (Kneisley v. Hudspeth, 161 Kan. 772, 173 P. 2d 247, and cases cited on page 774; Powers v. Hudspeth,.161 Kan. 777, 778, 173 P. 2d 251.)
The two principal contentions subject to consideration here are that the police officers at Garden City, Kan., where petitioner was arrested, used third degree methods upon him in order to secure a confession, and that in the trial in the district court the county attorney forced him to plead guilty under the threat of life imprisonment under the habitual criminal act if he did not do so, and told him that if he would plead guilty his maximum sentence would be seven years.
No purpose would be served by relating the facts and circumstances connected with the offense. In the information it is charged that the minor against whom the crime was committed was twelve years of age.
Upon verified information signed by the county attorney, Mr. W. C. Pearce, the defendant was duly arraigned in the district court of Finney county on October 27, 1943, and was represented then and during the trial by Mr. A. M. Fleming, an attorney in good standing and a member of the Finney county bar. A plea of guilty to the crime as charged was entered and accepted by the court, and upon inquiry from the court, the defendant stated that he had no legal cause to show why judgment and sentence should not be pronounced against him according to law. Sentence of not less than one year nor more than twenty-one years in the penitentiary was then imposed in conformity with the statute.
The contentions of the petitioner that the confession which he made to the police officers was brought about by threats and coercion and that the county attorney told him that if he pleaded guilty the maximum sentence would be seven years, and that unless he pleaded guilty he would be given a life sentence under the habitual criminal act are entirely unsupported. Wholly uncorroborated allegations of a petitioner for release in habeas corpus are insufficient to justify the granting of the writ. (Kneisley v. Hudspeth, supra; Powers v. Hudspeth, supra; Hill v. Hudspeth, 161 Kan. 376, 379,168 P. 2d 922.
In an affidavit submitted in this proceeding, Mr. Lee Richards'on, who was then and is now chief of police of the city of Garden City, recites the circumstances connected with the arrest of the defendant and with the defendant’s signed confession, and specifically denies that “any threats, force, beatings, promises, or any third degree methods whatsoever” were used. In connection with his affidavit, Mr. Richardson submitted a letter received from the petitioner in July, 1945. In this letter, the petitioner does not deny commission of the offense, but sets forth alleged facts and circumstances with reference to the reputation of the minor against whom the offense was committed, and other facts which, even if true, do not affect the regularity of the trial and conviction. He asserts that he was not familiar with the statute and would not have pleaded guilty had he known what the sentence would be. In this letter he states:
“Now I know that I should serve as much as 2 or 3 years but 21 years is too much penalty for what little I have done, and I do believe that you and the people who really know the circumstances, can see the predicament I am up against and will come to my aid.”
In an affidavit submitted herein, Mr. W. C. Pearce, the prosecuting attorney in the case, specifically and positively denies the allegations made by petitioner, states that during the pendency of the action he did not talk with the defendant for more than ten minutes, that he did not threaten or coerce him in any way, and that he did not make any promises to him in connection with his plea of guilty. Mr. Pearce further states that at the time of the commission of the offense, the minor was of defective mentality and that she is now confined in the state hospital for mental defectives at Winfield, Kan.
Mr. R. P. Beckett, the then sheriff of Finney county, states in an affidavit filed herein:
. . that he became acquainted with one W. L. Kendall by virtue of his being arrested by the police officers of the city of Garden City, Kansas, on or about October 2nd, 1943; that he was later placed in his custody as Sheriff, and that during such time no threats, promises, beatings, force, or third degree methods of any kind were exercised against W. L. Kendall to cause him to plead guilty, or for any other reason.”
In connection with his petition, the petitioner submits a copy of a letter which he says he received from the Honorable Fred J. Evans, the presiding judge who pronounced sentence in the case, and in this letter Judge Evans advises him that he has written to the parole and pardon attorney “concerning your case and set forth some facts which should be justly considered on the matter of a reduction in your term by executive order. I am sure that Mr. Dawson will bring .my letters and the information furnished to the attention of the proper authorities, and I hope it may result in some measure of benefit to you.”
Petitioner also submits excerpts from a letter which he received at the penitentiary from Mrs. Ross Bethel, of Garden City, Kan., who he says was the guardian of the minor, in which Mrs. Bethel recites certain facts and circumstances connected with the case, suggests that there were others equally or more to blame, and commends the petitioner for • his alleged effort, assisted by the girl’s mother, to marry the girl. Such alleged facts may be matters for consideration in connection with application for executive clemency, but are not for review here.
In the copy of the signed confession, submitted herein, it appears that the petitioner admitted that he had committed previous criminal offenses, but the confession was not introduced in evidence and defendant was not sentenced under the habitual criminal act.
We find no grounds for granting the writ, and it is hereby denied. | [
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The opinion of the court was delivered by
Thiele, J.:
In this case -the petitioner has filed a document which he entitles “Petition for Redress.” It is apparent that it was not drawn by one skilled in the law, but it appears that petitioner contends he was not lawfully sentenced to the state penitentiary by the district court of Hamilton county. 'If the relief prayed for be granted petitioner would be entitled to his release, and we therefore treat his petition as one for a writ of habeas corpus on the ground later mentioned. It may be here noted that previously the petitioner sought a writ of habeas corpus on grounds other than are now asserted, and that petitioner’s claims of right to relief were denied in an opinion filed July 6, 1946, and reported in Elliott v. Hudspeth, 161 Kan. 611, 170 P. 2d 626. As appears from the first paragraph of that opinion petitioner was committed to the penitentiary for the crime of larceny from a dwelling house as defined in G. S. 1935, 21-537. We note, however, that in that opinion appears the following statement:
“The charge actually was larceny in a dwelling house where value is not material but where the offense is a felony (G. S. 1935, 21-513).” (l.c. 617)
The citation is erroneous and should have been G. S. 1935, 21-537 as correctly stated at the beginning of the opinion.
In his petition in the present case, the petitioner assumes that he was charged under G. S. 1935, 21-513, but he then states that he was sentenced under G. S. 1935, 21-537, which he states denounces a crime foreign to the crime to which he pleaded guilty. In that petitioner is in error for he was charged with an offense denounced in the latter section of the statute. The real point on which petitioner relies however is this: It developed at his trial in Hamilton county, Kansas, in October, 1942, that petitioner had been convicted of a felony in the state of Oregon and, as petitioner now states, he was there sentenced to serve a term, not exceeding eighteen months. Upon the showing of a previous conviction of a felony, the district court of Hamilton county, acting under the provisions of Laws of 1939, ch. 178, § 1 (now appearing as G. S. 1945 Supp. 21-10.7a) sentenced him for a term not exceeding fourteen years. The last mentioned statute reads as follows:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. Judgment in such cases shall not be given for .the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
Petitioner contends that under that statute the district court erred in doubling the sentence under G. S. 1935, 21-537, and should have doubled the sentence imposed upon him for his previous conviction in the state of Oregon, or not to exceed three years. If -that were true, he would have served the maximum sentence.
The statute above quoted had its origin in Laws of 1927, ch. 191, § 1 (appearing as G. S. 1935; 21-107a), and was amended in 1939 to read as quoted above. The change made by the amendment is not of present importance. The statute has been held to be valid. (See Hutton v. Amrine, 153 Kan. 436, 111 P. 2d 540, and cases cited therein.) It was interpreted in Childs v. Amrine, 155 Kan. 383, 125 P. 2d 349, where it was held:
“Under the provisions of the 1927 habitual criminal act (G. S. 1935, 21-107a) it was intended, in the event a second felony was committed, to double the punishment which would have been imposed if defendant had been a first offender. The sentence to be doubled is that sentence which ordinarily would have been imposed for the first commission of the second offense and not the ‘sentence prescribed for the commission of the first felony for which the person was previously convicted.” (Syl. f 2.)
See, also, Weathers v. Amrine, 155 Kan. 434, 125 P. 2d. 373.
Petitioner’s contention that the district court erred cannot be sustained. He is not entitled to the writ of habeas corpus, and the prayer of his petition must be denied. It is so ordered | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, Billy J. Henson, appeals from a conviction by a jury of first degree premeditated murder in violation of K. S. A. 21-3401.
On August 23, 1971, Marsha Lynn Smith, a young woman, was found dead on a bed in the bedroom of her Leavenworth apartment. Detective Charles Scharer, of the Leavenworth Police Department, commenced the investigation by examining the scene of the crime. Scharer was an officer with nineteen years’ experience in law enforcement and had participated in the investigation of approximately three hundred homicides. He found the body of the deceased lying face up on the bed, nude from the waist down. The victim’s throat had a deep cut and there were numerous stab wounds in the chest. Scharer took a number of photographs of different angles of the body and of the scene of the crime. Three more photographs were taken during an autopsy and were admitted into evidence at trial over defendant’s objection that they were irrelevant and prejudicial.
In addition to photographing the scene Scharer testified that the entire apartment was dusted for fingerprints. During the course of this examination Scharer found what appeared to be a “bloody palm print” located on the inside door above the lock or night latch. Scharer testified that during his years in law enforcement, including the investigation of many homicide cases, he had become familiar with the appearance of blood and it was his opinion that the palm print was etched in blood. This palm print was eventually sent to the Federal Bureau of Investigation with palm prints taken from the defendant and others. Examination by the FBI resulted in identification of the bloody palm print at the scene as that of the defendant and “of no one else,” according to the testimony of FBI agent Herbert Odell Rogers at trial.
Scharer, together with other investigating officers, found a knife and scrapings that appeared to be blood samples, which were obtained from the door of the apartment immediately below the victim’s apartment. Scharer also testified that he found no Sunday Leavenworth Times or any other recent newspapers in the apartment.
The following day an autopsy was performed on the victim’s body by Dr. Earl Wright, a pathologist, who testified as an expert witness for the state. His examination revealed the victim’s throat had been cut through to the vertebral column. Dr. Wright also found seventeen separate stab wounds in the chest which were grouped within a small area. He testified that at least nine of the wounds had punctured the heart. He described the grouping of the stab wounds as showing a ‘lack of randomness” and slightly unusual in that the lungs were not penetrated but only the heart. Dr. Wright further described the cause of death as either the neck laceration or the stab wounds which penetrated the heart — either would have been sufficient to kill. He also found evidence that the decedent had been sexually assaulted.
Further police investigation revealed that the defendant knew the decedent, was familiar with her and that on the probable night of the murder, Saturday-Sunday, August 21-22, the defendant was looking for the decedent. The investigation further disclosed that in the latter part of July 1971, three to five weeks before the homicide, the defendant had committed a civil wrong against Lou Ann Lee, sixteen years of age. Miss Lee testified that on the occasion defendant threatened her with a knife, which she managed to wrest away from him; that he put his hands around her neck and simulated intercourse with her, at which point she was able to escape and later reported the incident to the police.
Defendant took the witness stand in his own behalf and, regarding the weekend of the murder, testified that on Saturday, August 21, 1971, at approximately 10:30 or 11:00 p. m. he went to the victim’s apartment for the purpose of meeting one Larry Workman and selling him some drugs. Apparently, Workman was a boyfriend of the victim. According to the defendant, Workman did not come to the apartment as anticipated. Defendant described what happened on his visit to the apartment in these words:
“A. I walked up the stairs, knocked on the door, and there was no answer. The door went open a little ways, and I stuck my head in and yelled, “Is Larry here?’ At which time I saw Marsha Smith lying on the bed. I went over to see if there was anything I could do, which I found there was nothing to do, because her head was almost severed. I turned around and not knowing what to do, I heard a police car, and I got scared and I stayed in the apartment until the siren quit, and I left the apartment and ran to my apartment and tried to figure out what I should do, which I could not figure out anything to do, because I was so scared.
“Q. Now did you go to the police?
“A. No, I did not.
“Q. Why didn’t you?
“A. I was too scared. I didn’t want to be connected with anything that brutal and vicious.”
Defendant was questioned two months later about the murder by officers of the Leavenworth Police Department, but failed to tell them about his presence at the scene of the crime at this time. During this interrogation, however, defendant was also questioned about, .and admitted his involvement in, an unrelated burglary. After pleading guilty to this burglary charge, defendant was placed on probation.
In January 1972 defendant violated the terms of his probation, went AWOL, 'and took up residence in the home of his parents in Springfield, Missouri. He was arrested for desertion on April 7, 1972, and thereafter questioned extensively about the Marsha Smith murder by two Kansas Bureau of Investigation agents. Defendant again failed to reveal 'that he had been at Marsha Smith’s apartment on the Saturday night in question.
Defendant was the only witness called by the defense. He testified at great length about his adtivities in the Leavenworth area during the months preceding the murder while he was in the army stationed at Fort Leavenworth. He testified in considerable detail about his involvement with the use of narcotics and other unlawful activities during this period. He admitted that he knew the victim, but denied having killed her. On cross-examination, over objection, he was interrogated concerning 'his efforts to prevent extradition from Missouri. His 'testimony will be further discussed in the course of the opinion as related to the points raised.
