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The opinion of the court was delivered by
Brewer, J.:
The record discloses manifold irregularities in the proceedings below, the result of which seems to have been that the plaintiff in error was deprived of his rights without his day in court. Many of these irregularities could have been corrected by motion in the district court.- At any rate we cannot consider them until they have been passed upon by that court.
The petition was filed in the name of the executors of Jacob Ulrich deceased as plaintiffs, alleging that said Ulrich died siezed and possessed of certain tracts of land which he had obtained by deed from the heirs of John Hicks; that Gray and Miller had, prior to the date of that deed, obtained by false and fraudulent representations a conveyance from one of the heirs of her interest in said land, and praying that said conveyance be set aside and cancelled. To this petition a demurrer was filed by Gray upon two grounds, first, that the petition did not state facts sufficient to constitute a cause of action, and second, defect of parties plaintiff. At the March Term 1867 the heirs of Jacob Ulrich were by consent made parties plaintiff. The subsequent entries in the case are entitled with the names of the heirs as plaintiffs, omitting the executors. By consent the case was continued. At the subsequent term the case was again continued, but afterwards, during that term, and in the absence of plaintiff in error, the continuance was on application of counsel for the heirs- of Ulrich, set aside, the case heard on the petition and proofs by them offered, and a decree entered setting aside the conveyance to Miller and Gray, and vesting the title to the land in the heirs. No notice was taken of the demurrer. The judgment recites that Gray has been duly served with summons, and is in default of answer. It appears then that the petition was filed in the names of the wrong parties plaintiff; that after the making of the new plaintiffs the case was improperly entitled; that Gray was not in default at the time of judgment, and that judgment against him was therefore irregularly entered. Ordinarily too, it is improper after a case has been continued to set Ji x aside the continuance and dispose of the case in the * absence of one party and on the application and in favor of the other. A record thus scarred is not comely to look upon. However, if these were the only errors we should probably be constrained to let the judgment stand, until at least application had been made to the court in which it was rendered to vacate it.
We think a more fatal defect is in the petition; that upon its allegations neither the executors nor-the heirs were entitled to any relief. The petition shows that the land in controversy was sold and patented by the. United States to the heirs of John Hicks deceased; that Jane Hicks was one of those heirs; that on or about Dec. 21st, 1860, said Jane Hicks deeded her interest in the land to Miller and Gray; that on January 9th, 1862, she joined with the other heirs in a deed of the premises to Ulrich. Now, upon these facts it is plain that the deed to Ulrich, so far as Jane Hicks was concerned, carried nothing, as by her deed to Miller and Gray she had parted with all her interest. To avoid this necessary conclusion, and as furnishing grounds for relief, the petition further alleges that the deedMiller and Gray was imperfectly acknowle(%ed, was without consideration, was obtained by fa|ge a;QC| fraudulent representations, and was made before the issue of the patent. In regard to the first allegation, neither an imperfect acknowledgment, nor a total want of any acknowledgment affects the validity of a conveyance. An simply to tbe proof of execution, not to tbe force of tbe instrument. In regard to tbe last, by tbe laws of 1859 wbicb were in force at tbe time, an after-acquired title of tbe grantor passes to tbe grantee to tbe extent of tbe interest purported to have been conveyed. In regard to tbe second and tliird, while if true they might bave given to Jane Hicks tbe right to bave tbe deed avoided'by a decree of a court of equity, yet this right was a personal one and did not pass to tbe grantee under any subsequent deed. Tbe deed sbe bad made was not void, but only voidable. Sbe might proceed to bave it set aside, or elect to affirm o j. The PeRtion does not show that sbe did either. Sbe never having proceeded to set aside tbe deed, it is good as against Ulrich and bis heirs. When Ulrich took bis deed from her, be took nothing, not even tbe right to question any supposed fraud in her prior conveyance. Gage v. Gage, 9 Foster, 533; Crocker v. Bellangee, 6 Wis., 645.
But it is claimed with great earnestness and ingenuity by counsel, that, as tbe petition, since tbe addition of tbe heirs as plaintiffs, contained an allegation that Jacob Ulrich died seized and possessed of tbe reality in question, that tbe plaintiffs were bis heirs at law, that tbe defendants claimed an interest in tbe premises by means of a deed set out in tbe petition, which deed showed that tbe interest of tbe defendants was adverse to that of tbe plaintiffs, and asking that tbe deed be set aside and tbe plaintiffs decreed to bave title in tbe premises, it was a good petition to quiet title, and tbe demurrer ought to bave been overruled, and was properly disregarded. In other words, we may reject a large portion of the petition as surplusage and still find enough to make a good petition for some relief. Eedundant and irrelevant matter frequently appears in pleadings. JLlie code provides ior stniang it out on motion. So, if it may be stricken out on motion, it may be disregarded on demurrer. This is correct, except where the allegations proposed to be disregarded so far qualify and restrict the remainder of the petition that if true they show the plaintiff is not entitled to relief, then they may not be rejected as surplusage. The defendant is not called upon to make any defense when the plaintiff’s petition on its face shows that his claim for relief is unfounded. To illustrate: An action is brought on an account. The petition is complete, but does not allege when the account was created. A demurrer will be overruled. Buckner v. Clark, 1 Kas., 303. Suppose it alleges that the account was created five years before suit. A demurrer will be sustained. Zane v. Zane, 5 Kas., 134. The allegation of “time” cannot be rejected as surplusage. Its omission does not vitiate the pleading. Its presence qualifies and restricts the other averments, so that the whole petition shows that the claim is barred. This principle applies to the present ease. If there had been only a general allegation of title and possession, the petition might have been considered sufficient as one to quiet title; but inasmuch as it goes farther, and shows how both plaintiffs’ and defendants’ titles accrued, and upon that showing defendants’ title is the better, the demurrer should have been sustained, and there was error in proceeding to judgment, disregarding the demurrer.
Before passing from the case there is another point which requires notice. An attempt is made to show that Ulrich had the equitable title to the land before the deed to Gray and Miller, and that they took their conveyance with knowledge of this equity. Of course, if Ulrich had the full equitable title, and Jane Hicks acquired simply the naked legal title as trustee for him, and Gray and Miller obtained their conveyance with knowledge of this equity, Ulrich, or his heirs can question the good faith of this conveyance. Or rather, it does not make any difference whether it was in good faith or not, for Gray and Miller would take only what Jane Hicks had, and would hold as trustees for the heirs. But the petition fails to show how and from whom Ulrich obtained the float, how it haj>pened that the land was sold and patented to the heirs of John Hicks, and what interest the grantees in the patent actually had. Until these facts are disclosed we cannot say that the petition shows such an equitable interest in Ulrich in the premises prior to the patent as will enable his heirs to question the good faith of a deed from Jane Hicks prior to her deed to Ulrich.
The judgment must be reversed, and the case remanded with instructions to proceed in accordance with the views expressed in this opinion. Miller and Hicks not complaining of the judgment below, of course it remains as against them unaffected by this reversal.
All the Justices concurring.
The provision referred to is § 4, oh. 41, Comp. Laws of 1862 as follows: u Sec. 4. Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee.”
This provision was somewhat changed in the revision of 1868. Section 5, ch. 22, Gen. Stat. 1868 is as follows: “Sec. 5. Where a grantor, by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed,, but shall afterwards acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.” | [
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises issues regarding the interpretation and application of K.S.A. 3-307e, a statute relating to the rezoning of property within 1 mile of the Johnson County Executive Airport (Airport). Under this unique statutory scheme, a proposed rezoning must have the approval of the city and the county in which the property is located. In this case, the City of Olathe (City) approved the proposed rezoning, but Johnson County (County) did not. On judicial review of the County’s decision to disapprove the proposed rezoning, the district court found the County’s authority was limited to conducting a quasi-judicial review of the City’s approval. Applying general principles related to quasi-judicial review of zoning decisions, the district court held the County had to approve the proposed rezoning unless the County could establish the City’s decision was unreasonable. Concluding the County did not satisfy its burden, the district court upheld the City’s decision to approve the rezoning.
The County appeals, arguing, among other things, that the district court erroneously interpreted K.S.A. 3-307e to mean that the County had to approve the proposed rezoning unless the County could show that the City’s decision was unreasonable. We agree with the County’s argument and conclude the district court’s ruling was erroneous because K.S.A. 3-307e allows the County to reach an independent determination that a court must presume to be reasonable. As a result of that presumption, to successfully challenge the County’s action under K.S.A. 3-307e, a landowner must prove by a preponderance of the evidence that the County’s action was unlawful or unreasonable. Because these rules were not applied by the district court in this case, we reverse and remand for further proceedings.
Facts and Procedural Background
This action was filed by landowners who, during the litigation, filed a Motion to Substitute Party Plaintiff pursuant to K.S.A. 2010 Supp. 60-225(c). Through a series of assignments and purchases, the ownership of the subject property has changed hands a number of times. For simplicity, the plaintiffs in this action will be referred to as the “landowners.” These landowners own approximately 95 acres of land on the southeast comer of 143rd Street and Pflumm Road, located in the City and County. A portion of the property lies within the Airport’s “primaiy flight corridor subarea A,” which is a 500-foot-wide corridor centered along the extended centerline of the existing mnway. Most of the property is located adjacent to this corridor and is not on the direct path of landings or takeoffs.
For several decades, this property has been zoned agricultural. Seeking to change this zoning, tíre landowners filed an application with the City to classify the property as “RP-1” (planned single-family residential) and to approve a “preliminary plat for a subdivision with 230 lots and 16 tracts to be known as Amber Ridge.” The Amber Ridge development would have an overall density of approximately 2.4 dwellings per acre.
The Olathe City Planning Commission (City Planning Commission) conducted public hearings and fully reviewed the rezoning application. As part of this process, the Olathe City Planning Staff (City Planning Staff) received a letter in which the Johnson County Department of Planning, Development, and Codes (County Planning Department) objected to the proposed rezoning because the Amber Ridge development plan included “a density that is significantly more than supported by the recently adopted” Johnson County Executive Airport Comprehensive Compatibility Plan (Airport Compatibility Plan). The Airport Compatibility Plan, which had been adopted by the County but not the City, allowed a housing density of one dwelling unit per acre on the subject property.
Ultimately, the City Planning Staff recommended the City Planning Commission approve the proposed rezoning because it was consistent with the goals, objectives, and policies of the City’s comprehensive plan, which identified the future land use of the subject property as residential in nature, and it met the requirements of the City’s “Unified Development Ordinance.” The failure to comply with the Airport Compatibility Plan was not a detriment to the City’s approval, according to the City Planning Staff, because the City had not adopted the Airport Compatibility Plan and was not required to do so. The City Planning Staff s recommendation suggested several stipulations, however. These included requirements that the construction incorporate soundproofing materials and that there be plat and deed notations indicating that the property is adjacent to the Airport and “will be subject to high frequency of over flights by aircraft at low altitudes.” Upon receipt of this information, the City Planning Commission voted to deny the rezoning request.
The rezoning application was next considered by the Olathe City Council (City Council). The City Council heard a presentation from the Assistant City Planner and comments from nine concerned citizens (regarding safety, noise, aircraft and vehicle traffic, storm water run-off, and schools), the landowners’ engineer, and the landowners’ planning consultant. The City Council learned that the City Planning Staff was still in favor of the rezoning and that the development fit within the City’s comprehensive plan. The City Council then unanimously approved the rezoning (Ordinance No. 05-38), as well as the associated preliminary development plan and preliminary plat for Amber Ridge. The approved ordinance had several stipulations, including the soundproofing and plat notations suggested by the City Planning Staff.
A copy of the landowners’ rezoning application, the plat, and the record developed during the City’s consideration of the application were then forwarded to the County. With this step, the procedure deviated from the process that had been followed when previous landowners of the same property had attempted a similar rezoning, which the City approved. That earlier attempt, like this one, led to litigation.
Earlier Litigation
In the earlier litigation, Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 952 P.2d 1302 (1998), the Johnson County Board of Commissioners (County Commissioners) filed suit, alleging, among other things, that the rezoning was unlawful because the County had not been asked to approve the proposed rezoning and, therefore, the requirements of K.S.A. 3-307e had not been met. In addition, the County argued the City’s decision to approve the rezoning was arbitrary, capricious, and unreasonable because rezoning to allow the planned development of three dwellings per acre would permit a population density that was incompatible with the neighboring airport. Board of Johnson County Comm’rs, 263 Kan. at 672-74.
The district court, in the earlier litigation, focused on the arguments regarding whether the City’s decision was reasonable and did not address the issue of whether the ordinance was lawful. The district court found, in part, that “ ‘[d]ue to die proximity of the subject real property to the existing airport, and the dangers associated with potential aircraft crashes, the subject property is not suitable for high density residential development.’ ” Board of Johnson County Comm’rs, 263 Kan. at 675. The City and landowners appealed to this court.
This court reiterated that a zoning authority, such as the City, is presumed to make reasonable zoning decisions and held: “A court may not substitute its judgment for diat of the administrative body and should not declare the action unreasonable unless clearly compelled to do so by the evidence.” Board of Johnson County Comm’rs, 263 Kan. at 683. Concluding there was no compelling evidence of unreasonableness, this court reversed the district court’s decision and remanded the case for a determination of the legal issue the district court had not reached: Was the rezoning ordinance lawful in light of the requirement in K.S.A. 3-307e that the County approve any rezoning? Board of Johnson County Comm’rs, 263 Kan. at 683-84.
Although the progress of the case on remand is not clear, the record before us indicates that the rezoning was never finalized and the property remained zoned for agricultural use. Consequently, when plans were formulated to develop Amber Ridge, the landowners in the present case had to initiate a new application to rezone the property and, following the directives of K.S.A. 3-307e, seek the approval of the County once the City approved the rezoning and the plat.
This Case: Amber Ridge Rezoning
The effort to seek the County’s approval began upon the County’s receipt of the City’s record. In the first step of the County’s consideration, the County Commissioners conducted a public hearing. The County Commissioners then referred the application to the Johnson County Airport Commission (Airport Commission). The Airport Commission reviewed the proposed Amber Ridge development and considered presentations by representatives of the landowners, the County Planning Department, and the Aircraft Owners and Pilots Association Support Network. Based on this information, the Airport Commission unanimously voted to recommend the denial of the rezoning for two reasons: (1) “The proposed density is not compatible with the Airport Compatibility Plan,” and (2) “The proposed open space is not sufficient in amount or location.”
After receiving the Airport Commission’s recommendation, the County Commissioners denied the landowners’ rezoning application. In doing so, the County Commissioners echoed the Airport Commission’s concerns about insufficient open space and the “negative impact upon, and incompatibility with” the Airport Compatibility Plan. The County Commissioners felt the proposed population density of 2.4 dwellings per acre caused concerns about airport noise, public safety, emergency landings, and aiiport crashes. (Two crashes had occurred on the property within the last 15 years, according to testimony during the county approval process.)
Challenging the County’s denial of the rezoning application, the landowners filed a petition for judicial review in Johnson County District Court. The district court held, in part, that the City was the zoning authority and the County took a quasi-judicial role in reviewing the City’s rezoning decision. Observing that under the holding in Board of Johnson County Comm’rs, 263 Kan. 667, the City is presumed to be “imminently familiar with its real estate, and its boundaries” and to have acted reasonably to promote the welfare of tire City, the district court concluded the County must overcome the presumption that the City’s decision was reasonable.
In considering whether the County had met this burden, the district court recognized the County Commissioners’ “main objection was that airplanes can crash on take off and landing, and the plaintiffs’ land is within the boundaries of where planes tend to crash.” But the district court questioned the reasonableness of concluding that the proposed development caused a greater safety concern than other surrounding developments that had been approved by the County Commissioners. For example, a residential development to the west of the subject property, also within 1 mile of the Airport, had been approved even though it had a higher proposed population density than the proposed Amber Ridge development. The district court also found it significant that the Airport Compatibility Plan approved residential use of the subject property, albeit at the lower density level of one dwelling per acre, and, in light of that, questioned whether the difference in density between the Airport Compatibility Plan and the proposed development was significant, noting:
“The dispute between the parties comes [down] to the density of development on this real estate. Apparently, the Board of County Commissioners assumefs] that if there were 2.4 dwellings per acre, and if a plane crashed, it would hit both houses or 2.4 houses, whereas if it would crash under the [Airport Compatibility] Plan, it would only hit one house.
“There is no study in the record to establish the degree of risk of 2.4 houses per acre versus one house per acre. There is no showing that if 2.4 dwellings were constructed on the real estate in question that drere would be an increase[d] risk of loss of life or showing that the crash of the airplane would hit both houses.”
Further, the district court concluded that the County Commissioners’ objections to the rezoning were not based on a concern that the density of the Amber Ridge development would “obstruct” landings or take-offs because the subject property “is off to the side.” The County Commissioners’ concern that the presence of the Amber Ridge development would require pilots to take a steeper approach to the Airport was not a legitimate concern, according to the district court, because above-ground power lines currently cross the property and force a steep approach.
Based on these conclusions, the district court rejected the idea that the development would create an “aiiport hazard,” defined by K.S.A. 3-701(2), or an “aiiport hazard area,” defined by K.S.A. 3-701(3). Additionally, the district court rejected the landowners’ argument that the County had no authority to deny the rezoning if an airport hazard or airport hazard area was not created, stating:
“The Court finds that under Chapter 3, Article 3, the Board of County Commissioners would not be limited in its review authority to just airport hazards. The Court finds that in Chapter 3, Article 7, [adoption of aiiport zoning regulations] the County’s authority is limited to ‘airport hazards’ or ‘airport hazard areas,’ however in Chapter 3, Article 3, the County may consider reasonable factors in addition to an airport hazard, including density. However, in reviewing the actions of the County Commissioners, they have not made a finding of airport hazard or the existence of an airport hazard area. There has been no finding plaintiff s property constitutes an obstruction, an airport hazard or airport hazard area.” (Emphasis added.)
Ultimately, the district court found that the County failed to meet its burden of proof in order to overcome the presumption of reasonableness that applied to the City’s decision. Consequently, the district court deemed the City’s decision to rezone the property lawful and ordered the publication of the City’s rezoning ordinance. Further, an inverse condemnation claim brought by the landowners was deemed moot. Subsequently, the County filed a motion to stay enforcement, which the district court heard after the ordinance had been published. Because the City’s ordinance had been published, the district court declared the motion moot.
The County now appeals, raising several issues. We have taken the liberty to reorganize the various arguments of the parties into tihe following issues: (1) Did the district court err in concluding that K.S.A. 3-307e does not authorize the County to make an independent, discretionary rezoning determination? (2) What stan dard should the district court have used to review the County’s decision to disapprove the rezoning? (3) Was the County’s decision to disapprove the proposed rezoning entitled to a presumption of reasonableness that the landowners were required to overcome by proving that the County’s action was unreasonable? (4) Was the County’s decision to disapprove the proposed rezoning lawful and reasonable? and (5) Did the district court err in denying the County’s motion to stay the district court’s rezoning ruling pending this appeal?
Our jurisdiction arises from K.S.A. 20-3018(c) (a transfer from the Court of Appeals on this court’s own motion).
Analysis
Issue 1: Did the district court err in concluding that K.S. A. 3-307e does not authorize the County to make an independent, discretionary rezoning determination?
The first issue presents a question of statutory interpretation, which is a question of law that is subject to unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Well-known principles of statutoiy interpretation apply:
“ “When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.’ [Citations omitted.]” Manly v. City of Shawnee, 287 Kan. 63, 68, 194 P.3d 1 (2008).
