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The opinion of the court was delivered by
Wertz, J.:
This was an action for the recovery of damages for wrongful death. The plaintiffs (appellees), Maxine Voight and her four minor children, filed their demand for damages for the wrongful death of Darold Voight, husband and father, against the estate of Terry Storer, deceased, defendant (appellant). The cause was removed to district court for trial.
No issue is raised respecting the pleadings. Suffice it to say the plaintiffs charge deceased Terry Storer with certain specified acts of negligence in the operation of his automobile that were the proximate cause of the death of plaintiffs’ husband and father.
The administrator by way of answer denied the allegations of the petition and alleged plaintiffs’ husband and father was guilty of certain acts of contributory negligence that were the proximate cause of his death.
A jury was waived and the case was tried to the court. The court found generally in favor of the plaintiffs and rendered judgment allowing plaintiffs’ demand in the sum of $25,000 against the estate of Terry Storer, deceased.
From an order overruling defendant administrator’s motion for a new trial, he has appealed.
The defendant administrator states that the principal question presented is whether the judgment is supported by substantial competent evidence. This requires a brief review of the testimony.
At the outset it may be stated there were no eyewitnesses to the accident, and it is admitted there is little, if any, dispute as to the known facts in the case. On the morning of March 1, 1960, about 8:15 a. m., Terry Storer and his sister Ann were on their way to school. Terry was driving a 1950 Chevrolet automobile on U. S. Highway 24, proceeding in an easterly direction. Darold Voight was driving a 1956 Ford pickup truck in a westerly direction on the north side of the mentioned highway. The driving portion of the highway in question was twenty-four feet wide, with an additional shoulder and a ditch on either side. The weather was cold, snow was falling, a light wind was blowing from the southeast, visibility was reduced to about one-half mile, and the highway surface was slick and covered with snow.
Highway trooper May testified in substance he investigated the collision about 8:25 a. m.; that upon his arrival at the scene he found Voight, the driver of the pickup truck, and Terry Storer, driver of the automobile, were dead and Ann Storer was critically injured; that the Ford pickup was facing in a southeasterly direction with the front end approximately four feet from the edge of the north side of the road and the back of the truck in the ditch; that the automobile driven by Storer was facing in a northerly direction with the right front wheel across the center line and the left front wheel on the center line; that'the collision occurred on the north half of the roadway, which he determined to be the point of collision by an actual view of the vehicles in the positions where they came to rest following the collision, by considering the damaged portions of the two vehicles and the amount of the overlap of the front ends of the two vehicles at the time of the collision, and by taking into consideration the debris, broken glass, oil and anti-freeze, and gouge marks in the pavement; that in his opinion no part of the truck was across the center line of the highway nor to the south of the center line at the time of the impact; and that no part of the Voight truck was ever on the south side of the highway.
The witness Barrett, an insurance adjuster who has spent seventeen years investigating accidents, testified that from his investigation he was of the opinion the collision ocurred on the north half of the road; that the gouge marks in the highway indicated the impact of the two vehicles occurred on the north side of the highway; and that the gouge marks were made by the vehicles at the time of the collision.
Witness Wooley testified he was a Ford dealer and was called to the scene of the collision with his wrecker, which he had operated for a number of years; that the Voight truck was partially off of the slab on the north side of the highway, just the front wheels on the slab; that the Storer automobile was further south and a bit east; that the gouge marks he observed were not made by him in removing the vehicles and nothing he did in removing the vehicles would account for the gouge marks.
Witness Paulson testified he came upon the scene of the collision and observed both vehicles prior to the time they were moved; that the hack of the Voight pickup truck was off in the ditch and the front wheels were barely on the blacktop; that the Storer automobile was sitting facing north across the road and that part of that automobile was north of the center line of the highway.
No useful purpose would be gained in further detailing the evidence of the many witnesses who testified in this case. Suffice it to say there was ample evidence to show that Terry Storer at the time of the accident was driving with a portion of his automobile on the north side of the highway and that the point of impact occurred on the north side of the highway in the lane in which Voight was driving. Viewing the mentioned evidence with other evidence and circumstances contained in the record in the light most favorable to plaintiffs as prevailing parties, we are of the opinion it was sufficient to sustain the trial court’s judgment.
This court has consistently held that the physical facts and circumstances of a motor vehicle collision may be sufficiently clear to enable the trier or triers of fact to form a judgment of how the collision occurred and who was at fault, although there were no eyewitnesses to the collision. (Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770; Briggs v. Burk, 174 Kan. 440, 257 P. 2d 164.) In proving negligence by circumstantial evidence, the law requires that the facts and circumstances proved, together with all inferences that may be reasonably drawn therefrom, indicate with reasonable certainty the negligent act complained of, and the plaintiff is not required to eliminate, by proof, all possibility that the accident may have happened otherwise in order to present a question for the jury, or the trial court in the absence of a trial by jury. Where the circumstances proved show with reasonable certainty that the impact of two vehicles involved in an accident occurred while defendant was driving left of the center of the highway, the evidence is sufficient to go to the jury, or to the court in the absence of a jury, on the question of defendant’s negligence. (Briggs v. Burk, supra, p. 452; Mc-Alexander v. Estate of Lewis, 167 Neb. 524, 93 N. W. 2d 632, 77 A. L. R. 2d 575. See, also, Annotation, p. 580, et seq.) The record is devoid of any evidence of contributory negligence on the part of Voight.
This court is committed to the rule that driving a motor vehicle on the left-hand or wrong side of the highway in violation of G. S. 1961 Supp., 8-537, except under the circumstances provided in G. S. 1949, 8-538 and 8-540, proximately resulting in a collision with an oncoming motor vehicle on its right-hand side of the highway, is actionable negligence. (Beecher v. Stepanian, 170 Kan. 201, 224 P. 2d 1017; Banbery v. Lewis, 173 Kan. 59, 65, 66, 244 P. 2d 202.)
Defendant administrator also contends the court erred in the admission of the testimony of Mr. Barrett who was interrogated with reference to the gouge marks in the pavement at the point of the collision. The witness was asked if he had an opinion as to whether or not the gouge marks in the pavement were caused by the accident, to which he answered that in his opinion the gouge marks were caused by the cars colliding. This witness had been qualified by some seventeen years of experience in investigating accidents and collisions. In Riley v. Holcomb, 187 Kan. 711, 716, 717, 359 P. 2d 849, this court held: “. . . where a proper foundation is laid, a witness qualified as an expert may give his opinion based upon the length of skid marks, location of wrecked vehicles, damage to vehicles and independent tests, as to the speed of an automobile involved in an accident, the weight to be given such evidence, of course, being a matter for the jury to determine (Cherry v. State Automobile Insurance Association, 181 Kan. 205, 310 P. 2d 907; Foreman v. Heinz, 185 Kan. 715, 347 P. 2d 451; Johnson, Administrator v. Huskey, 186 Kan. 282, 350 P. 2d 14).” A review of the witness’ testimony does not disclose that the trial court erred in its admission.
The physical facts and circumstances in the instant case were sufficient for the trial court to have found that the impact of the two automobiles occurred on the north side of the center line of the highway; that Terry Storer negligently operated his automobile on the north side of the center line of the highway while proceeding in an easterly direction, and on that portion of the highway on which Voight was rightfully proceeding west; and that Storer’s negligence in operating his automobile under such circumstances was the proximate cause of Voight’s death. We necessarily conclude that the evidence was sufficient to sustain the trial court’s judgment, and the case is affirmed on authority of Sawhill v. Casualty Reciprocal Exchange, supra, and Briggs v. Burk, supra. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment for wrongful death. The main question involved is whether the deceased was traveling as a guest or a paying passenger when the automobile accident occurred which caused the death.
In view of the limited issues, we need note only a single paragraph from the petition and answer. The petition alleged that the defendant, Jack Radford, was being paid by the defendant, Beech Aircraft Corporation, to make the trip in question in his automobile. The petition alleged further:
“That the plaintiff has been informed and believes and therefore alleges that the defendant, Jack Radford, in the course of his employment at the defendant, Beech Aircraft Corporation, was directed by the said defendant, Beech Aircraft Corporation, to use his privately owned automobile and transport the deceased, Kenneth O. Cope, Robert P. Beard, Captain Jack W. Setliff and himself, Jack Radford, to the defendant, Beech Aircraft Corporation, branch plant at Liberal, Kansas, where the said deceased, Kenneth O. Cope, and Robert P. Beard and Capitain Jack W. Setliff and the defendant, Jack Rad-ford, were to engage in the inspection of Ar Force Machinery and equipment located in the defendant, Beech Aircraft Corporation s facility; that said inspection was a routine semi-annual inspection; that said inspection was a part of the duties of all parties concerned and more particularly of the deceased, Kenneth O. Cope, and the defendants, Jack Radford and the Beech Aircraft Corporation.”
The answer:
“Specifically denies that this defendant was directed by Beech Aircraft Corporation to transport the said Cope or any of the others named or that there was any agreement or understanding between this Defendant and Beech Aircraft Corporation by which this Defendant was to be paid and compensated for transporting the said Cope or that he was transporting Cope within file course of his employment or under any order or direction of Beech Arcraft Corporation, . . .”
The facts will be detailed.
The defendant, Beech Aircraft Corporation, during the year of 1959, was engaged in a manufacturing program which included government contracts as well as commercial production of their own airplanes. Its facilities included Plants 1, 2, and 3, as well as its home offices at Wichita, Kansas. There was, also, a plant at Liberal, Kansas.
On production other than commercial airplanes, when bids are solicited, Beech figures the overhead as well as the cost of material, cost of labor, cost of production, and all other costs. A reasonable profit is included and the bid is submitted based on those calculations.
In order to assure the accuracy of the estimated overhead, the costs which were incurred on completed contracts of the past are used as a basis for the estimated overhead in submitting bids on new contracts. The overhead costs are furnished to the government on each contract for comparative purposes.
The accuracy of these estimates is important inasmuch as once the bid is accepted and reduced to a contract between Beech and its customer the compensation to be paid Beech becomes fixed and final. Any increase in overhead during actual production under an executed contract is not recovered by Beech. However, such increased costs are taken into account in determining the overhead for submitting bids on future contracts.
During December of 1959, Beech was engaged in production for the government having successfully submitted a bid which was accepted by the Air Force under the auspices of the Defense Department. In addition to the use of its own equipment, Beech leased industrial equipment from the government and paid rent for such use. Therefore, in addition to being a customer, the government also held the status of a lessor and Beech that of a lessee. Unlike any other customer or lessor, the government maintained, at its own expense, a plant representative’s office which was situated at the home office of Beech. The office was staffed with Air Force personnel and several United States Civil Service employees. The government provided funds to maintain the office on a budget. Part of these funds were available for the reimbursement of its personnel for their travel expenditures.
Robert Beard, a civil service employee, had the responsibility to keep under surveillance on behalf of the government the use, by Beech, of the government owned industrial equipment so as to assure that it was being properly used and maintained. In order to maintain the surveillance, Beard made two inspections per year at the Liberal facility. On these semi-annual inspections, Beard was accompanied by a Beech representative. It was a matter of mutual convenience to both the government and to Beech to have both sides represented during the inspections.
In order to carry out his duties, it was necessary for Radford to spend time at all Beech facilities. Inasmuch as it was not a practice for Beech to supply his transportation, Beech reimbursed Rad-ford 711 cents per mile for the use of his own automobile. As part of his duties, defendant Radford was the Beech representative who accompanied Beard on the government’s semi-annual inspection of government industrial equipment at the Liberal facility.
Prior to the 10th day of December, 1959, Beard contacted Rad-ford and made arrangements with him to make the government inspection on the government industrial equipment at Liberal. After clearing with their supervisors, Beard and Radford made plans to travel to Liberal, Kansas, on the 14th day of December, 1959. Only Beard and Radford were going and the sole purpose of their trip was to make the government inspection on the government industrial equipment.
Subsequent to the events stated, two other government men, Kenneth O. Cope, the deceased, and Captain Jack Setliff advised Beard that, with Radford’s consent, they would like to ride along to Liberal, Kansas. Beard thereafter made inquiry of Radford who readily assented to Cope and Setliff riding along.
On the morning of the 14th day of December, 1959, the trip from Wichita to Liberal, Kansas, was commenced with all four men riding in Radford’s automobile. The occupants had varied reasons for making the trip. Radford, the Beech employee, was to accompany Beard, the government inspector, on the government inspection of government industrial equipment at the Liberal facility. With regard to the government inspection, Beard and Radford operated as a team, each representing his employer’s interest.
Insofar as Cope and Setliff were concerned, the purpose of their trip was completely unrelated to the inspection by Beard and Radford. There was nothing mandatory about Cope and Setliff making the trip to Liberal, Kansas. They would not have made the trip had there not been a ride readily available to them. Their presence was not required, they did not intend to, nor did they, participate in any activity concerning the inspection by Beard and Radford.
Upon arriving at the Liberal facility, and after having agreed to be ready to return to Wichita, Kansas, on the 16th day of December, 1959, the parties went their respective ways. Beard and Radford carried on the government inspection and Cope and Setliff met with management on unrelated matters. The inspection was com pleted on the evening of the 15th day of December, 1959. At no time during the inspection was Cope present, nor did he participate or carry on any conversations with Radford concerning the inspection.
On the 16th day of December, 1959, the parties all started back to Wichita, Kansas, in Radford’s automobile. At the time the parties left Liberal, Kansas, Radford was driving in a range of 65 to 70 miles per hour. After leaving Meade, he drove in the area of 60 miles per hour until a light drizzle started. He then reduced his speed to a range of 50 and 55 miles per hour. At approximately 3:00 o’clock p. m. on Highway 160, they approached a curve about two and one half miles west of Attica, Kansas. When coming in from the west, it looked like a normal banked curve. However, it was real sharp and could be described as an approximate 80-degree flat and unbanked curve. The width of the road at that point measured 29 feet. There are two 20-mile-per-hour speed and curve signs on the approach from the west. One sign is located 780 feet west of where the curve begins, and the second sign is approximately 285 feet east of the first sign.
As Radford approached the curve, he was traveling somewhere in the range of 50 to 55 miles per hour. He removed his foot from the accelerator of the automobile and started into the curve. Neither he nor Cope, who was riding in the front seat with him, had noticed the two 20-mile-per-hour curve signs which were situated to the west. Radford suddenly realized the nature of the curve and touched his brakes lightly. The car started to skid and Radford removed his foot from the brakes and attempted to negotiate the turn. However, he skidded approximately the width of his automobile to the right and sideswiped two wooden posts and one metal sign. He came to a stop against the Santa Fe Railroad tracks. Cope died as a result of the accident. None of the passengers, at any time, objected to Radford’s driving.
At the close of plaintiff’s evidence, the defendants demurred thereto. The demurrer was overruled. A motion for a directed verdict, at the close of all the evidence, was also overruled. The case was submitted to the jury under the instructions as an ordinary negligence action. There was no reference as to the responsibilities and liabilities of the parties, or the nature of proof required under the guest statute.
The jury answered special questions and returned a general verdict in favor of plaintiff for $16,513.10. The district court approved the verdict and defendants have appealed.
The appellants first contend that the trial court erred in failing to sustain a demurrer to appellee’s evidence, and in failing to direct a verdict for defendant at the close of all of the evidence. We are forced to agree with appellant’s contention.
It should be noted at the outset that this was an action to recover damages for the death of a passenger in an automobile against the driver and his employer. There was no allegation that the driver was guilty of gross and wanton negligence. Therefore, the plaintiff, in order to recover, had the burden of establishing that the deceased was a passenger for hire.
' The Kansas Guest Statute, G. S. 1949, 8-122b, states:
“That no person who is transported by the owner or operator of a motor vehicle, as' his guest, without payment for such transportation, shall have a cause of action for damage against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.
In the case of In re Estate of Wright, 170 Kan. 600, 228 P. 2d 911, the court, on page 604 of its opinion, stated:
“We think the statute is clear that in order for one to recover for injury or for his representative to recover for a wrongful death occasioned while being transported in the motor vehicle of another, claimant must, to avoid the limitations of our guest statute, affirmatively show that he was not a guest, that he was being transported for payment’ as that term is defined by our decisions hereinafter discussed, or that injury or death was caused by gross and wanton negligence of the operator of the vehicle. . . .”
The Court of Appeals, in Broadwater v. Coleman, (C. C. A. 10th) 224 F. 2d 186, stated:
“. . . The Kansas courts have consistently held that every passenger riding in an automobile is presumed to be a guest until it is affirmatively shown that the motivating cause of the transportation was compensation. In re Wright’s Estate, 170 Kan. 600, 228 P. 2d 911; Leonard v. Maryland Casualty Company, 158 Kan. 263, 146 P. 2d 378; Pilcher v. Enry, 155 Kan. 257, 124 P. 2d 461, 462. . . . (p. 188.)
Although the determination of whether the status of a passenger is that of a guest or a paying passenger, within the meaning of the statute, depends largely on the facts and circumstances in each particular case, this court has established many of the elements to be considered.
“In determining the question whether a person is or is not a ‘guest’ within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of ‘payment’; the benefits or advantages resulting to the respective parties growning out of the transportation; whether the ‘payment,’ of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip.
“The word ‘payment,’ as used in the statute, is a variable term and is not restricted in meaning to a discharge in money of a sum due, or the performance of a pecuniary obligation. But, in order to preclude classification as a ‘guest,’ the ‘payment,’ of whatever nature, must constitute a benefit or advantage to the owner or operator which is a substantial consideration, motivating, and not merely incidental in character.” (Bedenbender v. Walls, 177 Kan. 531, 280 P. 2d 630, syl. 4 & 5.)
It should also be stated that if the transportation tends to promote the mutual interest of both the passenger and the driver or is primarily for the promotion of the interest of the driver, the passenger is not a guest within the meaning of the statute. (Sparks v. Getz, 170 Kan. 287), 225 P. 2d 106; Thomas v. Hughes, 177 Kan. 347, 279 P. 2d 286, and Lloyd v. Runge, 186 Kan. 54, 348 P. 2d 594.)
It is clear from the record that neither Radford nor Beech received any monetary consideration from either the government or the passengers for their transportation. Beech paid Radford 7h cents a mile for the trip. Beech was to receive nothing over and above its contract price for the completed manufacturing job. It received no additional compensation because the trip was made.
Neither were Cope and Setliff being transported to promote any special interest of the driver or his employer. Beard, as the representative of the government, and Radford, as the representative of his employer, were making the trip for the common purpose of inspecting the government leased equipment. Insofar as Cope, the deceased, and Setliff were concerned, the purpose of their trip was completely unrelated to the inspection to be made by Beard and Radford. There was nothing mandatory that Cope and Setliff make the trip to Liberal. They would not have made the trip had there not been a ride readily available for them. Their presence was not required, they did not intend to, nor did they, participate in any activity concerning the inspection made by Beard and Radford.
The petition does not allege, and there is no evidence to support a claim of, gross and wanton negligence against the driver of the motor vehicle. There being no evidence of payment for the transporation of Cope, it must be concluded that he was traveling as a guest of Radford. The case should not have been submitted to the jury.
The judgment is reversed with instructions to the district court to enter judgment for the defendants.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, J.:
This is an action for the recovery of damages sustained by plaintiff when he drove his automobile into the side of a train which was standing on a highway crossing.
Defendant railroad company filed a demurrer to the amended petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant.
The demurrer was overruled and defendant has appealed.
Material portions of the amended petition read:
“II
“That on or about the 14th day of September, 1958, plaintiff was the owner of one 1958 Buick automobile which he was operating in an easterly direction on Highway K-42 approximately three-fourths of a mile west of the city limits of Norwich, Kansas, in Kingman County, Kansas, when same was involved in a collision with a box car of the defendant corporation which was parked across said Highway on its tracks at the above location. That the time of this occurrence was approximately 8:30 P. M. on September 14, 1958. That the box car of the defendant did not have any lights on and that it was an extremely dark night, and therefore said box car was not visible.
“III.
“That plaintiff’s automobile was in good working conditions prior to said collection (sic) with defendant’s train; that plaintiff’s automobile was damaged to the extent of $1,150.89, same being the cost of repairs, all being due to the negligence of the defendant as hereinafter alleged.
“IV.
“That at the time defendant’s train was stopped across the Highway herein mentioned, said defendant did not have any warning signals of any kind at or near its train to warn the public or this plaintiff that it was stopped across the highway; neither did defendant have any watchman or signal man of any kind or nature to warn this plaintiff of the existing danger.
“V.
“That the defendant was guilty of the following acts of negligence any and each of which was and were the proximate cause of the accident and resulting damages to plaintiff, to-wit:
(a) Failing to warn the public or this plaintiff of the existence of its train across the highway;
(b) Failing to have lights on said train;
(c) Failing to have a watchman or signal man on the west side of the box car to warn plaintiff to stop.”
In support of the trial court’s ruling plaintiff contends that if evidence were offered in support of the allegations of his amended petititon twelve reasonable minds could reach different conclusions therefrom, and that a jury would be justified in finding defendant guilty of negligence. It also is argued that for all practical purposes the highway was closed to traffic by the acts of defendant, and that in blocking the highway defendant might just as well have blocked it “with a house or any other instrumentality.”
In support of its demurrer defendant contends that it should have been sustained because the amended petition shows on its face that defendant was not negligent and did not violate any duty owing to plaintiff, and that plaintiff was guilty of contributory negligence which was the proximate cause of the collision and resulting damage to his automobile.
We think this case calls for no extended discussion of the well-established rules relating to situations such as are disclosed by the allegations of the amended petition. Similar questions have been before the court many times and it is clear that under the facts alleged in this case plaintiffs allegations not only fail to allege actionable negligence on the part of defendant but also show plaintiff to have been guilty of contributory negligence, barring his recovery. An almost identical situation was present in Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593, and reference is made to what was there said and held on the question. See also Sheets v. Baldwin, 146 Kan. 596,73 P. 2d 37; Bledsoe v. M.-K.-T. Rid. Co., 149 Kan. 741, 90 P. 2d 9; Shepard v. Thompson, 153 Kan. 68, 109 P. 2d 126; Corkill v. Thompson, 169 Kan. 38, 217 P. 2d 273, and Harmon v. Atchison, Topeka & S. F. Rly. Co., 171 Kan. 403, 233 P. 2d 489.
Without further discussion it is held that defendant’s demurrer to the amended petition should have been sustained, and the judgment is therefore reversed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This action, commenced on January 25, 1962, was instituted under the provisions of G. S. 1961 Supp., 44-512a (effective June 30, 1961), in an effort to obtain a lump sum judgment for alleged unpaid payments of a partially paid award in a workmen’s compensation case. The plaintiff, John W. Damon (hereinafter referred to as appellant), appeals from an order and judgment of the district court sustaining a demurrer to his petition and his amended petition, based on the ground such pleadings failed to state facts sufficient to constitute a cause of action against the defendant, Smith County (hereinafter referred to as appellee).
The facts required for a proper understanding and decision of the appellate issue presented, as we glean them from an unsatisfactory record of the petition and amended petition, will be highly summarized in accord with our view of their import.
On May 9, 1958, appellant, while employed by appellee, was injured. A subsequent workmen’s compensation proceeding followed in which the Commissioner (now Director), on October 31, 1958, granted appellant an award for not to exceed 415 weeks of temporary total disability at $34 per week, subject to review and modification. Appellee complied with the award and made payments to appellant until May 5, 1959, on which date he went back to work for appellee and continued in its employ until June 15,1960, when he ceased working. During the period of time last mentioned appellant received the same wages he had received before his injury. However, during such period appellee discontinued weekly compensation payments.
On May 11, 1961, appellant served appellee with a written demand for all unpaid and past due compensation, including the unpaid compensation which accrued over the thirteen months he was back to work. So far as here pertinent the demand served on that date read:
“The undersigned does hereby respectfully make demand for all due compensation, and demand is also made for payment of all future installments when due.” (Emphasis supplied.)
Appellee complied with the foregoing demand and within fourteen days from the date thereof, as authorized and permitted by the then existing provisions of G. S. 1949, 44-512a, paid all past due payments of compensation in a lump sum, amounting to $3,740. This payment brought the award payments to current status and forward to June 12, 1961.
A weekly payment of $34 was due and payable on June 19, 1961. It was paid but not within time.
Sometime later in 1961 application for modification of the award was made and, on December 29, 1961, pursuant to the hearing for such modification, a Workmen’s Compensation Examiner made a finding that appellant then suffered only sixty per cent permanent general disability and ordered payments under the award to be made at a weekly rate of $21.38 instead of $34. Thereupon appellee began paying appellant $21.38 weekly. Later, and on January 26, 1962, the Compensation Director refused to sustain the Examiner’s findings and entered an order directing payments to be made at $34 per week and also ordered payments, which had theretofore been made at $21.38, brought up to the full weekly payment of $34. Appellee complied with the Director’s order and brought up the payments to $34 per week. Since that date it has continued making payments on the award at such weekly rate.
Supplementing the foregoing factual statement it should be said that, at the time of the trial court’s ruling on the demurrer, the allegations of appellant’s petition and the amendments thereto (1) charged appellee with default in payment of compensation payments which became due on June 19, 1961, January 8, 1962, January 15, 1962, and January 22, 1962; (2) disclosed that appellant was basing his right to maintain the action for a lump sum judgment on the heretofore quoted written demand for past due payments of the award which he had served on appellee on May 11, 1961, notwithstanding the fact that appellee had complied with the terms of such demand to the extent of paying all compensation payments past due under the terms of the award within the period of time allowed by the then existing statute (G. S. 1949, 44-512a); (3) admitted the date of such demand precedes the dates of the default payments relied on as affording grounds for a lump sum judgment under the provisions of Laws of 1961, Chapter 243, Section 2, now G. S. 1961 Supp., 44-512a; and (4) conceded that such demand was the only written demand ever made and served upon appellee for compensation claimed to be due and unpaid under the terms of the existing compensation award.
That the all-decisive issue involved in this appeal requires a construction of the provisions of G. S. 1961 Supp., 44-512a, authorizing a lump sum judgment for the entire amount of a compensation award under conditions and circumstances therein prescribed, appears from appellant’s brief which reads:
“Statement of the Question Involved:
“Where the workman gives his employer written demand under the provisions of 44-512a for the payment of all due compensation, and demand is also made in the same demand letter for payment of all future installments when due, has the notice provision of the statute been complied with so that on later failure of the employer to pay any weekly installments on or before the date due, the employee may file and secure judgment for the entire amount of the compensation awarded?”
The pertinent provisions of G. S. 1961 Supp., 44-512a, so far as they relate to the foregoing decisive question, as stated by appellant, read:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen’s compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same . . ., payment of said demand is thereafter either refused or not made within twenty (20) days [two weeks under the provisions of G. S. 1949, 44-512a] from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. . . .”
(Emphasis supplied.)
At the outset it should be stated it cannot be denied that when appellee complied with the provisions of 44-512a by making the payment which brought past due payments of the award to current status, and forward to June 12, 1961, appellant no longer had the right to maintain a lump sum action under the provisions of such section of the statute for collection of the entire award on the basis of nonpayment of past due installments. Moreover, it is clear that at that time the written demand, so far as it was based on unpaid past due installments under the terms of the award, had lost its force and effect for the obvious reason there were no longer any installments due or past due under the terms of the award. Nonetheless impliedly, if not expressly, conceding the correctness of what has just been stated, appellant contends that even though his written demand of May 11, 1961, preceded the dates of the alleged due and unpaid installments of. the award on which he now seeks to invoke the provisions of 44-512a, he can now rely on such written demand as one of the prerequisites required to maintain the instant action because he originally included therein the phrase “and demand is also made for payment of all future installments when due.”
Boiled down, without citing any authorities which sustain his position, the essence of all contentions advanced by appellant is that the written demand required to invoke the provisions of 44-512a, need not be based entirely on presently existing due and unpaid installments of the award at the time it is served on an employer. In other words his position is that, as directly applied to the facts of this case, he could maintain the instant action under 44-512a, without serving the appellee with a second written demand.
Based on inferences to be drawn from what is said and held in our decisions, which deal with the force and effect to be given the provisions of 44-512a, we are inclined to the view that appellant’s position on the point now under consideration lacks merit and cannot be upheld.
See Owen v. Ready Made Buidings, Inc., 180 Kan. 286, 303 P. 2d 168, where it is held:
"Under G. S. 1949, 44-512a, a failure to pay within two weeks after written demand, any part of the compensation awarded when due, or any installment thereof including medical expenses, makes the entire amount of compensation awarded immediately due and payable, and authorizes the workman to maintain an action for the recovery of the entire amount of compensation award.” (Syl. 1T 3.)
And in the opinion said:
"It is apparent that the purpose of the mentioned statute was to secure prompt payment to the workman or to his benefit, as provided in the award. Ellis v. Kroger Grocery Co., supra, was a similar case, and the mentioned statute and its effectiveness was thoroughly analyzed. We held that section 44-512a did not disturb the employer’s vested right to pay the installments according to the terms of the previous judgment if the employer complied therewith. It provided only for the maturity of all future installments in the event the employer failed to pay the installments already due within two weeks after statutory demand was made for their payment. . . .” (pp. 289, 290.) (Emphasis supplied.)
See, also, Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432, which holds:
“Under G. S. 1949, 44-512a, a failure to pay within two weeks after written demand any part of the compensation awarded or any installment thereof when due makes the entire amount of compensation immediately due and payable, and the workman or any party entitled thereto may maintain an action for the recovery of the entire amount. . . (Syl. ¶7.)
And states:
“As stated, the plaintiff, on July 27, 1959, served her written demand for payment of the amount due under the award of the commissioner. Defendants, on July 30, acknowledged receipt of the demand and refused payment. The two weeks after service of plaintiff’s demand as provided by statute expired August 10, 1959, at which time the entire amount of the award became due and payable and constituted a debt against defendants. Plaintiff was therefore entitled to maintain an action to recover the amount due as for the collection of a debt, . . .” (p. 577.) (Emphasis supplied.)
And see Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373, where it is said:
“A careful search of the entire record shows that Miller, to whom compensation was due from Massman, partly in accumulated unpaid installments and partly in installments to come due in the future, made proper demand for the accumulated unpaid compensation as provided by G.. S. 1949 44-512a, and that Massman failed within the requisite period of two weeks from service of the demand to make payment, thereby subjecting itself to the provision of the statute making the entire award immediately due. The statute may be rigorous, but it is possible to comply with its terms. Massman did not do so. • • •” (pp. 721,722.) (Emphasis supplied.)
Nothing would be gained by prolonging this opinion. It suffices to say that, after careful consideration of the provisions of 44-512a, we are convinced its language compels the conclusion that, under the confronting facts, conditions, and circumstances of record, as herein fully related, appellant was required to serve a second written demand on appellee for the alleged default in payment of compensation payments falling due on the dates set forth in the petition before he could maintain the instant action for a lump sum judgment; that service of such written demand was a. condition precedent to the right to maintain such action; that the petition shows on its fact that no such demand was served and for that reason failed to state a cause of action for the relief sought; and that to hold otherwise would do away with and make meaningless the provisions of 44-512a, as heretofore quoted — particularly the provisions therein underlined for purposes of emphasis.
What has been heretofore stated and held compels a conclusion the trial court’s action in sustaining the appellee’s demurrer to the petition and the amended petition was proper and must be upheld.
Since the foregoing disposes of this lawsuit other matters presented in the briefs, although carefully considered, require no comment.
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Green, J.:
Jeremy Davis appeals his jury trial conviction for aggravated robbery in violation of K.S.A. 21-3427. First, Davis argues that the trial court erred in overruling his objection under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), to the State’s use of peremptory challenges to strike the only two African-American members of the jury panel. Because the trial court never conducted a full analysis under step three of Batson and thus never reached the ultimate determination of whether Davis had shown purposeful discrimination by the State, we reverse on this issue and remand the case to the trial court for a proper Batson hearing. In the event the trial court determines that the reason given for striking either of the two minority jurors was pretextual, the trial court shall grant Davis a new trial. Davis also argues that the trial court erred in authorizing prosecution as an adult. Nevertheless, substantial evidence exists in the record to support the trial court’s decision to authorize prosecution of Davis as an adult. Therefore, Davis’ argument fails. Accordingly, we affirm in part, reverse in part, and remand for a proper Batson hearing.
Davis’ conviction in this case stems from a robbery that occurred at a CB Express Store in Wichita in November 2003. During the robbery, a male wearing pantyhose over his head held a knife to the throat of Carl Blackmon, a clerk at the CB Express Store, and demanded money. Before the person could take any money, however, he bumped his head and stumbled out of the store. Although the male did not take any money, he took beer and cigarettes from the store. Blackmon called 911.
As Officer Brian Hightower was responding to the 911 call, he saw a car speeding away from the shopping center where the CB Express Store was located. Hightower followed the car. The car eventually stopped in the driveway of a residence, and a male got out of the front seat of the car and ran into the house. Hightower ran after the male and encountered Davis’ mom at the front door. Initially, Davis’ mom said that she had not seen anyone run into her house. Nevertheless, Davis’ mom eventually told Hightower that Davis ran into the house. Officers later found Davis in his boxer shorts crouching behind a shed. Officers recovered cartons of cigarettes and a case of beer from the car. In addition, a knife was found on top of the dashboard on the front passenger’s side of the car. Davis was 17 years old at the time.
Davis was charged with aggravated robbery in violation of K. S .A. 21-3427. The State moved for authorization to prosecute Davis as an adult. At the conclusion of an evidentiary hearing held on the State’s motion, the trial court authorized the prosecution of Davis as an adult. The trial court later issued a journal entry setting forth in detail its findings for its decision to prosecute Davis as an adult.
Davis’ case proceeded to a jury trial. After voir dire proceedings, Davis objected under Batson, 476 U.S. 79, to the State’s use of its peremptory challenges to eliminate the two African-Americans from the 28-member jury panel. Nevertheless, the trial court found that the State’s reasons for eliminating the two African-American panel members were race neutral and overruled Davis’ objection.
At trial, Davis testified that he and Blackmon had staged the robbery. According to Davis, he and Blackmon agreed that Davis would come into the store with a knife and grab cigarettes and beer. Davis’ defense was that there had been no taking by threat of bodily harm, a necessary element of aggravated robbery. Nevertheless, the jury convicted Davis of aggravated robbery. The trial court imposed a downward dispositional departure sentence and placed Davis on probation for 36 months, with an underlying prison term of 55 months.
I. Batson Challenge
First, Davis argues that the trial court erred in overruling his objection under Batson to the State’s use of peremptory challenges to strike the only two African-American members of the jury panel.
Our Supreme Court in State v. Pham, 281 Kan. 1227, Syl. ¶ 3, 136 P.3d 919 (2006), set forth the three-step process under Batson for analyzing a defendant’s argument that the State has used peremptory challenges to eliminate potential jurors on the basis of race:
“The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth- a facially valid reason for exercising a peremptory strike. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.”
Moreover, our Supreme Court in Pham set forth the standards applicable to each step of the process:
“The standard of review of the first step- — the prima facie showing on die basis of race- — is a question of legal sufficiency subject to plenary review. State v. Bolton, 274 Kan. 1, 9, 49 P.3d 468 (2002).
“Regarding the second step — die prosecutor’s burden to show a race-neutral explanation for striking the jurors in question — it does not demand a prosecutor’s explanation that is persuasive, or even plausible, but merely facially valid. See State v. Vargas, 260 Kan. 791, Syl. ¶ 3, 926 P.2d 223 (1996). Further, unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. State v. Vargas, 260 Kan. 791, Syl. ¶ 3.
“Finally, the standard of review of the third step — the trial court’s decision on the ultimate question of whether the defendant has carried the burden of proving purposeful discrimination — is gready deferential because the determination is fac tual. State v. Walston, 256 Kan. 372, 379, 886 P.2d 349 (1994).” Pham, 281 Kan. at 1237.
After voir dire, defense counsel objected to the State’s use of its peremptory challenges to eliminate prospective jurors V.S. and E.C., the only African-American members of the 28-member jury panel. In responding to defense counsel’s objection, the prosecutor first asserted that Davis had to show that he was African-American, which was not clear in the case. Nevertheless, the trial court noted that the complaint and information listed Davis as an African-American male.
The prosecutor then set forth his reasons for ehminating the two African-American jury panel members. Concerning E.C., the prosecutor stated:
“Your Honor, I was prepared to keep [E.C.] up until [defense counsel] questioned him this morning and [E.C.] — and I don’t recall the specific question asked by [defense counsel], but [E.C.] replied that — I think it was on die burden of proof. And he said certainly given the — what’s at stake in this case.
“And I have talked to the jury about the fact that they shouldn’t consider the penalty and that that doesn’t help us determine whether or not he committed this crime; yet [E.C.] expressed a correlation between the burden of proof and what is at stake, which leadfs] me to believe that he does think about the penalty in terms of the burden of proof. And that’s why I struck him.”
During voir dire proceedings, defense counsel had questioned E.C. about whether he thought the State’s burden of proof was unfair. He responded: “No, not for what’s at stake here. Defense counsel questioned him further: “I believe you said not for what’s at stake here?” He responded, “I mean, you know, a person’s freedom.”
The prosecutor set forth his reasons for ehminating V.S. as follows:
“[V.S.], Your Honor, struck me as someone who was overly intelligent, overly — ■ his answers were, I thought, highly educated, he — I did not want someone who would overanalyze this case. And [V.S.], by his answers to me, struck me as someone who would in fact overanalyze the case and perhaps be a difficult witness— I mean, I’m sony, a difficult juror on fine details and I did not want that.”
After the prosecutor gave his reasons for eliminating the prospective jurors, the trial court asked defense counsel if she had any response. Before defense counsel could answer, however, the pros ecutor stated, “Your Honor, I would object to [defense counsel] giving any response. The law says all I have to do is give a race-neutral reason.” The trial court then stated:
“That’s true. Then I will go ahead and make a decision. And the decision is that as to [E.C.], I heard that and I have no problem with that. As to [V.S.], I am not sure that I’m in agreement with that, because of the fact he’s been a juror before and as I recall that he was able to come to a conclusion. I don’t recall whether that was a civil case or a criminal case, however.” (Emphasis added.)
The prosecutor then informed the trial court that it needed to find whether he had given a race-neutral reason and that the trial court could not second guess his judgment: “Your Honor, I would just ask the Court whether my reason was race neutral or not. And I believe the status of the law is if I give a race neutral reason and the Court finds it is race neutral, the Court itself cannot even second guess my judgment.” After finding that the prosecutor had given race-neutral reasons for ehminating the potential jurors, the trial court warned defense counsel, in the future, to immediately make a Batson objection upon the prosecutor s striking of a venireperson.
A. Standing
Davis first contends that in the above discussion, the prosecutor misstated the law when he told the trial court that Davis had to be African-American in order to challenge the striking of African-American prospective jurors.
Our Supreme Court in Pham made clear that a defendant has standing to raise a Batson challenge based upon the striking of members of a cognizable minority group even when the defendant is not a member of such group. 281 Kan. at 1237. Our Supreme Court cited State v. Edwards, 264 Kan. 177, 193, 955 P.2d 1276 (1998), where it had previously held that a defendant need not establish that he or she is a member of a cognizable minority group because the focus is on the individual rights of the jury members not to be excluded based on race or gender. 281 Kan. at 1237-38.
Similar to the reasoning in Edwards, the Missouri Court of Appeals has recognized that an African-American citizen has a right to serve on a jury and that this right can only be impaired for cause or legitimate and rational reason through a peremptory strike:
“Every citizen has a right as well as obligation to participate in our democratic process. Jury service is perhaps the most important means after voting and free speech, Consequently, as a matter of constitutional right and fundamental equality, an African-American has a right to serve on a jury that can only be impaired for cause or legitimate and rational reason through a peremptory strike. . . . The right of a party to peremptorily strike a juror must always give way to a right of [a] citizen to participate in our judicial system without regard to race, gender or national origin. To do otherwise undermines the respect for the rule of law upon which a peaceful democracy is based.” State v. Livingston, _ S.W.3d _, _ (Mo. App. 2007) (No. WD64677, filed January 30, 2007, reh. denied April 3, 2007).
Here, Davis could challenge the State’s use of peremptoiy challenges to exclude African-American prospective jurors regardless of whether he was African-American. There is no reversible error on the issue of standing, however, because the trial court, after noting that Davis was described as an African-American male in the complaint and information, proceeded to rule on Davis’ Batson challenge.
B. Three-Step Process in Analyzing Batson Challenge
Next, Davis contends that although the trial court ultimately rejected his Batson challenge, “the record of voir dire shows, and the court’s initial ruling, demonstrates that the reasons offered for the strikes were pretextual and that the jurors were struck based on their race.” Davis’ argument can be addressed by considering each step in the three-step process that a court is required to use in deciding a Batson challenge.
1. Prima Facie Showing of Purposeful Discrimination
Under the three-step process outlined above, Davis must first make a prima facie showing that the prosecutor exercised his peremptory challenges on the basis of race. Davis argued before the trial court that the prosecutor had used his peremptory challenges to exclude the only two African-American members of the 28-member jury panel. Moreover, Davis pointed out that the prosecutor had done this “in the first three picks.” In State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006), the prosecutor struck all but one of the prospective African-American jurors from the jury panel. The defendant struck the remaining African-American member, leaving only one African-American member as an alternate on the final jury panel. Our Supreme Court held that “[booking at the numbers alone suggests discrimination existed in this case.” 280 Kan. at 813; see also Pham, 281 Kan. at 1238 (concluding that defendant had made prima facie showing that prosecutor had struck two Hispanic prospective jurors on basis of their ethnicity). Here, it is apparent that Davis bas made a prima facie showing that the prosecutor excluded E.C. and V.S., who were the only African-American members of the jury panel, on the basis of race.
2. Race-Neutral Reasons
After Davis made a prima facie showing that the prosecutor excluded V.S. and E.C. on the basis of race, the prosecutor had the burden to come forward with a race-neutral reason for striking these prospective jurors. As discussed above, under this second step, the prosecutor’s explanation does not have to be persuasive or plausible but merely facially valid. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason will be deemed race neutral. Pham, 281 Kan. at 1237. The persuasiveness of the justification does not become relevant until the third step, where the trial court determines whether the defendant has carried his burden of proving purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995).
Here, the prosecutor stated that he struck E.C. because E.C.’s answer to a particular question led the prosecutor to believe that E.C. thought about the penalty in terms of the burden of proof. In addition, the prosecutor stated that he struck V.S. because V.S.’s answers to the prosecutor’s questions indicated that V.S. was someone who would overanalyze the case and might be a difficult juror on fine details.
The reasons given by the prosecutor were race neutral, and there was no error by the trial court under this second step of the analysis.
3. Purposeful Discrimination
Under the third step of the analysis, the trial court was required to determine whether Davis had proved purposeful discrimination. Purkett, 514 U.S. at 767. The problem here is that the trial court never determined whether Davis had met his burden to prove purposeful discrimination. Although the trial court made some initial findings indicating that the prosecutor s explanation of striking at least one of the minority jurors might not have been credible, the trial court never conducted a full analysis under the third Batson step.
The trial court’s failure to fully conduct the analysis under the third Batson step seems to have resulted from the prosecutor’s representations to the trial court. When the trial judge asked defense counsel for her response to the prosecutor’s explanation for striking the African-American jurors, the prosecutor objected to defense counsel “giving any response” and stated, “The law says all I have to do is give a race-neutral reason.” Nevertheless, although the prosecutor needed to come forward with a race-neutral reason under the second Batson step, Davis had the ultimate burden to prove purposeful discrimination by the prosecutor. Therefore, the prosecutor should not have cut off defense counsel’s opportunity to respond to the prosecutor’s explanations for striking the minority jurors. Moreover, when the trial court began analyzing the prosecutor’s reasons for striking the minority jurors, the prosecutor interjected himself and brought the trial court back to the second Batson step, stating, “I believe the status of the law is if I give a race-neutral reason and the Court finds it is race neutral, the Court itself cannot even second guess my judgment.”
Nevertheless, after a trial court finds that a prosecutor’s reasons for striking prospective jurors are race neutral under step two of the Batson analysis, the trial court is allowed to second guess the prosecutor’s statements. Recognizing that the analysis under this third step is based largely on credibility, our Supreme Court in State v. Campbell, 268 Kan. 529, 534, 997 P.2d 726, cert. denied 531 U.S. 832 (2000), stated:
“Where a prosecutor offers an explanation for striking a juror which does not relate to the characteristics of any particular race, such reason is race-neutral and it is then for the trial court to determine whether the prosecutor was motivated by some discriminatory intent — an analysis which is largely credibility based.”
The trial court is required to evaluate the credibility of the prosecutor in explaining the reason for striking a minority juror, and an appellate court gives great deference to this evaluation. Trotter, 280 Kan. at 812.
Here, once the trial court found that the prosecutor’s reasons were race neutral, the trial court ended its analysis of Davis’ Batson challenge. The trial court never conducted a full analysis under step three and never reached the ultimate determination of whether there was purposeful discrimination.
Neither party disputes that the trial court failed to make the ultimate determination under step three of whether Davis had met his burden to prove purposeful discrimination. In fact, the State never goes to step three of the Batson analysis in its brief. Instead, the State maintains that the trial court’s determination was reasonable based upon V.S.’ and E.C.’s responses during voir dire and the prosecutor’s explanation for striking these prospective jurors. On the other hand, Davis contends that the record of the voir dire proceedings and the trial court’s initial findings show that the prosecutor’s reasons for striking the minority jurors were pretextual and that the jurors were struck based on race. Thus, Davis urges this court to reverse his case and remand for a new trial.
To accept either party’s argument, however, this court would have to malee the ultimate factual determination concerning whether Davis carried his burden of proving purposeful discrimination. This determination is properly left to the trial judge who presided over the voir dire proceedings and heard the prosecutor’s explanations for striking the minority jurors. Quoting Hernandez v. New York, 500 U.S. 352, 364-65, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991), our Supreme Court in Pham, stated the following:
“ ‘ “Deference to the trial court findings on the issue of discriminatory intent malees particular sense in this context because, as we noted in Batson, the finding will ‘largely turn on evaluation of credibility.’ [Citation omitted.] In the typical peremptory challenge inquiry, the decisive questions will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. . . . [The evaluation of which] lies ‘peculiarly within a trial judge’s province.’ [Citations omitted.]” ’ ” 281 Kan. at 1237.
Although the trial court made some initial findings concerning the prosecutor’s reasons for striking the minority jurors, the trial court never conducted a full analysis under the third step and never reached the ultimate determination of whether there was purposeful discrimination.
Regardless of whether the trial court’s decision is characterized as collapsing the second and third Batson steps together or failing to proceed under step three, the trial court erred. In Burkett, the United States Supreme Court held that the Eighth Circuit Court of Appeals erred in collapsing the second and third Batson steps into one by requiring that the justification tendered at the second step be not only neutral but also at least minimally persuasive. 514 U.S. at 768. At the second step, “implausible or fantastic justifications,” including “a silly or superstitious reason” are sufficient to require the process to go to step three. 514 U.S. at 768. The United States Supreme Court remanded the case with directions for the Eighth Circuit Court of Appeals to proceed to step three. 514 U.S. at 770. “At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” 514 U.S. at 768.
In Bolton, 271 Kan. 538, Syl. ¶ 4, our Supreme Court remanded the case for a Batson hearing because the trial court failed to properly analyze the defendant’s challenge to the prosecutor’s use of peremptory strikes to exclude minority jurors under the three steps outlined in Batson. Similarly, in this case, the trial court’s failure to properly analyze Davis’ challenge to the prosecutor’s use of peremptory strikes to exclude V.S. and E.C. from the jury under the third Batson step requires that the case be remanded for a proper Batson hearing.
In remanding this case for a proper Batson hearing, we point out that a Batson challenge can be based on the improper exclusion of even one juror. See J.E.B. v. Alabama, 511 U.S. 127, 142 n.13, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994) (“The exclusion of even one juror for impermissible reasons harms that juror and under mines public confidence in the fairness of the system.”). Therefore, if the trial court finds that Davis met his burden to show purposeful discrimination as to at least one of the jurors, then Davis is entitled to a new trial.
Moreover, we point out that the United States Supreme Court’s decision in Miller-El v. Dretke, 545 U.S. 231, 251-52, 162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005), might impact the ultimate determination of whether there was purposeful discrimination in this case. We will discuss Miller-El’s impact on prospective jurors E.C. and V.S. separately.
Prospective Juror E. C.
The prosecutor stated that he struck E.C. for the following reason: “[E.C.] expressed a correlation between the burden of proof and what is at stake, which lead[s] me to believe that he does think about the penalty in terms of the burden of proof.” The prosecutor was referring to the following dialogue that occurred between defense counsel and E.C. concerning the burden of proof in a criminal case:
“[Defense counsel]: . . . [The prosecutor] has the burden, it’s beyond a reasonable doubt and it stays with him during the whole trial. Now, let me ask [E.C.], do you agree with that part of our legal justice system?
“[E.C.]: I do.
“[Defense counsel]: You understand ... I mean, you don’t think it’s an unfair burden that’s placed on the State or [the prosecutor] as their representative?
“[E.C.]: No, not for what’s at stake here.
“[Defense counsel]: I believe you said not for what’s at stake here?
“[E.C.]: I mean, you know, a person’s freedom.”
E.C.’s response was absolutely correct as to why the State has the burden to prove guilt beyond a reasonable doubt in a criminal case. Recognizing that a defendant’s freedom and reputation are at stake in a criminal case, the United States Supreme Court in In re Winship, 397 U.S. 358, 363-64, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), stated the following regarding the burden of proof beyond a reasonable doubt:
“The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” (Emphasis added.)
E.C.’s answer to the question posed to him was a correct statement of why the State carries such a high burden of proof in a criminal case.
Nevertheless, the State mischaracterized E.C.’s testimony as saying he could not reach a decision on the evidence without considering the penalty involved. Nowhere in his response, however, does he refer to the penalty involved in this case. Lack of support in the record for the reason given for a peremptory strike has been identified as an indicator of pretext. See Miller-El, 545 U.S. at 252.
Prospective Juror V. S.
At voir dire, the prosecutor stated that he struck V.S. because V.S. appeared to be overly intelligent and his answers indicated that he would overanalyze the case and get stuck on fine details. On appeal, the prosecutor now points to a variety of facts that would support its decision to strike V.S. from the jury, including the fact that V.S. had previously worked as a clerk at a convenience store and had undergone some training on how to handle a robbeiy. Nevertheless, the prosecutor never provided this explanation at the time of Davis’ Batson challenge as a reason for excluding V.S. from the juiy.
Holding that a prosecutor must stand or fall on his explanation for eliminating prospective jurors given at the time of the Batson challenge, the United States Supreme Court in Miller-El, 545 U.S. at 251-52, stated:
“As for law, the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. [Citations omitted.] It is true that peremptories are often the subjects of instinct, [citation omitted], and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” (Emphasis added.)
Under Miller-El, the State must stand or fall on the prosecutor s explanation that he struck V.S. from the jury panel because V.S. seemed to be highly intelligent and that V.S.’ responses to the prosecutor’s questions indicated that he might overanalyze the evidence and get stuck on fine details.
Moreover, although the State refers in its brief to a response where V.S. named the burden of proof in a civil case, the State mischaracterizes V.S/ response. V.S. did not give the correct burden of proof until he was coaxed by defense counsel. When defense counsel first asked V. S. if he remembered what the burden of proof was in a civil trial, V.S. erroneously stated that the plaintiff had the burden of proof beyond a reasonable doubt. Defense counsel then stated, “Well, was it beyond a reasonable doubt or was it just a preponderance of the evidence?” V.S. then responded that the burden of proof was preponderance of the evidence.
A review of the voir dire transcript reveals that the information provided by V.S. indicating that he might be overly intelligent or that he might overanalyze the case was that he was a master control operator for a television station and that he had previously served on a civil jury. The final jury panel, however, contained members who had jobs that would require highly technical tasks or higher education. Moreover, one of the final members had previously been on the jury of a criminal trial. The United States Supreme Court in Miller-El recognized: “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batsons third step. [Citation omitted.]” 545 U.S. at 241. On remand, the trial court should consider whether the final jury members would fit within tire prosecutor’s proffered reasons for striking V.S.
Prosecution as an Adult
Finally, Davis argues that the trial court erred in authorizing him to be prosecuted as an adult. An appellate court reviews the trial court’s decision to authorize prosecution of a juvenile as an adult to determine whether there is substantial evidence in the record to support the decision. State v. Medrano, 271 Kan. 504, 506-07, 23 P.3d 836 (2001). “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001). An appellate court does not reweigh the evidence, determine the credibility of witnesses, or substitute its evaluation of the evidence for that of the trial court. Medrano, 271 Kan. at 507.
Under the relevant portion of K.S.A. 38-1636(a)(2), the State may move for authorization to prosecute a juvenile as an adult when the juvenile is at least 14 years old at the time of the alleged offense and is charged with an offense that, if committed by an adult, would be a nondrug severity level 1 through 6 felony. Under such circumstances, the juvenile is presumed to be an adult, and the burden of proof is on the juvenile to rebut the presumption. K.S.A. 38-1636(a)(2).
K.S.A. 38-1636(e) lists the following eight factors that a trial court shall consider in determining whether to authorize the prosecution of a juvenile as an adult:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.”
Here, Davis concedes that he was presumed to be an adult under K.S.A. 38-1636(a)(2) because he was 17 years old at the time of the alleged offense and had been charged with an offense that, if committed by an adult, would constitute a nondrug severity level 3 felony. Therefore, Davis had the burden to rebut the presumption that he was an adult. K.S.A. 38-1636(a)(2). Nevertheless, the trial court is still required to consider the factors under K.S.A. 38-1636(e) even when the juvenile is presumed to be an adult under K.S.A. 38-1636(a)(2). State v. Hartpence, 30 Kan. App. 2d 486, 488, 42 P.3d 1197 (2002).
Davis maintains that the trial court, in ruling from the bench, did not conduct a balanced analysis of all the factors under K.S.A. 38-1636(e) and relied primarily on the seriousness of the crime and Davis’ performance in the juvenile justice system. Davis concedes, however, that the trial court’s written journal entry reflects a consideration of all the factors under K.S.A. 38-1636(e).
A review of the trial court’s ruling from the bench, along with the written journal entry, demonstrates that the trial court adequately considered the factors under K.S.A. 38-1636(e) in authorizing the prosecution of Davis as an adult. Substantial evidence exists in the record to support the trial court’s decision to authorize the prosecution of Davis as an adult.
Affirmed in part, reversed in part, and remanded for a proper Batson hearing. | [
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Rulon, C.J.:
Defendant Charles R. Hawkins, Jr., appeals his jury conviction for driving under the influence of alcohol (DUI) on the basis the district court improperly admitted evidence of the defendant’s refusal to submit to a breathalyzer test. The defendant further appeals his convictions for failing to stop at a stop sign, failing to dim his vehicle’s headlights, and making an illegal right turn, contending the addition of these charges constituted a violation of double jeopardy. Additionally, the defendant alleges error in the district court’s order to reimburse the Board of Indigents’ Defense Services (BIDS) for application and attorney fees without first considering the defendant’s ability to pay. We affirm in part, reverse and vacate in part, and remand with directions.
The primary issue in this appeal concerns the admission of evidence regarding the defendant’s breath test refusal in his DUI trial. The defendant contends the test refusal was elicited in response to a custodial interrogation and the defendant’s refusal was both testimonial and communicative. Because the defendant had not been given Miranda warnings prior to refusing the test, he argues his statements should not have been used against him at trial. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966).
Although the precise issue before the court on appeal is difficult to ascertain, the parties seem to concede the evidentiary issues were not properly preserved for appeal. Before the district court, the defendant challenged the voluntariness of several of his statements to the officer conducting the traffic stop. Nevertheless, although the defendant generally objected to the officer’s testimony on the basis of the pretrial motions, the defendant did not request a continuing objection and did not specifically object to the admission of each challenged statement. When, prior to trial, the district court rules that evidence is admissible, t£e party objecting to the evidence must lodge a timely and specific objection at trial when the evidence is offered to preserve the objection for appeal. See State v. Lowe, 276 Kan. 957, 961, 80 P.3d 1156 (2003). Therefore, this issue was not properly preserved.
Moreover, the issue presented in this appeal does not appear to concern any specific statements of the defendant but challenges the use of evidence that the defendant refused to submit to a breath test in his DUI trial. This issue was not presented to the district court. Because the district court was not given the opportunity to address the claim, the matter is not properly raised for consideration on appeal. State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006).
Next, the defendant contends the district court violated the prohibition against double jeopardy under the Fifth Amendment to the United States Constitution by allowing the State to amend its complaint to add three additional charges between the first full trial, which resulted in a hung trial, and the second full trial, which resulted in convictions of all charged offenses. Again, this issue was not raised before the district court and is not properly before this court. See Rojas, 280 Kan. at 932. Therefore, the defendant’s convictions are affirmed.
The defendant’s final issue in this appeal challenges the district court’s order requiring the defendant to pay a $100 BIDS application fee and $1,400 in court-appointed attorney fees. The defendant alleges the district court failed to consider, on the record, the defendant’s ability to pay such fees.
Although the defendant failed to raise this issue before the district court, the Kansas Supreme Court considered a similar issue for the first time on appeal. State v. Robinson, 281 Kan. 538, 541, 132 P.3d 934 (2006). In Robinson, the court held: “A sentencing court assessing fees to reimburse [BIDS] under K.S.A. 2005 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1. The present record is silent as to these considerations. Therefore, any attorney fees imposed in this case pursuant to K.S.A. 2006 Supp. 22-4513 must be reversed and vacated, and the case must be remanded for consideration of the defendant’s financial condition before any attorney fees may be imposed pursuant to statute.
However, the State argues the holding of Robinson does not extend to the order requiring the defendant to pay the $100 application fee required by K.S.A. 2006 Supp. 22-4529. The State notes the language of K.S.A. 2006 Supp. 22-4513(b), which requires the district court to consider the defendant’s financial position, is absent from K.S.A. 2006 Supp. 22-4529.
In Robinson, the district court had ordered Robinson to pay $745 to reimburse BIDS for attorney fees and to pay a $50 administrative fee. In reversing the imposition of those costs, the Kansas Supreme Court did not distinguish between the attorney fee expenditures and the administrative fee, stating:
“We recognize that subsection (a) of K.S.A. 2005 Supp. 22-4513 states that taxation of ‘all expenditures’ by BIDS shall occur and that neither subsection (a) nor subsection (b) explicitly states consideration of a defendant’s financial resources must occur ‘at sentencing.’ However, reading the subsections together, this is their practical effect. The consideration must occur, and sentencing is the proceeding that routinely addresses BIDS reimbursement.” 281 Kan. at 547.
Despite the broad language of the holding, Robinson did not specifically consider the issue raised by the State in this appeal. The Robinson court relied upon statutory interpretation of K.S.A. 2005 Supp. 22-4513(a) and (b) (not amended post -Robinson) to resolve the reimbursement issue. The Robinson court determined that 22-4513 provides two procedures for assessing the amount a criminal defendant is ordered to reimburse to BIDS. First, the sentencing court is required to consider the defendant’s financial circumstances in setting the amount and payment method of reimbursement. Second, once tire reimbursement amount is assessed, a criminal defendant may petition the court for a waiver of some or all of the BIDS expenditures upon a showing of a “manifest hardship” upon the defendant and his or her family. See 281 Kan. at 544.
In material part, K.S.A. 2006 Supp. 22-4513 provides:
“(a) If the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents’ defense reimbursement tables . . ., whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.
“(b) In determining the amount and method of payment of such sum, tire court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.” (Emphasis added.)
In contrast, K.S.A. 2006 Supp. 22-4529 provides in material part:
“Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto, shall pay an application fee in the amount of . . . $100 on or after July 1, 2004, to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee. All moneys received pursuant to this section shall be remitted to the state treasurer in accordance with the provisions of K.S.A. 75-4215 . . . . Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the indigents’ defense services fund. If the defendant is acquitted or the case is dismissed, any application fee paid pursuant to this section shall be remitted to the defendant.” (Emphasis added.)
When interpreting a statute, an appellate court must apply the legislative intent as expressed in the language of the statute, if such language is unambiguous. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). However, the language should be interpreted consistent with the act as a whole. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
When K.S.A. 22-4529 was enacted in 1997, the legislature amended several existing statutes to provide for the reimbursement of BIDS expenditures. See L. 1997, ch. 181, secs. 16, 17, 18, and 20 (enacting K.S.A. 22-4529; amending K.S.A. 21-4603, K.S.A. 21-4603d, and K.S.A. 22-3717). Whenever the reimbursement of BIDS expenditures was authorized, the legislature required the court to consider “the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” Each of these provisions is consistent with the language of K.S.A. 2006 Supp. 22-4513, which is also limited to BIDS expenditures.
However, the “application fee” referenced in K.S.A. 2006 Supp. 22-4529 clearly is not an expenditure incurred by BIDS in the defense of tire defendant. By die statute’s plain language, the BIDS application fee is incurred when a criminal defendant seeks appointment of indigent defense services under K.S.A. 2006 Supp. 22-4503 before the costs of any such services have been incurred by BIDS. The application fee is returned to a criminal defendant if the defendant is acquitted or there is a dismissal of the charged offense(s). Therefore, the application fee incurred under K.S.A. 2006 Supp. 22-4529 is distinct from the BIDS expenditures, which are assessed only after the defendant has been convicted. See K.S.A. 2006 Supp. 22-4513(a) (imposing BIDS expenditures only after defendant is convicted); K.S.A. 2006 Supp. 21-4603(b) (mandating imposition of BIDS expenditures as part of sentencing: “In addition to [authorized dispositions], the court shall order the defendant to reimburse” BIDS expenditures.); K.S.A. 2006 Supp. 21-4603d (i) (same); K.S.A. 2006 Supp. 22-3717(m)(4) and (m)(5) (distinguishing between payment of BIDS application fee and payment of BIDS expenditures as conditions of parole or postrelease supervision).
Because the BIDS application fee requirement in K.S.A. 2006 Supp. 22-4529 is not included in tire general reimbursement requirement for BIDS expenditures in K.S.A. 2006 Supp. 22-4513, the requirements of K.S.A. 2006 Supp. 22-4513(b), as interpreted by Robinson, are not applicable to the BIDS application fee. Based upon the plain language of K.S.A. 2006 Supp. 22-4529, a district court should malee a “manifest hardship” determination at the time the BIDS application fee is incurred, i.e., when the defendant seeks appointment of counsel. See K.S.A. 2006 Supp. 22-4504(d). However, whereas K.S.A. 2006 Supp. 22-4513(b) contains mandatory language requiring the district court to consider the defendant’s financial resources before ordering the defendant to reimburse the BIDS expenditures incurred in his or her defense, K.S.A. 2006 Supp. 22-4529 contains mandatory language concerning payment of the application fee and discretionary language regarding a manifest hardship determination, i.e., “the court may waive payment.”
Furthermore, K.S.A. 2006 Supp. 22-4529 imposes the burden of producing evidence of manifest hardship upon a criminal defendant seeking waiver of the BIDS application fee. The statute permits tire district court to waive the application fee “[i]f it appears to the satisfaction of the court” the application fee will impose a manifest hardship upon the defendant. This phrase is notably absent from the BIDS expenditures reimbursement determination required by K.S.A. 2006 Supp. 22-4513(b). See Robinson, 281 Kan. at 544.
At a minimum, K.S.A. 2006 Supp. 22-4529 requires a criminal defendant to object to the payment of the BIDS application fee on the basis of a manifest hardship. See K.S.A. 2006 Supp. 22-4504(d) (if found indigent, defendant shall be informed of terms expected for payment of counsel). As noted, here, the defendant failed to present this issue before the district court at any time. Consequently, this court refuses to conclude the trial court erred when imposing the BIDS application fee.
Nevertheless, as the case must be remanded for consideration of the BIDS attorney fees imposed in this case, the defendant may raise the issue of the BIDS application fee and attempt to demonstrate the imposition of the application fee constitutes a manifest hardship.
We affirm the defendant’s convictions, reverse and vacate the order imposing $1,400 in BIDS attorney fees; and remand the case for reconsideration of such attorney fees in light of Robinson. | [
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PlERRON, J.:
Robert Lowe appeals the district court’s denial of claims he raised concerning the eligibility of voting members, the amendments of bylaws, and other corporate association matters involving the Sugar Valley Lakes Homes Association (Sugar Valley).
Sugar Valley is a homeowners association incorporated in November 1973. In 1974, Hidden Valley Lakes Association (Hidden Valley) merged into Sugar Valley and a merger agreement was filed with the Secretary of State. We are not dealing with a publicly traded corporation which exists for the purpose of profit-making activities.
At a special meeting of Sugar Valley on July 8, 1978, the members approved a change in Sugar Valley’s bylaws. The changes reflected the merger with Hidden Valley by increasing the number of members on the Board of Directors (Board) to five — -three members owning property in Sugar Valley and two members owning property in Hidden Valley. At the annual meeting in January 1996, substantial changes were also made to Sugar Valley’s bylaws. The bylaws as last amended in 1996 provided in Article III, Section 2: “The rights of membership are subject to the payment of annual and special assessments levied by the Association.”
On January 24, 2004, Sugar Valley held its 2004 annual meeting. The Board determined it had a quorum of Sugar Valley’s membership. In calculating the quorum number, the Board deducted the number of association-owned lots and also lots with past due assessments. There was an election for four members to the Board at the annual meeting. Robert Lowe was one of the candidates for a Board position. The proxies were mailed to all members of Sugar Valley, and the ballots used in the election stated that only votes of members who were in good standing or who were current on assessments would be counted.
On May 19, 2004, Londa Picard, Joseph Price, Robert Province, and Robert Lowe (plaintiffs) filed an application in district court entitled: “Application for court hearing and determination of persons eligible to vote and determination of result of election of directors and determination of result of matters other than election of directors of corporation without capital stock.” The application alleged violations of various Kansas corporation statutes and requested the 2004 election be declared invalid and set aside.
This case proceeded through discovery, a motion to dismiss, and the granting of a change of venue. On July 28, 2005, the plaintiffs filed a motion for partial summary judgment claiming there were no issues of material fact. The parties continued discovery, and each submitted a pretrial questionnaire. On December 23, 2005, the district court conducted a full evidentiary hearing on the only two remaining issues: (1) how a quorum was determined by Sugar Valley for its January 13, 2004 meeting; and (2) what bylaws were in effect for Sugar Valley at the time of that meeting.
The district court granted judgment to Sugar Valley and denied all claims for relief requested by Lowe. The court held that Sugar Valley had correctly met the quorum requirements for its annual meeting on January 24, 2004, after subtracting lots that were exempt from assessments and lots that were delinquent regarding assessments. The court held the amended and restated bylaws dated January 13, 1996, had been continuously used by Sugar Valley for nearly 10 years without objection until Lowe’s current action. The court held that voting rights of the association members were controlled by the articles of incorporation and the bylaws and concluded: (1) it would be unfair to allow members who are not paying assessments to participate in the elections of Board members; (2) the failure to amend the articles of incorporation to reflect the changes in the number of Board members from three to five was a “technicality that has been overcome by many years of ratification by the membership of the defendant”; (3) no member had been harmed by the failure to amend the articles; and (4) the failure to pay assessments does not result in a loss of membership, it results in a loss/suspension of a right of membership, i.e., the right to vote.
Lowe first argues Sugar Valley could not elect a greater number of directors than set forth in the articles of incorporation on file with the Kansas Secretary of State on the day of the election. Lowe contends the election should be declared invalid and set aside.
The bylaws and articles of incorporation filed upon the inception of Sugar Valley in 1973 provided for a Board of three members. The minutes of a special meeting of Sugar Valley occurring on July 8, 1978, stated that a total of 1,385 members were present at tire meeting in person or by proxy filed with the secretary. At the meeting, the members approved, with a vote of 1,078, an amendment to Article 4 of the articles of incorporation of Sugar Valley and Article VII, Section I of the bylaws changing the number of members on the Board from three to five. However, amended and restated articles of incorporation for Sugar Valley, reflecting the change to a five member Board, were not filed with the Secretary of State until December 8, 2004.
In granting judgment to Sugar Valley, the district court held that the failure of Sugar Valley to amend its articles of incorporation to reflect the increase of the size of the Board from three members to five members was a “technicality that has been overcome by many years of ratification by the membership of the defendant.” The district court stated the intent of the amendments was clear to allow for the change and that “[n]o member . . . has been harmed by the oversight of the Board of Directors in failing to timely amend the Articles of Incorporation.”
The district court’s conclusions on the law of ratification directs our standard of review. The function of an appellate court is to determine whether the court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).
Lowe bases his argument on K.S.A. 2006 Supp. 17-6301(b), which provides in relevant part:
“The board of directors of a corporation shall consist of one or more members, each of whom shall be a natural person. The number of directors shall be fixed by, or in the manner provided in, the bylaws, unless the articles of incorporation establish the number of directors, in which case a change in the number of directors shall be made only by amendment of the articles.”
Pursuant to K.S.A. 2006 Supp. 17-6301(b), Lowe states that at all times relevant in this case before the election of directors in January 2004, Sugar Valley’s articles of incorporation on file with the Secretary of State only provided for three members on the Board. Additionally, Lowe argues that ratification is not a possibility because K.S.A. 17-6009(b) provides that bylaws may not contain any provisions that are inconsistent with the law or the entity’s articles of incorporation.
Consistent with the district court’s decision is the holding in Piper v. Moore, 163 Kan. 565, 573, 183 P.2d 965 (1947), where in discussing ratification, the court stated:
“That power to take action includes the right to ratify was determined early in the history of jurisprudence in this jurisdiction.
“In State v. Comm’rs of Pawnee County, 12 Kan. 426, we held:
‘It is a general principle of almost universal application that whenever a state, county, corporation, partnership, or person has power originally to do a particular thing, it also has the power to ratify and malee valid an attempted effort to do such thing, although the same may have been done ever so defectively, informally, or even fraudulently in the first instance.’ (Syl. ¶ 5.)
“And at page 439 of the opinion in that case said:
. . This principle is so elementary in its nature that it requires no citation of authorities to uphold it.’ ”
Sugar Valley s change in the number of members on the Board is not a recent change. It occurred in 1978 when 1,078 members of Sugar Valley, out of a total of 1,385 members present either in person or by proxy, decided to amend the bylaws to establish a Board of five members. The intent of the amendment is clear. It is obvious the amendment gives a voice on the Board to all members of Sugar Valley, those living in the Sugar Valley area and those living in the Hidden Valley area. Lowe does not dispute the fact that since 1978, nearly 30 years, Sugar Valley has elected five members to its Board.
The district court correctly concluded that the members of Sugar Valley have ratified the election of five members to the Board despite the fact that the articles of incorporation were not timely amended. We also agree that Lowe has not demonstrated any harm or prejudice by the oversight of the Board in failing to timely amend the articles of incorporation.
Next, Lowe argues that under Kansas law, each member of Sugar Valley had the right to vote at the Januaiy 2004 member meeting and Sugar Valley could not deny voting rights to those members with unpaid assessments.
Regarding voting rights, the district court held that the amended and restated bylaws dated January 13, 1996, have been continuously utilized by Sugar Valley for nearly 10 years without objection until Lowe’s current action. The court held that the voting rights of the association members were controlled by the articles of incorporation and the bylaws. The court concluded it would be unfair to allow members who are not paying assessments to participate in elections of Board members and that failure to pay assessments did not result in a loss of membership but in a loss or suspension of a right of membership, i.e., the right to vote.
The district court’s conclusions on the limitation of voting rights gives us a standard of review to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. at 318.
Lowe cites two statutory provisions. K.S.A. 2006 Supp. 17-6505(b) states:
“Unless otherwise provided in the articles of incorporation of a nonstock corporation, each member shall be entitled at every meeting of members to one vote in person or by proxy, but no proxy shall be voted after three years from its date, unless the proxy provides for a longer period.”
K.S.A. 2006 Supp. 17-6505(c) states:
“Unless otherwise provided in this act, the articles of incorporation or bylaws of a nonstock corporation may specify the number of members having voting power who shall be present or represented by proxy at any meeting in order to constitute a quorum for, and the votes, or portion thereof, that shall be necessary for, the transaction of any business. In the absence of such specification in the articles of incorporation or bylaws of a nonstock corporation, the members present in person or represented by proxy after proper notice has been given shall constitute a quorum at a meeting of such members. In all matters other than die election of the governing body of the corporation, the affirmative vote of a majority of such members present in person or represented by proxy at the meeting and entided to vote on the subject matter shall be the act of the members, unless the vote of a greater number is required by tiiis act, the articles of incorporation or bylaws.”
Lowe argues the absence of any language concerning the word “bylaws” in K.S.A. 2006 Supp. 17-6505(b), while including the language in K.S.A. 2006 Supp. 17-6505(c), shows clear intent by the legislature that only the articles of incorporation may contain a provision for the limitation or suspension of voting rights. Lowe states that Sugar Valley’s original articles of incorporation contained the conditions of membership and there is no language limiting the rights of membership if the member fails to pay annual or special assessments. Lowe states the 1996 amendments to the bylaws cannot dilute any membership rights and that the restrictions and covenants section of the bylaws clearly provides that each member is entitled to one vote and there is no provision for a suspension of voting rights.
We disagree with Lowe’s arguments. The bylaws of Sugar Valley have always limited membership on the payment of association dues. The bylaws have provided, since 1973, in Article III, Sections 2 and 3: “The rights of membership are subject to the payment of annual and special assessments levied by the Association” and, “The membership rights of any person whose interest in the the Properties is subject to assessment.” We recognize that the original articles of incorporation filed by Sugar Valley did not address voting rights of its members, only that all purchasers were members. The amended articles of incorporation state:
“Every person who is an Owner, as defined in the Declarations of Covenants and Restrictions, shall be a member of the Association, provided that any such owner who holds such interest merely as a security for the performance of an obligation shall not be a member. The rights of membership are subject to the payment of annual and special assessments levied by the corporation and the further conditions of membership shall be stated in the bylaws.” (Emphasis added.)
We agree with the logic of the district court and Sugar Valley. Limitation on membership rights based on payment of association dues or assessments has been in the bylaws since Sugar Valley’s inception. Common sense dictates that to participate in the election of the governing body, the voters can be required to be current on their assessments. There is a distinction between conditions of membership and rights of membership. Failing to pay assessments does not result in the loss of membership. Instead, it results in the loss or suspension of a membership right, in this case, the right to vote in association matters.
The previous discussion of ratification of conduct is equally applicable under this issue. See Piper v. Moore, 163 Kan. at 573; State v. Comm’rs of Pawnee Co., 12 Kan. 426 (1874).
Next, Lowe argues the district court incorrectly determined the quorum requirements for the January 2004 annual meeting.
Our standard of review is to determine whether Sugar Valley was entitled to judgment on this issue.
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with tíre affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
K.S.A. 2006 Supp. 17-6505(c) provides:
“Unless otherwise provided by this act, the articles of incorporation or bylaws of a nonstock corporation may specify the number of members having voting power who shall be present or represented by proxy at any meeting in order to constitute a quorum for, and the votes, or portion thereof, that shall be necessary for, the transaction of any business.”
The voting or quorum requirements are found in Sugar Valleys bylaws. Article XIII, Section 4 provides: “The presence at the meeting of members entitled to cast, or of proxies entitled to cast, one-tenth (Vxo) of the votes of the membership shall constitute a quorum for any action governed by these Bylaws.” Lowe reads this provision to require one-tenth of the entire membership in order to have a quorum. Like the district court, we disagree with Lowe’s interpretation. The key wording in the bylaw provision is the restriction to members that are “entitled to cast” votes. Although certainly not the situation in the present case, if the membership pool is not reduced by those members who are not entitled to vote, i.e., loss of the membership right to vote, then the possibility of never being able to meet a quorum presents itself. We interpret the provision to require one-tenth of members entitled to vote in order to establish a quorum.
The parties stipulated there were 370 votes cast by members at the January 2004 annual meeting. The parties also stipulated there were a total of 4220 lots outstanding at the time of the meeting. Sugar Valley presented evidence at the evidentiary hearing that 363 lots were owned by the association and 943 lots had past due assessments. Sugar Valley supported its findings with a printout of the status of all association members. The district court also found Sugar Valley’s membership statistics in 2005 to be comparable to those presented in 2004. Subtracting the association owned lots and the lots with past due dues, we agree with the district court’s findings that Sugar Valley met the quorum requirement of 292 at its 2004 meeting and Sugar Valley was entitled to judgment on this issue.
The last two issues argued by Lowe generally involve whether the district court could decide this case on summary judgment. He argues the district court erred in granting judgment to Sugar Valley when Sugar Valley did not come forward with any opposing affidavits or any competent evidence showing there was a genuine issue as to any material fact.
Summary judgment is appropriate when the evidence indicates there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. See Mitchell v. City of Wichita, 270 Kan. at 59.
Lowe contends Sugar Valley failed to submit a verified response to his motion for partial summary judgment and the response did not contain any affidavits or other competent evidence showing a genuine issue for trial. Without a verified response, Lowe argues, the district court should have granted his motion. Lowe contends the fact that Sugar Valley failed to provide evidence concerning the proper procedures for passing the amended bylaws and the amended and restated articles of incorporation filed 10 months after the January 2004 meeting is prima facie evidence that Sugar Valley knew it was necessary to file the articles in order for them to be effective.
Sugar Valley counters that its response to Lowe’s motion for partial summary judgment is in full compliance with Supreme Court Rule 141 (2006 Kan. Ct. R. Annot. 203) and provides undisputed evidence allowing judgment in its favor. We agree. Sugar Valley presented a lengthy response to Lowe’s motion wherein it detailed the paragraphs that were uncontroverted and the eight paragraphs that it argued were controverted. Attached to Sugar Valley s response were the bylaws in force at the time of the January 2004 annual meeting, several sets of Sugar Valley s responses to interrogatories, and the amended and restated articles of incorporation of Sugar Valley filed with the Secretary of State on December 8, 2004.
We also reject Lowe’s claim that Sugar Valley’s response was improper because it was not verified by the corporation. Lowe cites no authority requiring verification, nor can we find any such requirement. K.S.A. 60-211(a) provides in relevant part: “Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by an affidavit.”
Lowe also takes issue with several facts and conclusions used by tire district court in granting judgment to Sugar Valley surrounding the 1996 annual meeting.
Lowe argues Sugar Valley must prove the validity of the 1996 annual meeting before the minutes and actions of that meeting can accepted. On the contrary, Lowe must prove the invalidity of the 1996 annual meeting before it will be disregarded. Lowe has not met his burden of proof. Finding a party did not meet its burden of proof is a negative finding. Such a finding will not be disturbed by an appellate court absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. See General Building Contr., LLC v. Board of Shawnee County Comm'rs, 275 Kan. 525, 541, 66 P.3d 873 (2003). Lowe cannot overcome this negative finding. There is no evidence of impropriety in the 1996 annual meeting.
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McAnany, J.:
Byron D. Porter entered into a plea agreement which resulted in him pleading no contest to aggravated robbery. The State agreed to dismiss other charges and to recommend a downward departure sentence of 60 months’ imprisonment. After accepting Porter’s plea and finding him guilty, the court scheduled a sentencing hearing. Porter failed to appear at the sentencing hearing and a bench warrant was issued. Porter was apprehended in Oklahoma and brought back for a rescheduled sentencing hearing. At the hearing he agreed that his criminal histoiy was C, though he claimed that when he entered his plea he thought his criminal history was D. The difference arose from a juvenile conviction for burglary which Porter acknowledged to be accurate. Porter’s presumptive sentence range was from 96 to 107 months in prison. The court asked Porter why the court should consider a departure since Porter fled the jurisdiction after the plea hearing. Porter offered no excuse and acknowledged the stupidity of having absconded, but nevertheless requested a downward departure sentence. When the court asked the State for its position, the prosecutor responded: “State needs to stand by its plea agreement.” The court denied Porter’s motion for a downward departure and sentenced him to 107 months in prison.
Porter appealed the denial of his departure motion. The Kansas Supreme Court held it was without jurisdiction to consider an attack on his presumptive sentence. State v. Porter, No. 89,857, unpublished opinion filed October 31, 2003. Almost a year later, Porter moved to withdraw his plea based upon the sentencing court’s refusal to follow the plea agreement and his claim that the State failed to honor it at the sentencing hearing. The motion was summarily denied and no appeal was taken.
Porter then filed the current K.S.A. 60-1507 motion in which he claimed the State did not honor the plea agreement, and the sentencing court’s failure to follow the plea agreement violated his constitutional rights. At the hearing on his motion the parties agreed there was no need for the presentation of evidence and submitted the matter on the arguments of counsel. Following the arguments of counsel the court denied the motion and this appeal followed.
The district court, subject to an abuse of discretion standard, determines whether the claims asserted in a K.S.A. 60-1507 motion are substantial before granting an evidentiary hearing and ordering the defendant’s presence at the hearing. Laymon v. State, 280 Kan. 430, 436-37, 122 P.3d 326 (2005); Supreme Court Rule 183(h) (2006 Kan. Ct. R. Annot. 227). If the motion, files, and records of the case conclusively show that the movant is not entitled to relief, the district court has discretion to summarily deny the motion. Lujan v. State, 270 Kan. 163, 170, 14 P.3d 424 (2000); Supreme Court Rule 183(1).
Porter’s first argument is that the State is bound by the plea agreement. In the statement of facts in his brief, Porter states: “The State on appeal opposed the defendant’s position and did not uphold the plea agreement.” He provides no citation to tire record to support this conclusory statement. Porter’s brief fails to comply with Supreme Court Rule 6.02(d) (2006 Kan. Ct. R. Annot. 36). We presume there is no support in the record for this statement and, hence, will disregard it. Ortiz v. Biscanin, 34 Kan. App. 2d 445, Syl. ¶ 1, 122 P.3d 365 (2004). Further, in presenting this first argument, Porter states in his brief: “The appellate file in the original criminal case and the responses in the instant action indicate that once the court sentenced the defendant the State did not uphold or support the plea agreement.” Porter fails to tell us with any degree of specificity how the State failed to honor the agreement. Porter may be arguing that once he breached his contract with the State by seeking to withdraw the plea he had agreed to enter, the State nevertheless had an ongoing obligation to perform under the contract which he himself had repudiated and refused to honor. We could speculate that this interesting issue is what Porter is driving at, but decline to engage in such speculation. This issue has been waived. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004).
Porter’s second argument is that the court was obligated to sentence Porter under category D or at least consider a departure from that level. In the first sentence of his argument, Porter states that “the court cannot enhance the level of the felony based upon subsequently discovered felonies.” This did not occur here. Porter’s crime was a level 3 person felony. He was sentenced for a level 3 person felony.
In the next sentence, Porter states that “[t]he trial court must inform the defendant of his potential penalties.” This happened here. Before Porter entered his plea, the court advised him that if the court were to accept his plea, his sentence would depend upon his criminal history and could be from 55 months to 247 months. Porter’s sentence of 107 months was within this range. The court was not required to be any more specific. See State v. Ford, 23 Kan. App. 2d 248, 251, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997).
Porter also relies on the holding in State v. Haskins, 262 Kan. 728, 731, 942 P.2d 16 (1997), and argues that his plea was not made knowingly and voluntarily because he thought at the time his criminal history score was D when, in fact, it was C. We note that the defendant in Haskins was found to have knowingly entered his plea, even though he and the State were mistaken about his criminal history score at the time the agreement was made.
Next, Porter relies on the holding in Ford. He quotes from Ford (1) the requirements that the court must (a) inform the defendant of the consequences of the plea, including the level of the crime and the maximum penalty; and (b) address the defendant personally and determine that the plea is voluntarily and knowingly made; and (2) that a plea is void if induced by promises or threats that deprive it from its voluntary character. The standards cited by Porter in Ford have been met in this case. The district court found that Porter’s plea was voluntarily and knowingly made. We examine the district court’s ruling on this issue to determine if its factual findings are supported by substantial competent evidence, and whether those facts support its conclusions of law. Haskins, 262 Kan. at 731.
Here, Porter received a sentence of 107 months. His plea agreement stated that his sentence could range anywhere from 55 to 247 months’ imprisonment. Porter acknowledged in the agreement that he understood that all his relevant past criminal conduct could be taken into account at sentencing. Porter is presumed to have known his criminal history when he entered into the plea agree ment. See State v. Tallchief, No. 90,373, unpublished opinion filed February 20, 2004, rev. denied May 26, 2004 (defendant responsible for telling his trial counsel his criminal history). The plea agreement correctly identified his crime as a level 3 person felony. Porter ultimately was sentenced for a level 3 person felony. Porter claims he thought his maximum sentence would be 94 months if the court failed to follow the plea agreement. However, before Porter entered his plea, the court advised him that his sentence could be from 55 months to 247 months. Porter was advised that the court was not required to follow the plea agreement. Porter told the court he did not have any questions about the consequences of his plea. There was substantial competent evidence to support the district court’s finding that Porter’s plea was voluntarily and knowingly made.
Finally, Porter makes the statement, without argument, that the court denied his motion to withdraw his plea without a hearing and without argument. Porter’s statement is correct. Porter did not appeal that ruling. He now seeks to raise the issue in this 60-1507 proceeding. A 60-1507 motion cannot be used as a substitute for a direct appeal absent a showing that there were trial errors affecting constitutional rights and there were exceptional circumstances excusing the failure to appeal. Supreme Court Rule 183(c)(3); Bruner v. State, 277 Kan. 603, 607, 88 P.3d 214 (2004). Porter shows neither. Further, the denial of a motion to withdraw a plea after sentencing lies within the trial court’s discretion, which will not be disturbed absent an abuse of that discretion. Moses v. State, 280 Kan. 939, 945, 127 P.3d 330 (2006). Porter has the burden to prove an abuse of discretion. State v. Beauclair, 281 Kan. 230, 236, 130 P.3d 40 (2006). For all the reasons discussed earlier, we find no abuse of discretion in the court’s ruling.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from the judgment determining the boundary line between adjoining tracts of land purchased by separate parties from the owners of a single tract.
The action was instituted and tried as a declaratory judgment action. The facts alleged in the petition may be summarized.
The defendants, Ira H. Bundy and Velma R. White, were the owners of the following described real estate located in Republic County, Kansas:
“The West Half (W X) of the Southwest Quarter (SW X) of Section Three (3), and the East Half (E X) of the Southeast Quarter (SE X) of Section Four (4), Township Three (3) Range (3) West of the 6th P. M.”
On or about November 1, 1951, they agreed to sell six acres of the tract to defendants, Loyd and Bess Blosser, and entered into the following written memorandum:
“It is hereby agreed by Ira Bundy and Velma White to sell to Bess and Loyd Blosser the Southeast approximate six acres which is fenced and planted to com, of the West half of the Southwest Quarter of 3-3-3 for the sum of $6,000 (six thousand dollars), $1,000.00 (one thousand dollars) to be paid on November 1, 1951, and the balance to be paid on January 5, 1952, upon receipt of clear abstract title and deed to said approx. 6 acres. Loyd Blosser, Bess Blosser, Ira Bundy, Velma White.”
On December 12, 1951, they executed a deed to defendants Blossers which was recorded in the Office of the Register of Deeds of Republic County, Kansas, February 2, 1953. The deed described the land conveyed as follows:
“Starting at the Southeast comer of the West Half (W X) of the Southwest Quarter (SW X) of Section Three (3), Township Three (3), Range Three (3), Republic County, Kansas, thence running west 817 feet, thence running north 320 feet, thence running east 817 feet, thence running south 320 feet to the place of beginning being six acres.”
On November 9, 1954, plaintiffs and Velma R. White and Ira H. Bundy entered into a contract for the purchase and sale of the following described property:
“The West One-Half (W X) of the Southwest Quarter (SW X) of Section Three (3), except six (6) acres in the Southeast comer thereof, which is already conveyed to Loyd Blosser and wife, and the East one-Half (EX) of the Southeast Quarter (SE X) of Section Four (4), all in Township Three (3) South of Range Three (3) west in Republic County, Kansas.”
Thereafter, on December 15, 1959, by mutual agreement, defendant vendors made, executed, and delivered to defendants, Loyd and Bess Blosser, a correction deed describing the land as follows:
“A parcel of land located in the West half of the Southwest Quarter of section Three (3), Township Three (3) South, Range Three (3) West of the 6th P. M., more particularly described as follows: Commencing at a point at the intersection of the east line of said West half of the Southwest Quarter section and the north right of way line of present U. S. 36 Highway, being 71.9 feet north of the Southeast comer of said West half of the Southwest Quarter, thence north along said east line of the West half of the Southwest Quarter Section 320 feet, thence westerly parallel to the north line of the right of way line of present U. S. 36 Highway 817 feet, thence south parallel to the east line of the West half of the Southwest Quarter Section 320 feet, thence easterly along the north line of the right of way line of present U. S. 36 Highway 817 feet to the place of beginning, containing six acres more or less.
“This deed is given to correct the description appearing in a former deed between the parties hereto, dated December 12, 1951, and recorded in the office of the Register of Deeds for Republic County, Kansas on February 2, 1953, in Book 167, Page 425-426.”
The deed was filed for record in the Office of the Register of Deeds, Republic County, Kansas, December 16, 1959. It will be noted that the correction deed places the beginning point 71.9 feet further to the north than the original deed.
On December 21, 1959, plaintiffs entered into an extension agreement with defendants Velma R. White and Ira H. Bundy. The original agreement did not fix a definite time for the payment of the final balance due. Seven thousand dollars had been paid in installments. An additional seven thousand dollars was to be paid, but no time was fixed.
The plaintiffs learned of the correction deed for the first time on December 29, 1959.
The petition alleges that an actual controversy exists between the parties growing out of the transactions and sets out seven different claims and contentions. In the interest of some brevity, the contentions are highly summarized.
The plaintiffs contend that the defendants, Blossers, own only the land described in their original deed, and that the Blossers contend that the metes and bounds described in the tract purchased by them begins 71.9 feet north of the southeast corner of the west half of the southwest quarter of the section; that the defendants, by the correction deed, are attempting to unlawfully take land from the plaintiffs which they acquired under their purchase agreement, and that the defendants contend an error was made in the first conveyance to the Blossers and that the correction deed contains the proper description of the land which the Blossers were to acquire; that there was no mistake in the first conveyance but that if there was such a mistake the plaintiffs had no knowledge thereof and were not a party thereto but entered into the purchase agreement in good faith.
The plaintiffs further contend that if a description, as set forth in the correction deed, is not determined to be the description of the property owned by the Blossers, then the plaintiffs have a claim against each of the defendants for damages. The petition sets out additional claims by the plaintiffs as to their rights under the original purchase agreement and the extension agreement with the defendants, Velma R. White and Ira H. Bundy.
The petition requested a determination of “the rights of the parties in and to the real estate in controversy” and that the correct description as to the tracts concerned be fixed.
The defendants, Blossers, answered, claiming that they had been in open and notorious possession of the land described in the correction deed, had made valuable improvements thereon, and that the plaintiffs acquiesced and consented to the possession and ownership asserted by them.
The defendants, Velma R. White and Ira H. Bundy, filed their answer adopting the allegations of the answer of the Blossers and further alleged fraudulent representation on the part of plaintiff, Guy Hotchkiss, in procuring the extension agreement. The plaintiffs replied with a general denial to the answer of the defendants, Velma R. White and Ira H. Bundy.
The Blossers then filed an amended answer which does not require special consideration here. The plaintiffs filed an extended reply thereto. The reply, among other things, alleged that at no time had there been sufficient possession by the defendants, Blossers, of any portion of the land in controversy so as to give them any claim thereto. The reply specifically alleged:
“. . . that these defendants have entered into an agreement and conspiracy, whereby they agreed to nse the same attorneys and to make the allegations and claim of interests as set forth in the said amended answer of the said Blossers and the answer of the said White and Bundy, for the purpose of taking certain real estate from these plaintiffs, without legally acquiring the same, and without paying any consideration therefor;
We will not extend this opinion with a discussion as to the controversy over the pleadings, the trial of the issues, or the final disposition of the case in the court below. We pause here to raise a jurisdictional question. It should suffice to say that at this point the parties were in complete disagreement as to the nature of the issues before the court for determination. There was a serious dispute as to whether the conflicting contentions presented questions for determination by a jury as a matter of right.
The first matter for consideration is whether the controversial pleadings present a controversy justiciable under the declaratory judgment act. (G. S. 1949, 60-3127, et seq.) Even though the parties have not raised the question, it is one which the court will raise on its own motion.
In the recent case of Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P. 2d 413, it was stated at page 198 of the opinion:
“The first question confronting this court is whether, under the complicated and highly controversial pleadings, a controversy is presented which is justiciable under the declaratory judgment act (G. S. 1949, 60-3127, et seq.). The parties have not raised or discussed the question. Even so this serious preliminary question requires attention before the merits of the case can be considered.
“The question, being one of jurisdiction, can and should be raised by this court on its own motion. (Riley v. Hogue, 188 Kan. 774, 365 P. 2d 1097.)
“In Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350, we said:
“ ‘However, neither party in the action has raised the question of jurisdiction of this court and as has been stated on many occasions, whether the parties raise the question or not, the court has the duty to do so upon its own motion. . . ”
It appears from the record that neither the parties nor the trial judge were certain as to whether the conflicting contentions contained in the pleadings, and the issues to be tried, constituted an action for ejectment, a boundary dispute, estoppel by acquiescence, estoppel because of fraudulent representations, or estoppel because, as concluded by the trial judge, 'plaintiffs were in privity with defendants, Velma R. White and Ira H. Rundy, when they contracted to purchase the remaining land owned by said vendors”.
Certainly the parties are not in accord as to how their contentions arose and what the controlling contentions are. The abstracts set out some ninety-two pages of conflicting testimony on the question.
In Alliance Mutual Casualty Co. v. Bailey, supra, the court stated further at page 198 of the opinion:
“This court, in considering controversies justiciable under the declaratory judgment act (G. S. 1949, 60-3127, et seq.), has consistently adhered to the rule that a declaratory judgment action will not lie where there is a factual dispute as to how the contentions arose and what the legal contentions are. If the legal contentions, or the controversy as to what the legal controversies are, cannot be determined until after an extended hearing of the evidence and findings of fact, a declaratory judgment action is not proper.”
The rule governing the question now before the court was well stated in McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351P. 2d 202, where the court stated:
"Normally, a declaratory judgment action is not well suited to a case in which there is a controversy regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other form of action should be brought. (City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221; Stalnaker v. McCorgary, 170 Kan. 9, 223 P. 2d 738; Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345; Bodle v. Balch, 185 Kan. 711, 347 P. 2d 378; State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042.)” (p. 506.)
Two other recent cases have followed the rule that a declaratory judgment action is not proper where the parties fail to agree in the pleadings as to how their contentions arose and what the contentions are. (See, Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350, and State Automobile & Casualty Underwriters v. Gardiner, 189 Kan. 544, 370 P. 2d 91.)
The conflicting contentions and the diverse of issues raised by the pleadings compel a conclusion that the action is not one suitable for relief in the form of a declaratory judgment.
The judgment is reversed with instructions to dismiss the action.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by a respondent employer and his insurance carrier (hereafter referred to as respondents) in a workmen’s compensation proceeding from the judgment of the district court awarding claimant compensation benefits, and from all findings, rulings, and orders of that court, particularly the finding, ruling, and order that claimant was wholly dependent upon his deceased father, the workman, for support.
In brief, the facts are that the workman was killed on December 8, 1959, while operating respondents’ truck when the truck was struck by a train. The workman and the mother of claimant had been divorced on September 24, 1951, and claimant’s custody had been given to the mother with a support order requiring the father to pay $15.00 per week for the support of claimant. The mother remarried and claimant lived with her and his stepfather. The sole question presented for appellate review is whether the trial court erred in holding claimant was wholly dependent upon his deceased father for his support. The record shows that all support payments were not made by the father and that part of claimant’s necessities were provided by his stepfather even though the stepfather had never adopted or assumed any legal responsibility for the support of claimant. At the time of the hearing before the examiner on June 20, 1961, claimant was eleven years of age.
The evidence showed the father had other children but they did not then and are not now making any claim as dependents. During the stepfather’s service in the armed forces, he had declared claimant as a dependent and the mother received the usual allotment. The examiner found claimant was wholly dependent upon his deceased father and entered an award against the respondents for $10,452.
Respondents appealed to the district court and argued one point there they likewise urge in this appeal which was that the proper procedure was not followed by the examiner in getting all possible interested parties on notice and present at the hearing. Respondents also argued that since claimant was service-listed dependent of the stepfather, he cannot now claim to be totally dependent upon his father. The trial court in its memorandum decision of December 6, 1962, stated the above matters were not issues in the case and that there was adequate proof of the legal obligation of the father to support claimant, which obligation was accompanied by both actual support and “reasonable expectation of future support.” (Our emphasis.) The legal obligation and reasonable grounds upon which to expect continuing or future support from the father, in the opinion of the trial court, were sufficient upon which to predicate a finding of total dependence of the son upon the wages of the father. The finding of the trial court was that claimant had no other person than his father who was under a legal duty to support him. The contribution of the stepfather was voluntary in law since he had no legal obligation to provide for claimant’s support and he could withdraw his support at any time whereby the child could have no legal action or complaint. The legal right of support from the hands of the father was an effective and valuable legal right and there was no legal difficulty in the way of enforcing it. These were the ap proximate findings of the examiner, they were approved by the workmen’s compensation director, and such findings and award of the director were affirmed and adopted in their entirety by the district court subject to recomputation by that court. In its journal entry of judgment the trial court restated the above and entered an award of compensation in favor of claimant against respondents for $10,452. Respondents’ objections were heard and considered and the journal entry of judgment was approved by the trial judge as drawn.
Respondents have the burden here of showing the trial court erred in its determination claimant was totally dependent upon his deceased father. They contend the question of total dependency is the concern of this court because other states have held that where no conflict exists in the evidence, the question of fact of total dependency becomes one of law only. However, they fail to cite any cases where this court has ever so held. On the contrary the following basic rule appearing in the opinion in McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071, written in 1925, has never been seriously challenged:
“The question of the degree of dependency, naturally, is a question of fact in each case.” (p. 690.)
Our continuing rule has been that if the evidence supports the finding of the trial court in regard to dependency, this court will not disturb such finding on appeal.
Botih parties comment upon the case of Wade v. Scherrer & Bennett Const. Co., 143 Kan. 384, 54 P. 2d 944, containing a detailed discussion on the subject of dependency and wherein may be found the following appropriate statement:
“The law makes the support of the child the duty of the parents, particularly of the father. The natural dependency is as strong or stronger than the legal dependency, but both exist.” (p. 393.)
The Wade case was cited with approval and followed in Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463. In the later case of Peters v. Peters, 177 Kan. 100, 276 P. 2d 302, where the trial court found that the daughter of decedent was the legitimate child of the parents and therefore entitled to a proportionate share of the compensation award, this court, in affirming the trial court’s award, stated:
“This court is committed to the rule that the degree of dependency in a Workman’s Compensation case is a question of fact [citations], that since its appellate jurisdicition in such cases is limited to questions of law trader the statute (G. S. 1949, 44-556), it will not disturb findings of such character made by the district court when there is any evidence to sustain them.” (p. 105.)
The above are not all of the cases cited by the parties in this appeal but we think they are sufficient to determine the matter before us. We believe the trial court’s determination that claimant was totally dependent upon his father had ample evidence to support it and the claim of respondents to the contrary was not supported by the authorities cited. There may have been some other evidence upon which the trial court could have made other findings but that is not our present concern in view of all that has been stated herein.
Judgment affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the order, decision, and judgment in an action upon an automobile insurance policy whereby the trial court allowed plaintiff an attorney fee in the amount of $400.00 as part of the costs.
Defendant was plaintiff’s insurer in regard to medical liability and $100.00 deductible collision coverage. On October 4, 1959, plaintiff’s 1954 automobile, a Nash Ambassador four door sedan, became a total loss as a result of collision wherein it was eventually learned the other vehicle was not covered by liability insurance.
In December, 1959, defendant’s adjuster offered to settle with plaintiff for $272.50 as the value of his automobile, which offer was refused by plaintiff. On January 18, 1960, the same offer was refused by plaintiff’s attorney. In the instant action, filed on December 20, 1960, it was alleged the car had a value of $750.00, and it was further alleged:
“6. Defendant has refused and neglected to pay plaintiff without cause or excuse, plaintiff’s claim for damages and plaintiff is entitled to a reasonable attorney fee under the law of Kansas, and a reasonable fee should be allowed by the court for services herein involved.”
Defendant’s answer was accompanied by a tender based on $272.50 as the value of the car, which was the median between the minimum value of $250.00 and the maximum value of $295.00 fixed by defendant’s appraisers.
The result of the trial was a verdict for plaintiff based upon the fair market value of the car being $300.00 as shown by the jury’s answer to the only special question submitted by the trial court.
Expert witnesses testified in regard to their opinions as to the amount a reasonable attorney fee for plaintiff’s attorney should be and within the limits set by the expert testimony, the trial court granted a fee of $400.00 and made the following statement:
“Yes, Well, I think in this matter apparently there is no question but what a fee should be allowed, and the motion therefore will be sustained and plaintiff's attorney will be allowed an attorney fee in the sum of $400.00.”
Defendant submits the two questions here for appellate review are:
“1. Did not the trial court err in allowing an attorney fee under the provisions of 40-256, since the evidence does not disclose that appellant refused without just cause or excuse to pay the amount of appellee’s loss and the court made no finding that appellant refused to pay without just cause or excuse?
“2. Did not the trial court abuse its discretion and err in allowing an attorney fee of $400.00 for appellee’s attorney? Is not such a fee unreasonable under the facts of the case, the amount involved, and the amount recovered, and does not it result in a penalty against appellant?”
Under the provisions of G. S. 1949, 40-201 defendant is an insurance company included in G. S. 1961 Supp., 40-256 which provides in pertinent part as follows:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in section 40-201 of the General Statutes of 1949 ... if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company . . . before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender, no such costs shall be allowed.” (Our emphasis.)
It is apparent from the record this case was fully tried by both sides including evidence of expert witnesses as to the reasonableness of an attorney fee for the amount of work done on behalf of plaintiff by his counsel. The authorities cited by the parties do not support defendant’s contention that an attorney fee must be in keeping with the amount recovered over the amount tendered. The real test is the value of the services performed by the attorney on behalf of his client. In our opinion this record does not bear out the statement of defendant in its brief that plaintiff’s own testimony proved that he was an unreasonable man; that just because he was able to sue an insurance company at no personal cost in view of G. S. 1961 Supp., 40-256, he was “going for broke.”
The record before us compels us to conclude the trial court did not err in allowing the attorney fee to plaintiff’s attorney and that the sum of $400.00 was not an unreasonable amount. Numerous authorities in support of this determination are to be found in 6 West’s Kansas Digest, Insurance, § 602.10, p. 261, and 1963 Cum. P. P., § 602.10, p. 21; 3 Hatcher’s Kansas Digest, rev. ed., Insurance, § 114, p. 314, and 1962 Cum. Supp. § 114, p. 54.
As to plaintiff’s claim for allowance of an additional attorney fee for services in this court, we are of the opinion the statute does not extend that favor under the facts and circumstances of this case and such claim is therefore denied.
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The opinion of the court was delivered by
Robb, J.:
This is an original proceeding in which petitioner seeks the issuance of a writ of habeas corpus releasing him from respondent’s custody.
The record reveals that on April 6, 1956, petitioner was sentenced by the Chase district court to a term of not to exceed ten years in the state penitentiary at Lansing. Although certain details of earlier events are included in the record, no question is raised concerning them and they need not be discussed herein.
On February 5, 1957, petitioner appeared before the then board of penal institutions and while he alleges he was released to the Dallas county sheriff’s office of Dallas, Texas, the record shows that on March 27, 1957, a parole contract was executed and entered into by petitioner and the board of parole of the state of Kansas. The contract provided for eleven specific rules governing prisoners on parole and further stated “Paroled To: Detainer: SO [sheriff’s office], Dallas Co., Texas.” It also provided that violation of the eleven rules, or of the law in any way, would violate the parole contract causing petitioner to be required to serve the remainder of his maximum term and that no part of the time from the date of delinquency to the date of his return would apply on his maximum term. Petitioner accepted the terms and conditions and signed the contract.
On October 14, 1957, the board of probation and parole revoked petitioner’s parole and ordered his arrest and return to the Kansas state penitentiary for completion of sentence subject to hearing before the board following his return.
By way of argument petitioner further alleges his surrender by the Kansas officers to the Texas officer amounted to a waiver of jurisdiction by the state of Kansas and any subsequent action taken by Kansas is, therefore, illegal. He relies on In re Jones, 154 Kan. 589, 121 P. 2d 219, but a careful reading thereof shows that case does not support his contention. The governor of Louisiana had issued a so-called “reprieve” for defendant and in the Jones opinion it was said:
“What is the effect of the admitted facts? It is that in refusing to return to the state of Louisiana appellee violated no condition attached to his release from the custody of officials of the state of Louisiana. The executive order of release was in the nature of a commutation of sentence. That was its legal effect.” (Our emphasis.) (p. 594.)
Defendant in the Jones case had in nowise participated in the Louisiana Governor’s executive release order nor had he agreed to perform any conditions with respect to his release. The opinion further stated that since the “reprieve” was only a commutation of sentence and did not constitute a parole, defendant had not violated any conditions of a parole.
In support of the state’s position on the other side of the propo sition, we find in Hunt v. Hand, 186 Kan. 670, 352 P. 2d 1, a full and complete treatment of the question which need not be repeated here except to say that petitioner there also was paroled under a contract on a detainer from another state, namely, Tennessee, where he was convicted of criminal charges, served time, and was released. Thereafter he became involved with law enforcement officials in the state of Oregon. The Kansas probation and parole board declared him delinquent and he was returned to Kansas and recommitted to the state penitentiary on the basis that, as in our present case, Kansas had not relinquished jurisdiction of him or waived any of its rights to enforce the provisions of his parole contract.
Subsequent events have occurred to petitioner in our present case but since he has not finished serving his original sentence in the state penitentiary, it would be surplusage and of no avail to discuss or undertake to determine any further questions now.
Our conclusion is that petitioner has failed to show any grounds that would justify his release.
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The opinion of the court was delivered by
Wertz, J.:
This was an action filed by plaintiff (appellee) Willard Dial, an individual doing business as Dial’s Service Station, against defendant (appellant) Freeto Construction Company, Inc., contractor on a road project in Harper county, and also defendant (appellant) Central Surety and Insurance Corporation which had joined the contractor in the execution of a bond binding itself to pay all indebtedness of the contractor incurred for supplies, labor and material furnished or consumed in connection with the construction of the highway the contractor had contracted to build. The action also joined as a defendant Harper Sand, Inc., a subcontractor of Freeto.
From an order of the trial court overruling their demurrer to the plaintiff’s amended petition on the ground it failed to state a cause of action, defendants have appealed.
The petition alleged in substance that plaintiff at all times pertinent hereto was engaged in selling gasoline, oils and accessories; that defendant Freeto, under written contracts with the State Highway Commission, was general contractor performing highway construction and improvement known as the Harper county project; that the defendant insurance company was engaged in writing insurance and surety bonds; that defendant Harper Sand, Inc. at all times mentioned had a subcontract with Freeto for supplies and materials, including furnishing, supplying, processing and hauling base materials used or consumed in connection with or in or about the construction of said highway project that had been let by the state to Freeto; that it was necessary for Harper Sand at all times in the performance of its contract with Freeto to use and consume gasoline, lubricating oils, fuel oils, greases and similar items, accessories, tires, tubes, repairs, labor and services, of the kind and character sold by plaintiff; that Harper Sand purchased from the plaintiff and incurred indebtedness for supplies and materials used or consumed in connection with the construction of the project for which the contract was let by the state to defendant Freeto, including gasoline, oils and motor vehicle equipment, all of which was used directly in carrying out the provisions of the contract for said highway project, for which Harper Sand agreed to pay; that Central Surety, as surety, and Freeto, as principal, executed their contract bond unto the State of Kansas, as required by G. S. 1949, 68-410, conditioned:
“Now, Therefore, If the Principal . . . shall pay all indebtedness incurred, whether by said Principal, subcontractor or otherwise, for supplies, material, or labor furnished, used or consumed in connection with or in or about the construction of the project for which said contract has been let, including gasoline, lubricating oil, fuel oils, greases, coal and other items used or consumed in carrying out the provisions of said contract, . . . then this obligation shall be void, otherwise shall remain in full force and effect.”
The petition further alleged that at the request of Harper Sand plaintiff sold or furnished materials and labor used or consumed in connection with or in or about the construction of said project for which the contract had been let to Freeto, including gasoline, oils, etc.
The petition set forth an itemized statement of the materials furnished and alleged a total amount due from Freeto, as principal contractor, and Central Surety, its surety, and the Harper Sand, Inc., as subcontractor, in the amount stated, and that by reason of the facts stated the defendants were jointly and severally liable for the amount due.
G. S. 1949, 68-410, in pertinent part provides that the person to whom a contract may be awarded shall give good and sufficient surety bond to be approved by the State Highway Commission in a sum fixed by the commission, but not less than the amount of the contract price, conditioned that such contractor will faithfully perform such contract in every respect, and conditioned further that such contractor or subcontractor of said contractor shall pay all indebtedness incurred for supplies, materials or labor furnished, used or consumed in connection with or in or about the construction of the project for which the contract has been let, including gasoline, lubricating oils and similar items used or consumed and used directly in carrying out the provisions of the contract; that when such bond has been so approved and filed, no mechanic’s lien shall attach by reason of the failure of the contractor or subcontractor to pay for or make settlement for the items covered by the act; and that any person to whom there is due any sum for labor or material or for any item covered by the act may bring an action on the bond for the recovery of the indebtedness.
This action is based on the aforementioned statute, Freeto’s contract with the state and the bond posted that fixed the terms and obligations of those signing it. Under the allegations of the petition and the terms of the bond attached thereto, the makers, Freeto and Central Surety, agreed to pay all indebtedness incurred for supplies, labor and material furnished and consumed in connection with the construction of the road. Our examination discloses the petition alleged plaintiff furnished materials and supplies used and consumed in the construction of the road, thereby stating a cause of action against both defendants, and the trial court did not err in overruling the demurrer to the petition. | [
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The opinion of the court was delivered by
Parker, C. J.:
This controversy involves the validity of an award under the workmens compensation act. The district court approved the award. The employer, Yellow Transit Freight Lines, Inc., hereinafter referred to as the employer, and its insurance carrier, Truck Insurance Exchange of The Farmers Insurance Group, hereinafter referred to as the insurer, have appealed.
On appeal the appellants challenge only the timely commencement of the proceeding with the workmen’s compensation director and the timely serving of the written claim for compensation on the employer by the workman, Randolph R! Ricker, hereinafter referred to as the claimant.
The undisputed facts pertinent to the determination of the foregoing limited issues may be briefly stated.
On Friday, May 13, 1960, at about his regular quitting time, claimant sustained an injury to his back while lifting a long, heavy crate in the course of his regular employment with the employer. He continued to work until quitting time. Claimant informed his dock foreman, Dixon, of tire accident about seven days subsequent to May 13, 1960. He also gave that information to Mayhue, his terminal manager. .
On August 26, 1960, claimant was given a temporary release from work in order that he might have a tonsillectomy. He did not return to his employment.
Subsequently, and on May 3, 1961, he made a written demand for compensation on his employer. Thereafter, and on May 5,1961, the workmen’s compensation director received the employer’s accident report. Later, and on June 9, 1961, an application for hearing was filed with the workmen’s compensation director. .
The employer paid no compensation and furnished no medical assistance prior to the hearing for workmen’s compensation.
It is stipulated that the employer “was not prejudiced should it be determined that the ten day notice had not been received by the respondent.” Moreover, the record discloses an express finding by the director to the effect such notice was received by the employer (respondent) within that period of time is supported by substantial evidence.
Appellants further state in their brief that “for the purpose of this hearing, the respondent (employer) is not raising any issues relative to the injury or the amount of compensation due.”
The workmen’s compensation director concluded that the written demand for compensation was made within time and was sufficient under the statute, and made an appropriate award. The district court made findings and conclusions in harmony with those of the Director and sustained the award.
The appellants contend that the claimant did not commence his proceedings before the Director in a timely manner as required by G. S. 1961 Supp., 44-557, and also that he was barred from receiving compensation because he did not serve his employer with a written claim for compensation within the time required by G. S. 1961 Supp., 44-520a.
The two contentions are closely related and the statutes to be considered are applicable to each.
As originally enacted in 1927 (Laws 1927, Chap. 232, Sec. 54.) the section of the statute, requiring employers to report accidents or claimed accidents to employees, provided, so far as here material, as follows:
“It is hereby made the duty of every employer including employers electing not to come under this act, to make or cause to be made a report to the commission of any accident, or claimed or alleged accident, to any employee which occurs in the course of his employment and of which the employer or his foreman has knowledge, within seven (7) days, after the receipt of such knowledge: Provided, That such accidental injuries are sufficient wholly or partially to incapacitate the person injured from labor or service for more than the remainder of the day, shift or turn on which such accidental injury was sustained, which report shall be made upon a form to be prepared by the commission . . . Provided further, . . . Any employer who refuses or willfully neglects to make any report required by this section, shall be guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not more than five hundred ($500) dollars for each offense.”
This section was amended in 1957 by adding the following provisions:
“Provided further, That no limitation of time in this act provided shall begin to ran unless a report of the accident as hereinbefore provided has been filed at the office of the Kansas workmen’s compensation commissioner if the injured workman shall have given his notice of injury as provided by section 44-520 of the General Statutes of 1949: Provided, however, That any proceeding for compensation for any such injury or death, where report of accident has not been filed, must be commenced before the commissioner within one year from the date of the accident, suspension of payment of compensation, or death of such employee referred to in section 5 [*] hereof.” (Now G. S. 1961 Supp. 44-557.)
The provision of G. S. 1949, 44-520, to which the above quoted section refers was enacted in 1927 (Laws 1927, Chap. 232, Sec. 19) and has not been amended. It provides:
“Proceedings for compensation under this act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, shall have been given to the employer within ten (10) days after the accident: Provided, That actual knowledge of the accident by the employer or by his duly authorized agent shall render the giving of such notice unnecessary: Provided further, That want of notice or any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.”
The act of 1927 (Laws 1927, Chap. 232, Sec. 20) also contained the following provision:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within ninety (90) days after the accident, . . .”
The foregoing provision is now G. S. 1961 Supp., 44-520a. Such provision remains the same except the ninety days for serving the written claim has been changed to one hundred eighty days.
We will first consider the following question presented by appellants:
“Was the claimant barred from receiving compensation because of his failure to serve the respondent with written claim for compensation within 180 days from the date of the alleged accident as required by G. S. 1961, Supp., 44-520a, and G. S. 1961, Supp., 44-557?”
Appellants contend that even though the employer has actual notice, or is given notice by the employee under the provisions of G. S. 1949, 44-520, the employer has no duty to report the accident to the Workmen s Compensation Director unless “such accidental injuries are sufficient wholly or partially to incapacitate the person injured from labor or service for more than the remainder of the day, shift or turn on which such accidental injury was sustained.”
We cannot agree with the foregoing contention. The appellants rely on the first proviso of G. S. 1961 Supp., 44-557, but ignore the first of the two provisos that were added to that section in 1957. The first proviso so added must be given effect. It provides:
“That no limitation of time in this act provided shall begin to run unless a report of the accident as hereinbefore provided has been filed at the office of the Kansas workmen’s compensation commissioner if the injured workman shall have given his notice of injury as provided by section 44-520 of the General Statutes of 1949: . . .”
Knowledge of the accident by the employer or his duly authorized agent, or notice to the employer within ten days of the accident is all that is required by G. S. 1949, 44-520. When the employer or his agent has knowledge of the accident all limitations in the act are suspended if the employer fails to file a report of the accident as provided for in G. S. 1961 Supp., 44-557. The record in this case discloses the claimant (employee) notified his dock foreman of the accident within seven days after it occurred.
G. S. 1961 Supp., 44-520a, is not mentioned as a notice requirement in G. S. 1961 Supp., 44-557. It is therefore one of the limitations of time, in the act, which does not begin to run unless the employer files a report of the accident at the office of the workmen’s compensation director.
The employer having failed to file the report of the accident, there was no time limit in which the claimant (employee) must serve written claim for compensation on it, except as necessary to commence proceedings for compensation before the Workmen’s Compensation Director within one year.
There are a number of recent cases touching on this question. In Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235, it is said and held:
“It is definitely stated in 44-557, supra, that if the employer or his foreman has knowledge of an accident occurring to any employee in the course of his employment, notice must be given as provided in the statute. The emphasized clause quoted in 44-520, supra, excuses an injured workman from giving notice where the employer has actual knowledge of the accident. We interpret the last clause of the first proviso, emphasized in 44-557, as one requiring the employee to give notice of injury in compliance with the provisions of 44-520, unless he is excused from the giving of such notice as provided therein. In other words, if the employer has actual knowledge of the accident, the injured workman is excused from giving the notice required, and failure of the employer to file a report of accident with the commissioner of an accident to an employee, which occurs in the course of his employment, extends the limitation of time within which to commence a proceeding under the workmen’s compensation act to one year as set forth in the second proviso of 44-557.” (pp. 735, 736.)
See, also, paragraphs 3 and 4 of the syllabus in the Wilson case.
Later in Kronig v. Nolan Motor Co., 186 Kan. 534, 351 P. 2d 1, we said:
“The appellants contend the claim was not made as required by law. It was admitted the employer had actual notice of the accident on January 8, 1958, but no report of the accident was filed with the workmen’s compensation commissioner by the employer until the 7th day of October, 1958. Claim was filed by the appellee workman on the 18th day of October, 1958, pur suant to a notice which he received from the workmen’s compensation commissioner. This claim was filed within one year of January 8, 1958, and was therefore filed in time under the provisions of G. S. 1957 Supp., 44-557 (now G. S. 1959 Supp., 44-557). This section of the workmen’s compensation act was before the court in Wilson v. Santa Fe Trail Transportation Co., supra.
“Here the employer was given notice of injury on the day of the accident by the workman, and the employer did not make a report of the accident to the commissioner within seven days thereafter as required by the provisions of 44-557, supra. The workman upon receiving the injury worked a short while and then left his employment, being incapacitated for the remainder of the day and for a total of thirteen weeks thereafter, beginning March 22, 1958, when he was operated by Dr. Hastings. Under these circumstances the limitation of time within which the workman is entitled to commence a proceeding under the workmen’s compensation act is extended to one year as provided in 44-557, supra. The appellee therefore filed his claim as required by law.” (pp. 536, 537.)
See, also, Anderson v. Air-Capitol Manufacturers, 190 Kan. 106, 372 P. 2d 294; Almendarez v. Wilson & Co., 188 Kan. 303, 362 P. 2d 1.
Tbe final question, as presented by appellants, reads:
“Did the claimant, appellee herein, commence his proceeding before the Director in a timely manner as required by the Workmen’s Compensation Act, G. S. 1961, Supp., 44-557?”
Appellants contend that the accident ocurred on May 13, 1960, and that the proceeding for compensation was not commenced within one year thereafter as required by G. S. 1961 Supp., 44-557, when the employer fails to file a report of the accident.
It is conceded that claimant (appellee) served a written demand for compensation on his employer May 3, 1961, and that the Workmen’s Compensation Commissioner, now Workmen’s Compensation Director (see Laws 1961, Chapter 243, Section 7, [effective June 30, 1961], now G. S. 1961 Supp., 74-710), received the employer’s accident report on May 5, 1961, all within one year from the date of the accident. The claimant’s application for hearing was not filed with the workmen’s compensation commissioner until June 9, 1961.
The question may be simplified. Is a distinction to be made between tire filing of a written claim with the employer and the commencement of the proceeding before the workmen’s compensation commissioner (now director) or is the written claim for compensation served by the claimant on the employer a commencement of the proceeding before the Workmen’s Compensation Commissioner?
There are no specific precedents to guide us in the determination of the pending issue. In the cases heretofore cited it appears to have been assumed that if written claim for compensation has been filed with, or we may add served on, the employer within time, proceedings under the workmen’s compensation act had been commenced. (See, e. g., Wilson v. Santa Fe Trail Transportation Co., supra; Kronig v. Nolan Motor Co., supra; Almendarez v. Wilson & Co., supra.)
G. S. 1949, 44-534, provides that in default of agreement either party may in writing apply to the commissioner for a determination of the compensation due or claimed to he due, said application for hearing to be in form as prescribed by the rules of the Commissioner and shall set forth the substantial and material facts in relation to said claim. We may look to the rules as an aid in determining the manner of proceeding before the workmen’s compensation director for a hearing and compliance with G. S. 1961 Supp., 44-557.
The procedure and rules pertaining to administration of the law, filed with the Revisor of Statutes, are set forth in the manual provided by the workmen’s compensation commissioner, Rule 51-1-7 provides:
“Form E-l, Application for Hearing and Claim for Compensation. This form is to be on light green paper, size 8% x 11 inches, and will be furnished by the Commissioner. Form E-l is as follows: [Authorized by G. S. 1935, 44-534 and 44-601, et seq.; compiled, January 1, 1948, amended, Aug. 13, 1953; amended July 1, 1955.]” (p. 75.)
The form states at the bottom — “Workmen Requesting a Hearing should File This Application With the Commissioner.” It adds— “This Application is a Written Claim for Compensation When Served on the Employer Personally or by Registered Mail.”
If a written claim for compensation has not been served on the employer, the employee must file an application for hearing and serve a copy upon the employer within one year from the date of the accident. This is necessary under the provisions of G. S. 1961 Supp., 44-557, providing:
“. . . That any proceeding for compensation for any such injury or death, where report of accident has not been filed, must be commenced before the commissioner within one year from the date of the accident, . . .”
The knowledge of the employer that an accidental injury has occurred does not, standing alone) invoke the operation of the pro visions of the act. It simply suspends the commencement of the limitations provided in the act if the employer does not file a report of the accident and gives the employee one year in which to commence the proceeding.
The purpose of the provision last quoted is to require the employee to make a positive claim in writing, within one year, if he desires to seek recovery under the act, even though the employer has actual knowledge of the accident.
The phrase “commenced before the commissioner” should not, however, be given a strained construction which would destroy the purpose of the other provisions of the act. The rule that the workmen’s Compensation Act is to be liberally construed in order to effectuate legislative intent and purpose in its enactment is so well-established as to require no citation of our decisions supporting it.
Where a written claim has been previously served on the employer, the application is nothing more than a request for a hearing. A request for a hearing follows a pending proceeding. The proceeding is commenced when the employee serves written claim upon the employer for compensation and the employer is required by statutory fiat to file a report with the Workmen’s Compensation Director. A proceeding for workmen’s compensation is invoked when the employee serves notice upon his employer of his claim for compensation. Davis v. Reed, 188 Kan. 159, 163, 360 P. 2d 847.)
In Clark v. Tucker Electric Co., 185 Kan. 580, 345 P. 2d 620, we make the following statement:
“However, it must be remembered that the employer could call up the claim for hearing just as a defendant in the district court may insist that a case pending against him be heard (Rule 51-3-5 of the workmen’s compensation commissioner filed in office of the revisor of statutes).” (p. 585.)
Support for the conclusions just announced in connection with the question now under consideration, at least from the standpoint of indicia of legislative intent, is to be found in the statutory enactment (Laws 1953, Chap. 246) extending the Workmen’s Compensation Act to cover certain occupational diseases. See G. S. 1961 Supp., 44-5al7, which, so far as here pertinent, reads:
“. . . If no claim for disability or death from an occupational disease be filed with the workmen’s compensation commissioner or served on the employer within one (1) year , . . the right to compensation for such disease shall be forever barred. . . .” (Emphasis supplied.)
In view of what has been heretofore stated and held we are constrained to hold that the instant proceeding was commenced and the matter pending when the written claim for compensation was served on the employer and it had a definite statutory obligation to file its report. Nothing remains for either party except to call the matter up for hearing before the Workmens Compensation Director.
Once the proceeding was commenced, the claimant had three years in which to make application for a hearing before the Director. Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471; Clark v. Tucker Electric Co., supra.)
The written claim of claimant was served on the employer in time and the proceeding was commenced and prosecuted before the Workmen’s Compensation Director in a timely manner.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action in the nature of a judgment creditors bill to set aside a conveyance, or in the alternative, to impress an equitable lien upon the real estate. Upon stipulations of the parties at a pretrial conference the trial judge held the action was barred by the doctrine of res judicata.
The determinative question presented on appeal is whether the trial court erred in holding that the action was barred by the doctrine of res judicata.
An understanding of the issues presented by the pleadings may be simplified by stating the chronological sequence of events leading up to this action as set forth in the various pleadings.
On the 19th day of September, 1960, the Jayhawk Equipment Company, a corporation (appellant) filed an action in the district court of Shawnee County, Kansas (Case No. 87,658) and alleged in substance that in May, 1959, it had sold equipment to Delbert Mentzer and Wilma A. Mentzer (appellee) husband and wife, d/b/a Lariet Drive-In, and that the sum of $3,463.83 plus interest was due Jayhawk by both defendants.
While the above action was pending, Wilma on the 28th day of November, 1960, filed an action for divorce against Delbert (Case No. 88,111) in the district court of Shawnee County, Kansas.
On the 29th day of November, 1960, Delbert made a voluntary entry of appearance in the above divorce action.
On the 30th day of November, 1960, Wilma and Delbert entered into a written property settlement agreement wherein Delbert set over to Wilma as her separate property, free and clear of any and all claims, "All of the right, title and interest in and to the real estate and building known as Lariet Drive-In at 29th and California Avenue, Topeka, Kansas,” (the property which is the subject of this litigation) among other property.
On the 1st day of December, 1960, Wilma made an application for an order declaring an emergency in the divorce action. In this application she set forth that in the early part of 1959 Delbert purchased the ground and built a drive-in restaurant, which was furnished with restaurant equipment, at 29th and California Streets in Topeka, Kansas; that as a result of the purchase of the equipment a disagreement arose with the Jayhawk Equipment Company; that she attempted to assist Delbert in the operation of the drive-in, but the operation was not successful financially, and in August, 1959, Delbert became quite disturbed and upset over the parties’ debts and obligations. Wilma further stated in the application she had to close the drive-in; that a legal action was pending in the Fourth Division of Shawnee County against herself and Del bert; that Delbert needed medical attention and was going to Winter General Veterans Hospital for treatment, and “that something immediately must be done concerning the sale and disposition of the drive-in and its equipment or this property will be lost.”
As a result of the foregoing application the district court on the 1st day of December, 1960, entered an order for emergency, and on the same date heard the divorce action and granted Wilma a divorce. In the decree Wilma was awarded property as follows: “All of the right, title and interest of the parties in and to the personal and real property set forth in said property settlement and defendant is barred from claiming any interest in and to said real and personal property and plaintiff is specifically awarded all of the right, title and interest in and to the building and real estate as decribed in said property settlement as the Lariet Drive-In at 29th and California Streets, Topeka, Kansas.”
The foregoing divorce proceedings were commenced and concluded during the pendency of the action filed by Jayhawk on September 19, 1960. In Jay hawk’s action against Delbert and Wilma the district court on tire 9th day of November, 1960, sustained a motion to make definite and certain filed by Wilma. Thereafter on the 28th day of February, 1961, Jayhawk filed an amended petition which did not in substance change the allegations of the original petition.
Wilma, on the 31st day of March, 1961, filed her separate answer to Jayhawk’s action, specifically denying that she contracted with or requested Jayhawk to furnish any equipment or materials for the drive-in; and further denying that she was in the business of operating the drive-in, but alleged on the contrary that any arrangements and purchases made at the drive-in were made by Delbert; and that she had no interest of any kind in the drive-in, other than as ihe wife of Delbert.
Issues were joined by the reply on the 19th day of April, 1961, and the case was tried the 27th day of April, 1961, at which time judgment was entered for Jayhawk against Delbert for the full amount sought. The trial court found, however, that Wilma was not a partner of Delbert in the operation of the drive-in restaurant, and was not a party to the contract of purchase of the equipment involved in the action. And while the trial court overruled the demurrer of Wilma to the evidence, it entered judgment in her favor against Jayhawk.
On the 3rd day of May, 1961, the action presently before this court on appeal was filed by Jayhawk against Wilma requesting “that the property settlement agreement entered into between Wilma A. Mentzer and Delbert Mentzer whereby Delbert Mentzer conveyed all of his interest in and to the building and real property hereinbefore described and the divorce decree approving said agreement be declared null and void or that plaintiff’s judgment set out herein be declared as a lien upon the real property and premises hereinbefore set out and described, and for such other relief as is just and equitable.”
The petition alleged in substance the foregoing facts; that Delbert was wholly insolvent; that at the time Wilma filed the divorce action she and Delbert were fully aware of the pending action between Jayhawk and Delbert and herself; and that the pending action was for money due on equipment installed in the drive-in. It further alleged that Wilma was well aware that the transfer left Delbert wholly insolvent and with no means or property to satisfy Jayhawk as a creditor; that the property settlement agreement was a conveyance made without consideration and for the purpose of hindering and defrauding Jayhawk as a creditor of Delbert, as Wilma then knew; and that the reasonable value of the property described as the Lariet Drive-In was approximately $17,000. It alleged:
“11. That said property settlement agreement was a scheme and device to fraudulently take and dispose of the property herein described to the detriment of the plaintiff herein and that plaintiff has no remedy at law.”
Wilma in her answer alleged the action was barred by the doctrine of res judicata. She set forth the essential facts regarding the divorce proceedings and the property settlement agreement; and that Jayhawk subsequently filed an amended petition in this action, when Jayhawk in fact “knew that a divorce had been granted approximately three months previous to ihis answering defendant.” The answer further alleged:
“This answering defendant further alleges that all matters now alleged in the present action pending could have been alleged and litigated in said previous action being case No. 87658 and by reason of said plaintiff failing to so allege said matters that this present action is barred by the doctrine of res judicata as all matters presented in this present action are between identical parties and by reason of judgment being rendered for defendant in said previous action, No. 87658, that this present action should be dismissed.”
In the event the defense of res judicata was not sustained, the answer further alleged that Wilma and Delbert were divorced, and she was awarded all of the interest of Delbert to the Lariet Drive-In, but that she was the owner of an undivided one-half interest in and to said real estate prior to any and all actions filed by Jayhawk against her or Delbert. The answer further denied that the property settlement was a scheme or device to fraudulently take or dispose of the real property without consideration.
Issues were traversed and the case presented to the trial court on the 20th day of October, 1961, at which time the parties stipulated that all evidence of a documentary nature, being the court files which contained all pleadings and papers in the above cases heretofore mentioned, could be considered by the court in ruling upon the issue as to whether Jayhawk’s action was barred by the doctrine of res judicata. The trial court took the ruling under advisement requesting the parties to present pretrial briefs, after which, on the 7th day of December, 1961, the court found that the action herein was barred by the doctrine of res judicata.
Although the parties in their briefs suggest many legal questions, the point determinative of this appeal is whether the issues presented by the pleadings in this action are res judicata, when considered in view of the documentary evidence which has been stipulated. It should be noted this was a pretrial order of the district court which dismissed the appellant’s action. Other evidence which the appellant may have was never introduced or presented in the trial court.
The doctrine of res judicata is plain and intelligible, and amounts simply to this — that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal cannot afterwards be litigated by a new proceeding, either before the same or any other tribunal.
It is a general rule of law, indeed an elementary one in this jurisdiction, that in a lawsuit between litigants in their ordinary capacity, so far as relates to a subsequent action on the same claim, not only is everything adjudicated between them which the parties may properly choose to litigate, but also everything incidental thereto which could have been litigated under the facts which gave rise to the cause of action. (Snehoda v. National Bank, 115 Kan. 836, 840, 224 Pac. 914; Fletcher v. Kellogg, 125 Kan. 330, 263 Pac. 1048; Kearny County Bank v. Nunn, 156 Kan. 563,134 P. 2d 635; and authorities cited in these decisions.)
In Gray v. Johnson, 150 Kan. 276, 92 P. 2d 46, it was said:
“Few, if any, courts have gone further than this court in applying the doctrine of res judicata. It has been said repeatedly that a judgment entered in a prior action between the same parties who are litigants in a subsequent action and involving the same essential cause of action determines not only the matters formally stated as determined by the judgment, but all questions directly involved in the controversy which might have been raised in the prior action. . . .” (p. 279.)
Aside from other elements entitled to consideration under the doctrine of res judicata, we must first determine whether or not the issues in the present action could have been litigated in the former action.
In the former case the issue was whether or not either or both of the defendants, Delbert and Wilma, were indebted to Jayhawk for goods and merchandise received. The issue in the present case is whether or not Jayhawk is entitled to an equitable lien on the described property which was conveyed by the judgment debtor, while an action against him was pending but before the judgment was obtained.
A short approach as to whether the issue in this action could have been litigated in the former action is to determine whether the two causes of action could have been joined.
On the subject of misjoinder it was said in Springer v. O’Brien, 164 Kan) 461, 190 P. 2d 341:
“. . . As the decisions above noted indicate, generally inconsistent causes of action cannot be united and from those decisions it may be deduced that the main test of inconsistency is repugnancy and contradictoriness, as distinguished from the statement in the form of different causes of what is essentially only one cause of action, and that whether there is repugnancy or contradictoriness is determined by the general test, does proof of one cause disprove the other.” (pp. 464, 465.) (Emphasis added.)
Had Jayhawk in the former action requested the court to set aside the conveyance to Wilma, it would have had to prove Wilma was not bound upon the purchase contract in the case then pending. Jayhawk had already alleged that Wilma was bound along with Delbert, her husband. The appellee herein recognizes this fact in her brief when she says: “If appellant had been successful in that case and had obtained judgment against Wilma Mentzer, then of course this divorce and property settlement would not have been material because Wilma Mentzer, being the owner of the property, would have been liable for plaintiff’s judgment and a levy could have been made upon the real estate in question and restaurant equipment.”
An attempt to prove that Wilma was liable on the contract in the one cause would necessarily repudiate the requirement that Jayhawk disprove Wilma’s liability in the other. The two causes of action are thus repugnant. Proof on one cause of action would necessarily disprove the other cause. A clear case of misjoinder would thus have been encountered. We think it clear that the issue presented by the instant action could not have been litigated in the former, and this action is not res judicata.
Grounds for recovery in an action are not inconsistent with each other when one does not defeat the other, and the truth of one does not disprove the truth of the other. (Ondrasek v. Ondrasek, 172 Kan. 100, 103, 238 P. 2d 535; and cases cited therein.)
In conclusion we hold the trial court erred in dismissing the appellant’s action on the ground that it was barred by the doctrine of res judicata. Our decision is limited solely to this point and should not be construed as going any further.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Robb, J.:
The appeal in case No. 43,169 is from the trial court’s judgment denying the probate of decedent’s will, from orders overruling the executor’s motion for new trial and to set aside the trial court’s findings of fact, and from the further order allowing an attorney’s fee to the opponent of the will. The appeal in case No. 43,184, actually a cross-appeal and for that reason consolidated with the original appeal for appellate review, is from the trial court’s order allowing attorney fees to the executor.
The decedent, Mary S. Winn, had lived with her only daughter and heir, Lelia Howerton, since the death of Lelia’s husband in 1941. In November, 1960, Lelia, who was seventy-five years of age, became physically and mentally ill and early in December, 1960, she was taken to the hospital where she remained until December 31, 1960, when she was removed to a rest home in Winfield. A will executed by Lelia on March 15, 1960, but never witnessed, was found among Lelia’s papers.
On January 10, 1961, Lelia died and the inventory and appraisal of her estate indicated she owned personal property valued at $4,185.35 and that she and Mary, as joint tenants or tenants in common, owned real and personal property valued at $17,193.62.
Mary, who was ninety-five years of age, had suffered a stroke some three years before. She was paralyzed on the right side, hard of hearing and had very poor eyesight. During the afternoon of December 31, 1960, when Mary was preparing to go to live in the home of a niece, Veva Schwyhart, in Winfield, since Lelia was to be in a rest home there, Mary asked Arthur Kliewer to prepare a will for her. Thereafter Kliewer prepared Marys will by copying the formal paragraphs from samples he had including one drawn earlier for Mary by Mr. Sizemore, an attorney, which had never been executed by Mary. Kliewer then wrote in the bequests Mary desired to make as Mary instructed him to do. At Mary’s request, he called her neighbors, James M. and Alma E. Flummer, to witness the will. They both inquired of Mary if she knew and understood what was in the will and if it was all right. She answered that she did and thereupon Mary properly executed the will in the presence of the Flummers and they signed as attesting witnesses.
Mary had a number of nieces, nephews, grandnieces, and grandnephews, but we shall mention only those pertinent to this appeal. One niece, Daisy Maurer, the opponent of the will and appellee here, is the daughter of a prior deceased brother of Mary. Another niece, Veva Schwyhart, is the daughter of a prior deceased sister of Mary. James Davey, one of Daisy Maurer’s witnesses, is the grandson of a brother of Mary’s deceased husband, and therefore is not related to Mary. Earl A. Howerton is a brother of Lelia’s deceased husband, Lura Howerton is Earl’s wife, and Betty Howerton Kliewer, wife of appellant, is Earl’s daughter. In actual fact, neither the Howertons nor the Kliewers are related to Mary.
Mary’s will in pertinent part provides:
“First: I direct that all of my just debts, expenses of my last illness, funeral expenses, and expenses of administration be paid by my executor.
“Second: A $5,000.00 Insurance policy with Mutual Life Insurance Co. of New York goes to E. A. or Lura Howerton of 412 Magnolia, Newton, Kansas.
“Third: My 1% carat diamond ring goes to Lura Howerton; my twin diamond ring one carat each goes to Betty Howerton Kliewer. Also my platinum ring with 3 diamonds and white gold ring with 3 diamonds goes to Betty Howerton Kliewer of 901 So Pine, Newton Kansas.
“Fourth: My paintings, pictures, china and glassware goes to Earl & Lura Howerton and Betty and Arthur Kliewer.
“Fifth: All other property, personal or real shall be disposed of by my executor, hereinafter named and after all bills and expenses have been paid, then K (one-half) of the residue shall go to Earl and Lura Howerton, 412 Magnolia Newton Kansas and (one-half) shall go to Veva Schwyhart, 814 E. 11th St., Winfield Kansas.
“Sixth: I hereby nominate and appoint Earl Howerton as executor of this my last Will and Testament; and in the event that he should, for any reason, fail to qualify as such executor or should be unable to continue to serve as executor then and in that event, I hereby nominate and appoint Arthur H. Kliewer as executor or successor executor of this, my last Will and Testament, either of said persons to serve without bond.
“I hereby give and grant my executor or successor executor full power and authority to control, manage, sell, mortgage, pledge, or lease for any purpose and for any length of time, or otherwise dispose of my estate and all or any part of my property for any purpose whatsoever as he may see fit and without being required to obtain any order therefor from any probate or other court, upon such terms, in such manner, and at such times as to him seems most advantageous to the estate.
“In Witness Whereof, I, Mary S. Winn have hereunto subscribed my name to this, my last Will and Testament, this 31st day of December, 1960.
“Mary S. Winn
“Testatrix
“We, the undersigned, do hereby certify that the foregoing instrument was at this time therein stated signed, declared and published by Mary S. Winn as and for her last Will and Testament in the presence of us, and each of us, at her request, in her presence, and in the presence of each other, have hereunto subscribed our names as witnesses the day and year last above written.
“James M. Flummer
“Witness
“415 N. Clifton
“Mrs. Alma E. Flummer
“Witness
“415 N. Clifton
“Wichita”
Eight witnesses, including Mary’s doctor, the two attesting witnesses to Mary’s will, her niece, Veva Schwyhart, and Veva’s son, Darwin Schwyhart, testified that on December 31, 1960, Mary was competent, she knew the extent of her property, she directed how bills were to be paid, and she told the attesting witnesses to her will she knew what was in the will, that it was the way she wanted it, and she personally requested them to witness her signature.
The trial court properly overruled defendant’s demurrer to plaintiff’s evidence and defendant introduced the testimony of Mr. and Mrs. James Davey who had known Mary and Lelia for twenty-six years. Their testimony was to the effect that Mary was paralyzed on the right side and was hard of hearing; that either Mrs. Davey or her daughter visited Mary every day; Mary cried whenever the subject of her leaving her home was mentioned; she wanted to be with Lelia because she was concerned about her but she did not want to go to the home of her niece, Veva Schwyhart, in Winfield.
The Daveys further testified Mary did not know the extent of her property or to whom it rightfully should go although she did know who her relatives were; on December 31, 1960, when Mary left for Winfield, she understood Mrs. Davey’s questions when she heard them, even though she was very hard of hearing, and apparently gave intelligent answers; the only time Mary did not give correct “Yes” or “No” answers was when she did not hear the question; the Daveys had called their own doctor in on the case to relieve Mary’s doctor; Mr. Davey had explained the change of doctors to Mary and she seemed to understand it all right; Mary had talked about their shortage of money and had said they could not afford the big meals Veva prepared for them.
The trial court’s formal journal entry of judgment contained the three following findings:
“That the deceased, Mary S. Winn, on the 31st day of December, 1960, executed the will offered for probate herein, and acknowledged the same as her Last Will and Testament, in the presence of James S. Flummer and Alma E. Flummer. However, the Court finds that Mary S. Winn did not write the will, nor did she dictate the will.
“The Court further finds that Mary S. Winn did not read the will, nor was the will read to her.
“The Court further finds that Mary S. Winn did not know the contents of the will at the time she executed it and acknowledged it as her Last Will and Testament.”
The trial court ordered that the will be denied for probate.
Kliewer, the petitioner below and appellant here, moved for new trial and to strike the findings of fact because they were not supported by the evidence and were in direct contradiction to the believable, consistent, and unimpeached testimony and evidence. These motions were in due course of time overruled by the trial court.
On appropriate motions, attorney fees for Kliewer, as well as for Daisy’s counsel, were allowed for their services in both the probate and district courts. This appeal followed.
Appellee contends appellant’s testimony shows that in her will Mary specifically bequeathed property she did not own, or have an interest in, and this indicates she did not know the property she possessed. She further contends this raises another question as to whether Mary could specifically bequeath and devise property she did not own or have an interest in but which she later acquired by virtue of the death of Lelia.
G. S. 1949, 59-601, provides as follows as to who may make a will:
“Any person of sound mind, and possessing the rights of majority, may dispose of any or all of his property by will, subject to the provisions of this act.”
If decedent, under G. S. 1949, 59-602, lacked testamentary power to will certain items of property at the time she executed her will, such bequests would, of course, be void. (See, also, 1 Rartlett’s Kansas Probate Law and Practice, rev. ed., §361, p. 421.) However, property Mary subsequently acquired because she was Lelia’s only hem at law would be subject to the terms of her will. We are, therefore, of the opinion this contention of appellee does not support the trial court’s finding that Mary did not know the contents of her will at the time she executed it.
Another contention of appellee is that it cannot be argued a ninety-five year old woman, who was paralyzed on one side and had suffered several strokes during the three years preceding her death, had any expectancy in the estate of her daughter. The record before us discloses the mother actually survived her daughter for a period of twelve days and that she was her daughter’s only heir at law. Under such circumstances no judicial body could make a finding based on a contrary presumption.
This brings us to the paramount question before us. It may be divided into three parts: Was there any evidence to support the trial court’s findings? Were those findings material in a proceeding seeking to admit a decedent’s will to probate? If the findings were material, did the trial court disregard the only evidence thereupon and make a directly opposite determination? As to the first finding, no authority is presented by the parties, and our diligent research has produced none, that a finding the decedent did not write the will and did not dictate the will would justify the court in denying probate thereof. The same is true of the second finding that decedent did not read the will nor was it read to her. However, the third finding that decedent did not know the contents of the will at the time she executed it is more in the nature of a conclusion and may be said to be of some materiality. The record shows abundant testimony on the part of appellant’s witnesses that Mary knew the contents of the will that she signed, executed, and had attested by two competent witnesses and appellee did not object to nor move to strike any of such testimony. As to the presumption such testimony was considered by the trial court, rule 53 of this court was discussed in In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359, and it was there held:
“Rule 53 of this court which reads, ‘In trials before the court, without a jury, where evidence is admitted over proper objections, and not stricken out on timely motion therefor, it shall be presumed that such evidence was considered by the court and entered into its final decision in the case/ has no application in the absence of a timely motion to strike the objectionable testimony.” (Syl. ¶ 3.) (Our emphasis.)
A demurrer lodged against appellant Kliewer s testimony was overruled by the trial court and thus there are two reasons why the trial court should be presumed to have considered this evidence. Neither of the Daveys testified that Mary did not know the contents of the instrument she signed, and we cannot put such words into their mouths. Appellee makes the statement that appellant could have called Earl Howerton as a witness because Earl was present when the will was written. Such was not appellant’s burden as is shown by the rule set out in In re Estate of Walter, 167 Kan. 627, 208 P. 2d 262, where this court said:
“When a will is offered for probate, and the proponents have offered substantial competent evidence that it was executed according to law and that the testatrix at the time it was executed had testamentary capacity, those who oppose its probate have the burden of proof of any defenses alleged.”
(Syl. f 1.)
See, also, In re Estate of Smith, 168 Kan. 210, Syl. ¶ 6, 212 P. 2d 322.
On this same point appellant directs our attention to In re Estate of Koellen, 162 Kan, 395, 396, 176 P. 2d 544, where it was held:
“While it is 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, however, is only a prima facie one and may be rebutted.” (Syl. IT 8.)
The record is clear that the trial court disregarded the evidence offered and admitted as to Mary’s knowledge of the contents of the will she executed. This the trial court could not do by reason of our long-established rule set out in In re Estate of Erwin, 170 Kan. 728, 733, 228 P. 2d 739, cited with approval in our recent case of Lorbeer v. Weatherby, 190 Kan. 576, 376 P. 2d 926, as follows:
“A jury is not authorized arbitrarily or from partiality or caprice to disregard uncontradicted and unimpeached testimony, nor to disregard the only evidence upon a material question in controversy and return a verdict in direct opposition.” (p. 580.)
The above would, of course, apply to the trial court.
In view of the foregoing authorities, as well as those to be found in 9 West’s Kansas Digest, Wills, 1963 Cum. P. P. § 289, p. 65, § 302 (1), p. 66, we conclude the trial court erred (1) in disregarding the testimony of appellant and also that of the two attesting witnesses that decedent knew the contents of her will at the time she executed and acknowledged the will, which was the only evidence offered thereon, and (2) the trial court further erred in making a directly opposite finding that decedent did not know the contents thereof.
Both parties strenuously object to the allowance of attorney fees to counsel for the opposing side in the court below but appellate courts are committed to the rule that such matters are within the discretion of the trial court and we shall not disturb the allowances. (In re Estate of Reynolds, 176 Kan. 254, 258, 270 P. 2d 229; In re Estate of Sowder, 185 Kan. 74,340 P. 2d 907.)
The judgment of the trial court is reversed with directions to admit the will to probate.
Schroeder, J., not participating. | [
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The opinion of the court was delivered by
Jackson, J.:
This is really a second appeal in the case of In re Estate of Goff, No. 42,894, this day decided ante p. 17, 379 P. 2d 225. Both appellants and appellees have raised questions concerning the propriety of the trial court proceeding in this case but the appellants persisted in pursuing it further. That case is readily available and we need not elaborate on the issues therein.