The state called Shirleen Wright as a rebuttal witness, who testified that she knew the victim during the summer of 1971, and had been to her apartment approximately ten times. She testified that about every time she was 'at Mi'ss Smith’s apartment the defendant was ‘also there. She further testified of a conversation with defendant about Miss Smith and that the 'defendant told her that he bad had intercourse with Marsha Smith.
The defendant specifies eight points of error on appeal which will be considered in the order presented.
Defendant’s first point on appeal is that there was no substantial evidence to support the jury’s finding of premeditation as an element of first degree murder. Defendant’s 'argument on this point is essentially a review of the evidence concerning the condition of the body and room in which it was found. Defendant concludes it was insufficient to establish the element of premeditation as required in a first degree murder charge.
Proof of premeditation as an element in first degree murder was considered in the recent case of State v. Hamilton, 216 Kan. 559, 534 P. 2d 226, wherein we held:
“The element of premeditation, essential to first-degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, as, for instance, lack of provocation, the evidence may be sufficient to support an inference of deliberation and premeditation.”
(Syl. 6.)
While we indicated in Hamilton that the use of a deadly weapon is insufficient, standing alone, to establish premeditation, we further said:
“While use of a deadly weapon is not alone sufficient to infer premeditation it is one of the circumstances which may be considered in determining whether a homicide was committed with deliberation. . . .” (p. 567.)
This accords with prevailing authority on the subject. (See 40 Am. Jur. 2d, Homicide, § 439, pp. 700-701; 1 Wharton’s Criminal Evidence [13th Ed.], § 135; and cases collected in an annotation in 96 A. L. R. 2d, Anno., Homicide-Premeditation, commencing at page 1435.) In addition to the use of a deadly weapon other circumstances may be relevant to establish premeditation. Some of these circumstances are listed in 1 Wharton’s Criminal Evidence (13th Ed.) at page 227:
“Premeditation and deliberation can be found from various circumstances, such as the nature of the weapon used, the lack of provocation, the defendant’s conduct before and after the killing, threats and declarations of defendant beforehand during the occurrence, or the dealing of lethal blows after the deceased was felled and rendered helpless.”
The instant record discloses the use of a knife with a six inch blade, one inch in width — obviously a deadly weapon. The photo graphs introduced by the state show the stab wounds to be centered in and around the victim’s heart, which indicates both deliberation and premeditation when considered with other evidence. The photographs also demonstrate the viciousness of the killing by showing the multiple stab wounds, and the fact the victim’s throat was slashed clear back to the spinal cord with one slice of the knife. The evidence disclosed that either the stab wounds in the heart or the slicing of the victim’s neck would, have caused death, thus an inference could well be drawn that there was a striking of lethal blows after the victim was rendered helpless. There was also evidence of defendant’s conduct both before and after the killing which tended to show premeditation. There was evidence of defendant’s use of a knife in a recent civil wrong, similar in several respects to the acts perpetrated here. The defendant knew the victim and there was evidence that on the probable night of the murder defendant was looking for her. Although defendant discussed the homicide with the police on two occasions, prior to his arrest, he did not tell the police of his presence in the victim’s apartment, but admitted it only after he learned that he had left an identifiable palm print on the door. We believe there is ample evidence of circumstances from which a reasonable inference of premeditation could be drawn.
In his second point defendant contends the trial court erred in admitting, under the provisions of K. S. A. 60-455, the testimony of Lou Ann Lee, a state’s witness, whose testimony pertained to a prior civil wrong committed by defendant and involving her. In support of his point, defendant submits a two-pronged argument. First he argues the court should have held an evidentiary hearing with Lou Ann Lee present to testify. He further contends that in any event her testimony was inadmissible.
On August 9, 1974, eleven days before trial, the state filed a motion to determine admissibility of evidence to be offered under the provisions of 60-455. The motion set forth what the evidence would consist of as follows:
“That the evidence sought by the State to be declared admissible is the evidence and testimony of one Lou Ann Lee concerning another occurrence in Leavenworth, Kansas, in the latter part of July, 1971, in which the above defendant, possessing a knife, threatened to kill a young girl who was breaking up with him, one Lou Ann Lee, and when said young lady talked the defendant into giving her the knife and had thrown the knife behind the bed, the defendant jumped on top of said young lady, put his hands around her throat, started to choke her, and moved his body as though making love to her at the same time. The said Lou Ann Lee finally broke loose from the defendant and ran and was caught by the defendant on the stairs, at which time she was rescued by the appearance of her brother.”
The motion further alleged the evidence was admissible on the issues of identity or absence of mistake or accident. A hearing was had on August 16, 1974, at which time the county attorney orally informed the court in somewhat more detail as to what Lou Ann Lee’s testimony would consist of. Defendant’s counsel stated to the court:
“Your Honor, on behalf of the defendant, Billy Henson, I am aware of the substance of the testimony. In fact, I have interviewed this witness. . . .”
After hearing the arguments and statements of counsel the trial court announced:
“I just can’t believe either that the hearing is required in the sense that the evidence has to be presented to the Court, as the county attorney stated here. I think we can go on the basis of the statement contained in the motion, and if the testimony should be otherwise, of course, it would result in a mistrial. This is a risk, I guess you would say, that the state has to assume. . . .”
As recommended in State v. Bly, 215 Kan. 168, 523 P. 2d 397, the state did file a pretrial motion and a hearing was had prior to trial. This procedure forestalls interruption of the trial and waste of jury time. It is true, Miss Lee was not called as a witness, but the record discloses the court was fully informed. Defense counsel was not surprised and in fact had interviewed the witness. He was afforded an opportunity to cross-examine at trial, when, in any event, the final ruling of the court must be made. Under the facts and circumstances, we find no error in the procedure such as that criticized in State v. Wasinger, 220 Kan. 599, 556 P. 2d 189, where a whispered discussion between court and counsel concerning the admissibility of evidence under 60-455 took place before the bench at trial.
We turn now to defendant’s further contention that in any event Miss Lee’s testimony was inadmissible. Her testimony at trial conformed closely with what was stated in the state’s pretrial motion. She testified that during the summer of 1971 she had dated the defendant for a period of three weeks to a month; that during this period defendant on two or three occasions made some reference to Marsha Smith when they saw her; and that on several other occasions he made reference to her by name. She further testified that the incident here in question arose when she attempted to break off her relationship with the defendant. She testified that on the evening of the incident her brother drove her and the defendant from her home to the defendant’s apartment for the purpose of delivering several “loads” of laundry. When asked if she went up to the defendant’s apartment with him she answered:
“A. Yes, I did. He had several loads of laundry, and I thought I would help him carry them up and get rid of him faster.
“Q. Did your brother go up with you?
“A. No, he stayed downstairs and listened to the radio.
“Q. When you got up into his apartment, was it upstairs?
“A. Yes.
“Q. And when you got up into his apartment, tell the jury then what happened?
“A. Well, he threatened me with a knife and told me he was going to kill me, and I talked him out of the knife. I don’t know how I managed it, but I did, and threw it behind the bed. As soon .as I did that, he jumped on me. I was screaming, and he put his hand around my neck and told me not to scream. He made motions over my body like he was trying to make love to me, and I finally managed to escape through his back door. And we were on the stairs, and my screaming .attracted my brother’s attention, and his appearance was my rescue.”
On cross-examination Miss Lee testified defendant wanted to go home with her and her brother and got in the car with them, over her objection. After driving about a half block, they were almost in front of the police station, when she asked her brother to stop and she got out of the car. She further testified:
“Q. And then what did you do when you got out of the car?
“A. I realized I had left my purse in the car and it was in the back seat. I ordered Billy to give it to me, and he said he wouldn’t.
“Q. You’re outside of the car now?
“A. Yes.
“Q. And you were running along side of the car?
"A. No, it’s stopped.
“Q. All right.
“A. And he wouldn’t give it to me. After a brief period of argument, he got out of the c.ar and went around to the side where I was, I was on the driver’s side, with my purse, and I told him to give me my purse, and he said he wouldn’t give me my purse. Finally I made a grab for my purse, and at the same time at this point I was cussing him out, and he slapped me across the face and my glasses flew across the street. And my brother at this time was definitely sure what was going on, and fortunately there was a policeman standing outside who saw the car. I ran over to the police department.
“Q. Let me stop you there a minute. Were you hysterical at this point?
“A. No, by this point I had regained my control. I felt I was out of immediate danger.
“Q. You were, calmly directing your brother as to what to do?
"A. There is a difference between calmly and angry authoritarian. I was not hysterical, I was in control of myself, but I wanted my brother to know that this was a dangerous situation, that we had to do something immediately.
“Q. Did your brother get out of the car and run?
“A. No, there was no real need for him to. He couldn’t leave the car sitting in the middle of the street, and he realized that I was going to the police station, and he also had seen the policeman outside, front, I do believe.
“Q. Okay. Did you go to the police station?
“A. Yes.
"Q. And did you go inside the police station?
“A. Yes. And the man greeted me with, ‘I already called a car,’ and I said ‘Good.’
“Q. And did you then tell the police that you were concerned for your well being?
‘‘A. Yes.
“Q. And isn’t it true they didn’t do anything?
“A. They didn’t do a thing.
“Q. And told you to come back Monday?
“A, Yes, and this was a Friday night. Didn’t help me in the least, but I was pretty cynical then.
“Q. And did your brother and Billy come into the police Station?
“A. Yes. I believe they parked the car and walked on over. I wasn’t there as he-
“Q. You and your brother and Billy went in the police department, and you were telling the police you were in fear for your well being, and you had been attacked?
“A. Yes.
“Q. And one or more of the police officers hearing this, told you to come back Monday and this was on a Friday.
“A. They told me there was nothing at that time they could do. If I wished to file a complaint, that I would have to do it on a Monday. They couldn’t do anything on a Friday night at eleven. I .asked them to please hold him here long enough for me to get home, it would only take me fifteen minutes. By the time I got home Billy was already on the phone to my mother.
“Q. So they didn’t hold him?
“A. That’s what it appeared.
“Q. And did you go down Monday and file your complaint?
“A. No.
“Q. Did you ever file a complaint?
‘‘A. No.”
On redirect examination Miss Lee was asked why she did not file a complaint and she replied:
“A. First the reaction that I got when I was obviously in fear of my life, second we were leaving town in January. From even what little we knew, we realized any sort of complaint like this would take a lot longer than to 'January to settle it. My parents were going to Hawaii, and thirdly my father was in Viet Nam and my mother naturally was under an extra load, because my father wasn’t there, and she really didn’t feel that she could handle it. It was the same sort of thing that goes on all of the time. I regret it severely now, but I was sixteen then and not twenty.”
K. S. A. 60-455 provides in pertinent part:
‘‘Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including . . . intent . . . knowledge . . . or absence of mistake. . , .” (Emphasis supplied.)
It is to be noted the statute specifically includes civil wrongs together with other crimes. If the requirements for admissibility are otherwise satisfied, an actual conviction is not a prerequisite to the admission of evidence of other offenses. (State v. Miller, 204 Kan. 46, 460 P. 2d 564; and State v. Bly, supra.) We have discussed in many cases the principles to be considered by a trial court in determining the admissibility of such evidence. Most recently these principles were summarized in State v. Faulkner, 220 Kan. 153, 551 P. 2d 1247, wherein we stated:
“In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact —i. e. that it is substantially in issue and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.” (p. 155.)
While the instructions are not reproduced in the record before us, it appears the trial court found the 60-455 elements of intent, identity and absence of mistake to be at issue and limited the jury’s consideration of Miss Lee’s testimony accordingly. Obviously, identity of the perpetrator was the critical issue at trial. Where a prior conviction or civil wrong is offered for the purpose of proving identity, evidence should disclose sufficient facts and circumstances of other offenses or civil wrongs to raise a reasonable inference that defendant committed both. (State v. Donnelson, 219 Kan. 772, 549 P. 2d 964.) In other words, similarity must be shown in order to establish relevancy. (State v. Bly, supra; State v. Cross, 216 Kan. 511, 532 P. 2d 1357; and State v. Johnson, 210 Kan. 288, 502 P. 2d 802.) The similarity of offenses is a key factor in relevancy. (State v. Masqua, 210 Kan. 419, 502 P. 2d 728, cert. den. 411 U. S. 951, 36 L. Ed. 2d 413, 93 S. Ct. 1939.)
Although there is disparity between the severity of the crime charged and the prior civil wrong, we believe there are other similarities sufficient to render the challenged evidence admissible within the trial court’s discretion on this issue of the case. It should be noted there is no way of ascertaining to what extremes the violence would have gone had not the witness, Miss Lee, been able to effect her escape from the defendant. The difference in the gravity of the two offenses, although not conclusive on the trial court, is an important factor to be weighed by it in assessing the probative value of the evidence and in 'determining its admissibility. Numerous similarities weigh in favor of the admissibility of this evidence. Both offenses occurred in the privacy of an apartment and involved girls of approximately the same age. In each instance the defendant was shown to have either dated or to have been with each girl on numerous occasions with some evidence of defendant’s prior romantic inclinations toward both of the girls. The evidence shows a knife was used on each occasion of violence, and at one point the attack on both girls focused on the neck or throat of the victim. Finally, and most probative of all of these similarities because of its highly individualistic character, there is evidence from which it may be inferred that each attack was partially motivated by or connected with sexual desires.