In addition to these principles, the County argues we should apply the doctrine of operative construction and, because the County is the entity that must apply the provision, defer to its interpretation of the statute. This argument ignores recent case law, which reflects that the doctrine of operative construction has lost favor with this court. These recent decisions have held that “an agency’s or board’s statutory interpretation is not afforded any significant deference on judicial review. . . . [A]n appellate court exercises unlimited review on the determinative question of statutory interpretation without deference to [the agency’s] view as to its own authority.” Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010).
We apply these general guidelines to our interpretation of K.S.A. 3-307e. Article 3 of chapter 3 of the Kansas Statutes Annotated applies only to Johnson County and the Airport. See K.S.A. 3-301; Higgins v. Johnson County Comm’rs, 153 Kan. 560, 563-64, 112 P.2d 128 (1941) (indicating the legislation was adopted after federal government selected Johnson County as site and dedicated funds for development of airport as part of national defense plan).
K.S.A. 3-307e states:
“The airport commission shall act as an airport zoning commission for the county and as such shall make recommendations and serve in the same capacity as an airport zoning commission provided for in subsection (2) of K.S.A. 3-705. Said commission shall make such recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property within one (1) mile thereof. The board of county commissioners shall act on such recommendations and may zone such public airports and the surrounding areas within one (1) mile except where such areas have already been zoned by city action. In such cases, city zoned areas shall keep such city zoning control except that any changes in existing city zoning must have the approval of the board of county commissioners. All airport zoning regulations adopted as provided for herein shall be administered by the airport commission, as directed by the board of county commissioners. The county commissioners shall exercise directly all the zoning authority granted by this act in the event an airport commission is not appointed or functioning.
“The provisions of article 7 of chapter 3 of the Kansas Statutes Annotated shall, insofar as the same can be made applicable, govern judicial review and enforcement and remedies for airport zoning regulations adopted pursuant hereto.” (Emphasis added.)
When this provision was adopted in 1967 (see L. 1967, ch. 10, sec. 11), the landowners’ property had been zoned by the City. Consequently, it was a “city zoned area” that kept “such city zoning control.” Nevertheless, because the landowners’ property fell within 1 mile of the Airport and the landowners were requesting a change in existing city zoning, there is no dispute that K.S.A. 3-307e requires that the rezoning “must have the approval of the county commission.” There are disputes, however, about what “approval” of the County means. We have organized the parties’ arguments into the following subissues: (a) Does K.S.A. 3-307e grant the County the authority to approve or disapprove a rezoning request? (b) Does the absence of procedural and substantive direction in K.S.A. 3-307e indicate that the County is to merely review the City’s decision? (c) Does the absence of direction in K.S.A. 3-307e render it unconstitutionally vague? and (d) Do principles relating to home rule, comprehensive plans, and preemption mean that the County cannot exercise discretion?
(a) Does K S.A. 3-307e grant the County the authority to approve or disapprove a rezoning request?
First, the City and the landowners suggest that the word “approval” in K.S.A. 3-307e means that the County has no discretion and must accept any reasonable rezoning decision made by the City. Countering this argument, the County contends it is authorized to conduct a review of the rezoning application and make an independent determination, exercise its full discretion, and approve or disapprove the proposed rezoning.
In support of the County’s argument, it cites State, ex rel., v. Brooks, 160 Kan. 526, 163 P.2d 414 (1945), an original action in mandamus in which the plaintiffs asked this court to order the state superintendent of public instruction to consent to the annexation of certain territory to a rural high school district. The statute in effect at that time provided for the annexation of new territory to a rural high school district if petitions were signed by a majority of the electors of the proposed territory and the annexation had the “approval” of the rural high school board and the “consent” of the county superintendent of public instruction. The petition requirement was satisfied and the board approved the annexation, but the county superintendent did not consent. The plaintiffs appealed to the state superintendent, who also refused to consent to the annexation.
In considering whether a mandamus order was an appropriate remedy, the Brooks court discussed the meaning of the terms “consent” and “approval” and concluded that both terms grant discre tion to accept or reject the annexation. “It is pretty hard to see,” stated the Brooks court, “why the lawmakers provided that the county superintendent had to consent if his action was purely ministerial. Such a construction renders the use of the word ‘consent’ meaningless.” Brooks, 160 Kan. at 530. The Brooks court further explained that “[i]f after the board approved or refused its approval the rest of the steps were ministerial there would not be any reason at all for providing for an appeal.” (Emphasis added.) Brooks, 160 Kan. at 530; see also McCarten v. Sanderson et al, 111 Mont. 407, 109 P.2d 1108 (1941) (“approval” implies such concepts as “knowledge and the exercise of discretion after knowledge” and “the exercise of judgment”); Melton v. Cherokee Oil & Gas Co., 67 Okla. 247, 253, 170 P. 691 (1918) (on rehearing), cert. denied 247 U.S. 507 (1918) (“ ‘The veiy act of “approval” imports the act of passing judgment, the use of discretion, and the determination as a deduction therefrom unless limited by the context of the statute.’ ”).
The County argues that the Brooks court’s conclusion also applies to K.S.A. 3-307e: The requirement of County approval of any City rezoning within 1 mile of the Airport would be meaningless if it were purely ministerial. Consequently, the County argues the County Commissioners had the discretion to refuse to approve the proposed rezoning just as the school board in Brooks had the discretion to disapprove the proposed annexation and the superintendent had the discretion to refuse consent.
We agree and conclude that the interpretation in Brooks and similar cases is consistent with the common understanding of the “must have the approval” phrase used in K.S.A. 3-307e. In common usage, if one must have approval as a condition precedent, one knows that disapproval is possible. Certainly, as the Oklahoma court indicated in Melton, 67 Okla. 247, a legislature can limit this discretion. For example, there are Kansas statutes in which the legislature has defined alternatives to “approval,” including at least one, K.S.A. 12-756, which can be found in zoning statutes. In K.S.A. 12-756, the legislature requires a planning commission to submit proposed zoning regulations to its city or county governing body and that body may “(1) [a]pprove such recommendations by the adoption of the same by ordinance in a city or resolution in a county; (2) override the planning commissions recommendations by a % majority vote of the membership of the governing body; or (3) may return the same to the planning commission for further consideration.” K.S.A. 3-307e, however, does not include or incorporate any such limitations on the type of action that can be taken.
Further, the requirement in K.S.A. 3-307e that “any changes in existing city zoning must have the approval of the board of county commissioners” is similar to language used in several Kansas statutes that are commonly understood to grant a zoning authority the discretion to approve or disapprove a zoning proposal. E.g., K.S.A. 12-749 (political subdivision may “approve” recommendation to amend subdivision regulations); K.S.A. 2010 Supp. 12-752 (procedures for “approval” of platting and replatting); K.S.A. 2010 Supp. 12-757(d) (procedures for amending zoning regulation; using term “approval”); K.S.A. 2010 Supp. 19-2960 (procedures relating to protest of rezoning; using phrase “approve or disapprove”). The word “approval” in K.S.A. 3-307e is used in the same sense and indicates the County serves in the same approval role as other zoning authorities, i.e., the County also has the right to disapprove a proposal.
Finally and importantly, K.S.A. 3-307e is not worded as a review provision. Not only does the statute use the term “approval” rather than “review” or a similar term, it does not provide any criteria for a review. Rather, under the statute, the County exercises its full discretion to approve or disapprove the rezoning application.
(b) Does the absence of procedural and substantive direction in K.S.A. 3-307e indicate that the County is to merely review the City's decision?
On the other hand, the City and landowners suggest that the legislature did not provide any guidance regarding the procedure for the County’s approval process or indicate the substantive considerations. This lack of guidance, they argue, means the legislature cannot have intended the County to be a zoning authority. This argument ignores the first two sentences of K.S.A. 3-307e, which state:
“The airport commission shall act as an airport zoning commission for the county and as such shall make recommendations and serve in the same capacity ás an airport zoning commission provided for in subsection (2) of K.S.A. 3-705. Said commission shall make such recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property loithin one (1) mile thereof.” (Emphasis added.)
The district court concluded that each sentence granted a different type of authority to the County. Consequently, we will examine each separately.
(i) Airport Zoning Commission under K.S.A. 3-705(2)
The first sentence of K.S.A. 3-307e grants an airport zoning commission (here, the Airport Commission) the power defined in K.S.A. 3-705(2). Article 7 of chapter 3 of the Kansas Statutes Annotated relates to airport hazards. Consequently, the landowners argue the County’s decision must be limited to a determination of whether the City’s rezoning of the property would create an “airport hazard,” as defined by K.S.A. 3-701(2) (“any structure or tree or use of land which obstructs the airspace required for the flight of aircraft in landing or taking-off at any airport or is otherwise hazardous to such landing or taking-off of aircraft”), or “airport hazard area,” as defined by K.S.A. 3-701(3) (“any area of land or water upon which an airport hazard might be established if not prevented as provided in this act”). See K.S.A. 3-702 (airport hazards contrary to public interest).
As the district court interpreted the County Commissioner’s findings, the rezoning of the subject property did not create an airport hazard or an airport hazard area. Consequently, the district court concluded that K.S.A. 3-704(2), which states that “the more stringent limitation or requirement as to airport hazards shall govern and prevail,” did not apply. However, the district court also rejected the landowners’ argument that the County’s authority was limited to consideration of a rezoning proposal that would create a hazard.
Given that the district court ruled in the County’s favor on this question, the County did not appeal this finding. But neither did the landowners, even though, as appellees, they were required to cross-appeal from the adverse ruling in order to obtain appellate review of the issue. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191-92, 106 P.3d 483 (2005). Raising new issues in a later pleading, such as a docketing statement answer or brief, is insufficient to obtain appellate review. See Board of Meade County Comm’rs v. State Director of Property Valuation, 18 Kan. App. 2d 719, 722, 861 P.2d 1348, rev. denied 253 Kan. 856 (1993). Consequently, this question is not preserved for our review.
(ii) Procedure for Rezoning of Property in 1-Mile Radius
As a result, we base our analysis, as did the district court, on the second sentence of K.S.A. 3-307e, which empowers the Airport Commission to make “recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property within one (1) mile thereof.” The district court interpreted this sentence to grant the County authority over property within the 1-mile radius of the Airport regardless of whether a rezoning proposal would create a hazard.
As the City and the landowners note, neither this sentence nor the remainder of the provision provides guidance as to the procedure or substantive considerations that may apply. Nevertheless, other statutes define the procedures. Specifically, K.S.A. 2010 Supp. 19-2960, which addresses amendments to regulations and rezoning by a county commission, states in part:
“A proposal for an amendment, rezoning or conditional use permit may be initiated by the board of county commissioners, the planning commission, any zoning board or upon application of the owner of property affected.
“All such proposed amendments, rezonings or conditional use permits first shall be submitted to either the planning commission for recommendation regarding amendments or the appropriate zoning board for recommendation regarding rezonings or conditional use permits. All notice, hearing and voting procedures for consideration of proposed amendments, rezonings and conditional use permits shall be the same as that required for amendments, extensions or additions to the comprehensive plan as provided by K.S.A. 19-2958.” (Emphasis added.) K.S.A. 2010 Supp. 19-2960(d).
The remainder of K.S.A. 2010 Supp. 19-2960 includes specifics regarding notice and the procedure for the consideration and adop tion of amendments and rezonings. By operation of the second sentence of K.S.A. 3-307e, this provision is apphcable to the proceedings of the Airport Commission as a zoning board and to the subsequent consideration by the County Commissioners. Hence, in combination, K.S.A. 3-307e and K.S.A. 2010 Supp. 19-2960 define the procedural aspects of a rezoning application that is before the County Commissioners for approval.
As to the criteria or substantive considerations for the County’s decision, this court has provided guidance to zoning authorities by suggesting that they utilize the nonexclusive factors estabhshed in Golden v. City of Overland Park, 224 Kan. 591, 598-99, 584 P.2d 130 (1978), and consider other relevant factors, including the zoning authority’s own comprehensive plan when acting on a rezoning apphcation. Board of Johnson County Commrs v. City of Olathe, 263 Kan. 667, 683, 952 P.2d 1302 (1998); see Davis v. City of Leavenworth, 247 Kan. 486, 493, 802 P.2d 494 (1990) (“Our observation [in Golden] continues to have merit. We commend it to any board, council, or commission denying or granting a specific zoning change.”).
The Airport Compatibility Plan, which served as the County’s comprehensive plan for the area including the subject property, recognized the Golden factors and covered issues specific to airport development and safety. The factors listed in Golden were:
“ ‘Even though the validity of each zoning ordinance must be determined on its own facts and circumstances ... an examination of numerous cases discloses that among the facts which may be taken into consideration in determining validity of an ordinance are the following: (1) The existing uses and zoning of nearby property ... (2) the extent to which property values are diminished by the particular zoning restrictions ... (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public ... (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner ... (5) the suitability of the subject property for the zoned purposes ... (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. . . .
“ ‘No one factor is controlling.’ ” Golden, 224 Kan. at 598-99.
In light of the general guidance given to the County by operation of K.S.A. 2010 Supp. 19-2960 and this court’s decision in Golden and subsequent decisions, we reject the landowners’ argument that the County’s approval procedures and considerations are not defined by Kansas law.
(c) Does the absence of direction in K.S.A. 3-307e render it unconstitutionally vagueP
The landowners also place a different spin on the lack of procedural and substantive detail in K.S.A. 3-307e and argue for the first time on appeal that K.S.A. 3-307e is unconstitutional in that it (1) does not provide standards of conduct to govern the County’s authority to approve or disapprove the City’s rezoning efforts and (2) contains an unlawful delegation of legislative powers.
“Generally, issues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal.” Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009); Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Three exceptions to the general rule have been recognized, however. They are:
“(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is 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; and (3) the district court is right for the wrong reason.” State v. OrtegaCadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008).
See Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967).
The landowners argue this case falls within the first and second exceptions because the issue involves solely a question of law and relates to a fundamental right. While the question is one of law, it is not determinative of the case because there is no legal basis for the argument. See Ortega-Cadelan, 287 Kan. at 160 (“ ‘[T]o serve the ends of justice or to prevent the denial of fundamental rights, it follows that, on consideration, we must find reversible error occurred.’ ”). As we have discussed, while K.S.A. 3-307e does not answer all of the points raised by the landowners, other applicable statutes fill in the gaps. Further, the landowners do not explain the fundamental right that is at issue, especially when previous Kansas cases analyzing vagueness questions have focused on criminal and regulatory statutes. See, e.g., Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992) (relying on Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 [1991], and discussing existence of two vagueness analyses, criminal and “business”; statutes regulating business afforded greater leeway). K.S.A. 3-307e does not squarely fit into either exception.
(d) Do principles relating to home rule, comprehensive plans, and preemption mean that the County cannot exercise discretion?
The landowners and the City present several other arguments to support the contention that the legislature cannot have intended K.S.A. 3-307e to grant the County the discretion to disapprove the proposed rezoning. One objection stated by the City is that giving the County the power to “veto” the City’s rezoning ordinance is contrary to the City’s home rule authority. In making this argument, the City correctly points out that under laws regarding home rule authority, the County cannot impose its regulations on the City without the City’s consent. See K.S.A. 2010 Supp. 19-101a(4) (“[T]he home rule power conferred on cities to determine their local affairs and government shall not be superseded or impaired without the consent of the governing body of each city within a county which may be affected.”). Additionally, the City observes that nothing in K.S.A. 3-307e requires the City to adopt County regulations or the Airport Compatibility Plan, i.e., the County’s comprehensive plan regarding airport zoning. In fact, the record shows that the City had not adopted the Airport Compatibility Plan.
Even though these points are valid, they do not lead us to the conclusion that the County cannot reach a decision regarding the proposed rezoning that is independent of the City’s. A political subdivision’s planning and zoning power is derived from the grant contained in zoning statutes. Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 886, 69 P.3d 601 (2003); Johnson County Memorial Gardens, Inc. v. City of Overland Park, 239 Kan. 221, 224, 718 P.2d 1302 (1986); see also Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, 939, 218 P.3d 400 (2009) (cities’ and coun ties’ power to change zoning of property ‘ “can only be exercised in conformity with the statute which authorizes the zoning” ’). And, by enacting K.S.A. 3-307e, the legislature created an exception to the City’s authority by stating that “city zoned areas shall keep such city zoning control except that any changes in existing city zoning must have the approval of the board of county commissioners.” We fail to see how the home rule principle or the City’s right to refuse to adopt the Airport Compatibility Plan diminishes the County’s statutory authority to approve changes in zoning in areas within 1 mile of the Airport.
Making yet another similar argument, the City claims that the County’s action cannot preempt the City’s. To support the argument, the City cites Zimmerman, 289 Kan. at 973, and its holding that field preemption — i.e., the preemption of a local government’s action by statutes or rules that occupy an entire field of regulation — must be “expressed by a clear statement in the law.” In considering this argument, although we do not reach the questions of whether the doctrine of field preemption applies or, if it does, whether there is field preemption, we note that K.S.A. 3-307e expresses a clear statement of the limitation on the City’s authority when it states that “any changes in existing city zoning must have the approval of the board of county commissioners.”
In sum, none of these arguments changes our view, based on a plain reading of the statute, that K.S.A. 3-307e does not relegate the County to the role of reviewing the City’s action. Rather, K.S.A. 3-307e clearly indicates that the County is a vital authority in the rezoning decision-making process and is entitled to make its own independent, discretionaiy determination to approve or disapprove any proposed rezoning.
Issue 2: What standard should the district court have used to review the County’s decision to disapprove the rezoning?
The district court reasoned that because the County’s role was to conduct a quasi-judicial review of the City’s decision, the district court’s review was similarly governed by quasi-judicial review standards. With our decision that the County’s role is not one of mere review, the premise of the district court’s analysis is undercut. Nev ertheless, all of the parties suggest that we can essentially step into the shoes of the district court and review the County’s decision to disapprove the proposed rezoning. To determine if we can fulfill that role, we must determine the standard that should have applied to the district court’s review and, in turn, the appropriate role of an appellate court.
Because the City and the landowners primarily ask us to limit the County’s role to one of quasi-judicial review, they do not discuss an alternative standard of review in detail. In the City’s limited discussion of the question, it agrees, at least in broad terms, with the County’s suggestion that a limited de novo standard of review should have applied to the district court’s review and similarly limits our review. Even though there is apparent agreement that a limited de novo standard applied, the City and the County do not agree as to the source or the parameters of that limited review.
The City notes that the landowners’ action was filed in district court pursuant to K.S.A. 3-709. The City does not suggest what the scope of review should be for either the district court or an appellate court under that provision, other than to argue that the provision “does not alter the ultimate burden of proof.” The City then suggests the district court appropriately placed that burden of production on the County.
The County cites K.S.A. 60-2101(d), a general statute allowing appeals to the district court from certain administrative decisions and defining the scope of review of a district court and an appellate court. Under that provision, the County asserts that we should utilize the appellate standard of review customarily applied when reviewing the action of a political subdivision exercising quasi-judicial functions. In such circumstances, a district court is limited to determining if the political subdivision’s decision fell within the scope of its authority; was supported by substantial competent evidence; or was fraudulent, arbitrary, or capricious. Then, on appeal from the district court, an appellate court reviews the political subdivision’s decision as though the initial appeal had been made directly to the appellate court, thus applying the same limited standard. Brown v. U.S.D. No. 333, 261 Kan. 134, 138, 928 P.2d 57 (1996); Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450-51, 436 P.2d 828 (1968); see Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 864-66, 518 P.2d 427 (1974) (applying administrative review standard to review city’s decision to deny special permit under city zoning ordinance).