The decision in case No. 42,894 was actually announced in the decision of the trial court as of July 31, 1961. The executor, after filing a motion for new trial upon that order, began to file motions in which the court was questioned about the interest of U. S. Goff and Mary C. Goff to the oil and mineral rights in the “Parks Place.” It seems to this court that the executors were attempting to raise new issues and furthermore, Mary C. Goff individually has never been a party to the present action. It will be noticed that the court dealt with interests belonging to Mary C. Goff individually.
We are firmly convinced that the matter could have been dealt with more satisfactorily if a new action had been begun and the proper parties had been joined. Therefore, we are reversing the decisions of March 2 and of March 7, 1962 — which are the orders appealed from in this action — with directions to dismiss the proceedings. We do not mean to hold that such decisions were wrong in law nor do we necessarily approve of the holding.
The parties should file a separate action if they desire to pursue the matter further.
Parker, C. J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
The appellant (Leland King) is presently confined in the Kansas State Penitentiary at Lansing under a judgment of the district court of Rutler County on pleas of guilty for committing the crimes of burglary in the second degree and grand larceny. The sentences were imposed on September 4, 1953, to run consecutively.
On or about February 7, 1962, appellant filed an application for a writ of error coram nobis, in the district court of Rutler County, wherein he charged he should have been sentenced for the crimes of burglary in the third degree instead of burglary in the second degree because the offense of burglary, for which he had been sentenced, was committed in the daytime instead of the nighttime. The district court examined the entire record in the case and denied the involved application on March 5, 1962. Subsequently appellant filed a notice of appeal with the clerk of the district court, stating that he was appealing from the final order of the district court denying the application. He also filed a purported proof of service of the notice of appeal, the recitals of which make it affirmatively appear he had failed to serve a copy of such notice on the adverse party (the State — appellee) or its attorneys of record. Indeed, it may be stated that an examination of the record definitely establishes that no copy of the notice of appeal involved in this case has ever been served upon the adverse party or its attorneys of record as required by the provisions of G. S. 1949, 60-3306.
At the outset, after pointing out that under the common law, as well as our decisions (See State v. Miller, 161 Kan. 210, 166 P. 2d 680, certiorari denied, 329 U. S. 749, 91 L. Ed 646, 67 S. Ct. 76; State v. Robertson, 190 Kan. 775, 378 P. 2d 39.), proceedings upon application for a writ of coram nobis are regarded as civil in character, we are confronted by appellee with the question whether appellant has perfected an appeal in the manner and form required by our statute (G. S. 1949, 60-3306 and 60-3309). This presents a jurisdictional question which must be determined before any consideration can be given to the merits of the instant appeal.
Turning to the subject just mentioned it may be stated that the jurisdiction of this court to entertain an appeal is conferred by statute, pursuant to Article 3, Section 3 of the Constitution of Kansas and, when the record discloses lack of jurisdiction by reason of noncompliance with the above noted sections of the statute, it is the duty of the Supreme Court to dismiss the appeal. (See Polzin v. National Cooperative Refinery Ass’n, 179 Kan. 670, 298 P. 2d 333, on rehearing 180 Kan. 178, 302 P. 2d 1003; Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341, and the numerous decisions there cited.)
60-3306, supra, prescribes the manner in which appeals must be perfected. The provisions here involved read:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; 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 in the mail, if their places of residence are known. Proof of such service shall be made by affidavit, . . .; and thereupon the appeal shall be deemed to be perfected." (Emphasis supplied. )
60-3309, supra, limits the time for the perfection of appeals. Its pertinent provisions read:
“The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken: . . .” (Emphasis supplied.)
There is no ambiguity in 60-3306, supra. Its clear and unequivocal requirements are set forth in our recent decision of National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447, where it is held:
“G. S. 194'9, 60-3306, contains three requirements for the perfection of an appeal: (1) filing of the notice; (2) service upon all adverse parties whose rights are sought to be affected by the appeal, and (3) proof of service. Not until all three requirements are met is an appeal perfected.” (Syl. ¶ 2.)
What has been heretofore stated makes it clearly appear that appellant failed to comply with the second requirement of the provisions of 60-3306, supra, by failing to serve a copy of the involved notice of appeal upon the appellee or its attorneys of record and, it goes without saying, that he failed to comply with the third requirement of such section by reason of his inability to do so because he had not complied with the second.
Thus we come to what must be the all-decisive question: In the face of the uncontroverted factual situation existing in the case at bar, does this court have jurisdiction of appellant’s attempted appeal? That this question requires a negative answer is squarely answered by our established decisions. See, e. g., Dean v. Amrine, 155 Kan. 513, 126 P. 2d 213, which holds:
“A notice of appeal of a civil action filed in the district court but which was not served on the adverse party or his attorney of record gives this court no jurisdiction of the appeal.” (Syl.)
For a few of our numerous decisions of like import, both civil and criminal — including those heretofore specifically referred to, without reciting them — see State v. Chance, 190 Kan. 661, 378 P. 2d 11; McGuire v. McGuire, 190 Kan. 524, 528, 529, 376 P. 2d 908; State v. Hanes, 187 Kan. 382, 357 P. 2d 819; Krehbiel v. Juhnke, 186 Kan. 514, 351 P. 2d 206; State v. Combs, 186 Kan. 247, 350 P. 2d 129; Martin v. Forestry, Fish and Game Commission, 185 Kan. 796, 798, 347 P. 2d 276; State v. Shehi, 185 Kan. 551, 345 P. 2d 684; Nicolay v. Parker, 185 Kan. 481, 345 P. 2d 1013; State v. Sims, 184 Kan. 587, 337 P. 2d 704; Cochran v. Amrine, 155 Kan. 777, 779, 130 P. 2d 605, and the many cases therein cited.
Application of the rule of the foregoing decisions, to which we adhere, compels a conclusion the appellee’s challenge of appellant’s right to maintain the instant appeal because this court has no jurisdiction to entertain it must be upheld.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Price, J.;
Plaintiff corporation was the owner of three large sheep-feeding barns which were destroyed by fire. It brought this action to recover its loss. The petition was framed upon the doctrine of res ipsa loquitur.
Defendant Craft answered, and is not involved in this appeal. Defendants Cox demurred to the petition on the ground it failed to contain allegations sufficient to constitute a cause of action.
The demurrer was sustained.
Plaintiff has appealed.
The sole question presented is whether — as to defendant Cox— the petition alleges a cause of action based upon the doctrine of res ipsa loquitur.
Because of the nature of the question, no attempt will be made to summarize the lengthy and detailed allegations of the petition —and, omitting formal parts — it reads:
“Comes now the Plaintiff and for its cause of action against the Defendants and each of them, states and alleges as follows:
“That the Plaintiff is a corporation organized and existing under the laws of the State of Kansas with its principal place of business in Emporia, Kansas. That the Defendant, Charles Craft, is a resident of Sedgwick County, Kansas, with his regular post office address being 3425 South Hanley, Wichita, Kansas. That the Defendants Runnels W. Cox, also known as R. W. Cox, and John T. Cox are both residents of Lyon County, Kansas.
“That the Defendants Runnel W. Cox, also known as R. W. Cox, and John T. Cox were at all times herein, material partners doing business under the name and style Tom J. Cox and Son, Contractors, and will be referred to herein as ‘The Defendants Cox.’
n.
“That on the 6th day of January, 1960, and prior thereto, the Plaintiff was, and is now, the owner of approximately 34 acres of land situated in the south half of the northeast quarter of Section 17, Township 19, Range 11 East in Lyon County, Kansas. That upon said land, on and prior to the 6th day of January, 1960, there were situated three large sheep feeding barns, each being approximately 162 feet in width and 672 feet in length and all being of similar construction, that being of wood frame construction with the interior being subdivided into sheep feeding pens, separated by board fences, and each of said bams having a center concrete driveway running the full length thereof, and all of said barns being in good usable conditions and substantial structures. That said barns on said date each had a utility or replacement value in excess of $125,000.00.
nr.
“That on the 6th day of January, 1960, the Defendants Cox were construction contractors and under oral contract with the Plaintiff, had contracted to do certain repair and construction work on the premises of the Plaintiff, and were in fact, on said day engaged through their own efforts and through agents, employees and servants, in the performance of the work that the Defendants Cox had contracted to do for the Plaintiff. That said contract between the Plaintiff and Defendants Cox was verbal and provided in substance that said Defendants Cox were to construct certain improvements upon the Plaintiff’s property in accordance with plans and specifications orally stipulated and agreed to by the Defendants Cox and the agents and officers of the Plaintiff corporation. That the plans and specifications for the constmction and repair work consisted of oral directions and stipulations and of duplication of structures and emplacements and repairs previously built, done and performed by the Defendants Cox. That under said oral contract, the Defendants Cox were to produce a specified result without supervision or further direction on the part of the Plaintiff. That said verbal contract between the Plaintiff and the Defendants Cox further provided that the Defendants Cox were to provide all materials and labor at their own expense, keep all labor and material records, pay all taxes, deduct all withholding taxes and social security from wages, pay all insurance incident to the construction work and were to be paid a fee based on a percentage of labor and materials furnished for the construction and repair work.
IV.
“That on the 6th day of January, 1960, the Defendant, Charles Craft, was engaged in the performance of a verbal contract, entered into with the Plaintiff, under the terms of which contract, said Defendant, Charles Craft, was to shear sheep and lambs which were located in the bams of the Plaintiff above described. That at said time and place, the Defendant, Charles Craft, himself, and through employees, servants and agents whose names are not known to the Plaintiff, was engaged in the shearing of sheep and lambs in one of the three bams above described and was directing the shearing operations. That the Defendant, Charles Craft, was present in person and had assisting him, four employees and servants whose names are not known to the Plaintiff, in the performance of his contract with the Plaintiff for the shearing of said sheep and lambs. That the verbal contract between the Defendant, Charles Craft, and the Plaintiff provided in substance, that the said Charles Craft was to be paid a specified sum of money per head for sheep shorn by him and his employees and that the Plaintiff was to provide, and did provide a place, which place to be devoted exclusively to the use and control of said Craft and his employees while shearing operations were being conducted by the Defendant, Charles Craft.
v.
“That January 6, 1960, was a cold day, the temperature being approximately 13 degrees F on the morning of said day, and the area within the bam which was being used by Charles Craft and his employees and which had been turned over to said Defendant for conducting the sheep shearing operations, was uncomfortably cold. That the employees and servants of the Defendant, Charles Craft, complained of suffering from the extremely cold weather. That the Defendant, John T. Cox, while performing duties on the premises of the Plaintiff in the vicinity of the area devoted to sheep shearing operations, on behalf of the partnership known as Tom J. Cox and Sons, was informed by one or more of the employees of the Defendant, Charles Craft, whose names are unknown to the Plaintiff, that they were suffering from the cold. That the Defendants Cox were the owners of, and had in their possession at said time and place, a small coal oil stove known as a ‘Salamander,’ said stove or Salamander at said time and place, being equipped with a fuel tank and fuel and burner or other facilities ready for use, and that at said time and place, the Defendant, John T. Cox, offered to set up and light said stove in the area where the sheep shearing operations were being conducted to supply heat for the Defendant, Charles Craft, and his employees, and that said offer by the Defendant Cox was accepted by the Defendant Craft, whereby or as a result of which offer and acceptance, said stove or Salamander was furnished, delivered and set up by the said Cox in the area where said sheep were being shorn, for the convenience and comfort of tire men who were to do the shearing of said sheep as aforesaid. That the Defendants Cox, through their agent, John T. Cox, did on the morning of January 6, 1960, transport said Salamander stove to the area of the bam devoted to the sheep shearing operations and where the Defendant, Charles Craft, and his employees were engaged in the shearing of said sheep. The said Defendants Cox, acting through John T. Cox, placed said stove in the area designated and set aside exclusively for the shearing of sheep and in which area sheep were then being shorn, and the said John Cox and Charles Craft, themselves or through their agents, servants and employees, set up and installed said stove or Salamander at a place and in a manner in accordance with their decision and to their satisfaction. That the said John Cox lighted said Salamander stove and regulated the same to supply heat for the Defendant Charles Craft, and his employees who were then and there shearing sheep under the contract which the said Charles Craft had with the Plaintiff. That the Plaintiff does now know and therefore cannot allege with certainty, the exact location at which said Salamander stove was placed or the manner in which it was installed and lighted, said facts, however, being peculiarly within the knowledge of the Defendants, Craft and John T. Cox. That the Plaintiff does not know and therefore cannot state with certainty, but does state on information and belief, that after each sheep was sheared, that the Defendant, Charles Craft, and his employees and servants, released the sheep and permitted them to go where they had access to the area where said Salamander stove was located. That the Defendants Cox through their partner and agent, John T. Cox, knew or should have known by observation of the method by which the Defendant Charles Craft, and his employees and servants were operating and knew or should have known that said sheep had access to the area where said Salamander stove was located.
VI.
“That said Salamander stove, after being lighted as aforesaid, continued to bum and remained ablaze and lighted on its interior to the satisfaction of the said Craft and his employees and the said Cox, for some considerable time, the extent of time and the amount of heat so generated by said stove, being to the Plaintiff, unknown, such facts being peculiarly within the knowledge of the Defendants. That thereafter the exact time being unknown to the Plaintiff, something happened to said stove or Salamander, the details of which are unknown to the Plaintiff, but which are known to the Defendants, by reason of which happening, tire fire from said stove or Salamander, escaped from said stove and flames enveloped said stove and the area around, in and about said stove and spread to the entire area about and surrounding said stove or Salamander where said stove had been placed by the said Defendants, the facts relating thereto, being unknown to the Plaintiff, but peculiarly within the knowledge of the said Defendants. That said fire spread rapidly and consumed and destroyed the three large sheep feeding bams of the Plaintiff above described, and consumed and destroyed 212 head of cattle and approximately 200 head of sheep situated in said bams, and that said bams and livestock were completely burned and totally destroyed as a result of said fire. That according to the information and belief of the Plaintiff, there was no other fire, electrical wiring, or any other material or agencies other than said Salamander stove that could have ignited the building or initiated a fire in the area where said fire commenced.
VII.
“That at the time the Defendant John Cox placed said stove in the area where said sheep were being sheared and at all times thereafter, until the fire and flames escaped from said stove and enveloped the area surrounding said stove and the vicinity thereof, and until said bam or bams were ignited, the Defendants, or one or more of them, had sole and exclusive possession, management and control of said Salamander stove and of the area within said bam where sheep were being shorn by the Defendants, or one or more of them, and had complete control, management and possession, of all machinery, equipment, gates, fences, livestock and other instruments used and useful within said area, including said Salamander stove and that said Defendants, or one or more of them, had sole, exclusive and complete control of the placement and installation of said stove in the area, the lighting and the operation thereof, and the sheep shearing operations and all other work and operations being conducted within said area.
VIII.
“That from examination of the debris, the burned area and the residue resulting from said fire, it was and is impossible to determine the location of said Salamander stove, what happened to said stove to cause the flame to escape therefrom or the cause of the flames and the fire which escaped from said stove, or the exact location or cause of said fire or flames to emanate from or escape from said Salamander stove other than that the same was in the immediate vicinity where said stove had, according to the information and belief of the Plaintiff, been placed by the Defendants.
IX.
“That said Salamander stove, prior to January 6, 1960, had been used by the Defendants Cox at numerous and diverse times and places and had been used for heating purposes by the Defendants Cox and had been operated by the Defendants Cox many times prior to January 6, 1960, without misadventure, loss or damage, and that said stove would not have ignited or burned the property of the Plaintiff above described, had it been placed, lighted and used by the Defendants, or one or more of them, with ordinary care and prudence. That the Defendant, Charles Craft, was an experienced sheep shearer and had shorn many thousands of sheep prior to January 1960, indoors and at numerous and diverse times and places without damage to property in which said shearing operations had been conducted, and that the shearing of sheep and operations incidental thereto, were not and are not in themselves inherently dangerous operations if conducted with ordinary care and prudence. That by reason of his experience, the Defendant, Charles Craft, knew or should have known of the habits and manners of sheep and lambs, and knew or should have known of the danger and the probable destructive forces of the equipment, facilities and agencies existing and present in the area where he was shearing sheep, including the Salamander stove, the sheep themselves and the wood structures.
x.
“That the fire which destroyed the barns owned by the Plaintiff, as aforesaid, started because of the flame or flames escaping from said Salamander stove, the cause or reason thereof, being unknown to the Plaintiff. That the blaze, flames and fire which escaped from said Salamander stove as aforesaid, would not have thus escaped in the absence of negligence on the part of the Defendants, or one or more of them. That the Plaintiff does not know and does not attempt to allege or describe specific negilgent acts of commission or omission on the part of the Defendants, or one or more of them, which resulted in the escape of flames and fire from said stove as aforesaid, and which were the proximate cause of the resulting fire which destroyed the Plaintiff’s barns, but the Plaintiff states that the escape of said fire from said stove was an occurrence which would not have taken place except for some negligent acts of commission or omission on the part of the Defendants, or one or more of them while in complete and exclusive possession, control and management of the area and the facilities above described. Plaintiff further alleges that notwithstanding the fact that such specific acts of negligence are not within the knowledge of the Plaintiff, that such acts and omissions are peculiarly with the knowledge of the Defendants.
XI.
“That neither the Plaintiff nor its agents, officers or employees were negligent nor in any way at fault and committed no act or acts of negligence which contributed to the starting or the spreading of the fire above described or the resulting damage to the Plaintiff’s property.
xn.
“That the value of each of the three bams described herein, immediately prior to January 6, 1960, was $125,000.00, or a sum total of $375,000.00, and that the value thereof following the fire herein described, was nil, and that the total damage suffered by the Plaintiff as a result of the burning and destruction of said three barns, was the sum of $375,000.00, all of which damage was the proximate result of the negligence, joint and several of the Defendants and for which amount, the Plaintiff is entitled to judgment against the Defendants and each of them.
“Wherefore, the Plaintiff prays for judgment against the Defendants and each of them in the amount of $375,000.00 and for the costs and disbursements of this action.”
As stated, the question is whether the foregoing petition states a cause of action against defendants Cox upon the doctrine of res ipsa loquitur.
Although it may be conceded there appears to be some inconsistency in the many decisions of this court in the application of the doctrine to the many factual situations presented — the definition of the phrase is so well established as to leave no doubt of its meaning.
Literally speaking, the phrase means “the thing speaks for itself.” It is a rule of evidence, rather than of substantive law, and does not alter the universal rule that negligence is never presumed but must be proved. Ordinarily the doctrine has application only to that limited class of negligence cases where the instrumentality or thing causing the injury or damage is under the exclusive control of the defendant at the time of the injury or damage, and the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty in question happened because of the negligence of defendant. The inference of negligence is deducible, not from the mere happening of the event, but from the attendant circumstances, and, such circumstances being shown, but the actual facts of just what happened being without the knowledge of plaintiff, it then devolves upon defendant to offer evidence by way of explanation. In some instances the doctrine has been applied although exclusive control of the thing or instrumentality was not in defendant at the time of the happening of the event, the test in such cases being whether defendant was in control at the time of the negligent act or omission, which, either at that time or later, produced the injury or damage. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599; Sipe v. Helgerson, 159 Kan. 290, 153 P. 2d 934; Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901; Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501; Wehkamp v. City of Garden City, 187 Kan. 310, 356 P. 2d 826.) See also 65 C. J. S., Negligence, §220 (2), p. 987, and 38 Am. Jur., Negligence, § 295, p. 989.
By way of summary, it may be said that inherent in the doctrine of res ipsa loquitur are three essential elements: (1) The thing or instrumentality causing the damage or injury must be within the exclusive control of the defendant; (2) the happening must be of such kind or nature as ordinarily does not occur in the absence of negligence, and (3) the happening must not have been due to the fault or contributory negligence of the one seeking redress.
Measuring the allegations of this petition against those requirements for invocation of the doctrine, we are of the opinion they are sufficient to state a cause of action as to defendants Cox. All contentions made by such defendants in support of their position have been examined and considered, but we nevertheless believe the petition is sufficient to withstand the demurrer. What the proof may show is of course another thing, but we are dealing here only with the allegations of the petition. The order sustaining the demurrer of defendants Cox is therefore reversed.
Jackson, J., concurs in the result. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmens compensation case. Roth the director and the district court found that with respect to respondent the claimant occupied the status of an independent contractor, rather than an employee — and therefore denied compensation. The claimant has appealed.
The question presented is whether the district court’s finding is supported by substantial competent evidence.
Highly summarized, the background of the matter is this:
Respondent Lamb had a contract to raze an old gasoline service station in Parsons and to clean up the site in order that new construction work could be done. One Walker had a subcontract with Lamb to remove the building. Claimant Snyder lived in the same block in which the service station was located. He was an employee of the Freeto Construction Company. That company is in no way involved in this case. In the evening of October 6, 1961, claimant Snyder, after having worked all day for his employer, saw Lamb and talked to him about buying some of the windows in the service station which was being razed. Claimant wanted to use them in constructing a garage in his backyard down the street. Lamb told him that he could have them if he took them out. Claimant then went right to work, with his own tools, and removed several of the windows. His brother and father assisted him. Later that evening Lamb advised claimant that Walker was angry because he, Lamb, was permitting claimant to have part of the salvage. It was then agreed that claimant would not keep the windows and other material he had removed and that Lamb would pay him two dollars for his labor. Payment was to be made the next morning.
On the next morning, however, Lamb reported to claimant that he and Walker had had a disagreement; that Walker had refused to tear down the building, and that if he, claimant, wanted the salvage material he could go ahead and take it out. Lamb told him that he could have all the material he could get out by the time that he, Lamb, was ready to tear down the building with his heavy equipment, and further told him to tear off the front part of the roof first so that he, Lamb, could knock down the front of the building with his heavy equipment while claimant was tearing off the back part of the roof. Payment of the two dollars was not made.
Using all of his own tools, and with the assistance of his father and brother-in-law and several friends, claimant then proceeded with his work of wrecking portions of the building in order to get material to be used in the construction of the garage at his home a few doors down the street. While claimant and his helpers were removing the material Lamb and his own employees were working east of the service station tearing up a foundation and sidewalk where a house had been removed.
While working on the project in question claimant fell and sustained personal injury. Lamb was not present at the time. When he returned to the site claimant and his father asked him if his, Lamb’s, insurance would cover him and requested that Lamb put claimant on the payroll. Lamb refused and advised claimant that he was not covered by his, Lamb’s, insurance. Following claimant’s injury those who were helping him continued for the rest of the afternoon to remove and haul material from the building.
Later claimant filed a claim for workmen’s compensation — with the result heretofore stated.
Rules pertaing to appellate review in workmen’s compensation cases are exhaustively stated and discussed in the recent case of Phillips v. Shelly Oil Co., 189 Kan. 491, 370 P. 2d 65, and there is no occasion to repeat them here.
The question whether, in a given situation, an injured workman occupied the status of an independent contractor — as distinguished from an employee — has been before this court many times. Generally speaking, an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result of his work. (Evans v. Board of Education of Hays, 178 Kan. 275, 284 P. 2d 1068; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P. 2d 391; Krug v. Sutton, 189 Kan. 96, 366 P. 2d 798.) The right-of-control test is not, however, an exclusive test to determine the relationship — other relevant factors also are to be considered. (Snedden v. Nichols, 181 Kan. 1052, 1055, 1056, 317 P. 2d 448.)
Examining the record in this case, it is clear that no contract of employment was entered into. Wages, horns of employment, and the usual matters connected with an employer and employee relationship, were not discussed. In fact, the situation simply amounted to the proposition that claimant, who wanted some of the salvage material from the building being wrecked, was told by Lamb that he could have it for removing it. It was purely a loose, voluntary arrangement from the beginning to end, and the finding of the trial court that claimant occupied the status of an independent contractor rather than an employee is fully supported by the evidence. The judgment is affirmed. | [
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Malone, J.:
Mark One Electric Company, Inc., and AT Industrial Sheet Metal (Mark One) appeal the district court’s determination that Mark One’s mechanic’s hen did not attach to the fee simple interest in real property held by the Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government). The district court determined that Mark One’s lien was fraudulent based upon a motion for judicial review of the status of the hen pursuant to K.S.A. 58-4301. Mark One claims the district court exceeded its scope of authority under the statute in making this determination. This case presents an issue of first impression in Kansas.
Trans World Transportation Services, LLC (Trans World) leased commercial property from Unified Government located at 420 Kindelberger Road, Kansas City, Kansas. During the lease term, Trans World contracted with Mark One to make improvements on the property. Mark One was not paid for the improvements, so on March 31,2006, Mark One filed a mechanic’s hen against the property. The hen asserted a claim for labor, materials, and services provided to Trans World in the amount of $224,366.90, plus interest.
On May 1, 2006, Unified Government filed a motion for judicial review of the status of the hen pursuant to K.S.A. 58-4301, claiming the hen was fraudulent and should not attach to Unified Government’s interest in the property. Pursuant to the statute, Unified Government attached an affidavit and other documents to its motion. The documents claimed that Unified Government never authorized or consented to any of the improvements made by Mark One and that Trans World did not act as Unified Government’s agent in requesting Mark One to make the improvements.
On May 24, 2006, Mark One filed a response to the motion, including an affidavit and other documents attached as exhibits. Mark One claimed Unified Government had knowledge of and consented to the improvements to the real property. Mark One alleged Unified Government had required Trans World to make the improvements to the property as part of an agreement wherein Trans World was going to purchase the property from Unified Government. This purchase agreement never closed.
As evidence of Unified Government’s consent to the improvements, Mark One provided the district court with copies of emails from counsel for Trans World to counsel for Unified Government. One email discussed the fact that certain improvements would be made to the property as part of the purchase agreement. These improvements included repaving the parking lot, sealing and paint ing the building’s exterior, remediating the asbestos in the building, and improving landscape around the property. However, none of the work performed by Mark One was for these improvements.
In the next email, Trans World’s counsel told Unified Government’s counsel that Trans World “would like to have some of the work it [had] agreed to complete on the subject property done during the week of Labor Day.” In the last email, Trans World stated it would “be making a large number of capital improvements to the Property, some of which are specifically referenced in the [purchase] Agreement and some of which are not. [Trans World] will be completely revamping the HVAC/Heating system for the Property.” The improvements to the property provided by Mark One primarily related to the mechanical and electrical work referred to by Trans World in this email. Mark One produced no evidence that Unified Government ever responded to any of the emails.
On May 26, 2006, the district court held a nonevidentiary hearing on the motion. At the hearing, counsel for each party argued their positions on the law and the evidence. In a journal entry dated July 6, 2006, the district court determined there was no evidence that Unified Government authorized or consented to the improvements. This finding created a presumption of a fraudulent hen pursuant to K.S.A. 58-4301(e). The district court determined that the rights of Mark One in the property could rise no higher than the rights of Trans World. Accordingly, the district court set aside Mark One’s hen against Unified Government’s fee simple interest in the property. Mark One timely appeals.
Mark One claims the district court erred in finding the hen fraudulent under K.S.A. 58-4301. Specifically, Mark One argues the district court exceeded its scope of authority under the statute by making findings of fact based only upon affidavits and documents submitted by the parties to the court. According to Mark One, the district court should have applied a “summary judgment standard” in reviewing the documents, and the district court should only nullify a lien under K.S.A. 58-4301 if, after reviewing the documents and drawing all inferences in favor of the party against whom the ruling is sought, there are no genuine issues of material fact. Mark One argues that in this case reasonable minds could differ as to the conclusions drawn from the evidence, so the motion for judicial review of the status of the hen should have been denied. Significantly, Mark One has made no claim either in district court or on appeal that K.S.A. 58-4301 is unconstitutional.
The interpretation of a statute is a question of law over which an appellate court has unlimited review. An appellate court is not bound by the district court’s interpretation of a statute. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
When a district court issues findings of fact and conclusions of law, the function of an appellate court is to determine whether the district court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). However, “[w]here the controlling facts are based solely on written or documentary evidence, an appellate court may determine de novo what the facts established. [Citations omitted.]” Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, 784, 69 P.3d 578 (2003). Because the district court’s determination of Mark One’s lien was based on the documents filed by the parties, this court’s standard of review is de novo.
“ ‘The fundamental rale of statutoiy construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be.’ [Citations omitted.]” Smith v. Graham, 282 Kan. 651, 656-57, 147 P.3d 859 (2006).
While courts must give effect to legislative intent and the plain language of a statute, courts may not “ ‘delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.’ ” Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 293, 864 P.2d 1161 (1993) (quoting Harris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]).
K.S.A. 58-4301 was enacted in 1998. A review of the legislative history reveals that the statute, introduced as Senate Bill 408, was promulgated in response to the activities of militias and common-law type groups such as the Freeman and the Christian Court. The activities of these antigovernment groups ranged from the issuance of bogus and fraudulent checks to filing and attempting to file frivolous liens. As a result of this threat from extremist groups, the legislature passed S.B. 408 to provide a quick and efficient method to remove facially bogus liens meant solely to intimidate and harass property owners. See Minutes, Sen. Judiciary Comm., January 15, 1998, attach. 1.
Regardless of the legislative history of K.S.A. 58-4301, “[w]hen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” Hallmark Cards, Inc. v. Kansas Dept. of Commerce & Housing, 32 Kan. App. 2d 715, 721, 88 P.3d 250, rev. denied 278 Kan. 844 (2004). The provisions of K.S.A. 58-4301 are clear and unambiguous, and Mark One makes no claim to the contrary.
Pertinent provisions of K.S.A. 58-4301 are as follows:
“(a)(1) Any person who owns real or personal property . . . and who has reason to believe that any document or instrument purporting to create a lien or claim against the real or personal property . . . is fraudulent . . . may complete and file ... a motion for judicial review of the status of documentation or instrument purporting to create a lien or claim as provided in this section. Such motion shall be supported by the affidavit of the movant or the movant’s attorney setting forth a concise statement of the facts upon which the claim for relief is based. . . .
“(b) The court’s findings may be made solely on a review of the documentation or instrument attached to the motion and without hearing any testimonial evidence. The district court’s review may be made ex parte without delay or notice of any land. . . .
“(c) After review, the district court shall enter appropriate findings of fact and conclusions of law . . . . The court’s findings of fact and conclusions of law may include an order setting aside the lien and directing the filing officer to nullify the lien instrument purporting to create the lien or claim. . . .
“(e) As used in this section, a document or instrument is presumed to be fraudulent if the document or instrument purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and:
(2) is not created by implied or express consent or agreement of the obligor, debtor or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary or other representative of that person.”
Mark One’s primary argument is that the district court exceeded its scope of authority under the statute in determining Mark One’s hen was fraudulent. Mark One claims the statute only allows the district court to review the “status of documentation or instrument purporting to create a hen” and that the district court is not authorized under the statute to determine the merits and validity of a lien when the evidence concerning enforcement of a lien is disputed. Mark One asserts that a factual dispute existed in this case which should not have been resolved by the district court pursuant to the expedited procedure set forth in K.S.A. 58-4301.
We note that at the hearing in district court, Mark One did not complain about the procedural aspects of the statute until after the district court had made its ruling. Furthermore, although K.S.A. 58-4301 allows a district court to review lien documentation without hearing any testimonial evidence, the statute does not prohibit the district court from hearing testimony, if requested. In this case, Mark One never requested the district court to hear testimony or to consider any evidence other than the documents Mark One attached to its response to the motion.
In any event, we disagree with Mark One’s contention that the district court exceeded its scope of authority granted in K.S.A. 58-4301. The statute allows any person who believes that a fraudulent lien has been filed against his or her property to file a motion for judicial review of the status of the hen. The district court is authorized to determine the status of the lien based solely on affidavits and documents attached to the motion. In fact, the district court is authorized to make this determination on an ex parte basis. Here, Mark One was permitted to file a response to tire motion, and the district court did not restrict the documentation Mark One presented for review. The district court also conducted a nonevidentiaiy hearing in which legal counsel for each party extensively argued their positions on tire evidence and the law.
Furthermore, K.S.A. 58-4301(c) specifically authorizes the district court to enter appropriate findings of fact and conclusions of law. If the district court finds that a purported lien is fraudulent as defined by the statute, the district court is empowered to enter an order setting aside or nullifying the lien. Because tire statute expressly allows the district court to make findings of fact, Mark One’s argument that the district court should apply a “summary judgment standard” is clearly unfounded.
Here, the district court fully complied with the statute’s unambiguous language, and the district court did not exceed the scope of its authority granted under the statute. Therefore, our only remaining task is to determine whether the district court’s findings of fact and conclusions of law were supported by substantial competent evidence. As previously stated, because the district court’s determination was based on documentation which we are in the same position to examine, our standard of review is unlimited.
The primary factual issue in this case was whether Unified Government authorized or consented to the improvements of the property or whether Trans World acted as Unified Government’s agent in requesting Mark One to make the improvements. In Lentz Plumbing Co. v. Fee, 235 Kan. 266, 272, 679 P.2d 736 (1984), our Supreme Court indicated that real property may be subject to a lien for work completed at the demand of a lessee where the lessee is regarded as an agent of the lessor.
“If the lessee acts for himself, no hen will attach to the property of the lessor. But where the owner rents his property to another and stipulates in the lease that improvements may be made on the property by tire lessee, and tire expense thereof deducted from the rentals to be paid him, the lessee may be regarded as the agent of the owner, and those doing the work and furnishing materials for improving the property will be entitled to a lien on tire interest and estate of the lessee and the owner. [Citation omitted.]” 235 Kan. at 273.
Lentz did not involve a motion for judicial review of the status of a Hen under K.S.A. 58-4301. However, the statute defines a fraudulent hen in a manner that is consistent with the test enunciated in Lentz. Pursuant to K.S.A. 58-4301(e)(2), a document purporting to create a hen is presumed to be fraudulent if it “is not created by implied or express consent or agreement of the obligor, debtor or the owner of tire real or personal property ... or by imphed or express consent or agreement of an agent, fiduciary or other representative of that person.” Thus, the precise question for the district court to determine in this case was whether Mark One’s hen was created by imphed or express consent of Unified Government as owner of the real property or by the imphed or express consent or agreement of an agent, fiduciary, or other representative of Unified Government.
Unified Government attached to its motion an affidavit from LaVert Murray, the director of Unified Government’s development department. In this affidavit, Murray stated the Unified Government did not authorize Trans World to act on Unified Government’s behalf or to bind it to any contract. The affidavit further stated Unified Government did not enter into an express or implied agency relationship with Trans World, and the improvements Trans World undertook were of its own accord and for its own benefit.
Furthermore, Unified Government provided a copy of Mark One’s hen, which stated a claim for labor, material, and services supplied in making improvements to the property pursuant to a “contract between Mark One and Trans World.” The hen makes no mention of any contract or agreement between Mark One and Unified Government. The proposed purchase contract which never closed between Trans World and Unified Government required Trans World to make capital improvements on the property, including repaving the parking lot, sealing and painting the building’s exterior, remediating the asbestos in the building, and improving landscape around the property. Significantly, the evidence established that none of the work performed by Mark One was for these improvements.
Mark One provided evidence that Trans World informed Unified Government through an email about the mechanical and electrical improvements Trans World was going to have completed on the property. However, telling the owner about improvements that are planned is not the same as receiving consent from the owner to malee those improvements. Mark One failed to supply any convincing evidence that Unified Government ever authorized or consented to the improvements to the real property made by Mark One. Furthermore, Mark One failed to supply any convincing evidence that Trans World acted as Unified Government’s agent in requesting Mark One to make improvements to the property.
We conclude the district court’s findings of fact were supported by substantial competent evidence and the findings were sufficient to support the district court’s conclusions of law. Based upon the evidence presented, the district court was justified in canceling Mark One’s lien to the extent that it purportedly attached to Unified Government’s fee simple interest in the property.
We are mindful that this result extinguishes a significant claim filed by Mark One, at least as to Unified Government’s interest in real property, with only the limited due process afforded under K.S.A. 58-4301. However, as previously stated, Mark One has not challenged the constitutionality of the statute. The record indicates that the district court complied with the statute, and the district court’s findings under the statute were supported by substantial competent evidence. Under these circumstances, the district court’s judgment must be upheld.
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Larson, J.:
Antone John Scoville appeals the trial court’s denial of his motion to file a direct appeal out of time, arguing the court erred in finding that no Ortiz exception applied to excuse his failure to file an appeal within the statutory time allowed. See State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). We hold the trial court did not err in its Ortiz determination and, accordingly, affirm.
The record in this case reflects that in May 2003, Scoville entered a plea of no contest to one count of manufacture of methamphetamine, a drug severity level 1 felony pursuant to K.S.A. 65-4159, in exchange for the State’s agreement to dismiss the six remaining charges against him, not to file any additional charges, and to recommend a downward durational departure of 139 months’ imprisonment. Neither Scoville’s plea agreement or written waiver of rights addressed Scoville’s right to appeal his sentence. Scoville filed a downward durational departure request seeking a 60-month sentence. On June 4, 2003, the trial court imposed a downward durational departure sentence of 120 months’ imprisonment.
Scoville did not file a direct appeal of his conviction or sentence. But, in February 2004, he filed a K.S.A. 22-3504 motion to correct an illegal sentence in which he claimed the trial court should have sentenced him for a drug severity level 3 felony pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). Following a nonevidentiaxy hearing, the trial court denied Scoville’s motion. A panel of this court affirmed the trial court’s decision. State v. Scoville, No. 92,829, unpublished opinion filed June 24, 2005, rev. denied 280 Kan. 990 (2005).
Subsequently on November 30, 2005, Scoville filed a motion requesting the right to file a direct appeal out of time, alleging he was never informed of his statutory right to appeal within 10 days of his sentence. See K.S.A. 22-3608(c) (stating a defendant shall have 10 days after the judgment of the district court to appeal).
The trial court conducted a hearing on Scoville’s motion. During the hearing, Scoville’s trial counsel testified that although Iris standard practice while reviewing plea agreements with clients was to inform clients that they had a right to appeal their sentence if tire judge did something unlawful, he did not have a distinct recollection of whether he told Scoville that he had 10 days to file an appeal. Trial counsel did, however, recall that he and Scoville discussed immediately after sentencing whether Scoville should appeal. Trial counsel testified that Scoville did not ask him to file an appeal. Trial counsel did not believe at that time Scoville had an appealable issue since he had received a downward departure sentence and a favorable plea bar-gain.
Scoville testified he did not recall his trial counsel having informed him of his appeal rights. Scoville specifically denied that his trial counsel even mentioned appeal rights during their conversation following tire sentencing hearing. Although Scoville testified he did not recall tire trial court informing him of his right to appeal at either the plea or sentencing hearing, he conceded tire sentencing hearing transcript confirmed the court, did indeed, inform him that he “may be able to appeal any decision” the court made that day.
The trial court found Scoville was apprised of his right to appeal at both the plea and sentencing hearings. Further, the court found Scoville and his counsel discussed Scoville’s appeal rights after the sentencing and that Scoville did not direct his counsel to file an appeal of his sentence. The trial court found the Ortiz exceptions did not apply to Scoville’s circumstances and denied Scoville’s motion. Scoville timely appeals this decision.
In Kansas, the right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004).
However, an exception is made to the general rule requiring a timely notice of appeal when an indigent defendant (1) was not informed of his or her right to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. Ortiz, 230 Kan. 733, Syl. ¶ 3. If these circumstances are met, an out-of-time appeal must be allowed. State v. Phinney, 280 Kan. 394, 401-02, 122 P.3d 356 (2005).
On appeal, we review the factual findings underlying a trial court’s Ortiz ruling for substantial competent evidence, but we apply a de novo standard when reviewing the ultimate legal determination of whether those facts fit an Ortiz exception. See 280 Kan. at 404.
A review of the record reveals substantial evidence that Scoville was informed of his appeal rights and did not wish to appeal. Specifically, the transcript of the sentencing hearing reveals the trial court informed Scoville that he “may have [the] right to appeal from any rulings or decisions that [the court] made.” Further, notwithstanding Scoville’s testimony to the contrary, substantial competent evidence was presented through trial counsel’s testimony that Scoville and counsel did discuss appeal rights immediately following the sentencing hearing. We are not in a position to reweigh the evidence or pass on the credibility of the witnesses. See State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006). Importantly, Scoville does not dispute that he did not ask trial counsel to file an appeal.
Citing State v. Willingham, 266 Kan. 98, Syl. ¶ 3, 967 P.2d 1079 (1998), for support, Scoville argues that a full awareness of appeal rights necessarily includes knowledge of any applicable time frame within which such rights must be exercised. Willingham so stated but further held: “Where it can be shown that the defendant was fully aware of his or her right to appeal, or was fully advised of his or her right to appeal by counsel at the time of sentencing, a waiver of that right may be established.” 266 Kan. 98, Syl. ¶ 2.
Willingham is clearly factually distinguishable with regard to the amount of information provided to tire defendant. In our case, although there was no evidence that Scoville definitely was informed of the time limitation attendant to his right to appeal, there was substantial competent evidence demonstrating that he knew of his appeal rights. Information relating to appeal rights was shown to have been stated to Scoville by the trial court as shown by the transcript of the sentencing hearing. Trial counsel testified that the right to appeal was discussed after the sentencing hearing. Armed with knowledge of these rights, Scoville chose not to appeal. By contrast, the only evidence in Willingham that the defendant waived his right to appeal consisted of defense counsel’s recollection that defendant had told him months prior to sentencing that he did not wish to appeal. 266 Kan. at 99. In Willingham, the record was clear that at the time of sentencing, the defendant was not advised either by the court or by trial counsel of his right to appeal. 266 Kan. at 100. Willingham is not violated by the trial court’s ruling in our case.
Finally, Scoville’s appellate counsel suggests the trial court’s detailed explanation of Scoville’s right to appeal its decision on his motion to file an appeal out of time somehow undermines the court’s ruling thereon. We do not agree; the court’s recitation of Scoville’s appeal rights following the denial of his motion in no way implicates the validity of the court’s ruling on the motion.
We have fully reviewed the record. We hold there is substantial competent evidence to support the trial court’s determination that none of the three Ortiz exceptions apply to allow Scoville to file a direct appeal out of time. We have further reviewed the district court’s decision by a de novo standard of review and affirm its ruling that none of the three Ortiz exceptions exist to excuse Scoville’s failure to file a timely notice of appeal of his sentencing.
In light of these conclusions, we need not address the merits of Scoville’s challenge to the trial court’s utilization of drug severity level 1 penalties when imposing his sentence.
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The opinion of the court was delivered by
Price, J.:
This was an action to enjoin the governing body of the city of Hutchinson from proceeding with the improvement of a street.
Judgment was for defendant city. Plaintiffs, who are owners of a portion of the property sought to be affected and taxed — have appealed.
The question involved concerns the construction of certain provisions of Chapter 12, Article 6a, appearing at G. S. 1961 Supp. 12-6a01, et seq., referred to as “General Improvement and Assessment Law,” the purpose of which is to authorize the making of special improvements and the levy of special assessments therefor, by cities, under the terms and conditions set forth in the statute.
Pertinent portion of G. S. 1961 Supp. 12-6a04 read:
' “(2) Petitions for any improvement authorized to be made under the provisions of this act which set forth: . . . may be filed with the city clerk. Such petitions may be found sufficient if signed by either (i) a majority of the resident owners of record of property liable for assessment under the proposal, or (ii) the resident owners of record of more than one-half of the area liable for assessment under the proposal, or (Hi) the owners of record (whether resident or not) of more than one-half of the area liable to be assessed under the proposal.” (Emphasis supplied.)
The facts giving rise to this action are not in dispute:
On October 24, 1961, seven persons signed a petition for the proposed improvements. On October 25 three additional persons signed the petition, and on October 26 two additional persons signed it — making a total of twelve signers.
Eleven of those who signed the petition acquired their interest in the property in question by virtue of a deed executed on October 26. This deed was placed of record at 1:10 p. m. on October 27. The petition was filed with the city clerk on October 27 — the exact hour of filing being unknown. It was referred to the city engineer on October 30, and on November 6 he reported that as of November 1 he had checked the records and approved the petition as being sufficient. On November 6 the city commission approved the report, and on November 20 the city commission adopted a resolution ordering the improvements.
On November 28 the plaintiffs, who owned land in the district liable to be assessed, filed this action praying that the resolution be adjudged invalid and that the city be enjoined from proceeding further in the matter. Among other things, fire petition alleged that many of those who signed the petition were not co-owners of the property at the time they signed it, and that the petition was not signed by a majority of the resident owners of record as prescribed by G. S. 1959 Supp. 12-6a04 (now appearing as G. S. 1961 Supp. 12-6a04, the pertinent portions of which are set out above).
In denying injunctive relief and in upholding the validity of the resolution authorizing the improvements, the trial court filed a memorandum opinion setting forth clearly its views. We quote pertinent portions of it:
“The real nub of plaintiffs’ argument is that the petition for the improvements failed to comply with statutory requirements, and hence was void, in three particulars: first, that the petitioners were not property owners when they signed the petition; second, that the petitioners were not record owners of property when the petition was filed with the City Clerk; and third, that only one of the signers was a resident property owner and hence the petition was not signed by a majority of the resident owners of property liable for assessment.
“Turning to the first contention, I find nothing in the statute which requires the signer of a petition to be an owner of record at the time his signature is appended. Nor do I perceive any fair intimation that such is in the intent of the statute. The law simply requires that a petition for an improvement set forth certain information (none of which is in question here); that it be filed with the clerk; and that it may be found sufficient if signed either by a majority of the owners of property liable for assessment, or by the owners (resident or not) of more than one-half the area liable for assessment. I believe the logical construction of this language to be that the sufficiency be determined as of the date the finding of the commission is made. Whether this interpretation will lead to carpetbagging cannot be foretold, but there is no suggestion of fraudulent conduct in this case. Should the evils envisioned become prevalent, legislative correction thereof might well be sought.
“I believe the burden lies with plaintiffs in this case to establish that the petitioners were not record title owners when the petition was filed with the clerk. This burden they have not sustained, for no evidence was adduced to show the hour when the petition was filed, or whether it was in the morning or afternoon. For all the record shows, the petition may well have been filed in the afternoon and after the time the deed conveying title to the defendants was recorded.
“The contention that the city is under the obligation to prove the validity of the petition is, I believe, not sound. The plaintiffs are attacking the validity of the city’s action, and are thus charged with the burden of proving that the city was acting illegally. Proof of that fact would require a showing that the petition under which the city was presuming to act without a public hearing, upon notice, did not comply with the statute.
“The point most vigorously asserted by plaintiffs concerns the residence of the signers, it being contended that the words ‘resident owners’ mean owners who reside in the proposed benefit district itself. On the other hand, the city argues that the words refer to owners who merely reside in the city.
“The question of who is a resident owner within the meaning of statutes relating to petitions for, and protests against, public improvements, appears to have been decisively answered by the decision in Barham v. City of Chanute, 168 Kan. 489. The statute involved in that case was very similar in its wording and import to the one under consideration here. It was there argued that persons owning land in the benefit district and residing either in the district or in the city, were eligible to sign. The Supreme Court concurred in that view, and, on page 492 said:
“ ‘Certainly there is no reason why one residing in the corporate limits, but who owns land in the benefit district, should not be eligible to sign the petition.’
“Since it is my opinion that the term ‘resident owners’ must be considered as referring to persons who own property within the proposed district and reside in Hutchinson, those who signed the petition must be held to come within the terms of the statute and thus entitled to sign the petition.”
From the foregoing it appears the trial court was of the opinion the statute in question does not require that the signer of a petition be an owner of record at the time he signs; that the sufficiency of the petition is to be determined as of the date the finding is made by the city commission, and that under the rule announced in Barham v. City of Chanute, 168 Kan. 489, 213 P. 2d 960, resident owners include those persons owning land in the benefit district but who live within the city.
In this appeal counsel for the city adopts the reasoning of the trial court and, in addition, relies upon the case of Shaw v. City of WaKeeney, 187 Kan. 301, 356 P. 2d 832.
With all due respect to the persuasive reasoning of the trial court, we nevertheless believe that it reached an erroneous conclusion in this matter and will state our reasons very briefly.
The above-quoted portion of the statute (G. S. 1961 Supp. 12-6a04) provides that the petition may be found sufficient if signed by persons falling within either of three mentioned classifications— and each classification contains the words “owners of record.” Six of the seven persons who signed the petition on October 24, and the three who signed it on October 25, were not even “owners” as of the date of signing — for they acquired title by a deed executed on October 26. Two persons signed the petition on October 26 — and, for the sake of argument, it may be assumed that, as between the parties, they were “owners” as of the time they signed. The deed, however, was not placed of record until October 27. (In this connection see G. S. 1961 Supp. 67-221, and G. S. 1949, 67-222 and 67-223.) It is undisputed, therefore, that eleven of the twelve signers of the petition were not owners of record of the property in question at the time they signed.
It is quite true the statute does not, in so many words, specifically state that the signers must be owners of record at the time they sign — but we think that is the only logical construction to be given the language used. The test, therefore, to be applied in determining the sufficiency of the petition is whether those who sign are owners of record at the time of signing — rather than as of the date the city commission acts upon the petition.
The facts and question in the Barham case, above, relied upon by the trial court, and by the city in this appeal, distinguish it from the case before us. The question there concerned the right of persons who owned land in the benefit district, and who were residents either of the district or of the city, to sign the petition. Directly involved was the construction to be placed upon the words “resident property owners,” as used in the statute there under consideration. That statute did not contain the words “owners of record,” as does the one presently before us.
The Shaw case, above, also relied upon by the city, likewise is readily distinguishable from the present case. There the court dealt with a statute which specifically provided that the sufficiency of a petition as to the ownership of property was to be determined by the record in the office of the register of deeds at the time of the adoption of the resolution. The statute here under consideration contains no such provision.
Our conclusion, therefore, is this:
The language of G. S. 1961 Supp. 12-6a04, providing for the signing of a petition by “owners of record,” is construed to mean that only those persons who are owners of record at the time of signing the petition are eligible to sign, and the sufficiency of a petition is to be determined on that basis. Applying that test— the petition here was insufficient to authorize the city to proceed. In view of orn- holding, other matters argued in the briefs require no discussion.
The judgment is reversed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by an insured, plaintiff, against his insurance carrier, defendant, to establish liability upon the carrier for failure to defend under a family combination automobile policy, from the order of the trial court sustaining defendant’s demurrer to plaintiff’s evidence, from a further order overruling plaintiff’s motion for new trial, and finally, from the judgment for defendant for costs.
The two errors complained of are that the trial court erred in sustaining the defendant’s demurrer and in its order overruling plaintiff’s motion for new trial.
Plaintiff was insured by defendant under a family combination automobile policy which contained the following provisions pertinent to the questions here involved:
“Part I — Liability
“Coverage B — Property Damage Liability
“B. Injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient. [Our emphasis]
“Persons Insured
“(a) With respect to the owned automobile . . . (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured.
“(b) With respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile . . . not regularly furnished for the use of such relative;
“Definitions
. . . ‘non-owned automobile’ means an automobile . . . not owned by the named insured or any relative. . . .
“Part III — Physical Damage
“Other Insurance ... If the insured has other insurance against a loss covered by Part III of this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of this policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.”
This contract of insurance was entered into in February, 1958. On March 1,1958, while plaintiff, at the request of Evan Schuessler, was driving a 1954 Cadillac owned by and registered in the name of Evans father, Allen M. Schuessler, a rear-end collision occurred between the Cadillac and an automobile driven by Albert C. Carr. The following morning plaintiff reported the accident to the defendant insurance carrier and a representative from the Kansas Claims Service took a statement from him at that time. In December, 1958, Carr sued plaintiff and Evan Schuessler seeking damages in the amount of $25,550. Plaintiff counseled with A. Price Woodard, Jr., an attorney of his own choice, who in turn notified defendant that plaintiff had been sued by Carr.
Evan Schuessler, who was insured under a contract of insurance with the Employers Mutual Casualty Company, was represented by that company’s firm of attorneys, and particularly by Mr. Robert C. Foulston. Since nothing had been heard from or done by defendant in regard to assisting its insured with a defense or defense counsel, Mr. Woodard requested permission from plaintiff to have Mr. Foulston assist him in defending the plaintiff.
Mr. Foulston, prior to this arrangement and on February 13, 1959, had written plaintiff explaining his representation of Employers Mutual, that suit had been filed against plaintiff, and that defendant had taken the position it was not obligated to defend plain tiff under plaintiff’s policy with defendant. Mr. Foulston did not agree with defendant’s contention and he did not wish to have plaintiff placed in jeopardy if some arrangement could be made to avoid it. He further suggested and requested discussion with plaintiff or his attorney, or even with plaintiff’s parents, to try to work out a solution. There had apparently been subsequent correspondence between defendant’s claim manager and Mr. Foulston for the reason that on April 14, 1959, in supplementing his letter of March 23, 1959, to Mr. Foulston, the claim manager stated that defendant has declined to contribute fifty percent in settlement. The claim manager then undertook to set out defendant’s reasons for not participating in the settlement or in defending plaintiff, its insured, but in doing so he confused the policy provisions of section (a) and (b) under “Persons Insured” to the extent that we cannot construe his letter to constitute any reason for defendant’s refusal to represent plaintiff. We also pause to say that during Mr. Foulston’s testimony he stated he had personally examined a similar policy on file in the office of the state insurance commissioner and that the pertinent provisions of the policy issued plaintiff by defendant (hereinbefore set out) were different from the provisions set out in the claim manager’s letter to him of April 14, 1959.
In a letter dated April 30, 1959, from the law firms of both Mr. Woodard and Mr. Foulston, defendant was reminded of plaintiff’s demands for defense and protection, which had repeatedly been refused by defendant. The settlement of $2,000 with Mr. Carr was fully disclosed and defendant was informed that plaintiff would look to defendant for recovery of the amount paid plus attorney fees, interest and costs. Defendant failed and refused to furnish any defense, or defense counsel, to its insured under its contract.
Other exhibits, as well as other facts and circumstances with which we are not presently concerned, are set out in the record but they need not be discussed herein.
Plaintiff subsequently commenced the action out of which this appeal arises wherein the trial court, after introduction of plaintiff’s evidence, sustained defendant’s demurrer thereto and dismissed the jury.
Plaintiff thereafter filed a motion for new trial, which was overruled by the trial court on November 27, 1961, and judgment was entered in favor of the defendant and against the plaintiff for costs. Hence this appeal.
In considering the correctness of the trial court’s order sustaining defendant’s demurrer to plaintiff’s evidence, we turn first to the general rule, as set out in 7A Appleman’s Insurance Law and Practice, § 4683, p. 436:
“An insurer’s duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiff’s pleadings, and if such pleadings state facts bringing the injury within the coverage of the policy, the insurer must defend, irrespective of the insured’s ultimate liability to the plaintiff.”
The above is also the rule in Kansas under Leonard v. Maryland Casualty Co., 158 Kan. 263, 146 P. 2d 378, where it was held:
“The obligation of an insurer, under an automobile liability policy, to defend an action for damages against the insured, is to be determined when action is brought, and not by its outcome.
“The duty of an insurer under an automobile liability policy to defend an action for damages against its insured is not measured by proof which may be adduced at the trial or by outcome of the litigation, but by the allegations of the petition in the action and by the terms and provisions of the insurance contract.” (Syl. f ¶ 1, 2.)
Defendant’s duty to defend in our present case was clearly determined when it was notified Carr had sued its insured for $25,550. Defendant’s contention that its policy was only an excess policy needs no discussion because the petition seeking $25,550 was obviously at least $550 more than the limits of Schuessler’s policy claimed by defendant to be the primary policy. We merely call attention to defendant’s claim its policy was excess and are not determining in this appeal which is the primary and which the excess policy.
The answer to a further contention by defendant that Employers Mutual furnished the money plaintiff used in paying the judgment rendered Carr in the tort action is to be found in Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252,181 P. 2d 498, where it was said:
“. . . the source of payment, if made in good faith, is immaterial to the insurer and cannot be inquired into, and that the payment may be made with borrowed money is no defense.” (p. 259.)
Later cases discussing the duty of an insurer to defend actions against its insured are Bennett v. Conrady, 180 Kan. 485, 489, 305 P. 2d 823; and Jameson v. Farmers Mutual Automobile Ins. Co., 181 Kan. 120, 127, 309 P. 2d 394, and cases therein cited. In the Bennett case we pointed out that the insurer was very meticulous in the defense of and in furnishing legal counsel to its insured but in the Jameson case, as here, the insurer made no effort to defend its insured, (p. 127.) The Jameson case sets out and discusses many basic rules as to the duty and liability of an insurer which we do not deem necessary to repeat here.
Defendant lastly contends that proper service was not obtained upon plaintiff, then a minor, in the tort action and attempts to relieve itself of any obligation to pay the judgment rendered on the ground it was a nullity. Defendant owed a duty to present the question of lack of service in defense of its insured in the original tort action but having failed so to do, it certainly cannot now raise the question as a defense in this action. See Anderson v. Surety Co., 107 Kan. 375, 191 Pac. 583, wherein an action was brought by two insureds (employers) to recover from their insurer damages they had sustained in a tort action brought by an employee, where the insurer could have set up as a defense in the tort action the fact that the employee and the two insureds were engaged in using dynamite in a coal mine in violation of 'law, and that the injury to the employee was thereby occasioned, it was held that the fact could not be set up by the insurer as a defense in the subsequent action by the insureds to recover against their insurer.
In view of the foregoing authorities we conclude the trial court erred in sustaining defendant’s demurrer to plaintiff’s evidence. Other questions raised need not be determined.
The judgment is reversed with directions to overrule the demurrer and try the cause. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by electors of a joint rural high-school district to declare a school-bond election void and to permanently enjoin certain of the defendants from issuing bonds, and for other relief.
Plaintiffs have appealed from an order sustaining separate demurrers to their second amended petition.
The background of the matter is this:
On June 15, 1960, an application was made to the state school fund commission requesting an order authorizing the school board to call a bond election in excess of the limitations set out in G. S. 1959 Supp. 72-2017. The amount of bonds to be issued was $198,000, of which the sum of $39,082.78 was in excess of the statutory limit. The request was granted (G. S. 1959 Supp. 75-2315, et seq.). Pursuant to such authority the board called an election and notice thereof was given — the legality of which is not questioned. The election was held on July 15, 1960. The vote was 120 in favor of the bonds and 68 against — with two unmarked ballots.
On July 20, 1960, the board passed a resolution authorizing the issuance of bonds in the amount of $198,000. On August 15, 1960, they were registered in Ellsworth and Saline counties. The next day the bonds were taken to the attorney general and state auditor. The bond transcript included a “nonlitigation” certificate. On the morning of August 17, 1960, the bonds were registered, were not purchased by the school fund commission, and were released by the state auditor’s office. Ry four o’clock p. m. of that day they were in the hands of defendant bank in Wichita, and within thirty minutes thereafter all of them had been sold to purchasers or holders in due course.
This action was commenced on August 15, 1960, but defendant bank was not served with summons until August 18, 1960.
On September 17, 1960, an amended petition was filed.
On January 20, 1961, plaintiffs filed their second amended petition, in which they named additional parties defendant — namely, Tewksberry, the architect, and Busboom and Rauh, the contractors —of the school building.
There is no occasion to detail the allegations of the second amended petition or of the two earlier petitions, and it is sufficient to say that they alleged certain “irregularities” in proceedings leading up to the calling of the election, concerning the election, and the subsequent issuance, registration and sale of the bonds. The relief sought is best shown by quoting the prayer of the second amended petition:
“Wherefore, Plaintiffs pray that the Defendant School District and its agent, The Stockyards National Bank, be finally and permanently enjoined from issuance of purported bonds under and by virtue of Sections 72-2017, 72-2018, 75-2315, to 75-2318, inclusive, G. S. 1959 Supp., and pursuant to purported orders and a purported election all of which are void and ineffective. That Defendant, The Stockyards National Bank, be ordered to deliver all of the original records pertaining to said purported election to the Clerk of the School Board of Defendant School District; that the Defendant Bank be ordered to take up the bonds sold by it and return them to the Saline County Treasurer; that Defendants, Tewksberry and Busboom and Rauh, and all other persons receiving payment from the proceeds of the sale of the void school bonds, be ordered to re-pay to the Saline County Treasurer, all sums received by them with interest for the period that said sums are held; that the taxes imposed and paid for the payment of said school bonds be returned to the property owners in the school district who paid the same, either by a tax credit against the second installment of the 1960 taxes, or by cash refund. That any damages or shortages incurred in re-payment of said taxes and recalling said bonds shall be adjudged against the Defendants as the Court shall deem just and equitable; for the costs of this action; and for such other equitable relief as the Court deems just and equitable.”
There are at least two reasons why the demurrers were correctly sustained.
The reasonable inferences to be drawn from the second amended petition (in fact, upon oral argument of the appeal they were conceded ) are that the bonds have been sold and are in the hands of holders in due course; the money realized from their sale has been spent; the defendant architect and contractors have been paid; the school building has been built and is in use; a tax levy for the bonds has been made throughout the district, and taxes have been collected.
At no time did plaintiffs secure a restraining order to halt the issuance of the bonds, and there can be no question but that where, as here, the bonds are issued and sold to third parties it is too late to call upon a court of equity to enjoin their issuance or to ask that they be returned. G. S. 1949,10-112, reads:
“All municipal bonds shall constitute a general obligation of the municipality issuing the same and shall recite the authority under which they are issued and that they are issued in conformity with the provisions, restrictions and limitations thereof and that such bonds and the interest thereon are to be paid by such municipality, and such recital when said bonds have been duly registered as herein provided, shall import absolute verity and shall be conclusive in favor of all persons purchasing said bonds, that all proceedings and conditions precedent have been had and performed to authorize the issuance of such bonds and such bonds shall be negotiable.” (Emphasis supplied.)
In State, ex rel, v. McCombs, 129 Kan. 834, 284 Pac. 618, it was said:
“Technical questions as to the validity of a bond issue should be raised early or waived — for the good of the municipality itself as well as for the protection of those who invest in the bonds.” (p. 842.)
See also Citizens Utilities Co. v. City of Goodland, 146 Kan. 172,176, 69 P. 2d 318; City of Kanopolis v. Mountain, 147 Kan. 322, 325, 76 P. 2d 803, and Drenning v. City of Topeka, 148 Kan. 366, 372, syl. 3,81 P. 2d 720,117 A. L. R. 884.
Furthermore, nowhere in the second amended petition is it alleged that the “irregularities” complained of could have or would have changed the result of the bond election. In Stanhope v. Rural High-school District, 110 Kan. 739, 205 Pac. 648, it was said:
‘We have often held that irregularities in elections, where there had been departures from directory provisions of the statute, did not vitiate such elections where such irregularities did not frustrate or tend to prevent the free expression of the electors’ intentions, nor otherwise to mislead them.” (p. 744.)
In Bishop v. Sewer District No. 1, 184 Kan. 376, 336 P. 2d 815, it was said:
“It has long been tire rule in this jurisdiction that in challenging the results of an election plaintiffs must plead and prove the irregularities complained of changed the result of the election. (Citing.)” (p.382.)
The separate demurrers to the second amended petition were correctly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action by landowners to enjoin the City of Topeka and designated officials from certifying to the County Clerk of Shawnee County for collection, or attempting to collect, certain assessments made against their real estate in connection with the curbing, guttering, and paving of a street. The plaintiffs have appealed from a judgment denying them injunctive relief.
The claims of the parties are set forth in the pleadings, pertinent portions of which will be quoted, or stated in summarized fashion, for informative purposes.
The petition, after recital of formal matters, including the status of the parties, reads:
“That the plaintiffs and other similarly situated are all owners of tracts of land situated in the City of Topeka, Shawnee County, Kansas, and are all affected by 1956 Paving Project No. 3, Section 2, of the City of Topeka for the paving of Knollwood Drive from Mulvane Street to the east line of Block G of Knollwood; that said tracts of land owned by the plaintiffs and others similarly situated are not now and never have been platted; that said tracts . . . are not now and never have been within any block within the City . . ., as contemplated by G. S. 1949, 12-601; and that the paving of said Knollwood Drive is an improvement running partially through platted ground and partially through unplatted ground and the platted lots abutting on said street are 123 feet in depth.
"That on the 18th day of March, 1958, the Board of Commissioners of the City of Topeka passed Ordinance No. 9285 which was approved on the same date by the defendant, George G. Schnellbacher, as Mayor of the City of Topeka, which ordinance was first published in The Topeka Daily Capital on the 20th day of March, 1958. That by the terms of said ordinance there is purported to be levied a special assessment upon the tracts of unplatted land owned by the plaintiffs and others similarly situated for curbing, guttering and/or paving of Knollwood Drive from Mulvane Street to the east line of Block G of Knollwood which ordinance is hereby specifically referred to and made a part hereof as fully as if set out herein. That by the terms of said ordinance there is levied or purported to be levied a special assessment on the platted lots abutting Knollwood Drive for such curbing, guttering and/or paving to said platted depth of 123 feet and that said Ordinance No. 9285 unlawfully seeks and purports to assess the unplatted tracts of land of the plaintiffs and others similarly situated through which said street runs to a depth of 309.2 feet and unlawfully subjects said unplatted tracts of land to such purported special assessments for the curbing, guttering and/or paving of Knollwood Drive from Mulvane Street to the east line of Block G of Knoll-wood and that said purported special assessment or levy is unlawful as against the real estate owned by the plaintiffs . . . , for the following reasons, to-wit:
“(1) That said purported special assessments, by the defendants, were purportedly made under the authority of G. S. 1949, 12-601, when the law and in fact, said improvement assessments could not lawfully be made under the terms of G. S. 1949, 12-601.
“(2) That the tracts of land owned by plaintiffs and others similarly situated could only be assessed lawfully for said improvement under the terms of G. S. 1949, 12-606.
“(3) That the appraisement made and used by the defendants as a basis for said special assessments was made in an unreasonable, arbitrary and capricious manner and without due regard for the rights of the plaintiffs. . . .”
The relief sought by the plaintiffs in the prayer of the petition has been previously noted.
In their answer defendants admitted their elective and appointive status and the execution and publication of the Ordinance in ques tion, as charged in the petition, and then denied generally all other allegations of that pleading.
With issues joined as related the case was tried by the district court which held, in substance, that Ordinance 9285 and the assessments levied under its terms on plaintiffs’ land were valid and lawful, and then rendered the judgment heretofore indicated. Thereupon, and after overruling of their motion for a new trial, plaintiffs perfected the instant appeal wherein, under proper specifications of error, they are entitled to appellate review of questions to which we shall presently refer.
The record discloses little, if any, dispute as to the facts. However, it is recognized what has been said up to this point does not suffice to give readers of this opinion a proper understanding of the factual picture required to dispose of the decisive issues involved. Therefore, based on what we are able to glean from the record and the statement of facts made by counsel in their respective briefs, we shall proceed to amplify that picture, even though it involves some repetition.
On March 18, 1958, at a special meeting the City Commission approved the report of appraisers regarding 1956 Paving Project No. 3, Section No. 2, in the City of Topeka, which had been initiated by Ordinance No. 9285. Included in the project and report was the improving by grading, curbing and paving of Knoll-wood Drive from the west line of Burlingame Road to the east line of MacVicar Avenue, except for existing pavement along the north side of Block G in Knollwood.
Portions of the project here involved are limited to property abutting on the north and south sides of Knollwood Drive, lying between Mulvane Street and Old Trail Drive.
At the time assessments were levied, under the terms of the Ordinance in question appellants’ land consisted of an unplatted tract of what appears to have been raw land. The dimensions of this land were 1152 feet, running east and west between Mulvane Street and Old Trail Drive, and 618.45 feet, running north and south between Knollwood Drive and Twenty-ninth Street. The entire tract consisted of approximately sixteen and one-half acres.
Appellants contend the land just described was unplatted, both as to Lots and Blocks. Appellees concede such land had never been platted into Lots and do not deny appellants’ claim it had never been platted into Blocks. However, appellees do claim such land is a “Block,” within the meaning of G. S. 1949, 12-601. So far as this claim is concerned it is interesting to note appellees must stand or fall on the premise that, as a matter of law, such land was a “Block” by reason of the fact that at the time of the involved appraisal and assessments it was surrounded by four streets, lying within the City, namely, Knollwood Drive on the north, Mulvane Street on the east, Twenty-ninth Street on the south, and Old Trail Drive on the west.
Further facts, which may be said to be wholly uncontroverted, can be stated thus.
The assessments levied on appellants’ land were to a depth of 309.225 feet on the south side of Knollwood Drive between Old Trail Drive and Mulvane Street. The assessments levied on the land to the north side of Knollwood Drive, which land was located immediately across the street from appellants’ land and had been platted into Blocks and Lots prior to the time of the appraisal and assessments, were to a depth of 123 feet, i. e., the middle of Block B, Knollwood Subdivision.
The appellees proceeded in the appraisal and assessments under the provisions of G. S. 1949, 12-601, and treated the entire tract of appellants’ land, bounded by Knollwood Drive, Twenty-ninth Street, Mulvane Street, and Old Trail Drive, as a “Block” for assessment purposes, although the tract consisted of approximately eight ordinary city blocks.
Appellants timely filed this action in the district court on April 18, 1958. Trial was commenced in the district court on August 31, 1961. In the interim subsequent purchasers of parcels of appellants’ land were substituted as parties plaintiff. Judgment was rendered on November 3, 1961, for appellees on grounds that at the time the assessments in question were levied the area involved, i. e., the sixteen and one-half acre tract, was a “Block.”
We will first note the pertinent statutes involved. G. S. 1949, 12-601, provides:
“Whenever any street or avenue in any city shall be graded, regraded, paved, repaved, curbed, recurbed, guttered, reguttered, macadamized, re-macadamized, or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.”
G. S. 1949,12-606, reads:
“Where any of the improvements specified in this act are to be made upon streets or avenues, and the pieces of land abutting on such improvement shall not be divided into lots or blocks, the assessments for such improvements shall be made on the piece or pieces of ground adjoining such improvement or through which the same may be located to the distance of 300 feet from the street or avenue upon which such improvements are made extending along the street or avenue die distance improved or to be improved: Provided, That where the street or avenue to be improved runs partially through platted ground and partially through unplatted ground, the assessments for the payment of the cost of the construction of the improvement on the street or avenue running through the unplatted ground shall be levied on the lots and pieces of ground along said street or avenue on either side thereof, to the same distance on either side of said street or avenue as the levy is made where the street or avenue to be improved runs through platted ground: . .
The all-decisive question presented by the record is whether the tract under consideration was a “Block,” within the meaning of G. S. 1949, 12-601, or whether it was “unplatted ground,” within the meaning of the proviso contained in G. S. 1949, 12-606.
What constitutes a "Block” as used in special assessment statutes is not capable of exact definition. The answer must be found in the facts and circumstances of each particular case measured by the statute under consideration. The previous decisions of this court are not too helpful in the case at bar because most of them are predicated upon different factual situations and dissimilar statutes.
In Berndt v. City of Ottawa, 179 Kan. 749, 298 P. 2d 262, this court held:
“Ordinarily the word ‘block’ as used in G. S. 1949, 12-601 and 12-602, refers to a space in a city, usually rectangular, enclosed by streets and used or intended for buddings (following Wilson v. City of Topeka, 168 Kan. 236, 212 P. 2d 218).” (Syl. fl.)
The foregoing general definition has many exceptions. In State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806, it is said:
“. . . While blocks do not have to be any particular size or shape, there are certain standards to which a lot or block must in some measure conform. It cannot be said that the tracts of the size, shape and area disclosed on the purported plat could be construed as T>locks.’ Courts apply to words the definitions already given them by common usage. . . .” (p. 875.)
The fact that a tract may vary in size and shape from other blocks in the city does not prevent its designation as a block. (See Railway Co. v. City of Topeka, 103 Kan. 897,176 Pac. 642; and Atchison, T. & S. F. Rly. Co. v. City of Kingman, 122 Kan. 504, 252 Pac. 220.) However, the size of the tract must be given consideration or a ridiculous and unfair result will be reached. A tract should not be considered as a block, simply because it is surrounded by streets, where it is of sufficient size that it is evident from the development in the area that it will have to be multisected by streets into numerous blocks for the purpose of platting building sites.
In McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438, it is said:
“The claim that a tract of unplatted land, of whatever extent, if surrounded by streets, is a block, and is deemed to be benefited to the center of the tract, although not abutting on the improvement, is not reasonable and does not accord with the manifest purpose of the legislature. Frequently large tracts of unplatted and unoccupied lands lie within the exterior limits of cities, and are surrounded by public highways. If an eighty-acre tract were so situated, would it be contended that it constituted a block within the legislative intention, or that an improvement of a street through one end of the tract could be regarded as a special benefit to the center of the tract, one-fourth of a mile away? It would hardly be argued that the legislature contemplated that one acre of such tract which did not adjoin the improved street, but was in fact eighty rods distant from it, should be taxed for the improvement.” (p. 64.)
The applicable rule in the instant case is well-stated in Union Pac. Rid. Co. v. City of Russell, 119 Kan. 350, 240 Pac. 264, which reads:
“. . . The cases cited in which a general definition of a block is given as a square surrounded by streets is not to be strictly applied in exceptional cases where under the general scheme of platting a platted tract is substantially a block and has been so designated on the plat. In 1 Page & Jones on Taxation by Assessment, in section 628, it is said:
“ ‘In doubtful cases the court has some discretion in determining what a square is. A tract of land which was the size of two ordinary city squares, which was surrounded by streets and opposite the middle of which on either side a street had been opened, but did not extend through the large tract in question, was treated as a consisting of two squares by regarding such street as opened so as to extend through such tract.’
“In Sivyer & Sons Co. v. City of Spokane, 77 Wash. 282, the court considered the question of the meaning of a block as used in an assessment statute, and remarked:
“ ‘Obviously, the legislature never intended to use the word “block” in the broad sense of a square included by four streets, how far soever apart and how large soever the resulting square, but did intend the square included by four streets as located by the system or scheme of streets prevailing generally in the environing city plat in which the given assessment district may be located. By “platted property” is evidently intended lands so included by the regularly placed intersecting streets and by “unplatted property” is intended lands not so included. Fractional blocks and irregular blocks produced by interference with the general street scheme, by the topography of the ground, by joining up with other additions, or by diagonal streets, would, of course, be treated as platted property.’ (p. 286. See, also, Missouri, K. and T. Ry. Co. v. City of Tulsa, 45 Okla. 382; Holt v. Figg, 123 Ky. 167.)” (pp. 353, 354.)
In passing, it is interesting to note that the foregoing quotation from Sivyer & Sons Co. v. City of Spokane (Wash.), supra, was subsequently requoted by this court in Atchison, T. & S. F. Rly. Co. v. City of Kingman, 122 Kan. 504, 507, 252 Pac. 220.
The legislature did not contemplate or intend that a tract be considered as a block for special assessment purposes regardless of its size and surrounding conditions. It was the intention of the legislature to eliminate inequalities, not to create new ones.
See, also, Watts v. City of Winfield, 101 Kan. 470, 168 Pac. 319, where it is said:
“. . . As the blocks affected may be of different sizes, it follows that at one place the line marking the limit of the taxed district may lie farther from the improved street than at another. But this is only such an incidental inequality as may be expected from the application of any general rule designed to give approximately just results, where there is no possible standard by which exact equality may be assured. The statute fixes 300 feet as the distance for which unplatted ground abutting on an improved street shall be required to contribute to the cost of the improvement, but adds the proviso that where a different limit is fixed for adjacent platted property by the center-of-the-block rule, that limit shall control as to the unplatted ground. The manifest purpose of the proviso was to eliminate an existing source of probable injustice and inequality, not to create a new one. The draftsman doubtless had in mind the likelihood that the unplatted land would in time be platted according to the plan prevailing upon the same side of the street, or the presumption that the unplatted property would ultimately derive about the same benefit from the improvement as property already platted, which was similarly situated. . . .
“We regard as untenable the suggestion that the assessed district might be made to include the west half of the entire tract bounded by Andrews and Colorado streets and Fourth and Fifth avenues. This would be to treat that tract as a block of platted land. Under exceptional circumstances a parcel of land in the heart of a city, bounded by streets, has been held to constitute a “block’ for the purpose of the application of the center-of-the-block rule, although no plat had ever been filed designating it as such (Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836); but it does not follow that every piece of ground surrounded by streets is to be so considered, and here no exceptional circumstances are shown such as to require that treatment.” (p. 475.)
The size of the tract here in controversy is out of all proportion to the platted blocks directly to the north and the development plan prevailing in the area. It could not be anticipated that such tract would be developed as a single block without the necessity of additional streets.
In the face of the facts of record we are constrained to hold that the tract involved in this case is not a “Block” as the word is used in G. S. 1949, 12-601. To sustain any contention to the contrary would result in an unfair, inequitable and unjust assessment. It follows such tract should have been assessed as unplatted ground in conformity with the provisions of the heretofore quoted proviso of G. S. 1949, 12-606. We so held in a case involving similar, if not wholly indistinguishable, conditions and circumstances. See Mount Hope Cemetery Co. v. City of Topeka, 190 Kan. 702, 378 P. 2d 30, where, in considering the City’s appeal from an order and judgment of the trial court holding that the City failed to follow statutory provisions of G. S. 1949, 12-606, in levying special assessments against the Cemetery property to a depth of 300 feet while on property on the immediate opposite side of the street it levied assessments to a lesser depth, this court affirmed that portion of the trial court’s judgment when it said and held:
“We now turn to the second question presented which arises out of the appeal of the city wherein the trial court held that the special assessments were unequal, unlawful, arbitrary, capricious, and void. Under the first proviso of G. S. 1949, 12-606, above quoted, to the effect that the levy shall be made to the same distance on either side of the 'said street or avenue,’ we think the trial court’s finding was correct.” (p. 708.)
What has been heretofore considered and discussed in this opinion requires that the judgment be reversed with directions to the district court to enjoin the involved special assessments as levied, and it is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal by the City of Topeka in a criminal case. The appellee, hereinafter referred to as the defendant, was charged with driving under the influence of intoxicating liquor as defined by 26-1004 of the Code of the City of Topeka, 1959, Revised. The defendant was tried on March 26, 1962, by a jury and the jury brought in a verdict finding defendant guilty. Thereafter, defendant was allowed five days within which to file a motion for new trial. The motion was timely filed on March 31, 1962, and included the following grounds: The court admitted illegal testimony; the court misdirected the jury in a material matter of law; and the verdict of the jury is contrary to the law and competent evidence.
The motion for new trial came on for hearing on May 1, 1962, the thirty-first day after the motion had been filed.
The following account of the hearing shows that the only point raised by the city is that the court should not have taken up the motion because more than thirty days had elapsed since the filing of the motion which, the city claimed, was contrary to the provisions of G. S. 1949, 62-1723.
“Mb. Simons: The City objects to taking up this motion by reason of G. S. 1949, 62-1723, which provides that within five days after a verdict or judgment wherein a defendant is found guilty of a criminal offense the defendant must file a motion for a new trial, and that the motion shall be heard as expeditiously as possible but in no event later than thirty days after that motion for new trial is filed. The applicable dates on this case are that the defendant was tried by a jury on March 26, 1962, the motion for new trial was filed on March 31, 1962, that inasmuch as today is May 1, 1962, more than thirty days has elapsed since the date the motion for new trial was filed, the same being March 31. For that reason we feel that 62-1723 as stated earlier controls and the Court should not hear the motion at this time and the defendant is barred from presenting his motion for a new trial.
“The Court: Well, as I understand, this motion was called at the call of the motion docket on April 20.
“Mr. Simons: That’s correct.
“The Court: And at that time counsel for the defendant wanted a continuance until the following Friday. They wanted to get some authorities together to submit which was agreed to by counsel for the City. You had no objection to it as I understand.
“Mr. Simons: I had no objection because of the way it was put to die City at that time, they would like to continue it to prepare a brief. There was no time so far as I recall.
“The Court: And the Court granted that permission to counsel.
“Mr. Simons: That’s Correct.
“The Court: Then the following Friday, I believe, counsel for defendant appeared.
“Mr. Brady: Yes, that was last Friday.
“The Court: And counsel for the City was out of town, so I understand counsel for defendant were prepared to argue it at that time.
“Mr. Brady: That’s correct.
“The Court: Of course, we have a motion for new trial that was timely filed, on file at the beginning of this term, no sentence has been imposed in this case. I think certainly until sentence has been imposed this Court has a right to control over a verdict prior to the time sentence is imposed, and since the motion for new trial was timely filed, this Court of necessity must have the right to rule on the motion. I recognize what the statute says, but I can hardly blame the defendant because defendant’s counsel were here last Friday to take the matter up; so I am going to overrule your objection. I think through no fault of the defendant in this case this matter went beyond the thirty days, and I don’t think it’s jurisdictional anyway because it’s a matter within the term. It doesn’t say if the Court fails to act it loses jurisdiction. I’d like to hear now counsel argue on the merits of his motion.”
It will be noticed in the above account, defendant endeavored to take up the motion before the expiration of the thirty day time limit imposed by the above statute. It hardly seems fair to try to impose the time limit in such a case when the counsel for the city had been accommodated. But despite all this, we cannot see that the trial court lost jurisdiction and under the circumstances of this case we have no question in the matter.
The city attorney has filed an affidavit as provided in G. S. 1949, 13-613 which announced, apparently for the first time, that the city was reserving the question of a motion to dismiss the motion for new trial. It will be noted that in the notice of appeal the city did not appeal from the order granting the motion for new trial, although it is specified as an error. We doubt then that the city as the appellant has in fact appealed from an appealable order. A motion to dismiss a motion for new trial where the motion was denied would certainly not be an appealable order.
Under all the facets of the above case, we feel that the order should be that the appeal be dismissed rather than affirmed. It is so ordered.
Price and Schroeder, JJ., concur in result. | [
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Pierron J.:
Heartland Cement Company (Heartland) and its insurance carrier, Sentry Insurance, appeal the decision of the Workers Compensation Board (Board) awarding Larry Jo Rash workers compensation benefits based on a 65% work disability. Heartland argues the Board erred in not limiting Rash’s benefits to a 16% functional impairment rating because Rash failed to ac cept accommodated employment. Heartland also argues that die Board erred in failing to allow an offset for Rash’s retirement benefits. We find the evidence submitted supports the Board’s findings and affirm.
Rash had worked for Heartland for 34 years. In August 1999, he was employed as a maintenance journeyman and his job duties involved heavy lifting and moving large machinery in order to repair and weld the equipment. Rash worked 40 hours per week, plus an average of 5-6 hours of overtime. His wage was $17.80 per hour, and Heartland also paid for all of his benefits, including health, fife, and disability insurance and a 401K plan.
On August 30, 1999, Rash injured his back while lifting a piece of metal. At the time of the injury, he was 55 years old. Rash saw Heartland’s company doctor, Dr. Wilkins, who prescribed pain pills and muscle relaxers and sent him back to work. Rash continued to work at Heartland. He testified his condition continued to get worse. Heartland would not send him back to the doctor. Rash sought independent medical treatment and was examined by Dr. Larry Atwood. After testing, Dr. Atwood treated Rash with pain pills and muscle relaxers. Rash filed for workers compensation benefits on November 21, 2001.
Rash next sought treatment from Dr. Bradley Bruner, a foot and leg specialist. Dr. Bruner referred Rash to Dr. Amrani. Dr. Amrani scheduled Rash for surgery, but then cancelled the surgery after determining that it would not help Rash’s problems. Dr. Amrani then referred Rash to Dr. Stein.
Rash reinjured his back on January 9, 2002, while cleaning up the shop and lifting another large piece of metal. Rash reported the injury, and Heartland sent him back to Dr. Wilkins and then to Dr. Arnold. Eventually Dr. Pollock performed back surgery on him. The surgery was scheduled for July 22, 2002, but Rash had a massive heart attack which required quadruple bypass surgery. Rash was not given any work restrictions as a result of his heart attack, and it did not affect his ability to work. Rash had back surgery on February 3, 2003.
In June 2003, Rash began preparation of retirement paperwork so that he could retire effective July 31, 2003. Heartland’s person nel administrator, Paula Beeman, testified that Rash filled out the paperwork for retirement benefits from both Heartland and its predecessor U.S. Steel. She testified that as of July 15,2003, when she and Rash signed the necessary documents, his retirement had been approved.
Heartland offered Rash an accommodated position and told him to report to work on August 25, 2003. Rash reported for work on August 25, but he remained in the change house the entire day and did not engage in any tasks. Rash was informed that if he decided not to retire, he needed to complete employment papers in order to be back on the system to clock his time and get paid. Rash did the same thing on August 26.
On August 27, 2006, Rash had another appointment with Dr. Pollock, and following the appointment, Dr. Pollock restricted Rash from performing any further work: “Maximum lifting 20 lbs. at home with occas. bending, twisting, standing as tolerated. Patient cannot return to work. He has reached MMI.” Dr. Pollock opined that Rash had a 11% functional impairment and a 48% task loss.
Dr. Edward Prostic performed an independent medical examination on Rash in December 2001 and again in October 2003. Dr. Prostic opined that Rash suffered an injury to his lower back in the course of his employment with Heartland and adopted the same restrictions as Dr. Pollock. Dr. Prostic gave Rash a 20% functional impairment rating and a 63% loss of work tasks.
Monty Longacre, a vocational rehabilitation counselor and job placement specialist, evaluated Rash for both task loss and wage loss. Longacre identified jobs on the Internet or in the newspaper within Rash’s work restrictions. These jobs ranged in pay from $5.25 to $8 per hour, with one job as an outside sales position with a communications company paying up to $40,000 per year.
The administrative law judge (ALJ) relied on Dr. Pollock’s determination that Rash had a 25% functional impairment to the body as a whole based on tire diagnosis-related estimates (DRE) method and that Dr. Pollock had not used the DRE method when he previously rated Rash with an 11% functional impairment. The ALJ acknowledged all the task loss and wage loss determinations by the various doctors in this case but denied work disability benefits due to Rash’s receipt of retirement benefits, stating: “[F]ollowing the Willie McIntosh v. Sedgwick County case of 91,097 in the Court of Appeals of the State of Kansas, [32 Kan. App. 2d 889, 91 P.3d 545, rev. denied 278 Kan. 846 (2004),] I find that K.S.A. 44-50Ih applies and that the Claimant is not entitled to a duplication of wage loss and therefore award only a 25% impairment of function to the body as a whole.” Rash appealed the decision to the Board.
The Board disagreed with the ALJ’s decision and concluded that under Watson v. Johnson Controls, Inc., 29 Kan. App. 2d 1078, 36 P.3d 323 (2001), when a worker fails to make a good faith effort to find appropriate employment, he or she is not automatically limited to the functional impairment rating. Rather, the postinjuiy wage for the permanent partial general disability formula should be based upon all the evidence, including expert testimony concerning the worker’s retained capacity to earn wages.
The Board averaged the 11% functional impairment rating offered by Dr. Pollock and the 20% functional impairment rating offered by Dr. Prostic and concluded Rash had a 16% impairment of function to the body as a whole. The Board found Rash had not made a good faith effort to find appropriate employment and the evidence was overwhelming that Rash’s low back injury did not prevent him from working, nor had the doctors restricted him from working. However, the Board concluded there was no evidence of what wages Rash would have been paid in his accommodated position at Heartland and Longacre’s opinion regarding Rash’s retained ability to earn wages was the only opinion of record. Based on Longacre’s opinion that Rash could now earn $265.60 per week and his stipulated preinjury wage was $1,036.82, the Board concluded that Rash had a 74% wage loss. The Board also averaged the doctors’ opinions of Rash’s task loss and concluded that he had sustained a 56% task loss due to his work-related injury. The average of the wage loss and task loss resulted in a 65% work disability, and Rash was awarded benefits based on a 65% work disability.
The Board rejected Heartland’s argument that Rash’s benefits should be reduced by the amount of retirement benefits he was receiving. The Board held that the provisions regarding retirement benefit reduction under K.S.A. 44-501(h) do not apply to Social Security disability benefits. The Board also found Heartland had faded in its burden to prove the pension was a company pension based on Beeman’s testimony that Rash’s retirement pension came from funds he had paid into the retirement plan.
The Board’s decision was not unanimous. The dissent agreed with the majority that Rash had failed to make a good faith effort and the record had failed to set forth the wages he would have earned in the accommodated job. However, the dissent stated: “But we would find that it was more probably true than not true that the accommodated job would have paid a wage that was comparable to claimant’s pre-injury wage, which would limit claimant’s permanent partial general disability to his 16 percent whole person functional impairment rating.”
Heartland first argues the Board erred in not limiting Rash’s benefits to the percentage of his functional impairment.
K.S.A. 2005 Supp. 44-556(a) specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. The KJRA limits the relief granted on appeal to just a few issues, including the agency’s erroneous interpretation of law and findings of fact not supported by substantial evidence when viewed in light of the record as a whole. K.S.A. 77-621(c)(4) and (7). The 1993 workers compensation amendments limited review of all orders after October 1, 1993, to questions of law. See K.S.A. 2005 Supp. 44-556(a). Whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991).
K.S.A. 44-510e(a) provides for permanent partial general disability so long as the claimant is not making postinjuiy wages equal to 90% or more of the claimant’s preinjury average weekly wage:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injuiy. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein. An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at dre time of the injuiy.”
Our courts, however, have denied work disability where dre claimant is capable of earning a postinjury wage but fails to do so. See Lowmaster v. Modine Mfg. Co., 25 Kan. App. 2d 215, 217, 962 P.2d 1100, rev. denied 265 Kan. 885 (1998); Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 318-19, 944 P.2d 179 (1997); Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). “[A]n employee must set forth a good faith effort to secure appropriate employment before work disability will be awarded. [Citations omitted.]” Cavender v. PIP Printing, Inc., 31 Kan. App. 2d 127, 130, 61 P.3d 101 (2003).
In Foulk, decided in 1994, the claimant refused to accept an accommodated position offered by her employer but still claimed that she was entitled to work disability. The Foulk court disagreed:
“The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage. Further, it would be unreasonable for this court to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system.” 20 Kan. App. 2d at 284.
Three years later, in Copeland, this court, attempting to harmonize the language of K.S.A. 44-510e(a) with the principles of Foulk, stated:
“[W]e find the factfinder must first malee a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre-and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.
“If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” Copeland, 24 Kan. App. 2d at 320.
In Lowmaster, the claimant was injured on the job, saw a doctor, worked 2 more days on the job, and then quit. She then filed a workers compensation claim. The respondent could have offered accommodated employment but did not do so. The Board held it could not say that the claimant would have refused accommodated employment; therefore, the facts were materially different than Foulk, and the claimant was granted work disability. This court reversed and remanded for further proceedings consistent with Foulk and Copeland. Lowmaster, 25 Kan. App. 2d at 218-19.
In Oliver v. Boeing Co., 26 Kan. App. 2d 74, 76, 977 P.2d 288, rev. denied 267 Kan. 889 (1999), we stated that Foulk, Copeland, and Lowmaster “create an exception and hold that a claimant is barred from wage loss compensation if he or she is capable of earning 90% or more of the employee’s preinjury wage level within medical restrictions but fails to do so.” Oliver was injured while working for Boeing. He sought medical treatment and was temporarily placed in a lighter duty position. He was later placed back in his original position, and the pain reoccurred. Oliver sought medical treatment, and a doctor diagnosed early carpal tunnel syndrome; however, Oliver was not given medical restrictions, and he resigned. After his resignation, Oliver was employed by a construction company but again was forced to quit because the work aggravated his condition. He ultimately found a job making less money than he did at Boeing. At that point, Oliver filed a workers compensation claim and was awarded a wage loss.
On appeal, Boeing argued that Oliver did not give it the opportunity to offer an accommodated position before he quit. Boeing suggested that according to the Board’s decision, an employee had a legal duty to request accommodated employment once medical restrictions had been issued. On appeal, the Oliver court held:
“Neither K.S.A. 1998 Supp. 44-510e(a) nor Foulk’s policy exception require a claimant to seek post-injury accommodated work from his or her employer in every circumstance. The statute is concerned only with how much is made, not where the claimant is working. Foulk and its progeny are concerned with a claimant who is able to work but refuses to do so. Boeing does not cite any law supporting an absolute duty to seek accommodated work from the employer before looldng elsewhere.
“Just as the Act does not impose an affirmative duty upon the employer to offer accommodated work, [citation omitted], it also does not establish an affirmative duty upon the employee to request accommodated work. Whether a claimant requested accommodated work from an employer is just one factor, viewed along with the rest of the record, in determining whether die claimant in good faith attempted to obtain appropriate work.
“Boeing points out its interest in avoiding liability under the Act and argues it would have readily accommodated Oliver once legitimate restrictions were in place. While Boeing raises a notable point, this sort of broad interest balancing is best left to the legislature.” 26 Kan. App. 2d at 77.
In order to avoid the Foulk exception, the claimant must make a good faith effort to find appropriate employment. Copeland, 24 Kan. App. 2d at 320. The factfinder makes that determination. Parsons v. Seaboard Farms, Inc., 27 Kan. App. 2d 843, 846, 9 P.3d 591 (2000). The claimant generally has the burden to show good faith. See, e.g., Cavender, 31 Kan. App. 2d at 133 (claimant met burden of showing good faith effort to find appropriate employment); but see Palmer v. Lindberg Heat Treating, 31 Kan. App. 2d 1, 4, 59 P.3d 352 (2002) (If the employer contests the claimant’s continuing good faith efforts to find appropriate employment after the workers compensation hearing, it has the burden of proof as that term is defined by K.S.A. 2005 Supp. 44-508[g]).
“Any inquiry into the good faith of an employee’s efforts to find appropriate employment must proceed on a case-by-case basis. Where the Board finds an employee made a good faith effort, the Board’s determination will be upheld if supported by substantial competent evidence. Where the Board finds an employee did not malee a good faith effort, the Board’s determination will be upheld absent an arbitrary disregard of uncontroverted evidence or an extrinsic consideration such as bias, passion, or prejudice.” Parsons, 27 Kan. App. 2d at 848.
In awarding Rash work disability, the Board based its decision on Watson, 29 Kan. App. 2d 1078. In that case, Watson began having problems with her right elbow, right wrist, and left side, and then later with her left arm. After treatment, Watson returned to work but was laid off and then later declined to return to work for Johnson Controls. She began working full time at J.C. Penney but quit because she could not do the work anymore. Johnson called Watson back to work in a light-duty cleanup job. She worked 1 and V% days and then resigned. She then had jobs at a grocery store, a laundromat, and an in-home daycare. The ALJ found Watson had a 9.5% functional impairment and, after computation, a 31.75% work disability. The Board affirmed the functional impairment rating but modified the award by finding that Watson was entitled to a 50% work disability.
On appeal, Johnson argued that Watson’s workers compensation award should have been limited to benefits for functional impairment because she voluntarily resigned from an accommodated position. The Watson court rejected Johnson’s argument:
“Johnson also asks this court to ‘refine’ the standards for determining a disability award that have been developed through Copeland II, 26 Kan. App. 2d 803[, 995 P.2d 369 (1999)]; Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997) (Copeland I); and Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
“Specifically, Johnson appears to be asking for stricter penalties for not making a bona fide search for employment. We see no need for this. Under Copeland I: ‘If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.’ 24 Kan. App. 2d at 320.
“This is precisely what the Board did. A failure to make a good faith effort simply allowed the Board to make its decision on facts which maybe less favorable to the claimant had a good faith effort to find employment been made.” Watson, 29 Kan. App. 2d at 1082.
Heartland argues this case is controlled by Foulk and Copeland and the Board has erroneously applied Watson. Heartland argues that application of the above case law should result in a finding that Rash is clearly not entitled to an award of benefits over and above his functional impairment. Heartland states that Rash failed to even attempt the offered accommodated work and should be limited to functional impairment as was the case in Foulk.
Rash contends the Board correctly applied the above case law in concluding that since he did not make a good faith effort to find postinjury employment, it was necessary to determine the appropriate postinjury wage based on all the evidence. See Copeland, 24 Kan. App. 2d at 320. We agree. Rash states that Heartland does not challenge the substance of the Board’s decision that he had a 74% wage loss and a 56% task loss resulting in a 65% disability rating. Consequently, Rash states there is substantial competent evidence to support the Board’s conclusion on work disability.
We find the Board correctly resolved this case considering the evidence presented, and we affirm its findings of facts and conclusions of law. It appears the Board relied heavily on the fact that there was no testimony regarding the pay rate for the accommodated job offered by Heartland. This is apparently confirmed by the dissent to the Board’s decision, which speculated that Rash would have earned the same wage in the accommodated position. We, like the Board’s majority, will not engage in speculation. The only evidence of postinjury wages and Rash’s capacity to earn wages came from Longacre’s opinion regarding Rash’s retained ability to earn wages. Based on Longacre’s opinion that Rash could now earn $265.60 per week and that his stipulated preinjury wage was $1,036.82, the Board concluded that Rash had a 74% wage loss. As noted earlier, the Copeland court announced: “If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” 24 Kan. App. 2d at 320. There was no evidence presented to counter Longacre’s opinion and it was the only evidence before the Board on the nature of potential postinjury employment for Rash.
The determination of Rash’s postinjuiy wage does not rise to the 90% wage level penalty in K.S.A. 44-510e. Consequently we will not limit Rash’s work disability to the value of his functional impairment. See Oliver, 26 Kan. App. 2d at 77 (“The statute is concerned only with how much is made, not where the claimant is working.”).
Heartland would have us punish employees with a harsher result for not accepting accommodated employment. This argument is contrary to Oliver. The lesson from Oliver is that an employer is not required to offer accommodated employment. Equally, an employee is not required to accept an offer of accommodated employment from his or her employer. The offering or accepting of accommodated employment is simply another factor in determining whether the employee has engaged in a good faith effort to seek appropriate employment. An employee who rejects an offer of accommodated employment has a good faith duty to seek appropriate employment within his or her restrictions. If the employee fails in this effort, “the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” Copeland, 24 Kan. App. 2d at 320.
The Board’s conclusion of a 65% work disability rating for Rash is supported by the evidence. The Board did not err in concluding that Rash was entitled to work disability beyond his functional impairment. The result requested by Heartland would require a statutory change.
Heartland also argues the Board erred in not allowing an offset for the retirement benefits Rash was receiving. Heartland argues the ALJ entered the proper award by reducing Rash’s workers compensation benefits by his retirement benefits and the ALJ’s award should be reinstated.
K.S.A. 44-501(h) provides:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
At the time of the regular hearing, Rash was receiving monthly payments of $1,563 from Social Security disability and $538 from Heartland and its predecessor. Rash testified he had not paid any money for the pension he received from Heartland; it was part of the fringe benefit package negotiated by the union. Beeman testified the pension money Rash was receiving from Heartland was money he had paid into the pension plan and is now being paid back to him.
Heartland argues this case should be remanded to the ALJ for determination of the exact nature of the funds being paid to Rash as retirement benefits because of the conflicting testimony of Rash and Beeman. Heartland states that it asked the Board to remand to the ALJ for this determination, but the request was denied. Rash argues the Board judged the evidence before it and determined Beeman’s testimony was the most rehable. Rash correctly states that it is not the position of this court to reweigh the evidence or pass on tire credibility of the witnesses. Heartland asks for a remand to present additional evidence on this topic.
In a workers compensation case, the burden of proof is on the claimant to establish the right to an award. Perez v. IBP, Inc., 16 Kan. App. 2d 277, 279, 826 P.2d 520 (1991). Once the claimant has met this burden, the respondent employer has the burden to demonstrate any exception.
The Board found that Heartland had not carried its burden of proof on this issue. The Board found that Heartland failed to prove the pension was a company pension based on Beeman’s testimony that Rash’s retirement pension came from funds Rash had paid into the retirement plan. This is a negative finding that will not be disturbed on appeal unless there was an arbitrary disregard for undisputed evidence or an extrinsic consideration such as bias, passion, or prejudice. Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997). Further, this court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Stovall v. Meneley, 271 Kan. 355, 387, 22 P.3d 124 (2001).
We find no such extrinsic considerations present in this case. The Board relied not on evidence from Rash but from Beeman, the personnel administrator for Heartland, in determining that Rash’s pension was from his contributions. We agree with the Board’s decision that Heartland failed to carry its burden of proof in this regard. We further are not inclined to set aside the Board’s negative finding because of the absence of any extrinsic factors. We hold that the Board did not err in refusing to apply an offset for retirement benefits under K.S.A. 44-501(h).
Although Heartland’s evidence may not have been presented as clearly as Heartland would have wanted, we are not in a position to grant “overs.”
Affirmed. | [
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The opinion of the court was delivered by
Price, J.:
Following a raid by officers at an establishment on lower Kansas Avenue in the city of Topeka, the defendant was charged with setting up and keeping a gambling table, in violation of G. S. 1949, 21-915. He was convicted as charged, and, following the overruling of his motion for a new trial, has appealed and alleges sixteen specifications of error.
At the outset, it should be stated that this court has read the record presented and has considered each of the alleged errors specified. No new or novel points of law are involved, and certainly no useful purpose would be served by detailing the evidence or by taking up and discussing in detail each of the alleged errors. The court is convinced that the appeal is completely without merit and that the judgment must be affirmed. Nevertheless, a few of the alleged errors will be mentioned and discussed briefly.
It is contended the court erred in overruling the motion to quash and the plea in abatement. Apparently the grounds for these motions are that the information does not state a public offense and that defendant was denied a preliminary hearing. The information is substantially in the language of the statute and a public offense was sufficiently charged. The record indicates — and upon oral argument it was admitted — that defendant, while represented by counsel, had previously waived his right to a preliminary hearing. Both motions were properly overruled.
It is contended the court erred in overruling the motion to discharge at the close of the state’s evidence. This motion likewise was without merit, for the evidence clearly established defendant to be in charge of and “keeper” of the dice game within the meaning of G. S. 1949, 21-915 and 21-935.
It is contended the court erred in admitting evidence secured by entrapment. A short answer to this argument is that under the facts shown there simply was no element of “entrapment” in any sense of the word.
It is contended the court erred in admitting evidence secured by illegal search and seizure. This argument likewise is without merit. The raid was made by officers under the authority of a search warrant for liquor violations, but it does not follow they were completely impotent to act when, during the process of the raid, they discovered the gambling activities in question.
Another alleged error concerns the alleged prejudicial effect of a news story and picture appearing in a local newspaper during the progress of the trial. It does not appear this matter was raised at the hearing on the motion for new trial, and, in any event, no prejudice has been made to appear.
It also is contended the state’s cross-examination of defendant relating to previous arrests and convictions was prejudicial. The rule is that when a defendant in a criminal prosecution takes the witness stand he subjects himself to inquiry concerning his past criminal record, and the contention is without merit.
It also is argued that defendant was prosecuted for and convicted in police court of offenses growing out of the same facts here charged —thus subjecting him to “double jeopardy.” The contention is not good, and in this connection see City of Garden City v. Miller, 181 Kan. 360, 365, 366, syl. 3, 311 P. 2d 306.
Finally, it is contended the trial court erroneously denied a transcript without cost as provided by G. S. 1961 Supp. 62-1304. On this point the record is not entirely clear, but, in any event, it is an established fact that a continuance was granted in this court until such time as defendant could secure a transcript — and that he did secure one. No prejudice has been claimed or shown.
A number of other alleged errors are mentioned, but require no comment. An examination of the entire record and all contentions made fails to establish anything remotely approaching prejudicial erroi\ It appears that during all stages of the trial defendant’s rights were diligently protected by court and counsel, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for damages which plaintiff alleged she sustained as the result of a fall at an ice skating rink on February 1,1959. The jury returned a verdict in favor of the plaintiff, and the defendant has appealed.
The action was commenced against George Bennett, “an individual doing business as Lakeside Enterprises” on January 19, 1961, thirteen days before the statute of limitations had run. (G. S. 1949, 60-306, Third.) Service was obtained upon the individual defendant on January 21, 1961, and on February 17, 1961, some seventeen days after the statute of limitations had run and within the time for a responsive pleading, the defendant filed a motion for additional time to plead, which was granted by the court. Thereafter, the defendant filed a motion to make definite and certain which was sustained in part and the plaintiff filed an amended petition. The defendant filed a demurrer which was overruled, and on June 7, he filed his answer in which he admitted his residence, but denied each and every other allegation including his operation of Lakeside Enterprises as an individual. He further alleged that if plaintiff sustained any injury, such injury was caused by her negligence. On the following day, June 8, 1961, plaintiff filed her reply to defendant’s answer thus forming the issues for trial.
On October 5,1961, at a pretrial conference the plaintiff requested that the individual defendant admit he was the owner and operator of the Lakeside Enterprises. The record indicates the following:
“Mr. Kancel: . . . My question is: Are we going to have to prove at the time of trial that the defendant George Bennett was the owner and operator of this business?
“The Court: Well, you’re going to have to do it unless they admit it.
“Mr. Kancel: Well, I’m not — all I want to know is are we going to have to prepare to prove George Bennett was the owner and operator of this business. If you don’t admit it, I will.
“Mr. Mahoney: I will tell you, I’m not in a position to admit or deny it now.”
However, counsel for the defendant admitted that George Bennett was- the owner of the real estate upon which Lakeside Enterprises wás constructed.
On November 20, 1961, the trial began but prior to the impanel-ling of the jury, plaintiffs counsel requested another pretrial conference “for the purpose of determining whether or not George Bennett was the correct and proper party defendant in this cause of action,” and “to ascertain whether or not the counsel for the defense would stipulate as to the ownership and operation of the Lakeside Ice Skating Rink.” Thereafter the following colloquy occurred:
“The Court: Well, the pleading in paragraph 2 states, ‘that at all times the defendant,’ now, that’s George Bennett, ‘was an individual doing business as Lakeside Enterprises and was engaged in the operation of various concessions for the entertainment of the public, one of which was a public ice skating rink located at 91st and Leavenworth Road,’ that’s which is involved in this case. It doesn’t relate to the title to the real property as far as the petition is concerned. I will ask counsel for the defendant if they care to state who operated Lakeside Enterprises at the time it’s mentioned and complained of in the petition.
“Mr. Niewald: Yes, Your Honor, George Bennett Construction Company, Inc.”
The record indicates that the George Bennett Construction Company, Inc., was incorporated on December 30, 1958, some 28 days before the accident, and was the operator of the ice skating rink on February 1, 1959; further, at no time did plaintiff’s counsel request that counsel for the defendant stipulate that George Bennett Construction Company, Inc., was the operator of the ice skating rink and the correct party defendant. Thereafter, counsel for plaintiff stated:
“Mr. Kancel: Your Honor, based on the pleadings, and no issue under oath has ever been filed on behalf of the defendant denying under oath that he did in fact operate the rink, we move the Court that under G. S. 60-705, that gives the Court the power at his discretion to amend the pleadings, to allow us to bring in George Bennett Construction Company, Inc., which the defendant has just read into the record — that they admit operated the rink; that we move the Court allow us to amend our pleadings to conform to this admission on the part of the defendant.
“The Court: You said 705. That’s grounds of demurrer.
“Mr. Dolinar: That statute is 60-759, Your Honor.
“The Court: I have that power before the statute runs. I don’t have that power after the statute.
“Mr. Dolinar: If it isn’t the plaintiff would again like to ask the Court for leave to amend its pleadings so as to include the name ‘Construction Company, Inc.,’ on the style of the law suit behind the name of George Bennett. Pardon me, leave to amend so as to change the style of the suit to read from ‘George Bennett’ to ‘The George Bennett Construction Company, Inc.,’ based upon the admission of the defendant this morning that the George Bennett Construction Company, Inc., did, in fact, operate the Lakeside Ice Skating Rink.
“The Court: At the time of the accident.
“Mr. Dolinar: At the time of the alleged injuries on February 1, 1959.” (Emphasis supplied.)
The district court observed that it had the power to make the requested amendment either before or after judgment in the furtherance of justice, but before deciding whether the plaintiff’s request was in the furtherance of justice it wanted to hear all the evidence, and the trial proceeded.
Plaintiff made an opening statement to the jury and introduced evidence that on February 1, 1959, she went to the Lakeside Ice Skating Rink to skate; that she paid her admission; that after skating for approximately two or three hours she left the ice portion to go to the concession stand, that after taking two or three steps her skate blade caught suddenly and lodged in a space between the heavy solid rubber mats placed upon the cement floor between the ice portion of the rink and the refreshment stand, and that the cracks or spaces between the mats were hidden by ice and slush which had collected there.
The plaintiff produced three witnesses who were employees of the Kansas City Kansan, a local daily newspaper, one of whom was John R. Thompson who, on cross-examination, identified three checks of the George Bennett Construction Company, Inc., dated both prior to and after the date of plaintiff’s alleged fall, to prove that the corporation paid the paper for the advertising of Lakeside Enterprises. The plaintiff rested her case, and the defendant demurred to plaintiff’s evidence, which was overruled. The record indicates the defendant elected to stand on his demurrer to plaintiff’s evidence, and rested. Thereafter, the following proceedings occurred:
“Mr. Ivancel: If the court please, at this time based upon the admission of the defendant at the pre-trial preceding the trial that the George Bennett Construction Company, Inc., was the operator of the ice skating rink on February 1, 1959, we respectfully request that the proposed amendment which is under consideration by the Court to include George Bennett Construction Company be granted at this time or be ruled on, also based upon the evidence that the defendant has introduced in regard to these checks and the payment of these debts.
“Mr. Niewald: We would make the same, objections to the amendment, Your Honor. We are not contending, of course, that George Bennett Construction Company, Inc., was not the operator of this skating rink. We still would object to the amendment for the grounds set forth in the argument and the briefs and the law submitted to the Court before we commenced the actual trial of this law suit.
“The Court: I was sustaining it to substitute the name George Bennett Construction Company, Inc., in lieu of George Bennett doing business as Lakeside Enterprises because of the proof offered by the defendant' — •
“Mr. Mahoney: Well, if Your Honor please, if I may—
“The Court: Distinguished as being a co-defendant.
“Mr. Mahoney: That was their motion — to join him as a co-defendant.
“The Court: I understand that but probably I should have stated it clearly at the time. I am permitting the amendment to substitute the George Bennett Construction Company, Inc., in lieu of George Bennett doing business as Lakeside Enterprises in view of the evidence offered by the defendant.
“Mr. Mahoney: May I ask the plaintiffs if they are amenable to the Court’s ruling that the defendant, George Bennett, be substituted for by the defendant, George Bennett Construction Company, Inc., in view of the fact their original motion was to join the construction company, Inc., as a co-defendant?
“Mr. Kancel: Your Honor, based upon the defendant’s admissions, we are.
“Mr. Mahoney: You are agreeable with the substitution?
"Mr. Kancel: Correct.” (Emphasis supplied.)
Thereafter, counsel for the defendant advised the court that they were not entering the appearance of George Bennett Construction Company, Inc., and they moved for judgment upon the ground that the statute of limitations had run as to the plaintiff against any party other than George Bennett an individual doing business as Lakeside Enterprises. The motion was overruled.
The defendant principally contends that when the district court sustained the plaintiffs motion to amend the petition as to parties defendant and substituted George Bennett Construction Company, Inc., in lieu of the individual defendant, some nine months after the statute of limitations had run (G. S. 1949, 60-806, Third) the plaintiff had no enforceable cause of action against any defendant and the action should have been dismissed. The point is well taken. Throughout the lawsuit there was never any question as to the position of the individual defendant. He denied always the claim that he had the authority alleged in the petition and the first time he was requested to do anything other than admit that he was the owner of the real property, he stated frankly that the George Bennett Construction Company, Inc., operated the ice skating rink and was the proper party defendant.
The plaintiff alleged and proved she sustained injury on February 1, 1959, and any claim she had against the operator of the ice skating rink became unenforceable from and after February 1, 1961. (G. S. 1949, 60-306, Third.)
While the district court is authorized by G. S. 1949, 60-759, either before or after judgment, in the furtherance of justice and on such terms as may be proper, to amend any pleading by adding or striking out the name of any party when the amendment does not change substantially the claim or defense, it did not sustain the plaintiff’s motion to make the George Bennett Construction Company, Inc., a party defendant until November 22,1961, which was more than nine months after the statute of limitations had run as to the plaintiff against that defendant. It is well settled in this state that G. S. 1949, 60-759 does not permit the naming of another defendant after the statute of limitations has run as to plaintiff’s cause of action. This point was decided in the recent case of Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 347 P. 2d 438, where it was held:
“It is clear that a pleading, though filed in time against one party under the foregoing statute, cannot be amended after the expiration of the statute of limitations to name another party as a defendant. (Anderson v. Railroad Co., 71 Kan. 453, 80 Pac. 946; Garrity v. Board of Administration, 99 Kan. 695, 162 Pac. 1167; Challis v. Hartloff, 133 Kan. 221, 299 Pac. 586; see, also, Garney v. Railroad Co., 112 Kan. 823, 212 Pac. 659; Lukens v. Payne, 118 Kan. 547, 235 Pac. 841; and Commercial Nat’l Bank v. Tucker, 123 Kan. 214, 254 Pac. 1034.)” (1. c. 651.)
In Garrity v. Board of Administration, supra, it was held:
“The filing of a petition against A reciting facts which would authorize an action to be maintained against B will not toll the statute as to B, if he is not made a defendant until after the statute has run.” (Syl. ¶[ 2.)
In Challis v. Hartloff, supra, it was said:
“ ‘The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.’” (1. c. 223.)
In Anderson v. Railroad Co., supra it was held:
“In an action against a railroad company for permanently appropriating a street in front of plaintiff’s lots by laying its track therein, stopping his ingress and egress, damages were claimed as for a fjuasi-condemnation for the property by the wrongful use of the street. After the action had been pending for more than ten years plaintiff, by amendment, sought to bring in another railway company as defendant, charging it with conspiring with the first to appropriate the street. Held, that any recovery against the new defendant was barred by the statutes of limitations.”
We have examined, not overlooked, the authorities cited by the plaintiff from foreign jurisdictions that the district court had authority to substitute the corporate defendant for the individual defendant after the statute of limitations had run. Those authorities are not controlling. As we have seen, it is the law of this state that the filing of a petition against the individual defendant reciting facts which would authorize an action to be maintained against the corporate defendant will not toll the statute as to the latter, if it was not made a defendant until after the statute had run. (Garrity v. Board of Administration, supra.)
The record discloses that counsel for plaintiff was first advised by answer that the individual defendant denied the operation of the skating rink. At the pretrial conference on October 5,1961, counsel for plaintiff attempted to get the individual defendant to stipulate that he was “the owner and operator of the business.” He admitted he owned the property, but did not admit he operated the skating rink on February 1, 1959. Thereafter, on motion of the plaintiff, the court substituted the corporate defendant in lieu of the individual defendant and the case proceeded against the corporate defendant. We think it is clear that when the corporate defendant was substituted in lieu of the individual defendant, the court’s order had the effect of dismissing the action as to the individual defendant, and there then existed no defendant against whom the plaintiff had an enforceable cause of action.
G. S. 1949, 60-3317 relates to powers of the supreme court on appellate review, and reads, in part, as follows:
“. . . in any case pending before it, the court shall render such final judgment as it deems that justice requires, or directs such judgment to be rendered by the court from which the appeal was taken. . . .”
In accordance with the foregoing statute, we are of the opinion this case must be reversed with directions to the district court to enter judgment dismissing plaintiff’s action.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action challenging the constitutional validity of a municipal ordinance of Kansas City, Kansas, requiring a license for the operation of pinball machines. The trial court held the ordinance unconstitutional, and appeal has been duly perfected by the city.
The plaintiffs (appellees) operate small businesses varying in type within the confines of the city of Kansas City, Kansas. Most of them have coin-operated amusement devices known as pinball games located in or on the premises where they conduct their business. Their regular business is entirely separate and apart from these coin-operated amusement devices, although these devices do produce additional income.
By their amended petition the plaintiffs set forth material facts including the ordinance in question and state that most of the plaintiffs have purchased $250 Federal tax stamps in connection with their operation of these pinball games; that these stamps were purchased when plaintiffs were informed by Federal agents that all such coin-operated devices were subject to the $250 Federal tax, whether there was gambling on such devices or not. They allege the rule-making authority of the Federal Revenue Bureau adopted a regulation making coin-operated devices of the type operated by plaintiffs subject to this $250 tax, irrespective of whether the device was used for gambling of any kind. This rule was promulgated pursuant to U. S. C. A., Title 26, § 4462 (a) (2).
The ordinance in question was adopted on the 16th day of November, 1961, by the city commissioners of Kansas City, Kansas. The portion material to this appeal reads as follows:
“Ordinance No. 43040
“An Ordinance regulating and imposing a license fee for the privilege of keeping or operating coin-operated amusement devices, providing for the revocation of such license, and providing penalties for violation thereof.
“Be it Ordained by the Governing Body of the City of Kansas City, Kansas:
“Section 1. Any person, firm or corporation displaying for public patronage or keeping for operation any coin-operated amusement device shall be required to obtain a license from the City of Kansas City, Kansas, upon payment of a license fee. Amusement devices shall include but not be limited to pinball machines.
“Section 2. Applications. Application for such license shall be made to the City License Department upon a form to be supplied by the License Department. The application for such license shall contain but not be limited to the following information:
“(a). Name and address of the applicant, age, date and place of birth. Name and address of owner of machine.
“(b). Place where machine or device is to be displayed or operated and the business conducted at that place.
“(c). Description of machine to be covered by the license, mechanical features, name of manufacturer, serial number.
“(d). Whether applicant or owner has paid a current $250.00 federal occupational tax for the use or permit to use on any place or premises in Kansas City, Kansas, a coin-operated amusement or gaming device under the Federal Internal Revenue Code (Title 26), Paragraph (2) of Section 4461 (a) of the United States Code Annotated. No license shall be issued to any applicant, and the license if issued shall be revoked, whenever the applicant or owner has paid a $250.00 current federal occupational tax for the use or permit to use on the place or premises where the machine or device is to be displayed, a coin-operated amusement or gaming device under the Federal Internal Revenue Code (Title 26), Paragraph (2) of Section 4461 (a) of the United States Code Annotated.
“Section 3. Inspection. Application for license shall be made out in duplicate, one copy being referred to the Chief of Police, and the other copy to the City Electrical Inspector.
“(a). The Chief of Police shall investigate the location where it is proposed to operate such machine, ascertain if the applicant is a person of good moral character, and either approve or disapprove the application.
“(b). The Electrical Inspector shall inspect all wiring and connections to the machine, determine if the same complies with the Electrical Code of the City and shall either approve or disapprove the application.
“(c). .No license shall be issued to any applicant unless approved by the Chief of Police and the Electrical Inspector.” (Emphasis added.)
The ordinance provided for an annual license fee of $10 on each machine for the privilege of operating or maintaining for operation each coin-operated mechanical amusement device, and provided for a penalty, in addition to the revocation of the license, of a fine of not more than $300. It provided that each day the ordinance was violated would constitute a separate offense. Other provisions relative to the enforcement of the ordinance are immaterial to this appeal.
By their amended petition the plaintiffs seek both temporarily and permanently to enjoin the enforcement of the ordinance because the defendants threaten to arrest, or cause to be arrested, those in violation of the foregoing ordinance who possess a $250 Federal tax stamp. The amended petition further enumerates the constitutional grounds upon which they challenge the validity of the ordinance.
Upon joinder of issues and after hearing the case, the trial court held the ordinance to be unconstitutional and permanently enjoined the city from enforcing it for the reasons (1) that the provisions of section 3(c) are fatal to the validity of the ordinance; and (2) “That Section 3 (c) cannot be deleted and the rest of Ordinance No. 43040 stand for the reason that the City is without power , to enact an ordinance providing that a City license on a pinball machine shall not be issued to one who has purchased a $250 federal occupational tax stamp.”
The appeal to this court presents the questions hereafter discussed.
The portion of the ordinance primarily under attack in this lawsuit is the second part of section 2 (d), heretofore quoted in italics. ■
The occupational tax on coin-operated devices is imposed by the provisions of U. S. C. A., Title 26, § 4461. It provides:
“There shall be imposed a special tax to be paid by every person who maintains for use or permits the use of, on any place or premises occupied by him, a coin-operated amusement or gaming device at the following rates:
“(1) $10 a year, in the case of a device defined in paragraph (1) of section 4462(a);
“(2) $250 a year, in the case of a device defined in paragraph (2) of section 4462(a); and
“(3) $10 or $250 a year, as the case may be, for each additional device so maintained or the use of which is so permitted. If one such device is replaced by another, such other device shall not be considered an additional device.”
A “coin-operated amusement or gaming device’” is defined in U. S. C. A., Title 26, § 4462 (a) as:
“(1) any amusement or music machine operated by means of the insertion of a coin, token, or similar object, and
“(2) so-called ‘slot’ machines which operate by means of insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens.”
From the foregoing the $250 special tax is imposed only on such coin-operated amusement or gaming devices as are defined in section-4462 (a) (2),-supra. The city ordinance is not designed to prohibit the use of such machines as are defined in section 4462 (a) (1), supra, provided the owners comply with the city ordinance and procure a license.
While the purpose of the ordinance is not expressly stated, it is evident from a reasonable interpretation that it is designed to curb gambling on pinball machines in Kansas City, Kansas.
Both the state legislature and this court have made it clear that gambling is illegal in Kansas. (G. S. 1949, 21-915, 21-916, 21-918, 13-430, and G. S. 1961 Supp., 41-2708 [g].) In Clemons v. Wilson, 151 Kan. 250, 98 P. 2d 423, the court stated:
“. . . it is the policy of this state to do everything possible to suppress gambling. . . (p. 256.)
It is an established principle of law that articles which lend themselves to illegal uses are subject to the police powers of the state and municipalities.
In City of Wichita v. Stevens, 167 Kan. 408, 207 P. 2d 386, it was held that a city under its police power had authority to prohibit the possession of punchboards even though such punchboards were in warehouses and were not used for gambling. The court said:
“. • . Under such an ordinance there was no occasion to determine as a question of fact whether punchboards were or were not gambling devices. In any event they were an instrument which the city determined was detrimental to the peace and welfare of the city, and within its police power the city may prohibit possession of them. . . .” (p. 413.)
The trial court stated the sole question presented by the ordinance was whether the city could refuse to license a pinball machine to an operator who has purchased a Federal tax stamp.
Prohibiting a license on the ground that the applicant holds a certain type of Federal tax stamp is not a new type of legislation. As early as 1937 the Kansas legislature passed a law providing that the county commissioners or the governing body of the city shall revoke any cereal malt beverage license "for purchasing or displaying a federal retail liquor tax stamp.” This provision is part of our present cereal malt beverage law. (G. S. 1961 Supp., 41-2708.) An analogous situation is found in G. S. 1949, 41-1004. (See, State v. Nesbitt, 191 Kan. 142,_P. 2d__)
In Deitch v. City of Chattanooga, 195 Tenn. 245, 258 S. W. 2d 776, the Tennessee court held that a city ordinance prohibiting possession of a Federal wagering stamp is constitutional. The court quoted from another Tennessee decision as follows:
“ ‘There is a direct and open connection between the possession of a federal license authorizing the retail sale of intoxicating liquors and the ultimate fact of such sale. The interests of men are such, and experience teaches, that they do not ordinarily incur the expense and trouble of procuring license to engage in the sale of intoxicants, unless they intend to do so. Apart from the statute making the possession of such license prima facie evidence of the fact of a sale, the inference might well be drawn, in the .absence of all rebutting proof, that one who pays the fees and possesses himself of such license is engaged in the sale of intoxicants.’ Brinkley v. State, 125 Tenn. 371, 386, 143, S. W. 1120, 1123.” (pp. 248, 249.)
In Murphy v. California, 225 U. S. 623, 56 L. Ed. 1229, 32 S. Ct. 697, the city of South Pasadena, California, in the exercise of its police power, passed an ordinance which prohibited all persons from maintaining a room where pool or billiard tables were kept, but permitted hotels, under the conditions specified in the ordinance, to provide such a room for the use of their guests. Murphy, who operated a pool room which was not connected with a hotel, was convicted for violating the ordinance. He contended before the United States Supreme Court that the ordinance violated the Fourteenth Amendment. In rejecting the contention the United States Supreme Court said:
“The Fourteenth Amendment protects the citizen in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious business which can be prohibited lie many non-useful occupations, which may, or may not be harmful to the public, according to local conditions, or the manner in which they are conducted.” (pp. 628, 629.)
A case involving the seizure of numerous pinball devices, some of which provided neither pay-off nor free play, and others which issued no prizes but had a mechanism which could award free play, is Sternall v. Strand, 76 C. A. 2d 432, 172 P. 2d 921. There the court held there was nothing in the record to show the board of supervisors in San Diego County was not cognizant of conditions which reasonably called for action of this nature, or that the board acted beyond what was reasonable in view of conditions, either known or believed by it to require action, even to the extent of prohibiting the mere possession of machines and devices which can and are so easily and frequently changed from an ostensibly innocent use to one which is not only evil in itself, but which, as a practical matter, encourages and leads to many other evils, against all of which the board was attempting to guard. The question of the reasonableness of an ordinance was said to be primarily one for the legislative authority.
In Terry v. City of Portland et al., 204 Or. 478, 269 P. 2d 544, the Oregon court held a statute imposing a privilege tax of $50 per annum on every coin-in-the-slot device, enacted in the exercise of the state’s power to tax, does not prevent the city of Portland from adopting an ordinance prohibiting the ownership, operation and use of any coin-in-the-slot device, which was aimed not only at machines of gambling nature but also at machines that do not provide pay-off or free play, notwithstanding that the ordinance, if enforced, would diminish the state’s revenue.
In support of the trial court’s decision that the ordinance is unconstitutional, the appellee argues the Federal Government has classified pinball machines as gambling devices requiring the payment of a $250 Federal stamp. This is evidenced by the regulations shown in the Code of Federal Regulations, Title 26, § 45.4462-1 (b), wherein it states:
“(2) Examples of machines or devices within scope of section 4462 (a) (2). The following devices and machines illustrate the type of machines or devices within the scope of section 4462 (a) (2):
“(i) A machine which is operated by means of the insertion of a coin, token, or similar object and which, even though it does not dispense cash or tokens, has the features and characteristics of a gaming device whether or not evidence exists as to actual payoffs.
“(iii) A pinball machine equipped with a push button for releasing free play and a meter for recording the plays so released, or equipped with provisions for multiple coin insertion for increasing the odds.
“(iv) Pinball machines in connection with which free plays are redeemed in cash, tokens, or merchandise, or prizes are offered to any person for the attainment of designated scores.”
In 1942 the provisions of G. S. 1949, 21-1508, were before the court in State v. Waite, 156 Kan. 143, 131 P. 2d 708. The defendant was charged with violation of the statute and the question was whether the particular machine or device in question was a gambling device within the statutory definitions. The court held the particular “pin-ball” machine or device there described, which in no case paid off in money or tangible property, but gave the players who made certain scores additional free games, was not a gambling device because the privilege of such additional entertainment or amusement was not “property” within the meaning of the statute. The court said it was dealing with a criminal statute and strict construction must be applied.
The statute made it a criminal offense for a person to set up or keep in a public or private place any gambling device, devised and designed for the purpose of playing any game of chance for money or property.
Later the court in State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P. 2d 225, observed that the legislature had met in general session on six different occasions since the Waite case and made no change in the statute (21-1508, supra). If the court was incorrect in construing the purpose and intent of the act, it was said the legislature had abundant opportunity to give further expression to its will, and that its failure to act amounted to a ratification of the interpretation placed upon the act by the court. Accordingly, the court held the particular “pinball” machine or device there described was not a gambling device and subject to seizure and destruction as such under G. S. 1949, 21-925.
The appellees rely on the two foregoing cases and say, if the legislature had the desire to classify pinball machines as gambling devices, it could easily have done so. The appellees ask, “how then does a pinball machine which does give free games, and which the Court in State v. Waite held is not prima facie a gambling device, become a matter in which the city can discriminate against a merchant for the operation thereof in his establishment? Does this action deny the appellees the equal protection of the law? Does it not deprive the appellees of property without due process of law? Does it not invade the province of the judiciary in determining the matter as wrongful, for our Court has ruled to the contrary, and in assessing penalties does it not invade the province of a jury in fact finding as to the guilt or innocence of a person having a coin operated device, and the right to be confronted by their accuser and the witnesses against them? Does it not violate Act 2, Section 1, of the Constitution of the State of Kansas to the effect that the legislative power of this state shall be vested in the House of Representatives and the Senate?”
The appellees contend there is no way they could comply with the laws in existence if the ordinance is allowed to stand, because if they comply with the ordinance they cannot comply with the Federal rules and regulations, and if they comply, on the other hand, with the Federal rules and regulations, they cannot comply with the proposed ordinance to procure a license.
The appellees emphasize that a gambling device has been defined as any instrument adapted and designed to play any game of chance for money or property. (City of Wichita v. Stevens, supra.) We would emphasize that the foregoing definition includes the word adapted.
It would appear on the surface that the appellees have made a good case, but a closer look will disclose that pinball machines may be designed in various ways and, even though designed to pay off only in free games for those who play and register a sufficient score, can very easily be used, converted or adapted to gambling purposes.
Whether gambling takes place where pinball machines are kept depends primarily on the manner in which they are used, and not upon how they may be labeled or designed in their manufacture.
A distinction is to be noted on this point. In both the Waite and Coney Island cases the court was confronted with a particular “pinball” machine, and the question was whether it was a gambling device within the meaning of G. S. 1949, 21-1508. This statute, as worded, made it a criminal offense to keep a gambling device, designed and devised for the purpose of playing any game of chance for money or property. No reference to the manner in which the machine was used appeared in the statute, and upon strict construction it was not read into the statute. In the Coney Island case, since the machine itself did not fall within the prohibition of 21-915, supra, it was held not to be subject to seizure and destruction as a gambling device under 21-925, supra.
It has undoubtedly been the experience of the Federal authorities that pinball machines are easily and frequently changed from an ostensibly innocent use to a use which is designed primarily for gambling, and they have concluded that a pinball machine is an instrument of organized gambling and rackets.
Some of the fifty states have legalized gambling within their borders and others do not have legalized gambling. The Federal Government does not seek by the occupational tax on gambling devices to legalize gambling in all of the states, just as it has never sought to legalize the sale of liquor in all the states. The Federal Government has established no law with regard to the legality or illegality of gambling on pinball machines within the several states. Therefore, each state is free to determine whether it wishes to permit gambling or not.
While gambling violates the Kansas law, there is no Federal law against gambling, but if one operates a gambling' device without purchasing a Federal stamp to permit gambling, the fine and imprisonment imposed by the Federal Government is severe. One is naturally led to the question, why do persons such as the appellees herein purchase the $250 Federal stamp for the operation of a coin-operated device which the Federal Government classifies as a gambling device? The answer seems obvious. The purchase of a $250 Federal stamp for the right to use a pinball machine on the premises in Kansas City, Kansas, raises a strong presumption of illegal activity.
Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.
Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.
In determining whether an ordinance which has the effect of prohibiting pinball machines by conditions imposed upon the issuance of a license is reasonable, and whether it has a substantial relationship to the health, morals, safety or general welfare of the people of a municipality, the court may weigh the benefit to those people affected by the elimination of such devices against the benefits in having such devices available for use by those people, and the interests of the appellees as the owners of those devices.
It is true these machines may be operated by members of the public without any gambling, but there will obviously be very little benefit from such operation to anyone other than the owner by reason of payments received for their use. Certainly, a legislative body could reasonably conclude that the amusement provided to operators of such machines, which is all they would get from their operation unless they were used as gambling devices, would contribute little, if anything at all, to the health, safety, morals or welfare of such operators or of the people of Kansas City.
On the other hand, the potentialities for injury and harm to health, morals, safety and welfare of the public from these machines may quite reasonably have been regarded as very serious by the legislative body of Kansas City. (Benjamin v. Columbus, 167 O. S. 103,146 N. E. 2d 854.)
We cannot say the enactment of the ordinance in question, which prohibits the issuance of a license to one who has paid a current $250 Federal occupational tax for the use of a coin-operated amusement or gaming device, or, if issued, that it be revoked when such Federal occupational tax has been paid, is unreasonable or arbitrary.
The appellees next attack the ordinance on the ground that it is unreasonable to require the approval of the Chief of Police and the Electrical Inspector before a coin-operated amusement device license can be issued to an applicant.
Assuming the applicant fulfills the other conditions, it is argued these officers under section 3(c) have arbitrary power to deny the issuance of a license, and this makes the ordinance bad as an unlawful delegation of legislative power, citing Smith v. Hosford, 106 Kan. 363, 187 Pac. 685; Julian v. Oil Co., 112 Kan. 671, 212 Pac. 884; Cities Service Co. v. Koeneke, 137 Kan. 7, 20 P. 2d 460; and Hudson Properties, Inc. v. City of Westwood, 181 Kan. 320, 310 P. 2d 936.
A reasonable construction of the ordinance requires that we look at the whole of section 3 in the ordinance, and not merely to the last subparagraph thereof. The section is entitled “Inspection.” Subparagraph (a) sets forth the purpose for which the Chief of Police shall investigate the applicant; and subparagraph (b) sets forth the purpose for which the Electrical Inspector shall inspect the premises where the electrical device is to be located.
Reasonably construed, the ordinance limits the functions of these officers to the duties specifically stated, and if the applicant and his premises meet the standards required by the ordinance, these officers are obligated to approve the application. This section merely provides for the delegation of administrative duties which are designed to assist the license department of the city in the administration of the ordinance.
In conclusion we hold the ordinance in question to be valid and constitutional. It is within the legislative power of the city to enact such ordinance. (City of Wichita v. Stevens, supra.)
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Price, J.:
The opinion of this court affirming the conviction of defendant, Clarence S. Cox, of the offense of larceny of an automobile was filed on April 6, 1963, and is reported at 191 Kan. 326, 380 P. 2d 316.
The first sentence of paragraph 2 of the opinion states:
“Upon being apprehended in the state of Texas, with the car in his possession, he was returned to Linn County.”
The last sentence of paragraph 4 of the opinion states:
“He subsequently was returned to Linn county.”
On May 6, 1963, the state of Kansas, by the county attorney of Linn county, filed a motion in this court calling attention to the fact that the actual situation was that defendant abandoned the car in the state of Texas, after being followed by a patrol car, and returned to the state of Kansas, where he was apprehended in Rourbon county. A copy of this motion was mailed to defendant on May 1, 1963, and he has filed no objection thereto.
A further examination of the record indicates that the motion of the state of Kansas is well taken, and that in truth and in fact defendant abandoned the car in the state of Texas and returned to the state of Kansas, where he was apprehended. Accordingly, the above two quoted sentences appearing in the original opinion are deleted. In all other respects what was there said and held is adhered to. | [
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The opinion o£ the court was delivered by
Fatzer, J.;
This was a personal injury action brought by the plaintiff, Joseph H. Underwood, an employee o£ the defendant railroad, pursuant to the Safety Appliance Act (45 U. S. C. A., § 1, et seq.). These acts are substantially, if not in form, amendments to the Federal Employees Liability Act (45 U. S. C. A., §§ 51-59), and are supplemental to the latter act. (Urie v. Thompson, 337 U. S. 163, 93 L. Ed. 1282, 69 S. Ct. 1018.)
Following a trial on the merits, the jury awarded the plaintiff damages in the amount of $34,000. The defendant’s post-trial motions were overruled, and the district court approved the jury’s verdict and entered judgment for the plaintiff. The railroad company has appealed.
The evidence disclosed that the plaintiff was injured on December 27, 1960, while working as a switchman in the defendant’s yards in Parsons, Kansas. At the time of the trial the plaintiff was 46 years of age and had been employed by the defendant a little over 20 years. He testified he had not sustained any prior back or neck injuries.
On the day in question plaintiff and his crew were switching two “bad order” or defective cars which had been cut out of defendant’s train for the purpose of moving the cars to the “rip” or repair track. One was a fiat car loaded with posts and the other was a tank car. It was the plaintiff’s duty to board the cars and apply the hand brake so as to keep the cargo from shifting and doing further damage. As the cars came past the plaintiff they were traveling northward about six miles per hour with the tank car in the lead. Plaintiff observed the brake was clear on tire tank car and the brake on the flat car was fouled by the posts — the posts had already shifted so that they were pushing the hand brake. Plaintiff attempted to board the tank car to apply the hand brake. There are three steps on the first ladder up to a platform that runs around the edge of the tank car. Above the platform and running around the entire tank is a handrail to enable the workmen to safely stand on the platform and walk around the car or apply the brake. Plaintiff climbed up four or five feet on the ladder and reached up with his right hand to get hold of the handrail to pull himself up on the platform but when he pulled on the handrail it broke and came loose and caused him to fall backward from the car landing on his left hip on a rail of an adjoining track. He fell doubled up and his momentum caused him to fall so that his head struck the ball of the rail. Other cars had been switched on the track upon which he fell and plaintiff saw them coming toward him. He rolled off toward the west, got up and walked down to where the tank car was, picked up the piece of the handrail which had broken off from the car and walked back up to the switch shanty. He testified he did not feel good, that he was sore and shaken up but was still able to walk around. A fellow workman, L. J. Cary, was standing near where the accident occurred. Plaintiff reported the accident to his foreman, and stated they would have to make out a 335 (accident) report. He did not make the report that afternoon, but went home, took some aspirin and went to bed. The next morning he attempted to call Dr. Beaty, the company physician in Parsons, but it was the doctor’s day off. When he saw Dr. Beaty on December 29,1960, he was having headaches, his neck and shoulders were stiff and he had pain down through his back and hips. Plaintiff worked January 2, and 3, 1961, but had severe headaches and became very tired. On January 3, plaintiff took a picture of the tank car before it was repaired. He returned on January 6, after the car had been repaired and took two more pictures. All of the pictures were admitted in evidence at the trial.
During January the headaches continued. When plaintiff moved around, his back, legs and arms hurt and he went to Dr. Beaty to try to get some relief but the pills prescribed did not help.
On February 21,1961, plaintiff went to see a specialist, Dr. W. W. Hurst, a member of the American Association of Railroad Surgeons, at Joplin, Missouri. Dr. Hurst examined him and prescribed a leather brace with metal reinforcements to be worn around the lumbar section of his back, and also prescribed exercises. Plaintiff wore the brace and followed the exercises prescribed. Plaintiff saw Dr. Hurst again on March 6, and on April 3, 1961, and at those times Dr. Hurst gave him diathermy treatments. On March 28,1961, Dr. Beaty referred the plaintiff to a specialist in Kansas City who examined him. About the end of March the soreness started to work out of plaintiffs neck and back. Dr. Hurst advised plaintiff he could try working if he wore the brace and Dr. Beaty examined him and released him for work. On April 21, plaintiff reported for the same job he previously had.
Plaintiff wore the brace while working, but he had trouble sleeping, and could not lie down at night without getting up and walking around. His back continued to hurt. He worked four days, had two rest days, and was off three days. During May he was off sick but it was not his back. On May 2, he was hit by an air hose when he uncoupled a car. It hurt his leg and he laid off from work on May 5, on that account and for pain in his back. Plaintiffs job necessitated that he do a great deal of walking and set many brakes, and the jar from walking and setting brakes hurt his back and shoulders. When he mounted cars moving four or five miles an hour it irritated his back and bothered him more. He was off several days in June but only one day on account of his back. He worked about eleven days as foreman where he did not have to throw as many switches or walk as much or board as many cars. The first of July plaintiff changed to foreman on the afternoon shift and worked from 3:55 to 11:55 p. m. This job was easier on him, but every time he set a brake it started his back to hurting and when lie got off of a car going too fast, it would bother him. Since the injury, his neck and head have improved considerably and sometimes he gets along pretty well with his back and at other times it bothers him.
Plaintiff lost 81 days from work which at his rate of pay of $22.50 per day totaled $1,822.50. Plaintiff’s pain prevented him from sleeping and he found it extremely hard to carry on the duties of his employment. His wife testified that he was very restless and could not sit or rest any length of time. Further, that he was not able to do any lifting or run a power mower. In answer to a question whether the plaintiff’s injuries were permanent Dr. Hurst answered in the affirmative and rated his disability at 25 percent of the body. He further testified that plaintiff needed an operation to fuse the 4th and 5th lumbar vertebraes with the sacrum. When questioned as to the effect of plaintiff’s permanent injury as related to loss of future earnings Dr. Hurst testified that plaintiff could not do heavy work such as setting brakes on a box car or stooping under a box car because of his wearing a back brace and the fact that his spine was not supple. He further testified that plaintiff’s spinal injury would shorten his period of being industrially employable. Dr. Hurst made the following answers to the following questions:
“Q. Let me ask you this: Is this type of injury one that causes pain in an individual such as Mr. Underwood?
“A. Yes, he has typical pain symptoms — You can almost make a diagnosis from what the man told you if you listen to his story: pain, low back, radiating out into the buttocks, and I venture to say, all spondylolisthesis cases make the same complaint, and I can almost make a finding before x-ray.
“Q. Do you expect him to have pain in the future?
“A. Yes, he will have pain — he has got to accept it.”
Upon cross-examination Dr. Hurst testified that plaintiff did have a developmental defect in his low back consisting of a failure of fusion of the lamina arches that protect the spinal cord. He explained that the spinal ligaments hold the vertebraes in position but that when sudden stress is placed upon them, the ligaments tear and allow a hemorrhage to occur.
Two medical experts testified for the defendant. The first was Dr. Beaty who testified he found the developmental defect described by Dr. Hurst and described the defect as “spondylolisthesis.” He agreed that with this type of spine it would take less injury to make it disabling than with a normal type of back. He further testified that plaintiff would not be acceptable for employment by the de fendant; however, he expressed an opinion that the plaintiff could carry on his duties as a switchman.
Dr. William T. Braun, Pittsburg, Kansas, examined plaintiff once, and testified that since plaintiff had been working he was not disabled, apparently ignoring the fact that an employee could have a partial disability and still return to his job.
We are advised in plaintiff’s brief that after the case was tried plaintiff underwent the operation on his spine recommended by Dr. Hurst and the defendant has removed him from service on the ground that he was not physically qualified to perform the duties of a switchman.
The jury made the following answers to a special question asked by the district court:
“If you find that Joseph M. Underwood is entitled to recover, state what amount of damages, if any, he is entitled to and what you are allowing for each of the following:
(a) Value of earnings lost by Joseph M. Underwood to the date
of trial ......................................... $1,822.50
(b) Physical pain and mental suffering to date of trial....... $1,949.00
(c) Physical pain and mental suffering in the future......... $1,971.00
(d) Permanent loss or impairment of ability to earn a livelihood
in the future, reduced to present value................ $28,257.50
Total Damages ................................. $34,000.00”
In harmony with its answers to the special question the jury returned the following verdict:
“We, the Jurors impaneled and sworn in the above-entitled case, do on our oaths find: the issues herein joined in favor of the plaintiff and against the defendant and we assess as the amount of plaintiff’s recovery the sum of $34,000.00."
The defendant filed two motions; one to set aside the answers to (a), (b), (c) and (d) of the special question for the reason that they were contrary to the evidence and were not supported by any evidence, and the other motion was for a new trial which contained some eighteen grounds, one ground being that the defendant was not permitted to introduce competent material and relevant evidence and that the verdict of the jury was given under the influence of passion and prejudice and was contrary to the law and the evidence. The motion recited that affidavits and oral testimony would be introduced at the hearing of the motions. On February 14,1962, the defendant’s motions were heard and the defendant offered no affidavits or oral testimony and the court overruled each motion and entered judgment against the defendant in the sum of $34,000 with interest.
The defendant first asserts as error that, under the facts and circumstances, the verdict of the jury was excessive and given under the influence of passion and prejudice. The decisions of the Supreme Court of the United States are controlling as to the interpretation and effect of the Federal Employers Liability Act (White v. Thompson, 181 Kan. 485, 312 P. 2d 612), and the same rule is applicable with respect to the interpretation and effect of the Safety Appliance Act. In Brady v. Terminal R. R. Assn., 303 U. S. 10, 82 L. Ed. 614, 58 S. Ct. 426, it was said:
“. . . The statutory liability (in relation to the use of a defective car) is not based upon the carrier’s negligence. The duty imposed is an absolute one and the carrier is not excused by any showing of care however assiduous.
The record clearly indicates that the defendant did not contest its liability under the Safety Appliance Act but elected to defend the cause on the theory that plaintiff sustained minimal injuries, that is, the severity and extent of the plaintiff’s injuries was the only issue presented to the jury.
There was evidence to support the answer to special question (a) determining the value of earnings lost by the plaintiff to the date of the trial. The record indicates he lost 81 days of work and was earning $22.50 per day. There was also evidence that the plaintiff sustained physical pain and mental suffering upon which the jury could base its answer to special question (b). Likewise, the evidence was undisputed that in the future the plaintiff would sustain physical pain and mental suffering upon which the jury could ascertain and fix the amount of damages in its answer to the special question (c). Dr. Hurst, in answer to whether the plaintiff would have pain in the future, said, “Yes. He will have pain — he has got to accept it.”
While the medical evidence was conflicting as to whether the plaintiff was disabled, Dr. Hurst’s testimony was to the effect that he was disabled, and rated his disability at 25 percent to the body. He also testified as to the effect of plaintiff’s permanent injury as related to loss of future earnings and stated that he could not do heavy work because of wearing the back brace and that the plaintiff’s spinal injury would shorten his period of being industrially employable.
Some 90 years ago in Union Pacific Rly. Co. v. Milliken, 8 Kan. 647, this court, speaking through Mr. Justice Brewer, stated:
“. . . No fixed rule can be laid down for estimating the damages to be awarded for physical injuries. Great latitude is of necessity allowed to a jury, and within certain limits their assessment, whether inadequate or excessive, cannot be disturbed. . . . Outside of those cases in which the question of exemplary or punitive damages is involved, the basis of the assessment is compensation. No verdict is right which more than compensates; none which fails to compensate . . .” (1. c. 655.)
We are of the opinion the district court did not err in overruling the defendant’s motion to set aside the answers to the special question or in finding that the answers were supported by the evidence. The jury saw the plaintiff and heard him testify and it also heard his expert witnesses and the defendant’s two expert witnesses testify concerning his disability and its extent. As reasonable persons, the jury, in its answers to the special question, advised the amount allowed for the particular elements of damages and also advised the amount to compensate plaintiff for permanent loss or impairment of ability to earn a livelihood in the future. Equally important is the fact that the district court observed the witnesses and noted their demeanor in giving their testimony and thereafter it approved the verdict and its judgment is entitled to great weight. (Groff v. Automobile Owners Safety Ins. Co., 180 Kan. 518, 524, 306 P. 2d 130.)
In Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, this court reviewed an appellant’s claim that the jury’s verdict was excessive where medical testimony rated the plaintiff’s injuries at 25 to 35 percent permanent disability. It was held that a verdict of $29,458 was not excessive for the injuries sustained by a plaintiff who was 34 years of age and employed as a housewife. In the instant case, the plaintiff is the breadwinner of the family with a life expectancy of 27 years. He was capable of earning $550 per month and his permanent disability was rated by competent medical testimony at 25 percent. In the Pence case, it was held:
“Generally speaking, it may be said that no verdict is right which more than compensates, and none is right which fails to compensate. Pain and suffering have no known dimensions, mathematical or financial, and there is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of exact proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries sustained, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.” (Syl. f 3.)