As to the element of intent under 60-455, there can be no doubt that this killing was committed maliciously and willfully. Based on the testimony of Dr. Wright there can be no question of the perpetrator’s intent to kill. Thus, the criminal intent at the precise moment the crime was committed cannot be said to be substantially at issue. However, as previously indicated, premeditation was an important and hotly contested issue in this case. While something more than mere intention to kill must be shown to establish premeditation (40 Am. Jur 2d, Homicide, § 439, p. 700) the antecedent intent of a killer is relative to the issue of premeditation. Premeditation is the process simply of thinking about a proposed killing before engaging in the homicidal conduct. (1 Wharton’s Criminal Evidence § 135, p. 224.) Although the knifing incident testified to by Lou Ann Lee stopped short of bloodshed, we, nevertheless, believe evidence thereof was relevant to prior intent as related to premeditation under the circumstances of this case.
The record fails to reveal any objection at trial to the statutory elements of absence of mistake or accident. The addition of inapplicable elements to the limiting instruction under 60-455 has never been held to be clearly erroneous. (State v. Moore, 218 Kan. 450, 543 P. 2d 923.)
For the foregoing reasons we find no prejudicial error in the admission of Lou Ann Lee’s testimony or in the procedure employed in connection therewith.
Defendant next contends the trial court erred in admitting certain photographs into evidence. The record reflects that defendant objected to eight photographs which were identified as Exhibits Nos. 4, 5, 6, 7, 16, 17, 18 and 19. All of the Exhibits in question were 9x8 inch, blapk and white photographs. Such photographs would not have the shocking impact on a jury as would colored transparencies or slides displayed on an enlarged screen, which, even though gruesome, have been held to be admissible when relevant to issues at trial. (See State v. Wilson, 220 Kan. 341, 552 P. 2d 931; State v. Campbell, 210 Kan. 265, 500 P. 2d 21; and State v. Hill, 193 Kan. 512, 394 P. 2d 106.) The long-standing rule, followed in this jurisdiction, was stated in State v. Booker, 200 Kan. 166, 434 P. 2d 801, cert. den. 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031, in these words:
“. . . Even though gruesome, photographs properly identified, as representing physical objects which constitute a portion of a transaction which serve to unfold or explain it, may be exhibited in evidence whenever the transaction is under judicial investigation. . . .” (p. 168.)
The substance of the rule has been restated in various forms in numerous recent cases coming before this court. In the recent case of State v. Wilson, supra, Mr. Justice Fromme speaking for the court expressed the rule in these words:
“. . . In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome, (citing cases.)” (pp. 346-347.)
See, also, State v. Villa & Villa, 221 Kan. 653, 561 P. 2d 428.
In the case at bar the photographs, although black and white reproductions, are admittedly gruesome, but this was a gruesome crime. They were relevant to the critical issues in the case, one of which, as has been previously indicated, was premeditation. The photographs depicted the violence of the crime. The photographs of the room tended to show a lack of provocation on the part of the victim. As related to Dr. Wright’s. testimony, the stab wounds showed a lack of “randomness” and also the probability that some of the wounds were inflicted after the victim was dead or rendered helpless. The photographs of the partially disrobed body corroborated Dr. Wright’s testimony of sexual intercourse, and were related to the state’s evidence concerning defendant’s assault on Lou Ann Lee. All of this was relevant to the issue of premeditation. While there were five photographs of the room and body, they were taken at different angles. The condition of the room connected with other evidence related to the time of the crime, which was important evidence on the issue of identity. The showing of blood in the photographs related to the bloody palm print about which there was no explanation by defendant until after the state had closed its case. Under the circumstances, we cannot fault the trial court’s admission of the five photographs on the ground that they were repetitious.
Two of the three photographs taken at the autopsy were of the victim’s heart isolated from the rest of her body. We do not consider these two photographs to be gruesome. They corroborated Dr. Wright’s testimony of a "lack of randomness” and that the heart had been pierced nine times. The third autopsy photograph depicted Dr. Wright examining the victim’s throat wound. It corroborated Dr. Wright’s testimony as to the size of the knife used; that the wound appeared to have been inflicted with one slash and also that either the throat laceration or the heart stabs would have been fatal, which related to the basis for the drawing of an inference of wounds inflicted after the victim was dead or rendered helpless— a circumstance relevant to the issue of premeditation.
We cannot approve the wholesale admission of repetitious, grotesque and bloody photographs which add nothing to the state’s case. (State v. Clark, 218 Kan. 18, 542 P. 2d 291.) But this is not the situation at bar. All of the photographs were relevant to the issues of premeditation or identity and the time of the crime. Even where the defendant concedes the fact of the victim’s death, and the cause thereof, the prosecution has the burden to prove all elements of the crime and photographs relevant thereto are admissible.
The issue at bar is presented in context similar to that before the court in State v. Jones, 218 Kan. 720, 545 P. 2d 323, wherein the state offered colored slides of the victim’s body lying on a morgue slab for the purpose of showing the nature and extent of the wounds in order to establish premeditation and malice in a first degree murder prosecution. In finding no error we said:
“Unlike Boyd and Clark, the photographs admitted by the trial court in the instant case, while admittedly gruesome and grotesque, were not offered solely to inflame the minds of the jurors. Since the state’s case was based upon the elements of premeditation and malice it was necessary for the state to satisfy these elements by proof of the nature and extent of the wounds inflicted upon the body of the victim. . . .” (pp. 724-725.)
Defendant next claims error in the admission of the testimony of Margaret Fanghor, the victim’s mother, and Minda Kellogg, her sister. Their testimony established the victim as a neat housekeeper, which negated the possibility that defendant’s palm print was placed on the door at some time previous to the murder. They also testified as to the victim’s habit of purchasing, a Sunday newspaper, the absence of which related to the time of the murder. The time of the victim’s death and her good housekeeping habits, as related to the bloody palm print, were material facts. Relevant evidence is evidence having a tendency in reason to prove any material facts (K. S. A. 60-401 [b]). We find no error in this regard.
Defendant’s fifth point of error relates to a possible conversation of a state’s witness with one of the jurors during the trial. Defendant contends the trial court’s inquiry into the matter was insufficient. Prior to the commencement of the third day of trial it was reported to the court that Herbert Rogers, the FRI fingerprint expert, had been seen talking to a juror in a hallway outside the courtroom. A hearing was had in chambers and Mr. Rogers was examined by counsel for the state and defendant. Rogers testified that he was not familiar with the twelve jurors and did not know whether the people he conversed with were jurors. He testified that in any event the conversation consisted only of pleasantries; that he did not mention that he was a witness; and that absolutely nothing was said in connection with the trial or his abilities as a fingerprint expert. After hearing the testimony of Rogers, the trial court was satisfied the conversation did not concern the case and denied defendant’s motion for a mistrial. Defendant, nevertheless, contends the court should have made further inquiry and failure therein requires a reversal. We do not agree. The statutory provisions for declaring a mistrial for such conduct in a criminal case are set forth in K. S. A. 22-3423 [1] [c]. Whether the conduct in question requires a mistrial, under the broad grounds defined in the statute, is a matter of discretion with the trial court. 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. (State v. Rhodes, 219 Kan. 281, 546 P. 2d 1396; and State v. Finley, 208 Kan. 49, 490 P. 2d 630.) 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 significance. Generally, when the communication is entirely unrelated to defendant’s case there is insufficient prejudice to require a new trial. (State v. Culbertson, 214 Kan. 884, 522 P. 2d 391. See, also, 9 A. L. R. 3d Anno., Jurors-Communications With Witnesses, § 9 [a], p. 1289.) No prejudice to defendant’s case is shown here, and we find no abuse of discretion in the trial court’s disposition of the matter.
Defendant next contends the trial court erred in admitting the testimony of Detective Scharer pertaining to the “bloody palm print” on the door of the victim’s apartment. Defendant says the state should have secured a chemical analysis to establish, scientifically, that the palm print was etched in blood. Defendant also says that Scharer was not qualified to testify as an expert on the matter. The state’s failure to make a chemical analysis goes to the weight and credibility of the evidence rather than to its admissibility. (State v. Watkins, 219 Kan. 81, 547 P. 2d 810; and State v. Curtis, 217 Kan. 717, 538 P. 2d 1383.) Whether a witness is qualified to give opinion testimony is to be determined by the trial court in the exercise of its discretion. (Coonrod v. Walz Constr. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, 535 P. 2d 971.) Moreover, the defendant, in presenting his case, explained how the bloody palm print might have been made after he admitted that he had been in the victim’s apartment after the murder. We find no merit in the defendant’s contention.
Prior to cross-examination of defendant, an out-of-court hearing was held concerning the prosecution’s right to cross-examine defendant concerning his refusal to waive extradition after his arrest. The state argued that since the defendant had testified at great length about his life of crime in Leavenworth, which the state claimed was a trial strategy to impress the jury that he was admitting all of his misdeeds, and, therefore, the state should be entitled to bring out on cross-examination that 'defendant had refused to waive extradition — a fact which he omitted from his account. The state also argued that by his detailed recital of wrongdoing, the defendant opened the door and that the proposed cross-examination was permissible as falling within the scope of his direct examination. The trial court permitted the state to cross-examine and defendant now claims error.
In response to the prosecutor’s cross-examination defendant testified:
“Q. What occasioned the delay?
"A. I decided not to sign the extradition papers to come back to Kansas.
“Q. You fought extradition back to Kansas?
“A. Yes, sir, I did.
“Q. And you had .an attorney down there, didn’t you?
“A. Yes, sir.
“Q. And finally the court down there ordered your return to Kansas on our extradition warrant?
“A. Yes, they did.”
We find no Kansas case which has dealt with this issue. Courts of sister states have differed in their treatment of the question. (See 22A C. J. S., Criminal Law, § 628, p. 477.) Some courts have held it proper to admit the fact of extradition and that the accused resisted. (State v. Foster, 80 N. H. 1, 113 A. 211; Orrin J. Brown v. The State, 143 Tex. Cr. R. 358, 158 S. W. 2d 1018.) Other courts have held to the contrary stating that waiver of extradition is no evidence of innocence, and resistance is no evidence of guilt. (e. g., Commonwealth v. New, 354 Pa. 188, 47 A. 2d 450; and State v. Martin, 229 Mo. 620, 129 S. W. 881.) We believe the rationale of the last cases mentioned to be the better reasoning. Kansas and Missouri are each a party to the Uniform Criminal Extradition Act and Compact (K. SA. 22-2701, et seq. [and K. S. A. 1976 Supp.]). Under the provisions of the Act every accused person is afforded the right to have extradition adjudicated. In the instant case, defendant was merely exercising his statutory rights- within the state of Missouri in refusing to execute a waiver of extradition. Refusal to waive statutory rights in connection with extradition is to be distinguished from an accused’s refusal to furnish handwriting exemplars or voice samples where no statutory rights are involved. (See State v. Haze, 218 Kan. 60, 542 P. 2d 720.)
However, as the state points out, the question is posed in an unusual setting in this case. The state has filed a supplemental record, the bulk of which consists of the opening statement of defendant’s counsel (five pages) and seventy-five pages of defendant’s testimony. Defendant’s counsel devoted much of his opening statement to a history of defendant’s misdeeds in Leavenworth, all of which was restated in detail by defendant in his testimony. Defendant related in much detail his association with the “Third Street House” a group involved in the use and sale of drugs and other criminal activities. We must agree with the state that this appears to have been a strategy of defendant, designed to impress the jury that he had told all of his misdeeds and was now telling the truth as to his innocence on this single occasion. The state claims that defendant’s emphasis on his unsavory life style in Leavenworth opened the door to cross-examination on defendant’s refusal to waive extradition. We cannot agree for the reasons we have stated, but we do believe the defendant’s testimony and the statement of his counsel substantially lessened the possibility of any prejudice resulting from the cross-examination, so as to render any error harmless.
Whether inadmissible testimony constitutes harmless or reversible error depends upon the particular evidence and the circumstances of the case in which the question arises. (State v. Bradford, 219 Kan. 336, 548 P. 2d 812.) In view of the defendant’s own testimony the challenged evidence could hardly be said to be so prejudicial as to substantially affect defendant’s right to a fair trial.
. Finally, defendant claims error in the trial court’s denial of a new trial, but he makes no additional arguments.
We have carefully examined all of defendant’s contentions and arguments and find no error shown which would warrant the granting of a new trial.
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The opinion of the court was delivered by
Burch, J.:
This appeal involves the right of a landowner to recover damages from- a drainage district arising by reason of the flow of water through a drainage 'ditch, which ditch was constructed pursuant to and under the authority of statutes known as the “Drainage Act of 1905” as amended, being G. S. 1935, 24-401 et seq. The action was brought previously to this court on appeal from an order of the district court overruling a demurrer to the appellee’s petition and the district court’s ruling was affirmed. (See Sester v. Belvue Drainage District, 159 Kan. 143, 152 P. 2d 875.) As authority therefor we cited the holding of this court in the companion case of Prickett v. Belvue Drainage District, 159 Kan. 136, 152 P. 2d 870.