The County also offers an “alternate” standard of review, one that is unique to zoning cases and examines the reasonableness and lawfulness of a zoning action. This standard was stated in Golden, 224 Kan. at 598-99, restated in Board of Johnson County Comm’rs, 263 Kan. 667, and Taco Bell v. City of Mission, 234 Kan. 879, 885-87, 678 P.2d 133 (1984), and summarized and enumerated in Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 27-28, 605 P.2d 533 (1980), and many other cases, including our recent decision in Zimmerman, 289 Kan at 944-45. This standard of review, which we will refer to as the Golden/ Combined Investment Co. standard, is summarized in eight principles or rules:
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
“(2) The district court’s power is limited to determining
“(a) the lawfulness of the action taken, and
“(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark, that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” Combined Investment Co., 227 Kan. at 28.
The County does not explain why we would ignore these rules and apply K.S.A. 60-2101(d) and merely presents the two standards of review as alternatives.
The parties presented these same standard of review options to the district court, and the district court decided to apply a combination of the principles set out in K.S.A. 3-709, K.S.A. 60-2101(d), and Golden/Combined Investment Co. To determine if this was appropriate, we begin our analysis with K.S.A. 3-307e because it includes a sentence that addresses judicial review, stating, in part, that “[t]he provisions of article 7 of chapter 3 of the Kansas Statutes Annotated shall, insofar as the same can be made applicable, govern judicial review and enforcement and remedies for airport zoning regulations adopted pursuant hereto.” (Emphasis added.) The term “airport zoning regulations” is not defined in the statutes relating to airport zoning. However, the term “zoning regulations” is defined in the general zoning statutes that apply to cities and counties to “mean the lawfully adopted zoning ordinances of a city and the lawfully adopted zoning resolutions of a county.” K.S.A. 12-742(11). In prior cases, this court applied the term “zoning regulations” to include actions regarding rezoning, concluding that an “ ‘action’ by the governing body, denying a request for rezoning, is a ‘regulation’ as contemplated by the statute, from which an appeal to the district court may be taken by petition.” Olson v. City of WaKeeney, 218 Kan. 447, 448, 543 P.2d 932 (1975) (citing Bodine v. City of Overland Park, 198 Kan. 371, 383, 424 P.2d 513 [1967]). We explained this conclusion by noting that a decision to deny rezoning “regulates the specific use which the appellees desire to make of their property, and is encompassed within the term ‘regulation.’ ” Bodine, 198 Kan. at 383. Consequently, this action, both in the district court and on appeal, involves a judicial review of a zoning regulation, triggering tire judicial review provisions of article 7 of chapter 3 of the Kansas Statutes Annotated.
The specific provision of chapter 3 that relates to judicial review is K.S.A. 3-709, which provides:
“(1) Any person aggrieved, or taxpayer affected by any decision made under the provisions of this act may file within thirty days from the rendition of such decision in the office of the clerk of the district court of the proper county a verified petition setting forth and specifying the grounds for review upon which the petitioner relies and designating the decision sought to be reviewed. The clerk shall forthwith cause written notice of such appeal to be served upon the political subdivision or subdivisions.
“(2) Upon presentation of such petition the court shall set it down for hearing and the same shall be tried de novo as in a civil case, and enforcement of said regulations shall be stayed until said petition is finally determined by the court. Appeals may be taken to the supreme court from any order, ruling or decision as in other civil cases.” (Emphasis added.)
The district court applied K.S.A. 3-709, but the statute does not explicitly define the scope of review. Attempting to discern its role, the district court determined that “in this type of a de novo review, there are restrictions to the court’s authority.” The court explained that although it could “entertain evidence to clarify a parties’ position or to clarify a point,” the court’s review would be “confined to the issues raised below.” The court then specified that it was “reviewing a quasi-judicial decision of the Board of County Commissioners in denying the change in zoning located within one mile of the airport.”
This conclusion was based on the district court’s attempt to reconcile the wording of K.S.A. 3-709 that refers to a “review” of the political subdivision’s decision with the statute’s wording that the matter is to be “tried de novo as in a civil case.” There is some incongruity in this wording because usually a “review” of an agency action is thought of as an “appeal,” and an appeal is usually thought of as a review based on the evidence and issues submitted to the agency. In contrast, a trial de novo is thought of as a trial anew. Nevertheless, such wording, while unclear, is not unique.
In Frick v. City of Salina, 289 Kan. 1, 208 P.3d 739 (2009), we applied various principles in determining a district court’s standard of review under similarly worded statutes. In doing so, we explained that a court’s interpretation of a phrase such as “trial de novo,” when used in reference to a judicial review of administrative action, is constrained by the separation of powers doctrine. Further, in applying this doctrine, we determined that a district court’s scope of review depends on whether the agency was performing a judicial, quasi-judicial, executive, or legislative function. Frick, 289 Kan. at 14-16. If the administrative agency performs a function that is legislative, executive, or a combination of the two, i.e., an administrative function, “the doctrine of separation of powers restricts a reviewing court to a limited form of judicial review, even if a statute provides for de novo review.” Frick, 289 Kan. at 14. “This narrow standard of review protects against a court’s intrusion into an agency’s legislative or executive powers.” Frick, 289 Kan. at 14. If, however, the “administrative agency performs a purely judicial function, the separation of powers doctrine does not prevent a court from conducting a de novo review,” although it still may not be a trial anew. Frick, 289 Kan. at 16. Consequently, use of the term” trial de novo” in a review statute can lead to varying procedures. To determine which of the variations applies, we must determine the nature of the function being performed when a rezoning decision is being made pursuant to K.S.A. 3-307e.
In this regard, no one has suggested that the County’s decision was purely judicial. Hence, we can conclude the district court correctly determined that it should not conduct a full trial or make independent findings of fact. Cf. Frick, 289 Kan. at 24 (holding that, where K.S.A. 58-3509[a] provides that an “appeal to district court shall be a trial de novo,” district court was required to make independent findings of fact and conclusions of law based on the administrative record because determination of relocation benefits under the Kansas Relocation Assistance for Persons Displaced by Acquisition of Real Property Act was a judicial function); Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 765, 758 P.2d 226, rev. denied 243 Kan. 777 (1988) (“[T]he Supreme Court has not interpreted any statute to allow true de novo review in the sense of a new trial on facts and issues as though they had never been tried.”).
Indeed, rather than being a judicial function, it is generally recognized that a zoning determination is classified as either a legislative or a quasi-judicial function. Zimmerman, 289 Kan. at 946-49. In Zimmerman, we concluded that regardless of which classification — legislative or quasi-judicial — applied, Kansas courts have used the “highly deferential language” typically applied to judicial review of legislative action. Zimmerman, 289 Kan. at 948. For example, the Zimmerman court noted that the Golden/Combined Investment Co. standard of review
“include[s] the rule that clearly exemplifies one of the chief characteristics of a legislative action’s highly deferential review:
“Rule (6): ‘Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.’ (Emphasis added.) Combined Investment Co., 227 Kan. at 28.” Zimmerman, 289 Kan. at 948.
The Zimmerman decision also noted that rules 1, 3, and 5 of the Golden/Combined Investment Co. standard of review are “appropriate for reviewing legislative actions.” Zimmerman, 289 Kan. at 948-49 (citing Combined Investment Co., 227 Kan. at 28). Ultimately, the Zimmerman decision reaffirmed the use of the Golden/ Combined Investment Co. standard of review in rezoning decisions, stating:
“ ‘[Ljater decisions have made clear that the Golden decision has little procedural or substantive impact beyond direct judicial review and the requirement that governing bodies should henceforth supply written findings in support of their decision to grant or deny a rezoning. The standard for validity is still one of reasonableness.’ 3 Rathkopf, Rezonings: Validity and Review § 40.20, pp. 40-42 to 40-43 n.ll (citing [Landau v. City Council of City of Overland Park, 244 Kan. 257, 271, 767 P.2d 1290 (1989)]).” Zimmerman, 289 Kan. at 949.
Incorporation of the concept of reasonableness distinguishes the standard of review applied in rezoning decisions from the general standard stated in K.S.A. 60-2101(d). The appropriateness of testing a decision for reasonableness is reinforced by Kansas statutes that incorporate reasonableness as the guiding factor in either a court’s review of a zoning decision or in the zoning body’s consideration of zoning issues. See, e.g., K.S.A. 12-760 (“Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision” regarding zoning.); K.S.A. 19-2964 (“Any person having an interest in property affected may have the reasonableness of any such act, regulation or amendment thereto determined by bringing an action against the board of county commissioners.”). Importantly, reasonableness is incorporated into the statutes regarding airport zoning. K.S.A. 3-706(1) provides that “[a]ll airport zoning regulations adopted under this act shall be reasonable and none shall impose any requirement or restriction which is not reasonably necessary to effectuate the purposes of this act.” (Emphasis added.)
Even though the airport zoning statutes incorporate reasonableness as the guiding standard, there remains the distinction that the airport zoning judicial review provision — K.S.A. 3-709 — differs from the judicial review provisions of general zoning statutes applied in Golden, 224 Kan. 591, and Combined Investment Co., 221 Kan. 17, by providing for a “trial de novo as in civil cases.” Nevertheless, the same separation of powers constraints that applied in Golden and Combined Investment Co. apply to our application of K.S.A. 3-709. Indeed, speaking generally of judicial review, we stated in Frick that
“even if a statute provides for de novo review, this court ‘has almost universally applied this doctrine of separation of powers to various appeal statutes providing for appeals from purely administrative tribunals, ruling that the court may not substitute its judgment on questions of fact for that of an administrative tribunal.’ [Citation omitted.]” Frick, 289 Kan. at 14.
Consequendy, we conclude that the difference in wording in K.S.A. 3-709 does not require a different test than is applied in other rezoning cases. Rather, despite the de novo language in K.S.A. 3-709, the separation of powers doctrine requires Kansas courts to apply a highly deferential standard of review to the County’s decision to disapprove the proposed rezoning. As noted, the standard of review as summarized in Golden and Combined Investment Co. is consistent with this highly deferential scope of review. In summary, we hold that the Golden/Combined Investment Co. standard of review is consistent with the concept of trial de novo as provided for in K.S.A. 3-709. Under rule 8 of the Golden/Combined Investment Co. standard of review, an appellate court applies the same standard. Combined Investment Co., 227 Kan. at 28.
Issue 3: Was the County’s decision to disapprove the proposed rezoning entitled to a presumption of reasonableness that the landowners were required to overcome by proving that the County’s action was unreasonable?
The critical question for a court applying the Golden/Combined Investment Co. standard of review is whether the zoning decision is reasonable and, under rules 3 and 4, “[t]here is a presumption that the zoning authority acted reasonably” and “[t]he landowner has the burden of proving unreasonableness by a preponderance of the evidence.” Combined Investment Co., 227 Kan. at 28. Seeking to gain the advantage of the presumption, both the City and the County seek its application. The City argued before the district court that it was the zoning authority for the landowners’ property. The district court accepted this argument, reasoning that the property had been zoned by the City before the enactment of K.S.A. 3-307e and, under the terms of that provision, “city zoned areas shall keep such city zoning control.” (Emphasis added.) “In general, the power to modify or amend a zoning ordinance or regulation rests in the body which had the power to adopt it in the first instance, which is, generally, the legislative or governing body of the municipality or other governmental entity.” 101A C.J.S., Zoning and Land Planning § 67.
Nevertheless, as we have discussed, a political subdivision’s planning and zoning power is derived from the grant contained in zoning statutes, and the legislature created an exception in K.S.A. 3-307e to the City’s authority by requiring the County’s approval. Because this exception applies in this case, the County claims to be the final zoning authority, which it claims makes it the zoning authority.
The landowners and the City argue that applying the presumption to the City’s decision to approve the proposed rezoning is consistent with the prior litigation involving the subject property in which this court applied the presumption to the City’s decision. Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 952 P.2d 1302 (1998). However, in that case, this court did not reach the issue of how to treat the County’s decision because the appeal occurred prior to the County’s approval or disapproval of the proposed rezoning. Because that question had not been resolved in Board of Johnson County Comm’rs, the district court in this case understandably struggled with how to apply the previous case to the current circumstances where the rezoning application was referred to the County and the County reached a decision contrary to the City’s. In arguing how to apply the holding of the previous case, the parties argued for recognition of either the County or the City as the zoning authority, and the district court opted for recognizing the City as the authority. The result was that the County — rather than the landowners — was treated as the challenger and was required to carry the burden of production to establish that the City’s decision was not reasonable.
Relying on Combined Investment Co., 227 Kan. 17, the landowners argue this is the correct interpretation of the law. Contrary to this argument, however, Combined Investment Co. does not address the present situation where two political subdivisions have a role in the approval of the rezoning. Rather, in Combined Investment Co., there was a single political subdivision — a county— with the zoning authority.
Indeed, the parties do not cite to nor have we have found a case discussing a situation similar to that created by K.S.A. 3-307e, where a zoning statute requires the approval of two political subdivisions but does not address what happens if there is a conflict in their decisions. Compare K.S.A. 3-307e (not addressing potential of conflicting decisions) with K.S.A. 3-704(2) (if multiple political subdivisions adopt airport zoning regulations “the more stringent hmitation or requirement as to airport hazards shall govern and prevail”). Without guiding, much less binding, precedent, the parties and the district court attempted to hammer the square peg of dual authority into a round hole of sole authority by arguing for and adopting an either/or option. We conclude that, under the unique circumstances created by K.S.A. 3-307e, the shape of the hole has to change so that dual authority can fit. To make this accommodation, the district court should recognize both the City and the County as a zoning authority with the discretion to independently evaluate an application for rezoning.
In large part, we reach this conclusion because the plain language of the relevant statutes creates dual responsibilities and recognizes that the interests of the County are different from those of the City, even though both political subdivisions are making a zoning decision. On the one hand, the County has authority over issues related to the development and zoning of property impacting the Airport. As recognized in Higgins v. Johnson County Comm’rs, 153 Kan. 560, 112 P.2d 128 (1941), the Airport was established when the federal government designated Johnson County as a site to receive federal funds to develop an airport as part of the national defense plan. The federal government placed certain stipulations on this effort, Higgins, 153 Kan. at 562-63, and has subsequently added requirements. In 1964, Congress enacted legislation, now codified at 49 U.S.C. § 47107 (2006), requiring airports to be able to make assurances that “appropriate action, including the adoption of zoning laws, has been or will be taken to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations.” See Jankovich v. Indiana Toll Road Comm’n, 379 U.S. 487, 494, 85 S. Ct. 493, 13 L. Ed. 2d 439 (1965) (discussing Federal Airport Act and 1964 amendments). Subsequently, the Kansas Legislature modified the statutes relating to the Airport, including adopting the provisions that were codified at K.S.A. 3-307a to 3-307e. L. 1967, ch. 10, secs. 7-11. With the adoption of K.S.A. 3-307e, the County and the Airport could meet the federal government’s requirement regarding zoning restrictions. In addition, under K.S.A. 3-301 et seq., the County is specifically charged with developing and maintaining the viability of the Airport, as well as considering zoning issues necessary for airport safety. For example, K.S.A. 3-306 states that the board of county commissioners is “authorized to operate and maintain and to make such reasonable rules and regulations governing the conduct and operation, maintenance and care of public airports as may be necessary for the best interests of the county and general public.” See also K.S.A. 3-702 (preventing airport hazards).
On the other hand, the City is not charged with any responsibility regarding planning for the continued development of the Airport or for airport safety. Rather, as reflected in the City Commissioners’ consideration of the rezoning application, the City’s focus is on the orderly development of property within its jurisdiction. See K.S.A. 12-755 (governing body may adopt zoning regulations providing for such things as planned unit developments, transfer of development rights, preservation of structures and districts, and control of aesthetics of redevelopment or new development).
The difference in focus raised by these responsibilities could lead the City to deny a rezoning application for reasons totally unrelated to the impact on the development and safe operation of the Airport. If that happened, a landowner could bring a judicial review action and, in that action, the City’s determination would be entitled to a presumption of reasonableness. The County would not play a role in that scenario. Conversely, again without consideration of the impact on the development or safe operation of the Airport, the City might approve a proposed rezoning. But, under K.S.A. 3-307e, that approval would not be final until approved by the County, and the County might reject the proposed rezoning based on the considerations with which it is charged. Hence, fulfilling the differing roles, the City and the County could reach different decisions about whether to allow a rezoning and both decisions could be reasonable and consistent with each political subdivision’s respective responsibilities. Yet, both decisions are essential to a final approval, and both governing bodies must be considered zoning authorities entitled to a presumption of reasonableness.
Seeking a different conclusion, the City argues that the County is not entitled to a presumption of reasonableness and must overcome the City’s presumption of reasonableness because the County owns the Airport, i.e., the City seeks to put the County in the role of the landowner that bears the burden of production. However, the County’s ownership of land has no impact on this case. Rather, the County’s only involvement is as a zoning authority. The fact that the County owns the Airport does not change our analysis.
Instead, where a political subdivision is considering an amendment to a zoning or land use control resolution or ordinance, the political subdivision is not a challenger but the governing body charged with approving the change. Here, it is the landowners who have challenged the County’s decision and, as such, the landowners should carry the burden of production in overcoming the presumption.
In summary, we hold that under K.S.A. 3-307e both the decision of the City and the decision of the County regarding a rezoning application are entitled to a presumption of reasonableness, and the landowners challenging the rezoning decision bear the burden to establish by a preponderance of the evidence that the challenged decision is not reasonable. See Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980) (explaining effect of presumption and burden of production).
Issue 4: Was the County’s decision to disapprove the proposed rezoning lawful and reasonableP
Having determined the appropriate standard of review and the application of the presumption of reasonableness, the parties urge us to apply the standard. The City and the landowners contend that the County’s decision to disapprove the proposed rezoning was unlawful and unreasonable. The County also urges us to review its decision, although it suggests we find the County’s decision to disapprove the zoning change was lawful, reasonable, and supported by substantial competent evidence.
The landowners contend we can easily affirm the district court’s decision by applying a “negative finding” standard of review. Generally, this court’s standard of review following a negative finding is that the party challenging the finding must prove the factfinder arbitrarily disregarded undisputed evidence or was affected by some extrinsic consideration such as bias, passion, or prejudice. Nance v. Harvey County, 263 Kan. 542, 550, 952 P.2d 411 (1997). The landowners argue this is the appropriate standard because the district court found that the County failed to meet its burden of overcoming the City’s presumption of reasonableness. We reject this as our standard of review, however, because the district court erroneously imposed the burden of production on the County by requiring the County to overcome the City’s presumption of reasonableness. Consequently, the district court’s finding cannot serve as the starting point for our analysis and the negative finding standard of review cannot be applied.
Instead, as previously discussed, our role should be to review the district court’s application of the Golden/Combined Invest- merits Co. standard of review to the County’s decision. However, the closest the district court came to examining the County’s decision in light of the Golden/Combined Investments Co. principles was in stating:
“[T]he resolution of the County and the County resolution is in conclusory language. The Court finds [the proposed county resolution] does not meet the requirement of Golden, and its following case law in the sense that case law somewhat softens the effect of Golden and permits the Court to refer to the record to provide details to support a governing body’s resolution or ordinance approving or denying zoning.”
The district court did not conclude that the record was inadequate or that review of the factors could not occur, however. Rather, the district court’s focus was on whether the County had overcome the presumption that the City’s decision to approve the proposed rezoning was reasonable.
Because we depart from the district court’s analysis at this point, we essentially begin anew. In doing so, we not only apply a different standard of review but, in contrast to the district court’s imposition of the burden of production on the County, we impose the burden of production on the landowners.
Despite this change in standard and burden, the parties argue we can resolve the issue of reasonableness because, in zoning cases, that question is one of law. Combined Investment Co., 221 Kan. at 28. We do not quarrel with this general principle and recognize that there may be some judicial efficiency involved if we were to merely resolve the issue of reasonableness, especially since that question has been briefed as an alternative argument. Yet, we decline to do so because, as stated, our rulings in this case mean that we would impose a different burden of proof, apply a different test, and employ a different scope of judicial review than did the district court. In other words, we would be conducting a trial de novo, a task that is statutorily assigned to the district court. If we were to assume that role, we would not only alter the statutory scheme, but we would also preempt any right to meaningful appellate review of a resulting judgment. Consequently, we conclude that this matter must be remanded to the district court for findings regarding the reasonableness of the County’s decision, including a finding of whether the landowners satisfied the burden of overcoming the County’s presumption of reasonableness.