This court has the power to review the order of the district court refusing to set aside a verdict as excessive. If we would reverse, it must be because of an abuse of discretion. If the question of ex-cessiveness is close or in balance, we must affirm. The very nature of the problem requires restraint. We are required to resolve any doubtful issue in favor of the judgment of the district court. In Purvis v. Brenner, 189 Kan. 369, 369 P. 2d 253, it was said:
“. . . we are convinced the instant appeal discloses this was preeminently a fact case where, on the basis of conflicting but nevertheless substantial competent evidence, the jury, as was its province, properly resolved all factual issues joined by the pleadings under special findings and a general verdict which were ultimately approved by the trial court. In such a situation the rule, so well-established as to require no citation of the authorities supporting it, is that the findings of fact and the general verdict of the jury based on conflicting evidence, when approved by the trial court, will not be disturbed on appellate review......”. (1. c. 374.)
It is néxt contended that the district court was guilty of an abuse of discretion in unreasonably restricting the defendant in the use of medical expert witnesses. This assignment of error stems from proceedings at a pretrial conference on December 13, 1961, where the following colloquy took place:
“Court: . . . How about the matter of physical examination?
“Mr. Rogers: Defendant would like a physical examination,'Judge. About the time, or maybe it was shortly before the suit was filed, wé arranged for this man to be examined, the upper part of his body, of which he was complaining at that time, and the pain has moved down in his lower back, and we should like a complete examination of the gentleman.
“Mr. Ratner: Who was it examined him before for the upper part of his body?
“Mr. Rogers: Dr. Carmichael, Kansas City. I sent you folks a copy of his report.
“Mr. Ratner: I wondered if that is who it was. We have no objection as long as we are furnished with a copy of the report but I just turned to the report, opened it, and first thing that caught my eye was ‘The neck and head symptoms are improving. The low back pain is becoming more severe.’ So, obviously, Dr. Carmichael’s examination was both low back and upper.
“Mr. Rogers: Well, we didn’t x-ray his low back, and Dr. Carmichael is a neuro-surgeon.
“Mr. Ratner: I just wanted to mention that, but we have no objection to your having another examination.
“Court: I think they would be entitled to one in view of the time that has elapsed anyway, so plaintiff will make himself available for that examination. I presume you don’t have the doctor?
“Mr. Rogers: We have the doctor — we would like to have Dr. W. T. Braun, here in Pittsburg, and x-rays by Dr. Vernon A. Berkey, and we would like to have them within the next two weeks. . . .
“Mr. Ratner: We object, of course, to them not using the same doctor they had before, which is kind of loading up on doctors here.
“Court: Let me ask you this, in requesting this examination openly here —I think, as I stated, you are entitled to a subsequent examination because of the length of time. I don’t think you will be entitled to use both these witnesses. If you want to have the man re-examined by Dr. Carmichael, of course that would be permissible too. If you use a local doctor here I think you would be confined to using his testimony on trial and not also use Dr. Carmichael.
“Mr. Rogers: Court please: Dr. Carmichael is primarily a neuro-surgeon and this man’s complaints first were of the upper parts of his body — that is what his examination was directed to — he didn’t examine the lower part of his anatomy although the man had some complaints at that time — Dr. Carmichael didn’t direct his examination to the lower part of his body, so it wouldn’t he repetition if we had a local physician here examine the man for his present back complaints.
“Court: Let me make the Court’s position clear, Mr. Rogers, and you can make up your own mind. You don’t have to do it right now, but you are entitled to either one of two things: re-examination by Dr. Carmichael, or an entirely new and separate examination which you may use for the purpose of presenting here in Court, hut you are not entitled to another examination and present both of these medical witnesses.
“Court: . . . The privilege of defendant to examine plaintiff of course is not absolute. It is the feeling of the Court you are entitled to examination but not multiple examinations.
“Court: Unless there is some unusual situation, such as an eye injury or something that requires a special type of examination, we have permitted more than one examination in cases of that type, hut if you want to use Dr. Carmichael you can have this man re-examined by him if he didn’t cover everything.
“Mr. Rogers: Well, of course, that sort of puts us in an awkward position, Judge. He was sent to an expert in neuro-surgery, that is the head and upper part, the nerve part, due to his complaints at that time ... I understand . . . his complaints have shifted to the lower part of his anatomy now . . .
“Court: Well, Dr. Carmichael is very well qualified along those lines.
“Mr. Ratner: For some strange reason the nerves don’t stop at the waist— they go on down.
“Court: In my experience he has examined a number of people for low-back complaint. If you want to re-submit him to Dr. Carmichael that is agreeable. If you don’t feel he covered the matter, you would want him reexamined before trial, I assume?
“Mr. Rogers: Yes, we want him re-examined. Is it the ruling of the Court we have the option of either Dr. Braun or Dr. Carmichael only, we will be limited to one or the other as witnesses?
“Court: Yes.”
On direct examination the plaintiff testified that on February 21, 1961, he went to a specialist, Dr. Hurst, at Joplin, Missouri, and he also testified that on March 28, 1961, he was referred to a specialist by Dr. Beaty (although not named, the referral specialist was Dr. Carmichael). On the cross-examination of Dr. Beaty the plaintiff again brought out that Dr. Beaty had referred him to a specialist. The defendant contends that, in the face of all the reference of plaintiff to defendant’s specialist, the court was guilty of abuse of discretion in refusing to permit the defendant to call Dr. Carmichael of Kansas City, and that it erred in refusing to instruct the jury that the court had limited the defendant to only one medical witness.
The defendant appears to be laboring under a misapprehension of its legal rights. There are no statutory provisions providing for a physical examination of plaintiff by doctors of the defendant’s choice. The rule announced in A. T. ir S. F. Rid. Co. v. Thul, 29 Kan. 466, has been consistently followed. There the court said:
“. . . We would think that the defendant in a case like the present would be entitled as a matter of right, upon a proper application and upon a proper showing, to have an order made by the court compelling the plaintiff to submit himself to a personal examination, for the purpose of ascertaining the nature, character, extent and permanency of his injuries; but of course the court should exercise a sound judicial discretion in making such an order. The right to the order, being founded upon necessity, would not of course extend beyond the necessities of the case. If sufficient evidence of this kind had already been introduced, the Court of course would not be bound to make the order for the purpose of obtaining other merely cumulative evidence. . . .” (1. c. 475, 476.)
See, also, Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252; Dickinson v. Railway Co., 74 Kan. 863, 86 Pac. 150; Landis v. Street Railways, 110 Kan. 205, 203 Pac. 1109, and Howard v. Hartford Accident & Ind. Co., 139 Kan. 403,32 P. 2d 231.
The record does not indicate that any order was made pursuant to G. S. 1949, 60-2705, reciting the action taken at the pretrial conference with respect to any agreements made by the parties as to any of the matters considered, and which limited the issues for trial to those not disposed of by admissions or agreements of counsel. Re that as it may, it is clear that the discussion at the pretrial conference pertained to the matter of the plaintiff’s physical examination by the defendant. In authorizing the defendant to have the plaintiff examined by a medical expert, the court made it clear that if the defendant wished to have Dr. Carmichael examine the plaintiff it could do so or that it could have the option of having a doctor who had not previously examined him make a complete physical examination. The defendant selected the latter option and had Dr. Rraun of Pittsburg make a complete spinal examination of the plaintiff and it must be said that the court gave the defendant the right to assume that it would be limited to one or the other to testify at the trial.
We think the defendant has failed to show abuse of discretion on the part of the district court. No effort was made to take the deposition of Dr. Carmichael and offer it at the trial nor was he subpoenaed by the defendant to appear and testify, nor was he offered as a witness at the trial. While the defendant’s motion for a new trial stated that affidavits and oral testimony would be offered at the hearing on the motion, it failed to produce any evidence, and under those circumstances we have no hesitancy in holding that the defendant was required to offer Dr. Carmichael’s testimony at the trial and if the court refused to permit him to testify, to make a proffer of such evidence and to reoffer it at the hearing on the motion for a new trial.
Other points have been raised by the parties some of which were not raised on the. motion for a new trial and under the rule announced in Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309, these points must be held to have been waived. In that opinion it was held:
“Errors of the trial court occurring during the trial and which constitute grounds for a new trial, to be reviewable on appeal, must have been brought to the attention of the trial court on a motion for a new trial, and if such errors are not specifically pointed out in the motion or upon the presentation of the motion, and no opportunity is given to the court to reconsider and correct such errors, they will as a general rule be regarded as waived.” (Syl. f 2.)
See, also, Butts v. Kan. Power & Light Co., 165 Kan. 477, 195 P. 2d 567, and Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1.
The defendant also argues that the district court erred in giving instructions Nos. 3, 5, 9 and 12. The point is not well taken. The defendant made no request for specific instructions in place of or in addition to the instructions complained of. In Boucher v. Roberts, 187 Kan. 675, 359 P. 2d 830, it was said:
“We have said many times that under our statute (60-2909 Fifth) if a party desires more specific instructions, it is his duty to make a request therefor. We have repeatedly held the failure of the trial court to instruct specifically on a given proposition cannot be properly assigned as error when no request for such instruction was made. . . .” (1. c. 677.)
We have examined the instructions given and in conformity with the established rule, they must be considered as a whole and all must be considered together to determine whether the theory and contentions of each party are presented, and an erroneous instruction does not of itself require reversal if all of the instructions considered together substantially state the law. The instructions complained of deal with the defendant’s liability under the Safety Appliance Act and regulations adopted by the Interstate Commerce Commission (Title 49, Code of Federal Regulations, §131.7 [F]) promulgated pursuant to Title 45 U. S. C. A. § 12, and fairly state the law applicable in the instant case.
We have carefully reviewed the record and find no reversible error. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for damages for personal injuries sustained by plaintiff who was burned by electrical shock and severely and permanently injured on September 26, 1954, when a television mast which he was helping install came in contact with the defendant’s 33,000 volt three-phase uninsulated transmission line.
This is the fourth appearance of this case. The first appeal concerned the sufficiency of plaintiff’s petition and whether it disclosed plaintiff’s contributory negligence as a matter of law. It was held that it did not, and the district court’s judgment overruling the demurrer was affirmed. (Henderson v. Kansas Power & Light Co., 181 Kan. 625, 313 P. 2d 257.) The case proceeded to trial to a jury and at the conclusion of plaintiff’s evidence the defendant’s demurrer thereto was sustained, which was reversed by this court and the cause was remanded for a new trial. (Henderson v. Kansas Power ir Light Co., 184 Kan. 691, 339 P. 2d 702.) The case was retried to a jury which returned a general verdict in favor of the plaintiff in the sum of $5,000, and made special findings, one of which was that the plaintiff was not guilty of negligence that contributed to his injuries. The plaintiff appealed from that judgment on the ground that the verdict was so grossly inadequate as to compel the granting of a new trial. That question was considered in the third appeal (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60), and a new trial was granted generally as to all issues raised by the plaintiff’s amended petition and the defendant’s amended answer.
This appeal arises out of a third jury trial which resulted in a verdict for the plaintiff in the amount of $5,000, a verdict in exactly the same amount as was awarded by the jury in the preceding trial. However, one substantial difference in the verdict in this trial was the answers to special questions. Five special questions were submitted and those questions and the jury’s answers thereto are as follows:
"1. Do you find the defendant company guilty of any negligence which proximately caused the injuries of plaintiff?
“A. Yes.
“If you answer this question in the negative, you need not answer any of the remaining questions.
“2. If you answer No. 1 in the affirmative, state of what such negligence consisted.
“A. They were negligent by putting their lines over private property and for not posting signs.
“3. Do you find that the plaintiff was guilty of any negligence which contributed to his injuries?
“A. Yes.
“4. If your answer to the foregoing is in the affirmative, state of what such negligence consisted.
“A. He was negligent for not exercising ordinary care for his own safety.
“5. Do you find that a proximate cause of the accident was the negligence of parties other than plaintiff or defendant in this case?
“A. They were negligent for not exercising ordinary care for their own safety.”
Immediately after the jury returned its verdict and answers to special questions, the following colloquy occurred:
“The Court: Gentlemen, are there any other matters to be taken up? If there are will you approach the bench first?
“Mr. Russell: Not right at the moment, if Your Honor please.
“The Court: Before we dismiss the jury?
“Mr. Russell: No.
“Mr. Garlinghouse: No, Your Honor.
“Mr. Russell: No.
“The Court: No matters to be taken up before I dismiss this jury?
“Mr. Russell: No.”
After the court accepted the verdict and discharged the jury, the defendant filed two motions; the first was for judgment notwithstanding the general verdict, “for the . . . reason that the answers to the special questions show that the defendant is entitled to judgment,” and the second was for a directed verdict “based upon the the jury’s answers to the special questions and in particulars the answers to Nos. 3 and 4.” The plaintiff filed a motion for a new trial generally, a motion for a new trial limited to the question of damages only, and a motion to set aside answers to special questions Nos. 3, 4 and 5 for the following reasons: (1) that they were “mere conclusions of law by the jury rather than any findings of fact”; (2) that they were “definitely general in character and purely in the nature of conclusions only”; (3) that they were “surplusage and are mere conclusions of law”; (4) that they were “inconsistent with the general verdict, and being mere conclusions of law do not affect the general verdict,” and (5) that they were “unsupported by the evidence and are contrary to the evidence.”
The various motions of the parties were briefed and argued, and the court, in a memorandum opinion, concluded that the jury’s special findings were inconsistent with the general verdict and not inconsistent with each other and therefore controlled the judgment, and it sustained the defendant’s motion for judgment notwithstanding the general verdict. All other post-trial motions were overruled.
Despite the fact that the amended petition was quoted and summarized in the first appeal, it is deemed essential at this juncture that a brief reference be made to the pleadings of the parties to illuminate the issues presented to the jury. The amended petition alleged that plaintiff’s injuries were caused by defendant’s negligence in (1) maintaining high tension electrical wires over private property without the permission of and without obtaining an easement from the owner, thereby creating a highly dangerous hazard; (2) erecting and maintaining the power line in a residential area without insulating the electric wires; (3) maintaining the power line without posting warning signs as to its nature and extreme danger, and (4) erecting and maintaining the power line at a height insufficient to avoid contact with a radio or television antenna.
The defendant’s answer denied the pertinent allegations of plaintiff’s amended petition and alleged as one of its defenses, the following:
“5. That the negligent acts of the said plaintiff, Walter Henderson, and the others who were working with him at the time and place hereinabove described, were as follows:
“A. Failure to use ordinary prudence and exercise ordinary care or to take any precaution for his own safety under the obvious circumstances and conditions that existed at the time of the accident, as above set forth, which conditions he either saw or knew, or hy the exercise of ordinary care for his own safety could have seen and known.” (Emphasis supplied.)
Six other grounds of contributory negligence were alleged.
We are advised that after the defendant filed its amended answer, the plaintiff filed a motion to make definite and certain and to strike. Nowhere in the motion did plaintiff attack the defendant’s allegations of contributory negligence and at no time during the trial did the plaintiff contend that this allegation of specific contributory negligence was improper.
We also note that the court in instructing the jury upon the respective claims of the parties, read to the jury substantially verbatim the above quoted allegation of defendant’s amended answer, and it instructed the jury in part as follows:
“Instruction 2.
“You will observe in this case that the plaintiff is asking for judgment against the defendant on account of alleged negligence of the defendant, and you will also observe that the defense of contributory negligence is made by the defendant against the plaintiff. These claims of the parties make it necessary for the court to define to you what negligence is. ‘Negligence is the want of ordinary care; that is, the care which an ordinarily prudent person would exercise under the same or similar circumstances. Negligence may consist of acts of commission or acts of omission. When a person does what an ordinarily prudent person would not be expected to do under the circumstances of the situation, he is said to be negligent; and when a person fails to do what an ordinarily prudent person would be expected to do under the circumstances of a situation, he is said to be negligent.” (Emphasis supplied.)
“Instruction 4.
“If you find from a preponderance of the evidence in this case that plaintiff was guilty of negligence in any of the respects alleged in the defendant company’s answer, and that such negligence contributed to plaintiff’s injury, then your verdict should be for the defendant company." (Emphasis supplied.)
“Instruction 8.
“An individual in the position of the plaintiff, although not necessarily bound to know the amount of electricity traveling through high-voltage lines, is required to exercise at least ordinary care for his own safety in proximity to electricity, and in all situations he is required to exercise the care that an ordinary prudent person would exercise under like circumstances and conditions. If he fails to do this, he is said to be negligent. If you find that the plaintiff was thus negligent, or contributonly negligent in the case at hand, he cannot recover. . . (Emphasis supplied.)
“Instruction 22.
“You will be required to answer a number of special questions and return them into court with your general verdict. These questions you are to answer truthfully according to the evidence produced before you. You are not required to answer each question ‘Yes’ or ‘No’, but your answer when made should be a full and complete response to the specific question asked.” (Emphasis supplied.)
We are also advised the plaintiff did not object to the above instructions.
Plaintiff’s evidence was summarized in the second appeal (Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P. 2d 702), and due to the nature of questions here presented it is unnecessary to reiterate all the evidence, and we briefly summarize that which is pertinent.
At the outset, it may be stated the evidence was undisputed that defendant maintained its 33,000 volt three-phase uninsulated transmission line in the alley adjacent to the Joe Redman residence and that the two north wires directly overhung the south portion of the roof encroaching upon the Redman residence 1.2 feet with the lower wire being 16.1 feet above the highest part of the roof. The defendant makes no claim that it was not negligent in maintaining its transmission line over private property and in failing to post signs warning of the nature and extreme danger of the line.
The evidence disclosed that on Saturday, September 25, 1954, the plaintiff assisted his brother-in-law, Herschel Starling, in installing a television antenna at the rear of the Redman residence at a point 9.6 feet from the south or alley side of the house. The full height of the antenna when installed upon a small platform was 39 feet 8 inches above the ground, and an antenna mast with horizontal arms extended 44 inches was fastened to the pole. Three guy wires were attached to a guide ring on the antenna pole near the bottom of the top section and they were fastened by the plaintiff to the roof and to a shed. The antenna pole was fastened by a “roof clamp or saddle” with set screws to prevent it from turning, and was attached to the cornice of the house with an eyebolt. The installation was completed successfully without incident.
On the following morning, Sunday, September 26, 1954, plaintiff and Starling stopped to see how Redman’s television was operating, and plaintiff, Starling and Redman went to the rear of the house to turn the antenna “into the channel more” to get a better reception from the Kansas City stations. Starling loosened the setscrews and attempted to turn the antenna pole but could not do so. The plaintiff and Redman were standing about six or seven feet away at the time and he asked them to help him. The antenna pole was not leaning in either direction and the guy wires were not loose. When they walked up to take hold of the pole to help turn it “there was a terrible explosion” and plaintiff was knocked unconscious. Starling and Redman were killed by electrocution, and plaintiff sustained electrical shock and burns resulting in permanent partial disability. The very serious injuries and the horrible and dreadful permanent disfigurement sustained by plaintiff and the excruciating physical pain and mental anguish which he underwent, the period of his hospitalization, the many blood transfusions, the number of general anesthetics, and the debriding and skin grafting which he was caused to endure are set forth in their opinion of this court (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60), and it is unecessary to here reiterate them.
The plaintiff testified he had never been to the Redman premises prior to September 25, 1954, and on that date he worked on the roof of the house and attached two guy wires to the roof; that he just “casually noticed” the power line and knew they were electric wires, but they did not particularly attract his attention, they were “only wires on poles.” He also testified he did not know they overhung the top of the house but assumed they were in the alley where they were supposed to be.
Had it not been for the jury’s answers to special questions Nos. 3 and 4, the case would be in the same posture it was after the last trial, and this court would be compelled to grant a new trial. (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60.) In seeking reversal, the plaintiff attacks the answers to special questions Nos. 3, 4 and 5 and briefs and argues two points: (1) that his motion to set aside the answers to special questions should have been sustained, and (2) that the court erred in refusing plaintiff a new trial limited to the question of damages only. No point is made, nor is it argued, that the jury’s finding of contributory negligence on the part of plaintiff was not a proximate cause of his injuries. Instead, it is contended only that the answers to special questions Nos. 1 and 2 finding the defendant guilty of negligence which proximately caused plaintiff’s injuries state specific facts and not mere conclusions of law; that on the other hand, all of the answers to special questions tending to indicate contributory negligence on the part of the plaintiff state no facts, are definitely general in character and purely conclusions of law, and should have been stricken; that this leaves the special questions favorable to the plaintiff as being proper and they were correctly sustained, while those pertaining to whether plaintiff was guilty of contributory negligence are conclusions of law and should have been stricken, thereby leaving all the legitimate and proper answers to special questions consistent with the general verdict; consequently, the court’s ruling sustaining tíre defendant’s motion for judgment notwithstanding the general verdict was error and should be set aside and a new trial awarded the plaintiff limited to damages only.
The plaintiff directs our attention to Leonard v. Kansas City Public Ser. Co., 167 Kan. 51, 204 P. 2d 760, and Hultberg v. Phillippi, 169 Kan. 610, 220 P. 2d 208, and vigorously argues that a mere “yes” answer to special question No. 3: “Do you find that the plaintiff was guilty of any negligence which contributed to his injuries?” did not state a fact, which is more dramatically shown when the answer to question No. 4 is considered finding the plaintiff “was negligent for not exercising ordinary care for his own safety.” It is contended that the answer to special question No. 4 which asked the jury to state “of what such negligence consisted,” merely gave a legal definition of “negligence” which was obviously a mere conclusion of law and not a statement of fact as is required, and that the answers to special questions Nos. 4 and 5 state a legal conclusion of what negligence consists, and the jury’s “definition” could hardly be improved upon even if it had copied the definition of “negligence” from the law books.
We think the decisions cited and relied upon are not helpful to the plaintiff. It is true that simple “yes” and “no” answers to questions such as “Did the plaintiff by her own negligence contribute to her injury?” (Hultberg v. Phillippi, supra), and “Do you find from the evidence that the defendant was guilty of negligence that was a proximate cause of the (accident) ?” (Leonard v. Kansas City Public Ser. Co., supra), have been held to be general in character and in the nature of conclusions. However, where such general questions are submitted to the jury along with specific questions and the jury makes findings in answers to both the general and specific questions it can be seen that the general findings are mere conclusions drawn by the jury from the facts found and stated in the answers to the specific questions and the general findings may then be ignored and disregarded when they contradict the specific findings.
In the cases cited by the plaintiff, and in others (Koster v. Mat- son, 139 Kan. 124, 30 P. 2d 107; Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681; Long v. Shafer, 164 Kan. 211, 188 P. 2d 646), the jury made specific or detailed findings which contradicted the general findings or conclusions and the rule was applied that such general findings or conclusions, if contradicted by specific or detailed findings, cannot prevail, but are controlled by and must yield to the specific or detailed findings. See, also, Scott v. Bennett, 181 Kan. 410, 414, 312 P. 2d 224, and cases cited. But, there is no room for the holdings of those cases to apply here. In the instant case there were no specific or detailed findings which tended to show that the plaintiff was not guilty of negligence which contributed to his injury or negate the effect of the general finding “yes” to special question No. 3 as applied and explained by the jury in its answer to special question No. 4. Hence, the court did not err in refusing to strike the answer to special questions based upon the foregoing authorities.
This brings us to whether the answers to special questions Nos. 3 and 4 state no facts, are definitely general in character and purely conclusions of law and should have been stricken. Whether the plaintiff was guilty of contributory negligence was a question of fact properly submitted to the jury, and our consideration of this appeal is based solely upon its answers to special questions. While no specific or detailed findings of fact concerning the plaintiff’s contributory negligence were made it must be conceded that the answer to special question No. 3 is as general in character and as much of a conclusion as the jury’s answers were in the Leonard and Hultberg cases, supra; likewise, the answer to special question No. 4 was a conclusion, but when those two answers are considered together they state a fact about as well as could be expected of the jury and the purport was that the plaintiff was “guilty of negligence which contributed to his injuries” and that “he was negligent for not exercising ordinary care for his own safety.”
Contributory negligence is conduct which involves an undue risk of harm to the person who sustains it (Restatement of the Law, Torts, Negligence, § 463b), and was defined in Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470, as follows:
“Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm.” (Syl. ¶ 1.)
We cannot say that the answers to special questions Nos. 3, 4 and 5 are conclusions of law only. In Taylor v. Johnson, 186 Kan. 561, 352 P. 2d 436, it was said:
“Suppose in a case in which the facts are disputed and the jury is asked the one simple question: Was the plaintiff contributorily negligent? And, further, suppose the jury answers, “yes.” We know of no case holding that the answer constitutes a question of law or that it could be set aside by the court, if supported by the evidence. . . .” (1. c. 536.)
All findings are necessarily mere conclusions or inferences drawn from the evidence; that is drawn from other facts. It is therefore not a valid objection to a finding that it is a finding of a compound fact, or a complex fact, or a comprehensive fact, and including many minor and subordinate facts; or that it is a conclusion or an inference from the evidence or from other facts, but all findings must necessarily be subject to these same objections. (A. T. & S. F. Rid. Co. v. Plunkett, Adm’r., 25 Kan. 188, 197.) The findings here, through general in nature, are conclusions of fact of a complex character, drawn from a variety of other facts more simple and less complicated in their nature. (Prescott v. Leonard, 32 Kan. 142, 145, 4 Pac. 173.) In K. P. Rly. Co. v. Salmon, 14 Kan. 512, 527, it was said:
. . It is not an uncommon thing for adverse counsel to characterize a broad and comprehensive statement of a fact, or perhaps what might more properly be termed a simple but comprehensive statement of a compound fact, as a conclusion from facts, a conclusion of law, or a conclusion from facts and of law, forgetting of course that every fact that comes within our comprehension, however simple and diminutive it may be, must be composed of a vast number of other facts more simple and more diminutive. . . .”
When the answers to special questions Nos. 3 and 4 are considered together they are substantially a finding of the affirmative fact that the plaintiff during the whole transaction was negligent in failing to exercise due care and diligence to protect himself from injury and that such negligence was a contributing cause, cooperating with the negligence of the defendant, to produce his injuries. In other words, the answers are the jury’s finding that the plaintiff’s conduct fell below the standard to which he should have conformed for his own protection, that is, “he was negligent for not exercising ordinary care for his own safety,” and that such negligence “contributed to his injuries.”
This conclusion draws support from the fact that the answer to special question No. 4 contains identical language pleaded in subparagraph A, paragraph 5, of the amended answer alleging plaintiff’s contributory negligence. The court instructed the jury on the definition of negligence and contributory negligence and further stated that if it found “that plaintiff was guilty of negligence in any of the respects alleged in the defendant company’s answer and that such negligence contributed to plaintiff’s injury” then the plaintiff could not recover. It is evident the jury heeded the court’s instructions in framing its answer to the special question. The plaintiff may not here attack the answer to special question No. 4 as being a conclusion when it was based upon language alleging contributory negligence which he did not attack in his motion to make definite and certain and to strike.
Equally important is the fact that during the course of the trial the defendant made a timely request to have certain special questions submitted to the jury, and questions 7 (a.), 7 (b), and 8 (a) and 8 (b) as requested are practically identical but in reverse order to questions 1, 2, 3 and 4 submitted to the jury. When the court was considering defendant’s requested special questions the plaintiff submitted a brief entitled “Plaintiff’s Objections and Comments Concerning Special Questions Requested by Defendant.” The memorandum brief pointed out that the defendant had requested eight special questions to be submitted to the jury and that he objected to special questions numbered 1 through 6, inclusive, as requested. We quote from the memorandum brief:
“As to questions 7 and 8, it is believed that they are proper, however, they should be reversed. 8 should be asked first and the one numbered 7 should follow the one numbered 8. If 8 (a) (special question No. 1) is answered in the negative then 8 (b) (special question No. 2) and 7 (a) (special question No. 3) and 7 (b) (special question No. 4) require no answers. The logical manner in which questions of negligence should be approached is for the jury to first determine whether defendant was guilty of negligence which caused plaintiff’s injuries, and the jury should not be concerned with alleged contributory negligence of plaintiff until after the jury has found that the defendant is guilty of negligence which caused plaintiff’s injuries.” (Emphasis supplied.)
The plaintiff had the opportunity to object to the special questions he is now disputing and since he did not do so he may not now impeach special questions 3 and 4 and their answers. In Shivers v. Carlson, 178 Kan. 170,283 P. 2d 450, we said:
“. . . Appellant did not object to special question No. 17 and 18. Neither did he request a special question as to whether his contributory negligence, if the jury should so find, was a proximate cause of the collision and the resulting damage. Since he did not enter his objection at the proper time, he is not in a good position to complain now.” (1. c. 177.) (Emphasis supplied.)
See, also, the recent cases of McKinley-Winter Livestock Commission Co. v. Fletcher, 185 Kan. 637, 347 P. 2d 248, and Bateman v. Crum, 186 Kan. 1, 348 P. 2d 639, which are directly in point. Nowhere does the plaintiff argue that he made any request for special questions concerning contributory negligence of the plaintiff and whether his contributory negligence, if the jury should so find, was a proximate cause of his injuries; nor did he ask for any other special questions.
We cannot overlook the fact that both sides had opportunity to request the court to require the jury to be more specific in its answers to special questions. After the reporter read the verdict and answers to special questions and the jurors were asked if those were their answers and verdict, the court asked counsel, “Gentlemen, are there any other matters to be taken up . . . before we dismiss the jury.” As previously indicated, the answers of counsel were in the negative. Thereafter, the verdict and answers to special questions were accepted and the jury was discharged. If the plaintiff was dissatisfied with the answers to the special questions he should have moved the court to require the jury to return more definite answers, and he may not now be heard to complain.
Did the court err in rendering judgment in favor of the defendant on the answers to the special questions? If the jury’s special findings of fact are inconsistent with the general verdict and consistent with each other, the special findings control the general verdict and the district court may give judgment based upon the special findings. (G. S. 1949, 60-2918; Taylor v. Johnson, supra.) Little has here been said concerning the answer to special question No. 5. Perhaps under the allegations of the amended answer it was properly submitted. The answer indicates the jury also considered that some third person’s negligence proximately caused the injuries, perhaps plaintiff’s fellow workmen. Re that as it may, the answer can be easily reconciled with one version of the evidence which the jury had a right to believe. As thus construed, the answer is not inconsistent with the answers to special questions Nos. 3 and 4. As we have seen, the jury’s answers to those special questions constituted a complex finding based upon the pleadings, the evidence, the instructions, and the law of the case, that the plaintiff’s negligence was a contributing factor in producing his injuries and as such prevents him from recovering against the negligent defendant. That being the case, the answers to those special questions were contrary to the general verdict in favor of the plaintiff.
Having fully and carefully reviewed the record we are of the opinion that no reversible error exists and the district court did not err in overruling the plaintiff’s motion to strike the answers to special questions and in sustaining the defendant’s motion for judgment notwithstanding the general verdict. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was a proceeding in garnishment against a liability insurer based upon a judgment against its insured. The action out of which the appeal arises was filed by the appellant, John D. Henry, on September 17,1958, against the defendant, James E. Johnson, for personal injuries and property damage resulting from a collision of their automobiles at the intersection of Pawnee and Ridgewood Streets in the city of Wichita on December 16, 1957.
Summons was served upon the defendant and he failed to answer or otherwise plead. On October 20, 1958, the plaintiff filed a motion for judgment and mailed a copy thereof to the defendant and he failed to appear or answer the plaintiff’s petition.
On October 30, 1958, the cause came on for hearing on plaintiff’s motion for judgment and the court, after hearing the plaintiff’s evidence, found that plaintiff received injuries to his person and damage to his automobile and incurred hospital and medical bills all as a result of the automobile collision; that the defendant was guilty of negligence as charged in the plaintiff’s petition; that the plaintiff was not guilty of any negligence, and that plaintiff should have and recover judgment against the defendant for the sum of $41,256.85 and for costs.
On November 3,1958, the defendant met with a representative of the garnishee-appellee, Allstate Insurance Company, and with its attorneys in their offices in Wichita. The defendant informed them that a default judgment had been rendered against him on October 30, 1958; that no summons had been served upon him and that he first learned of the suit on October 31, 1958, when he received a telephone call from a newspaper reporter. At that meeting, the defendant was advised that if he had received a summons, the garnishee’s liability insurance policy issued in his favor was avoided because of his failure to forward the summons to the garnishee; that he could secure his own attorney but that the garnishee through its attorneys would attempt to get the judgment set aside subject, however, to a reservation of its rights because of lack of notice of suit. The defendant gave the garnishee’s representative and its attorneys a written statement of the foregoing facts and garnishee’s counsel prepared a letter reserving its rights which was handed to the defendant. Subject to the reservation, the defendant authorized the garnishee’s attorneys to file a motion on his behalf to set aside and vacate the default judgment, and for a new trial. The garnishee’s letter dated November 3, 1958, reserving its right reads:
“Dear Mr. Johnson:
“With respect to the automobile accident occurring on December 16, 1957, at Pawnee and Ridgewood Streets in which you were involved, you are hereby notified that the Allstate Insurance Company in investigating the said accident or any claim arising therefrom, or in negotiating for compromise settlement, or in making any settlement or in defending any suit against you or others, or in undertaking to set aside the judgment entered against you on October SO, 1958, in the District Court of Sedgwick County, Kansas, Case No. A-7SS83, and to take whatever further action shall be deemed advisable, or in any other way acting or failing to act, does not waive any of its rights or admit any obligations under the policy.
‘We are making this reservation of rights because of your failure to comply with the policy conditions entitled ‘2, Notice of Claim or Suit’ and ‘8, Assistance and Cooperation of the Insured’ and for other reasons.
“The service of this notice upon you does not deprive you of any rights you may have against this company.” (Emphasis supplied.)
On November 3, 1958, Allstate’s attorneys, representing the de fendant, entered his general appearance in the action and filed the following motion:
“Comes now the defendant James E. Johnson and moves the court for an order vacating and setting aside the order of judgment made and entered herein on the 30th day of October, 1958, in favor of the plaintiff and against this defendant and granting this defendant leave to file his answer, which is attached hereto, and granting this defendant a new trial on the following grounds:
“1. Defendant was not served with process and had no notice of this plaintiff’s claim against him.
“2. Irregularity in obtaining the judgment.
“3. Unavoidable casualty and misfortune which prevented this defendant from defending the action.
“4. This defendant was not afforded a reasonable opportunity to present his evidence and to be heard on the merits of the case although he has a meritorious defense.
“5. The judgment is excessive and contrary to the evidence.”
On November 24, 1958, the defendant’s motion was heard by the court, and the defendant and the plaintiff presented testimony in support of and in defense of the motion. Counsel argued the matter and the court requested the parties to submit briefs. On January 16, 1959, the court found that residence service of summons was had upon the defendant and that the defendant, by filing his motion, had submitted himself to the jurisdiction of the court; that the defendant had failed to show any reason, either in law or in equity, why the default judgment of October 30, 1958, should be set aside and vacated, and the defendant’s motion was overruled in toto.
In February, 1960, execution having been issued and outstanding, the plaintiff as judgment creditor, filed an affidavit for garnishment alleging that Allstate Insurance Company, as garnishee, was the insurer of the defendant at the time of the collision and that it had property of the defendant in its possession or under its control and was indebted to the defendant on that account. Garnishment summons was duly served upon the defendant and Allstate.
Thereafter, Allstate filed its affidavit of garnishee for discharge (G. S. 1949, 60-945), and the plaintiff timely filed notice of election to take issue upon the garnishee’s affidavit.
On the issues between the plaintiff and the garnishee, trial was had by the court. The defendant testified that at the conference in Allstate’s attorneys’ offices on November 3, 1958, he understood that, in doing any work in the case after judgment had been rendered against him, Allstate would not waive any of its rights, and he would not waive any of his rights; that after his rights had been explained to him, he authorized Allstate’s counsel “to enter a general appearance” in the damage action and he was told that he could hire his own lawyer if he wanted to but that Allstate’s counsel would continue to represent him.
Counsel for the defendant stated that Allstate had notice of the automobile collision on December 16, 1957, between the plaintiff and defendant; that it investigated the accident; that they represented Allstate in connection with other lawsuits arising out of the same accident, and that plaintiff’s counsel “knew there were attorneys in the case when he took the default judgment.”
Allstate’s affidavit of garnishee for discharge did not allege its reservation of rights arrangement with the defendant nor was the reservation of rights arrangement alleged in the defendant’s motion to vacate and set aside the default judgment. The first time the plaintiff knew of the reservation of rights arrangement was when Allstate’s letter to the defendant of November 3, 1958, was introduced in evidence at the hearing.
On June 12, 1961, the district court made findings of fact and conclusions of law, and those pertinent read:
“Findings of Fact.
“1. In 1952, and subsequent thereto, defendant James H. Johnson, contracted with garnishee for liability insurance coverage. Defendant’s exhibit A is a copy of the contract of insurance entered into between defendant and garnishee. Plaintiff’s exhibit 1 reflects the limits of such policy to be $10,000.00 for each person injured and $20,000.00 total benefits for each accident. The insured vehicle was a 1956 Chevrolet sedan. This contract of insurance was in force and effect at the time of the accident from which these proceedings arise.
“2. Section 3 of garnishee’s policy, subcapitioned ‘Conditions,’ subparagraph 2, captioned ‘Notice’ (appearing on page 12 of defendant’s exhibit ‘A’ herein) provides in part as follows:
“ ‘. . . If claim is made or suit is brought against the insured, he shall immediately forward to Allstate every demand, notice of summons received by him or his representative.’ ”
“3. On September 17, 1958, this lawsuit was filed by plaintiff, John D. Henry, against defendant, arising from an accident which occurred on December 16, 1957, between plaintiff’s vehicle and a 1958 Chevrolet station wagon owned and driven by defendant.
“4. Defendant duly received a summons by residence service on September 18, 1958. The summons disclosed the answer date to be October 17, 1958. Defendant failed to deliver the summons he received to Garnishee.
“5. On October 20, 1958, plaintiff’s attorney filed a motion for judgment on the pleadings and mailed a copy of such motion to defendant. Defendant received a copy of plaintiff’s motion prior to the date judgment was entered. Defendant failed to deliver a copy of the motion to Garnishee.
“6. Plaintiff’s motion for judgment on the pleadings was sustained and judgment entered against defendant on October 30, 1958.
“7. The first notice to garnishee that suit had been filed against defendant was given on November 1, 1958.
“8. On November 3, 1958, defendant met with a representative of garnishee and one of garnishee’s attorneys. At that time defendant and garnishee entered into a reservation of rights contract whereby it was agreed that among other things, any efforts of garnishee on behalf of defendant to set aside the judgment, defend the action, or in garnishee’s acting or failing to act in any manner, garnishee did not waive any of its rights or admit any obligation under any policy of insurance in effect between defendant and garnishee in view of defendant’s breach of the insurance contract in faffing to give notice of the filing of the action against defendant.
“9. On November 3, 1958, defendant further gave garnishee’s attorneys written consent and authorization to file a motion for a new trial in the above matter and to enter a general entry of appearance in the case on behalf of defendant.
“Conclusions of Law.
“1. Defendant’s failure to forward the summons and motion for judgment on the pleading is a breach of one of the conditions of the policy of insurance.
“2. Compliance with the conditions of the policy is a condition precedent to any claim against garnishee on the policy.
“3. Plaintiff stands in the shoes of defendant and may not enforce the policy because of the breach of its conditions by defendant.
“4. The conduct of garnishee did not constitute a waiver, or an estoppel.
“5. Garnishee is not liable for any portion of the judgment.
“6. Garnishee should be discharged.”
The plaintiff filed a motion for a new trial and to strike from the court’s findings of fact No. 4 the following: “Defendant failed to deliver the summons he received to garnishee,” and from findings of fact No. 5 the following: “Defendant failed to deliver a copy of the motion to garnishee,” for the reason that the garnishee failed to plead its reservations of rights arrangement with the defendant in its affidavit of garnishee for discharge, since to include the foregoing findings would be making a finding of a policy defense for the garnishee which the garnishee in its answer failed to allege and that a policy defense is an affirmative defense which must be pleaded before it can be proved and before any evidence can be admitted pertaining thereto. Plaintiff’s motions were duly considered and overruled, and judgment was entered in favor of the garnishee and against the plaintiff that the garnishee be discharged. This appeal followed.
The appellant makes six specifications of error, but has briefed them under two general points. First, that the defense of non-coverage by reason of garnishee’s lack of notice of suit was a policy defense and it was incumbent upon the garnishee to affirmatively plead in its answer the defendant’s breach of the policy and its reservation of rights arrangement, and in failing to do so, the district court erred in admitting into evidence the garnishee’s reservation of rights arrangement and in failing to strike those portions of findings of fact Nos. 4 and 5 as requested by appellant, and second, that the reservation of rights arrangements was insufficient to save the garnishee from the bar of waiver or estoppel in the garnishment proceedings where it did not clearly disclaim liability under the policy and expressly give notice of its reservation of a right to set up the defense of noncoverage.
The garnishee-appellee relies solely upon the district court’s finding of fact No. 8 to relieve it from liability. It contends the defendant’s failure to give prompt notice of the suit and cooperate with the company in the action brought by the plaintiff were breaches of noncoverage clauses which prevent any liability from attaching to the garnishee, hence, there was no liability existing in favor of the plaintiff. It is argued that finding of fact No. 8 is supported by substantial evidence; that the garnishee and the defendant contracted on November 3,1958, that the garnishee’s representation of the defendant in the tort action was not a waiver of the defendant’s failure to give notice of the suit or to cooperate in the defense of the action, nor an admission of any obligation on the part of the garnishee under the policy of insurance.
With respect to the appellant’s first contention, it is the prevailing rule in this jurisdiction that waiver or estoppel for failure to give required notice under the provisions of an insurance policy must be pleaded and proved by the party asserting it (Jameson v. Farmers Mutual Automobile Ins. Co., 181 Kan. 120, Syl. 2, 309 P. 2d 394), and sound reason exists to require the garnishee in a proceeding such as the one before us to affirmatively plead the insured’s breach of conditions of a liability insurance policy, and notice of any nonwaiver and reservation of rights arrangement entered into with the insured. However, our garnishment statute (G. S. 1949, 60-945) provides the form and content of a garnishee’s answer, and further provides that if the plaintiff serves notice on the garnishee that he elects to take issue on his answer as garnishee, and will maintain him to be liable as garnishee, "the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition and the garnishee’s affidavit the answer thereto.” Although fully cognizant of the foregoing rule, we do not feel justified in extending the clear import of the statute which contains the substantial form of a garnishee’s answer to include the pleading of defenses which are not specifically included therein. We conclude the district court did not err in admitting into evidence the garnishee’s nonwaiver and reservation of rights arrangement with the defendant.
Turning to the appellant’s second point, we note that the insurance policy in force between the garnishee and the defendant at the time of the accident was before the district court but the appellant has not seen fit to abstract its pertinent provisions for our consideration, however, we assume that, on the basis of the garnishee’s conduct and our examination of other standard liability insurance policies approved by the commissioner of insurance, it was the duty of the garnishee to defend the tort action on defendant’s behalf. It is well settled that where the pleadings of a tort action brought by an injured third person against an insured bring the injury within the coverage of the policy, the insurer must defend irrespective of its ultimate liability at the terminaton of the litigation. (Hoffine v. Standard Accident Ins. Co., 191 Kan. 63, 67, 379 P. 2d 246.)
While the garnishee did not receive notice of suit from its insured until November 1, 1958, it could not with safety to itself refuse to defend the action, although it was then in default judgment. At that stage of the proceeding there was time to file a motion for a new trial (G. S. 1949, 60-3003), and to vacate and set aside the default judgment (G. S. 1949, 60-3007), and the garnishee’s obligation to defend still existed. (Saint Paul Mercury Indent. Co. v. Valdosta Milling Co., 253 F. 2d 667.) Recognizing its duty in that respect, the insurer, witih the defendant’s consent, entered his general appearance in the action, filed a motion to vacate and set aside the default judgment, sought to obtain a new trial, and to answer the plaintiffs petition for trial on the merits. However, before doing so, the insurer took the precaution of securing a purported nonwaiver and reservation of rights arrangement with the insured in an attempt to reserve its policy defenses of noncoverage as set out in its letter of November 3, 1958, to the defendant, heretofore quoted.
This brings us to the garnishee’s notice of nonwaiver and reservation of rights of November 3, 1958, and whether it was sufficient to save the garnishee from the bar of waiver or estoppel and permit it to plead its policy defenses of noncoverage in the garnishment proceeding. It is a well-established rule that where an insurance company under a liability policy takes charge of the only defense which may then be imposed to an action on which liability rests (here, a motion to set aside a default judgment and answer on the merits), it will be estopped from thereafter questioning the claim because it was beyond the terms of the policy or because of a breach of a noncoverage clause, unless it gives notice of its right to set up the defense of noncoverage under an adequate and proper non-waiver and reservation of rights notice to the insured. (Brandon v. St. Paul Mercury Indemnity Co., 132 Kan. 68, 71, 294 Pac. 881, 83 A. L. R 673; Snedker v. Derby Oil Co., Inc., 164 Kan. 640, 192 P. 2d 135; Anno: 81 A. L. R. 1326 and 38 A. L. R. 2d 1161.)
This court has recognized that an insurer may enter into a non-waiver and reservation of rights arrangement with its insured and has enforced such agreements. (Iowa Hardware Mutual Ins. Co. v. Burgen, 178 Kan. 557, 290 P. 2d 1034.) The rule with respect to the sufficiency of such an arrangement was stated in Snedker v. Derby Oil Co., Inc., supra, as follows:
“It . . . (is) ... the general rule a liability insurer which assumes the defense of an action against the insured may save itself from the bar of waiver or estoppel in a subsequent action upon the policy if, in the action against the insured, it clearly disclaims liability under the policy, and gives notice of its reservation of a right to set up the defense of noncoverage. . . .” (1. c. 644.) (Emphasis supplied.)
That rule is to be applied in accordance with general and well-established rules with respect to the construction of insurance policies and related papers pertaining to liability which may arise thereunder. One basic rule is that, since the company prepares the policy and its representatives, as here, prepare the related papers, thereby selecting the language employed, such policy and papers are to be construed strongly against the insurance company and in favor of the insured; that it is their duty to make the meaning clear, and if they fail to do so, the insurer and not the insured must suffer. Stated another way, if the insurer desires to limit its liability, it should so state in clear and concise language in the policy or in the related papers involved. (Jameson v. Farmers Mutual Automobile Ins. Co., supra, and cases cited.) Appleman, in his Insurance Law and Practice, Vol. 16, § 9377, p. 976, states the rule with respect to a notice of nonwaiver and reservation of rights arrangement witih the insured as follows:
“Such agreements are construed strictly against the insurer and liberally in favor of the insured, and will not be extended beyond the exact terms of the agreement.”
In finding No. 8 the district court found that the garnishee and the defendant entered into a “reservation of rights contract” and the garnishee treats that finding as constituting a nonwaiver and reservation of rights agreement. We agree with the appellee’s construction of the finding, but we look solely to the garnishee’s letter of November 3,1958, to determine its legal effect. That letter advised the defendant-insured that in investigating the accident of December 16,1957, and any claims arising therefrom or in negotiating or making any settlement or in defending any suit, or in undertaking to set aside the default judgment of October 30, 1958, it did not waive any of its rights or admit any obligations under the policy. It stated that the insurer was making the reservation because of the insured’s failure to comply with policy conditions 2 and 8. However, the last paragraph advised the insured that the reservation of rights did not deprive him of any right he may have against the company.
We are of the opinion the nonwaiver and reservation of rights arrangement was insufficient to save the insurer from the bar of waiver or estoppel in the garnishment proceeding. Nowhere does it clearly disclaim liability under the policy or reserve to the insurer the right to set up any defense of noncoverage. As has been noted, the rule announced in the Snedker case, supra, imposes two necessary essential elements. First, that the liability insurer must clearly disclaim liability under the policy, and second, it must give notice of the reservation of rights to set up defenses of noncoverage. Here, neither of these two elements are clearly stated in the reservation. On the contrary, while the first two paragraphs of the reservation purported to advise the insured that the insurer was attempting in some manner to reserve something when it sought to set aside the default judgment and answer on the merits, the third paragraph purports to restore to the insured any rights he may have under the policy by advising him that he was not deprived of “any rights you may have against this company.” On its face the reservation is clearly insufficient to save the insurer from the bar of waiver or estoppel in a subsequent action brought against it. (Snedker v. Derby Oil Co. Inc., supra.)
The conclusion just announced finds support in Iowa Hardware Mutual Ins. Co. v. Burgen, supra. While the notice of nonwaiver and reservation of rights arrangement was not set forth in that opinion, an examination of the briefs and abstracts bn file in the State Library (Abstracts and Briefs, 178 Kan. Vol. 17) discloses that the insurer expressly denied any and all liability under the policy in question or under any other policy issued to the insured, and clearly gave notice of its reservation of right to set up defenses of noncoverage. This court held that, notwithstanding tire insurer proceeded to defend the damage action against its insured, nonetheless the insurer was not estopped to deny liability and, under the facts there present, authorized a cancellation of the policy.
Another reason exists which supports the conclusion just announced. The record discloses that approximately twelve months before the garnishee entered into the nonwaiver and reservation of rights arrangement with the insured, it had actual notice that the insured was a participant in the intersection collision; that it made a full investigation of the accident and was advised of all the facts and circumstances surrounding it including the fact that a car driven by the plaintiff had collided with the car owned and driven by its insured, and that it actively engaged in the defense of other actions arising out of the same accident. In 8 Applemen, Insurance Law and Practice, § 4741, p. 69, the rule is stated:
“. . . It has been held that the insured’s failure to give notice or forward the suit papers will not prevent recovery, where the insurer had actual notice and an opportunity to make an investigation and to defend the suit.”
See, also, Jameson v. Farmers Mutual Automobile Ins. Co., supra, pp. 126, 127.
Upon the record, we are of the opinion that the district court erred in its conclusions of law, and we hold that the garnishee’s nonwaiver and reservation of rights arrangement with the insured was insufficient to permit the garnishee to set up policy defenses and save it from the bar of waiver and estoppel in the garnishment proceeding.
The judgment of the district court is reversed with directions to set aside its order discharging the garnishee, and enter judgment in favor of the appellant, John D. Henry, pursuant to the limits of the insurance policy issued to the defendant, James E. Johnson.
Parker, C. J., Price and Schroeder, JJ., dissent. | [
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The opinion o£ the court was delivered by
Parker, C. J.:
This was an action to set aside a real estate contract. The trial court sustained a demurrer to the plaintiff’s evidence and the appeal is limited to that ruling.
On October 4, 1961, the plaintiff, A. A. Michael, of Fort Scott, a single man, then eighty years of age, entered into a contract with John G. Gross, also of Fort Scott, whereby Michael agreed to sell five hundred eighty-five acres of land to Gross for the principal sum of Thirty-five Thousand Dollars. Under the terms of the contract One Thousand Dollars of the principal was paid on the day of the execution of the agreement; Four Thousand Dollars was to be paid, and was paid, on December 29, 1961. The balance of the principal was to be paid in unequal installments, with the final payment to be made on January 29, 1963. Forrest E. Short, Jr., an attorney of Fort Scott, was named in the agreement as escrow agent with authority to receive and accept payments of principal for Michael and to hold the Warranty Deed, conveying the real estate, in his possession until Gross made final payment of the principal, whereupon he was to deliver such deed to Gross. The contract, although lengthy, is not an unusual one and, without burdening the record with further recital of its terms, may be said to contain provisions which are normally sufficient to adequately protect the rights of parties executing agreements similar to the one here involved.
More than four months after executing the contract, i. e., on February 9, 1962, Michael, as plaintiff commenced the instant action against Gross and Short, as defendants, by filing a petition in the district court of Bourbon County wherein he charged the defendants were guilty of fraud in the inception of tihe contract, warranting its cancellation, and asked that it be set aside and canceled on the basis of alleged fraudulent acts set forth in such pleading. Highly summarized those acts, as we glean them from the petition, are based upon the premise that, with full knowledge of both defendants, (1) Short, in inducing Michael to execute tihe contract betrayed a position of confidence and fraudulently cheated Michael as he pretended to represent him, while actually representing Gross; (2) Michael was mentally incompetent on October 4,1961, when he entered into the contract with Gross; and (3) under the existing conditions the consideration fixed by the terms of the contract for the sale of the involved land was so inadequate as to constitute fraud, vitiating the agreement.
Defendants answered the petition with a general denial of all fraudulent averments charged and, in addition, alleged that if the allegations of the petition were intended to allege that Short was acting as the agent, servant and employee of Gross and in the scope of his employment and in furtherance of Gross’s business, then that they specifically denied all such allegations and allege the fact to be that Short at all times was acting as the agent and attorney for Michael, in the scope of his employment as such, and in furtiherance of Michael’s business.
The answer contains other allegations as well as a cross-petition by Gross, not involved in this appeal, all of which may be ignored for purposes of appellate review and will not be hereinafter referred to.
Plaintiff’s response to the defendants’ answer was in tihe form of a general denial.
With issues joined as heretofore related the parties waived a jury trial. The cause then came on for trial by the court which, after patiently listening to what appears to have been lengthy and confusing evidence, found that Michael’s evidence was insufficient to establish the allegations of his petition and that tihe demurrer should be sustained. Thereupon, after announcing its findings, to which we shall presently refer, the court issued an order sustaining the demurrer and, upon being notified Michael intended to appeal from that ruling, continued other matters pending in the cause until after appellate review of its ruling on the demurrer.
Subsequently Michael perfected the instant appeal wherein, as we have previously indicated, the sole issue subject to appellate review is limited to the propriety of the trial court’s action in sustaining the defendants’ demurrer to the plaintiff’s evidence.
In approaching consideration of the sole issue involved on appeal we believe readers of this opinion will have a better understanding of the factual picture presented by the record, as well as the reasoning of the trial court in reaching its decision as to the sufficiency of the evidence, if we quote in toto its findings and rulings as they appear in the record. They read:
“The Court: Well, I have heard all of the witness for the plaintiff, and examined the documents that have been offered. Looking first at the mental capacity of the plaintiff, it is apparent to the Court that he is mentally alert. Certainly at the time he testified. He remembers not only things in the far distant past but he remembers things in the immediate past. He is fully oriented, and knows what he is doing at the present time. It is apparent to the Court that from the testimony of the doctor, for example, that the plaintiff has changed his mind from time to time. But that certainly is no indicia of insanity. He has a perfect right to change his mind and do what he wishes with his properties. I don’t think there is any real showing of a lack of mental capacity. The doctor who administered the care to this man while he was in the hospital would certainly be in the best position to know what drugs were given him and whether or not they would affect his mentality. His testimony was positive on that score, that they would not. As far as the evidence with regard to Mr. Short’s representation of Mr. Gross, the Court is familiar with the actions that have been filed in this court. The Lee case is an old case, having nothing to do with this matter, involving sale of a tract of land here in town, a realtor’s commission. The Bahney case, I believe, is a quiet title. Those were the only two that were filed at any time prior to the time this real estate contract was entered into. The Bahney case had been determined previously. The Lee case, it is true, is yet a pending case. But it has nothing whatsoever to do with this matter here. The question then simply is, if an attorney is representing a client in a matter of collection of a realtor’s commission, can he properly draw for someone else an agreement to sell land to the person whom he is representing. Certainly, I see nothing that would prevent him from drawing such an agreement. There is no showing that he took any action whatsoever for Mr. Gross in reference to this land other than transmitting the offers that apparently came to him through the plaintiff (sic) (defendant). With regard to Mr. Murphy’s testimony, I believe the testimony was that Mr. Gross and Mr. Short went out to Mr. Murphy’s a few days before this contract was signed and that Mr. Short talked privately with Mr. Murphy and said to him, and asked him, if he would give up his occupation of the farm under his lease, and Mr. Murphy said he would in effect, and asked if there would he any change of renting it from Mr. Gross, and Mr. Short, who had drawn the agreement under which Murphy was then occupying it, said he would have to pay more rent. Actually, when you look at the figures, Mr. Murphy is renting the property at roughly 50 cents a year above taxes. That statement in itself certainly would not necessarily indicate any representation of Mr. Gross, but would indicate that the attorney thought the rent was not sufficient, which is not too unusual of a determination under those facts, and Mr. Short having drawn the Murphy lease, I assume, was familiar with it. The rent under the agreement with Mr. Murphy, of course, is very low. So, I don’t think that the representation of both parties has been shown at all. I don’t think there has heen a prima facie case made in that regard. After the agreement was drawn, apparently a controversy developed between Mr. Gross and the plaintiff’s son. Mr. Short took action on behalf of Mr. Gross at that time and has in other matters in connection herewith until apparently there was a breach between the plaintiff and Mr. Gross and at that time, sometime in December, Mr. Short said he wouldn’t represent either of them any further in the matter, and certainly he should withdraw when it becomes obvious that the interest of the parties are conflicting. But prior to that time there has been nothing other than the meeting of the minds of the parties in this agreement. The plaintiff, when in the hospital, indicated to the witness, Murphy, and others, that he was going to sell the land. He sold the equipment of, I believe, a horse and various equipment that is listed in the Exhibits to Mr. Murphy. There is no question about that agreement; no question about his mental capacity at that time; his knowledge of what he was doing. He turned down an offer of $30,000.00 for the property from someone other than the parties to this. I believe some folks from Missouri. He turned down the original offer of $30,000.00 from Mr. Gross, the offer of $32,000.00 and he was holding out for $40,000.00, but signed the contract agreeing to take $35,000.00. Certainly that does not indicate to me that the man was incompetent. With regard to the value of the property, while there is some evidence that this might be worth $70.00 or $80.00, I believe the highest figure given is in that neighborhood. It is also indicated by the evidence that other land in the vicinity has sold recently at prices similar to the $60.00 here. And the fact that the purchaser here offered one quarter section to Mr. Murphy, for the same price which he paid for it would indicate to the Court that apparently the purchaser here didn’t feel that he had any great bargain with regard to that tract. He did offer, I believe, the evidence is that he has made a contract to sell another part of the land, 65 acres for more than he paid for it. But there he is selling a small tract by itself. And it was testified to by the gentlemen who had formerly heen with the soil conservation that that was one of the choice tracts in this acreage. The Court feels that the plaintiff has not made out a sufficient case. The Court feels that the plaintiff knew what he was doing at the time. He knew the values. I don’t see that anything would be gained by hearing the defendants’ evidence in this regard. But taking the plaintiff’s evidence, that which is most favorable to him, I feel that the plaintiff has not made a prima facie case. I will sustain a demurrer at this time.”
After a careful and extended examination of a confusing and in-comprehensive record, due to the manner in which the case was presented in the district court as well as the manner and form in which it was presented on appellate review, which has made a decision of all questions raised by the parties extremely tedious and difficult, we are inclined to the view the trial court’s ruling sustaining the demurrer to the evidence was based, and properly so, on grounds Michael had wholly failed, by the evidence admitted during the trial, to establish any of the alleged fraudulent acts set forth and relied on by him in his petition as grounds for setting aside the contract.
Under the confronting facts, conditions and circumstances it would serve no useful purpose, and of a certainty add nothing to the body of our law, to here detail the evidence before the trial court at the time of its ruling. It suffices to say, that when the admitted evidence upon which that tribunal based its decision is examined in the light of the same confusing and incomprehensive record to which we have previously referred, and is given all benefits of the established rule of liberal construction to which it is entitled under our decisions (In re Estate of Hayden, 174 Kan. 140, 142, 254 P. 2d 813), we are convinced there is nothing in such evidence, or in contentions advanced by appellant respecting its sufficiency, which makes it affirmatively appear tire trial court’s order sustaining appellees’ demurrer to appellant’s evidence was erroneous. In any event, in the face of the record presented, we are constrained to hold appellant has failed to establish any plain, palpable error warranting a reversal of that ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for damages for wrongful death brought by plaintiffs (appellants) V. Lorene and Kenneth Allen as parents and next of kin of their deceased minor son Kenneth Eugene Allen against defendant (appellee) Jeffrey Orville Ellis, Jr.
Except as they define the issues, the pleadings are unimportant and require little attention. All that need be said concerning them is that the petition as amended alleged that plaintiffs’ son Kenneth was two years and nine months of age at the time of his death; that on June 16, 1960, at about 10:20 p. m., plaintiffs’ son was walking across Main street in the city of Parsons and had proceeded past the center line of the street when he was struck by an automobile driven by defendant and was dragged approximately thirty-six feet. At the time of the collision the street was a four-lane, brightly lighted street, commonly referred to as a white way, having lights staggered every 100 feet with burning bulbs of 6,000 lumens or 600 candlepower; that as a result of the injuries received the child died within fifteen minutes after being struck.
The petition further alleged that the proximate cause of the child’s death was due to six specified acts of negligence on the part of the defendant.
Defendant answered by way of a general denial, and as an affirmative defense alleged that the child’s injuries and resultant death were proximately caused by the negligence of the parents, plaintiffs in this action. Plaintiffs replied by way of a general denial. On the issues thus joined the case was tiled to a jury.
The pertinent evidence revealed that about ten o’clock on the night of June 16, 1960, plaintiffs’ son was crossing Main street at Tenth from north to south in the city of Parsons. Main street is
also designated as US-160 and is a four-lane street running east and west, a well-lighted white way with 600 candlepower lights every 100 feet. The weather was clear and the street was dry at the time in question. Defendant’s vehicle was in good working and mechanical condition. Highway Patrolman Pribbenow was a witness to the accident who testified that as he was driving east on Main street he first observed defendant’s car at Thirteenth and Main; that defendant was directly behind him; that a car driven by James Woods pulled along beside him in the outside lane; that they stopped at Thirteenth and Main to await the change of the traffic light; that he, Patrolman Pribbenow, pulled away from the stop light ahead of the other cars; that when he arrived at the intersection of Tenth and Main the white way street lights were burning and he observed the lights of the filling station on the corner; that the lights were also on at the Crumpet Hut across the street; that there was a white way light on the southeast corner of the intersection and one on the side of the street west of where the accident occurred; that he saw the child Kenneth step down from the curb into the street and take two or three steps; that he had no trouble seeing the boy; that he passed the intersection, and on looking into the rear view mirror of his automobile he saw the boy pass the left front headlight of the defendant’s car but did not see him pass the other headlight; that defendant’s vehicle caught the child; that the street was sixty-six feet wide and he found the body forty-six and one-half feet from the north curb; that the child had been traveling in a north-to-south direction; that the boy’s clothing was definitely red.
The patrolman further testified he heard no noise of brakes being applied; that he heard no horn sounded by the defendant; that the defendant had two girls beside him in the front seat; and that defendant was traveling twenty-seven or twenty-eight miles per hour.
Policeman Wilkerson testified that defendant was driving the vehicle and had two passengers with him — all three were sixteen years of age; that he found the child lying under defendant’s car and that the child was “pretty well mangled,” both legs and one arm were broken; that the street was well lighted, there being a service station there and a big white way light right on the corner and another on the opposite side of the street, also a well-lighted ice cream store that caters to teenagers; that about two blocks south there is a park and swimming pool which are open to the public, the park being located just west of the swimming pool; that people take their children to the park for picnics; that there is a ball park just further east where children go to play. The officer testified the accident occurred in the business zone and that there was nothing between the white way light and the street where the boy would have been, no obstructions that make or cause shadows. He further testified he talked to the defendant later and that defendant said he did not see the child; further, that there are no crosswalks on either side of Tenth street at the intersection.
A Mr. Woods testified that he was a student, and on the evening in question, accompanied by two passengers, he was driving his Ford automobile; that he saw defendant driving his vehicle with two girls as passengers; that he passed defendant several times and defendant passed him several times; that the cars’ windows were down and “I imagine we hollered at them or talked to them.”
Woods further testified that when he stopped at Thirteenth and Main defendant’s car was behind the state patrol car and that Woods’ car was next to it in the right lane; that all three cars were headed east; that as they approached Tenth street he saw the child Kenneth; that it was light enough to see the boy and that he had no trouble seeing him leave the curb; that he, Woods, speeded up and signaled the patrolman to stop; that defendant’s car was two or four car lengths behind Woods’ car; that defendant did not apply his brakes nor sound his horn. Woods further testified he heard defendant say that he hadn’t seen the boy at all.
Defendant testified that he had a driver’s license with a restriction requiring him to wear glasses; that when he first saw him the child was in front of the left front fender; that he knew that this was a congested area, different businesses were located there, and children were frequently around the hamburger hut; that he knew of the park and swimming pool, and that he had seen a number of small children playing around both places; that as he approached the area in question he was thinking about who might be over at the Crumpet Hut; that he had seen numerous slogans and signs for purposes of protecting small children; and that if he had been looking directly to the left he could have seen the child Kenneth.
The case was submitted to the jury which returned its general verdict in favor of the defendant and its answers to the following certain special questions submitted to it by the court:
“1. Do you find that the plaintiffs, parents of decedent, were negligent, which negligence contributed to and was a proximate cause of the death of decedent?
“Answer: __
“2. Do you find that defendant, Jeffrey Orville Ellis, Jr., was confronted with a sudden emergency as defined by the Court’s instructions, by Kenneth Eugene Allen II running into the street in the path of said vehicle?
“Answer: Yes.
“3. If you answer the foregoing question in the affirmative, do you find that defendant, Jeffrey Orville Ellis, Jr., exercised due and reasonable care under circumstances then confronting him, to prevent said accident?
“Answer: Yes.
“4. Do you find that the defendant was guilty of negligence which was the proximate cause of the death of the decedant?
“Answer:__
“5. If you answer Question Number 4 in the affirmative, please state of what act or acts of negligence you find the defendant guilty.
“Answer: _.
When the jury returned to the box, the verdict and special questions were handed to the court and a conference was had between counsel. It was observed that questions Nos. 1, 4 and 5 were not answered, at which time plaintiffs’ counsel requested the court to return the jury to the jury room to answer the special questions, and upon refusal by the court to so do, plaintiffs objected to the acceptance of the verdict or the acceptance of the special questions as answered.
From the overruling of their request plaintiffs assign error and contend that because the jury failed to answer the special questions submitted to it by the trial court they are entitled to a new trial.
While this appears to be a simple negligence action to recover damages for the wrongful death of a child, the court saw fit to give thirty-nine instructions, some of which are quite lengthy and contended by plaintiffs to be repetitious and erroneous.
The pleadings in this action were based upon negligence and the proximate cause of the injury and death. The court’s instructions disclose eight on proximate cause and its application, and by instruction No. 38 the court told the jury:
“Certain special findings of fact have been submitted to you to answer and return with your general verdict herein. These questions you will answer fairly and impartially as you find and believe to he warranted by all the admitted facts and the evidence submitted to you.”
Yet in view of the pleadings, notwithstanding its instructions on proximate cause and its directions to the jury to answer the special questions, the trial court refused plaintiffs’ request to have the jury return to the jury room and complete the work that it was ordered to do in the inception.
The main object of special questions is to bring out the various facts separately in order to enable the court to apply the law correctly and to guard against any misapplication of the law by the jury. The failure of the jury to answer these questions evinces a lack of appreciation of its duty. (Clawson v. Wichita Transportation Corp., 148 Kan. 902, 906, 84 P. 2d 878.) As early as A. T. & Santa Fé Rld. Co. v. Campbell, 16 Kan. 200, Justice Rrewer stated that while the rule is general that wherever a question of fact is pertinent and an answer can be deduced from the testimony, it is the duty of the court to compel an answer, and refuse to receive a verdict until one is made. And again Justice Rrewer, in speaking for this court in City of Wyandotte v. Gibson, 25 Kan. 236, stated that the party has a right in a jury trial to have answers returned to special questions as to material facts, and a denial of this right is error. When the court has decided to submit a question, ordinarily the jury should be required to answer it before they are discharged. In Railway Co. v. Hale, 64 Kan. 751, 753, 68 Pac. 612, it was stated that when special questions are submitted to a jury it may not ignore or refuse to answer them. A court should never submit special questions that are intended or are liable to confuse or entrap the jury into making mistakes, but, when submitted, it is the duty of the court to require direct answers to all such questions as are material and on which evidence has been offered.
In Koehn v. Central National Ins. Co., 187 Kan. 192, 205, 354 P. 2d 352, it was stated:
“. . . This court has held that litigants are entitled to have the jury fairly answer important special questions of fact based upon the issues of the case which were duly submitted by the court, and upon which competent evidence was produced. Under such circumstances, where the court fails upon timely request to require the jury to make complete and candid answers, it is reversible error. (Citing cases.) ”
In the instant case the answers to the special questions were essential, under the pleadings, evidence, and instructions of the court, to the conclusion reached in the general verdict; and the trial court’s failure to require the jury to answer the questions submitted by it constituted reversible error.
Over plaintiffs’ objection Patrolman Pribbenow was allowed to testify on cross-examination tbat he had told counsel for defendant he was glad it wasn’t he who was driving the defendant’s car, because he, too, would have hit the child. This answer was purely a conclusion on the part of the witness and the testimony was highly prejudicial to the plaintiffs under the circumstances of the witness’ testimony. It invaded the province of the jury on a material question of fact to be determined by it, and its admission constituted reversible error.
Complaint is made of the admission of two officers’ testimony that no arrest of the defendant was made nor was any traffic ticket issued. All that need be said is that this was highly improper and prejudicial to the plaintiffs. The fact that the officers may or may not have performed their duty is no evidence that defendant was or was not negligent. The admission of one officer’s report of his investigation and conclusions made thereon was highly improper, and such an offense against orderly procedure and good practice that it constitutes reversible error. (See, Paul v. Drown, 108 Vt. 458, 189 Atl. 144, 109 A. L. R. 1085, also Anno. p. 1089.)
Over plaintiffs’ objection the court gave instruction No. 14, which, in pertinent part, reads:
“You are instructed that even though the defendant was the holder of a valid and unrestricted driver’s license such license does not, in and of itself, require the same standard of care and caution as that required of by an adult driver’s license holder. . . .”
This instruction was certainly prejudicial to the plaintiffs and erroneous as a matter of law. There is nothing in the Uniform Operators’ and Chauffeur’s License Act (G. S. 1961 Supp., Ch. 8, Art. 2) that makes any exception to the standard of care and caution required as between minors and adults. The act was passed for the protection of the general public and users of the streets and highways and not for the protection of immature, inexperienced and negligent drivers.
Plaintiffs further assert that the trial court erred in giving emergency instructions, applying certain statutes, and giving repetitious instructions on contributory negligence on the part of the plaintiffs. However, inasmuch as a new trial must be granted, these asserted errors need not be discussed, as it must be assumed that error, if any, on the instructions complained of will be taken care of by the trial court on future trial of the case.
In view of what has been said, it is apparent that the plaintiffs did not have a fair trial; therefore, the judgment of the trial court is reversed and the case is remanded with instructions to grant the plaintiffs a new trial. | [
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Malone, J.:
Michael L. Wilson and his wife, Penny Wilson, established two investment accounts for each of their three children pursuant to the Kansas Uniform Transfer to Minors Act (UTMA). They also opened a certificate of deposit (CD) for each of the three children. Michael and Penny subsequently divorced and, shortly thereafter, Michael withdrew all the funds in two of the children’s UTMA accounts and two of the children’s CDs. The three children, after reaching the age of majority, sued Michael for violating his duties under tire UTMA regarding the investment accounts and for breaching his fiduciary duty regarding the CDs. After a 2-day bench trial, the district court ordered Michael to repay the UTMA accounts and CDs with interest, and the district court further ordered Michael to pay punitive damages. Michael appeals the district court’s verdict and award of punitive damages.
Factual and procedural background
Michael and Penny married on November 12, 1976. They had three children: Sarena L. Wilson, born August 19, 1978, Jared M. Wilson, born June 18, 1980, and Joshua A. Wilson, bom January 15, 1982. On March 2, 1995, Michael and Penny established two irrevocable accounts with Edward Jones for each of their three children, for a total of six accounts pursuant to the Kansas UTMA. Michael was designated as custodian on each account.
On March 26, 1996, Michael and Penny opened a $5,000 CD in the names of Jared Michael Wilson and/or Mike or Penny Wilson, a $4,000 CD in the names of Joshua A. Wilson and/or Mike or Penny Wilson as joint tenants and not as tenants in common, and a $2,000 CD in the names of Sarena L. Wilson and/or Mike or Penny Wilson as joint tenants and not as tenants in common. Michael testified that the CDs were opened to “benefit the kids later on.”
On May 21,1998, Penny filed for divorce from Michael. Neither Michael nor Penny claimed any interest in the children’s accounts during the divorce proceedings, nor did they address the children’s accounts in their property settlement agreement. Michael never indicated in the divorce proceedings that the children were indebted to him. The divorce became final on September 7, 1999.
On September 24,1999, Michael contacted Kate Manley of Edward Jones and requested that Sarena’s UTMA accounts be transferred to him. Manley informed Michael that because Sarena had reached the age of 21, the accounts could not be transferred without Sarena’s approval. In November 1999, Sarena received a letter from Manley advising her that the accounts were hers to control now that she was 21, and Sarena placed the accounts into her name only. On November 23, 1999, Michael told Sarena to transfer the money back because the accounts belonged to him. Sarena refused to do so.
On January 4, 2000, Michael redeemed both of Jared’s and Joshua’s UTMA accounts. Michael did not inform his sons he had closed the accounts.
On March 9, 2000, Michael brought Sarena’s CD to the bank for withdrawal. The CD was later determined to contain a forgery of Sarena’s signature. A Kansas Bureau of Investigation agent could not identify Michael as the person who signed Sarena’s name, but he did indicate that the endorsement was not Sarena’s. Michael had no explanation for how the CD came to have Sarena’s forged signature.
On June 2, 2000, Michael asked Joshua to sign his CD over to him. Joshua complied, and Michael cashed the CD for his own use. Joshua testified that he only endorsed the CD because Michael told him he was transferring the CD to another institution that paid a higher interest rate.
In July 2000, Jared and Joshua learned that Michael had redeemed their UTMA accounts. In July 2001, Sarena learned that her CD was gone. Thereafter, the three children sued Michael for conversion of the funds. The petitions requested an accounting from Michael of all funds transferred from the UTMA accounts and from the CDs. The petitions were subsequently amended to include claims for punitive damages.
The district court held a 2-day bench trial. At the trial, Michael claimed that he reimbursed himself with the proceeds of Jared’s and Joshua’s UTMA accounts for expenses he had incurred on their behalf. Michael presented exhibits, including numerous invoices and canceled checks, representing expenditures he had made for Jared and Joshua from 1995 through 2000. The expenditures covered a wide variety of items, including payments for clothing, medical bills, car insurance, and car repairs. The total expenditures exceeded the amounts Michael had withdrawn from the UTMA accounts. Michael also testified that he had not received any explanation as to how to manage the UTMA accounts and what types of withdrawals were permissible. Manley directiy contradicted Michael’s testimony by testifying that she had informed Michael of the rules governing the UTMA accounts. As for the CDs, Michael testified he was entitled to cash the CDs because they were joint tenancy accounts.
The district court issued a memorandum decision containing detailed findings of fact and conclusions of law. The district court concluded that Michael had breached his fiduciary duty to his children and had converted the funds for his own use. The district court ordered Michael to return to Jared and Joshua the amounts taken from their UTMA accounts and to return to Joshua and Sarena the total value of their CDs, plus interest. The district court granted judgment in favor of Jared for $8,846.56, judgment in favor of Joshua for $14,477.18, and judgment in favor of Sarena for $3,044.55. The district court further found that Michael had acted willfully and that punitive damages were appropriate. At a subsequent hearing, the district court awarded $4,500 in punitive dam ages to Jared, $7,000 in punitive damages to Joshua, and $2,000 in punitive damages to Sarena. Michael timely appeals.
UTMA accounts
Michael claims the district court erred in granting judgment against him for reimbursement of the UTMA accounts. Michael maintains K.S.A. 38-1715(a) permits the custodian of a UTMA account to dispose of the custodial property as the custodian deems advisable so long as the custodian acts for the benefit of the minor. Michael asserts that a parent custodian under the UTMA can be reimbursed from custodial property for expenses the parent paid for the minor s benefit, even if the expenses are for necessities a parent is generally obligated to provide for his or her children.
The interpretation of a statute is a question of law over which an appellate court has unlimited review. An appellate court is not bound by the district court’s interpretation of a statute. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
“In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
The Kansas UTMA was enacted in 1985. The purpose of the Act is to provide an inexpensive, easy mechanism for transferring property to minors. Any transfer under the UTMA is irrevocable and the custodial property is vested in the minor, but the custodian has rights, powers, duties, and authority over the property as provided in the Act. The custodian relinquishes authority and all custodial property is transferred to the minor when he or she reaches 21 years of age. Pertinent provisions of the Kansas UTMA are as follows:
“A transfer made pursuant to K.S.A. 38-1710 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this act, and neither the minor nor the minor’s legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this act.” K.S.A. 38-1712(b).
“In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any otiier statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian’s discretion and widrout liability to the minor or the minor’s estate, may retain any custodial property received from a transferor.
“A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of die minor or by the minor if the minor has attained the age of 14 years.” K.S.A. 38-1713(b) and (e).
“A custodian acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over tiieir own property, but a custodian may exercise those rights, powers, and autirority in that capacity only.” K.S.A. 38-1714(a).
“A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of tire custodial properly as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (i) the duty or ability of the custodian personally or of any other person to support the minor, or (ii) any other income or property of the minor which may be applicable or available for that purpose.
“A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.” K.S.A. 38-1715(a) and (c).
“The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of:
(1) The minor’s attainment of 21 years of age with respect to custodial property transferred under K.S.A. 38-1705 or 38-1706;
(3) the minor’s death.” K.S.A. 38-1721(1) and (3).
The primary issue in this case is whether a parent custodian under the UTMA can be reimbursed from custodial property for expenses the parent paid for the minor s benefit, even if the expenses are for necessities a parent is generally obligated to provide for his or her child. Michael asserts K.S.A. 38-1715(a) specifically authorizes a custodian to use custodial property to pay expenses for the minor s benefit without regard to “the duty or ability of the custodian personally or of any other person to support the minor.” Jared and Joshua respond to Michael’s argument by noting that K.S.A. 38-1715(c) provides that any payment by a custodian under the UTMA “does not affect any obligation of a person to support the minor.”
Here, the district court heard conflicting evidence concerning the intentions of the parties, and the district court found that Michael’s actions were not justified by K.S.A. 38-1715(a) for the following specific reasons:
“(a) At no time from the date of the establishment of these accounts until their redemption was anyone aware that these accounts would be used to reimburse the defendant parent for expenses incurred on behalf of his minor children.
“(b) There was no contemporaneous entries or journal presented to the Court which substantiated the plan that expenses expended by the parent defendant would be reimbursed by the children’s funds [as required by K.S.A. 38-1713(e)].
“(c) At no time during the divorce proceeding did the defendant list or claim any ownership interest in these accounts as part of the settlement agreement.
“(d) At no time during the divorce proceeding did the defendant indicate that, as an asset to be considered in the divorce proceeding, he was owed money from the children for expenses expended by him on their behalf.
“(e) The defendant indicated to Sarena that her account was ‘his money’ not hers; that the defendant failed to indicate at that time, as well as at the time of the redemption of the accounts on January 4, 2000, that he was expending these custodial accounts to him for reason that he had personally expended funds for the children and that he expected repayment.”
The district court further stated that the “liquidation of these accounts was in such close proximity to the divorce and settlement that the Court is of the opinion that the defendant’s actions were taken in measure as a retaliation against his former wife and his children” and that “the defendant intentionally sought to convert these funds to himself and [Michael’s record of expenses] on behalf of the minor children was, in fact, [a] rationalization determined after the fact of the conversion.”
Based upon the district court’s factual findings, the district court concluded as a matter of law:
“The Court is of the opinion that what is contemplated by K.S.A. 38-1715 is the custodian of the account may deliver or pay directly to the minor, if the custodian considers it advisable for the use or benefit of the minor, or that the custodian may expend for the minor’s benefit so much of the custodial property as the custodian considers advisable. The Court does not feel that the intent of the statute is that a parent, who also serves as custodian of a minor child’s property, can expend routine expenditures associated with the child’s expense over the course or a period of time and then in one lump sum take it upon himself to terminate the account and expend the entire proceeds of the funds for expenses associated with the child.”
When a district court issues findings of fact and conclusions of law, the function of an appellate court is to determine whether the district court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison, 275 Kan. at 775. An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
Plere, the record supports the district court’s findings of fact. At no time was anyone aware that the UTMA accounts would be used to reimburse Michael for expenses incurred on behalf of his minor children. Neither Michael nor Penny claimed any interest in the UTMA accounts during the divorce proceedings, nor did they address the children’s accounts in their property settlement agree ment. Michael never indicated in the divorce proceedings that the children were indebted to him.
More significantly, Michael failed to maintain contemporaneous records of the expenses he paid for Jared and Joshua. Instead, he waited until after he redeemed the UTMA accounts to gather invoices and canceled checks representing expenses he had paid for his sons over the years. The district court considered the proximity of Michael’s actions to the divorce settlement and found that Michael’s actions were in retaliation against his former wife and his children. The district court also found that Michael’s records of expenses were an after-the-fact attempt to justify Michael’s conversion of funds from the UTMA accounts.
The district court acknowledged that K.S.A. 38-1715(a) provides that a custodian may pay funds directly to the minor or expend funds directly for the minor’s benefit, so long as the custodian considers the payments advisable for the use and benefit of the minor. However, the district court concluded as a matter of law that the statute does not authorize a parent custodian to take a lump sum reimbursement from custodial property for routine expenses the parent paid for the minor’s benefit over the course of many years.
There are no Kansas appellate decisions addressing whether a parent custodian under the UTMA can use custodial property to pay expenses for the minor’s benefit when the expenses are for necessities a parent is generally obligated to provide for his or her child. However, cases from other jurisdictions hold that custodial funds may not be used by a parent in a divorce action to pay child support, and that such action by a parent constitutes a breach of fiduciary duty. See Mangiante v. Niemiec, 843 A.2d 656, 660 (Conn. App. 2004); Sutliff v. Sutliff, 528 A.2d 1318, 1325 (Pa. 1987); Shinkoskey v. Shinkoskey, 19 P.3d 1005, 1009-10 (Utah 2001).
Despite these cases from other jurisdictions concerning child support obligations, we conclude there are no provisions in the Kansas UTMA prohibiting a parent custodian from using custodial property to pay expenses for the minor’s benefit, even when the expenses are for necessities a parent is generally obligated to pro vide for his or her child. In fact, such expenditures are expressly authorized under K.S.A. 38-1714(a) and K.S.A. 38-1715(a). However, in paying such expenses, the parent custodian must comply with the provisions of tíre UTMA. The UTMA places at least two explicit restrictions on the custodian’s ability to dispose of custodial property. First, the custodian must exercise “the standard of care that would be observed by a prudent person dealing with property of another.” K.S.A. 38-1713(b). Second, tire custodian must expend the funds for the use and benefit of the minor. K.S.A. 38-1715(a).
Furthermore, the parent custodian may pay funds directly to the minor or directly for the minor’s benefit, and the parent custodian should keep contemporaneous records of all transactions with respect to the custodial property. When a district court finds, as in tire present case, that a parent custodian has taken a lump sum reimbursement from custodial property in what amounts as a conversion of the funds, then the custodian is in violation of K.S.A. 38-1715(a) and is responsible for reimbursement.
In summary, the evidence in this case supports the district court’s conclusion that Michael did not expend the custodial property for the benefit of the children. The evidence, including Michael’s own statements, his covert withdrawal of the funds, the timing of Michael’s withdrawals, and the testimony of the Edward Jones representative, indicates that Michael converted the funds for his own use. The district court did not find persuasive Michael’s later rationalization that he was entitled to the custodial property as reimbursement for expenses he had paid over the years. As previously stated, this court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison, 275 Kan. at 775. We conclude the district court did not err in granting judgment against Michael for reimbursement of the UTMA accounts.
Joint tenancy certificates of deposit
Next, Michael claims the district court erred in requiring him to reimburse Joshua and Sarena for the joint tenancy CDs that Michael cashed for his own use. Michael asserts that he did not owe Joshua or Sarena a duty of care as a fiduciary regarding their CDs. Because the CDs were held as joint tenancy accounts, Michael claims he could cash the CDs at will.
Joshua and Sarena contend that the CDs did not satisfy the requirements of a joint tenancy because two endorsements were required for a withdrawal, not one. Sarena’s CD required her signature and either Michael’s or Penny’s, and Joshua’s CD, likewise, required his signature and either Michael’s or Penny’s. Thus, they did not each have unlimited authority over the accounts as each would have had in a joint tenancy.
The district court found that the clear intent of the parties was that the CDs were the assets of the children and that the joint tenancy designation was a mere accommodation. The district court also found that Michael owed Joshua and Sarena a fiduciary duty regarding the CDs, which Michael violated when he converted the CDs for his own use and benefit.
“ ‘In determining whether a joint tenancy account is created, general contract principles are applied. [Citation omitted.] A joint tenancy account is created when the depositor signs a signature card naming himself and another “as joint tenants with right of survivorship and not as tenants in common.” [Citation omitted.] These “magic words” meet the clarity requirement of K.S.A. 58-501 and create an enforceable written contract. [Citation omitted.] The provisions of the signature card constitute a contract in writing between the depositor and the bank, enforceable according to its terms, and a parol understanding at variance with such terms is inadmissible in the absence of fraud or mutual mistake. [Citations omitted.]’ [Citation omitted.]” Robertson v. Ludwig, 244 Kan. 16, 19, 765 P.2d 1124 (1988).
Joint tenancy bank accounts created by contract have been held to satisfy the requirements of the four unities of joint tenancy: interest, time, tide, and possession. 244 Kan. at 19. Although both contract law and the joint tenancy statute, K.S.A. 58-501, rely on the intent of the parties, under Kansas case law, a bank signature card designating that an account is held as a “joint tenancy and not tenancy in common” demonstrates the parties’ intent to hold the account as joint tenants and prohibits the introduction of parol evidence to prove otherwise. Agrelius v. Mohesky, 208 Kan. 790, Syl. ¶¶ 3, 4, 5, 494 P.2d 1095 (1972); see K.S.A. 58-501.
Joshua and Sarena’s argument that the CDs did not satisfy the requirements of a joint tenancy fails under the prevailing case law in Kansas that the bank’s signature card designation satisfies K.S.A. 58-501. Although the district court cited evidence tending to demonstrate that the joint tenancy designation was a mere accommodation, such evidence was inadmissible parol evidence in the absence of fraud or mutual mistake. There was no mutual mistake here because both Sarena and Joshua admitted that they understood that a joint tenancy meant that any one of the people named on the signature card could withdraw all of the money in the account. Likewise, there was no evidence of mutual mistake between the depositors and the bank.
There was, however, evidence of fraud. Sarena’s signature on her CD was forged. Also, Joshua testified that he only endorsed his CD over to Michael because Michael indicated he was transferring the CD to another institution to earn a higher interest rate. Based upon this evidence of fraud, parol evidence was admissible to establish a contrary intent of the parties regarding ownership and control of the CDs.
The district court determined that Michael owed Joshua and Sarena a fiduciary duty regarding the CDs. Whether parties have a fiduciary relationship is an evidentiary question which must be determined from the facts in each case. Therefore, the appellate court must ascertain whether there is substantial competent evidence to support the finding of the district court viewing the evidence in the light most favorable to the party who prevailed in the court below. Olson v. Harshman, 233 Kan. 1055, 1057, 668 P.2d 147 (1983).
There are two types of fiduciary relationships: “(1) those specifically created by contract such as principal and agent . . . and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions.” Denison State Bank v. Madeira, 230 Kan. 684, 691, 640 P.2d 1235, modified on rehearing 230 Kan. 815, 640 P.2d 1235 (1982). However, the mere relationship of parent and child does not raise a presumption of a confidential and fiduciary relationship. Olson, 233 Kan. at 1059.
The Kansas Supreme Court elaborated on the characteristics of a fiduciary relationship:
“A fiduciary relationship imparts a position of peculiar confidence placed by one individual in another. A fiduciary is a person with a duty to act primarily for the benefit of another. A fiduciary is in a position to have and exercise, and does have and exercise influence over another. A fiduciary relationship implies a condition of superiority of one of the parties over the other. Generally, in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary. [Citation omitted.]” 230 Kan. at 692.
Given the facts of this case, the evidence supports the district court’s conclusion that Michael had a fiduciary relationship with Joshua and Sarena regarding their CDs. Michael and Penny treated the CDs as the sole property of Joshua and Sarena and neither claimed the CDs in their divorce proceedings. Michael testified that he and Penny placed the money into the CDs for the benefit of the children. As their father and one of the accommodation parties on the CDs, along with Penny, Michael had a duty to act for the benefit of Joshua and Sarena. Michael clearly violated his fiduciary duty when he cashed the CDs for his own use and benefit.
In summary, even though the CDs were designated by the bank signature cards as joint tenancy accounts, the district court was allowed to consider parol evidence concerning the intent of the parties as to ownership and control of the funds. The district court’s conclusion that Michael violated a fiduciary duty with his children concerning the CDs was supported by substantial competent evidence. Accordingly, the district court did not err in granting judgment in favor of Joshua and Sarena regarding the CDs.
Punitive damages
Michael also claims the district court erred in awarding punitive damages. First, Michael argues that his conduct was not willful because he was never given detailed instructions regarding the UTMA accounts from Edward Jones. Second, Michael maintains that the district court failed to make specific findings that he violated the factors set forth in K.S.A. 60-3702 for determining the appropriate amount of punitive damages to award.
An award of punitive damages is governed by K.S.A. 60-3702 and K.S.A. 60-3703. The interpretation of a statute is a question of law over which an appellate court has unlimited review. Foster, 281 Kan. at 374. Subject to the statutory provisions, an appellate court reviews a district court’s award of punitive damages for an abuse of discretion. Mynatt v. Collis, 274 Kan. 850, 883, 57 P.3d 513 (2002).
To warrant an award of punitive damages, one party must prove by clear and convincing evidence that the other party against whom damages are sought acted with willful or wanton conduct, fraud, or malice. K.S.A. 60-3702(c). Here, the district court found that Michael had acted willfully and had displayed a “reckless indifference” to the rights of his children. Michael’s testimony that he was never given detailed instructions regarding the UTMA accounts was contradicted by Manley, the Edward Jones representative. The district court found Manley’s testimony more credible. As previously stated, this court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison, 275 Kan. at 775. The district court did not err in finding that punitive damages were warranted.
As to the amount of the damages, K.S.A. 60-3702(b) sets forth seven factors the district court may consider in awarding punitive damages:
“(1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant’s misconduct;
“(2) the degree of the defendant’s awareness of that likelihood;
“(3) the profitability of the defendant’s misconduct;
“(4) tire duration of the misconduct and any intentional concealment of it;
“(5) the attitude and conduct of the defendant upon discovery of the misconduct;
“(6) tire financial condition of the defendant; and
“(7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damage awards to persons in situation similar to those of the claimant and the severity of the criminal penalties to which the defendant has been or may be subjected.”
The district court need not make an explicit statement of all the relevant facts in its consideration of the factors so long as the record indicates that the court considered the statutoiy factors when making its determination regarding punitive damages. Mynatt, 274 Kan. at 884.
Here, the record indicates that in its ruling from the bench on punitive damages, the district court specifically referred to the statutory factors at K.S.A. 60-3702(b). Even though the district court did not make an explicit statement as to all the statutory factors, the record reflects that the district court was aware of the statutory factors and discussed the factors in general before determining the amount of punitive damages to award. We conclude the district court did not abuse its discretion in the amount of punitive damages it awarded to each of the three children.
Attorney fees
Finally, the appellees, Joshua, Jared, and Sarena filed a motion with this court seeking attorney fees for services on appeal. Supreme Court Rule 7.07(b) (2006 Kan. Ct. R. Annot. 57) grants an appellate court authority to award attorney fees for services on appeal in cases in which the district court had authority to award attorney fees. Generally, the district court is not authorized to award attorney fees in the absence of a statute or express provision in a contract. Hawkinson v. Bennett, 265 Kan. 564, 575, 962 P.2d 445 (1998). Here, the district court did not have authority to award attorney fees. Furthermore, the appellees do not allege that Michael’s appeal was frivolous. Thus, the appellees’ request for attorney fees on appeal is denied.
Affirmed. | [
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MARQUARDT, J.:
Scott E. Robinson appeals the district court’s decision affirming the suspension of his commercial driving privileges. We affirm.
According to the stipulated facts, a trooper initiated a stop of a noncommercial vehicle driven by Robinson. Robinson held a commercial driver’s license issued by the State of New Mexico. After observing Robinson and conducting field sobriety tests and a preliminary breath test, the trooper determined that reasonable grounds existed to believe Robinson had been operating a vehicle while under the influence of alcohol. Accordingly, the trooper placed Robinson under arrest for driving while under the influence of alcohol (DUI).
The trooper provided Robinson with the oral and written notice required by K.S.A. 2006 Supp. 8-1001(f), that is on the front side of the DC-70 form. The trooper did not advise Robinson as to how a test failure, test refusal, or DUI conviction would affect his commercial driver’s license. Following receipt of the implied consent notices, Robinson took a breath alcohol test, which he failed. Based on the test results, Robinson was issued a notice of suspension of his driver’s license.
At the Kansas Department of Revenue (KDR) administrative hearing, Robinson challenged the trooper’s failure to advise him that the results of the breath alcohol test would affect his commercial driver’s license. The administrative hearing officer affirmed the suspension of Robinson’s driving privileges. Robinson filed a petition for judicial review, arguing that the implied consent notices incorrectly stated that a test failure resulted in a 30-day suspension of his driving privileges, when in his case, a test failure resulted in a 1-year suspension of his commercial driver’s license. Robinson claimed that the failure to notify him of the effect on his commercial driver’s license pursuant to K.S.A. 2006 Supp. 8-2,142(a)(2) was a due process violation.
The trial court rejected Robinson’s due process claim and denied his petition for review. The trial court noted that Robinson “did not detrimentally rely upon lack of notice regarding the sanctions on his commercial driving privileges. After putting himself in a position to have a test requested of him, the sanction on [Robin son’s] commercial driving privileges was the same, whether he refused testing or failed the test.” Finally, the trial court found that Robinson had received due process to challenge at his commercial driver’s license suspension at the administrative hearing and his trial de novo in district court. Robinson timely appeals.
Robinson challenges the district court’s decision affirming KDR’s suspension of his driving privileges. Robinson claims the DC-70 form did not accurately reflect the law pertaining to him. Robinson seeks a reversal of the district court’s decision and reinstatement of his commercial driver’s license.
KDR maintains that no due process violation occurred because the trooper provided all of the statutorily required notice and Robinson was afforded the opportunity at the administrative hearing and the de novo review before the district court to challenge that he failed the breath test.
When an individual operates a motor vehicle, that individual gives his or her consent to submit to alcohol or drug testing. K.S.A. 2006 Supp. 8-1001(a). Pursuant to K.S.A. 2006 Supp. 8-1001(f), prior to administering an alcohol or drug test, an officer must provide the driver of a noncommercial vehicle certain notices orally and in writing. One such notice is: “[I]f the person submits to and completes the test or tests and the test results show an alcohol concentration of .08 or greater, the person’s driving privileges will be suspended for 30 days for the first occurrence....” K.S.A. 2006 Supp. 8-1001(f)(E). Additionally, the officer must inform the individual who refuses to submit to and complete the test that driving privileges will be suspended for 1 year for the first occurrence. K.S.A. 2006 Supp. 8-1001(f)(D).
Where an officer encounters a person who is driving a commercial vehicle and appears to be DUI, the officer must inform the driver that he or she will be disqualified from driving a commercial vehicle for at least 1 year following either a test refusal or test failure. K.S.A. 8-2,145(a); K.S.A. 2006 Supp. 8-1001(g). Interestingly, K.S.A. 2006 Supp. 8-1001(g) provides: “Any failure to give the notices required by K.S.A. 8-2,145 and amendments thereto shall not invalidate any action taken as a result of the requirements of this section.”
The legislature amended K.S.A. 8-2,142 in 2003. L. 2003, ch. 42, Sec. 7. Prior to that amendment, a commercial driver s license was subject to a 1-year suspension for a test refusal or failure only when the person was driving a commercial vehicle at the time of the stop. K.S.A. 8-2,142(a)(4). The 2003 amendment expanded the scope of the suspension to apply to a commercial driver’s license even when the person was stopped while driving a noncommercial vehicle. K.S.A. 2006 Supp. 8-2,142(a)(2). The legislature did not amend the required implied consent notices to include notice of the 1-year suspension of a commercial driver’s license when the person is stopped while driving a noncommercial vehicle. See K.S.A. 2006 Supp. 8-1001(g).
Robinson’s assertion that law enforcement must show the accused knew the consequences of a test failure or refusal is directly contrary to Kansas law. K.S.A. 2006 Supp. 8-1001(m) provides: “It shall not be a defense that the person did not understand the written or oral notice required by this section.”
Robinson equates his case with Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 840 P.2d 448 (1992), and claims the notices provided by the trooper did not substantially comply with die requirements of the implied consent law. Robinson contends K.S.A. 2006 Supp. 8-1014 incorporates K.S.A. 2006 Supp. 8-2,142 into the general implied consent statute, thus requiring notice of the consequences of a test failure or refusal on a commercial driver’s license even when the person was driving a noncommercial vehicle at the time of the stop. Robinson attempts to apply Meigs without acknowledging a crucial distinction: the notices at issue in Meigs were statutorily required, whereas the notice at issue here was not.
The parties agree that the appellate court has unlimited review over the question of whether an individual’s due process rights were violated. See Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).
Robinson’s claim is directly contrary to Kansas law. The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000). Certainly, Robinson was entitled to due process protection. Indeed, the suspension of a license involves State action that adjudicates important interests of the licensee; accordingly, licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment to the United States Constitution. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 776, 133 P.3d 104 (2006). As the district court correctly found, Robinson was afforded two opportunities, the administrative hearing and the de novo review before the district court, to contest the finding that he failed the test. Robinson makes no assertion that those proceedings were in any way deficient.
It is clear that Robinson received all of the notice to which he was statutorily entitled. Robinson was not denied due process.
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The opinion of the court was delivered by
Jackson, J.:
This action was begun by Harley Blaylock and his wife Marian who are now denominated as the appellees and cross appellants. We shall hereinafter refer to them as plaintiffs and to the Highway Commission as the defendant. Plaintiffs are the leaseholders of a restaurant or cafe which is located on Interstate Highway No. 35 between Olathe and Kansas City in Johnson county.
Plaintiffs filed their action against the defendant commission in Shawnee county district court and later moved for a change of venue to Johnson county, which the Shawnee county court granted.
Plaintiffs complain that they had at one time a permit of access to the north two lanes of traffic which had been granted to plaintiff’s lessors W. D. Craig and L. F. Cox. Plaintiffs assert that they had the right to use the aforementioned access and had depended upon such right when they entered into the ten-year lease of the restaurant in 1956.
Plaintiffs petition contained a copy of the access permit which was attached thereto as Exhibit “B.” We set out a copy thereof:
“EXHIBIT ‘B’
State Highway Commission of Kansas Highway Entrance Permit
“WHEREAS, L. F. Cox & W. D. Craig, Partners D. B. A. Craigs Economy Service of Olathe, Kansas hereinafter termed the Petitioner, who is the owner of property abutting a State Highway known as Route U. S. 50, requests permission and authority to construct a commercial entrance to said State Highway, 0.5 miles Northeast from Olathe more particularly described as follows: Stations 455 to 460 Prop F. I. 50-46 02-3, Located in SK, NEK Sec. 30 T 13S R 24E, and
“WHEREAS, the State Highway Commission plans future construction on this section of highway, which includes additional roadway lanes separated by a dividing strip, parallel frontage roads and other construction and devices for the protection and convenience of traffic, and
“WHEREAS, this future construction may require a change in location of the entrance!s) now desired by the Petitioner and prohibit direct ingress and egress to the main travelled highway, and
“WHEREAS, the State Highway Commission has acquired the necessary right-of-way in Johnson County by eminent domain, and its authority to control entrances and access facilities has been confirmed by the Johnson County District Court in Case No. 18188,
“THEREFORE, permission is hereby granted to construct temporary direct entrance!s) to the main travelled portion of said highway in its present stage of construction subject to the following terms and conditions:
“1. Petitioner agrees to relinquish his right to direct entrance to the main travelled roadway as herein granted at any future time that the State Highway Commission constructs frontage roads or provides other means of ingress and egress from the main travelled way to the property of the Petitioner.
“2. The Petitioner shah furnish ah material, do ah work and pay ah costs of the construction of the temporary direct entrances requested by this permit and shah, in a reasonable length of time, restore said Highway to a condition similar or equal to that existing before commencement of the described work. It is, also, understood that the work shah be completed within six months after the date this permit is approved, otherwise, the permit becomes null and void.
“3. That the proposed work will be located and constructed to the satisfaction of the State Highway Engineer or his duly authorized representative, and as shown on the attached plans which are part of this permit. The material and construction methods used on ah of the work within the Right-of-way limits shah conform to the current Standard Specifications of the State Highway Commission of Kansas.
“4. A check, or other suitable bond, in the amount of fifty dollars ($50.00) made payable to the State Highway Commission of Kansas is hereby deposited with this permit to guarantee and insure satisfactory performance of the conditions of this permit. The Petitioner agrees that in case of failure or refusal to perform the work satisfactorily the State Highway Commission may use ah or any part of the deposit to repair or restore said Highway.
“When work covered by this permit is completed, notify the Division Engineer, L. H. Vincent at Topeka, Kansas, for inspection. If the work is satisfactorily completed when inspection is made by the Division Engineer, any unused portion of the deposit will be returned to the Petitioner.
“The amount of the above mentioned check shall be determined by the schedule of deposits as follows:
“Entrances: A $10 deposit is required for farm or house entrances not to exceed a twenty-four foot roadway. A $50 deposit is required for entrances having a roadway wider than twenty-four feet or for entrances to filling stations, refreshment stands or any other commercial establishment.
“5. In the granting of this permit the Petitioner agrees not to interfere or obstruct traffic on said Highway, unless specifically provided for in this permit.
“6. The Petitioner shall not, at any time hereafter, serve any patron while the vehicle of said patron is parked on any portion of the State Right-of-Way.
“7. The Petitioner, his successors or assigns, shall assume all risk and liability for accidents and damages that may accrue to persons or property on account of this work.
“8. That in the event the State Highway Commission deems it necessary or proper to make any alteration or improvement along or upon the Highway or Right-of-Way the Petitioner agrees to save the State Highway Commission harmless for any damage to said Petitioner’s construction along or upon the said Highway or Right-of-Way and the Petitioner further agrees that upon notice being served upon him, he will, within a reasonable time, alter, change the location or move his construction or work off the Highway or Right-of-Way as requested by said Commission or its duly authorized representative without expense to the Commission aforesaid.
“9. The Petitioner agrees to notify the Division Engineer, State Highway Commission, Topeka, Kansas, before starting work.
“10. It is agreed that upon ultimate completion of the road as a four lane highway, the entrance at approximate plan station 455 + 70 shall remain as a permanent access to the north bound traffic lanes and that no crossover of traffic between the south bound lanes and the north bound lanes will be permitted.
“This permit is hereby accepted and its provisions agreed to this 26th day of Nov., 1952.
Signed W. D. Craig,
L. F. Cox Petitioner.
Witness Richard Secrest
Permit granted this_day of_, 19__
STATE HIGHWAY COMMISSION OF KANSAS
By Gale Moss, Director.
Witness F. E. Harwi, Jr.
Secretary, State Highway Commission.”
It is said that paragraph 10 was specially inserted in the paper. It is alleged in the petition that plaintiffs’ rent amounts to 3% of the gross sales or a minimum of $300 per month.
Plaintiffs contend that the above access permit was to constitute a permanent right of access to the north bound lanes of Interstate Highway No. 35. They, of course, stress the provisions of paragraph 10 in which we find the words: “shall remain as a permanent access to the north bound traffic lanes. . . .”
The pertinent part of the decision made by the trial court was as to the binding effect of the access permit. The court held that this was a binding, permanent permit and that plaintiffs had the right to rely on it and had the right to be compensated for its loss. The court approved the jury’s verdict of $51,545 as being the proper amount due the plaintiffs.
It has now become the duty of this court to construe and decide the binding effect of the access permit noted above. There is no question that paragraph No. 10, as it appears in the permit, is speaking in a different tone than in the other parts of the document. In paragraph No. 1, the petitioner agrees to relinquish his right to direct access to the main traveled roadway as herein granted at any future time that the Commission constructs frontage roads or provides other means of ingress or egress from the main traveled way to the property of the petitioner.
In paragraph No. 2, the access to the main road is spoken of as temporary and only in paragraph No. 10 is there any indication that plaintiffs are being granted any permanent right of access. So defendant argues strongly that the permit is ambiguous and that it does not grant a permanent property right.
Moreover, it is argued that if the contract be interpreted as an exclusive franchise conveying a property right then its ambiguity requires judicial construction in favor of the public, citing 37 C. J. S. Franchises § 26, p. 182 and certain other authorities.
It is also argued that the state cannot be estopped. We are cited to the case of State, ex rel., v. Paul and Grice, 113 Kan. 412, 214 Pac. 425, in which Mr. Justice Dawson said:
“Counsel for appellants call our attention to a respectable line of decisions which hold that the state itself may be estopped to assert its rights in a public highway through nonuse, silence, apparent acquiescence, length of time, adverse possession, abandonment, long use at variance with the originally established road limits, and the like. This court has never given its sanction to any such doctrine. It is altogether out of accord with the theory of Kansas jurisprudence. Beginning with Wood v. M. K. & T. Railway Co., 11 Kan. 323, 349, there is a long undeviating line of decisions down to and including In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073, and The State, ex rel., v. Piper, 103 Kan. 794, 798, 176 Pac. 626, which holds that laches and estoppel do not operate against the state, that no procrastination of public officials prejudices the state and that their tardiness neither bars nor defeats the state from vindicating its sovereign rights, except where positive statutes so provide. That the state’s rights in a public highway differ in no material respect from any other of its manifold sovereign interests and concerns is also settled law. (See Eble v. The State, 77 Kan. 179, 184, 93 Pac. 803.)”
Attention is also directed to State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 22 P. 2d 1093, at page 715 where the question of estoppel against the state was again referred to and the statement in the Paul and Grice case again quoted and applied.
Thus, the court is of the opinion that the permit did not clearly give plaintiffs a permanent access to the northbound lanes, but was intended to give only a temporary right of access until the defendant Commission constructed frontage roads or provided other means of ingress and egress from the main traveled way to the property of the plaintiffs. This construction of the permit is fortified by the leasing agreement between the lessors and the plaintiffs (lessees) wherein they recognized the temporary nature of the permit by the following language:
“In event the present entrances are removed, and providing the state in building the service road leaves no access to the property, the rent will not be charged for the time traffic is cut off.”
By their petition the plaintiffs herein claim damages for the taking of property rights, which it is alleged they acquired under the permit. These rights, they claim, must be taken by condemnation.
No appeal was taken either by the landowners, the lessors were not parties to this action, or the State Highway Commission in the original condemnation proceedings. In that proceeding the Commission acquired rights of access to the highway here in question. Thus, the instant case presents no question concerning the power of the Commission to control access to the property in question as against the landowners from whom such rights were taken, and the plaintiffs as lessees acquired no greater rights by an assignment than the lessors had.
On the facts presented it must be conceded the defendant Commission had authority to grant an access permit in its exercise of the police power of the state. The parties do not challenge this point.
It follows that the right of access acquired by the plaintiffs by an assignment of the lessors’ rights under the permit was only a temporary right of access.
After the defendant Commission had completed the frontage road to the plaintiffs’ restaurant, it had the right under the permit to remove the temporary entrances granted by the permit, and the plaintiffs were not entitled to recover damages against the Commission for their removal.
The judgment of the lower court is reversed.
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The opinion of the court was delivered by
Price, J.:
This appeal is from an order quashing service of summons and dismissing plaintiffs petition.
The question presented is whether plaintiff’s affidavit to obtain service by publication complied with the requirements of G. S. 1961 Supp. 60-2526.
The trial court held that it did not — hence this appeal.
The record shows the following:
Plaintiffs petition alleged that he was a resident of Sedgwick county, and that defendant was a nonresident of Kansas — “having an address of 541 S. Alexandria Ave., Los Angeles 5, California”; that at all times material since the date of execution of a bill of sale of personal property by one Ida L. Shipley dated October 12, 1954, and subsequent to June 9, 1960, plaintiff was the owner and in possession of certain described personal property, and that some time during the summer of 1960 defendant unlawfully sold, disposed of and converted the same to his own use to the damage of plaintiff in the sum of $4,075. Recovery was sought in that amount.
With his petition plaintiff filed an attachment affidavit — the contents of which are not involved in this appeal. Pursuant thereto certain described real estate in Sedgwick county owned by the defendant was attached.
At the time of filing his petition plaintiff also filed an affidavit to obtain service by publication. Omitting formal parts — it reads:
“James Wilber Carter, of lawful age, being first duly sworn upon oath, deposes and states:
“That he is the Plaintiff in the above-entitled suit; that on the 18th day of April, 1962, the Plaintiff filed his Petition and commenced this suit for judgment against the Defendant in the sum of $4,075.00, plus interest at the rate of 6% per annum from the date of the sale and conversion as set out in the Petition, court costs and such other and further relief as is just and proper.
“That Defendant’s last known address was 541 S. Alexandria Ave., Los Angeles 5, California; that this affiant verily believes and alleges the fact to be true that the Defendant is not now a resident anywhere in the State of Kansas and in fact the last time anything was heard from this Defendant was while he was in California. This affiant further states that he is unable to procure actual service of summons upon the Defendant within the State of Kansas, and therefore desires to obtain service by publication, as prescribed by law.”
The legal sufficiency of the foregoing affidavit is the question in this case.
Pursuant thereto “notice of suit” was published for three consecutive weeks in a local newspaper.
All of the foregoing proceedings were had in April and May of 1962.
Very shortly thereafter defendant, appearing specially for the purpose of the motion only, filed a motion to quash the pretended service of summons and to dismiss plaintiffs petition on the ground no jurisdiction of the defendant was obtained by the purported publication service because (1) plaintiffs action was not one in which publication service is authorized; (2) defendant was a nonresident of Kansas and had been a resident of California continuously for more than the past fifteen years; (3) defendant was not served with process within Kansas, and (4) even if publication service were proper in the action alleged — which is denied — the attempted publication service was defective and void.
This motion was heard on May 14, 1962, and on that date the following order (omitting formal parts) was made:
“Thereupon, counsel present their respective arguments to the court, and the court, being fully advised in the premises, finds that it has no jurisdiction of the defendant and that the plaintiff’s service of summons should be quashed, plaintiff’s petition dismissed, and the attachment dissolved.
“It Is Therefore, Considered, Ordered, Adjudged and Decreed that the motion of the defendant for an order quashing the service of summons and dismissing plaintiff’s petition be and is hereby sustained, without prejudice.”
Plaintiff promptly appealed from that order and specifies it as error.
On January 24, 1963, defendant (as appellee) filed in this court a motion to dismiss plaintiffs (appellant’s) appeal, alleging that subsequent to May 14, 1962 there had been no further proceedings in the case other than the taking of the appeal; that in the meantime — on January 7, 1963 — defendant and his wife had conveyed the real estate in question to a third party; that as a result thereof there remained nothing on which the attachment, or any further attachment, could apply; that more than sixty days had transpired for the issuance of an alias summons — and therefore the questions raised by the appeal were moot.
Plaintiff, as directed by this court, filed a reply to defendant’s motion to dismiss. Defendant countered with a response to plaintiff’s reply. This court thereupon denied the motion to dismiss with leave to renew at the hearing of the appeal on its merits.
At this stage of the case — on the record presented — it is unnecessary to discuss the effect, if any, of the provisions of G. S. 1949, 60-3331, and G. S. 1949, 60-903, on the question presented by the motion to dismiss — and we therefore express no opinion on the matter. Furthermore, the fact of the execution of the deed to the attached property — long after the appeal was taken — is no part of the record and has no bearing on the merits of the appeal. The motion to dismiss the appeal is therefore denied and we proceed to the merits.
In support of the trial court’s order quashing service and dismissing the petition, defendant contends that a publication affidavit which does not comply with statutory requirements is a nullity and any attempted publication service based thereon is void and of no force and effect. In this connection it is argued that plaintiff’s affidavit to obtain service by publication clearly does not comply with the provisions of G. S. 1961 Supp. 60-2526, which read:
“Before service as provided in section 60-2525 of the General Statutes Supplement of 1955, as amended, can be made, one of the parties or his attorney shall make and file an affidavit stating, in substance:
“1. The residences of all named defendants sought to be served, if known, and the names of all such whose residences are unknown.
“2. That the affiant does not know and with reasonable diligence is unable to ascertain the names or residences of any of those classes of unknown persons mentioned in subdivision 6 of section 60-2525 of the General Statutes Supplement of 1955, as amended.
“3. That the party seeking it is unable to procure personal service of summons on such defendants in this state.
“4. That the case is one of those mentioned in subdivisions 1 to 5, inclusive, of section 60-2525 of the General Statutes Supplement of 1955, as amended.
“Such affidavit shall be in substantially the following form:
“ ‘6. That this action is one of those mentioned in section 60-2525 of the General Statutes Supplement of 1955, as amended.’
“When such affidavit is filed the party may proceed to make service by publication.” (Emphasis supplied.)
G. S. 1961 Supp. 60-2525, so far as here pertinent, reads:
“Service may be made by publication in any of the following cases:
“(3) In actions brought against a nonresident of the state or a foreign corporation having in this state property or debts owing to him sought to be taken by any of the provisional remedies or to be appropriated in any way.”
In his brief defendant states:
“Whether it is sufficient to include in the publication affidavit the exact language of If 4 of G. S., 1961 Supp., 60-2526, or to include the facts showing that the case is one of those coming within the description of the statutory language, is immaterial in the present case. The appellant did neither.”
and reliance is had on two early cases dealing with the question.
In Harris v. Claflin, 36 Kan. 543, 13 Pac. 830, (1887) an affidavit to obtain service by publication (set out on page 544 of the opinion and incorporated herein by reference) was held to be fatally defective and therefore a nullity. Paragraph 2 of the syllabus reads:
“Where the affidavit for publication does not state directly, inferentially, or in any other way, that the action brought is one of those mentioned in § 72 of the civil code, the affidavit is fatally defective, and service by publication cannot be obtained thereon.” (Emphasis supplied.)
In Lieberman v. Douglass, 62 Kan. 784, 64 Pac. 590, (1901) the affidavit to obtain service by publication read:
“N. H. Wood, being duly sworn, says that service of summons cannot be made within the state of Kansas on the said defendant Isaac Anderson, and that this case is one of those mentioned in section 72 of the code of civil procedure in the laws of the state of Kansas.
N. H. Wood.”
In holding it to be legally insufficient, it was said:
“The allegation in the affidavit ‘that this is one of the cases mentioned in section 72 of the code of civil procedure in the laws of the state of Kansas’ is not such a statement of a fact as is required in the affidavit, but a mere conclusion of law, and renders the affidavit wholly insufficient, under the statute, as a basis upon which constructive service can properly be predicated. This defect in the affidavit, we think, is fatal.” (pp. 786, 787.)
Based on their facts — we agree with and adhere to the decisions in those cases — but believe the contents of the affidavit in the present case distinguish it from them.
G. S. 1949, 60-507, in material part provides that an action against a nonresident may be brought in any county in which there may be property of the defendant.
G. S. 1949, 60-901, provides that the plaintiff in a civil action for the recovery of money may at or after the commencement thereof have an attachment against the property of the defendant when the defendant is a nonresident of the state.
It is clear, therefore, that plaintiff had the right to maintain this action against the defendant, a nonresident, and to secure the attachment.
Referring now to the provisions of G. S. 1961 Supp. 60-2526, and the contents of the affidavit in question — both of which are quoted above — it is clear the affidavit complies with subdivisions 1 and 3 of the statute. Subdivision 2 of the statute is inapplicable here. The question, therefore, is whether the affidavit complies with subdivision 4 of the statute — that is, does it state, in substance, that the case is one of those mentioned in subdivisions 1 to 5, inclusive, of G. S. 1961 Supp. 60-2525, above? It is true the exact words are not used, but it does allege that defendant is a nonresident and therefore actual service cannot be made within the state, and alleges the nature of the action and the amount of recovery sought. Defendant having property in this state — plaintiff, under G. S. 1949, 60-507, above, could maintain the action. Although not directly stated — it is inferentially alleged (see syllabus 2 of the Harris case, above quoted) that the action is one of those mentioned in subdivision (3) of G. S. 1961 Supp. 60-2525, and, given the liberal interpretation to which, under G. S. 1949, 60-102, it is entitled, we believe the affidavit in question is a substantial compliance with the requirements of G. S. 1961 Supp. 60-2526.
The order quashing service of summons and dismissing the petition is therefore reversed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action by plaintiff (appellee) Helen Carter against her husband, defendant (appellant) Charles Carter, for a divorce, custody of the minor children and a division of their acquired property.
The trial court entered judgment granting a divorce to the wife on the ground of extreme cruelty on the part of the husband, made provisions for the custody and maintenance of the minor children, and made an equitable division of property.
The husband appeals on the sole ground that the competent evidence of the wife’s corroborative witnesses was insufficient to justify the granting of the divorce and the consequential relief prayed for in her petition.
In his brief and oral argument on appeal defendant admits the judgment of the trial court must be upheld if the wife’s testimony of cruel treatment is in any way corroborated. The record in this case is replete with evidence showing a course of conduct on the part of defendant toward his wife which tended to humiliate and degrade her and which could properly be characterized as extreme cruelty.
The record discloses the parties were married in 1944 and soon thereafter began having trouble. In 1955 they had a disagreement over increasing die family, the husband wanting another child, the wife fearing pregnancy. At the instigation of the husband they consulted a marriage counselor. In 1960 at the instigation of the husband the parties again sought marriage counseling. In July of 1961 the wife called a police officer claiming her husband had struck her. The officer testified he responded to the call and found the wife upset and crying; that in the presence of the husband she told him her husband struck her; that he observed the right side of her face was red; and that he advised both of them, since this was family trouble, to see an attorney.
Mrs. Ross, a baby sitter, testified that on one occasion when she approached the house she heard defendant cursing and calling his wife a liar; that she then left the premises without going into the house.
Mrs. Bryant testified she saw black and blue marks on plaintiff’s arms; that when the Carters visited her home they argued all of the time; that she had heard defendant call the plaintiff dirty names [the specified names need not be printed herein]; that she accompanied both the plaintiff and defendant on a two-week trip from Chanute to Illinois by way of the Ozarks, and that defendant argued with the plaintiff throughout the entire trip.
Ellen Carter, defendant’s mother, testified she knew plaintiff and defendant were having trouble through the years ever since their marriage; that she knew plaintiff and defendant went to a marriage counselor in Topeka, Kansas.
The parties’ son testified that his father and mother argued frequently. The daughter testified she wished her father would be kinder to her mother.
No useful purpose would be gained in further narrating the evidence contained in a record consisting of more than 175 pages of testimony of some 30 witnesses.
Extreme cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physical violence, nor need it connote viciousness but only conduct which is unusual, disapproved and not conducive to the normal acts in accepted society. It is now generally held that any unjustifiable and long-practiced course of conduct by one spouse toward the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted or threatened. Under some circumstances it may not be necessary that such conduct should continue over a long period to constitute extreme cruelty. It is not necessary that the corroboration support plaintiff’s allegations throughout the course of mistreatment or as to every detail of plaintiff’s testimony. The principal reason for the requirement of corroboration has been, and is, for the prevention of collusion between the parties to a divorce. It is not essential that it alone sustain the judgment or that it support the plaintiff’s testimony as to all of the allegations. Such a strict requirement might tend to thwart justice owing to the privacy of the relations between the parties. (Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102; Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215.)
In the instant case there was nothing in the record to indicate collusion, and the corroborative evidence fulfilled the requirements of our code (G. S. 1949, 60-1509). Furthermore, there was not only direct and corroborative testimony but also circumstantial evidence which the trial court could and did believe that defendant’s actions deeply wounded plaintiff’s feelings and worried her greatly, and that the legitimate ends and objects of matrimony had been utterly destroyed thereby. Corroborative testimony may be circumstantial as well as direct. A decision based on testimony corroborative in character and convincing to the trier of the facts will not be disturbed on appeal. (Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165; Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95; Hoppe v. Hoppe, supra.)
In view of what has been said we are of the opinion that the record clearly discloses corroborative evidence, both direct and circumstantial, sufficient to fulfill the requirements of our code and to support the judgment rendered by the trial court, and the judgment must be affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order overruling a demurrer to a petition to vacate a judgment allegedly obtained by extrinsic fraud.
The facts, insofar as here pertinent, are not in dispute. Since the statute of limitations is involved dates will be noted. On January 29, 1958, Ray Hodge filed an action for divorce against his wife, Rosella Hodge. On January 9, 1959, Rosella filed a cross-petition for divorce. On January 16, 1959, judgment was entered in the action granting a divorce to Rosella and approving a property settlement.
On May 7, 1959, Rosella filed a petition against Ray seeking a vacation of the judgment entered on January 16, 1959. The petition alleged facts constituting extrinsic fraud on the part of Ray in connection with the property settlement which was made a part of the judgment. Ray demurred to the petition. The demurrer was overruled on June 29, 1959. Ray appealed. In Hodge v. Hodge, 186 Kan. 361, 349 P. 2d 947, this court sustained the judgment of the lower court and in the opinion said:
“We are of the opinion that the facts alleged in the petition were sufficient to show defendant withheld the true extent and value of their property and fraudulently induced plaintiff to enter into and subsequently submit to the trial court for its approval the property settlement agreement, wherein defendant allegedly received substantially all of the property, as a fair and equitable division of the property of the parties, thereby preventing a fair presentation and submission of that issue to the court. Inasmuch as it was the duty of the court, in granting the decree of divorce, to make an equitable division of the property acquired by the parties during their marriage, the alleged action on the part of the defendant constituted extrinsic fraud. We are of the opinion that had the trial court known the true facts regarding the extent and value of the property of the parties as alleged, the judgment would obviously have been different.” (page 364.)
Thereafter, and on July 28, 1961, the case again came on for hearing in the district court and on motion of Rosella’s attorney was dismissed without prejudice. The reason for the dismissal is not here material but interested readers of this opinion will find it in Hodge v. Hodge, 190 Kan. 492, 376 P. 2d 822, another intermediate appeal.
On April 24, 1962, Rosella filed an amended petition in the district court in which she alleged the same facts as were set out in the original petition with the following addition:
“That this action was commenced within due time; that subsequent thereto, and on or about the 28th of July, 1961, this action was dismissed otherwise than upon the merits thereof. And this plaintiff brings this action under and by virtue of the General Statutes of Kansas 1949, Section 60-311, as in such cases made and provided by law.
“This plaintiff further alleges and states that the cause of action herein alleged is identical to the cause of action set forth in the Petition of Rosella Hodge vs. Ray Rodge, Case No. A-77029, which was dismissed as aforesaid without prejudice.”
Ray filed a demurrer to the amended petition, “. . . for the reason that said Amended Petition does not state facts sufficient to constitute a cause of action . . .” The demurrer was overruled. This appeal followed.
The appellant contends that an action to vacate a judgment must be brought within two years and that G. S. 1949, 60-311, has no application to the involved action.
We will first consider the applicable statutes.
G. S. 1949, 60-3007, upon which appellee bases her right to relief provides in part:
“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:
“Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order.”
G. S. 1949, 60-3008, provides:
“Proceedings to vacate or modify a judgment or order for the causes mentioned in subdivisions four, five and seven of the next preceding section must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after removal of such disability. . .
G. S. 1949, 60-3011, provides:
“The proceedings to vacate or modify the judgment or order on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of section 596 [60-3007] shall be by petition verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition a summons shall issue and be served as in the commencement of an action.”
G. S. 1949, 60-311, on which appellee relies to avoid the limitation set out in G. S. 1949, 60-3008, provides:
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
In his brief appellant states his contention in the following manner:
“The legislature granted certain authority to act and at the same time limited the time in which such authority to act might be exercised, under specific circumstances. Once this limit has been exceeded there is no extension available. The provision for extension of time as embodied in General Statutes of Kansas 1949, 60-311, applies only to actions governed by the general statutes of limitation and not proceedings, whose very existence is dependent upon what was established by the legislature, and whose scope is strictly limited by the legislature when the proceeding was created.”
In her brief appellee states:
“It is the contention of this Appellee that she complied with the General Statutes of the State of Kansas, 1949, Section 60-311, . . .”
Appellee makes no argument and cites no case in opposition to appellant’s contention that G. S. 1949, 60-311, is not applicable to the limitation contained in G. S. 1949, 60-3008. It may be added an extended review on our part indicates there is none to be found in our decisions.
Long ago this court held, and has consistently adhered to the rule, that where a special remedy is created by statute and the statute provides its own limitation of time for commencing proceedings to obtain the special relief, tihe general statute of limita tions has no application. Where the right is special and conditional, and the condition is annexed to the statute it forms a part of the right itself. (Hamilton v. H. & St. J. Rid. Co., 39 Kan. 56, 18 Pac. 57.)
The foregoing rule was specifically and thoroughly considered in Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642, where an action for wrongful death was dismissed without prejudice after the two year statute of limitations had expired and another action was attempted to be brought within one year after the dismissal under the provisions of the statute now G. S. 1949, 60-311. In an extensive opinion, citing many authorities, the court stated:
“A review of the authorities bearing on the question controverted compels us to hold that the scope and effect of the act above quoted is not merely to provide a remedy for a cause of action existing independent of the act itself, but to create a cause or right of action where, prior to the passage, or in the absence of the act none existed. As a part of the right of action itself, as a condition imposed upon and in limitation of the exercise of the right granted, it is provided that the action upon which) recovery is had must be commenced within two years from the time the right of action arose. No excuse pleaded for delay in the commencement of the action for more than two years will avail, for the reason that no such excuse can in law be held sufficient. A limitation upon the time in which a preexisting right of action may be exercised is governed by the general statutes of limitation, and, in consequence, falls within the saving provisions of section 23 [now G. S. 1949, 60-311] above quoted. But the limitation in time of the commencement of the action here brought -under this statute is imposed as a condition upon the exercise of the right itself, is special and absolute in its nature, and is unaffected by the general provisions of section 23 [now G. S. 1949, 60-311].
“We are cited by counsel for plaintiff in error to cases in which it is claimed a doctrine contrary to the conclusion here reached is announced. We have examined the cases cited, and find but one in which the precise question here considered was either raised or determined. The exact question was presented and considered in the case of Swift v. Hoblawetz, 10 Kan. App. 48, 61 Pac. 969. No authorities are cited in its support, nor are reasons given for the conclusion reached. Its authority is denied.” (pp. 654 and 655.)
The court in the Rodman case cited numerous foreign authorities in support of its decision. We quote in part:
“The precise question here under consideration arose in Gerren v. Harm, & St. Jo. R. R. Co., 60 Mo. 405. It was there held:
“ ‘Under section 5 of the damage act, the new suit brought against a railroad, after non-suit, must be commenced within one year after the date of the injury. Section 19 of the chapter concerning limitations, authorizing the commencement of a new action within a year from date of non-suit, has no application to causes, the time for bringing which is not “prescribed” by that chapter, but otherwise limited.’
“Also, in L. S. & M. S. Ry. Co. v. Dylinski, 67 Ill., App. 114, it was held:
“ ‘Actions for damages resulting from the death of a person caused by the wrongful act of another may be commenced within two years after such death. The time is not extended by a non-suit in a previous action.’
“Many cases have arisen in which it has been held that minority or other legal disability of the party entitled to bring and maintain the action will not operate to extend the time prescribed in the statute for the bringing of the action, in the absence of a saving clause in the act itself. (Foster v. Railroad Co., 72 Miss. 886, 18 South 380; Murphy v. The Chicago, M. & St. P. Ry. Co., 80 Iowa 26, 45 N. W. 392; Best v. Town of Kinston, supra; O’Keif, Admr., v. Memphis & Charleston R. R. Co., 99 Ala. 524, 12 South, 454; Louisville b Nashville Railroad Company v. Sanders, &c., 86 Ky. 259, 5 S. W. 563.)” (pp. 652 and 653.)
For another decision, adhering to the basic fundamentals of the rule discussed in the Rodman case, see Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620, where it is said:
“. . . In our opinion, section 23 [now G. S. 1949, 60-311] of the civil code has no application to proceedings in revivor, which are summary in their character and may be had before a court or judge at chambers. That section presupposes an existing right of action and places a limitation on the remedy. In the matter of a revivor there is no right to an order, nor is there power within the court or judge to make one, unless it is made within one year after it could have been first made. The limitation in section 23 [now G. S. 1949, 60-311] refers to the commencement of actions, and fixes the time within which a party must judicially assert his claim, while the limitation on revivor relates to the power of the court and fixes a limit for the final determination of the matter and the granting of an order. The first is a limitation on the remedy, while the second operates as a condition on the right itself, and, if a party fails to bring himself within the condition, the right to a revivor does not exist and there is no power in the court to revive the dormant judgment.
“We conclude that the restrictions on revivor are not to be regarded as ordinary statutes of limitation, and that section 23 [now G. S. 1949, 60-311] of the code has no application to revivor proceedings.” (p. 703.)
In Medill v. Snyder, 71 Kan. 590, 81 Pac. 216, this court had under consideration the application of the rule in connection with a suit to contest a will. In that case, in describing the nature of the controversy, we said:
“The plaintiff in error brought a suit in due season to contest a probated will affecting both real and personal property, and then voluntarily dismissed it. After the expiration of two years from the probating of the will, but within one year from the dismissal of the first suit, he commenced another against the same parties and for the same relief as before. A demurrer was sustained to the petition, on the ground that the right of action was barred because of the expiration of the time limited by the statute of wills within which will contests may be initiated. The question for decision is whether the right to maintain the second suit is preserved by section 23 [now G. S. 1949, 60-311] of the general statute of limitations, . . .” (pp. 590 and 591.)
And at page 592 of the opinion stated and held:
“It is a rule of interpretation that general statutes of limitation, embodied in the codes of civil procedure ordinarily relate to the prosecution of actions generally, and the enforcement of the remedies that such codes prescribe and regulate; and that special statutes usually must be literally followed in respect to the time conditions that they impose. (Hill v. Supervisors, 119 N. Y. 344, 23 N. E. 921; Beebe v. Dosier, 36 Kan. 666, 14 Pac. 150; Cartwright v. Korman, 45 id. 515, 26 Pac. 48.)
“If the statute of wills be considered in the light of a statute of limitations this rule applies. It is a special enactment, complete in itself, and apparently designates the only exceptoin intended to be allowed. . . .” (p.592.)
In Blair v. Blair, 96 Kan. 757, 153 Pac. 544, an action was brought to set aside a decree of divorce thirty years after the decree was rendered. The petition alleged fraud in obtaining the decree which was not discovered until shortly before the action was brought. In the opinion we said:
“Regarding the petition in the light of a petition to vacate a judgment for fraud under the provision of the code of civil procedure, the court was without jurisdiction. Section 596 [now G. S. 1949, 60-3007] of the civil code provides that the district court shall have power to vacate its own judgments or orders at or after the term at which they were entered in nine specific instances. The fourth is for fraud practiced by the successful party in obtaining the judgment or order. The method of procedure is in some instances by simple motion and notice. In others, as in the case of fraud, greater formality is required. The applicant is required to file a petition which must conform to certain requirements, and a summons must be issued and served as at the commencement of an action. In some respects the latter proceeding takes the form of a new action and may present equitable aspects. (The State v. Soffietti, 90 Kan. 742, 136 Pac. 260.) The proceeding, however, is not an action but is a special proceeding, according to the definitions of the code (§ § 4, 5), and is in no sense a substitute for an equity suit cognizable under the general equity powers of the court. The petitioner is held to a substantial compliance with all the limitations imposed upon the remedy. (Daniel Hill v. Elias Williams, 6 Kan. 17; Sanford v. Weeks, 50 Kan. 339, 31 Pac. 1088; Publishing House v. Heyl, 61 Kan. 634, 60 Pac. 317.) . . .
“Section 579 [now G. S. 1949, 60-3008] is not a statute of limitation which may be tolled or which does not begin to run until knowledge of fraud. It is a time limitation imposed upon the court’s power to act. The language of section 596 [now G. S. 1949, 60-3007] is, ‘the district court shall have power.’ In order that the court may have the power conferred proceedings ‘must be commenced’ within the designated period. After that, authority to exercise the power granted is at an end. Without the statute power to vacate a judgment merely voidable would end with the expiration of the term at which the judgment was rendered. The statute makes a conditional extension of jurisdiction, the condition being that proceedings to vacate must be commenced within two years. No excuses for not beginning earlier other than those named in the statute can be recognized, and an order to vacate based on proceedings commenced after two years would be coram non judice and might be ignored whenever and wherever encountered. The courts have been quite unanimous in interpreting statutes of this character in this way whenever the precise question has been under decision, (citing cases).” (pp. 764 and 765.)
The Blair case makes it clearly appear that the provisions of the general statute of hmitations do not apply to proceedings to vacate a divorce decree such as we have before us in the present case. A like ruling, under somewhat similar facts, may be found in the more recent case of Elfert v. Elfert, 132 Kan. 218, 222, 223, 294 Pac. 921.
For other cases, holding that the so-called saving statute (G. S. 1949, 60-311) has no application in proceedings having their own statutory procedure, see our recent decisions of Terrell v. Ready Mixed Concrete Co., 174 Kan. 633, 639 to 642, inch, 258 P. 2d 275 (a proceeding under the provisions of the Workmens Compensation Act) and Howard v. State Highway Commission, 181 Kan. 226, 228, 311 P. 2d 313 (an eminent domain proceeding).
In view of the authorities heretofore cited we are constrained to conclude that the statutory remedy for vacating a judgment is complete within itself, and designates the only exceptions to be allowed. The statute (G. S. 1949, 60-3008) designates its own statute of limitations and the general statute of limitations, including G. S. 1949, 60-311, has no application to proceeding to vacate a judgment.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of partition by sale of the working interest in two unitized oil and gas leases.
The order was issued on the pleadings and motions to be presently noted. The disputed issues were reserved for future trial without prejudice to the rights of any of the cotenants because of the partition order.
The general facts as disclosed by the pleadings are stated in the trial court’s order of partition, pertinent portions of which read:
“Plaintiffs, I. W. Murfin, Fred Murfin and W. R. Murfin, a co-partnership doing business under the firm name and style of Murfin Drilling Company, and defendants, Emma Prather Poe, M. R. Waters and Homer Huntzinger, are tenants in common in and to the working interest of the following oil and gas leases dated April 10, 1951:
“West Half of the Southeast Quarter (W/2 SE/4) of Section 20 and the West Half of the Northeast Quarter (W/2 NE/4) of Section 20 and the West Half of the Northeast Quarter (W/2 NE/4) of Section 29, all in Township 22 South, Range 10 East, Greenwood, County, Kansas.
“The plaintiff, I. W. Murfin, is the owner of an undivided 5/32nds of the working interest of said leases; the plaintiff, Fred Murfin, is the owner of an undivided 5/32nds thereof; the plaintiff, W. R. Murfin, is the owner of an undivided 5/32nds thereof; the defendant M. R. Waters, is the owner of an undivided 8/32nds thereof; the defendant Homer Huntzinger, is the owner of an undivided 4/32nds thereof; the defendant, Emma Prather Poe, is the owner of an undivided 5/32nds thereof, and also the owner of contractual obligations set out in Exhibits “A” and “B” to her Answer filed herein; the defendant Bert Young, is the owner of a reversionary interest in an undivided 15/32nds thereof as set out in Exhibit “A” to his Answer filed herein;
“The question as to the manner in which the proceeds of any sale should be divided and the amount of compensation defendant Emma Prather Poe is entitled to receive for her contractual rights as well as the compensation due Bert Young for his reversionary interest is reserved for further hearing;
“The entire 7/8ths working interest and the interests of the above-named plaintiffs and the defendants therein are proportionately subject to the burden of an overriding royalty interest in l/8th of the 7/8ths working interest which overriding royalty is owned by Emma Prather Poe.”
The contractual rights owned by Emma Prather Poe should be specifically mentioned. Originally all the working interest in the leases was owned by Mrs. Poe. All of the interests of the present cotenants stemmed from an instrument executed by Mrs. Poe which reserved to her, in addition to an overriding royalty of l/8th of the 7/8ths working interest which is not effected by the partition, (1) a 5/32nds working interest, free of development expense; (2) an operating expense credit which has now ripened into a lien against the remaining 27/32nds working interest in the amount of $3,975.92; and (3) the right to purchase the leases, or any well, at the salvage value, if the owners of the 27/32nds working interest should decide to abandon.
We will pass for the moment the consideration of certain cross-petitions and rulings made by the court in connection with demurrers to such pleadings.
After issues were joined by the pleadings the plaintiffs (Murfin Drilling company, a partnership composed of I. W. Murfin, Fred Murfin and W. R. Murfin), hereinafter referred to as appellees, filed a motion for a decree of partition with a sale if necessary, “the proceeds of the sale of such interest be held by the clerk of the court pending a determination of the interest of all parties concerned.”
Mrs. Poe, the defendant and only appellant here, filed a “Motion for Sale,” which stated:
“Comes Now Emma Prather Poe and moves the court for an order decreeing appraisement and partition by sale, if necessary, of the property involved in this action prior to trial upon the merits, and if partition in kind cannot be had without manifest injury, then decreeing that any sale of Emma Prather Poe’s 5/32nds working interest be subject to the contracts attached as Exhibit “A” and “B” to her Answer heretofore filed herein and also subject to her l/8th overriding royalty.”
In its order of partition the trial court, after setting out the interests of the cotenants in the working interest, ordered and decreed:
“. . . that the question of the manner in which the proceeds of any sale in partition should be divided and the amount of compensation to defendant Emma Prather Poe for her contractual rights, and the amount due Bert Young for his reversionary interest, be and are hereby reserved for further hearing at the trial upon the merits; that partition be and is hereby decreed notwithstanding that this action has not been tried upon the merits and issues remain to be so tried; that none of the tenants in common be prejudiced in any respect by partition prior to trial.”
Mrs. Poe, hereinafter referred to as appellant, has appealed contending that:
“Not only did the trial court err in ordering partition of Mrs. Poe’s 5/32nd interest in the leases but it also erred in that, if partition is proper, then her contractual 5/32nd interest should have been treated the same as her l/8th overriding royalty.”
The appellant is in no position to object on appeal to an order which she requested in the court below. It will be noted that, as heretofore indicated, she specifically requested an order decreeing partition by sale if necessary, and if necessary, “then decreeing that any sale of Emma Prather Poe’s 5/32 working interest be subject to the contracts attached as Exhibit “A” and “B” to her answer heretofore filed herein and also subject to her 1/8 overriding royalty.”
Appellant did not request that the 27/32nds working interest be sold subject to her contractual rights. She requested that her 5/32nds be sold subject to her contractual rights. When property is sold subject to encumbrances and contractual obligations, such burdens follow and attach to the title of the purchaser. By the same token when property is sold subject to contractual benefits, such benefits follow and attach to the title of the purchaser.
The appellant might have objected to the partition and sale of her 5/32nds interest for the reason that it carried obligations against the remaining working interests which were difficult or impossible to determine. She did not choose to do so and cannot reverse her position on appeal to this court. See Gilliland v. Kansas Soya Products Co., 189 Kan. 446 370 P. 2d 78, where it is said:
“. . . It has long been the rule of this court that where a party induces the trial court to try an action upon his own theory he is not in a position to complain on review that such theory was erroneous. (Galamba v. Steinberger, 153 Kan. 501, 112 P. 2d 78; Herl v. Herl, 154 Kan. 44, 114 P. 2d 817.) Where counsel for one party causes or invites a particular ruling, such party cannot later argue that such ruling was erroneous. (Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 499, 241 P. 2d 1192). It is elementary that a litigant cannot take contrary positions, one in which he has sought and procured an order, ruling or judgment in the trial court and another in the supreme court in which he complains of such order, ruling or judgment; moreover, a litigant will not be heard on an appeal to complain of any order, ruling or judgment of the trial court which he suffered the trial court to make without objection. (Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998.) . . .” (pp. 451,452.)
It does not appear from the record that appellant’s rights have been seriously affected. The purchaser at the partition sale will take the 27/32nds working interest subject to the contractual obligations. He will take the 5/32nds working interest subject to the contractual benefits. One will offset the other. The purchaser will take the entire working interest, and the value of the working interest will be so determined. The appellant’s lien in the amount of $3,975.92 and the value of her contractual benefits will be deducted from the proceeds of the sale which would otherwise go to the 27/32nds working interest. The court appears to have so ordered by including the following language in its order:
“The question as to the manner in which the proceeds of any sale should be divided and the amount of compensation defendant Emma Prather Poe is entitled to receive for her contractual rights as well as the compensation due Bert Young for his reversionary interest is reserved for further hearing.”
The appellant answered the petition for partition and cross-petitioned against the appellees for damages in the amount of $351,-500.00 for improper management of the leases. The trial court sustained appellees’ demurrer to the cross-petition for the reason it constituted a misjoinder of causes of action.
The appellant also filed a cross-petition in which she sought a personal judgment against defendant Bert Young, her original assignee, for the $3,975.92 which had become a lien on the 27/32nds working interest. Young’s demurrer to this cross-petition was also sustained.
The appellant’s claims of error on the rulings on both demurrers are without merit. Her first cross-petition seeks a personal judgment against appellees. Her second cross-petition seeks a personal judgment against defendant Bert Young who holds a reversionary interest in the leases. The controversies do not affect the title, or the interest in, the leases.
The appellant calls our attention to G. S. 1949, 60-2114, which provides:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
Appellant also suggests, this court has held that in administering the provisions of the statute, the trial court has the same powers as were exercised by courts of chancery under equity practice, including full power to settle all questions involved on just and equitable principles. So it has. (Hurley v. Painter, 180 Kan. 552, 306 P. 2d 184; Browne v. Loriaux, 189 Kan. 56, 366 P. 2d 1016.)
However, appellant attempts to stretch the rule too far. The “questions involved” must relate to the title or some interest affect ing the property in question. Where numerous cotenants are involved, one cotenant cannot use an action for partition as a vehicle to settle personal differences with another, which are unrelated to the partition of the property.
Appellant further suggests that the second cross-petition “merely sought to enforce Young’s personal liability for the amount due as ancillary to foreclosure of the lien.” The lien was a matter of record. It necessarily has to be recognized in the partition action. If the interest to which the lien attached was not sold subject to the lien, the lien attached to the proceeds of the sale. The second cross-petition could accomplish nothing more than a personal judgment against Young.
Our careful examination of the record discloses no error which would justify a reversal of the trial court’s action in this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is a child custody matter arising out of a divorce action.
The question concerns the power and authority of the trial court to award custody of the child to the stepmother.
The factual background of the matter is this:
Earl V. Anderson and Dorothy Pearl Anderson were married on June 8, 1958. His eleven-year-old daughter, by a former marriage, Brenda Louise, was taken into their home and lived with them. No children were born of the marriage of Earl and Dorothy. On December 2, 1960, Earl sued Dorothy for a divorce, alleging gross neglect of duty and extreme cruelty. In his petition he alleged that, although his daughter Brenda was staying with Dorothy temporarily, he desired to have her care, custody and control.
On January 5, 1961, Dorothy filed her answer in the form of a general denial. It also included the following:
“That the defendant has under her care and control the minor child of the plaintiff as a result of a former marriage; that said child is happy, contented and well cared for and although she has no legal right to said child, she has been in the past and is now willing to continue the responsibility of caring for said child providing the plaintiff will make proper financial arrangements.”
Apparently no further action in the matter was taken until October 23,1961, when Dorothy filed a cross-petition seeking a divorce from Earl on the grounds of extreme cruelty and gross neglect of duty. The prayer of this cross-petition also sought:
“. . . such other and further relief as she may be entitled to under the facts and circumstances of this case.”
The case was tried on October 24, 1961, and taken under advisement.
On December 28, 1961, and while the case was still under advisement, Dorothy filed the following motion to enlarge the prayer of her cross-petition:
“Comes now the defendant and respectfully shows to the court that she has in her care, custody and control, Brenda Louise Anderson, 12 years of age, said child being the daughter of the plaintiff. That this said child has been in her care, custody and control since the marriage of the parties to this action on June 8, 1958. That during this period of time said defendant and the minor child have developed love and affection for each other. That said child is happy in the home with the defendant, located at 319 South Walnut, Iola, Allen County, Kansas, and has not in the past and does not now desire to five with her father, the plaintiff.
“Wherefore, defendant prays that the prayer of her cross petition be enlarged, requesting that the Court enter such orders as in the opinion of the Court may be in the best interests of the minor child, Brenda Louise Anderson, and that the Court enter its order granting the care, custody and control of the minor child to Dorothy Pearl Anderson, the defendant, and that he enter such other and further orders for the support of said child as may be reasonable and proper under all the circumstances.”
The motion was allowed.
On January 9, 1962, the trial court rendered its decision in which it denied a divorce to Earl and granted a divorce to Dorothy on her cross-petition. The court’s memorandum decision contained the following:
“Brenda Louise, though the child of the husband only, became a part of the family, and is subject to the jurisdiction of this court, under the authority of State v. Taylor, 125 Kan. 594. Mrs. Anderson has had actual custody of the child since the parties separated nearly two years ago, when the plaintiff changed his residence to Miami County, Kansas, leaving his daughter in Iola with the defendant. Mrs. Anderson has throughout the marriage relation stood in loco parentis to her stepdaughter.
“The good character of the defendant was established by several highly creditable witnesses, and those witnesses bore testimony to the high quality of her care and devotion toward the plaintiff’s daughter, Brenda Louise, in her capacity of foster parent. The evidence shows mutual affection between Mrs. Anderson and Brenda Louise. The plaintiff makes no issue as to the fitness of the defendant to continue in loco parentis, and has in fact ratified and endorsed the relationship since his separation from the defendant. Accordingly, feeling certain that it is for the best interests of the child, a finding of unfitness of the plaintiff is hereby made, and the custody of Brenda Louise is awarded to her stepmother, the defendant, Mrs. Anderson.”
Pursuant thereto judgment was entered denying a divorce to Earl, granting a divorce to Dorothy, and granting custody of Brenda to Dorothy. Property rights were adjudicated and Earl was ordered to pay the sum of $75 per month for Brenda’s support.
Earl has appealed, and the only question presented concerns the power and authority of the trial court to award custody of the child to Dorothy — the stepmother.
The pertinent portion of the statute (G. S. 1961 Supp., 60-1510) setting forth the power and authority of the district court to make provision in a divorce action for minor children reads:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, . . .”
It is contended by Earl, the father, that the words “minor children of the marriage” vest the district court with power and authority to make provision only for such children bom as a result of the marriage, and do not include a child of one of the parties by a former marriage. In other words, it is contended that, as between Earl and Dorothy, he has an absolute right to custody, and that the order granting custody to Dorothy, the stepmother — being beyond the power and authority of the court to make — is absolutely void.