Following the appeals in the cited cases the present case was tried by a jury and such trial and the rulings of the district court on the post-judgment motions resulted in a judgment being entered against the drainage district for $3,500. The drainage district has appealed and the first error urged by the appellant in its brief is that the district court should have sustained the appellant’s motion for judgment notwithstanding the general verdict on the special findings of the jury. If appellant’s contention be correct the litigation is over.
The general facts developed from the evidence are very much the same as those set out in the above-cited cases and a detailed repetition of them is not necessary in order to consider the questions of law raised in the present appeal. However, in order to avoid repeated reference to the cited decisions, a brief resumé of the essential facts may be helpful. It follows: Under its statutory power the appellant created a drainage ditch in 1931 . . . which was ten years before any of the alleged damages occurred ... for the purpose of carrying into the Kaw river a part of the waters of the Vermillion river which would naturally have flowed into the Kaw river about a mile farther down the stream in Pottawatomie county near the city of Belvue. In connection therewith, by condemnation or direct conveyance, the drainage district acquired a strip of land 200 feet in width, immediately adjoining appellee’s farm, within the confines of which the ditch extended from the Vermillion river to the Kaw for many years without apparently causing any damage to appellee’s property. Appellee did not make any claim of any kind against the drainage district for damages at the time or soon after the' ditch originally was constructed. About ten years thereafter, -there occurred in the vicinity of the appellee’s farm two of the heaviest floods that had ever been known in the locality, according to the testimony of the appellee and his witnesses. The first flood occurred on the 10th of October and the second on the 20th. At the time of the floods the Vermillion river and Rock creek, which is a little stream northwest of appellee’s farm, overflowed and approaches to bridges were washed out. As a consequence of the damages which were evident in the wake of the floods the appellant consulted an engineer for advice and recommendations as to what should be done to guard against a repetition of losses due to lack' of flood control. The county had lost a number of steel spans and several small bridges due to the floods. In the course of the investigation made by the engineer certain members of the drainage district board met with him and viewed the site on the banks of the Vermillion river where the drainage ditch began. They determined that at the entrance of the ditch into the river there was a point of land which extended into the center of the river and on toward the center of the drainage ditch and it was decided that such point should be removed by dynamiting. According to the engineer the object of removing the point was to cause the water to flow in a more direct line down the center of the existing channel of the drainage ditch. The investigating parties were of the opinion, according to the testimony, that a whirlpool was being created at the mouth of the drainage ditch, which resulted in a turbulent water action causing erosion and widening of both banks of the ditch. After the dynamiting had been done by the appellant for the purpose of removing the point of land which projected into the junction of the ditch and the river, the appellee brought the present action to recover the damages which he alleged he sustained by reason of the flow of the waters thereafter through the drainage ditch. His closest neighbor, a Mr. Prickett, also brought an action to recover similar damages which he claimed to have sustained. The petitions in the two cases were very similar and raised the same questions of law insofar as demurrers thereto were concerned. (See Sester v. Belvue Drainage District, supra.) The point of land which was removed by the dynamiting was not owned by the appellee.
The foregoing brings üs to consideration of what was held by this court in the case of Prickett v. Belvue Drainage District, supra. The decision, in referring to the petition filed in the Prickett case, reads as follows:
“. . . It was clearly alleged [therein] that the purpose in widening and deepening the ditch at its north end at the time the Vermillion river- was at flood stage was to divert into the ditch a larger volume of water than had been originally planned and to came the ditch to be enlarged along its course by erosion. As a taking of property we see no substantial distinction between the purposed enlargement of a drainage ditch by putting into action the force of erosion and the same enlargement by mechanical means. Knowing, as they must be assumed to have known, the nature of the soil through which the ditch was constructed, the drainage district officers obviously widened and deepened the opening for the very -purpose of enlarging the ditch by erosion. We think that a reasonable interpretation of the allegations of the petition requires that conclusion. This imputes no bad faith on the part of the drainage district officers. On the contrary, it fairly assumes that their action was for, the purpose of averting a much greater damage to the property of others located' within the district. Had the further appropriation of the plaintiff’s land, of which he now'complains,, been contemplated when the original construction plan was adopted there certainly can be no 'question that he would have been entitled to recover for all damages properly allowable in a condemnation proceeding. Must we say that because plaintiff’s property was taken in an emergency action when there was no time to follow the procedure for condemnation he is barred from recovery? We do not think the law requires so unjust a result.” (Emphasis supplied.) (p. 141.)
From the above quotation it appears that the demurrer was overruled in the Prickett case because there had been an intentional enlargement of the ditch and more land taken by erosion through action which was equivalent to an emergency condemnation resorted to because there was not time to follow the statutory procedure. In such circumstances we held that the landowner should be entitled to recover “such additional compensation therefor as would properly be allowable in a condemnation proceeding under the statute.” As before stated, the holding was followed in considering the demurrer to the petition in the instant case. The decision in the Prickett case considers and disposes of all other theories of liability and clearly holds that the demurrer^ w:as overruled solely because the proposed widening and deepening.of the ditch at its north end was “to cause the ditch to be enlarged along its course by erosion.” Perhaps in so holding, this court stressed the rule of liberal construction of pleadings almost beyond its power of adhesion but in viey of our holding the appellee was entitled to trial upon issueip limited by the theoiy of liability expressed in the Prickett case. At. the conclusion of such trial the jury, in addition to its general verdict, answered certain special interrogatories as follows:
■ “2. In doing, the dynamite work was it the plan and intention of the drainage district board and .their engineer to:
“(a) Straighten the flow of the stream of the water flowing through the.' drainage ditch so that it would not swing from one side of the channel to the other and thereby cause erosion to its sides? A. Yes.
“(b) Or was it their purpose in doing the work to acquire more right of way to the south for the enlargement of the said drainage ditch, by deepening and widening of the channel where the work was done? A. No.”
From the above answers it deafly appears that the jury found, the drainage district board did not' widen and deepen the opening of the ditch for “the very purpose of 'enlarging the ditch by erosion” as was said in the opinion in the Prickett case. Consequently, the jury, in substance, found that there was not “a taking of property . '. . [for] the proposed enlargement of a drainage ditch by putting into action the force of erosion” rather than by “mechanical means” as was set forth also in the Prickett case. Thus it will be seen that the answers to the special questions completely negatived the appellee’s basic contention that there had been an intentional widening and deepening of the drainage ditch for the 'purpose of enlarging it along its course. Therefore, unless we enlarge upon the basis for the holding in the Prickett case there can be no recovery on the part of the appellee in the instant case.
Counsel for appellee argue that the basic or fundamental right of the appellee is contained in the fifth amendment to the constitution of the United States, which reads:
. . nor shall private property be taken for public use, without just compensation.” . »
and in article 12, section 4 of the constitution of the state of Kansas, which .reads:•
“No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made .in money or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.” '
In the Prickett case we also stated: . .
“Not only does the statute contemplate compensation for property taken or damaged but plaintiff’s right of recovery is buttressed by the constitutional guarantees against the taking .of private, property for public use without compensation. That fundamental doctrine has. been specifically applied to cases where land owners have had no opportunity to present their claims under the statutory procedure prescribed in drainage district laws, [citing cases.]” (p. 142.)
We did not hold therein, however, that the appellee was entitled to recover in any event because of constitutional guaranties. The statement in the Prickett case merely followed from the theory of liability previously expressed therein that the petition had alleged in substance that there had been an intentional taking of land for the purpose of enlarging the ditch by natural means. Upon such a theory the statement was sound and cited cases amply supported it.
Appellee overlooks in his argument as to constitutional guaranties that the jury found there had not been an intentional “taking” or “appropriation” of the appellee’s property. The right to sue a public body under the constitutional guaranties does not extend to cases where land is not actually taken but is only indirectly or consequentially damaged. There, is a great difference between intentional taking of land in the exercise of governmental power and injury resulting to land as a consequence therefrom. A consequential injury is not a taking of private property for public use within the meaning of the Fifth Amendment. In the early case of O. O. C. & C. G. Rld. Co. v. Larson, 40 Kan. 301,19 Pac. 661, paragraph two of the syllabus reads as follows:
“Subdivision 4, § 47, ch. 23, Comp. Laws of 1885, is not in contravention to § 4, art. 12 of the constitution of the state, or of the fifth amendment to the constitution of the United States; as the constitutional right to compensation for private property taken for public use does not extend to instances where the land is not actually taken, but indirectly or consequentially injured.”
Nichols in his work on Eminent Domain (Yol. 1, 2d ed., p. 293), has the following to say:
“It is the prevailing and now almost universally accepted doctrine, in the absence of a special provision in the constitution to the contrary, that when a tract of land has been taken by legislative authority for the public use and .the devotion of such land to the use for which it was taken injuriously affects neighboring land in a manner that would be actionable at common law if the injury had been committed by a private individual without legislative sanction, but does not substantially oust the owner from the possession of the land or deprive him of all beneficial use thereof, the owner of the injured land is not entitled to compensation under the constitution; for merely damaging property does not necessarily constitute a taking.”
Technically, *the fifth and, in fact, all of the first ten amendments to the federal constitution are limitations only on the power of the federal government and do not apply to the state. (See 16 C. J. S. 129, and, also, State v. Newton, 74 Kan. 561, 87 Pac. 757; Jones v. Amrine, 154 Kan. 630, at 633,121 P. 2d 263 and Garrison v. Amrine, 155 Kan. 509, at 512, 126 P. 2d 228.) However, the constitutional prohibition pertaining to the state depriving a' person of property without due process of law can be raised properly under section 1 of the 14th Amendment to the federal constitution. The legal principle involved is the same whether raised under the fifth amendment or the fourteenth. Consequently, cases construing the fifth amendment are in point and should be given due consideration.
The United States Circuit Court of Appeals, for the Sixth Circuit, in Franklin v. United States, 101 F. 2d 459, after full review of the authorities, held:
“The construction by United States of dikes on bank and in bed of Mississippi river for purpose of changing current to improve navigation, which result after a year in washing away of plaintiffs’ land on opposite side of river, was not a compensable ‘appropriation’ of plaintiffs’ property within purview of the Fifth Amendment.”
In Salliotte v. King Bridge Co., 122 Fed. 378 (6 C. C. A.) it was held:
“The fact that the volume and force of the current of a navigable stream flowing against the bank on the land of a riparian owner have been increased by the construction of a bridge and the deepening of the channel on the side next his land, rendered necessary because of the construction of a pier in the middle of the stream, resulting in the washing of the bank, does not amount to a taking of his land.”
In Bedford v. United States, 192 U. S. 217, 24 Sup. Ct. 238, 48 L. Ed. 414, in which case the federal agency was doing similar drainage protection work on the Mississippi pursuant to authority from congress, the court held:
“The injury from overflow and erosion to the lands of a riparian proprietor as the result of the action of the Mississippi river through a series of years is not such a direct consequence of the construction by the Federal government farther up the stream of a revetment along the banks, which did not change the course of the river as it then existed, but operated to prevent further changes, as to make such governmental action a taking of private, property for public use within the meaning of the 5th Amendment to the Federal Constitution.” (Headnote, L. Ed.)
The opinion by Mr. Justice McKenna continues in the cited case as follows:
“The principle contended for [by the landowners] seems necessarily wrong. Asserting the rights of riparian property, it might make that property valueless. Conceding the power of the government over navigable rivers, it would make that power impossible of exercise, or would prevent its exercise by the dread of an immeasurable responsibility.” (p. 224.)
One of the leading cases holding to the same effect is Brooks v. Cedar Brook & C. Imp. Co., 82 Me. 17, 19 Atl. 87, 7 L. R. A. 460, 17 Am. St. Rep. 459. The opinion reviews many earlier decisions from various state and federal courts which are directly in point but which, in the' interest of brevity, will not be quoted from herein. The rule as stated in 29 C. J. S. 920, § 111, is as follows:
“The general rule is that acts done in the proper exercise of governmental powers, or pursuant to authority conferred by a valid act of the legislature, and not directly encroaching on private property, although their consequences may impair its use or yalue, do not constitute a taking, under constitutional or statutory requirements of compensation for property taken and do not entitle the owner of such property to compensation, in the absence of constitutional or statutory provisions requiring compensation to. be made for damaging, injuring, or destroying property, such loss being damnum absque injuria.” ...
Kansas does not have a statute or constitutional provision which permits the recovery of consequential damages "resulting from flood control in instances wherein no part of the land has been taken by the administrative- authorities. In 18 Am. Jur. 757, § 132, the rule is stated as follows:
“Acts done in the proper. exercise of governmental powers which do not directly, encroach upon private property, though they may impair its use, do not amount to a taking of such property within the meaning of the ordinary constitutional provision that private property shall not be taken for public use without just compensation being made.”