Issue 5: Did the district court err in denying the County’s motion to stay the district cowt’s rezoning ruling pending this appeal?
Finally, the County argues that the district court erred in denying its motion to stay the court’s March 16, 2009, journal entry of judgment, which incorporated the court’s order to publish the city rezoning ordinance, pending this appeal. Our decision to reverse the district court means that the proposed rezoning has not been approved by the County and, therefore, the City’s ordinance is not valid. Consequently, the district court erred in ordering the publication of the City’s ordinance, and the remaining issues regarding the validity of the ordinance are moot.
Reversed and remanded.
Caplinger, J., assigned. | [
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The opinion of the court was delivered by
Gatterman, J.:
The Kansas Department of Revenue issued an administrative order suspending Daniel Allen, II’s driving privileges. Allen appealed the administrative action to the district court. The district court reversed the administrative order, holding there were no reasonable grounds for the officer to administer an evidentiary breath test under K.S.A. 2007 Supp. 8-1001. Additionally, the district court found K.S.A. 2007 Supp. 8-1012 unconstitutional both on its face and as applied in this case. The Kansas Department of Revenue appeals. The issues on appeal and our accompanying holdings are as follows:
1. Did the district court err in ruling that there were no reasonable grounds to require a test under the Kansas Implied Consent Law, absent the result of the preliminaiy breath test? Yes.
2. Is K.S.A. 2007 Supp. 8-1012 unconstitutional on its face or as applied in this case? Need not reach.
Facts
The facts in this case are not in dispute. On July 14, 2007, Trooper Scott Walker of the Kansas Highway Patrol noticed Daniel Allen driving left of center multiple times on a rural road in Ells-worth County. Allen failed to dim his headlights a proper distance from an oncoming car and twice drove into the opposing lane in a no-passing zone. After witnessing Allen’s traffic infractions, Walker initiated a stop of Allen’s vehicle.
Walker noticed that Allen had bloodshot watery eyes and a moderate odor of alcohol radiating from him. Allen, who was 20 years old at the time of the incident, informed Walker that he had been drinking. Allen would eventually inform Walker that he had consumed six beers. Walker requested Allen perform standardized field sobriety tests. Walker administered two different field tests— the walk-and-tum test and the one-leg-stand test. Allen exhibited three clues of intoxication on the walk-and-tum test and one clue on the one-leg-stand test.
Walker then asked Allen to submit to a preliminary breath test (PBT) as authorized by K.S.A. 2007 Supp. 8-1012. Walker used a CMI Aleo-Sensor III, a device approved by the Kansas Department of Health and Environment. He waited 15 minutes to conduct the test and read the statutory notices required by K.S.A. 2007 Supp. 8-1012(c). According to Walker, Allen agreed to a PBT and then failed the test with a .087 result. He was arrested and later failed an evidentiaiy breath test.
After an administrative hearing, the Department of Revenue issued an administrative order suspending Allen’s driving privileges. Allen timely filed a petition for review with the district court. The district court held that K.S.A. 2007 Supp. 8-1012 was unconstitu tional, both as applied in this case and on its face. Consequently, the district court ruled that the PBT result could not be used to determine if there were reasonable grounds to request the evidentiary breath test under K.S.A. 2007 Supp. 8-1001. The district court ultimately held that there was not sufficient evidence to provide reasonable grounds for the officer to believe that Allen was operating a vehicle under the influence of alcohol absent the PBT result. Because the district court held K.S.A. 2007 Supp. 8-1012 unconstitutional, we assumed jurisdiction pursuant to K.S.A. 60-2101(b).
More facts will be added to the analysis as necessary.
Analysis
Issue 1: The district court erred in ruling that there were no reasonable grounds to require a test under the Kansas Implied Consent Law, absent the result of the preliminary breath test.
As applicable to this case, the Kansas Implied Consent Law, found at K.S.A. 2007 Supp. 8-1001, provides that a law enforcement officer shall request that a person submit to one or more tests of the person’s blood, breath, urine, or other bodily substance to determine the presence of alcohol or drugs if the officer has “reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs.” K.S.A. 2007 Supp. 8-1001(a), (b). K.S.A. 2007 Supp. 8-1012(b) states that a law enforcement officer may request a person who is operating or attempting to operate a vehicle to submit to a PBT “if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs.” An officer may use the PBT results to help determine whether “an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001.” K.S.A. 2007 Supp. 8-1012(d). Unless an individual is challenging his or her arrest or the validity of the request to submit to a K.S.A. 2007 Supp. 8-1001 test, PBT test results are not admissible in any civil or criminal action. In other words, PBT results are limited to aiding an officer in determining whether he or she has probable cause to arrest or reasonable grounds to request the additional testing au thorized by K.S.A. 2007 Supp. 8-1001. See K.S.A. 2007 Supp. 8-1012(d).
The district court concluded that K.S.A. 2007 Supp. 8-1012 was unconstitutional and that absent the results of the PBT Trooper Walker lacked reasonable grounds to request an evidentiary breath test. We first examine the question of reasonable grounds, absent the results of the PBT, because its resolution may eliminate the need for us to address Allen’s constitutional challenge to K.S.A. 2007 Supp. 8-1012. See Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 (2003) (“Appellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach constitutional challenges to statutes.”).
As we recently recognized in Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 513, 242 P.3d 1179 (2010), “the issue as to whether an officer has reasonable grounds to believe someone is operating or attempting to operate a vehicle while DUI is strongly related to whether that officer had probable cause to arrest” (citing Bruch, 282 Kan. at 775). Additionally, while we have found reasonable grounds to be synonymous with probable cause, we have also recognized that “an officer may have reasonable grounds to believe a person is operating a vehicle under the influence sufficient to request a test under the statute — but not have the probable cause required to make an arrest under K.S.A. 8-1001.” Smith, 291 Kan. at 514 (citing Bruch, 282 Kan. at 776); see Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 460-61, 980 P.2d 1022 (1999).
Kansas courts rely on probable cause standards when reviewing whether an officer had reasonable grounds to request an evidentiary breath test. See Smith, 291 Kan. at 514-15 (using probable cause standards); State v. Jones, 279 Kan. 71, 81-82, 106 P.3d 1 (2005) (holding the officer lacked probable cause and reasonable grounds to administer a PBT); Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431-32, 962 P.2d 1150 (1998) (citing probable cause standards); Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707-08, 815 P.2d 566 (1991) (applying probable cause and reasonable ground standards). Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Bruch, 282 Kan. at 775-76. Probable cause is determined by evaluating the totality of the circumstances. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006). As in other totality of the circumstance tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246 (2010); see Smith, 291 Kan. at 515 (holding that the defendant’s lists of facts did not negate the other factors presented).
Our adoption of probable cause standards informs our standard of review. Generally, following a trial de novo, we review the trial court’s decision in a motor vehicle license suspension case to determine if it is supported by substantial competent evidence. Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 233-34, 32 P.3d 705 (2001). However, here the parties agree that there is no underlying factual dispute. Consequently, we exercise de novo review. See State v. Ingram, 279 Kan. 745, 752, 113 P.3d 228 (2005) (“Determining whether probable cause to arrest exists under our undisputed facts affords us a de novo review.”). Finally, to the extent our review includes construction of applicable statutes, we exercise unlimited review. Bruch, 282 Kan. at 772.
Trooper Walker testified that the following factors provided reasonable grounds to request a test under K.S.A. 2007 Supp. 8-1001: (1) He smelled alcohol during his initial contact with Allen; (2) he observed Allen’s bloodshot and watery eyes; (3) Allen admitted to drinking that evening; (4) Allen was a minor at the time of the incident; (5) Allen committed three errors on the walk-and-tum test; (6) Allen twice drove into the opposing lane in a no-passing zone; and (7) Allen failed to dim his headlights appropriately as on-coming traffic approached.
Allen argues in his support: (1) his reaction to the lights and sirens was appropriate; (2) he presented only one clue on the one-leg-stand field sobriety test, which is considered passing; (3) he was able to effectively communicate with Trooper Walker; (4) he appropriately reached for his wallet and driver s license; (5) he performed well on the walk-and-tum test even though he exhibited three clues; and (6) Trooper Walker failed to administer additional field sobriety tests.
Allen analogizes his case to the situation in City of Norton v. Wonderly, 38 Kan. App. 2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008). In Wonderly, an officer pulled the defendant over based on allegations of reckless driving. The officer was suspicious that the defendant was DUI and transported him to the police station to conduct field sobriety testing. The defendant argued that transporting him to the police station was an arrest and that the officer lacked probable cause to arrest him, and the Court of Appeals agreed.
At the time of the arrest, admissible evidence “showed that Wonderly initially disobeyed an order to get back into his truck, he had bloodshot eyes, the smell of alcohol was on his breath, and he admitted to drinking earlier that evening. Additionally, [the officer] knew that a motorist had called law enforcement earlier that night and accused Wonderly of driving his truck in a reckless manner.” 38 Kan. App. 2d at 808. The Court of Appeals held that the officer lacked probable cause to arrest the defendant based on the limited evidence. The Court of Appeals noted the fact that the officer transported the defendant back to the police station in order to conduct further tests “supports the conclusion” that the officer lacked probable cause to arrest the defendant based on the insufficient evidence. 38 Kan. App. 2d at 808-09.
Wonderly is easily distinguished. Unlike Wonderly, field sobriety testing was performed at die scene and the defendant failed one of the tests. Furthermore, the question before the Court of Appeals panel in Wonderly arose in an unusual set of circumstances, i.e., when a law enforcement officer transported the defendant back to the station for further testing. Additionally, Court of Appeals panels have generally distinguished the opinion. See State v. Knopp, No. 102,972, 2010 WL 3853225 (Kan. App. 2010) (unpublished opinion); State v. Bottenberg, No. 102,886, 2010 WL 3662825 (Kan. App. 2010) (unpublished opinion), rev. denied 291 Kan. 914 (2010); State v. Bohnen, No. 101,138, 2010 WL173953 (Kan. App. 2010) (unpublished opinion). Generally, when a defendant admits to consuming alcohol, has bloodshot eyes, has committed traffic infractions, and makes a few albeit limited errors on field sobriety tests, Kansas courts have concluded that the officer had reasonable grounds to request a breath test. See Smith, 291 Kan. at 515, 518-19; State v. Shaw, 37 Kan. App. 2d 485, 154 P.3d 524, rev. denied 284 Kan. 950 (2007); Campbell, 25 Kan. App. 2d at 431-32; Sullivan, 15 Kan. App. 2d at 707-08; but see State v. Pollman, 41 Kan. App. 2d 20, 32, 204 P.3d 630 (2008) (no probable cause to arrest where there were no physical manifestations of intoxication and no indication of erratic driving).
While we find Wonderly to be of litde assistance, this case shares several factual similarities with our recently decided Smith opinion. In Smith, the district court ruled that the arresting officer possessed reasonable grounds to believe Smith had been operating a motor vehicle while DUI, and we affirmed. Smith, 291 Kan. at 513, 515. The arresting officer in Smith recognized the following clues of intoxication:
“(1) smelling alcohol upon his initial contact with Smith; (2) observing Smith had bloodshot and watery eyes; (3) Smith’s admission to having a few drinks that evening; (4) Smith’s admission that his last drink was approximately 30 minutes before his contact with the trooper; (5) the smell of alcohol wafting from Smith’s truck; (6) viewing an open container in Smith’s truck; (7) Smith’s difficulty with a prefield sobriety test; (8) Smith presenting two clues on the walk-and-tum field sobriety test; and (9) Smith presenting one clue on the one-leg-stand field sobriety test.” Smith, 291 Kan. at 518-19.
Akin to the officer in Smith, Trooper Walker smelled alcohol (1), observed bloodshot eyes (2), Allen admitted to drinking (3), the smell of alcohol was coming from Allen (5), Allen presented three clues on the walk-and-tum field sobriety test (8); and Allen presented one clue on the one-leg-stand field sobriety test (9). In fact, there are additional factors that Trooper Walker considered including Allen’s status as a minor at the time of the incident in possible violation of K.S.A. 2007 Supp. 41-727(a); Allen’s driving into the opposing lane in a no-passing zone; and Allen’s failure to dim his headlights appropriately as on-coming traffic approached.
Under these factual circumstances, Trooper Walker had good reason to “believe that guilt [was] more than a possibility.” See Bruch, 282 Kan. at 775-76; accord Smith, 291 Kan at 519. Consequently, Trooper Walker possessed reasonable grounds to request a breath test under K.S.A. 2007 Supp. 8-1001 without the results of the PBT.
Because we need not discuss Allen’s constitutional challenge to K.S.A. 2007 Supp. 8-1012, we do not do so. Even absent the PBT, Trooper Walker possessed reasonable grounds for requesting a breath test. See Smith, 291 Kan. at 519; Wilson, 276 Kan. at 91.
The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action on a criminal information in the district court of Atchison county. The defendant was tried, convicted, and sentenced, and the only error complained of is the sentence of the court below.
The information charged, among other things, in substance that on the 5th day of January, 1871, the defendant Joseph Eisher, assaulted and wounded one James A. Eisher with a deadly weapon, a loaded revolver, by shooting at said James A. Eisher with the intent to hill him, and that ah this was done on purpose, and with malice aforethought. These facts, as we think, constitute an offense under either section 38 or section 42, of the act concerning crimes and punishments: Gen. Stat., 324, 325.
The jury found the defendant guilty of wounding James A. Eisher in the manner charged, under circumstanues which would have constituted manslaughter in the fourth degree if death had ensued from said wounding. This verdict does not state facts sufficient to constitute an offense under section 38 of said act because it does not show that the wounding was done “on purpose, and of malice aforethought;” but it does state facts sufficient to constitute an offense under section 42 of said act. Under this last mentioned section the court below sentenced the defendant to be imprisoned in the penitentiary for the term of two years. "We perceive no error in this sentence. The judgment of the court below must therefore be affirmed.
Kingman, O. J., concurring.
Ereweb, J., not sitting in the case. | [
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The opinion of the court was delivered by
Beier, J.:
This is a premises liability case with a twist. Plaintiff Shelly K. Herrell successfully sued defendant National Beef Packing Co., LLC (National Beef) to recover for a knee injury she suffered while working in its Dodge City beef-packing plant. National Beef appeals, arguing that Herrell’s status as an employee of an independent contractor, Terracon Consultants, Inc. (Terracon), and her receipt of workers compensation meant that it did not owe her the landowner’s usual duty of reasonable care.
The district judge denied National Beefs pretrial motion for summary judgment and mid-trial motion for judgment as a matter of law on the duty issue. A panel of our Court of Appeals reversed and remanded. Herrell v. National Beef Packing Co., 41 Kan. App. 2d 302, 304, 202 P.3d 691 (2009). A majority of the panel remanded only for entry of judgment as a matter of law in favor of National Beef, relying on Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), and held that Herrell’s remedy was limited to workers compensation because National Beef did not maintain substantial control over her employer’s activities on the premises. In a concurring and dissenting opinion, Court of Appeals Judge Patrick D. McAnany rejected the application of Dillard to most of Herrell’s claims. He would have remanded for retrial on all but one claim dependent upon National Beef s alleged noncompliance with an Occupational Safety and Health Administration (OSHA) regulation.
Factual and Procedural Background
National Beef s beef-packing plant in Dodge City slaughters approximately 4,000 head of cattle a day. This understandably messy endeavor at times causes nonconsumable rendering, that is, bovine blood and guts, to spill onto the floor of the plant. National Beef employees are generally responsible for cleanup of such spills.
At the time of Herrefl’s injury, National Beef had contracted with J-A-G Construction Company (J-A-G) to build a new roof on its rendering building. National Beef chose to continue its plant’s normal operations during the construction, and J-A-G was aware of that choice and of the conditions in the building. The construction of the new roof required holes to be drilled in the building’s floor for placement of support footings. In turn, placement of the footings required testing of the underlying soil. J-A-G hired Herr-ell’s employer, Terracon, to conduct the necessary soil tests.
Herrell was one of two Terracon employees who came to the plant to perform the soil tests. She and her fellow employee checked in at National Beef s guard station, where they were met by a J-A-G onsite foreman who showed them where the holes to be tested were located. After the J-A-G foreman left, Herrell and her fellow employee retrieved equipment from their vehicle and then began walking to the soil-testing site. Once back inside the plant, Herrell stepped off a ledge and into a hole, resulting in an injury to her knee. She and her coworker testified that the hole was covered by rendering and thus not visible. After the accident, when Herrell’s fellow employee returned to the area, the rendering covering the hole had been cleared away, and he saw a grate in a nearby comer and tape on a column close to the hole. By the time this lawsuit began, well after the construction project was complete, no witness could determine exactly where the hole would have been or who had dug it or exposed it.
Because of her knee injury, Herrell was unable to continue her employment at Terracon. She received workers compensation for her injury.
District Court Proceedings
Herrell also filed this lawsuit against National Beef, alleging that National Beef “was negligent in maintaining a dangerous condition; in failing to warn of a dangerous condition; and in other respects.”
National Beef moved for summary judgment pretrial. It initially argued that Herrell could not meet her burden to demonstrate that National Beef had knowledge of the hole or, even if it did, that it had control over the area in which the hole was located. Herrell’s response argued that National Beef not only had notice and knowledge of the hole but also created the dangerous condition by operating during construction and allowing rendering to cover it; she also argued that National Beef controlled the area where the injuiy occurred. In its reply, National Beef argued for the first time that it owed no landowner duty to Herrell because of public policy considerations recited in the Dillard case. National Beef also filed an amended pretrial questionnaire to incorporate this new argument.
The district judge denied National Beef s motion for summary judgment, stating that he had reviewed Dillard “extensively.” He emphasized that Dillard recognized the right of an injured employee to bring an action against a negligent third party, see K.S.A. 44-504(a), and wrote:
“In this instance, defendant was continuing its normal working operations while a construction project was under way. Had defendant vacated the premises and allowed J.A.G. and its subcontractors exclusive access to and possession of the area under construction, their motion would be well founded.
“However, the facts indicate to this Court that the rendering products that may have filled and obscured the hole that Plaintiff stepped into were there because of the actions of Defendant National Beef. It appears there are comparative fault issues that cannot be determined through a Motion for Summaiy Judgment.”
Also, pretrial, National Beef filed an unsuccessful motion in limine to exclude Herrell’s evidence regarding the existence and content of a federal OSHA regulation pertaining to safety precautions regarding holes in workplace floors. National Beef renewed its objection to this evidence at trial and was, again, unsuccessful. After argument by the parties at the instructions conference, the district judge also decided to include a mention of the OSHA regulation in the jury instruction detailing Herrelfs contentions. The instruction listing the several ways in which Herrell alleged that National Beef was at fault included language characterizing the OSHA regulation as the industry standard. Herrell was not permitted to state that National Beef had violated the regulation. The final jury instruction thus read in pertinent part:
“The Plaintiff Shelly K. Herrell farther claims that she sustained injuries and damages due to the fault of the defendant National Beef Packing Company, LLC, by not complying with the industry standard set out in OSHA Reg. 1910.23(a)(8) [,] which requires every floor hole into which persons can accidentally walk to be guarded by either: (i) a standard railing with standard toeboard on all exposed sides, or (ii) a floor hole cover of standard strength and construction. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing.”