As disclosed by the above-quoted portion of its memorandum decision, the trial court relied upon State v. Taylor, 125 Kan. 594, 264 Pac. 1069. With respect to the question presented — the facts of that case and the contentions there made — are identical to those before us, and it was expressly held that under an identical statutory provision the trial court was authorized and empowered to award custody to the stepmother. In the course of the opinion it was said:
“As a result of the marriage, the child had been brought into the home and Edna Taylor, the wife, assumed its care and stood in loco parentis towards it. We think the expression in the statute, minor children of the marriage,’ fairly interpreted included the infant in question, and that the court had the responsibility and duty to make provision for its custody, care and education, when the marriage relation was dissolved.” (p. 596.)
The opinion discusses fully the question presented and reference is made to what was there said and held.
In che case before us the trial court, upon competent and substantial evidence, was warranted in making the specific finding of unfitness on the part of the father to have custody, and in further finding that it would be to the best interests of the child to live with her stepmother.
This case is unlike that of Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658, and the many cases cited in that opinion, in which it was held that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody, is entitled to custody as against grandparents or others who have no permanent or legal right to custody.
We know of no reason for modifying or repudiating what was said and held in the Taylor case, above. Under the facts of the present case the trial court clearly was correct in making the order that it did, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
These are appeals from separate judgments of the district court sustaining orders of the State Corporation Commission granting contract carrier permits for the transportation of cement. The procedural facts which are complicated and not in dispute will be briefly stated.
Five applications were filed with the State Corporation Commission for contract carrier authority by motor vehicle to transport cement from various cement producing points in the State of Kansas to all points and places in Kansas. Transportation privileges were sought by Iola Transport Inc., between Iola, Kansas, and all points and places in Kansas, under contract with Lehigh Portland Cement Company; Ruan of Fredonia, between Fredonia, Kansas, and all points and places in Kansas, under contract with General Portland Cement Co.; Ruan of Kansas, between Independence, Kansas, and all points and places in Kansas, under contract with Universal Atlas Cement, Division of U. S. Steel Corp.; Ruan of Chanute, between Chanute, Kansas, and all points and places in Kansas, under contract with Ash Grove Lime and Portland Cement Company; and Rúan of Des Moines, between Humboldt, Kansas, and all points and places in Kansas, under contract with Monarch Cement Company.
These applications were opposed before the commission by the Class I Rail Carriers of Kansas and by various motor common carriers duly certified to transport cement by motor vehicle as common carriers in Kansas intrastate commerce.
The first four of these applications were heard before the commission on a common record. By orders dated May 25, 1960, the commission denied each of such applications. Applicants then sought and obtained a rehearing before the commission. The fifth application was heard before the commission on December 22, 1960.
On March 23, 1961, the commission served on all parties its orders in all five cases, setting aside the four prior orders of denial, and granting each of these five motor contract carrier permits. Timely applications for rehearing were filed by the Class I Rail Carriers of Kansas; the Kansas Transport Company, Inc.; and Thompson Transport Co., Inc., hereinafter referred to as the appellants, pursuant to G. S. 1949, 66-118b.
The commission took no action on the applications for rehearing within the statutory period, whereupon, under provisions of 66-118b, supra, such applications were properly regarded as denied. Thereupon appellants filed applications for review of each of these five cases in the district court of Shawnee County, as authorized by G. S. 1949, 66-118c. The district court consolidated all five cases for purposes of trial and, after a hearing, issued its orders dated January 9, 1962, sustaining the commission in its grant of the involved contract carrier permits. Following the overruling of motions for new trial, the appellants, common carriers by rail and common carriers by truck, filed five separate appeals. The five applicants appeared as intervenors in the court below and also appear as such here.
The orders issued by the commission granting these five contract carrier applications are identical except for formal parts, and the matters complained of by appellants are common to each case. For that reason the five cases, appealed as above indicated, have been consolidated in this court pursuant to stipulation of the parties that the decision in one case will control the decision in the other cases and that the same decision may be entered in all five cases.
The appellants contend that the statutes of Kansas permit the grant of a contract carrier permit only when there have been specific findings in accordance with prescribed standards that there would be no unfair competition against common carriers or their customers by such a grant, and that the transportation need cannot be met by existing common carriers. They also contend that the specific findings must appear on the face of the commission’s order as an indispensable prerequisite to its validity.
The appellants further contend that the order of the commission does not contain the requisite finding that there does not exist sufficient common carrier service to adequately meet the public needs nor does it contain a specific finding that applicants would not violate the standards established by G. S. 1949, 66-1,112e, forbidding contract carriers to discriminate or engage in unfair competition against common carriers and their patrons. They also suggest that the uncontested evidence does not support the necessary findings.
The statutes will first be reviewed for the purpose of determining what standards are prescribed as prerequisites to the granting of contract motor carrier permits.
G. S. 1949, 66-1,112a, gives authority to the commission to grant contract motor carrier permits; regulate and supervise accounts and operations; prescribe necessary rules and regulations necessary to carry out the provisions of the act; and regulate “all matters affecting the relationship between such motor carriers and the traveling and shipping public and other carriers.”
G. S. 1949, 66-1,112b, requires that notice of a hearing on a contract carrier application be served on “every common carrier that is operating, or has applied for a certificate to operate, in the territory proposed to be served by the applicant,” and declares the same to be “an interested party” with the right to offer testimony in the proceedings. The same section vests the commission with power to grant or refuse the application or to grant it for the partial exercise only of the privilege sought. In addition it authorizes the commission to attach to the exercise of the privilege granted by such permit such terms and conditions as in its judgment will carry out the purposes of the act.
G. S. 1959 Supp., 66-1,112c, now G. S. 1961 Supp., 66-1,112c, provides for the supervision or revocation of a permit in cases of violation of specified rules and regulations.
G. S. 1949, 66-1,112d, is a policy provision anticipating constitutional objections and provides:
“It is hereby declared that the business of contract motor carriers is affected with the public interest, and that the safety and welfare of the public, the preservation and maintenance of the public highways and the integrity of the regulation of common carriers require the regulation of contract motor carriers to the extent herein provided.”
G. S. 1949, 66-1,112e, is a provision against discrimination and unfair competition and provides as follows:
“Every contract motor carrier operating in competition with one or more common carriers is hereby forbidden to give or cause any undue or unreasonable advantage or preference to those whom he serves, as compared with the patrons of any public motor carrier, as that term is used in this act, or the patrons of any other common carrier, or to subject the patrons of any such common carriers to any undue or unreasonable discrimination or disadvantage, or by unfair competition to destroy or impair the service or business of any public motor carrier, as that term is used in this act, or of any other common carrier, or the integrity of the state’s regulation of any such service or business; and to the end that the said commission may enforce these provisions, each such contract motor carrier shall maintain on file with the commission a statement of his charges and of such other matters as the commission may require.”
G. S. 1949, 66-1,112f, covering regulation of rates and charges reads:
“The commission is hereby vested with power and authority and it is hereby made its duty to prescribe rules and regulations covering the operations of contract motor carriers in competition with common carriers of this state, and the commission shall prescribe minimum rates, fares and charges to be collected by such contract motor carriers.”
The appellants, referring to the statutes considered, suggest:
“The foregoing makes it abundantly clear that before a contract carrier permit may be authorized, the Commission must find:
“1. That there does not exist sufficient common carrier service to adequately meet the public needs.
“2. That the contract carrier will not give or cause any undue or unreasonable advantage or preference to those whom he serves, as compared with the patrons of any common carrier.
“3. That the contract carrier will not subject the patrons of any common carrier to any undue or unreasonable discrimination or disadvantage.
“4. That the contract carrier will not by unfair competition destroy or impair the service or business of any common carrier or destroy or impair the integrity of the State’s regulation of the common carriers.”
There may be some merit to appellants’ first suggestion that the commission must find that there does not exist sufficient common carrier service to adequately meet the public needs but we believe that their suggested required findings Nos. 2, 3 and 4 are not contemplated by the statute as findings prerequisite to the granting o£ the permit. These suggested findings were gleaned largely from the provisions of G. S. 1949, 66-1,112e. The provisions of this section against discrimination and unfair competition apply to a contract motor carrier after the permit is granted. It is the duty of the commission to supervise and regulate contract motor carriers. If a contract motor carrier engage in discrimination and unfair competition, the commission should suspend or revoke the permit under the provisions of G. S. 1961 Supp., 66-1,112c.
We are impelled to conclude that G. S. 1949, 66-1,112e, deals with authorized contract motor carriers “operating in competition with one or more common carriers,” that it deals only with what a contract motor carrier does after the permit is granted, and that it is not a statute establishing prerequisites to the granting of a contract motor carrier permit. It would be presumptious to require the commission to make a finding that a contract motor carrier would never violate any of the provisions of the motor carrier act before the commission could grant a permit.
In considering the necessity of a finding by the commission that there does not exist sufficient adequate common carrier service before granting a contract motor carrier permit, the five applicants, intervenors here, contend:
“. . . In granting an application for contract motor carrier rights, no requirement is made that the commission find that the proposed contract service will promote public convenience and necessity, or that the commission shall take into consideration other existing transportation facilities and their adequacy or inadequacy.”
They further state that G. S. 1949, 66-1,112a and 66-1,112b, are the only statutes establishing standards controlling the commission in granting or denying contract motor carrier permits and that they make no reference to the adequacy of existing common carrier service. We do not agree with this contention.
The commission appears to concede that there must be a finding of inadequacy in existing common carrier service. It states in its brief:
“The requirements which are generally made by public service commissions to entitle a contract carrier to a permit are as follows:
“1. That the carrier is ready, able and willing to perform the contract;
“2. That the shipper is desirous of utilizing its services as evidenced by a contract;
“3. That there exists some inadequacy in the existing common carrier service as applied to a particular shipper;
“4. That the award of the contract carrier permit is not contrary to the public interest.”
The commission further notes in reference to its suggested finding No. 3 above:
“This requirement. is not unlike appellants’ contention that one of the main purposes of the motor carrier act is to protect common carriers where there exists sufficient common carrier service to adequately meet the public needs.’ . . . The question at issue, regardless of how stated, is whether the common carriers in this case offer adequate service to the public or whether there exists some inadequacy.” (See appellee’s brief page 24, footnote 6.)
This court is committed to the proposition that one of the main purposes of the contract motor carrier act is to protect common carriers where they furnish adequate service to meet public needs. In Baldwin v. State Corporation Comm., 143 Kan. 580, 56 P. 2d 453, with reference to what is now G. S. 1949, 66-1,112b, it is stated:
“. . . The pertinent portion of that statute provides:
“ 'The commission is hereby vested with power and authority to grant or deny the permit prayed for, or to grant it for the partial exercise only of the privilege sought, and may attach to the exercise of the privilege granted by such permits such terms and conditions as in its judgment will carry out the purposes of this act.’ (Italics inserted.)
“It clearly appears one of die main purposes of the act is to protect common carriers by rail and common carriers by motor vehicle alike in territory where there exists sufficient common carrier service to adequately meet the public needs. . . .” (585.)
The adequacy of existing common carrier service being one of the main standards governing the commission’s determination of the propriety of a contract motor carrier permit, a finding in connection therewith is a prerequisite to a valid order granting such permit.
There must be findings by the commission on all applicable standards which govern its determination. (Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 316 P. 2d 277.)
The courts dignify the commission’s findings with a presumption of validity in reviewing the property of its orders. No presumption of validity can attach to its orders in the absence of findings on standards which govern the commission’s authority.
The courts review the commisison’s findings for the purpose of determining the validity of its orders. They may disagree with its findings, but they cannot initiate them regardless of the preponderance of the evidence.
In Atchison Ry. v. United States, 295 U. S. 193; 79 L. Ed. 1382, 55 S. Ct. 748, the court dealt with an order of the Interstate Commerce Commission, and stated:
. . Its report does not disclose the basic facts on which it made the challenged order. This court will not search the record to ascertain whether, by use of what there may be found, general and ambiguous statements in the report intended to serve as findings may by construction be given a meaning sufficiently definite and certain to constitute a valid basis for the order. In the absence of a finding of essential basic facts, the order cannot be sustained. Florida v. United States, 282 U. S. 194, 215. Recently this court has repelled the suggestion that lack of express finding by an administrative agency may be supplied by implication. Panama Refining Co. v. Ryan, 293 U. S. 388, 433. See Beaumont, S. L. & W. Ry. v. United States, 282 U. S. 74, 86. Interstate Commerce Comm’n v. Chicago B. & Q. R. Co., 186 U. S. 320, 341.” (pp. 201, 202.)
In the recent decision of Burlington Truck Lines v. United States (Dec. 3, 1962), 371 U. S. 156, 9 L. Ed. 2d 207, 83 S. Ct. 239, the supreme court dealt with the necessity for express findings by an administrative agency. In striking down an order of the I. C. C., granting a certificate, the court held:
“. . . Expert discretion is the life blood of the administrative process, but ‘unless we make the requirements for administrative action strict and demanding, expertise, the strength of modem government, can become a monster which mies with no practical limits on its discretion.’ New York v. United States, 342 US 882, 884, 96 L ed 662, 663, 72 S. Ct. 152 .. . The Commission must exercise its discretion under §207 (a) within the bounds expressed by the standard of ‘public convenience and necessity.’ Compare id 346 US at 91. And for the courts to determine whether the agency has done so, it must ‘disclose the basis of its order and ‘give clear indication that it has exercised the discretion with which Congress has empowered it.’ Phelps Dodge Corp v. NLRB, 313 US 177, 197, 85 L ed 1271, 1284, 61 S Ct 845, 133 ALR 1317. The agency must make findings that support its decision, and those findings must be supported by substantial evidence. . . . (pp. 215 and 216, 9 L. Ed. 2d.)
The commission appears to recognize the necessity of appropriate findings. In its brief it states:
“Upon judicial review of orders of the Commission, the principal function of the reviewing court is two-fold: (1) to determine whether the Commission’s orders are lawful and (2) to determine whether the orders are reasonable and contain adequate findings supported by substantial and competent evidence.” (Emphasis supplied.)
Keeping in mind that under the stipulation of the parties we are concerned on appellate review with' only one of the five appeals, the order of the commission in one of the cases should next be considered for the purpose of determining whether there is implicit therein a finding of inadequate common carrier service. So far as here material it reads:
“A reconsideration of the original record of the case indicates that the granting of this application for contract authority is in the public interest and that there is a need by shippers for this specialized type of transportation of cement by motor carriers.
“The Commission further finds that the contract earner type of service affords some specialized service that is somewhat better suited to the needs of cement plant shippers than in common carrier type of service, generally speaking.
“But we also find that all cement plants in the State of Kansas have adamantly refused to use or even try the common carrier type of motor carrier service that has been available for some months, and for that reason, the adequacy or inadequacy thereof has not been demonstrated by practice and experience.
“G. S. of Kansas, 66-112b (sic) 66-1,112b, gives the Commission authority to grant or deny applications for contract carrier authority (permit) or to grant on such terms and conditions as, in its judgment, will carry out the purposes of the act.”
After making the above findings the commission proceeded to express concern about price fixing in the industry, and whether the granting of a contract carrier permit would foster not only the control of the price of cement but also its transportation and destination. In this connection the order states:
“We have some concern about whether the granting of contract carrier authority will make possible and foster the kind of discrimination and unfair competition prohibited by our Kansas Statutes, particularly G. S. 66-1,112. But on the basis of evidence at hand, we cannot at the present time say that there is or will be such discrimination and unfair competition.”
The commission reviewed its authority to supervise and regulate contract motor carriers and the prohibitions against unreasonable preferences or unfair competition and, in view thereof, directed that the order denying the application be set aside and that a contract carrier permit to transport property, cement in bulk and in bags, be granted.
The commission conditioned its order on the contract for transportation not being “contary to public policy nor prejudicial to or discriminatory against the public or other users and further, subject to the rights of the commission which is hereby expressly reserved to impose such terms, conditions or limitations in the future as it may find necessary in order to insure applicant’s operations conform to the provisions of section 66-1,112e, General Statutes of Kansas.”
There can be no question but what the commission’s findings lack much to be desired both as to adequacy and definiteness. This is well demonstrated by the additional facts suggested in the commission’s brief as supporting the reasonableness of its order and established by the evidence.
However, we are constrained to hold that the first two paragraphs of the commission’s heretofore quoted findings are the equivalent of a finding that the common carrier service does not adequately meet the public needs. The public, insofar as this controversy is concerned, is the cement industry, consisting of the producer, seller, purchaser and user of cement. It is evident that the specialized type of service referred to in such findings cannot be furnished by common carriers.
See Ruettger et al., Aplnts., v. Pa. P. U. C., 164 Pa. Superior Ct., 388, 64 A. 2d 675, where it is said:
“. . . Where the evidence presents a definite conflict as to a public need for an applicant’s service in an area, it is for the Commission to determine whether the available equipment and facilities are sufficient and adequate to meet the public demands, and the extent of competition to be allowed is largely an administrative question within the sound discretion of the Commission. Ferrari v. Pennsylvania Public Utility Commission, 163 Pa. Superior Ct. 24, 29, 60 A. 2d 602; Kulp v. Pennsylvania Public Utility Commission, 153 Pa. Superior Ct. 379, 381, 33 A. 2d 724. Absolute necessity for the additional service is not the test, although ‘accommodation’ or ‘convenience’ of the public are factors to be considered. ‘It is sufficient “to show that the existing service is not of a type or character which satisfies the public need and convenience and that the proposed service would tend to correct or substantially improve that condition”’: Kulp v. Pennsylvania Public Utility Commission, supra, 153 Pa. Superior Ct. 379, 382, 33 A. 2d 724, 725. . . .” (Emphasis supplied.) (p. 392.)
The difference in the kinds of service which legally may be offered by common carriers versus contract carriers was recognized in Egner & Son v. P. U. C., 153 Ohio St. 215, 91 N. E. 2d 1, where the Supreme Court of Ohio stated:
“In the instant case, the evidence as a whole discloses that the shipper had a transportation problem in the delivery of its products, which required a constant and flexible service which a common carrier, obliged to serve ‘in turn’ everybody calling for its service, is unable to give. In other words, the deliveries to be made by the shipper in the instant case were of such character as to require either its own supervised delivery service as was made by it through ‘leased’ equipment, or that [of] a carrier which could devote its equipment almost exclusively and constantly to shipper’s delivery service.” (p.221.)
It may be conceded the unusual expressions of concern contained in the commission’s order, certainly do not strengthen its position. However, the fact that the commission recognized possible evils that may grow out of the granting of a permit and its power to control them, should not be used as a basis for striking down an otherwise valid order.
It appears that the granting of the contract motor carrier permit will not tend to divert any business from existing common carriers by motor. (See the third paragraph of the four heretofore quoted paragraphs of the commission’s order.)
When a shipper intends to utilize private carriage if the contract carrier permit is denied, then the grant or denial of the contract carrier permit has no practical nor legal effect upon the common carrier. Compare Salt Lake-Kanab Freight Lines v. Robinson, 9 Utah 2d 99, 339 P. 2d 99, where it is said:
“. . . Here the evidence indicates that the granting of this contract carrier authority will not deprive the common carrier of any business, but the contract carrier will only haul freight which the contractees have in the past hauled in their own trucks and which they claim they will haul in the future if the contract carrier authority is not granted because they claim they can haul this freight in their own trucks for less than the plaintiff common carrier rates. . . .” (p. 102.)
We have no difficulty in determining that the record discloses an abundance of substantial competent evidence to support the commission’s finding that shippers of cement need a specialized service which is better suited to contract carrier than common carrier type of service.
The evidence may be briefly summarized as follows:
The cement industry is highly competitive. Since cement is a standard product, an engineer or contractor seeking to purchase cement will not pay one-half cent more for one brand in preference to another. Sales are based strictly on price and efficient timely service. The cement plants in Kansas are in direct competition with cement plants in the neighboring states of Missouri, Oklahoma, Nebraska, Colorado, Texas and Arkansas. In the states where the cement plants use truck service, the ability to provide similar truck service is essential to the survival of the Kansas cement maun facturer. If the Kansas cement industry is deprived of adequate truck service, it will be incapable of competing with their out of state competitors.
The Kansas cement industry has received many requests for truck deliveries and users of cement have expressly told the Kansas cement manufacturers to provide truck delivery service or be prepared to forego their business. The inability of the Kansas plants to provide truck delivery service has resulted in the loss of hundreds of thousands of dollars of business. The reason the public demands such service is that it provides for their needs more adequately. Delivery by truck is faster for short hauls and permits less than car load deliveries. The greatest advantage of truck delivery service lies in the efficiency and economy of direct delivery to off-rail sites. If the commission does not grant applications for contract carriers, the industry will inaugurate private carrier service of its own. The cement industry has certain shipping problems which require specialized transportation. Contract carriers can, and the contracts presented, provide that the trucking facilities and the maintenance department be domiciled on or adjacent to the premises of the cement manufacturers. The manufacturers produce from five to six different kinds of cement. If a motor carrier appears on the cement manufacturer’s premises with equipment which has in the past been carrying one type of cement and a manufacturer happens to be loading another type of cement, either the truck has to wait or the manufacturer has to clean his conveyor system in order to load the truck.
One of the great advantages that contract carriers have over common carriers is that they are not tied to a direct route. The cement can be loaded at the plant and be delivered directly to job site. Where common carrier service is used, particularly by rail, the cement is loaded at the plant, transported to some destination along the line, and then loaded into a truck for transportation to the job site.
There is ample evidence to support the findings of the commission, the findings are sufficient to justify the order, the order is neither unlawful nor unreasonable and should not be disturbed by a reviewing court.
It follows the judgment of the district court sustaining the respective orders of the commission must be upheld. Therefore, based on the stipulation of the parties, the judgment in each case, i. e., Nos. 43,088, 43,089, 43,090, 43,091 and 43,092, here involved, is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmen's compensation case wherein the claimant seeks to reverse a judgment of the district court denying compensation.
The question is whether the claimant, who sustained accidental injuries in the course of his employment, was a statutory employee of the respondent as contemplated by the provisions of G. S. 1949, 44-503 (a).
The facts material to the issue in this case are not in dispute. In 1949 George Irving entered into an oral agreement with E. A. Sutton for the removal of trash and rubbish at his grocery store in North Topeka, Kansas. Under the agreement Irving was to pick up the trash and rubbish for a fixed sum of money per month, and Sutton had the right to terminate the arrangement at any time without advanced notice. At no time did Sutton exercise direction, supervision or control over the operation of Irving’s business. Irving did not have a set time to pick up the trash and rubbish, but was required to pick it up as frequently as necessary. Normally this required that it be picked up every day.
Irving was an independent businessman who engaged in the business of picking up trash from numerous business establishment in Topeka, Kansas.
Sometime after the original agreement Sutton’s Food City, Inc. (appellee-respondent — hereafter referred to as Sutton), was organized and suceeded to the operation of the grocery store in question.
In 1959 Irving sold his trash route to William Miller who continued to operate it just as Irving had done. Miller was at no time subject to any direction, supervision or control by Sutton. In fact, at no time prior to July or August, 1961, did Sutton know that Irving had sold the business. (This was sometime after the accident here in question.)
On the 27th day of May, 1961, Rucell Henderson (claimant-appellant) was engaged by Miller to remove the trash from Sutton’s place of business. According to the claimant’s testimony he had been helping Miller out “quite a bit;” that he was to drive and pick up the trash on Sunday morning, May 28; that his destination was Sutton in North Topeka; and that Sutton was the only place he had to pick up the trash on that particular morning.
While enroute to Sutton’s place of business claimant had an accident. It was a single vehicle accident in which the claimant blacked out and was thrown from the truck he was driving, sustaining injury as the truck went over his body.
The use of Miller’s truck by the claimant was not limited, and he was free to do as he desired with it. Claimant had no set time to go to Sutton and could, in fact, have gone anywhere prior to making the trash haul. The claimant’s instructions were to pick up the trash sometime on Sunday.
The claimant (appellant) seeks to bring himself under the provisions of G. S. 1949, 44-503 (a). This section provides in substance that where any person contracts with any other person to do work, which is part of the principal’s trade or business, he shall be liable to pay compensation to any injured workman employed in pursuance of the contract to the same extent as though such workman had been immediately employed by the principal.
The appellant’s position is best summed up by a statement taken from his brief. He contends:
Since there is no question but that a subcontract exists, the only issue to be determined is whether the subcontract was for performance of a part of the respondent’s trade or business, and by all applicable tests the contract between respondent and claimant’s immediate employer would appear to meet this requirement. . . .”
The section of the statute here under consideration (44-503 [a], supra) is often referred to as creating “statutory employees.” This section was considered and reviewed in Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872, to which reference is made. Further discussion herein will proceed on the assumption the reader has familiarized himself with the discussion in Durnil at pages 333 to 335, inclusive.
Under the foregoing section of the statute it was said in Coble v. Williams, 177 Kan. 743, 282 P. 2d 425:
“In determining whether the principal-contractor relationship existed between Williams and the Lead Company, and to whom claimant should look for compensation, the first test to be applied is, ‘Whose work was being performed?’ out of which the injury arose, and if such work was an integral part or a reasonable incident of the trade or business of one person who undertook to have the work performed for him by another, then the relationship of principal-contractor exists. . . .” (p. 747.) (Emphasis added.)
The appellant seeks to bring himself within the italicized portion of the above quotation.
The above test has repeatedly been applied under varying facts and circumstances, including cases in which the work was only an incident to the trade or business involved. (Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186; Johnson v. Voss, 152 Kan. 586, 106 P. 2d 648; and Baynes v. Riss & Co., 152 Kan. 383, 103 P. 2d 818.) A study of the foregoing cases, relied upon by the appellant, will disclose the respondent had the right to control the manner in which the work was being carried on by the claimant workman.
The appellant cites us to cases from foreign jurisdictions. In Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 Atl. 778, the principal employer was held liable to the workman of a contractor who was injured while cleaning the windows of a factory building. The section of the Connecticut act, corresponding to the Kansas provisions of 44-503 (a), supra, differed in that it required the work to be in, on or about premises controlled by the principal employer. The court there held the washing of the windows of the respondent’s factory was “a part or process in the trade or business of the principal employer’ ” (p. 192) under the act.
In Hoard v. Sears Roebuck & Co., Inc., 122 Conn. 185, 188 Ad. 269, a workman was regularly employed by one who had a contract with Sears Roebuck to dispose of rubbish which accumulated at Sears Roebuck’s store by reason o£ unpacking merchandise which came to it in the conduct of its business. The yard was cleaned once a week by such workman. The workman, while standing in the yard for this purpose and talking with another employee, was struck and injured by a glass globe which had been swept out of the third floor of Sears Roebuck’s building. The action was brought for negligence and willful and wanton misconduct of Sears Roebuck’s servant. The Connecticut court held Sears Roebuck, as principal employer, was liable to pay workmen’s compensation and was not liable in an action at common law. The court said “the work was being done, ‘about’ premises under defendant’s control within the meaning of the statute.” (p. 189.)
In Fitzen v. Cream Top Dairy, 73 Idaho 210, 249 P. 2d 806, the Idaho Supreme Court held that a workman employed by a dairy company to dig a cesspool, as a necessary part of the sanitary sewage disposal system of the dairy, was an employee under their workmen’s compensation act, rather than an independent contractor. There the dairy company had the right to control and direct the details of work to be performed and to say whether work should stop or continue. This was held to be the test for making the determination.
We do not view workmen’s compensation cases from foreign jurisdictions as too persuasive because they are dependent entirely upon their respective statutes, which differ in some respects from the Kansas workmen’s compensation act, both in wording and interpretation.
In Durnil v. Grant, supra, it was said:
“The applicability of the statutory employee section, 44-503 (a), supra, in this jurisdiction, has been determined in many decisions by inquiring whether the work involved would ordinarily have been done through employees of the principal. Thus, in Larson on Workmen’s Compensation, Vol. 1, §49.12, it is stated;
“ . . But, with a surprising degree of harmony, the cases . . . agree upon the general rule-of-thumb that the statute covers all situations in which work is accomplished which this employer, or employers in a similar business, would ordinarily do through employees.’ (p. 725.)” (p. 334.)
Insofar as the record discloses hauling trash is not work which the manager of a grocery super market would ordinarily have done through employees of the business.
Here Sutton exercised no direction, supervision or control over the claimant or his employer, or over the manner in which Miller carried on his trash hauling business. The claimant was not on the premises of Sutton when the accident occurred or even near the premises. He was many blocks away and had not been on the premises the day of the accident.
We think it immaterial to a decision herein that on the day of the accident here in question claimant’s only trash haul was to be from the Sutton store. The business of Miller was that of hauling trash. There were approximately twenty or more business establishments under trash hauling contracts with Miller, who was claimant’s employer. Had claimant’s accident occurred on a week day, could claimant look to any one of the twenty or more businesses on the route for workmen’s compensation? We think not. The fact that claimant may have been destined to a particular establishment where the trash was to be picked up is immaterial.
Claimant was not actually performing the work of Sutton, but was performing the work of Miller, an independent businessman with twenty or more different trash hauling stops. This was an independent business operation. This point is clarified by the testimony of Mr. Irving when he said that he sold the route. Nothing was said concerning the assignment of a contract with Sutton, and neither Irving nor Miller considered it necessary to notify Sutton of the sale.
What is the classification of a trash hauler? There is little case law, but two cases in point as to the facts here presented say this is a separate and independent busines operation. (Hanisko v. Fitzpatrick Brothers, 232 Mich. 593, 206 N. W. 322; and Halletz v. Wiseman, 183 N. Y. S. 112.)
Upon application of the foregoing tests to the facts and circumstances presented by the record herein, we hold the claimant’s immediate employer (Miller) was an independent contractor (See, Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P. 2d 474), and the claimant was not a statutory employee of Sutton under 44-503 (a), supra.
The evidence presented by the record supports the decision of the trial court, and all findings necessary to support the decision are presumed to have been made by the trial court.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal by the state in a criminal action. The state appeals from certain questions reserved. See State v. Simpson, 169 Kan. 527, 220 P. 2d 175, Syllabus f 1, and G. S. 1949, 62-1703.
In the case below, the defendant was found not guilty by a jury and was freed from all liability for crime. Whatever we do here, the defendant is entirely free and cannot be retried.
Defendant Inzerillo has moved to dismiss this appeal claiming only moot questions are presented and that there is no reason why the court should hear the case. However, the court feels that it cannot shirk the questions posed in the case.
The questions arise out of a purported tenancy in an apartment house in Wichita. Mrs. Olive Tyson was the rental agent in charge of leasing apartments for a large housing project. She testified as follows: A call came in from a man who gave the name “Clay Larkin” requesting an apartment at 1542 S. Bleckley. She reserved an apartment for him and a month’s rent had been deposited. She explained to Mr. Larkin that he would have to sign a lease at which time the keys woud be turned over to him.
On the 13th of April, 1961, when she and her husband went by the apartment at about 11:30 in the evening, she noticed the lights were on although no keys had been turned over and she had assumed the apartment was locked. They did not stop at that time but she came back the next day and knocked at the door. There was no answer. She had no keys with her but she tried the door and was surprised to find it open. She went into the apartment and found a man there who said his name was Clay Larkin. She told him he would have to come over to her address, sign a lease and get his keys and do other matters to get his tenancy in full force. This he agreed to do. As she turned to leave, she noticed a large amount of money piled under a small coffee table. She was asked if Larkin was in the courtroom that day and she pointed out Vincent Inzerillo as the man who had rented the apartment under the name of “Clay Larkin.”
On April 14, 1961, two masked men held up Mr. D’s IGA Supermarket in Wichita and took $18,770 at gunpoint, effecting their escape in a car driven by a third man.
On Saturday, April 15, 1961, Mrs. Tyson returned to the apartment to see about getting a lease signed and after knocking on the door for some time she tried the back door and found it open. She went in and found a note on the living room table addressed to her. It said that Larkin would be away for a short time but would return. Everything in the way of personal belongings had been removed from the apartment although some food had been left in the refrigerator. Mrs. Tyson reported these matters to the building manager who called the police.
The Wichita Police found many fingerprints of the three defendants. They did not obtain a search warrant to check the apartment, and the trial court held that under Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, the evidence found in the search should be excluded from the jury.
The state argues that the apartment had been given up; that Mrs. Tyson was completely sure of that being the true state of affairs and that she had the right to call the police to examine the apartment. Another item that could be stressed was that no lease had been signed. As Mrs. Tyson said, Builders Inc., who own the building, refuse to consider an individual a tenant until he has signed a lease. The police were asked to keep the apartment under surveillance for approximately a week. The apartment was rented again by the first of May.
The case of Abel v. United States, 362 U. S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683 is a case concerning abandonment of property where the police searched premises without a search warrant but with the consent of the hotel management. The seizure of articles abandoned by petitioner was held lawful and the findings were properly admitted in evidence.
In the case at bar, no lease had been signed for the apartment. Mrs. Tyson would have ousted the defendant if she had found him. We believe the trial court erred in holding as it did and that the report of the fingerprints of the defendant found in the apartment should have been admitted into evidence.
Another attempt to obtain additional testimony concerning Inzerillo came up when the State asked to have the names of two new witnesses placed on the list. Testimony of Gwenn Hoogerwerf and Mary Myers, employees of the Town House Motel in Wichita, would have shown that on two occasions Inzerillo had registered at the Town House Motel, signing the registration cards with the name “Tom Martin.” The court refused to allow this to be shown, and we believe the court erred again here.
Attention is directed to the syllabus of State v. Stewart, 65 Kan. 371, 69 Pac. 335. See also the cases of State v. Hays, 113 Kan. 588, 215 Pac. 1109; and State v. Grady, 147 Kan. 268, 76 P. 2d 799, in which the element of flight was involved and an instruction was approved in which the jury was told that flight might be considered as showing guilt. The state asked for a particular instruction which was refused. The instruction read as follows:
“The facts of flight, concealment, disguise, denial of identity, change of name and like acts done by one accused of crime after the commission of the ofíense may be received in evidence with all the other facts and circumstances in the case as bearing on the question of the guilt of the defendant.”
We believe that the instruction above might well have been given in view of the defendant Inzerillo’s use of other names.
Since no actual reversing of the record can be done because the defendant Inzerillo has been acquitted by a jury, we can say only that the appeal in this case is sustained.
Price, J., concurs in the result. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a prosecution in which the defendants (appellants), Mildred E. and Ray F. Lowry, were charged with die violation of the truancy statutes (G. S. 1949, 72-4801, 4802 and 4803). Separate informations were filed against each defendant; however, by consent of die defendants the cases were consolidated, a jury was waived, and the cases as consolidated were tried to the court.
The defendants contended they were operating a private school and, therefore, were not subject to the penalty provisions of the truancy act (72-4802). The trial resulted in a conviction of each of the defendants and fines were imposed as provided by law.
From an order overruling defendants’ motion for a new trial, they appeal.
The determinative issue in this case is whether or not the defendants were conducting a private school as contemplated by the provisions of the statutes relating to compulsory school attendance. The case was tried on an agreed statement of facts and submitted to the trial court. The pertinent facts are as follows:
Both defendants reside in El Dorado. They are the parents of the children here concerned. Dr. Lowry is a practicing physician in El Dorado. Mrs. Lowry is the holder of a Kansas teacher’s life certificate and had previously taught in the public schools of this state. In April 1962 the defendants became dissatisfied with the quality of instruction in the public schools in El Dorado. They commenced correspondence with various local and state officials to ascertain what arrangements could be made that would allow Mrs. Lowry to personally conduct the education of their four youngest children. In September the defendents failed to enroll their four children for classes in any regularly established public, private, denominational or parochial school.
On September 14 the superintendent of the El Dorado schools informed defendants they were violating the truancy act. The defendants responded they were operating a private school in which their children were enrolled, and were, therefore, complying with the compulsory attendance laws. This prosecution was then instituted.
The parties agreed the children were being instructed in a room converted to use as a schoolroom in the home of the defendants; that Mrs. Lowry instructed the children, following a “schedule” that was submitted to the court as an exhibit; that the classes offered were in grades 3, 4, 6 and 7; that the only children attending the school were the Lowry children, one child being in each of the grades offered, and that the converted schoolroom was about 150 square feet and was furnished with schoolroom equipment. The defendants’ “schedule” of classes and courses of study submitted to the trial court shows that Mrs. Lowry taught Spanish, reading, music, arithmetic, spelling and language arts to the different grades at different times of the day. The pupils also engaged in formal exercise,, flag salute and group activities.
After hearing the evidence and considering the exhibits submitted in the case, the trial court concluded defendants were not conducting a private school but were conducting a scheduled form of home training for their own children. The court also found the “schedule” of instruction was insufficient to meet the requirements of the Kansas statute.
The question raised in this case is very important to the welfare of the people of Kansas and the school systems, private, parochial and public. There has been very little legislation in this area that has become topically important in today’s society.
The defendants in this case were prosecuted under the truancy act (G. S. 1949, 72-4801) which provides in pertinent part:
“That every parent . . . having control over or charge of any child who has reached the age of seven years and is under the age of sixteen years, shall require such child to attend continuously a public school or a private, denominational or parochial school taught by a competent instructor, in which all instruction shall be given in the English language only, each school year, for such period as the public school of the district in which the child resides is in session: . .
Section 72-4802 provides in part that any parent of a child delinquent in school attendance upon conviction of violation of any of the provisions of the act shall be deemed guilty of a misdemeanor.
The parties agreed that Mrs. Lowry meets the qualified teacher requirement of 72-4801, and no question is raised as to the English language requirement. The only question here is whether or not the Lowry children attended a private school so as to exempt the parents from the truancy act.
The legislature has neither provided a statutory definition for private, denominational or parochial schools nor prescribed a procedure for establishing such a school; however, the legislature has prescribed certain minimum curriculum requirements for all schools, public, private or parochial. G. S. 1949, 72-1103, provides in pertinent part:
“All schools, public, private or parochial, shall provide and give a complete course of instruction to all pupils, in civil government, and United States history, and in patriotism and the duties of a citizen, suitable to the elementary grades; . . .”
When the minimum course of study requirements of 72-1103 are compared with the “schedule” of instruction followed by Mrs. Lowry, it is quite apparent that Mrs. Lowry’s “schedule” does not meet the statutory requirements.
To determine whether or not the defendants were operating a private school, this court will look to the purpose, intent and character of the endeavor. (47 Am. Jur., Schools, § 157, p. 414.) The defendants’ school was located in their home. The only pupils were their children. The only grades offered or taught were the ones in which their children were enrolled, and, of course, the instruction did not meet the statutory requirements of 72-1103. When all the facts and circumstances are considered together, the only conclusion that can be reached is that this was not a private school conceived or promoted for the purpose of educating anyone desiring to attend, but is really only scheduled home instruction.
Home instruction was entirely proper at one time in the history of our state (Gen. Stat. 1901, § 6420) but a later act of the legislature deleted the home instruction proviso as a reason for not attending school (Laws 1903, ch. 423, Gen. Stat. 1909, § 7736, et seq). The present truancy act (G. S. 1949, 72-4801) still omits the home instruction proviso.
In 1916 this court, in State v. Will, 99 Kan. 167, 160 Pac. 1025, affirmed'the trial court’s action in quashing an information charging a violation of the truancy law. The court commented that at that time the legislature had not provided for a course of study in the private, denominational or parochial schools, and concluded at page 171, “Since the legislature has refrained from exercising control over the courses of study in these private, denominational or parochial schools further than to require them to be taught by competent instructors, it is too much to ask the state’s prosecuting officers or its courts to meddle with them.” Following this decision, the legislature, in its 1919 session, corrected the aforementioned deficiency by exercising some control over the courses of instruction and provided for the minimum course requirements of study to be taught in all schools. (Laws 1919, ch. 257, § 2). The pertinent part of the 1919 act has been carried down to the present time and is now G. S. 1949, 72-1103, supra.
Under the statutes applicable to the instant case, we are of the opinion that any school in order to be classed as a private school must at least meet the course of instruction requirements of 72-1103, and the children must be taught by a competent instructor in the English language for the prescribed time as required by 72-4801. It is our further opinion that any parent who' sends a child to a school that does not meet these sketchy requirements is subject to the penalty provisions of the truancy act. In the instant case the defendants’ attempt to operate a private school resulted in mere scheduled home instruction, which is no longer an excuse for nonattendance in the schools of the types prescribed in the act.
The judgment of the trial court is affirmed.
Robb, Fatzer and Schroeder, JJ., dissent. | [
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The opinion of the court was delivered by
Brewer, J.:
A single question is presented by the record and that is, in what county should certain property belonging to plaintiffs be listed for taxation. The facts are these: Plaintiffs all reside in Douglas county. They had a stock of goods in Burlington, Coffey county. The goods were in charge of Jacob A. Mareell, a clerk of theirs, for purposes of sale. They listed this property in Douglas county, and paid the taxes on it. Without their knowledge, consent, or authority, Mareell listed it in Coffey county, and the taxes not being paid a warrant issued to the sheriff of Coffey county. To restrain a levy under this warrant this action is brought.
The maxim of the common law was'this: MobiUa seqwwntv/r fersonam. The domicile of the owner drew to it his personal estate wherever it might happen to be. In the absence of any statutory provision to the contrary this common-law rule would control, and personal property be taxable only where the owner had His domicile. Eut we are not left to this. ■The statute has in plain language affirmed the commonriQe> Tlie last clause of § 8 of the tax law, Gen. Stat., page 1023, is as follows: “And all personal property shall be listed and taxed each year in the township or city in which the person charged with the tax thereon resided on the first day of March.” Nowthe person chargeable with a tax is the owner of the property. 'Whatever provisions .there may be in the statute — and there are many — for securing a full listing of all taxable property by requiring executors, trustees, agents, and all persons having possession of the property of others to list it, still such provisions do not change the burden or charge of the tax. It rests upon the owner. Payment must come out of his pocket. His property must make good the tax. The private property of an administrator cannot be taken to pay the tax-levied upon the property of the estate of which he is administrator. Neither he nor his property is chargeable with such tax. It is no exception to the rule that an agent may be required to list the property of a nonresident owner and to be responsible for the tax, for the owner being beyond the reach of the sovereignty imposing the tax the only way he can be reached is through the person representing him within the sovereignty.
Again, where one article of a statute attempts to settle one class of questions its provisions are as a general rule, controlling upon such questions; and if in other portions of the statute are found provisions affecting such questions they will be held subordinate to those of that article. Thus, in the civil c0(^e 811 ai‘ticle on the counties in which actions miist be brought. It aims to determine all that class of questions. Now if in other portions of the code should be found provisions which under certain constructions would seem to bear upon the question of the places of actions, still such provisions would be construed as bearing chiefly upon the topics of the articles in which they are found, and in regard to the question of the places for bringing actions as subordinate to the provisions of the first named article; for the intent of the legislator, like the meaning of any other writer, is determined by construing his language with reference to the topic of which he is writing; and where he has divided his article into topics, he will be presumed to have said all he desires upon a given topic under its proper head. Now the section from which we have quoted is in art. 3, which is entitled “ By whom and where property shall be listed for taxation.” It is an article whose obvious aim and purport is to settle and determine all of those questions. Hence, where a matter of doubt arises between its provisions and other provisions of the statute, so far as the place of listing property is concerned, its requirements should be deemed controlling. We have called attention to this rule of construction because it is earnestly insisted that under § 17 of the tax law, Gen. Stat., p. 1026, Marcell, the agent, was justified in listing this property, and the county authorities of Coffey county in levying and collecting a tax upon it. That section so far as it bears upon this question is as follows: “ Every person who shall own or hold subject to his control any personal property within this state, which shall have been purchased with a view of being sold at an advance price or profit, or which shall have been consigned to him for the purpose of being so sold, shall be held to be a merchant; and when such person shall be required, according to the provisions of this act, to make out and deliver to the assessor a statement of his personal property he shall include in such statement the value of personal property appertaining to his business as a merchant.” This section is found in an article entitled “ Merchants and Manufacturers.” The ai’gument is this: Mareell holding this stoclc of goods under his control’w&s by this section a merchant; it was therefore his duty to list this stock. He lived in Coffey county, and listed his own property there; hence he was compelled to list this stock there. It being his duty to list, the coxmty authorities could rightfully accept the listing and impose and collect a tax from the property. The same argument will apply with equal force to the plaintiffs. They owned this stock; they were therefore merchants; it was their duty to list this stock when and where they listed their other personal property, as required by the provisions of the tax act. That act required them to list their other personal property in Douglas county; it was therefore their duty to list this stock in Douglas county. It being their duty thus to list, the county authorities of Douglas county could rightfully accept the list and impose and collect a tax. But this would result in taxing the same property twice. This section cannot as it seems to us determine in which county this stock should be listed for taxation, for by the terms of the section both plaintiffs and Marcell are merchants with reference to this stock. Both are so far as this section alone is concerned under equal obligations to list it. Listing it, they are compelled to list it in the counties of their respective residences. Thus listing it, the property would be subject to double taxation, "Whatever might be the efficacy of this section where the owner is a non-resident of the state, in determining the locus of a tax, where both owner and holder of the stock are the residents we conceive that it is powerless, and that the place of the tax must be settled by other provisions of the statute. Those provisions, as we have seen, require that this property be listed and taxed in Douglas county. The decisions of the supreme court of "Wisconsin, upon this point are entirely inapplicable here, for though the general provisions of their tax law are like ours, yet the paragraph corresponding to the one first quoted from our statute is as follows: “ Merchants’ and manufacturers’ stock shall be listed and taxed in the town or ward in which it was situated at the time of listing; but all other personal property shall be listed and taxed in the town or ward in which the person charged with the tax thereon resided at the time such property was listed.” Laws "Wisconsin, 1860, p. 401, § 5. The distinction between their statute and ours in reference to the point under consideration is too plain to require any further notice. Holding then as we do, that this stock was properly listed and taxed in Douglas county, we shall have to reverse the judgment of the district court and remand the case with instructions to overrule tbe demurrer to tbe petition of plaintiffs and proceed with the case in accordance with the opinions herein expressed.
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The opinion of the court was delivered by
Rosen, J.:
Luis Mendoza appeals from the sentence imposed following his plea of no contest to one count of rape with a victim who was 11 years old, in violation of K.S.A. 21-3502(a)(2). As part of the plea agreement, the State dismissed all other charges and agreed to recommend a downward departure to the sentencing grid. Mendoza filed a motion for a downward sentencing departure based on his lack of criminal history. The district court denied the departure motion and sentenced Mendoza to life in prison without parole for 25 years. The court also imposed lifetime postrelease supervision and lifetime electronic monitoring because Mendoza was convicted of a “child sex offense.”
Parole Eligibility
Mendoza initially contends that the district court erred in sentencing him to a 25-year term under K.S.A. 21-4643(a)(l) instead of a 20-year term under K.S.A. 2008 Supp. 22-3717(b)(2). Whether the sentence was illegal is a matter of statutory interpretation, which is a question of law subject to unlimited appellate review. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).
Mendoza argues that both K.S.A. 2008 Supp. 22-3717(b)(2), establishing parole eligibility after 20 years, and K.S.A. 21-4643(a), establishing parole eligibility after 25 years, are applicable to his sentence; therefore, he asserts that the rule of lenity requires that any reasonable doubt about the meaning of the statutes be resolved in his favor. The State maintains that K.S.A. 21-4643(a)(l)(B) exactly describes Mendoza’s situation and should, therefore, apply.
This court considered this question in State v. Chavez, 292 Kan. 464, 254 P.3d 539 (2011). Chavez, like Mendoza, argued that 22-3717(b)(2), which provides for parole eligibility after 20 years, and 21-4643(a)(l), which provides for parole ehgibility after 25 years, both applied to his off-grid sentence for aggravated indecent liberties with a child. Chavez argued that the doctrine of lenity must be applied and his sentence modified to a mandatory minimum term of 20 years.
Instead, the court considered the various provisions of the act in pari materia, with a view of reconciling and bringing the provisions into a workable harmony. The 2006 amendment to 22-3717 created an overlap, but it did not create any reasonable doubt as to the meaning of the statute. This provision was obviously intended to malee parole ehgibility under 22-3717 comport with the newly created mandatory minimum terms of imprisonment under Jessica’s Law. The court concluded that “[a] defendant who is sentenced under Jessica’s Law, K.S.A. 21-4643, is subject to a mandatory minimum term of imprisonment of not less than 25 years before becoming eligible for parole.” State v. Chavez, 292 Kan. 464, Syl. ¶ 2. K.S.A. 21-4643(a)(1)(B) specifically references “rape, as defined in subsection (a)(2) of K.S.A. 21-3502.” As such, K.S.A. 21-4643(a)(l)(B) controls Mendoza’s sentence. Mendoza was properly sentenced to a life term without possibility of parole for 25 years.
Lifetime Electronic Monitoring
Mendoza next argues that the district court lacked jurisdiction to impose lifetime electronic monitoring as a condition of parole. Mendoza acknowledges that he did not object, but he argues that the court was without jurisdiction to impose the parole condition of electronic monitoring because K.S.A. 2008 Supp. 22-3717(u) gives that authority to the parole board. The State allows that the court may have been premature in ordering electronic monitoring for life and lifetime parole but argues that any such error was harmless.
In State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011), the court concluded that a sentencing court may not impose electronic monitoring pursuant to 22-3717(u), saying:
“The statute plainly states that the parole board shall order electronic monitoring as a condition of parole. K.S.A. 22-3717(u) does not also provide authority for a sentencing court to order electronic monitoring under these circumstances. Additionally, K.S.A. 21-4603d, which authorizes numerous dispositions for persons who have been found guilty of a crime, does not provide authority for a sentencing court to impose parole conditions.” Jolly, 291 Kan. at 848.
In Chavez, the court concluded that the “[i] imposition of parole conditions, including lifetime monitoring, is the province of the parole board and lies outside the jurisdiction of the district court.” State v. Chavez, 292 Kan. 464, Syl. ¶ 3. As in Chavez, we vacate the portion of the sentence relating to electronic monitoring.
Downward Departure
Mendoza argues that the district court erred in denying his downward departure motion, pointing to the following mitigating factors: (1) Mendoza had no criminal history; (2) the State’s recommendation for departure to a grid sentence was part of the plea agreement; and (3) Mendoza stated in allocution that he had family to support. The State argues that these factors were not sufficient to compel the court to abandon the status quo. Our standard of review on the denial of a sentencing departure is abuse of discretion.
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
At the sentencing hearing, Mendoza said only, “I just want to beg and ask if the sentence could be lowered; I have family. But if it can’t be done, so be it.” The State read a letter from the victim and a letter from the victim’s father into the record. The district court stated:
“THE COURT: Mr. Mendoza, it’s now time for me to pronounce sentence upon you. Before I do, I have a few things I want to tell you. The first is, the crime that you’ve committed is the most heinous and degrading act I’ve ever had the displeasure of being associated with in the criminal justice field, as a prosecutor, as a defense attorney, and my short time as a judge. The damage that you have done to that little girl is something that cannot ever be repaired, and she will be living with that for the rest of her life. It was a very, very selfish, malicious, perverted act.
“I find the defendant stands before the Court convicted of rape, in violation of K.S.A. 21-3502(a)(2). It is a person felony, nondrug, off-grid. I am going to deny the request of the State and the Defense Attorney for a downward departure and sentence you to life in prison.”
Although the district court did not expressly consider the mitigating factors that Mendoza presented, it is difficult to conclude that no reasonable person would take the view adopted by the court. The victim is an 11-year-old girl who is now afraid to stay home alone. Her letter expressed fear and confusion because she was raped by someone her parents believed was a friend of the family. Her father’s letter described the change in his happy, talkative, little girl who was 10 years old at the time of the events. The mitigating factors were not well developed in the record. The court’s denial of the downward departure motion was reasonable.
Mendoza’s life sentence without parole eligibility for 25 years is affirmed. The parole condition of lifetime electronic monitoring is vacated. | [
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The opinion of the court was delivered by
Malone, J.:
Daniel Perez, Jr., appeals his convictions of first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy to commit criminal discharge of a firearm at an occupied dwelling. Perez claims: (1) the district court violated his constitutional rights by deciding the State’s motion for adult prosecution without using a juiy to determine the facts; (2) the district court erred by instructing the juiy at trial that “another trial would be a burden on both sides;” and (3) the district court erred by failing to instruct the jury at trial on second-degree reckless murder as a lesser included offense of felony murder. This court has jurisdiction under K.S.A. 22-3601(b) based on Perez’ conviction of an off-grid crime.
Factual and Procedural Background
In the spring of 2007, rival street gangs Florencia and Familia Loca (FL) were engaged in a series of violent confrontations in Kansas City. Carlos “Papa” Moreno was a leader of the Florencia gang. Valentino Hernandez, known as Listo, and José Franco, known as Filero, were two leaders of FL. Perez, bom on August 17, 1990, and Luis Gonzalez, also a juvenile, were lower ranking “soldiers” of FL.
On April 1, 2007, Filero’s house was the target of a street-side shooting. Filero believed that Florencia was responsible for the shooting and wanted revenge. Two days later, on April 3, 2007, Perez and Gonzalez went to Filero’s house to check in with the gang leaders. When they arrived, Listo indicated they were being sent on “a mission” to shoot up Moreno’s house. Perez initially refused the mission, resulting in an argument with Listo. Filero then entered the room with a pistol-grip shotgun and told Gonzalez to do the shooting. Gonzalez responded that he was too small to handle the shotgun. Eventually Filero and Listo left the room. When they were alone, Perez told Gonzalez that he did not want to get into trouble with the gang leaders for failing to follow orders. Perez then informed Listo and Filero that he would complete the mission. Gonzalez also agreed to help.
Perez, Gonzalez, and Filero went on a dry run of the shooting mission and Filero showed Perez and Gonzalez where Moreno lived. When they returned to Filero’s house, Listo was wiping down a shotgun with oil in order to remove fingerprints. Perez put on black gloves and took the shotgun from Listo. About 8:30 p.m., Perez and Gonzalez drove to Moreno’s house in Gonzalez’ car. Gonzalez stopped the car in a nearby alley and Perez got out and walked toward Moreno’s house. Gonzalez was unable to see Moreno’s house from the alley, but he heard four or five gunshots coming from the direction of the house. Perez then ran back to the car, threw the shotgun in the backseat, and jumped into the passenger seat. Perez and Gonzalez then left the alley and returned to Filero’s house.
Moreno later testified that on April 3, 2007, he was watching television in his bedroom when he heard several gunshots. He stated that he crawled out of the bedroom and picked up his 2-year-old niece, Yelena Guzman, who was playing in the front room near the door. Moreno noticed that Yelena was bleeding and he carried her toward the back of the house. Yelena later died of a gunshot wound to the head. Kansas City police officers recovered four shotgun shells and one shotgun slug at Moreno’s house. Three of the shots had penetrated the front door.
On July 19, 2007, the police interviewed Gonzalez and he implicated Perez in the shooting. Gonzalez later agreed to testify against Perez in exchange for being prosecuted as a juvenile for his involvement in the crimes.
The State charged Perez with first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy to commit criminal discharge of a firearm at an occupied dwelling. On September 11, 2007, the State moved to tiy Perez as an adult. After hearing the evidence and considering the factors enumerated in K.S.A. 38-2347, the district court authorized adult prosecution. Perez raised no procedural objections in district court to the State’s motion for adult prosecution.
At the jury trial, Gonzalez testified against Perez. Cory Cisneros, another FL gang member, also testified that he was at Filero’s house on April 3, 2007. Cisneros testified that he overheard Filero order Perez and Gonzalez to shoot Moreno’s house. He testified that he saw Perez, Gonzalez, and Filero leave to do a dry run of the mission. Cisneros testified that later that evening he witnessed Perez and Gonzalez return from the shooting and overheard them say, “we got 'em.” The State also introduced into evidence the transcripts of recorded telephone calls Perez made to his mother while he was in jail. During one telephone call, his mother asked Perez if he was guilty and he replied, “of course, yes.” In another telephone call, his mother asked Perez if Gonzalez’ stoiy was accurate and he replied, “more or less.”
Perez did not testify at trial but his defense was that he was not the shooter and that he was being set up to take the fall for higher ranking gang members, Filero and Listo. Perez called three witnesses who testified that Perez was trying to distance himself from gang activity. Perez challenged Gonzalez’ credibility and pointed out his testimony was in exchange for a favorable plea agreement. At the conclusion of the evidence, the district court instructed the jury without objection on the charge of felony murder without any lesser included offenses. The juiy found Perez guilty as charged. He timely appealed his convictions.
Motion for Adult Prosecution
Perez first claims that because the district court’s decision to authorize adult prosecution substantially increased the penalty for the offenses, he was entitled to have a jury make this determination under the principles recited in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). This argument raises a question of law, and our standard of review is unlimited. See State v. Jones, 273 Kan. 756, 770, 47 P.3d 783, cert. denied 537 U.S. 980 (2002).
We note that the same argument Perez is malting already has been rejected by this court in four prior cases: State v. Tyler, 286 Kan. 1087, 1095-96, 191 P.3d 306 (2008); State v. Mays, 277 Kan. 359, 367-68, 85 P.3d 1208 (2004); State v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003); and Jones, 273 Kan. at 770-78. Moreover, Perez acknowledges that he presents this argument for the first time on appeal. In district court, Perez raised no objection to the court deciding the motion for adult prosecution without using a juiy to determine the facts. In a single sentence in his brief, Perez asserts that an issue can be raised for the first time on appeal in “exceptional circumstances where the asserted error involves a strictly legal question that will be determinative of the case or where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights.”
Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). However, an appellate court may consider a constitutional issue raised for the first time on appeal if the issue falls within one of three recognized exceptions: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or reason for its decision. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
Supreme Court Rule 6.02(e) (2010 Kan. Ct. R. Annot. 39) provides that if an issue was not raised in district court, the appellant must “explain why” the issue should be considered for the first time on appeal. Perez presents no explanation for why the issue should be considered for the first time on appeal other than a general statement that “this circumstance fits within the exceptions” recognized by case law. We note that in Kunellis, this court refused to address the defendant’s argument that the State’s motion for adult prosecution should have been decided by a jury because the issue was being raised for the first time on appeal and already had been resolved in a prior case against the defendant’s position. 276 Kan. at 465. For the same reasons we stated in Kunellis, we decline Perez’ request to consider this constitutional issue for the first time on appeal.
Allen-Type Instruction
Perez next claims that the district court committed reversible error when it gave an Allen-type instruction to the jury before deliberations began. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Perez did not object to the instruction when it was given to the jury; therefore, this court reviews the instruction under a clearly erroneous standard. K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
The district court provided the jury with Instruction No. 15 which stated in relevant part:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of die charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charges to a different jury at a later time. Another trial would be a burden on both sides." (Emphasis added.)
The language from Instruction No. 15 came from a prior version of PIK Crim. 3d 68.12, commonly known as the “deadlocked jury” instruction. In the current pattern instruction, the language “another trial would be a burden on both sides” has been removed. Otherwise, the district court’s Instruction No. 15 tracks almost identically with the current pattern instruction.
This court has specifically addressed the language at issue in several recent cases. In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), this court held that the language “[a]nother trial would be a burden on both sides” is erroneous because it is misleading and inaccurate; however, it was not reversible error. In Salts, the instruction was given before the juiy deliberated and was included with all the other juiy instructions. The defendant did not object to the instruction. The Salts court found that, under the clearly erroneous standard, there was no real possibility that the jury would have rendered a different verdict if the error had not occurred. 288 Kan. at 267; see also State v. Brown, 291 Kan. 646, 660, 244 P.3d 267 (2011) (same challenged language in jury instruction was erroneous, but not clearly erroneous); State v. Colston, 290 Kan. 952, 976-78, 235 P.3d 1234 (2010) (same result); State v. Ellmaker, 289 Kan. 1132, 1146-47, 221 P.3d 1105 (2009) (same result), cert. denied 130 S. Ct. 3410 (2010).
Perez argues that the language “another trial would be a burden on both sides” is reversible error in his case because there is a real possibility the jury would have rendered a different verdict without that language. Specifically, Perez points out that the most damaging trial testimony identifying him as the shooter came from Gonzalez, whose credibility was undermined as a result of his favorable plea agreement. However, the State points out that Gonzalez’ testimony was corroborated by the testimony of Cisneros, who overheard Filero order Perez to do the shooting. Cisneros also witnessed Perez and Gonzalez return from the shooting and overheard them say, “we got 'em.” The State also introduced into evidence the transcripts of recorded telephone calls Perez made to his mother while he was in jail. During one telephone call, his mother asked Perez if he was guilty and he replied, “Of course, yes.” In another telephone call, his mother asked Perez if Gonzalez’ story was accurate and he replied, “more or less.”
Instruction No. 15 was given before the jury deliberated and was included with all the other juiy instructions. Perez did not object to the instruction. After the verdicts were read, the district court polled the jury and each juror stated he or she agreed with the verdicts. The evidence against Perez was substantial. This case is similar to Salts, Ellmaker, Colston, and Brown regarding the effect of the Allen-type instruction, and the result should be the same. We are not firmly convinced there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred. Accordingly, we conclude that Instruction No. 15 was not clearly erroneous.
Lesser Included Offense of Felony Murder
Finally, Perez claims the district court erred by failing to instruct the juiy at trial on second-degree reckless murder as a lesser included offense of felony murder. Perez acknowledges that he did not request a lesser included offense instruction at trial. Therefore, this court reviews the district court’s failure to give the instruction under the clearly erroneous standard. K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451-52.
Perez was charged with felony murder arising from the shooting death of Guzman. K.S.A. 21-3401(b) defines felonymurder as “the lolling of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436.” Here, the underlying felony predicating the felony-murder charge was criminal discharge of a firearm at an occupied dwelling in violation of K.S.A. 21-4219, which constitutes an inherently dangerous felony. See K.S.A. 21-3436(a)(15) (any felony offense as provided in K.S.A. 21-4219).
On appeal, Perez argues that this court should reconsider its traditional approach to lesser included offense instructions in felony-murder cases. Perez acknowledges that under longstanding precedent, lesser included offense instructions for felony murder are not required unless “the evidence of the underlying felony is weak, inconclusive, or conflicting.” State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 (2009). However, Perez argues that there is “[n]o statutory or common law authority” for this approach and that this court should follow the general rule under K.S.A. 22-3414(3) in determining whether juiy instructions should be given for lesser included offenses. Perez contends that under this statute, the jury should have been instructed on second-degree reckless murder since firing a shotgun into an occupied house is “extreme indifference to the value of human life.” See K.S.A. 21-3402(b) (“Murder in the second degree is the killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”).
Perez’ argument was addressed by this court in State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011). In Berry, the defendant struck and killed another motorist during a high-speed getaway from a traffic stop. He was apprehended, and cocaine was discovered in his possession. The defendant was charged with first-degree felony murder based on the underlying felony of possession of cocaine. At trial, the defendant requested lesser included offense instructions for second-degree reckless murder, involuntary manslaughter, and vehicular homicide. Because the evidence supporting the possession of cocaine charge was substantial, the district court denied the request for lesser included offense instructions pursuant to the judicially created felony-murder instruction rule. The defendant was convicted of first-degree felony murder.
On appeal, this court observed that lesser included offense jury instructions are governed by K.S.A. 22-3414(3), which directs that instructions must be given when there is some evidence that would reasonably justify a conviction of some lesser included crime. 292 Kan. 493, Syl. ¶ 2. This court noted that when a party claims K.S.A. 22-3414(3) requires giving an instruction on a lesser included crime, the analysis focuses on the evidence supporting the lesser offense. 292 Kan. 493, Syl. ¶ 3. This court traced the history of the judicially created felony-murder instruction rule which requires lesser included offense instructions only when evidence of the underlying felony is weak, inconclusive, or conflicting and noted that the analysis under the judicially created rule focuses on the evidence supporting the underlying felony and not the evidence supporting lesser offenses. 292 Kan. 493, Syl. ¶ 4.
This court further observed that K.S.A. 22-3414(3) does not exclude felony murder from its mandate and makes no exception for the felony-murder instruction rule regarding lesser included offense instructions. 292 Kan. 493, Syl. ¶ 5. After determining that the rationale for adopting the felony-murder instruction rule was flawed, this court concluded the rule must be abandoned. This court held that K.S.A. 22-3414(3) should be applicable to felony murder. Under this statute, instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt. 292 Kan. 493, Syl. ¶ 6.
Although this court has now embraced the analysis advocated by Perez, this does not mean we agree with Perez that the district court erred by failing to instruct the jury at trial on second-degree reckless murder as a lesser included offense of felony murder. Under K.S.A. 22-3414(3), instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt. Perez advances a hypothetical situation and argues the jury should have been instructed on second-degree recldess murder since firing a shotgun into an occupied house is “extreme indifference to the value of human life.” K.S.A. 21-3402(b). However, Perez cites to no evidence presented at trial which would have reasonably justified a conviction of this crime beyond a reasonable doubt.
The State’s evidence at trial established that Perez went to Moreno’s house with a shotgun and intentionally fired four or five shots into the front of the house. This act was to seek revenge for an earlier shooting at Filero’s house. Perez, Gonzalez, and Filero went on a dry run of the shooting mission to make sure that Perez and Gonzalez knew where Moreno lived. Perez and Gonzalez later drove to Moreno’s house in Gonzalez’ car. Perez knew Moreno’s house was occupied when he fired the shots. Guzman was playing in the front room of the house when she was struck in the head by one of the shots fired by Perez. Perez did not testify at trial, but his defense was that he was not the shooter and that he was being set up to taire the fall for higher ranking gang members.
Second-degree reckless murder is the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. K.S.A. 21-3402(b). Here, there was no evidence presented at trial that Perez unintentionally but recklessly discharged his firearm at an occupied dwelling. Based on the evidence presented at trial, Perez either committed the act and was guilty of felony murder as charged or he was guilty of nothing at all. Although second-degree recldess murder may be a lesser included offense of felony murder in some situations, in this instance there was no evidence presented at trial that would have reasonably justified a conviction of second-degree reckless murder beyond a reasonable doubt. Accordingly, we conclude the district court did not err by failing to instruct the jury at trial on second-degree recldess murder as a lesser included offense of felony murder.
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The opinion of the court was delivered by
Rosen, J.:
Judith Berry brought negligence and consumer protection claims against National Medical Services, Inc. (NMS) and Compass Vision, Inc. (Compass) based on urinalysis tests conducted as part of Berry’s participation in the Kansas Nurses Assistance Program (KNAP). The district court dismissed Berry’s petition with prejudice for failure to state a claim upon which relief may be granted. The majority of the Court of Appeals panel reversed the dismissal of the negligence claim. This court granted NMS’s petition for review because the issue presented is one of first impression and likely to recur.
Factual Background
When reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, this court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably drawn from the facts alleged in the petition. Using those facts and inferences, we then decide whether the plaintiff has stated a claim upon which relief can be granted. Because Kansas is a notice-pleading state, the petition is not intended to govern the entire course of the case. Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008). Berry asserts the following, which we accept as true for our analysis.
Beriy was a registered nurse licensed by the Kansas State Board of Nursing (Board). In August 2003, after admitting to alcohol dependency, Berry agreed to participate in the Board’s assistance program, KNAP, which includes submitting to future random testing. Berry claims that during her participation in the program she maintained her recovery and sobriety, did not relapse, and did not intentionally drink any alcoholic beverages.
The Board contracted with Compass to serve as the third-party administrator of KNAP’s alcohol testing program. Compass contracted with NMS to provide alcohol testing for nurses in KNAP.
Compass and NMS (collectively Defendants) were leading proponents of ethyl glucuronide (EtG) testing. EtG is a metabolite of alcohol. The presence of EtG in urine reportedly provides proof of prior alcohol consumption, even after the alcohol itself has been eliminated from the body. Defendants established a reporting limit of 250 ng/mL, at or over which EtG test results would be reported as “positive” for drinking alcohol. Defendants claimed that any EtG test result of 500 ng/mL and above conclusively proved intentional consumption of an alcoholic beverage.
As early as March 2004, published scientific literature suggested that many ordinary products, including Purell sanitizer and other hand sanitizers used in hospitals throughout the country, contained ethanol that would metabolize as EtG, and incidental exposure to these products could show up at levels well above the 250 ng/mL cutoff. In September 2006, the Substance Abuse and Mental Health Services Administration (SAMHSA), a federal agency that is part of the United States Department of Health and Human Resources, issued an advisory stating that EtG testing could be a valuable clinical tool, but it should not be used as the primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking.
In January 2005, Compass collected from Berry a random observed urine sample and NMS performed an EtG test. Berry received notice of a positive result of 2200 ng/mL on the EtG test, in violation of her KNAP agreement. As a result, Berry was suspended for 2 months.
In June 2005, Berry again submitted a random observed urine sample collected by Compass and tested by NMS. Berry received notice of a positive result of290 ng/mL on the EtG test, in violation of her KNAP agreement. Unable to work as a nurse and faced with mandatory inpatient treatment and suspension from work based on the June test, Berry refused to continue in KNAP because of the unfairness of the EtG testing. In August 2005, Berry’s nursing license was revoked.
On January 16,2007, Berry filed a petition in district court seeking damages for negligence and violation of consumer protection laws. On August 29, 2007, Berry filed an amended petition which is the basis for this case.
Berry claims Defendants were negligent in a number of respects, including designing, implementing, promoting, and managing their EtG testing protocol. Specifically, Berry alleges the Defendants acted negligently in establishing arbitrary and scientifically unreliable cutoffs over which test results were reported as positive and in failing to reevaluate cutoff limits to allow for incidental or involuntary exposure or consumption of products containing alcohol. Further, Berry claims Defendants knew that because she was a participant in KNAP, her nursing license would be in jeopardy if she tested positive.
The district court, without analysis or explanation, dismissed Berry’s petition with prejudice for failure to state a claim upon which relief may be granted. The Court of Appeals reversed on the negligence claim, finding that Berry was a foreseeable plaintiff, that the probability of harm was foreseeable, and that there was no public policy against imposing a duty on Defendants. Berry v. National Medical Services, Inc., 41 Kan. App. 2d 612, 205 P.3d 745 (2009). The Court of Appeals affirmed dismissal of Berry’s consumer protection claim. That issue was not presented for review by this court.
Analysis
The existence of a legal duty is a question of law over which this court exercises unlimited review. Glassman v. Costello, 267 Kan. 509, 521, 986 P.2d 1050 (1999). To find a legal duty to support a negligence claim, (1) the plaintiff must be a foreseeable plaintiff and (2) the probability of harm must be foreseeable. OMI Holdings, Inc. v. Howell, 260 Kan. 305, 338, 918 P.2d 1274 (1996); Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983), disapproved on other grounds Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).
Foreseeability
A foreseeable plaintiff is one that is “within the range of apprehension.” Durflinger, 234 Kan. at 489. As the court described in Durflinger.
“An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation,', it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based.” Dutflinger, 234 Kan. at 489 (citing Blackmore v. Auer, 187 Kan. 434, 441, 357 P.2d 765 [1960]).
Berry easily satisfies the test for a foreseeable plaintiff. Berry submitted to random urinalyses collected by Compass and tested by NMS. Berry was not a bystander, but the direct and immediate object of the Defendants’ testing services. The great majority of other states addressing this issue have found that a test subject is a foreseeable plaintiff in an action in negligence against a laboratory under such circumstances. See, e.g., Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223, 1228 (S.D. Cal. 2007) (noting that Iowa, Illinois, Louisiana, Connecticut, New York, and Wyoming have found that a laboratory owes a duty to the test subject, while only Pennsylvania has consistently held to the contrary).
Considering the foreseeability of harm, the court in Quisenberry stated:
“We cannot imagine a more foreseeable harm than the harm that may result from inaccurate laboratory testing of individuals. Laboratory testing is a fact of life in today’s labor market, and it is often a pre-requisite to being hired, promoted, or even continuously employed. As some cases in other jurisdictions demonstrate, inaccurately reported test results can have dire consequences on the livelihood of individuals. Employees can lose their jobs, and job applicants can miss out on an opportunity to be considered for a new position or a well-deserved promotion. It is, therefore, fully foreseeable that a mishandling or inaccurate reporting of laboratory test results can harm the individual whose specimens the laboratory is testing.” Quisenberry, 618 F. Supp. 2d at 1230.
As the Court of Appeals said:
“The harm Berry alleges was equally foreseeable by the defendants. The testing services promoted and provided by these defendants could be used by private employers evaluating prospective employees, by licensing agencies such as the Board here, or by courts when dealing with criminal defendants. Errors in administering alcohol testing programs or reporting their findings could lead to a prospective employee being rejected by a private employer or, in circumstances such as those present here, a licensed professional being denied the opportunity to continue in his or her profession. In the case of the courts, these errors could lead to the loss of personal freedom.
“Here, the defendants solicited business from the Board to test nurses whose licenses were at risk because of claims of alcohol abuse. The defendants could clearly foresee that a positive test result could result in the loss of the test subject’s license. The exact harm Berry claims to have experienced here was a foreseeable consequence of negligence in the testing and reporting of the test results to the Board.” Berry, 41 Kan. App. 2d at 618.
We agree. Berry was a foreseeable plaintiff and the probability of harm was foreseeable. There is a duty to report test results that are qualitatively and quantitatively accurate. A laboratory testing facility owes a duty to those whose specimens it tests to accurately report results and not to mischaracterize or misinterpret those results.
Public Policy
This court may choose not to recognize a duty if the duty is contrary to public policy. OMI Holdings, Inc., 260 Kan. at 338. The majority of the Court of Appeals found that no public policy prevented the court from recognizing this type of duty. Judge Buser disagreed. Under his analysis, the public policy is provided by legislation authorizing the Board to regulate the competency of nurses. This legislation provides Berry with important due process rights in regards to her nursing license. Berry had the opportunity to raise these complaints about Defendants and EtG testing before the Board, but instead Berry chose to withdraw from KNAP. Berry, 41 Kan. App. 2d at 623-28 (Buser, J., dissenting).
While there may be an enticing argument that it would have been more prudent for the Board to have considered Berry’s complaint about EtG testing, the simple fact that the legislature has set up an administrative scheme to regulate professional competency does not stretch to a statement of public policy that a company performing substance abuse testing under contract with that administrative agency has no duty to the individuals whose samples it tests. In the context of finding duty in a negligence action, this court has found a contrary public policy in only limited situations. In Ling v. Jan's Liquors, 237 Kan. 629, 641, 703 P.2d 731 (1985), we refused to impose civil liability on vendors of alcoholic beverages for the torts of their inebriated patrons because an expression of public policy should come from the legislature in the form of a “dram shop law” if that is, indeed, the public policy of this state. In another case, we found that an attorney cannot be liable to a third party for professional negligence because of public policy considerations. Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980) (holding that the public policy favoring free access to the courts allows third parties to make claims of malicious prosecution against an adversary’s attorney but rejects professional negligence claims against an adversary’s attorney).
The public policy of legislation authorizing the Board to regulate the competency of nurses is intended to protect medical consumers. That worthy goal is not hindered by allowing a nurse to file a claim against a substance abuse testing company for negligent testing. Berry will not get her nursing license reinstated as a result of this negligence claim. There is no public policy to extend protection to a tortfeasor simply because the tortfeasor contracts with a government agency.
We affirm the Court of Appeals and reverse the district court on the negligence claim. This case is remanded to the district court for further proceedings.
Moritz, J., not participating.
Kim W. Cudney, District Judge, assigned.
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The opinion of the court was delivered by
Yalenhne, J.:
Jacob "Willetts, the defendant in error, commenced this action in the court below against Andrew Stark the plaintiff in error, for the purpose of recovering a certain piece of land withheld from him, as he claims, by Stark. The petition was in form an ordinary petition for the recovery of real property under article 24 of the code of civil procedure. The answer was as follows:
“ And now comes the said Andrew Stark, defendant, and for an answer to the petition of said Jacob Willetts says, that he the said Stark does not unlawfully keep him the said plaintiff out of the possession of said premises in his said petition demanded in manner and form as therein alleged, and of this he puts himself upon the country.”
Two trials were had in the court below. On the second trial, which was before a jury, evidence was introduced to show that the said Stark did keep the said Willetts out of the possession of said land, and also to show the amount of damages thereby sustained by Willetts; but not a particle of evidence was introduced or offered to be introduced by either party, tending to show that Stark had any right or interest in said land or any right of possession thereto. The court charged the jury among other things as follows:
“ Said plaintiff alleges that at the time of the commencement of this action, namely, October 13th, 1869, he was the owner in fee simple of said land, and entitled to the possession thereof; that said defendant Stark wrongfully kept said plaintiff out of the possession of said land, and had so kept him out of possession for one year’, to the damage of said-plaintiff; and this suit is brought to recover judgment for the possession of said land and said alleged damages.
“The defendant by his answer denies the keeping of the plaintiff out of the possession of the land. By thus taking issue upon and denying this single allegation in plaintiff’s petition, he admits that the plaintiff was at the commencement of this action the owner of the land, and entitled to the possession thereof, and leaves for you to decide as the main issue, only the following questions: First, Did the defendant at the time of the commencement of this suit kee]3 the plaintiff out of the possession of said land? Second, II he did, what damages did the plaintiff sustain from such withholding from him of said land by said defendant?”
The verdict of the jury was as follows: “We the jury find that the defendant does unlawfully keep said plaintiff out of the possession of said premises in manner and form as said plaintiff hath in his said petition declared, and we assess the damages of the said plaintiff by reason of the unlawful withholding thereof at the sum of $25.00.”
In this court the defendant below assigns in his petition in error numerous errors of the court below; but afterwards in his brief he abandons all but one of them, and that one we shall now proceed to consider. He says in his brief that “ The court instructed the jury that this answer was a mere disclaimer; that it admitted the plaintiff’s title and right of' possession. This was clearly wrong.” Whether this charge was wrong in the abstract we do not thint we are called upon to decide. It was certainly not wrong for this case as the pleadings and the evidence then stood. Under the pleadings it is clear beyond all doubt that the plaintiff’s title to the land was admitted; and title always presumptively draws to it the right of possession. Under the pleadings the defendant admitted conclusively that the title to the land was in the plaintiff, and by that admission he admitted at least rima facie that the plaintiff had the right of possession. Whether the defendant had the right under the pleadings to introduce evidence to show that, notwithstanding this j'prima facie presumption that the plaintiff had the right of possession to said land, still the plaintiff had no such right, we are not called upon to decide, for, as we have before said, no such evidence was introduced or offered to be introduced. The presumption of the plaintiff’s right of possession remained till the close of the trial, and the court had the right to tell the jury so. Under the pleadings and the evidence the jury had only the two questions to decide which the court told them they had to decide.
Eor these reasons, even if the court below misconstrued the defendant’s answer, and we are unable now to say that it did, still the said charge was not erroneous, for such misconstruction could not in the least affect the substantial rights of the defendant. The judgment is affirmed.
Kingman, O. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Johnson, J.:
Shane M. Marquis appeals the district court’s determination that he violated the conditions of his probation and the corresponding decision to revoke that probation. Marquis contends that the district court violated his right of confrontation under both the federal and state Constitutions by considering the affidavit of his supervising officer without complying with, the requirements for the admission of testimonial hearsay set forth in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We find that the Sixth Amendment to the United States Constitution right of confrontation is inapplicable in a probation revocation proceeding. However, the Fourteenth Amendment affords a probationer minimum due process rights as a prerequisite to the revocation of probation. We reverse and remand for the district court to make the appropriate inquiry as to whether the State’s failure to produce the supervising officer as a witness violated Marquis’ due process rights.
Factual and Procedural Overview
Marquis pled guilty to two drug charges in one case and to felony theft in another case. Sentences on both cases were pronounced at the same hearing and were imposed consecutively. The controlling term of imprisonment for both cases was 52 months, but the court granted Marquis a dispositional departure and placed him on probation.
Nearly a year later, Marquis stipulated to violating the conditions of his probation. The district court revoked Marquis’ probation and reinstated it with additional conditions, including a requirement to successfully complete the “boot camp” program at Labette Correctional Conservation Camp.
A few months later, the State again sought to revoke Marquis’ probation, this time claiming that he had failed to successfully complete the Labette program. At the revocation hearing, the State produced the testimony of Chuck McGuire, the director of the 13th Judicial District Community Corrections. Nicole Luna, the community corrections officer assigned to Marquis’ case, did not testify. Rather, the State presented Luna’s affidavit, sworn to under oath, containing the statement that Marquis had been “ ‘removed from [Labette] on November 15, 2007, due to disciplinary discharge.’ ”
In response to the court’s inquiry, McGuire testified that Luna, as Marquis’ supervising officer, would be the person with direct knowledge of Marquis’ case. McGuire had Luna’s file and testified that the “chronos” recorded by Luna reflected that Marquis entered Labette on September 24, 2007, and was discharged for a disciplinary reason on November 15, 2007. However, the district court sustained Marquis’ hearsay objection to a copy of the Labette discharge report because it was not a sworn statement. Further, McGuire testified that the normal time required to complete the Labette program is 4 to 6 months and that no person had ever successfully completed Labette in less than 2 months.
The district court determined that McGuire’s testimony, “in and of itself,” was insufficient to establish a probation violation. However, relying on K.S.A. 22-3716(b), the court considered Luna’s affidavit because it was a “written statement made under oath by his community corrections officer.” The affidavit reflected Marquis’ disciplinary discharge from Labette, which was a material violation of Marquis’ probation conditions. The court ordered Marquis to the Department of Corrections to serve his prison sentences.
Marquis appealed to the Court of Appeals, which affirmed the revocation. State v. Marquis, Nos. 100,423; 100,515, 2009 WL 1591627 (Kan. App. 2009) (unpublished opinion). The Court of Appeals’ opinion recites Marquis’ claim that the district court’s admission of hearsay statements at the revocation hearing violated his right of confrontation, under both federal and State constitutions. Then, interestingly, the opinion declares that “[w]hether an individual’s due process rights were violated is a question of law over which this court exercises de novo review.” (Emphasis added.) Marquis, 2009 WL 1591627, at *2.
The panel then determined that the ill-defined issue was governed by the holdings in State v. Palmer, 37 Kan. App. 2d 819, 158 P.3d 363 (2007), which requires a district court to apply the two-factor “good cause” test set forth in State v. Yura, 250 Kan. 198, 207-08, 825 P.2d 523 (1992). The “[t]wo factors to be evaluated in examining the State’s basis for dispensing with confrontation are: (1) the explanation the State offers for why confrontation is undesirable or impractical, and (2) the reliability of the- evidence which the State offers in place of live testimony.” Yura, 250 Kan. 198, Syl. ¶ 4.
The Court of Appeals acknowledged that “the State never offered, and the district court did not request, an explanation for why Luna was unable to attend the hearing and provide live testimony.” Marquis, 2009 WL 1591627, at * 2. However, the panel found that the district court apparently addressed the affidavit’s reliability and, therefore, it “substantially complied with Palmer.” Marquis, 2009 WL 1591627, at * 3. We granted Marquis’ petition for this court to review the Court of Appeals’ decision.
Right of Confrontation
A. Standard of Review
“We employ an unlimited standard of review when addressing issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution.” State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 (2009); State v. Ransom, 288 Kan. 697, 708-09, 207 P.3d 208 (2009) (whether confrontation rights have been violated is a question of law subject to unlimited review).
B. Analysis
Our first inquiry is whether a criminal defendant’s Sixth Amendment right of confrontation is applicable to a probation revocation hearing. Marquis acknowledges that Kansas has followed the United States Supreme Court’s view, expressed in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), “that revocation of parole [or probation] is not part of criminal prosecution and, thus, the full panoply of rights due in a criminal prosecution is not applicable to parole [or probation] revocation.” Yura, 250 Kan. at 201. Those cases did not apply the Sixth Amendment Confrontation Clause to parole or probation revocation proceedings.
However, the United States Supreme Court did find that minimum due process rights apply to probation revocation proceedings, so that a defendant facing revocation must be afforded the opportunity to “.‘confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ ” (Emphasis added.) Gagnon, 411 U.S. at 786. In Yura, we adopted the aforementioned two-factor test for determining the existence of “good cause.” Clearly, the probationer’s “confrontation” rights in Yura derived from the Due Process Clause of the 14th Amendment to the United States Constitution and not from the Confrontation Clause.
Marquis contends that the watershed opinion in Crawford v. Washington, 541 U.S. 36, where the Supreme Court refined its conceptualization and application of confrontation under the Sixth Amendment, abrogated Yura’s “good cause shown” test. He argues that Yura’s relaxed admissibility standard “appears to be a vestige of the Ohio v. Roberts . . . reliability exception to hearsay requirements.” Because Crawford disapproved of dispensing with the right of confrontation based upon reliability, Marquis asserts that Crawford effectively overruled the two-factor test from Yura and replaced it with the test that testimonial hearsay may never be admitted unless the declarant is unavailable and the defendant has had a previous opportunity to cross-examine the declarant. We disagree.
First, Yura did not emanate from the trustworthiness considerations of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), but rather its foundation was the minimum due process requirement enunciated in Morrissey and Gagnon. The Crawford court’s determination that the confrontation procedure guaranteed by the Sixth Amendment cannot depend on the hearsay’s reliability does not, without more, effect a change in due process jurisprudence. Nothing in Crawford indicates an intent to overrule the due process holdings of Morrissey and Gagnon.
Moreover, even though Crawford did not specifically address its applicability to posttrial proceedings, most courts addressing the issue have determined that Crawford does not apply in that context. See Curtis v. Chester, 626 F.3d 540, 544 (10th Cir. 2010) (“Sixth Amendment rights are not applicable in parole revocation hearings because those hearings are not 'criminal prosecutions/ . . . Because the Sixth Amendment’s right to confrontation does not apply in this situation, neither do any Supreme Court cases dealing with it, specifically Crawford.”); see also United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006) (revocation proceedings are not criminal prosecutions for the purpose of Sixth Amendment right to confrontation); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) (confrontation clause not applicable to parole revocation proceedings because they are not criminal prosecutions); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005) (same); United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005) (same); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004) (same); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004) (same); United States v. Palmer, 463 F. Supp. 2d 551, 553-54 (E.D. Va. 2006) (same); Peters v. State, 984 So. 2d 1227, 1229, 1233 (Fla. 2008) (“revocation of probation . . . proceedings are not criminal prosecutions and [] Crawford does not apply”); State v. Rose, 144 Idaho 762, 766, 171 P.3d 253 (2007) (“motion to revoke probation is not a criminal prosecution”); People v. Breeding, 284 Mich. App. 471, 482, 772 N.W.2d 810 (2009) (“probation revocation proceedings are not a stage of a criminal prosecution”); State v. Pompey, 934 A.2d 210, 214 (R.I. 2007) (“Crawford does not apply in the probation revocation context or the analogous supervised release revocation context”); Diaz v. State, 172 S.W.3d 668, 672 (Tex. App. 2005) (holding Crawford does not apply to community supervision revocation hearings).
Likewise, in this state, the Court of Appeals has held that the right of confrontation under Crawford does not extend to probation revocation hearings. Palmer, 37 Kan. App. 2d at 825 (“[I]t is only logical to decline to extend the right to confront witnesses as provided in Crawford to defendants in probation revocation proceedings.”). On the other side of trial, this court has held that the Sixth Amendment right of confrontation under Crawford is inapplicable at prehminaiy hearing. Leshay, 289 Kan. at 551 (“Crawford involved the admission of a testimonial statement at trial, not at a probable cause hearing.”).
Leshay observed that Crawford had not revisited when the full panoply of rights, including the right of confrontation, might arise prior to trial. 289 Kan. at 551. Likewise, Crawford did not revisit the posttrial rights discussed in Morrissey and Gagnon. Accordingly, our rationale in Leshay should apply as well in the posttrial context.
In short, Crawford changed how the Sixth Amendment right of confrontation is to be applied; it did not purport to change when that right applies, i.e., it did not expand the definition of a criminal prosecution. Therefore, even after Crawford, a probation revocation hearing is not considered part of a criminal prosecution, and the Sixth Amendment right of confrontation is not applicable.
Marquis makes the back-up argument that the right of confrontation in the Kansas Constitution required the affiant to be personally present, even if the Sixth Amendment did not. He bases that contention on the distinguishing language in the Kansas Constitution Bill of Rights, § 10, which states that an accused “shall be allowed ... to meet the witness face to face.” (Emphasis added.) Marquis argues that his right to meet witnesses face to face is a more explicit requirement than his Sixth Amendment right to be confronted with the witnesses against him. What he fails to explain is how the different language in the state constitution makes the state right of confrontation applicable where the federal right of confrontation is inapplicable. We do not discern that the language in § 10 of our Kansas Constitution Bill of Rights effects an expansion of the definition of criminal prosecution and, therefore, it does not apply to a probation revocation hearing. Therefore, we need not ruminate on the possibility that our state constitution means something different than the Sixth Amendment.
Notwithstanding our determination that the Sixth Amendment right of confrontation, and its state counterpart, do not apply to probation revocation hearings, our analysis must continue. By applying Palmer and the two-factor test from Yura, the Court of Appeals actually decided the case on due process grounds. Moreover, we discern that Marquis has sufficiently argued the due process considerations to preserve that issue for our review.
No one challenges that the Yura test for good cause remains the analytical tool for finding that hearsay evidence at a probation revocation hearing comports with minimum due process. We decline to raise that issue sua sponte. Therefore, we will apply that test by evaluating: (1) the State’s explanation of why confrontation is undesirable or impractical, i.e., why Luna could not or should not have testified in person; and (2) the reliability of Luna’s affidavit which the State offered in place of her live testimony. See Yura, 250 Kan. 198, Syl. ¶ 4.
The district court did not explicitly discuss the two factors. Nevertheless, we agree with the Court of Appeals’ assessment that the district court’s comments support a determination that it found the affidavit to be very reliable. However, as the Court of Appeals acknowledged, there is nothing in the record to explain why Luna could not or should not have testified in person, rather than by affidavit. We disagree with the panel’s finding that considering only one of the two Yura factors is substantial compliance with the holding in Palmer. The Yura test for good cause to dispense with confrontation requires that the district court consider both factors, including the State’s explanation why live testimony is undesirable or impractical. Therefore, we reverse and remand for the district court to determine whether good cause existed to dispense with Luna’s live testimony, applying the two-factor test set forth in Yura.
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Per Curiam:
This is an original proceeding in which the respondent is charged with criminal, indirect contempt of this court.
After appropriate preliminary proceedings, conforming to K. S. A. 20-1204, the respondent attorney was charged in an amended accusation with two counts of contempt of this court’s order of July 16, 1971, which suspended him from the practice of law for a period of six months. (In re Blase, 207 Kan. 843, 486 P. 2d 839.) The two counts are:
I. “Respondent nevertheless, on July 28, 1971, appeared as, and held himself out to be, an attorney at law before the Board of County Commissioners of Sedgwick County, Kansas, representing one Ralph Korber, or one Walter Korber, or both, of Wichita, Kansas.”
II. “On or about August 31, 1971, and October 9, 1971, as well as on at least one and perhaps several occasions between those dates, Respondent performed services as an attorney at law on behalf of Linda Lee and Billy Joe Long, Wichita, Kansas, in connection with bankruptcy cases filed by both Mr. and Mrs. Long and various creditor problems related thereto.”
Both courses of conduct were alleged to constitute the practice of law, in violation of this court’s order of suspension.
Respondent filed an answer to the amended accusation, denying that his conduct constituted the “practice of law,” and denying any “willful” violation of this court’s order.
The Honorable Leo A. McNalley, a retired district judge, was appointed by this court as its commissioner to hear evidence. On December 27, 1971, he filed his report in which, after reciting the appearances and the history of this participation, he reports:
“Findings of Fact
“1. Respondent was suspended from the practice of law for a period of six months from and after July 16, 1971, by order of the Supreme Court of the State of Kansas entered in Bar Docket No. 2697 and reported as In Re Blase, 207 Kan. 843, 486 P. 2d (1971).
“2. Respondent had actual knowledge of such order, had consented thereto in writing prior to its entry, and admitted having actual knowledge of such order by his answer filed in this contempt proceeding.
“3. Ralph Korber and Walter Korber are owners of separate tracts of land in Sedgwick County that were being included in a proposed water district whose incorporation was pending before the Board of County Commissioners of Sedgwick County. Respondent met with Ralph Korber and advised him that certain restrictions might be imposed on land in the district that would prevent his land from being developed. Korbers planned to develop the land for industrial purposes. Respondent advised Ralph Korber that he would appear before the County Commissioners and request that his land be excluded from the district.
“4. Mr. Paul Buchanan is a practicing attorney in Wichita and was one of the attorneys employed to organize the water district. On or about July 21, 1971, the respondent in a telephone conversation with Mr. Paul Buchanan informed Mr. Buchanan that he represented the Korber brothers in connection with the proposed water district. In response to an inquiry about the powers of incorporators, the respondent was told by Mr. Buchanan that the corporation had no right to tax.
“5. Respondent appeared before said Commissioners on July 28, 1971, and stated:
“ Tm Bob Blase, for the record, and I would like ....
“ . . I represent Ralph Kober, who owns the land, . , . and he prefers not to be in this district because of further curtailment of restrictions that might appear in the development of his land on 81st and High.
“ ‘I also appear for Walter Korber, who has land which is in the northeast comer of the district, who is not objecting to the district being formed.
" . . I didn’t get a satisfactory answer except that you did not have the power to tax. They don’t want any more restrictions on the development of land because this is industrial development land, and they don’t want any more restrictions than what they have got now. . . .’
“6. Respondent had represented both the Korber brothers as their attorney in the past. It was customary for the Korbers, when they had a legal problem, to inform respondent of that problem and request that he take care of the matter. There is no evidence that a fee was either charged or paid for the service of the respondent before the Commissioners.
“7. At the time of his appearance before the County Commissioners, the Korbers had no knowledge of the suspension of the respondent’s license to practice law. When Walter Korber later learned of the suspension, he expressed concern as to whether or not, since the respondent was without a license to practice law, the action taken by the County Commissioners would be valid.
“8. Respondent was a licensed real estate broker at all times material hereto but did not inform the County Commissioners that he appeared as such and not as an attorney at law. Respondent has been active in the practice of law in Sedgwick County since his admission to the Bar of this state in 1934 and is well known as an attorney therein.
“9. Linda Lee and Billy Joe Long, 804 South Main, Wichita, Kansas, came to the office of Blase, Holloway & Blase, sometime during the month of July, 1971, and requested to see Mr. Robert Blase, respondent. On being informed that Mr. Blase was out of town on vacation, they discussed a possible bankruptcy proceeding with Mr. Lester Holloway, respondent’s partner. Mr. Holloway informed them that the fee for filing the bankruptcy petition would be $400, and in addition, the Longs would have to pay $106 in filing fees and court costs. Mr. and Mrs. Long could not raise the money so they did not return to the law office until after respondent had returned to Wichita, Kansas.
“10. Mr. and Mrs. Long came to Mr. Blase’s office on August 31, 1971, and discussed the bankruptcy problem with him. On that date, Mr. and Mrs. Long and respondent were the only persons present. Mr. and Mrs. Long had made out a list of creditors, along with the amounts due on each account. This information was given to respondent. Mr. and Mrs. Long also paid a $10 sum of money to apply on filing fees, and Mr. Blase gave them a receipt on a printed form of the law firm of Blase, Holloway & Blase, Attorneys at Law, signed Blase, Holloway & Blase by Robert E. Blase, number 0391. Copies of receipts issued for payments made by the Longs for the services performed, the same being numbered 0444, dated November 19, 1971; 0423, dated October 22, 1971; 0404, dated September 20, 1971; 0397, dated September 7, 1971; and 0391, dated August 31, 1971; are attached hereto.
“11. Respondent informed Mr. and Mrs. Long that he would represent them and be their attorney, but that Mr. Holloway usually handled all bankruptcy hearings for the firm, and would appear with them in court.
“12. Respondent advised the Longs that he would handle their case for $250, since theirs was a hardship case, and that the filing fee of $106 would have to be paid by October 4, 1971.
“13. Respondent discussed with the Longs the nature of the bankruptcy proceedings and what was involved in taking bankruptcy, as well as the effect of taking bankruptcy.
“14. Respondent advised the Longs to return the next day to sign the necessary papers and get the addresses so that notices of the bankruptcy could be mailed to creditors. The Longs returned to the office as instructed with the information requested, and signed the forms for proceeding with the bankruptcy. The respondent assisted them in filling out the schedules.
“15. The Longs had a problem with a creditor, so Mrs. Long called respondent and asked him what to do. Respondent advised her to ignore the creditor, but if they contacted the Longs again to tell them that the Longs were going into bankruptcy, and that if there were any questions or someone wanted information, that the caller should be referred to Mr. Blase.
“16. About November 9, 1971, Mrs. Long called respondent to ask respondent if it was legally permissible for the Longs to reaffirm their indebtedness on certain items with Personal Thrift Plan. Respondent advised Mrs. Long that it was permissible as long as there was a new contract for a new price.
“17. Sometime in the middle of November 1971, the Longs were four days behind with the payment on the new contract with Personal Thrift, who called the Longs and demanded immediate surrender of some property. Mrs. Long called respondent, who advised her that Personal Thrift could make the demand according to the contract and suggested that Mr. and Mrs. Long come to respondent’s office, get $15 of the $100 respondent had just been paid for fees the day before, and use that money to satisfy Personal Thrift. The Longs made other arrangements for the money and did not withdraw any money from the payment to respondent.
“18. Mr. Holloway appeared at the bankruptcy hearings.
“Conclusions of Law
“The Commissioner concludes, beyond a reasonable doubt, that the respondent, Robert E. Blase, is guilty of willful disobedience of the order of this court to forebear in the practice of law in these violations, to-wit:
“Violation No. 1.
“The respondent’s appearance before the Board of County Commissioners on July 28, 1971, constituted the practice of law.
“Violation No. 2.
“The acts of advising the Longs as to the legal rights assisting in preparing documents for filing in bankruptcy, issuing receipts on documented paper showing the respondent as an attorney, are each enjoying and engaging in the practice of law.
“Recommendation
“Your Commissioner recommends:
“(a) That for Violation No. 1 a suspension of the right to practice law be made for a period of three months in addition to the suspension heretofore ordered by this court on July 16, 1971;
“(h) That for Violation No. 2 a suspension of six months in addition to the suspension heretofore ordered on July 16, 1971, be imposed against the respondent, and that the respondent be ordered to pay a fine of $200 and be ordered to pay the costs of this action, including the expenses of the Commissioner and the court reporter herein.
“(c) That the two suspensions are to run concurrently.
(signed) Leo A. McNalley
“Leo A. McNalley, Commissioner”
On January 18, 1972, respondent appeared in person before this court in response to our order. At that time he was afforded the opportunity to and did personally present his defense, essentially reasserting his good faith and his inability to ascertain' just what constitutes the “practice of law.”
This court, having conducted its own independent examination of the record, concludes that the commissioner’s findings of fact are abundantly supported by the record, and they are adopted by the court.
The commissioner’s conclusions of law are also adopted; respondent’s conduct was undoubtedly the practice of law. State, ex rel., v. Perkins, 138 Kan. 899, 28 P. 2d 765; Depew v. Wichita Association of Credit Men, 142 Kan. 403, 49 P. 2d 1041. We are unimpressed by respondent’s argument that he believed in good faith that giving advice on the legal effect of a proposed transaction is not the “practice of law” merely because it does not involve an appearance in court.
This court, on the basis of its own individual examination of the evidence, concurs in the finding of its commissioner that the respondent is guilty beyond a reasonable doubt of the contempts charged in the amended accusation. The recommended penalties are deemed appropriate, except that the fine in our opinion should be $1,000; with that exception they are also adopted.
Hie result is that the respondent Robert E. Blase is found guilty of contempt as charged in each count of the accusation. He is:
(1) Ordered to pay a fine of $1,000 to the clerk of this court, together with the costs of this action, including the fees of our commissioner and his reporter;
(2) Suspended from the practice of law for an additional period of six months, expiring at midnight July 15, 1972, and until such t^jpe as the foregoing fine and costs are paid.
It is so ordered.
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The opinion o£ the court was delivered by
Fatzer, C. J.:
This is an appeal by the condemner from a jury verdict increasing the appraisers’ award in a condemnation proceeding.
The pertinent facts may be stated as follows: The landownersappellees and cross-appellants owned a quarter section of land some 600 feet north of the city limits of the city of Gardner, Johnson County. On July 1, 1968, the Board of County Commissioners of Johnson County proceeded to acquire by eminent domain easements for the widening and improvement of a county road. The project commenced at the northern boundary of the city of Gardner and extended in a northemly direction for about three miles.
The land to be taken from the appellees’ quarter section consisted of a strip fronting the existing road. It was 80 feet in width at the southern boundary, increasing to 100 feet, and then decreasing to 90 feet at the northern boundary. The total distance was 2,640 feet, and 4.18 acres were to be acquired.
The appraisers awarded the appellees $5,113 for the 4.18 acres taken. They were not satisfied with the award and on appeal to tire district court, a jury returned a verdict in favor of the landowners in the amount of $14,000, and judgment was entered on the verdict. The condemner has appealed. The appellees have cross-appealed from the order of the district court denying them the right to recover reasonable attorney fees.
The appellant first contends that W. E. Gault and Carolyn B. Gault, the original landowners, were not the real parties in interest to appeal from the appraisers’ award, and that the district court erred in overruling the condemner’s motion to dismiss the appeal. More detailed facts are presented on this issue.
The condemner deposited with the clerk of the district court, in the original eminent domain proceeding, the amount of the landowners’ award. This was done on August 16, 1968. A general warranty deed bearing the date of August 12, 1968, was executed by the original landowners conveying the quarter section in question to Western Lumber & Building Supply, Inc. The deed contained the usual covenants of warranty, but did not contain any reservations or exceptions other than a recital as to encumbrances. It was recorded in the register of deeds office of Johnson County on August 16,1968, at 4:19 o’clock p. m.
The record states:
“Plaintiff, W. E. Gault, testified at the hearing on the motion to dismiss that he acquired title to the real property in May or June of 1963 . . . That he sold the property to Western Lumber and Building Supply, Inc., of which his father, Ross Gault, was the only stockholder as of August 12, 1968. He and his wife signed the deed as grantees before the Notary Public on August •16, 1968, and that he, himself, recorded it at the Register of Deeds Office. .He was president of Western Lumber and Building Supply, Inc., but that he did not own any stock in the company.”
In overruling the condemner’s motion to dismiss, the district court stated:
“The Court further finds that on the 16th day of August, 1968, during the morning hours, the condemnor, Board of County Commissioners of Johnson County, Kansas, paid into the hands of the Clerk of the District Court of Johnson County, Kansas, the amount of the award of the appraisers;
“That during the afternoon hours of August 16, 1968, the plaintiff in this action, being Case No. 42113, plaintiffs W. E. Gault and Carolyn B. Gault, husband and wife, executed a deed to Western Lumber & Building Supply, Inc., to the northeast quarter of Section 23, Township 14, Range 22, in Johnson County, Kansas, conveying said real property to Western. Lumber & Building Supply, Inc., which deed was delivered to the vendee, Western Lumber & Building Supply, Inc., at 4:14 p. m. on August 16,1968.
“The Court determines, as a matter of law, that the taking by the Board of County Commissioners of Johnson County, Kansas, occurred as of the time of paying the amount of the appraisers award to the Clerk of the Court, and at said time title to the property so taken, or interest therein, the interest easement, I should say, therein, vested in the Board of County Commissioners, and as a consequence thereof, any conveyance of the real property would be subject to the taking by the Board of County Commissioners of Johnson County, Kansas.
“The Court further determines as a matter of law, that the plaintiffs, Gault, did not and could not convey that which was taken from them in the condemnation action.
“The Court further determines that their right to appeal from the award vested in Gaults at the time of the taking and that there has been no evidence of any transfer of interest in their right to appeal from the award of the appraisers in this case, and, accordingly, the plaintiffs, Gault, are proper parties to determine the correctness of the award of the appraisers in this case.
“Counsels attention is respectfully directed to K. S. A. 60-225, Subsection C, as amended by the laws of Kansas for 1965.
“Accordingly, the defendant’s motion is considered and overruled.”
On November 6, 1969, the condemner’s motion to vacate and set aside the judgment was heard by the district court. At the hearing, evidence was presented which would tend to establish the deposit of the award by the condemner was made sometime after 3:24 o’clock p. m. August 16,1968.
The district court, in overruling the condemner’s motion to vacate and set aside the judgment, stated in part:
“The Court: The Court determines that even though the condemnor now contends that the money was paid into the office of the Clerk of the District Court of Johnson County, Kansas, sometime after 3:24 p. m. on August 16, 1968, there is no showing by the condemnor that the money was not paid in and the taking of the easement consummated in advance or before the delivery of the deed from W. E. Gault to Western Lumber & Building Supply, Inc., and accordingly, determines as a matter of law, that the taking by the Board of County Commissioners of Johnson County, Kansas, occurred as of the time of the paying of the amount of the appraisers award to the Clerk of the Court, and further determines that at the time of paying said appraisers award into the Office of the Clerk of the Court, title to the property so taken or interest therein, vested in the Board of County Commissioners and consequently any conveyance by the landowners, W. E. Gault and his wife, Carolyn B. Gault, effected after that time, would be subject to the taking of the easement by the Board of County Commissioners of Johnson County, Kansas. The Court further determines that the plaintiffs, W. E. Gault and Carolyn B. Gault, could not convey that which had been taken, that which had previously been taken from them by condemnation. The Court further determines that the landowners right to appeal from the award vested in the landowners; that is, W. E. Gault and Carolyn B. Gault, at the time of the taking, and that consequently they are proper parties to determine the correctness of the award of the appraisers in this case. The Court further determines as a matter of law, that the measure of damages, being the difference of the entire property before the taking, in no way effects the landowners’ right to prosecute the appeal from the award of the appraisers. Accordingly, the condemnor’s motion is overruled.”
This court finds no basis for disturbing the district court’s finding the money was paid in and the land taken by the condemner before the title passed by the warranty deed. Findings of fact of a district court will not be set aside on appellate review where they are supported by substantial, competent evidence, although such evidence may be conflicting. (Isis Foods, Inc. v. Mo-Kan Enterprises, Inc., 205 Kan. 203, 468 P. 2d 113.) Where, as here, the condemner failed to establish the land was transferred before the money was paid into the office of the clerk of the court, there is no basis for the appellant’s contention the original landowners were not the real parties in interest and the proper parties to appeal from the appraisers’ award. As indicated, the 4.18 acres were acquired by the condemnation proceeding before transfer of the title to the land, and it follows the conveyance from the Gaults to the Lumber Supply Company did not include the land taken, or the .proceeds therefrom, in the absence of a specific provision in the deed. This court so held in Taylor Investment Co. v. Kansas City Power & Light Co., 182 Kan. 511, 322 P. 2d 817:
“Where an electric company, having the power of eminent domain, entered into actual possession of land necessary for its corporate purpose, without the consent of the owner of such lands, a subsequent vendee of the latter takes the land subject to the burden of the electric company, and the right to damages belongs to the owner at the time of the taking, and does not pass to a grantee of the land under a deed made subsequent to that time, unless expressly conveyed therein.” (Syl. ¶ 7.)
The appellant objected to appellees’ witness testifying as to other sales on the ground they were not comparable in size or in location. One sale so considered was of land 2.6 acres in size and just inside the city limits. The appellees’ land was 600 feet outside the city limits.
The question of comparable sales is a discretionary matter and presents a troublesome problem. There are no two tracts exactly alike. Where there is a reasonable basis for comparison, dissimilarities affect the weight and value of the testimony rather than its competency. (29A C. J. S., Eminent Domain, §273 [10], p. 1208.)
Whether the properties are sufficiently similar that the sale prices will have some bearing upon the value of the property being considered, must be left largely to the sound discretion of the district court, and this court should interfere only when such discretion is abused. The rule is well stated in Nichols’ The Law of Eminent Domain, Rev. 3d Ed., Vol. 5, Sec. 21.31, pp. 21-56, as follows:
“. . . Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the sound discretion of the trial court, which will not be interfered with unless abused. The exact limits, either of similarity or difference, or of nearness or remoteness in point of time, is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and character of the property and the circumstances of the case. It is to be considered with reference to the light thrown on the issue, and not as a mere method of raising a legal puzzle.”
"It has been stated that if properties are reasonably similar, and a qualified expert is of the opinion that the price brought by one either affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony . . .” (pp. 21-65.)
City boundary lines may not necessarily affect the similarity of properties if die land is subject to being taken into the city limits and lies close thereto. (Morgan v. City of Overland Park, 207 Kan. 188, 483 P. 2d 1079.)
Likewise, there is no merit in the appellant’s contention die district court erred in allowing testimony and evidence of sales of land that were not complete or absolute sales. The appellant directs our attention to the fact that offers to purchase real estate cannot be used to establish value in a condemnation proceeding (State v. Nelson, 126 Kan. 1, 266 Pac. 107), and that option contracts have also been excluded (City of Wichita v. Jennings, 199 Kan. 621, 433 P. 2d 351). We have no quarrel with the conclusions there reached. In neither case was there a binding contract. See, however, Wilcox v. Wyandotte World-Wide, Inc., 208 Kan. 563, 493 P. 2d 251.
In the case before us, the comparable property was sold under a binding contract for a deed, and the contract was binding on both parties. The controlling rule is stated in 31A C. J. S., Evidence, § 182 (2), p. 469, which reads:
“The price fixed in a contract of sale has been held admissible to prove the value of the land, but where the contract is not a firm, unconditional contract relating to the property in suit, the evidence is properly rejected. Option contracts have been held admissible and inadmissible.”
The appellant next contends the district court erred in permitting the landowners to introduce evidence of sales of real estate which were not submitted to its counsel prior to trial as directed by the court at pretrial conference.
It appears that at a pretrial conference held on March 5, 1969, the appellant submitted a list of witnesses and sales which it intended to rely on as being comparable to the tract in question. A copy was submitted to appellees’ counsel and also made an exhibit in the case. Evidence of sales which appellees intended to use were generally described in the record, but the district court directed tíre appellees to deliver to appellant within twenty days a written list setting forth the particulars of each sale they intended to use as evidence. The list was delivered some five and one-half months later, and only four days prior to the trial.
The specific objections made to previous sales as evidence were made on the grounds of remotenness of time; incomplete contracts of sale, and location of the property. Evidence of an offer of sale was rejected by the district court. Although counsel for appellant mentioned in his opening argument the delay in finding a list of the sales which appellees intended to use as evidence, he made no specific objection on such grounds. Where a ruling on an objection is not insisted upon, the ruling is waived. (State v. Childs, 198 Kan. 4, 11, 422 P. 2d 898.) Appellate courts will review only questions shown by the record to have been presented to the district court. (Rich v. Yoder, 170 Kan. 726, 228 P. 2d 533.) However, if we overlook the appellant’s failure to make a specific objection, and consider the question on its merits, this court would be faced with the question of the district court’s discretion. In Davis v. Best Cabs, Inc., 203 Kan. 930, 457 P. 2d 516, we held:
“The power to modify orders properly entered as a result of pretrial conference (K. S. A. 60-216) rests in the sound discretion of the trial court.” (Syl. ¶1.)
Other questions raised by the appellant have been considered and found to be without merit. We note briefly, however, the jury's verdict is supported by substantial evidence based upon present use of the quarter section, that is, agriculture and grazing purposes.
We now turn to the appellees’ cross-appeal from the order of the district court denying their application for costs, such as payment for expert witnesses and attorney fees. Appellees argue with some justification they are not fully compensated if their expenses of a successful appeal, including attorney fees, are not paid by the condemning authority. However, we find no provision in our statutes specifically providing for attorney fees in condemnation cases. In the absence of such a specific provision, attorney fees will not be allowed. In McGuire v. McGuire, 190 Kan. 524, 376 P. 2d 908, this corut stated:
“The law of this jurisdiction is well-established that attorney fees and expenses of litigation, other than court costs, incurred by a prevailing party in an action, are not chargeable as costs against the defeated party, in the absence of a clear and specific statutory provision therefor. See, e. g., State, ex. rel., v. Sage Stores Co., 158 Kan. 146, 145 P. 2d 830; Murrow v. Powell, 167 Kan. 283, 205 P. 2d 1193; Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P. 2d 775; Ablah v. Eyman, 188 Kan. 665, 682, 365 P. 2d 181.
“Of a certainty the rule of the decisions just cited is equally, if not more so, applicable to situations where defeated parties are seeking the allowance of attorney fees.
“In Maston v. Maston, 171 Kan. 112, 229 P. 2d 756, a child custody case, with specific reference to the provisions of G. S. 1949, 60-1507, we said at page 115 of the opinion that ‘The allowance of attorney fees is wholly statutory, and insofar as the instant case is not covered by statute, it is no different from any other law suit between the individuals where there was no contract to pay attorney fees.’” (l. c. 531, 532.)
A careful examination of the record discloses no trial errors that would justify a reversal of the judgment.
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The opinion of the court was delivered by
Owsley, J.:
This is a products liability case involving an express warranty. The plaintiff recovered a jury verdict in fhe trial court and from this judgment defendant appeals.
The defendant’s appeal is based upon two contentions: (1) The trial court erred in refusing to grant judgment for defendant as a matter of law, and (2) the trial court erred in refusing to give defendant’s requested instructions.
Plaintiff has been a journeyman electrician since 1958 and has been employed by Empire Electrical Contractors. In January, 1968, plaintiff installed a certain QMQB description panel board which included a 600 amp QMQB switch, at Kansas Cold Storage Company to bring its equipment up to city code specifications.
Defendant is the manufacturer of the 600 amp switch and has manufactured 10,000 to 11,000 switches since about 1960. Defendant, in its descriptive literature and specification sheets pertaining to the QMQB panel board, expressly warranted as follows:
“a. Integral handle mechanism for greater convenience. Handle mechanism and switch are combined into a single compact unit. This construction eliminates excess linkage, prevents misalignment as well as false indication of switch position.
‘Id. Cover interlock. Door opens only when switch is in “off” position. Interlock is voidable by authorized personnel.
“c. A cover interlock shall prevent opening the door over the fuse compartment unless the switch is in the “off” position.”
After completing the installation, plaintiff switched the switches off and on and they all worked. He opened and shut the switch door several times but did not try to open the door while current was going through the box.
In late May, 1968, there was a malfunction in the electrical system at Kansas Cold Storage, apparently caused when a bolt of lightning struck the plant during an electrical storm. A 100 amp switch on the main description panel was charred and burned and there was visible smoke damage to the panel. Plaintiff was sent to effect repairs on Sunday of the Memorial Day weekend, June 2, 1968.
One of the three sets of movable contact blades fused or welded together, and in such condition the switch door opened with the switch in “off” position. An electrical charge of 440 volts remained in the welded phase of the three-phase switch.
Just prior to opening the panel door, plaintiff turned off two 100 amp switches and left a compressor on which was operated by a 200 amp switch. When he turned the 600 amp switch to “off” the compressor motor cut off and the room became completely quiet. When two of three phases are disconnected in a three-phase system, any motor in the system will not run even though 440 volts are still passing through one of the phases.
Plaintiff had two testers with him with which he could have tested the line for electricity, but he did not use them. In reliance on the “off” indicator of the 600 amp switch, plaintiff began to disconnect the “A” phase of the 600 amp switch with a screwdriver and removed one screw without incident. While removing a second screw, plaintiff received an electrical shock and bum which threw him part way across the room. The lights in the plant were off and plaintiff was using existing natural light from an open door to do his work.
When plaintiff opened the 600 amp switch, he observed the visible blades or clappers and they appeared straight, but he did not look to see whether they were up or down and he did not make certain they were either up or down. Plaintiff’s employer testified that a person looking at the switch could not tell if the visible contacts were down or “on” unless he were familiar with the equipment; and he added that he would expect the man who installed the equipment to be familiar with it.
The “C” phase contact blades were welded shut, but the shock was received by plaintiff from the “A” phase. Voltage was running from the “C” phase of the 600 amp switch, through the 200 amp switch, through the compressor, out on “A” phase, back through the 200 amp switch, then up to the top of the 600 amp switch, on “A” phase.
After plaintiff’s injury, Mr. Bare and Mr. Just of Shelley Electric were called to the plant. Electricity was disconnected at the transformer by Kansas Gas and Electric Company, the 600 amp switch removed, and the plant “temporaried” back into operation.
Mr. Just, a journeyman electrician, testified that he could not visually tell whether the blades on the 600 amp switch were open or shut, but assuming that all equipment went off when switches were thrown, in his opinion it would be safe to turn the 600 amp switch to “off.”
Mr. Bare, a journeyman electrician of twenty years, testified that he was amazed that with the switch in “off” position there was still voltage. It was his opinion that, assuming all equipment went off when all switches were shut off, and that the 600 amp switch opened and one lug loosened, nothing else would necessarily have to be done before loosening the other lugs.
About two months after return to work, plaintiff returned to Kansas Cold Storage and installed a new 600 amp switch.
At trial plaintiff claimed permanent damage or injury due to burns on his arms, face, hands, and chest, with scarring. The trial court overruled defendant’s numerous motions for judgment and submitted the case to a jury. The jury returned a verdict for the plaintiff.
Plaintiff’s cause of action is based on the breach of an express warranty. He claims he is entitled to recover if he proves the product did not function as warranted and damage resulted therefrom.
When a manufacturer places a product on the market he impliedly warrants that the product is fit and suitable for the purposes it was sold. Further, that the product is safe and will not cause harm or injury to any person using the same in a normal manner. This is the obligation imposed on the manufacturer by operation of law in the interest of protecting the public.
In the highly competitive world of marketing and selling, manufacturers must seek and explore methods of increasing the sale of their products. One of these methods is the use of many forms of advertising which may include statements that their products will perform or not perform in a certain way. If pertinent, the advertising may claim certain safety features that assure a purchaser that the product will operate in a manner on which the purchaser can rely and no injury will occur.
These warranties are express rather than implied. A product so marketed is vested with implied warranties, but only such other warranties as the seller may express. Express warranties may extend to broader field and to broader responsibility than those implied. They may extend to any degree for which the seller wishes to assume responsibility. To the extent they exceed the implied warranty, they supplant the implied warranty. The implied warranty may remain intact, but only to the extent it has not been preempted.
We attempted to clarify the relation between express warranty and implied warranty in Oliver Farm Equipment Co. v. Rich, 134 Kan. 23, 4 P. 2d 465, stating:
“. . . There is a division of authority as to whether an express warranty of quality will exclude an implied warranty of fitness for the purpose for which the article is manufactured. We think the better rule is, which is supported by authority consistent with the decisions of this court, where the manufacturer sells a machine on a written order describing it, an express warranty of quality will not exclude an implied warranty that the machine will do the things which the description necessarily implies. There is nothing in the express warranty that excludes the obligation on the part of the appellee to deliver the engine described in the written order. . . .” (p. 28.)
Plaintiff established that defendant had expressly warranted the handle would not give a false indication, i. e., indicate it was “off” when in fact it was “on”; that the interlock device would preclude opening the door unless the handle was in the “off” position which in turn indicates: (a) when the handle is in the “off” position no electricity will flow through the switch, and (b) the door will not open unless the handle is “off” and in turn no electricity will flow through the switch. Plaintiff further states the warranty was breached in that the handle gave a false indication the electricity was off when in fact it was not off, and that the interlocking device permitted the door to open, again indicating the electricity was off when in fact it was not off. Plaintiff further argues that on proof of these facts and proof the breach was the cause of his injuries, he is entitled to recover.
Defendant claims that in order for plaintiff to recover he must show that the product was defective at the time it left the hands of the manufacturer, and cites Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380, which was an action based on the breach of an implied warranty. He further argues that the plaintiff admitted as shown in the pretrial order that the product was not defective at the time it left the hands of the manufacturer. He further states that the court found as a matter of law that the product was not defective at the time it left the hands of the manufacturer. He concludes therefor that he was entitled to a directed verdict.
As hereinafter shown, this is a case of first impression. We do not have the benefit of previous decisions of this court involving express warranties except those actions by buyers against sellers, typical of which is Naaf v. Griffitts, 201 Kan. 64, 439 P. 2d 83. The issue here was not involved in the buyer-seller cases.
We recognize that there is a distinction between express warranty and implied warranty as hereinbefore demonstrated. We feel that the characteristics of express warranty actions are demonstratéd in Hansen v. Firestone Tire and Rubber Company, 276 F. 2d 254, (6th Cir. 1960), involving an express warranty by the defendant manufacturer that its tires were safe enough to cling to the road on dangerous curves and provided greater road stability at any speed. As a result of the failure of the tires while rounding a curve the plaintiff asserted liability against the defendant on the grounds of a breach of an express warranty. The court held that there was ample evidence to sustain the jury’s finding as to the manufacturer’s breach of an express warranty that the tires were safe enough to cling to the road on dangerous curves and had greater road stability at any speed, and that such breach was the proximate cause of the plaintiff’s injuries. On page 258 the court said:
“In an action of the present character, the burden of proof resting upon the plaintiff entails merely demonstration that the goods did not have the properties warranted. In the absence of controverting evidence adduced by the defendant, which convinces the jury that the goods were as warranted, plaintiff should prevail. Hertzler v. Manshum, 228 Mich. 416, 200 N. W. 155. The plaintiff is not required to show the technical causation of the goods’ failure to match their warranty. Nor is it necessary that the manufacturer’s negligence be shown as the cause of such failure.”
We approve the reasoning in the Hansen case. A summarized version of the express warranty in this case means that there was no electric current running through the panel when the handle was in the off position. This warranty was breached by the existence of electric current in the panel, directly contrary to the warranty expressed by the defendant.
Express warranty was not involved in Evangelist. The rule of Evangelist that the product must be defective at the time it leaves the hands of the manufacturer is inconsistent with express warranty. A manufacturer may by express warranty assume responsibility in connection with its products which extends beyond liability for defects. All express warranties must be reasonably construed taking into consideration the nature of the product, the situation of the parties, and surrounding circumstances. However, defects in the product may be immaterial if the manufacturer warrants that a product will perform in a certain manner and the product fails to perform in that manner. Defects may be material in proving breach of an express warranty, but the approach to liability is the failure of the product to operate or perform in the manner warranted by the manufacturer.
Defendant claims under the heading, “Defenses Dependent on Actions of Plaintiff,” that contributory negligence and assumption of risk are defenses available to a manufacturer in a products liability case. Further, the trial court should have ruled as a matter of law that plaintiffs own acts in deliberately and voluntarily exposing himself to a known danger barred him from recovery.
In our recent case of Bereman v. Burdolski, 204 Kan. 162, 460 P. 2d 567, we placed contributory negligence and assumption of risk in implied warranty cases in final perspective by holding:
“. . . Along with many courts we have generally adhered to the view contributory negligence and assumption of risk are separate defenses but confusion has sometimes resulted from efforts made to distinguish them in all cases. We shall not attempt further refinement here — instead we shall try to avoid semantic problems. Several courts have now abandoned use of the phrases [sic] contributory negligence and assumption of risk in implied warranty cases and, instead, approach the problems of a defense of that character in terms of causation. . . .” (p. 165.)
Also, in Syllabus ¶ 1 we said: “An unreasonable use of a product after discovery of a defect and becoming aware of the danger is a defense to an action for damages for breach of implied warranty of fitness.” It logically follows that before this rule is applicable the injured person must have discovered the defect and must have been aware of the danger. Whether or not this is true is a question of fact.
In Bereman, the court quoted at length from 2 Frumer-Friedman, Products Liability (16.01 [3]). In this quote appears the following:
“. . In the case of an express warranty, contributory negligence should clearly not be a defense, where the injury results from an unknown defect [sic] warranted against, and the contributory negligence is just that and not the equivalent of unreasonable exposure to a known and appreciated risk. . . (p. 169.)
We conclude that contributory negligence and assumption of risk in their normal meaning are not defenses to an action based on the breach of an express warranty.
Defendant further claims:
“. . . [A] reasonable construction must be placed on any express warranty issued by defendant, and the risk for which defendant is legally responsible must be stated in terms of reasonably anticipated or foreseen circumstances resulting from an unbroken chain of causal relationship and without some intervening occurrence or accidental or substantial change in the condition of the warranted product. Defendant cannot in law be held to have warranted the 600 amp switch under any and all circumstances or against any unforeseen or unanticipated occurrence, event or subsequent change.”
Our Kansas decisions on foreseeability in express warranty actions are limited to actions by buyers. In Naaf v. Griffiths, supra, Syl. ¶ 4, we have stated the rule as follows:
“. . . [I]n a proper case, special or consequential damages may be recovered where they proximately result from the breach and may reasonably be regarded as having been within the contemplation of the contracting parties.” (p. 64.)
Our leading case on general foreseeability is Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, in which defendant discharged a rifle at some dogs, the bullet ricocheting off frozen ground and hitting plaintiff who happened to be passing along a nearby road. We held that the law does not make defendant an insurer of consequences which reasonable foresight could not have prevented.
In Whiting Corporation v. Process Engineering, Inc., 273 F. 2d 742 (1st Cir. 1960), the court pointed out that an express warranty and an implied warranty may both exist. In this situation, the court extends the express warranty to the field of warranty covered thereby and extends implied warranty of reasonable fitness for the purpose for which the product was bought. The court further said at page 745:
“. . . It is not necessary for us to decide where this case falls. An implied warranty of fitness does not extend beyond operating conditions that the seller knew of, or should reasonably have anticipated. . . .”
We believe, in the absence of other explanation, that the source of electricity resulting in damage to the panel must have been electricity from lightning. The parties each argue as to foreseeability of lightning striking an electrical circuit.
Plaintiff says: “. . . [L]ightning is not such a rare phenomenon as to tax the memory of man, nor is the incidence of lightning striking an electrical system so unusual as to be considered unforeseeable. . . .”
Defendant says:
“. . . Not even a strict liability state would hold that defendant at bar should reasonably anticipate that a 600 amp switch, tested to 3600 amps, and installed by plaintiff inside a building, would be struck by a lightning charge carrying something in excess of 82,500 amps, welding one of three sets of contact blades — and further foresee that plaintiff — a journeyman electrician who installed the equipment and knew the visible blades were for inspection purposes — would come to repair the system, and after observing smoke damage and being informed of the hghtning, work the system “hot” without checking the line for charge with either one of his two readily available testers — and further foresee that if plaintiff left a left side amp switch open, that electricity from the C-phase of the 600 amp switch would travel the internal circuitry of the ice plant and shock plaintiff while working on the A-phase.”
Although plaintiff argues foreseeability is not applicable in express warranty cases, we believe the better reasoning is to the contrary. We do not charge defendant with the obligation of foreseeing all the facts made in defendant’s argument. We feel that the jury might reasonably charge defendant with the duty of foreseeing that an electrical circuit might be struck by lightning and damage occur by reason of the breach of the express warranty. We cannot say as a matter of law that the incidence of lightning striking an electrical system is such a rare phenomenon under the circumstances in this case that it could not have been reasonably foreseen or anticipated. (See Whiting Corporation v. Process Engineering, Inc., supra, and Arnold v. United States Rubber Company, 203 So. 2d 764 [La. App. 1967].)
In view of the foregoing we conclude that defendant’s motions for judgment were properly overruled. From what has been said, we necessarily must also find that the trial court erred in refusing to give an instruction on the defendant’s duty to foresee or reasonably anticipate. We approve the basic rule contained in defendant’s requested instruction No. 15, but it does not fully cover the foreseeability rule expressed in this opinion.
The significance of the defense asserted by defendant that this injury was solely and proximately caused by an “Act of God” should be analyzed in relation to the facts in this case. The definition of an “Act of God,” repeatedly used in our decisions, was last expressed in Lee v. Mobil Oil Corporation, 203 Kan. 72, 452 P. 2d 857, as follows:
“An ‘act of God’ as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent.” (Syl. ¶ 1.)
Also, in Fairbrother v. Wiley’s, Inc., 183 Kan. 579, 331 P. 2d 330, we stated:
“Where an act of human negligence and some force of nature have concurred to produce an accident and injury, the fact that the force of nature contributed to the accident and injury does not excuse the human negligence where the actor should have anticipated the occurrence of such force of nature and foreseen that failure to exercise reasonable care under the circumstances would probably cause injury, nor is the actor relieved from liability for negligence on the excuse that the proximate cause was a so-called ‘Act of God’ where the injury would not have occurred but for the act of human negligence which contributed thereto.” (Syl. If 3.)
Since an “Act of God” depends upon the inability of a human being to foresee its occurrence, the role of an “Act of God” as a defense would be fully covered by the requirement of foreseeability as previously discussed in this opinion. In view of this we believe the issues in this case will be more clearly defined by eliminating an instruction defining an “Act of God.” We therefore hold that requested instruction No. 14 should not have been given, but that the liability of the manufacturer based on the breach of an express warranty when coupled with a foreseeable intervening cause should be fully covered.
We hold that the trial court did not err in refusing to enter judgment for defendant as a matter of law, but did err in failing to instruct in accord with the law as determined herein.
Reversed with directions to grant defendant a new trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Foth, C.:
This is an appeal by a husband from the trial court’s ruling on a postdivorce motion to discontinue alimony previously awarded to the wife.
The journal entry of divorce, which became effective January 11, 1968, dealt with child custody and child support, allocated the parties’ real and personal property, and provided: “The plaintiff is allowed alimony in the total sum of $7,500.00 payable at the rate of $75.00 per month until fully paid or until further order of the court.”
Appellant’s motion to discontinue alimony was filed April 9, 1969, and was based on the fact that his former wife had remarried in January, 1969. At the hearing on the motion the fact of appellee’s remarriage was established through judicial notice; no other evidence, except for a showing of the amount of alimony previously paid, was introduced. The trial court entered an order reducing the total alimony obligation of appellant to $5,000 and reducing the rate of payment to $50 per month. Appellant’s motion to reconsider was denied, the trial court adhering to its original decision, and this appeal followed.
If the original award of $7,500 was in fact alimony, this case is controlled by Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465. In that case three members of this court were of the view that the remarriage of a recipient of alimony should operate ipso facto to terminate the obligation to pay future alimony. The majority were unable to go so far, but did hold that proof of remarriage makes a prima facie case requiring termination of future alimony unless the recipient proves special circumstances justifying its continuance. No such evidence was introduced here, and Herzmark would appear to dictate a reversal.
The trial court, however, both in its original memorandum decision on the motion to modify and in its memorandum decision on the motion for reconsideration, takes the position that the award of $7,500 was in the nature of a property settlement. Thus the court stated in its first memorandum: “This Court does not believe that the mere fact of remarriage entitles one to be relieved of its obligation whether the matter be termed ‘alimony’ or ‘property division.’ ” On reconsideration the court stated: “The Court believes that under the provisions of K. S. A. 60-1610C the Court may award money as a division of property. The Court in his Memorandum Decision of May 15th reduced the amount from $7,500 to $5,000.”
These statements, we believe, demonstrate an impermissible confusion and commingling of the concepts of property settlement and alimony. As pointed out in Herzmark, the two are separate and distinct things, separately authorized by statute and serving different functions. The first operates retrospectively to adjust the rights of the parties to property already accumulated, while the second is prospective and deals with future support. As a result, we said there and emphatically reiterate here, “When the original decree of divorce is entered care should be exercised so that any payments to equalize the division of property are not included with payments for future support denominated as alimony.” (Id., at 52. Emphasis supplied.)
Here, the original decree made extensive provision for the allocation of the property of the parties. At trial appellant was cross-examined as to his ability to pay “alimony” and his views on a reasonable sum. The $7,500 item was denominated in the decree as “alimony” and was made payable only “until further order of the court.” Appellant’s counsel originally urged that the decree should provide for the termination of alimony upon appellee’s remarriage, citing Herzmark to the trial court, but at that time the court wished to reserve its decision on the question. The court’s reservation of the right to modify the sum and the subsequent order in fact modifying it are wholly inconsistent with the concept of a property settle ment. A property division, once it becomes final, is beyond the power o£ the court to modify. Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846, Syl. ¶ 5. Hence, if the $7,500 were purely a property settlement, the trial court’s action in reducing it would have been erroneous.
From the record as a whole it appears that at the time the divorce was granted both court and counsel regarded the sum as alimony. This being so, in the absence of evidence on behalf of the appellee the court’s order of modification should have been an outright termination, cancelling the appellant’s obligation for any installments which had "not already become due” at the time he filed his motion. K. S. A. 1970 Supp. 60-1610 (c); cf. Ortiz v. Ortiz, 180 Kan. 334, 340, 304 P. 2d 490.
Appellee urges that we should not reach the merits of this appeal because of an alleged failure of appellant to serve his order for transcript upon the court reporter within the time prescribed by Rule No. 6 (a). A motion based on this ground was presented to and overruled by the trial court. The record on this point is not clear, but assuming the question is before us we find no abuse of the trial court’s discretion in refusing to dismiss the appeal.
The order of the trial court is reversed and the cause is remanded for further proceedings in accordance with this opinion.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a declaratory judgment action brought by the Canal Insurance Company to determine whether it is obligated on an assigned risk automobile liability insurance policy covering Danny Sinclair as the operator of a non-owned vehicle. The policy was issued as proof of financial responsibility under the provisions of the Kansas Motor Vehicle Safety Responsibility Act.
The Canal Insurance Company seeks to determine whether it is required to defend Danny Sinclair in a personal injury action brought against him and David Shultz by Karl L. Howard as a result of an automobile accident, and whether it is obligated to pay any judgment rendered against Danny Sinclair.
The issues involve an interpretation of the insurance contract and a determination from the stipulated facts as to whether the vehicle operated by Danny Sinclair at the time of the accident was an owned or non-owned vehicle.
The case was tried to the lower court on a stipulation of facts.
The Canal Insurance Company (appellant) issued a standard automobile liability policy to Danny Sinclair with the exception of an E-24 endorsement. The policy period was from August 18, 1967, to August 18,1968. Insofar as material herein the E-24 endorsement provided:
“It is hereby understood and agreed that Paragraph III (Definition of Insured) of Insuring Agreements is hereby eliminated and Paragraph V (Use of Other Automobiles) is amended to apply only to the NAMED INSUBED while operating non-owned vehicles.” (Emphasis added.)
Danny Sinclair, a resident of Hodgeman County, Kansas, had his driver’s license revoked and in order to obtain a new license, he was required to obtain liability insurance. On the 22nd day of August, 1967, he received the policy of insurance as above indicated from the Canal Insurance Company under the assigned risk plan. To comply with the Motor Vehicle Safety Responsibility Law the Canal Insurance Company deposited a copy of the policy with the Motor Vehicle Department and completed an SR-22 form which accompanied the policy. This form indicated that the policy was issued to Danny Sinclair as an “Operator’s Policy — Applicable to any non-owned vehicle.” It further certified that Canal had issued to Danny Sinclair a motor vehicle liability policy as required by the Financial Responsibility Laws of Kansas, which policy was in effect on August 18, 1967.
The policy of insurance in question was transmitted to Danny Sinclair on the 22nd day of August, 1967, along with a letter of explanation stating in part:
“We are enclosing your auto liability policy at this time. The insurance has been filed with the state which is part of the requirement in securing your driver license.
“Should you purchase a car, be certain that you notify us as this policy covers non-owned vehicles only.”
At the time the policy was issued to Danny he was driving a 1956 Chevrolet automobile which was titled in the name of his father, Harry L. Sinclair. Thereafter, in order to acquire a 1957 Chevrolet automobile, the 1956 Chevrolet automobile was traded in and Danny Sinclair signed a Kansas Security Agreement (Chattel Mortgage) agreeing to pay an unpaid balance of the purchase price for the 1957 Chevrolet in the amount of $300 in monthly installments. The 1956 Chevrolet automobile so traded had been purchased by Harry L. Sinclair, Danny’s father. The 1957 automobile was also titled in the name of Harry L. Sinclair, Danny’s father. The certificate of title to the 1957 Chevrolet showed on its face the lienholder or secured party to be “U. C. I. T.” The Kansas Security Agreement (Chattel Mortgage) signed by Danny Sinclair was assigned by the dealer to “Universal C. I. T. Credit Corporation” of Dodge City, Kansas. The first installment payment under the security agreement was due January 14, 1968, and was not paid when due.
On or about the 10th day of February, 1968, the 1957 Chevrolet automobile was under the control and management of Danny Sinclair. He had lived with his parents at their home in rural Hodgeman County, Kansas, until approximately February 3, 1968, at which time he obtained employment in Spearville, Kansas, and moved to Spearville taking the 1957 Chevrolet automobile with him for his use and enjoyment there.
After midnight on the 10th day of February, 1968, the time here in question, Danny Sinclair was driving the 1957 Chevrolet automobile when he was involved in a head-on collision with an auto-bile driven by David Shultz, containing two passengers, Karl Howard and James L. Linenberger. Danny was alone at the time. Linenberger died as a result of the collision and Howard sustained injuries of a serious nature.
Upon being notified of the collision the Canal Insurance Company investigated the matter and thereafter notified Danny and his parents that it was denying coverage. Subsequently, two actions were filed against Danny in the district court of Ford County, Kansas. In an effort to resolve the question of coverage this declaratory judgment action was filed March 21, 1969.
The trial court made findings in accordance with the stipulated facts. It also found that Harry L. Sinclair was the legal title holder of the 1957 Chevrolet automobile; that Danny Sinclair, the insured, was a non-owner; and that the policy of insurance was issued in accordance with the provisions of the Motor Vehicle Safety Responsibility Act of Kansas. It thereupon concluded the obligation of the Canal Insurance Company was prescribed by the statute which was a part of the policy, and the provision of the policy excluding liability, which the insurance company assumed under the statute, could not be given effect. It held the Canal Insurance Company liable to furnish a defense for Danny Sinclair, and that it would be liable for any loss to the insured which may be imposed upon him arising out of the use of the vehicle involved. Appeal has been duly perfected.
Under Item No. 4 of the insurance policy giving the descrpition of the automobile appears the following:
“Non-Ownership in Accordance With The E-24 Endorsement Attached as a Part of This Policy”
The appellant contends the trial court erred as a matter of law in finding the Canal Insurance Company owed Danny Sinclair a defense. The appellant argues the E-24 endorsement to the policy is not vague nor ambiguous, but limits automobile liability coverage for Danny to the following situations:
“A. When he is involved in a collision while driving or operating a vehicle not owned by him.
“B. When he is involved in a collision while driving or operating a vehicle which was not owned by him nor furnished to him for his regular use.”
The appellant contends that absent either o£ the above situations, it is not on the risk.
While the appellant concedes it prepared the contract, and any ambiguity or uncertainty should be resolved in favor of the insured, it contends the policy is not ambiguous because of a specific provision under Insuring Agreements No. V. (c). In material part the policy reads:
“V. Use of Other Automobiles: If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy with respect to said automobile applies with respect to any other automobile, subject to the following provisions:
“(c) This insuring agreement does not apply:
“(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse;”
The appellant contends on the stipulated facts the 1957 automobile was either owned by or furnished for the regular use of Danny and therefore coverage was specifically excluded by the provisions of the policy.
It is to be noted the E-24 endorsement to the policy says nothing concerning an automobile furnished for the insured’s regular use. The endorsement amends Paragraph V (Use of Other Automobiles) of the policy to apply only to Danny Sinclair while operating non-owned vehicles.
Where a provision of an insurance policy is susceptible of different constructions, it is to be construed most favorably to the insured, and if the insurer intended to restrict its coverage, it should use language clearly stating its purpose. (Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 292 P. 2d 711; and Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 483 P. 2d 1072.)
Assuming the policy to be ambiguous regarding the E-24 endorsement, the effect of the E-24 endorsement, construing the policy in accordance with the above rule, is to eliminate Paragraph V from the policy completely. Furthermore, the effect of the E-24 endorsement eliminates Paragraph V from the policy when the provisions of the Kansas Motor Vehicle Safety Responsibility Act are read into the policy. (See K. S. A. 8-750 (c), infra.)
The fact, therefore, that the 1957 Chevrolet automobile was furnished to Danny for his regular use is immaterial in resolving the issue of coverage under the policy of insurance issued by the appellant.
Was the 1957 Chevrolet owned by Danny Sinclair at the time of the accident in question, on the stipulated facts, and thereby excluded from coverage under the E-24 endorsement?
The policy in question was certified as proof of financial responsibility as required by K. S. A. 8-747 (b) (1) and K. S. A. 8-748, the applicable statutes at the time here in question. Under these circumstances Paragraph No. 5 of the Conditions of the policy applies. It provides:
“5. Financial Responsibility Laws-Coverages A and B: When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.”
Danny Sinclair purchased a non-ownership' policy from the appellant, and it certified to the Kansas authorities on an SR-22 form, that it had issued a non-ownership operator’s policy to Danny Sinclair. The appellant’s policy of insurance was certified by it as proof of Danny Sinclair’s financial responsibility in compliance with K. S. A. 8-748, in order that Danny Sinclair might obtain a driver’s license. Therefore, the Motor Vehicle Safety Responsibility Act became a part of the policy, including the act’s “Definition of Ownership.”
The rule is well established in Kansas that where a policy of insurance is issued to an insured in compliance with the requirements of a statute, the pertinent provisions of the statute must be read into the policy, and no provisions of the policy in contravention of the statute can be given effect. (Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918, opinion denying rehearing 143 Kan. 771, 57 P. 2d 16; Millers Nat’l Ins. Co. v. Bunds, 158 Kan. 662, 149 P. 2d 350; Cuddy v. Tyrrell, 171 Kan. 232, 237, 232 P. 2d 607; and Sterling v. Hartenstein, 185 Kan. 50, 341 P. 2d 90, and cases accumulated at page 54.)
Condition No. 5 of the policy recognizes that the Motor Vehicle Safety Responsibility Act is a part of the policy.
The Kansas Motor Vehicle Responsibility Act authorizes two types of insurance coverage as being acceptable under the act. The pertinent provisions of K. S. A. 8-750, applicable herein, provide:
“(a) A ‘motor-vehicle liability policy’ as said term is used in this act shall mean an ‘owner’s policy’ or an ‘operator’s policy’ of liability insurance, certified as provided in section 27 [8-748] or section 28 [8-749] of this act as proof of financial responsibility, and issued, except as otherwise provided in section 28 [8-749], by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.
“(c) Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him, within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner’s policy of liability insurance.
“(d) Such motor-vehicle liability policy shall state the name and address of the named insured, the coverage afforded by the policy, the premium charged therefor, the policy period, and the limits of liability, and shall contain an agreement or be endorsed that insurance is provided thereunder in accordance with the coverage defined in this act as respects bodily injury and death or property damage, or both, and is subject to all the provisions of this act.
“(f) Every motor-vehicle liability policy shall be subject to the following provisions which need not be contained therein: (1) The liability of the insurance carrier with respect to the insurance required by this act shall become absolute whenever injury or damage covered by said motor-vehicle liability policy occurs; said policy may not be canceled or annulled as to such liability by any agreement between the insurance carrier and the insured after the occurrence of the injury or damage; no statement made by the insured or on his behalf and no violation of said policy shall defeat or void said policy. (2) The satisfaction by the insured of a judgment for such injury or damage shall not be a condition precedent to the right or duty of the insurance carrier to make payment on account of such injury or damage. (3) The insurance carrier shall have the right to settle any claim covered by the policy, and if such settlement is made in good faith, the amount thereof shall be deductible from the limits of liability specified in subdivision 2 of subsection (b) of this section. (4) The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of this act shall constitute the entire contract between the parties.” (Emphasis added.)
The policy here issued was an operators policy which narrowed the coverage to the insured, Danny Sinclair, only. It does not cover anyone else. Under 8-750 (c) above, Danny was insured against loss from liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him. Provisions of the policy at variance therewith are ineffectual.
For purposes of the Kansas Motor Vehicle Safety Responsibility Act the term “owner” has been defined in K. S. A. 8-722 as follows:
“ 'Owner.’ A person who holds the legal title of a vehicle, or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purposes of this act.” (Emphasis added.)
The act does not define a “non-owner,” but this would seem unnecessary in view of the fact that the term “owner” has been defined. The policy of insurance was certified as an “operator’s policy” which is defined in the act. (8-750 [c], supra.)
It was stipulated the legal title to the 1957 Chevrolet automobile was in the name Harry L. Sinclair, the father of Danny Sinclair. The certificate of title which was made a part of the stipulation so states. In the certificate of title to the automobile in question the Motor Vehicle Department of Kansas certified, as authorized by K. S. A. 8-135, that Harry L. Sinclair “is the legal owner of the vehicle described, subject to interest as shown.” (Emphasis added.) On the facts in this case Danny Sinclair was a “non-owner” of the vehicle he was operating, and the other alternatives enunmerated under the definition have no application.
If it be argued that Danny Sinclair was a mortgagor of the vehicle entitled to possession in accordance with language in the security agreement (see the definition of “owner” in 8-722, supra, above quoted), it is nullified by the certificate of title showing Harry L. Sinclair to be the owner and the mortgagor. The certificate of title disclosed the lien of Universal C. I. T. Credit Corporation on the motor vehicle.
The security agreement erroneously recites (in small print on the form) that the certificate of title was delivered to the customer (Danny Sinclair) purchasing the car from the secured party. Harry L. Sinclair on the record here presented had legal title. He had a substantial investment in the 1957 Chevrolet automobile, which he subjected to a lien in the amount of the unpaid purchase price.
As to the ownership of motor vehicles Kansas is a “title” state. K. S. A. 8-135 (c)(6) provides:
“(6) It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.”
Subsequent amendments to the statute, here applicable, have not changed the foregoing provisions. (Amendment by L. 1971, ch. 18, § 6, has not materially altered the substance of the section.) The statute was construed in Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P. 2d 931. The court there said, that as a matter of public policy 8-135 (c) (6), supra, should be strictly enforced for the protection of third persons who suffer at the hand of a buyer who has obtained possession and control of an automobile from the seller, but has not received an assigned certificate of title. In considering the term “owner” the court made reference to cases from other jurisdictions, and then observed:
“. . . Representative of these cases is Sabella v. American Indemnity Co., supra [Mo. 372 S. W. 2d 36], where it was held that until a certificate of title, properly assigned, is delivered by the seller to the buyer, the buyer does not become the owner of the automobile; . . .” (pp. 382, 383.)
The appellant relies on K. S. A. 8-126 (n), and contends the legal title holder of the vehicle cannot be the only criterion of determining ownership as contemplated by the insurance policy. The cases relied upon involve questions of ownership as between partners (Crow v. Hershberger, 170 Kan. 492, 226 P. 2d 846); donor and donee (In re Estate of Baumstimler, 159 Kan. 316, 153 P. 2d 927); and the determination of an insurable interest in a party paying for a vehicle, but having no certificate of title or bill of sale issued for the vehicle (Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 211 P. 2d 113). While the statute cited by the appellant is identical to 8-722, supra, which is in the Motor Vehicle Safety Responsibility Act, it is not applicable here nor are the cases cited by the appellant. They did not arise under the Motor Vehicle Safety Responsibility Act, but involved controversies over contractual interests in motor vehicles. The parties involved were related by contract. This court has said that 8-135, supra, was passed to protect the rights of such persons as mortgagees and innocent purchasers and for the benefit of the general public. (Crow v. Hershberger, supra.)
The purpose of the Kansas Motor Vehicle Safety Responsibility Act has been succinctly stated in our cases. It is to provide protection for the members of the public in their use of the highways within the state, and to require security from drivers as well as owners of motor vehicles coming within the purview of the act. (Agee v. Kansas Highway Commission, 198 Kan. 173, 422 P. 2d 949; and Miller v. State Farm Mutual Automobile Ins. Co., 204 Kan. 694, 698, 466 P. 2d 336.)