In support of the rule the text cites Omnia Co. v. United States, 261 U. S. 502, 67 L. Ed. 773, 43 S. Ct. 437; Price Co. v. United States, 261 U. S. 179, 67 L. Ed. 602, 43 S. Ct. 299; and Miller v. Board of Public Works, 195 Cal. 477, 234 Pac. 381, 38 A. L. R. 1479, and many other cases. See, also, Jackson v. United States, 230 U. S. 1, 33 S. Ct. 1011, 57 L. Ed. 1363; Horstmann Co. v..United States, 257 U. S. 138, 42 S. Ct. 58, 66 L. Ed. 171; Christman v. United States, 74 F. 2d 112; and W. A. Ross Const. Co. v. Yearsley, 103 F. 2d 589.
To hold that a drainage district is liable for all consequential damages which might result from fit’s exercise of governmental authority would cast upon its members an incomprehensible accountability. At times in floods little lazy streams become destructive torrents and colossal, uncontrollable devastation may result. The unpredictable vicissitudes which follow efforts in furtherance of flood control are so partially providential in character that mere mortals should not be harassed by the hazard of representative responsibility therefor. Unless a state sees fit to waive its sovereign immunity for such damages the courts cannot aid those who máy sustain loss by reason of possible mistakes made by those authorized to act in behalf of the state. Some states have enacted statutes which extend the state’s liability to the point of allowing recovery for damages caused by public use, but Kansas has not. (See 18 Am. Jur. 753, § 129.)
Counsel for the appellee contend that the rule followed by the foregoing authorities is unsound and unfair because the damages sustained by the appellee are the same regardless of whether the drainage district board intended to enlarge the drainage ditch or whether the damages followed from an unintentional enlargement thereof. No authorities are cited in support of such contention. Following its logic, however, leads one along the legal lane of negligence. It can be said that the engineer and the members of the drainage district board should have known that deepening and widening the opening of the ditch would result in a larger flow of water through it and cause further erosion to its sides which ultimately might endanger improvements constructed upon appellee’s property; that the members of the board must or should have known that soil conditions' along the. banks of the ditch were such that extensive erosion would occur as a consequence of a .larger body of water, passing through the ditch and should not have changed the opening or should have properly protected the banks of the ditch against erosion. If such be true, then the ultimate result is that the members of the board were negligent in not" comprehending the situation or in not taking proper precautions to avoid the result. But there is no liability upon a drainage district for the negligent acts of its representatives because it is .created as a governmental agency and the work done is' governmental in character. (See Todd v. Drainage District, 109 Kan. 754, 201 Pac. 1096, 33 A. L. R. 64, and the opinion written by the present Mr. Chief Justice Harvey in State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 267 Pac. 31, and other cases cited in Prickett v. Belvue Drainage District, supra.)
It should be noted that the only land belonging to the appellee • which is no longer available. for use by him by reason of the enlargement or encroachment of the drainage ditch is a very small area which the jury found bo, be 1,000 square feet and valued at four dollars. However, the evidence is convincing that- such land was lost to the appellee by reason of water flowing across appellee’s land from the west through a natural swale, or gully which always had existed on appellee’s land. The water coming from the west through the swale in times of flood flowed into the drainage ditch, undermined its bank and caused it to fall in at the point where the gully reached the ditch. It is clear that such action was not caused by water flowing through the ditch but was caused by water coming down the fields through the swale, and the appellee so testified. All of the evidence touching upon the point was to such effect and no reasonable mind could reach any other conclusion. Therefore, it cannot fairly be said in the instant case that any land belonging to the appellee actually was taken by erosion caused by the turbulent action of the water running through the drainage ditch.
For the reasons given, the judgment of the district court is reversed, with instructions to enter judgment for the appellant.
Harvey, C. J., Smith and Parker, JJ., dissent. | [
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The opinion of the court was delivered by
Miller, J.:
Ermon Loudermilk appeals from his second conviction of possession of heroin, a class B felony under K. S. A. 1975 Supp. 65-4127a, and from a sentence of imprisonment for not less than five years nor more than life, imposed pursuant to K. S. A. 21-4501 (b). He raises numerous points of law, but does not question the sufficiency of the evidence to sustain the verdict. A statement of the facts is not necessary.
Defendant’s first challenge to the proceedings below is his contention that the prior conviction should not have been charged in the information and evidence of it should not have been admitted before the jury; instead, he claims that he should have been charged with simple possession of heroin and upon his conviction, evidence of the prior conviction could then have been considered by the judge in determining the classification of the offense and the punishment to be imposed.
K. S. A. 1975 Supp. 65-4127a provides in substance that:
“. . . [I]t shall be unlawful for any person to . . . possess . . . any opiates ... or narcotic drugs. Any person who violates this section shall be guilty of a class C felony, except that, upon conviction for the second offense, such person shall be guilty of a class B felony . . .”
Heroin, an opium derivative, is by definition a narcotic drug.
The information charges that in Sedgwick County, Kansas, and on or about August 18, 1974, Ermon Loudermilk “did then and there unlawfully, wilfully possess heroin . . . after having previously been convicted of possession of heroin on May 3, 1971 in Division No. 6 of the Sedgwick County, Kansas, District Court
The defendant did not challenge the information before trial. K. S. A. 22-3208 ( 3) provides that:
“. . . [Objections based on defects in the . . . information . . . other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. . . .” (Emphasis supplied.)
Defendant does not now raise any question as to jurisdiction nor does he contend that the information fails to charge a crime. He contends, instead, that the reference in the information to his prior conviction is surplusage and wholly unnecessary. We disagree.
The purpose of an information is “not only to give the court jurisdiction, but also to inform accused of what offense he is charged, so as to enable him to prepare his defense.” 42 C. J. S. Indictments and Informations, § 11, p. 851. It is the jurisdictional instrument upon which the accused stands trial. Conviction of an offense not charged in the information is a denial of due process under the Fourteenth Amendment. State v. Minor, 197 Kan. 296, 416 P. 2d 724.
Section 10 of the Bill of Rights of the Kansas Constitution provides that:
“In all prosecutions, the accused shall be allowed ... to demand the nature and cause of the accusation against him . . .”
Almost 100 years ago Chief Justice Horton of this court, in discussing that section, said that a defendant cannot be charged in the information with one offense, and be convicted of another and different offense. State v. Behee, 17 Kan. 402. The language of § 10 is similar to language contained in the Sixth Amendment to the Constitution of the United States, applicable to prosecutions under federal law, which gives the accused the right “to be informed of the nature and cause of the accusation.” State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 ALR 2d 750.
The federal courts have held that under the language of the Sixth Amendment and under the due process clause of the Fourteenth Amendment, an indictment or information must be drawn with sufficient clearness and completeness to show a violation of law, to enable the accused to know the nature and cause of the charge against him and to enable him to make out his defense. Carter v. United States, 173 F. 2d 684 (10th Cir. 1949) cert. den. 337 U. S. 946, 93 L. Ed. 1749, 69 S. Ct. 1503; and see Wilkinson v. Haynes, 327 F. Supp. 967 (W. D. Mo. 1971).
Turning to the case at hand, we think the defendant was entitled to know, and to be specifically advised by the information of the specific offense with which he was charged and the seriousness thereof, including the class of felony of which he stood accused. The information before us recited the prior conviction in detail, and noted that the offense charged was a class B felony. This gave the defendant proper notice of the charge.
We recognize a distinction between crimes in which a prior conviction of a felony is a necessary element, and crimes in which a prior conviction of the same crime is considered in establishing the class of felony or the penalty to be imposed. The present habitual criminal act, K. S. A. 21-4504, is a legislative expression of that distinction. Subsection (5) of that statute provides as follows:
“(5) The provisions of this section shall not be applicable to: (a) Any person convicted of a crime for which the punishment is confinement in the custody of the director of penal institutions and where a prior conviction of a felony is a necessary element of such crime; or (b) any person convicted of a felony for which the punishment is confinement in the custody of the director of penal institutions and where a prior conviction of such felony is considered in establishing the class of felony for which such person may be sentenced.” (Emphasis supplied.)
The criminal code contains numerous examples of these two types of crimes. Crimes in which the prior conviction of felony is a necessary element include habitually giving worthless checks (K. S. A. 21-3708), aggravated weapons violation (K. S. A. 21-4202), unlawful possession of a firearm (K. S. A. 21-4204), and habitually promoting prostitution (K. S. A. 21-3514). This court has on numerous occasions declared that in a prosecution under K. S. A. 21-4204 evidence of the prior felony is a necessary element of the crime. (State v. Farris, 218 Kan. 136, 139, 542 P. 2d 725; State v. Knowles, 209 Kan. 676, 498 P. 2d 40.) We have also held that the same is true with regard to prosecutions under K. S. A. 21-3708. (State v. Walden, 208 Kan. 163, 490 P. 2d 370.) It is important to note that in each case where a prior conviction of felony is a necessary element of the crime, the fact of prior conviction is contained in the statutory definition of the crime rather than in the penalty section of the statute.
On the other hand, the legislature has created the following crimes under which a previous conviction is not an element of the substantive crime but serves only to enhance punishment: Driving while license canceled (K. S. A. 8-262); reckless driving (K. S. A. 8-1566); driving while under the influence of intoxicating liquor or drugs (K. S. A. 8-1567); theft of telecommunications services (K. S. A. 21-3745); promoting obscenity (K. S. A. 21-4301 and 21-4301a); possession of narcotics (K. S. A. 1975 Supp. 65-4127a); and possession of marijuana (K. S. A. 1975 Supp. 65-4127b). In each of these statutes the fact of prior conviction is not contained in the statutory definition of the crime but is contained only in the penalty provisions of the statute. It is in this class that the heroin possession statute properly falls.
The distinction between these two types of statutory crimes was made clear by this court in State v. Jones, 214 Kan. 568, 521 P. 2d 278. The statute there involved was K. S. A. 1973 Supp. 8-262 (a) which reads in part:
“Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction, a class A misdemeanor on the second conviction and for third and subsequent convictions shall be guilty of a class E felony. . . .”
Chief Justice Fatzer, speaking for the court, said:
“The Legislature has the power to define and prescribe punishment for criminal offenses. . . . The plain and unambiguous language used in K. S. A. 1973 Supp. 8-262 (a) requires the state prove the person charged has driven a motor vehicle on a public highway, and has done so when his privilege to operate a motor vehicle was canceled, suspended or revoked. A showing of prior convictions goes only to the question of defendant’s status. The prior conviction or convictions gives the defendant a classification, and the statute prescribes sequentially increased punishment for repeated offenders. A repeating offender is not punished for the prior offense or offenses, but the Legislature has declared that repeated violations justify the enhanced penalty. . . . K. S. A. 1973 Supp. 8-262 (a) is a self-contained, specific habitual criminal statute.” (p. 570.)
A comparison of the statute involved in Jones with that before us in this case leads to the conclusion that K. S. A. 1975 Supp. 65-4127a is also a self-contained habitual criminal act. In a prosecution pursuant to this statute, the state is concerned only with proving that the defendant had possession of a substance prohibited by the uniform controlled substances act. Prior convictions under this statute are not elements of the offense charged, and are pertinent only to the sentence which shall be rendered in the event of a conviction. The state is not obliged to prove the prior conviction during the presentation of its evidence before the jury; evidence of the prior conviction should be presented to the court after conviction in the same manner as such evidence is presented when the habitual criminal act, K. S. A. 21-4504, is invoked.
We turn now to the record before us. The state offered in evidence as exhibit No. 6 a certified copy of the journal entry of defendant’s prior conviction. No objection was interposed by the defendant and the exhibit was received and admitted into evidence. In view of our contemporaneous objection rule, K. S. A. 60-404, the admission of that evidence does not constitute error.
Defendant contends that it was error for the trial court to amend instruction No. 8 in open court, thus pointing out the fact that defendant had been convicted previously of possession of heroin. Instruction No. 8 was the “elements” instruction. As originally written and given to the jury, it did not contain any mention of the previous conviction.
Immediately following the giving of the instructions, before oral argument and before the jury retired to deliberate upon its verdict, a bench conference was held. Counsel for the state requested the court to include as an element in instruction No. 8, that defendant had previously been convicted of possession of heroin. Defendant objected only to the timeliness of the change, contending that it would emphasize the fact of the prior conviction. He made no objection to the substance of the requested change. The court then inserted in instruction No. 8 an additional line, numbered No. 3, so that the pertinent part of the instruction as given reads;
“To establish this charge each of the following claims must be proved:
“1. That the defendant possessed a narcotic drug known as heroin;
“2. That he did so willfully;
“3. That the defendant has previously been convicted of possession of heroin; and
“4. That he did so on or about the 18th day of August, 1974 ... in . . . Sedgwick County, Kansas.”
The judge then advised the jury that he had made an addition to instruction No. 8 and he read the revised instruction to the jury, telling them that he was rereading it only because he had made a change in it, and not for the purpose of emphasizing the instruction.
K. S. A. 22-3414 (3) requires the court to instruct the jury at the close of the evidence and before argument. The statute further provides:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
The instruction as given did not unduly emphasize defendant’s prior conviction. It merely required the jury to make an additional and unnecessary finding, about which there was no dispute in the evidence. The amendment was timely and in light of the then state of the record, and the overwhelming evidence of guilt, was not clearly erroneous. We find no error.