National Beef s mid-trial motion for directed verdict, also known as a motion for judgment as a matter of law, based in part on the Dillard legal argument, was also unsuccessful. The district judge refused to change his pretrial ruling, adding:
“The hole itself is not inherently dangerous. Covering the hole with rendering makes it dangerous. The entire operation could have been turned over to J.A.G. And, had National Beef left the area, then clearly the cases cited by Defendant starting with Dillard [v]. Strecker would be applicable. But, that’s not the case.
“They continued working there. They covered the floor with a substance that [sic] hid dangerous holes in this case. They should have known that under the circumstances they were creating a dangerous situation. And, in light of that, the Motion for Direct Verdict is going to be denied.”
During closing argument, HerrelTs counsel referred briefly to the instruction excerpt concerning the OSHA regulation:
“[T]his is a quote of the OSHA regulation that deals with holes in the floor. They didn’t receive a citation by OSHA. There’s not ever been a suggestion of that. OSHA probably doesn’t even know about it. But, that’s what the OSHA regulation requires, and you probably heard my questioning yesterday, and it seemed like strange questions that a floor hole and a standard grate, or railing or whatever. Read that. This is a quote of the instruction, or excuse me, this instruction is a quote of the OSHA regulation that deal[s] with this.”
The jury returned a general verdict in favor of Herrell, assessing damages of $251,197.86. The verdict form did not permit the jury to attribute all or any part of its decision to a particular theory of fault advanced by Herrell. The jury assigned 47.5 percent of fault to National Beef, 32.5 percent of fault to J-A-G, 15 percent to Terracon, and 5 percent to Herrell.
Court of Appeals Proceedings
National Beef raised only one issue in its appeal brief filed with the Court of Appeals: Was there a duty as a matter of law? Both parties agreed that the question is one of law subject to unlimited review. See South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005).
National Beef, as it did before the district court, placed heavy reliance on this court’s 1994 decision in Dillard, which it regarded as indistinguishable on a policy basis from this case. The court, it stressed, “must decide whether Kansas law would allow employees of independent contractors to recover more for their injuries than a property owner’s own employees can recover for the same injuries].”
For her part, Herrell insisted that Dillard was distinguishable in important factual and legal respects and stressed the following self-limiting language of its holdings:
“(1) A landowner is not liable to an employee of an independent contractor covered by workers compensation for injuiy sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance. (2) The inherently dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation. (3) Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner liable under the theories discussed in the opinion.” Dillard, 255 Kan. at 726-27.
The majority of the Court of Appeals panel reversed and remanded for entry of judgment as a matter of law in favor of National Beef. Herrell, 41 Kan. App. 2d at 325. It relied on Dillard to conclude that “an employee of an independent contractor covered by workers compensation insurance cannot recover in negligence from the landowner, regardless of the employee’s underlying theory of the landowner’s liability.” Herrell, 41 Kan. App. 2d at 315. An exception to this rule would arise only if the landowner maintained substantial control over the activities of the independent contractor on the premises. Herrell, 41 Kan. App. 2d at 320.
In the alternative, the Court of Appeals majority predicted that this court would require a landowner to control the details of the project and the contractor’s activities in order to impose liability on the landowner. Herrell, 41 Kan. App. 2d at 322. Because, in its view, the record contained inadequate evidence of such control by National Beef, judgment in its favor as a matter of law also was appropriate and must be upheld. Herrell, 41 Kan. App. 2d at 323.
Judge McAnany agreed with his colleagues that the panel was required to set aside the judgment against National Beef, but only because the general verdict may have been influenced by Herrell’s theory of liability based upon the OSHA regulation. Herrell, 41 Kan. App. 2d at 325, 336 (McAnany, J., concurring in part and dissenting in part). But he disagreed that the policy considerations recited in the Dillard decision should be extended to fully immunize National Beef from liability. Herrell, 41 Kan. App. 2d at 325 (McAnany, J., concurring in part and dissenting in part).
Analysis
We accepted this case on Herrell’s petition for review. Although the petition lists two issues, the second is actually a subissue of the first. We therefore ask ourselves the same question National Beef asked when it initially took this appeal: Did National Beef owe a duty of care to Herrell?
We also note another initial refinement of the issue before us. In its response to Herrell’s petition for review and again at oral argument before this court, National Beef relied entirely on the Court of Appeals majority’s application of Dillard to argue that it should prevail. National Beef argues the only issue is “[whether] the Court of Appeals properly applied] Dillard in finding that Appellee had no duty of care with respect to Appellant.” It no longer argued that the Court of Appeals should be affirmed because National Beef lacked control over the workplace or the contractor’s activities. Given that National Beef does not contest, for purposes of summary judgment, that rendering was covering whatever hole Herrell fell into, and that the existence of the rendering was an inevitable byproduct of its continued operation of the plant, its decision to push its control argument into the tall grass appears to be prudent appellate strategy. In any event, we need address the control argument no further here. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004) (appellant abandons issue on appeal by not adequately briefing issue).We focus our full concentration on whether Dillard can stretch as far as National Beef would have it go.
The parties are correct that the existence of a duty is a question of law and that we have unlimited review. See South, 280 Kan. at 94.
A landowner generally owes to entrants upon his or her land a duty of reasonable care under the circumstances. Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). This duty includes a duty to warn of a dangerous condition on the property. Restatement (Second) of Torts § 343 (1964).
The Dillard opinion carved out an exception to these general rules of Kansas premises liability, absolving a landowner of any duty in certain circumstances. In order to decide whether the general rule or the Dillard exception governs this case, we must first understand what the Dillard case did and did not do and then discuss how our workers compensation statutes address the possibility of third-parly liability.
Dillard v. Strecker
Dillard involved a collapse of a wall at a building site for a church and school. Plaintiff Lee Dillard, who was employed by a masonry subcontractor, was seriously hurt in the collapse and was covered by workers compensation for his injuries. He sued the owners of the site, the Roman Catholic archdiocese and its then archbishop, Ignatius J. Strecker, alleging that the defendants were directly liable because of their failure to obtain legally required inspections and vicariously liable for the negligence of his employer, the subcontractor, and/or the general contractor under the inherently dangerous activity doctrine. The plaintiff argued “that while the Workers Compensation Act provides an ‘exclusive remedy against an employer, the act does not bar recovery against negligent third parties,” and the defendants qualified as such third parties. Dillard, 255 Kan. at 708.
The Dillard defendants’ principal counterargument was that a landowner owed “ ‘no duly to an employee of an independent contractor performing work for the landowner.’ ” 255 Kan. at 708. Instead, the injured employee’s recovery should be limited to workers compensation benefits provided by his or her employer. To allow recovery against the landowner would permit “ ‘an end-run around the workers compensation law,’ ” a form of “ ‘double recovery.’ ” 255 Kan. at 708.
The district court granted defendants’ motion to dismiss, treated as a motion for summary judgment, and the Court of Appeals affirmed.
When the case reached this court, we began our opinion by assuming that the archbishop had a nondelegable duty under the local building code to provide an independent inspector for the masonry work, and that the masonry work qualified as an inherently dangerous activity. Dillard, 255 Kan. at 707. We stated the issue broadly: “[W]hether a landowner is liable for the negligence of an independent contractor which results in a work-related injury to an employee of the independent contractor when the employee is covered by workers compensation.” 255 Kan. at 707.
To resolve this issue, this court relied entirely on cases from other jurisdictions and the policy jusitifcations we culled from them. Cases from Missouri, Maryland, and Connecticut had figured most prominently in the resolutions arrived at in the district court and in the Court of Appeals. Each case protected a defendant landowner when an injured employee of an independent contractor working on the landowner’s property sought imposition of direct liability for violation of a nondelegable duty or vicarious liability under the inherently dangerous activity doctrine. See Dillard, 255 Kan. at 710-18 (discussing Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384 [Mo. 1991] [inherently dangerous activity]; Parker v. Neighborhood Theatres, 76 Md. App. 590, 547 A.2d 1080 [1988] [nondelegable duty]; Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461 [1988] [inherently dangerous activity, nondelegable duty]).
Zueck, the Missouri case, dealt with a landowner’s vicarious liability. The Zueck court recognized that a landowner generally exercised no right of control over the manner in which an independent contractor performed work on the landowner’s property and was thus protected from vicarious liability for the contractor’s negligence. Dillard, 255 Kan. at 711 (quoting Zueck, 809 S.W.2d at 386 [citing Prosser & Keaton, The Law of Torts, p. 509 (5th ed. 1984)]). An exception to landowner protection from vicarious liability existed at common law if the landowner knew or should have known that the work to be performed by the independent contractor was abnormally dangerous and the contractor failed to take adequate precautions. See Dillard, 255 Kan. at 711 (discussing Zueck, 809 S.W.2d at 386). The narrow scope of the exception discouraged landowners from hiring inexpensive but unqualified or careless contractors.
The Missouri court believed that this inherently dangerous activity exception was undercut by the adoption of comprehensive workers compensation statutes, under which injured employees sacrificed the ability to sue their employers but not necessarily owners of the premises who contracted with employers in exchange for certain recovery of limited amounts. See Dillard, 255 Kan. at 712 (discussing Zueck, 809 S.W.2d at 390). The Missouri court did not want to provide an incentive for landowners to have their own, less-than-expert employees perform dangerous tasks, preferring to encourage landowners to hire independent contractors when the contractors’ skills were appropriate for the work. It also reasoned that the contract price included a markup for the cost of the contractors’ workers compensation coverage, and it did not want to force landowners to pay this portion of the contract price twice by allowing liability. Dillard, 255 Kan. at 713 (citing Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128 [Mo. 1993] [relying on Zueck, 809 S.W.2d at 388]).
In the Maryland case, Parker, 76 Md. App. 590, an injured contractor employee claimed that he was owed a nondelegable duty by the defendant landowner under a county building code requiring the premises to be kept in a reasonably safe condition. See Dillard, 255 Kan. at 714 (discussing Parker, 76 Md. App. at 594). The Maryland court refused to recognize such a duty, even though it conceded that the landowner’s responsibilities under the code could not be farmed out to a contractor: “ ‘As to the public generally, the duty remains[;] but it does not extend to employees of the contractor who already have a remedy paid for by the owner .... No matter how appellant phrases it, what he is unsuccessfully attempting is an end run on the Worker’s Compensation Law.’ ” Dillard, 255 Kan. at 715 (quoting Parker, 76 Md. App. at 601-02).
The Connecticut case, Ray, 16 Conn. App. 660, involved an independent contractor’s employee who sued a landowner under both vicarious and direct liability theories. As our Dillard opinion explained:
“Under the vicarious liability theory, the employee argued alternative claims, maintaining that the landowners failed to take appropriate safety precautions required because (1) the work was inherently dangerous, and (2) a nondelegable duty was owed to the employees to ensure a safe workplace. Under the direct liability theory, the employee alleged that the landowners were negligent in failing to exercise reasonable care in their selection of the independent contractor.” Dillard, 255 Kan. at 716.
The Connecticut court concluded that liability would not be permitted, distinguishing an employee of an independent contractor with workers compensation coverage from a member of the general public, and noting that the contract price charged to the landowner presumably would have included the cost of workers compensation coverage. The court also wanted to avoid the perversity of imposing greater liability on a landowner when an employee of an independent contractor was injured, as compared to when an employee of the landowner was injured. Again, the court hoped to encourage landowners to hire contractors with needed expertise. The court also believed that the employee’s knowledge of any hazard would be superior to that of the landowner, making imposition of liability on the landowner unfair. Dillard, 255 Kan. at 718 (quoting Ray, 16 Conn. App. at 668-70).
In addition to these three cases, our Dillard opinion also cited cases from 6 federal circuits, 2 federal district courts, and 17 additional states as consistent in rejecting landowner liability on at least one of the two theories before it. See Dillard, 255 Kan. at 721 (citing Scofi v. McKeon Const. Co., 666 F.2d 170 [5th Cir. 1982]; Evans v. Transportacion Maritime Mexicana, 639 F.2d 848 [2d Cir. 1981]; Nelson v. United States, 639 F.2d 469 [9th Cir. 1980]; Chavis v. Finnlines Ltd., OY, 576 F.2d 1072 [4th Cir. 1978]; Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030 [5th Cir. 1977], cert. denied 435 U.S. 924 [1978]; Craig v. Olin Mathieson Chemical Corporation, 427 F.2d 962 [7th Cir.], cert. denied 400 U.S. 964 [1970]; Parsons v. Amerada Hess Corporation, 422 F.2d 610 [10th Cir. 1970]; Lipka v. United States, 369 F.2d 288 [2d Cir. 1966], cert. denied 387 U.S. 935 [1967]; Galbraith v. United States, 296 F.2d 631 [2d Cir. 1961]; Wallach v. United States, 291 F.2d 69 [2d Cir.], cert. denied 368 U.S. 935 [1961]; Corban v. Skelly Oil Company, 256 F.2d 775 [5th Cir. 1958]; Hurst v. Gulf Oil Corporation, 251 F.2d 836 [5th Cir. 1958]; Ackerman v. Gulf Oil Corp., 555 F. Supp. 93 [D. N.D. 1982]; Olson v. Kilstofte and Vosejpka, Inc., 327 F. Supp. 583 [D. Minn. 1971]; Morris v. City of Soldotna, 553 P.2d 474 [Alaska 1976]; Sloan v. Atlantic Richfield Company, 552 P.2d 157 [Alaska 1976]; Matanuska Electric Association, Inc. v. Johnson, 386 P.2d 698 [Alaska 1963]; Mason v. Arizona Public Sera. Co., 127 Ariz. 546, 622 P.2d 493 [Ct. App. 1980]; Welker v. Kennecott Copper Company, 1 Ariz. App. 395, 403 P.2d 330 [1965]; Jackson v. Petit Jean Electric Co-op, 270 Ark. 506, 606 S.W.2d 66 [1980]; Florida Power and Light Co. v. Price, 170 So. 2d 293 [Fla. 1964]; Pearson v. Harris, 449 So. 2d 339 [Fla. Dist. App. 1984]; Peone v. Regulus Stud Mills, Inc., 113 Idaho 374, 744 P.2d 102 [1987]; Johns v. New York Blower Co., 442 N.E.2d 382 [Ind. App. 1982]; King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659 [Ky. 1973], cert. denied 417 U.S. 932 [1974]; Vertentes v. Barletta Co., 392 Mass. 165, 466 N.E.2d 500 [1984]; Conover v. Northern States Power Co., 313 N.W.2d 397 [Minn. 1981]; Sierra Pac. Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 [1983]; Donch v. Delta Inspection Services, Inc., 165 N.J. Super. 567, 398 A.2d 925 [1979]; Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 [1963]; Cooper v. Metropolitan Government, Etc., 628 S.W.2d 30 [Tenn. App. 1981]; Humphreys v. Texas Power & Light Company, 427 S.W.2d 324 [Tex. Civ. App. 1968]; Humble Oil & Refining Co. v. Bell, 180 S.W.2d 970 [Tex. Civ. App. 1943]; Tauscher v. Puget Sound Power & Light Co., 96 Wash. 2d 274, 635 P.2d 426 [1981]; Epperly v. Seattle, 65 Wash. 2d 777, 399 P.2d 591 [1965]; Potter v. Kenosha, 268 Wis. 361, 68 N.W.2d 4 [1955]; Stockwell v. Parker Drilling Co., Inc., 733 P.2d 1029 [Wyo. 1987]).
The Dillard opinion acknowledged contrary rulings from one federal circuit and five other states but characterized them as “in-apposite to the specific issue under discussion” because they did not discuss the policy justifications central to the majority rule. See Dillard, 255 Kan. at 722 (citing Lindler v. District of Columbia, 502 F.2d 495 [D.C. Cir. 1974]; Van Arsdale v. Hollinger, 68 Cal. 2d 245, 66 Cal. Rptr. 20, 437 P.2d 508 [1968]; Makaneole v. Gampon, 70 Hawaii 501, 777 P.2d 1183 [1989]; Giarratano v. The Weitz Co., Inc., 259 Iowa 1292, 147 N.W.2d 824 [1967]; Perry v. McLouth Steel Corp., 154 Mich. App. 284, 397 N.W.2d 284 [1986]; Vannoy v. City of Warren, 15 Mich. App. 158, 166 N.W.2d 486 [1968]; Elliott v. Public Serv. Co. of N.H., 128 N.H. 676, 517 A.2d 1185 [1986]).
On its way to its public policy-based outcome, the Dillard opinion also dismissed the implications of an earlier Kansas vicarious liability case, Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983). Balagna involved the death of an employee of a general contractor on a construction project, and the main issue was whether the landowner could be liable for the contractor’s negligent failure to shore up the ditch in which the employee was fatally injured. This court embraced both the general principal of no landowner vicarious liability set forth in Restatement (Second) of Torts § 409 (1964) and the inherently dangerous activity exception to the general principal set forth in Restatement (Second) of Torts § 427 (1964). Yet, under these rules, it ultimately held that there could be no landowner liability in the case before it, because the activity engaged in by the employee did not qualify as inherently dangerous. Balagna, 233 Kan. at 1082.
The Dillard opinion gave Balagna and cases akin to it short shrift:
“Kansas has clearly recognized the inherently dangerous activity doctrine. However, the fact that the doctrine has been recognized and applied in Kansas is not determinative of the case now before us. None of the Kansas cases we have found addressed the issue of the effect of workers compensation on the applicability of the inherently dangerous activity doctrine under facts similar to the present case. The various policy reasons precluding liability of a landowner for injuries suffered by an employee of an independent contractor covered by workers compensation were not raised or considered in our earlier cases. We find the various policy provisions discussed in the various cases cited herein not only persuasive but also determinative of this case.” 255 Kan. at 725.
The Dillard opinion had already specifically stated that the controlling policy considerations applied to both the vicarious liability and direct liability claims before it. See Dillard, 255 Kan. at 715. It then enumerated nine policy rationales to support its conclusion that the archbishop and archdiocese had no duty:
“(1) The landowner should not have greater liability to an employee of an independent contractor than the liability of the contractor to that employee.
“(2) The landowner should not have greater liability to the employees of an independent contractor than the landowner has to the landowner’s own employees.
“(3) Liability on the part of the landowner would encourage the landowner to use the landowner’s less experienced employees rather than an experienced contractor.
“(4) Employees of an independent contractor, and their dependents, are protected under the provisions of the workers compensation statutes.
“(5) Workers in inherently dangerous jobs are fully aware of the dangers involved and receive compensation accordingly.
“(6) Landowners may not have expert knowledge of inherently dangerous work, the risks involved, and methods of avoiding such risks that an independent contractor engaged in such activity possesses.
“(7) Liability on the part of the landowner would create a class of employees, those of an independent contractor, with greater rights than the employees of the landowner for doing the same work.
“(8) To allow an employee of an independent contractor covered by workers compensation to invoke the inherently dangerous activity doctrine would (a) reward landowners who, despite their own lack of expertise, choose to perform work negligently resulting in injury to workers, (b) increase the risks to innocent third parties, and (c) punish landowners who seek expert assistance in an effort to avoid liability for injury.
“(9) A landowner who engages the services of an independent contractor pays directly or indirectly for the compensation coverage when the landowner contracts with the independent contractor.” Dillard, 255 Kan. at 725-26.
The opinion also assigned numbers to its specific substantive holdings:
“(1) A landowner is not hable to an employee of an independent contractor covered by workers compensation for injury sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance.
“(2) The inherently dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation.” Dillard, 255 Kan. at 726-27.
All of the discussion of Dillard above outlines what it did. But this court was at least as emphatic about what it did not do. As Herrell has emphasized, its third numbered “holding” read: “Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner liable under the theories discussed in the opinion.” 255 Kan. at 727. Furthermore, this court had already twice taken pains to point out that it was considering only the two theories of recovery advanced — direct liability based on the archbishop’s and archdiocese’ failure to comply with the building code’s nondelegable inspection requirement and vicarious liability under the inherently dangerous activity doctrine. Dillard, 255 Kan. at 707-08 (setting out plaintiff s two theories), 709-10 (noting authorities from other jurisdictions had intertwined direct nondelegable duly liability, vicarious liability).