Once a motor vehicle liability policy is issued pursuant to the Kansas Motor Vehicle Safety Responsibility Act, liability of an insurance carrier shall become absolute whenever injury or damage covered by the policy occurs. (K. S. A. 8-750 [/].) In Miller v. State Farm Mutual Automobile Ins. Co., 204 Kan. 694, 466 P. 2d 336, the court said:
“Subsection (/) is often referred to as a ‘frozen’ or ‘absolute’ liability provision in discussions of financial responsibility laws. It provides that with respect to insurance required by the Act the liability of an insurance carrier shall become absolute, whenever injury or damage covered by the policy occurs. This subsection, in other words, cuts off policy defenses which might otherwise be available to a carrier after a policy is certified and injury or damage occurs which is covered by the policy.” (pp. 700, 701.)
At best the action of Danny Sinclair in signing the security agreement for the 1957 Chevrolet automobile was an attempt to violate the terms of the policy here in question, but under 8-750 (f) (1), supra, this was ineffectual to defeat or void the policy of insurance. If the security agreement be viewed as evidence of a sale between the dealer and Danny Sinclair, the sale would be fraudulent and void. At the time the auto was delivered no certificate of title with an assignment thereof passed between the dealer and Danny Sinclair.
The appellant’s construction of the automobile liability insurance policy in question conflicts with the clear and mandatory provisions of the Kansas Motor Vehicle Safety Responsibility Act.
In conclusion we find the trial court did not err in construing the policy and in applying it to the stipulated facts of this case.
The judgment of the lower 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 relief in a proceeding commenced pursuant to K. S. A. 60-1507.
On September 15, 1966, the appellant was convicted by a jury of the crime of second degree forgery. On September 29, 1966, he was sentenced to at least 40 years in the Kansas State Penitentiary under the Habitual Criminal Act. (K. S. A. 21-107a.) Mr. Joseph Anderson, an experienced member of the Johnson County Bar, was appointed by the district court to represent the appellant at his trial.
Following the appellant’s confinement in the penitentiary, he corresponded with the Honorable Herbert W. Walton, district judge, with respect to being furnished a free transcript of the proceedings of his trial. At about the same time, he initiated a direct appeal pro se, and on February 24,1967, the district court appointed Mr. Anderson to represent him.
On April 28, 1967, counsel moved the district court for a free transcript of the trial proceedings, and the request was granted that same day. However, the order granting the transcript was almost one month after the six month period had expired to perfect a direct appeal from the appellant’s conviction of forgery. (K. S. A. 62-1724.)
Subsequently, and on December 1, 1967, counsel for the appellant elected to file a 60-1507 proceeding in which he alleged constitutional as well as trial errors which were claimed to have occurred at the appellant’s trial. Judge Walton heard arguments on all points raised by the appellant, including the questions of alleged trial errors, although realizing that under Rule No. 121 (c) (3) of this court, he did not have to hear questions concerning trial errors due to the fact that questions of such character are to be resolved upon direct appeal. Having considered all points raised by the appellant, Judge Walton denied relief.
Upon appeal, this court likewise considered and decided all points which were raised by the appellant in his 60-1507 appeal, including questions concerning alleged trial errors, and affirmed the judgment. See Bruffett v. State, 205 Kan. 863, 472 P. 2d 206, cert. den. 400 U. S. 1010, 27 L. Ed. 2d 624, 91 S. Ct. 571, which opinion is incorporated herein by reference.
Following the filing of the appellant’s second 60-1507 proceeding on February 16, 1971, the district court appointed Mr. Sam K. Bruner, of the Johnson County Bar, to represent him. The motion alleged that, and the appellant here contends, he was denied effective assistance of counsel by his court appointed attorney, Mr. Anderson, for his failure to undertake a direct appeal as a matter of right, but, instead, after the statutory period of six months had run to perfect the appeal, elected to take a 60-1507 appeal, thus denying the appellant his fundamental constitutional rights.
The present motion to vacate contains no allegations of factual matters for consideration of the district court, nor does it list witnesses that would support the appellant’s contention. At most, the motion contains the unsupported assertion the appellant was denied effective assistance of counsel in obtaining effective appellate review of constitutional and alleged trial errors. While the appellant’s brief contains a statement that Mr. Anderson failed to consult with him, the motion itself and the record is void of any evidence that would show consultation, or lack of consultation.
The matter was submitted to Judge Walton upon the entire record and argument o£ counsel. In denying relief, the court stated:
“. . . Gentlemen, and hearing the statements of counsel, there has been nothing presented to the Court that would indicate to me that he has been denied any jurisdiction or trial court error review. There is no question from a review of the file that every time Mr. Bruffett contacted the Court, the Court acted promptly on any request he made. I think the record is clear on that. While it is true the Court did not direct him as to what procedures he should make, I don’t feel that the Court should. His attorney who represented him at the trial of the case, and knew the case in and out, and the various and sundry matters to be presented thereon, chose to use the form of a K. S. A. 60-1507, and I don’t know Gentlemen; I don’t think this Court can tell counsel what procedures to utilize and what not to utilize in representing a person on appeal. But even assuming for the purpose of argument, that he did not utilize the proper mechanism or set or statutes to have his case reviewed, there has been no showing to the Court that any matters complained of has not been, in fact, reviewed. The only additional matter brought to the attention of the Court is simply because his counsel decided to take K. S. A. 60-1507 procedure instead of a direct appeal, that this denied him effective assistance of counsel, and I just don’t understand this, and this is simply, completely an uncorroborated statement of Bruffett, and has no basis in fact that the Court can ascertain, and therefore, Gentlemen, the Court feels as a matter of law, the Court will have to deny the motion of the Movant and sustain the motion of the State of Kansas, and that will be the ruling of the Court . . .”
It is axiomatic that an indigent defendant is entitled to effective counsel on appeal. (Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814, reh. den., 373 U. S. 905, 10 L. Ed. 2d 200, 83 S. Ct. 1288; Draper v. Washington, 372 U. S. 487, 9 L. Ed. 2d 899, 83 S. Ct. 774.) Rut that is not the issue in this case. As this court has held on numerous occasions, the movant in a 1507 proceeding has the burden to establish that his constitutional rights have been violated. (Jolly v. State, 200 Kan. 202, 434 P. 2d 547; Peterson v. State, 203 Kan. 959, 457 P. 2d 6; Johnson v. State, 203 Kan. 947, 457 P. 2d 181; Lee v. State, 204 Kan. 361, 461 P. 2d 743; Baker v. State, 204 Kan. 607, 464 P. 2d 212.) As indicated, the appellant chose to present argument to the district court through his counsel. There was no evidence presented other than the official records, nor did the motion to vacate allege the existence of any factual matters in dispute.
The question then becomes one of law. Does the unsupported assertion of the appellant that his court appointed counsel failed to prosecute a direct appeal and elected instead to raise the propriety of constitutional questions and trial errors by a motion to vacate constitute the denial of effective assistance of counsel as required by the Sixth and Fourteenth Amendments? Under the facts and circumstances, we think not. The record clearly indicates the appellant was permitted to and did raise constitutional questions and trial errors which were considered and decided. (Bruffett v. State, supra.)
While a proceeding instituted pursuant to the provisions of K. S. A. 60-1507 cannot ordinarily be used for the purpose of reviewing trial errors which might have been reviewed in an original criminal appeal (Yurk v. State, 208 Kan. 946, 495 P. 2d 87, and Turner v. State, 208 Kan. 865, 494 P. 2d 1130, both this day decided), the fact remains that the trial errors alleged by the appellant have been reviewed not only by the district court but also at the appellate level by this court on a previous occasion. (Bruffett v. State, supra.)
Adequacy of counsel must be gauged by the totality of representation. The burden is upon the movant to establish incompetency of counsel, and in 1507 proceedings incompetency of counsel is not presumed. (Toland v. State, 200 Kan. 184, 434 P. 2d 550; Baker v. State, supra.) In addition, where mere conclusions are asserted in the motion to vacate, the decision whether the presence of the defendant or the presentation of evidence is required remains within the sound discretion of the district court. (Redd v. State, 199 Kan. 431, 429 P. 2d 925; Smith v. State, 199 Kan. 293, 429 P. 2d 103.)
It necessarily follows from the record that the appellant has faded to sustain his burden of proof, and the district court did not err in denying the relief requested.
The judgment is affirmed. | [
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The opinion o£ the court was delivered by
Owsley, J.:
This is an action to recover the balance of rentals on a written lease of business equipment after default in payments, repossession sale of the equipment, and application of the sale proceeds to the gross rentals.
The case was tried to a jury which returned a verdict of $3,000 in favor of the plaintiff, Misco Leasing, against the defendant, David W. Bush, and plaintiff appeals. We do not have the benefit of a brief on behalf of the appellee, David W. Bush.
The principal question to be resolved is whether the release of one of two partners discharges the whole of an obligation by 50 percent or by the amount of actual consideration paid for the release.
The following statement of facts is necessary to determine the issues on appeal:
Charles E. Cunningham and David W. Bush entered into a written equipment lease with Misco Leasing for the use of certain business equipment. The gross rentals reserved in the lease were $28,294.80. The last payment of rentals on the equipment was July 8, 1965. The equipment was repossessed in October 1965 and various efforts were made to sell the equipment, but it was not sold until 1968 for the sum of $1,300.
This suit was filed against Cunningham and Bush, and subsequently Cunningham negotiated a separate settlement with Misco for the sum of $1,250. The journal entry of dismissal provided that Misco’s right to proceed against Bush be reserved, that the claim against David W. Bush should not be affected by dismissal, that plaintiff should be allowed to proceed with its claim against Bush, and that plaintiff’s claim against Bush was not affected by the dismissal.
The lease agreement provided that if more than one lessee was named in the lease the liability of each was joint and several.
Bush claimed that he had a 50-50 partnership with Cunningham and that release of Cunningham discharged Bush of one-half of all the balance of rentals claimed by Misco, and the court in accordance therewith instructed the jury as follows:
“You are instructed that in this case the defendant and the former co-partner, Cunningham, were jointly liable to the plaintiff for any damages arising out of their default in the performance under the lease contract. You are further instructed that the release by the plaintiff of the defendant Cunningham, reduced the defendant Bush’s liability to plaintiff for any damages by an amount proportionate to Cunningham’s share of the liability. You are, therefore, instructed that plaintiff’s release of the defendant Cunningham reduces any liability of the defendant Bush to the plaintiff arising out of the lease contract by 50 per cent.”
Bush further defended on the ground that Misco could have realized as much as $11,520 from sale of the equipment and he should be given credit for that amount.
The issue of interest was reserved by agreement to the post trial motions. The court allowed interest on the amount found due by the jury only from the date of the entry of the judgment on the verdict. The plaintiff, Misco, presents two issues to the court on appeal; namely:
1. Was it error to reduce plaintiff’s claim by one-half because of the separate settlement with a jointly and severally liable coobligor where the order of dismissal reserves all rights against the remaining defendant?
2. Was it error to refuse to allow interest on the verdict from the date of default in the payment of rentals?
A decision on the first error claimed by Misco also determines whether Instruction No. 7 was a correct statement of the law.
Misco argues that the separate settlement and the release of Cunningham reduces the claim of Misco against Bush only by the amount of consideration paid by Cunningham to Misco.
In support of its contention, Misco directs our attention to the rule stated in Smith v. Henry, 133 Kan. 22, 298 Pac. 760:
“Naturally, if one has a claim against a partnership, and after its dissolution he settles with one of the partners in such a way as to relieve tihe one settled with from further liability, but with the intention of pursuing his claim against other partners not settled with, the amount received by the creditor from the partner with whom he settled should be taken into account in rendering judgment against the partners not settled with.” (p. 25.)
Similar statements of the law are found in Whittenhall v. Korber, 12 Kan. 618; Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784; City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285; Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692; Howard v. Yost, 6 Kan. App. 374, 50 Pac. 1098.
We conclude that the rules stated in these cases should be followed, that they constitute the weight of authority and are in accord with the statutes of this state; that they are sound and logical in legal reasoning; that the court erred in giving Instruction No. 7; and that a new trial should be granted.
We have examined Davies v. Jones, 61 Kan. 602, 60 Pac. 314, and Smith v. White, 73 Kan. 607, 85 Pac. 588, which can be construed as contrary to the rule approved herein and find that they should be and are hereby overruled to the extent they support a rule of law different from that announced in Smith v. Henry, supra. It is apparent that the trial court used as a basis for Instruction No. 7, provisions of K. S. A. 16-105 which reads as follows:
“Any person jointly or severally liable with others for the payment of any debt or demand may be released from such liability by the creditor, and such release shall not discharge the other debtors or obligors beyond the proper proportion of the debt or demand for which the person released was liable.”
In fairness to the parties and to the trial court, we should judicially declare the effect of this statute. The lease created a joint and several liability on Cunningham and Bush. The theory of joint and several liability is that it is the obligation of all jointly and the obligation of each separately. K. S. A. 16-105 cannot apply when each of the parties are liable for the whole of the indebtedness.
We are also controlled by the provisions of K. S. A. 56-203 which states:
“Such composition or compromise with any individual member of a firm shall not be so construed as to discharge the other copartners, nor shall it impair the right of the creditor to proceed at law or in equity against the members of such copartnership firm as have not been discharged; . . . nor shall such compromise or discharge of an individual of a firm prevent the other members of such firm from availing themselves of any defense at law or equity . . . except that they shall not set up the discharge of one individual as a discharge of the other copartners unless it shall appear that all were intended to be discharged.”
A decision on the second issue raised by Misco as to interest is not necessary in view of the granting of a new trial, but as a guide to the court on retrial we will decide this issue.
We conclude that the interest question has been judicially determined in this state by our recent decision in Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P. 2d 555. We stated in that case:
“When a plaintiff sues for a liquidated sum and the defendant establishes an offsetting claim arising out of the same contract or transaction, the offset is to be credited against the liquidated claim as of the due date of the original debt and the balance bears interest from that due date.” (Syl. ¶ 4.)
We conclude that an “offsetting claim” referred to in the cited case includes the defense of mitigation of damages. Further clarifying, we find that the defense of mitigation of damages does not have the effect of changing an otherwise liquidated claim into an unliquidated claim.
The judgment of the lower court is reversed and plaintiff is granted a new trial in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Foth, C.:
This is an action to enjoin the levying of a special assessment against plaintiff’s real estate for certain street improvements made by the defendant City of Overland Park. The trial court upheld the assessment and refused to enjoin its levy; plaintiff appeals.
The basic issue is whether plaintiff’s property was lawfully included within the improvement district created by the defendant city.
The improvement made was the paving to a width of 36 feet of two city streets, together with accompanying storm drainage and sidewalks. Those streets were Antioch Road from 101st Street to Highway 1-435, a north-south distance of % mile; and 103rd Street from Switzer to Metcalf, an east-west distance of two miles. Antioch bisects the improvement of 103rd, while the latter crosses Antioch }¿ mile south of its northern extremity and M mile north of its southern. The improvement thus forms a cross with elongated east-west arms.
In the southeast quadrant of this cross sits plaintiff’s property approximately Vi mile from Antioch on the west and M mile from 103rd on the north. It is in the southeast corner of a quarter section of land, the balance of which is owned by a country club, with the
improved streets running along the north and, more importantly, the west edges of the quarter.
The property itself has dimensions of 195 feet north-south by 840 feet east-west, containing about 3.7 acres. On it is built the Brook-ridge County Club Apartments, consisting of 63 living units. It is landlocked except for a private drive over an easement running /2 mile to the west where, after a short jog to the north, the drive opens onto Antioch.
The opposite map illustrates the situation. The hatched area shows the improvement and also roughly approximates the benefit district — except for plaintiff’s property. Lowell Avenue, immediately east of plaintiff’s property, is not an open street.
The improvement was initiated under K. S. A. chapter 12, article 6a (as amended), the general improvement and assessment law of 1957. A public hearing on the advisability of the project was held, at which plaintiff appeared and protested the inclusion of its property in the proposed improvement district. At the conclusion of the hearing the governing body of the city found the project advisable and passed the customary resolution, which included the following definition of the improvement district and proposed method of assessment:
“(c) The boundaries of the proposed improvement district to he the rear or side property lines of each property abutting said streets to be improved, provided that in no event shall the boundary line of the district exceed 180 feet from the centerline of the streets to be improved, except as hereinafter provided. Any residential property, which carries a zoning higher than R-l, and which is being served by a private drive off a street to be improved, shall be included within the limits of the improvement district, and its North-South dimension nearest the improvement shall be assessed as if it were abutting said street io be improved, and its boundary for improvement district purposes shall be 180 feet further from the street to be improved than its property line nearest the improvement. The intent of this recommendation is to assess all abutting property to a depth which would correspond to the lot lines of abutting property not to exceed one hundred eighty feet (180') from the center-line of the streets to be improved and to assess no property which does not abut the streets to be improved, except as hereinbefore provided.
“(d) The method of assessment shall he: total project costs be determined and assessed uniformly per abutting foot against property within the district in the following manner: A. Properties within the district which are zoned other than R-l shall be assessed uniformly for their share of the total project cost for the 36 foot wide street’. B. Properties within the district which are zoned R-l shall be assessed uniformly for the costs of a minimum standard street, which costs shall include necessary grading, the cost of a pavement 28 feet wide and 8 inches thick, and their share of the total storm drainage costs. C. All properties within the district shall share uniformly all engineering, legal, and other administrative expenses. D. The City shall contribute the difference between the construction costs identified heretofore in Section B and the construction costs for the 36 foot street.
“Owners of property involved shall pay the rate of assessment according to the zoning classification of said property at the time of the spreading of assessments.” (Italics added.)
The italicized language was obviously designed to and did catch plaintiff’s property. No other property fitted the “except as hereinafter provided” clause and no other property was included within the assessment district which did not abut the streets improved. Paraphrased, the resolution created a district which included “all abutting property, and also Snyder’s property, which is to be assessed as if it abutted Antioch.”
The result was an assessment against the west 180 feet of plaintiff’s property in the amount of $5,221.40. The balance of the $530,453 to be assessed was spread on the property abutting the two streets.
To overcome the action of the governing body plaintiff must shoulder a heavy burden. We have summarized the situation as follows:
“In defining the boundaries of an improvement district, the members of the governing body of a city are bound to act fairly and in good faith.
“It is a general rule of law that courts will not enjoin action undertaken by city governments unless a clear abuse of discretion has been shown.
“Municipal authorities are vested with [broad] discretion in establishing an improvement district pursuant to K. S. A. 12-6a04, and in levying assessments against property located therein, and their determination is not subject to review in the absence of a showing of fraudulent or arbitrary conduct.” (Giddings v. City of Pittsburg, 197 Kan. 777, 421 P. 2d 181, Syl ¶ ¶ 3-5.)
In the same case we said:
“. . . The criterion, of course, is whether the area to be assessed, and hence to be included in the improvement district, will be benefited by the improvement. Such is the standard by which the sufficiency of the petition is to be gauged and the improvement district established. It is true that the determination of whether the area will be benefited demands the use of judgment on the part of the governing body. It is true, also, that such judgment may not be exercised arbitrarily. Nonetheless, a city is not given carte blanche to approve any petition for street improvements or to establish any improvement district to pay therefor. The standards for doing so are set by law and must be followed.” (Id. at 786.)
Similar sentiments have often been expressed. See, e. g., Newson v. City of Wichita, 186 Kan. 444, 351 P. 2d 10; and cf. East borough Corporation, Inc., v. City of Eastborough, 201 Kan. 491, 441 P. 2d 891.
Plaintiff recognizes these principles, but bases its challenge primarily on what it claims is a wholly arbitrary exclusion from the district of property which it claims is benefited at least at much as that which it owns, and which is included. We believe this contention has merit. While the main concern of plaintiff’s argument is with the subdivision occupying the % section immediately west of Antioch, we believe a consideration of the M section in which plaintiff’s property is located is sufficient to illustrate the point.
We recently had occasion to review the underlying theory on which special assessments are levied in Mullins v. City of El Dorado, 200 Kan. 336, 436 P. 2d 837. We there pointed out the familiar concept:
“The foundation of the power to make a special assessment for a local improvement of any character, including the construction of a sanitary sewer system, is that the property against which the assessment is levied derives some special benefit from the improvement. A special assessment, therefore, is in the nature of a tax levied against property according to the benefits conferred. While the property is made to bear the cost of the improvement, it or its owner suffers no pecuniary loss thereby since, theoretically at least, the property is increased in value by an amount equal to the tax levied against it.” (p. 341.)
Most pertinent here is the principle reiterated there that when a public improvement is made justifying a special assessment to property because of the benefits which accrue, “[t]he benefit from the improvement is presumed to inure to the property itself rather than to the particular use being made of it at the time.” (Id. at 345. Emphasis added.)
We applied this principle in an extreme case in State, ex rel., v. City of Topeka, 201 Kan. 729, 443 P. 2d 240, where the land used by the state of Kansas for its Reception and Diagnostic Center was held amenable to an assessment for a neighborhood park. The present occupants of the assessed property, convicted felons, clearly would derive little benefit from the presence of a park nearby, and the unlikelihood of any other use of the property in the foreseeable future was stipulated. These factors were held to be irrelevant; the ground itself was “benefited” by the creation of the park, and this was sufficient to justify an assessment against it.
It seems to us that the inclusion of plaintiff’s property and the exclusion of the surrounding country club flies squarely in the face of this principle. Were it not for its present use for an apartment complex this property could by no stretch of the imagination be deemed specially benefited by the paving of a street M mile away— it is inconceivable that the city would reach out M mile to include in the district a 3.7 acre plot of unimproved land, by-passing all the identical land in between. By the same token, if plaintiff’s property — qua property — is benefited, so is the remainder of the quarter section in which it lies, and to the same extent. Should such remainder, or any part of it, be similarly developed for apartment houses its inhabitants would likewise use the improved streets. There is no reason why it should not likewise now be assessed for such special benefits, if they in fact accrue to land so far removed from the improvement.
The act under which the assessment was made provides that the benefit district should include the “property in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property.” (K. S. A. 12-6a02, italics added.) The initial judgment is that of the governing body but, as we have noted, that judgment is not wholly unfettered. It may not be exercised arbitrarily.
The same act provides that the method of assessment shall be such that it “will result in imposing substantially equal burdens or shares of the cost upon property similarly benefited.” (K. S. A. 12-6a08, italics added.) The district created and the assessment made here in our view fail to comply with this statute. A “substantially equal” burden is not imposed on more than 100 acres of land which is closer to the improvement and is at least “similarly benefited” to that of plaintiff’s. No reason is given or appears for this exclusion except that such land is presently being used for a country club. As we have seen, such present use forms no basis for determining whether or not land is “benefited” by an improvement.
This case is different both quantitatively and qualitatively from Giddings v. City of Pittsburg, supra. There the omission of one lot which “might logically have been included in the district” was not considered evidence of bad faith; the only non-abutting lot included was owned in common with an adjoining lot which did abut, so that the entire improvement district was contiguous. Here, the bulle of a quarter section of arguably benefited land is omitted, and the non-abutting parcel is an enclave a half mile away from the improvement and the rest of the district.
The departure here from the requisites of the applicable statute and the underlying law justifying special assessments is, in our view, so radical as to amount to arbitrary action on the part of the city’s governing body.
The judgement is reversed and the case remanded with directions to enter judgment for the plaintiff enjoining the levy of the special assessment.
APPROVED BY THE COURT.
Fatzer, C. J., and Kaul, J., dissent.
O’Connor and Prager, JJ., not participating. | [
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Per Curiam.
This contested disciplinary matter arises as a result of respondent E. Thomas Pyle’s reaction to his published censure in an earlier disciplinary case, In re Pyle, 278 Kan. 230, 91 P.3d 1222 (2004) (Pyle I).
On July 12 and 13, 2004, after this court issued its opinion in Pyle I, the Hutchinson News and the McPherson Sentinel and Sentinet: ran articles discussing the respondent’s censure. On July 14, 2004, the respondent sent a lengthy letter to more than 281 friends, clients, and family members. The first section of the letter read in pertinent part:
“The purpose of this letter is to provide you with some insight in response to a decision by the Kansas disciplinary administrator and Kansas supreme court. The decision stems from an incident that I had with another lawyer while working on a personal injury case.
“I represented a young lady who was injured at the home of a young gentleman. We tried to resolve the matter with his insurance company, but they refused to setde the case despite tire fact that the gentleman took responsibility for the accident and admitted liability. In fact, the gentleman provided me with an affidavit before an attorney was hired. . . .
“Despite this affidavit, American Family hired an attorney to defend the gentleman (‘defendant’). The defendant showed the affidavit to his attorney and the insurance company.
“After meeting with his attorney, the defendant and my client (‘the plaintiff) had several conversations. The defendant’s attorney told the defendant that the plaintiff was 100% at fault for the accident and that he (the attorney) was going to deny all liability. The defendant’s attorney told the defendant that he represented the insurance company and not the defendant. The defendant’s attorney told the defendant that he denied liability in 100% of the cases he defends regardless of the facts of the case. He also told him several other disturbing things. This is despite the fact that the defendant admitted liability and fault. All of this is in the record.
“After my client learned of this from tire defendant, she called me and asked me what she could do. The defendant was very upset with ‘his’ attorney and told the plaintiff several other things. The plaintiff told these things to me and asked if I could prepare an affidavit for the defendant to sign. I told her that I could, but that I could not communicate directly with the defendant because he was represented by an attorney. At my client’s request, I prepared [an] affidavit.
“This information came directly from the plaintiff to me. I mailed this affidavit to my client and she discussed with the defendant. At no time did I ever communicate with the defendant. That would be unethical and in violation of Kansas Rule of Professional Conduct, Rule 4.2, ....
“The comment to this rule reads in part — parties to a matter may communicate directly [sic] each other. The parties in our case would be the plaintiff and the defendant.
“I specifically told my client that I could not communicate with the defendant, but that she was free to communicate directly with him. She did and the defendant voluntarily signed the second affidavit. The plaintiff mailed the affidavit to me and I sent a letter to the defendant’s attorney.
“After receiving this letter, the defendant’s attorney filed a complaint against me with the Kansas Disciplinary Administrator’s office. I in turn filed a complaint against him with the same office. This attorney then withdrew from the representation of the defendant in the Court case.
“The attorney I filed a complaint against is a member of the Kansas Board of Discipline of Attorneys — the same board that reviews complaints against attorneys and the determines whether an attorney has violated a rule of professional conduct.
“[Footnote: Kansas is different than a lot of states. In Kansas, attorneys judge the conduct of other attorneys. If someone feels that an attorney has engaged in unethical conduct, a complaint is filed with the Kansas Board of Disciplinary Administrator [sic]. There is an investigation by attorneys and then a hearing may be necessary. In other states, attorneys are afforded a real trial in front of a jury instead of an administrative hearing in front of other attorneys.]
“In other words, I filed a complaint against one of their own and one of then-own filed a complaint against me.
“The defendant’s attorney has been a member of this board for several years. My research shows that a large number of this board is filled by attorneys who work for law firms that defend insurance companies and their insureds. In fact, the three member panel that heard the complaint against me consisted of two members who work for law firms that defend insurance companies.
“The complaint against me was filed almost three years ago and the hearing on the complaint against me was over a year ago. To my knowledge there has been no hearing on the complaint I filed against the defendant’s attorney. In fact, my panel made the statement that the defendant’s attorney did nothing wrong. You can malee your own conclusions — was it fair for the defendant’s attorney to ignore the defendant’s admissions, take opposite positions from the defendant, threaten the defendant, and intimidate the defendant?
“The panel found that I violated Rule 4.2 by communicating with a party that is represented by an attorney — they said I violated this by using my client to communicate with the defendant. They relied on a former version of the rule which prevented a lawyer from ‘causing another to communicate’ with a party represented by air attorney. This phrase ‘causing another to communicate’ was removed from the current version of the rule and the current version of the rule specifically allows for parties to communicate with one another. Even though the old rule does not apply to my case, the panel somehow found that it did apply? [sic] It did not make sense to me then and it does not make sense to me now.
“The panel also found that I violated Rule 8.3(a) for not reporting misconduct on the part of defendant’s attorney. My response was that I did report the misconduct.
“The panel also found that I violated Rule 8.4(g) when I wrote my letter to the defendant’s attorney. I acknowledged that my letter could have been written differently and in hindsight (because of the deck stacked against me), I should not have sent the letter, but instead, I could have filed the ethics complaint against the defendant’s attorney and filed a motion for sanctions against the defendant’s attorney in the Court case.
“Even though the formal complaint against me did not contain these charges, the panel found that I also violated Rule 4.4 and 8.4(d) because the letter embarrassed the defendant’s attorney and impacted his attomey/client relationship with the defendant.
“After the panel reached its decision, the Kansas supreme court affirmed their [sic] decision.
“First of all, I disagree with the findings of the panel. I did then and I do now. Even though I disagree with the decision, there is nothing I can do about it now. In hindsight, I could have hired a defense attorney to represent me who had a prior relationship with the Board members. A single attorney in McPherson, Kansas probably does not have that much political capital with the Board members.
“I still believe that my actions against the defendant’s attorney were legally sound and ethical. I did not communicate with the defendant, the plaintiff did. I did not impact the attomey/client relationship between the defendant and his attorney —■ Ins attorney did by threatening the defendant.
“After the underlying case, both the plaintiff and the defendant approached me and asked what they could do to help me in the complaint against me. They both said that the complaint was a bunch of ‘@#$%’ and they believed that the defendant’s former attorney was retaliating against me for getting him removed from die case. They felt that the defendant’s former attorney filed a complaint against me to take the focus off of his behavior. When they found out that the defendant’s former attorney was a member of the Board investigating me and ultimately deciding my fate, they could not believe it.
“[Footnote: It is interesting to note that the defendant, about a year after the plaintiff s case against him was over, hired me to represent him in a claim against an insurance company.]”
Respondent then discussed at some length his personal experience with insurance companies. He said he had practiced insurance defense for several years and had become disenchanted. He also said he had had a bad personal experience with his own insurer. He then started his own practice in 1999 representing “real people in claims against insurance companies and in other general matters.” The letter then continued:
“You may be wondering why I am ranting about insurance companies. One, it feels good to let some of this out because I deal with their antics all day long. Two, it is my opinion that the insurance company that insured the defendant in the underlying case may have yielded some influence in the complaint against me.
'What a better way to try to take me down, try to eliminate some of my aggressiveness and zealousness, and tiy to influence me so that I do not take a hard line against the insurance industry, then to try and embarrass me with an ethics complaint.
“If that is what they are hoping for, then once again, they are mistaken. I will continue to fight the good fight and I will continue to work hard representing individuals and real people who have value. . . .
“I know that this letter is lengthy, but I wanted to provide all of you with the necessary background so that you can understand what happened, why it happened, and so you can hear ‘the rest of the story.’
“If any of you have any questions or want to discuss this matter further, please do not hesitate to give me a call. I thank all of you for your confidence in me as a person and as an attorney. I will continue to fight the good fight and I will not he down and be defeated by the insurance industry. Thanks for hearing me out and God Bless.
“P.S. The decision against me will have no effect on my law practice. The official term is a ‘public censure,’ which amounts to a public ‘slap on the wrist.’
“I will continue to practice law, business and [sic] usual, a little wiser and a lot more leery of insurance companies and in [sic] the influence they exert.”
The Disciplinary Administrator, having received a copy of the letter, filed a formal complaint against respondent on September 19, 2005, alleging the respondent
“intentionally misrepresented the outcome and seriousness of the disciplinary proceedings, attempted to shift blamQ for any wrongdoing from himself to others, intentionally minimized or trivialized his conduct found to be unethical by the Kansas Supreme Court, misrepresented facts and his own'conduct, and knowingly called in question the integrity of the disciplinary process in Kansas by implying and directly stating the system was controlled by insurance companies and dishonest insurance company lawyers. Additionally, the respondent, by maintaining the righteousness of his conduct and trivializing the discipline imposed of ‘[published] censure’, called into question his sincerity and the truthfulness of his representations of remorse before the panel hearing of April 21, 2003.”
Specifically, the complaint accused respondent of violating Kansas Rule of Professional Conduct (KRPC) 7.1 (2006 Kan. Ct. R. Annot. 498) (false, or misleading communication about lawyer or lawyer’s services); KRPC 8.2(a) (2006 Kan. Ct. R. Annot. 508) (false statements concerning qualifications or integrity of public officer); KRPC 8.4(c) (2006 Kan. Ct. R. Annot. 511) (misconduct involving dishonesty, fraud, deceit, or misrepresentation); KRPC 8.4(d) (misconduct prejudicial to administration of justice); and KRPC 8.4(g) (conduct reflecting adversely on fitness to practice law).
Respondent filed his answer, not disputing any of the facts set out in the complaint but denying that the facts constituted any violation of the Kansas Rules of Professional Conduct. He also took exception to the Disciplinary Administrator’s characterization of his intentions and the nature of his letter.
A hearing was held on January 12, 2005, at which respondent appeared in person and through counsel. The Disciplinary Administrator argued that the panel should recommend respondent be suspended from the practice of law for 2 years. Counsel for respondent urged the panel to conclude respondent had not violated any of the disciplinary rules. In the alternative, if the hearing panel concluded there was a violation, respondent’s counsel suggested the appropriate sanction would be informal admonition. Respon dent addressed the panel personally and continued to argue that he violated no rule and that no discipline should be imposed.
The members of the hearing panel — Calvin Karlin, Jo Ann Butaud, and Craig Shultz — unanimously agreed that there was nothing in respondent’s letter that violated KRPC 7.1, i.e., the letter contained no false or misleading communication about respondent or his services. The members of tire panel also unanimously agreed that respondent did not violate KRPC 8.4(g), i.e., the letter did not constitute conduct that reflected adversely on respondent’s fitness to practice law, in part “because there are more specific provisions of the Kansas Rules of Professional Conduct that apply.”
With regard to the remainder of the alleged violations and appropriate discipline, the members of the panel could not reach agreement. Each member filed a separate opinion focusing on the same three passages from respondent’s letter.
The first passage read:
“The panel also found that I violated Rule 8.4(g) when I wrote my letter to die defendant’s attorney. I acknowledged diat my letter could have been written differently and in hindsight (because of the deck stacked against me), I should not have sent the letter, but instead, I could have filed the ethics complaint against the defendant’s attorney and filed a motion for sanctions against the defendant’s attorney in the Court case.” (Emphasis by Karlin.)
The second passage read:
“First of all, I disagree with die findings of die panel. I did then and I do now. Even though I disagree with die decision, diere is nothing I can do about it now. In hindsight, I could have hired a defense attorney to represent me ■who had a prior relationship with the Board members. A single attorney in McPherson, Kansas probably does not have that much political capital with the Board members.” (Emphasis by Karlin.)
The third passage read:
“The defendant’s attorney has been a member of this board for several years. My research shows that a large number of this board is filled by attorneys who work for law firms diat defend insurance companies and tiieir insureds. In fact, the three member panel diat heard die complaint against me consisted of two members who work for law firms that defend insurance companies.
“You may be wondering why I am ranting about insurance companies. One, it feels good to let some of this out because I deal with their antics all day long. Two, it is my opinion that the insurance company that insured the defendant in the underlying case may have yielded some influence in the complaint against me.
“What better way to try to take me down, try to eliminate some of my aggressiveness and zealousness, and try to influence me so that I do not taire a hard line against the insurance industry, dren [sic] to try and embarrass me with an ethics complaint.” (Emphasis by Karlin.)
Karlin Opinion
Karlin concluded respondent violated KRPC 8.2(a) and KRPC 8.4(d) and recommended an informal admonition by the Disciplinary Administrator.
In his opinion, in which Butaud concurred, Karlin concluded that “[t]he Respondent’s statement that the deck was stacked against him implies that the disciplinary process, the Disciplinary Administrator’s office, the Kansas Board for Discipline of Attorneys, and the Kansas Supreme Court did not act properly.” The second passage, according to Karlin, implied “that in order to prevail before the Kansas Board for Discipline of Attorneys, an attorney needs to have a prior relationship with the Kansas Board for Discipline of Attorneys and political capital.’ ” The third passage, in his view, implied “that the Kansas Board for Discipline of Attorneys was improperly influenced by an insurance company when it heard the Respondent’s disciplinary case and therefore was biased against him.”
Karlin noted that at the hearing, respondent had said what he meant to convey in the second passage was that he “could have hired a defense attorney who had a prior working relationship with the board members who had actually defended these types of cases before, which could have helped [him] get through the process,” rather than representing himself. Karlin regarded this statement as “disingenuous.”
In addition, Karlin wrote:
“The attack is clearly on the Board and how it works, not on the Respondent’s own failing in representing himself. Our judicial system and discipline system depend upon tire public’s confidence. Reckless comments suggesting that the system is fixed, somehow biased against him, or controlled by insurance companies improperly and unethically attack the integrity of judges and tire Board’s adjudicatory officers in a manner that is prejudicial to the administration of justice.”
As to the third passage, Karlin determined that the respondent communicated that members of the Kansas Board for Discipline of Attorneys represent insurance companies and their insureds, and the insurance company for the defendant in the case underlying Pyle I may have exercised inappropriate influence over the disciplinary proceeding.
Karlin discussed the scope of protection respondent enjoys under the free speech clauses of the federal and state constitutions, concluding “it is well-settled that the Kansas Rules of Professional Conduct can regulate and constrain a lawyer s speech.” Karlin also distinguished State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972), the case respondent had relied on as requiring disposition in his favor.
That case began when lawyer James I. Nelson received a public censure from this court for misconduct. The day the opinion issued, a reporter sought him out; the reporter’s newspaper later printed Nelson’s statements that he had done “absolutely nothing wrong and they damn well know it”; that he had “very little respect for the police and the courts”; and that “[t]he Courts are commonly prejudiced and they’re much more concerned with who appears before them than what the facts are, and the law is.” 210 Kan. at 638.
These statements formed the basis of a second disciplinary complaint against Nelson, alleging violation of what was then denominated DR 1-102(A)(5) (misconduct prejudicial to the administration of justice) and DR 8-102(B) (knowingly making false accusations against a judge or other adjudicatory officer). The Supreme Court dismissed the disciplinary complaint against Nelson, concluding that, because (1) Nelson did not seek out the reporter, and (2) the critical statements were general in nature and directed broadly at all existing law enforcement and judicial institutions, discipline was not warranted. 210 Kan. at 643-44.
Karlin distinguished Nelson because DR 8-102(B) prohibited “knowingly making false accusations against a judge or other adjudicatory officer” (emphasis added), whereas the current rule also proscribes reckless conduct. See KRPC 8.2(a) (prohibits statement attorney “knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer”). (Emphasis added.) Karlin also noted that the Nelson decision relied on distinguishing facts: (1) Nelson had been approached by the reporter; he did not seek him out; and (2) Nelson’s comments were general rather than specific. In contrast, in Karlin’s view, respondent here “took it upon himself to send out the letter,” and his statements that (1) the deck was stacked against him; (2) he lacked sufficient political capital, implying such capital was necessary to prevail before the Disciplinary Board; and (3) the defendant’s insurance company had wielded influence over the proceedings, were “specific assaults on the integrity of the disciplinary system, the Disciplinary Administrator’s Office, the Kansas Board for Discipline of Attorneys, and the Kansas Supreme Court.”
Karlin thus concluded there was clear and convincing evidence that respondent violated KRPC 8.2(a) by making false statements regarding the Board and the Supreme Court, and that respondent’s “unrestrained statements” violated KRPC 8.4(d) by “prejudic[ing] justice in a general sense by lessening the public confidence in our disciplinary system.”
Karlin considered the ABA Standards and concluded respondent knowingly violated his duty to the legal profession and the legal system to maintain his personal integrity and “caused potential injury to the legal profession and the legal system.” Karlin counted respondent’s prior discipline as an aggravating factor and concluded respondent’s motivation was “purely selfish” in that he “wanted to lessen the impact of the Kansas Supreme Court’s opinion on his friends, clients, and family members.” Karlin further determined that respondent engaged in a pattern of misconduct because “he sent the letter to more than 281 friends, clients, and family members”; that respondent committed multiple offenses because he violated KRPC 8.2(a) and 8.4(d); that respondent had “substantial experience in the practice of law”; and that respondent refused to acknowledge the wrongful nature of his conduct because he denied any ethical lapse and “trivialized” the previous public censure as a “slap on the wrist.” Karlin saw no “standard mitigating circumstances.”
Karlin cited ABA Standard 7.4, which states: “Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in determining whether the lawyer s conduct violates a duty owed to the profession and causes little or no actual or potential injury to a client, the public, or the legal system,” and recommended respondent be informally admonished.
Butaud Opinion
In addition to concurring in Karlin’s opinion, Butaud found a violation of KRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation) and recommended a 6-month suspension.
To support her determination and recommendation, Butaud stated that the three passages of the letter contained “false and misleading” statements. She then pointed to respondent’s repeated statements that he had filed a complaint against Conderman with the Disciplinaiy Administrator. These statements were, in Butaud’s view, “completely false,” and “it had already been judicially determined that the Respondent did not file a complaint against the attorney for the defendant.”
Butaud also took issue with respondent’s statement that “at no time did [he] ever communicate with the defendant” in the litigation underlying the previous disciplinaiy case. “In fact,” Butaud wrote, “it had been judicially determined that [respondent] communicated directly with the defendant.”
Butaud also cited respondent’s related statements that his prior discipline “relied on a former version of [KRPC 4.2] which prevented a lawyer from causing another to communicate’ ” with a represented party, that “the old rule does not apply to my case,” and that “the current version of the rule specifically allows for parties to communicate with one another.” Butaud determined that these statements also were false and misleading and concluded Respondent knowingly violated KRPC 8.4(c), a “serious violation.” She noted that “[a] lawyer should not, by the use of unfounded or false statements, attack the integrity of the system or create disrespect for the courts.”
With regard to sanctions, Butaud considered ABA Standard 7.2, which states that “[suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.” She concluded that “the lessons that the Respondent should have learned following his first disciplinary case were wholly ignored. Accordingly, because of the serious nature of Respondent’s misconduct, because I conclude that he engaged in conduct that involves dishonesty — making false and misleading statements — and in order to assist the Respondent in understanding the serious nature of the disciplinary offense, I recommend that the Court issue an order suspending the Respondent from the practice of law for a period of six months.”
Shultz Opinion
Shultz found no violations and would have dismissed the complaint. In the alternative, he suggested that any violations merited no greater sanction than informal admonition. Shultz agreed that the three passages in the letter “rais[ed] legitimate questions with respect to the allegations” against respondent but did not rise to the level of a violation of any of the rules.
In regard to Rule 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), Shultz wrote:
“One can imagine numerous actions that may be contraiy to the requirements of this rule but such prohibition seems best applied to actions other than out of court statements, particularly those of opinion. My review of the case summaries digested in connection with Rule 8.4 suggests the rule has typically been applied to actions such as theft, lying, forgery, commission of a crime, or mishandling money or some other aspect of a case. The statements contained in Respondent’s letter do not, in my opinion, come close to reflecting some intentional decision to be dishonest or commit fraud, deceit, or misrepresentation.”
In regard to KRPC 8.4(d) (misconduct prejudicial to the administration of justice), Shultz relied in part on his reasoning regarding KRPC 8.4(c). In addition, Shultz argued that respondent’s “ post-decision’ statements of opinion, even if wrong, do not prejudice the administration of justice.”
Shultz noted that KRPC 8.2(a) was the only one of the three nxles at issue that prohibited “statements” and that, “with fair reading, can be urged to have been violated here.” Shultz interpreted the rule to require clear and convixicing evidence establishing that respondent made a statement about the qualifications or integrity of a judge or adjudicatoxy officer that he knew to be false, or that the statement was false and was made by respondent in recldess disregard of its truth or falsity. He further posited that the burden of proving the falsity of statements lay “not with the Respondent but with the Office of the Disciplinary Administrator. In the hearing before this panel, no evidence was presented that any statement was in fact false. . . . [W]e are not entitled to presume their falseness.”
Shultz specifically expressed his disinclination to presume that the defendant’s insurance company did not wield some influence, or that a judge is never influenced, even unintentionally, by “ 'political capital’ ... to the exclusion of Respondent’s explanation that what he meant by that was that having a lawyer familiar with disciplinary matters would have been better.” He argued that respondent’s “comment about the deck being stacked against him was . . . susceptible [of] only one meaning and that being false.” Shultz determined that the Disciplinary Administrator presented no evidence on these issues, therefore precluding the panel from presuming falsity, to the exclusion of other possible meanings for respondent’s statements.
Shultz also tempered Karlin’s reading of the Nelson decision by suggesting that it supported respondent’s right to cxiticize not only the decision against him but also those who rendered that decision. Shultz opined that respondent’s statements, “at worst, cannot be interpreted to be any more critical than [those] approved by the Supreme Court in [Nelson].”
Shultz also found the apparent origin of the complaint in this case significant. The Disciplinary Administrator testified that a copy of respondent’s letter arrived in an unmarked envelope from an anonymous source. Shultz observed that the letter bore markings from a fax machine in the office of Farmers Alliance Insurance Company, “[which has its] home office in McPherson, Kansas, the very town in which [Respondent] practices .... While not clearly relevant . . . the fact that Farmers Alliance played any part in the commencement of this matter at least suggests that Respondent’s opinions or fears of influence by insurance companies do not necessarily all arise as pure paranoia or reckless disregard.”
Shultz concluded that “the letter sent by Mr. Pyle was neither wise nor persuasive. But some lack of common sense . . . does not entitle us to recommend punishment for such behavior. His letter reflects his thoughts and opinions, however misguided, all of which ought to enjoy First Amendment protections to the exclusion of this Complaint .... [Restrictions on a lawyer’s freedom of speech should not apply to the means and manner of those statements before us in this case.” In addition, he wrote, “[I]f the rationale for discipline here is to prevent damage to the reputation of the judiciary or the legal process or to otherwise prevent damage to the public’s opinion of such,” that purpose would not be well-served by imposing discipline in this case; in particular, discipline any more severe than informal admonishment may “do far more damage” than any which may have resulted from Respondent’s letter to the extent that it could “be seen as . . . attempting to prevent criticism [of the judiciary] by anyone in the legal profession.” In Shultz’ view, “Suspension for this criticism is neither justified nor should it be desired .... And whereas the only other motive for such a remedy would seem to be to punish Mr. Pyle to prove we have the power to do so or because the system resents his comments, such discipline should be avoided.”
Analysis
Respondent did not contest any of the facts set out in the panel’s final hearing report, but he took exception to the conclusions by Karlin and Butaud that his conduct constituted a violation of any of the rules.
Generally, in disciplinary cases, this court will adopt the panel’s final hearing report “where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003). Where, as here, a majority of the members of the panel agreed only on the existence of two of five violations alleged and no majority supported any single recommended discipline, we are especially mindful of our customary comprehensive standard of review. We independently consider “the evidence, the findings of tire disciplinary panel, and the arguments of the parties and determine[] whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence.” Lober, 276 Kan. at 636; In re Boone, 269 Kan. 484, 498, 7 P.3d 270 (2000). Any panel recommendation on sanction is advisory only and shall not prevent this court from imposing greater or lesser discipline. Rule 212(f) (2006 Kan. Ct. R. Annot. 295).
The three passages cited consistently by each of the members of the hearing panel may have been particularly troubling to them, but we believe respondent’s letter and its necessary implications should be viewed holistically. With this in mind, it is plain from tire necessarily undisputed language used in the letter that it was calculated not only to, as respondent asserted, provide its more tiran 281 recipients “with some insight” about the public censure handed down by this court but also to:
• Reargue whether respondent violated any rules of professional conduct and whether he was deserving of any punishment;
• Portray a “large number” of the members of the Board of Discipline as lackeys for the insurance industry and some undefined number of members as susceptible to improper influence by prior relationships with respondents or “political capital” possessed by those respondents;
• Indicate that the members of his hearing panel erred as a matter of law in relying on an outdated version of Rule 4.2;
• Communicate that he had always disagreed and continued to disagree with the panel’s findings, which had been accepted by this court;
• Explain the source of his animosity toward insurers and publish his theory that the particular insurance company involved in the litigation underlying his discipline had brought pressure to bear on the Disciplinary Administrator, the Disciplinary Board, and/ or this court to make sure he was punished for his legitimate advocacy; and, finally,
• Minimize the significance of the level of sanction imposed by this court, i.e., equate his published censure to a “public ‘slap on the wrist’ ” with no effect on his practice.
Like Nelson, 210 Kan. 637, this case requires us to navigate the tension between First Amendment freedom of speech, enjoyed by all citizens, and the limits that can be placed on exercise of that freedom because a particular citizen chose to become a Kansas lawyer. We first review our other previous cases addressing this tension.
In re Johnson, 240 Kan. 334, 729 P.2d 1175 (1986), was a contested case in which this court found that Johnson should be disciplined for false, unsupported criticisms and misleading statements about his opponent in a county attorney election campaign. In its discussion of the First Amendment and lawyer speech, this court said:
“A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.” Johnson, 240 Kan. at 336.
Our Johnson case also stands for the proposition that a lawyer cannot insulate himself or herself from discipline by characterizing questionable statements as opinions. See Johnson, 240 Kan. at 339. As one panel of the Seventh Circuit has observed, “[ejven a statement cast in the form of an opinion (‘I think that Judge X is dishonest’) implies a factual basis, and the lack of support for that implied factual assertion may be a proper basis for a penalty.” Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995), cert. denied 517 U.S. 1223 (1996); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990) (“ ‘In my opinion John Jones is a liar’ . . . implies a knowledge of facts which lead to the conclusion that Jones told an untruth.”).
In State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980), respondent made false statements while run ning for a position on the Board of Public Utilities, and we concluded that the comments were not protected speech:
“[L]awyers are subject to discipline for improper conduct in connection with business activities, individual or personal activities, and activities as a judicial, governmental or public official. [Citations omitted.] A lawyer is bound by the Code of Professional Responsibility adopted by rule of this court in every capacity in which the lawyer acts, whether acting as a lawyer or not.” Russell, 227 Kan. at 902.
In the much more recent case of In re Landrith, 280 Kan. 619, 124 P.3d 467 (2005), this court disbarred an attorney for, among other violations, his repeated baseless, inflammatory, and false accusations against opposing counsel, judges, state district court employees, Court of Appeals staff, and municipal officers and employees. Specifically, respondent Brett Landrith had accused a particular judge of being racist and had maintained that one of his clients lost his lawsuit because of the client’s race. Landrith also accused members of the court and Disciplinary Administrator’s office of operating a baby smuggling ring; he accused a current Supreme Court justice and another judge of mismanaging funds; and he accused district court staff and others of obstructing justice. Landrith, 280 Kan. at 631-34, 638-39, 644.
Landrith produced no evidence to support any of his accusations but argued that the First Amendment protected his speech. We rejected his argument, emphasizing that, in those instances where a lawyer’s unbridled speech amounts to misconduct that threatens a significant State interest, it is clear that a State may restrict the lawyer’s exercise of personal rights guaranteed by the federal and state Constitutions. See N.A.A.C.P. v. Button, 371 U.S. 415, 438, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).
“Upon admission to the bar of this state, attorneys assume certain duties as officers of the court. Among the duties imposed upon attorneys is die duty to maintain the respect due to the courts of justice and to judicial officers. A lawyer is bound by the Code of Professional Responsibility in every capacity in which the lawyer acts, whether he is acting as an attorney or not, and is subject to discipline even when involved in nonlegal matters, including campaigns for nonjudicial public office.” Johnson, 240 Kan. at 337.
A lawyer’s right to free speech is tempered by his or her obligations to the courts and the bar, obligations ordinary citizens do not undertake. Nelson, 210 Kan. at 640; see In re Sawyer, 360 U.S. 622, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 (1959).
Turning to this case, before addressing Rules 8.2(a) and 8.4(c) and (d), we pause to mention the Disciplinary Administrator’s initial additional allegations that respondent’s conduct violated KRPC 7.1 and 8.4(g). Because no member of the panel determined that a violation of either of these provisions occurred, and the Disciplinary Administrator took no exceptions to these negative findings, the allegations are not before us.
Rule 8.2(a)
KRPC 8.2(a) states:
“A lawyer shall not malee a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
The comment to this rule includes the following language:
“Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration ofjusti.ee.
“To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”
Rule 8.2(a) enables carefully circumscribed control over lawyer speech by prohibiting only false statements “concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer” and only when the lawyer either knew them to be false or displayed reckless disregard for their truth or falsity. Derogatory factual allegations that are false and with ordinary care ought to have been known to be such can lead to sanction. Russell, 227 Kan. at 901. Rule 8.2(a), in general, strikes an appropriate balance between right and responsibility.
As we said in Nelson:
“Generally, courts are in agreement that while a lawyer may, in a proper tone and through appropriate channels, attack the integrity or competence of a court or judge, or the propriety of any particular judicial act, he may not, by unfounded charges, create disrespect for courts or their decisions and if he does so he may be properly disciplined. Attorneys have wide latitude in differing with, and criticizing the opinions of the courts, yet when they resort to misrepresentation and unwarranted assaults on the courts whose officers they are, they violate their duty and obligation and are subject to discipline. [Citation omitted.]” Nelson, 210 Kan. at 642.
Our decision in Nelson also quoted Justice David J. Brewer, who wrote in the 1877 contempt citation case of In re Pryor:
“ ‘For no judge, and no court, high or low, is beyond the reach of public and individual criticism. After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust. . . .
“ “We remark again, that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that, in every case where a judge decides/or one party, he decides against another; and ofttimes bodr parties are beforehand equally confident and sanguine. The disappointment therefore is great, and it is not in human nature that there should be other than bitter feeling, which often reaches to tire judge as die cause of the supposed wrong. A judge therefore ought to be patient, and tolerant of everything which appears but the momentary outbreak of disappointment.’ ” 210 Kan. at 642-43 (quoting In re Pryor, 18 Kan. 72, 76 [1877]).
Of the multiple messages communicated by respondent in his letter, listed above, most do not concern the “qualifications or integrity of a judge, adjudicatory officer or public legal officer,” as required to run afoul of Rule 8.2(a) (2006 Kan. Ct. R. Annot. 508). One message — the second in the list — can be fairly characterized as comment on the “qualification or integrity” of members of the Disciplinary Board, and it put a sinister spin on meager facts. However, it was minimally supported by respondent’s research on representative clients of Board members’ law firms and by his explanation during his testimony of what he meant to convey, i.e., that he believed he would have fared better before the panel if he had employed counsel experienced in disciplinary matters. Under these circumstances, although it is a close case, we strike the critical balance between the First Amendment and disciplinary imperatives in respondent’s favor, concluding there was insufficient clear and convincing evidence that he knew or should have known his letter was making false statements of fact about Board members’ qualifications and integrity.
Rule 8.4(c)
Rule 8.4(c) states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (2006 Kan. Ct. R. Annot. 510-11).
There have been fewer than 50 cases in which this court has found that an attorney has violated this rule in its current form. See, e.g., In re Christian, 281 Kan. 1203, 135 P.3d 1062 (2006) (attorney engaged in dishonesty in violation of KRPC 8.4(c) by knowingly and repeatedly converting attorney fees belonging to the firm for his own use; disbarment); In re Boaten, 281 Kan. 390, 132 P.3d 870 (2006) (attorney converted to his own use setdement proceeds belonging to his clients and repeatedly testified falsely before the hearing panel; disbarment); In re Mitchell, 280 Kan. 656, 123 P.3d 1279 (2005) (attorney informed client that she attended a hearing in his child support action and that the court took the matter under advisement; she had not attended hearing; default judgment was entered against client; 1-year suspension, 2-year probation); In re Landrith, 280 Kan. 619 (numerous violations through false accusations against others; disbarment); In re Devkota, 280 Kan. 650, 123 P.3d 1289 (2005) (attorney engaged in dishonest conduct by signing his clients’ names to answers to interrogatories and prevailing upon his non-lawyer employee to verily, by notarization, that the false signatures were genuine; public censure); In re Ware, 279 Kan. 884, 112 P.3d 155 (2005) (attorney, as in-house counsel, falsified employer’s internal documents to make it appear as though she had taken action on a discrimination case filed against it when she had not; 1-year suspension); In re Wenger, 279 Kan. 895, 112 P.3d 199 (2005) (attorney engaged in dishonest conduct by advising his clients that he had filed cases and set hearings and doctor’s appointments when he in fact had not; disbarment); In re Nathanson, 279 Kan. 921, 112 P.3d 162 (2005) (attorney prepared, fraudulently signed, and filed pleadings and correspondence using name of another attorney; disbarment); In re Islas, 279 Kan. 930, 112 P.3d 210 (2005) (attorney s actions gave rise to convictions for making false writings and making false application for driver’s license; attorney’s false statement to driver’s licensing agency when he attempted to avoid license suspension, and later attempted to reinstate his license, constituted violation of KRPC 8.4(c); indefinite suspension); In re Singleton, 279 Kan. 515, 111 P.3d 630 (2005) (attorney misrepresented documents to judge; indefinite suspension); In re Rock, 279 Kan. 257, 105 P.3d 1290 (2005) (attorney converted client funds, abandoned clients, and committed other misconduct; disbarment).
The exemplary cases cited above demonstrate that, in the past, this rule generally has been invoked to discipline lawyers who engaged in conduct significantly more egregious than respondent’s conduct here. Indeed, by comparison, respondent’s conduct ranks as mere whining — petty, annoying, and childish, but far from the dramatic abandonment of honest practice that typifies our Rule 8.4(c) cases.
Butaud was the sole member of the panel who would have held respondent’s conduct violated this provision. To illustrate, her opinion focused on, among other things, respondent’s statements that he had filed a disciplinary complaint against Conderman; that he had not communicated with the defendant in tire litigation underlying his prior discipline; and that the Board and court relied on an outdated version of Rule 4.2. (2006 Kan. Ct. R. Annot. 487).
The first statement involved a contested question of fact. In the prior disciplinary case, respondent insisted his inclusion of a paragraph in Iris letter to the Disciplinary Administrator, which gave his opinion of what he regarded as Conderman’s misconduct, satisfied Rule 8.3. (2006 Kan. Ct. R. Annot. 509). The panel and court decided against respondent on this issue, but that does not mean respondent’s argument was invalid or objectively false.
The second statement regarding communication with the defendant was factually accurate, insofar as direct communication was concerned. Of course this unwritten limitation placed respondent’s conduct in the best possible light, but the letter did otherwise detail the facts forming the basis of the panel’s and court’s displeasure over respondent’s indirect communication with a represented opposing party. The letter owned up to respondent preparing an affidavit for the defendant at respondent’s client’s request; to his mailing of the affidavit to tire client; and to the client’s subsequent discussion of it with the defendant. Respondent also acknowledged the unethical nature of direct conduct with a represented party. These aspects of the letter mitigated respondent’s categorical statement that “[a]t no time did I ever communicate with the defendant.” When read in context, it was obvious that the hearing panel and the court had disagreed with respondent’s narrow interpretation of the communication prohibition.
Respondent’s third statement that the panel and court relied on an old version of Rule 4.2 was incorrect, but we discern mistake rather than malevolence. Respondent was correct that an earlier version of the rule prohibited an attorney from communicating with a represented party and from causing others to do acts he could not do. The current version of Rule 4.2, which has been in effect since 1988, does not contain the indirect contact limitation, and it does permit opposing parties to communicate directly. However, the reason respondent was found in violation of Rule 4.2 was his misconduct under 8.4(a), which incorporates the indirect contact element of the earlier Rule 4.2 and prohibits an attorney from “[v]iolat[ing] or attempting] to violate the rules of professional conduct . . . through the acts of another.” KRPC 8.4(a); Pyle, 278 Kan. at 235, 236-39. It appears likely the significance of the court’s explanation of this subtlety was simply lost on respondent.
We conclude that there was no clear and convincing evidence that respondent violated Rule 8.4(c).
Rule 8.4(d)
Rule 8.4(d) states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” (2006 Kan. Ct. R. Annot. 510).
Karlin, with Butaud, determined that respondent violated this rule because his comments “prejudiced justice in a general sense by lessening the public confidence in our disciplinary system.” Re spondent argues, and Shultz’ opinion urges, that this court should rule there can be no prejudice to the administration of justice once justice has been administered, that is, once an adjudication is complete. In their view, because respondent’s discipline case had ended by the time he sent his letter, he was free to say what he wished without violating Rule 8.4(d).
Although in Nelson we found no prejudice to the administration of justice and later noted that,“[s]ince Nelson’s disciplinary case was terminated, any statements made by Nelson could not serve as harassment or intimidation for the purpose of influencing a decision in that case,” we rejected an invitation to limit the application of the rule regarding prejudice to the administration of justice only to conduct occurring during the pendency of trial. In re Johnson, 240 Kan. 334, 342, 729 P.2d 1175 (1986) (discussing In re Nelson, 210 Kan. 637, 504 P.2d 211 [1972]). We exphcitly refused to adopt this “proposition in the absolute form.” Nelson, 210 Kan. at 641.
Our subsequent cases have not clearly answered tire question Nelson thus left open — whether Rule 8.4(d) can be invoked to discipline conduct arising after a particular adjudicatory proceeding is concluded. Our Landrith opinion suggested that Landrith’s inflammatory accusations in and out of the courtroom and after proceedings concluded would support our conclusion that 8.4(d) was violated. Landrith, 280 Kan. at 619. And, in at least one other case, we have disciplined an attorney for conduct occurring after a proceeding was completed, although we have done so under a different subsection of Rule 8.4. See In re Arnold, 274 Kan. 761, 767, 772-74, 56 P.3d 259 (2002) (public censure under, inter alia, Rule 8.4(g) prohibiting conduct reflecting adversely on fitness to practice law).
The approach to 8.4(d) and similar rules in other jurisdictions varies. See Matter of Palmisano, 70 F.3d 483, 485-87 (7th Cir. 1995) (attorney disciplined for making many baseless accusations, among other times, after being relieved as counsel in case); Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1437-40 (9th. Cir. 1995) (First Amendment protected attorney’s criticism of judge who sanctioned attorney; attorney accused judge of being anti-Semitic, dishonest); In re Green, 11 P.3d 1078, 1083-87 (Colo. 2000) (several months after final order and award, but while motion to reconsider attorney fee award pending, attorney permitted to say judge considering motion was racist); In re Crenshaw, 815 N.E. 2d 1013, 1014-15, (Ind. 2004) (untrue allegations against judges, during and after proceedings, merit sanction); Kentucky Bar Association v. Williams, 682 S.W.2d 784, 786 (Ky. 1984) (disrespectful letter written to judge after hearing warrants discipline); Grievance Administrator v. Fieger, 476 Mich. 231, 719 N.W.2d 123 (2006), cert. denied 127 S. Ct. 1257 (2007) (vulgar attacks made by attorney on radio show after members of appellate panel ruled against attorney s client not protected; case still pending because time for further appeal unexpired); Mississippi Bar v. Lumumba, 912 So. 2d 871, 881-84 (Miss.), cert. denied 163 L. Ed. 2d 70 (2005); (attorney disciplined for in-court behavior as well as later out-of-court statement still connected to judicial proceeding); Matter of Westfall, 808 S.W.2d 829, 831-33 (Mo.) (discipline permitted for prosecutor’s televised statement on day after opinion filed that appellate judge’s ruling “a little bit less than honest,” designed “to arrive at a decision that he personally likes”), cert. denied 502 U.S. 1009 (1991); In re Holtzman, 573 N.Y.S.2d 39, 42, 78 N.Y.2d 184, 577 N.E.2d 30 (1991) (dissemination of letter of complaint, press contacts after proceeding concluded “prejudicial to administration of justice”); State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958, 964-70 (Okla. 1988) (attorney protected by First Amendment when voicing criticism of judge to news media immediately after conclusion of trial, sentencing); Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116, 120-22 (Tenn. 1989) (prosecutor’s disrespectful behavior in court prejudicial to justice, but general comments regarding judge made to news media protected).
We agree with Karlin and Butaud that the “administration of justice” Rule 8.4(d) seeks to protect from prejudice is much broader than the administration of justice to be effected in any single trial or adjudicatory proceeding. The plain language of the rule supports this view, as does the weight of the persuasive interpreting authority. Among other things, adopting respondent’s narrow reading would effectively exempt all non-litigator lawyers from the rule’s control, a nonsensical result. All lawyers, by virtue of their licenses, enjoy the status of officers of the court. That status brings with it the responsibility to refrain from conduct unbecoming such officers, to uphold the rule of law, and to enhance public confidence in that rule and the legal system set up to safeguard it.
“As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission,'members of the bar share a land of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.” In re Snyder, 472 U.S. 634, 644-45, 86 L. Ed. 2d 504, 105 S. Ct. 2874 (1985).
As Justice Potter Stewart put it in his concurrence in an earlier case:
“[A] lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards.
“Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech.” In re Sawyer, 360 U.S. 622, 646-47, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 (1959).
Did respondent’s mailing of his letter 19 days after his discipline to more than 281 addressees constitute conduct prejudicial to the administration of justice? It did. His minimal research may have supported the existence of certain previous relationships between insurance industry clients and some group of members of the Disciplinary Board; he may truly have realized too late that he should have hired counsel to represent him in his disciplinary proceeding; he may have had previous unpleasant dealings with his own insurance company and suspected an insurance company’s involvement in alerting the disciplinary office to his behavior. Even if he was correct in all of these respects, even if his personal animosity toward the insurance industry was somehow justified, his wholesale indictment of the Kansas disciplinary process as “stacked against him” was not. Rule 8.4(d) can be violated by conduct unbecoming an officer of the court, even if a legal proceeding has ended and even if the lawyer stops somewhere short of spreading outright lies.
Members of the Disciplinary Board serve as judges or commissioners in the Kansas disciplinary process. Our society has a substantial interest in protecting them and other actors in the process from unfounded attacks, and it may do so without running afoul of a disciplined attorney s First Amendment rights. There is a line between just and unjust criticism. Respondent crossed it. This is evident from his plainly selfish motive. He displayed no desire to improve the disciplinary system, only to excuse its focus on him.
“Some judges are dishonest; their identification and removal is a matter of high priority in order to promote a justified public confidence in the judicial system. Indiscriminate accusations of dishonesty, by contrast, do not help cleanse the judicial system of miscreants yet do impair its functioning — for judges do not take to the talk shows to defend themselves, and few litigants can separate accurate from spurious claims of judicial misconduct.” Palmisano, 70 F.3d at 487.
We need not decide in this case whether, to prove a violation of Rule 8.4(d), the Disciplinary Administrator must demonstrate actual harm to the administration of justice. We note only that such actual harm was proved here. Testimony at the hearing before Karlin, Butaud, and Shultz established that respondent received several responses to his letter. At least some of these responses indicated that the letter had persuaded the recipient that respondent could not get a fair hearing, i.e., that he had been “burned” only because he had the audacity to “stir the pot” in an oppressively unfriendly forum, one much more welcoming to insurance company interests. This testimony illustrated the point of the following statement, made in connection with Rule 8.2 but equally applicable to 8.4(d): “Precisely because lawyers are perceived to have special competence in assessing judges, the public tends to believe what lawyers say about judges, even when lawyers speak inappropriately or make claims about which they are uncertain.” Maintaining the Integrity of the Professional, ABA Annotated Model Rules of Professional Conduct Rule 8.2, Annotation, p. 585 (5th ed. 2003).
Under these circumstances, we conclude that the Disciplinaiy Administrator marshaled clear and convincing evidence that respondent violated Rule 8.4(d). Respondent made a calculated de cisión to send his letter impugning the integrity of all involved in the Kansas disciplinary process for lawyers. Unlike the respondent in Nelson, he did not merely extemporize in answer to sudden press questions coming on the heels of discipline. Rather, he took time to digest this court’s decision and then chose to write a lengthy letter to hundreds of readers, shifting blame for his discipline from himself to an allegedly crooked system. In addition, despite his earlier admission of a Rule 8.4(g) violation and his contrition before this court, respondent asserted to the letter’s recipients that he had never agreed with criticism of his behavior. Finally, and, in someways, most troubling, respondent belittled the court’s public censure as a “slap on the wrist.” All of these statements in his widely published letter qualify as conduct prejudicial to the administration of justice under Rule 8.4(d).
Sanction
The Disciplinary Administrator seeks a 2-year suspension of respondent’s law license. Karlin recommended informal admonition; Butaud, a 6-month suspension; and Shultz, if any discipline was deemed warranted, informal admonition. A majority of the court believes a 3-month suspension is appropriate; a minority of the court would impose a less severe sanction. The majority acknowledges that a less severe sanction might have been acceptable had respondent not already trivialized the import and impact of published censure. In short, respondent’s inappropriate behavior and statements in response to Pyle I leave us no avenue other than harsher discipline to get his attention and motivate improved attitude and conduct.
It Is Therefore Ordered that respondent, E. Thomas Pyle, III, be and he is hereby suspended from tire practice of law in the state of Kansas for a period of 3 months beginning April 27, 2007, the date of our opinion. Costs of this proceeding shall be assessed to the respondent, and this opinion shall be published in die official Kansas Reports.
Luckert, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Nicholas McKissack forcibly entered his estranged girlfriend’s car and removed stereo equipment and compact discs that had been given to her by her ex-fiancé. He was charged with burglary and misdemeanor theft. A jury convicted him of burglary and criminal deprivation of property, based upon instructions from the trial court that criminal deprivation of property was a lesser included offense of theft. The Court of Appeals affirmed in State v. McKissack, Case No. 93,670, an unpublished opinion filed March 10, 2006. We granted McKissack’s petition for review to consider three questions: (1) whether criminal deprivation of property is a lesser included offense of theft; (2) the sufficiency of evidence to establish burglary; and (3) the admissibility of hearsay evidence.
Facts
In April 2004, Nicholas McKissack forcibly entered the automobile of his estranged girlfriend Megan Bushell, in order to remove stereo equipment and compact discs that he knew were given her by her ex-fiancé. Earlier that evening, McKissack had been in BushelTs dorm room and had witnessed an online conversation between Bushell and her ex-fiancé, where the ex-fiancé informed Bushell that he still loved her and wished to resume their relationship. McKissack left BushelTs dorm room feeling hurt and “enraged”; he later text-messaged her that he wanted to break off their relationship.
An eyewitness testified at trial that she observed McKissack and another person approach BushelTs Dodge Neon in a white Ford Probe (whose license plate number she identified) with the headlights out. She explained that McKissack got out of the Probe and, wearing gloves, removed stereo equipment from the Neon and placed it in the Probe. After the Probe drove off, the witness contacted the police and reported the license plate number, which led the police to McKissack’s residence.
A short time later, the police arrived at McKissack’s residence, where McKissack opened the door. McKissack assisted the police in recovering the missing property and admitted to taking it. However, he explained that he had removed the property as a prank and intended to return it to Bushell.
The State originally charged McKissack with burglary and felony theft; the information later replaced the felony theft charge with a reduced charge of misdemeanor theft.
McKissack testified at trial that he returned to the parking lot where BushelTs car was parked on April 7 because he wanted “[r]evenge, prank, make — to make her feel emotionally hurt as I was.” He used a screwdriver to pop out the passenger window of her Dodge Neon, reached in, and unlocked the door. McKissack explained that he knew how to do this because he had previously owned a Neon. He stated that he wore gloves in order to be “discreet.” He then removed a box of CDs from inside the car and the speakers and amplifier from the trunk.
McKissack also identified die man driving the Probe that evening as “Guido.” On cross-examination by the State, McKissack acknowledged that he had told the police that Guido had informed him that another man named “Dino” wanted BushelPs amplifier. This exchange was admitted over McKissack’s counsel’s objection, who argued outside the presence of the jury that die statement by Dino was double hearsay and impermissibly offered to prove the truth of die matter asserted — that “somebody had a conversation with somebody else about wanting this amp removed from die vehicle, and that’s die fact in evidence [the State] want[s] to get in.” The State claimed that “we’re not offering [the statement] to prove whether or not Guido — or Dino told Guido to take the amps out. We’re just saying that this is what the defendant told the officers that night when they were questioning him about the incident.” The statement was admitted.
Also over the defense’s objection, the trial court instructed the jury diat criminal deprivation of property is a lesser included offense of misdemeanor theft. McKissack argued that criminal deprivation of property could not be considered a lesser included offense of theft because criminal deprivation of property only involves an intent to temporarily deprive someone’s property, while theft involves an intent to permanently deprive. The State asserted that the intent to temporarily deprive is a “lesser intent” of the intent to permanentiy deprive. The court agreed with the State and overruled the objection, explaining that “[t]he intent to permanently deprive would include intent to temporarily deprive, so I think the lesser included [offense instruction] is proper.”
During deliberations, the jury submitted the following question to the court: “Can we find defendant guilty of burglary and not guilty of theft but guilty of criminal deprivation of property?” The court answered that “[t]he jury is instructed to review Instructions No. 5, 6, 7, 8, and 11. Your verdict must be founded on the evidence presented.” The jury subsequently found McKissack guilty of burglary and criminal deprivation of property.
Court of Appeals
The Court of Appeals affirmed, holding (1) that criminal deprivation of property is a lesser included offense of theft based upon our decision in State v. Keeler, 238 Kan. 356, Syl. ¶ 8, 710 P.2d 1279 (1985), Slip op. at 6-10; (2) that an insufficiency of the evidence claim cannot be upheld merely on the basis of inconsistent verdicts, Slip op. at 10-14; and (3) that the admission of Dino’s statement was not hearsay evidence offered to establish the truth of the statement but rather was offered to show defendant’s state of mind, Slip op. at 15-16.
(1) Is Criminal Deprivation a Lesser Included Offense of Theft?
Standard of Review
The question of whether criminal deprivation of property is a lesser included offense of theft is a purely legal question over which this court has unlimited review. See State v. Sandifer, 270 Kan. 591, 599, 17 P.3d 921 (2001).
Discussion and Analysis
The precise question raised by defendant has been answered by this court in Keeler, 238 Kan. 356. At that time this court held that the crime of unlawful deprivation of property under K.S.A. 21-3705 (Ensley 1981) was a lesser included offense of the crime of theft under K.S.A. 1984 Supp. 21-3701.
Prior to our decision in Keeler, the question of whether an unlawful (now criminal) deprivation of property was a lesser included offense of theft was a source of some tension in the Supreme Court (see Keeler, 238 Kan at 364-65) as well as the Court of Appeals. In State v. Burnett, 4 Kan. App. 2d 412, 607 P.2d 88 (1980), overruled in Keeler, Burnett was charged with theft of bank deposits and complained on appeal that he was entitled to an instruction on the lesser included offense of unlawful deprivation of property. The Court of Appeals concluded in Burnett that unlawful deprivation of property was not a lesser included offense in that “an intent to temporarily deprive the owner of property is a distinct element from an intent to permanently deprive.” 4 Kan. App. 2d at 418. In a dissenting opinion, adopted in Keeler, then Chief Judge Abbott opined that “unlawful deprivation of property and theft involve a different degree of intent; i.e., the intent to temporarily deprive versus the intent to permanently deprive. Thus, there is not a different element involved in unlawful deprivation. All of the essential elements are the same.” 4 Kan. App. 2d at 419 (Abbott, J., dissenting).
Although in this case the Court of Appeals followed our decision in Keeler, its opinion highlights the continuing tension between these opposing views in die following quote:
“We confess to some difficulty in grasping portions of the Keeler rationale. One would suspect that a person who steals for a living would commence each enterprise with the intent to permanently deprive tire property owner, without progressing through an interim intent to temporarily deprive. Conversely, some unauthorized ‘borrowers’ always intend to return the property to its owner, as McKissack contended was his plan. Further, as McKissack points out, the criminal deprivation of property statute specifically differentiates and excludes an intent to permanently deprive, which might suggest a legislative intent to create a separate intent element, rather than differing degrees of the general intent to deprive.” Slip op. at 7.
The opinion of the Court of Appeals signals the need for this court to revisit the question in light of statutory and case law changes that have occurred since our 1985 Keeler decision.
Statutory Changes
The lesser included crime statute in effect at the time of the Keeler opinion read, in relevant part, as follows:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant maybe prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to. commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved." (Emphasis added.) K.S.A. 1984 Supp. 21-3107(1), (2).
In 1998, the above statute was amended and now provides:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(a) A lesser degree of the same crime;
(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
(c) an attempt to commit tire crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).” (Emphasis added.) K.S.A. 2006 Supp. 21-3107(1), (2).
For our purpose, let us consider only the sections of the statutes which have been italicized above. At the time of Keeler, a lesser included crime was one necessarily proved if the crime charged was proved. Under the 1998 amendment governing this case, a lesser included offense is one where all elements of the lesser crime are identical to some of the elements of the crime charged. The essential difference between these two tests is that the common-law test in existence at the time of the Keeler decision “take[s] into account what facts were proved in satisfaction of the elements” and the strict elements test presently in existence “strictly” limits “the question ... to the abstract elements of the offenses charged.” See State v. Patten, 280 Kan. 385, 389, 122 P.3d 350 (2005) (discussing the current strict elements test in the context of multiplicity).
The approach prior to the 1998 amendment was primarily a factual one involving a determination of what facts were proved in satisfaction of the elements. Since intent was a shared element between the two offenses in question and the inquiry was determined by proof of facts, it made some sense to view intent as a dynamic, proof-driven concept separated only by degrees. See Keeler, 238 Kan. at 364-65. This was so even though the statutory definitions at that time pertaining to theft and unlawful deprivation of property seemed to provide otherwise. K.S.A. 1984 Supp. 21-3701(a)(1) defined theft as “[obtaining or exerting unauthorized control over property” “with intent to deprive the owner permanently of the possession, use or benefit of the owners property.” (Emphasis added.) K.S.A. 21-3705(a) (Ensley 1981) defined unlawful deprivation of property (the predecessor to criminal deprivation of property) as “obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owners consent but not with the intent of depriving the owner permanently of the possession, use or benefit of his property.” (Emphasis added.) The language of these definitions remains virtually unchanged in the current statutes. See K.S.A. 2006 Supp. 21-3701(a)(1); K.S.A. 2006 Supp. 21-3705(a).
However, with the 1998 amendment defining a lesser included offense as a crime where all elements of the lesser crime are identical to some of the elements of the crime charged, it no longer makes sense to consider intent as a fluid concept progressively changing by degrees based on facts proved at trial. See L. 1998, ch. 185, sec. 1. As discussed above, the present law limits our inquiry to the strict elements of the crimes. While the key element separating the two offenses still involves intent, the intent in each crime is differentiated by the use of the word “permanently” in the case of theft and “temporarily” in the case of criminal deprivation. These separate elements are not dynamic, but rather are fixed, independent of the facts proven. The difference between the two separate elements of each crime demonstrates that criminal deprivation of property is a separate offense and not a lesser included offense of theft.
The above conclusion is supported by our consideration of the strict elements test in K.S.A. 2006 Supp. 21-3107(2)(b) and the definition of criminal deprivation of property as an intent to deprive the owner of the temporary enjoyment of his or her property “but not with the intent of depriving the owner permanently of the possession, use or benefit of such owners property.” (Emphasis added.) K.S.A. 2006 Supp. 21-3705(a). The definition of theft includes the very words that are excluded in the definition of criminal deprivation: “[W]ith [the] intent to deprive the owner permanently of the possession, use or benefit of the owners property.” (Emphasis added.) K.S.A. 2006 Supp. 21-3701(a)(1). The strict elements test adopted in 1998 by the legislature no longer supports the conclusion that criminal deprivation of property is a lesser included offense of theft.
Case Law Changes
Intricately involved with and just as important to our conclusion are the recent decisions of this court in State v. Garcia, 272 Kan. 140, 32 P.3d 188 (2001), and Patten, 280 Kan. 385. Both cases deal with the question of multiplicity and lesser included offenses. Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense. Such punishments are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See State v. Schuette, 273 Kan. 593, 600, 44 P.3d 459 (2002).
Both K.S.A. 1984 Supp. 21-3107(2) (in effect at the time of Keeler) and K.S.A. 2006 Supp. 21-3107(2) address the question of multiplicity by providing that separate offenses may be charged in separate counts but upon prosecutions for a crime, “the defendant may be convicted of either the crime charged or a lesser included crime, but not both.” Garcia dealt with multiplicity under K.S.A. 21-3107, which contains language identical to the statute in effect at the time of Keeler. However, it addressed the 1998 amended version of the statute, foreshadowing our recent decision in Patten:
“It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107 to essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its place, the legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an included crime is one where ‘all of the elements of the lesser crime are identical to some of the elements of the crime charged.’ This will necessarily change the multiplicity analysis for cases which occur under the new statute and signifies a return to the identity of the elements standard that this court used prior to the enactment of K.S.A. 21-3107. Such a change, while allowing convictions for crimes which would have been multiplicitous under the statute at issue here, does not violate constitutional prohibitions against double jeopardy as it does not subject defendants to punishments greater than those intended by the legislature. [Citation omitted.]” (Emphasis added.) Garcia, 272 Kan. at 147.
In Patten, where this court considered whether possession of drug paraphernalia was a lesser included offense of the crime of manufacture of methamphetamine, the court explained in detail the differences between the common-law test, which had been used by this court in Keeler, and tire strict elements test. The “ ‘common-law’ elements test” questioned whether “each offense charged requires proof of a fact not required in proving tire other.” Patten, 280 Kan. at 389. If this were the case, the two crimes were not multiplicitous (and one could not be a lesser included offense of the other). The other test, now known as the strict elements test, asks “ ‘whether each offense requires proof of an element not necessary to prove the other offense. If so, tire charges stemming from a single act are not multiplicitous.’ ” 280 Kan. at 389 (quoting State v. Stevens, 278 Kan. 441, Syl. ¶ 3, 101 P.3d 1190 [2004]). Patten explained that the essential difference between these two tests is that the common-law test “take[s] into account what facts were proved in satisfaction of the elements” and the strict elements test “strictly” limits “the question of multiplicity ... to the abstract elements of the offenses charged.” 280 Kan. at 389.
Acknowledging the distinctions between these two tests, this court explicitly adopted die strict elements test to determine whether convictions were multiplicitous. The Patten court explained that its decision was particularly influenced by the strict elements analysis’ “logical, mechanical ease of application and, hence, certainty. Consideration of the facts proved, in contrast, puts multiplicity on a case-by-case basis.” 280 Kan. at 393. Applying the strict elements analysis, the court found that convictions for possession of drug paraphernalia and manufacture of methamphetamine did not violate double jeopardy, even though such crimes would have been found multiplicitous under the common-law test. See 280 Kan. at 393.
In affirming the trial court in this case, the Court of Appeals expressed some doubt that we would overturn Keeler, but its discussion of our decision in Patten is worth noting:
"Patten adopted a strict elements test, comparing the statutory language of the two crimes to determine whether one requires proof of an element not required by the statutory language defining the other crime. 280 Kan. at 393. . . . Here, criminal deprivation of property requires proof that the property was taken ‘with intent to deprive the owner of the temporary use thereof,’ but that intent is not an element of theft. Conversely, theft requires an intent to permanently deprive the owner of the possession, use, or benefit of the property, while the definition of criminal deprivation specifically excludes the intent to permanently deprive. Thus, under Patten’s strict elements test, a conviction for both criminal deprivation of property and theft would not have been multiplicitous. However, under Keeler, criminal deprivation of property is a lesser included offense of theft, and a person may not be convicted of both the charged crime and the lesser included offense.” Slip op. at 9.
The above reasoning provides yet another example why we depart from our previous decision in Keeler. We now hold that the crime of criminal deprivation of property is not a lesser included offense of theft, and we overrule that part of the Keeler decision concluding otherwise. We further conclude that the trial court erred when it provided the jury with an instruction on criminal deprivation of property, which was neither a lesser included offense nor charged in the complaint or information.
Moreover, because the complaint and information in this case failed to charge McKissack with criminal deprivation of property, the district court lacked jurisdiction to convict the defendant of that crime. As we stated in State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000): “ ‘[I]f a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.’ [Citation omitted.]” A judgment for an offense where the court is without jurisdiction is void. 269 Kan. at 8.
We therefore reverse defendant’s conviction for criminal deprivation of property.
(2) Sufficiency of Evidence to Establish Burglary
As his next contention, McKissack argues that because the jury returned a verdict of guilty on criminal deprivation of property and not on theft, there was insufficient evidence before the jury to find him guilty of burglary (which requires an intent to commit a theft). Thus, he argues that he should be acquitted of the burglary charge.
We note as a preliminary matter that the defendant’s contention is not an argument that directly attacks the sufficiency of evidence to establish his burglary conviction. If that were the case, as the following discussion indicates, his contention would be rejected. Instead, we understand his argument to be that because the jury was improperly instructed that criminal deprivation of property is a lesser included offense of theft, the jury’s subsequent conviction of the defendant of criminal deprivation and acquittal of the defendant of theft undermines the validity of the defendant’s burglary conviction.
Standard of Review
“ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
Furthermore, this court has held that when a defendant challenges his or her verdict on the basis of the jury instructions provided and the defendant objected to the jury instructions below, our court is required to consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).
Discussion and Analysis
Burglary is defined by statute as “knowingly and without authority entering into or remaining within any . . . motor vehicle .. . with intent to commit a felony, theft or sexual battery therein.” K.S.A. 21-3715(c). Similarly, the instruction presented to the juiy on burglary in this case was that, in order to find the defendant guilty of burglary, the State was required to prove beyond a reasonable doubt that (1) “the defendant knowingly entered a motor vehicle”; (2) “the defendant did so without authority”; and (3) “the defendant did so with the intent to commit a theft therein.”
McKissack correctly asserts that misdemeanor criminal deprivation of property is neither a theft nor a felony, and his conviction of criminal deprivation therefore does not support his conviction of burglary. Compare K.S.A. 2006 Supp. 21-3705(a) (criminal deprivation of property) with K.S.A. 2006 Supp. 21-3701 (theft). Not only does the charge not support a burglary, but also we have set aside his criminal deprivation, of property charge.
His argument has a certain common-sense appeal. The jury verdicts do seem inconsistent, in that the jury apparently found that the defendant did not possess the requisite specific intent to be convicted of theft (the intent to permanently deprive Bushell of her property) but nonetheless did possess this intent for purposes of the burglary charge. His argument raises the issue of inconsistent verdicts and whether such inconsistency warrants the relief requested.
This question is one of law. As this court has previously explained, “[t]he conduct of a jury is sometimes devoid of logic, and inconsistent verdicts may result. Even in cases where the two verdicts are irreconcilable the convictions will not be reversed on grounds of inconsistency.” State v. Shultz, 225 Kan. 135, Syl. ¶ 8, 587 P.2d 901 (1978).
This rule for upholding inconsistent verdicts is bolstered by the fact that the jury in this case was provided the following instruction:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your findings as to each crime charged must be stated in a verdict form signed by the Presiding Juror.”
Because juries are presumed to have followed the instructions given, one must assume that they understood that their verdicts were independent of one another. See State v. Donaldson, 279 Kan. 694, 700, 112 P.3d 99 (2005).
However, under the facts unique to this case, the above assumption is somewhat undermined. During its deliberations, the jury posed the following question to the trial court: “Can we find defendant guilty of burglaiy and not guilty of theft but guilty of criminal deprivation of property?” The court answered that “[t]he juiy is instructed to review Instructions No. 5, 6, 7, 8, and 11. Your verdict must be founded on the evidence presented.”
None of the instructions to which the court referred directly answered the question posed by the jury. On the one hand, the trial court’s instruction on burglary was correct and included only theft as a predicate for burglaiy. On the other hand, the instructions as a whole erroneously advised the jury that criminal deprivation of property was a lesser included offense of theft. As one can readily see, the jury did exactly what its question asked — convict the defendant of criminal deprivation of property and burglary.
The general rule in favor of upholding inconsistent verdicts is premised on the understanding that the jury is properly instructed as to the legal principles that should be applied in deciding a case. In this case, the court incorrectly instructed the jury over the defendant’s objection that criminal deprivation of property was a lesser included offense of theft. We conclude the juiy was misled by the court’s erroneous instruction, particularly in light of the jury’s question to the court during its deliberations. See Edgar, 281 Kan. at 54. Thus, we have no confidence in the jury’s verdict.
Under these unique circumstances, there is a real possibility that the jury based its conviction of burglaiy not on other evidence produced at trial but rather upon defendant’s conviction of criminal deprivation of property. We therefore reverse defendant’s burglaiy conviction, not on the basis of inconsistent verdicts or sufficiency of evidence, but rather on the basis that we have no confidence in the guilty verdict rendered in light of the jury’s question to the trial court during its deliberations and the erroneous instructions by the trial court.
(3) Admissibility of Hearsay Evidence
Both the trial court and the Court of Appeals concluded that the defendant’s statement to the police at issue here — that Dino told Guido (who subsequently told defendant) that Dino wanted Bush-ell’s amplifier — was not offered to prove the truth of the matter stated and, therefore, was not hearsay and was admissible.
Standard of Review
This court generally reviews a trial court’s admission of evidence under an “ ‘abuse of discretion’ ” standard. State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004) (quoting State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 [2002]); see State v. Sanders, 258 Kan. 409, 421, 904 P.2d 951 (1995). However, as this court has recently explained, “ ‘ “[t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” ’ State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]).” State v. Davis, 282 Kan. 666, 672, 148 P.3d 510 (2006).
Discussion and Analysis
At trial, the court admitted the statement in question — that Dino told Guido (who subsequently told McKissack) that Dino wanted Bushell’s amplifier — over McKissack’s objection. The following exchange took place between the prosecution and McKissack during the defendant’s cross-examination:
“Q. Did you make a statement [when talking to a police officer about the incident] in reference to a guy named Dino?
“A. I had made a comment of Dino to him [police officer],
“Q. And who was Dino?
“A. He’s an ex-friend of mine.
“Q. Did you make the statement that Dino had wanted — that Dino had told— that Guido had told you that another man by the street name of Dino had mentioned to Guido that he wanted the amp removed?
“A. Yes, I had told the officer that.”
In this case we deal with a statement made by the defendant during an investigation of theft and burglary within a very short time after the taking of the property. Whether the statement given to the officers by the defendant was true was not the issue before the trial judge court. The key issues before the trial court and the basis of its ruling was that it was a statement by the defendant to the police on the evening in question. In its ruling, the trial judge explained:
“I think the fact in evidence they [die State] want to get in is that it’s a separate statement he [the defendant] made to the police other than I did this as a prank, and I think that’s the purpose for which it’s intended. And I diink it’s permissible to show that he had some other motive in talking to the police other than being open and frank.” (Emphasis added.)
The trial court found that the statement was not offered to prove the truth of the matter but instead was evidence of the defendant’s motive in talking with the police.
K.S.A. 2006 Supp. 60-460 defines hearsay as “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” Such evidence is inadmissible, unless it falls under a recognized exception. K.S.A. 2006 Supp. 60-460. This .court has explained that “[t]he theory behind the hearsay rule is that when a statement is offered as evidence of the truth asserted in it, the credibility of the asserter is the basis for the inference, and therefore the asserter must be subject to cross-examination. 6 Wigmore on Evidence § 1766 (Chadbourn rev. 1976).” State v. Harris, 259 Kan. 689, 698, 915 P.2d 758 (1996). However, if an out-of-court statement is offered “merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement, the statement is not hearsay. If relevant, it is admissible through the person who heard it. [Citation omitted.]” State v. Vontress, 266 Kan. 248, 253, 970 P.2d 42 (1998).
The defendant contends that the statement he made to police was offered as hearsay to prove the truth of the matter stated. This court considered the scope of the hearsay rule and the “ ‘truth of the matter stated’ ” language in Harris, 259 Kan. at 698. In that case, Harris was charged with first-degree murder and aggravated battery of a law enforcement officer, in connection with an event that took place at Leavenworth Correctional Facility, where Harris was an inmate. At trial, another inmate at the facility testified for the State over Harris’ objection. The witness testified that both he and Harris were present during a conversation between two members of the Vice Lords gang (of which the defendant was also a member) that the prison guards were “ ‘cracking down’ on the Vice Lords.” 259 Kan. at 694. The gang members also discussed “ ‘getting even’ with the guards.” 259 Kan. at 694.
Harris’ counsel objected at trial to the admission of this testimony on grounds that it was hearsay and that there was no evidence that the statements were made by Harris or that he shared these views. The trial court overruled the objection because it found the witness’ “anticipated statements were not offered to prove the truth of the matter asserted but merely offered to show that they had been said.” 259 Kan. at 694.
This court, however, disagreed with the trial court’s assessment of the testimony and ruled that the statements in question were indeed hearsay. 259 Kan. at 698-700. The Harris court distinguished the statements it considered there from “the usual case in which statements which would otherwise be hearsay are offered, not to prove the truth of the matter asserted, but merely to show that the statements were said.” 259 Kan. at 699. The court elaborated:
“We have allowed the use of statements which would otherwise be hearsay to show that the defendant’s story had changed over time, to show the defendant’s state of mind, or to show that a Miranda warning was given. [Citations omitted.] However in this case, the statements were offered by the State as evidence of premeditation on the part of the defendant, and the content of the statements themselves reflect such premeditation.
“In State v. Oliphant, 210 Kan. 451, 454, 502 P.2d 626 (1972), we identified three types of statements exempted from the hearsay rule when offered, not for the truth of the matter asserted, but without reference to such a truth. These three groups are: (1) those statements material to the case as part of the issue; (2) those statements which are verbal parts of an act; and (3) those statement used circumstantially as giving rise to an indirect inference but not as an assertion to prove the matter asserted. The State argues that the statements made in this case fall under the third categorization used in Oliphant. According to the State, the evidence was used indirectly to infer premeditation on the part of the defendant.
“However, the only way in which the evidence can be used to infer premeditation on the part of the defendant is if the statements asserted were true, i.e., if the guards were actually cracking down on the Vice Lords and the Vice Lords felt that drey should get even. . . .
“ . . . The fact that the defendant merely heard these statements does not infer premeditation. Instead, tire probative value of the statements is that they allow a jury to infer that the Vice Lords were angry and wanted to get even, thus providing a motive and evidence of premeditation. If not to show the truth of the matter asserted, there was no other reason for the State to offer the statements. Under these circumstances the statements were hearsay.” (Emphasis added.) Harris, 259 Kan. at 699-700.
We note that there is a marked difference between Harris and this case. This case involves a statement made to police by the defendant, whereas Harris involved a statement made by another inmate attributing complicity to the defendant. What it important in this case is that McKissack voluntarily supplied certain information to the officers — information that he had the opportunity to explain to the jury during his testimony. Whether the information was true was unimportant, and the defendant’s statement to the police was not offered to prove the truth of the information. Instead, the statement was offered to demonstrate that tire defendant’s state of mind in providing this information to the police. The statement of the defendant is therefore more appropriately governed by the third category in Oliphant, as a statement used circumstantially giving rise to an indirect inference but not as an assertion to prove the matter asserted. See 210 Kan. at 454. We agree with the decision of the trial court and the Court of Appeals.
Conclusion
The decision of the district court is reversed. We reverse in part and affirm in part the Court of Appeals’ decision. The defendant has been acquitted of theft. His criminal deprivation of property conviction is reversed, but he may be charged for this offense unless such a charge is barred by the statute of limitations or some other procedural barrier. His burglary conviction is reversed, and the case is remanded.
Reversed and remanded.
Johnson, J., not participating.
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The opinion o£ the court was delivered by
Foth, C.:
This is an action on an insurance policy by the insured against his insurance company for the value of his insured truck, which was totally destroyed in an accident on July 18, 1968.
The case was tried to a jury which found in favor of the plaintiff and fixed the value of the truck at $8,500 at the time of its destruction. The $250 deductible clause was not applicable because the value found exceeded the policy limit and judgment was therefore rendered for the full limit of $8,000.
At a post trial hearing the court determined that plaintiff should be awarded a reasonable attorney fee under K. S. A. 1969 (now 1971) Supp. 40-256, and fixed the amount at $3,000.
The defendant insurance company appeals, specifying two trial errors and complaining about the award of attorney fees. Plaintiffappellee asks that, if we affirm, we make an additional allowance for the services of his attorney on this appeal.
From the time of the accident in July until December 2, 1968, plaintiff engaged in a series of negotiations with a claims adjuster employed by the company. More concerning these negotiations will be related later, but they included numerous conversations with the adjuster and the securing by plaintiff and furnishing to the company an appraisal of the truck at $8,500 to $9,000. On the latter date an agreement was reached whereby the company’s draft was issued in the amount of $7,250, in return for plaintiff’s receipt and a release acknowledging that the sum was “in full settlement and discharge” of plaintiff’s claim for the loss of the truck.
The company stopped payment on the draft, for reasons to be discussed, thereby precipitating this lawsuit. In its answer it set up the agreement as a defense, and paid $7,250 into court. On motion of plaintiff this portion of the answer was stricken, and defendant’s offers of testimony concerning the agreement were repeatedly rejected during the trial. The trial court’s ruling on the motion and its exclusion of all reference to the agreement and release together form the basis for the company’s first claim of error.
The trial court’s theory was that the abortive agreement was an offer of compromise, saying on one occasion, “There will be no evidence of negotiations or no hint of negotiations;” and on another, ‘Tes, it smacks of negotiations and is inadmissible and your offer will not be allowed.” The court was applying the well established rule that an offer to compromise a difference is not admissible in evidence unless such offer contains an admission of fact. O’Bryan v. Home-Stake Production Co., 195 Kan. 213, 403 P. 2d 978; T. M. Deal Lbr. Co. v. Jones, 137 Kan. 480, 21 P. 2d 933; Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182.
Plaintiff’s willingness to accept $7,250 to settle a claim under a policy limited to $8,000 cannot by itself be said to indicate any admission of fact. At trial and in its offer of proof the company sought to show that in the course of the settlement negotiations plaintiff “admitted” or “agreed” that the truck was worth only $7,500. This theory of admissibility appears to have been abandoned in this court. Here the company bottoms its entire argument on the doctrine of equitable estoppel. Plaintiff, it claims, did not make a full disclosure to it before entering into the settlement agreement. Whatever the merit of appellant’s position — and in the light of the facts set out in our subsequent discussion of attorney fees there may be very little — it was never presented to the trial court, either by pleading or so far as the record shows by argument. We conclude that the trial court did not commit reversible error by preventing the settlement negotiations from being considered by the jury.
The truck in question was, at the time of its destruction, leased to and operated by Friesen Truck Line, Inc. The defendant offered the opinion testimony of the manager of the line, Abe Friesen, as to the value of the truck. Appellant’s second allegation of error is the trial court’s refusal to permit him to express such opinion.
The first attempt to elicit the opinion came after the witness had given his background in the trucking business:
“Q. In the course of your business of running a truck line do you have occasion to purchase trucks from time to time?
“A. Yes, we do.
“Q. And in purchasing these trucks do you have occasion to place some monetary value on these trucks?
“A. I am not so much interested in buying used trucks; I buy new trucks.
“Q. You buy new trucks when you buy?
“A. Right.
“Q. Have you had occasion to value used trucks during the course of your business?
“A. I don’t go around truck lots and value trucks.
“Q. But you are generally familiar with the value of the trucks to you in your business?
“A. A used truck might be worth less money to me than it would be to somebody else because I am not interested in used trucks.
“Q. But being in the trucking business you are familiar with used trucks and their value?
“A. Fairly so.
“Q. On the basis of your experience in the trucking industry and on the basis of your familiarity with this truck, do you have an opinion as to its value at the time it was destroyed?
“Mr. Thorne: To which we object, the witness has not been shown to be qualified.” (Emphasis added.)
The objection was sustained and the appellant made a further effort to qualify the witness, culminating in the following:
“Q. During the course of this business experience, how many trucks would you say you have had?
“A. Probably forty.
“Q. And you purchase some of these, have you not?
“A. Purchased them all.
“Q. So you have purchased 40 trades for your business. What about leasing trucks, how many have you leased?
“A. Probably three.
“Q. And these were some to supplement your regular fleet of trucks, is that right?
“A. Yes.
“Q. When you have had these forty trucks, when you are finished with them, do you take them down and trade them in on a new truckP
“A. Right.
“Q. And you have been doing this for 20 years?
“A. Right.
“Q. And you are still engaged in that business?
“A. Yes.
“Q. So based upon your total experience in the trucking industry, do you have an opinion as to the value of the track in question here?
“A. Like I said before, that truck probably wouldn’t be worth as much to me as it would be to somebody else.
“Mr. Thorne: Your Honor, he said he didn’t go around to track places and value trucks and he doesn’t know the value of trucks and it would be worth less to him than to somebody else, and we make the same objection.
“The Court: The objection is sustained, he has not been qualified as an expert witness.” (Emphasis added.)
Generally, whether a witness is qualified to render an opinion is a matter to be determined within the sound discretion of the trial judge. Hildebrand v. Mueller, 202 Kan. 506, Syl. ¶ 1, 449 P. 2d 587; Howard v. Stoughton, 199 Kan. 787, Syl. ¶ 2, 433 P. 2d 567; Taylor v. Maxwell, 197 Kan. 509, Syl. ¶ 2, 419 P. 2d 822. The self-effacing answers of the witness in the face of counsel’s earnest efforts to qualify him surely put the expertise of the witness in serious doubt. We cannot say the trial court abused its judicial discretion in finding the witness was not an expert on the market value of used trucks.
On this point, as on the previous one, appellant shifts its theories on reaching this court. Although the effort below was clearly to qualify the witness as an expert, before us appellant urges that the witness should have been allowed to express his opinion be cause as a lessee he “stood in the shoes” of the owner. No cases are cited in support of this proposition. Appellant does cite cases where “real value” is an issue because “market value” cannot be shown. Under those circumstances persons other than the owner or an expert have been held competent to testify where they were shown to be familiar with such “real value.” (E. g., Hollinger v. Railway Co., 94 Kan. 316, 146 Pac. 1034.) Even if this theory for admissibility were available to the company when urged for the first time in this court, here there is a market value, and in addition, the witness didn’t really claim to any particular familiarity with the value of the truck.
Finally, appellant complains most bitterly about the allowance of an attorney fee. No attack is made on the amount allowed but the company vigorously contests any obligation on the ground that it did not refuse to pay the loss “without just cause or excuse,” the statutory ground for an allowance under K. S. A. 40-256, as amended.
To evaluate the company’s claim that it had just cause to refuse to pay we must look at the situation as it developed from the loss in July, 1968, to the filing of this suit on December 19, 1968.
Title to the vehicle was in the name of plaintiff, with a lien shown in favor of General Motors Acceptance Corp. (G. M. A. C.). Friesen was known to be a lessee.
While plaintiff was negotiating with the company’s adjuster for a settlement of his claim he received a letter dated October 2, 1968, from a Hutchinson attorney representing the estate of George W. Ballard, the deceased driver of the truck. This letter asserted a claim against plaintiff on behalf of Ballard’s heirs under an alleged oral contract to buy the truck. Plaintiff promptly consulted his attorney, who examined Friesen’s records, discussed the matter with counsel for the Ballard heirs, and advised plaintiff that he thought there was no merit to the claim.
Negotiations with the insurance company proceeded apace, with plaintiff securing and furnishing a statement from the company which sold him the truck valuing it at $8,500 to $9,000, mentioned above. Eventually an agreement was reached producing the release of December 2, 1968, and the draft for $7,250. The draft itself is not in the record, but we gather it was payable jointly to plaintiff, G. M. A. C. and Friesen.
Exactly when the insurance company first became aware of the purported claim of the Ballard heirs does not appear in the record, although it would seem to be important to much o£ appellant’s case. The record does contain the uncontroverted testimony of plaintiffs counsel concerning his dealings with the company. His testimony would indicate that the company knew of the Ballard claim in early October, 1968. Refusal to pay was based on the existence of the Ballard claim in three separate telephone conversations in which he pursued the matter up the company’s chain of command. The first was with the company’s adjuster in Wichita on October 6, the second with an agent in Denver on die same day, and the last with the home office in Des Moines, on October 7. The home office, according to this testimony, on October 7 referred the whole matter to counsel representing the company in this suit and agreed to have them call plaintiff’s attorney.
If correct, these dates render any “nondisclosure” by plaintiff of the Ballard claim irrelevant, and demolish whatever validity there might otherwise be to appellant’s assertion of equitable estoppel mentioned above.
The October dates for these conversations seem to us implausible. It does not seem likely that the company’s adjuster, against this background of controversy and in the face of the adamance of his employers, all of some two month’s standing, would have proceeded to negotiate the agreement of December 2. It seems far more likely that the conversations took place in early December, immediately after payment was stopped on the first draft. We would attribute the appearance of the October dates in the record, repeated though they are, to transcribing errors on the part of the court reporter, typographical errors on the part of the printer, or to the faulty memory of the witness. We do note that there was no effort on the part of appellant’s counsel to clarify or explain this apparent discrepancy either below or in this court. If the dates are correct the company’s conduct for the following two months, consisting of silence and the December 2 agreement, is utterly incomprehensible.
However, in the view we take of the case the dates of the conversations are really immaterial. Whenever they may have occurred, the next step was a conversation between plaintiff’s counsel and defendant’s on December 16, 1968. The matter of the Ballard claim was then discussed, and plaintiff’s claim for the full $8,000 coverage under the policy was asserted. That day the company’s counsel put themselves on record as follows:
“16 December 1968
288-68-6-2
Ralph J. Thome
Attorney at Law
315 West 1st Avenue Hutchinson, Kansas 67501
Re: Lord v. Ballard
Dear Ralph:
State Auto has retained us in the above captioned matter with regard to the settlement draft covering the damage to the tractor unit.
As you know, Leander Hamilton now contends George W. Ballard was purchasing the tractor, and hence his name should be on any settlement drafts. For this reason the original draft forwarded No. 615657 has a stop payment order on the same. Until we can get some sort of release from Hamilton with regard to the Ballard Estate, we cannot honor the draft. You might check with Leander, and see if something can be worked out at your end; if not, the suit naming all parties including State Auto would find us responding by simply tendering the money into Court — allowing the court to determine who gets what.
Yours truly,
Turner & Balloun, Chartered
By-
Lee Turner
LT/lfs
cc: I. H. McDonald — Des Moines, Iowa”
The impact of this letter was a final refusal to pay unless plaintiff could first settle the Ballard claim and furnish proof of such settlement — whatever the merits of the Ballard claim. The company’s position was solidified as “settle with them, or sue us.” Two days later plaintiff took the company and its counsel at their word and instituted this action.
As we have often said, whether attorney fees are to be allowed “must depend on the facts and circumstances of each particular case,” and they can be allowed “only where the insurer refuses without just cause or excuse’ to pay in accordance with the terms of the policy.” (Parker v. Continental Casualty Co., 191 Kan. 674, 684, 383 P. 2d 937. And see cases cited therein.)
Was payment here refused with just cause or excuse? In considering a similar refusal to pay an insurance claim we recently framed the test as follows:
“The question is, how did the matter appear ... [to the insurance company] as judged by a reasonable and prudent man seeking to determine the facts of the controversy which it was his duty in good faith to investigate.” (Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P. 2d 756.)
We thus again recognized that an insurance company is not required to pay a claim while a bona fide question of liability exists. But at the same time we recognized that the company has a duty to make a good faith investigation of the facts before finally refusing to pay. We have here absolutely no effort, either on the part of the insurance company or its counsel, to investigate (much less “in good faith”) the merits of the Ballard claim prior to die final refusal to pay. Instead, the insurance company put the entire burden on its insured, taking the somewhat lofty position that investigation, evaluation, and determination of the claim was not its responsibility. That the Ballard claim might be based on erroneous facts, or be a “nuisance” claim, or be wholly frivolous was none of its concern; it would not deign even to inquire. In short, it did not know and did not care whether its “cause or excuse” for refusing to pay was “just.”
Subsequent events provided it with further edification: The company paid $7,250 (not $8,000) into court and interpleaded the various Ballard heirs, as well as G. M. A. C. The lien of G. M. A. C. was eventually paid, but the Ballard heirs were in due course dismissed by default (although one group asked for additional time to plead before defaulting). That there was no merit to the Ballard claim could, we believe, have been ascertained by the company had it fulfilled its duty to investigate in good faith; such was the conclusion reached by plaintiff’s counsel after his brief investigation.
Independent counsel (testifying mainly as to the value of the services of plaintiff’s counsel) responded on cross-examination by the company that, given the record title present here and with knowledge of the purported claim of the Ballards, he would have advised payment to plaintiff in return for an agreement to indemnify the company against any liability on such claim. As to the impact of the claim letter itself he said, “I would completely ignore it until I have some land of a service of legal action taken.”
We therefore agree with the trial court’s conclusion that when it issued its ultimatum of December 16, 1968, refusing to pay, the company had no “just cause or excuse” for such refusal. The allowance of an attorney fee to the insured plaintiff was therefore proper.
In view of our conclusions, we reach appellee’s request for an additional fee on appeal, now required by K. S. A. 1971 Supp. 40-256 as a result of its 1967 amendment. A reasonable fee for such services will be fixed by order and taxed as part of the costs in this court.
The judgment is affirmed.
APPROVED BY THE COURT.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is a “slip and fall” case. The accident occurred on August 29, 1968, at approximately 10:45 p. m. in appellee’s self-service grocery store in Wichita, Kansas.
The appellant entered alone and was shopping for several items. He walked down the west aisle and picked up bread; he began to proceed to another location in the supermarket when he slipped on a grape on the floor and fell. He did not see any grapes prior to the fall, but after his fall he noticed a “mashed grape” on the sole of his shoe and a wet spot on the floor that resulted from slipping on the grape. He also observed several other grapes on the floor in that vicinity; the observation was subsequent to the fall.
Following the accident, the appellant’s call for assistance was responded to by one of the appellee’s employees, Robert Stack, a checker in the supermarket. Upon reaching the accident site, Stack observed ten to fifteen loose grapes scattered on the floor. He was deposed, and said he saw several mashed grapes and was uncertain whether they were mashed by the appellant or other customers.
Another of the appellee’s employees, Stephen McKelvey, in an unsworn statement said he called an ambulance, his employer, and the appellant’s wife. After the ambulance attendants removed appellant, McKelvey went to the scene of the accident. He observed loose grapes on the floor around that area and assisted in picking up the loose grapes off the floor; some were squashed, some were not.
One of appellee’s “courtesy boys”, Randy Cook, was responsible for sweeping the floors on the evening of the accident. Cook’s deposition indicates the floors were swept at approximately 5:00 p. m., and around 7:30 that evening. During the second sweeping, he observed grapes on the floor under the produce display counter on the other side of the store where the grapes were located.
The pretrial order raised eight allegations of negligence on the part of the appellee, its agents, or employees: Causing or permitting grapes to lay in aisle on floor; failure to adequately inspect the business; failure to warn plaintiff of grapes being on floor; negligence in displaying grapes; failure to package grapes; failure to have sufficient employees on duty; failure to adequately supervise and train employees, and failure to require written check lists.
The appellee filed a motion for summary judgment on September 11, 1970, which was sustained by the district court by letter on September 29, 1970. The rationale of the district court’s decision for summary judgment was that the court failed to find any evidence to indicate the proprietor had actual notice of the grapes on the floor, or that any of its employees had any knowledge of the presence of the grapes on the floor prior to the appellant’s fall.
The sole issue is whether the district corut erred in sustaining the motion for summary judgment — the appellant contends the pretrial order disclosed genuine issues of material fact.
Summary judgment is not a proper method to dispose of a case if there is a genuine issue of material fact outstanding, disputed, or controverted by adverse parties. A genuine issue of material fact is one that is not a sham, one in which the dispute is not frivolous or so unsubstantial that trial of the issue would impose an injustice upon the judicial system — a system reserved for issues that have a solid foundation in fact and in law. Summary judgment is seldom proper in negligence cases because the issues of negligence and contributory negligence are normally premised on controverted facts, a proper consideration for the jury in our system. (Knowles v. Klase, 204 Kan. 156, 460 P. 2d 444, and cases cited.) In Knowles we stated the general rules of law in regard to liability in cases of this character, as follows:
“A proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. If an unsafe condition is created by the proprietor or those for whom he is responsible, or if it is traceable to their actions, proof of notice of the condition is unnecessary. When a dangerous condition is neither created by the proprietor or those for whom he is responsible, nor traceable to their actions, proof of negligence with respect to a floor condition requires some showing they had actual or constructive notice of the dangerous condition. A proprietor may be charged with constructive notice of the condition if the condition existed for such length of time that the proprietor, his agents or employees should have known of it in the exercise of ordinary care.” (1. c. 157.) (Emphasis supplied.)
We are of the opinion the district court erred in concluding there was no evidence from which a jury might find the appellee had constructive notice of the loose grapes on the floor.
Robert Stack’s deposition states:
“Q. Could you take this pen — well, first were you at one of these checkout counters at the time that you heard Mr. Johnson calling for help?
“A. Yes, I was.
“Q. Could you take — I’ll borrow the reporter’s marking pencil. Could you take this marking pencil and just make a small x to illustrate the area where you were.
“A. (Witness complies.)
“Q. You’ve made an x just north of the first checkout counter, is that correct?
“A. Yes.
“Q. Were you inside this counter?
“A. Yes, I was.”
Randy Cook’s deposition states:
“Q. (By Mr. Post) But at the time this incident occurred if a person in the number 1 check-out stand had looked he would have been able to see those grapes?
“A. Yes.”
“Q. So if these grapes were around that area, why, the person in that checkout stand, if he had been looking, would have seen them, wouldn’t he?
“A. Yes.”
Robert Stack’s deposition further states:
“Q. Did you notice whether any of the grapes around in the area had been smashed, either by Mr. Johnson or by somebody else walking in the area?
“A. Did I notice if any grapes were smashed?
“Q. Yes.
“A. Yes. I noticed there was one smashed grape.
“Q. Did you see other smashed grapes nearby?
“A. Yes. Quite a — there was maybe two or three or four out of the bunch that somebody evidently stepped on them.
“Q. And did it appear that some of these other of these two or three or four had been smashed by someone other than Mr. Johnson?
“A. They could have been, yes.
“Q. Did it appear that those grapes had been there on the floor for some period of time?
“A. There’s no way really of telling that.”
“Q. These grapes that you saw that were smashed on the floor, did it appear to you that some of those would have had to have been smashed by other customers?
“A. Yes. Probably.
“Q. In other words, the ones that were smashed weren’t all together in one place, they were several different places, is that correct?
"A. Yes.”
The unsworn statement of Stephen McKelvey conflicts with the deposition of Randy Cook in that McKelvey stated the floor had not been swept since 6:00 p. m., almost five hours prior to the accident. McKelvey also stated business was pretty slow that evening and the employees had not swept the floors at regular scheduled times. It is arguable that Stack had a view of the area where appellant fell and could have seen the loose grapes. Some of those grapes could have been mashed by other customers, and probably were. Coupling the reasonable inferences from that evidence with the disputed fact as to when the floors were swept raises a genuine issue of material fact for a jury to find constructive notice because the appellee should have known there were grapes on the floor if it or its agents had used reasonable diligence. (Elrod v. Walls, Inc., 205 Kan. 808, 473 P. 2d 12.)
The remedy of summary judgment should not be used as a method of achieving trial by affidavit. (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.) Where genuine issues of fact are raised, the plaintiff is entitled to present his case to a jury of his peers which has an opportunity to evaluate the demeanor of witnesses and the evidence presented to make a fair and honest determination. That opportunity was denied in the instant case. As we held in Jarnagin v. Ditus, 198 Kan. 413, 424 P. 2d 265:
“When ruling on a motion for summary judgment, a court must resolve against the movant any doubt as to the existence of a genuine issue of material fact, the evidentiary material submitted by the party opposing the motion must be taken as true, and such party must be given the benefit of all reasonable inferences that may be drawn from such material.” (Syl. ¶ 1.)
A full and complete review of the record requires that we conclude the district court failed to adhere to the admonition of the rule announced in Ditus. It is therefore ordered this case be reversed and remanded to the district court to proceed to trial in a manner not inconsistent with this opinion.
It is so ordered.
O’ Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from an order denying relief in a K. S. A. 60-1507 proceeding wherein petitioner, after pleading guilty to the offense of murder in the first degree, was sentenced to life imprisonment.
The district court granted a full evidentiary hearing and, with respect to the two grounds raised, found in substance: (1) at the time the plea of guilty was entered and accepted there was nothing to suggest to the court or counsel that appointment of a commission under K. S. A. 62-1531 was necessary to determine petitioner’s sanity, and (2) counsel was not derelict in his duties in failing to request the appointment of a commission, and petitioner was accorded diligent and adequate representation by counsel in accordance with due process of law.
Disposition of this case is controlled by what was said in Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197; State v. Childs, 198 Kan. 4, 422 P. 2d 898; and State v. Brown, 204 Kan. 430, 464 P. 2d 161. The district court’s findings are supported by substantial competent evidence, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This action was brought to recover damages for the violation of the rights of a tenant-operator of land under a conservation reserve contract. The trial court entered judgment in favor of the tenant-operator against the purchaser of the land and her husband. The husband had been substituted as tenant-operator in a revised contract in place of the plaintiff.
Some background facts are necessary.
In 1949 Ruth Oden, a non-resident, owned the NW % of Section 2, Township 24, Range 14, in Stafford County, Kansas. She leased the land for two years to the plaintiff, Elbum G. Thomas, under the ordinary crop share lease for one-third of all crops raised on the premises. Thereafter the plaintiff continued in possession of this land through 1959 as an ordinary farm tenant without any written renewal lease.
In 1960 the parties placed the land in the “soil bank” by making application and by executing a ten year conservation reserve contract with the secretary of agriculture. The plaintiff cultivated and seeded the land to grass and performed such maintenance and weed control as was required by the contract. The annual soil bank payment of $2,119.00 was to be shared equally during the term of the contract.
Ruth Oden died and a revised or modified contract was executed on November 16, 1960, by her administrator, the plaintiff and the secretary of agriculture. This contract covered the same period as the previous contract, ending in 1969, and contained the same terms and conditions as before.
After the estate of Ruth Oden was settled, her son, Ivan A. Oden, became the new owner and he entered into another revised contract on October 31, 1962. The contract was signed by Ivan A. Oden, the plaintiff and a member of the county committee for the secretary of agriculture. It covered the same period, ending in 1969, and contained the same terms and conditions as before.
In 1966 the land was sold. The agreement to sell was between Ivan A. Oden and W. H. Dudrey. The deed, executed and delivered under the contract, named the wife of W. H. Dudrey as grantee. The land was transferred subject to the rights of the agricultural tenant and the deed mentioned that the premises were under contract in the conservation reserve program.
Thereafter W. H. Dudrey and Elsie Dudrey, bis wife, succeeded in obtaining a revised soil bank contract for the balance of the original ten year term which eliminated the plaintiff as tenant-operator. For the balance of the term W. H. Dudrey as tenant-operator and Elsie Dudrey as owner received the'entire amount of the soil bank payments. The change was made July 31, 1966.
This change in the tenant-operator was protested by plaintiff to the county committee on August 15, 1966. His protest was based upon a claimed right to continue as tenant-operator for the entire ten year period ending in 1969, under the prior soil bank agreements with Ruth Oden and Ivan A. Oden. He asserted the change of tenant was not bona fide, that the title of the real estate was placed in the wife’s name by W. H. Dudrey so that W. H. Dudrey might take over the plaintiff’s rights as tenant-operator. Plaintiff further asserted that the land was purchased and sold subject to his rights under the conservation reserve contract and that the Dudreys violated his rights by obtaining the revised soil bank contract for the balance of the ten year term.
Plaintiff first pursued his administrative remedies. Review of the action of the county committee was sought on both the state and the federal levels. These attempts to require the county committee to recognize him as the rightful tenant-operator in place of W. H. Dudrey were unsuccessful. The state office ruled that any question as to the private rights of plaintiff and W. H. Dudrey “is determinable under applicable state law and the circumstances of the particular case.” In Washington, D. C. the acting deputy administrator of state and county affairs refused to enter the controversy. In a letter, otherwise ambiguous, he stated the matter “is a question between him [Thomas] and the landlord [Dudrey] to be resolved by the Kansas courts.”
Plaintiff then brought the present action to recover damages from the Dudreys in the amount of the tenant-operator’s share of the annual soil bank payments received by them from 1966 to the end of the contract period in 1969.
The action was tried before the district court without a jury. Judgment was entered in favor of plaintiff and against the defendants, Elsie Dudrey and W. H. Dudrey. The Dudreys have appealed.
Although appellants set forth in the record 14 separate alleged errors in their statement of points their argument in the brief is not separated or directed toward these 14 alleged errors. Those points neither briefed nor argued on appeal will be deemed abandoned. (State, ex rel., v. Doerschlag, 197 Kan. 302, 304, 416 P. 2d 257.)
The questions to be answered in this appeal are set out by the appellants in their brief as follows:
“The questions presented in this case are: Did Thomas have any rights in and to any soil bank payments under the Soil Bank Contract in question after the sale of this property by Mr. Oden to Elsie Dudrey, the termination of such contract by the Stafford County A. S. C. Committee, and the approval by the County Comittee of W. H. Dudrey as operator of this land? If Thomas had any such rights, then the further question arises: Do such rights give rise to a cause of action in his favor against the Dudreys, or either of them, or must he pursue his remedy against the U. S. Department of Agriculture?”
The trial court made comprehensive findings of fact and conclusions of law. Pertinent portions of these findings and conclusions are as follows:
“. . . Both W. H. and Elsie Dudrey knew that plaintiff was the tenant in possession under this program. Before the deed was executed, both W. H. and Elsie Dudrey conferred about plaintiff’s status. They believed that plaintiff could be removed as tenant without incurring any liability to him. They believed the record title owner could not be the tenant under this program.
“The purchase of this land was a joint venture of W. H. and Elsie Dudrey. The written contract to purchase was in favor of W. H. alone. . . .
“. . . In any event, the conviction that they could substitute W. H. Dudrey for the plaintiff as soil bank tenant was a consideration that entered into the final determination of the Dudreys to take the land in the name of Mrs. Dudrey. This finding is legally permissible since the trier of fact is permitted to use that knowledge common to men in general. In this connection, all of the circumstances indicate that the Dudreys were guided by a desire to secure the tenant’s soil bank payments for themselves, a trait common to man, the desire for financial gain. . . .
“Throughout, the sale proceedings, Mr. Oden advised the County Committee and the Dudreys that plaintiff had tenancy rights under this program in an attempt to protect plaintiff’s interest for the full ten-year period. This included putting a provision in both the contract and deed which stated that the sale was subject to the rights of tenancy under the Soil Bank Program. He, as well as his mother, fully intended plaintiff should have tenancy throughout the ten-year term.
“Plaintiff performed all of his obligations relative to compliance with the Soil Bank Program up until the time he was advised by the County Committee that they would not recognize him as tenant after 1966 but would so recognize W. H. Dudrey. The work done by or on behalf of W. H. Dudrey as tenant in the years 1967 through 1969 was minimal as grass cover was by then well established. It consisted chiefly, if not entirely, of a small amount of weed control around the boundary of the land. No evidence was offered as to the value of this work.”
The trial court further concluded:
“Applying Kansas law relating to landlords and tenants, the factual finding made herein would indicate the following as proper legal conclusions:
“1. At the time Mrs. Oden and plaintiff agreed to put this land in the soil bank program, plaintiff was a year-to-year tenant as a permissive holdover under an earlier-written lease.
“2. Upon the execution of the papers for the program by Mrs. Oden and the plaintiff, plaintiff became a tenant for a ten-year period to begin January 1, 1960, and to terminate by its terms on December 31, 1969.
“3. In addition to the general considerations that are common to landlord-tenant relationships, there were considerations introduced at the time of entering the program which were changes from pre-existing considerations and which furnished adequate legal considerations between the parties. Chief among these were the landowner’s grant of possession for a ten-year period, the modification of remuneration to equal shares, and the obligation of the tenant to do the extra beginning work to establish grass cover.
“4. The tenancy is legally valid as against any claim of not satisfying the Statute of Frauds. The agreement was followed by almost seven years of performance thereunder. The signing of the various forms necessary to obtain acceptance in the program constituted a legally sufficient ‘writing.’
“5. Plaintiff was a tenant in possession at the time the purchase was made by the Dudreys. They were chargeable with notice as to his rights. They actually knew he was a tenant. They were obliged to discharge any rights he had whether they did or did not know the extent of those rights. Since they were obliged to ascertain the quality and quantity of his tenancy, they could not evade this obligation by accepting the unauthorized legal advice given by Mr. Barker. They breached this obligation when they secured tenancy payments for Mr. Dudrey for the years 1967, 1968 and 1969.”
On the basis of the record presented on appeal these findings are supported by the evidence. It likewise appears that the trial court’s findings justified its conclusions.
Appellant quarrels with certain findings of the trial court quoting statements made by W. H. and Elsie Dudrey in discovery depositions concerning their joint acquisition of the land. These depositions are not included in the record and it does not appear from the record they were ever introduced in evidence. The statements were included by the trial court to corroborate other evidence which adequately supported the material findings of the court and no prejudicial error resulted even though we assume they were improperly considered by the trial court.
Some question is raised by appellants in their brief as to the taxing of costs of the depositions. This was not included in their statement of points. Matters not included in the statement of points will not be considered on appeal. (Shinkle v. State Highway Commission, 202 Kan. 311, Syl. ¶ 3, 448 P. 2d 12.)
The federal law on conservation reserve contracts states:
“In the formulation and administration of programs under this chapter, the Secretary shall provide adequate safeguards to protect the interests of tenants and sharecroppers, including provision for sharing, on a fair and equitable basis, in payments or compensation under this chapter, and including such provision as may be necessary to prevent them from being forced off the farm. . . (7U.S.C.A. § 1810.)
The Dudreys, after purchasing this land subject to plaintiff’s rights, in violation of their agreement with Ivan A. Oden were able to squeeze plaintiff off the land with the aid of the county committee. This kind of scheme is frowned on in Caulfield v. U. S. Department of Agriculture, 293 F. 2d 217, where it is said:
“Indeed, the legislative history supports the view that in effectuating the vigorous policy against the use of any devious schemes by landowners as a means of discriminating against tenants Congress looked to the County Committees as the means of positive enforcement.” (p. 220)
The appellants here rely heavily upon the conclusiveness of the action of the county committee in recognizing W. H. Dudrey as the tenant-operator for the balance of the term of the revised soil bank contract. It should be noted that their function is not judicial. They have no jurisdiction to determine the rights of private parties arising from the purchase and sale of Kansas real estate. This fact was recognized on both the state and federal levels when the action of the county committee was submitted for review through the administrative processes.
The appellants argue that plaintiff’s rights, which he pursues in this action, are dependent upon the continuance of his status as a holdover tenant under the written agricultural lease executed between Ruth Oden and plaintiff in 1949. Plaintiff’s claim is not based upon any rights as a holdover tenant. His present claim arose by reason of the original conservation reserve contract and the rights in the subsequent revised contracts which were reserved to him when Ivan A. Oden sold the land to the Dudreys subject to his rights.
Testimony of the employees in the Stafford County ASCS office indicates that the four contracts were continuations under the original application executed by Ruth Oden and plaintiff in 1960. They were considered revised contracts. At the time the Dudreys purchased the land in 1966, the Soil Bank Program had terminated and new soil bank contracts could not be intiated by applications. The only contractual matters then permitted were those that related to continuance or modification of existing contracts.
The revised conservation reserve contract was a complete written agreement. It provided in part as follows:
“The undersigned producers hereby agree to the terms and conditions of this contract and certify that all of the producers having any control of the farm during the entire contract period and all of the producers who are entitled to payment under this contract are shown in this Part III, or on the continuation sheet attached hereto, and each undersigned producer certifies that he has not entered into conservation reserve contracts, including this contract, under which the aggregate of his shares of the annual payments for any year for all farms in which he has an interest will exceed $5,000.00.”
The agreement covered the NW % of Section 2, Township 24, Range 14. The contract period was stated to begin in 1960 and to continue through 1969. The annual payment of $2,119.00 was to be paid during this period, one-half to Elburn G. Thomas and one-half to Ivan A. Oden. As hereinafter pointed out certain land practices were required to earn the payments. The agreement was signed by an ASC county committeeman and by Mr. Thomas and Mr. Oden. This contract did not refer to any farm lease between Thomas and Oden and was in no way dependent upon such a lease.
In 1959 the farm lease between plaintiff and Ruth E. Oden had spent its force. It was not renewed after the first conservation reserve contract was entered into. It could not have been continued because such would have violated the terms of the conservation reserve contract. The former farm lease and the contract covered only one quarter of land. The farm lease required crops to be planted on the land by plaintiff and crops were to be shared on a one-third rental basis. The contract with the secretary of agriculture required both the landlord and tenant to take the land out of production. No crops could be grown on the land.
Termination and surrender of a farm lease may be either by agreement of the parties or by operation of law. (Christenson v. Ohrman, 159 Kan. 565, 156 P. 2d 848.) Here the lease was terminated by the new agreement of the parties.
A tenant from year to year holds over with the assent of the landlord under the same terms and conditions as stated in the original lease. (Martin v. Hamersky, 63 Kan. 360, 65 Pac. 637; see also 49 A. L. R. 2d, p. 480.) In the present case after the landlord and tenant had signed the conservation reserve contract the holdover tenancy was terminated. The new agreement required plaintiff to establish a grass cover on the land by seeding. He was obligated to protect the land and control weeds. In return it was agreed he was to receive fifty percent of the cash soil bank payment over a period of ten years.
When a third conservation reserve contract was signed two persons held rights in this land. They were Mr. Oden and Mr. Thomas. Oden held legal title. Thomas was in possession and was obligated to care for the land. The contract created certain rights and obligations. So long as they kept the land in compliance with the terms of the agreement they were to receive annual payments during the terms of the contract ending in 1969.
When W. H. Dudrey contracted to purchase this quarter of land from Ivan A. Oden in 1966, he agreed as follows:
“It is understood and agreed that the aforesaid Real Estate is presently in the Conservation Reserve Program.”
No attempt was made by him to purchase or acquire the rights of plaintiff Thomas in this land. When the purchase was completed W. H. Dudrey took the deed in the name of Elsie Dudrey, his wife. The deed contained the following reservation or exception inserted below the description of the land in the granting clause:
“Subject also to the rights of the agricultural tenant, said premises now being under contract in the Conservation Reserve Program of the United States Department of Agriculture.”
Further on in the habendum clause of this deed appeared the following:
“. . . [T]hat the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgements, taxes, assessments and incumbrances, of what nature or kind soever: except easements, if any, of record, and rights of agricultural tenant— . . .” (Emphasis added.)
The conservation reserve contract which assured the plaintiff of his rights as tenant-operator was on file as a public record in the ASC office of the county. The purchaser had notice of these rights. Under both the contract of purchase and the deed the property was sold subject to the rights of the plaintiff created by the conservation reserve contract. The rights of the tenant-operator were recognized and the Dudreys took title to the land subject to those rights. The Dudreys merely stepped into the shoes of the former owner, Ivan A. Oden.
When property is sold subject to contractual obligations arising from a soil bank contract, such burdens follow and attach to the title of the purchaser.
In Murfin Drilling Co. v. Poe, 191 Kan. 637, 383 P. 2d 972, this court said:
. . When property is sold subject to encumbrances and contractual obligations, such burdens follow and attach to the title of the purchaser. . . (p. 640)
In Dillon Investment Co. v. Kinikin, 172 Kan. 523, 241 P. 2d 493, this court said:
“. . . [T]he plaintiff accepted a deed in which validity of the exceptions and reservations as to a right of way were recognized and made part and parcel of it. Under the circumstances the grantee, appellee herein, is estopped to question validity of the exceptions and reservations. . . .” (p. 528)
The appellants lay much stress on provision 8 (b) of the conservation reserve contract relating to loss of control of the farm by sale, death or otherwise.
Section 8 (b) reads as follows:
“The loss of control of all or part of the farm by sale, death, or otherwise (a lease shall not be considered a loss of control) shall terminate the contract with respect to the acreage over which control is lost. In the event of such termination, unless the land is continued in the Conservation Reserve Program under the conditions specified in the Regulations, Federal cost-shares paid or payable with respect to the acreage over which control is lost shall be forfeited or refunded. In such case, each contract signer shall not only be obligated to refund all Federal cost-shares received by him but shall also be jointly and severally obligated with the other contract signers to refund all Federal cost-shares received by any person with respect to such acreage under this contract or any previous contract.”
It should be noted that plaintiff retained control of the farm as tenant-operator after the death of Ruth Oden and when the land was acquired by Ivan A. Oden. In both instances the ten year contract was not terminated for revised contracts were recognized by the county committee.
Under the conservation reserve contract it is the “loss of control of the land” which terminates the contract, not the death or the sale. The plaintiff’s control of the land as an agricultural tenant was x'etained, not lost, when this land was sold to the Dudreys. It is true that the seller Ivan A. Oden lost control of his rights by the sale. The rights passed to the Dudreys. It possibly lay in the Dudreys’ power under other provisions of the conservation reserve contract to have terminated the contract with the secretary of agriculture and in such case the tenant and Ivan A. Oden, as former producers, might have been required to refund to the secretary all cost-shares paid by the government.
But this was not the case here for the purchasers continued the land in the conservation reserve program under a revised contract, and by the simple rase of taking title to the land in the wife’s name and notifying the ASC committee that the husband was the new agricultural tenant they obtained the operator’s and the owner’s share of the annual $2,119,000 payment. This violated both the purpose and spirit of the soil bank program. This further violated the terms of the sale by which the Dudreys acquired title.
The rights of a tenant-operator under a soil bank contract may be effectively reserved to him in a deed of conveyance by the owner of the land, and purchasers who accept a deed to the land subject to the rights of the tenant have a duty to the tenant to honor his rights if a revised soil bank contract is issued.
The soil bank payments due the operator were wrongfully obtained by the Dudreys and suit was properly brought to recover the same from them. Plaintiff performed all necessary obligations to comply with the soil bank program up until the time he was forced out by the actions of W. H. Dudrey and of die county committee. There was no evidence of the value of any work performed by W. H. Dudrey on the land to keep the land in compliance. His work was minimal at most, for a grass cover had been previously established on the land at the expense of and by the labors of the plaintiff.
The appellants cite the regulations and soil bank law at length in support of the authority of the local county committee to accept W. H. Dudrey as the new tenant-operator. Its authority can no longer be questioned. But the right or the wrong of the committee’s action is not subject of plaintiff’s lawsuit. Plaintiff is suing Dudrey for wrongfully violating a duty which Dudrey assumed when he purchased the land.
Although a tenant-operator under the Soil Bank Program (7 U. S. C. A. § 1801 et seq.) may be precluded from pursuing a judicial remedy against the officials who administer the soil bank act, yet a judicial remedy remains available in the state courts against a landlord or a purchaser for violation of a legal duty owed to the tenant.
Two federal circuit court cases, Dickson v. Edwards, 293 F. 2d 211 and Caulfield v. U. S. Department of Agriculture, supra, fully support the jurisdiction of this court to decide the claims of private parties arising from a violation of duties and obligations under contracts executed by them.
It was pointed out in Caulfield a tenant has only limited rights in obtaining a judicial review of an administrative determination under the Soil Bank Act. Federal courts have no jurisdiction of a tenant’s action to review an administrative determination that the landlord had not violated the Act in the manner of securing an acreage reserve contract.
However, it is crystal clear from the opinion in Caulfield that although the tenant may be precluded from pursuing a judicial remedy against the officials who administer the Act, yet a judicial remedy remains available against the landlord or a purchaser for violation of a legal duty owed to the tenant.
In Dickson this was pointed out by the following paragraph:
“While we therefore fully approve the District Court’s holding that this was not a termination because of an asserted violation and accordingly beyond the power of the District Court to adjudicate, we wish to make doubly clear that nothing said or unsaid is to be understood as an approval or disapproval by us of the propriety of the action of the County Committee, the State Committee, the Secretary, the Landowner or the new Tenants. The rights under the law of Texas between Dickson and the Landowner or between him and the successor Tenants with respect to Soil Bank payments received in 1958 and subsequent years are matters for subsequent adjudication in Texas courts. Such matters were not before the District Court nor are they before us.” (293 F. 2d 211, 215)
It may be noted in passing that the federal court in Dickson was confronted with a claim somewhat similar to the one in the present case. It held the federal court was without jurisdiction and that the claim was one for the state courts to resolve.
The appellants quote from and rely on Hill v. Schuhart, 391 S. W. 2d 579 (Tex. Civ. App.) for language to support their argument. The case is factually dissimilar to the present case. It was decided upon the basis of the laws of Texas and is not controlling here.
In this Texas case the tenant Hill had leased the farm on a yearly basis. The farm was placed under a soil bank contract. The owner then died. Hill’s annual lease expired. The new owner, a Mrs. Steele, apparently inherited the farm. She evicted Hill and leased the farm to Schuhart who was recognized by the county committee as the tenant-operator. Hill then sued Schuhart to recover the 1963-64-65 soil bank payments from him. The Texas court held that Hill had no enforceable rights against Schuhart for the only lease Hill had on the land had terminated. It is apparent that the owner Steele did not acquire the land with any reservation of rights in favor of Hill. Therefore she violated no duty or obliga tion to Hill when she leased the farm to Schuhart. It was clear that Hill had no cause of action against Schuhart. The case is not persuasive for it is factually dissimilar.
In the present case plaintiff’s rights in the soil bank contract were recognized.by the Dudreys when they purchased the land subject to those rights. Plaintiff’s cause of action for damages is based upon the obligation placed upon the Dudreys by the contract of sale and the deed from Ivan A. Oden. The Dudreys intentionally violated a duty owed to plaintiff. Plaintiff was damaged thereby and the amount of his damages was correctly determined by the trial court.
Other contentions are advanced by appellants on appeal. Some of these were not included in their statement of points. As to the others it has not been made to appear that prejudicial error resulted therefrom.
The judgment is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal from a judgment of the district court of Wyandotte County, in which the appellants, Willis P. Tyus and Earnest Tillman were convicted of aggravated robbery. The appellants were convicted after trial by jury and each was sentenced to a term of imprisonment of not less than 30 years nor more than life.
It is clear from the record that a robbery took place. The disputed issue in the case was the identity of the appellants as the robbers. On July 31, 1970, at about 8:30 a. m. three men robbed a liquor store in Kansas City, Kansas. The proprietor of the store, C. L. Davis, was robbed of several thousand dollars by three men who were armed with guns. The victim was assaulted and handcuffed. Immediately after the robbers left the store C. L. Davis ran into the street yelling, “Stop those gentlemen; I’ve just been robbed.” The robbers were observed by Ramon Rabón and by Craig (Moon) Davis, whose attention was called to the robbers by the shouts of C. L. Davis. Rabón observed the robbers enter a pea-green Ford and when they left the scene he followed them in his car across the Lewis and Clark viaduct into Kansas City, Missouri. Before undertaking the pursuit Rabón directed his wife to notify the police that he was following the getaway car. The three robbers abandoned the car in Kansas City, Missouri, and Rabón immediately notified both the Kansas City, Kansas, and Kansas City, Missouri, police by telephone.
Meanwhile the Kansas City, Kansas, police had gone to the scene of the robbery where they picked up Craig (Moon) Davis, the other eyewitness. On receiving Rabon’s message they proceeded to the place where the car had been abandoned by the robbers. By the time they got there the Missouri police had already checked out the license number of the getaway car and found it to be a rental car owned by Southtown Motors in Kansas City, Missouri. The getaway car had been rented to a Charles Gratten. The Kansas police officers went first to Grattens address “on a stake out” where they remained 15 or 20 minutes. They were then advised to go to Southtown Motors where the two men who had previously rented the car had been observed. There Craig (Moon) Davis identified the two appellants as the robbers. The Kansas police officers, Major Shannon and Detective Taylor, took the two appellants into custody and awaited the arrival of the Missouri police, who rearrested appellants, Tyus and Tillman, after being told the facts. Tillman was searched at Southtown Motors and the search disclosed the sum of $1273.13 on his person. Appellants were then taken to the Kansas City, Missouri, police station where money was observed falling out of Tyus’ clothing. He was then thoroughly searched and $1269.01 was discovered on his person. It is undisputed that appellants were advised of their rights by the reading of the Miranda warning and they made no statement. A lineup was held at the Kansas City, Missouri, police station and the two appellants were further identified. They were then taken on the same day before Magistrate Judge Louis J. Mazuch of Kansas City, Missouri. Both of the appellants signed a Waiver of Extradition and consented to being returned to Kansas City, Kansas. The appellants were identified as the robbers, by the victim, C. L. Davis, by Ramon Rabón and by Craig (Moon) Davis, all of whom observed the robbers at the scene of the robbery. The appellant, Tyus was also identified by James R. Cave, an employee at Southtown Motors, as being present at Southtown Motors at the time the pea-green Ford was rented on July 28, 1970.
As their first point on this appeal both appellants contend that the court erred in receiving into evidence the money which was discovered on the person of each appellant for the reason that in each case the money was obtained by an unlawful search and seizure in that no arrest warrant had been issued and no lawful arrest had been made. In its essence the contention is that the Kansas City, Kansas, police officers, Major Shannon and Detective Taylor, had no right to arrest appellants in the State of Missouri. It is urged that the arrests were illegal, hence the search incidental to each arrest was illegal and therefore the money which was obtained from the search was not admissible into evidence. The appellants recognize the fact that both Missouri and Kansas have enacted the Uniform Law on Fresh Pursuit. The Missouri statute 544.155 reads as follows:
“1. Any member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county, or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state; provided, the rights extended by this subsection shall be extended only to those states granting these same rights to peace officers of this state who may be in fresh pursuit of suspected criminals in such reciprocating states.
“2.. If an arrest is made in this state by an officer of another state in accordance with the provisions of subsection 1 he shall, without unnecessary delay, take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shaE commit the person arrested to wait for a reasonable time the issuance of an extradition warrant by the governor of this state, or admit him to baE for such purpose. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.
“3. Subsection 1 shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
“4. For the purpose of this section, the word ‘state’ includes the District of Columbia.
‘‘5. The term ‘fresh pursuit’, as used in this section, includes fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actuaEy been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit, as used therein, shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
“6. This section may be cited as the ‘Uniform Law on Fresh Pursuit’”, (pp. 3974, 3975.)
The Kansas statute with essentially similar provisions is K. S. A. 1971 Supp. 22-2404. The Missouri statute in substance provides that a Kansas police officer who enters the State of Missouri in fresh pursuit of an escaping felon has the same authority to arrest and hold such person in custody as would any Missouri police officer. The Kansas officer is required without unreasonable delay to take the person arrested before a Missouri magistrate of the county in which the arrest was made. The magistrate is required to conduct a hearing to determine the lawfulness of the arrest. It should be noted that the term “fresh pursuit” is defined in the last sentence of paragraph 5 of the law as follows:
“Fresh pursuit, as used therein, shall not necessarily imply instant pursuit, but pursuit without umeasonable delay.”
The issue presented on this point is whether or not the Kansas police officers who arrested appellants were in “fresh pursuit” of the appellants at the time the arrest was made.
We have no hesitancy in holding that the circumstances established in this case clearly show a “fresh pursuit” within the meaning of the Missouri statute. In White v. State, 70 Miss. 253, 11 So. 632, a burglary was committed during the night and was discovered the following morning. A police officer immediately after discovering the burglary followed and overtook and arrested the escaping felon. The Supreme Court of Mississippi held that the pursuit was a “fresh pursuit” under the Mississippi statute.
A case quite similar to the case at bar is People v. Pool, 27 Cal. 572, where a syllabus states as follows:
“If, after the commission of a felony, the guilty parties flee to avoid an arrest, and within three or four hours are pursued by officers for the purpose of apprehending them, and the officers by diligent pursuit overtake them at a distance of twelve miles from the place where the crime was committed, this is an immediate or fresh pursuit of the criminals.” (p. 573.)
In the case at bar the robbers fled from the scene of the robbery in Kansas City, Kansas, to Kansas City, Missouri, where they were apprehended 90 minutes later. The pursuit was continuous, uninterrupted and without unreasonable delay. It was a “fresh pursuit”; hence the arrest of the appellants by the Kansas police officers in Missouri was a valid arrest since the police had actual knowledge that the robbery had been committed and since the appellants were identified as the robbers by Craig (Moon) Davis prior to their arrest at Southtown Motors. Since the arrests were valid, the search of appellants which produced the money was incidental to a lawful arrest and therefore the search was lawful. The appellants were taken before a Missouri magistrate in Kansas City, Missouri, on the same day they were arrested and within a reasonable time. Both appellants voluntarily waived extradition and they were returned to the State of Kansas. The record establishes a full compliance with the requirements of the Missouri Uniform Law on Fresh Pursuit. Therefore the money discovered on the person of each defendant was admissible in evidence.
Appellants in their second point contend that it was error to receive into evidence the money seized from their persons, because the chain of custody from the time of seizure to the time of trial had been broken. We hold that this contention is without merit since there was established a complete chain of custody from the original receipt of the money by Missouri police officer Vestal until it was offered into evidence at the trial by Russ Wagner, the Kansas police property officer. There was some evidence that the large envelope containing the money had been opened for inspection but there was no evidence of tampering sufficient to justify exclusion of the money from evidence. The rule is that a party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary, however, that the object offered into evidence should have been kept continuously under lock-and-key or continuously sealed up. The preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court. It is not necessary that all possibility of its being tampered with should be excluded. (State v. Cook, 17 Kan. 392; State v. Frideaux, 207 Kan. 790, 487 P. 2d 541.) The ultimate question of the sufficiency of the proof is, of course, for the jury to determine. There was some evidence in this case indicating that the envelope containing the money had been opened and the money examined subsequent to the taking of the money from Tyus’ possession. There was nothing in the evidence, however, to show that the money was exchanged for other bills or that it was not in fact the same money. Hence we find no error in the admission of money into evidence on this ground.
Appellants contend that the verdict of guilty was not sustained by substantial, competent evidence. We hold that the evidence in this case clearly was sufficient to justify a conviction of both appellants of the crime of aggravated robbery. The evidence was completely undisputed that a robbery occurred. Both of the appellants were identified as two of the three robbers by C. L. Davis, by Ramon Rabón who followed appellants from the robbery scene in his car, and by Craig (Moon) Davis, who saw the robbers run from the store. The appellant Tyus was also identified by James R. Cave, an employee of Southtown Motors, as one of the men who were present when the pea-green Ford which was used as the getaway car was rented. This contention is clearly without merit.
The appellant Tillman maintains that he was subjected to an illegal and unfair lineup. It is undisputed that before participating in a lineup at the Kansas City, Missouri, police department both appellants were advised of their constitutional rights and both of them signed waivers. The question of validity of the waivers was presented to the trial court in a pretrial hearing and the waivers were upheld. There is no evidence in the record which would render the signed waivers improper or unlawful in any respect. The evidence does not show that the identification at the lineup had any particular significance in the case. The identification of both of the appellants was made at the scene of the robbery and again at Southtown Motors at the time the appellants were arrested. The validity of the lineup was considered by the court in a separate independent hearing and there is nothing in the record to show that the court was in error in refusing to suppress the testimony in connection with it.