Defendant next contends that the trial court erred in failing to grant a continuance in order to allow the defense additional time to prepare the case for trial and to locate possible defense witnesses thought to be in Colorado and California.
The record indicates that the defendant failed to appear before the court in early January and his bond was forfeited. The state was unable to locate him until he was again taken into custody about the middle of March. At that time new counsel was appointed for him, an April trial date was fixed, and defendant was again released on bond. Apparently he made no attempt to locate the witnesses. Appointed counsel made numerous futile attempts to contact the defendant, but defendant did not respond and did not go to his attorney’s office to confer with him until two days before the matter was set for trial. The granting of a continuance lies within the sound discretion of the trial court and its refusal to grant a continuance will not be overturned in the absence of a clear abuse of discretion. State v. Cameron & Bentley, 216 Kan. 644, 533 P. 2d 1255. The trial court did not abuse its discretion.
Defendant’s next contention is that the trial court erred in permitting a detective to testify that he observed what he believed were “needle marks” on defendant’s arms and that in his opinion some of the marks were “fresh tracks.” The witness had no medical training but testified that he had read material provided to law enforcement officers by the Bureau of Narcotics and Dangerous Drugs. He had worked many heroin cases, had been an undercover agent for two years, and had observed similar marks on the arms of forty to fifty people. He admitted, on cross-examination, that he could not say the marks were made by heroin injections, and that they could have been made when blood was donated, or insulin was taken, or otherwise.
K. S. A. 60-456 provides for the admission of expert and opinion testimony. We have held that a witness must show himself to be skilled or experienced in the area to which his testimony relates and that such skill or experience may be acquired through practical experience as well as through formal training, study or research. Grohusky v. Atlas Assurance Co., 195 Kan. 626, 630, 408 P. 2d 697. The trial court has discretion to determine the qualification of the witness and the admissibility of his testimony. To reverse the trial court on the admission of expert testimony, an abuse of discretion must be found. State v. McClain, 216 Kan. 602, 606, 533 P. 2d 1277. Here the witness testified to what he observed and little more. Whether a small wound is a cut or a puncture, and whether it is old or new, would not appear highly technical. Be that as it may, the witness had some experience and training in the area about which he was testifying and we cannot say that the trial court abused its discretion in the admission of the testimony.
Defendant next contends that when the court reporter read the testimony of the defendant to the jury, the reading was unintelligible and the reporter mistakenly read a portion of an in camera hearing before the trial judge. The jury requested that certain of the defendant’s testimony be read back to them during their deliberations. This was done. We are not informed as to why the testimony was “unintelligible,” except that the court observed that the defendant frequently commenced speaking before the question was completed, thus making the transcription difficult. With reference to the in camera material, read by the reporter to the jury, we have only the finding of the trial court that this material was preliminary and the disclosure thereof was harmless. Defendant has not specified, in the record on appeal, the in camera testimony read by the reporter nor has he specified in the record or the briefs any particulars as to the alleged “unintelligible” reading. The burden is upon the appellant to demonstrate error. An issue will not be considered on appeal where its existence depends upon facts which do not appear in the record. State v. Jones, 214 Kan. 568, 570, 521 P. 2d 278. Appellant made no effort to provide a secondary record as provided in Supreme Court Rule 6 (m) (214 Kan. xxv), nor does he designate any portion of the record before us as that portion of the in camera hearing which was read by the reporter to the jury. Under these circumstances we cannot review this issue.
Finally, defendant contends that “possession” was inadequately defined in the court’s instructions. The court utilized the definition given in PIK Criminal 53.00. Although this definition was criticized in State v. Neal, 215 Kan. 737, 529 P. 2d 114, a firearms case, the facts and issues here are substantially distinguishable and we do not believe the jury was misled.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a suit brought by United American State Bank and Trust Company (hereinafter referred to as United), against Wild West Chrysler Plymouth, Inc. (hereinafter referred to as Wild West), for breach of an express warranty contained within an assignment provision of a security agreement-retail installment note. The trial court, after hearing evidence, found Wild West had breached the warranty and awarded United $4,674.83. Wild West appeals.
The lawsuit arose from a transaction involving the purchase and financing of an automobile. On July 12, 1973, Wild West sold a new Plymouth Road Runner to Kathleen A. Lorg and Ronald J. Lorg. After trade-in credit and miscellaneous credits and charges, the sale price of the automobile was $5,315.25. In order to finance the car, the Lorgs executed a note and security agreement with Wild West. Wild West then assigned the note to United.
The assignment clause of the note and security agreement contained certain express warranties, including a warranty that “the buyer(s) named is (are) over 21 years of age and has (have) the legal capacity to contract.” Breach of the warranty gave United the right to demand Wild West repurchase the note in cash for an amount equal to the entire unpaid balance due on the contract, with accrued interest. At the time the note was executed Wild West knew Ronald Lorg was only seventeen years of age. The trial court found that United did not know he was a minor when it accepted assignment of the note, but in fact thought he was forty-one years old.
The Lorgs made payments on the note totaling $192.06 and then defaulted. On February 28, 1974, United decided to replevin the car and found it had been demolished in an accident. It brought suit against the Lorgs for the unpaid balance. Kathleen Lorg responded by declaring bankruptcy. Counsel for Ronald Lorg notified United that Ronald was a minor and announced his intention to disaffirm the contract pursuant to K. S. A. 38-102.
The testimony disclosed the method of financing the sale of an automobile by Wild West. When Wild West sold an automobile, a customer could either pay cash or finance the purchase. If the automobile was to be financed, a customer could deal directly with a lending institution of his choice or he could borrow the money from Wild West. If the purchase was to be financed by Wild West, the customer would execute a note and security agreement which contained the price and type of vehicle and the terms of repayment of the loan. Thereupon, Wild West would telephone United and attempt to sell the note. In order to do this Wild West was required to give certain information on its customer to an employee of United. United’s employee would record the information on a customer statement and call the Wichita Credit Bureau, recording information received therefrom on a second card.
After the two telephone calls were made the bank employee gave the two cards to United’s loan officer, Duane Wilson. Based on the information on the cards, he would decide either to accept or reject the note. If United rejected the application Wild West would attempt to sell the note elsewhere. At the time the instant note was executed and assigned, Wild West was executing and assigning from one hundred to three hundred notes and security agreements per month.
When United agreed to purchase a note and security agreement it would so notify Wild West by telephone. Wild West would then prepare and sign a sight draft envelope for the amount of the note on a form previously provided by United. Wild West would put the note and security agreement, the purchaser’s statement, and credit inquiry authorization into the envelope 'and mail it to the Fourth National Bank. Fourth National automatically transferred the amount of the sight draft from United’s account to Wild West’s account.
About a week after United agreed to purchase a note and security agreement, it would receive the sight draft envelope and its contents from the Fourth National Bank. A United employee would open the envelope and verify the amount of the sight draft. The note had already been purchased; therefore, none of the other documents in the envelope were examined.
Because United did not deal directly with the automobile purchaser, Wild West was required to minimize United’s risk in two ways. First, Wild West was required to guarantee a set payment to United in the event a customer defaulted. The amount to be paid by Wild West was determined by calculating the difference between the sales price to the consumer and the cost of the automobile to the dealer. In the Lorg transaction, Wild West agreed to and did pay United $912.37. Second, Wild West expressly warranted that the purchaser of the vehicle was twenty-one years of age and had the capacity to make a valid contract. If these representations were false, Wild West was required to repurchase the note, paying the entire unpaid balance plus interest.
Wilson testified that the Lorg transaction was typical. When Wild West sold the car to Kathleen and Ronald Lorg, it called United to sell the note. The information, however, incorrectly stated Ronald’s age as forty-one. United called the credit bureau and approved the loan, provided Wild West would agree to a default payment of $912.37. Wild West agreed and a sight draft for $5,315.25 was prepared and sent to the Fourth National Bank. The draft was paid and was sent to United along with the other documents.
Wild West argues United has waived its right to enforce the war ranty clause and is now estopped from doing so. To support this position Wild West relies on K. S. A. 84-2-208, which allows a course of performance to override the express terms of a warranty. The statute provides:
“(1) Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.
“(2) The express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but when such construction is unreasonable, express terms shall control course of performance and course of performance shall control both course of dealing and usage of trade (84-1-205).
“(3) Subject to the provisions of the next section on modification and waiver, such course of performance shall be relevant to show a waiver or modification of any term inconsistent with such course of performance.”
Defendant introduced evidence of several previous transactions which indicated that United had previously accepted notes from Wild West which had been executed by customers who were under twenty-one years of age. Because of this course of conduct Wild West argues United has given up its right to rely on the express warranty provision requiring Wild West to guarantee the age and legal capacity of its customers who execute notes which are sold to United.
K. S. A. 84-2-208 applies only to sales which are made subject to Article 2 of the Uniform Commercial Code. The transaction before this court involves the sale of chattel paper and is governed by Article 9 of the code. (K. S. A. 1976 Supp. 84-9-102 [1] [6].) Article 9 contains no provision to modify warranties by course of performance. The provisions of Article 2 relative to course of performance are not a defense to an action based on the warranty in an assignment clause of a security agreement under the provisions of Article 9.
Wild West further argues the general principles of waiver and equitable estoppel apply. Waiver in contract law implies that a party has voluntarily and intentionally renounced or given up a known right, or has caused or done some positive act or positive inaction which is inconsistent with the contractual right. (Proctor Trust Co. v. Neihart, 130 Kan. 698, 705, 288 Pac. 574, and cases cited therein.) Once it has been established that a right has been waived, the party possessing the contractual right is precluded from assert ing it in a court of law. (28 Am. Jur. 2d, Estoppel and Waiver, §156, p.838.)
Closely akin to this argument is Wild West’s argument that United is equitably estopped from asserting its rights against Wild West. Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such faots. (Wichita Federal Savings & Loan Ass’n v. Jones, 155 Kan. 821, 130 P. 2d 556; 31 C. J. S., Estoppel, § 59, p. 367.)
Wild West’s reliance on waiver and equitable estoppel is predicated on United’s knowledge of Ronald Lorg’s age. The trial court found that United did not know that Ronald was seventeen at the time the note was purchased. A review of the record reveals this finding is supported by substantial competent evidence. The trial court correctly held that United did not waive its right to rely on the warranty and is not estopped to enforce it.
Wild West next asserts that the contract is ambiguous and should be construed in its favor. The issue was not raised in the trial court and cannot now be reviewed by this court. (Klaus v. Goetz, 211 Kan. 126, 505 P. 2d 726; In re Estate of Pyke, 199 Kan. 1, 427 P. 2d 67.)
Finally, Wild West believes the trial court committed error by dismissing Ronald Lorg as a party before litigation on the issue of whether he was liable for the car because it was a necessity. The record reflects that Ronald was dismissed as a party defendant by agreement between Wild West and United. Wild West cannot now claim error based upon the court order it requested.
The judgment of the trial court is affirmed. | [
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Fatzer, C. J.
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The opinion of the court was delivered by
Fromme, J.:
Pascual F. Villa and Vincent Villa were jointly charged and tried. They were convicted by a jury of first degree murder (K. S. A. 21-3401) and aggravated robbery (K. S. A. 21-3427). They appeal. In separate briefs they raise two identical points. An examination of the two points will dispose of their appeals without separate treatment. The first point concerns the admission of two photographs of the victim into evidence. The second point relates to the admission of handwritten notes into evidence. These notes were made by a detective during the investigation of Pascual F. Villa.
The appellants do not question the sufficiency of the evidence to support the convictions so a brief recitation of the background facts will suffice.
King Mercer, the owner of Bunny’s Drive-In in Wichita, was found dead in the driveway to his home shortly before midnight on July 16, 1974. He had closed his business establishment and had returned home with the day’s receipts. The pathologist who performed an autopsy testified that Mercer had suffered deep lacerations on his head and two bullet wounds, one in his head and one in his chest. From the trajectory of the bullet it appeared that the death wound in the victim’s chest was inflicted while the victim was lying on his back in the driveway.
The three that participated in these crimes admitted their presence at or near the scene when the crimes were committed. The participants were Pascual F. Villa, Vincent Villa and Clifford Savala. The three participants were arrested early the next morning at the home of Vincent. Coins, currency, a box, a coin tray from a cash register, papers, meal order tickets, receipts, letters and guest checks from Bunny’s Drive-In were recovered from the house where the three were arrested. The gun used in committing the crime was recovered from under a mattress in the Pascual Villa residence which was located next door to Vincent’s house. Vincent signed a written confession. Pascual made an oral statement. Clifford Savala testified for the state at the trial. At the trial Pascual and Vincent accused Clifford of planning and committing the crimes. Clifford accused Pascual and Vincent of committing the crimes.
The two photographs, which are the subject matter of the first point raised by appellants, are in black and white. They show the naked body of the victim from the waist up. The head lacerations and the bullet wounds are apparent in these pictures. The body was not otherwise damaged. The pictures were used by the pathologist in his testimony as to the cause of death. The appellants claim these two pictures were improperly admitted for the inflammatory purpose of presenting the face of the dead man to the jury.