Herrell is not urging us to overrule Dillard, and we accept its continuing controlling force on the two theories of landowner liability it so thoroughly addressed. Yet its limitations — and the court’s intention that those limitations have meaningful impact in future cases — could not be more clear. Herrell’s premises cause of action alleging direct negligence by National Beef in creating a hazardous condition and failing to warn of it is not controlled by Dillard. It is neither based on a nondelegable statutory or regulatory duty of National Beef nor based on negligence of Herrell’s employer for which National Beef may be exposed to vicarious liability. See also Dye v. WMC, Inc., 38 Kan. App. 2d 655, 665, 172 P.3d 49 (2007) (recognizing application of Dillard in “some” negligence contexts). In these circumstances, we are unwilling to absolve National Beef of any duty to Herrell based purely on the policy considerations upon which Dillard exclusively relied. Compare McCubbin v. Walker, 256 Kan. 276, 297, 886 P.2d 790 (1994) (declining to extend Dillard to all cases involving landowners, injured employees of independent contractors; issue not directly determinative); Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F. Supp. 2d 1166, 1175 (D. Kan. 2003) (limiting reach of Dillard to landowner defendants); Martin v. Mapco Ammonia Pipline, Inc., Nos. CIV.A. 93-2218-GTV and CIV.A. 93-2303-GTV, 1994 WL 409591, *7 (D. Kan. 1994) (unpublished opinion) (limiting reach of Dillard to landowner defendants). Rather, we turn to our workers compensation statutory scheme, that is, to what the Kansas Legislature has actually said about public policy choices. If those statements are clear, we need not guess or speculate, no matter how much company we may have from other jurisdictions if we were to do so.
Workers Compensation Provisions
When we must interpret statutes, our touchstone is legislative intent.
“ ‘[T]he intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.’ State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction.’ In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Instead, ‘[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.’ State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004).
“Where a statute’s language is subject to multiple interpretations, however, a reviewing court ‘may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]’ Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000). Generally, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). We ascertain the legislature’s intent behind a particular statutory provision ‘from a general consideration of the entire act. 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. [Citation omitted.]’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see also State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases that require statutory construction, ‘courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754-55, 189 P.3d 494 (2008).
As described in the Dillard decision,
“[i]t has long been the law of Kansas that an employer’s liability for injury to an employee is limited exclusively to recovery under the Workers Compensation Act. As such, where the injury and the employer-employee relationship fall within the scope of the Act, the exclusive remedy provision of K.S.A. 44-501(b) precludes an employee from maintaining a civil action against the employer. Tomlinson v. Owens-Corning Fiberglas Corp., 244 Kan. 506, Syl. ¶ 3, 770 P.2d 833 (1989). In Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 401, 729 P.2d 1214 (1986), this court discussed the relevant statutory provision, stating:
‘This statute is commonly referred to as the exclusive remedy provision of the Workmen’s Compensation Act, K.S.A. 44-501 et seq. If a worker can recover benefits for an injury from an employer under the provisions of the Workmen’s Compensation Act, its remedy is exclusive, precluding a common-law negligence action for damages against the employer. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 3, 658 P.2d 1004 (1983); Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 314, 564 P.2d 521 (1977). This furthers the policy and purpose of the Workmen’s Compensation Act, which is to provide an established source of benefits to the employee for injuries arising out of and in the course of his employment, and to shift from the employee to the industry certain burdens incidental to modem industrial operations. Duncan v. Perry Packing Co., 162 Kan. 79, 84, 174 P.2d 78 (1946). Further, the provisions of the Act are to be liberally constmed to bring workers under the Act whether or not it is desirable for the specific individual’s circumstance. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 5.’
“However, while the liability of the .employer is limited, the employee can still bring an action against and recover damages from a negligent third party. K.S.A. 44-504(a) provides:
“When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker’s dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.’ ” Dillard, 255 Kan. at 708-09.
Neither the exclusive remedy provision of K.S.A. 44-501(b) nor the third-party provision of K.S.A. 44-504(a) was amended from tire time Dillard discussed them in 1994 until the time of Herrell’s accident. See K.S.A. 44-504(a) (showing no amendments since 1993); K.S.A. 44-501(b) (nonpertinent amendments L. 1996, ch. 79, sec. 1; L. 2000, ch. 160, sec. 5; L. 2005, ch. 54, sec. 1).
Under the plain language of these two statutes, a landowner in National Beefs position is not excluded from liability if its negligence causes injury to an independent contractor’s employee while that employee is working on the landowner’s property. It is not the employer, so it cannot claim the protection of K.S.A. 44-501(b)’s exclusive remedy provision. And it is not omitted from the ranks of third parties that “shall” be subject to suit under K.S.A. 44-504(a). The workers compensation statutory scheme simply does not respond to the general common law of premises liability. It certainly could do so if the legislature chose this policy route. Thus National Beef owed Herrell the same duty it owed to other entrants onto its property — a duty of reasonable care under the circumstances, including a duty to warn of any dangerous condition. The district judge was correct to deny judgment as a matter of law to National Beef on this claim.
This ruling does not completely dispose of this appeal, however. We must also deal with Herrell’s pursuit of National Beef because of its failure to comply with the OSHA regulation, a subject we turn to now.
OSHA Regulation
The district judge included in his instructions to the jury a description of OSHA Reg. 1910.23(a)(8), which deals with precautions to be taken when there is a hole in a workplace floor. The jury was told Herrell alleged that her injuries and damages were caused by National Beef s violation of the “industry standard” set by the regulation, and the general verdict form did not permit the jury to designate whether all or part of the damages awarded to Herrell were attributable to any particular legal theory. In other words, we cannot be certain on the record before us whether the OSHA regulation played any role in the jury’s decision or, if it did play a role, how to account for it on this appeal.
This uncertainty matters because Herrell’s OSHA regulation violation theory of recovery is foreclosed by Dillard’s first substantive holding. It qualifies as a direct negligence action against National Beef based on its alleged violation of a nondelegable regulatory duty. This claim is legally indistinguishable from that dependent on the archbishop’s and archdiocese’ failure to ensure the performance of inspections under the building code. See Dillard, 255 Kan. at 727. Thus, Dillard does control this theory; no duty arose, and the claim should have been disposed of as a matter of law. Its inclusion in the jury instructions, with no opportunity for the jury to differentiate any liability based upon it in the general verdict form, polluted the trial of this case and necessitates reversal. Because of our holding that National Beef did have a typical land owner duty of reasonable care, however, we agree with Judge McAnany that this case must be remanded for further district court proceedings, not merely for entry of judgment as a matter of law in favor of National Beef.
Conclusion
The Court of Appeals is affirmed in part and reversed in part. The district court is affirmed in part, and reversed in part, and this case is remanded to the district court for further proceedings consistent with this opinion.
Davis, C.J., not participating.
John C. Gariglietti, District Judge, assigned. | [
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The opinion of the court was delivered by
Brewer, J.:
The action below was a criminal prosecution before the police judge of the city of North Lawrence for a violation of one of its ordinances. Upon an agreed statement of facts the police judge found the defendant (plaintiff in error) guilty, and sentenced him to pay a fine of twenty dollars. The district court of Douglas county affirmed the judgment, and now the record is here for reexamination. Many points are made in the briefs of counsel, and a grave constitutional question argued as to the power of cities in the matter of licenses. But as the case must be reversed upon a single point which we think fatal to the whole proceedings, we forbear any discussion of the constitutional question.
The material facts are these: Plaintiff in error was the owner of and kept and used for hire a wagon drawn by four horses in transporting goods from the depot in North Lawrence over its public streets to merchants in Lawrence. He had no license from the city of North Lawrence. There was in force at the time an ordinance of the latter city in relation to licensing vehicles. Section one of that ordinance provides that no one should without license keep, hire out,' or cause to be run, “any hackney coach, carriage, omnibus, or dray.” Section two reads as follows: “ Before any person, company, or corporation shall keep, use, or run for hire curvy of the aforesaid vehicles, he or they shall pay the said city for every hackney carriage the sum of five dollars; for every omnibus, the sum of ten dollars; for every dray or wagon drawn by one horse, the sum of three dollars; for every dray or wagon drawn by two horses, the sum of five dollars; and for every dray or wagon drawn by more than two horses, the sum of seven dollars.” Section six provided a penalty of not less than five nor more than twenty dollars for non-compliance.
Tliis ordinance is penal in its nature, and must be strictly construed. Before an inquiry would be proper as to what powers the city has under its charter, we should determine what it has assumed to exercise. Before considering whether it has power to require a license of plaintiff in error, we must see whether it has assumed to demand it. Before deciding the constitutionality of an ordinance which a party is charged to have violated, we must ascertain whether he has in fact violated it. The only vehicles named in the first section are these: “hackney coach, carriage, omnibus, and dray.” This is the section which provides for the license. Section two only fixes the amount. More than thau, its application is by its own terms limited to the vehicles named in the first section. “ Any of the aforesaid vehicles,” unmistakably refers to those just named, and those only. Unless the vehicle of plaintiff in error is one of the kind named in the first section he is not required to take out a license for it; he is not bound to pay any thing before he uses it; and using it without a license, and without paying any money, he has not violated the provisions of this ordinance. As this case was tried upon an agreed statement of facts the question comes before us as it did before the magistrate who tried it. We must apply the law to the facts as he did. It is as though these facts were his findings from the testimony, and the case presented here upon the findings and judgment without any of the testimony.
Is the vehicle as described in the agreed statement one of those named in the first section? It is described as “ a certain wagon, drawn by four horses, and used in the transportation of property,” and “ used for transferring goods of grocers and merchants.” Now this description will not apply to either of the four kinds of vehicles named. No one would consider that as defining either a “hackney coach,” a “carriage,” an “omnibus,” or a “dray.” Yet these are the only vehicles named. These terms each refer to some particular specific kind of vehicle, and none of them like the one described. The most general term of the four is “ carriage;” and yet this is understood to refer to vehicles for the conveyance of persons rather than for the transportation of property. The term “ wagon ” is itself far more of a generic term than either of these four. It might indeed without any great impropriety be held to include them all. But it also includes many other kinds of vehicles. A simpler statement that the vehicle of plaintiff in error was a “ wagon,” would not show that it was one of the four kinds named; and the further description shows plainly that it was not. There is at any rate nothing which describes either of the four vehicles with sufficient certainty to sustain a proceeding in the nature of a criminal prosecution.
But the term “ wagon ” is used in the second section — ■“ For every dray or wagon drawn by more than two horses,” seven dollars must be paid. This term embraces the vehicle as described. The seven dollars was not paid, and it is claimed therefore that the ordinance was violated. But as we have seen, section two simply fixes the amount to be paid for the license of the vehicles which by the first section are required to be licensed. Generic words in the second do not enlarge the scope of the first section. On the contrary they are limited by it. Finding the term wagon in the second section does not authorize the courts to supply it in the first, nor to infer that the city meant to require a license for them. Only those wagons are required to pay which are required to be licensed.
The plaintiff in error having then no vehicle for which by this ordinance a license was demanded has not violated the ordinance by a failure to pay money into the treasury of the city; and the judgment against him must be reversed with costs.
Kingman, O. J.', concurring.
Yalenhne, J., not sitting, having tried the case below. | [
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The opinion of the court was delivered by
Rosen, J.:
The Kansas Department of Labor, Division of Workers Compensation (Division) imposed a $10,000 civil penalty against OT Cab, Inc., and its owner, Ted Hill, for failure to maintain workers compensation insurance pursuant to K.S.A. 2010 Supp. 44-532. The Secretary of the Department of Labor (Secretary) and the district court affirmed the Division’s final order. The judgment of the Court of Appeals on the issue subject to our review is affirmed in part, reversed in part, and the case is remanded for a determination of whether a civil penalty is to be imposed. OT Cab sought review of the Court of Appeals interpretation of K.S.A. 2010 Supp. 44-532(d).
Background
When Ted Hill purchased OT Cab in April 2004, the company employed a full-time manager, a dispatcher, and several drivers. OT Cab maintained a workers compensation policy from July 9, 2004, to January 1,2005. Due to decreasing profits, Hill terminated the employment of the dispatcher and the part-time drivers. He retained the manager on a part-time basis and two full-time drivers under service agreements which purportedly changed the drivers’ status to that of independent contractors as of January 1, 2005. At this time, OT Cab canceled the workers compensation policy because Hill believed the drivers were independent contractors.
On June 1, 2005, an anonymous caller informed the Division that OT Cab was operating without workers compensation insurance. On July 1, 2005, the Division’s investigator met Hill at the OT Cab office to discuss the matter. On July 19, 2005, Hill’s attorney contacted the Division’s investigator to arrange a meeting, which took place August 18, 2005.
After the Kansas Department of Labor’s Employment Security Division determined in an unrelated matter that OT Cab’s drivers were employees rather than independent contractors, OT Cab reinstated its workers compensation insurance policy effective November 17, 2005, for a $3,400 annual premium.
The Division filed a statement of charges alleging that Hill and OT Cab knowingly and intentionally failed to maintain workers compensation insurance in violation of K.S.A. 2010 Supp. 44-532 and requested a $25,000 civil penalty. After an evidentiary hearing, the administrative hearing officer issued an order reciting findings of fact and conclusions of law and imposed a $10,000 penalty.
Hill and OT Cab jointly sought review with the Secretary, who summarily affirmed the hearing officer’s findings and conclusions except for the imposition of a $10,000 civil penalty. On remand, the hearing officer articulated the reasons for imposing a $10,000 civil penalty and again imposed that amount. The hearing officer issued an amended supplemental order to include the appeals language mandated by K.S.A. 77-526(c). The Secretary denied the subsequent request for review, ruling that the hearing officer’s in itial order and supplemental order would constitute the final order. The district court affirmed the final order.
Hill and OT Cab jointly appealed, claiming that the district court erred in (1) determining that the cab drivers were employees of OT Cab rather than independent contractors; (2) making the erroneous legal assumption that K.S.A. 2010 Supp. 44-532(d) required a civil penalty to be imposed regardless of any mitigating facts; and (3) piercing die corporate veil to impose joint and individual civil liability upon Hill and OT Cab. Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 217, 210 P.3d 647 (2009).
The Court of Appeals affirmed the determination that the drivers were employees of OT Cab rather than independent contractors and reversed the imposition of joint and individual liability for the civil penalty against Hill. Hill, 42 Kan. App. 2d 215, Syl. ¶¶ 4, 6. The Court of Appeals further determined that upon finding of a violation, K.S.A. 2010 Supp. 44-532(d) mandates a $25,000 civil penalty with no discretion for the imposition of either no penalty or a reduced penalty and remanded to the Division for the imposition of a $25,000 civil penalty. Hill, 42 Kan. App. 2d at 233. OT Cab sought review with this court alleging that (1) the Court of Appeals erred as a matter of law in dramatically increasing the penalty imposed below without any cross-appeal or attack on the original penalty by the Division and (2) the Court of Appeals erred in its interpretation of K.S.A. 2010 Supp. 44-532(d).
At oral argument, OT Cab cited to the final chapter of Mick Jagger and Keith Richards’ learned treatise “Let It Bleed” for legal authority on the first issue, saying: “You don’t always get what you want, but you shouldn’t get what you don’t ask for.” This court responds with an accurate quotation of the Rolling Stones classic, which perhaps better summarizes these and many litigants’ posture before this court: “You can’t always get what you want / But if you try sometimes you just might find / You get what you need.”
In the more conventional parlance of this court, because the second issue is dispositive, we will begin with an analysis of K.S.A. 2010 Supp. 44-532(d).
Interpretation ofKS.A. 2010 Supp. 44-532(d)
On appeal to the Court of Appeals, OT Cab argued that the hearing officer erroneously limited his discretion by considering a civil penalty between $6,800 and $25,000 rather than considering the full range of $0 to $25,000, which includes the option to impose no civil penalty at all. OT Cab further argued that the district court avoided ruling on whether a penalty was mandatory under the statute, which effectively affirmed the hearing officer’s erroneous interpretation of the statute. The Division responded by arguing that the $10,000 civil penalty imposed was not arbitrary, capricious, or unreasonable.
K.S.A. 2010 Supp. 44-532(d) states:
“In addition, whenever the director has reason to believe that any employer has engaged or is engaging in the knowing and intentional failure to secure the payment of workers compensation to the employer’s employees as required in subsection (b) of this section, the director shall issue and serve upon such employer a statement of the charges with respect thereto and shall conduct a hearing in accordance with the Kansas administrative procedure act, wherein tire employer may be liable to the state for a civil penalty in an amount equal to twice tire annual premium the employer would have paid had such employer been insured or $25,000, whichever amount is greater.” (Emphasis added.)
OT Cab maintains that the language “may be liable” provides the Division with the discretion to impose a civil penalty up to the described maximum amount, including the discretion to impose no penalty at all. The Division takes a similar position, allowing a hearing officer to exercise discretion to impose civil penalties other than twice tire annual premium or $25,000, whichever is greater. Specifically, the Division has incorporated district court Judge Franklin R. Theis’ 2006 decision in In the Matter of Henry “Hank” Lamping, Jr. and Kansas City Marble Corp. v. Kansas Division of Workers Compensation, Kansas Department of Labor, Case No. 04C1685, into the Division’s interpretation and application of K.S.A. 2010 Supp. 44-532, requiring that hearing officers set forth the rationale supporting their exercise of discretion to impose a civil penalty other than the statutory maximum.
Judge Theis noted that his plain language reading of K.S.A. 44-532(d) mandated a penalty of $25,000 or twice the annual premium the employer would have paid had the employer been insured, whichever amount is greater. The Division, however, stated that its interpretation of the statute allowed imposition of a discretionary civil penalty ranging from $0 to $25,000. Judge Theis accepted the Division’s interpretation under the doctrine of operative construction, a doctrine which has lost favor with this court, particularly in cases of statutory construction. See, e.g., Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, Syl. ¶ 2, 228 P.3d 403 (2010). Judge Theis remanded the case because the hearing officer had not articulated the reasons supporting the $25,000 penalty imposed in that case. Based on Judge Theis’ decision, the Secretary of the Kansas Department of Labor has required hearing officers to set forth the particular rationale explaining the amount of civil penalty imposed.
The Court of Appeals engaged in a plain language analysis of K.S.A. 2010 Supp. 44-532(d), reading the “may be liable” language in the context of the entire statute and arriving at the following conclusion:
• “Placed in context, the word ‘may clearly refers only to the possibility that the Division may find, based upon the evidence produced at a hearing, that the employer violated K.S.A. 2008 Supp. 44-532(b). In the event a violation is found, however, the statute clearly anticipates imposition of a penalty in the particular amount established in section (d), i.e., twice the annual premium the employer would have paid had the employer been insured, or $25,000, whichever amount is greater.” Hill, 42 Kan. App. 2d at 231.
We disagree with the conclusion that the use of the word “may” refers only to the possibility of a finding of a violation. In our reading of the statute, the language “wherein the employer may be hable to the state for a civil penalty.” clearly relates to the possibility of the imposition of a civil penalty as one of the potential outcomes of the hearing. We find that K.S.A. 2010 Supp. 44-532(b) provides the Division with discretion to impose no civil penalty at all even after a finding that the employer violated the statute. If the civil penalty was intended to be mandatory, the legislature could have used directory language such as “shall” or “must” rather than the permissive word “may.”