The appellant Tyus contends that the court erred in admitting into evidence a list of serial numbers which the victim, C. L. Davis, testified he prepared prior to the robbery. Several of these serial numbers coincided with the serial numbers on bills taken from the person of the appellant Tyus. The question was raised at the trial as to whether or not the list was rigged to strengthen the state’s case. It cannot be denied that some of the circumstances surrounding the preparation of the list were suspicious. However, C. L. Davis testified that it was his practice to prepare a list of the large bills that he received from the bank and that the list submitted in this case had been prepared prior to the robbery. The objection made at the trial to the admission of the list into evidence went to the weight of the evidence and not to its competency. In other words the foundation was sufficient to justify the trial court in its discretion in admitting the list of serial numbers into evidence and it was up to the jury to determine whether or not it should have been given any weight in determining the guilt or innocence of the appellants.
Appellant Tyus contends that the trial court erred by increasing his sentence to a minimum of 30 years after having previously imposed a minimum sentence of 15 years. This contention is without merit. In the first place the trial court did not actually impose a sentence of 15 years to life. The only reference to 15 years was in a statement by the court as follows:
“The Court: I am saying that the maximum of a Class B felony, minimum-maximum, is fifteen years for the maximum on the minimum, and doubling that makes thirty. So he will be sentenced to not less than fifteen years nor more than life.”
It should be noted that the court’s statement is that Mr. Tyus will be sentenced to not less than 15 years nor more than life. This statement was made prior to the actual imposition of a sentence. The record discloses that the court made the following statement later:
“So that there isn’t any question in the record, Mr. Tyus is being sentenced —this is your client, Mr. Lundblad, I believe, to a term of not less than thirty years nor more than life under these provisions.”
It is clear that only one sentence was imposed which was a sentence of not less than 30 years nor more than life. In addition to this even if the lesser sentence had been imposed by the court, the court could still have changed the sentence at any time prior to the time the sentence began to run. (State v. Lyon, 207 Kan. 378, 485 P. 2d 332; State v. Hughes, 35 Kan. 626, 12 Pac. 28; Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586.) In this regard the rule is that a sentence begins to run when the custody of the defendant is delivered to the sheriff. (State v. Dearman, 199 Kan. 357, 359; 430 P. 2d 285 and the cases cited in the annotation in 159 A. L. R. 161.) In this case the record shows that after the court made mention of an intention to sentence to a term of not less than 15 years, Mr. Tyus was told to be seated. Immediately thereafter the court discussed the sentence and the effect of the Habitual Criminal Act with appellant Tyus and his attorney, Mr. Lundblad, and then sentence was imposed for a minimum term of not less than 30 years. There is nothing in the record to show that the custody of appellant Tyus was ever delivered to the sheriff after mention of the 15 years. Hence the trial court properly imposed a term of not less than 30 years and not more than life under the provisions of the Habitual Criminal Statute K. S. A. 1971 Supp. 21-4504.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
Plaintiff-appellant commences this action to recover a money judgment against the defendant-appellee based on credits earned by Emil D. Claassen, now deceased, during his lifetime as a member and patron of the defendant, a cooperative association.
After the depositions of the president of the board and the general manager of the defendant were taken, both parties filed a motion for summary judgment and the trial court, after a hearing thereon, sustained the defendant’s motion, and from this ruling plaintiff appeals.
The correctness of the trial court’s ruling is based on a proper construction of the Kansas Cooperative Marketing Act, K. S. A. 17-1601 through 17-1636.
A recital of the facts necessary for a review of the trial court’s ruling follows:
Emil D. Claassen became a member of the cooperative in 1960 or 1961 and from that time up to and including 1967, total dividends or earnings were prorated to Emil D. Claassen’s account in the sum of $15,656.84 of which $6,343.04 was paid in cash or by common stock, leaving a balance of deferred dividends of $9,313.80 as of December 31, 1967. At the time of oral argument the parties informed the court that an additional $2,500 had been paid on the Claassen account. Emil D. Claassen died testate on January 24,1968, and his surviving wife, Millicent Claassen, was duly appointed and qualified as executrix of his estate. She made demand, as executrix, for the payment of the deferred dividends, but the board of directors of defendant elected not to pay the same, claiming that the bylaws gave the directors discretion as to whether to allow or disallow such a claim. The general manager of the defendant stated: “When a member ceases to be a producer of agricultural products and ceases to be a landowner, then they are eligible.” He also stated that the defendant did not pay the dividends because Mrs. Claassen was still a producer and she would be eligible when she ceased to be a producer. Settlement has been made with other estates, and particularly the John Sabin estate. The defendant’s general manager knew Emil D. Claassen died and he continued to keep the account in his name although Mrs. Emil D. Claassen received a statement showing her dividends for 1968. Defendant has the money to pay the claim, is strong financially, and there is no question concerning its ability to pay. The defendant deducts the full patronage divi dends, both cash and deferred, from its income tax returns and the member pays the income tax on deferred dividends as well as cash dividends received by him; and Emil D. Claassen during his lifetime paid the income taxes, federal and state, on the whole of the deferred dividends whether they were paid to him or not.
The only dispute in the facts before the trial court was that the defendant claimed the payment of the dividends to the Sabin estate was a hardship case. We conclude that this disputed fact was not significant to the trial court in sustaining the defendant’s motion for summary judgment, nor is it significant here on appeal.
Plaintiff first claims error in that the trial court sustained the defendant’s motion for summary judgment without a pretrial conference or without permitting plaintiff to produce evidence refuting the testimony of defendant’s witnesses. The record does not disclose that plaintiff objected to the hearing on the motion for summary judgment or asked for time to make further discovery. The plaintiff cannot now object to the ruling of the trial court. (Bicknell v. Jones, 203 Kan. 196, 453 P. 2d 127.)
An explanation of the meaning of “patronage ledger credit” is necessary to the court’s decision. A cooperative is not a corporation organized to make profit for itself, but only for its “members as producers.” (K. S. A. 17-1602.) As members buy and sell from the cooperative they acquire credits and these credits accumulate in a patronage ledger account. These credits are distinct and different from stock purchased by a member. Stock purchased by a member is not involved in this litigation. The “patronage ledger credit” is issued to a patron pursuant to the articles and bylaws of the cooperative association, particularly, Bylaw Article II, Section 3, which provides as follows:
“Patronage Ledger Credits. The board of directors is hereby authorized and empowered to establish patronage ledger credits as a payment of part or all of the patronage dividends due patrons. Such patronage ledger credits may be retired in whole or in part on a pro rata basis at face value, at any time, provided said patronage ledger credits are settled in the same order as originally recorded by years. All other debts of the association, both secured and unsecured, shall be entitled to priority over the patronage ledger credits. Upon the dissolution and winding up of the association in any manner, after the payment of all other debts, the patronage ledger credits shall then be paid in full or on a pro rata basis without priority, and next, all outstanding non-voting membership certificates shall then be paid in full or on a pro rata basis before any liquidation dividends are declared on account of the common stock.”
By reason of the characteristics of these credits as defined by this bylaw, they are considered as capital investments as distinguished from debts. (John Kelley Co. v. Comm'r., 326 U. S. 521, 90 L. Ed. 278, 66 S. Ct. 299; Inscho v. Development Co., 94 Kan. 370, 146 Pac. 1014; Best v. Oklahoma Mill Co., 124 Okla. 135, 253 Pac. 1005; Oklahoma Wheat Pool Elev. Corp. v. Bouquot, 180 Okla. 159, 68 P. 2d 97; In Re Hawkeye Oil Co., [Del.] 19 F. 2d 151.)
The articles of incorporation of the defendant cooperative have no provisions concerning the effect of death on patronage ledger credits. In Article II, Section 5, of the bylaws, we find the following:
“Settlement of Estates. Notwithstanding any other provision of these bylaws, the board of directors, at its discretion, shall have the power at any time to pay off, or retire, or secure a release or satisfaction of any common stock, nonvoting membership certificates, stock and patronage ledger credits for the purpose of facilitating the settlement of any estate in the case of death.”
Plaintiff’s argument is condensed in the following statement from her brief, on page 5, where she states:
“A by-law making it discretionary with a board of directors to settle or not to settle with deceased members is inconsistent with K. S. A. 17-1601-1636 and such a by-law which allows a board of directors to discriminate between members or between estates of deceased members is void.”
We cannot agree with plaintiff’s contention. Neither the articles of incorporation, nor the bylaws of the defendant provide for a mandatory payment of the patronage ledger credits to a decedent’s estate, and unless the statutes require such a payment, plaintiff’s argument fails. In view of this we must examine K. S. A. 17-1609 which reads as follows:
“Each association incorporated under this act must, within thirty (30) days after its incorporation, adopt for its government and management a code of bylaws, not inconsistent with the powers granted by this act. Each association under its bylaws may also provide for any or all of the following matters:
“(<) . . . the manner of determining the value of a member’s interest and provisions for its purchase by the association upon the death of a member. . . .”
The plaintiff does not argue that the use of the word “may” in this statute has the effect of “must”, but does argue that since the defendant did enact a bylaw as permitted by the statute it should definitely set out some method of settlement with the estate of a deceased member. Contrary to this reasoning we conclude that the defendant was not required to make provision for the immediate payment to a deceased’s estate in the absence of a mandatory provision of the statute requiring that such a payment be made. In reaching this conclusion we are supported by the well reasoned case of Driscoll v. East-West Dairymen’s Ass’n., 122 P. 2d 379 (Cal. App. 1942); for hearing denied see 126 P. 2d 467.
“. . . The legislature, in adopting the provisions setting up a voluntary-non-profit organization, would not ordinarily cast the mandatory provisions in permissive form. If it had been the legislative intent to set up a rule of conduct for all such associations and to prescribe and limit the rights and liabilities accruing through membership therein, it would have done so without the unnecessary mechanics of separate by-laws for each organization to be thereafter formed. . . .” (p. 381.)
The only Kansas case involving similar facts is Loch v. Paola Farmers Union, etc., 130 Kan. 136, 285 Pac. 523, but it is of no aid to either of the parties to this lawsuit or the court for the reason that the bylaw adopted by the cooperative in that case provided for a mandatory retirement of the patronage dividend account upon a member dying or moving out of the locality.
Plaintiff stresses the fact that she must pay income tax on her patronage ledger credits and the defendant, after allocation of the credits, does not pay income tax on the credits, and by reason thereof the defendant is estopped from denying that it is liable to plaintiff. Although this may appear unfair, we conclude that it is not controlling on our decision for the following reasons: First, when a mem-' ber joins a cooperative association he is charged with knowledge of its articles of incorporation, provisions of its bylaws, and the fact that he may be required to pay income taxes on deferred patronage dividends; and second, even though the payment of income taxes on the deferred patronage dividends which plaintiff is unable to obtain may offend logical reasoning, the mandate of the legislature controls this court.
Plaintiff further argues that the law requires that a bylaw should affect all members alike and if it does not affect all members alike it should be held invalid. (18 Am. Jur. 2d, Corporations, § 165, p. 697.)
Plaintiff points out that the defendant actually paid the Sabin estate and other estates at time of the member’s death but refuses to pay the Claassen estate without cause. Officers of the defendant testified by deposition that the board of directors had discretion as to whether to allow or disallow her claim; that the defendant re lied on patronage dividends for expansion; that if the defendant was obligated to pay all requests similar to the plaintiff’s it would seriously jeopardize the operation by reducing capital outlay; that defendant had to have the consent of The Wichita Bank for Cooperatives to pay outstanding deferred patronage credits since they owed a sizable mortgage to the bank; that they paid the Sabin estate because the estate did not own ground and it was a hardship case in that Mrs. Sabin had no capital on which to operate; and that the Dickey estate was paid because the land had been sold. If we agreed with plaintiff’s contentions, we would be required to substitute our judgment for the judgment of the board of directors. This we are not inclined to do and conclude that we cannot become involved in the financial structure of this defendant to determine whether the board of directors acted reasonably under these circumstances.
Permeating each of the conclusions herein is the general consideration that cooperative marketing associations are fostered and encouraged by legislative enactment and judicial construction; that the inception of these organizations was deemed to be for the personal benefit of members only to the extent that the individual profited through the operation of the enterprise; and that the paramount concern was not the advancement of the individual interest as such. Furthermore, a members demand for service is responsible for the creation of a cooperative association and as a means of marketing his produce during the period of his membership; and there is no logical ground upon which a member should be permitted to withdraw his interest at the expense of disturbing the financial condition or the life of the association.
Other contentions of the plaintiff have been fully considered and found to fall before the mandate of the statutes.
The judgment is affirmed.
Schroedeb, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal by an insurer-gamishee from an order determining the amount of interest due on judgments rendered as a result of an automobile collision.
An order made in the garnishment proceeding has been here before (Stamps v. Consolidated Underwriters, 205 Kan. 187, 468 P. 2d 84).
On April 28, 1962, a collision occurred in Wichita in which a vehicle driven by Martin A. Landwehr and owned by one Riley struck another vehicle driven by Darrell D. Smith. Four passengers in the Smith vehicle were killed in the collision. As a result of these deaths the five plaintiff-appellees in this action obtained judgment against Landwehr on September 16, 1966, in a consolidated trial in which other damage claims arising from the collision were also adjudicated. Plaintiff Stamps was awarded damages in the sum of $26,623.00, plaintiff Radcliff $26,500.63, plaintiff Burton $26,376.13, plaintiff Helen E. Lee $1,376.13 and plaintiff Phyllis Ann Lee the sum of $25,000, or a total of $105,875.89. No appeal was taken from the rendition of these judgments.
The judgments were not paid and on March 15, 1967, an order of garnishment was issued against appellant Consolidated Underwriters and two other liability insurance carriers. These garnishees answered denying liability, which answers were controverted by plaintiff-appellees. One insurance carrier settled appellees’ claim against it and the garnishment action proceeded to trial against appellant Consolidated and the other carrier. This other carrier was released from any liability to defendant Landwehr or his judgment creditors. As to Consolidated, it is sufficient to say a liability policy issued by it in 1961 to Landwehr’s father was reformed to include defendant Landwehr as a named insured, providing him with coverage while driving a nonowned vehicle which he would not otherwise have had, and Consolidated was held legally obligated to pay to his judgment creditors “the amount of the limits of said policy ... in accordance with the terms and provisions thereof”.
The principal sum of appellant’s policy limit applicable to appellees’ claims was determined to be $50,000.
The foregoing order of reformation and judgment was rendered June 14, 1968. Appellant appealed from it to this court, which affirmed the trial court’s action (Stamps v. Consolidated Underwriters, supra). Thereafter appellees filed tiheir motion in the trial court requesting determination of the amount of interest due on their judgments under the provisions of appellant’s policy of insurance as reformed.
By order made May 19, 1970, the trial court determined the proportionate part of the $50,000 policy proceeds each appellee should have from appellant to apply on his respective judgment and in addition the court ruled that appellant owed interest on the total amount of the judgments rendered in favor of plaintiffs in the damage action from the date they were rendered against Landwehr. The court computed the amount of interest accruing daily upon each judgment and it ordered that such interest was owing and should continue until appellant tendered or paid into court the full amount specified to be paid.
Appellant has now appealed from the May 19, 1970, judgment, contending the trial court erred in ruling it was liable for interest on the entire amount of the judgments from the time they were rendered against Landwehr, such interest to continue until appellant satisfied its policy obligation.
Appellant concedes only that it owes interest on the $50,000 policy limit from June 14, 1968, the date judgment was entered reforming its policy to include Landwehr as a named insured.
The first two challenges to the trial court’s action require little discussion and will be considered together. Appellant says the trial court’s judgments of June 14, 1968, did not mention interest, this court affirmed those judgments on appeal and the trial court’s later computation of interest modified and expanded this court’s mandate of affirmance, which it had no jurisdiction to do. Appellant also says its policy proviso respecting payment of interest was before the trial court and could have been litigated by that court in its June 14, 1968, order but was not and hence later consideration of the interest clause in the policy was barred under the doctrine of res judicata. A short and simple answer to each challenge is that the trial court’s June 14, 1968, judgment specifically directed payment of “the amount of the limits of said policy ... in accordance with the terms and provisions thereof’ (emphasis supplied). Interpretation and construction of the interest clause was not then in dispute and neither challenge has merit.
Appellant’s principal contention is that its policy does not obli gate it to pay interest on any amount exceeding $50,000, the principal sum named as its limit of liability.
The part of appellant’s policy pertinent to payment of interest is:
“II. Defense, Settlement, Supplementary Payments. With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall: . . . (2) pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon; . . .”
In times past this proviso has been referred to as a “standard interest clause” and we shall so refer to it despite the fact member insurers of the National Bureau of Casualty Underwriters have since replaced it in their policies with another more explicit proviso, as hereinafter shown.
Whether a liability insurer is liable for interest on that portion of a judgment recovered against its insured by a third party which is in excess of the principal amount limited by the policy depends upon the language used by the parties in their contract of insurance.
We have never considered the so-called standard interest clause. Courts which have done so are divided (see Anno. 76 ALR 2d 983, “Liability insurer’s liability for interest and costs on excess of judgment over policy limit”).
That which now appears to be the majority view is the clause creates liability for interest on the entire judgment awarded so as to render the insurer liable for such interest until the amount of the policy limit, plus interest on the whole judgment, has been tendered, offered or paid.
The minority view is that liability is limited to interest on the amount of the policy limit. Reasons advanced for this position, and urged by appellant here, are that the clause is clear and unambiguous; liability for interest on the portion of the judgment in excess of the policy limit amounts to vicarious liability imposed on the insurer, and the insured during the delay on the part of the insurer in paying its part of the judgment had the use of money on that part of the judgment in excess of the policy limits.
We are more impressed by the soundness of the reasons advanced in support of the majority view. Those reasons found cogent and terse expression in River Valley Cartage Co. v. Ins. Co., 17 Ill. 2d 242, 161 N. E. 2d 101, 76 ALR 2d 978, where the court considered an identical clause and, speaking through Mr. Justice Walter V. Schaefer, stated:
“Courts have divided on the meaning of the phrase ‘all interest accruing after entry of judgment,’ Some have read it to limit liability for interest to that part of the judgment for which the insurer is responsible. [Citations] Others have not. [Citations] It might be enough to say that the ambiguity evidenced by this division of opinion should be construed against the insurer. [Citation] But we believe that there are other and stronger reasons for holding that the phrase creates liability for interest on the entire judgment.
“In the first place, the insurer’s language compels such a conclusion. The phrase referring to interest uses the term ‘judgment’ without qualification while in the same clause the phrase limiting the duration of the liability for interest refers to ‘such part of the judgment as does not exceed the limit of the company’s liability thereon.’ Obviously the insurer knew how to qualify the term ‘judgment’ to achieve the result that it urges. It did not do so.
“In addition, the realities of the relationship between the insurer and the insured argue against the insurer’s interpretation. Under the terms of the policy the insurer has complete control of any litigation from which it might incur liability. The insured can not settle with the plaintiff without releasing the insurer from its obligation. Any delay that may cause the accumulation of interest is thus the responsibility of the insurer. And until it has discharged its obligations under the policy it should bear the entire expense of this delay.
“Insurers themselves have recognized this. The National Bureau of Casualty Underwriters formerly included the clause now before us in its form of standard policy. It has now changed its form to read ‘all interest on the entire amount of any judgment therein which accrues after entry of the judgment.’ In announcing the change, it said: ‘Several court cases have held that an insurer’s obligation to pay interest extends only to that part of the judgment for which the insurer is liable. The respective rating committees have agreed that this is contrary to the intent. As a result, the wording with respect to payment of interest in the new Family Automobile Policy has been restated, in order that it be entirely clear that all interest on the entire amount of any judgment, which accrues after entry of the judgment, is payable by the insurer until the insurer has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the insurer’s liability thereon.’ Ramsey, ‘Interest on Judgments under Liability Insurance Policies,’ Insurance Law Journal No. 414 (July, 1957), p. 407, at p. 411.” (pp. 244-246.)
The directive of The National Bureau of Casualty Underwriters, referred to above, contained this further advice to its member companies :
“All Automobile and General Liability policies will be changed accordingly upon revision. In the meantime, they should be interpreted in keeping with the above intent.” (Ramsey, “Interest on Judgments Under Liability Insurance Policies,” Insurance Law Journal No. 414 [July, 1957], p. 411.)
Earlier the same subject was considered by eminent insurance counsel and this analysis was made:
“Supplementary payments. — In cases where a judgment is recovered against the insured for an amount in excess of the applicable policy limit, the underwriters have always intended that the company would pay all interest, on the entire amount of the judgment, accruing after entry of the judgment and before the company has paid or tendered or deposited that part of the judgment which is within the applicable policy limit. There have been cases to the contrary. . . .
“The family automobile policy expressly states that the company will pay ‘all interest on the entire amount of any judgment,’ so it is hoped that there will be no further effort by the companies to restrict their obligations to interest which applies to that part of the judgment which is within the applicable policy limits.” (Risjord & Austin, “Standard Family Automobile Policy,” Insurance Law Journal No. 411 [April, 1957], p. 201.)
In 8 Appleman, Insurance Law and Practice, § 4899, this summation appears:
“. . . there is a conflict as to whether the insurer is liable to pay interest upon that portion of the judgment in excess of the policy limits. The standard rule long had been that the insurer was liable only for interest on that portion which was within the policy limits. More recently, a line of authority has sprung up to the effect that since the insurer controls the litigation, on appeal as well as in the trial court, it should bear the burden of all interest which accrues during that period of time. This would appear to be the only fair result, inasmuch as the insurer has control of the litigation, and can make its election to appeal irrespective of the insured’s desires in the matter. It seems fair to compel the insurer to pay all the interest which accrues pending an appeal, even though the judgment is in excess of the policy limits, for the reason that the insured might desire to pay the excess judgment and thus prevent the running of interest, but the insurer’s control of the litigation would prevent him from doing so.” (pp. 363-364.)
We are persuaded the language in the interest clause means what it says and means what a substantial segment of the insurance industry says it means, that is, irrespective of principal policy limits, the term judgment refers to the entire or whole judgment and not something less. This view is consonant with reason and justice and we hold the trial court properly ruled that appellant owes interest on the entire amount of the judgments rendered against Landwehr.
Landwehr was a named insured in appellant’s policy as reformed. The reformation related back to the time of the policy’s issuance. Appellant became liable to Landwehr for indemnity at the time the judgments were rendered against him. It likewise became indebted to Landwehr’s judgment creditors, appellees herein, upon the same terms. It could have discharged that contractual liability by paying the judgment but did not. Hence the trial court also correctly ruled that appellant owed interest from the time the judgments were rendered against Landwehr.
Appellees have sought to raise further issues in this appeal. They contend the trial court erroneously denied them the benefit of the statutory increase in interest on judgments from six to eight per cent per annum made effective July 1, 1969, by that which is now K. S. A. 1971 Supp. 16-204. This issue was expressly raised in the trial court and determined adversely to appellees. No appeal was taken from that ruling and it thereby became the law of the case. The other issues sought to be raised by appellees are based on alleged facts outside the record on appeal, they are not briefed and we likewise decline to pass upon them.
Judgment affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This lawsuit grows out of an accident occurring at an open intersection. Two vehicles were involved, a county sand or dump truck driven by plaintiff, Bobby S. Sims, and a passenger car operated by the defendant, Benjamin Schrepel. Trial was commenced before a jury. At the conclusion of the plaintiff’s evidence, the defendant moved for summary judgment. The trial court treated the motion as one for a directed verdict and sustained the same on the ground that plaintiff’s evidence established contributory negligence as a matter of law. The plaintiff has appealed.
Before discussing the plaintiff’s evidence, we shall consider plaintiff’s complaint that he should have been permitted to submit his case to the jury on the theory thát the defendant was guilty of gross and wanton negligence. In such event, the plaintiff argues, contributory negligence would not be available as a defense. (See cases in 4 Hatcher’s Kansas Digest [Rev. Ed.] Negligence, § 28.)
While our decisions are to such effect, they can be of scant comfort to the plaintiff in this case, for his petition does not allege gross and wanton negligence on the defendant’s part; the allegations charge no more than ordinary negligence and provide no basis for a claim of wantonness. In Fabac v. St. Louis & S. F. Rly. Co., 119 Kan. 58, 63, 237 Pac. 1019, this court said:
“It is true a petition must state facts sufficient to constitute a cause of action. If the cause of action be failure to exercise such reasonable care as would be expected of an ordinarily prudent and careful person under the circumstances, the petition must exhibit it. If the cause of action be wantonness, the petition must exhibit wantonness. This results from the distinction between negligence and wantonness recognized in K. P. Rly. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730, . . .”
See, also, Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804; Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822.
So far as the record is concerned the only reference to reckless conduct appears to be the observation made by plaintiff’s counsel, when he proffered evidence concerning the defendant’s driving record and habits, that should the jury find the defendant was a reckless driver and was reckless at the time of this accident, contributory negligence would not be a defense. But no motion was made at that time to amend the petition by alleging wanton conduct nor was any such motion made subsequently. Gross and reckless conduct was never injected into this case as an issue.
Thus we are called upon to determine whether the trial court was correct in deciding as a matter of law that, under his own evidence, the plaintiff was guilty of contributory negligence. The rules under which we must make this determination have been stated frequently (Hamilton v. Kurth, 199 Kan. 572, 431 P. 2d 531) and doubtless are well known to members of the legal profession.
To reiterate briefly: Contributory negligence is ordinarily for the jury to determine; it is only when reasonable minds might not differ that it may be decided as a question of law. In determining whether a party has been shown guilty of contributory negligence as a matter of law, the testimony in his favor must be accepted as true and if the facts be such that reasonable minds might arrive at differing conclusions the question must be submitted to the jury and may not be decided by the court as a question of law. (Deemer v. Reichart, 195 Kan. 232, 404 P. 2d 174, Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67.)
Briefly, the plaintiff’s own testimony discloses that he was about 200 yards from the county intersection when he first saw defendant’s vehicle, which was then a quarter of a mile away; that he continued to observe the oncoming vehicle from distances of 150 yards, 100 yards, 50 yards and 25 yards from the intersection and he observed it for the last time just as he was entering the intersection; that he, plaintiff, was proceeding at 40 to 45 miles per hour and he estimated defendant was traveling from 70 to 80 miles an hour; that defendant gave no indication of stopping or slowing down, although plaintiff figured defendant would stop because everybody does.
Testifying further, the plaintiff stated he did not slacken his own speed but continued straight on into the intersection without swerving to the right or the left and without applying his brakes; that he could have braked and come to a stop when he was 100 feet east of the intersection; that the defendant was farther from the intersection than he was and he thought he had plenty of time to get through the intersection; that defendant must have been going faster than he, the plaintiff, had thought.
At the time of the collision, plaintiff was proceeding west and the defendant was traveling north. The point of impact within the intersection was described by the highway patrolman who investigated the accident as being 4 feet south of the centerline of the east-west road and 7 feet west of the east edge of the north-south road. This testimony varied somewhat from the account given by plaintiff, who said he thought he was on his own side of the road and was nearly through the intersection when his truck was struck by defendant’s car just ahead of the saddle tank — which we understand is located directly behind the cab.
The slight variance as to the point of impact appears immaterial, for from all indications the two vehicles were on a collision course. The trooper testified that the collision would have taken place even though the plaintiffs truck had been at the north edge of the east-west road, although the right rear dual wheels of the truck would probably have been struck rather than the saddle tank.
In announcing his ruling on the defendant’s motion for summary judgment the able trial judge sagely remarked that if the plaintiff figured he could clear the intersection first, he was playing a game of Russian Roulette — and he lost. We believe the figure of speech is not only picturesque, but apt. Although fully aware of the defendant’s car bearing down upon him at a high rate of speed, the plaintiff continued on his predetermined course without deviation or change of speed. We do not in the least condone the defendant’s part in this unfortunate accident, but we nonetheless entertain the opinion that, under the test this court has laid down in prior cases, the plaintiff is shown by the record to have been guilty of contributory negligence as a matter of law. The facts fit well within the pattern seen in Ray v. Allen, 159 Kan. 167, 152 P. 2d 851 and Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783.
A second claim of error must be noted. One of the grounds contained in plaintiff’s motion for new trial was that of newly discovered evidence. The motion was supported by an affidavit executed by plaintiff’s counsel to the effect that a witness had been discovered who farmed near the road where the accident occurred and who would testify that on many prior occasions he had seen defendant traveling north on the road at speeds of 100 miles or more. The court’s refusal to grant a new trial on the basis of newly discovered evidence is assigned as error.
This specification of error must be rejected. In the first place there was no showing that the evidence could not have been discovered with reasonable diligence in time to be used at the trial as required by K. S. A. (now 1971 Supp.) 60-259 (a), Fifth. In State v. Leigh, 166 Kan. 104, 199 P. 2d 504, this court said:
“The granting or denial of a motion for new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court. It must first be shown to that court’s satisfaction that such evidence could not with reasonable diligence have been produced at the trial . . .” (p. 112.)
See, also, State v. Collins, 204 Kan. 55, 61, 460 P. 2d 573.
In the second place, the plaintiff is not shown to have complied with the provisions of K. S. A. (now 1971 Supp.) 60-259 (g):
“In all cases where the ground of the motion is error in the exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence, such evidence shall be produced at the hearing of the motion by affidavit, or when authorized by the judge by deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.”
This statute, also, was before the court in State v. Collins, supra, and the following comment was made:
“. . . [T]he evidence which the appellant claims to have been newly discovered was never offered in any form upon the hearing on the motion for a new trial. The evidence was not supported by affidavit, oral testimony or by deposition as required by K. S. A. 60-259 (g).”
It is quite true that in the present case counsel for plaintiff executed an affidavit. His affidavit, however, does not constitute a compliance with the statute. In Laughlin Motors v. Universal C. I. T. Credit Corp., 173 Kan. 600, 251 P. 2d 857, a contention was made on appeal that the trial court had erred in refusing to admit the proffered testimony of two witnesses as the same was set forth in the appellant’s motion for new trial. Neither of the witnesses, however, had signed the affidavit required by 60-259 (g), although appellant’s counsel had signed one. In that situation the court held:
“. . . Neither of those witnesses made any affidavit to be used on the motion for a new trial. There was an affidavit made by one of the attorneys for defendant. This has been held to be not in conformity to our statute. . . . It is the testimony of the witness that is required to be shown on the motion for a new trial — not a statement by the attorney of what the witness would have testified to had he been permitted to answer the question.” (p. 608.)
Other points raised relate to the admissibility of evidence going to the defendant’s driving habits and reputation. In view of the disposition being made of this appeal, we find it unnecessary to decide those questions.
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The opinion of the court was delivered by
Luckert, J.:
This case involves a mechanic’s hen of plaintiff Owen Lumber Company, a subcontractor, against property owned by defendants Arthur and Carol Chartrand. The case has been previously before this court twice. See Owen Lumber Co. v. Chartrand, 270 Kan. 215, 14 P.3d 395 (2000) (Chartrand I), and Owen Lumber Co. v. Chartrand, 276 Kan. 218, 73 P.3d 753 (2003) (Chartrand II). On this appeal, which was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c), four issues are raised; (1) Did Owen Lumber properly serve notice of its mechanic’s lien statement on the Chartrands as required by K.S.A. 60-1103(c)? (2) Does K.S.A. 60-1103(d) apply to limit the amount owed by the Chartrands on the mechanic’s lien? (3) Did the district court err in awarding prejudgment interest? and (4) Were the Chartrands denied the opportunity for a fair trial because the same attorneys represented the plaintiff and other defendants in this multiparty case? We reject all claims of error.
Factual and Procedural Background
In 1994, tire Chartrands contracted with Design Build Group, Inc. (Design Build) for the construction of a new home. When construction began, Design Build owned the property on which the home was built. Owen Lumber supplied some of die building materials to Design Build for the home. Because of apparent prob- 1ems with Design Build’s payment to subcontractors, the Chartrands filed an affidavit of equitable interest in the office of the Register of Deeds in Johnson County, Kansas, on December 28, 1995. Owen Lumber filed a mechanic’s lien on the home on January 5, 1996. Initially, Owen Lumber gave notice of the hen to Design Build as the legal owner but did not give notice to the Chartrands.
Before taking title to the home, the Chartrands received a title report revealing numerous mechanics’ hens filed against the property, including the hen filed by Owen Lumber. The Chartrands took title to the property by a quitclaim deed from Design Build on February 5, 1996. Owen Lumber subsequently filed an action to foreclose its hen in January 1997. The district court granted summary judgment in favor of the Chartrands because Owen Lumber had failed to file a notice of intent to perform as required by K.S.A. 2002 Supp. 60-1103b and had failed to comply with the notice provisions of K.S.A. 60-1103(c).
The Court of Appeals reversed on both issues, and this court affirmed the Court of Appeals’ decision in Chartrand I. This court held that Owen Lumber was not required to file a notice of intent to perform under K.S.A. 60-1103(a)(3) and K.S.A. 2002 Supp. 60-1103b(b) because it filed the actual hen before the Chartrands took legal title to the property. 270 Kan. at 219-21. With regard to the application of K.S.A. 60-1103(c), this court determined that the statutory requirement of service of a mechanic’s hen on “any one owner” of the property was satisfied when Owen Lumber notified Design Build, the legal owner of the property, of the lien. The statute did not require that Owen Lumber also notify the Chartrands, the equitable owners of the property. 270 Kan. at 226.
After the Court of Appeals’ decision but before this court granted review of the case, the legislature passed 2000 H.B. 2905 which amended K.S.A. 60-1103(c) to require notice to the holder of a recorded equitable interest. The bill stated that the amendments were to take effect “[o]n the date of the issuance by the Kansas supreme court of an opinion in the case of Owen Lumber Company vs. Chartrand, case no. 82,228, which affirms the decision of the Kansas court of appeals or on the date the Kansas su preme court denies the petition for review.” L. 2000, ch. 175, sec. 7. This court issued its Chartrand I opinion affirming the Court of Appeals on December 8, 2000; thus, the statutoiy amendments took effect on that date.
On remand, the district court found that the 2000 amendments to K.S.A. 60-1103(c) applied retrospectively and that, because Owen Lumber had failed to serve notice of its lien upon the Chartrands, it was precluded from foreclosing its lien. In Chartrand II, this court observed that the legislature clearly indicated its intent that the amendments were to apply to foreclosure actions pending at the time the amendments became effective. The court went on, however, to address the question of whether such retrospective application affected a vested or substantive right and thereby violated the Due Process Clauses of the United States and Kansas Constitutions. 276 Kan. at 221-28.
After considering the factors articulated in Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 369, 892 P.2d 497 (1995) (nature of the rights at stake, how the rights were affected, and the nature and strength of the public interest furthered by the legislation), and noting that Owen Lumber had complied with the statutes in effect at the time of filing its lien and the foreclosure action, this court held that it would violate due process to retrospectively apply the amendments contained in K.S.A. 2002 Supp. 60-1103(c) without giving the lienholder a reasonable time to comply with the new requirements. Chartrand II, 276 Kan. at 227-28.
Thus, the Chartrand II court held that Owen Lumber “should serve the lien statement in the manner required within 60 days of tire date of the mandate in this case.” 276 Kan. at 228. In so holding, the Chartrand II court rejected Owen Lumber’s contention that the new provisions were satisfied by the Chartrands’ “actual knowledge” of the mechanic’s lien, stating that “[a]ctual notice or knowledge is different from actual receipt of a copy of the lien statement.” 276 Kan. at 230. Plaving stated that there was no allegation and no evidence that Owen Lumber ever attempted to serve a copy of the lien statement upon the Chartrands or mail a copy to them by restricted mail, the Chartrand II court noted the well known Kansas rule of law that “ ‘only strict compliance with the [statutory provisions] will give rise to an enforceable mechanic’s hen.’ ” 276 Kan. at 230 (quoting Scott v. Strickland, 10 Kan. App. 2d 14, 20, 691 P.2d 45 [1984]). The case was reversed and remanded to the district court. Chartrand II, 276 Kan. at 231.
The district court set the matter for trial to determine whether Owen Lumber subsequently complied with the mandate in Chartrand II. After the trial, the district court made extensive findings of fact and conclusions of law and entered judgment on the mechanic’s hen in favor of Owen Lumber in the amount of $12,980.61, plus prejudgment interest in the amount of $11,682.55, continuing at a rate of “$3.56 per day for each day from February 6, 2005 until the date judgment is entered, and continuing postjudgment interest at the statutory rate.” The court’s journal entry of judgment was filed on May 10, 2005.
The Chartrands’ motion for reconsideration was denied, and now they bring a timely appeal.
Issue 1: Did Owen Lumber Properly Serve Notice of its Mechanic’s Lien Statement on the Chartrands as Required by K.S.A. 60-1103(c)?
First, the Chartrands contend that Owen Lumber should not be permitted to foreclose on its mechanic’s lien because Owen Lumber failed to properly serve a copy of the lien statement on them as required by K.S.A. 60-1103(c) and in compliance with this court’s mandate in Chartrand II. This contention lacks merit.
Standards of Review
The Chartrands’ argument requires this court to interpret the language of K.S.A. 60-1103(c). The interpretation of a statute is a question of law over which this court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
Moreover, the Chartrands’ argument requires our review of the district court’s findings of fact and conclusions of law contained within its memorandum decision. The function of an appellate court is to determine whether the court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
Evidence on Remand
It is undisputed that after the remand Owen Lumber did not achieve personal service or service by restricted mail upon the Chartrands. However, during the trial to the court on remand, there was evidence that Owen Lumber attempted service. A secretary of Owen Lumber’s attorney testified that she prepared a cover letter and mailed it with a photocopy of the mechanic’s lien to the Chartrands. According to the secretary, she mailed two sets — one via certified mail, restricted delivery, and one via first-class mail. The restricted mail was returned as “unclaimed.” The “unclaimed” mail was admitted into evidence. The secretary testified that the first-class mail was never returned.
The Chartrands also testified on remand. Arthur Chartrand stated that he and his wife received several cards from the post office indicating that “something was there,” but he “didn’t feel compelled to go to the post office to pick up” the mail. He indicated that the mail at the post office might have been “junk mail.” With regard to first-class mail, Mr. Chartrand denied receiving any mail from tire law firm representing Owen Lumber within 60 days of this court’s mandate in Chartrand II.
As for Carol Chartrand, she testified that they received certified mail cards from the post office during this time “but it wasn’t a name that I recognized.” Mrs. Chartrand denied receiving any correspondence from Owen Lumber’s lawyers between September 25, 2003, and November 30, 2003.
Following the trial, the district court found that the Chartrands received from the post office notice of tire certified mail, but they declined to pick it up. In confirmation that the documents were also sent by first-class mail, the court noted that, in addition to the secretary’s testimony, the letter sent by Owen Lumber’s attorney to the Chartrands stated: “I am also forwarding copies of these documents by regular mail service.”
The district court found that the Chartrands were “well aware that Owen Lumber Company had been required to send a notice to [them] within 60 days of the mandate or the claim against the Chartrands would be lost. The testimony that they didn’t pick up the mail because they believed it would be junk mail is not credible.” The court concluded that “formal service” failed because the Chartrands decided not to pick up the restricted mail that they “knew” had come from Owen Lumber, and Owen Lumber did not attempt service by other means.
Regardless of the failure to meet the K.S.A. 60-1103 “formal” service requirements, the district court found the Chartrands “actually received a copy of the lien statement” as provided in the savings provision of K.S.A. 60-1103(c). The court indicated that the Chartrands (1) had previously received a copy of the hen statement as an attachment to the 1997 petition, which was properly served, and (2) had received a copy of the hen statement by regular mail after issuance of the mandate in Chartrand II. Relying on Shriver v. National Bank, 117 Kan. 638, 649, 232 Pac. 1062 (1925), the court stated that there is a presumption under Kansas law that a letter properly addressed and mailed was received by the addressee. Finding that Owen Lumber met the requirements of what the district court called the “substantial compliance” provisions of K.S.A. 60-1103(c), the court concluded that Owen Lumber could proceed with the enforcement of its mechanic’s hen.
Service Requirements
The Chartrands take issue with the district court’s approval of Owen Lumber’s notice of the mechanic’s lien statement to the Chartrands, as equitable owners, when no “formal notice” requirements of personal service or service by registered mail were met under K.S.A. 60-1103.
With respect to mechanics’ hens, K.S.A. 60-1103(c) allows for either personal service or service by restricted mail. The statute specifies, in pertinent part:
“The claimant shall (1) cause a copy of the hen statement to be served personally upon any one owner, any holder of a recorded equitable interest and any party obligated to pay the Hen in tire manner provided by K.S.A. 60-304, and amendments thereto, for the service of summons within the state, ... (2) mail a copy of tire hen statement to any one owner of the property, any holder of a recorded equitable interest and to any party obligated to pay the same by restricted mail or (3) if the address of any one owner or such party is unknown and cannot be ascertained with reasonable diligence, post a copy of the hen statement in a conspicuous place on the premises. The provisions of this subsection requiring that the claimant serve a copy of the hen statement shall be deemed to have been comphed with, if it is proven that the person to be served actually received a copy of the lien statement. No action to foreclose any lien may proceed or be entered against residential real property in this state unless the holder of a recorded equitable interest was served with notice in accordance with the provisions of this subsection.” (Emphasis added.)
Notice Sent by First-Class Mail
One of the reasons the district court found that Owen Lumber served notice of the mechanic’s Hen statement on the Chartrands was the evidence that the notice was sent as a backup by first-class mail. The Chartrands denied receiving this notice. Regardless, the Chartrands argue that because this was not a valid method of service pursuant to K.S.A. 60-1103(c), any alleged service by first-class mail did not satisfy the statutory requirements.
The district court cited Shriver, 117 Kan. 638, to support its ruling that in Kansas there is a presumption that a letter properly addressed and mailed was received. See also, e.g., State v. Thrash, 267 Kan. 715, Syl. ¶ 4, 987 P.2d 345 (1999) (Kansas Department of Revenue is entitled to rely upon presumption that letters sent by ordinary mail postage prepaid are received by the addressee in ordinary course of mail). Shriver did not involve service of a mechanic’s lien and is further distinguishable because it did not involve a statute requiring service by certified mail.
As the Chartrands argue, the district court’s theory of presumptive receipt of legal service runs at odds with K.S.A. 60-304 (service of process) and the service requirements in K.S.A. 60-1103(c). The theory of presumptive receipt of legal service is a general rule providing that “[sjervice of process by mail is deemed complete when the summons or writ is deposited in the post office, properly ad dressed, with the proper amount of postage” and generally “service by mail is complete upon mailing, [therefore] nonreceipt of the papers does not affect the validity of the service.” 62B Am. Jur. 2d, Process § 212, p. 784. However, “[i]f service by mail is to be effective, the statute or rule authorizing such land of service must be complied with.” 62B Am. Jur. 2d, Process § 211, p. 783. Moreover, “[a] statute allowing . . . service by [certified] mail within the state must be strictly complied with.” (Emphasis added.) 62B Am. Jur. 2d, Process § 211, p. 783.
In Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 567, 620 P.2d 1167 (1980), the Court of Appeals mentioned the “presumption of delivery” theory and reasoned as follows:
“As we understand the purpose of K.S.A. 60-103 [defining restricted delivery] (see author’s comment in Gard’s Kansas C. Civ. Proc. § 60-103 [1963] cited with approval in Rounsavell v. Tipton, 209 Kan. at 367), it is that the restricted notice requirement replaces the presumption of delivery with the sureness of proof by tire return receipt. The law does not require a useless act that in no way would have changed the notice actually given.”
More recendy, the Chartrand II court emphasized both strict compliance with K.S.A. 60-1103 when dealing with mechanics’ liens and actual receipt of a copy of the notice of the lien statement. 276 Kan at 230.
We conclude that the theory of presumptive receipt of legal service which provides that service of process by mail is deemed complete when the summons or writ is deposited in the post office, properly addressed, with the proper amount of postage does not apply to K.S.A. 60-1103(c) which requires service by restricted mail.
Savings Provision
Contraiy to the Chartrands’ argument, however, the district court did not rely on the presumption for proof of service. Rather, the district court used the presumption as a substitute for proof that there had been actual receipt of the hen statement. Actual receipt would trigger the savings provision of K.S.A. 60-1103(c) (“The provisions of this subsection requiring that the claimant serve a copy of the lien statement shall be deemed to have been complied with, if it is proven that the person to be served actually received a copy of the lien statement.”). The Chartrands attempted to rebut this presumption by testifying that they had not, in fact, received a copy of the hen statement during the 60-day period after the mandate in Chartrand II. The district court discredited this testimony and, presumably, found that the presumption was not rebutted. We need not resolve this duel between presumption and rebuttal, however, because we agree with the district court’s alternative finding that the saving provision applied because, in 1997, Owens Lumber properly served the Chartrands a petition to which a copy of the mechanic’s hen statement was attached.
The Chartrands take issue with the district court’s reasoning on this alternative point because of the fact that this court, in Chartrand II, rejected Owen Lumber’s contention that the new provisions of the statute were satisfied based upon the Chartrands’ admission that they had “actual knowledge” of and had reviewed the mechanic’s hen filed by Owen Lumber prior to accepting a quitclaim deed to the property. 276 Kan. at 228-29. Even though the Chartrands had knowledge of the hen because of Mr. Chartrand’s search of records and from the title insurance report, this court emphasized that “[a]ctual notice or knowledge is different from actual receipt of a copy of the hen statement.” 276 Kan. at 230.
In this appeal, Owen Lumber does not focus on the “actual notice” allegation raised in Chartrand II but on the Chartrands’ “actual receipt” of the mechanic’s hen statement. The district court accepted tire distinction, citing the difference between (1) notice received through the public filing of the lien and through the title insurance report and (2) the Chartrands’ receipt of a copy of the hen statement in 1997 when they were served with the original petition. The district court concluded the Chartrands’ actual receipt of the mechanic’s hen statement triggered the savings clause of K.S.A. 60-1103(c).
Presumably to counterattack this application of the savings clause, the Chartrands cite Estate of Norris v. Hastings, 36 Kan. App. 2d 479, 141 P.3d 511 (2006), for the proposition that service may be insufficient even after a party concedes to receiving actual notice. In Hastings, a personal injury case, valid service of process was not achieved within the time allowed under the applicable statute, K.S.A. 60-203(a)(1). Similarly, in the present case tihe “formal service” methods were not successfully utilized by Owen Lumber within the 60-day time limit set in Chartrand II.
However, unlike Hastings, we must apply tire savings provision at the end of K.S.A. 60-1103(c). That provision is clear; the service requirements will be deemed to have been met if it is proven that the person to be served actually received a copy of the hen statement. The record supports the district court’s conclusion that the hen statement was received. Although the Chartrands never stipulated to receiving the hen statement, the record shows that the statement was attached to the 1997 petition which was served upon the Chartrands as named defendants. Additionally, the Chartrands essentially concede in their appellate brief that they did receive the petition and attachment in 1997.
The district court correctly applied the savings provision of K.S.A. 60-1103(c) and correctly concluded that because the Chartrands obtained actual receipt of the mechanic’s lien statement, the statutory notice requirement was satisfied.
Issue 2: Does K.S.A. 60-1103(d) Apply to Limit the Amount Owed by the Chartrands on the Mechanic’s LienP
Next, the Chartrands argue that K.S.A. 60-1103(d) limits the total amount owed on the mechanic’s hen. The standards of review for this issue are the same as those applied to the prior issue because resolution of the arguments requires construction of the statute and review of the district court’s findings of fact and conclusions of law.
K.S.A. 60-1103(d) states:
“(d) Rights and liability of owner. The owner of the real property shall not become liable for a greater amount than the owner has contracted to pay the original contractor, except for any payments to the contractor made:
(1) Prior to the expiration of the three-month period for filing lien claims, if no warning statement is required by K.S.A. 60-1103a, and amendments thereto; or
(2) subsequent to the date the owner received the warning statement, if a warning statement is required by K.S.A. 60-1103a, and amendments thereto.
“The owner may discharge any hen filed under this section which the contractor fails to discharge and credit such payment against the amount due the contractor.” (Emphasis added.)
The Chartrands argue that they contracted with Design Build to pay Owen Lumber a maximum of $59,169.37 for building materials, that Design Build paid Owen Lumber a total of $54,337.85, and that, therefore, only $4,831.52 remains due on the mechanic’s lien.
In rejecting the Chartrands’ argument that they should only be liable for a difference of $4,831.52, the district court found that the Chartrands’ contention failed to take into account who the “owner” was at the time Owen Lumber entered into an agreement to provide materials for use in building the home. See K.S.A. 60-1103(a) (providing any supplier or subcontractor may obtain hen for labor, equipment, material, or supplies provided under an agreement with a contractor, subcontractor, or owner contractor). The district court noted that it was only after Owen Lumber recorded its mechanic’s Hen that the Chartrands obtained legal title through a quitclaim deed, and the holder of a quitclaim deed does not gain priority over adverse interests that were discoverable by reasonable diligence. See Schwalm v. Deanhardt, 21 Kan. App. 2d 667, Syl. ¶ 2, 906 P.2d 167 (1995). Consequently, the district court concluded that any limitation imposed from K.S.A. 60-1103(d) would apply only to a contract entered into between Design Build, the owner at the time the Hen was filed, and Owen Lumber.
The district court’s reasoning — that subsection (d) would apply to Owen Lumber and Design Build — does not fit into the plain language of K.S.A. 60-1103(d) in that Owen Lumber was a “subcontractor,” not the “original contractor.” Design Build was the original contractor. A plain reading of the statute involves a limitation of the owner’s liability based upon the amount the owner contracted to pay the original contractor, not the amount the original contractor agreed to pay a supplier or subcontractor.
There is an ambiguity, however, as to whether the reference to owner in subparagraph (d) includes an owner contractor. If so, then how would one construe the term “original contractor”? There is also an ambiguity as to whether any limitation applies to equitable owners. The Chartrand I court, although not directly addressing this issue, indicated that the statute should not be construed to limit the equitable owner s liability. The court noted:
“At the time the mechanic’s Hen was filed, the Chartrands were not ‘any party obligated to pay the lien.’ The only party obligated to pay the hen was Design Build, as owner of the legal interest in the property. The Chartrands only became a ‘party obligated to pay the hen’ after they took legal interest in the property by quitclaim deed from Design Build. By taking the property by quitclaim deed from Design Build, the Chartrands chose to voluntarily make themselves a ‘party obligated to pay the hen.’ ” 270 Kan. at 227-28.
This conclusion is consistent with the purpose of requiring service of notice of the lien, which is to advise a property owner of “the existence of the hen, afford him opportunity to investigate the claim and determine its validity and to avoid paying the same account twice.” Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, 145, 505 P.2d 640 (1973); see Chartrand I, 270 Kan. at 219-20, 225-26. In Dick v. LaVilla Inns, Inc., 212 Kan. 101, 102, 510 P.2d 188 (1973), this court stated that K.S.A. 60-1103(d) [then K.S.A. 1972 Supp. 60-1103(b)] “sets forth the provisions for crediting payments to subcontractors against claims of the contractor.” See also Kan. Att’y. Gen. Op. No. 85-124 (pursuant to K.S.A. 60-1103[d], owner of residential property is subject to double liability for work done on that property only for amount of payments made to general contractor after receipt of required warning statement, or, if no warning statement is required, for payments made prior to expiration of the 3-month period for filing hen claims). Because the Chartrands were aware of the hen before making any final payments contemporaneous with receiving the deed, the limitation would arguably not apply.
However, we note that the intent of the statute and the outcome may have been modified by the amendments made by the legislation passed during the pendency of Chartrand I; the legislation broadened the statute to require notice to equitable owners. Considering the effect of the amendments again raises due process and other questions discussed in Chartrand II. We conclude that we need not resolve this morass of issues because even , if we accept the Chartrands’ interpretation of the statute and substitute the Chartrands for the word “owner” and Design Build for the term “original contractor,” the records does not support tire Chartrands’ argument.
The limit of $59,169.37 on which the Chartrands rely is found on a spreadsheet of estimated construction costs which was attached to the contract between the Chartrands and Design Build. Gregoiy Finkle of Design Build testified that Owen Lumber supplied additional items that were not included as part of the Owen Lumber estimate on the spreadsheet.
As the district court noted, there is no evidence in the record of a contract between Design Build and Owen Lumber for a fixed amount or maximum total of $59,169.37. In fact, Robert Maple, Jr., coowner and sales manager of Owen Lumber, testified that the subcontractor had no written contract with Design Build and that Owen Lumber generally supplies the requested lumber and- materials and then bills contractors on a monthly basis. The testimony of Finkle also confirmed that Design Build did not have a fixed-sum contract with Owen Lumber for supplying materials for the job; instead, Owen Lumber supplied materials as requested and billed the contractor monthly. According to Finkle, all the requested materials were supplied before tire Chartrands obtained legal ownership of the property by a quitclaim deed.
More salient to the Chartrands’ argument, however, is the lack of any evidence that the Chartrands contracted to pay no more than the $59,169.37 for materials from Owen Lumber. Rather, tire figure was reflected as an “estimate.” The Chartrands do not cite to any other evidence in the record of a contractual limitation. Thus, the record does not support the first premise of the Chartrands’ argument that their obligation was contractually limited.
Similarly, the second part of the equation — that $54,337.85 should be subtracted from the contract limit — is not supported by the record. The Chartrands contend that Design Build produced cancelled checks totaling the exact $54,337.85 figure, but they fail to cite to any support for this statement in the record. Instead, the record shows that Maple testified that he did not personally total the payments, but he agreed with counsel that $54,000 “sounds about right.”
The Chartrands bore the burden to designate a record showing error, and without such a record, the claim of error fails. See Fletcher v. Nelson, 253 Kan. 389, 392, 855 P.2d 940 (1993). Albeit for different reasons, we agree with the district court’s decision to reject the Chartrands’ argument that K.S.A. 60-1103(d) should limit the amount owed on the mechanic’s hen. The limitation does not apply under the facts of this case. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001) (upholding district court’s ruling as correct for different reason).
Issue 3: Did the District Court Err in Awarding Prejudgment Interest?
Next, the Chartrands argue that tire district court erred in awarding prejudgment interest on the mechanic’s lien from February 6, 2005, until the date judgment was entered. They contend that the amount owed on the lien was not ascertainable until die district court made its calculations by journal entry on May 10, 2005. This contention lacks merit.
Standard of Review
The standard of review for allowing prejudgment interest is a matter of judicial discretion subject to reversal only upon a showing of abuse of discretion. Blair Constr., Inc. v. McReth, 273 Kan. 679, 689, 44 P.3d 1244 (2002); Vernon v. Commerce Financial Corp., 32 Kan. App. 2d 506, 511, 85 P.3d 211 (2004).
General Rules of Law
Prejudgment interest is governed by K.S.A. 16-201. In Kansas, the general rule is that prejüdgment interest is allowable on liquidated claims. Interest is also an appropriate remedy when claims are liquidated although subject to setoff or counterclaims. Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 595-97, 455 P.2d 555 (1969). A claim becomes liquidated when both the amount due and the date on which such amount is due are fixed and certain or when the same become definitely ascertainable by mathematical calculation. Blair Constr., Inc., 273 Kan. at 689; Miller v. Botwin, 258 Kan. 108, 119, 899 P.2d 1004 (1995).
The Chartrands’ obligation to pay the Hen was established in Chartrand, I, 270 Kan. at 227-28. Now, they argue that because they disputed Owen Lumber’s claim and because they asked the district court to limit their liability on the mechanic’s lien, the claim was not sufficiently certain and ascertainable on February 5,1996, the date the Chartrands took ownership of the property by quitclaim deed. This type of argument has been rejected by this court.
In Crawford v. Prudential Ins. Co., 245 Kan. 724, 783 P.2d 900 (1989), an injured worker sued his wife’s group health insurer to recover medical expenses. We recognized that controversy will surround a claim for damages and interest. Regardless, the fact that a good faith controversy existed as to insurance coverage, which precluded allowance of attorney fees, did not preclude the granting of prejudgment interest where the amount of the prevailing insured’s claim was liquidated. 245 Kan. at 737. Although the present case involves a different set of facts, it remains true that a good faith controversy involving the liability of the Chartrands (or limiting their liability) does not preclude the granting of prejudgment interest on a liquidated claim.
The Chartrands point to the district court’s comment that “neither party has provided much help in trying to determine the. principal amount actually owed by Design Build Group to Owen Lumber.” This, however, appears to refer to determining whether there should be any payments set off and to determining whether the amount was principal only without including interest.
As previously observed, Owen Lumber’s claim was clearly liquidated when the lien statement was filed. Even though there was a dispute as to whether the lien actually reflected the total of the invoices attached to the hen and, ultimately, the district court determined that interest reflected on those invoices should not be included in the total, it is not disputed that the amount owed could be ascertained through mathematical calculation. Even the Chartrands, by suggesting the invoices show that the total on the hen was incorrect, indirectly concede that the amount owed by Design Build to Owen Lumber can be ascertained by adding the invoices and subtracting payments. See J. Walters Const. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 699, 817 P.2d 201 (1991). Moreover, there was no dispute between Design Build and Owen Lumber that $14,502.97 was due Owen Lumber when the hen statement was filed. Any reduction, set off, or other claim that would reduce the actual payment due the subcontractor arises out of the same “contract or transaction” and, therefore, the claim does not become “unliquidated.” See Phelps Dodge Copper Products Corp., 203 Kan. 591, Syl. ¶ 4; J. Walters Constr. Co., 15 Kan. App. 2d at 699. Nor does the dispute regarding liability make the claim unliquidated. See Crawford, 245 Kan. at 737.
Therefore, the district court correctly determined that the claim became fixed and liquidated as of the date they became owners of the property, or February 5, 1996. The court did not abuse its discretion in awarding prejudgment interest.
Issue 4: Were the Chartrands Denied the Opportunity for a Fair Trial Because the Same Attorneys Represented the Plaintiff and Other Defendants in This Multiparty Case?
Finally, the Chartrands argue that they were denied the opportunity for a fair trial because the same attorneys represented plaintiff Owen Lumber and other defendants in this case, specifically Greg Finkle and John Hart, owners of Design Build. The district court rejected the Chartrands’ contention that Owen Lumber acted in collusion with the owners of Design Build and that Owen Lumber, because of “unclean hands,” should be equitably es-topped from enforcing its mechanic’s lien. We agree with the district court’s conclusion that the Chartrands failed to meet their burden of proof on this issue.
A party asserting equitable estoppel must show that another party, by acts, representations, admissions, or silence when-that other party had a duty to speak, induced the party asserting estoppel to believe certain facts existed. The party asserting estoppel must also show that the party reasonably relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The district court made the negative finding that the Chartrands did not carry their burden of proving impropriety. An appellate court will not disturb a negative finding absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. In re Estate of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000).
The Chartrands merely make short assertions in their appellate brief without accompanying argument. They note that attorney Charles Weedman of the Crouch, Spangler, and Douglas law firm prepared the mechanic’s hen statement. In January 1997, Weed-man and Michael Bandre of the same firm filed the petition to enforce the mechanic’s hen on behalf of Owen Lumber. Finkle and Hart, owners of Design Build, were two of the named defendants in the lawsuit filed by Owen Lumber. Later, in June 1998, Weedman and Bandre appeared in court and entered their appearances on behalf of Owen Lumber, Hart, and Finkle.
At the 2004 trial, the district court questioned the Chartrands’ counsel about the unclean hands/equitable estoppel claim. After hearing counsel’s argument, the court summed up the issue as follows:
“THE COURT: Well, your client has the burden of proving unclean hands. So on the unclean hands issue, what you’re telling me is [Design Build] cooperated in providing letters that accurately described the debt. There’s no evidence as to whether [Design Build] had the money to pay for it. And [Design Build] let the same counsel represent them who also represented the plaintiff.
“[Defense counse]: That’s what I’m saying, Judge.”
Nowhere do the Chartrands allege that they were somehow duped or prejudiced by the situation involving Weedman’s and Bandre’s dual representation, nor do they question the hen statement’s accuracy. (Although the Chartrands argue the bills attached to tire hen total a different number than reflected on the hen statement, they admit that the amount can be ascertained.) It has been estabhshed that the Chartrands knew before they purchased the property from Design Build that Owen Lumber had a mechanic’s lien on the property. Chartrand II, 276 Kan. 218, 73 P.3d 753 (2003).
We cannot conclude that the district court arbitrarily disregarded undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice was present. The district court correctly concluded that the Chartrands failed to meet their burden of proof.
Judgment of the district court is affirmed, and the case is remanded for foreclosing the mechanic’s lien and awarding principal and interest as calculated by the district court.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Russell W. Hasenbank, a Kansas attorney whose last registration address with the Clerk of the Appellate Courts of Kansas is in Liberal, Kansas. Hasenbank was admitted to the practice of law in the state of Kansas in 1994.
The alleged misconduct arises from five complaints, DA8184, DA8780, DA9354, DA9550, and DA9632, which concern the respondent’s representation of clients Gary and Zilla Cline, Laurie and Alan Barber, Earl Shinogle, Jose Ortega-Najera, and Rafael Flores.
In April 2006, the Disciplinary Administrator filed a formal complaint. The respondent answered admitting most of the factual allegations. The respondent also proposed a probation plan asking for, among other things, supervised probation for 4 years. The Disciplinary Administrator agreed with the plan, but also requested a 1-year suspension from the practice of law, which would be suspended during the probationary period.
A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing on May 9, 2006. The respondent filed no exceptions to the report.
FINDINGS OF FACT
Complaint of Gary and Zilla Cline (DA8184)
“2. In 1997, Gary and Zilla Cline of Hooker, Oklahoma, were involved in an automobile accident. Mr. and Mrs. Cline hired the Respondent to represent them in a personal injury action.
“3. In September 2000, the Respondent settled Mr. and Mrs. Cline’s claim. However, the Respondent failed to settle tire PIP hen and failed to distribute the settlement funds.
“4. After the Respondent setded the personal injury claim, the Respondent failed to adequately communicate widr Mr. and Mrs. Cline.
“5. On March 9, 2001, Mr. and Mrs. Cline filed a written complaint with the Disciplinary Administrator’s office. David J. Rebein was appointed to investigate die complaint. Mr. Rebein traveled to Hooker, Oklahoma, and visited with Mr. and Mrs. Cline. While meeting with Mr. and Mrs. Cline, Mr. Rebein called the insurance company on dieir behalf and settled die PIP lien.
“6. Mr. Rebein contacted die Respondent and encouraged him to close the case in an expeditious manner. The Respondent immediately closed the case, distributed the setdement proceeds, and provided a copy of die settlement sheet to Mr. Rebein.”
The respondent applied to participate in the Attorney Diversion Program regarding the Clines’ complaint. His application was approved and, initially, he complied with the requirements of the diversion agreement. However, later, the respondent failed to comply with the requirements of the diversion agreement. The respondent failed to respond to many letters written by members of the Disciplinary Administrator’s office. Accordingly, he was removed from the Attorney Diversion Program and traditional procedures resumed.
Complaint of Laurie and Alan Barber (DA8780)
“7. On July 31, 2002, Laurie and Alan Barber retained die Respondent to file a child in need of care case regarding two minor children of Alan Barber’s brother. The Respondent filed the case and the matter was scheduled for hearing.
“8. In late October 2002, the Respondent met widi Mr. and Mrs. Barber and discussed the likely outcome of die hearing. Because the Respondent believed that die natural modier would prevail at die hearing, he advised diem of an alternative approach. The Barbers wanted to be able to maintain contact with the children and monitor the natural modier’s care of the children. As a result, the Respondent drafted an agreement which included a provision that the maternal grandparents would be die co-guardians and co-conservators of die children.
“9. During early November 2002, the Respondent negotiated an agreement with opposing counsel. Negotiating the agreement was not a simple task for die Respondent, however, because his clients and the maternal grandparents repeatedly altered the terms of what they would accept in the agreement.
“10. The agreement included separate signature pages for each party. The maternal grandparents and the natural mother were to sign the agreement in Texas and return the signed agreement to Kansas via facsimile. On November 8, 2002, Mr. and Mrs. Barber signed the agreement and the children were transferred to the maternal grandparents in Texas.
“11. After the children were transferred to the maternal grandparents in Texas, Mrs. Barber attempted to contact the Respondent regarding the enforcement of the agreement. The Respondent failed to return her telephone calls.
“12. In December 2002, because the Respondent would not return Mrs. Barber’s telephone calls, she called Clinton B. Peterson, the children’s guardian ad litem, regarding the agreement. Mr. Peterson had not received a copy of the agreement signed by the maternal grandparents and the natural mother. Because he had not received a copy of the agreement signed by the maternal grandparents and the natural mother, Mr. Peterson mistakenly believed that they had not signed the agreement. Mr. Peterson informed Mrs. Barber of his mistaken belief. However, the maternal grandparents and the natural mother signed the agreement on November 8, 2002.
“13. Because the Respondent failed to return Mr. and Mrs. Barber’s telephone calls, Mr. and Mrs. Barber continued to mistakenly believe that the maternal grandparents and natural mother did not sign the agreement and that, therefore, the Respondent failed to fulfill the desired objectives of the representation.”
Complaint of Earl Shinogle (DA9354)
“14. In July 2002, Earl Shinogle retained the Respondent to pursue a claim for personal injury and property damage for an accident that occurred in Seward County, Kansas.
“15. Previously, an oil and gas company had laid an oil pipe under a road. In Mr. Shinogle’s opinion, the settling of the road, due to the placement of the pipe, caused a rat in the road. There was no warning of the rat and while transporting farm equipment, Mr. Shinogle hit the rut which caused him personal injury and damage to his farm equipment.
“16. The Respondent sent a demand letter to the oil and gas company on behalf of Mr. Shinogle. The oil and gas company responded, denying liability. Thereafter, the Respondent took no additional action on behalf of Mr. Shinogle.
“17. Throughout 2003 and into 2004, Mr. Shinogle repeatedly stopped by the Respondent’s office and called for him on the telephone in an effort to determine the status of his claim against the oil and gas company. The Respondent made no attempt to respond to Mr. Shinogle’s efforts at communication.
“18. In 2004, Rick Yoxall, the Respondent’s (former) partner, informed Mr. Shinogle that the Respondent was no longer employed at the firm and the applicable statute of limitations on Mr. Shinogle’s claim had passed.”
Complaint of Jose Oretga-Najera (DA9550)
“19. Following his conviction of three felonies in the Ford County District Court, Jose Ortega-Najera appealed Iris convictions.
“20. On September 10, 2004, tire Kansas Court of Appeals issued an order remanding the case to the district court for a hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The court’s order directed the appellant to file reports with the Court of Appeals explaining the status of the proceeding in the district court.
“21. On January 10, 2005, the Court of Appeals granted Mr. Ortega-Najera’s pro se motion for the appointment of new appellate counsel. On January 18,2005, the Ford County District Court entered an order appointing the Respondent to represent Mr. Ortega-Najera.
“22. On January 26, 2005, the Court of Appeals entered an order directing the Respondent to file a report on the status of the remand hearing by February 28, 2005. The Respondent failed to comply with the order.
“23. On April 7, 2005, the Court of Appeals entered an order, noting the absence of a status report and directing the Respondent to file a status report by April 22, 2005. The Respondent failed to comply with the order.
“24. On May 10, 2005, the Court of Appeals entered an order directing the Respondent to show cause why he should not be dismissed as counsel for his failure to comply with the orders of the court. The Respondent failed to respond to the court’s order to show cause.
“25. Kathie Garman, Deputy Clerk of the office of the Clerk of the Appellate Courts, attempted to contact the Respondent by telephone. The Respondent failed to return Ms. Garman’s telephone calls.
“26. On May 26, 2005, the Court of Appeals removed the Respondent as counsel for Mr. Ortega-Najera.”
Complaint of Rafael Flores (DA9632)
“27. Following Rafael Flores’ convictions of felony murder and attempted voluntary manslaughter, on April 15,2005, the Ford County District Court appointed the Respondent to represent Mr. Flores in an appeal of his sentence to the Kansas Supreme Court.
“28. Thereafter, the Clerk of the Appellate Courts notified the Respondent that his brief was due by May 26, 2005. The Respondent failed to file a brief on behalf of Mr. Flores by May 26, 2005.
“29. On July 11, 2005, the court entered an order directing the Respondent to show cause why Mr. Flores’ appeal should not be dismissed for his failure to file a brief on behalf of Mr. Flores. The court also ordered the Respondent to file a brief by July 25, 2005. The Respondent failed to respond to the court’s order to show cause or to file a brief on behalf of Mr. Flores by July 25, 2005.
“30. On August 5, 2005, the court entered an order directing the Respondent to show cause by August 15, 2005, why he should not be removed as counsel for Mr. Flores. The Respondent failed to respond to the court’s order to show cause.
“31. On August 17, 2005, the Supreme Court removed the Respondent as counsel for Mr. Flores and remanded the case to die Ford County District Court for the appointment of new counsel.”
PANEL’S CONCLUSIONS OF LAW
Based upon the findings of fact, the hearing panel concluded as a matter of law that the respondent had multiple violations of the Kansas Rules of Professional Conduct (KRPC), including KRPC 1.3 (2006 Kan. Ct. R. Annot. 371), KRPC 1.4 (2006 Kan. Ct. R. Annot. 386), and KRPC 3.2 (2006 Kan. Ct. R. Annot. 462), as detailed below.
KRPC 1.3
Attorneys must act with reasonable diligence and promptness in representing their clients. (2006 Kan. Ct. R. Annot. 371). In this case, the respondent failed to provide diligent representation when he failed to (1) settle the PIP hen and distribute the settlement proceeds in connection to his representation of Gary and 7,ilia Cline, (2) file suit on behalf of Mr. Shinogle, (3) prosecute Mr. Ortega-Navera’s appeal and (4) prosecute Mr. Flores’ appeal. Because the respondent failed to act with reasonable diligence and promptness in representing Mr. and Mrs. Cline, Mr. Shinogle, Mr. Ortega-Navera, and Mr. Flores, the hearing panel concluded that the respondent violated KRPC 1.3.
KRPC 1.4
KRPC 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” (2006 Kan. Ct. R. An-not. 386). In this case, the respondent violated KRPC 1.4(a) when he failed to keep Mr. and Mrs. Cline, Mr. and Mrs. Barber, and Mr. Shinogle reasonably informed regarding the status of their representations. Accordingly, the hearing panel concluded that the respondent violated KRPC 1.4(a).
KRPC 3.2
An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. (2006 Kan. Ct. R. Annot. 462). In this case, the respondent failed to expedite litigation when he failed to prosecute Mr. OrtegaNavera’s and Mr. Flores’ appeals. Accordingly, the hearing panel concluded that the respondent violated KRPC 3.2.
KRPC 8.1 and Supreme Court Rule 207
In addition to alleging that the respondent violated KRPC 1.3, KRPC 1.4, and KRPC 3.2, the Deputy Disciplinary Administrator also alleged that the respondent violated KRPC 8.1 (2006 Kan. Ct. R. Annot. 505) and Kansas Supreme Court Rule 207 (2006 Kan. Ct. R. Annot 268).
The Deputy Disciplinary Administrator specifically alleged that the respondent violated KRPC 8.1 and Kansas Supreme Court Rule 207 by failing to comply with the terms and conditions of the original diversion agreement, by failing to respond to letters concerning his participating in the Attorney Diversion Program, and by failing to execute the new diversion agreement.
The hearing panel concluded that failing to comply with the terms and conditions of the original diversion agreement, failing to respond to letters concerning his participating in the Attorney Diversion Program, and failing to execute the new diversion agreement, individually or collectively, does not amount to a violation of KRPC 8.1 and Kansas Supreme Court Rule 207.
The respondent faces other consequences by failing to comply with the terms and conditions of the original diversion agreement, by failing to respond to letters concerning his participation in the Attorney Diversion Program, and by failing to execute the new diversion agreement. After the respondent failed to comply with the Attorney Diversion Program, traditional disciplinary procedures resumed.
It would be unfair to find that failing to complete or cooperate with the Attorney Diversion Program constitutes separate violations of the rules.
PANEL’S RECOMMENDATION
The hearing panel next considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
On the subjects of Duties Violated and Mental State, the respondent negligently violated his duty to his clients to provide diligent representation and adequate communication.
On the subject of Injury, as a result of the respondent’s misconduct, the respondent caused actual injury.
On the subject of Aggravating Factors, several were present. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
Regarding a pattern of misconduct, included in this case are five complaints. The complaints involve similar misconduct. Accordingly, the respondent engaged in a pattern of misconduct.
Regarding multiple offenses, the respondent violated KRPC 1.3, KRPC 1.4, and KRPC 3.2. As such, the respondent committed multiple offenses.
Several mitigating circumstances were also present. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
Regarding the absence of a prior disciplinaiy record, the respondent has not previously been disciplined.
Regarding the absence of a dishonest or selfish motive, dishonesty and selfishness were not motivating factors in this case.
Regarding personal or emotional problems if such misfortunes have contributed to a violation of the Kansas Rules of Professional Conduct, during the time period in which the respondent engaged in the misconduct, the respondent was having marital difficulties.
Regarding previous good character and reputation in the community including any letters from clients, friends, and lawyers in support of the character and general reputation of the attorney, the respondent is an active and productive member of the bar in Liberal, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation.
Regarding mental disability, a mental disability is a factor in mitigation when there is medical evidence that the respondent is af fected by a mental disability, the mental disability caused the misconduct, the respondent’s recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation, and the recovery arrested the misconduct and recurrence of that misconduct is unlikely. In this case, the respondent has had serious mental health issues. The respondent suffers from depression and bipolar disorder. At times, the respondent’s depression has been so severe that he has been unable to get out of bed. The hearing panel concluded that the respondent is affected by a mental disability, the respondent’s depression caused the misconduct, the respondent’s recovery from the depression has been demonstrated by a meaningful and sustained period of successful rehabilitation, and the respondent’s recovery from depression has arrested tire misconduct and recurrence of tire misconduct is unlikely.
Regarding remorse, at the hearing on the formal complaint, the respondent expressed genuine remorse.
In addition to the above-cited factors, the hearing panel thoroughly examined and considered the following Standard:
“Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.” Standard 4.42.
RECOMMENDATION
The Deputy Disciplinary Administrator recommended that the respondent be suspended from the practice of law for 1 year, that the suspension be stayed, and that the respondent be placed on probation for 4 years, subject to the terms and conditions detailed in the respondent’s plan of probation. The respondent recommended that he be placed on probation pursuant to his plan of probation.
The Kansas Supreme Court adopted a rule which dictates the procedure to follow when a respondent requests probation. Rule 211 (2006 Kan Ct. R. Annot. 286-87) provides in part:
“(g) Requirements of Probation
“(l) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
“(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
“(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
“(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
“(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the F ormal Complaint by complying with each of the terms and conditions of the probation plan;
“(in) ■ the misconduct can be corrected by probation; and
“(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. (2006 Kan. Ct. R. Annot. 286-87).”
The hearing panel found:
“In this case, the respondent developed a workable, substantial, and detailed plan of probation and provided a copy of the plan to the Disciplinary Administrator months before the hearing. Further, the Respondent put the proposed plan of probation into effect well in advance of the hearing and complied with each of the terms and conditions of the probation plan. Finally, the hearing panel concluded that the Respondent’s misconduct can be corrected by probation and that it is in the best interests of the legal profession and the citizens of Kansas to place the Respondent on probation.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the Respondent be placed on probation subject to the following terms and conditions for a period of 4 years:
“1. Psychiatric Treatment. The Respondent shall continue his treatment for depression and bipolar disorder with Alice Griffitt of Southwest Psychiatric Clinic, throughout the period of supervised probation unless, in Ms. Griffitt’s opinion, continued treatment is no longer necessary. The Respondent shall comply with recommendations made by Ms. Griffitt, including recommendations regarding medications. Ms. Griffitt shall notify the Disciplinary Administrator’s office in the event that the Respondent discontinues treatment against the recommendation of Ms. Griffitt during tire probationary period. The Respondent shall maintain a current release of information to allow Ms. Griffitt to provide such information to the Disciplinary Administrator’s office, Don Scott [Seward County Attorney], and Don Zemites [Director of the Kansas Impaired Lawyers Assistance Program; see Rule 206 (2006 Kan. Ct. R. Annot. 265)].
“2. Psychological Treatment. The Respondent shall continue his treatment for depression and bipolar disorder with James Karlin, of Area Southwest Guidance Center, throughout the period of supervised probation unless, in Mr. Karlin’s opinion, continued treatment is no longer necessary. The Respondent shall comply with recommendations made by Mr. Karlin, including referrals to other treatment providers. Mr. Karlin shall notify the Disciplinary Administrator’s office in the event diat the respondent discontinues treatment against the recommendation of Mr. Karlin during the probationary period. On a quarterly basis throughout the period of probation, Mr. Karlin shall provide fire Disciplinary Administrator’s office with a report regarding the Respondent’s progress in therapy. The reports are to be provided January 1, April 1, July 1, and October 1, of each year during the period of probation. The Respondent shall maintain a current release of information to allow Mr. Karlin to provide information to the Disciplinary Administrator’s office, Don Scott, and Don Zemites.
“3. Limitation of Practice. The Respondent shall limit his practice to criminal prosecutions as an assistant county attorney in a county attorney’s office in which the county attorney has a minimum of 10 years of experience as the county attorney. The Respondent is currently employed by the Seward County Attorney’s office, Don Scott, County Attorney. Any change in employment must first be approved by the Disciplinary Administrator’s office, prior to the respondent accepting tire new employment. If a case handled by die Respondent should be the subject of an appeal before the Kansas Court of Appeals or tire Kansas Supreme Court, dre Respondent shall not be lead counsel for the appeal. The Respondent may assist the attorney appointed to handle the case. Prior to his employment widr tíre Seward County Attorney’s office, the Respondent was appointed to serve as guardian ad litem and as conservator in various cases. The Respondent may continue to serve as guardian ad litem for existing appointments on new or reoccurring matters in the existing cases (e.g., issuing or renewal of oil and gas leases by a conservatorship), but shall not accept any new appointments in tíris regard.
“4. Practice Supervision. The Respondent’s practice will be supervised by Seward County Attorney, Don Scott. The Respondent and Mr. Scott shall prepare a monthly report to the Disciplinary Administrator’s office regarding the Respondent’s status on probation. The montirly report shall include a current case fist, a work attendance report, Mr. Scott’s opinion regarding die Respondent’s work product for the month, Mr. Scott’s opinion regarding the Respondent’s ability to manage his mental healdr issues for the mondr, and any concerns that Mr. Scott has regarding the Respondent’s status on probation. The case list shall identify each case by name, set forth all deadlines scheduled by the court, include a statement regarding whether each deadline for the month was met, and provide an explanation if a continuance was requested. In the event a deadline is missed, the Respondent and Mr. Scott shall immediately report tire missed deadline to the Disciplinary Administrator’s office.
“5. Impairment Monitor. Don Scott and Don Zemites, or his designee, will serve as the Respondent’s impairment monitors [volunteer counselors] throughout the Respondent’s period of probation. The provisions of Kansas Supreme Court Rule 206 (including confidentiality and immunity) shall apply to the impairment monitors, except that the Respondent may choose to execute a waiver allowing the impairment monitors to communicate with the Disciplinary Administrator’s office regarding otherwise confidential information. The impairment monitors shall immediately notify the Disciplinary Administrator’s office if the Respondent fails to maintain adequate contact with the impairment monitors or refuses to comply with any requests made by the impairment monitors.
“6. Communication. The Respondent shall make every effort to return telephone calls within 2 business days of receipt. The Respondent shall notify the Disciplinary Administrator within 14 days of any change of address.
“7. Continued Cooperation. The Respondent shall continue to cooperate with and attend any scheduled meetings with the Disciplinary Administrator’s office. If the Disciplinary Administrator’s office requests any additional information, the Respondent shall timely provide such information.
“8. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to tire Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.”
DISCUSSION
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284); In re Rathburn, 275 Kan. 920, 929, 69 P.3d 537 (2003). A hearing panel’s report is deemed admitted under Rule 212(c) and (d) (2006 Kan. Ct. R. Annot. 295) when a respondent fails to file exceptions. In re Boaten, 276 Kan. 656, 663, 78 P.3d 458 (2003).
In the present case, since the respondent filed no exceptions to the panel’s report, we conclude that the panel’s findings of fact are supported by clear and convincing evidence and that the facts es tablished support the panel’s conclusions of law. We therefore adopt the panel’s findings, conclusions, and modify their recommended discipline.
It Is Therefore Ordered that the respondent be suspended for a period of 1 year effective June 1, 2006, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243). His suspension is stayed and he is placed on 4-year supervised probation effective June 1, 2006. At the end of the 4 years, if the respondent has abided by all the conditions of his probation and satisfactorily completed probation, he shall file a motion and supporting affidavits requesting to be discharged from probation in accordance with Rule 211(g)(7).
It Is Further Ordered that if the respondent fails to comply with the conditions of probation, probation may be revoked pursuant to Rule 211(g)(9) and disciplinary action taken in accordance with Rule 211(g)(10), (11), and (12).
It Is Further Ordered that the costs of this proceeding be assessed against the respondent in an amount to be certified by the office of the-Disciplinary' Administrator and that this opinion be published in the official Kansas Reports.
Allegrucci, J., not participating.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Rosen, J.:
This case involves the interpretation of an arbitration agreement between David Anderson and his former employer, Dillard’s, Inc. (Dillard’s). The Court of Appeals reversed the district court’s memorandum decision, which denied Dillard’s motion to compel arbitration. Anderson now seeks a review of the Court of Appeals’ decision, asserting that the Court of Appeals did not have jurisdiction over Dillard’s appeal and that the Court of Appeals improperly concluded Anderson’s tort claims arose out of his employment with Dillard’s.
In 2003, when the events leading to Anderson’s tort claims occurred, Anderson was employed as a full-time fire medic for tire City of Lenexa, where he had worked for 23 years. Anderson also worked part-time for the Spring Hill Police Department, where he had been employed for 23 years as a reserve police officer. Anderson further supplemented his income by working as a part-time security officer for Dillard’s at Oak Park Mall in Overland Park. Anderson had been employed with Dillard’s for approximately 6 years.
In 2001, Dillard’s initiated a policy requiring its employees to resolve disputes related to their employment through arbitration. Dillard’s required Anderson to submit to an arbitration agreement as a condition of his employment. Anderson signed an ACKNOWLEDGMENT OF RECEIPT OF RULES FOR ARBITRATION, which provided:
“The arbitration process offers a quick and fair way to resolve disagreements related to employment. This Agreement contains the rules and procedures Dillard’s and associates covered under the Agreement must follow to resolve any covered claims through arbitration. This Agreement does not waive anyone’s substantive legal rights, nor does this Agreement create or destroy any rights. It merely changes the forum where the dispute is resolved and the procedures to be followed. Arbitration does not prevent an associate from filing a charge with an administrative agency like the Equal Employment Opportunity Commission.
“Effective immediately, all employees (as hereinafter defined) of Dillard’s, Inc., its affiliates, subsidiaries and Limited Liability Partnerships (the ‘Company’) shall be subject to the rules of arbitration (the ‘Rules’) described below. Employees are deemed to have agreed to the provisions of the Rules by virtue of accepting employment with the Company and/or continuing employment therewith.”
Dillard’s permitted Anderson to select merchandise for purchase while he was working in the store. Dillard’s expected Anderson to cariy the items he wanted in a shopping bag and pay for them at the end of his shift. While Anderson was working on August 1, 2003, he selected merchandise to purchase valued at $111. Anderson claims that he intended to pay for the merchandise at the end of his shift but was distracted by a family emergency and inadvertently left the store with the shopping bag without paying for the merchandise. Overland Park police officers detained Anderson at his car for shoplifting. Anderson returned the merchandise to the store, and Dillard’s terminated Anderson’s employment.
On August 4, 2003, Anderson notified his superiors at the Lenexa Fire Department and the Spring Hill Police Department regarding die alleged shoplifting incident. According to Anderson, on August 5, 2003, Rod Cole, Dillard’s Loss Control Prevention Coordinator and a Kansas Highway Patrol (KHP) trooper, contacted Anderson’s superior at the Spring Hill Police Department. Cole identified himself as a KHP trooper and the Loss Prevention Coordinator for Dillard’s and reported that Anderson had been arrested for shoplifting at Dillard’s. The following day, Cole made a similar phone call to Anderson’s superior at the Lenexa Fire Department. After Cole’s telephone calls, Anderson was terminated from his full-time employment with tire Lenexa Fire Department and indefinitely suspended from his part-time employment with the Spring Hill Police Department.
Anderson filed a lawsuit against Cole, Dillard’s, and the Kansas Highway Patrol, alleging that Cole’s telephone calls had caused the termination of his employment with the Lenexa Fire Department and the suspension of his employment with the Spring Hill Police Department. Anderson’s lawsuit asserted claims for defamation, invasion of privacy, and tortious interference with contractual relations.
In response to Anderson’s petition, Dillard’s filed a motion to compel arbitration pursuant to the arbitration agreement that Anderson had signed in 2001. The district court denied Dillard’s motion, and Dillard’s appealed to tire Court of Appeals. The Court of Appeals reversed the district court’s decision. Anderson v. Dillard's Inc., No. 94,334, unpublished opinion filed June 2, 2006. We granted Anderson’s petition for review.
Analysis
Anderson first asserts that the Court of Appeals did not have jurisdiction to review the district court’s denial of Dillard’s motion to compel arbitration. Anderson relies on K.S.A. 5-401(c)(3), which precludes an arbitration contract from requiring arbitration for any future tort claims.
The question of appellate jurisdiction is a question of law subject to de novo review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). The Court of Appeals concluded that it had jurisdiction over Dillard’s appeal pursuant to NEA-Topeka v. U.S.D. No. 501, 260 Kan. 838, 842-43, 925 P.2d 835 (1996), which held that the denial of a motion to arbitrate is a final and appealable order. Anderson, slip op. at 5.
Anderson’s argument presumes that Dillard’s motion to compel arbitration was invalid because the arbitration contract could not apply to future tort claims. However, Anderson cites no authority for the proposition that a party to the litigation has the power to unilaterally determine the validity of an arbitration agreement. On the contrary, when an arbitration agreement is challenged, the district court has the authority to decide whether the agreement to arbitrate exists and whether the agreement includes the issue in dispute. MBNA America Bank v. Credit, 281 Kan. 655, 658, 132 P.3d 898 (2006). Thus, Dillard’s properly raised the application of the arbitration agreement before the district court by filing its motion to compel arbitration. Once the issue was raised and decided by the district court, the district court’s decision became a final and appealable order. See NEA-Topeka, 260 Kan. at 841. Anderson fails to address or distinguish the application of NEA-Topeka, and we find no merit in his argument. The Court of Appeals properly exercised jurisdiction over Dillard’s appeal, and the matter is properly before us on Anderson’s petition for review.
Next, Anderson argues that the Court of Appeals reached the wrong result when it summarily concluded that “Anderson’s claims arose out of his employment at Dillard’s and were therefore subject to the arbitration agreement.” Anderson, slip op. at 7. Anderson argues that the acts giving rise to his claims occurred after the arbitration contract had been terminated by his dismissal. Because there was no clause extending the arbitration agreement to disputes arising after the termination of employment, Anderson argues that the district court properly denied Dillard’s motion to compel arbitration.
An arbitrator’s power to resolve a dispute originates from an agreement to arbitrate between the parties. Without such an agreement to establish the parties’ consent, the arbitrator has no jurisdiction. MBNA America Bank, 281 Kan. at 659. When deciding whether to compel arbitration, a court must first consider whether there is an agreement to arbitrate between the parties. If there is such an agreement, the court must then determine whether the arbitration agreement includes the specific point at issue. City of Wamego v. L.R. Foy Constr. Co., 9 Kan. App. 2d 168, 171, 675 P.2d 912, rev. denied 234 Kan. 1076 (1984). An appellate court reviews an alleged arbitration agreement like any other contract, applying a de novo standard of review. See Skewes v. Shearson Lehman Bros., 250 Kan. 574, 582, 829 P.2d 874 (1992).
The primary rale for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002).
According to the “DEFINITIONS” section of the Rules of Arbitration, the parties to this arbitration agreement include:
“ ‘Dillard’s’ or the ‘Company’ means Dillard’s, Inc. and all present and past subsidiaries, Limited Liability Partnerships and affiliated companies, its Retirement, Pension and Benefit committees and its officers, directors, fellow associates, managers, supervisors and all agents in their personal or official capacities.
“ ‘You’ or the ‘associate’ means the associate of Dillard’s, Inc. who is covered by this Agreement and has a dispute resulting from termination of employment.” (Emphasis added.)
According to the plain language of the arbitration agreement, Anderson is a party to the arbitration agreement if two conditions are met. First, Anderson must be a Dillard’s associate who is covered by the agreement; second, Anderson must have a dispute “resulting from termination of employment.” Anderson argues that the fii'st condition was not met because he was not axx “associate .. . who is covex-ed by this Agx'eement” when Cole called the Lenexa Fire Department and the Spring Hill Police Depaxtment several days after Anderson’s termination froxn Dillard’s. However, we decline to address Anderson’s argument because we believe the issue is resolved more directly by analyzing the second condition — whether Anderson “has a dispute resulting from termination of [his] employment.”
According to the acknowledgment of receipt of rules for arbitration, employment with Dillard’s is conditioned upon an employee’s assent to Dillard’s arbitration agreement. As a result, we interpret the phrase “termination of [his] employment” to apply only to the termination of employment with Dillard’s. The key to determining whether Anderson is a party to the arbitration agreement is whether Anderson’s dispute results from the termination of his employment with Dillard’s. The language “results from” requires a cause and effect analysis.
Anderson does not claim that he was wrongfully terminated by Dillard’s. Rather, Anderson claims that he was terminated from his employment with the Lenexa Fire Department and suspended from his employment with the Spring Hill Police Department because Cole contacted them on behalf of Dillard’s and informed them that Anderson had been arrested for shoplifting. Dillard’s did not have a duty to inform Anderson’s other employers that Anderson had been terminated from his employment with Dillard’s, so Anderson’s termination from Dillard’s did not require Cole or any other Dillard’s employee to contact the Lenexa Fire Department or the Spring Hill Police Department. Thus, Anderson’s termination from Dillard’s did not cause the actions that Anderson alleges as the basis for his claims.
Because Anderson’s claims do not rely on Cole’s conduct at the time of the alleged shoplifting incident or the termination of Anderson’s employment with Dillard’s, we must conclude that Anderson’s claims did not result from the termination of his employment with Dillard’s as required by the arbitration agreement. Contrary to Dillard’s argument that the agreement should be broadly construed, the language of the Definitions section of Dillard’s Rules of Arbitration is clear and unambiguous in narrowly defining tire parties subject to arbitration based on the scope of the dispute. The Court of Appeals’ decision improperly interpreted tire terms of the arbitration agreement to include claims arising out of employment with Dillard’s rather than those resulting from the termination of employment with Dillard’s. Consequently, we reverse the Court of Appeals’ decision, affirm the district court’s decision denying Dillard’s motion to compel arbitration, and remand tire matter to the district court for further proceedings.
Johnson, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Luckert, J.:
The coadministrators of the Estate of David E. Sauder (Estate) seek a determination of the effect of the decedent’s written and oral sharecrop farm leases upon the ownership of crops that the decedent had planted as a sharecrop tenant but had not harvested at the time of his death and of crops planted, grown, and harvested after his death on property which the decedent had prepared for planting. The coadministrators contend that several oral leases and one written lease under which David farmed tire property of others did not terminate upon David’s death, entitling tire Estate to ownership of the tenant’s share of all crops on the property. Gene Sauder, one of the landlords who was also David’s father, and Spencer West, the person who harvested the growing crops and planted new crops on the leased properties, contend farm leases, whether written or oral, are personal service contracts that do not survive the death of the tenant. Alternatively, they contend the common law relating to termination of commercial leases, general contract law, and equity do not allow the Estate’s claim to the crops.
Facts
On Januaiy 1, 1999, David executed a written “Farm Lease Agreement” in which he obtained the right to occupy property owned by Gene in exchange for rental payments in the amount of one-half of all harvested crops. David and Gene agreed to each pay one-half the expenses for fertilizer and chemicals. As conditions of the lease, David agreed to “cultivate, fertilize and manage the farm in a husbandlike manner” and to “insure that all crops are cut, threshed, combined, or husked, and otherwise properly cared for at all times.” The lease also provided that David would lease farm equipment from Gene and make an annual payment in addition to the crop sharing payments. The lease was for 12 months ending December 31, 1999.
Although the written lease was not renewed, David was still farming his father’s land when he died intestate on March 30,2004. At tire time of his death, David had approximately 200 acres of winter wheat growing on Gene’s land, and David was preparing other acreage for corn and beans. Within a week of his death and before estate administrators had been appointed, Gene and Spencer — Gene’s grandson and David’s nephew — planted com on 302 acres that had been subject to the 1999 written lease.
At the time of his death, David also farmed approximately 460 acres under oral leases with several other landlords. Under these agreements, David was to receive two-thirds of the crops and the landlords one-third. David had not planted any crops on the property subject to the oral leases. However, the previous fall, David had worked the land and applied fertilizer. Within a short time of David’s death and before estate administrators were appointed, Gene negotiated with these landlords to have Spencer lease these properties. Spencer borrowed money for seed and planted com on the properties subject to the oral leases.
On April 30, 2004, David’s ex-wife, Michelle Thompson, and his daughter, Alexandria Cox, were appointed coadministrators of the Estate. On May 28 and July 6, 2004, Cox signed United States Department of Agriculture (USDA) contracts which listed Spencer as an owner or operator of the leased premises.
After borrowing money, Spencer planted soybeans on the balance of the acreage David had leased from Gene and the other landlords. The beans were planted during May, June, and July, with the last planted on July 13, 2004.
Gene and Spencer also harvested the winter wheat growing on Gene’s property. They delivered one-half of the crop for the benefit of the Estate and made a claim against the Estate for the custom harvesting expenses. The Estate did not object to the claim for custom harvesting or the splitting of the proceeds from the wheat.
On July 15, 2004, the coadministrators informed Gene and Spencer that the Estate was also claiming the corn and bean crops. Prior to this date, the coadministrators had neither authorized nor prohibited Gene and Spencer from farming David’s leaseholds. Evidence indicates that the coadministrators were aware Spencer was farming the property. Specifically, there was evidence that Cox worked at die bank from which Spencer borrowed money to buy seed for the land, signed the USDA forms necessary for the crops to be farmed, and knew of the plans for harvesting the wheat and planting crops.
In an apparent response to the Estate’s assertion of a right to proceeds from the com and bean crops, Gene filed a petition in the estate proceedings. He requested that the district court “construe what farm lease rights, if any, the Estate of David E. Sauder, deceased, may possess and claim against the 2004 com and bean crops planted by Petitioner and his assigns . . . .” Spencer joined him on the trial brief in which they requested a determination that the leases terminated upon David’s death. (The landowners are not parties; rather, the issues involved in this appeal arise because Gene and Spencer object to the Estate’s claim to the tenant’s share of proceeds under these sharecrop farm leases).
The district court entered judgment against the Estate on Gene’s petition, concluding that the Estate could not enforce the farm leases for three reasons:
“First, the agricultural leases are personal services contracts which terminate on the death of the tenant. Second, die Estate failed to obtain approval from the probate court to continue the farming lease under K.S.A. 59-1402; and so the Estate lacks authority to enforce the leases. Third, the Estate failed to act under circumstances which resulted in injury to Spencer West and the Estate is prevented from benefiting under the equitable doctrine of laches.”
The Estate appealed, challenging each of these findings.
In its unanimous per curiam opinion, a Court of Appeals panel held that the district court erred in concluding the written lease terminated at David’s death. In re Estate of Sauder, No. 93,556, unpublished opinion filed December 16, 2005. The panel relied upon a disclaimer which stated that “[tjhis lease is not intended nor shall it be construed to be an employment contract” to conclude the parties did not intend that the contract be one for personal services. The panel further concluded that “it is well established that upon the death of a lessee, the personal representative assumes the rights and obligations of the decedent by operation of law.” Consequently, the panel held the written agreement was enforceable by the Estate. Sauder, slip op. at 6.
Nevertheless, in discussing the oral leases, the Court of Appeals noted that there was policy support in Kansas for the principle that “agricultural leases are personal in nature” and further agreed that the principle had “received general acceptance” as the “majority rule.” Sauder, slip op. at 8. However, the court ultimately did not opine whether these oral farm leases were personal services contracts that terminated on David’s death. The Court of Appeals instead determined that David’s interest, “if any,” in the oral leases terminated either at the end of the lease term in Februaiy or at his death, and, therefore, the Estate had no interest in crops growing on third-party land; the crops were subject to the renegotiated oral leases. Sauder, slip op. at 9.
The Court of Appeals also held that the district court erred in concluding that court approval under K.S.A. 59-1402 was a necessary condition precedent to the Estate’s authority to conduct farming operations under the leases. That statute requires the probate court’s authority for the personal representative to operate any business of a decedent. K.S.A. 59-1402. The Court of Appeals determined that K.S.A. 59-1402 had no application to the leasehold interests of a decedent. Sauder, slip op. at 10-11. The parties did not seek review of this portion of the decision and, therefore, this issue is not before this court.
Finally, the Court of Appeals affirmed the district court’s application of laches as -to the soybean crop planted after the coadministrators of the Estate had been appointed; it agreed that the Estate was barred from any claims to that crop because substantial evidence supported the district court’s finding that the Estate “sat back and watched the [crops] grow.” Sauder, slip op. at 13. However, as to the com crop planted on Gene’s property, the Court of Appeals reversed the district court’s application of iaches because the corn was planted “well in advance of the appointment of the coadministrators. Under the circumstances presented, it was unreasonable to expect action well in advance of appointment in order to protect the interests of the Estate.” Sauder, slip op. at 13-14. Consistent with this determination, the Court of Appeals remanded the case to the district court to determine the extent of the Estate’s interest in the com crop, offset by reasonable costs and the value of services provided by Gene and Spencer. Sauder, slip op. at 14-15.
The Estate petitions for review of the Court of Appeals’ rulings that the oral leases were personal services contracts that terminated on David’s death and that laches barred the Estate’s claim against the soybean crop planted on Gene’s land.
On cross-petition, Gene and Spencer seek review of the Court of Appeals’ decision that the written lease between Gene and David did not terminate with David’s death. They also argue that if the doctrine of laches applies, it should have been applied to bar the Estate’s claim against the corn crop. Finally, they seek clarification of the Court of Appeals’ opinion on the issue of whether the oral leases were personal services contracts that terminated on David’s death.
This court granted review, pursuant to K.S.A. 2006 Supp. 22-3602(e) and K.S.A. 20-3018(b).
Analysis
I. Did the Contracts Terminate Upon David’s DeathP
A. Standard of Review.
The questions of whether written or oral farm leases continue after the death of the lessee and whether a contract is a personal services contract that terminates on the death of the lessee are questions of law, as is the construction of the written agricultural lease at issue here. As such, the district court’s determinations of these issues are subject to de novo review by this court. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
B. Holdover Status.
A threshold question is whether there were valid leases through which the Estate can claim a right to farm the various properties. In proceedings before the district court, the parties did not dispute that there were leases in effect at the time of David’s death; thus, the district court did not discuss whether the leases were valid. However, the Court of Appeals panel did discuss the issue, and the analysis was critical to the panel’s treatment of the leases, especially the oral leases. Therefore, we begin our review with the question of whether valid leases were in force at the time of David’s death.
Regarding the written lease, the panel wrote:
“Although the district court did not address the continued vitality of the 1999 written lease agreement during 2004, it is apparent that David had occupied the premises on a continuous basis since 1999 and that in the absence of timely written notice of termination, he became a tenant from year to year after expiration of the fixed term by operation of law.” Sauder, slip op. at 5.
The parties do not dispute this conclusion. Indeed, K.S.A. 58-2506(d) provides a farm tenant “becomes a tenant from year-to-year by occupying the premises after the expiration of the term in a written lease.” Additionally, year-to-year tenancies following a holdover from a written lease are generally extended or renewed on the same terms as the original lease. See Kearns v. Clark, 159 Kan. 353, 355, 154 P.2d 479 (1945). Hence, the lease between David and Gene was in effect on the date of David’s death on the same terms and conditions as in the original contract.
The panel reached a different conclusion regarding the oral leases, however, deciding that the leases terminated in Februaiy before David’s death. The panel applied the provisions of K.S.A. 58-2506(a), which provides in part:
“Except as may be otherwise provided by this section or by a written lease signed by the parties thereto, in cases of tenants occupying and cultivating farms or occupying or leasing pastureland, the notice to terminate such a farm or pas tureland tenancy must be given in writing at least 30 days prior to March 1 and must fix the termination of the tenancy to take place on March 1.”
The Estate argues that because no notice of termination was given by either party, the oral leases were continued beginning March 1 and were in effect on March 30, the date of David’s death. The panel questioned the “direct applicability of this statute” because “[n]either party contends that David was ‘occupying’ the leased premises pursuant to these oral leases at the time of his death or at anytime within 30 days of March 1.” Sauder, slip op. at 7. After additional discussion of the nature of personal contracts and cases from other jurisdictions, the panel held:
“Based upon the unique facts of this case, including no apparent ‘occupying’ by the tenant during the statutory period for notice of termination and the re-negotiations of leases by lessors who desired to provide for continued farming operations on their lands, we hold that David’s interests, if any, in the oral agricultural leases, either terminated at the end of die lease term in February or upon his March 2004 death.” Sauder, slip op. at 9.
Contrary to the panel’s conclusion, the record reflects that both parties acknowledged that David was occupying the property at the time of his death. The Estate’s case is premised upon occupation and continuation of the leases, and Gene testified that David was farming all the property at issue. Additionally, there was evidence that David had prepared the ground for com and beans and applied dry fertilizer in the fall of 2003. The panel did not discuss this evidence, nor did it explain its construction of the phrase “occupying and cultivating.”
The phrase “occupying and cultivating” is not defined in the statute. However, guidance as to the intended meaning of the phrase is provided through two other statutory provisions relating to the timing and effect of notices of termination. We must construe these provisions along with K.S.A. 58-2506 to determine the legislature’s intent. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005) (several provisions of an act in pari materia must be construed together when determining legislative intent and reconciling provisions). First, K.S.A. 58-2506(b) provides that the termination date of leases will be extended to August 1 if a fall seeded grain crop “has been prepared in confor manee with normal practices in the area.” Second, pursuant to K.S.A. 58-2506a, if a landlord gives notice of termination of a lease, a tenant who “has performed customary tillage practices or has applied or furnished fertilizers, herbicides or pest control substances” but not planted crops is entitled to payment for the “fair and reasonable value of the services furnished and the fertilizers, herbicides or pest control substances furnished.”
Thus, these provisions vest tenants with certain rights if a tenant performs one or more of the listed tasks. From these provisions, we discern a legislative intent that one who leases farm property and performs customary tillage practices, plants crops, or applies fertilizers, herbicides, or pest control is occupying and cultivating the leased premises within the meaning of the notice requirements of K.S.A. 58-2506 and K.S.A. 58-2506a. Because David had worked and applied fertilizer to the property that was subject to the oral leases, David was occupying and cultivating the property. Consequently, the leases were in effect at the time of David’s death because no notice of termination was provided by any landlord or David before March 1, 2004.
C. Are the Oral Leases Personal Services ContractsP
Alternatively, the panel concluded the oral contracts terminated on the date of David’s death. Sauder, slip op. at 7-9. The rationale for this conclusion appears to be that the contracts were personal in nature. The Estate, on review, asks us to reverse this conclusion.
The question of whether a sharecrop farm lease is a personal services contract is a matter of first impression in Kansas. The issue was discussed but not decided in Jinnings v. Amend, 101 Kan. 130, 132, 165 Pac. 845 (1917). In Jinnings, a sharecropping tenant had broken sod on 500 acres and plowed 400 acres of cultivated land but had not sowed a crop when he was arrested and placed in jail. Within a few days of the tenant’s arrest, the landlords took possession of the property and would not return it to the tenant when he was paroled. The tenant argued that the parties’ written agreement did not contain an express provision regarding termination of the tenancy and, as a result, the lease did not expire until the end of the 3-year lease term. He sought to characterize the lease as a standard property agreement. The landlords argued that the “croppers” agreement for sharing proceeds from crops and for receipts for pasturing cattle meant that the agreement was one for personal services. The court’s opinion included language suggesting the contract was a personal services contract, stating: “His personal services were engaged; his skill as a farmer was involved; he had no power of substitution or subletting.” 101 Kan. at 132. However, ultimately, the court declined to answer the question of whether the contract was one for personal services, concluding: “We do not consider it necessary to decide what expression most fitly describes the relationship into which the parties entered.” 101 Kan. at 132.
The parties have cited no other Kansas cases addressing the question directly. However, several basic principles guide our consideration of the issue. Generally, “ ‘the obligations of a lessee under the contract [pass] on his death to his personal representative who assumes in his fiduciary capacity the performance of the contract in the same manner that its performances could have been demanded of the lessee.’ [Citation omitted].” Olson v. Frazer, 154 Kan. 310, 312, 118 P.2d 505 (1941).
However, where the existence of a particular person is necessary for the performance of a contractual duty, the death of that person, or his or her loss of capacity to perform the duty, discharges the obligor’s duty to perform. See Restatement (Second) of Contracts § 262 (1979). Generally referred to as personal services contracts, these contracts are not assignable, do not survive without the consent of both parties, and terminate automatically upon the death of the party performing the unique service. See 1 Friedman on Leases § 2:1.7 (5th ed. 2004); 29 Williston on Contracts § 74:27 (4th ed. 2003); 30 Williston on Contracts § 77:72 (4th ed. 2004).
The rationale for considering sharecrop farm lease agreements to be personal services contracts was explained in Ames v. Sayler, 267 Ill. App. 3d 672, 642 N.E.2d 1340 (1994). In the case, the estate of a deceased farm tenant sought a determination that it could continue to farm the landowners’ land under the terms of decedent’s oral lease, and the landowners filed a counterclaim. The Illinois appellate court recognized the common-law rule that a farm lease is a personal services contract that terminates on the tenant’s death, stating that
“a farm tenancy is an estate in land, but it is more than that. A farm tenant not only has possession of land, he is expected to perform services which require skill and judgment. A farm landlord usually does not view tenants as interchangeable, and usually chooses to lease his farm only to those in whom he has particular confidence. No satisfactory reason appears why a farm owner should be forced to accept a substitute, if the farm owner can be said to have entered into a ‘tenancy,’ but not if what is basically the same relationship is labeled a personal services contract. Farm tenancies and personal services contracts are not mutually exclusive categories. Farm tenancies in fact are more readily viewed as personal services contracts than are employee or custom hire relationships. A farm owner places more trust in a tenant than he does in an employee or a custom hire operator. The question in this case should be answered by determining whether the contract between the farm owner and the worker is a personal services contract.” 267 Ill. App. 3d at 675-76.
See In re Estate of Long, 311 Ill. App. 3d 959, 964, 726 N.E.2d 187 (2000).
Other states have reached the same result upon similar rationales. E.g., Crump v. Tolbert, 210 Ark. 920, 924, 198 S.W.2d 518 (1946) (lease of land on shares, including use of buildings, farm implements, stock, and other personal property is personal contract because “the amount to be received by the lessor and the care of the properly depend on the character, industry, and skill of the lessee”); Randall v. Chubb, 46 Mich. 311, 312, 9 N.W. 429 (1881) (farm lease is personal services contract because “[t]he rent or share which the [lessor] would receive, must depend very much upon the character of the lessee”); Greeson v. Byrd, 54 N.C. App. 681, 682, 284 S.E.2d 195 (1981) (“A farm lease [sharecropping] agreement is personal in nature and thus non-assignable without the landlord’s consent since the landlord’s receipts under the contract are directly related to the lessee’s skill and industry.”); Tipton v. Martzell, 21 Wash. 273, 276, 57 Pac. 806 (1899) (“[T]he landlord depends on the character and skill of the lessee, and [a contract of this nature] would seem to be personal and not assignable.”); see 9 Corbin on Contracts § 865 (Interim ed. 2002). At least one jurisdiction has held that farm leases are not personal services contracts. Walkers Estate, 6 Pa. C.C. 515 (1889). However, the ma jority of jurisdictions have noted that considerable skill and judgment are required in farming and a landlord’s confidence in the lessee is personal and not assignable, transferable, or inheritable.
In response to this line of authority, the Estate argues, in part, that it does not matter what common-law doctrines apply because the Kansas Legislature has prescribed the time and method for farm lease terminations through K.S.A. 58-2506, requiring that “the notice to terminate . . . must be given in writing at least 30 days prior to March 1 and must fix the termination of the tenancy to take place on March 1.”
In support of its argument, the Estate cites Read v. Estate of Mincks, 176 N.W.2d 192 (Iowa 1970). In Reed, the Iowa Supreme Court concluded that the common-law rule that a share crop farm lease was ordinarily regarded as a personal services contract, which does not survive the lessee’s death, was “materially restricted” by an Iowa statute that required several month’s written notice to terminate a farm tenancy. 176 N.W.2d at 193.
However, the Illinois court in Ames reached the opposite conclusion. Considering a similar statute that required 4 months’ notice of termination before March 1, the Illinois appellate court in Ames determined the statute did not apply when there was a death, stating:
“In any event we reject the view that the question presented in this case is answered (or even addressed) by the four-month statute, or by considering whether plaintiff was a tenant. The four-month statute deals with termination at the end of the year, not termination upon the death of one of the parties.” 267 Ill. App. 3d at 675.
The court then engaged in a lengthy analysis of the nature of personal services required, but at the conclusion of that discussion again noted:
“We do not question there was a landlord-tenant relationship in this case and that the four-month notice statute would apply in the event an attempt had been made to terminate this lease at the end of the year. As we have explained above, however, that is not relevant on this appeal. What is important is whether the parties entered into this contract upon the understanding that it would be performed by decedent and no others. The trial court made that finding, that this contract was a personal services contract, and that finding is supported by the evidence.” 267 Ill. App. 3d at 677.
The Estate argues that the Ames court’s analysis cannot be applied in Kansas because of another statute, K.S.A. 58-2519, which states: “Executors and administrators shall have the same remedies to recover rents, and be subject to the same liabilities to pay them, as their testators and intestates.” Without citing to K.S.A. 58-2519 as authority, this court applied the general rule of this provision to the lease of a business building. The Olson court determined that upon a lessee’s death, the lessee’s obligations pass to his or her personal representative who assumes in a “fiduciary capacity the performance of the contract in the same manner that its performances could have been demanded of the lessee.” 154 Kan. at 312.
Even though K.S.A. 58-2519 is a general statute that does not specifically refer to farm leases and Olson related to the lease of a business building, there is no indication the legislature intended a different rule for farm leases. Article 25 of Chapter 58, K.S.A. 58-2501 et seq., which deals generally with nonresidential landlord and tenant relationships, is sprinkled with other provisions creating special rules for farm sharecrop leaseholds. Yet, the Kansas Legislature did not provide for special rules relating to executors and administrators assuming responsibilities with farm tenancies.
Furthermore, commentators suggest K.S.A. 58-2519 applies to farm leases. Professor James Wadley, of Washburn University School of Law, and Sam Brownback, former Kansas Secretaiy of Agriculture, in their treatise on Kansas agricultural law, state: “If either the landowner or tenant dies while a farm lease is in effect, the decedent’s executor or administrator is required to comply with the terms of the lease as if the decedent or tenant were still alive.” Brownback and Wadley, Kansas Agricultural Law, pp. 193-94 (1994). In support of this statement, the authors cite Jewell v. McFarland, 141 Kan. 40, 40 P.2d 330 (1935), another case related to the lease of a business building. The decision in Jewell is based, in part, on the predecessors to K.S.A. 58-2519, G.S. 1869, ch. 55, sec. 19; R.S. 1923, 67-519; and G.S. 1949, 67-519, which were “simply a codification of the common law.” Hannah, The Legal Status of Tenant Farmers in Kansas, 7 U. Kan. L. Rev. 295, 301 (1959).
We, therefore, conclude that under K.S.A. 58-2519 a lease, including an agricultural sharecrop lease, continues in effect upon the death of the tenant unless the parties have contracted otherwise, and the executor or administrator of the lessee’s estate has the fiduciary obligation to see that the lessee’s obligations are met. Therefore, the oral leases did not terminate upon David’s death.
D. Was the Written Lease Agreement a Personal Services Contract?
However, a different conclusion could apply to the written lease in this case because the statutory requirements regarding termination do not apply if the parties to a written contract agree to other terms. (K.S.A. 58-2506[a] begins: “Except as may be otherwise provided ... by a written lease signed by the parties thereto . . . .”). Furthermore, “public policy encourages the freedom to contract, which should not be interfered with lightly.” Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 463, 790 P.2d 404 (1990). Consequently, nothing should prohibit parties to a contract from agreeing to terms which would take the arrangement outside the statutory rule that a lease is binding upon the heirs of the parties; the parties could agree that a written contract will terminate immediately upon the lessee’s death. We, therefore, must construe the contract between Gene and David to determine whether die written contract continued upon David’s death.
When courts are called upon to interpret a written instrument, the primary rule is to ascertain the intent of the parties. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998). As a general rule, if the language of the written instrument is clear, there is no room for rules of construction. Courts must ascertain the meaning of a written agreement by considering all pertinent provisions and not by the critical analysis of a single or isolated provision. 265 Kan. 371, Syl. ¶¶ 2, 3.
Ideally, parties to a farm lease would clearly express their intent regarding the effect of the death of a tenant, the issue we have in this case, or die death of a landlord. Indeed, we would encourage scriveners of such agreements to include a provision expressing the parties’ intent. However, in this case, there was no such clear expression. We, therefore, must examine the written lease to determine the effect of various terms which are less clear expressions of the parties’ intent.
The Court of Appeals, in rejecting the contention the written farm lease between David and Gene was a personal services contract, focused upon paragraph 12, which stated, in part: “This lease is not intended nor shall it be construed to be an employment contract, partnership, joint venture, or profit-sharing enterprise between the Landlord and the Tenant.” Because “the lease expressly disclaimed any intention to create an employment contract,” the panel concluded the contract was not one for personal services. Sauder, slip op. at 6. The panel cited no authority for its conclusion that a personal services contract must be an employment contract. Furthermore, no party has argued that the agreement constituted an employment contract; clearly, the agreement indicates that it is not to be so construed.
Parties to crop share agreements have been determined to have a variety of relationships, including “cropper” and employer, landlord and tenant, joint venture participants, partners, and tenants in common. See 21A Am. Jur. 2d, Crops §§ 45, 46, 55-62. Paragraph 12 clarifies the parties’ intent that the contract establishes a relationship between Gene and David as landlord and tenant and not one of the other types of relationships. When an employment or “cropper” relationship exists, the contract is usually deemed to be a personal services contract. However, even when the contract is viewed as one between a landlord and a tenant, many jurisdictions have found the cropshare lease to be one involving personal services. 21A Am. Jur. 2d, Crops § 53.
Contrary to the panel’s analysis, we conclude that paragraph 12 does not mean that the written agreement could not be construed as a contract for the performance of personal services independent of an employment relationship.
The Court of Appeals panel also considered the district court’s conclusion that paragraph 12 was inconsistent with paragraph 4(d). Paragraph 4(d) of the agreement provided that the tenant would “not assign this lease nor sublet the premises.” Although the provision did not contain language governing assignment upon the death .of the lessee, the district court concluded that the parties clearly stated their intent that the contract be a personal services contract subject to the discretion of the landlord. The panel rejected this conclusion based upon its reading of a different provision, paragraph 15, which the panel viewed as evidence of the parties’ intent that the lease survive David’s death. Sauder, slip op. at 5-6.
Paragraph 15 directed that the agreement “shall apply to and be binding upon the heirs, successors, executors, and administrators of the parties hereto.” The Court of Appeals panel concluded this provision was not inconsistent with the nonassignment clause of paragraph 4(d), apparently because the circumstances surrounding an administrator assuming the duties and obligations of a decedent under a contract is not an assignment or sublease. The Court of Appeals’ interpretation is supported by the Illinois appellate court’s decision in Ames, 267 Ill. App. 3d at 677, in which the court noted that similar language could remove the lease from operation of the common-law rule.
We conclude this contractual language had the same effect as K.S.A. 58-2519. When parties to a sharecrop farm lease agree that the terms of the contract “shall apply to and be binding upon the heirs, successors, executors, and administrators of the parties,” they express an intent that the contract is not a personal services contract. Therefore, under such a contract, the deceased lessee’s estate has a fiduciary obligation to perform the contract in the same manner that performance could have been demanded of the decedent. Because of this provision in the contract between Gene and David, the contract did not terminate upon David’s death.
II. Did the Leases Continue Until a Notice of Termination Was Served?
The Estate suggests that if we reverse the Court of Appeals’ and district court’s holdings that the leases terminated upon David’s death, the Estate had a right to a share of the crops because, under terms of the written lease and under Kansas statutes, no notices to terminate could be given until the end of the lease terms and no notices had been given. This argument, however, ignores other provisions of the written contract and some general principles of contract and landlord-tenant law that were not discussed by the lower courts, in large part, because those courts concluded the contracts, or some of them, had terminated on David’s death.
A. Standard of Review.
Determination of this issue as it relates to the written lease requires construction of the lease; our review is, therefore, de novo. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). Our determination of the issue as it relates to the oral leases requires that we construe relevant statutes; our review of statutes is unlimited. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
B. Termination of Written Contract.
Neither the district court nor the Court of Appeals discussed the possible impact of paragraph 9 of the written lease between Gene and David. Paragraph 9 provided:
“[I]f the tenant shall fail to keep and perform any of the covenants, agreements, or conditions of this lease, the Landlord may re-enter and take possession of the premises without working a forfeiture of the rents to be paid by the Tenant for the full term of this lease. At his election, the Landlord may terminate this lease, or without terminating, re-let the premises or any part thereof for the remainder of the lease term and may recover any deficiency from the Tenant.”
Paragraph 4 of the lease agreement contained several broadly worded obligations of the tenant, including the obligations to “cultivate, fertilize and manage the farm in a husbandlike manner” and “to take good care of all growing . . . crops.” By operation of the provisions of paragraph 9, if the tenant, whether the tenant be David or his heirs, failed to meet these conditions, Gene had the right to reenter, take possession of, and relet the premises.
Generally, courts enforce clauses in commercial leases that reserve a landlord’s right to peaceably reenter commercial premises and regain possession if a tenant breaches a material obligation. See 49 Am. Jur. 2d, Landlord and Tenant §§ 832, 833. K.S.A. 58- 2506, by excepting written contracts from its provisions, does not mandate a different result for farm leases. Therefore, such a clause in a written farm lease will be enforced by the courts.
The provisions of paragraph 9 do not require any notice to the tenant or any other affirmative action by the landlord. Hence, under paragraph 9 of the written lease, Gene could terminate the contract without notice. Even assuming there was an implied requirement that notice be given in order for there to be a termination of the lease, it was satisfied because, as found by the district court, the coadministrators had actual knowledge that Spencer was farming the property.
Before discussing whether the circumstances allowed Gene to exercise his rights under paragraph 9, we will address Gene’s arguments that under common-law principles the other landlords had the same rights to renter their land and negotiate new leases.
C. Estate’s Claim Under Oral Leases.
Specifically, Gene suggests that the Estate’s argument that the oral leases continued until a notice of termination was served is contrary to the general principle that if a tenant abandons, surrenders, or repudiates a lease a landlord has an obligation to mitigate damages, including reletting the premises. Kansas follows the minority position, imposing upon a landlord the duty to make reasonable effort to secure a new tenant if a tenant surrenders possession of leased property. Gordon, Executor v. Consolidated Sun Ray, Inc., 195 Kan. 341, Syl. ¶ 3, 404 P.2d 949 (1965). See Annot., Landlord’s Duty on Tenant’s Failure to Occupy, or Abandonment of, Premises, to Mitigate Damages by Accepting or Procuring Another Tenant, 75 A.L.R.5th 1. On several occasions, this court has recognized that when a farm tenant abandons leased property the landlord and tenant relationship is terminated. E.g., Christenson v. Ohrman, 159 Kan. 565, 569, 156 P.2d 848 (1945) (surrender of farm land terminates relation of landlord and tenant but does not terminate relationship of debtor and creditor); McAlister v. Miller, 130 Kan. 77, 79-80, 285 Pac. 532 (1930) (recognizing surrender of leased premises as termination of tenancy).
Additionally, Gene argues the landlords could rescind the contracts. In his trial brief before the district court, Gene argued: “The common sense approach to enforcement of the farm tenancy lease indicates that if there is any abandonment, in any way, as recited herein, that the landlord has a right to rescind the lease and go upon the property in an effort to mitigate his damages.” Gene then claimed there had been abandonment, stating: “The death of David Sauder amounted to abandonment. Kansas law clearly states that a tenant who abandons the lease, for whatever reason, can not recover the crop he did not plant or harvest .... The lease is forfeited and rescinded.”
Jinnings v. Amend, 101 Kan. 130, 165 Pac. 845 (1917), provides support for this argument. In Jinnings, the court considered the effect of the tenant’s incarceration upon his obligations to pay rent pursuant to a sharecrop agreement. The court concluded the lease could be terminated based upon the tenant’s failure to farm the property. The court noted:
“There is nothing peculiar about a lease that takes it out of the operation of the rules of fair dealing that govern in other contractual relations. Here the essence of the arrangement was that the defendants were to furnish the land and certain implements, material, and money, and the plaintiff was to furnish his care, skill, and labor, and the proceeds were to be divided. Although the contract may be said to have created an estate in the land, it was essentially executory — its provisions were mutually dependent. The plaintiff was not in control of the land, to use it at his pleasure. He was bound to handle it in a stated way, and to perform certain acts with regard to it, and these obligations were as important as any other part of the contract.” 101 Kan. at 132.
The court then rejected an argument that the lease could not be terminated before the end of its term, stating: “[I]t can not be doubted that if [the tenant] had completely abandoned the place, or had utterly refused compliance with the agreement, the owners would not have been required to permit the land to remain idle for several years.” 101 Kan. at 133. Instead, the court concluded, the landowner had the right to rescind the contract based upon the tenant’s anticipatory breach of contract. 101 Kan. at 133-34; see 1 Black on Rescission and Cancellation § 210 (2d ed. 1929).
The court found the implied covenant to plant the crops, from which income for both parties would be derived, to be a material provision. In fact, the court referred, to the covenant as “the essence of the arrangement.” Jinnings, 101 Kan. at 132. It follows that the failure to plant the crops defeats the object of the parties in making the agreement; see also Hoffpauir v. Hoffpauir, 280 So. 2d 855 (La. App. 1973) (failure to cultivate is breach justifying termination of 10-year lease). Compare Kohn v. Babb, 204 Kan. 245, 250-51, 461 P.2d 775 (1969) (failure to include government payment in farm accounting not material and not sufficiently substantial to defeat object of farm lease).
A similar analysis applies in this case. Here, the district court determined there had been a physical abandonment of the tenancies. There was, however, no finding that the tenant intended to abandon the properties. Therefore, as in Jinnings, the district court’s findings are more in the nature of a surrender of the tenancies and a termination of the leases arising because the lessee failed to perform an action required under the leases. See Rook v. James E. Russell Petroleum, Inc., 235 Kan. 6, 16, 679 P.2d 158 (1984) (noting three situations that are often confused, only one of which is truly abandonment: [1] a termination of a lease arising because the lease requires action by the lessee which the lessee fails to perform; [2] true abandonment arising because tire lessee consciously intends to give up tire lease and commits some positive act of abandonment; and [3] where there has been no act done to demonstrate an intent to abandon but the lessee intends to postpone action required by contractual covenants while keeping the lease).
In this case, as in Jinnings, the oral farm leases consisted of the landlords’ promise to furnish the land and the tenant’s promise to furnish care, skill, and labor. The contracts were executory; the contractual provisions were mutually dependent. The tenant was not in control of the land, to use it at the tenant’s pleasure. The tenant was bound to plant, care for, and harvest crops from which proceeds would be obtained and divided. The failure to plant the 'crops would defeat die essence of the agreement, justifying the landlord’s recision of the lease. See Jinnings, 101 Kan. at 132.
The Estate suggests that, even if the tenant surrenders possession and fails to plant the crops, the landlord’s only remedy is to terminate the lease by giving notice before March 1. This argument is contrary to Jinnings, which did not impose a notice requirement; in fact, the Jinnings court did not discuss any Kansas statutes even though a version of K.S.A. 58-2506 has existed since 1868; see G.S. 1868, ch. 55, sec. 6. This omission does not make the Jinnings court’s analysis suspect.
When a tenant fails to plant crops and surrenders occupancy, K.S.A. 58-2506 does not apply. As previously discussed, the statutory notice is required only “in cases of tenants occupying and cultivating farms,” which means situations where the tenant has performed customary tillage practices, planted crops, and applied fertilizer, herbicides, or pest control. The fact that David had farmed the properties consistent with customary practices prior to his death and was occupying and cultivating the properties at the time of his death does not mean the leased premises continued to be occupied and cultivated after his death.
The legislative purpose of K.S.A. 58-2506 is apparent. Farming, unlike other commercial lease situations, requires the tenant to expend funds and labor and finance those expenses without compensation until the crop matures and is harvested. K.S.A. 58-2406 prevents a landlord from terminating the lease and reaping the harvest after the tenant has incurred the expense but has not been compensated. K.S.A. 58-2506 requires a landlord to suffer the presence of a tenant while a crop is growing but allows the landlord to remove the tenant before the next growing season. See Bearden v. John Hancock Mut. Life Ins. Co., 635 F. Supp. 1084, 1086-87 (D. Kan. 1986) (discussing legislative history of K.S.A. 58-2506 and related statutes). When a lease is terminated before planting but after the tenant, acting in conformance with customary practices, has incurred expenses in cultivating the land or applying fertilizers, herbicides, or pest control, the landlord must reimburse the tenant for the fair and reasonable value of the services furnished and the materials utilized. K.S.A 58-2506a(a); see also K.S.A. 58-2506a(b) (establishing special rule that applies to alfalfa, a perennial crop where the tenant would expect several years of return; landlord can terminate lease but must reimburse tenant for fair and reasonable value of services and expenses).
While K.S.A. 58-2506 and K.S.A. 58-2506a prescribe the method for terminating an oral farming lease while the tenant is occupying and cultivating the property and thereby provide some protection to the tenant, the provisions do not force the landlord to suffer a loss of income when the tenant does not occupy and cultivate the land. The failure to timely plant crops in keeping with customary farm practices means that die tenant is no longer occupying and cultivating the premises. In Rogers v. Ostmeyer, 180 Kan. 265, 266, 302 P.2d 999 (1956), when the farm tenant moved off the leased premises and surrendered possession with the consent of die landlord, the court concluded that “[statutory notice to quit the premises was therefore unnecessary.” See also Hannah, The Legal Status of Tenant Farmers in Kansas, 7 U. Kan. L. Rev. 295, 308-09 (suggesting because no Kansas statute specifically addresses the situation of a tenant’s abandonment or surrender, “by the application of common law the same result would likely be reached”).
Other jurisdictions with statutes requiring notices to terminate farm leases have recognized the right to rescind the contract without notice during the term of the sharecrop contract, especially when the tenant has abandoned, surrendered, repudiated, or materially breached the lease. See, e.g., Agrinetics, Inc. v. Stob, 90 Ill. App. 3d 107, 110, 412 N.E.2d 714 (1980) (when sharecropping agreement is breached, the injured party may [1] treat the contract as rescinded and recover on quantum meruit so far as performed; [2] treat tire contract as alive and, at the end of the term, sue and recover under the contract; or [3] treat the repudiation as putting an end to the contract and sue for die profits that would have been realized had performance not been prevented). See generally Annot., Liability for Breach of Farming Lease or Contract, 35 A.L.R.5th 285.
D. Sufficiency of Findings.
The final question is whether the district court’s findings in this case are sufficient for us to determine that the landlords had a right to reenter their property and negotiate new leases. Generally, an appellate court reviews the district court's findings of fact to determine if the findings are supported by substantial competent evidence and whether tire findings are sufficient to support the district courts conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).
Although discussing the issue of laches, the district court made findings that support the conclusion that the Estate breached the covenants, entitling the landlords to terminate the leases. The district court found: “The Estate of David Sauder failed to act to continue the farming leases. Nothing was done by the estate to continue farming activities after David Sauder’s death.” After further discussion of the evidence, the district court concluded: “[W]hen time is critical to completion of a crop-share farm lease the lapse of time is magnified. The Court believes the Estate was required to act immediately to carry out the farm lease if the estate intended to try and enforce the shares provision of the farm lease.” However, the court concluded the Estate did not do so; rather, “a reasonable time passed without the estate taking action to continue the farming operation. Therefore, the landlords were justified in taking over the farm leases to protect their interest.”
Substantial competent evidence supports these findings of fact. For example, Gene was asked, “Was it imperative that the com be planted right then the next week following his death?” Gene answered, “Oh, yes.” Gene also testified that he did not believe the heirs had the ability and experience to farm the property. Additionally, the Estate took no steps to farm the property even though, as the district court found, “[fjarming is a time sensitive business. The months of April, May, June, and July are the busiest time of the year except for fall harvest.”
The Estate argues for a different conclusion, suggesting the com did not have to be planted as quickly as the landlords suggest, the Estate had die right to plant crops other than com and those crops could have been planted later than com, and the Estate could have hired custom farmers or relied upon volunteers to farm the prop erty. Although there may be evidence to support these arguments, an appellate court does not reweigh the evidence or reject findings simply because there is evidence to support different findings than those made by the district court as the trier of fact. Rather, on appeal the issue is whether there is substantial competent evidence to support the findings that were made. Here, there was substantial competent evidence to support the trial court’s findings.
Additionally, the findings of fact are sufficient to support the district court’s conclusion that the landlords were justified in reentering the premises, terminating the leases, and reletting the properties. The Estate’s failure to perform in compliance with the covenants, specifically the failure to plant crops from which rent would be paid and as contemplated by the parties, was a surrender of the premises giving rise to the landords’ duty to relet the properties.
Thus, under paragraph 9 of the written lease, the tenant failed to perform a condition of the lease and Gene could take possession of the premises and negotiate a new lease. As to the properties subject to the oral leases, the tenant, after failing to plant crops at a time consistent with customary farming practices and expectation of the parties to the lease, was no longer occupying and cultivating the property and, therefore, no statutory notice to quit was required. The landlords had a duty to mitigate damages by reletting the premises.
Even though the district court did not rely upon paragraph 9 or the holding of Jinnings and the common law regarding termination of nonresidential leases, it rendered a correct judgment under the facts and the law; therefore, the judgment will not be disturbed merely because we rely upon a different rationale. See National Equipment Rental, Ltd. v. Taylor, 225 Kan. 58, 62, 587 P.2d 870 (1978); Boldridge v. Estate of Keimig, 222 Kan. 280, 288, 564 P.2d 497, cert. denied 434 U.S. 967 (1977).
The Estate asserts an additional argument, suggesting that even if it is not entitled to the entire share of the tenant’s portion, it is entitled to compensation for the expenses and time of preparing and fertilizing the land that was the subject of the oral leases. Three theories could lead to this result. First, K.S.A. 58-2506a requires reimbursement for expenses when a notice of termination is given after the expenses are incurred but before a crop is planted. We have concluded, however, that the notice of termination provisions do not apply in this case because the tenant was no longer occupying the premises. Second, the matter could be determined by contract. See Kohn, 204 Kan. at 251-52 (where written lease was silent as to restitution for services and expenses if lease terminated, tenant who unjustifiably abandoned lease did not state claim for relief because parties could have contemplated issue and were silent in granting right to claim, implying no intent to allow reimbursement). Here there is no evidence regarding an agreement whether such a claim could be made. The terms of the oral contracts apparently did not cover contingencies (or, at least, no evidence regarding such agreements was entered into the record on appeal) making it impossible to determine the parties’ intent. Third, equity could apply. Although the decision in Kohn discusses several cases where equity resulted in a conclusion that a tenant who had voluntarily surrendered possession or breached a contract was not entitled to recover expenses and labor, these cases, as is true of all cases applying equity, are fact based.
The Estate suggests that to deny reimbursement for the expenses of fertilizer and David’s labor leads to the unjust enrichment of Spencer and the landlords. The theory of unjust enrichment rests upon three elements: (1) a benefit conferred; (2) an appreciation or knowledge of the benefit by the one receiving the benefit; and (3) tire acceptance or retention of the benefit under such circumstances as to make it inequitable to retain the benefit without payment of its value. Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 177, 910 P.2d 839 (1996); J.W. Thompson Co. v. Welles Products Corp., 243 Kan. 503, 512, 758 P.2d 738 (1988). Each element is satisfied in this case.
The Estate suggests that the only way to avoid unjust enrichment is to allow it to recover the tenant’s entire share of the crops. Contrary to this argument, such a recovery would allow the Estate to be unjustly enriched for the labor and expenses incurred by Spencer. However, the Estate’s argument seems to encompass a request for restitution of the actual fertilizer expenditures by David and for his time in preparing the ground for planting. Recovery for these expenses and labor is more equitable; it prevents the unjust enrichment of any party.
We, therefore, remand with directions to the district court to determine the appropriate restitution to the Estate for the expense of the fertilizer and the value of the labor expended by David in the fall of 2003.
Judgment of the Court of Appeals affirming in part, reversing in part, and remanding with directions is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions. | [
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The opinion was delivered by
Luckert, J.:
Peter J. Davis appeals the district court’s denial of his motion to correct an illegal sentence. We affirm, holding that a motion to correct an illegal sentence does not provide a defendant a means for a collateral attack of a conviction arising after a district court ruled that the State, during trial, could orally amend the date of offense alleged in the complaint.
The amendment at issue was made at the close of the State’s evidence. Originally, Davis was charged with one count of first-degree murder which was alleged to have occurred on January 26, 2000. His case was joined with other codefendants who were charged not only with the crime of first-degree murder, alleged to have occurred on January 26, 2000, but also with crimes alleged to have occurred on January 24, 2000. The information was amended twice, and the third amended information, the last filed before trial, alleged that Davis, along with his codefendants, conspired to commit first-degree murder on January 24, 2000, and committed overt acts on both January 24, 2000, and January 26, 2000.
During the trial, after the State had rested its case, defense counsel moved for a directed verdict. As to Count X, the count at issue on this appeal, defense counsel argued the State had not presented evidence to prove that Davis and the alleged coconspira tors agreed to commit murder on January 24, 2000. Defense counsel contended there was no testimony showing Davis was with the others on that particular date. The State then moved, over defense counsel’s objection, to amend the information to properly show January 26, 2000, as the only date on which Davis allegedly conspired to commit first-degree murder. The court granted the State’s oral motion. No written fourth amended information was ever filed, nor was the amendment memorialized in a journal entry. Davis was found guilty and his conviction was affirmed on direct appeal. See State v. Davis, 277 Kan. 231, 83 P.3d 182 (2004).
Subsequently, Davis filed a pro se motion to correct an illegal sentence, arguing the district court lacked jurisdiction because the State had not memorialized the amendment, which Davis felt caused him prejudice. The district court held a hearing on the motion on June 22, 2005. After considering counsel’s arguments, the court found the defendant suffered no prejudice due to the State’s failure to file a fourth amended information and denied Davis’ motion to correct an illegal sentence. The district court subsequently ordered the State to file a journal entiy nunc pro tunc correctly stating the offense in the conspiracy count. The State complied.
Davis filed this appeal. His argument is based upon the requirement that the complaint or information shall be a plain and concise “written” statement of the essential facts constituting the charged crime. K.S.A. 2006 Supp. 22-3201(b). Thus, even though an oral amendment is permitted at trial, a writing is required. “The amendment to [a] complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information.” State v. Rasch, 243 Kan. 495, 501, 758 P.2d 214 (1988). Through his motion, Davis argues the court was deprived of jurisdiction because the State failed to comply with this requirement.
Davis’ motion was filed pursuant to K.S.A. 22-3504. K.S.A. 22-3504 only applies if a sentence is illegal, and the question of whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Hoge, 283 Kan. 219, 221, 150 P.3d 905 (2007). This court has defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. Hoge, 283 Kan. at 225; State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006); State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006).
We must examine whether Davis’ argument falls under any of these categories of an illegal sentence. In doing so, we note that the essence of Davis’ claim, as the district court correctly concluded, is whether Davis suffered prejudice. Contraiy to the defendant’s argument, no jurisdictional issue is raised. The State’s failure to file an amended complaint after making an oral motion to do so does not deprive a trial court of subject matter jurisdiction over the defendant. See State v. Switzer, 244 Kan. 449, 457, 769 P.2d 645 (1989) (holding that failure to properly memorialize an oral motion to amend the information is not, in itself, prejudicial to the defendant and does not constitute reversible error); State v. Nunn, 244 Kan. 207, Syl. ¶ 18, 768 P.2d 268 (1989) (holding that an oral amendment is effective, absent prejudice to the defendant, even where the prosecution failed to memorialize the amendment in a journal entry until after the trial); State v. Dodd, 11 Kan. App. 2d 513, 515, 728 P.2d 402 (1986) (holding that failure to file an amended information in writing is not reversible error and that making only an oral amendment does not result in a defendant being found guilty of a crime that he or she was not charged with). Thus, the remaining issue is whether the amendment was appropriate. The State may orally amend a complaint at any time prior to the verdict if no additional or different crime is charged and if substantial rights of the defendánt are not prejudiced. K.S.A. 2006 Supp. 22-3201(e); Rasch, 243 Kan. at 499. In this case, a different crime was not charged; the date of offense was changed. Consequently, the amendment was appropriate if it was not prejudicial.
Regardless of how Davis’ issue is framed, a motion to correct an illegal sentence is not the appropriate mechanism for the relief he seeks. This court has reiterated that K.S.A. 22-3504(1) has very limited applicability. State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 (2006). The relief available under the statute is correction of a sentence, rather than reversal of a conviction. Nash, 281 Kan. at 601. In Nash, the defendant filed a motion to correct an illegal sentence on the ground that the complaint was fatally defective. Nash, who was convicted and sentenced for felony murder and aggravated robbery, argued he was incorrectly charged with taking property only from the “presence” of another rather than from the “person or presence” of another. This court held that a motion to correct an illegal sentence was not the appropriate remedy for Nash’s claim, stating:
“The defendant herein is seeking reversal of his conviction of aggravated robbery as opposed to correction of the sentence imposed on the conviction. In essence, the defendant is seeking to use the correction of an illegal sentence statute as tire vehicle for a collateral attack on a conviction. Such relief is not available under K.S.A. 22-3504.” 281 Kan. at 602.
See also Hoge, 283 Kan. at 225; Edwards, 281 Kan. at 1336.
Similarly, we conclude that relief is not available to Davis under K.S.A. 22-3504 based upon a prosecutor’s failure to memorialize in writing an oral amendment to a complaint or information or based upon a claim that the oral amendment prejudiced the defendant. Davis is essentially seeking to use the correction of an illegal sentence statute as a vehicle for a collateral attack on his conviction.
The district court correctly denied relief, although for the wrong reason. As stated in Nash: “The district court should have denied relief on the basis that the only relief sought was not available under the statute. However, where the trial court reaches the right result, it will not be reversed even though its reasoning was not correct. State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004).” 281 Kan. at 602. The motion, files, and records of the case conclusively show that Davis was entitled to no relief.
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The opinion of the court was delivered by
Davis, J.:
LSF Franchise REO I, LLC (LSF), filed a nonearnings garnishment action attempting to collect on its civil judgment against Polaris Restaurants, Inc. (Polaris). The trial court granted Polaris’ motion to quash the garnishment of two bank accounts held in Polaris’ name, ruling that the accounts were held in trust for withholding taxes and not subject to garnishment. The Court of Appeals affirmed the trial court’s ruling. LSF Franchise Reo I v. Emporia Restaurants, 35 Kan. App. 2d 189, 130 P.3d 1212 (2006). We granted LSF’s petition for review and now reverse.
FACTS
In September 2003, LSF filed a “Petition to Foreclose Mortgage and for Other Relief’ against defendants Emporia Restaurants, Inc., Polaris Restaurants, Inc., and North Star Holdings of Missouri, LLC. A journal entry of judgment and foreclosure was entered for LSF against the defendants on March 18, 2004, for over $2,600,000. In an effort to collect this judgment, LSF filed on July 23, 2004, a request for a noneamings garnishment on Commerce Bank (Commerce), with whom LSF believed that Polaris held accounts. On July 28, 2004, Commerce answered the order, stating that “$33,686.73 IS THE AMOUNT GARNISHEE IS HOLDING.”
Commerce amended this answer on August 3, 2004, stating that Polaris had two checking accounts with Commerce as of the date of service of the order of garnishment: Account No. 49 and Account No. 50, both titled in Polaris’ name. Neither account was “special” or specifically held apart for a particular purpose, although Account No. 50 had the description “ ‘Payroll Account’ ” in its address line.
Commerce’s answers to interrogatories explained that, at the time of service, Account No. 49 had a balance of $24,069.66. However, two items deposited in that account totaling $17,400 were returned for insufficient funds after the service of garnishment, leaving a balance of $6,669.66 in Account No. 49. Similarly, Account No. 50 had a balance of $9,617.07 at the time of service of the garnishment order. Two deposits were also returned from that account, totaling $7,200, leaving a balance of $2,417.07 in Account No. 50 as of August 3, 2004. According to Commerce’s amended answer, Polaris’ combined balance from the two accounts available to be garnished was $9,086.73.
On August 9, 2004, Polaris filed a “Motion to Quash Garnishment,” alleging that at the time of service of the order of garnishment, Account No. 49 consisted of its “operating funds” and Account No. 50 consisted of “earned wages and payroll taxes known as a payroll account.” Polaris stated that it had scheduled for payroll taxes in the amount of $8,791.64 to be taken out of its payroll account via electronic funds transfers, and that it was its “intent to transfer the funds from the operating account to the payroll account to cover the electronic funds transfers for payroll tax purposes.” The electronic funds transfer was denied after the order of garnishment was served on Commerce.
Polaris alleged that the correct tax amount owed was $8,791.64 ($8,610.28 for 941 [employment] taxes and $181.36 for 940 [unemployment] taxes). LSF apparently understood the total taxes due to be $8,610.28. The trial judge made no finding as to the amount due, and the record contains no documentation or other evidence as to the dollar amount of taxes due.
Polaris expressed no objection to garnishment of its operating bank account (Account No. 49), “exclusive of those funds necessary to satisfy the payroll taxes.” Using the figure of $8,791.64, the balance in the operating account, after deduction for taxes, would be $297.11. However, Polaris did object to any garnishment of the payroll account, Account No. 50, because it asserted that “the funds in such account do not constitute the property or assets of Defendant.” According to Polaris, the earned wages were the property of its employees, and the payroll taxes were held for the federal and state taxing authorities.
Upon hearing of Polaris’ motion to quash, LSF first argued for dismissal because both accounts were titled in Polaris’ name and no account was specifically set apart or held in trust as payroll taxes. The trial judge rejected LSF’s argument, finding that “the garnishment statutes allow for challenges to garnishments” upon an allegation that the property in question does not belong to the judgment debtor.
Polaris’ president, Mary Leonida, whose primary role was overseeing “operations and the accounting,” was the only witness called at the hearing. She explained that Account No. 50 was used for “payroll and payroll taxes at certain times” and Account No. 49 was used for “general operations and payroll taxes as well, sometimes.” When Polaris’ counsel asked her why Polaris would use funds from Account No. 49 for payroll taxes, she replied that
“[s]ometimes it was a matter of which one [account] had the most money for transferring so we would have to transfer a lesser amount from one to another. If the payroll account had more money [in] it, sometimes we would transfer from [the] general [Account No. 49] into payroll [Account No. 50] and sometimes it was visa versa.”
The president also explained that an employee had set up an electronic funds transfer through the Electronic Federal Tax Payment System (EFTPS) on Friday, July 23, 2004, before the garnishment action was filed. EFTPS was directed to pull the designated funds out of defendant’s Account No. 50 on Tuesday, July 27, 2004. At the time of her testimony, an EFTPS form was shown on an overhead screen, but that form is not admitted into evidence and does not appear in the record. Referring to some business notes taken by the employee who purportedly called in the transfer, Polaris’ president testified that Polaris intended to instruct Commerce to transfer funds from Account No. 49 prior to July 27 because Account No. 50 did not contain sufficient funds to cover the EFTPS withdrawal. However, no one made any attempt to actually transfer funds between the accounts because of the garnishment action. EFTPS notified Polaris on July 29 that the scheduled July 27 withdrawal of funds for taxes transfer did not go through.
At the conclusion of the hearing, the trial court made several findings of fact and legal conclusions on the record. First, the trial court found that “the funds that were in this account, at least to the extent identified in the documents, were, or most of the funds in these accounts were actually payroll taxes withheld ... to be paid into the Internal Revenue Service” and “that apparently is not disputed.” The Court of Appeals agreed that there was no conflicting evidence offered on this point. However, as indicated in the discussion below, LSF very much disputed this finding. Second, the trial court concluded that these payroll taxes were “held in trust” for the taxing authorities. Finally, the trial court concluded that the failure to transfer funds from Account No. 49 (the general operating account) to Account No. 50 (the payroll account) had no effect on its decision because “once the court determines that those funds are employees funds held in trust by Polaris, it doesn’t really matter what account it comes from as long as it goes to the Federal Government.”
The trial court noted that holding funds in Polaris’ Restaurant accounts instead of a separate trust account made no difference because employers hold employee taxes “ ‘in Trust for tire United States.’ ” According to the trial court, the money was “actually not necessarily Polaris’s money but actually money held in trust by Polaris to pay their employees’ income and social security taxes because it is their withholding.” Because Polaris had arranged the electronic funds transfer before Commerce was served with an order of garnishment, the trial court held that the accounts were not subject to garnishment. The trial court therefore ruled that the money should be returned to Polaris for the purpose of paying its employees’ taxes and that the remaining balance after taxes be paid to LSF to be put toward the judgment. The court then stayed its order so that LSF could appeal, on the condition that LSF post a $20,000 bond.
The Court of Appeals affirmed the trial court’s decision in LSF Franchise Reo I, 35 Kan. App. 2d 189. Finding no Kansas case “where a debtor claimed the money being garnished from a bank account was being held in trust for someone else,” the appellate court drew analogy to joint tenancy cases. 35 Kan. App. 2d at 192. Because the garnishment statutes allow joint tenants to rebut the presumption of equal ownership in joint bank accounts, the court reasoned, so too should a debtor be allowed to prove that money held in its accounts actually belongs to another entity. 35 Kan. App. 2d at 193. In addition, the court did not find tire lack of notice to either Commerce or LSF to be determinative because “[i]f the money truly did not belong to Polaris, LSF was not entitled to garnish the funds.” 35 Kan. App. 2d at 193.
The Court of Appeals concluded it “was not presented with any conflicting evidence” and the trial court’s findings that the money in Polaris’ account was held for tax purposes is “supported by substantial competent evidence.” 35 Kan. App. 2d at 194.
DISCUSSION
While not designated by the trial court as findings of fact and conclusions of law, the trial court ultimately concluded that the funds in both Account No. 49 and Account No. 50 were held in trust for taxing authorities, did not belong to Polaris, and were not subject to garnishment. We begin our discussion with the standard of review to be applied in reviewing these findings and conclusions.
Standard of Review
The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether tire findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004). The appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003).