These pictures are not similar to those which warranted a reversal in State v. Clark, 218 Kan. 18, 542 P. 2d 291, or in State v. Boyd, 216 Kan. 373, 532 P. 2d 1064.
In State v. Wilson, 220 Kan. 341, 552 P. 2d 931, it is held:
‘In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome.” (Syl. 5.)
Similar holdings may be found in State v. Campbell, 210 Kan. 265, 500 P. 2d 21, State v. Randol, 212 Kan. 461, 513 P. 2d 248, and State v. Jones, 218 Kan. 720, 545 P. 2d 323. The admission of these two pictures was entirely proper. The pictures serve to illustrate the nature and extent of the wounds inflicted. They corroborate the testimony of witnesses. They were relevant to testimony of the pathologist on the cause of death. They were relevant and admissible for any one of these three reasons.
We turn to the second and final point. This is the alleged error in admitting in evidence written notes made by Detective Oakley during his interrogation of Pascual Villa. The notes covered the substance of the oral statements made by Pascual. Detective Oakley testified at length during the trial concerning what was said by Pascual. At the close of Oakley’s testimony the written notes, which were largely duplicative of Oakley’s testimony, were offered by the state and admitted into evidence over the following objection by defense counsel:
“I object to it, Your Honor, for the reason the defendant didn’t sign it and these were merely his [Detective Oakley’s] notes and his writing. I object to it.”
The written notes purport to be made by Pascual, admitting his participation in these crimes. The notes were written by Detective Oakley. They were duplicative of the oral testimony of the detective and were repetitious. The written notes on proper objection should have been excluded but in view of the attending facts and circumstances their admission did not constitute reversible error.
K. S. A. 60-404 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” (Emphasis supplied.)
This statute, as it applies here, was discussed in State v. Patchett, 203 Kan. 642, 455 P. 2d 580:
“The previously established practice in this state is restated in K. S. A. 60-404 which provides in substance that no verdict shall be set aside or judgment based thereon be reversed because of erroneously admitted evidence unless the record reveals an objection timely interposed and so stated as to make clear the specific ground of objection. See also State v. Jolly, 196 Kan. 56, 410 P. 2d 267.
“The specification of an objection to evidence on one ground waives or estops the objector from making an objection on any other ground. [Citations omitted.]” (p. 645.)
As to the admission of the written notes the appellants lodge an entirely different attack on appeal from that made during the trial. Here their attack is based on K. S. A. 22-3212, which statute permits discovery and inspection in criminal proceedings. Subsection (7) of the statute provides sanctions for failure of the prosecution to comply with a discovery order and reads:
“. . . If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.” (Emphasis supplied.)
Under this section the court is vested with wide discretion as to the course to pursue when a discovery order is not complied with. (State v. Hollaway, 214 Kan. 636, 638, 522 P. 2d 364.) Under this statute a failure to disclose, while not to be condoned, does not warrant an automatic mistrial and does not require the evidence to be automatically excluded. The necessity of making clear the specific ground of an objection is especially apparent in the present situation. The function of an objection is to bring the matter complained of to the attention of the court for appropriate attention and action.
In this case a general discovery order was sought and obtained from a magistrate judge prior to the preliminary hearing. At the preliminary hearing Detective Oakley testified fully as to the oral confession of Pascual Villa, so the appellants were fully advised of the contents of the written notes. When the appellants were bound over to the district court for trial the presiding district judge had no personal knowledge of the prior discovery order issued by the magistrate. The district court could not be expected to act on the discovery order when the appellants failed to bring it to the court’s attention.
When the prosecution is charged with having failed to comply with a discovery order the sanctions to be imposed under K. S A. 22-3212 ( 7) must be left to the discretion of the trial court. The sanctions may range from an allowance of an inspection to an absolute exclusion of the materials from evidence. Factors to be considered by the trial court in imposing a proper sanction include: surprise to the defense as to the contents (State v. Jones, 209 Kan. 526, 498 P. 2d 65); absence of a request to inspect the materials (State v. Sullivan & Smith, 210 Kan. 842, 504 P. 2d 190); the amount of other evidence bearing on guilt (State v. Morin, 217 Kan. 646, 653, 538 P. 2d 684); and prejudice, if any, to the defense (State v. Johnson, 219 Kan. 847, Syl. 1, 549 P. 2d 1370).
Here the appellants do not claim surprise. The content of the written notes was disclosed in the testimony of the oral confession introduced at the preliminary hearing. There was no request for an inspection or a continuance. There is overwhelming evidence in the record bearing on guilt, which includes the written confession of Vincent Villa and the oral confession of Clifford Savala. There is no prejudice to the defense shown.
The case of United States v. Padrone, 406 F. 2d 560 (2nd Cir. 1969), cited by the appellants, has been examined and it is not persuasive under the facts of our present case. Other federal cases examined on this point are either distinguishable on the facts or do not support appellants’ position. (See United States v. Johnson, 525 F. 2d 999 [2nd Cir. 1975]; United States v. Lewis, 511 F. 2d 798 [D. C. Cir. 1975]; and United States v. Arcentales, 532 F. 2d 1046 [5th Cir. 1976].)
Error cannot be predicated on the refusal of a trial court to exclude from evidence materials which the prosecution may have failed to disclose under K. S. A. 22-3212 unless the record on appeal discloses that the matter complained of was brought to the attention of the trial court for a ruling and for determination of an appropriate sanction under the statute. An objection to evidence on one ground is not sufficient to raise objection on another ground when the particular objection assigned is not apt. The trial court will not be put in error in such event, even though the evidence may have been subject to other objections. The function of an objection is to bring the matter complained of to the attention of the court for an appropriate ruling, to warn the adverse party and to lay a proper foundation for examination of the ruling on appeal. It is apparent that this was not done in the present case and reversible error cannot be predicated thereon.
The two points raised by the appellants have been disposed of and the convictions of Pascual F. Villa and Vincent Villa are affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling a motion to confirm a sheriff’s sale of a tract of land under the statute authorizing the county to foreclose its liens on lands bid in by the county treasurer for nonpayment of taxes.
The controlling facts were these:
On and prior to October 15,1931, the tract of land in controversy, which was something less than 20 acres, was the property of the Weir Smelting Company. On that date bankruptcy proceedings were begun against that company, and this tract passed into the control of the trustee. In due time the tract was sold free and clear of all encumbrances to one Cavaness, and the sale was confirmed by the referee in bankruptcy.
During the pendency of the bankruptcy proceedings Montgomery county presented to the referee its claim for $2,005.70 for current and delinquent taxes on the tract in controversy. This claim was allowed, and out of the fragmentary assets of the bankrupt estate a 24 per cent dividend was declared on all federal and local tax claims, the amount thus falling to Montgomery county being $481.37. This incident occurred on April 26, 1932.
Thereafter, in May, 1932, by order of the board of county commissioners, plaintiff herein, the county attorney instituted a tax foreclosure suit against the owners or supposed owners of some 400 lots and parcels of land, and by some inadvertence this tract of land which had been disposed of in the bankruptcy proceeding was included in plaintiff’s petition.
In routine, judgment was decreed for plaintiff and the properties ordered sold. Accordingly the sheriff sold the former smelting company tract to one Blackford for $12. The appellants Allen and Lamar acquired his interest, and filed a motion to confirm this sale. The county attorney resisted this motion, and in a motion filed by him to set aside the sale and the judgment in foreclosure he set up the facts of the prior disposition of the property in the bankruptcy proceedings, and of the allowance of $481.37 to the county on its tax claim by the federal referee.
The trial court overruled appellants’ motion to confirm the sheriff’s sale and sustained plaintiff’s motion to set it and the judgment aside.
Hence this appeal.
Appellants press on our attention the fact that the taxes on the tract in controversy had been delinquent since 1927, that there had been no redemption, that Cavaness, who purchased the property from the federal trustee, had been served with process in the tax foreclosure suit and had made default, and that no- money had been paid to the county treasurer pursuant to the trustee’s order apportioning $481.37 of the bankrupt’s assets towards the payment of the county’s tax claim. In this connection they cite R. S. 79-1804 and R. S. 79-2604, the substance of which provides that the county’s lien for delinquent taxes is not subject to impairment, and that nothing but payment shall discharge the lien.
Whether the county was obligated to present its claim for taxes to the bankruptcy court need not be decided. It certainly was privileged to do so, and in consequence it was allowed $481.37 on its tax claim by that tribunal, in contradistinction to the pittance of $12 for which the property was sold by the sheriff, which sale appellants insist must be confirmed.
The record makes it clear that the county’s claim for taxes had been merged into the award made by the referee in bankruptcy before the tax foreclosure sale was begun. Consequently it is also clear that the inclusion of this tract in the tax foreclosure suit was by inadvertence or mistake. It is fundamental that a district court has full control over its judgments throughout the term at which they are rendered (Shamel v. Motors Co., 116 Kan. 5, 225 Pac. 1031; Burnham v. Burnham, 120 Kan. 90, 93, 242 Pac. 124), and on the propriety of confirming a sale of property in foreclosure — any foreclosure — the district court is not a mere automaton; it is vested with discretion touching the justice and equity of sales in foreclosure. (35 C. J. 46-47.) If the bankruptcy proceedings were left entirely out of consideration, confirmation of the sale of this manifestly valuable property for the trifling sum of $12 quite justifiably might have been refused. (Insurance Co. v. Stegink, 106 Kan. 730, 189 Pac. 965.)
The record contains no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a bond given to secure the performance of obligations in an ordinance granting a natural-gas franchise. The trial court sustained plaintiff’s motion for judgment-on the pleadings. Defendants have appealed.
Plaintiff alleged its incorporation and that of defendants; that on November 8,1927, plaintiff passed a certain ordinance, which was approved .by the mayor and duly published, and which was submitted to and adopted by the electors of the city at a special election called for that purpose and held April 17, 1928; that the grantee named in the ordinance (as the ordinance specifically authorized him to do) assigned his interest to the defendant, the Industrial Gas Company; that on June 25, 1928, the Industrial Gas Company filed with the city clerk its written acceptance of the ordinance, and also executed as principal, and the National Surety Company as surety, its, bond, sued on herein, in the sum of $50,000, and filed the same with the city finance commissioner, which acceptance and bond were received and duly approved. Copies of these instruments and of the ordinance are attached, as exhibits, and made part of the petition. The ordinance granted to one Knorpp the right, privilege and franchise for a period of twenty years from the date of the acceptance of the ordinance, to construct and operate pipes, mains, and other necessary equipment for the supplying and distributing of natural gas for industrial purposes to the city and its inhabitants. ' It provided that within 120 days after the passage of the ordinance the grantee shall file with the city clerk his acceptance thereof in writing; that within thirty days after such acceptance the grantee agrees to begin-the construction of a pipe line’to transport natural gas to Kansas City, Kan., from the Amarillo, Tex., gas fields, and a system of pipe lines for the distribution of such natural gas to industrial users within the city, and to complete the pipe line and distribution system “within one year from the date of such commencement thereof, subject to extension of said timé equaling delays . . . caused by acts of God, the elements, labor troubles, accidents, and any and all other causes not-reasonably within the control of the grantee.” That at the time of filing such acceptance the grantee shall file a bond in the sum of $50,000, executed by an authorized solvent surety company, “conditioned that the grantee will within the time in this ordinance provided, cause to be completed a pipe line to transport natural gas to Kansas City, Kan., and begin the construction of a distribution system within said city for the transportation and distribution of natural gas to industrial users within said city as provided in section three (3) of this ordinance. Because of the difficulty of ascertaining and determining the actual damages which shall be sustained by said city in the event of failure of grantee to cause said pipe line and said distribution system to be built within the time herein specified, said sum of fifty thousand dollars ($50,000) is hereby agreed upon as liquidated damages which would in such event be sustained by said city.”
Other sections of the ordinance contained appropriate provisions, not especially pertinent in this action. Section 10 sets out the rates to be charged consumers of gas; section 11 provides that the grantee, if requested by the city, will enter into an agreement to furnish gas for domestic use, at a stated price and under certain conditions; section 12 provides how contracts with consumers may be made at less than the scheduled rate; by section 13 the grantee agrees to pay $2,000 to the city annually during the life of the ordinance; section 14 contains a forfeiture provision, and by section 15, when the ordinance is accepted, the terms, provisions, obligations and conditions thereof are binding on the acceptor and his or its heirs, successors and assigns. The provisions of sections 16, 17 and 18 are not especially pertinent here. By section 19 “this ordinance shall take effect and be in force from and after the expiration of sixty (60) days from its final passage and publication in the official city paper and its acceptance by the grantees as herein provided.” The bond executed by defendants is in the sum of $50,000, conditioned that:
“Whereas, by the terms of ordinance number 23928, passed by the board of commissioners of Kansas City, Kansas, on November 6, 1927, granting to John L. Knorpp, his heirs, successors and assigns, a natural-gas franchise, in said ordinance more fully described, it is provided that the grantee therein shall within thirty (30) days after the acceptance of said ordinance by the grantee cause to [be] begun construction of a pipe line of at least twenty (20) inches in diameter to transport natural gas to Kansas City, Kansas, from the Amarillo, Texas, gas fields, and a system of pipe lines for the distribution of said natural gas to industrial users within said city of Kansas City, Kansas, and that said pipe line and distribution system shall be completed within one year from the date of such commencement thereof, subject to an extension of said time equaling delays in such construction caused by the acts of God, the elements, labor troubles, accidents and any and all other causes not reasonably within the control of the grantee; and
“Whereas, the Industrial Gas Company, the principal named in this obligation, has acquired all the rights, powers and privileges of John L. Knorpp, named as original grantee in said ordinance; and
“Whereas, said Industrial Gas Company has, concurrently with the filing of this bond with the commissioner of finance and revenue of said Kansas City, Kansas, filed with the city clerk of said Kansas City, Kansas, its acceptance in writing of the provisions, terms, obligations and conditions of said ordinance.