The Court of Appeals then focused on the language “in an amount equal to” in its plain language interpretation of the statute. Hill, 42 Kan. App. 2d at 231. The Court of Appeals’ interpretation of the statute requires “that when a violation of the statute is found, the Division must impose a civil penalty in an amount equal to twice the annual premium the employer would have paid had such employer been insured or $25,000, whichever amount is greater,” without the discretion to impose a different amount. Hill, 42 Kan. App. 2d at 233. We agree that once a determination is made that a civil penalty is to be imposed, the statute requires a civil penalty “in an amount equal to twice the annual premium the employer would have paid had such employer been insured or $25,000, whichever amount is greater.” K.S.A. 2010 Supp. 44-532(d).
While it may seem illogical that an employer in violation of K.S.A. 2010 Supp. 44-532(b) is subject to either no penalty or a substantial one, without discretion to impose a civil penalty between the two extremes, that is clearly the mandate of the legislature. Certainly, the legislature knows how to give an administrative agency the discretion to impose a civil penalty with a maximum amount. See, e.g., K.S.A. 2-1011(3) (allowing for “a civil penalty in an amount not more than $1,000 per violation,” for the unlawful sale or distribution of commercial feeding stuff); K.S.A. 16a-6-108(3)(b) (allowing, among other possible sanctions, “a civil penalty up to a maximum of $5,000 for each violation” of the uniform consumer credit code); K.S.A. 65-170d(a)(5) (allowing the director of the division of environment to impose “a civil penalty in an amount of up to $10,000 for each violation” for certain public water supply and sewer system problems). Language such as “in an amount not more than,” “up to a maximum of,” and “in an amount of up to” clearly provides an administrative agency with the discretion to impose a civil penalty from $0 to a stated maximum. K.S.A. 2010 Supp. 44-532(d), however, uses the language “in an amount equal to.” This language does not leave any discretion for a civil penalty less than the amount set by statute.
“When a statute is plain and unambiguous, we must give effect to the legislature’s intention as expressed, rather than determine what the law should or should not be.” Casco v. Armour Swift Eckrich, 283 Kan. 508, 521, 154 P.3d 494 (2007). Although it may appear somewhat nonsensical that the agency does not have discretion to impose a civil penalty between $0 and $25,000, the expressed intention of the legislature allows only the possibility of no civil penalty or a $25,000 civil penalty, or even greater if the amount of “twice the annual premium” the employer would have paid for workers compensation insurance exceeds $25,000. We recognize that the resulting penalty extremes leave OT Cab, and those similarly situated, exposed to “Under My Thumb” as background music at hearings conducted by the Secretary. We further appreciate that this caught between a “rock and a hard place” posture leaves those found to be in violation of K.S.A. 2010 Supp. 44-532(d) either engaged in a celebratory dance of the “Harlem Shuffle” or left shattered and reciting “I Can’t Get No Satisfaction” in its prayer for appellate relief. However, as we have often stated, it is not for us to add something to a statute not readily found in it. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009).
In this case, the hearing officer did not first properly determine whether a civil penalty was appropriate under these facts. We remand to the Division of Workers Compensation for a determination of whether a civil penalty is to be imposed at all. Because we remand on this issue, we do not reach the question of whether the Court of Appeals had jurisdiction to increase the civil penalty imposed absent a cross-appeal by the Division.
Judgment of the Court of Appeals reversing the district court on the issue subject to our review is affirmed in part and reversed in part. Judgment of the district court on the issue subject to our review is reversed, and the case is remanded with directions to the Division of Workers Compensation.
Carl B Anderson, Jr., District Judge, assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kevin C. Harris, of Kansas City, an attorney admitted to the practice of law in Kansas in 1985.
On June 4, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The Disciplinary Administrator then filed an amended complaint on July 26, 2010. Respondent answered the amended complaint on September 9, 2010. A panel of the Kansas Board for Discipline of Attorneys conducted a hearing on the complaint on September 10,2010, at which the respondent was personally present. The hearing panel determined that respondent violated Kansas Supreme Court Rules 207(b) (2010 Kan. Ct. R. Annot. 308) (failure to cooperate in disciplinary investigation), 208(c) (2010 Kan. Ct. R. Annot. 320) (failure to notify Clerk of the Appellate Courts of change of address), 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinary proceeding), and 218(a) (2010 Kan. Ct. R. Annot. 370) (failure to notify clients upon suspension). At the conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On December 10, 2007, Washington Mutual Bank (the ‘Bank’) filed suit against Marvin M. Pottratz, deceased, et al., Case No. 07CV9785 in the District Court of Johnson County, Kansas. The nature of the case was a mortgage foreclosure.
“3. Dale Angle Wesselman is an overtheroad truck driver who had entered into an installment sale contract to purchase the property from Mr. Pottratz. The contract predated the mortgage but was never recorded. Mr. Wesselman completed all obligations under the installment sale contract; however, the property was never deeded to him and no indication of the sale appeared of record.
“4. The Bank joined Mr. Wesselman into the lawsuit on February 5, 2008, and obtained service on him on that same date.
“5. The Respondent had previously represented Mr. Wesselman on a landlord/tenant case and agreed to represent Mr. Wesselman in this matter. The understanding between the parties was that the Respondent would represent Mr. Wesselman to protect against a default judgment but was going to seek other counsel who would either assist the Respondent or enter their appearance because the Respondent did not do mortgage foreclosures.
“6. Mr. Wesselman gave the Respondent all of the documentation Mr. Wesselman had regarding the property and transactions with Pottratz at the time the Respondent was hired. This included ‘contracts on the deed’ and evidence of payments. Mr. Wesselman stated that this included ‘every piece of paper that I had to deal with my
house, the Courts, anything to do with Marvin Pottratz against me on that property. I turned over my whole pile to him.’
“7. The official docket sheet of the Johnson County District Court. . . indicates the following somewhat inconsistent entries which are listed by filestamp date:
02252008 Entry of Appearance (Kevin C. Harris)
02252008 Clerks Extension of Time (For Dale Wesselman & Betty Wesselman)
03052008 Stipulation of Dismissal with Prejudice
03052008 Changed Case Status: From: Pending To: Case Terminated (Dismissed)
03072008 Motion to Extend Time to Answer (Wesselmans) [Filed by Harris]
03102008 Order of Dismissal Without Prejudice
05282008 Changed Case Status: From: Reopened To: Case Terminated (Default Judgment)
06092008 Journal Entry of Judgment, for PL
06262008 Order of Sale
“8. On June 27, 2008, the Kansas Supreme Court issued an order suspending the Respondent’s license to practice law for a period of two years. In re Harris, 286 Kan. 532, 186 P.3d 737 (2008). Within days of his suspension, the Respondent moved out of his office on State Avenue. The Respondent testified that he told Mr. Wesselman four or five days after the order of suspension was published that he had been suspended and that he told him this again when they met on July 8, 2008. Mr. Wesselman testified that he first learned of the Respondent’s suspension when he found out his house was up for sale and went to the courthouse to investigate.
“9. The Respondent testified that following the Order of Dismissal Without Prejudice he received nothing from the Court, other counsel, or Mr. Wesselman about this matter until Mr. Wesselman called him on the Wednesday or Thursday before July 8, 2008, to tell him the property had been sold at a Sheriffs sale. During the call they agreed to meet on July 8, 2008. The Disciplinary Administrator offered nothing contrary to the Respondent’s testimony and presented no evidence that the Respondent was or should have been aware that the case status was other than dismissed prior to Mr. Wesselman’s call.
“10. On July 8, 2008, the Respondent and Mr. Wesselman met at a bank in Kansas. There, the Respondent provided Mr. Wesselman with a letter informing him that he was unable to continue to represent him. This was the first written notice Mr. Wesselman received of the Respondent’s suspension. The Respondent informed Mr. Wesselman that Kent O. Docking was taking over his cases, including Mr. Wesselman’s case. The Respondent presented Mr. Wesselman with an ‘Affidavit of Equitable Interest’ that Harris had prepared in Mr. Docking’s office. The Respondent directed Mr. Wesselman to review and sign the affidavit before a notary public. The affidavit was later filed with the court along with a ‘Motion to Set Aside Jugement [sic], Stay Sale of Property and File Answer Instanter.’
“11. Thereafter, Mr. Wesselman met with Mr. Docking and paid Mr. Docking an attorney fee to represent him. Mr. Docking entered his appearance in behalf of Mr. Wesselman.
“12. The Respondent testified that after Mr. Wesselman agreed to hire Mr. Docking on July 8, 2008, or July 9, 200[8], he returned some papers to Mr. Wesselman and delivered the balance of the file to Mr. Docking.
“13. In May 2009, the Kansas Supreme Court disbarred Mr. Docking.
“14. In June 2009, after Mr. Wesselman learned that he was being evicted from his property, he went to see the Honorable James F. Vano, the judge presiding over the case. Mr. Wesselman told Judge Vano that the Respondent never advised him that judgment had been entered against him, nor that his home was going to be sold.
“15. The Honorable Stephen R. Tatum, the Chief Judge of the Johnson County District Court, set aside the eviction order and appointed Greg Blume to represent Mr. Wesselman. Judge Tatum included the following in his order:
‘The defendant, Wesselman, has been represented in this matter by Kevin C. Harris (KS Bar No. 12515) and by Kent Docking (KS Bar No. 12265). Neither attorney filed any notice or motion for withdrawal.
‘On June 27, 2008, the Kansas Supreme Court entered its decision suspending Kevin C. Harris from the practice of law for a period of two years. In re Harris, Case No. 99,705.
‘On May 20, 2009, the Kansas Supreme Court entered its decision and disbarment order against Kent O. Docking. In re Docking, Bar Docket No. 12,265.
‘Neither counsel appears to have taken steps to communicate with the client, Wesselman, provide his file or protect his interests in the captioned case or otherwise comply with Kansas Supreme Court Rule 218. Furthermore it appears the affairs of the client are and have been neglected in this matter.’
“16. Judge Tatum forwarded a copy of his order to the Office of the Disciplinary Administrator. The Disciplinary Administrator docketed a complaint for investigation and the matter was assigned to the Wyandotte County Ethics and Grievance Committee for investigation. John Duma, the Chairman of the Wyandotte County Ethics and Grievance Committee assigned Sheryl Lidtke to investigate the case.
“17. On July 25, 2009, the Respondent provided a written response to the complaint. The Respondent’s response consisted of the following:
‘On July 8th, I received a letter from Frank Diehl dated June 24th. The envelope was postmarked July 6, 2009. Enclosed with that letter was an enclosed copy of an ex parte Order from Judge Tatum.
‘On June 15th I called Dale Wesselman in the morning. When he answered he said he wanted to talle to his attorney before talking to me. He called late that afternoon. In our conversation he admitted receiving the letter that I handed him notifying him that I was unable to represent him. He also acknowledged that at the time I handed him the letter he had some money from his brother to retain an attorney, which he immediately did. That attorney entered his appearance in Mr. Wesselman’s case, thus ending my active interest in that matter as the record reflects.
‘Further in our conversation on the 15th, Mr. Wesselman told me that if I provided money for fees and did legal work for him he said he would try to do something to help me in my legal troubles arising from Judge Tatum’s Order.
When Mr. Wesselman’s new attorney called me the next morning (June 16th) I told him of that demand. I believe that he made a tape of that conversation.
T have filed a Notice of Appeal of Judge Tatum’s Order. I shall forward a copy of the Docketing Statement when it is filed.’
“18. On September 14, 2009, Ms. Lidtke wrote to the Respondent requesting that the Respondent call to schedule an interview and that the Respondent provide her with a copy of the letter he provided to Mr. Wesselman. The Respondent did not contact Ms. Lidtke nor did he provide her with a copy of the letter that he provided to Mr. Wesselman.
“19. On October 1, 2009, Mr. Duma wrote to the Respondent and reminded him of his obligation to cooperate in the disciplinary investigation.
“20. The Respondent attempted to docket an appeal of the court’s order with the Kansas Appellate Courts. However, on December 3, 2009, the clerk’s office returned the Respondent’s docketing statement to him because he was not a party to the action.
“21. On December 7,2009, Mr. Duma forwarded documents that he received from the Respondent to Ms. Lidtke. According to Mr. Duma’s letter, he spoke by telephone with the Respondent on December 4, 2009. Again, Mr. Duma reminded the Respondent of his obligation to cooperate in the investigation.
“22. On December 16, 2009, Ms. Lidtke wrote to the Respondent for a second time. Ms. Lidtke reminded the Respondent of her earlier requests. The Respondent did not respond to Ms. Lidtke’s December 16, 2009, letter. The Respondent never met with Ms. Lidtke pursuant to her request nor did he ever provide a copy of the letter that he provided to Mr. Wesselman on July 8, 2008.
“23. Mr. Wesselman’s documents that the Respondent delivered to Mr. Docking have never been returned and cannot be located.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated Kan. Sup. Ct. R. 207, Kan. Sup. Ct. R. 208, Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218, as detailed below. (Footnote: The Deputy Disciplinary Administrator also alleged that the Respondent violated KRPC 1.3, KRPC 1.4, and KRPC 1.16. However, the Deputy Disciplinary Administrator failed to present evidence to establish a violation of those rules. Accordingly, the Hearing Panel dismisses the allegations that the Respondent violated KRPC 1.3, KRPC 1.4, and KRPC 1.16.)
“2. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R. 207(b) provides the requirements in this regard.
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
The Respondent knew that he was required to cooperate in the disciplinary investigation — he had been instructed to do so in writing by the Disciplinary Administrator, by Mr. Duma, and by Ms. Lidtke. Because the Respondent knowingly failed to provide a copy of the letter given to Mr. Wesselman and because the Respondent failed to submit to an interview by Ms. Lidtke, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).
“3. Attorneys are required to notify the Clerk of the Appellate Courts of any change of address within thirty days. Kan. Sup. Ct. R. 208(c). In this case, the Respondent did not provide the Clerk of the Appellate Courts with his current address until June 28, 2010, two years after his address changed. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 208(c).
“4. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provide the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Kan. Sup. Ct. R. 211(b). The Respondent filed an Answer to the Formal Complaint on September 9, 2010, the day before the hearing. The Respondent’s Answer was not timely. As such, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to the Formal Complaint.
“5. Upon suspension or disbarment, attorney must take certain action. Kan. Sup. Ct. R. 218(a) provides the requirements in this regard:
‘In the event any attorney licensed to practice law in Kansas shall hereafter be disbarred or suspended from the practice of law pursuant to these Rules, or shall voluntarily surrender his or her license, such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’
Upon suspension, the Respondent was required to notify his clients, opposing counsel, and the courts of his inability to continue the representation. The Respondent failed to ‘forthwith notify in writing’ Mr. Wesselman of his suspension from the practice of law. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 218(a). The Respondent also did not notify the Court or opposing counsel in Mr. Wesselman’s case, but because no evidence was presented to refute the Respondent’s testimony that he was unaware the case [was] reinstated following its dismissal, no violation results from this omission.
“6. While suspended, the Respondent met with Mr. Wesselman, presented to him an affidavit of equitable interest and discussed the pending matter. The Respondent testified that he did this to assist Mr. Docking. KRPC 5.5 prohibits a suspended lawyer from advising clients or assisting another lawyer by meeting directly with clients. The Respondent, by his own testimony, admitted violating this prohibition; however, this point was not raised prior to the hearing.
“7. It is appropriate to consider violations not specifically included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied 391 U.S. 961 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Buffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses. . . .
‘Subsequent to the Buffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R. 3d 337, the court summarized prior Kansas and federal precedent on the question, including Buffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rules allegedly violated . . ., nor is it required to plead specific allegations of misconduct. . . . What is required was simply stated therein:
‘ “ “We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
‘ “ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.’ ” ’
235 Kan. at 458-59. Thus, only when the Formal Complaint alleges facts that would support findings of violations of additional rules, will considering additional violations be allowed. In this case, the Formal Complaint does not include sufficient facts to give a contention that the Respondent violated KRPC 5.5. The Hearing Panel concludes that it is not proper to consider a violation of KRPC 5.5.
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel 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.
“Duty Violated. The Respondent violated his duty to the legal system to comply with court rules. Additionally, the Respondent violated his duty to the legal profession to cooperate in the disciplinary investigation.
“Mental State. The Respondent knowingly and intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual or potential injury to his client, to the legal system, and to the legal profession.
“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:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on four occasions. Following a hearing before a Hearing Panel of the Kansas Board for Discipline of Attorneys, on April 26, 1994, the Respondent was informally admonished by the Disciplinary Administrator for failing to diligently represent his client, for failing to appear in court in behalf of his client, and for failing to forward the fine and costs to the Court in behalf of his client.
“On March 14, 1997, the Kansas Supreme Court placed the Respondent on supervised probation for two years for having engaged in misconduct. Specifically, the Respondent violated MRPC 1.15, MRPC 1.4, MRPC 1.16(a)(3), MRPC 1.16(d), and MRPC 1.5(a). In re Harris, 261 Kan. 1063 (1997).
“On January 28, 2002, the Disciplinary Administrator informally admonished the Respondent for failing to provide diligent representation in an appellate case.
“On June 27, 2008, the Kansas Supreme Court suspended the Respondent’s license to practice law in the State of Kansas for a period of two years for having violated KRPC 3.1, KRPC 3.2, and KRPC 3.4(d).
“Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by repeatedly ignoring requests for information from Ms. Lidtke.
“Multiple Offenses. The Respondent committed multiple offenses by violating Kan. Sup. Ct. R. 207, Kan. Sup. Ct. R. 208, Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Buies or Orders of the Disciplinary Process. The Respondent obstructed the disciplinary proceeding, in bad faith, by repeatedly fading to comply with the requests of Ms. Lidtke.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent has refused to acknowledge that he was required to change his registered address with the Clerk of the Kansas Supreme Court, as required by Kan. Sup. Ct. R. 208. Additionally, the Respondent also failed to take responsibility [for] the other violations.
“Substantial Experience in the Practice of Law. The Respondent has substantial experience in the practice of law. The Kansas Supreme Court first admitted the Respondent to the practice in 1985.
“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:
“Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“Remoteness of Prior Offenses. The Respondent’s offenses that lead to discipline in 1994,1997, and 2002 are remote in time and character to the instant offenses. Additionally, the Respondent’s conduct that [led] to the Respondent’s 2008 suspension is remote in character to the current case.
“In addition to the abovecited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘8.1 Disbarment is generally appropriate when a lawyer
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be disbarred. The Respondent took the position that he did not engage in any misconduct and that the complaint should be dismissed.
“The hearing held on September 10,2010, was the Respondent’s fourth hearing before a Hearing Panel of the Kansas Board for Discipline of Attorneys. Following each hearing, the Respondent received discipline. The Respondent’s disciplinary history is significant and because he continued to violate the Kansas Rules of Professional Conduct and the Kansas Supreme Court rules after his extensive contact with the disciplinary process, disbarment is appropriate.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.
“After the hearing on the Formal Complaint, held on September 24, 2010, the Respondent filed a Motion to Reconsider the Decision of the Hearing Panel seeking dismissal of the Hearing Panel’s decision regarding a violation of Kan. Sup. Ct. R. 207 and Kan. Sup. Ct. R. 208(c). The Respondent cited and sent to the Presiding Officer an original letter and envelope that investigator Sheryl Lidtke sent to the Respondent dated September 14, 2009, on the stationery of her employer, Wyandotte District Attorney Jerome A. Gorman. This information was consistent with the evidence presented at the hearing but the motion was premature. The Respondent was so advised.”
Discussion
In a disciplinary proceeding, we consider the evidence, the findings of the disciplinaiy panel, and the arguments of the parties and determine whether violations of the KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ "evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Here, the respondent failed to file exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(d) (2010 Kan. Ct. R. Annot. 344). We conclude the hearing panel’s findings are supported by clear and convincing evidence. Thus, the only issue before us is the appropriate discipline.