The trial court and the Court of Appeals also interpreted and applied Kansas’ garnishment statutes, which involve questions of law. The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
Garnishment Statutory Law
Before discussing the merits of this appeal, it is helpful to set forth a general overview of garnishment law in Kansas. The current statutory scheme for garnishment, adopted by the Kansas Legislature in 2002, sets forth a detailed procedure by which a debtor’s funds or other property may be attached. See K.S.A. 60-719 et seq. Under the Kansas garnishment statutes, earnings or wages of a debtor are treated differently than the funds that we consider in this case. See K.S.A. 60-733(c). We deal here with the garnishment of funds held by a financial institution. See K.S.A. 60-731 and 60-733(g). In this situation, there are three key persons involved: A judgment creditor (garnishor), in this case LSF, which is owed money by the judgment debtor; the judgment debtor, in this case Polaris, which owes money to the judgment creditor; and the garnishee, in this case Commerce, which holds money of the judgment debtor.
Order of Garnishment
After judgment has been entered against the judgment debtor in a civil case, K.S.A. 60-731 provides that the creditor may institute garnishment proceedings to attach property owned by the debtor but held by the garnishee. When the garnishment involves funds held by a financial institution, like Polaris’ bank accounts with Commerce, the judgment creditor must have a good faith belief that the funds to be garnished belong to the judgment debtor. K.S.A. 60-733(g). In such cases, the order of garnishment must include the following statement: “ ‘If you hold any funds, credits or indebtedness belonging to or owing the judgment debtor, the amount to be withheld by you pursuant to this order of garnishment is not to exceed [the amount owed by tire judgment debtor].’ ” (Emphasis added.) K.S.A. 60-733(c). After service of the order of garnishment, the judgment creditor must give the judgment debtor notice that the order has been served and must inform the debtor that the debtor has the right to demonstrate that the subject property is exempt from garnishment. K.S.A. 60-735.
Answer of Garnishee
The garnishee bank’s answer must contain a statement that “ ‘[t]he amount of the funds, credits or indebtedness belonging to or owing the judgment debtor which I shall hold shall not exceed [the amount held by the bank subject to garnishment].’ ” (Emphasis added.) K.S.A. 60-733(d)(1). The garnishee must also state in its answer whether the judgment debtor owns the account(s) in question in joint tenancy with the persons not subject to garnishment. K.S.A. 60-733(d)(2). Once the garnishee answers the order of garnishment, any interested party may file a response. In addi tion, the parties may conduct limited discovery regarding the garnishee’s statements.
Hearing
K.S.A. 60-735(b) provides that a judgment debtor may request a hearing to assert any claim that the accounts in question are exempt from garnishment within 10 days after it receives notice of the service of garnishment. If such a hearing is requested, the judgment debtor bears the burden of proof to show that any of tire funds in question are exempt from garnishment. K.S.A. 60-735(c). In addition, if a party files a reply to the garnishee’s answer, that party has the burden of proof to demonstrate the validity of its reply. K.S.A. 60-738. K.S.A. 60-733(f), not involved in this case, authorizes any joint tenant to prove that any of the funds in question do not belong to the judgment debtor.
Judgment
After hearing the parties’ arguments, the court shall “enter an order determining the exemption [of the subject property] and such other order or orders as is appropriate.” K.S.A. 60-735(c). If the court determines that tire property in question is owned by the judgment debtor and held by the garnishee, it may enter judgment by (1) ordering payment into court, impoundment, foreclosure sale, etc., or (2) rendering judgment against the garnishee in the amount of the garnishee’s indebtedness to the judgment debtor or for the value of tire judgment debtor’s property that the garnishee holds. K.S.A. 60-721(a)(3), (4). If a garnishee bank holds funds in two or more accounts owed to the judgment debtor, the bank may pay the garnishment judgment from any one or more of these accounts. K.S.A. 60-733(e).
Kansas Case Law
As the discussion above illustrates, garnishment proceedings affect only property owned by a judgment debtor. See K.S.A. 60-729. This ownership requirement that runs throughout the garnishment statutes codified early Kansas case law — which remains good law to this day — that “a judgment against the garnishee must be limited to the actual, and not apparent, property of the defend ant in the possession or under the control of the garnishee at the time the garnishee summons is served upon him.” (Emphasis added.) Septer v. Boyles, 149 Kan. 240, Syl. ¶, 86 P.2d 505 (1939). This requirement of actual ownership necessarily means that a judgment creditor may not attach property that does not legally belong to the judgment debtor. As this court has explained,
“in garnishment proceedings the creditor takes the place and stands in the shoes of his debtor, taking only what the latter could enforce. [Citation omitted.] In Investment Co. v. Jones, 2 Kan. App. 638, the rule is stated as follows:
‘Proceedings in garnishment do not change the legal relations and rights existing between the defendant and the garnishee, nor place the plaintiff in a more favorable position for the enforcement of a claim against the garnishee than would be the defendant in an action brought by him for the same cause; nor can any one be held in such proceedings to the payment of a liability which tire defendant could not himself enforce because of existing equities and set-offs.’ ” Harpster v. Reynolds, 215 Kan. 327, 330, 524 P.2d 212 (1974).
See also B. & M.R. Rld. Co. v. Thompson, 31 Kan. 180, 196, 1 Pac. 622 (1884) (“Garnishee proceedings mean this: the creditor takes the place of the debtor. ‘Only this and nothing more.’ The former takes only that which the latter could enforce.”).
As one illustration of this rule, this court held in an early case drat “if the money deposited [in a bank account] belongs to a third person, and is held by the depositor in a fiduciary capacity,” that money may not be reached through garnishment. Morrill v. Raymond, 28 Kan. *415, Syl. ¶ 1. In Morrill, Orth, a judgment debtor, deposited money in a bank account in his own name, but that money was specifically advanced to him by Speer & Co., an agricultural firm, so he could act as its agent for the purchase of grain. This court found that the debtor “had the right to deposit [the money from Speer & Co.] in his own name, but not to use it, or any part of it, to satisfy his. prior creditors.” 28 Kan. at *418. Thus, the money in the account “belonged in equity to Speer 6c Co., and Orth held it in a fiduciary capacity.” 28 Kan. at *418. “Orth had no right to apply this fund, in whole or in part, to pay or reduce the judgment . . . against him,” and “the judgment creditor stood in no better position than the depositor.” 28 Kan. at *419. Thus, this court held that the money in the account was not subject to garnishment. 28 Kan. at *419.
Inherent in these decisions is the underlying conclusion that a judgment creditor may only reach property actually owned by the debtor — that the creditor has “no greater rights against the garnishee than the defendant” has, and thus the creditor is “not entitled to any more than the garnishee owe[s] to the defendant when process [is] served upon him. [Citations omitted.]” Jewell v. Ellis, 103 Kan. 604, 606-07, 175 Pac. 970 (1918).
As the earlier discussion of the Kansas garnishment statutes demonstrates, this ownership requirement has been incorporated into the present statutory scheme. K.S.A. 60-732(c) delineates the property that may be attached by an order of garnishment. Subsection (c)(1) explicitly states drat a creditor may attach “[a]ll intangible property, funds, credits or other indebtedness belonging to or owing the judgment debtor, other than earnings, which is in the possession or under the control of the garnishee.” (Emphasis added.) Implicit in the statute’s language is a requirement that, in order for property to be garnished, it must first be actually owned by or owed to the judgment debtor.
Because ownership is a requirement for garnishment, it necessarily follows that parties to a garnishment proceeding should be allowed to offer evidence to demonstrate who actually owns disputed property. This corollary was recognized by this court’s early decision in Morrill, where tire court explained that, regardless of the fact that the account containing the money in question was titled in Orth’s name (the judgment debtor), “it was the duty of the court to decide to whom in equity the deposit beneficially belonged.” 28 Kan. at *418.
Instead of citing this precedent, the Court of Appeals panel below relied heavily on the law relating to joint tenancy in garnishment cases. While this analogy is not necessary given the underlying principle in garnishment proceedings that the property garnished must actually belong to the debtor, it is helpful in that it provides yet another example of courts holding that actual ownership is a prerequisite to garnishment.
Even prior to the current statutory scheme for garnishment, Kansas courts recognized that “in the garnishment of a joint bank account, only the interest actually owned by the garnishment debtor is subject to seizure.” Miller v. Clayco State Bank, 10 Kan. App. 2d 659, 664, 708 P.2d 997, rev. denied 238 Kan. 878 (1985). When the legislature revised the garnishment code, this holding was integrated into K.S.A. 60-733, which governs the garnishment of funds held by financial institutions. The statute states in relevant part:
“If an order of garnishment attaches funds, credits or indebtedness held by a bank, . . . and the garnishee holds funds or credits or is indebted to the judgment debtor in an account which judgment debtor owns in joint tenancy with one or more individuals who are not subject to the garnishment, die garnishee shall withhold the entire amount sought by the garnishment. Neither the garnishor nor the garnishee shall be liable to die joint owners if the ownership of the funds is later proven not to be the judgment debtors.” (Emphasis added.) K.S.A. 60-733(f).
LSF’s Preliminary Argument
With the above as background, we first consider LSF’s argument that this court should adopt a rule that bank accounts can avoid garnishment only when they are designated as “special” or expressly “held in trust.” According to LSF, such a designation would give notice to creditors that the accounts are not subject to garnishment. Moreover, LSF asserts that, if such a rule were adopted in Kansas, no additional evidence regarding ownership of the bank accounts would be admissible. Thus, under the asserted reasoning, the accounts here, which are held in the sole name of Polaris, would be subject to garnishment because such accounts were not designated as “special” or “held in trust” for some specified purpose.
LSF relies upon Capital Serv., Inc. v. Dahlinger Pontiac-Cadillac, Inc., 10 Kan. App. 2d 328, 330, 699 P.2d 549, rev. denied 237 Kan. 886 (1985), to support its position. In addressing special circumstances that may prevent funds held by a bank from being garnished, Capital Serv. stated that one such “circumstance” arises where an account is designated as “ 'special’ ” or is “ 'held in trust’ by the bank for [an] expressed purpose.” 10 Kan. App. 2d at 330. The Court of Appeals there explained that an account was “special” where an agreement existed between the bank and the depositor that the account would only be used for a particular use, such as payroll in Capital Serv., and where the depositor could not use the funds in the account for any other purpose. 10 Kan. App. 2d at 329, 332. Because the debtor there “could not have paid [the judgment creditor] by drawing a check on the payroll account,” the account was special and not subject to garnishment. 10 Kan. App. 2d at 332.
However, the Court of Appeals below correctly and expressly rejected the position advocated by LSF that a designation of “special” was required in order to prevent the funds from being garnished. LSF Franchise Reo I, 35 Kan. App. 2d at 192. We agree with the Court of Appeals for two reasons. First, garnishment depends upon whether the judgment debtor owns the property in question, and as the prior opinions of Kansas courts demonstrate, ownership is not necessarily determined by the name put on the account. See Morrill, 28 Kan. at *419; Miller, 10 Kan. App. 2d at 664. Second, Kansas law expressly provides for a hearing when there is a dispute about ownership of the property in question. In some instances, accounts of the judgment debtor may not be designated “special,” yet the law acknowledges that if the property does not belong to the judgment debtor it may not be garnished.
Elaborating upon the latter point, K.S.A. 60-735 anticipates a hearing in garnishment actions where the judgment debtor may claim that the funds on deposit are exempt from garnishment together with the resolution of other claims made by the parties to the garnishment. By placing the burden of proof on the judgment debtor to demonstrate that it does not own the funds in question, K.S.A. 60-735(c) provides sufficient protection for judgment creditors’ interests. The position advocated by LSF is contraiy to the law of Kansas and is rejected as a matter of law.
The Trial Court’s Conclusion that Polaris’ Accounts Are Exempt from Garnishment
The trial court held that the monies in Polaris’ Commerce accounts were not subject to garnishment. Specifically, after hearing evidence from Polaris and argument by both parties, the trial court found that “the funds that were in this account, at least to the extent identified in the documents, were, or most of the funds in these accounts were actually payroll taxes withheld . . . to be paid into the Internal Revenue Service.” In addition, the trial court found that these payroll moneys were “held in trust” for the taxing authorities and thus, did not belong to Polaris. According to the trial court, the failure of Polaris to request any transfer of funds from its general operating account to the payroll account was inconsequential because “once the court determines that those funds are employees funds held in trust by Polaris, it doesn’t really matter what account it comes from as long as it goes to the Federal Government.” Because Polaris had arranged for the electronic funds transfer before Commerce was served with the order of garnishment, the trial court held that the accounts were not subject to garnishment.
The trial court’s findings and conclusions may be divided into three points which, when considered according to our standard of review, resolve the issues in this appeal: (1) The money in Polaris’ two accounts actually consisted of payroll taxes; (2) because tire money in Polaris’ accounts was “held in trust” for the taxing authorities, no separate account was necessaiy to preserve the money from garnishment; and (3) the money did not belong to Polaris. It is important to note that Polaris bore the burden of proof to establish that it did not own the funds in its two Commerce accounts at the time of service of garnishment.
(1) The money in Polaris’ two accounts actually consisted of payroll taxes.
The trial court stated that this conclusion — that the money in question was composed of employee payroll taxes — was “apparently . . . not disputed.” Not only was this conclusion disputed at tire hearing by LSF, but the only evidence of record fails to support the trial court’s conclusion.
Leonida, the president of Polaris and supervisor over the accounts, explained the relationship between Polaris’ Commerce accounts and its employees’ payroll taxes as follows:
“Q. [By Polaris’ counsel] Typically what did you use that account [referring to Account No. 50, the designated payroll account] for?
“A. [By Leonida] For payroll and payroll taxes at certain times.
“Q. Okay. Now the other account, account number 49 [operation account] was used for what?
“A. For operate, general operations and payroll taxes as well, sometimes.
“Q. So, although, you had another account that was designated payroll account you still used the operating account, so to speak, for payroll taxes?
“A. At times, yes.
“Q. Okay. What would cause you to use that account for payroll taxes?
“A. Sometimes it was a matter of which one had the most money for transferring so we would have to transfer a lesser amount from one to another. If the payroll account had more money [in] it, sometimes we would transfer from general into payroll and sometimes it was visa versa.” (Emphasis added.)
This exchange provides the only evidence, apart from Leonida’s testimony regarding the EFTPS transfer request, discussed below, and the fact that Account No. 50 had the description “payroll account” in its address line, that could possibly support the trial court’s conclusion that “most of the funds in these accounts were actually payroll taxes.” At best, Leonida’s testimony shows that the company would sometimes use money from either account to cover its payment of payroll taxes. It does not support a conclusion that the monies in both accounts at the time of garnishment were exclusively composed of payroll taxes, or how much of the money, if any, was actually composed of taxes withheld for later payment to the government. Leonida did not testify that the money in either account was unavailable to Polaris or that there was any agreement with Commerce that funds in either account could be withdrawn only for purposes of paying payroll taxes. Rather, as indicated above, her testimony suggests that neither account held exclusively employee payroll taxes, and money was transferred between accounts depending upon the need.
According to Leonida, Account No. 50 (the payroll account) was used for “payroll and payroll taxes at certain times.” (Emphasis added.) She did not state that all of the money in Account No. 50 at the time of garnishment consisted of payroll taxes, nor did she provide any documentation that would demonstrate the proportion of money in the account that was used for payroll taxes and the proportion that was used for employee wages. Moreover, despite her testimony that she was primarily in charge of accounting at Polaris, Leonida did not provide an accounting that would demonstrate the amount of money in the account that was specifically intended to be used as payroll taxes. Instead, Leonida testified that amounts in both accounts were transferred back and forth by check or by a call to tire bank, depending upon the balances and tire need. The record contains no testimony or evidence that an arrangement was made by Polaris with Commerce that funds in either account could only be used for taxes or that Polaris had earmarked the funds in Account No. 50 at tire time the garnishment was served to be used specifically for tax purposes.
The evidence supporting a conclusion that Account No. 49 (the general operating account) consisted of payroll taxes at the time of garnishment is even less compelling. Leonida stated that the money in that account was used for “general operations and payroll taxes as well, sometimes.” (Emphasis added.) However, she provided no evidence that any of the money held in that account was from payroll taxes. According to her testimony, Polaris would, at the company’s discretion, “sometimes” use either account to pay the taxing authorities. This does not support a finding that all (or most) money in both accounts only consisted of payroll taxes when the order of garnishment was served on Commerce. Rather, the record supports a contrary finding, as the money in both accounts was used by Polaris as Polaris determined.
The trial court’s conclusion was likely influenced by the fact that Polaris owed almost $9,000 in taxes and had just over $9,000 total in its two accounts when the hearing was held. However, this fact alone does not show that the money in those accounts consisted of payroll taxes. The trial court apparently took no note of the fact that at the time the EFTPS request was made, Polaris’ Account No. 50 showed a balance of $9,617.07, which would have more than covered the requested payroll tax transfer. While this account total was later revised because two deposits into the account were returned on July 27 and July 29, it demonstrates at a minimum that there was some question as to whether the remaining money in Polaris’ accounts solely consisted of payroll tax monies or whether the funds were intended to be used for a number of other purposes.
While it is true that a reviewing court should not reweigh the evidence or reassess the credibility of witnesses, the record here is utterly devoid of evidence supporting the trial court’s finding that all (or most) of the funds in Polaris’ Commerce accounts “were actually payroll taxes withheld ... to be paid into the Internal Revenue Service.” Polaris had the burden of proof to show that the balances for the two accounts, although titled in its name, could not be garnished because they actually consisted of employee taxes. Account No. 50 was described as a “payroll account,” but Polaris’ president testified that the account consisted of both payroll taxes and employee wages. Account No. 49 was a “general operating account” that was sometimes used to pay taxes as well. Polaris provided no testimony or documentation to demonstrate what proportion of the money was actually composed of earmarked payroll taxes. Under the above circumstances, we conclude that the evidence fails to support the trial court’s conclusion that Polaris’ accounts consisted almost entirely of payroll taxes. See U.S.D. No. 233, 275 Kan. at 318.
(2) Because the money in Polaris’ accounts was “held in trust” for the taxing authorities, no separate account was necessary to preserve the money from garnishment.
The trial court found that because Polaris was required by law to withhold its employees’ taxes for later payment to the taxing authorities, the money in its accounts was “held in trust” for the taxing authorities and thus not subject to garnishment. At the garnishment hearing below, the court stated that because federal law requires employers to “hold these funds ‘[i]n Trust for the United States,’ ” the money does not actually belong to the employers and cannot be garnished. The trial court further concluded that “the money is actually not necessarily Polaris’ money but is actually money held in trust by Polaris to pay their employees’ income and social security taxes because it is their withholding.” For this reason, the court found that “those funds . . . are exempt from ap plication to pay the debt of the Polaris and the judgment on this case.”
The Court of Appeals provided little analysis on this issue, finding only summarily that “[t]he trial court’s findings are supported by substantial competent evidence” and that “[t]he trial court did not err in quashing the garnishment order.” LSF Franchise Reo I, 35 Kan. App. 2d at 194.
To support its conclusion that the monies in both accounts were “held in trust” for taxing authorities, the trial court relied upon United States v. Energy Resources Co., 495 U.S. 545, 109 L. Ed. 2d 580, 110 S. Ct. 2139 (1990), a bankruptcy case, for the proposition that Polaris was holding its employees’ taxes “[i]n Trust for the United States.” The portion of Energy Resources cited by the trial court explained:
“The Internal Revenue Code requires employers to withhold from their employees’ paychecks money representing employees’ personal income taxes and Social Security taxes. 26 U.S.C. §§ 3102(a), 3402(a). Because federal law requires employers to hold these funds in ‘trust for the United States,’ 26 U.S.C. § 7501(a), these taxes are commonly referred to as ‘trust fund’ taxes. [Citation omitted.]” Energy Resources, 495 U.S. at 546-47.
Applying this language to the instant facts, the trial court essentially concluded as a matter of law that, because Polaris owed money for taxes, Polaris’ accounts were “held in trust” for the government and thus exempt from garnishment.
Section 7501(a) of the Internal Revenue Code, cited in Energy Resources, states:
“Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and Hmitations (including penalties) as are applicable with respect to the taxes from which such fund arose.” (Emphasis added.) 26 U.S.C. § 7501(a) (2000).
In resolving this issue, we deal with a factual question: What evidence in the record establishes that funds in the two Commerce accounts did not belong to Polaris? The above conclusion by the trial court resolves the question as a matter of law based upon its reading of Energy Resources. However, the fact that federal law requires employers to hold employee taxes in trust for the United States does not establish ownership in the United States if such funds were not so held. In this case, the trial court’s legal conclusion is without evidentiary support. We deal with accounts that were used by Polaris for purposes other than taxes. Polaris had no separate account designated as a withholding account to be drawn upon solely for withholding taxes. Monies were transferred back and forth between both accounts in question, and there simply is no evidence or accounting to establish which funds were withheld taxes, which funds were used for operating expenses, and which funds belonged to the employees for salaries.
The problem with the trial court’s conclusion, and the Court of Appeals’ summary agreement with that conclusion, is that there is no evidence in the record to support the finding. In fact, the trial court’s conclusion — that Polaris’ obligation under federal tax law establishes that the money in both of Polaris’ accounts is exempt from garnishment — is undermined by the only evidence of record. Polaris comingled or mismanaged its funds, leading to an insufficient amount in its payroll account to cover its payroll taxes. The record failed to identify what monies in the accounts were Polaris’ withholdings and suggested that the final determination of with-holdings was made by Polaris at the time the tax was due.
We conclude that the trial court erred in its conclusion that the funds in Polaris’ Commerce accounts were “held in trust” for tax purposes and thus automatically immune from garnishment. Clearly, the money in the accounts was used for additional purposes, as well as for taxes. Moreover, there was no evidence that Polaris had any arrangement with Commerce to limit withdrawals on these accounts to withdrawals made for taxing purposes. While it was not necessary under Kansas law for Polaris to keep its payroll taxes in a separate account to protect them from garnishment, Polaris was nevertheless required to provide some additional evidence to demonstrate that the monies in question — from both accounts— were being “held in trust” for taxing authorities. Polaris did not meet its burden in this regard.
(3) The money did not belong to Polaris.
As we discussed above, the trial court found that because the funds were held in trust for the United States, they did not belong to Polaris. We have examined and rejected the trial court’s conclusions that the funds in both accounts were held in trust for taxes. However, the trial court also concluded that Polaris’ arrangement for the electronic transfer of funds via EFTPS before LSF’s service of the order of garnishment on Commerce, as well as Polaris’ president’s testimony it intended to transfer funds between its accounts to cover the EFTPS transfer, rendered the funds in both accounts immune from garnishment under Kansas law. We now address whether the record supports the trial court’s conclusions regarding Polaris’ alleged intention to transfer of funds from Account No. 49 to Account No. 50 (the account transfer), as well as the request for an electronic transfer of funds through EFTPS (the EFTPS transfer request). The question underlying both of these determinations is whether Polaris met its burden to demonstrate that it did not own the monies in its accounts, and thus, that these funds were immune from garnishment.
Polaris’ president, Leonida, testified at the garnishment hearing that on the morning of July 23, prior to the service of the order of garnishment, one of Polaris’ employees arranged for an electronic funds transfer through EFTPS, which was directed to pull the designated amount out of Polaris’ account on Tuesday, July 21. Leonida made reference during her testimony to some document describing the proposed funds transfer, which was apparently viewed on an overhead at the hearing. This document was not admitted into evidence and does not appear in the record. In fact, Leonida’s testimony is the only evidence in the record that purports to show that an EFTPS transfer was requested or that a transfer was tried and denied.
As a preliminary matter, we note that because the transfer document was never admitted into evidence, there is some confusion in the record as to which account was subject to the EFTPS transfer. Leonida mentioned both accounts in her testimony, but she also testified that it was Polaris’ intent to transfer funds from Ac count No. 49 to Account No. 50, so that sufficient funds would be available to pay the company’s taxes on the designated date of transfer. Substantial competent evidence does not support a conclusion that the electronic transfer was to cover any account other tiran Account No. 50.
The Account Transfer
According to Leonida’s testimony at the garnishment hearing, Polaris had requested EFTPS to transfer roughly $8,700 in payroll taxes from Account No. 50 (the payroll account) on July 27. Leonida further testified that it was Polaris’ intent to transfer funds from Account No. 49 (the general operating account) to Account No. 50 to cover the transfer, but this request was never made due to the service of the garnishment order on Commerce.
The trial court found the fact that Polaris never actually attempted to transfer the money from Account No. 49 to Account No. 50 to be inconsequential. The judge explained:
“I don’t think it matters what account it’s [meaning the funds in question] in. I think that those funds are . . . are exempt from application to pay the debt of the Polaris and the judgment on this case because those funds don’t belong to Polaris they belong to the Polaris’s employees. And Polaris was just holding that money for them pending distribution. . . . It is just-that they hadn’t been transferred to [Account No. 50], really, it doesn’t really matter, once the court determines that those funds are employees funds held in trust by Polaris, it doesn’t really matter what account it comes from as long as it goes to the Federal Government.”
We have concluded that there is no substantial competent evidence to support the trial court’s conclusion that the funds in both accounts belonged to Polaris’ employees as withheld taxes. We have also concluded that there is not substantial competent evidence to support the trial court’s conclusion that the funds in both accounts were held in trust by Polaris for the taxing authorities. The remaining question to be answered regarding the intended transfer of funds between Polaris’ accounts is whether, in the absence of other evidence of assignment, Leonida’s testimony that Polaris intended to transfer the funds from Account No. 49 to Account No. 50 was sufficient to establish that Polaris no longer owned the funds in Account No. 49 at the time of service of the order of garnishment. We determine that it was not.
While not cited by the trial court or the Court of Appeals, this court in the past has explained:
“ ‘Where the principal defendant has made a valid assignment of the garnishee’s indebtedness, or conveyance of the property in his possession belonging to such defendant, before the service of tire summons upon the garnishee, die latter can not be charged on account of such debt or property.
“ ‘In the absence of statutory provision prescribing the mode of assignment, no particular mode or form is necessary to effect a valid assignment of property, claims, or debts so as to defeat garnishment proceedings by a creditor of the assignor. If the intent of the parties to effect an assignment be clearly established, diat is sufficient, and the assignment may be in the form of an agreement or order or any other instrument which the parties may see fit to use for tiiat purpose. . . . [A]s between assignor and assignee, it is not necessary to the validity of an assignment that die garnishee be notified diereof; and die assignment will likewise be complete as against creditors of the assignor instituting garnishment proceedings after assignment and before notice of the assignment to the garnishee, provided that notice of the assignment be given to die garnishee in time to permit him to disclose die assignment in his answer to die garnishee process.’ ” Hall v. Terra Cotta Co., 97 Kan. 103, 105-06, 154 Pac. 210 (1916) (quoting 20 Cyc. 1012-17).
At the hearing below, the evidence of Polaris’ intent to transfer funds from Account No. 49 to Account No. 50 (in order to effectuate the EFTPS transfer) was limited to Leonida’s testimony. When Leonida was asked by her own counsel whether the document describing the EFTPS transfer (which is not in the record) indicated “that you gave directions to the bank to transfer those funds to an account for payroll taxes,” Leonida answered that the document only related to the EFTPS request and did not involve any transfer between the Commerce accounts. In addition, die following exchange took place between LSF’s attorney and Leonida on cross-examination:
“Q. [By LSF’s counsel] What was tlie . . . date that supposedly that this money was to be automatically withdrawn from these accounts?
“A. [Leonida] The, it was called in on the 23rd to be, which was a Friday, to come out on Tuesday the 27th.
“Q. That’s of July?
“A. Yes. And that would give us time to transfer to malee sure the funds were in the right account.
“Q. It was to be drawn out on July the 27th?
“A. Yes.
“Q. And the bank was actually served with the garnishment on July 26th?
“A. No, on the afternoon of the 23rd was my understanding. .
“Q. Okay. So . . . I’m a little confused here a little bit on this. It was your instructions to the bank to take out of the operating account and put it into the payroll account?
“A. We were ... we hadn’t done that yet but that was our intention to do that, yes.
“Q. It was your intention to take it out of the operating account and put it in the payroll account.
“A. Yes.
“Q. And that didn’t occur because of the garnishment that Commerce Bank received?
“A. That is correct.
“Q. And so the funds were never ever moved from the operating account to the payroll account?
“A. That’s correct, because the garnishment came through.” (Emphasis added.)
This testimony illustrates that Polaris never made any attempt to transfer funds from Account No. 49 to Account No. 50. While Leonida contended that the garnishment was the reason that no attempt was made to transfer the funds, this does not change the fact that the only evidence of an intended account transfer was her testimony at the hearing. Though several hours passed between when Polaris’ employee allegedly called in the EFTPS request and the service of the order of garnishment, no effort was made to transfer the funds during that time. Moreover, Polaris did not provide evidence of other times when such requests were made, to demonstrate when account transfer requests were generally made in relation to the EFTPS request.
As this court explained in Hall, “[i]f the intent of the parties to effect an assignment can be clearly established, that is sufficient” to insulate the assigned funds from garnishment. (Emphasis added.) 97 Kan. at 106 (quoting 20 Cyc. 1012-17). Apart from this statement, the Kansas courts have provided little insight as to whether Leonida’s testimony alone was sufficient to establish Polaris’ intent to transfer funds between its accounts or whether Po laris was required to present additional evidence of its intent to transfer in order to avoid garnishment of those funds. The Utah Court of Appeals recently considered this question — whether a party’s testimony regarding intended use of otherwise gamishable funds is sufficient to avoid garnishment-in J. Pochynok Co., Inc. v. Smedsrud, 80 P.3d 563, 568 (Utah App. 2003), reversed on other grounds, 116 P.3d 353 (Utah 2005) (reversed and remanded for reconsideration of the trial court’s assessment of attorney fees).
In that case, a judgment debtor, a contractor, challenged a trial court’s determination that his bank account was subject to garnishment. In particular, the contractor argued that he had testified that certain monies in his account were intended to be paid to subcontractors, and thus, did not belong to him and should not have been subject to garnishment. The Utah Court of Appeals, like the trial court, rejected this argument, stating:
“Pochynok [the debtor] argues that tire parties put on proof by proffer. However, even given the proffers made, we conclude the trial court did not err. Pochynok’s argument that the funds in the account were not subject to garnishment because those monies were intended to be used to pay subcontractors on other projects is without merit. The funds, once in Pochynok’s account, were owned by Pochynok. Thus, the decision to pa)' subcontractors with those funds, or to use the money elsewhere, was solely in the discretion of Pochynok.” 80 P.3d at 568 n.6.
Not only did the court find that Pochynok’s statements regarding the intended use of the money in his account to be without merit, it did not consider these statements to be valid for evidentiary purposes. As the court explained in its conclusion,
“[i]n Utah, diere is a rebuttable presumption that the funds in a bank account belong to the account owner. [Citation omitted.] Hence, to avoid garnishment, a garnishee account owner must show by clear and convincing evidence that the funds belong to someone else. . . . However, the record . . . reveals diat prior to and during the hearing, Pochynok failed to present any evidence to the trial court in support of its claim of exemption. With no competent evidence to counter the Smedsruds’ position, die trial court did not clearly err in finding the funds were subject to garnishment.” (Emphasis added.) 80 P.3d at 568.
The Pochynok case stands for the proposition that mere testimony of intent is not enough to establish the ownership of monies in a particular account. While that opinion is by no means binding on this court, we find its reasoning persuasive. Were this court to decide that a party’s testimony alone regarding intended use of funds was sufficient to establish ownership, it would open the floodgates to potential abuse by judgment debtors who sought to avoid garnishment. It is more equitable to require debtors seeking to demonstrate other ownership of disputed funds to provide some additional evidence, other than their own testimony, that would demonstrate that funds were, in effect, assigned to another and thus not subject to garnishment.
Apart from Leonida’s testimony, there is nothing of substance in the record that would support a finding that Polaris intended to transfer money from Account No. 49 to cover its payroll taxes. In fact, there is evidence in the record to undermine this contention— the apparent balance in Account No. 50 was more than sufficient to cover the EFTPS transfer when it was requested on July 23; it was not until July 27 that the balance was reduced due to returned deposits. Thus, it appears from the documents in the record that Polaris would have known of no reason to transfer money between its Commerce accounts before July 27, when the EFTPS transfer was scheduled to take place.
An appellate court should not reassess the credibility of witnesses. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003). Our finding that Leonida’s testimony was not sufficient to establish an intended assignment of funds is not a credibility assessment, however; it is instead a legal judgment that mere testimony of purported intent is insufficient to establish ownership of property in garnishment cases.
Polaris had the burden of “ ‘clearly’ ” proving that it intended to include the funds in Account No. 49 in its assignment of funds via the EFTPS request. See Hall, 97 Kan. at 106 (quoting 20 Cyc. 1012-17). The EFTPS request affected only Account No. 50. The only proof Polaris offered regarding its intent to transfer funds from Account No. 49 to Account No. 50 was the “after the fact” testimony of Leonida. This was not enough to meet its burden of proof. Thus, the trial court erred in holding- that the money in Account No. 49 was not subject to garnishment.
The EFTPS Transfer Request
The final question for our review is whether Polaris established at the garnishment hearing that the EFTPS transfer request, when submitted by Polaris on July 23, constituted an assignment of Polaris’ ownership of the funds in Account No. 50, the payroll account.
According to Leonida’s testimony, EFTPS is a service that “pulls payroll taxes out of existing checking accounts.” Polaris’ president testified that an employee had submitted the EFTPS request on the morning of July 23, arranging for employee taxes to be withdrawn from Account No. 50 on July 27. The order of garnishment was served on Commerce on the afternoon of July 23, with the effect of attaching all funds owned by Polaris in its Commerce accounts as of that time.
This court explained in Hall that “ '[wjhere the principal defendant has made a valid assignment of the garnishee’s indebtedness, or conveyance of the property in his possession belonging to such defendant, before the service of the summons upon the garnishee, the latter can not be charged on account of such debt or property.’ [Citation omitted.]” (Emphasis added.) Hall, 97 Kan. at 105-06 (quoting 20 Cyc. 1012-17). The determinative question, therefore, is whether the July 23 EFTPS transfer request constituted a valid assignment of Polaris’ funds in Account No. 50, or whether the assignment of those funds would have taken place, but for the garnishment, on the date of the scheduled transfer (July 27). If Polaris failed to establish the former — that the assignment to EFTPS took place before Commerce was served with the order of garnishment — then Polaris owned the funds when the garnishment was served and the money in Account No. 50 is subject to garnishment.
The scarce record before us identifies EFTPS but contains no information on its nature. We note that neither the transfer request document nor the document indicating that EFTPS’s attempted withdrawal of the funds was denied on July 27 was offered as evidence, and thus neither is part of the record on appeal, despite Leonida’s discussion of both of these documents during her testi mony at the garnishment hearing. The only evidence pertaining to the assignment of funds by way of the EFTPS transfer request is found in Leonida’s testimony. As the following discussion indicates, however, this testimony fails to demonstrate that Polaris’ assignment of its funds in Account No. 50 was effective as of July 23, the date the EFTPS transfer was requested, rather than on July 27, when die transfer itself was scheduled to take place.
On cross-examination, counsel for LSF questioned Leonida concerning the nature of the EFTPS transfer request and the timing of Polaris’ assignment of its tax funds:
“Q. [By LSF’s counsel] And so there had not been any type ... of entry made in connection with these two accounts in terms of actually transferring the monies to the Federal Government? The monies were still in your accounts at the time of garnishment?
“A. [By Leonida] That [is] correct. They were earmarked for the payroll taxes.
“Q. And there [were] no instructions to the Commerce Bank, as I understand it, to actually withdraw these monies from either one of these accounts and deposit it by direct deposit or something like that, to the United States Government.
“A. They would [have], the EFTPS automatically goes directly to the bank and pulls it out.”
Contrary to Polaris’ contention that it did not own the funds in Account No. 50 at the time the garnishment was served due to its previous EFTPS request, Leonida’s testimony indicates that Polaris continued to exercise discretion over the money in its account after the request was made on July 23. If the garnishment had not been served, Leonida’s testimony implies that Polaris would have continued to have control over these monies until July 27, when the EFTPS would have withdrawn on its account for tax purposes.
The fact that Polaris freely transferred money between its payroll and operating accounts further indicates that it continued to control the funds in both of its accounts, including Account No. 50, after the EFTPS request had been made. Leonida testified that EFTPS was authorized to withdraw money from Account No. 50 in this particular case, yet she also stated that Polaris intended to transfer funds sometime between July 23 and July 27 from Account No. 49 to Account No. 50 to cover tire tax transfer. At cross-ex amination, LSF’s counsel inquired as to when the transfer would have taken place:
“A. [By Leonida) The, it was called in on the 23rd to be, which was a Friday, to come out on Tuesday the 27th.
“Q. [By LSF’s counsel] That’s of July?
“A. Yes. And that would give us time to transfer to make sure the funds were in the right account.
“Q. It was to be drawn out on July the 27th?
“A. Yes.
“Q. And so . . . the withdraw date being the 27th means that at that time EFTPS would withdraw on the 27th these funds?
“A. That’s correct. That would give us time to transfer them.” (Emphasis added.)
As this exchange demonstrates, the EFTPS could not withdraw the funds in question until July 27. Between July 23 and July 27, Polaris would have been free, in the absence of the garnishment, to transfer funds from its operating account into Account No. 50, in order that the transfer could later take place. The evidence therefore supports the contrary conclusion to that reached by the trial court — that Polaris retained control over all the funds in its accounts until the EFTPS transfer was actually scheduled to take place on July 27.
Polaris asks the court to assume, despite the vagueness of Leonida’s testimony and the absence of other evidence in the record demonstrating that Polaris did not control the money in its accounts after the EFTPS transfer was requested on July 23, that the funds in Account 50 were no longer the property of Polaris simply because it made a request through EFTPS on July 23 to transfer funds to pay taxes on July 27 to the taxing authorities. Polaris bears the burden of proof to demonstrate that it did not own the money in its Account No. 50 after the morning of July 23 — a burden it has not met. There simply is no evidence in the record to establish that the EFTPS transfer request, when made by Polaris on July 23, was a valid assignment of the money in its payroll account. Contrary to Polaris’ assertions, a more reasonable conclusion from the sparse evidence of record would be that because Polaris’ order to disperse taxes would become effective on July 27, it was not until that date that the funds were no longer owned by Polaris.
This court does not reassess the credibility of witnesses; that assessment is within the province of the finder of fact. Here, the trial court heard the testimony from Polaris’ president and concluded that because Polaris’ president testified that the EFTPS transfer was requested before the garnishment was served, Polaris did not own the funds in both accounts. However, the trial court’s conclusion does not reflect a proper understanding of Kansas’ garnishment law, which requires clear evidence that an assignment of ownership, not merely a request for a transfer at a later date, was made prior to the service of the order of garnishment. See Hall, 97 Kan. at 105-06.
Polaris had the burden before the trial court to establish by substantial competent evidence that the funds in both accounts, and specifically Account No. 50, did not belong to Polaris. See K.S.A. 60-735(c). Polaris failed to meet this burden. Therefore, the trial court’s conclusion that Polaris did not own the funds in its Commerce accounts (and thus that the accounts were not subject to garnishment) is not supported by substantial competent evidence.
Conclusion
In this case, Polaris sought to demonstrate through its motion to quash the garnishment of its Commerce accounts that the money in those accounts were exempt from garnishment. Pursuant to Kansas law, Polaris bore the burden of proof to demonstrate that it did not actually own the funds in its accounts, either because the funds actually consisted of employee taxes, or alternatively, because they had been previously assigned to the taxing authorities by way of the EFTPS transfer request. See K.S.A. 60-735(c); 60-738(b). As the above discussion indicates, Polaris failed to meet this burden.
Polaris could not demonstrate what proportion of the money in either account was actually held in trust for employee taxes. On the contrary, its president testified that the accounts were used for a number of purposes other than payroll taxes. Because there was no evidence in the record that would support the trial court’s find ing that the accounts were composed entirely (or almost entirely) of payroll taxes, or that the money in Polaris’ accounts was “held in trust” for taxing authorities, these findings were not supported by substantial competent evidence and are reversed.
As to tire account transfer and EFTPS transfer request, the record similarly does not support the trial court’s conclusion that Polaris did not own the funds in its Commerce accounts. The only evidence that the monies in Account No. 49 were to be included in the EFTPS transfer of payroll taxes from Account No. 50 (payroll account) was Leonida’s testimony that Polaris intended to transfer money from Account No. 49 into its payroll account sometime before July 27. This testimony alone is insufficient to clearly establish an assignment of Polaris’ ownership of the money in its operating account. Furthermore, with regard to the EFTPS transfer, Polaris did not meet its burden to establish that the EFTPS transfer, when requested on July 23, constituted a valid assignment of Polaris’ ownership of the funds in the payroll account. Because Polaris did not meet its burden of proof to establish that it did not own the funds in these accounts, the funds in both Account No. 49 and Account No. 50 are subject to garnishment.
It would seem that the trial court below was influenced more by the fact that the taxes were owed by Polaris than by the facts and evidentiary record in this case. In some instances, this court will remand the case before it for a reconsideration of the evidence at the trial court level in light of its opinion. Remand is not necessary, however, where an appellate court announces no new legal principles, but instead reviews the record in light of the existing law and determines that the record cannot support the trial court’s conclusions. Here, the record is examined and provides no factual support for the trial court’s conclusion that the judgment debtor did not own the funds subject to garnishment. Thus, we hold that tire accounts in question are subject to garnishment.
The decisions of the district court and the Court of Appeals are reversed and the case is remanded for further proceedings consistent with this opinion.
LUCKERT, J., not participating.
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The opinion of the court was delivered by
Rosen, J:
This is a paternity action in the context of a probate case. Heather S. Reese (formerly Waldschmidt) (Heather) seeks a determination that she is the child of Wade Samuel Waldschmidt, Jr. (Sam). Sam’s spouse, Sandra Waldschmidt (Sandra), opposed Headier s claim as a child in Samuel’s intestate estate and filed a motion for genetic testing. Headier filed a paternity action pursuant to the Kansas Parentage Act, claiming that Sam was her presumptive father. Sandra intervened in the paternity action and moved for genetic testing. The district court denied Sandra’s motions in both the probate and paternity actions, and she brings this appeal, claiming that In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), does not apply to genetic testing in paternity cases brought by adults for the purpose of determining inheritance.
Sam married Deloris Hibbs (Deloris) on June 1, 1970. On Januaiy 25, 1971, Deloris gave birth to a daughter named Heather Shea Waldschmidt (Heather). Heather’s birth certificate named Sam as her father. Deloris and Sam divorced on July 12,1972. The divorce pleadings acknowledged Heather as a child of the union. The district court ordered Sam to pay child support and granted Sam visitation with Heather.
In November 1972, Sam filed a motion to terminate his child support payments, alleging that Deloris “took the minor child of said parties and disappeared.” Sam’s motion further alleged that Deloris was unfit and that he should have custody of Heather. In December 1972, the district court entered an order terminating Sam’s child support until Deloris could show just cause to have the child support reinstated. Deloris never reinstated Sam’s child support obligation, but Sam’s Aunt Irene provided financial assistance to Deloris and Heather.
After the divorce, Sam had little contact with Heather. Sam saw Heather at Waldschmidt family gatherings for Thanksgiving and Christmas but did not attempt to have a relationship with her. However, Heather was very close to members of Sam’s family including his mother, Margaret; his brother, David; and his Aunt Irene. Heather was also close to her Waldschmidt cousins. Although Heather did not have a relationship with Sam, she always considered him to be her father.
Sam married Sandra Woodard in October 1976. According to Sandra, Sam said that Heather was not his child. Sam and Sandra had no children. They separated in September 1988 and divorced in 1990. Sandra moved back in with Sam in 1994, moved out again in 1995, and remarried him in 1996. After their remarriage, Sandra did not live with Sam, but visited him occasionally on weekends.
Before Sandra moved back in with Sam in 1994; Sam executed a will leaving everything to his sisters, Camille and Anna Jane. On December 10, 2002, Sam visited with an attorney about his estate. Sam told the attorney that he had a daughter. The attorney perceived that there was tension between Sam and Sandra regarding Sam’s daughter, but Sam did not explain the situation. On or about December 13, 2002, Sam committed suicide.
On December 18, 2002, Heather petitioned the district court to appoint administrators for Sam’s estate. Sandra responded to Heather’s petition, denying that Heather was Sam’s daughter and requesting the court to appoint her as the administrator for Sam’s estate. Sandra also filed a petition in the probate action for genetic testing to determine whether Sam was Heather’s biological father. The district court appointed an attorney, who was a disinterested third party, as the administrator of Sam’s estate.
In response to Sandra’s motion for genetic testing, Heather filed a paternity action pursuant to the Kansas Parentage Act, seeking a determination that Sam was Heather’s father. The petition alleged that Sam was Heather’s presumed father because she was born during her mother’s marriage to Sam, Sam had acknowledged his paternity in the divorce pleadings, and Sam was ordered to pay child support on Heather’s behalf. Sandra filed a motion to intervene and a motion for genetic testing. Over Heather’s objection, the district court granted Sandra’s motion to intervene pursuant to K.S.A. 60-224(b).
Heather objected to Sandra’s motions for genetic testing. The district court then ordered a Ross hearing to determine whether it was in Heather’s best interests to grant Sandra’s motions. The parties agreed to submit the evidence for the Ross hearing based on stipulated depositions and exhibits rather than conducting an evidentiary hearing. Based on this evidence, the district court held that it was not in Heather’s best interests to conduct genetic testing and denied Sandra’s motion.
Sandra filed a motion for an interlocutory appeal in the paternity action and requested a ruling on her petition for genetic testing in the probate action. The district court denied Sandra’s petition for genetic testing in the probate action and granted her request for an interlocutory appeal in the paternity action. Sandra filed a notice of appeal in both actions. The appeals were consolidated and transferred to this court on our motion pursuant to K.S.A. 20-3018(c).
The matter was originally set for oral argument on December 5, 2005. However, upon finding a copy of Sam’s will in the record, we remanded the matter to the district court for a determination of the validity of Sam’s will. Thereafter, Sam’s sister, Camille Pond, petitioned the district court to admit a copy of Sam’s will to probate. After an evidentiary hearing, the district court denied Camille’s petition to probate Sam’s will because she had failed to overcome the presumption that Sam had destroyed or revoked his original will. Following the district court’s refusal to probate Sam’s will, we reinstated Sandra’s appeal.
ANALYSIS
Sandra argues that the district court improperly applied the ruling of Ross, 245 Kan. 591, in determining whether to order genetic testing in a probate action and in a parentage action brought by an adult for the purposes of applying the probate code. According to Sandra, Ross is inapplicable to a probate case and inapplicable to adults. We analyze this issue as a question of law subject to de novo review because it involves stipulated facts and statutory interpretation. See In re Harris Testamentary Trust, 275 Kan. 946, 951, 69 P.3d 1109 (2003); In re Estate of Antonopoulos, 268 Kan. 178, 180, 993 P.2d 637 (1999).
The fundamental rule of statutory construction is that the intent of the legislature governs. Legislative intent is first determined by considering the language in the statute. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. In re Conservatorship of Huerta, 273 Kan. 97, 105, 41 P.3d 814 (2002).
Probate action
Because this action arises out of the administration of a decedent’s estate, we will begin our analysis with the probate code, K.S.A. 59-101 et seq. K.S.A. 59-501 defines children for purposes of intestate succession, stating:
“ ‘Children’ means biological children, including a posthumous child; children adopted as provided by law; and children whose parentage is or has been determined under the Kansas parentage act or prior law.”
When Heather filed the petition to administer Sam’s estate, she asserted her interest in Sam’s estate as a biological child because none of the other possible definitions in K.S.A. 59-501 applied. As long as Heather’s claim to Sam’s estate was based on her being Sam’s biological child, the genetic connection between Heather and Sam was in issue. Under this scenario, Sandra correctly argues that Ross is inapplicable to an intestate claim based on the biological definition of child because genetic testing is the only conclusive means of establishing biological parentage.
However, K.S.A. 59-501 does not limit the definition of children to biological offspring. Rather, the definition of children is much broader, requiring the probate court to treat any person as a child if such person’s parentage is or has been determined under the Kansas Parentage Act. K.S.A. 59-501(a). Heather invoked the Kansas Parentage Act as the basis for her inheritance claim under K.S.A. 59-501 when she filed her petition to determine paternity under the Act. We note that K.S.A. 59-501(a) does not require a determination under the Kansas Parentage Act to occur prior to a probate proceeding. Rather, the legislature acknowledged that proceedings under the Kansas Parentage Act may occur simultaneously with probate proceedings by incorporating the phrase “whose parentage is or has been determined” in the definition of children. See K.S.A. 59-501(a).
The probate code treats a determination of parentage pursuant to the Kansas Parentage Act as conclusive. See K.S.A. 59-501(a). Once paternity is established in accordance with the Kansas Parentage Act, the probate code provides no mechanism for challenging that paternity determination. Because Heather eliminated the issue of biological parentage in the probate action by filing her paternity action and the probate code does not authorize genetic testing to challenge a paternity determination under the Kansas Parentage Act, there is no statutory basis for Sandra’s motion for genetic testing in the probate case. Although Sandra correctly argues that Ross does not apply to an order for genetic testing under die probate code, the district court properly denied Sandra’s motion because there was no statutory basis for the motion.
Paternity action
Pursuant to the Kansas Parentage Act, a man is presumed to be the father of a child born while the man is married to the child’s mother. K.S.A. 38-1114(a)(1). A child or a person on behalf of the child may file an action at any time to establish paternity when there is a presumption of paternity. K.S.A. 38-1115(a)(1). However, a presumption based on genetic test results must relate to genetic testing that occurs prior to the filing of the paternity action. See K.S.A. 38-1114(a)(5); In re Estate of Foley, 22 Kan. App. 2d 959, 925 P.2d 449 (1996). The child, die child’s mother, and the presumptive father are parties to the paternity action. K.S.A. 38-1117(a). K.S.A. 38-1118(a) requires the district court to order genetic testing when any party requests genetic testing. However, the Ross court tempered the statutory requirement of K.S.A. 38-1118(a) by requiring the district court to conduct a hearing prior to issuing an order for genetic testing to determine whether genetic testing is in the best interests of the child. Ross, 245 Kan. at 602. Since Ross was decided in 1989, the legislature has not amended the statute to reverse the hmitation imposed by Ross.
In Ross, the child, R.A.R., was born during the marriage of his mother, Sylvia, to Robert. When Sylvia and Robert divorced, Sylvia alleged that Robert was R.A.R.’s father. Robert was granted joint custody and ordered to pay child support. Two years later, Sylvia filed a petition pursuant to the Kansas Parentage Act to establish Charles as R.A.R.’s biological father. Sylvia wanted Charles to be named R.A.R.’s father so he could consent to R.A.R.’s adoption by Sylvia’s current husband. To establish Charles as R.A.R.’s biological parent, Sylvia requested an order compelling all of the parties to submit to genetic testing. The district court ordered the genetic testing pursuant to K.S.A. 38-1118(a) and admitted the results over Robert’s and Charles’s objections. Based on the results of the ge netic testing, the district court determined that Charles was R.A.R.’s biological father and ordered him to pay child support. Nevertheless, the district court determined that it was in RA.R.’s best interest to maintain his relationship with Robert, so the court continued the joint custody arrangement between Sylvia and Robert.
The Ross court reversed the district court’s order for genetic testing and the order establishing Charles as R.A.R.’s biological father. 245 Kan. at 602. Noting that “the ancient presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law,” the Ross court held that the district court must conduct a hearing to determine whether it is in die child’s best interests to perform genetic testing and determine the child’s biological paternity as opposed to his presumptive paternity. 245 Kan. at 596, 602.
Sandra argues that Ross only applies to minor children. However, in Ferguson v. Winston, 27 Kan. App. 2d 34, 35, 36, 996 P.2d 841 (2000), the Court of Appeals applied Ross to a paternity proceeding involving an adult child. In Ferguson, the child, Michael, was born to Debra while she was living with Dale. Debra and Dale married after Michael’s birth, and Debra recognized Dale as Michael’s father for a period of 14 years. During Debra and Dale’s divorce proceedings, Debra asserted for the first time that Dale was not Michael’s biological father. In response, Dale filed a paternity action pursuant to the Kansas Parentage Act, seeking a determination that Michael was his son. Michael became an adult during the pendency of the paternity proceedings but was not made a party to the action and was not represented by a guardian ad litem. Without conducting a Ross hearing, the district court ordered genetic testing and summarily determined that Dale was not Michael’s biological father.
The Ferguson court reversed the district court’s decision, concluding that the district court committed both legal and procedural errors. 27 Kan. App. 2d at 36. The Ferguson court determined that Dale is Michael’s presumptive father based on K.S.A. 38-1114. Because of tire presumption that Michael is Dale’s son, the Ferguson court held that the district court erroneously considered ge netic test results obtained without the benefit of a Ross hearing to determine whether it was in Michael’s best interests to shift paternity from the presumptive father to the biological father. 27 Kan. App. 2d at 36-37. The Ferguson court also held that the district court erred when it treated the genetic test results as conclusive on the issue of paternity, stating:
“If DNA evidence is conclusive on the issue of paternity, we could simply do away with the judicial process in paternity cases. If the DNA test is conclusive, the paternity of children will be left for resolution by the scientists, and judges will become superfluous in that regard. We do not perceive the law to require or to recommend that result, and we hold that DNA evidence is not conclusive on the issue of paternity. On remand, if the trial court decides the DNA evidence is in Michael’s best interests, it must still consider any other evidence offered before making a final decision.” 27 Kan. App. 2d at 38.
The Ferguson court further concluded that the district court violated Michael’s constitutional right to due process by proceeding without joining Michael as a party or protecting his interests by appointing a guardian ad litem on his behalf. 27 Kan. App. 2d at 38-39. Ordering that Michael be joined as a party and represented by counsel on remand, the Ferguson court suggested that the district court and the parties give “special attention” to Michael’s wishes. 27 Kan. App. 2d at 40.
Sandra attempts to distinguish Ferguson by arguing that it did not involve a question of intestate succession. Sandra further argues that Ferguson does not apply because, unlike Michael, Heather was an adult when the action was filed. Sandra also points to Heather’s representation by counsel and asserts that Heather waived her right to a Ross hearing when she filed the paternity action. Sandra focuses on the following excerpt from Ferguson:
“The facts which underlie this action give it a somewhat bizarre tilt and certainly create questions as to the relevance of the entire proceedings. To begin with, there is an obvious question as to just why tins is being litigated. Michael became an adult during the litigation, and it is apparent there were and are no issues of child custody or child support being litigated." 27 Kan. App. 2d at 35.
Sandra’s attempt to factually distinguish Ferguson overlooks the legal foundation of the Ferguson court’s holding. Both the Ross and Ferguson courts were concerned with the purpose for deter mining a child’s biological paternity when there was already a presumptive father. Ross, 245 Kan. at 601; Ferguson, 27 Kan. App. 2d at 35-36. Like the Ross court, the Ferguson court focused on the legal presumption of paternity that existed prior to the commencement of the paternity action. Ross, 245 Kan. at 596, 602; Ferguson, 27 Kan. App. 2d at 36. The Ferguson court expressed this focus by stating that the “relevance, in a legal sense, of who is Michael’s biological father is questionable.” 27 Kan. App. 2d at 35-36.
We believe the Ross and Ferguson analysis applies in this case. The relevance of who is Heather’s biological father is questionable given the strong presumption that Sam was her father. The presumption of Sam’s paternity existed for many years prior to the filing of this paternity action. Although the Ferguson court found the facts in that case were “somewhat bizarre” because it was litigated even though there were no issues regarding support or custody and the child had become an adult, this case demonstrates a set of circumstances in which an adult child may be forced to establish paternity pursuant to the Kansas Parentage Act even though a strong presumption of paternity already exists. Ross and Ferguson support the protection of presumptive paternity over biological paternity when it is in the child’s best interests. We believe that protection extends to both minor and adult children.
Extending Ross to adult children accomplishes the legislature’s intent as stated in the plain language of the statutory scheme. K.S.A. 38-1114 establishes six presumptions of paternity. If two presumptions conflict, the court must determine which presumption is founded on “weightier considerations of policy and logic, including the best interests of the child” before deciding which presumption controls. K.S.A. 38-1114(c). If any one of the presumptions arise, that presumption is a sufficient basis for an order requiring a man to support a child. K.S.A. 38-1114(e).
Without a Ross hearing to determine whether genetic testing is in the child’s best interests, genetic testing becomes conclusive on the issue of paternity regardless of whether any other presumptions apply. As a result, denying adult children the protection of a Ross hearing is tantamount to rewriting the Kansas Parentage Act because it eliminates all of the other paternal presumptions besides genetic testing. If the legislature intended for genetic testing to be conclusive for determining the paternity of an adult child, it could have included language limiting the remaining presumptions to minor children. However, the Kansas Parentage Act does not include such limiting language in the statutory scheme. See K.S.A. 38-1114. The Ferguson court recognized the legislature’s intent to treat all children the same, regardless of age, when it specifically held that genetic testing is not conclusive on the issue of paternity and ordered tire district court to consider all of the evidence available before deciding Michael’s paternity if it determined that genetic testing was in Michael’s best interests. Ferguson, 27 Kan. App. 2d at 38.
Extending Ross to adult children also furthers the purpose of the Kansas Parentage Act by protecting an adult child’s right to inherit from his or her presumptive parent. The Ross court noted that the purpose of the Kansas Parentage Act is to provide for the “equal, beneficial treatment of children.” 245 Kan. at 597. The Kansas Parentage Act requires courts to act in tire child’s best interests “when imposing legal obligations or conferring legal rights” on the parent/child relationship. 245 Kan. at 597. The Ross court construed the Kansas Parentage Act to recognize that “eveiy child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his parentage.” 245 Kan. at 597. While the court does not need to protect a child’s right to support after emancipation, the need to protect a child’s right to inherit, the child’s family bonds, and the accurate identification of die child’s parentage are not limited to the child’s period of minority.
Finally, extending Ross to adult children recognizes the public policy that paternity is both broader and deeper than genetics. The recognition of family identity extends beyond the years of a child’s minority. Eveiy adult continues to be someone’s son or daughter for purposes of family identification, family bonding, and inheritance. The parental relationship continues to exist regardless of whether the bonds are close, strained, or nonexistent. The presumptions of paternity set forth in K.S.A. 38-1114(a) were instituted to protect and maintain the concept of family identity. In truding upon this concept can cause emotional damage to children of all ages, not only to minors. See Ross, 245 Kan. at 602 (noting that “[t]he shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child” [emphasis added]); Ferguson, 27 Kan. App. 2d at 39 (concluding that children have a fundamental liberty interest in maintaining familial relationships).
This case illustrates the importance of protecting the presumption of paternity. Although the ultimate issue in this case involves the division of a decedent’s estate, the resolution of that issue turns on the legal designation of paternity for a child born with a presumptive father. Heather was born during Sam and Deloris’ marriage. Sam’s name appears on Heather’s birth certificate. Heather was identified with Sam’s familial name and included in the membership of Sam’s family. Although her relationship with Sam was externally distant, she always believed he was her father. Sandra is attempting to vitiate a legal parent and child relationship that had not been questioned while Sam was alive. Requiring the district court to conduct genetic testing without determining whether it is in Heather’s best interests would allow Sandra to accomplish after Sam’s death that which could not be accomplished during Sam’s lifetime. We cannot support a policy that gives anyone an opportunity to legally undermine a child’s lifelong understanding of his or her parental heritage after his or her presumptive parents are deceased.
Sandra relies on Tedford v. Gregory, 125 N.M. 206, 959 P.2d 540 (Ct. App. 1998), for the proposition that courts should only consider the best interests of the child when the action involves a minor. In Tedford, an adult child filed a paternity action against her purported natural father even though the adult child had a presumptive father who had raised and supported her since her birth. The adult child filed the action seeking retroactive child support from tire date of her birth. After ordering genetic testing, which revealed that the purported natural father was the adult child’s biological father, the district court granted the adult child’s paternity action and awarded her $50,000 in retroactive child support. Noting that case law in other jurisdictions was limited to ac tions involving minor children, the Tedford court upheld the district court’s ruling, concluding that the best interest of the child standard did not apply to adult children in paternity actions. 125 N.M. at 211. The Tedford court reasoned that the putative father was not the proper party to assert the best interest of the child standard because the standard could not be invoiced on behalf of someone other than the child. 125 N.M. at 212.
Applying the Tedford court’s reasoning to this case does not support Sandra’s argument for two reasons. First, Tedford, which is not controlling precedent, was decided before Ferguson, which is controlling precedent. Second, Heather invoked the application of the best interests standard. Under the Tedford court’s reasoning, Heather is tire proper party to invoke the standard. Tedford does not persuade us to allow anyone to bypass the best-interests standard simply because the child has reached the age of majority.
We cannot subvert the presumption of paternity in favor of biology without requiring a court to consider whether it is in the child’s best interests regardless of the child’s age. Interpretation of the relevant statutes, controlling precedent, and public policy support the district court’s decision to hold a Ross hearing in Heather’s paternity action. Sandra’s appeal is limited to the legal application of Ross to an adult child’s paternity action in the context of a probate case. Sandra does not contest tire district court’s determination that it is not in Heather’s best interests to conduct genetic testing. Thus, we affirm the district court’s thorough, well-reasoned memorandum decision denying Sandra’s motions for genetic testing in both the probate and paternity cases and remand the matter for further proceedings.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Celesta Baska brought an action for personal injuries sustained when she attempted to stop a fight by stepping between the defendants, Harry Scherzer, Jr., and Calvin Madrigal. Her action was brought after the expiration of a year from her injury but within 2 years from the date of her injury. After some discovery, the trial court granted the defendants’ motions for summaiy judgment and dismissed Baska’s action based upon its conclusion that her action was governed by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The Court of Appeals reversed, holding that Baska’s action sounded in negligence, and thus was subject to the 2-year statute of limitations under K.S.A. 60-513(a)(4), primarily because she was unintentionally struck by defendants. We granted the defendants’ petitions for review, and now we reverse the decision of the Court of Appeals and affirm the district court.
Facts
Baslca had given her daughter Ashley, a high school senior, permission to organize a “scavenger hunt” with some friends. The scavenger hunt began at the Baskas’ house around 8:30 p.m. and was to end with the participants returning to the house by midnight. When people returned, a number of them remained at the Baskas’ home for a “party.”
Scherzer and Madrigal were both at the party. Madrigal had participated in the scavenger hunt; Scherzer remained at the house while the hunt ensued, playing cards with Baska. He then went outside as people began to return to the house.
Around midnight, an altercation broke out between Scherzer and Madrigal. Madrigal approached Scherzer from behind, and the two boys began to push each other and throw punches at one another. Upon being informed of the fight by one of her daughter’s friends, Baska yelled at the boys to stop in order to break up the fight. When they continued to fight, Baska placed herself between the boys and was punched in the face, losing several teeth and receiving injuries to her neck and jaw. Baska is certain that Scherzer hit her in the face; she also believes that Madrigal punched her in the back of the head.
On April 8, 2004, just short of 2 years after the incident, Baska filed suit against Madrigal and Scherzer, alleging that she was injured by the defendants’ negligence. In her petition she alleged:
“5. That die defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other participant in the fight.
“6. That the sole and proximate cause of plaintiff s injuries was tíre negligence and carelessness of the defendants.”
Both defendants filed motions to dismiss based on tire statute of limitations, alleging that the suit was barred by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The district court originally granted the motions; however, the court later granted Baska’s motion to reconsider and allowed the parties to pursue additional discovery.
Depositions were taken of Baska, Madrigal, and Scherzer. Both Madrigal and Scherzer testified in their depositions that they did not intend to strike or injure Baska in any way. Instead, each defendant testified that it was his intention in throwing the punches to strike and injure the other defendant. In her deposition, Baska’s counsel asked her whether she “would anticipate that the intended recipient of [Scherzer’s] blow was Mr. Madrigal and not [herself].” Baska answered, “Yes, sir.”
After depositions, Madrigal and Scherzer filed motions for summary judgment again based on the 1-year statute of limitations for assault and battery. In its decision after conducting a hearing, the court concluded that the doctrine of transferred intent applied and that Baska’s cause of action was an action for assault and battery, not negligence. The court explained:
“Well, the plaintiffs theory, as I understand it, is that in trying to bréale up this altercation that she was injured by the negligent acts of the two participants who were defending themselves, each of them claiming self defense, and in a negligent manner.
“The depositions of both of the combatants having been taken now, it appears to me that they were striking at each other. Those are intentional acts. The doctrine of transferred intent has been the law in Kansas probably since this place became a state because I think it came straight out of the common law, and it’s certainly been the law since I was in law school 30 years ago.
“I don’t see anything in [the plaintiff s] citations . . . that the State of Kansas has gone away from that. So I think that in each of these two cases, each — as to each defendant, motion for summary judgment must be granted on the basis that these are intentional acts and the doctrine transferred intent would apply, and they should have been filed within the one year of statute of limitations.”
Court of Appeals
The Court of Appeals reversed in an unpublished opinion, Baska v. Scherzer, Case No. 94,879, filed August 4, 2006. Although the court did not dispute the district court’s statement of the facts, it disagreed with the district court’s conclusion. The Court of Appeals noted that “[t]he key distinction between assault and battery on one hand, and negligence on the other, is that assault and battery are both intentional torts and negligence is unintentional. [Citation omitted.]” Slip op. at 5. The court ultimately held that the plaintiff s action in this case sounded in negligence, because the plaintiff was “unintentionally struck” by the defendants. Slip op. at 14.
The Court of Appeals reviewed a number of Kansas decisions as well as a number of cases from other jurisdictions, concluding that “the law on this issue is unclear.” Slip op. at 6-13 (citing Harris v. Richards, 254 Kan. 549, 867 P.2d 325 [1994]; Hackenberger v. Travelers Mutual Cas. Co., 144 Kan. 607, 62 P.2d 545 [1936]; Byrum v. Edwards, 66 Kan. 96, 71 Pac. 250 [1903]; Laurent v. Bernier, 1 Kan. *428 [1863]; and Vetter v. Morgan, 22 Kan. App. 2d 1, 913 P.2d 1200, rev. denied 257 Kan. 1096 [1995]). The court noted that “Laurent, Byrum, and Hackenberger tend to suggest that Baska’s only cause of action is assault and battery because Madrigal and Scherzer acted intentionally.” Slip op. at 12. Nevertheless, it noted that “[although these cases have not been overruled, they appear inconsistent with Vetter and the dicta in Harris.” Slip op. at 12. In light of tírese inconsistencies, the court explained its synthesis of tírese decisions as follows:
“The law on this issue appears to have shifted from the earlier position that an intentional act of violence, which has an unintentional effect on a third party, must be viewed as assault and batteiy for purposes of application of the statute of limitations. . . .
“If we can take guidance from these cases, it appears that a specific intent to perform a certain act, such as shooting someone, even if there is a mistaken identity, will generally lead to a finding that the 1-year limitation on assault and batteiy is applied.
“However, threatening actions which lead to unanticipated results may well be viewed as negligence as long as the plaintiff is not purposefully and intentionally struck by the defendant.
“We have a blending in this case, where Baska was probably unintentionally struck during a fight between Scherzer and Madrigal. AMiough the law may not be clear, we find the rationale in Vetter should be used. We, therefore, reverse the district court’s finding that the 1-year statute of limitations applied and remand for further proceedings.” Slip op. at 13-15.
Both defendants, Madrigal and Scherzer, filed petitions for review, claiming that the Court of Appeals misstated the applicable law. In particular, the defendants argue that tire Court of Appeals, without any discussion thereof, eviscerated the doctrine of transferred intent by holding a negligence tort action lies for an assault and battery when the injured party is not the intended victim.
The sole issue we must resolve is whether plaintiff s action is governed by the 1-year statute of limitations for assault and battery under K.S.A. 60-514(b) or by the 2-year statute of limitations for negligence under K.S.A. 60-513(a)(4). The facts are not in dispute, and the answer to this question is one of law.
Standard of Review
Baska appeals from the district court’s grant of summary judgment on the basis that she filed her claim after the 1-year statute of Mmitations for assault and battery had run.
“ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, togedier with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Where the facts are undisputed, appellate review of an order granting summary judgment is de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
Discussion and Analysis
While the plaintiff alleges negligence in her petition, calling for the application of a 2-year statute of limitations, this court is not bound by the claims as set forth in the petition. Instead, “ ‘[t]he law of this state is realistic. Substance prevails over form.’ ” Murray v. Modoc State Bank, 181 Kan. 642, 647, 313 P.2d 304 (1957) (quoting Travis v. Bishoff, 143 Kan. 283, 285, 54 P.2d 955 [1936]). The determinative question is whether the substance of plaintiff s claims against the defendants sounds in assault and battery or negligence.
K.S.A. 60-514(b) provides that civil actions for assault and battery must be initiated within 1 year of the date of the incident giving rise to the action. Under K.S.A. 60-513(a)(4), negligence claims must be brought within 2 years. The fight between defendants that resulted in the plaintiff s injuries occurred on April 13, 2002. Baska filed her action on April 8, 2004. The outcome of this case depends upon whether Baska’s claims are in substance based upon intentional or negligent actions of the defendants. If intentional, Baska’s claims are barred by the 1-year statute of limitations; if negligent, her claims are not barred and are governed by dre 2-year statute of limitations.
Assault is defined in this state as “an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” PIK Civ. 3d 127.01; see State v. Hazen, 160 Kan. 733, 740-41, 165 P.2d 234 (1946). Battery is defined as “the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive.” PIK Civ. 3d 127.02; see Laurent, 1 Kan. at “431. The gravamen of a civil assault and battery is grounded upon the actor’s intention to inflict injury. Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366, 388 P.2d 824 (1964).
In order to state a claim for negligence, a plaintiff must show “ ‘(1) [t]he existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant.’ ” Murray, 181 Kan. at 646 (quoting McMillen v. Summunduwot Lodge, 143 Kan. 502, 509, 54 P.2d 985 [1936]). Put another way, '[n]egligence is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred.’ ” ’ ” Murray, 181 Kan. at 646 (quoting McMillen, 143 Kan. at 509, and 45 C.J. 631).
As these definitions make clear, “the fundamental distinction between assault and battery, on the one hand, and negligence, on the other, is that the former is intentional and the latter is unintentional. [Citations omitted.]” Murray, 181 Kan. at 646; see Baska, slip op. at 5. The district court held that Baska’s cause of action was truly one for assault and battery because the defendants intended to strike one another when they were fighting. The Court of Appeals, however, found that where Baska was “unintentionally struck” by the defendants, her cause of action sounded in negligence. Baska, slip op. at 15. The defendants intended to harm each other, but as Baska claims in her petition, “the defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other participant in the fight.” (Emphasis added.)
The above situation is not unfamiliar in the law of intentional torts. The Restatement (Second) of Torts and this court’s decisions discuss this situation as being contemplated by the long-standing doctrine of transferred intent. The Restatement explains that the term “intent,” as it is used in the law of torts, “denotefs] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Restatement (Second) of Torts § 8A (1964). The comments to this section state that
“[a]ll consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by tire law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less tiran substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness .... As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence . . . .” Restatement (Second) of Torts § 8A, comment b.
This court has similarly explained that an actor will be held liable for an intentional tort if the plaintiff s injuries were the “natural and probable consequence of [the defendant’s] intended actions.” Harris, 254 Kan. at 554. However, an action need not be directed at the plaintiff in order to give rise to liability for intentional torts (such as assault or battery). Rather, the doctrine of transferred intent states that “[t]he tort of battery or of assault and battery may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike or hit.” 6 Am. Jur. 2d, Assault and Battery § 99, p. 83.
The comments to the Restatement (Second) of Torts, in describing the intent necessary for battery, explain:
“The intention which is necessary to malee the actor hable [for civil battery] is not necessarily an intention to cause a harmful or offensive contact or an apprehension of such contact to the plaintiff himself or otherwise to cause him bodily harm. It is enough that the actor intends to produce such an effect «pon some other person and that his act so intended is the legal cause of a harmful contact to the other. It is not necessary that tire actor know or have reason even to suspect that the other is in the vicinity of the third person whom the actor intends to affect and, therefore, that he should recognize that his act, though directed against the third person, involves a risk of causing bodily harm to the other so that the act would be negligent toward him.” (Emphasis added.) Restatement (Second) of Torts § 16, comment b (1964).
Similarly, the comments to the section describing the intent required to state an action for assault state that “[i]n order to become liable [for civil assault], it is necessary that the actor intend to inflict a harmful or offensive bodily contact upon the other or a third person or put him [her] in apprehension of such contact.” (Emphasis added.) Restatement (Second) of Torts § 21, comment f (1964).
This court’s recognition of the transferred intent principle dates to Laurent, 1 Kan. *428, which was decided during the Civil War. In that case, the plaintiff sued the defendant in negligence, alleging that he had been injured when the defendant negligently shot him. This court determined that the plaintiff s claim was barred by the 1-year statue of limitations for battery, because the action described (shooting someone) was a batteiy. 1 Kan. at *432. The court cited a New York decision in Bullock v. Babcock, 3 Wend. 391 (1829), and referred to “several English authorities” that supported its conclusion that “the wounding charged in the case under consideration may properly be described as a battery, and the case, therefore, comes within the provisions . . . limiting the time for commencing action to one year.” 1 Kan. at *431-32.
This conclusion was reiterated in Byrum, 66 Kan. 96. There, both the plaintiff and an undersheriff were searching for the perpetrator of a robbery in Oswego. When the two searchers met, each mistakenly thought the other was the robber. Both fired shots, and tire undersheriff s shot hit the plaintiff. The plaintiff then sued the sheriff “to recover damages for the injuries sustained because of tire negligent shooting of him by his under-sheriff.” 66 Kan. at 97. In a veiy short opinion, this court cited Laurent and held that the action was barred by the 1-year statute of limitations. 66 Kan. at 97. This court later summarized its opinion in Byrum as follows: “It is well to note tire shooting in the Byrum case was in fact intentional. The undersheriff intended to shoot and he did shoot. True, the injured party was not the robber as the undersheriff drought, but the act of shooting was nevertheless intentional.” Hackenberger, 144 Kan. at 609.
These two early opinions were discussed in detail by this court in Hackenberger, wherein the plaintiff was a passenger in the back of a truck and was sitting with his legs over the side. A cattle truck coming the other direction was passing another car as it was speeding around a curve; the cattle truck crowded the plaintiff s truck off of the highway and came into contact with the plaintiff s legs, causing him injury. The plaintiff filed suit in negligence. The defendant, however, claimed that the petition actually stated an action for batteiy and thus was barred by the 1-year statute of limitations. Citing Laurent and Byrum, this court clarified that had the driver of tire cattle truck intended to hit the truck on which the plaintiff was riding, the action should have been dismissed. 144 Kan. at 609-10. However, because “[t]he petition is not susceptible of an interpretation that [the driver of the cattle truck] intentionally inflicted the injury,” the court held that the 2-year limitations period for negligence should be applied. 144 Kan. at 611.
Although tire court did not explicitly state that it was applying the doctrine of transferred intent in these early decisions, the outcome of the cases is consistent with the present understanding of transferred intent in tort cases. In Byrum, the officer intended to shoot the robber and mistakenly shot and injured the plaintiff. The court found that the officer s action was intentional and that the 1-year statute of limitations for assault and battery applied. In Hackenberger, the driver of the cattle truck never intended to drive the truck carrying the plaintiff off of the road or to hit anyone. When the truck hit the plaintiff s legs, the plaintiff s action sounded in negligence, and the 2-year statute of limitations was proper.
The Court of Appeals correctly concluded that Laurent, Byrum, and Hackenberger suggested that B as lea’s only cause of action was for assault and battery based upon defendants’ intentional acts. Slip op. at 12. However, the Court of Appeals concluded that it was not bound to follow these earlier decisions in light of “dicta” in Harris and the decision of the Kansas Court of Appeals in Vetter. These two decisions are discussed below, but it must be noted that the Court of Appeals did not discuss the doctrine of transfer in its opinion, a doctrine implicitly applied in Kansas civil law and explicitly applied in criminal law. See Laurent, 1 Kan. at *431; Byrum, 66 Kan. at 96; State v. Stringfield, 4 Kan. App. 2d 559, 561, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980).
In the Harris case, the plaintiff was injured when Douglas Hawley fired a shotgun through the window of the plaintiff s pickup truck, killing Hawley’s ex-wife and injuring Harris. Hawley then killed himself. Harris brought a negligence action against Hawley’s estate to recover damages, asserting that Hawley had only intended to shoot his ex-wife and that his injuries arose out of Hawley’s negligence. The key issue in Harris was whether the act giving rise to liability was intentional, and thus excluded from coverage under the actor’s homeowner’s insurance policy. The trial court ruled that the plaintiff s claim against the estate was limited to any applicable insurance coverage. The court then granted the estate’s motion for summary judgment on the basis that tire shooting was not a covered occurrence under Hawley’s parent’s homeowner’s policy and that Plawley’s acts were excluded under the policy because they were intentional. This court affirmed. 254 Kan. at 556. Our decision in Harris is in this way consistent with our earlier decisions in Laurent and Byrum, based on the intentional act of Hawley injuring an unintended victim.
However, the Court of Appeals concluded, based upon the following dicta in Harris, that the precedent in Laurent, Byrum, and Hackenberger no longer controlled:
“The Richards [Hawleys’ parents and die administrators of his estate] argued [before the trial court] that the fundamental nature of the underlying tort was that of a battexy rather than negligence. Consequently, they asserted that K.S.A. 60-514(2), the one-year statute of limitations for battery, barred the claim, and they mooed for dismissal. The motion was denied. The Richards cross-appeal the denial of their motion to dismiss.
“Because we have affirmed the trial court’s analysis of the insurance coverage issue, we find it unnecessary to address the cross-appeal other than to indicate we find no error in the trial court’s ruling on the statute of hmitations issue.” (Emphasis added.) 254 Kan. at 550-51.
The Court of Appeals found that this language in Harris was “inconsistent” with this court’s previous decisions in Laurent, Byrum, and Hackenberger. It based its decision upon the erroneous conclusion that the trial court denied a summary judgment motion requesting a 1-year limitation period, which “the Kansas Supreme Court, in dicta, found not to be in error. [Citation omitted.]” Baska, slip op. at 13-14. However, the dicta in Harris involved an appeal from a motion to dismiss, not a motion for summary judgment. A motion to dismiss must be based solely on the petition. K.S.A. 60-212; Gardner v. McDowell, 202 Kan. 705, 706, 451 P.2d 501 (1969). Thus, based upon the petition only in Harris, this court approved the actions of the trial court in its conclusion not to dismiss because the petition in Harris was not invalid on its face with regard to the statute of limitations.
Only after discovery in Harris did the trial court grant the defendants’ motion for summary judgment, finding that there was no question that Hawley had intended to strike his wife and instead struck the plaintiff. At this point, the decision of this court in affirming the trial court’s grant of summary judgment was entirely consistent with our previous decisions in Laurent, Byrum, and Hackenberger. The dicta in Harris was misunderstood by the Court of Appeals and provides no support for its conclusion that it was not bound to follow earlier decisions of this court. Correctly understood and applied, the Harris dicta actually supports the district court’s grant of summary judgment in this case based upon the conclusion that the defendants’ actions were intentional.
The Court of Appeals cited this court’s decision in Murray, 181 Kan. 642, as “characterizing] a blatant assault and battery as negligence. [Citation omitted.]” Baska, slip op. at 14. The court noted that Murray was “based on a puzzling pleading ruling.” Slip op. at 14. Again, tire Court of Appeals’ characterization of Murray is incorrect. Although die facts giving rise to that case involved injuries arising from a physical altercation with a bank cashier, the case itself was based on the bank’s negligent hiring of the cashier in question. 181 Kan. at 644-45. This court explicitly stated that the action was not brought under respondeat superior, which would make the principal responsible for the acts of the servant. 181 Kan. at 649. The Murray decision based upon a negligent hiring has no application to the case we now consider.
The Court of Appeals’ decision below relied most heavily on its previous decision in Vetter, 22 Kan. App. 2d 1. In that case, the plaintiff s van ran off of the road after the defendant, a passenger in another vehicle, made verbal threats to the plaintiff and the car in which the defendant was riding veered at the plaintiff s van. The defendant claimed that he “did not intend to scare, upset, or harm Vetter,” but instead was attempting to amuse the other passengers in tire car with him. 22 Kan. App. 2d at 2. The plaintiff brought a number of claims against the defendant, including a claim for negligence. The trial court dismissed the negligence claim as a matter of law, finding that the defendant’s actions were intentional.
The Court of Appeals held that the trial court erred in dismissing tire plaintiffs negligence claim. It explained:
“A negligence claim may be based on intentional rude pranks and horseplay that cause unintended injuiy. [Citation omitted.] Actions that are not intended to, but do cause fear of harm may be negligence. [Citation omitted.] Moreover, a negligence claim may be based on actions tire defendant intends to affect, or should realize are likely to affect, the conduct of another in a manner that creates an unreasonable risk of harm to another. . . .
“. . . Although Morgan [the defendant] said his only intent was to amuse his friends, and he denied that he intended to frighten or harm Vetter, she testified that she was very, veiy frightened.’ The record supports a reasonable inference that Morgan should have realized Vetter would be frightened and that it was foreseeable that her fright would create a risk of harm.” 22 Kan. App. 2d at 5-6.
The Vetter court then concluded that the facts, when viewed in the light most favorable to the plaintiff, might be read to show that the defendant’s actions pi'oximately caused Vetter’s injuries. Thus, the court held that plaintiff s negligence claim should be brought before a jury-, and so it was error for the trial court to dismiss the action. 22 Kan. App. 2d at 6-7.
The Court of Appeals found that Vetter stood for the proposition that a negligence action may be brought to recover from “the unintended results of the intentional acts.” Baska, slip op. at 14. The court then used this rationale to hold that the facts in this case supported Baska’s negligence claim, since defendants Madrigal and Scherzer did not intend to strike her.
Contrary to the Court of Appeals’ conclusion, Vetter does not provide support for Baska’s negligence claim in the case we now consider. There was no question in Vetter that the defendant did not intend to frighten the plaintiff; instead, the Vetter court made clear that his actions were negligent — although they were not intended to cause injury, they created a foreseeable risk of harm. See Vetter, 22 Kan. App. 2d at 5-6. The facts in Vetter contrast sharply with the facts in this case. Vetter engaged in a prank but did not intend to frighten the plaintiff. Defendants Madrigal and Scherzer engaged in a fight, intending to harm one another. As the comment to the Restatement explains: “All consequences which the actor desires to bring about are intended.” Restatement (Second) of Torts § 8A, comment b. Vetter did not intend to frighten the plaintiff, but it was foreseeable that his intentional actions would frighten the plaintiff. Defendants Madrigal and Scherzer intended to punch someone (the other defendant) and did punch someone (the plaintiff). Although their actions were not specifically directed at the plaintiff, their punches were intentional acts and did injure Baska.
The exact scenario presented in this case was described in the Corpus Juris Secondum as a “text book” example of transferred intent:
“ ‘It is not necessary, to constitute an assault and battery, that there be a specific intention of striking or otherwise injuring plaintiff. If defendant unlawfully aims at one person and hits another, [under the doctrine of transferred intent] he is guilty of assault and battery on the person hit, the injury being the direct, natural, and probable consequence of the wrongful act. So, if one of two persons fighting unintentionally strikes a third, the person so striking is liable in an action by the third person for an assault and battery.’ ” (Emphasis added.) Morrow v. Flores, 225 S.W.2d 621, 624 (Tex. Civ. App. 1949, reh. denied January 6, 1950) (quoting 6 C.J.S., Assault and Battery § 10[2], p. 804).
The decision of the Court of Appeals in this case holds that for a tort to be considered intentional, it must cause injury to the person at whom it was directed. In other words, a defendant must have a specific intent to commit the battery on the plaintiff to be liable to the plaintiff for battery; otherwise the defendant may be liable to the plaintiff in negligence. Its decision is contrary to tire law of Kansas expressed in Laurent, Byrum, and Hackenberger, and to the provisions regarding transferred intent included in the Restatement (Second) of Torts and other authorities.
The defendants’ acts of throwing punches in this case were intentional actions. Each defendant intended to strike at tire other in order to cause harm. The defendants intended to punch, and they did punch. The fact that the punches in question hit the plaintiff rather than the defendants is immaterial to the analysis. Because the defendants’ actions were intentional, the “substance” of Baska’s action is one for assault and battery. Failure to initiate her action within 1 year of the fight bars her action by reason of die 1-year statute of limitations in K.S.A. 60-514(b).
The Court of Appeals stated that “[ojther courts have suggested a similar approach.” Baska, slip op. at 11. However, the court cited only one opinion from the Maryland Court of Appeals that purportedly supported its position; in fact, the Baska decisión cited seven opinions of other jurisdictions which held under such circumstances that the statute of limitations for assault and battery applied. See slip op. at 11-12. Moreover, the Maiyland case cited by the Court of Appeals, Ghassemieh v. Schafer, 52 Md. App. 31, 447 A.2d 84, cert. denied 294 Md. 543 (1982), fails to support its decision in this case.
In Ghassemieh, a teacher brought claims for both battery and negligence against a student for injuries the teacher received when the student pulled the chair out from under her. The Maryland court held that the plaintiff could bring her negligence claim even when the act of pulling the chair out from under her was intentional. The court explained: “We see no reason why an intentional act that produces unintended consequences cannot be a foundation for a negligence action.” 52 Md. App. at 42. All agreed the defendant did not intend to injure the plaintiff with the prank. The court noted that “an intentional act — the pulling away of the chair — had two possible consequences: the intended one of embarrassment and the unintended one of injury.” (Emphasis added.) 52 Md. App. at 42-43. However, the court found that because the plaintiff had failed to request a negligence instruction, she could not appeal the verdict for the defendant on the negligence claim. 52 Md. App. at 43.
The language cited in Ghassemieh, though inconsequential to its holding in light of the plaintiff s failure to request an instruction on the issue, is quite similar to the Kansas Court of Appeals’ decision in Vetter. The defendants in both cases did not intend to injure the plaintiff with the prank; however, foreseeable injury resulted. Neither Vetter nor Ghassemieh presents a situation that involves transferred intent and neither case provides a reason to reverse the district court’s grant of summary judgment for the defendants in this case.
A similar pleading question was considered by the Ohio Supreme Court in Love v. Port Clinton, 37 Ohio St. 3d 98, 524 N.E.2d 166 (1988). There, Love was arrested and handcuffed by Hickman, a Port Clinton police officer. Love later sued the city, claiming that Hickman used improper police procedures and injured him. The trial court granted Hickman’s motion to dismiss based on the fact that Ohio’s 1-year statute of limitations for assault and battery had run. The Ohio Court of Appeals reversed, finding that “further development of the facts could show that Hickman acted negligently in handcuffing Love. If such could be shown, . . . plaintiff should have received the benefit of the two-year statute of limitations for personal injury.” 37 Ohio St. 3d at 98.
The Ohio Supreme Court reversed, holding that “ ‘courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial.’ ” 37 Ohio St. 3d at 99 (quoting Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 183, 465 N.E.2d 1298 [1984]). The court found that “the specific acts of Officer Hickman — ’subduing’ and 'handcuffing’ — are acts of intentional contact which, unless privileged, constitute a battery.” 37 Ohio St. 3d at 99. “Love’s complaint against Hickman alleges, in substance, an action in battery and is barred by the one-year statute of limitations.” 37 Ohio St. 3d at 100. The court explained:
“Where the essential character of an alleged tort is an intentional, offensive touching, the statute of limitations for assault and battery governs even if the touching is pled as an act of negligence. To hold otherwise would defeat the assault and battery statute of limitations. Nearly any assault and battery can be pled as a claim in negligence. . . . ’[T]hrough clever pleading or by utilizing another theory of law, the assault and battery cannot be [transformed] into another type of action subject to a longer statute of limitations as it would circumvent the statute of limitations for assault and battery to allow that to be done.’” 37 Ohio St. 3d at 99-100 (quoting Grimm v. White, 70 Ohio App. 2d 201, 203, 435 N.E.2d 1140 [1980]).
Conclusion
The undisputed facts in this case show that the defendants intended to strike and cause harm to one another. When Baska intervened and stepped between the two boys, she was “unintentionally” struck by punches intended for the defendants. Had the defendants struck each other and brought suit, they would be liable to one another for assault and battery. Under the doctrine of transferred intent, which has long been recognized in this state, the fact that the defendants struck the plaintiff does not change the fact that their actions (punching) were intentional. Moreover, the fact that Baska’s petition describes her claims against the defendants as actions for negligence does not alter the nature of those claims, which the law recognizes as claims for intentional torts of assault and battery. The trial court correctly granted defendant’s motion for summary judgment.
The Court of Appeals’ decision reversing the district court is reversed, and the decision of the district court is affirmed.
Johnson, J., not participating.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a felony conviction for the possession of heroin under the Uniform Narcotic Drug Act (K. S. A. 65-2501, et seq.).
Defendant, Herman Loudermilk, waived a jury and after a trial and conviction by the court was sentenced to a term of not less than one nor more than ten years pursuant to K. S. A. 1971 Supp. 65-2519a and 21-4501 (d). (He was committed to the custody of the State Director of Penal Institutions.)
The issues on appeal involve the search of defendant’s person and seizure of a packet of heroin found in his billfold.
Carl Arbogast, a detective with the Wichita Police Department, filed an application for a search warrant before a judge of the Common Pleas Court of Sedgwick County pursuant to the provisions of K. S. A. 1971 Supp. 22-2502. The application gave the location and described the building which was the subject of the search. It further recited that Arbogast had probable cause to believe that possession of opium and instrumentalities, and evidence of such offense, were located on the described premises. An affidavit accompanied by the application in which Arbogast recited in detail observations made of persons going to and from the premises during a surveillance which apparently had been conducted prior to the application for a search warrant. Arbogast also recited the details of finding opium on a person who had just left the premises; and further that on numerous occasions he had observed persons, known to him to have been convicted of drug law violations, enter the building described.
A search warrant was issued specifying an undetermined amount of opium and commanding “forthwith to search the person, place, thing or means of conveyance hereinbefore specified for such items holding them to be dealt with according to law.”
On January 26, 1971, Detective Arbogast and other officers executed the search warrant. The inventory and return of the search warrant disclosed various items, which were seized, including a measuring spoon, a “hash pipe,” tablets, capsules, and a tinfoil packet of white powder.
The tinfoil wrapped packet of white powder was found in defendant’s billfold during a search of his person. A Forensic Chemist with the Wichita Police Department performed laboratory tests on the powder and identified it as “diacetylmorphine hydrochloride,” a derivative of opium, commonly called heroin.
Defendant was arrested and charged. He filed a motion to suppress evidence directed at the billfold and heroin. The motion was heard and denied by the administrative judge of the district court.
On May 3, 1971, defendant waived a jury and was tried and convicted for possession of heroin. The billfold and heroin were admitted into evidence over defendant’s objection.
The brief record on appeal discloses that Detective Arbogast testified that when he entered the premises there were three persons present — Everett Anderson, Margaret Redman and defendant. That upon his entry, Arbogast displayed his credentials, the search warrant, stated his business, and advised all present of Miranda. He then proceeded to search Anderson and Loudermilk. When searching Loudermilk he found the wallet containing the heroin. Apparently, Margaret Redman was not searched. Upon the discovery of the tinfoil packet of white powder, Loudermilk was placed under arrest.
In his brief on appeal, defendant argues the heroin was the fruit of an illegal search and thus was erroneously admitted into evidence. He says first, that the search, under the circumstances shown, was not authorized by the statute (K. S. A. 1971 Supp. 22-2509); second, that the search was in violation of the Fourth Amendment to the Constitution of the United States; and further, if the search was authorized by the statute tifien tifie statute is unconstitutional.
K. S. A. 1971 Supp. 22-2509, of the new Kansas code of criminal procedure, provides for the detention and search of persons found on the subject premises in the execution of a search warrant. The statute reads:
“In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time;
“(a) To protect himself from attack, or
“(b) To prevent the disposal or concealment of any things particularly described in the warrant.”
At the outset, it should be noted that the statute only authorizes “reasonable” detention and search of a person under the conditions specified. It logically follows that the statute cannot be said to be in violation of the Fourth Amendment to the Constitution of the United States or Section 15 of the Kansas Bill of Rights. The provisions of the Fourth Amendment prohibit only unreasonable searches and seizures. (State v. Wood, 197 Kan. 241, 416 P. 2d 729; State v. Thomas, 205 Kan. 442, 469 P. 2d 279; and Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 S. Ct. 524.)
We turn then to the question whether the search of defendant and seizure of the billfold and heroin were reasonable within the context of the statute under the facts and circumstances shown to exist.
Notes of the Advisory Committee on Criminal Law Revision, established by the Kansas Judicial Council, disclose that 22-2509, supra, was adopted from the Illinois Revised Statute (S. H. A. ch. 38, §§ 108-8, 108-9). A comparison of the respective Kansas and Illinois statutes reveal no difference of any significance.
The purpose and need for the Illinois statute are set out in the comments of the Illinois Revision Committee and published with the statute. The comments read:
“This section is intended to replace section 699 of chapter 38. The need for a search of the person will not usually arise when the parties are before the judge but rather when the officer first arrives at the place where the goods are to be seized. The protection is given in all cases since the danger to be avoided is always present. In addition, it is clear that the purpose of the warrant would be thwarted were not the officer given the second power found in subsection (b), i.e., to search the person for the things to be seized. The need for this power arises most often in the narcotics cases where disposition is most easily effected.
“ ‘Any person on the premises’ would include the limits prescribed in the warrant itself.
“The committee felt that this section is necessary because it gives the officer a clear outline of his power in executing the warrant and removes doubt from a rather cloudy area of the law. Furthermore, if a judge decides there is probable cause for issuing the warrant in the first place, then this power given to the officer which is parasitic to the warrant should not be considered excessive in the hands of the executing officer.”
Since its enactment in 1963, the reasonableness of the search of a person by officers executing a premises search warrant has been examined by the Illinois Court of Appeals in three cases.
In the first case, People v. Pugh, 69 Ill. App. 2d 312, 217 N. E. 2d 557, (1966), Raymond Pugh and Jessie Pugh were charged in separate indictments with the unlawful possession of narcotic drugs. The indictments were consolidated for trial and both defendants were convicted. The search warrant, which gave rise to the arrest of the Pughs, was issued upon a complaint based upon information given by an informer. The complaint described purchases of drugs in an apartment in a certain building in Chicago under circumstances quite similar to those described by Detectives Arbogast in his affidavit in the case at bar. When the Illinois officers executed the search warrant only Jessie Pugh was present in the apartment. While the officers were searching the apartment, Raymond Pugh rang the doorbell and was admitted. On his entrance Raymond was searched and 42 foil packages containing heroin were removed from his pants pockets. A motion to suppress was denied, and the packets were admitted into evidence at the trial over Raymond’s objection.
On appeal Raymond advanced arguments similar to those made by defendant in the instant case. Raymond argued that since he was not named in the search warrant, his search and subsequent arrest were both without probable cause. In a unanimous decision, the Illinois Court of Appeals held that under the rationale of the statute the search of Raymond was reasonable. In the opinion the court stated:
“We feel that under the same rationale as set forth in the statute the police while engaged in the search had reasonable grounds to search Raymond Pugh as well. We agree with the State that the execution of search warrants in narcotics cases is a risky business at best, and unless the police search all persons present on the premises they endanger both themselves and the search they are making. Furthermore, the entry of the defendant onto premises where the police have reason to believe narcotics are concealed provides further grounds for his search. The United States Constitution prohibits unreasonable searches (US Const amend IV); the search of Raymond Pugh under the circumstances of this case cannot be so classified.” (pp. 315, 316.)
In People v. Harrison, 83 Ill. App. 2d 90, 226 N. E. 2d 418, (1967), a search warrant was issued directing a narcotic search of the person of “James (Doe)” and the entire first floor of a certain building. Here again, the search warrant was issued upon a complaint relating the circumstances of a “purchase” by an informer. A co-defendant, Sarah Crawford, was found in the building when the officers executed the warrant. She was detained as she attempted to leave and found to have been carrying a bag of narcotics.
On appeal the court again rejected arguments similar to those advanced in Pugh and stated in the opinion:
“An officer in the execution of a search warrant ‘may reasonably detain to search any person in the place at the time.’ (c. 38, § 108-9.) Narcotics found on that person are properly received in evidence on a charge of unlawful possession of narcotic drugs. (People v. Pugh, 69 Ill. App. 2d 312, 217 N. E. 2d 557 [1966].) ‘The mere possession of narcotic constitutes substantial evidence to sustain a finding that the possessor knew its nature.’ (People v. Pigrenent, 26 Ill. 2d 224, 227, 186 N. E. 2d 306 (1962).” (pp. 96, 97.)
“Instruments, implements and apparatus” used in illegal gambling were the objects of a premises search of a gasoline service station in People v. Kielczynski, (Ill. App. 2d), 264 N. E. 2d 767 (1970). Defendant Kielczynski was not named in the warrant but was found on the premises. He was searched and slips of paper identified as records of horse race bets were found on his person. In upholding the trial court’s refusal to suppress the evidence the court stated:
. . We conclude that the search of defendant’s person, who was on the premises described in the instant search warrant, was reasonable and necessary for the execution of the warrant. Therefore, the motion to suppress the evidence recovered from this search was properly denied.” (p. 771.)
The state directs our attention to the rule that where a statute of one jurisdiction has been judicially construed before adoption, the Kansas courts will assume that the statute as judicially construed was adopted. This court has recognized and applied the rule on many occasions, recently in Barr, Administratrix v. MacHarg, Administrator, 203 Kan. 612, 455 P. 2d 516; Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135; and Republic Natural Gas Co. v. Axe, 197 Kan. 91, 415 P. 2d 406. The rule is applicable in the instant case, and we are persuaded by the rationale of the Illinois Court in the cases mentioned. However, we are not content to rest our decision solely on this theory.
In the instant case the application and affidavit of Detective Arbogast recited the careful and exhaustive police work done before the issuance of a search warrant was sought. The application and attached affidavit fully established probable cause to believe that opium was concealed on the described premises, or on the persons of those present. Narcotics, such as heroin, are easily concealed on a person and may readily be disposed of. Where, as in this case, probable cause to believe that a drug is kept or concealed on certain described premises is established to the satisfaction of a proper magistrate, the search of a person found on the premises in the execution of a search warrant is not only reasonable, but necessary to secure effective enforcement of the Uniform Narcotic Drug Act.
We have examined the cases cited by defendant and find none that support a conclusion adverse to that which we have reached. Defendant places considerable emphasis on Sibron v. New York, 392 U. S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889. Sibron dealt with a warrantless search situation under the New York “stop-and-frisk” statute. (N. Y. Anno. Code Crim. Proc. § 180-a). The case is not akin to the search warrant execution situation involved in the instant case. Whiteley v. Warden, 401 U. S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, held insufficient a complaint upon which an arrest warrant was issued. Other cases cited deal with probable cause requirements for the issuance of a search warrant. The defendant chai lenges only the execution of the search warrant under K. S. A. 1971 Supp. 22-2509, not the propriety of its issuance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal involves the eligibility of the appellant, Merle P. Zimmerman, for unemployment insurance benefits under the provisions of the Kansas Employment Security Law (K. S. A. 44-701 et seq.), and particularly K. S. A. 44-706.
The appellant was an employee of Lear Jet Industries, Inc. from April 17, 1967, until December of 1968. His last day of work was December 11, 1968. He was absent from work on December 12th, 13th and 16th. On December 17, the employer prepared a termination notice for failure to report to work, and that notice was mailed to the appellant. The next day, December 18, the appellant returned to his place of employment and submitted his letter of resignation. He testified he received the termination notice after he returned home from submitting his letter of resignation.
The appellant filed a claim for unemployment compensation benefits, and the examiner found he left work voluntarily without good cause and as a result was disqualified from receiving unemployment benefits for a period from December 8, 1968, to January 25, 1969. (K. S. A. 44-706.) This determination was delivered to the appellant in person on December 26, 1968.
The claimant filed an appeal in person on January 2, 1969, and a hearing before a referee was held on January 21, 1969. The appellant and one Ed Bishop, an employee of Lear Jet, were present at the hearing. Evidence was introduced and the referee made findings of fact and concluded there was no evidence of significant provocation toward appellant’s supervisor sufficient to justify a finding that he left his employment for good cause. The examiner’s determination was affirmed, and the appellant found disqualified to receive unemployment benefits for the weeks in question.
The appellant timely appealed to the Board of Review of the Employment Security Division, and requested a hearing before the Board in addition to the hearing before the referee. The request was granted, and a hearing officer for the Board heard the evidence in full. The evidence of both hearings was transcribed and submitted to the Board for consideration and decision. Having reviewed the evidence, and on July 11, 1969, the Board unanimously affirmed the decision of the referee entered February 6, 1969, denying the appellant’s claim for benefits.
Thereafter, the appellant timely filed his petition in the district court for judicial review of the Board’s decision of July 11, 1969. He also requested judicial review of an examiner’s determination on March 18, 1969, that he was ineligible for unemployment benefits on a finding the appellant was unavailable for work and made no reasonable effort to obtain employment. The examiner’s determination was not appealed to the referee and was never appealed to the Board of Review. The Board never assumed jurisdiction of the latter determination, nor did it pass on any merits of the matter.
On October 17, 1969, the cause came on for trial before the district court pursuant to K. S. A. 1965 Supp. 44-709 (h) [since amended and now K. S. A. 1970 Supp. 44-709 (¿)]. The court found the appellant had not properly appealed the examiner’s determina tion of March 18, 1969, and that issue was not before the court. It further found the appellant’s petition for judicial review of the Board’s decision of July 11, 1969, should be denied upon the ground there was ample evidence to support the Board’s finding the appellant voluntarily left his employment without good cause. The court also found there was no evidence to support alleged fraud on the part of the administrative officers, or the Board. Thereafter, the appellant perfected this appeal.
Under K. S. A. 1965 Supp. 44-709 (h) [since amended and now K. S. A. 1970 Supp. 44-709 (i) ], where a claimant seeks judicial review, findings of the Board of Review are conclusive and may not be set aside by the district court in the absence of fraud where they are supported by evidence, and the jurisdiction of the district court is confined to questions of law. (Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298.)
The evidence before the Board of Review was conflicting. There was evidence to indicate the appellant’s employment was terminated by his employer for failure to report to work for three days. There was also evidence to show the appellant submitted a letter of resignation to his employer resigning his employment. The Board, as the trier of the facts, made its decision based upon the evidence that the appellant left his employment voluntarily without good cause. The Board’s findings are supported by substantial evidence and should not be disturbed by the district court, or by this court on appeal.
As indicated, the appellant attempted to appeal to the district court and now to this court with respect to the examiner’s determination of March 18, 1969, wherein the examiner found the appellant ineligible for unemployment benefits on a finding he was not available for work and made no reasonable effort to obtain employment. The rules and procedures adopted by the Board are authorized by K. S. A. 1965 Supp. 44-709 (†) [since amended and now K. S. A. 1970 Supp. 44-709 (g)], which fully sets forth the procedures for any party aggrieved by an examiner’s determination. Those regulations set forth the method whereby the appeal may be heard; first, before a referee who shall make a complete transcript of the record of the hearing before him, and who shall then render an opinion based upon the evidence which shall be transmitted to the aggrieved party. Any party aggrieved by the referee’s decision shall then have a right to appeal to the Board of Review. The appellant herein made no attempt to file a written appeal from the examiners determination and therefore failed to exhaust his administrative remedies in that respect. See 42 Am. Jur., Public Administrative Law, § 197, p. 580. Our Unemployment Insurance Act contains complete administrative procedures, with provision for one original determination and two appeals, fulfilling every requirement of due process of law. Until those administrative procedures have been invoked and completed, there is nothing the district court, or any other court, may review.
The judgment of the district court afiirming the Board of Review’s decision in this case is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
The cross-appellee John D. Pribyl, Executor of the estate of Edward C. Koepp, deceased, and John D. Pribyl, individually, and Laura Pribyl, his wife, seek rehearing on the reversal of the cross-appeal perfected by Clara M. Koepp. (Koepp v. Pribyl, Executor, 207 Kan. 478, 485 P. 2d 1388.)
We have examined the record, the former opinion, and tiie arguments made in support of the motion for rehearing, and in our opinion, the motion should be denied.
The cross-appellees ask alternative relief with respect to the amount of interest due Clara. M. Koepp under the terms of the property settlement agreement entered into on August 9, 1966. They argue that to allow her 6 percent interest on the total amount of the gifts or transfers of $75,000 is to allow her 12 percent interest on her one-half of such amount. This court did not intend such result, however, in order that the matter be clarified for the parties, the district court is directed to compute interest at 6 percent per annum from the date each certificate of deposit was transferred, and add such amount to the sum of $75,000 and divide the resulting total equally between the parties.
Except as here modified, the original opinion is affirmed, and the motion for rehearing is denied.
It is so ordered. | [
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The opinion of the court was delivered by
Fromme, J.:
Eddie David Cox appeals from an order denying his motion to vacate sentence pursuant to K. S. A. 60-1507. He is presently serving a sentence for felony control of a pistol as proscribed by K. S. A. 21-2611.
Appellant was first charged, tried and convicted under an ordinance of the City of Overland Park for unlawfully concealing a revolver upon his person. Thereafter the state filed a charge of felony control of a pistol which arose from the same incident. The appellant, Eddie David Cox, has a history of prior felony convictions. He pled guilty to this latter charge and was sentenced.
Appellant now bases his claim for relief from the sentence upon double jeopardy and contends the trial by the state put him in j’eopardy for the same offense charged under the city ordinance.
He points out that the double jeopardy prohibition contained in Amendment 5, United States Constitution, was made applicable to the states by Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056. We might add that Section 10 of the Bill of Rights of the State of Kansas prohibited a person from being twice put in jeopardy for the same offense long before Benton v. Maryland was written. (See City of Olathe v. Adams, 15 Kan. 391, 395).
We reject the contention of double jeopardy in this case even though both offenses charged did arise at the same time and the pistol was common to both. (See Wagner v. Edmondson, 178 Kan. 554, 290 P. 2d 98.)
The offense of carrying a concealed weapon under the city ordinance and the offense of felony control of a pistol by a former convict are separate and distinct offenses even though they may occur in one incident. The person charged could have been guilty of the state offense without being guilty of violating the city ordinance. In Lawton v. Hand, 186 Kan. 385, 350 P. 2d 28, the lack of identity of these two offenses was clearly explained. We see no need of further explanation to support our present holding.
The case of Waller v. Florida, 397 U. S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184, reh. den. 398 U. S. 914, 26 L. Ed. 2d 79, 90 S. Ct. 1684, is relied on by appellant to support his claim for relief.
The Waller question was carefully formulated by the author of the majority opinion as follows:
“We act on the statement of the District Court of Appeal that the second trial on the felony charge by information ‘was based on the same acts of the appellant as were involved in the violation of the two city ordinances’ and on the assumption that the ordinance violations were included offenses of the felony charge. Whether in fact and law petitioner committed separate offenses which could support separate charges was not decided by the Florida courts, nor do we reach that question. What is before us is the asserted power of the two courts within one State to place petitioner on trial for the same alleged crime.” (p. 390.)
Waller, therefore, does not apply when separate and distinct offenses arise from one incident. (See DuBois v. Hocker, 432 F. 2d 549 [9th C. A. 1970].)
It is true that in Waller the high court rejected the dual sovereignty theory which had previously been recognized in Kansas to support double prosecutions for the same offense in violation of both a city ordinance and a state statute. As a result of Waller, Earwood v. State, 198 Kan. 659, 426 P. 2d 151, and other similar cases, may no longer be considered sound authority insofar as they are grounded on the theory of dual sovereignty of city and state. However, when there is a lack of identity of offenses as in Lawton and Earwood, separate convictions are proper without resort to the theory of dual sovereignty.
The case of Ashe v. Swenson, 397 U. S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189, also relied on by appellant, is not controlling. In Ashe the majority opinion is based upon a doctrine of collateral estoppel, which doctrine was seriously questioned by Mr. Chief Justice Burger in his dissenting opinion. Nevertheless the collateral estoppel applied in Ashe could not be present in our present case. The collateral estoppel doctrine as declared in Ashe arose when the issue of the identity of the offender was the controlling issue and that issue had been determined against the prosecution in a prior trial ending in an acquittal.
The appellant here was first convicted of violating the city ordinance. The subsequent dismissal of the charge by the city attorney after appellant appealed the conviction to the district court could in no way give rise to an application of the Ashe doctrine of collateral estoppel.
We hold a person convicted of a crime under a city ordinance and later convicted of a felony under a state statute has not been put in jeopardy twice for the same offense, even though both crimes arose from a single incident, provided separate and distinct offenses were committed and charged.
Tire order denying relief is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Plaintiff appeals from a summary judgment entered in favor of all defendants. The trial court held that plaintiff was not the real party in interest in the action as required by K. S. A. 1970 Supp. 60-217.
The complicated transactions which gave rise to plaintiff’s claim do not have to be detailed. Suffice it to say plaintiff is a public livestock sales company which handles auction sales of cattle. The defendant Glen Schoof is a cattle buyer who purchases cattle from farmers and ranchers in the area. A farmer-stockman sold cattle to Schoof which were auctioned through the plaintiff sales company. The defendant Rollo L. Goodyear is president of The Security State Bank, Auburn, Kansas. Schoof’s check for the cattle was deposited in said bank. The cattle sold at the auction for $3,074.20. This is the amount of the present claim. After a series of banking transactions which involved the issuance of checks, stop payment orders, insufficient fund checks, withdrawal of the stop payment orders and final payment of all checks the plaintiff sales company discovered it had issued two checks for the cattle and both checks had been cashed.
In its petition plaintiff sought to recover the money paid by mistake. Issues were drawn in the action on answers and cross-claims.
Thereafter discovery depositions were taken of the plaintiff’s officers and it was learned that the entire $3,074.20 loss of the sales company had been reimbursed by Hartford Fire Insurance Company under an indemnity insurance policy held by the plaintiff. The defendants promptly filed motions for summary judgment against the plaintiff alleging it was not the real party in interest.
Shortly thereafter plaintiff moved to amend its petition stating:
“That at all times material herein the plaintiff was the assured in an indemnity insurance policy issued by Hartford Fire Insurance Company, Hartford, Connecticut. That Hartford Fire Insurance Company was liable to the plaintiff for its loss as hereinafter alleged, under the terms of the aforesaid policy and that said company has paid the plaintiff the entire amount of its loss, and that the plaintiff as the aforesaid named assured in said policy has -filed this action in the name of the plaintiff, but for the use and benefit of the insurer, Hartford Fire Insurance Company, Hartford, Connecticut; . . .” (Emphasis added.)
The trial court denied the motion to amend, entered judgment in favor of all defendants and plaintiff has appealed.
The trial court’s judgment must be affirmed.
K. S. A. 1970 Supp. 60-217 provides:
“(a) Real party in interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, conservator, trustee of an express trust, receiver, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute so provides, an action for the use or benefit of another shall be brought in the name of the state of Kansas.”
When a loss is covered but partially by insurance, the insured is the proper party under this statute to bring suit for the entire loss. The insured will then hold in trust for the insurer such part of the recovery as the insurer has paid. (Ellsaesser v. Mid-Continent Casualty Co., 195 Kan. 117, Syl. ¶ ¶ 1 and 2, 403 P. 2d 185; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359.)
When such loss is fully covered and paid the rule is otherwise, provided the policy of insurance contains a subrogation clause whereby the insurer succeeds to rights of the insured.
When a loss is fully paid by an insurer and the insurer becomes subrogated to all rights of the insured, the right of action against the wrongdoer vests wholly in the insurer. In such case the insurer becomes the real party in interest and must undertake the maintenance of the action for reimbursement. (Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459; Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, 255 P. 2d 658.)
In the present action the depositions established that plaintiff had been fully reimbursed for the $3,074.20 loss. Plaintiff’s motion to amend established that Hartford Fire Insurance Company was subrogated to all rights of plaintiff to recover the amount of the loss. Therefore the trial court properly determined that plaintiff was not the real party in interest and could not maintain the action.
The plaintiff further contends that it was error for the trial court to deny its motion to amend the petition and cites many of our cases which hold that amendment should be allowed to prevent injustice.
However, these cases cannot be applied here. To permit the amendment sought by plaintiff in this case would have accomplished nothing. The action would still have been prosecuted in the name of the livestock sales company and would have been in contravention of K. S. A. 1970 Supp. 60-217. The Hartford Fire Insurance Company was the real party in interest. The action had to be prosecuted in its name under the statute.
The judgment is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fatzeb, C. J.:
This appeal stems from a controversy over the discharge of a classified civil service employee.
The question immediately before the court is one of procedure involving jurisdiction. The facts material to the disposition of that question are first presented.
On August 1, 1968, the plaintiff, Lorene Thompson, was promoted to the position of Supervisor of Vocationl Rehabilitation for the Topeka State Hospital, and as of November 30, 1968, she was granted permanent status. On February 17, 1969, she was orally dismissed from her position by the Acting Director of the Division of Vocational Rehabilitation of the State of Kansas. The first written notice of her oral dismissal was given by letter dated February 19, 1969.
The plaintiff gave notice of her intention to appeal her dismissal by a letter dated February 20, 1969, directed to the Chairman of the Civil Service Board of the State of Kansas (the board), requesting a hearing with respect to the dismissal. The board, on March 27, 1969, and again on April 3, 1969, conducted a hearing in the matter. On April 3, 1969, the Board announced its decision which was made a part of its minutes, and reads:
“ ‘The hearing for E. Lorene Thompson, Vocational Rehabilitation Supervisor, Department of Social Welfare, was resumed at 10:30 a. m. At the conclusion of the hearing, it was the decision of the Board that the action of the appointing authority in dismissing Miss Thompson be sustained. The Personnel Director was directed to place the name of Miss Thompson on the eligible register for Vocational Rehabilitation Counselor for a period of one year.’ ”
The secretary of the Board directed a letter to the plaintiff reporting its decision. Thereafter, and on April 3, 1970, the plaintiff delivered a letter to the Director of the personnel division requesting that her term of eligibility be extended for a period of one year pursuant to K. S. A. 75-2942 ( 2). She also filed a motion for rehearing and reconsideration. The Board’s decision on that motion was reported in its minutes of May 11, 1970, and reads:
“ ‘The board reviewed the request for re-hearing for Lorene Thompson requested by Mary Schowengerdt, attorney for Miss Thompson. It was idle decision of the Board that it does not have jurisdiction over the matter.’ ”
Plaintiff’s counsel was informed of the Board’s decision by letter dated May 12, 1970. On May 21, 1970, the plaintiff filed two cases in the district court seeking relief from the decisions of the Board —one was a direct appeal; the other was an action in equity.
On June 3, 1970, the Board filed a motion to dismiss the action in equity on the ground it was immune from actions except on its contracts, and that plaintiff’s petition failed to allege the purported cause of action was based on contract. The board also filed a motion to dismiss the appeal for the reason the functions of the board were administrative, not judicial in character, and, therefore, not subject to review under K. S. A. 60-2101 (a).
On June 24, 1970, the plaintiff filed a motion for determination of the appropriate remedy — direct appeal, or action in equity.
At the hearing on the motion for the determination of the proper remedy, counsel for all parties agreed that the remedy was an action in equity for relief in the form of mandamus, and that the appeal statute (K. S. A. 60-2101 [a]) had no application. The court then ruled:
“All right. The motion of the plaintiff for a determination of an appropriate remedy then is sustained and it is determined that the proper method of attacking the legality or the propriety or correctness of a decision of the State Civil Service Board is through an independent action in equity which in this case has been brought in Case No. 113,185. But the court is not at this time determining the correctness of the remedy or the appropriateness of the facts alleged in the petition but only the fact that the Court does have jurisdiction in that case to consider the matters of dispute between the plaintiff and the State Board of Social Welfare. Now, do you have anything else to present on your motion in Case No. 113,185?”
Thereafter, the plaintiff filed a motion for judgment on the pleadings in the equity case. The motion was sustained, the court finding that plaintiff was entitled to be restored to her position as Vocational Rehabilitation Supervisor with the State Department of Social Welfare, and that she should be reimbursed for the salary which she had lost because of her wrongful dismissal.
Following a motion for rehearing and a motion by plaintiff for attorney fees, an order of summary judgment was entered on June 30, 1971, placing in the judgment the findings above mentioned, but denying plaintiff attorney fees.
The Board, the Department of Administration, and the Board of Social Welfare, all statutory agencies of the state of Kansas, appealed from the order reinstating the plaintiff to her position of Vocational Rehabilitation Supervisor and reimbursing her for lost salary. The plaintiff cross-appealed from the order denying her attorney fees.
The appellants contend that an appeal pursuant to K. S. A. 60-2101 (a) from the Board’s decision of April 3, 1969, was the only procedural remedy available to the appellee.
Before considering this question, we are met with the appellee’s contention the appellants took no appeal from the court’s order adjudging that the appellee’s remedy was by an equitable action and not by appeal under K. S. A. 60-2101 (a), but actually encouraged the district court to make such an order and they are now foreclosed from raising such an issue.
Ordinarily, trial errors in which a party acquiesces or encourages the district court to make cannot be raised on appeal. A party should not be permitted to assume an attitude in this court inconsistent with that taken in the court below. (Brown v. East Side National Bank, 196 Kan. 372, 376, 411 P. 2d 605; Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091, 80 A. L. R. 2d 166.) However, the rule above stated does not apply where the question is one of jurisdiction of the subject matter. If the district court had no jurisdiction, then this court has no jurisdiction. In Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P. 2d 457, we held:
"Where the district court had no jurisdiction of the subject matter of an appeal to it, this court does not acquire such jurisdiction by an appeal from a ruling of the district court.” (Syl. ¶ 2.)
This court will raise the jurisdictional question on its own motion. (Materi v. Spurrier, 192 Kan. 291, 387 P. 2d 221; Bammes v. Viking Manufacturing Co., 192 Kan. 616, 389 P. 2d 828; Hotchkiss v. White, 191 Kan. 534, 538, 382 P. 2d 325; Lira v. Billings, 196 Kan. 726, 414 P. 2d 13.)
The appellants argue the issue before us is one of jurisdiction. We agree. The district courts are expressly created by the Constitution of the state of Kansas and are given only such jurisdiction as may be provided by the Legislature. (Art. 3, § 6; State v. Jack, 69 Kan. 387, 392, 76 Pac. 911, affirmed 199 U. S. 372, 50 L. Ed. 234, 26 S. Ct. 73; City of McPherson v. State Corporation Commission, 174 Kan. 407, 411, 257 P. 2d 123.) If the district court had no appellate jurisdiction over the decision of the Board, then it had equitable jurisdiction to determine whether the Board’s acts were illegal, fraudulent, or oppressive. (Gray v. Jenkins, 183 Kan. 251, 326 P. 2d 319.) If the district court had appellate jurisdiction, then it had no jurisdiction in an independent equitable action to review alleged errors of the Board. (Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 402 P. 2d 762; Neeley v. Board of Trustees, Policemens & Firemens Retirement System, 205 Kan. 780, 473 P. 2d 72; Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544.) See, also, Northern Natural Gas Company v. Dwyer, 208 Kan. 337, 492 P. 2d 147, and Powers v. State Department of Social Welfare 208 Kan. 605, 493 P. 2d 590.
The appellee relies heavily on Gray, supra, where we said that the Board acts quasi-judicially, but that no statutory provision for appeal to the courts is made from an order of the State Civil Service Board, either under the Civil Service statutes, or under the code of civil procedure. The Gray case was decided in 1958. Following the decision in that case, the Legislature enacted the new code of civil procedure effective January 1, 1964, which specifically provided for appeals from Administrative Boards exercising quasi-judicial functions. (K. S. A. 60-2101 [a].) Insofar as here pertinent, that statute reads:
“A judgment rendered or final order made by a court or any other tribunal, board or officer exercising judicial or quasi-judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court. If no other means for perfecting such an appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that he is appealing from such judgment or order with such court, tribunal, board, or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such court, tribunal, board or officer to be prepared and filed with the clerk of the district court of the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require . . .”
It is noted the statute as written includes boards or officers exercising quasi-judicial functions.
In Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966, certain rules were laid down for determining whether an administrative agency performs legislative or judicial functions. We held:
“There is a distinction between the types of decisions rendered by different administrative agencies; and some such agencies perform judicial or quasi-judicial functions while others do not.
“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.
“In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determines its character as judicial or otherwise." (Syl. ¶¶ 1, 2, 3, 4.)
It may be added that quasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.
The Board is empowered by statute to hear appeals of dismissed employees and determine the reasonableness of the dismissal (K. S. A. 75-2949 [2]), and after considering the evidence, it may order reinstatement of the employee and the payment of loss of salary. (K. S. A. 75-2949 [3] [4].) The Board has authority to establish rules (75-2949 [5]); to conduct hearings; to administer oaths and taire testimony; to issue subpoenas to compel attendance of witnesses; to take depositions, and to require the production of documents pertinent to any inquiry or investigation authorized by the Civil Service Act (75-2932 [1-4]).
Giving consideration to the various provisions of the Civil Service Act and the plenary power lodged in the Board by the Legislature, we conclude it exercises quasi-judicial functions in the performance of its duties. That being the case, the procedure for appellate review in the district court provided in K. S. A. 60-2101 (a) was exclusive, and the appellee was required to invoke that procedure within thirty days after entry of the Board’s order of April 3, 1969, sustaining the action of the appointing authority dismissing her from service.
It follows the district court was without jurisdiction to determine the reasonableness of the Board’s order in the original action in equity, and it erred in rendering judgment granting the appellee relief.
What has been said renders unnecessary the determination of other questions raised by the parties.
The case is remanded to the district court with directions to dismiss the equity action.
It is so ordered.
Pkager, J., not participating. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent, Michael E. Lazzo, an attorney who was admitted to the practice of law in Kansas.
A disciplinary panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2006 Kan. Ct. R. Annot. 284). The respondent appeared in person and with his attorney. In its final hearing report, the panel found that respondent had violated Kansas Rules of Professional Conduct (KRPC) 3.3(d) (2006 Kan. Ct. R. Annot. 467) (duty of candor in ex parte proceeding) and 8.4(d) (2006 Kan. Ct. R. Annot. 510) (engaging in conduct prejudicial to administration of justice). The panel unanimously recommended that the respondent be censured by this court and that the censure be published in the Kansas Reports. The respondent did not file exceptions to the final hearing report.
The hearing panel made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Michael E. Lazzo (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 13022. His last registration address with the Clerk of die Appellate Courts of Kansas is . . . Wichita, Kansas .... The Respondent was admitted to the practice of law in the state of Kansas on September 30, 1986.
“2. In 1998, Paul Arabia leased an office in his building to Michael E. Lazzo. Mr. Arabia and the Respondent were not partners nor were they associated in the practice of law.
“3. In 1998, Mr. Arabia became acquainted with Reynaldo Charles. Mr. Charles eventually worked as a legal assistant in Mr. Arabia’s law office. Additionally, Mr. Arabia employed Mr. Charles to do household repairs on Mr. Arabia’s homes in Wichita, Kansas, and in Mexico.
“4. In 1998, Mr. Arabia drafted a name change petition in behalf of Mr. Charles. However, tire petition was not filed in court.
“5. In 2000, officials in Adams County, Colorado, charged Mr. Charles with sexual assault on a child while in a position of trust, a class III felony, and sexual assault on a child, a class IV felony. Mr. Arabia conferred with Mr. Charles’ public defender, Mandarin Bowers, regarding Mr. Charles’ case. Thereafter, Mr. Arabia recommended to Mr. Charles that he accept the offer of a plea agreement and enter a plea of guilty to attempted sexual assault on a child, a class V felony. [Footnote: In addition to the 2000 criminal case, Mr. Charles had previously been convicted of a misdemeanor and four felonies — third degree assault, sexual assault of a child while in a position of trust, sexual offense against a child (fondling), incest with a minor, and sexual assault pattern of abuse.]
“6. On September 1, 2000, Mr. Charles entered a plea of guilty to attempted sexual assault on a child. Following his plea, Mr. Charles was free on bond. Mr. Arabia was aware that Mr. Charles entered the guilty plea. Additionally, Mr. Arabia was aware of the requirements and consequences of Mr. Charles’ conviction. The Court scheduled Mr. Charles’ sentencing hearing for November 29, 2000.
“7. Prior to the sentencing hearing, Mr. Charles left die state of Colorado and returned to Wichita, Kansas, and to the employment of Mr. Arabia. Mr. Charles failed to appear at the sentencing hearing and the Court issued a warrant for Mr. Charles’ arrest. Mr. Charles remained a fugitive for an extended period of time.
“8. In April, 2001, Mr. Arabia prepared and Mr. Charles signed a statement that the pending criminal matters in Colorado had been resolved to Mr. Charles’ satisfaction.
“9. In May, 2002, Mr. Arabia prepared a second petition for change of name for Mr. Charles. Rather than list his name as attorney of record, Mr. Arabia prepared the documents for the Respondent’s signature. The petition provided that Mr. Charles’ name would be changed to Jose Javier Soto. Mr. Charles executed an affidavit in support of the petition. Mr. Arabia provided the prepared documents to tlie Respondent and asked that he complete the filing. Mr. Arabia explained to the Respondent that Mr. Charles wanted to adopt his grandmother’s name.
“10. At the time that Mr. Arabia asked the Respondent to complete the filing of the name change, the Respondent knew that Mr. Charles had previously been facing criminal charges involving allegations of child sexual abuse. The Respondent did not verify that Mr. Charles’ criminal case had been resolved. The Re spondent assumed that Mr. Charles’ criminal case had been resolved because Mr. Charles had returned to Kansas.
“11. On May 28, 2002, the Respondent filed the name change case in behalf of Mr. Charles, in the Sedgwick County District Court, case number 02C-1839. [Footnote: At the time the Respondent filed the name change case, the Adams County, Colorado, warrant for Mr. Charles’ arrest remained pending.] The petition and the affidavit filed to change Mr. Charles’ name included the following statement: ‘that the change of name requested, when granted by the court, will not hinder, delay, or defraud Petitioner’s creditors or defeat other legal obligations.’
“12. On July 3, 2002, the Respondent personally provided the Honorable Richard T. Ballinger of the Sedgwick County District Court, a journal entry relating to Mr. Charles’ name change case. At the time he provided the journal entry to Judge Ballinger, the Respondent did not inform the Court of Mr. Charles’ criminal case in Colorado. In relying on the representations contained in the petition, affidavit, and journal entry, the Court granted Mr. Charles’ petition and changed his name to Jose Javier Soto.
“13. The Respondent did not conduct any investigation into the facts included in the petition. He never discussed the matter with his client, Mr. Charles, nor did he discuss the contents of the petition, affidavit, or journal entry with Mr. Charles or Mr. Arabia. The Respondent had no contact with Mr. Charles regarding the name change.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 3.3(d) and KRPC 8.4(d), as detailed below.
“2. KRPC 3.3(d) provides:
‘In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.’
In this case, the Respondent filed pleadings to change Mr. Charles’ name. Based upon the Respondent’s failure to inform the Court of material information as to Mr. Charles’ conviction which was known to the Respondent, the Hearing Panel concludes that the Respondent violated KRPC 3.3(d).
“3. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he filed the pleadings in Mr. Charles’ name change case and presented the journal entry to the court without disclosure of Mr. Charles’ criminal conviction. Mr. Charles should never have had his name legally changed. Because the Respondent failed to inquire about the status of Mr. Charles’ criminal proceedings before filing the pleadings concerning the name change and failed to inquire about the status of Mr. Charles’ criminal proceedings prior to the ex parte hearing with the district court judge, and because the Respondent did not notify the district court judge that Mr. Charles had been charged with a felony, the Court changed Mr. Charles’ name to Mr. Soto. Mr. Charles’ name change impacted directly on the administration of justice. Officials from Colorado were unable to locate Mr. Charles, at least in part, because the Respondent assisted Mr. Charles in changing his name. As such, the hearing Panel concludes that the Respondent violated ICRPC 8.4(d).”
RECOMMENDED DISCIPLINE
The panel then discussed the appropriate discipline to be imposed herein and made its recommendations as follows:
“In malting this recommendation for discipline, the Hearing Panel considered tire factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, die factors to be considered are the duty violated, die lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal system to refrain from abusing legal process.
“Mental State. The Respondent negligently violated his duties.
“Injury. As a result of die Respondent’s misconduct, the Respondent caused actual injury to die administration of justice — assisting a fugitive in remaining at large for a period of nearly 4 years.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1986. At die time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 16 years. Accordingly, the Hearing Panel concludes diat die Respondent had substantial experience in the practice of law at die time he engaged in die misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“The Present and Past Attitude of die Attorney as Shown by die Respondent’s Cooperation During die Hearing and die Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Wichita, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by the testimony of witnesses and by several letters received by the Hearing Panel.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and cause injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.’ Standard 6.13
‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3.”
“The Deputy Disciplinary Administrator recommended that if the Hearing Panel concludes that the Respondent acted with knowledge, then the Respondent be suspended for a period of three months. On the other hand, the Deputy Disciplinary Administrator recommended that if the Hearing Panel concludes that tire Respondent acted negligently, then the Respondent be censured and that the censure be published in the Kansas Reports. Counsel for tire Respondent argued that the Respondent’s misconduct does not warrant suspension and recommended that the Respondent be informally admonished or, at the most, censured.
“Based upon the findings of fact, conclusions of law, and tire Standards listed above, the Hearing Panel unanimously recommends that tire Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.”
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); see also Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).
The respondent filed a statement with the clerk stating he does not take exception to the panel’s final report. Therefore, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2006 Kan. Ct. R. Annot. 295); In re Devkota, 280 Kan. 650, 655, 123 P.3d 1289 (2005).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We adopt the panel’s findings of fact and conclusions of law.
Clearly, a significant factor in tire panel’s recommended discipline was its determination that respondent’s violations arose from negligence rather than intentional misconduct. We accept the panel’s determination in this regard. We conclude the recommended discipline of published censure is appropriate under the facts herein.
It Is Therefore Ordered that Michael Lazzo be and he is hereby censured in accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot. 243).
It Is Further Ordered that this opinion be published in the Kansas Reports and that the costs of these proceedings be taxed to respondent.
Allegrucci, J., not participating.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Davis, J.:
This case comes before us on a certified question from the United States District Court for the District of Kansas, pursuant to K.S.A. 60-3201. Karen Barnett filed suit in federal court against her former employer, Southwestern Bell Telephone, L.P. (Southwestern Bell), alleging that she was wrongfully terminated in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2611 et seq. (2000), and § 510 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1140 (2000).
Southwestern Bell moved to dismiss Barnett’s ERISA claim on the basis that it was brought more than 2 years after she was terminated, and thus is barred by the 2-year statute of limitations under K.S.A. 60-513(a)(4). Barnett countered that the proper stat ute of limitations was the 3-year period in K.S.A. 60-512(2), which applies to liabilities created by statute. Because the statute of limitations issue could be determinative of Barnett’s claim under ER-ISA, and because the district court found no controlling Kansas precedent on this issue, it certified the question to this court.
CERTIFIED QUESTION
WITH RESPECT TO PLAINTIFF’S CLAIM THAT DEFENDANT TERMINATED HER EMPLOYMENT TO PREVENT HER FROM OBTAINING LONG-TERM DISABILITY BENEFITS UNDER ERISA, WHAT IS THE APPLICABLE STATUTE OF LIMITATIONS?
ANSWER
For reasons set forth in this opinion, our answer to the certified question is that the plaintiff s claim is one created by statute which is governed by a 3-year statute of limitations in accordance with K.S.A. 60-512(2).
FACTS
The following factual account is taken directly from the certification order from the United States District Court in this case:
“From August of 1996 through March of 2003, plaintiff worked as a service representative for defendant. Defendant has an income disability plan which offers both short-term and long-term disability benefits. On August 13, 2002, plaintiff began experiencing serious health problems and was unable to work. A doctor diagnosed plaintiff with depression and post-traumatic stress disorder. Plaintiff applied for FMLA leave and short-term disability benefits, which defendant approved for August 30 through November 14, 2002. On December 4, 2002, defendant notified plaintiff that it was denying short-term disability benefits effective November 15, 2002. Plaintiff appealed, and received short-term disability benefits through December 15, 2002. On an unspecified date, plaintiff s immediate supervisor notified her that if she did not return to work on December 16, 2002, defendant would terminate her employment. On December 17,2002, shortly after plaintiff arrived at work, someone sent her home because of serious health conditions. Plaintiff was hospitalized from December 26 through December 31,2002, and she received short-term disability benefits from December 17, 2002 through January 31, 2003. Plaintiff returned to work in February of 2003. On February 6, 2003 defendant told plaintiff that absences dating back to October 29, 2002 had been ‘unprotected’ time. On February 8, 2003, defendant placed plaintiff on ‘de cisión making leave’ for unsatisfactory attendance. Two days later, plaintiff returned to work.
“From March 6 to March 16, 2003, plaintiff was hospitalized for an acute pulmonary embolism. On March 21, 2003, defendant terminated her employment for unsatisfactory attendance. Plaintiff received approval for short-term disability benefits from March 13 through May 4, 2003.
“On December 9, 2005, plaintiff filed suit, asserting that defendant (1) violated the FMLA by terminating her employment because she took protected medical leave under the FMLA (Count I); and (2) wrongfully discharged her to prevent her from obtaining long-term disability benefits under ERISA (Count II). Defendant seeks to dismiss Count II of plaintiffs claim under Rule 12(b)(6), Fed. R. Civ. P., arguing that the statute of limitations for ERISA claims bars plaintiffs claim for relief on Count II.”
On its own motion pursuant to K.S.A. 60-3201, the United States District Court for the District of Kansas certified this question regarding the applicable statute of limitations for actions brought under ERISA § 510, 29 U.S.C. § 1140, to this court on June 14, 2006.
STANDARD OF REVIEW
This court has jurisdiction to answer questions certified to it by a United States District Court under K.S.A. 60-3201, which provides that the Kansas Supreme Court may answer certified “questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.” Because certified questions must, by definition, turn on legal issues, this court’s review of such questions is unlimited. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 764-65, 986 P.2d 377 (1999). Furthermore, the interpretation of a statute is a question of law over which this court has unlimited review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). “The answer to a certified question must be based on [Kansas] precedent, not on federal rulings interpreting Kansas law.” Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551, 554, 85 P.3d 1183 (2004) (citing Flenker v. Willamette Industries, Inc., 266 Kan. 198, 201-02, 967 P.2d 295 [1998]).
Federal Courts’ Determinations of Claims Predicated Upon a Violation of Rights Under § 510 of ERISA (29 U.S.C. § 1140)
Before discussing the legal question regarding the proper analogue to a § 510 ERISA claim under Kansas law, it is helpful to review how federal courts have treated the nature of ERISA claims generally, and § 510 in particular, with regard to the appropriate statute of limitations.
ERISA
ERISA, first enacted in 1974, is a “comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983). ERISA’s initial policy statement explains the policy of the respective chapter of the Act:
“It is hereby declared to be the policy of this chapter to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U.S.C. § 1001(b) (2000).
“It is hereby further declared to be the policy of this chapter to protect interstate commerce, the Federal taxing power, and the interests of participants in private pension plans and their beneficiaries by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance.” 29 U.S.C. § 1001(c).
One of the primary reasons for Congress’ adoption of such a broad-sweeping statute was “to enable employers To establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits.’ ” Egelhoff v. Egelhoff, 532 U.S. 141, 148, 149 L. Ed. 2d 264, 121 S. Ct. 1322 (2001) (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9, 96 L. Ed. 2d 1, 107 S. Ct. 2211 [1987]).
In enacting ERISA, Congress recognized that “[u]niformity is impossible, however, if plans are subject to different legal obligations in different states.” Egelhoff, 532 U.S. at 148. To effectuate this goal of uniformity in application and administration, ERISA contains a provision that specifically preempts any state law that “relates to” employee benefits plans. See 29 U.S.C. § 1144(a) (2000) (“the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title”). The Act defines “’State law’” to include “all law, decisions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). The United States Supreme Court has interpreted ERISA’s preemption provision broadly, finding that a statute “relates to” an ERISA program for preemption purposes “ ‘if it has a connection with or reference to such a plan.’ ” Egelhoff, 532 U.S. at 147 (citing Shaw, 463 U.S. at 97).
Other Courts’ Analysis of the Applicable Statute of Limitations for Claims Under §510
Section 510 of ERISA provides
“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [29 U.S.C. 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this sub-chapter, or the Welfare and Pension Plans Disclosure Act. It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act. The provisions of section 1132 of this title shall be applicable in the enforcement of this section.” 29 U.S.C. § 1140.
Section 502 of ERISA, 29 U.S.C. § 1132 (2000), provides the civil enforcement mechanism for actions brought under Chapter 5 of the Act, including § 510. See Teumer v. General Motors Corp., 34 F.3d 542, 544 (7th Cir. 1994). Among other actions it recognizes, § 502 states that a civil action under ERISA may be brought by a participant or beneficiary “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of tire plan.” 29 U.S.C. § 1132(a)(1)(B). A participant or beneficiary may also bring an action “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan” or “to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3).
ERISA does not expressly provide a hmitations period for actions brought under Chapter 5 of its provisions (which includes §§ 502 and 510). Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1199 (10th Cir. 1990). In the absence of an explicit hmitations period for a federal statute, the “ ‘general rule [is] that statutes of limitation are to be borrowed from state law.’ [Citation omitted.]” Held, 912 F.2d at 1200. Thus, “[b]ecause ERISA does not contain a statute of hmitations for claims brought under Section 502, courts look to the statute of hmitations for (a) the most analogous state law claim (b) in the state with the most significant relationship to the matter in dispute.” Muller v. American Management Ass’n Intern., 368 F. Supp. 2d 1166, 1172 (D. Kan. 2004) (citing Held, 912 F.2d 1197). In the instant case, it is undisputed that Kansas law should apply and the question we must resolve is which of Kansas’ state law claims is “most analogous” to a claim under § 510 of ERISA and, thus, which statutoiy hmitations period apphes.
Federal district and circuit courts have come to differing conclusions when attempting to determine which hmitations period is most analogous to a claim under § 510 of ERISA. In Held, the Tenth Circuit, applying New York law, found that two different hmitations periods were appropriate for “two distinct causes of action” brought under § 510.912 F.2d at 1203. The court explained that, before determining which statute of hmitations applied to the plaintiffs claim under § 510, the appellate court was first obliged to consider “the characterization of appellant’s claims.” 912 F.2d at 1203. After some discussion, the court concluded that the plaintiff had brought both a claim for injunctive relief under § 502(a)(3) and a claim for interference with enjoyment of benefits under § 502(a)(1)(B). 912 F.2d at 1203. The court then determined that these claims should be subject to the hmitations periods for em ployment discrimination and for breach of contract, respectively. 912 F.2d at 1205-06.
Judge Ebel dissented from the appellate panel’s parsing of the plaintiff s § 510 claims. Instead, he wrote that “plaintiff s sole claim is predicated upon a violation of his rights under section 510 of ERISA (29 U.S.C. § 1140), as enforced through 29 U.S.C. § 1132.” Held, 912 F.2d at 1207 (Ebel, J., dissenting). According to Judge Ebel, plaintiff s entire claim under § 510 should have been subject to New York’s statute of limitations for employment discrimination.
In Myers v. Colgate-Palmolive Co., 26 Fed. Appx. 855 (10th Cir. 2002), the only instance (albeit unpublished) where the Tenth Circuit considered the appropriate Kansas statute of limitations to be applied to § 510 actions, the court determined that the appropriate period was the 2-year limitation on claims for wrongful discharge under K.S.A. 60-513(a)(4)-not the 5-year period for breach of contract under K.S.A. 60-511(1). Federal district courts, however, have generally come to the opposite conclusion with regard to civil actions brought under § 502. See Muller, 368 F. Supp. 2d at 1172 (applying the 5-year limitations period for contractual disputes to a claim brought under § 502 of ERISA); Caldwell v. Life Ins. Co. of North America, 959 F. Supp. 1361, 1367 (D. Kan. 1997) (finding the appropriate statute of limitations for claims brought pursuant to § 502 is that for written contracts).
While Held remains the only published Tenth Circuit opinion to discuss the appropriate statute of limitations to apply to § 510 of ERISA (applying New York law), the decisions of other federal circuits shed a different light on the matter. The Seventh Circuit, applying Illinois law, provided a lengthy discussion of the question we deal with in Teumer v. General Motors Corp., 34 F.3d 542. The Seventh Circuit was called upon to determine whether the Illinois statute of limitations for contractual disputes or for retaliatory discharge was most analogous to an ERISA action brought under § 510. The Teumer court acknowledged that the “variant nature of the several rights recognized in that one provision” had led to a “lack of consensus” among states and circuits as to which limitations period should apply:
“Section 510 protects workers against several distinct abuses: the disruption of employment privileges to prevent (i.e. interfere with) the vesting or enjoyment of benefit rights . . . ; the disruption of employment privileges to punish (i.e. retaliate for) the exercise of benefit rights; and the disruption of employment privileges to prevent or punish the giving of testimony in any proceeding relating to ERISA or a sister act. The circuit courts which have been called upon to apply statutes of limitations to actions brought to enforce § 510 rights have reached disparate conclusions as to which state causes of action best approximate the federal remedy.” 34 F.3d at 547.
Having examined the broad array of rights protected by § 510, the Teumer court reasoned that the first category of right — prevention of interference with the vesting or enjoyment of benefits— found its closest analogy in the good faith and fair dealing principles of contract law. 34 F.3d at 548. On the contrary, the two other categories — prevention of retaliatory action for exercising protected rights or for whistle-blowing — were most alón to torts of wrongful termination or retaliatoiy discharge. 34 F.3d at 547-48. The court was therefore confronted with the decision whether to apply the statute of limitations most analogous to the particular cause of action brought (as the Tenth Circuit did in Held) or to select one statute of hmitations that would apply to all actions, regardless of their nature, brought under § 510 of ERISA. The court explained the reasoning of its analysis in detail:
“If we were to stop here, we would apparently be faced with competing analogues to § 510 rights in state law. We could accordingly decline to seek a best parallel cause of action to § 510 generally and instead adopt a practice of looking to the one that provides the closest theoretical fit to the particular § 510 violation alleged. . . . However, doing so would be shortsighted for several reasons. First of all, diere is much to be said, in the interest of simplicity, for selecting a single most appropriate statute of hmitations for all claims under this important and often-invoked federal statutory safeguard. In Wilson v. Garcia, [471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985),] the Supreme Court concluded that ‘[t]he federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach’ for civil rights actions under 42 U.S.C. § 1983. 471 U.S. at 275. . . . While § 510 certainly is not the font for a wide diversity of claims that § 1983 has become, the analytic distinction between the two primary wrongs that it targets, although perhaps sharp in theory, will often blur in the context of real disputes. Attempts to preserve the distinction solely for the purpose of borrowing hmitations statutes will frequently be artificial and could contribute to a perception that arbitrariness or even result-orientation controlled the ultimate selections in particular cases, the sort of shortcomings that Wilson court sought to avert. See id. at 272 n.24. . . . More precisely, when an employee is already drawing benefits under a plan at the time he is discharged, retaliation and interference are, in practical effect, inseparable theories. That is, because such motives are so similar and, in an actual case, probably mixed, it seems fruitless to try to distinguish anger with the employee’s past exercise of his benefit rights from a desire to forestall the future enjoyment of those same benefits. Besides the practical difficulty of such a task, embarking on it at all assumes the existence of a motivational process perhaps more nuanced than that of most individual and corporate decisionmakers. In areas like this one, where the law’s dependence on experience is great, it is sometimes best to resist the natural tendency to resort to ever finer legal distinctions.” 34 F.3d at 548-49.
Having undergone this analysis, the court determined that, even though the facts there were most analogous to a contract dispute, the interests of uniformity and simplicity prevailed. Thus, the court held that the Illinois limitations period relating to retaliatory discharge should apply to all actions brought under § 510 in that state. 34 F.3d at 549-50. See also Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331, 335 (2d Cir. 1997) (citing the Seventh Circuit’s decision in Teumer and concluding that “a single statute of limitations should govern all ERISA claims under section 510”).
Rather than determining of its own accord which Kansas statute of Hmitations should apply to the present action, the district court in this case certified the question to this court for an answer as to the appropriate statute of limitations for Burnett’s claim under § 510 of ERISA under Kansas law.
Characterizing Burnett’s Claim Under Kansas Law
In order to determine which of Kansas’ statutory limitations periods applies in this case, this court must determine which state law claim is “most analogous” to the present action brought under § 510 of ERISA. The resolution of this issue first requires a threshold examination of “the characterization of [Burnett’s] claims.” Held, 912 F.2d at 1203; see also Teumer, 34 F.3d at 546-47 (“This requires us to 'characterize the essence’ of the federal claim in question and find the most analogous cause of action in Illinois law.”).
Kansas law recognizes (at least) three distinct categories of causes of action for injuries to individual rights. A cause of action may be found in tort or contract, or it may be statutorily created. While a liability created by statute may often seem similar to related actions at common law, this court has repeatedly held that a statutory action in this state is sui generis — -that is, it is neither a contract action nor a tort action, but something entirely its own. See, e.g., Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 983, 889 P.2d 130 (1995) (distinguishing a statutory action for securities fraud from a tort action for fraud, and applying the 3-year limitations period to the securities fraud action); Wright v. Kansas Water Office, 255 Kan. 990, 995, 881 P.2d 567 (1994) (distinguishing the employment disputes of civil service agents, whose employment arises under statute and is subject to the 3-year statute of limitations, from employment disputes of private parties, whose employment arises under contract).
For each of these categorical causes of action, the Kansas Legislature has designated mutually exclusive statutes of limitations with three different durations. See K.S.A. 60-511(1) (5-year limitations period for contractual actions); K.S.A. 60-512(2) (3-year limitations period for statutorily created actions); K.S.A. 60-513 (2-year limitations period for tort actions). The parties in this case have specifically raised the applicability of the 3- and 2-year statutes ofhmitations in K.S.A. 60-512 and K.S.A. 60-513, respectively. In particular, K.S.A. 60-512(2) states that “[t]he following actions shall be brought within three (3) years: ... (2) An action upon a liability created by a statute other than a penalty or forfeiture.” K.S.A. 60-513(a)(4) provides that “[a]n action for injury to the rights of another, not arising on contract, and not herein enumerated” shall be brought within 2 years. While not raised by the parties, K.S.A. 60-511(1), which applies a 5-year limitations period to contractual disputes, also looms in the background.
In order to determine which of these limitations periods applies to Burnett’s claim under § 510 of ERISA, we must first consider whether Burnett’s cause of action is most analogous to a tort action, a contract action, or a statutorily created action under Kansas law. A determination of this sort in Kansas, like the characterization of a federal action under ERISA, is grounded in the long-recognized principle that “the nature of the cause of action determines the applicable statute of limitations.” Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 632, 556 P.2d 199 (1976). The Kirtland court explained that the purpose of this maxim is “to make the right to be enforced, not the procedure, the test as to which statute of limitations applies. (51 Am. Jur. 2d, Limitations of Actions, § 62, pp. 640-641.)” 220 Kan. at 632.