“Now, therefore, if the construction of said pipe line and of said distribution system shall be begun and be completed within the respective times provided in said ordinance for the beginning and completion, respectively, of said pipe line and of said distribution system, then the obligation of this bond shall be void; otherwise it shall remain in full force and effect.”
The petition alleged the pertinent provisions of the ordinance, its acceptance by the Industrial Gas Company, the execution and filing of the acceptance of the ordinance and of the bond and the approval of these instruments, and the default of defendants, in that they had failed to construct the pipe line and the distribution system, although the time for doing so has elapsed; that demand had been made on defendants for payment of the amount of the bond, which demand had been refused, and prayed judgment for liquidated damages in the amount of the bond, with interest since the demand.
The answer of the National Surety Company admitted the incorporation of the parties, and “the passage and approval, the publication, the special election and the assignment of said ordinance,” and “the execution, delivery, filing and approval of the bond for $50,000.,” all as alleged in the petition; and admitted “the acceptance in writing of said ordinance.” As to this last admission an amendment to the answer was made later by leave of court, in which it was admitted the Industrial Gas Company filed a written acceptance of the ordinance June 25, 1928, but alleged the “acceptance was of no force or effect because it was provided in said ordinance that within one hundred and twenty (120) days after the passage of said ordinance the grantee therein, or his assignee, the Industrial Gas Company, should file with the city clerk of said city an acceptance in writing of the provisions, terms, obligations and conditions of said ordinance; that it was further provided in said ordinance that if within one hundred and twenty (120) days from the passage of said ordinance, its terms, provisions, obligations and conditions should not be so accepted, then said ordinance should be void; that said ordinance was passed by the board of commissioners of said city November 8, 1927; was approved by the mayor of said city November 15, 1927, and was published in the official city paper November 16, 1927; that no acceptance of said ordinance was filed with the city clerk of said city until June 25, 1928, which was more than 120 days after the passage of said ordinance and therefore said ordinance became void and there was no consideration for the giving of said bond.”
Further answering, defendants denied all allegations of the petition not admitted, and alleged as affirmative defenses certain matter which may be summarized as follows: That the time of performance under the ordinance was extended by delays beyond the control of the grantee in this, that at the time of the passage of the ordinance the grantee disclosed to the governing body of the city that the construction of the pipe line and distribution system provided for by the ordinance was a part of a general project which contemplated the construction of distribution systems for natural gas for industrial purposes in many other cities situated between the fields where the gas was produced and Kansas City, Mo.; that the principal distribution system to be constructed as an essential part of the project was that for Kansas City, Mo., and plaintiff’s governing body was advised that it would not be possible to construct the pipe line and distribution system for Kansas City, Kan., unless and until all necessary legal permissions were obtained to construct and operate the distribution system in Kansas City, Mo.; that this could not be done unless the Public Service Commission of the state of Missouri issued to the grantee, or those associated with him, its certificate of convenience and necessity authorizing the construction and maintenance of the distribution system in Kansas City, Mo.; that application for such a certificate had been made and had not been allowed, for which reason, beyond the control of the grantee, it became impossible to construct the pipe line and distribution system for Kansas City, Kan., provided for by the ordinance, and for which reason there had been no default on behalf of the grantee.
It was further alleged that the provisions of the ordinance, and the bond for the payment of $50,000 constituted a penalty and not liquidated damages; that plaintiff has, in fact, sustained no damages, but, on the other hand, has received certain benefits.
It was further alleged that it was not within the corporate powers of plaintiff to take from defendants a bond for the purpose of making a profit.
It was further alleged that the grant of the franchise by the ordinance was legislative in character and could have no extraterritorial effect, and that the bond given was void because the conditions thereof attempt to operate extraterritorially with respect to building the pipe line from the gas fields of Amarillo, Tex., to Kansas City, Kan.
The Industrial Gas Company adopted for its answer the amended answer of the National Surety Company.
Plaintiff’s reply denied matters alleged as affirmative defenses in the answer. Its motion for judgment was upon the grounds that the answers failed to state a defense to the action. Judgment for plaintiff was proper on this motion if the answers pleaded no defense. In determining whether defenses were pleaded by the answers they should be construed as favorably to the defendants as though they had been attacked by demurrer.
Broadly speaking, the principal defenses pleaded in the answers and relied upon here are three: First, that the ordinance was void for the reason it was not accepted within time. Second, that the ordinance was enacted and accepted upon a condition not mentioned therein, namely that the Industrial Gas Company could obtain a certificate of convenience and authority from the corporation commission of Missouri to construct pipe lines and distribute gas in the state of Missouri and a franchise for the distribution of gas in Kansas City, Mo., which it had endeavored to obtain, but had been unable so to do. Third, that the sum of $50,000, provided in the ordinance for which the bond sued on was given, is a penalty and not liquidated damages. We shall discuss these in the order named.
First. Was the ordinance void for the reason it was not accepted within time? Three answers suggest themselves to this contention: (1) The ordinance was in the nature of a proposition for the entering into of a contract. One who makes such a proposition and fixes a time for its acceptance may waive the time, and the party accepting it after the time fixed, with knowledge of the fact, cannot be heard to complain. (2) The grantee of a franchise who accepts it in any affirmative way, even by conduct, as by operating under it, cannot be heard to say that it has not been accepted. In this case it is alleged in the petition, and admitted in the answers, that the ordinance was accepted. One provision of the ordinance specifically states that if it is accepted it shall be binding upon the grantees. Appellants argue that estoppel is not pleaded. The facts are pleaded, hence it is no longer important whether the term estoppel, or what term, or that no term, was applied to the conduct. (3) This question is predicated upon definitions of words and analysis of terms too minute to be substantial. It is true the ordinance says it must be accepted within one hundred and twenty days after its passage, and it is pleaded in the petition it was passed November 8, 1927, and that it was accepted on June 25, 1928. Since the ordinance provides that if it is not accepted within the time mentioned it shall be void, appellants argue that the facts pleaded demonstrate it was void. But these facts are not the only ones to be considered. The ordinance was necessarily passed under the authority and in view of the provisions of our statute (R. S. 13-2801) which, among other things, provides (paragraph 6):
“. . . If, pending the passage of any such ordinance or during the time intervening between its final passage and the expiration of sixty days before such ordinance shall take effect, ten per cent of the legally qualified voters of such city voting for mayor at the last preceding city election shall present a petition to the board of commissioners asking that such franchise ordinance be submitted for adoption to popular vote, then it shall be the duty of the mayor of such city to issue a proclamation calling a special election for such purpose. The proclamation calling such special election shall specifically state that such election is called for the adoption of the ordinance granting such franchise, ...”
When an election is held, as provided by this statute and as it was in this case, there is reason to say that the ordinance is not adopted and hence has not been passed and is only pending passage until a majority vote for it at the election. All of this machinery goes to the enactment of the ordinance, and hence to its passage. The acceptance in this case was within sixty days after the election at which the ordinance was adopted, and hence was within time.
Second. Do the facts pleaded with reference to an understanding that the ordinance should not be in effect unless the Industrial Gas Company was able to get a certificate of convenience and authority from the public service commission of Missouri, and the franchise in Kansas City, Mo., constitute a defense? Our statute (R. S. 13-2801) provides:
“First. All contracts granting or giving any such original franchise, . . . shall be made by ordinance, and not otherwise.”
This statute would be nullified if side agreements, not embodied in the ordinance, were to control as to validity. A similar contention was held to be without merit in City of Topeka v. Industrial Gas Co., 135 Kan. 646, 11 P. 2d 1034. (Certiorari denied, 287 U. S. 658.)
Third. Is the provision in the ordinance respecting the payment of $50,000, and the same sum named in the bond sued upon, a penalty or liquidated damages? This is the principal point in this controversy. Much has been said by text writers and in the opinions of courts as to whether a sum named as damages for the breach of a contract is, or shall be, construed to be a penalty or liquidated damages. See 17 C. J. 934 et seq.; 8 R. C. L. 559 et seq.; Restatement of the Law of Contracts, §§ 326 to 346, and cases collected in American Digest under “Damages,” §§74 to 86.
A résumé of these authorities, so far as here pertinent, may be stated thus: When by its .judgment a court allows to one party to a contract a sum of money as damages for its breach by the other, the sum allowed should be compensatory in its nature; that is, it should restore in value to the injured party that which he has lost by the breach of the contract by the other party. Sometimes it is easy to measure in dollars and cents the damages caused by a designated breach of a particular contract; at other times it is more difficult, and experience has developed certain rules applicable to certain cases, or classes of cases, to be applied by courts and juries in determining the sum for which judgment should be rendered, and such rules, when properly applied, give a fairly accurate measure of the sum necessary to compensate the injured party. In certain other contracts damages obviously will result from the breach by the parties, and their respective situations and the subject matter of the contract and the purposes sought to be accomplished by it are such that it is extremely difficult,, if indeed it is possible, to formulate practical rules for measuring damages which will result from a breach of the contract. With respect to such contracts and their breach it is said in Restatement of the Law of Contracts, § 339 [1] comment c:
“Where the amount of loss or harm that has been caused by a breach is uncertain and difficult of estimation in money, experience has shown that the estimate of a court or jury is no. more likely to be exact compensation than is the advance estimate of the parties themselves. Further, the enforcement of such agreements saves the time of courts, juries, parties, and witnesses and reduces the expense of litigation. In such cases, if it is not shown that the principle of compensation has been disregarded, the liquidation by the parties is made effective.”
The contract before us is of this character. In City of Topeka v. Industrial Gas Co., supra, a case very similar to this, it was said:
“If there ever was a case where the bond should be for liquidated damages rather than for a penalty this is it.” (p. 653.)
So far the parties agree on the rules of law applicable to this case. But appellant points out that by the terms of the bond sued on the stipulated sum is payable for the breach of any one of several conditions which vary in degrees of importance. The general rule with respect to that is well stated in Restatement of the Law of Contracts, § 339 (1) comment b, as follows:
“Contracts are frequently made in which performances of very different degrees of importance and value are promised and one large sum of money is made payable as damages for any breach whatever. Since such a contract promises the same reparation for the breach of a trivial or comparatively unimportant stipulation as for the breach of the most important one or of the whole contract, it is obvious that the parties have not adhered to the rule of just compensation. In this matter neither the intention of the parties nor their expression of intention is the governing consideration. The payment promised'may be a penalty, though described expressly as liquidated damages, and vice versa.”
It will be observed that under this statement of the rule it is not every instance in which a stipulated sum is to.be paid for the breach of performance of conditions varying in degrees of importance that the sum will be regarded as a penalty. With respect to this rule, after stating it, it is said, in 8 R. C. L. 572:
“The rule above stated has, however, its exceptions and modifications, and it has been held not to apply where the contract has but one primary purpose regardless of its form, or where the contract does not discriminate between the several covenants in specifying the damages, and all of them are of an uncertain nature in respect to the amount of injury a breach will cause.” (Citing authorities.)
Others may be found in the notes in L. R. A. 1915E 394. In this case the ordinance must, of course, be construed with the bond, and it is clear from reading both of them that the primary purpose to be accomplished by the contract was to have the pipe line and distribution system completed within the year provided for their completion. Part work on one or both, or the completion of one and not the other, obviously would accomplish no beneficial result. Obviously the parties so understood it. Their intent was to treat all that was to be done as necessary to accomplish their purpose, and their intent is important to be taken into account. (See cases collected in 78 A. L. R. 846.)
Appellant argues that the stipulated amount, $50,000, is so unreasonably large as to require that it be construed as a penalty rather dhan as liquidated damages. With that contention we cannot agree. In matters of this kind the city acts not only for itself as a corporate entity, but, in a measure at least, for the benefit of its inhabitants. One of the benefits the city as a corporate entity would have received had this contract been carried out is the payment of $2,000 per year for twenty years, and it is easy to conceive that the benefits to the city and its inhabitants would be much greater than the stipulated sum. On this point compare Pacific Dock & Terminal Co. v. Los Angeles Dock & Ter. Co., 42 F. 2d 496.
We find no error in the record. The judgment of the court below is affirmed.
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