Defendant Southwestern Bell argues that Burnett’s claim under § 510 of ERISA was most analogous to a common-law claim for retaliatory discharge, which Kansas courts have held subject to the 2-year statute of limitations “for injury to the rights of another, not arising on contract, and not herein enumerated.” See Myers v. Colgate-Palmolive Co., 26 Fed. Appx. 855, 864 n.14; Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 464, 790 P.2d 404 (1990). Barnett counters that the most analogous claim is a statutory claim for employment discrimination and cites this court’s decisions in Wagher v. Guy’s Foods, Inc., 256 Kan. 300, 885 P.2d 1197 (1994), and Wright v. Kansas Water Office, 255 Kan. 990, for her contention that the 3-year limitations period for “liability created by statute” should apply.
Did ERISA create the liability for actions brought under § 510?
This court has explained that statutes must be “ ‘ “construed to avoid unreasonable results,” ’ ” and “ ‘ “[tjhere is a presumption that the legislature does not intend to enact useless or meaningless legislation.” ’ [Citation omitted.]” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). Furthermore, this court interprets statutes in such a way to give words their ordinary and plain meaning. In re D.M., 277 Kan. 881, 886, 89 P.3d 639 (2004).
As the federal district court noted in its certification order, the plain language of the two statutes at issue in this case favors the application of the 3-year limitations period. This action arises under ERISA, a federal statute. The language of the 2-year limitations period, which applies to actions “for injury to the rights of another, not arising on contract, and not herein enumerated,” gives credence to this reading. (Emphasis added.) K.S.A. 60-513(a)(4). This “catchall phrase” indicates that K.S.A. 60-513(a)(4) should only apply if there is no other limitations period that encompasses the injury in question.
As this court explained in Hollinger v. Dickinson County, 115 Kan. 92, 93-94, 222 Pac. 136 (1924),
“[i]f all actions which are brought ‘for injury to the rights of another, not arising on contract’ are withdrawn from the class described as based upon a ‘liability created by statute, other than a forfeiture or penalty,’ it would seem that there would be nothing left, and this portion of the three-year provision would have no field of operation; for every cause of action involves a right of the plaintiff, a duty of the defendant, and a ‘delict or wrong done by the defendant which consisted in a breach of such primary right and duty.’ (Pomeroy on Remedies and Remedial Rights, 2d ed., § 453.)”
The Hollinger court distinguished between actions with liability created by statute, on the one hand, and actions involving “injury to another’s preexisting rights, the remedy for which was [effected by the statute, and which did not arise on contract” or statutes that “merely effected a procedural change, ehminating a defense to which the plaintiff s claim for injuries due to the defendant’s negligence would otherwise have been open,” on the other. 115 Kan. at 95. According to the court, these latter actions did not implicate the 3-year provision, because the rights involved are not statutorily created; therefore, they would be subject to the 2-year limitations provision. Hollinger, 115 Kan. at 94.
Yet just as the 2-year limitations provision for “injury to the rights of another, not arising on contract” does not apply to all actions involving such injuries, “K.S.A. 60-512(2) does not apply to every statutory cause of action. It applies when a statute creates a new, substantive right not recognized at common law, but not when a statute merely affords relief for certain violations of existing common-law rights. [Citation omitted.]” Kelly v. Primeline Advisory, Inc., 256 Kan. at 983. As the Kansas Court of Appeals explained in Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802, rev. denied 229 Kan. 670 (1981),
“[i]t is not enough to simply state that there is an injury to the rights of another to remove the cause of action from the operation of the three-year statute of limitations. Rather, the inquiry must be whether fire statute created the cause of action. Thus, at 51 Am. Jur. 2d, Limitation of Actions § 82, p. 659, it is stated: ‘A statute “creates” no liability, as regards die applicability of a statute of limitations with respect to an action to recover upon a liability created by statute, unless it discloses an intention, express or implied, that from disregard of the statutory command a liability for resultant damages shall arise which would not exist except for the statute. Clearly, an action is not based upon a liability created by statute if the right is one which would exist at common law in the absence of statute.’ ”
This court has similarly explained that “K.S.A. 60-512(2) applies when a statute creates a liability where liability would not exist but for the statute. If the statute merely provides a procedure for obtaining relief, it does not trigger K.S.A. 60-512(2).” McCormick v. City of Lawrence, 278 Kan. 797, 799, 104 P.3d 991 (2005) (citing Wright, 255 Kan. at 997); see also Gehring v. State, 20 Kan. App. 2d 246, 250, 886 P.2d 370 (1994), rev. denied 256 Kan. 994 (1995) (“An action is not based upon a liability created by statute if the right would exist at common law without the statute. A statute is merely remedial if it does not give any new rights. [Citation omitted.]”).
The resolution of whether Burnett’s cause of action in this case is most analogous to a tort action for retaliatory discharge or a separate, statutorily created liability therefore turns on whether the liability described in § 510 of ERISA would exist at common law in the absence of the statute. “ Tn the absence of an express or implied contract of duration or where recognized public policy concerns are raised, employment is terminable at the will of either party.’ [Citation omitted.]” Hysten, 277 Kan. at 554. This court has explained that its recognition of causes of action for retaliatory discharge “ ‘ “is limited to wrongful discharge in violation of state public policy clearly declared by the legislature or by the courts.”’ Flenker, 266 Kan. at 204.” Hysten, 277 Kan. at 555 (quoting Coleman v. Safeway Stores, Inc., 242 Kan. 804, Syl. ¶ 4, 752 P.2d 645 [1988]).
Both parties to tire present action agree that Kansas has not previously recognized a cause of action for wrongful or retaliatory discharge for claiming disability benefits under ERISA. Furthermore, Kansas law is preempted from recognizing such a state cause of action for the recovery of ERISA benefits due to ERISA’s broad preemption provisions in 29 U.S.C. § 1144. See Egelhoff, 532 U.S. at 146.
Burnett asserts that, because “no obligation previously existed under common law for discharging an employee to prevent her from obtaining long-term disability benefits under ERISA,” ER-ISA “created” Southwestern Bell’s liability, and tire 3-year limitations period under K.S.A. 60-512(2) should apply. According to Burnett, the fact that Kansas has recognized causes of action for retaliatory discharge based on violations of other statutes does not lend itself to the conclusion that such a cause of action exists for violations of ERISA.
This argument finds support in Kansas case law. Previous opinions of this court demonstrate that a cause of action under a Kansas statute is subject to the 3-year statute of limitations in K.S.A. 60-512(2) unless the same cause of action, not merely a similar action, was available at common law. For example, courts have held that the Kansas Securities Act and Kansas Consumer Protection Act (KCPA) “create” causes of action, despite the actions’ similarities to common-law fraud actions, because the statutes required different elements of proof. See Kelly, 256 Kan. at 983 (applying K.S.A. 60-512[2] to the Kansas Securities Act); Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 650, 732 P.2d 392, rev. denied 241 Kan. 838 (1987) (applying K.S.A. 60-512[2] to the KCPA). Similarly, in Wright v. Kansas Water Office, this court applied the 3-year statutory liability provision to actions under the Kansas Civil Service Act (KCSA), rather than the 5-year term for employment contracts, because the unique procedural rights guaranteed to civil servants by that statute would not have existed but for the Act. Wright, 255 Kan. at 998.
Southwestern Bell seeks to distinguish the decisions in Wright (involving the KCSA) and Pecenka (involving the veterans preference law for local governments), because these cases involved public rather than private employees. This argument is without merit. It misses the point that the Wright decision was based upon the fact that the KCSA created additional statutory rights for civil service employees. It matters little where the employees worked; the determining factor was that the KCSA (or similarly, the veterans’ preference statute) created rights and liability that had not existed before the statute was enacted.
Likewise, the Wagher court applied the 3-year provision to an action for gender discrimination under the Kansas Act Against Discrimination (KAAD). While other discrimination actions may have existed prior to Wagher, the court found that “the KAAD does impose the obligation not to discriminate against women in employment where no obligation previously existed under common law. Thus, the liability is created by statute, and K.S.A. 60-512(2) applies.” (Emphasis added.) Wagher, 256 Kan. at 308.
These cases contrast sharply with tire Kansas Court of Appeals’ decision in Gehring v. State, 20 Kan. App. 2d 246, 886 P.2d 370 (1994), rev. denied 256 Kan. 994 (1995), where the court held the 3-year limitations period in K.S.A. 60-512(2) was not applicable to actions involving the Kansas Tort Claims Act (KTCA). In that case, the court determined that the KTCA merely abolished the State’s immunity in some cases; it did not create liability within the meaning of K.S.A. 60-512(2). The Gehring court explained:
“Under the facts shown here, plaintiff s claim is based on ordinary negligence. The KTCA does not ‘create’ a cause of action like the highway defect statute, K.S.A. 60-301 (Weeks) (since repealed), the Kansas Consumer Protection Act, or the veterans’ preference law. Instead, the KTCA removes the immunity granted governmental entities at common law. By eliminating a defense, the KTCA merely created a remedial, not a substantive change. Tort actions against the State are brought pursuant to the KTCA. Such are not brought in violation of the KTCA.” Gehring, 20 Kan. App. 2d at 251.
Southwestern Bell argues that although Kansas courts have not yet recognized the specific cause of action here — retaliatory discharge based upon an employee’s right to disability benefits under ERISA — they “have developed a well-settled common law cause of action for retaliatory or wrongful discharge accruing to workers as a matter of public policy.” As evidence of this trend, Southwestern Bell cites Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981) (recognizing a retaliatory discharge claim for termination of employment for exercising rights under the Kansas Workers Compensation Act); Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988) (for whistle-blower actions); Flenker v. Williamette Industries, Inc., 266 Kan. 198, 967 P.2d 295 (1998) (under the Occupational Safety and Health Administration [OSHA]); and Hysten, 277 Kan. 551 (under the Federal Employer s Liability Act [FELA]).
In particular, Southwestern Bell relies heavily on Myers, an unpublished decision of the Tenth Circuit, and Hysten. In Myers, the Tenth Circuit found that “under Kansas law the statute of limitations to be applied to a § 510 ERISA claim based on tire wrongful discharge of the plan participant is two years.” Myers, 26 Fed. Appx. at 864. However, the Myers court did not consider the application of K.S.A. 60-512(2); it only considered K.S.A. 60-511 (the limitations period for contracts) and 60-513(a)(4). Moreover, the appellate court did not explain how it arrived at its conclusion that the plaintiff s claim was analogous to a state law retaliatoiy discharge action or undergo any meaningful discussion of Kansas law. Therefore, contrary to Southwestern Bell’s assertions and without meaning disrespect to the Tenth Circuit, the outcome of that decision has little value to the present discussion — particularly in light of the fact that this court is not bound by federal decisions interpreting Kansas law when responding to certified questions.
In Hysten, this court recognized a cause of action for retaliatory discharge for an employee exercising his or her rights under FELA. The court there explained:
“The design and language of the Kansas Workers Compensation Act and tire logic of Murphy, 6 Kan. App. 2d 488, persuade us that Kansas has a ‘thoroughly established’ public policy supporting injured workers’ rights to pursue remedies for their on-the-job injuries and opposing retaliation against them for exercising their rights. It matters not that the vehicle for that exercise is a federal rather than a state statutory provision.” Hysten, 277 Kan. at 561.
Southwestern Bell would read this language broadly to imply a cause of action for retaliatory discharge under ERISA. While the cause of action established by the Hysten court regarding FELA and the current action under ERISA have a number of similarities, the differences undermine Southwestern Bell’s argument. This court has repeatedly held that to remove a cause of action that appears to have been created by statute from the 3-year provision in K.S.A. 60-512(2), a party must demonstrate that the same cause of action (not a similar action) was available at common law.
This court reiterated this principle most recently in McCormick v. City of Lawrence, 278 Kan. 797. There, the court considered whether a violation of the strip and body search statutes, K.S.A. 22-2521 through 22-2523, was subject to the 3-year statute of limitations under K.S.A. 60-512(2). 278 Kan. at 797. This court found that although causes of action similar to those in the statutoiy provisions for these searches were recognized at common law (such as the Fourth Amendment right against illegal searches and seizures), there were “unique elements” to the particular cause of action raised that distinguished it from these common-law actions. 278 Kan. at 802, 806-07. Citing Kelly v. Primeline Advisory, Inc., 256 Kan. 978 (applying the 3-year statutory liability period to actions under the Kansas Securities Act), and Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649 (applying the 3-year statutoiy liability period to actions under the Kansas Consumer Protection Act), the McCormick court reasoned:
“[I]n both Kelly and Haag common-law causes of action existed, but the statutes created liability and in each case the elements were different from the common-law action. . . .
“The City concedes there are differences between the statutes [at issue involving strip and body searches] and the Fourth Amendment requirements but argues such differences are irrelevant. Essentially, the City’s argument is that the appropriate test to be applied is whether McCormick would have had any cause of action at common law regardless of whether it is a different cause of action, while McCormick argues the appropriate test is whether he would have had tire same cause of action at common law as he does under K.S.A. 22-2523.
“The City’s argument is erroneous. . . . Under Kelly and Haag, the applicable test is whether a plaintiff would have had the same cause of action at common law, not any cause of action.” McCormick v. City of Lawrence, 278 Kan. at 803-04.
On the most basic level, the problem with Southwestern Bell’s position is that Kansas courts have not recognized a cause of action under ERISA; thus, no equivalent action existed at common law. The controlling question regarding the applicable statute of limitations in this case turns on whether Burnett’s action under § 510 of ERISA can best be characterized as a tort action or a statutorily created action. Under Kansas law, this question is answered by considering whether the disputed statute created the right on which the liability stands or merely established a procedure through which existing common-law rights should be enforced. See McCormick, 278 Kan. at 799. Because no substantive right to long-term disability benefits existed before ERISA was adopted, and because no such right is currently recognized in Kansas apart from ERISA, ERISA clearly created the liability described in § 510. As such, the most analogous claim in Kansas to Burnett’s cause of action under ERISA is an action for liability created by statute, and the 3-year statutory period in K.S.A. 60-512(2) applies. Accord Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1242 (11th Cir. 1989) (determining that the appropriate statute of limitations under Georgia law for an action under § 510 of ERISA is the limitations period applying to statutory rights, not the period for torts or for contracts).
As an aside, it should be noted that, as the Seventh Circuit explained in Teumer, a large variety of actions may be brought under § 510, sounding in both contract and tort. This variation has led to different conclusions by courts attempting to “characterize” a particular action as either contract or tort, though such characterizations are often less than clear-cut. For example, while the parties to this action did not raise the possibility of K.S.A. 60-511(1), Barnett’s claim that Southwestern Bell “wrongfully discharged her to prevent her from obtaining long-term disability benefits under ER-ISA” could plausibly be read as an action for interference with her contractual rights. See Teumer, 34 F.3d at 548. This observation is strengthened by the fact that no court which has examined the applicable Kansas statute of limitations for a cause of action under Chapter 5 of ERISA to date, excluding the present action, has considered tire application of K.S.A. 60-512(2). Instead, federal courts considering the issue have applied either the 2-year limitations provision in K.S.A. 60-513(a)(4) or the 5-year provision for contractual disputes in K.S.A. 60-511. See Caldwell, 959 F. Supp. at 1367 (applying K.S.A. 60-511[1]); Muller, 368 F. Supp. 2d at 1172 (applying K.S.A. 60-511[1]); Myers, 26 Fed. Appx. at 863 (applying K.S.A. 60-513[a][4]).
While the Tenth Circuit has not adopted the “one section, one statute of limitations” approach that the Second and Seventh Circuits have regarding § 510 of ERISA, application of the statutory liability provision in K.S.A. 60-512(2) has the same desired effects of uniformity of application and avoidance of outcome determinacy. See Sandberg, 111 F.3d at 335; Teumer, 34 F.3d at 548-49. Because all liability under § 510 of ERISA is created by that statute, the 3-year limitations period in K.S.A. 60-512(2) is applicable to any such action requiring an analogy to Kansas law.
Preemption
This conclusion is bolstered by ERISA’s broad preemption of any state law which “relates to” employee benefit plans. See 29 U.S.C. § 1144. While preemption was not argued by the parties or considered by any of the federal courts that have resolved this issue to date, it nevertheless plays an important role when determining the nature of a cause of action under Kansas law. As this court explained in Coleman v. Safeway Stores, Inc., 242 Kan. at 811, any conclusion that a retaliatory discharge action may arise under Kansas law for violation of a federal statute implicitly requires a determination that the state law action would not be preempted by federal law. In other words, if this court concludes that a state cause of action for retaliatory discharge of ERISA rights is preempted by ERISA, we must also determine that Burnett’s present claim may not be characterized as a tort.
In Coleman, this court recognized that preemption was an “important issue,” but ultimately determined that die plaintiff there could bring a retaliatoiy discharge action for violation of the Workers Compensation Act because such an action was not preempted by federal labor law. 242 Kan. at 811, 813. See also Lingle v. Norge Division of Magic Chef Inc., 486 U.S. 399, 413, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988) (state law action for retaliatory discharge not preempted by § 301 of the Labor Management Relations Act [LMRA], 29 U.S.C. § 185). Similarly, this court found in Flenker that a retaliatoiy discharge claim for violation of OSHA could lie, as OSHA did not preempt such actions:
“Preemption is not an issue here. Willamette does not contend that OSHA preempts state common-law retaliation claims. The Tenth Circuit in a footnote to its certification order says ‘Congress did not intend for OSHA § 11(c) to occupy this field of law, nor does OSHA conflict with state law, thereby preempting it. [Citation omitted.]’ Preemption is an application of law concept in which federal law must be applied to the exclusion of state law for uniformity of interpretation. [Citations omitted.]” Flenker, 266 Kan. at 202.
The preemption provisions discussed in these cases are far less comprehensive than the broad ERISA preemption applicable to § 510 claims. While it is not before this court to determine whether such a claim would be preempted by ERISA, such an outcome is extremely likely. Therefore, this case presents an interesting scenario where Kansas not only has not recognized a particular cause of action (retaliatory discharge under ERISA), but also is preempted from recognizing such an action in the future.
While federal courts deciding the most analogous state law statute of limitations for actions under § 510 of ERISA have largely discounted the preemption issue, it cannot be discounted when considering the applicable limitations period under Kansas law. The question for determining whether K.S.A. 60-512(2) should apply is whether a state law action exists at common law apart from the statute. In this case, no such law exists (as the parties note), and no state law action can exist apart from ERISA, as long as the preemption provision remains operational. Thus, the liability under § 510 arises only from the enactment of ERISA, confirming that K.S.A. 60-512(2) provides the appropriate hmitations period.
CONCLUSION
Southwestern Bell is, in essence, arguing that although Kansas has not recognized a cause of action for retaliatory discharge based on the denial of disability benefits under ERISA, and although it is preempted from recognizing such a cause of action by ERISA’s own language, this court should nevertheless hypothesize that it might recognize such a cause of action in the absence of the federal statute, and thus apply the 2-year hmitations period applicable to other wrongful discharge cases based upon the expressed public policy of this state. Not only is this reasoning riddled with hypotheticals, it is an incorrect statement of the applicable test under Kansas law.
The determination of the applicable statute of limitations in this case requires this court to ascertain the most analogous cause of action under Kansas law to Burnett’s action under § 510 of ERISA. The question to be answered in this state is whether the same cause of action for retaliatory discharge of ERISA rights (not a similar cause of action) would be recognized at common law in tire absence of ERISA. If no such cause of action did or can exist, as is the case here, then the claim is most analogous to a state action for liability created by statute, and Kansas law dictates that the 3-year statute of limitations under K.S.A. 60-512(2) applies.
ERISA is a comprehensive statute, both defining protected rights (such as the long-term disability rights at issue here) and establishing the remedies for violations thereof. These remedies are not state law causes of action for retaliatory discharge, but are creatures of statute. In the absence of the statute, no similar right or action was recognized at common law. Therefore,
“[t]he present action is one upon a liability created by statute. Without the statute there would be no basis whatever for the plaintiff s claim. [Citation omitted.] The statute giving the right of action is not one relating to remedy or procedure; it concerns the substantive rights of the parties and imposes an obligation where none before existed.” Hollinger v. Dickinson County, 115 Kan. at 95.
We conclude that the claim involved is brought under § 510 of ERISA, which is based on liability created by statute. Thus, K.S.A. 60-512(2) provides the appropriate statute of limitations.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Kaul, J.:
Defendant, John B. Finley, appeals from convictions in a consolidated trial of two separate informations. In the first information defendant was charged with burglary and larceny in connection therewith pertaining to the dwelling house of Elmer Childress in Wichita. In the second information defendant was charged with burglary and larceny in connection therewith pertaining to the dwelling house of Bill G. Rigsby, and in a second count with the possession of burglary tools in violation of K. S. A. 21-2437 (repealed L. 1969, Ch. 180, Sec. 21-4701 [now, K. S. A. 1970 Supp. 21-3717]).
Defendant was convicted of all five offenses. After previous notification to defendant, the State produced evidence of two prior felony convictions and defendant was sentenced to concurrent life sentences on each of the five charges pursuant to the provisions of K. S. A. 21-107a (now K.S.A. 1970 Supp. 21-4504).
On appeal defendant assigns nine points of error. Even though we find the conviction for burglary must be set aside and a new trial had for reasons hereafter stated, we deem it necessary to consider several points relating to other matters raised.
Defendant’s first point is directed at the trial court’s denial of his plea of former jeopardy based on the fact that a previous trial on these charges was aborted by the trial court’s declaration of a mistrial.
Defendant’s first trial commenced on October 20, 1969, and proceeded to the submission of the case to the jury on October 23, 1969. The jury was unable to arrive at a verdict and was permitted to separate during a recess for the night.
Following the adjournment of court on October 23, Mr. Zavala, a member of the jury, was contacted by one Pat Cordova, who was later identified as a girl friend of defendant. According to Zavala’s testimony, taken the following morning, Mrs. Cordova followed him from the courthouse, where she had been attending the trial as a spectator, and approached Zavala when he and his wife stopped at a place known as Atlantic Mills to pick up some merchandise while he was on his way home from court. At that time Mrs. Cordova told Zavala that the defendant was not guilty, but that she could not talk further with Zavala for fear that she would get in trouble. Arrangements were made for Mrs. Cordova to call Zavala at his home at 7 o’clock that evening. Zavala arranged a meeting with Mrs. Cordova then informed the police who arrested Mrs. Cordova shortly after the meeting. Apparently, Zavala also informed the trial judge of the incident by telephone later in the evening.
When court convened the following morning Zavala was directed to come forward and be sworn as a witness in the presence of the other members of the jury. The court then announced that it had been informed by a telephone call from the juror who was now taking the witness stand. Zavala was then interrogated concerning his meetings and conversations with Mrs. Cordova by the court and counsel for both the State and defendant. Zavala testified that he had been influenced and that if he sat on the jury he would not be giving the defendant a fair chance.
At the conclusion of Zavala’s testimony, the trial court addressed the jury in pertinent part as follows:
“ ‘The jury, I think, now realizes it is necessary to declare a mistrial in the case. I suppose that needs no further explanation, and since this was brought about by no fault of the prosecution, the Court declares this defendant has not been placed in jeopardy and he may be retried on these charges, or on amended charges. . .
During the course of its comments the trial court advised defendant’s counsel as follows:
“The Court: Do you have anything to say Mr. Lawing?
“Mr. Lawing: No, your honor. I am sure the Court knows what to do in this case.”
The court then declared a mistrial and discharged the jury.
An amended information was filed and the case was recalendared for trial. In the meantime, defendant filed a motion for discharge on the ground that he had been in jeopardy for the same offenses at the previous trial. Defendant’s motion was overruled; the trial ensued resulting in the convictions from which this appeal is taken.
Based on the circumstances surrounding the declaration of the mistrial, defendant on appeal contends that his constitutional right of protection from being twice put in jeopardy for the same offenses has been violated.
Defendant argues that since no misconduct on his part brought about the situation any declaration of a mistrial without his consent constitutes jeopardy and bars reprosecution.
In response to defendant’s contention the State asserts (1) that the circumstances clearly established the necessity of a mistrial and (2) that the response of defendant’s counsel to the court’s query was tantamount to consent by the defendant.
Circumstances warranting the discharge of a jury prior to verdict are set out in K. S. A. 60-248 (†):
“The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.” (Emphasis supplied.)
It should be noted that at the time of the instant trial, the foregoing statute was made applicable to the trial of criminal cases by K. S. A. 62-1412 (repealed, L. 1970, Ch. 129, Sec. 22-4604; State v. Blockyou, 195 Kan. 405, 407 P. 2d 519). Ordering of mistrials in criminal cases is now governed by K. S. A. 1970 Supp. 22-3423.
Although Mrs. Cordova was identified as a girl friend of defendant, the record does not establish that she contacted Zavala at the instigation of defendant. Nevertheless, we believe that jury tampering by a third person, when established by judicial determination, is of such gravity as to necessitate a mistrial. Particularly where, as in this case, a juror confesses that he has been influenced so he could not give a fair trial.
In State v. Hansford, 76 Kan. 678, 92 Pac. 551, the charge was statutory rape. On the second day of the trial one of the jurors disclosed that he entertained a prejudice growing out of an incident that occurred in his father s family, which was revived in his mind by the testimony given in the case. After hearing the statement of the juror, the trial court, over defendant’s objection, declared a mistrial. When the case was again brought on for trial the defendant filed a plea of former jeopardy, the denial of which was the basis for defendant’s appeal.
In considering disqualification of a juror as grounds for a mistrial with respect to jeopardy, Chief Justice Johnston spoke for the court in this language:.
“. . . When a juror, as in this case, confesses to an incurable prejudice which disqualified 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 object 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.” (pp. 682-683.)
At the time of the Hansford appeal (1907), the applicable statute governing discharge of a jury was G. S. 1901, ch. 80, art. 15, § 4728. It was the forerunner of 60-248 (/), supra, and identical except the phrase “or other necessity to be found by the court requiring their discharge,” was not included. Nevertheless, the court determined that the word “accident” as used in the section covered the occurrence in question, stating in the opinion:
“. . . It was a contingency which could not have been foreseen or well avoided by any one connected with the trial, unless it was the juror himself, and his examination does not betray any dishonesty of purpose. It therefore appears to have been an accidental occurrence — one which showed a manifest necessity for the discharge of that jury and the impaneling of one which could render a just and impartial verdict.” (p. 686.)
No Kansas case dealing specifically with jury tampering is called to our attention. However, in view of the nature of the occurrence in Hansford, we believe what was said and held therein is fully applicable to the instant case.
The rule announced in the Hansford decision remains the law in this jurisdiction. In State v. Gray, 189 Kan. 398, 369 P. 2d 330, a mistrial was declared following a juror’s announcement of disqualification in much the same manner as in Hansford. In dealing with the question of double jeopardy in the appeal from a conviction after a reprosecution we held:
“The general rule is that when particular circumstances manifest a necessity for so doing, the trial court may, in its sound discretion, declare a mistrial, discharge the jury, and require a defendant to stand trial before another jury when failure so to do will defeat the ends of justice to either or both parties.” (Syl. IT 2.)
In the Hansford case the defendant objected to a mistrial; in Gray defendant was silent. In the present case there was certainly no objection by defendant. It is unnecessary to determine whether the statement of defendant’s counsel amounted to consent.
It would have been better practice to have taken the statement of the juror, Zavala, in the absence of the other jurors, but in view of fire gravity of the occurrence, which we consider greater than in either Hansford or Gray, we cannot see abuse of discretion in the trial court’s determination that a mistrial was of manifest necessity.
In view of the holding of the United States Supreme Court in Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056, which imposed the federal jeopardy rule on state jurisdictions, we have examined that court’s most recent opinion dealing with the subject in United States v. Jorn, 400 U. S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547. In Jorn the conviction was set aside, but the court reaffirmed previous holdings pertaining to necessity announced in Wade v. Hunter, 336 U. S. 684, 93 L. Ed. 974, 69 S. Ct. 834, reh. den. 337 U. S. 921, 93 L. Ed. 1730, 69 S. Ct. 1152; and Thompson v. United States, 155 U. S. 271, 39 L. Ed. 146, 15 S. Ct. 73, both of which were cited in support of our decision in State v. Gray, supra.
Defendant cites the cases of In re Brown, 139 Kan. 614, 32 P. 2d 507, and Kamen v. Gray, 169 Kan. 664, 220 P. 2d 160. Neither case deals with the proposition whether the disqualification of or tampering with a juror necessitates a mistrial. We find nothing therein that lends support to defendant in the instant case.
We are convinced the facts surrounding the declaration of the mistrial in defendant’s first trial was of such a nature that neither defendant nor the State could have received a fair trial; thus it cannot be said the trial court’s action was an abuse of discretion.
Defendant next complains of the introduction by the State of evidence of two prior convictions of burglary. In Instruction No. 4 the court properly limited the jury’s consideration of the prior convictions to the question of defendant’s motive, intent, pattern of conduct or mode of operation, as such matters were relevant to the offenses charged. The defendant’s chief argument on this point is that the prior convictions were too remote in time (eleven and sixteen years) to be of any probative value on the issue of defendant’s guilt in the instant case. There is no merit in defendant’s contention. We have repeatedly held that the time of a prior offense goes only to its weight. (State v. Jamerson, 202 Kan. 322, 449 P. 2d 452 and cases cited therein.) If a prior offense is similar it is ordinarily admissible and showing it to be identical is unnecessary. (State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63; and State v. Wright, 194 Kan. 271, 398 P. 2d 339.)
Defendant next contends he was erroneously denied the opportunity to present exculpatory evidence. Defendant says he was unduly restricted in his cross-examination of several prosecution witnesses and was denied access to a police report which he claims was used by one of the State’s witnesses in his testimony. We have carefully examined the excerpts of the trial transcript reproduced by defendant, pertaining to the matters raised, and find nothing presented which requires a reversal.
We turn next to what appears to be the most serious point raised in this appeal. Defendant claims the trial court failed to set forth all of the necessary elements of the offenses charged.
We find no merit in defendant’s contention with respect to the charge of possessing burglary tools. Defendant submitted a requested instruction on this charge which appears to be identical with the instruction approved by this court in State v. Hart, 200 Kan. 153, 434 P. 2d 999 (Instruction No. 9, Appendix, p. 164). The trial court did not give the requested instruction, but instructed as follows:
“The law of Kansas also provides that any person who knowingly has in his custody, with an intent that they be used for purposes of burglary, any instrument or mechanical device commonly used for breaking into stores, shops or dwelling houses, shall be adjudged guilty of possession of burglary tools.”
The court properly defined the term “custody” in a following instruction. While the instruction given is not as comprehensive or desirable in form as that reproduced in the “Appendix” in the Hart opinion, nevertheless, we believe it serves to inform the jury of the essential elements of the offense as identified in State v. Hart, supra, wherein we said:
“. . . the gravamen of the offense proscribed by the statute is, so far as this case is concerned, the possession of burglary tools intending they be put to a burglarious use. . . .” (p. 157.)
It is the rule of this jurisdiction that error cannot be predicated on the refusal to give certain requested instructions when those given cover and include the substance of those which are refused. (State v. Jorgenson, 195 Kan. 683, 408 P. 2d 683.)
We next direct our attention to what the defendant contends is the fatal omission of the element of intent in the instructions given pertaining to the offenses of burglary and larceny. We cannot agree with defendant’s contention concerning intent with respect to larceny, but we are compelled to hold the instructions pertaining to burglarly to be defective in this regard.
In Instruction No. 2 the court instructed on burglary in the third degree as follows:
“The law of Kansas provides that any person who shall be convicted of breaking and entering, in the daytime, any dwelling house in which there shall be at the time goods, wares, merchandise or other valuable thing kept or deposited, shall be adjudged guilty of burglary in the third degree.
“The law of Kansas also provides that if any person in committing burglary shall also commit a larceny, he shall on conviction, be adjudged guilty of larceny while committing burglary.”
In the court’s prefatory Instruction No. 1 burglary was correctly defined in general terms, but no mention was made of the element of “with the intent to commit a larceny or felony thereon,” which was also omitted in Instruction No. 2.
In Instruction No. 3 the court instructed generally on intent as follows:
“Intent is a necessary element in the commission of crime. Direct evidence is not required to show the intent with which an act is committed. Intent is a state of mind which may be inferred from the commission of an unlawful act and from all the facts and circumstances in the case.”
While it may be said Instruction No. 3 adequately apprised the jury of intent as a necessary element of a criminal offense, it fails to inform as to the specific intent required in burglary. The elements of burglary in the third degree are defined in K. S. A. 21-521 (now K. S. A. 1970 Supp. 21-3715, 21-3716) in terms of reference to the circumstances of burglary in the second degree (K. S. A. 21-524, repealed L. 1969, Ch. 180, Sec. 21-4701), which in turn refers to the circumstances of burglary in the first degree. Burglary in the first degree, as defined in K. S. A. 21-513 (now K. S. A. 1970 Supp. 21-3715, 21-3716), includes as an element “with intent to commit some felony or any larceny therein.” It follows that such intent is a necessary element in burglary in the third degree and must exist at the time of the breaking and entering. (State v. Gatewood, 169 Kan. 679, 221 P. 2d 392.)
The information in each case included the element referred to, but the informations were not included in the instructions. In other words, the element of “with intent to commit some felony or any larceny therein” with reference to the burglary charges was totally omitted, nor can it be reasonably inferred that the jury was so informed by any of the other instructions given.
K. S. A. 62-1447 [now K. S. A. 1970 Supp. 22-3414], provides:
“The judge must charge the jury in writing and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. . . .”
Instructions contemplated by the statute are those which are indispensable. (State v. Younger, 70 Kan. 226, 78 Pac. 429.) In a burglary prosecution “intent to commit some felony, or any larceny therein” is a necessary element; thus the statute places a positive duty upon the trial court to instruct thereon. (State v. Roth, 200 Kan. 677, 438 P. 2d 58; and State v. Gatewood, supra.)
In considering the duty of a trial judge under the provisions of the statute, which now appears as 62-1447, supra, Chief Justice Johnston spoke for the court in State v. Lynch, 86 Kan. 528, 121 Pac. 351, in these words:
“This provision does not require any particular form of instruction, nor that the judge shall, without request, instruct upon every minute detail of the issue, but, whether requested or not, the definition of the offense charged, and a statement of its essential elements, are indispensable (citing cases).” (p. 531.)
See, also, State v. Clark, 69 Kan. 576, 77 Pac. 287; and State v. Poole, 65 Kan. 713, 70 Pac. 637.
In accord with what has been said the burglary convictions must be reversed and defendant given a new trial thereon.
In the informations pertaining to both the Childress and Rigsby burglaries, in addition to burglary, defendant was charged with stealing and carrying away specifically listed items of personal property of the value of more than $50 and the jury was instructed accordingly, together with the instruction previously noted concerning intent. We find no merit in defendant’s challenge of the instructions with respect to intent as related to the larceny charges.
Although, they may be charged in the same count of an information under 21-524, supra, larceny and burglary are separate and distinct offenses. There is no compound offense of burglary and larceny. (State v. Bratcher, 105 Kan. 593, 185 Pac. 734; and State v. Mooney, 93 Kan. 353, 144 Pac. 228.) Even though charged in the same indictment a conviction may be had for one offense, notwithstanding an acquittal for the other. (State v. Ingram, 198 Kan. 517, 426 P. 2d 98.) In the recent case of State v. Baker, 197 Kan. 660, 421 P. 2d 16, a prosecution for burglary and larceny in connection therewith, an essential element of burglary was omitted in the information. The defect was jurisdictional and thus the burglary conviction was held void, but a larceny conviction was affirmed. There we held:
“Under an information charging the defendant with burglary, and larceny of property worth more than fifty dollars committed in connection therewith, the defendant’s conviction of the offense of grand larceny, supported by substantial, competent evidence, may be sustained, notwithstanding that his conviction on the burglary charge is void.” (Syl. f 4.)
In the instant case the larceny convictions are supported by substantial, competent evidence in the form of eyewitness testimony and evidence showing recent possession of stolen property.
We have carefully examined other points raised by defendant pertaining to instructions and other alleged trial errors and find no error that would justify the reversal of his convictions and sentences for grand larceny and possession of burglary tools.
Accordingly, the trial court’s judgments and sentences for the offenses of grand larceny and possession of burglary tools are affirmed and its judgments and sentences for the burglary offenses are reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Harman, C.:
This is an action by claimants Kenneth F. Wolf and Dorothy J. Wolf, his wife, against the estate of Celia Dreiling Billinger, deceased, for specific performance of an oral contract between claimants and the decedent whereby she was to devise and bequeath her entire estate to them, except for one quarter section of land and a $5,000 bequest to the local Catholic church. The trial court ordered specific performance of the alleged contract and the executor of the decedent’s estate has appealed.
Trial was to the court. The story developed therein may best be told initially by quoting the findings and rulings entered by the court as follows: >
“No. 1
“The written stipulations signed by counsel and filed March 6, 1970, are made part of the findings of the Court. These stipulations set out die description and popular name of each piece of farm real estate owned by the decedent, Celia Dreiling Billinger, at the time of her death, April 18, 1968.
“No. 2
“In these findings and in the trial the claimants, Kenneth and Dorothy Wolf, husband and wife, are referred to as plaintiffs, and the executor and all respondents are referred to as defendants.
“The Court also accepts as part of the evidence the record of the decedent’s estate herein in the Probate Court of Ellis County, Kansas.
“No. 3
“Dorothy Wolf, a plaintiff, is the daughter and only child of John P. Dreiling and Celia Dreiling Billinger, both deceased, having been legally adopted as an infant of about three months of age at the time of the adoption.
“It is stipulated the King half section title had been in the name of John P. Dreiling before his death, August 9, 1964. Celia died April 18, 1968.
“No. 4
“The Court finds from a preponderance of clear and convincing evidence that in about late August, 1962, John P. Dreiling and Celia Dreiling made the following oral offer to Kenneth and Dorothy Wolf, the plaintiffs: that if Kenneth and Dorothy Wolf would come back to the farm and their employ, they, John P. and Celia Dreiling, would pay $200.00 per month and would convey the King farm to them. The Wolfs said they would think it over and returned to Hutchinson where Kenneth was working as a mechanic. This is the testimony of Kenneth and Dorothy concerning a conversation at the Dreiling residence in which Celia and John P. Dreiling and Kenneth and Dorothy Wolf were present.
“About mid-September, 1962, in response to a phone call, Kenneth and Dorothy Wolf returned to Hays where at the Dreiling residence Celia, in the absence of John P. Dreiling, repeated this offer and added the further offer that she would also within a year if she lived, convey the ‘Daisy’ farm she owned in Graham County to die Wolfs, and if she did not live, she would leave the Daisy farm to the Wolfs. This is the testimony of both Kenneth and Dorothy Wolf. These offers were accepted by Kenneth and Dorothy and they immediately returned to Hutchinson to load their belongings and moved to Ellis County into the house on the Disney farm and became subservient to every request of Celia and John P. Dreiling.
“No. 5
"As corroboration for the foregoing, the Court finds from a preponderance of clear and convincing evidence as follows:
“These offers and acceptance were made at a time when Celia and John P. Dreiling were preparing to go to the Mayo Clinic in Rochester, Minnesota, she for hospitalization and he for physical checkup. And they had experienced difficulty keeping hired help. Under circumstances of past experiences of Kenneth and Dorothy Wolf in two previous periods in the employ of Celia and John P. Dreiling, it would be unreasonable and unlikely they would return to those conditions and employment for merely $200.00 per month.
“The evidence shows Celia was tight with money and property and demanding, domineering, and suspicious toward hired help including her daughter and son-in-law, Dorothy and Kenneth Wolf. In a suspicious manner, Celia followed the practice of seeking to retain control in herself in minute detail so that working for her became an ordeal.
“Shortly before this, according to the testimony of Mrs. Martha Schlachter, Celia told her of her difficulties with hired help, and that she, (Celia) would do anything to get Kenneth and Dorothy Wolf back.
“George Amrein, a neighboring farmer, testified that in the fall of 1963 on the occasion of helping Kenneth Wolf and John P. Dreiling butcher a hog, John told him, ‘The kids (Kenneth and Dorothy Wolf) have treated him so good he was going to have to give them something . . . and I remember he mentioned the King place.’
“Attorney Thomas C. Boone testified that in the spring of 1964, John P. Dreiling while in Boone’s office, ‘lamented’ that he wanted to convey the King farm to Kenneth and Dorothy Wolf but Celia would not permit it.
“The evidence is clear and convincing that Kenneth and Dorothy fully and continuously performed their part of the oral contract up until the death of John P. Dreiling, August 9, 1964, but both John P. and Celia Dreiling had failed to transfer title to the King farm owned by John or the Daisy farm owned by Celia,
“No. 6
“The Court finds from a preponderance of clear and convincing evidence that a few days after the death of John P. Dreiling, plaintiffs Kenneth and Dorothy Wolf drove Celia in a car to the office of Attorney F. F. Wasinger in Hays, and Celia obtained the last will of John P. Dreiling from Mr. Wasinger. In the car after leaving the office of Mr. Wasinger, and in the presence of Kenneth and Dorothy Wolf, Celia showed the will to Kenneth Wolf who after reading it said, “Well, are we going to get the King place or are we going to have to make a claim against it?” Then Celia stated that if Kenneth and Dorothy Wolf would make no claim against the estate of John P. Dreiling, deceased, and would continue to help her and work for her just as in the past and help her get all of John’s property in her name, she would at her death leave all her property to them except $5,000.00 for the church and the Nick Dreiling quarter which she would return to her brother-in-law Nick Dreiling. This is the testimony of both Kenneth and Dorothy Wolf, and they accepted this offer by Celia.
“No. 7
“As corroboration of the foregoing, the Court finds from a preponderance of clear and convincing evidence as follows:
“Kenneth and Dorothy Wolf did not file a claim against the estate of John P. Dreiling, deceased, in the the Probate court of Ellis County. That estate has since been closed and their claim for the King farm against John P. Dreiling became barred by the non-claim statute. Their claim against Celia for the Daisy farm became merged in the foregoing new contract.
“Kenneth and Dorothy Wolf continued working for Celia as they had in the past. Both worked in the fields and neighbors testified to seeing Celia tending the children at times while Dorothy was operating farm equipment in the field, indicating Celia expected such field work from Dorothy. Kenneth and Dorothy met every request of Celia night and day and Sundays, far beyond what would be expected of a $200.00 per month hired hand. And were totally subservient to Celia under conditions and circumstances that no ordinary hired hand would put up with. Only a contractual promise far in excess of $200.00 per month and living quarters and bonuses shown by the evidence, makes their continuing under the conditions shown by the evidence understandable. They continued working in this manner until about the 26th day of May, 1967, when Ceila and her daughter quarreled and exchanged blows over an unfortunate dispute over which one would endorse and deposit some checks for cattle sales on behalf of Dorothy’s children. Following this quarrel, Celia ordered Kenneth and Dorothy Wolf to leave and said she would rent all her land. Even after this incident, and Kenneth and Dorothy Wolf left the farm, Celia and Lewis Billinger, who she married April 24, 1967, continued to make frequent requests of Kenneth to work and Kenneth complied until January, 1968, when the requests ceased. Kenneth testified he never refused a request made by Celia. He frequently took his children to see Celia up until her death, April 18, 1968, but Celia showed no desire to see her daughter, Dorothy Wolf, after the incident about May 26, 1967.
“George Amrein, a neighbor, testified to a conversation he had with Celia at a Christmas party in 1964 at the Disney farm where Kenneth and Dorothy Wolf and family lived. Celia was in the kitchen, started crying and told Mr. Amrein the kids (Kenneth and Dorothy Wolf) had treated her so good she was going to do something, and said, ‘Well, I am going to start putting some land in their name/ and then she said, ‘They are going to get everything anyway.’
“Attorney Thomas C. Boone, who handled the probate of the will and administration of the estate of John P. Dreiling, deceased, testified that Celia told him at times during the administration that she desired to malee a new will.
“On December 14, 1965, Celia executed her new will, a copy of which is Plaintiffs’ exhibit 26, obtained from Attorney Boone’s files. This will was prepared by Mr. Boone at Celia’s direction. This will substantially complies with the terms of the oral agreement between Celia and Kenneth and Dorothy Wolf following the death of John P. Dreiling in August, 1964, referred to above. This will gives $5,000.00 to the church and the Nick Dreiling quarter to Nick Dreiling. Except for a $2,000.00 bequest, the rest of the estate is given part to Dorothy and part in trust for the children of Dorothy and Kenneth Wolf. Mr. Boone testified Celia in giving directions for her will, expressed distrust of the business judgment of Kenneth Wolf and said she wanted to secure property for the children, and so a trust was decided upon. This will substantially complies with the agreement in that the gifts are to the family of Kenneth and Dorothy Wolf and conforms to Celia’s trait of retaining control and attaching strings. As Mr. Boone expressed it, ‘she was always hedging her bets.’ In view of possessive and retentive traits this is about as close as she could be expected to comply.
“Mr. Boone testified that about May 26 of 1967, on the evening of the fight between Celia and her daughter, he was called to Celia’s home in Hays at which time Celia told him of the fight and said she wanted to make a new will disinheriting her daughter. Mr. Boone advised her to wait a few days. She contacted Boone a few days later with the same request and Mr. Boone again told her to wait a few days. She called on Mr. Boone frequently later on other matters up until two weeks before her death but did not again mention her will. Mr. Boone testified lie did not learn until after her death April 18, 1968, that Plaintiffs’ exhibit 26 was not a copy of her last will.
“Attorney Jack Curtis of Hays testified that on November 14, 1966, Celia brought her will, of which Plaintiffs’ exhibit 26 appears to be a copy, and asked him to prepare a new will in which the only change was the designation of executor and trustee. The new will removed Mr. Boone as executor and named Kenneth and Dorothy Wolf as executors, and removed Boone and named Gabriel Denning as trustee. Mr. Curtis so prepared the new will and she executed it at that time. Mr. Curtis testified he destroyed the previous will of which Plaintiffs’ exhibit 26 was a copy.
“Mr. Curtis further testified that on about June 1, 1967, Celia came to his office and said, ‘Dottie beat me up,’ and that she wanted to change her will. Mr. Curtis prepared a new will at her direction and on June 2, 1967, Celia executed the new will in Mr. Curtis’ office. This is the last will admitted to probate herein, along with the codicil dated March 5, 1968, which Mr. Curtis also prepared for her. This last will dated June 2, 1967, about six days after the fight between Celia and her daughter makes no mention of her daughter or her daughter’s family and totally disinherits them all.
“No. 8
“The Court finds from a preponderance of clear and convincing evidence that Kenneth and Dorothy Wolf fully performed the oral contract entered into with the decedent, Celia, in August 1964 referred to above, and that the fight on or about May 26, 1967, between Celia and her only daughter, Dorothy, did not breach that contract. The Court further finds from a preponderance of clear and convincing evidence that Celia did breach that contract when on June 2, 1967, she changed her will and executed her last will in which she disinherited her daughter and only child Dorothy Wolf, as well as her husband and grandchildren. Celia breached the oral contract by permitting the will, dated June 2,1967, to be her last will.
“No. 9
“All of the last will and codicil thereto, except paragraphs First, Second and Sixth of the last will dated June 2, 1967, are contrary to the terms of the contract and should be set aside. Specific performance should be ordered, and the executor should be ordered to convey and transfer to Kenneth and Dorothy Wolf all property of the estate after payment of costs, taxes and debts and after complying with paragraphs First and Second of the last will, dated June 2,1967.
“The oral contract of mid-August, 1964, referred to in finding No. 6 above is not void under the statute of frauds because the oral contract was capable of complete performance in less than a year in the event Celia died in less than a year, and further because the contract has since been completely performed by the plaintiffs, Kenneth and Dorothy Wolf.
“The contract is capable of specific performance by the executor, the legal representative of the decedent, Celia Dreiling Billinger, and specific performance should be ordered.”
The executor-appellant urges reversal upon four grounds which will be considered in the order presented and briefed. His principal complaint is there was no clear and convincing evidence of the alleged oral contract. In support he relies on the following rule found in In re Estate of Shirk, 194 Kan. 424, 399 P. 2d 850:
“When an oral contract with a person since deceased is made the basis of an action for specific performance, it is not sufficient that the contract be established by a mere preponderance of the evidence but such evidence must be clear, cogent and convincing.” (Syl. ¶ 1.)
In the same case we defined the term “clear and convincing evidence” thus:
“The term 'clear and convincing evidence’ means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.” (Syl. ira.)
Despite this requirement of proof beyond that necessary in the ordinary civil action, every fact need not be proved beyond a reasonable doubt. In In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253, we find this:
“The rule relative to clear and convincing evidence being necessary to prove the definite terms of oral contracts to devise or bequeath property does not extend to the point of requiring that every provision of the agreements must be proved beyond a reasonable doubt.” (Syl. f 3.)
In Jones v. Davis, 165 Kan. 626, 197 P. 2d 932, the court held that although the evidence to establish an oral agreement to devise property must be clear and convincing, it is the trial court which is to be satisfied and convinced.
In In re Estate of Isom, 193 Kan. 357, 394 P. 2d 21, we commented on the character of the evidence which may be received as proof of such an oral contract, thus:
“Oral contracts with deceased persons may be proved by direct evidence or by corroborating testimony in the nature of admissions or statements to third parties, facts, circumstances or conduct consistent with the making of contracts, performance attributable to the contractual relationship, the failure to compensate otherwise for performance and by any other competent evidence which may create a convincing implication that a reasonably certain contract was made which, with equity, may be enforced.” (Syl. 1f 3.)
And in Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396, an action to enforce an oral agreement to devise property in consideration of services rendered, the court stated:
“If . . . the contract is sufficiently certain and definite in subject-matter and purpose and has been clearly and certainly established by the evidence, and the facts are such as to take it out of the operation of the statute of frauds, and there are no circumstances or conditions which would make enforcement inequitable, courts do not hesitate to give effect to a contract, although it is not in writing. ... it is not essential that it be established by direct evidence. If the facts and circumstances brought out are such as to raise a convincing implication that the contract was made and to satisfy the court of its terms, and that there would be no inequity in its enforcement, it is enough. [Citations.] This is especially true where, as here, the parol evidence is supplemented and supported by the acts of the parties.” (p. 700.)
Appellant contends there was no clear and convincing evidence of the alleged oral contract entered into between appellees and the decedent, Celia Billinger, formerly Celia Dreiling; that their only evidence was circumstantial and had no corroborative support apart from their testimony. We cannot agree.
Five days were consumed in hearing the evidence in this case, most of the testimony and exhibits received being that produced on behalf of appellees. The record on appeal consists of more than five hundred pages, again most of it being evidence favorable to appellees. It would serve no useful purpose to anyone to detail it much beyond that stated in the trial court’s findings. Suffice it to say, those factual findings are abundantly supported by competent evidence. That evidence reveals a long course of conduct by both Celia and the appellees supporting the latters’ cause. The initial agreement, made shortly after the death of John P. Dreiling, was definitely and clearly shown by the direct testimony of each appellee, as set out in the court’s finding No. 6. In addition each appellee testified that on several subsequent, plainly identified occasions Celia repeated the same promise to the effect they would receive all her property at her death except the bequest to the church and the Nick Dreiling quarter which Nick had previously owned but had lost during the depression. Corroboration of the agreement was shown in many respects as set forth in finding No. 7. Celia commented several times that various tracts of her land would make nice future homes for appellees’ six children, identify-each tract with the name of a child.
Moreover, appellees had had two previous experiences of employment with Celia which did not turn out well for them with the result they quit and left Celia and her then husband, John Dreiling. In returning again only after Celia’s repeated urgings, they gave up a way of life more agreeable to them than that which they knew from past experience they were likely to endure in the future. Celia was portrayed by all as a parsimonious, suspicious, demanding person, whose wants and needs were not easy to satisfy. Appellees put forth tremendous effort to comply with all requests asked of them and dutifully carried out their part of the bargain. They did many things for her of a personal nature which an employee or tenant would never have been expected to do for the wages paid. For example, Celia did not operate an automobile until taught by Kenneth shortly before her death, and while Mr. Dreiling lived, Dorothy drove her mother from Celia’s home and beauty shop in Hays to the farm and back, a distance of nearly ten miles each way, at noon and again at night. After Mr. Dreiling’s death these trips were reduced to one every evening, the purpose being for Celia to check up on all farm work done and produce gathered. On Sundays appellees chauffered Celia over the countryside to look over her extensive land holdings, which were located in five counties. Generally they were not reimbursed for the expense of these trips, nor were they always repaid by Celia for other items expended in her behalf or upon her property. They also performed many other services for Celia of an intimate nature to the extent she virtually dominated their lives while, at the same time, they were having and rearing their children. Celia appeared to be genuinely fond of these grandchildren and participated completely in, and enjoyed, appellees’ family life. In addition to the ordinary farm work entailed in producing crops, appellees also raised chickens and kept cattle, both dairy and beef, and sold eggs and cream for Celia. They repaired, remodeled and repainted at least five of her tenant properties with the expectation they were going to occupy them — which occurred but once. They performed many other tasks and errands for Celia, being virtually on call at all hours of day or night. More could be said respecting their performance under difficult conditions, all of which properly can be considered as further corroborative evidence that such a contract as alleged by appellees was in fact made. We must conclude the evidence was sufficiently clear and convincing to support the findings made.
Appellant’s next two specifications of error may be treated together. He contends it would be inequitable to enforce the contract and that specific performance should be denied because appellees’ services are fully compensable in money. He argues appellees did not perform the contract to Celia’s expectations and were well compensated for what they did and should not inherit an estate which is said to be valued at about one million dollars. The trial court specifically found Celia, and not appellees, had breached the contract and that appellees had performed their part of the bargain. These findings too are amply supported by evidence. Even after appellees had left Celia’s farm at her request, she continued to insist that appellee Kenneth do many things for her until shortly before her death, including farm work and personal services, all of which requests Kenneth fulfilled. The fact that Celia saw fit to renounce her part of the bargain by executing a new will does not relieve her estate. A similar instance arose in Heery v. Reed, 80 Kan. 380, 102 Pac. 846, where this court said:
“The discharge operated, it is true, as a breach of the contract, and when it occurred Maggie [claimant] had the option to treat the contract as broken and sue for damages. On the other hand, Devenney could not force his renunciation of the contract upon Maggie. She was at liberty to treat the renunciation as inoperative and to hold herself in readiness to do that which the contract required of her and await the death of the Devenneys for complete performance and full payment.” (p. 385.)
Dorothy was Celia’s only heir at law and, with her children, the natural object of her bounty. The group represented by appellant were collateral heirs, Celia’s brothers and sisters and the brothers and sisters of her deceased husband, John Dreiling, as well as the children of any deceased brothers and sisters, a group with which Celia had little association. Appellees had sustained Celia prior to and throughout the life of the contract with material aid, comfort and assistance beyond that which could normally have been expected under the circumstances and they stood ready to continue to do so. As indicated, much of the service rendered was of a personal and intimate nature upon which it would be difficult, if not impossible, to place a monetaiy value. In Jones v. Davis, 165 Kan. 626, 197 P. 2d 932, this court, in a similar situation, said:
“Although courts will decline to decree specific performance where the services performed are inconsequential compared with the compensation contracted to be paid, they are reluctant to make a new contract for the parties, and where the contract pleaded and the proof adduced shows services extending over a long period, that services of an intimate and peculiar nature were performed, and that the claimant could not be adequately compensated in money and it would be inequitable to withhold enforcement of the contract, and the trial court so adjudges, the appellate court will not hold that the claimant could be compensated by a money judgment.” (Syl. f 4.)
Again, without further detailing the evidence, we think it may not be said as a matter of law that the record discloses a situation where specific performance should be denied for the reason such relief would be inequitable or because appellees’ demands may be compensated in money.
Finally, appellant complains generally respecting the reception of certain evidence offered by appellees, particularly that as to events occurring prior to the making of the August, 1964, contract and evidence respecting Celia’s personality. Actually there were few objections to evidence made on any ground during the course of the entire trial and nearly all that now complained of was received without objection. We discern no error in that received to which objection was made or of which complaint is now made. Essentially it was relevant to an understanding of the terms of the contract contemplated by the parties and how each performed under it.
No error appears in the, trial court’s judgment and it is affirmed.
APPROVED BY THE COURT.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
This is an appeal from a judgment denying appellant’s motion to vacate filed under K. S. A. 60-1507. The motion was denied after a plenary hearing at which appellant was present and represented by appointed counsel.
In the spring of 1967 appellant was temporarily residing in the Montgomery county jail awaiting trial on a number of criminal charges. It was then that he embarked upon the venture which led eventually to this case. The jailer was enticed to the cell area by a plea to malee a telephone call, and was soon confronted with a pistol at his head. While the jailer and two trusties involuntarily assumed a prone position, appellant made good his escape.
Upon his recapture appellant was separately charged with two new offenses, viz., escaping jail in violation of K. S. A. 21-736, and three counts of assault with intent to commit a felony, in violation of K. S. A. 21-434. The second charge made a separate offense of each individual assaulted and alleged the jailbreak as the intended felony in each assault charge.
In due course appellant, who was represented by appointed counsel throughout all of the original proceedings, pleaded guilty to charges contained in three separate informations. One plea was to a burglary charge which was challenged in the motion below, but which is not before this court. The second was to the escape charge, which was challenged neither below nor here, but is an essential ingredient of appellant’s present contention. The third plea, entered the same day but after the second, was to the assault on the jailer. (The assault charges as to the two trusties were dismissed.) It is the conviction resulting from this third guilty plea that is attacked here.
The claim is that the assault and the jail break were so interwoven as part of one continuous transaction that the state could not separate and make two offenses of them. A conviction of the jail break, appellant claims, barred prosecution for the assault. This claim is based both on the constitutional prohibitions against double jeopardy and on the statutory proscriptions of former K. S. A. 62-1444 and 62-1449.
In support of his double jeopardy argument appellant relies heavily on State v. Gauger, 200 Kan. 515, 438 P. 2d 455. It was there held that a person could not be convicted of assault with intent to rob and also robbery, as a result of one completed act of robbery. An assault, it was held, was an essential element of robbery, so that it would necessarily be proven if the robbery were proven.
Appellant’s reliance on Gauger is misplaced. The test is whether the proof of one offense necessarily proves the other, as was recognized in Gauger (p. 525):
“. . . This situation is clearly distinguishable from those cases where a single criminal transaction constitutes two separate offenses because evidence required to prove the two offenses would not be the same. (See, e. g., State v. Brown, 181 Kan. 375, 312 P. 2d 832 [first degree kidnaping and forcible rape]; Wagner v. Edmondson, 178 Kan. 554, 290 P. 2d 98 [assaulting a jailer and jailbreak]; Wiebe v. Hudspeth, 163 Kan. 30, 180 P. 2d 315 [statutory rape and incest].)”
Wagner v. Edmondson, used as an illustration in the quotation above, is virtually on all fours with this case. The petitioner there had pleaded guilty first to assaulting his jailer, and later to breaking jail. In disposing of the same “single transaction” double jeopardy argument made here the court said:
“ . . we note that it has been held that the test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge, and if not, the fact that both charges relate to and grow out of one transaction does not make a single offense where two distinct offenses are defined by statute. See Hunt v. Hudspeth, 111 F. 2d 42. See also McDonald v. Hudspeth, 129 F. 2d 196, certiorari denied 317 U. S. 665, 87 L. ed. 535, 63 S. Ct. 75, rehearing denied 317 U. S. 709, 87 L. ed. 565, 63 S. Ct. 157, and Tiller v. Hudspeth, 131 F. 2d 188, holding that where the same transaction constitutes a violation of two statutory provisions, the test to be applied in determining whether there are two offenses is whether each required proof of a fact which the other does not.” (178 Kan. 554 at 555-6.)
The offense of escaping from jail may well be committed without an assault, and an assault with intent to escape may be committed without accomplishing an escape. Since proof of one is not necessary to proof of the other, prosecution for both does not constitute double jeopardy.
What has been said also disposes of appellant’s argument under former K. S. A. 62-1444. That statute (replaced now by K. S. A. 1971 Supp. 21-3108) provided:
“When the defendant has been convicted or acquitted upon an indictment or information for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment or information for the offense charged in the former or for any lower degree of that offense, or for an offense necessarily included therein.”
This, it may be seen, was a legislative implementation of the constitutional prohibition against double jeopardy found in § 10 of the Bill of Rights of the Kansas Constitution and Amendment 5 of the United States Constitution. Measured by the test outlined above, assault with intent to break jail is not a “lower degree” of jail break, nor is it “necessarily included therein.” Hence its prosecution was not barred by the statute.
Appellant’s argument under former K. S. A. 62-1449 (also replaced by K. S. A. 1971 Supp. 21-3108) is slightly different. The thrust of the section is double jeopardy, but the operational fact is a trial at which evidence is introduced. As was stated in State v. McCarther, 198 Kan. 48, 50, 422 P. 2d 1012:
"... An essential component of 62-1449, supra, is the admission of evidence at the first trial. The sense of the statute is that the state may not retry a defendant for any offense which might have been included as an additional count in the information or on which the state might have elected to rely when evidence thereof was admitted at the first trial.” (Italics in the original.)
Thus if there had been a separate trial of the jail break charge at which evidence of the assault had been admitted, subsequent prosecution for the assault would have been barred -under the statute. The state’s remedy, had the matter gone to trial, would have been to include both charges as separate counts in one information or to have sought a consolidation.
Here, however, there was no trial and no evidence introduced. The statute was therefore inapplicable, as the court below correctly held.
Affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant Keith Sanborn, county attorney of Sedgwick county, seeks annulment of seven convictions of direct contempt of court entered against him by the Sedgwick county district court upon each of which he was sentenced to pay a fine of $25.00.
The conduct found contemptuous occurred while appellant was acting as attorney for the prosecution in the jury trial of nine defendants charged with varying felonies whose convictions comprise the appeal in State v. Pierce, et al., 208 Kan. 19, 490 P. 2d 584.
The principal trial in district court commenced March 24, 1969. The defendants were represented by Mr. Chester I. Lewis and Mr. Charles Scott. On the morning of April 8, 1969, the following proceedings occurred in the absence of the jury:
“The Court: Gentlemen, I have given much thought to the problems of —that have come up from time to time in regard to statements of counsel which were not warranted, objections which contained more than the legal points involved, and the fact that since this trial commenced we have been unable to start on time at any session. Henceforth, if there is to be a legal objection I will expect counsel, and counsel are ordered, to merely advise the Court that they object. If I need any legal reason for the objection I will ask counsel for the legal basis. In the event that there is a request to strike the testimony in addition to the objection, counsel may also request that the testimony be stricken. But there is to be nothing further said in regard to any objections leveled against testimony or evidence — physical evidence. In the event counsel feel it is necessary to argue concerning the admission of evidence or conduct of counsel, then request may be made to the Court for permission to argue, which may or may not be granted. But no argument is to take place without permission.
“Any violation of these rules — and these rules will be rules in effect during the remainder of this trial — and in the event of any violation it will be considered a direct contempt of this Court, and it is my intention to assess a fine of $25 upon each direct contempt action. I might add, what I will do is just have the court reporter tab the spot which I feel is contemptuous if it does occur, which I hope it doesn’t.”
Later on the same day, after the taking of certain testimony, the following occurred:
“Mr. Sanborn: I’d like to respectfully ask your Honor to consider the legal import of a portion of the announcement you made at the beginning of the hearing. That has to do with making a general objection only without stating the legal ground of the objection. And I believe that it is both the duty and the obligation of lawyers when making a record to state the legal ground of their objection. And I request your Honor to — over the lunch hour to reconsider one portion of your ruling having to do with making a general objection only and ask you to modify it to the extent of — without getting into any argument, but to the extent of stating the legal basis, as I fear that it would so circumscribe the ability to make a record that it might — well, you can see the implications, I think.
“The Court: No, I can’t.
“Mr. Sanborn: Well, the implication is that you have advised the lawyers that they may not state the legal grounds of their objection. And I believe that this exceeds the — well, it exceeds the — it prevents the record stating what is essential if there should be a review for the basis upon which offers were made.
“The Court: If I need help with legal reasons I have stated I will ask counsel for their legal reasons. If not, the Court can say that I shouldn’t have done what I did. But as far as I am concerned there hasn’t been any strictly legal objection throughout the course of this trial. I’m tired of it, and I’m tired of the arguing, and rightly or wrongly I’m going to shorten this matter up.
“Mr. Sanborn: Well, just so the record clearly shows that.
“The Court: I think it would be better if the reasons were stated, but they have not been stated in most instances with particularity; and so the ruling is going to remain the same.”
The following day, April 9, this occurred:
“Mr. Sanborn: Your Honor, with respect to one of the — I can only discuss one of the reasons I asked to see your Honor in chambers with counsel and with no one else present because that involves relationship of counsel and the Court, and it’s not a matter of propriety for me to take it up other than with the Court and the counsel. However, I can — I know you’ve announced that you have to leave right away, so I can take up the second part of what I wish to take up. And I believe that the law is — we’ve done some research on it— I think the record should reflect this and I wish your Honor would take time to look at some of these things we’ve extracted from Wigmore, because the posture on appeal if only a general ground of objection is stated, I believe from reading these cases is that no appeal can be taken from any ruling which states only a general ground, and that that precludes appeal. I believe further that for — on the part of the State that it is not possible to conduct the examination with respect to certain types of evidence, and I refer to those upon which there are certain grounds and circumstances which they can be admissible under which are exceptions to certain general rules; and so far as our research has disclosed it is stated that the reason counsel must and should state his specific grounds is because no Court can have at his fingertips all the various rules of evidence and rules of law; and the appellate courts have frequently said that no trial court should be expected to do that. And when you’re in the—
“The Court: Yes, but I want to do it. I don’t mean to cut you off, but I’m not going to change my ruling.
“Mr. Sanborn: Well, I am tiying to tell your Honor that it is part of the duty of an advocate to make a record.
“The Court: Yes.
“Mr. Sanborn: It is part of the duty of an advocate to examine his witnesses and to propound any question which he deems should be asked of the witness in order to bring out the facts and circumstances of which he knows which bear a relationship to his case.
“The Court: I agree.
“Mr. Sanborn: Even though he may not for some basis of legal ruling succeed in eliciting the testimony, still it quite often happens that in certain circumstances witnesses being unfamiliar with the Court and things of that nature, they do under certain rules of evidence — and well recognized rules, I think — you have to ask certain questions in a certain way and you have to tell the Court the basis upon which you are asking the questions, sometimes the connection that it bears with other evidence to make a chain of circumstances; and to do that of course you have to rise, that’s the rule of Court prescribed by the Supreme Court of this State and you have to address that to the Court. And so number one and the only part I think that I can properly discuss in the presence of anybody but counsel and the Court, and I’ve thought about this very deeply. I think that — I asked for this and I discussed it with Mr. Scott already, and I don’t know what they believe the law to be, but I do believe that if a record continues to be made under circumstances when there are only general objections, from that time on all appeal on those matters will be — if I read these rules right — waived. And no way to bring it up at a later time. And I want the record to show what it has now shown with this being granted by the Court. And I have tried on several occasions and I still feel that it is— and the only way with propriety and I should and I think it’s the only proper way is for the other thing that it not be discussed with any other person than the Court and the lawyers. Because that particular matter I know when you take anything like that up with the Court you are supposed not to take it up in the presence of other persons. And I know that you didn’t have much time, that is, for this.
“But I’ve been trying to be able to do this on several different occasions, and I just think that this must be some time put in this record and done. Because it’s affecting the ability to properly as an advocate conduct the examination of some of the witnesses.
“The Court: Well, my ruling is going to remain the same. I’ve already spoken to that point.”
Later the same day the first adjudication of contempt occurred during the direct examination by appellant of a woman testifying for the prosecution. The record reflects the witness had previously given a written statement to an investigating officer concerning her knowledge of the case, to which appellant referred in the course of his examination in an effort to refresh her recollection as to the testimony desired. Counsel for defendants interposed an objection unless they were permitted to examine the document, with which position the court generally agreed. The record then reveals the following:
“Q. Mr. Sanborn: Have you had an opportunity now to read—
“A. I didn’t know if it was going to be taken away from me so I thought it would be best not to read it.
“The Court: You may read it.
“Mr. Lewis: Can she read it from the beginning, your Honor?
“Q. Is that what you told the officer?
“A. Well, it’s down here on black and white, I still can’t remember if I stated it in exact words or anything like that, but it’s down here.
“Q. Well does it state substantially what you told him or not?
“A. It states here that he had received a phone call from his wife and that she was going to have a baby and that he would have to leave. If this is — are you talking about the whole gist of the thing? But on the majority of it I— I mean I — I can’t recall exactly word for word if this is what I said and et cetera, but I mean it must be the gist of it.
“Q. From reading that does that refresh your recollection now?
“A. Not really. It still doesn’t cause I—
“Q. Did you tell them the best you knew the truth at that time?
“A. Yes, I did.
“Q. Mr. Sanborn: Miss Spencer, you did not tell Officer Davis anything in regard to the — or any suggestion that Mr. Blake was intoxicated on that evening, did you?
“Mr. Lewis: I object.
“The Court: Overruled. You may answer.
“A. Oh, no, because he didn’t ask me. They asked me what went—
“Q. Mr. Sanborn: Thank you. You’ye answered the question. And you did not tell Officer Davis anything with regard to any statement about the circumstances of Frank Carpenter’s leaving on that night, did you?
“Mr. Lewis: I object.
“The Court: Overruled.
"A. I have here that he left out cause his wife was gonna have a baby.
“Mr. Sanborn: And what else did you tell him?
“A. Can I read it?
“Mr. Lewis: I object to what else.
“Q. Mr. Sanborn: It’s perfectly all right if you read it.
“The Court: Overruled. Go ahead, you may read it.
“Mr. Lewis: If the Court please, if it’s introduced into evidence.
“The Court: All right.
“Mr. Lewis: I move to introduce it into evidence.
“The Court: Objection sustained. Let’s admit it. I’m going to let her read it.
“Mr. Sanborn: Excuse me, your Honor, did she mean aloud? I didn’t mean to be instructing any witness that she be doing anything orally. I thought she meant read it without saying anything. I wasn’t trying to make instructions about the thing.
“The Court: Tab the machine, please.
“A. Now what am I supposed to do?”
Later the same day, out of the presence of the jury, as to this incident the court stated:
“The Court: While you’re looking I might announce that it is with deep regret that at 4:46 p. m. voluntary statements were made by Mr. Sanborn after an objection. I consider it a violation of the Order. Mr. Sanborn is fined $25 to be paid to the office of the Clerk of the District Court.”
The second instance of contempt occurred April 10, 1969, during the cross-examination by defendants’ counsel of the custodian of records of Wichita State University, who had been offered as a prosecution witness and had testified concerning the attendance record of a certain person (not a defendant) at the university. This particular record had been identified and received in evidence as an exhibit. We are told the witness also had before him a folder containing other records pertaining to three of the defendants to which the witness had not testified or referred; that counsel for defendants opened the folder and removed these papers. Further events are depicted in the record as follows:
“Cross-Examination by Mr. Lewis
“Q. Well, they put something in the file where you can’t get a copy of your transcript until the fines are paid or something like that?
“Mb. Sanborn: Excuse me, your Honor. Those aren’t records pertaining to this individual.
“(Whereupon Mr. Sanborn takes papers from Mr. Lewis’s hands.)
“This witness brought these but they don’t pertain to his examination.
“Mr. Lewis: Well, your Honor, he just snatches records out of somebody’s hands?
“The Court: Tab your file. It’s a violation of the Order of the Court. Now you may proceed, Mr. Lewis.
“Mr. Lewis: May I get these back, please?
“Mr. Sanborn: Just a moment, I’d like to be' heard on this, your Honor.
“The Court: The audience is to remain quiet.
“Mr. Sanborn: Your Honor, may I please be heard on this?
“The Court: No, sir, you may not. . . .”
The following transpired later:
“The Court: He wants to be heard. I want him to be heard now. That was a very rude display to try to jerk that out of Mr. Lewis’s hand.
“Mr. Sanborn: If the Corut please, the records which were taken in hand were not records pertaining to this examination.
“The Court: And you, sir, have no authority to jerk anything out of anyone’s hands in this Courtroom.
“Mr. Sanborn: Which were records not in the possession of Mr. Lewis. They pertained to further examination in this case. And the contents of them were not subject to his inspection at that time as a matter of law. And the only means of calling this to the Court’s attention was employed by counsel, meaning me. And I respectfully represent to the Court that there was no other possible way to keep those matters intact other than the course of action which was pursued, which is — I respectfully suggest to your Honor, the only course of action which could have brought this matter to the attention of the Court’ and at the same time have preserved the status quo ante with respect to those records.
“The Court: I want the record to disclose what occurred and the reason for the fine, the violation of the Order of this Court. Until I made the Order, which is in the record, counsel in this case continually abused the usual procedures of the Court. There was continual harassment. The reputation of counsel in regard to conduct during a trial is well known. And it was for these reasons that the Order was issued, reluctantly so. But it became an absolute necessity if order was to be maintained throughout the rest of this trial. When Mr. Lewis picked up documents on the desk in front of the witness, which I didn’t know what the documents were, it didn’t appear that Mr. Lewis did, Mr. Sanborn immediately rose from his chair and proceeded to take the records from Mr. Lewis’ hands. And then made statements to the Court, the part of the Order of this Court that no statements or argument was to be had with the Court without my permission, conduct in attempting to take the papers from Mr. Lewis’ hand, his statements to the Court without permission, were contemptuous; and a fine of $25 is levied, to be paid by noon tomorrow with, of course, all appeal procedures and rights open to counsel whenever there is a fine of contempt of Court.”
The third instance of contempt occurred April 16, 1969, during appellant’s cross-examination of one of the defendants, John H. Manning, thus:
“Q. Thank you. And then you said to him, I was just as surprised as you were when you were hit, didn’t you? In front of Reverend Reynolds and Dan Sawyer?
“A. No, you’ll have to ask them. I didn’t say that, man.
“Q. Well, you saw him get hit, didn’t you?
“A. Mr. Sanborn, if you—
“Q. Your Honor, I request that—
“A. Now, wait a minute.
“Q. It’s a simple question, he either saw him get hit, he can answer it yes or no, and he can answer it without making a speech.
“A. I’d have — you’d have to tell me what you consider a hit.
“Mr. Sanborn: Your Honor, would you please advise him to answer my question?
“The Court: I don’t remember the question.
“Mr. Sanborn: The question was, whether this witness now on the stand when Blake and Reynolds and Sawyer were over at his house—
“The Court: No, your question was did he see Blake hit.
“Mr. Sanborn: Yes.
“The Court: All right. Answer by whatever your definition of hit is.
“A. Okay. Well, I saw Richard Alexander and a — I don’t-know what the —what the conversation was at that time, Richard Alexander was — Blake was sitting here, Richard Alexander was sitting here. And Richard Alexander hit Blake on the back of the head like that, like I do some child. Now if you construe that as a hit, I certainly did see that. And Blake saw that and felt that.
“Q. Yes. And you said in this conversation I am asking you about, I was just as surprised as you were when you were hit, didn’t you?
“A. I don’t remember saying that I was surprised as he was, but I might have said I was as surprised — I’m surprised that you construe that as being hit. I don’t know if I said that or not, but this is what—
“Q. And you further said, in fact I wish you would have given me a wink or a signal and the odds might have looked a little better.
“A'. No.
“Q. He said that to you? Is that it?
“A. I didn’t say that to him and he didn’t say that to me.
“Q. Neither one?
“A. That wasn’t said.
“Q. Thank you. That didn’t occur in the conversation, that’s what you’re saying. And then you said, well, if you had hit anybody I was going to help you. You said that to him, didn’t you?
“A. I don’t know.
“Q. Tell the jury if you said that.
“Mb. Lewis: Just a minute, now, your Honor. He asked a question and I am going to object. I’m going to tell you.
“The Coubt: Just a minute, Mr. Manning. That’s argumentative now, Mr. Sanborn. The witness is trying to answer it, and it may not come out as quickly as you might desire; but he has a right to answer these questions in the best way he knows how.
“Mb. Sanbobn: With all due respect, your Honor, I do not believe the witness is trying to answer my question. I think he is deliberately evading.
“Mb. Lewis: Your Honor, I object—
“Mb. Scott: Your Honor, I am going to object as to—
“The Coubt: I want you to tab the machine.”
After assessing the fine for this contempt the trial court made the following statement:
“There isn’t any question but that Mr. Manning from time to time in his answers to Mr. Sanborn’s questions is flippant. That is a personality contrast. And I will allow counsel to continue to ask the questions until a proper answer is given. But the demeanor of a witness and the weight to be given to his testimony is not a matter of comment by counsel. It’s a matter for the jury to determine and weigh. And I consider it highly improper for counsel to state in front of the jury his opinion as to the demeanor and the weight to be given to the testimony of the witness. It is not up to Mr. Lewis, Mr. Scott, Mr. Cooley, Mr. Sanborn, or me, to decide whether a witness’ testimony is correct or incorrect. It’s up to the jury. And we have no right to comment upon that in front of the jury.
“My comments are not that Mr. Manning’s testimony is always to the point. They are merely at times I have refused to admonish him because I don’t feel that the answer called for admonishment. At other times I have admonished him. So pay your fine or appeal.”
The fourth act held contemptuous took place April 18, 1969, during appellant’s cross-examination of another defendant, Fred M. Johnson, as shown by the following:
“Q. What businesses, if any, are you associated with these men in?
“A. None presently.
“Q. What businesses have you been associated with them in?
“A. We endeavored to form a partnership to — as the founding partners of a hamburger snack bar called The Brothers. And this was an attempt to—
“Q. Thank you. And where was the location of this Brothers Restaurant?
“A. Can I answer the last question?
“The Court: If you didn’t finish your answer, finish it.
“Mr. Sanborn: Your Honor, I am not asking him other than what business ventures they were in, and I want to find the location.
“The Court: Tab the file, please. You may finish your answer, Mr. Johnson.
"A. This business was an attempt to set up the foundation whereby we could bring other young ghetto youth into some kind of economic awareness by setting up small shops around the community engaging them in their own business, assisting them via experts, expertise, that was made available to us in Johnson County, a very affluent area outside Kansas City, Kansas.
“Mr. Sanborn: I would like to request that the reporter read my question, your Honor. This is not what I asked him.
“The Court: Have you finished your answer, Mr. Johnson?
“A. Yes, sir.
"The Court: Ask your next question, Mr. Sanborn.
“Mr. Sanborn: I would like to know what the location was.
“A. The location was at 7th at — I believe 1701 North 7th Street.”
Thereafter, as to this the court stated:
“At 4:03 p. m. Mr. Sanborn addressed the Court without permission which is a violation of the Order previously given in this case. The court reporter’s transcript was tabbed.”
The fifth act of contempt occurred also April 18, 1969, during appellant’s further cross-examination of defendant Johnson reflected in the following:
“A. I was assistant director in charge of neighborhood services and community action. Also liaison to Model Cities assigned to the City of Kansas City, Kansas, to assist in implementation of the Model Cities Demonstration Cities application.
“Q. And you were also assigned by Mr. Hamms as a part of your duties to work with the J. A. C. S. people, were you not?
“A. No, that’s not true.
“Q. You mean rather than Mr. Hamms assigning you, you volunteered to do that as you stated in your testimony?
“A. That’s true.
“Q. And that was a part of the duties of your job to do that, wasn’t it?
“A. No, it was not.
“Q. Now you stated to your counsel that you were familiar with the regulations pertaining to the operation of your agency, and your agency was the Community Action Agency, wasn’t it?
“A. Yes, it is.
“Q. And you’re familiar, of course, with Memorandum Number 76 from the Office of Economic Opportunity to the Community Action Program, aren’t you?
“A. When is it dated, Mr. Sanborn?
“Q. November 21,1967.
"A. I probably had a chance to peruse it, yes.
“Q. It’s part of your duty to be familiar with these regulations as the Associate Director, isn’t it?
“A. I would say yes. Yes.
“Q. And you are also familiar with Memorandum— you were working there in ’66, were you?
“A. Yes.
“Q. You were familiar with Memorandum Number 18 from the same Office of Economic Opportunity to all community action programs, dated February 4, T966, weren’t you?
“A. Would you please read that memorandum to refresh my recollection?
“Q. I first want to know if as you stated after four years of working with this program and these memoranda, you are familiar with the memoranda and duties devolving upon you as a recipient of federal funds in administering a community action program.
“The Court: The witness has requested that you refresh his recollection. If you wish to pursue the line of questioning, you will refresh his recollection.
“Mr. Sanborn: Are you familiar with a memorandum on the subject of CAP employment assistance directive to community action agencies regarding the Job Corps?
“A. Would you read that memorandum — both memorandums, Mr. Prosecutor?
“Mr. Sanborn: Your Honor, I do not believe it’s appropriate to have witnesses in Court questioning the lawyers. And I’d appreciate it if I could have answers to my questions rather than be subjected to an examination.
“The Court: Tab the file, please. Frankly, I think the question borders on the absurd. To expect an individual to remember a memorandum in 1966 is fantastic. And all he’s asking is to get some information on the memorandum.”
As to this act o£ contempt the court stated:
“At 4:14 p. m. Mr. Sanborn made a statement to the Corut without permission, which was a violation of the former Order of the Court.”
The sixth act occurred April 21, again during appellant’s cross-examination of defendant Johnson, as follows:
“Q. What time of the day did you call Dan Sawyer’s office.
"A. We have morning staff meetings at the Foundation from 8:00 o’clock until 11:00 sometimes, and 1 have my staff meeting of my staff after 3:00.
“Mr. Sanborn: Excuse me. Your Honor, I only asked him what time he called Dan Sawyer’s office. May I simply request that I have a responsive answer for my question with respect to the time he called Dan Sawyer’s office?
“The Court: Tab your file. I asked that if the witness needed to be admonished that you merely advise me in terms only requesting me to admonish the witness. Now, answer the question, Mr. Johnson.”
The last act of contempt likewise occurred April 21 during appellant’s cross-examination of defendant Johnson, as shown by the following:
“Q. The question was, did you call the Wichita Police Department?
“A. No, I instructed LaVert to call.
“Mr. Sanborn: I ask that the unresponsive — I ask that you ask the witness to answer the question I ask rather .than some other question.
“The Court: Tab your file, please. Ask your next question, Mr. Sanborn.”
In making its rulings on the last two contempts the trial court stated:
“At 3:09 and 3:16 p. m., Mr. Sanborn violated the order of this Court. Just prior to that, he was admonished that if the witness was to be told to answer the question in a manner other than which it was answered, he was merely to say, ask me to admonish the witness. Almost within a very short time thereafter, as the record will show, he requested admonishment in terms other than those directed by tire Court. He violated that, as well as the original order given in this case to which reference has been made throughout the trial.”
Appellant raises no procedural challenge to his convictions but makes multiple substantive attacks upon them. He says the order he is charged with violating was not clear and unambiguous, as it must be before he can be held in contempt. He contends it was unlawful, being in derogation of his duty as an advocate prosecuting his case in compliance with K. S. A. 60-404 and 60-405. Finally, he asserts his conduct was not disrespectful or contemptuous to the court, nor such as to interrupt or interfere with its proceedings or with the administration of justice. It is upon these latter grounds we broadly rely for reversal.
By statute a direct appeal from a contempt conviction is provided wherein this court may affirm, reverse or modify the judgment as justice may require (K. S. A. 20-1205). Upon such review this court has authority to examine the language or acts found to be contemptuous and determine whether they are sufficient to constitute contempt (In re Gambrell, 160 Kan. 620, 164 P. 2d 122). Appellant was adjudged guilty of that which is classified as direct criminal contempt. Generally criminal contempt is conduct directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindi cation; its essence is that the conduct obstructs or tends to obstruct the administration of justice (17 C. J. S., Contempt, §§ 5[1], 8b.). This court defined it long ago in In re Dill, Petitioner, 32 Kan. 668, 5 Pac. 39, thus:
“To constitute a direct contempt of court there must be some disobedience to its order, judgment or process, or some open and intended disrespect to the court or its officers in the presence of the court, or such conduct in or near the court as to interrupt or interfere with its proceedings, or with the administration of justice.” (p. 689.)
See, also, Smith v. Clothier, 113 Kan. 47, 213 Pac. 1071.
In making its seven findings of contempt the trial court uniformly ruled appellant had violated the April 8 order of the court. We cannot concur in this conclusion. Analyzing briefly, without detailed repetition, the events in question, we find in the first incident appellant was found guilty because he made “voluntary statements” after an objection. Here there had been considerable colloquy between the court and counsel for defendants, and the matter of the witness reading her pretrial statement had become somewhat ambiguous — did the witness intend to read the paper aloud in the presence of the jury or silently to herself? Appellant’s statement appears to be no more than a request for clarification, couched in respectful terms, made at a time when there was no objection pending before the court.
In the second instance, taking records from Mr. Lewis’ hands, it appears the latter had without notice to or permission from anyone removed papers from a folder brought into the courtroom by a prosecution witness. The papers referred to some of the defendants on trial and had not then been used or referred to in any way but were available for the prosecution’s use in impeaching those defendants in the event they testified falsely. Once the papers had been examined by the other side, their value as impeachment tools would have been dissipated. At the same time appellant retrieved them, acting in what he considered an emergency, he explained his problem to the court, again in a respectful and factually accurate manner, and, when so directed by the court, did not persist in retention of the papers but promptly returned them to Mr. Lewis. The court conceded its lack of knowledge concerning their content despite appellant’s plea to be heard prior to returning them. Patently the act of taking the papers was not in violation of the silencing order. Although discourtesy by any one should never he necessary and is not to be condoned, appellant’s act seems to have been prompted by the unwarranted invasion of then private material rather than disrespect or contempt toward the court.
The third instance, occurring during appellant’s cross-examination of a witness in which appellant commented that the witness was evading the question, came after a defense objection had been made upon which the court did not rule but instead addressed itself directly to appellant in a manner inviting colloquy. Appellant had made no objection but had simply repeated his question after the witness had declined to answer concerning his own purported previous statement, saying, “I don’t know”. There is no indication of bad faith on appellant’s part. We do not pass on the propriety, from a purely legal standpoint, of the remarks made in the presence of the jury by either appellant or the court — we simply are unable to see contemptuous violation of the order here.
The fourth occurrence was appellant’s restatement of his question to a defendant as to the location of a particular business enterprise. The defendant had already answered appellant’s question but, as witnesses are sometimes wont to do, desired to do more. That this was the case is evidenced by the witness’ further answer. Again appellant’s remarks were respectful and not disruptive and we fail to see contemptuous violation of any order.
The fifth occurrence also came during cross-examination of the same defendant, who was employed as a supervisor by the Office of Economic Opportunity in its war on poverty in Wyandotte county, and had been one of the founders of the program. This defendant, along with the others, was charged with robbery and extortion of money from a representative of a private agency (JACS) whose mission was to recruit disadvantaged youth into the Job Corps program under OEO (see State v. Pierce, et al., supra). The defendant had previously testified on direct examination he had received the money as a consultant’s fee and that he had no duty by reason of his job to assist in Job Corps recruitment. It was the prosecution’s theory that under his employment it was his duty to do that for which he claimed the consultation fee, that is, assist in Job Corps recruitment. This point became crucial in the case as to this witness. Appellant had in his possession two OEO numbered, dated memoranda on the subject upon which he wished to test the witness’ credibility on this critical issue. Upon being di rected to refresh the witness’ recollection as to the memoranda appellant read the title of one to the witness. The witness had first indicated his familiarity with OEO policy directives but he declined to answer the question with respect to the one identified to him by title and he addressed a request directly to appellant. Appellant responded to the request by the statement, addressed to the court rather than to the witness, for which he stands convicted of contempt. It is noteworthy in passing that later cross-examination, after considerable fencing and hedging by the witness, did result in his begrudging admission that by reason of OEO policy directives with which he was familiar he did have an official duty to further Job Corps recruitment. Beyond this, however, we see no improper conduct interfering with or impeding the trial.
The last two incidents involve appellant’s requests to the court for help in securing responsive answers to questions, answers which were in fact forthcoming without embellishment once the court acted as requested. Instinctively in a heated trial experienced counsel will address their problem to the court, not only to advance their cause, but also to aid the court in making proper disposition of the matter at issue. This is particularly true in cross-examination of a hostile witness where, as here, the record reveals the examiner is justified in his appeal for help. The examiner is sometimes required to make clear to the court the reason for his request for help where the situation may not be otherwise apparent. Again we see no violation of the court’s order. A judge must have power to protect himself from actual obstruction in the courtroom but at the same time it is essential to a fair administration of justice that a lawyer be able to make honest good-faith efforts to present his client’s case (see In re McConnell, 370 U. S. 230, 8 L. ed. 2d 434, 82 S. Ct. 1288).
In none of the incidents do we see hostility or defiance toward the court on appellant’s part, anything abusive or insulting, undue persistence in opposing any ruling, nor do we find open or wilful misconduct which can fairly be characterized as obstructing or tending to obstruct the procedure of the trial. The brief filed on behalf of appellee virtually acknowledges this conclusion in a statement contained therein as follows:
“Although the isolated comments which Appellant has chosen to abstract do not reflect conduct which interrupts or interferes with the proceedings or the administration of justice, taken as a whole and examining Appellant’s prior conduct, his comment was argumentative and was exactly that which he had been making for the eleven days since trial had started and which necessitated the order entered the day before on April 8, 1969.”
There has been filed on behalf of appellee a lengthy counter abstract in which are included numerous excerpts from the trial transcript of events occurring prior to entry of the April 8 order. It has not been shown wherein appellant’s abstract is incorrect or inadequate as to the events in question and the propriety of appellee’s counter abstract may well be questioned. Nonetheless we have examined it. It does reveal appellant constantly addressed himself to the court in his comments rather than to opposing counsel — a practice not always reciprocated by the latter — and despite vigorous presentation appellant remained respectful to the court throughout. It also indicates the arduous and difficult nature of the task confronting the trial judge in the conscientious discharge of his duty — aggressive advocacy on each side appropriate to the heat of the particular skirmish; each side construing everything to its own advantage and seeldng to leave nothing unanswered; frequent interruption with somewhat intemperate remarks all around; and, not the least, the presence of a volatile, partisan audience.
The judgments of conviction of contempt are reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Foth, C.:
This is an appeal by the defendant husband in a divorce action from a judgment granting a divorce to the plaintiff wife. One of appellant’s two points relied on was abandoned on oral argument before this court, leaving as die sole question to be decided whether die trial court abused its discretion in dividing the marital estate.
At the time of the divorce the parties had been married over sixteen years, and had been separated for the last two. They had two children, eleven and five years old, whose custody was awarded to their mother.
The bone of contention is the family residence, variously valued at $18,200, $26,000 and $32,000, but accepted by die parties for the sake of argument as being worth $26,000, virtually clear of encumbrances.
Apart from the home the court awarded:
To the wife:
Household furnishings .......................... $2,300.00
One-half savings account........................ 550.00
$2,850.00
To the husband:
Automobile.................................... $2,020.00
Corporate stock................................ 600.00
One-half savings account........................ 550.00
Life insurance (cash surrender value) ............. 4,419.30
$7,589.30
(The life insurance was subject to an order that $20,000 in face value be maintained payable to the children during their minority. Its total face value does not appear.)
To this point the husband was almost $5,000 ahead. There remained, however, the $26,000 represented by the home, and the question of alimony. The trial court’s feeling was expressed in announcing his final decision:
“I am still of the same opinion that in cases of this type where there are minor children that have to be reared in the home, that rather than grant an alimony judgment that the division of property and alimony should be put in one judgment.”
The result was that the wife was awarded no alimony, but the home was awarded to her witib the journal entry reciting that such award was “as a division of property and in lieu of alimony.”
It would be wholly fruitless to speculate as to how much this court, collectively or individually, would have regarded proper as alimony or would have awarded by way of property division. Any course other than that taken by the trial court would have required a sale of the home, leaving the mother and two children to find shelter elsewhere, or at least the imposition of some sort of lien in favor of the husband. We cannot say that the equities of the entire domestic situation required either course.
We are satisfied that the trial court exercised its discretion well within the bounds outlined in such cases as Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; and Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226. Its judgment is therefore affirmed.
APPROVED BY THE COURT.
Owseey, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by Jensen Motors, Inc. and its insurance carrier, Iowa Mutual Insurance Company (herein called respondents) from an award of compensation entered in favor of the widow and three minor children (referred to as claimants) of Bernard Schmidt, who was employed by Jensen Motors at the time of death. The examiner’s award was sustained by the director of workmen’s compensation, and by the district court on appeal, the court adopting in toto the findings made by the examiner.
The respondents’ primary thrust is that Schmidt’s death resulted solely from his intoxication and thus is not compensable under the Workmen’s Compensation Act. The governing statute is K. S. A. 44-501 (b) (now K. S. A. 1970 Supp. 44-501 [b]) which reads in pertinent part:
“. . . if it is proved that the injury to the workman results . . . solely from his intoxication, any compensation in respect to that injury shall he disallowed. . . .”
This court has never had occasion to construe this statute, or to consider it in connection with the overall scheme of the Workmen’s Compensation Act, although it has been a part of the Act since 1927.
The undisputed facts show that the deceased was a car salesman for Jensen Motors. On the morning of October 30, 1969, the day of his death, he drove from his home at Hays to Plainville, some 27 miles to the north, where his employer knew he had some appointments. He planned to drive back to Hays that evening to pick up his wife and return to Plainville after dinner for a visit with his folks.
We have no record of his activities in Plainville until approximately 4:30 or 5:30 in the evening when he called on a prospect at her home, remaining for perhaps an hour. During that time he did not drink, he did not appear to be intoxicated, and his customer did not detect the odor of alcohol on his breath, even though at one time he sat beside her on a divan showing her pictures of some cars.
His body was found in the north bound lane of the highway between Plainville and Hays shortly after 6:30 p. m., some 112 feet south of the white Pontiac car from which it was thrown. His wrist watch was stopped at 6:30. The highway trooper who investigated the accident estimated the speed of the vehicle at the time of the accident at 90 miles per hour, which he thought was reasonably accurate, although he couldn’t say he was doing 90, 91 or even 80. An analysis of a blood sample taken by the mortician at the troopers request showed an alcohol content of 0.162% by weight.
In their brief, the respondents present the following argument: “The undisputed facts as shown by the Highway Patrol Report and blood alcohol test are such that the only reasonable conclusion is that the injury resulted solely from the intoxication”; “[t]he only reasonable conclusion is that he [Schmidt] would not have been driving at such a speed under such conditions if he had not been drinking”; and “the only reasonable application of the undisputed facts is that the blood alcohol content of 0.162 was the cause of such reckless driving and the cause of the injury.”
Continuing along this line, the respondents call our attention to K. S. A. 1969 Supp. 8-1005, (now, as amended, K. S. A. 1970 Supp. 8-1005) which so far as material to this case reads as follows:
“Any criminal prosecution for the violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor, . . . evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted, and shall give rise to the following presumptions:
“(b) If there was at that time 0.15 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.”
As we interpret the respondent’s argument, it simply is that, judged by the standard set out in 8-1005, the decedent was intoxicated at the time of the accident, that the accident was due to his intoxicated condition and, accordingly, his death resulted solely from his intoxication.
On the other hand, the claimants take the position that the presumption of intoxication under 8-1005 is rebuttable; that the state trooper’s estimate of speed and the blood analysis did not constitute the sole evidence bearing on the decedent’s condition or on the cause of the accident; that respondents did not sustain their burden of establishing that the accident resulted solely from intoxication; and that the findings of the examiner, which the court adopted as its own, were sustained by the evidence.
A number of legal questions are raised by the parties pro and con, which, though they may be intriguing, bear little relation to the central point as we see it. In our judgment this is essentially a fact case and, according to our long established rule, our quest is to determine whether the findings of the trial court, adopted in toto from the award of the examiner, are supported by substantial, competent evidence. (Jones v. City of Dodge City, 194 Kan. 777, 778, 402 P. 2d 108.) In Gray v. Better, 199 Kan. 284, 428 P. 2d 833, also a workmen’s compensation case, we said:
“The district court’s determination as to whether a claimant’s disability was due to an accident arising out of and in the course of his employment will not be disturbed on appellate review when there is substantial evidence to support it. (Callahan v. Eby Construction Co., 192 Kan. 814, 391 P. 2d 315.)” (pp. 285, 286.)
Before examining the evidence, which we emphasize must be examined in the light most favorable to the claimants, who were die prevailing parties below, (Jones v. City of Dodge City, supra) we pause to point out that in 1A Larson’s Workmen’s Compensation Law, § 34.31, pp. 501, 502, the author records that thirty-six states of the union, make intoxication the basis of a separate defense, while three make it a ground for reduction in the amount of the award. The causal requirement varies widely, ranging from none at all in some states to sole causation in others. The Kansas statute is one of the few which fall within the latter category. In § 34.34 of the same work, Professor Larson says:
“The strictest type of statute, which requires a showing that intoxication was the sole cause of the injury, presents an opportunity for a little more controversy than the better-known concepts of causation in the other statutes. Because of the severe burden of proof, the great majority of attempts to invoke the defense have been unsuccessful, and there have been few denials of compensation, even when the intoxication played a substantial part in causing the injury. . . .” (pp. 507, 508.)
We need not recount the evidence in detail but will summarize parts which we deem material. All the evidence reflects that the night was rainy and the highway wet. The trooper testified this accident was not an unusual one, and indicated on his report that excessive speed was a contributing factor. The highway cut through a hill at the place where the accident occurred and the decedent’s car had hit and ricocheted off the rock bank or wall at the east of the roadway.
Two witnesses, who were members of a quartet on its way from Plainville to Hays to attend classes, testified on behalf of the claimants. Construing their testimony as a whole, as best we can from a somewhat confusing record, they related that the car in which they were riding overtook and passed a white Pontiac car like that which one of the witnesses saw the decedent driving that morning; it was variously estimated this took place from 4 to 11 miles north of Hays; that their car was traveling 55 to 60 miles per hour when it passed the Pontiac, which was within the speed limit, and they had no trouble passing it; that as they drove up the hill the Pontiac came up from behind and they heard a noise and saw the headlights; that a sudden rush or gust of air struck their car which shook it as if they were coming out of a tunnel; looking back they saw tail lights disappearing or turning off the road.
The chief chemist with the Laboratory Services Division of the State Board of Health, testified that in his opinion someone with a 0.162% blood alcohol level would be under the influence of alcohol, although he didn’t think that at high levels of alcohol everyone would be intoxicated; that different people have varying degrees [of intoxication] to some extent and there is some difference in the way people are affected by the same amount of alcohol. Harold Jones, the highway trooper or patrolman, testified that in his opinion the 0.162% alcohol content would probably be a contributing circumstance to the accident but to what degree he could not say; that he did not contend that everyone with a 0.16% reading was intoxicated but it was the legal presumption; that it could be that someone with a 0.15% reading wouldn’t be intoxicated.
In arriving at its findings in this case, the court was required to examine and take into consideration all the evidence introduced, that of the claimants as well as that of the respondents, giving such weight to the several parts of the evidence as, in its judgment, they seemed to merit. In evaluating the force and effect of the statutory presumption of intoxication set out in 8-1005, the court was entitled to consider not only that it could be rebutted by other evidence, as we said in State v. Bailey, 184 Kan. 704, 339 P. 2d 45, but also that the blood sample was drawn by a mortician, not by a physician or qualified medical technician as K. S. A. 8-1003 requires — the purpose of the requirement being, we presume, to insure that the sample was properly drawn and handled to the end it would be uncontaminated when tested.
We believe the evidence taken in its entirety is sufficient to sustain the court’s finding, which we note is negative in nature “[t]hat the personal injury by accident, and death of the deceased, was not caused solely by reason of his intoxication.” This court on previous occasions has written on the subject of negative findings and in In re Estate of Winters, 192 Kan. 518, 389 P. 2d 818, had this to sayt
“An appellate court will seldom set aside a negative finding of a trial court if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason.” (Syl. ¶ 1.)
See, also, Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1.
As pointed out by the respondents, a number of cases have arisen in other jurisdictions where compensation has been denied on the ground that the workman’s injury resulted solely from intoxication. Those cases are easily distinguishable from this one, because in each of them the trial court, or in one instance the workmen’s •compensation commission, found the injury was due to intoxication and denied compensation, while contrary findings have been made in the present case and compensation awarded. In those cases the findings were deemed on appeal, to be sustained by the evidence, as on this appeal we consider the findings to be supported by the record.
Woodring v. United Sash & Door Co., 152 Kan. 413, 103 P. 2d 837, is cited in support of the proposition that the deceased had abandoned his employment and thus that his death did not arise out of and in the course of his employment.
In that case, the facts were quite different. The claimant, Wood-ring, was a salesman who had been instructed by his employer to proceed from Tescott to Enterprise to see a Mr. Sumner. En route, Woodring went considerably out of his way to pick up four of his friends. Arriving at Enterprise, he was informed that Sumner was in Abilene, five or six miles away. He made no further effort to meet Sumner, nor did he pay any further attention to the business on which he was engaged. Instead, he and his friends repaired to a tavern, the Nighthawk Inn, where in the course of some sociable imbibing Mr. Woodring became somewhat woozy. On the way home, Woodring’s car turned over and he was injured. The trial court found the injury did not arise out of and in the course of his employment. On appeal this finding was upheld, and properly so.
That case provides no precedent here. The evidence in this case, as we view the record, does not compel a conclusion that Schmidt had abandoned his employment, and the trial court found quite otherwise. The evidence indicates that Mr. Schmidt continued seeing prospects until 5:30 or later and, at the time he met his death, was on his way home from the community where his employment had taken him. We cannot say as a matter of law, under the facts of this case, that death did not arise from and in the course of em ployment. (Blair v. Shaw, 171 Kan. 524, 233 P. 2d 731; Bienz, Administratrix, v. John Hancock Mutual Life Ins. Co., 195 Kan. 422, 407 P. 2d 222.
Other peripheral questions are raised and have been considered but require no further extension of this opinion.
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The opinion of the court was delivered by
Fontron, J.:
We are confronted with two separate issues in this lawsuit. The first is whether a savings account was held in joint tenancy. The second question is whether a deed to a Harvey County farm was delivered during the lives of the grantors. The district court decided each issue adversely to the plaintiff and he has appealed.
Frank U. G. Agrelius and his wife, Elizabeth T. Agrelius, were residents of Emporia, Kansas. They had two sons, Clair Agrelius, who is the plaintiff and appellant in this lawsuit and Paul Kenneth Agrelius, commonly known as Kenneth. They will frequently be referred to as Clair and Kenneth. Mr. and Mrs. Agrelius both died intestate, Mr. Agrelius in February 1962, and his wife, in April 1967. Kenneth died February 7, 1967, some two months before his mother. He left five children who are the defendants and appellees in this action. With this brief statement as to the parties, we turn to the first issue — the status of the savings account.
At the time of the death of Mr. Agrelius, he and Mrs. Agrelius had a joint tenancy savings account in the Eureka Federal Savings and Loan Association, containing a balance of some $10,000. A few days after Mr. Agrelius died this balance was transferred to a new savings account which was opened in the name of Mrs. Elizabeth Agrelius and C. T. Agrelius (Clair) as joint tenants with right of survivorship and not as tenants in common.
The trial court ruled that this savings account was not a joint tenancy account but was established for the sole convenience of Mrs. Agrelius. We believe the court erred in this holding.
The law with respect to joint tenancy bank accounts in this jurisdiction has been spelled out by this court over a number of years and we believe the legal principles which apply to them apply also to joint accounts in savings and loan institutions. Rasically, our decisions recognize the principle that whether a joint tenancy has been created between a depositor and another person is to be determined on general contract principles, and where a depositor executes a signature card containing among its provisions an agreement in clear and unambiguous language that an estate in joint tenancy with rights of survivorship is intended, then such an estate is created and the agreement is enforceable according to its terms. (Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139; In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443; In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286; Edwards v. Ledford, 201 Kan. 518, 441 P. 2d 834.
Specifically, we have held that where the signature card contains the so-called “magic words” commonly regarded as creating a joint tenancy, i. e., “as joint tenants with right of survivorship and not as tenants in common” the intention is clear and unambiguous and parol evidence is not admissible to explain or vary the terms of the written contract in the absence of fraud or mutual mistake. (In re Estate of Smith, supra; Simonich, Executrix v. Wilt, supra.)
The signature card signed by Mrs. Agrelius and Clair when the proceeds from the prior joint tenancy account were transferred to the new account reads in pertinent part:
“Account No. 16699
“(1) Agrelius, Mrs. Elizabeth Trans from # 5,268
“(2) Agrelius, C. T.
“The Undersigned hereby apply for a membership and for a _ share account in the Eureka Federal Savings and Loan Association, Eureka, Kansas, and for the issuance of evidence of membership in the approved form in the joint names of the undersigned as joint tenants with the right of survivor-ship and not as tenants in common. . . .” (Emphasis supplied.)
The certificate which is contained in the passbook issued to Mrs. Agrelius and C. T. Agrelius (Clair) reads as follows:
“This Certifies That:
“Mrs. Elizabeth Agrelius and C. T. Agrelius as joint tenants with right of survivorship and not as tenants in common, hold a Savings Account representing share interests in Eureka Federal Savings and Loan Association subject to its charter and by-laws, the Rules and Regulations for the Federal Savings and Loan System and to the laws of the United States of America. (Emphasis supplied.)
“Witness the authorized signature of officer or employee this 23rd day of February, 1962.
Eureka Federal Savings and Loan Association
By /s/ Maxine Edgell
Authorized Signature”
As we view these documents, the present case is not distinguishable from the Smith and Simonich cases. The same “magic” words appear on the signature card. The signature card was signed by Mrs. Agrelius, the depositor whose funds provided the sole basis of this account. It was also signed by Clair for the protection of the association.
The trial court, in its memorandum, observed there was no testimony to show that any explanation was given to Mrs. Agrelius and Clair concerning the legal significance of a joint account. Mrs. Agrelius of course is no longer here to testify as to what she was told when she transferred the account or as to what she knew about a joint tenancy savings account, but it would be presumptuous to say she was unfamiliar with the legal aspects of joint tenancy. She and Mr. Agrelius possessed a joint tenancy savings account during his lifetime and this had passed to her upon her husband’s death. She was certainly no stranger to joint tenancy accounts at the time she transferred the funds from the former joint tenancy account with her husband, which was severed by death, to the newly created joint tenancy account with Clair. She had experienced not only the creation of such an account, but the termination of one, as well.
The defendants frankly recognize the authority of our previous cases in the area of joint tenancy bank accounts. They say in their brief:
“It is recognized that the signature card is a plain and unambiguous written contract and that in the absence of pleading and proof of some species of fraud or mutual mistake in the procuring of the signature of Elizabeth or Clair to it, the contract creating the joint tenancy must stand. (Edwards v. Ledford, 201 Kan. 518, 525, 441 P. 2d 834; In re Estate of Smith, supra, 95; Simonich, Executrix v. Wilt, 197 Kan. 417, 424, 417 P. 2d 139; Colt Co. v. Kocher, 123 Kan. 286, 255 Pac. 48; and Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 870). . . .”
However, the defendants seek to avoid the force and effect of the decisions they cite, on the theory of mutual mistake. They argue that proof of mutual mistake, which they pleaded, is to be found in Clair’s testimony. They assert it is obvious that Clair “did not understand the provisions of the joint tenancy contract as set forth in the signature card” and that “there was no meeting of the minds at least as far as Clair was concerned.”
Apparently the defendants misapprehend the import of the language found in the Smith and Simonich opinions. The mutual mistake to which this court referred in those opinions was mistake on the part of the depositor or grantor on the one hand, and the bank or depositee on the other. The contract in the present case, which is evidenced by the signature card, is between Mrs. Agrelius and Eureka Savings and Loan Association. Clair, it is true was a third party beneficiary under that contract, but his understanding of the terms and legal effect of the contract was not essential to its validity. This is made clear by what we said in Smith.
In the Smith case, the grantor, Rachel, opened an individual account in the First National Bank of Hutchinson, Kansas, the city of sun. Two years later she signed a new signature card creating a joint tenancy account with right of survivorship between herself and her son, Floyd, who was not with her at the time, but who signed the card at a later date. The point in issue was whether parol testimony was admissible to show that Rachel intended the account to be for convenience only. In deciding that parol evidence was not admissible this court, speaking through Justice O’Connor, said:
“The signature card constituted a contract in writing between Rachel and the bank. No serious contention is made by the appellees that the language used was insufficient to create a joint tenancy with right of survivorship. The intention of the grantor (Rachel) is clearly indicated by the use of the 'magic’ words commonly regarded by our decisions as creating a joint tenancy. (Spresser v. Langmade, 199 Kan. 96, 427 P. 2d 478; Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139; In re Estate of Fast, 169 Kan. 238, 218 P. 2d 184.) The fact that Floyd had no agreement with Rachel, and did not appear with her when the account was established, is of no real consequence. The legal significance of the contract entered into by Rachel and the bank was the creation of a joint tenancy bank savings account with the right of survivor-ship wherein Floyd was a third party donee beneficiary. In Goeken v. Bank, 104 Kan. 370, 179 Pac. 321, it was held:
“ ‘A person may avail himself of a promise made by a second party to a third for the benefit of the first, although the latter was not a party to it and had no knowledge of it when made.’ (Syl. f 2.)
This principle of contract law has threaded its way throughout many of our decisions (Citing cases). The contract being beneficial to Floyd, his acceptance thereof may be presumed. (Wellman v. Knapp, 126 Kan. 473, 268 Pac. 817.) Floyd’s subsequent signing of the signature card, while perhaps required by the bank for its protection in the event of withdrawals by him from the account, added nothing to the validity or enforceability of the contract. (Kelberger v. First Federal S. & L. Asso., 270 Wis. 434, 71 N. W. 2d 257.)” (pp. 93, 94.)
It may be that Clair did not have a clear understanding of the import or legal effect of the joint tenancy agreement and that he did not know the funds belonged to him as the surviving joint tenant until he was so advised by other parties sometime after his mother’s death. However, his lack of comprehension had no bearing on the contract. The all-important factor is the clarity with which the intent of the grantor is expressed. The intention of Mrs. Agrelius, it clearly appears, was to create a joint tenancy with right of survivorship. We hold that the savings account was held in joint tenancy and that the plaintiff, Clair Agrelius, is entitled thereto as the survivor.
We turn to the second issue wherein tide to an 80 acre farm is challenged. The question of ownership turns on whether a deed from Mr. and Mrs. Agrelius was ever delivered. The crucial facts must be related.
On August 10, 1940, Mr. and Mrs. Agrelius executed two warranty deeds, one deed conveying 80 acres of Harvey County land to Clair T. Agrelius, the other deed conveying a nearby 80 acres to Paul Kenneth Agrelius. Neither deed was recorded during the lifetime of either grantor.
On July 27, 1944, a safety deposit box was leased from the Citizens National Bank of Emporia in the names of Mr. and Mrs. Agrelius, who signed the lease at that time. Clair was also named as lessee although he did not sign the lease contract until 1962. The deeds were placed in the safety deposit box. At some later time in 1944, the exact date not being shown, Mr. Agrelius told Clair of the two deeds executed in 1940, one conveying a farm to him and the other a farm to Kenneth. At this time Mr. Argrelius handed Clair a key to the safety deposit box and said this would constitute delivery of the deed to him. After the death of Mrs. Agrelius in 1967, Clair removed the two deeds from the box and had them recorded.
The trial court held that:
“. . . when Frank and Elizabeth Agrelius told Clair they had executed a deed conveying one 80 acre tract to him and another deed to the other 80 acre tract to Kenneth and placed the deeds in their lock box and then handed the key to the box to Clair, such actions constituted an effective constructive delivery of the deeds, and all the circumstances showed a purpose on the part of the grantors that there should be an immediate vesting of title in Clair and Kenneth, enjoyment only being postponed until the death of the grantors.”
It is elementary law that before a deed can be operative as a valid transfer of title it must be effectively delivered during the grantor’s life. Delivery may be constructive as well as actual, or personal, and it may be made to a third party to hold for the grantee, where an intention is manifested to give the conveyance a present effect. (Reed v. Keatley, 187 Kan. 273, 356 P. 2d 1004.)
We have said that delivery is largely a matter of the grantor’s intention to divest himself of title as evidenced by all the facts and circumstances surrounding the transaction and whether there has been a delivery is ordinarily a question of fact. (Libel v. Corcoran, 203 Kan. 181, 185, 452 P. 2d 832.) On the question of intent this court, in Smith v. Dolman, 120 Kan. 283, 243 Pac. 323, had this to say:
. . It has been held that delivery is largely a matter of intention, and if the grantor by words or acts manifests an intention to divest himself of title and vest it in another, it is sufficient to constitute a delivery. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573; Hoard v. Jones, 119 Kan. 138, 237 Pac. 888.) In the Zeitlow case the court quoted with approval the following from Ruckman v. Ruckman, 32 N. J. Eq. 259:
“ ‘Delivery may be effected by words without acts, or by acts without words, or by both acts and words. Whenever it appears that the contract or arrangement between the parties has been so far executed or completed that they must have understood that the grantor had devested [sic] himself of title, and that the grantee was invested with it, delivery will be considered complete, though the instrument itself still remains in the hands of the grantor.’ (p. 718.)” (pp. 284, 285.)
Our decisions accord with the general rule which is given expression in 23 Am. Jur., Deeds, § 81, p. 133 in these words:
. . Intention has been called the ‘essence of delivery,’ and not only is it often the determining factor among other facts and circumstances, but is the crucial test where constructive delivery is relied upon. . . .”
With these general observations out of the way we summarize what is revealed in the record. The two deeds were executed on the same date. Each conveyed an 80 acre farm; one to Clair who lived in Eureka and one to Kenneth who resided in Herkimer, New York, these being the only Agrelius children. Where or in what fashion the deeds were kept from the time of their execution in 1940 until 1944 is not disclosed. On July 27, 1944, Mr. and Mrs. Agrelius rented a safety deposit box, both of them signing the lease at that time and Clair also signing it as lessee some eighteen years later. The deeds were placed in the box for safekeeping. On a subsequent occasion in 1944 Mr. Agrelius told Clair of the deeds, handed him a key to the safety deposit box and said, according to Clair, that the deed was in the lock box and that “W. W. Parker told him that that constituted delivery of the deed to me.” Clair first saw the deeds in 1962 at the time of his father’s death but did not remove them from the box until after his mother’s death in 1967, at which time he took them to be recorded.
The trial court held that delivery of both deeds was effected at the time Clair was handed the key. The question before us is whether the court, under all the facts and circumstances, was justified in drawing the inference that the deeds were delivered during the grantors’ lives — or, stated in other words, does the court’s finding of delivery have support in the evidence? Considering the picture as a whole — and the circumstances in their totality— we believe an intention may reasonably be inferred on the part of the grantors to effectuate a delivery of the deeds when a key to the lock box was entrusted to Clair.
The pieces of the background mosaic of events, against which the issue of delivery was resolved, may not have been as perfect as desired, but we believe in total effect they can be said to fit within the general pattern this court has fashioned in past decisions. It may be conceded that the act of placing an executed deed in a safety deposit box, to which the grantor has the sole or one of several keys, is not sufficient of itself to evidence the delivery of a deed. However, when such action is coupled with other evidence disclosing an intent to deliver present title, a sufficient showing of delivery may be made out.
We find some analogy to the present situation in Hoard v. Jones, 119 Kan. 138, 237 Pac. 888. The deed in that case, with Hoard as grantor and Mrs. Moorman as grantee, was misplaced for a time. When it was located, Mr. Hoard expressed a purpose to rent a box for Mrs. Moorman, his daughter, before the deed became lost. This he did, giving the grantee a key to the box and keeping one for himself. He taught Mrs. Moorman how to use the key, placed the deed in the box, and told her to keep it. Under these circumstances this court said:
“. . . These uncontroverted facts show a valid conveyance and a delivery of the deed during the lifetime of the grantor, as a matter of law. The fact that Mr. Hoard retained a key to Mrs. Moormans box would not negative the delivery of the deed to her, in the absence of a showing that he retained the key in order to retain possession of the deed. The burden was upon appellees to make such showing. He might have retained the key for a purpose entirely consistent with his having delivered the deed.” (p. 159.)
In Smith v. Dolman, supra, the grantor executed a deed to his daughter. The deed was not recorded until after the grantor’s death, but it was placed in the daughter’s portion of her father’s safe along with other deeds, and separate from the father’s papers. The court held this fact tended to show an intention on the father’s part to pass title, and judgment entered by the trial court quieting the daughter’s title was upheld. In Johnson v. Cooper, 123 Kan. 487, 255 Pac. 1112, the grantor deposited a deed with a banker with directions that he wanted the grantee to have the property and that she could record the deed when he was dead. This was held to constitute a valid delivery at the time the deed was placed in the banker’s hands even though the grantor later reclaimed the deed from the bank. A similar situation obtained in Reed v. Keailey, supra.
Clair takes the position that a delivery of his own deed was effected when his father handed him the key to the safety deposit box, but that the deed to Kenneth was not delivered at that or any other time. He defends this somewhat ungenerous position by pointing to his own testimony that his father said “that W. W. Parker told him that that constituted delivery of the deed to me.” (Emphasis supplied.) He also calls attention to the testimony of his wife, who can scarcely be termed a wholly disinterested witness. She testified: “Dad handed the key to Clair and he said that W. W. Parker told him that that constituted delivery of the deed to the farm.”
We think the position assumed by Clair is somewhat incongruous. If the circumstances in their entirety — taken as a single ball of wax— can be said to evince an intention on the part of the grantors to make a present delivery of the deeds on the occasion when the key was handed to Clair, and we believe an inference to such effect may be drawn, there is no reason to believe that the parents intended to withhold Kenneth’s deed or to make any distinction between their two sons, no matter what Clair may now infer by his use of the singular word “deed.” In this connection it is important to bear in mind that after the death of his mother, Clair filed both deeds for record, not his alone. This suggests that until the present squabble arose Clair himself interpreted the symbolic delivery as being one which applied to and covered both deeds.
The record discloses that both sons were very close to their parents. Although Kenneth lived in New York state, he came back to Emporia in the summers on vacation and worked on and around the home property. There was a fine relationship between Kenneth and his parents. There are no facts of record to indicate that the senior Agreliuses intended to deliver the one deed, but not the other. We believe it is significant that after Clair was given the key, Kenneth’s deed was not destroyed, but remained for more than twenty years in a common safety deposit box along with the deed to Clair.
In short, we are constrained to hold that the finding by the trial court that Kenneth’s deed was delivered while the grantors were still alive is supported by the evidence and that this part of the judgment must be affirmed.
The case is remanded with directions to set aside that part of the judgment which pertains to the joint savings account in the Eureka Federal Savings and Loan Association and to enter judgment awarding the funds in that account to the plaintiff. Otherwise the judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal involves the validity of an antenuptial contract and a consent to a will. The contract and the consent were set aside in the court below. The executor of the will of the deceased husband has appealed.
Wilber E. Broadie, a lawyer, lived in Winfield, Kansas during a large part of his adult life. He married and raised three children by his first wife. His first wife died in 1959.
Ethel C. Barnes, a housewife, lived in Winfield for over 50 years. She married and raised eight children by her first husband. Her first husband died in 1943.
Wilber and Ethel had been acquainted for many years. They attended the same church. They were lonely. In December, 1960, their acquaintanceship ripened into a closer friendship. Wilber was 81 years old. Ethel was 76 years old. They kept company together for over a year and during that time a marriage settlement for Ethel was discussed by them. They were married on February 18, 1962. Thereafter they traveled widely and enjoyed each other’s company for seven years.
At the time of this second marriage, Wilber E. Broadie was in comfortable financial circumstances. His net worth was roughly $180,000 and his property included farm and city real estate, securities, cash and some personal property. Ethel C. Barnes was in modest circumstances. She lived in a house owned by one of her sons. She owned a life estate in 145 acres of land in Oklahoma and had a small savings account. She was receiving a small social security check and her income from the Oklahoma land amounted to about $500 annually.
Prior to their marriage the parties privately discussed and agreed upon a marriage settlement for Mrs. Barnes of $25,000 plus homestead rights in the Broadie home in Winfield. This would permit the intended wife to live in the home after Mr. Broadie’s death and she would have possession and use of the furniture, fixtures and equipment located therein. An antenuptial contract dated February 1, 1962, was drawn by Wilber E. Broadie and signed by the couple. It provided for the marriage settlement and each waived all rights in the property of the other either in their lifetimes or by way of inheritance.
The will of Wilber E. Broadie was also drawn by him. It was dated, signed and witnessed on February 27, 1962, nine days after the wedding ceremony was performed. The will contained the following provision for Ethel C. Broadie:
“Second; I give and Bequeath to nay wife, Ethel C. Broadie, the sum of Twenty-Five Thousand ($25000.00) Dollars together with homestead rights in the home at 440 College, Winfield, Kansas, and the use of the furniture, fixtures, equipment and utensils therein during her use and occupancy of said premises as my widow should she survive me.”
A consent to the will by Ethel C. Broadie was attached, signed and witnessed. It reads:
“I, Ethel C. Broadie, wife of Wilber E. Broadie, who executed the foregoing instrument as his last will and testament, do hereby declare that I have read the same and understand the provisions thereof and the rights secured to me by law and I hereby consent to said will and accept the provisions therein made for me in lieu of any and all rights and allowances which would otherwise accrue to me under the law. Witness my hand this 27th day of February, 1962.”
During the seven years that followed no question appears to have been raised by Ethel C. Broadie concerning the provisions of the marriage settlement or the will. Wilber made gifts inter vivos to his wife of securities and money totaling roughly $15,000. During this period she continued to handle her own affairs, kept separate bank accounts and her attorney, Lyle W. Loomis, assisted her in obtaining an oil bonus payment on her Oklahoma land of $4,800.
Wilber E. Broadie died on December 31, 1968. His will was filed for probate. The antenuptial agreement was apparently attached to the petition for probate as an exhibit. The petition was filed by the son of Wilber E. Broadie who was named executor in the will.
Ethel C. Broadie then launched her attack against the contract and the consent to the will. On transfer from the probate court, the district court set aside the antenuptial contract and the consent to the will. This appeal followed.
Ethel C. Broadie died on October 5, 1970, while this appeal was pending. Opal Barnes McMeen, executrix of the last will and testament of Ethel C. Broadie, was substituted for Ethel C. Broadie, as appellee on order of this court. The contest continues in this court between the two estates of the original parties to the agreement,
A contention is made in the appellant’s brief that the case was prematurely decided by the district court on opposing motions for summary judgment. Claims of error not listed in the statement of points will not be entertained by this court on appeal. (Supreme Court Rule No. 6 (d), 205 Kan. xxix.)
The record on appeal conclusively shows the case was submitted for final decision by stipulation on a printed record. The agreed record below and the record on appeal consists of pleadings, depositions, answers to interrogatories, admissions and affidavits. The nature of the record below is significant on appeal. Normally oral testimony is taken in the district court and when the case is submitted to the court without a jury the district court becomes the trier of the facts. In such case the appellate court accepts the facts as determined by the trial court. However, when a case is submitted to the district court on a printed record that rule does not apply.
When the findings of fact made by the district court are based upon evidence in printed form such as documents, depositions and interrogatories, no oral testimony having been heard, it then becomes the duty of this court on appeal to decide for itself what facts are established and the conclusions to be reached. This it should do substantially as it would in an original action. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; In re Estate of Neis, 170 Kan. 254, 225 P. 2d 110; Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10.) We will follow the rule in this case.
There is some argument between the parties over the date the antenuptial agreement was signed. The written agreement is dated February 1. The deposition of Ethel C. Broadie indicates the parties were married on February 18, and the agreement was signed three or four days thereafter. No third parties were present when it was signed and Wilber E. Broadie is now dead. However, it is clear from the record that the marriage settlement was discussed and agreed upon before the marriage took place. It was reduced to writing and executed within a few days after the wedding, if not before. The date of signing the agreement which reduced the settlement to writing is not signifiant under such circumstances.
The validity of the antenuptial agreement is questioned because Mr. Broadie indicated he owned securities generally of the value of $75,000 and it is now shown the securities he owned at that time were worth about $125,000 on the market. No claim is made that Mr. Broadie intentionally misrepresented any particular security or attempted to conceal the same from his wife.
Antenuptial agreements are recognized as valid in this state and two parties contemplating a marriage have a right to make a binding agreement of this nature if the agreement is just and adequate in its provisions and is free from deceit and fraud. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; In re Estate of Neis, supra; In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483.)
Generally the relation of the man to the woman he is about to marry is a confidential relation which arises from the glow of that tender, trusting closeness which comes from courtship ending in a mutual declaration of love resulting in marriage. The man in such case or his successors may later carry a burden of showing the antenuptial agreement entered into by the betrothed couple was fairly and understandingly made after a disclosure of his financial circumstances. In such cases the provision made for the intended wife must be just and adequate. Whether an antenuptial agreement is just and adequate depends upon the facts and circumstances of each case.
In the present case Wilber E. Broadie was 81 years of age. His intended wife was 76 years of age. Both parties had children by previous marriages and their children had anticipatory claims upon their parents’ bounty in event of death. Both parties were in the last eight years of their lives when the marriage was contemplated. Wilber’s total estate at that time was valued at only $180,000. A marriage settlement of $25,000 plus homestead rights and allowances under all the circumstances appears just and adequate.
Wilber E. Broadie, although a lawyer, had retired from practice in 1961. He never represented Ethel in any business matters either before or after the marriage. He did prepare the agreement and the will. However, there is no contention that these instruments failed to express the agreement of the parties. The district court found from the facts that these parties occupied the highest “fiduciary” relationship. In a legal sense the use of the term “fiduciary” is not accurate. (See In re Estate of Carlson, 201 Kan. 635, 648, 443 P. 2d 339.) No lawyer-client relationship existed. Both before and after the marriage Ethel took care of her own property in Kansas and in Oklahoma. Prior to her husband’s death she obtained a substantial oil bonus payment of $4,800 on her interest in the Oklahoma land. Her attorney in that matter was Lyle W. Loomis.
The relationship generally arising between the parties on their betrothal is one of confidence and reliance. This confidential relationship may make it necessary for the husband’s successors to establish no outright fraud or intentional misrepresentation was exerted by the intended husband when the antenuptial agreement was entered into and that its provisions were just and adequate. In this case the widow clearly indicated in her deposition that no outright fraud or intentional misrepresentation was claimed by her. The only basis she claimed for establishing the invalidity of the antenuptial agreement was a difference in the value of the securities from which her $25,000 marriage settlement was to come. Wilber told her his securities were worth $75,000 when in fact a detailed inventory of these securities at the time of the marriage would have disclosed their market value as $125,000. It may be inferred that Wilber valued them at his cost. In any event she knew the exact amount in dollars that she was to receive on his death and there is no evidence in the record of any attempt to conceal property from the intended wife. In addition during the seven years after the marriage and before Wilber’s death he made gifts to his wife of stock and money totaling about $15,000.
The facts in this case raise a question as to the nature and extent of the disclosure necessary before an antenuptial agreement is valid.
Some courts in other jurisdictions, in the spirit of the women’s liberation movement, have held the confidential relationship which imposes the duty to disclose property is not present under circumstances similar to those in this case. Those courts hold that the duty to disclose is not present when the intended marriage is one of convenience. These courts reason that the business judgments of the parties are not subject to being clouded by the prehymeneal ardor and tenderness which ordinarily is assumed to be present when a man and woman are about to embark upon matrimonial seas. (See cases collected in Anno. 27 A. L. R. 2d 883 at p. 889.)
We find no cases in Kansas where such reasoning has been employed. However, this court does consider all circumstances sur rounding the marriage including the age of the parties, prior marriages, the claims of their separate families and the amount of their respective estates. The mere fact that the intended husband did not disclose in detail to his intended wife the nature, extent and value of his property will not, of itself, invalidate the contract or raise a presumption of fraudulent concealment if the wife does have a general understanding of the nature and extent of his property. (In re Estate of Cantrell, supra; In re Estate of Schippel, 169 Kan. 151, 218 P. 2d 192.)
In her deposition Ethel C. Broadie agreed that the marriage was one of convenience. The parties had lived in the same city for many years. They had attended the same church and had been acquainted for many years. They lived in a relatively small city. The intended wife had a general knowledge of the nature and extent of the property interests owned by the intended husband.
Under the facts of the present case we hold that a detailed disclosure of the property was not required to show an intelligent understanding of the property of the intended husband.
After considering the foregoing circumstances we cannot agree with the district court that the antenuptial agreement was a result of concealment, overreaching or fraud on the part of Wilber E. Broadie. Other than the wife’s bare statements as to an understatement of value, after her husband’s lips were sealed by death, there simply is no evidence to sustain such a conclusion. When a party voluntarily and freely signs an antenuptial contract knowing full well what she is to receive therefrom and thereafter seeks to refute it on the ground of concealment, overreaching or fraud, such much be made to appear clearly before the contract may be declared invalid. (Shriver v. Besse, 163 Kan. 402, 183 P. 2d 407; In re Estate of Schippel, supra.)
The action of the distinct court in setting aside the antenuptial agreement and consent to the will rests heavily upon its finding that Ethel C. Broadie entered into the agreement without being furnished independent advice and counsel.
If outright fraud or misrepresentation is established the agreement is void regardless of independent advice. Outright fraud or misrepresentation must be made to appear clearly before a contract voluntarily entered into may be declared invalid. (In re Estate of Ward, 178 Kan. 366, Syl. ¶2, 285 P. 2d 1081.) No outright fraud or intentional misrepresentation was shown in the present case.
Absent outright fraud or intentional misrepresentation two persons may enter into a valid and binding antenuptial contract without any independent advice if the contract is fairly and understandingly made and if it is just and adequate in its provisions. (In re Estate of West, 194 Kan. 736, 402 P. 2d 117.)
If a presumption of fraud is raised by a showing that the terms of the antenuptial agreement appear unjust or inadequate under the circumstances and that the intended wife had no understanding of the nature and extent of the intended husband’s property then evidence of independent advice and a showing of lack of any confidential relationship may be necessary to overcome that presumption of fraud.
It was said in the case of In re Estate of Carlson, 201 Kan. 635, 443 P. 2d 339:
“The rule of independent advice is applicable only under circumstances where the evidence warrants it. Our decisions do not require application of the rule where the beneficiary or party upon whom is cast the burden of proof presents substantial evidence that the gift, deed or contract was made in good faith, not induced by undue influence, and for a valuable consideration. . . .” (Syl. f 6.)
In Frame, Administrator v. Bauman, 202 Kan. 461, 449 P. 2d 525, it was held:
“Where good faith has been established on the part of one who benefits from a transaction and no undue influence has been exerted by him, and where the transaction is shown to have carried out the true and freely formed intentions of the party conferring the benefit, the law does not stigmatize the transaction as fraudulent and void simply because a confidential relationship may exist between the parties.” (Syl. ¶ 6.)
In the present case the facts and circumstances do not raise a presumption of fraud. Considering the age of the parties at the time this antenuptial agreement was executed we believe the marriage settlement for the intended wife of $25,000 plus the homestead rights in the Broadie home was just and adequate under all the circumstances. We believe that the agreement was fairly and understandingly made by the intended wife and that she full well knew what she was to receive as a result of this marriage of convenience. Any claim of inadequacy of the settlement or overreaching by the intended husband is weakened by the gifts inter vivos totaling over $15,000 which she received during the seven years the parties were married.
It is argued the consent to Wilber’s will was ineffectual by reason of the circumstances surrounding the execution. What has been said with respect to the execution of the antenuptial contract, taken as a whole, might be applied to this argument. There is another reason, however, why this argument with respect to the consent is without merit.
When an antenuptial agreement is under attack the primary inquiry is whether the provision for the intended wife is reasonable and adequate under the circumstances, free from fraud or overreaching, and understandingly made. Such contracts are made when both parties are unmarried. Neither of them at the time has any rights in the property of the other. They are made upon a different basis than are consents by wives to their husbands’ wills.
In the case of In re Estate of Schippel, supra, it was pointed out:
“. . . The consideration of such an [antenuptial] agreement is the contemplated marriage, and the parties, for such consideration, simply agree in advance of marriage upon a different rule as to property rights than the statutory rule. The statute providing that a husband shall not will away more than one-half of his property without the written consent of his wife has no application here. . . .” (169 Kan. 151,166.)
Under the facts and circumstances of the present case we believe that the validity and binding effect of the widow’s consent to the will depends upon the validity of the antenuptial agreement. There is no contention that the will failed to assure Ethel C. Broadie of the property agreed upon in the antenuptial agreement. Since the agreement was valid and binding and the will carried out the terms of that agreement no purpose would be gained by a discussion of the requirements of a valid consent to a husband’s will. A valid and binding antenuptial agreement controls the disposition of the widow’s portion of the husband’s estate regardless of the widow’s consent to her husband’s will. (See, In re Estate of Ward, supra, and In re Estate of West, supra.)
In light of what has been said we conclude the antenuptial contract between Wilber E. Broadie and Ethel C. Barnes dated February 1, 1962, was fairly and understandingly made, was just and equitable in its provisions and not obtained by fraud or overreaching. Therefore, the judgment of the district court is reversed and the cause is remanded with instructions to set aside its judgment and enter judgment in favor of appellant.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from a denial of a motion under K. S. A. 60-1507. A plenary hearing was held. Thereafter the trial court carefully examined each point raised by appellant and rejected the same in an eight page journal entry.
Appellant’s conviction of first degree murder was previously affirmed by this court in State v. Turner, 193 Kan. 189, 392 P. 2d 863. The facts of the case are summarized in that opinion. Suffice it to say that Turner drove the “get-away” car while a friend, Roy Jack Loren, Jr., burglarized a home and killed the occupant. The murdered man was John R. Keach, a prominent Johnson county attorney. Appellant was convicted of first degree murder under the felony murder rule.
Three of appellant’s five points were raised and considered in the direct appeal. The trial court refused to consider these points at the 1507 hearing. These three points were: (1) Turner was denied an impartial jury as a result o£ the court’s refusal to grant a change of venue; (2) He was denied due process because of failure of the court to quash the information since it charged he personally committed the homicide and he was tried under the felony murder rule; and (3) His pretrial statements were improperly admitted in evidence in violation of his right against self-incrimination.
It is well settled that proceedings authorized by K. S. A. 60-1507 may not be used as a second appeal on questions previously raised and considered by this court. See Cipolla v. State, 207 Kan. 822, 486 P. 2d 1391, and Eaton v. State, 206 Kan. 187, 476 P. 2d 694.
Appellant points to language in Baker v. State, 204 Kan. 607, 464 P. 2d 212, where the rule as stated is prefaced by the word “ordinarily”. He argues that the points now urged were not fully considered upon direct appeal and the exception should be applied to this case.
However, appellant fails to show he was precluded from a review of these alleged errors when he took his direct appeal. The exception, which gives rise to the use of the term “ordinarily”, refers to circumstances of a particular case where new principles of law affecting the court’s original opinion have been declared after the case was considered on direct appeal. See Barnes v. State, 204 Kan. 344, 461 P. 2d 782, and Baker v. State, supra. The cases upon which appellant would rely were all available at the time of the original Turner decision. These three points were fully answered. The appellant here presents only an altered emphasis on his earlier arguments. No basis for applying the exceptional circumstances rule appears and the three points will not be reexamined.
Appellant raises additional points. First he contends the exclusion of prospective jurors having scruples against capital punishment denied him a jury representing a cross section of the community.
The death penalty was not imposed in this case. The holding of Witherspoon v. Illinois, 391 U. S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, is clearly limited to cases where the jury imposes the death penalty. In the absence of evidence of an unrepresentative jury in the record the exclusion of jurors opposed to capital punishment will not be presumed to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction in violation of constitutional standards.
In Witherspoon the specific contention now raised by appellant was considered and rejected. This court previously examined and rejected appellant’s present contention. See Zimmer v. State, 206 Kan. 304, 477 P. 2d 971, and State v. Roth, 207 Kan. 691, 694, 486 P. 2d 1385. The exclusion of jurors opposed to capital punishment will not be presumed to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction in violation of constitutional standards. On the basis of the evidence in this record there is no showing that the jury which tried appellant was in anyway an unrepresentative jury on the issue of guilt or that the manner of their selection increased the risk of conviction.
Appellant’s next contention is that jurors were improperly disqualified by the court under K. S. A. 62-1404 and 1405. It is urged the voir dire examinations failed to disclose sufficient facts to warrant disqualification under these statutes.
In the absence of any evidence in the record to show that the court’s rulings on disqualification resulted in an unrepresentative jury on the issue of guilt or that this increased the risk of conviction no error of constitutional proportions is raised. Such will not be presumed. Therefore the matter is, at most, a trial error not reviewable in a 1507 proceeding. The trial court’s rulings as to disqualification of jurors will not be disturbed unless disqualification appears as a matter of law or unless there has been a clear abuse of discretion. In either event review of such matters is limited to direct appeals. See State v. Coleman, 206 Kan. 587, 481 P. 2d 1008, and State v. Dearman, 203 Kan. 94, 453 P. 2d 7, cert. den. 396 U. S. 895, 24 L. Ed. 2d 173, 90 S. Ct. 194.
The final point urged on the court is ineffective assistance of counsel at the trial. In a 1507 proceeding the burden of establishing the incompetency of an attorney or the ineffective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the petitioner. (Baker v. State, supra.) The law does not guarantee an accused the assistance of the most brilliant and experienced counsel, but it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed. (State v. Brown, 204 Kan. 430, 464 P. 2d 161.) Effective assistance of counsel cannot be equated to assistance of counsel which is considered successful by a defendant. (Cipolla v. State, supra.) Competence must be gauged by the totality of the representation and not by fragmentary seg ments thereof in isolation. (Johnson v. State, 203 Kan. 947, 457 P. 2d 181.) Trial strategy should not be confused with ineptitude. (Tuscano v. State, 206 Kan. 260, 478 P. 2d 213.)
Appellant had the assistance of two competent attorneys at his trial. The trial court appointed David Gilman of Johnson county and Myles Stevens, a black attorney from Wyandotte county, to defend. The second attorney was appointed because appellant was black and the court desired to appoint a black attorney to assist in the defense. Both were experienced attorneys and Mr. Stevens was a former assistant prosecuting attorney in Wyandotte county. It would serve no useful purpose to outline the legal work which was performed for this unappreciative appellant. The record discloses that appellant was represented throughout the critical stages of the trial proceedings by two competent and able attorneys. The trial court found appellant had the effective assistance of competent legal counsel and there is an abundance of substantial evidence in the record to support that finding.
The judgment denying relief is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, William Russell Stewart, was convicted of escaping without breaking from the Kansas State Penitentiary in violation of K. S. A. 21-734 (now K. S. A. 1970 Supp., 21-3810). During his trial, the appellant was served with notice of the state’s intention to invoke the Habitual Criminal Act (K. S. A. 21-107a [now K. S. A. 1970 Supp., 21-4504]). The appellant was sentenced pursuant to that Act to serve a term of not more than six years. The sentence was to run consecutively with any sentence previously imposed.
The appellant first asserts the district court erred in refusing to discharge the jury panel. His challenge to the array is premised upon the argument the panel was drawn from a list of taxpayers; hence, the poor were deliberately excluded from the class of persons eligible to serve as a jury of his peers.
The record is void of any proof that would substantiate the appellant’s claim. As we said recently in State v. Stanphill, 206 Kan. 612, 481 P. 2d 998:
“Systematic or purposeful exclusion of members of a class from jury service may not be assumed or asserted — it must be established by proof. (See, State v. Clift, supra.) Just as in the case of alleged discrimination based on race, purposeful exclusion is not satisfactorily proved by showing an identifiable segment of the community is not proportionately represented on the jury list. (State v. Cushinberry, 204 Kan. 65, 460 P. 2d 626.) . . .” (l. c. 620.)
Other than the appellant’s bald assertion that K. S. A. 43-102 does not offer an opportunity for the poor to serve on jury panels in this state, there is absolutely no showing of systematic exclusion as an issue. Absent other proof, we cannot weigh the validity or legality of the appellant’s claim. (Scoggins v. State, 203 Kan. 489, 454 P. 2d 550; State v. Clift, 202 Kan. 512, 449 P. 2d 1006, cert. den. 396 U. S. 910, 24 L. Ed. 2d 186, 90 S. Ct. 225.) From the record, we conclude there was no resulting invidious discrimination.
Lastly, the appellant contends the district court erred in overruling his motion for a new trial, premised upon the assertion that it was prejudicial error for the state to serve written notice of its intention to invoke the Habitual Criminal Act during the trial and in view of the jury. Intention to invoke the Habitual Criminal Act is required to afford the accused an opportunity to controvert any argument raised by the state that he should be subjected to a more stringent sentence. (Brown v. State, 196 Kan. 236, 409 P. 2d 772; Goodwin v. State, 195 Kan. 414, 407 P. 2d 528.)
We are of the opinion there was no prejudicial error. While it must be conceded that service during the trial was irregular, there is nothing to show the jury knew what had been served on the appellant so as to raise any inference that it would preconceive his guilt. Moreover, arguments on the motion for mistrial were made out of the presence of the jury. This is not a case where the state’s conduct so branded the accused that a fair trial was not possible. The record is absent any firsthand knowledge the jury may have had concerning the service. Arguably, it could have believed the deputy sheriff to be a guard serving a “phone message” or some other document. The appellant has failed to meet the burden of showing prejudicial error. (State v. Guffey, 205 Kan. 9, 468 P. 2d 254; State v. Davis, 199 Kan. 33, 427 P. 2d 606.)
The judgment is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action by plaintiff, an employee of Boeing Aircraft to recover benefits under a group policy issued to Boeing by defendant for the benefit of employees.
The issue was whether plaintiff was entitled to eighteen months or twenty-four months of payments under the “occupational disability” provisions of the “permanent and total disability” definition set forth in policy No. GL707. The trial court held that plaintiff was entitled to eighteen months only and plaintiff appeals.
The plaintiff, Ralph E. Blue, was employed by Boeing Aircraft Company, Wichita, Sedgwick County, Kansas, and while so employed was insured by Aetna Life Insurance Company under group policies Nos. GL707, GC707, and GC62250. The plaintiff became disabled on July 3, 1967, and following a six-months elimination period applied for his benefits under these insurance policies. Payment was declined by Aetna Life Insurance Company, and the plaintiff filed his petition herein seeking payment of his disability benefits and attorney fees on the grounds that the defendant’s refusal to make disability payments was unreasonable, arbitrary, and without just cause.
At a pretrial conference held September 2, 1970, the plaintiff’s •counsel made an oral motion for partial summary judgment on the first portion of the insurance policies, which provided for disability .and other payments during a period of time the plaintiff or employee was prevented from “performing the duties of his own occupation, or other appropriate work made available by the participant employer,” commonly referred to as “occupational disability.” No motion was made for that portion of the policy which provided for disability payments if the plaintiff was prevented “from working in any reasonable occupation,” commonly referred to as “general disability.” The trial court granted the plaintiff’s motion for summary judgment, but limited payment under its ruling to the period of time commencing six months after the plaintiff’s disability started, through the twenty-fourth month following the starting of the plaintiff’s disability or a total of eighteen months of compensation.
We do not have the policy before us, but both parties agree the issue to be determined is controlled by a proper interpretation of the following portion of the policy which reads:
“Upon receipt by the Insurance Company at its Home Office ... of due proof that the Employee . . . has become permanently and totally disabled, as hereinafter defined,
“(1) The Insurance Company shall begin paying to the Employee a monthly income in the amount hereinafter provided, and
“(2) The Insurance Company shall continue in force during the continuance of such disability, without payment of premiums, an amount of insurance equal to the amount of insurance in force under the group policy on the life of the Employee at the commencement of such disability; . . . and
“(3) The Insurance Company shall begin to apply, on behalf of the Employee, the monthly contribution for the Employee’s medical expense coverage if any, under group policy No. GC-62250, another contract between the Insurance Company and the Policyholder.
“For the purposes of this section, permanent and total disability is a disability resulting from bodily injury or disease
“(1) which prevents the Employee from performing the duties of his own occupation, or other appropriate work made available by the Participant Employer, during the first two years of such disability and which thereafter prevents the Employee from working in any reasonable occupation; for the purpose of the group policy, ‘reasonable occupation’ means any occupation or employment for which the Employee is fitted or may reasonably become fitted by education, training, or experience, but shall not mean any such occupation if it is in connection with a rehabilitation program approved by the insurance company in writing; and
“(2) which has continued without interruption for a period of at least six months; . .
Plaintiff summarizes the policy as follows, claiming that this language controls the issue in this action:
“For the purpose of this section, permanent and total disability is a disability
“(1) which prevents the employee from performing the duties of his own occupation, during the first two years of such disability; and
“(2) which has continued without interruption for a period of at least six months; . . .”
Plaintiff argues that the judgment of the trial court should be reversed on one of two theories.
He first claims the court erred in its interpretation of the policy as providing a six-months waiting period and payments for eighteen months to satisfy the requirements of the policy for the first two years of such disability instead of interpreting the policy as providing for payments for a total of twenty-four months under the occupational disability definition.
He also claims the provisions as to the length of time payments would be made for the first two years of disability were ambiguous and the court erred in failing to apply the construction most liberal to plaintiff.
Our approach to the problem is controlled by the rule frequently stated in our cases and recently restated in Fowler v. United Equitable Ins. Co., 200 Kan. 632, 438 P. 2d 46, as follows:
“. . . The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. The test to be applied in determining this intention is not what the insurer intended the policy to mean, but what a reasonable person in the position of the insured would understand it to mean. When the contract is clear and unambiguous, the words are to be taken and understood in their plain, ordinary, and popular sense, and there is no need for judicial interpretation of the application of rules of liberal construction; the court’s function is to enforce the contract according to its terms. Since an insurer prepares its own contracts, it has a duty to make the meaning clear, and if it fails to do so, the insurer, and not the insured, must suffer. Thus, if the terms of a policy are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. . . (pp. 633, 634.)
We have attempted to interpret the words of the policy from the standpoint of “a reasonable person in the position of the insured-’ and “in their plain, ordinary, and popular sense.” We are inclined to believe that the insured, from the language used, would form an impression, since two years was the only period mentioned, that he was entitled to two years of benefits. It is only when a careful analysis of the language is made that difficulty arises.
The problem centers around the use of the word “such.” We are unable to determine whether the antecedent of the word “such” is “disability” or “permanent and total disability.” If it refers to “disability” it would imply a payment for eighteen months. If it refers to “permanent and total disability” it would imply a payment for twenty-four months.
The language of the policy plainly discloses that “permanent and total disability” does not exist until the six-months period has passed. We are unable to determine whether the policy provides payments for twenty-four months after “permanent and total disability” comes into existence or whether the policy provides payments for twenty-four months after “disability” occurs.
In view of the foregoing, we cannot avoid the conclusion that the policy was vague and ambiguous. The conclusion could easily have been avoided by a statement in the policy that payments would be made for eighteen months or twenty-four months following a determination that the insured was totally and permanently disabled.
It then becomes incumbent upon us to construe the policy most favorable to the insured. (Fowler v. United Equitable Ins. Co., supra; Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992.) In so doing, we hold that the policy should provide benefits fqr a period of twenty-four months. ■
We direct the trial court to make proper orders providing for an additional payment to plaintiffs for the six-months period in dispute.
Reversed with directions. | [
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