At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator reiterated its recommendation that the respondent be disbarred. The respondent argued against disbarment and suggested to the court that at most, he be suspended from the practice of law for a period of 1 year to be applied retroactively beginning July 1, 2010, the date he would have been eligible to apply for reinstatement following his 2-year suspension had he chosen to do so. In re Harris, 286 Kan. 532, 186 P.3d 737 (2008).
We decline the respondent’s invitation to impose a lesser sanction than that recommended by the Roard and the Disciplinary Administrator. As the hearing panel noted, the respondent has had extensive contact with the disciplinary process resulting in respondent receiving (1) an informal admonishment in 1994 for failing to diligently represent his client, failing to appear in court on behalf of a client, and fading to forward a fine and costs to the court on behalf of a client; (2) supervised probation for 2 years in 1997 for having engaged in misconduct, including violations of MRPC 1.15 (1996 Kan. Ct. R. Annot. 302), 1.16(a)(3) and (d) (1996 Kan. Ct. R. Annot. 310), 1.4 (1996 Kan. Ct. R. Annot. 270), and 1.5(a) (1996 Kan. Ct. R. Annot. 276), In re Harris, 261 Kan. 1063, 934 P.2d 965 (1997); (3) an informal admonition in 2002 for failing to provide diligent representation in an appellate case; and (4) a 2-year suspension in 2008 for respondent’s violations of KRPC 3.1 (2007 Kan. Ct. R. Annot. 500), 3.2 (2007 Kan. Ct. R. Annot. 503), and 3.4(d) (2007 Kan. Ct. R. Annot. 514), In re Harris, 286 Kan. 532.
When these prior disciplinary offenses are considered along with the respondent’s multiple offenses in this case, including violations of Kansas Supreme Court Rules 207, 208, 211, and 218, we find disbarment is the appropriate discipline.
In so holding, we note that the Disciplinary Administrator did not challenge the panel’s conclusion that it was not permitted to consider allegations that the respondent violated KRPC 5.5 (2010 Kan. Ct. R. Annot. 579) because those allegations were not included in the formal complaint. We make no findings regarding this determination by the panel but point out that the violations found by the panel are more than sufficient to justify the discipline imposed, even absent the allegations the panel declined to consider.
Conclusion and Discipline
It Is Therefore Ordered that respondent, Kevin C. Harris, be disbarred from the practice of law in the state of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that Kevin C. Harris comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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Tbe opinion of tbe court was delivered by
Yalentine, J.:
David H. Mitchell tbe plaintiff in error and plaintiff below held a promissory note against Alfred S. Penfield secured by a mortgage on a certain warehouse. Thomas Cutts (since deceased,) held a mechanic’s ben on tbe same warehouse, and tbe only question in tbe case is, whose is tbe prior lien? The mortgage was made and recorded June 28th, 1869, and on that day tbe mortgage lien attached. Tbe court below finds that prior to that time, and about tbe 22d of June, 1869, tbe contract upon which tbe mechanic’s lien is founded was made, and that on that day tbe mechanic’s lien attached. Two questions now are presented for our consideration: First, Is tbe finding of tbe court below with reference to tbe dates of said contract, sustained by sufficient evidence? Second, If so, is tbe conclusion of law that tbe mechanic’s lien attached at tbe date of tbe contract correct?
We must answer both of these questions in tbe affirmative. Tbe testimony of Penfield is positive, that tbe said contract was made about tbe 20th of June, 1869; that be told Mitchell before he game the mortgage that be bad engaged tbe lumber of Cutts to complete tbe warehouse, and that be did afterwards use it in completing tbe warehouse. Tbe only evidence tending to prove that tbe contract was made after tbe 28th of June, 1869, is a statement filed by Cutts January 26th, 1870, with tbe clerk of tbe district court under section 633 of tbe civil code, (Gen. Stat., 756,) in order to preserve bis mechanic’s lien and prevent it from lapsing. Said statement is, “that tbe contract was made on or about tbe 30th day of June, 1869.” TMs statement does not pretend to fix absolutely and' definitely tbe time wben tbe contract was made, and it certainly does not prevent tbe representatives of Cutts from showing tbe true time wben it was made. Tbe statement bad not been filed wben Mitcbell received tbe mortgage, and therefore be could not have been misled by it. Tlie lumber was furnished under this contract from June 30th, 1869, to July 29th,-1869. Under section 630 of tbe code a mechanic’s lien dates from the time of malvmg the contract. Tbe judgment of tbe court below is affirmed.
Kingman, O. J., concurring.
Brewer, J., not sitting in tbe case. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts of this case, so far as they are necessary to a right understanding of the questions involved, are these: At the general election in November, 1869, one Daniel Bruner was elected sheriff of Montgomery county. By virtue of such election he became and was entitled to hold such office until the second Monday of January, 1872. He however failed to qualify, whereby the office became vacant, and in April, 1870, the defendant was appointed by the governor to fill such vacancy. He qualified and entered upon the discharge of his duties as sheriff. At the general election in November, 1870, candidates for the office of sheriff of that county were voted for, and one Thomas Lawson received a majority of the votes cast, was awarded the certificate of election, and duly qualified. Railing to obtain possession of the office, he resigned, and plaintiff was appointed to fill the vacancy claimed to exist by virtue of such resignation. He qualified, but defendant refused to surrender the office; and this action is brought, an original proceeding in this court, to oust the defendant and place plaintiff in possession. The question arises upon the demurrer filed by plaintiff to the answer of defendant, and is therefore purely a question of law.
Was the election in November, 1870, for the office of sheriff rightfully held? If it was, then by it Lawson became entitled to the position, and upon his resignation, and the appointment of this plaintiff, the latter would also become entitled to it. The clause of section 19 of art. 2 of the constitution, reads: “It” (the Legislature,) “shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies, not otherwise provided for in this constitution.”
There is no provision in the constitution for fining a vacancy in the office of sheriff. We must therefore look to the statutes to see how the legislature has said it should be filled. Sections 57, 58 and 59 of general election law, (Gen. Stat., p. 418, 419,' are as follows:
“ Sec. 57. AE vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the governor until the next general election after such vacancy occurs, when such vacancy shall be filled by election.
“Sec. 58. The regular term of office of all state, district and county officers, and of the justices of the supreme court, shall commence on the second iMonday of January next after the election, except as otherwise provided by law.
“Sec. 59. Any of the said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and, when elected, they may hold the same during the unexpi/red term for which they were elected, and until their successors are elected and qualified; but, if appointed, they shall hold the same only until their successors are elected and qualified.”
The term “ general election ” has both a constitutional and statutory definition, and means the election held annually on the Tuesday succeeding the first Monday in November. Const., art. 4, § 2; Gen. Stat., p.-1000, 26th clause of § 1. The meaning of the sections above quoted is plain and obvious. No language could be used which would ° r3 more clearly express the obj ect which the legislature intended to accomplish. In case of a vacancy the governor was to designate some one to discharge the1 duties of the office until the succeeding fall election, at which time the people were to elect a successor. The appointee could hold only until the fall election, and the qualification of the officer then elected. The officer elected held the unexpired term. This construction is supported, if support it needs, by the reasoning in the case of The State, ex rel. Watson, v. Cobb, 2 Kas., 53, where the court say: “The general principle is that the judiciary are elective. The exception made to meet possible necessities, is by appointment to fill vacancies, but that appointment is expressly limited and must expire at the next regular election.”
Probably if the three sections above quoted were all that bore upon this question there would be little controversy. But it is claimed that section 2 of the act prescribing the time for holding elections, (Gen. Stat., p. 428,) compels a different construction of the sections we have quoted. That reads: “On the Tuesday succeeding the first Monday in November, 1869, and on the Tuesday succeeding the first Monday in November in every second year thereafter, there shall be held a general election for the election in each county of sheriff,” etc. From this it is contended that the time for the election of sheriff is in 1869, 1871, 1873, and so on; that there is no warrant for an election of sheriff in 1870, and that an election without warrant is void, and confers no title. Furthermore it is claimed that the constitution fixes the term of office of sheriff at two years, and if an election was rightly held in 1870 the time for electing sheriffs in that county would be changed from the odd to the even years, and thus great confusion might in time be created throughout the state, some counties electing sheriffs in the even and some in the odd years, a result'which was evidently not contemplated by the legislature. In regard to the first objection, section five of the same act declares that “ the provisions of this act shall not apply when there are special provisions in any other statute fixing the time for the election of any of the officers above named;” and section 57 heretofore quoted provides that there shall be an election to fill the vacancy at the next general election after such vacancy occurs. It matters not whether such general election is in the even or the odd years, the vacancy is, by this section, then to be filled by election. In regard to the second objection, the fact that the result suggested might ensue would be no ground for avoiding the legitimate construction of the language used by the legislature. While uniformity in all such matters is desirable, a failure, to secure it is no argument against the validity of the legislation, and no reason for construing away its obvious meaning. We do not desire to be understood as intimating that such a result would ensue. Far from it. We simply pass that question to be considered in some case in which it fairly arises. Here it is immaterial. For if Lawson became entitled by the election in 1870 to the office, he was entitled to it for at least one year Besigning during the year, the appointee of the governor becomes entitled to it until and* only until the coming fall election, for the same decision which sustains the election last November compels another this fall.
But again, it is urged that, as the constitutional term of office of sheriffs is two years, and as the constitution is silent in reference to unexpired terms, the appointment by the governor fills the vacancy in the office for the balance of the term; an^ 0:®ce being filled, there is no room for an eiection until the full term has expired. The language of the constitution is this — art. 9, § 3: “ All county officers shall hold their offices for the term of two years, and until their successors shall be qualified.” We understand this language as fixing the duration of the regular term. It is not within the power of the legislature to create a county office and fix the term of that office at any other period than two years. We do not understand that section as bearing upon the question of a vacancy at all. Whenever a vacancy occurs, there is an unexpired .term to be filled, and this section neither determines, limits, nor affects the manner of filling that unexpired term. That question is to be settled by the legislature, by virtue of the powers conferred by section 19 of art. 2, heretofore quoted. It has declared that an appointment by the governor shall be good only until the succeeding general election and the qualification of the party elected. We cannot add to that, and say it shall hold good for the unexpired term. That would be giving a power to the gubernatorial appointment which the legislature has failed to do.
Whether an election starts a “regular term” to running, we forbear to decide, for reasons heretofore given. An appointment obviously does not. The defendant’s right to the office having terminated on the election and qualification of Lawson, by the resignation of the latter and the appointment and qualification of the plaintiff he is entitled to the office, and judgment must be entered accordingly. It is proper to state that the allegations of the petition and answer exclude any applica tion of sections 101 and 102 of the act in relation to counties and county officers to this case.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
A sack supposed to contain gold dust was delivered to the defendant George W. Pritchett at Helena, in Montana Territory, to be delivered by Mm to the plaintiff William 0. Lobenstein, at Leavenworth City, Kansas. After-wards said sack was so delivered; and afterwards it was opened; bnt when it was opened it was found to contain nothing but shot and sand. The plaintiff then sued the defendant for the value of the said gold dust which said sack was supposed to contain. Trial was had, and the verdict of the jury and the judgment of the court were for the defendant. The plaintiff now seeks to reverse said judgment.
The first ruling of the court below complained of is, that the court refused to allow the witness Alexander Kirk to testify whether he had paid the defendant anything for similar services performed by the defendant for the witness. This ruling was correct. The transaction between the defendant and Park had no connection whatever with the transaction between the defendant and the plaintiff. But suppose the court did at the time err, still the error was not substantial, for afterwards the witness stated in full just what he paid to the defendant and for what purpose he paid it. Johnston v. Hamburger, 13 Wis., 175, (179.)
The other rulings complained of are rulings that were made by the court in charging the jury. The court gave certain instructions to the jury to which the plaintiff excepted, and refused to give other instructions which the plaintiff asked to have given. Under the pleadings and the evidence we think the case was fairly submitted to the jury, and under the proper instructions. The questions of fact for the jury to consider were as follows: Was the sack filled with gold dust when the defendant received it? If so, was the gold dust abstracted from the sack while it was in the possession or under the control of the defendant, or was it in the sack when the sack was delivered to the plaintiff. If abstracted while in the possession or under the control of the defendant, was it so abstracted with his consent, or through his negligence? If through his negligence, what was the degree of the negligence? And was the defendant to receive any compensat on or reward from the plaintiff for transporting said sack from Helena to Leavenworth? The instructions given by the court embodied the law of this case and covered all the issues involved therein, and hence no other instructions were necessary. And it may be further said to their merit they contain but little if anything that is not applicable to this case. The principles involved in these instructions are so elementary in their nature however, and are so clearly the law, that we do not think it is necessary to make any further comment upon them.
Some of the instructions asked by the plaintiff and refused by the court are also good law; but being the same in substance as those given by the court, though differing in the mode of their expression, the court was not bound to give them. (Topeka v. Tuttle, 5 Kas., 312, 322, 429, 430; 6 Kas., 371, 471; 7 Kas., 156; ante, pp. 159, 180.) Of course such instructions as were not good law or were not applicable to this case the court was not bound to give.
Perhaps it would be proper for us to here say that it is not claimed that the defendant was a common carrier.
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer. J., not sitting in the case. | [
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The opinion of the court was delivered by
Yaimoine, J.:
This action was commenced by the plaintiff G-. ~W. Ballou against the defendant G. D. Humphrey for certain injuries alleged to have been caused by the defendant’s dogs to the plaintiff’s sheep. The petition below was sufficient to maintain the action, either as a common-law action, or as an action under the statute: Laws of 1863, p. 97, ch. 59; Gen. Stat., ch. 105, §§ 44, 45. But as the evidence almost if not entirely failed to show that the dogs had ever before committed any such injury, and as it utterly failed to show that the defendant ever had any knowledge that his dogs had previously committed any such injury, or even that they had any disjiosition to commit any such injury, the action must now be maintained, if at all, as an action under the statute. (1 Hilliard on Torts, 564 to 568, and cases there cited; 1 OhittyPL, 82.) Under the statute the owners of dogs are liable for this class of injuries without any regard to the previous knowledge of the owners of their dogs’ dispositions, propensities, or habits. The judgment below was for the defendant, and the plaintiff brings the case to this court. The only question presented here is, whether the court below erred in permitting certain evidence to go to the jury against the plaintiff’s objections. The evidence complained of was certain testimony tending to show that in the same neighborhood where the plaintiff’s sheep were injured, and at about the same time of such injury, other sheep were chased, worried, injured, and killed by other dogs than those of the defendant.
The whole of the evidence tending to establish the defendant’s liability is brought to this court. The other evidence, not objected to, tended to show that previous 'to the 6th of September, 1868, the plaintiff had a flock of sheep running at large in said neighborhood; that on the 6th of September plaintiff got them home; at the same time the defendant had two dogs — one, a year old, and gray — the other, eight months old, and black. On the 7th of said September, early in the morning the plaintiff visited his flock of sheep and found several of them billed, and several others injured. Passing further along he saw defendant’s gray dog and another gray dog “running back and forth behind a yearling lamb and snapping at it; and just as the lamb started to jump forward the defendant’s black dog jumped out of the grass and caught the lamb by the throat and held it ” until the plaintiff drove it off by shooting at it. Afterwards, about seven or eight o’clock in the morning of the same day the defendant killed both of his dogs. Four days later the defendant and plaintiff examined the stomachs of said dogs. Nothing was found in the gray dog’s stomach except some potato pearings not digested, nothing to indicate that he had killed or eaten any sheep. “ The black dog had fully half a peck of everything in his stomach — beef, rabbit meat, rabbit hair, and a piece of sheep skin about one-half by two inches, partially decomposed, but had the wool on. Eallou thought the dog had killed the sheep. Humphrey thought not because there were other dead sheep lying around.” “Ballou thought the meat which Humphrey called rabbit meat might be sheep ” meat. The defendant also testified that “ The black dog was a puppy, and fond of play. The dogs never separated. They were in the habit of going out into the field to hunt rabbits — used to catch a great many — used to get out most every morning as soon as light.” There was some other evidence which we do not think is necessary to mention. There was no evidence showing that the defendant’s dogs injured the yearling lamb which the black dog caught by the ueck; and there was nothing but circumstantial evidence tending to show that the defendant’s dogs killed or injured any of the other sheep of the plaintiff. On the night of the said 6th of September there were seven of the plaintiff’s sheep killed and twelve wounded, five of which were supposed to be fatally wounded; and several were wounded previous to that time; and for this the plaintiff claimed a thousand dollars damages.
Under the statute the defendant is liable for just the injuries that his dogs committed — no more, and no less. He is not liable for injuries committed by other dogs. Hence, any evidence tending to show that other dogs committed the injuries complained of would be competent evidence to go to the jury. Nobody saw the sheep killed or injured, and there was no direct or positive evidence tending to show that the defendant’s dogs committed said injuries, or that they did not commit said injuries. Hence, the best evidence that either party could furnish to prove or disprove said fact was circumstantial evidence. The plaintiff introduced circumstantial evidence to prove said fact, and of course the defendant had the right to introduce the same kind of evidence to disprove said fact. But there may be a question as to the limits within which the defendant may go. Must he be confined to those few circumstances which may tend directly to disprove said fact? Or, may he traverse the whole vast field of circumstances which may tend in the slightest or most remote degree to prove his Case? Circumstantial evidence may be proximate, or it may be remote; and as there maybe an infinite number of circumstances which may tend to prove or disprove a given fact, so there pray be infinite degrees of remoteness or proximity with regard to such fact. “ Every event, which actually transpires, has its appropriate relation and place in the vast complication of circumstances, of which the affairs of men consist; it owes its origin to those which have preceded it; it is intimately connected with all others, which occur at the same time and place, and often with those of remote, regions; and, in its turn, it gives birth to a thousand others which succeed. In all this there is perfect harmony.” A court is not generally bound to permit every circumstance to be proved which tends only in some slight or very remote degree to prove a given fact; and the court may generally require that the most proximate circumstances shall first be proved. But if the circumstance be proximate, or if it form a link in a chain of circumstances which are proximate, and tend directly to prove the main fact in issue, the court could not exclude such evidence without committing gross error; and it could seldom if ever be error for the court to admit evidence of circumstances which tended to prove a fact in' issue, however remote such proof might be.
The plaintiff in order to prove that the defendant’s dogs killed his sheep, proved that the dogs were seen near the sheep, within about fifty yards of a certain fence, (but whether they were within fifty yards or one mile from the sheep that were Idlled, the evidence does not show,) on the morning after the sheep were killed. Now, in order for the jury to find from this evidence that the defendant’s dogs and the plaintiff’s sheep were at one time together, and that the dogs killed the sheep, it is necessary to leap over a certain portion of time and distance without any evidence concerning it. And this is all that is necessary, in order to bring those dogs of other persons that killed sheep in the same neighborhood about the same time and the plaintiff’s sheep together, and to draw the inference that these dogs killed the plaintiff’s sheep, except perhaps a greater amount of time and distance must be leaped over without exact proof concerning it. The evidence of the plaintiff in this respect, and the evidence of the defendant objected to, is in principle the same, except only in the defendant’s case there is more time and greater distance not accounted for than in the plaintiff’s case, and therefore the presumption in favor of the defendant on this evidence is weaker than the presumption in favor of the plaintiff. With regard to the other evidence we have nothing to say, and whether the finding of the jury upon the whole of the evidence was correct we have nothing to say, as we do not retry questions of fact which have been, tried by a jury. Upon the question of law submitted to us we decide as follows: When a plaintiff attempts to prove a material fact by circumstantial evidence, it is competent for the defendant to disprove the same by circumstantial evidence; and it is not necessary that the evidence of the defendant be of as high an order or as conclusive as that of the plaintiff. If it tends to disprove such fact, it is competent, if otherwise sufficient, The judgment is affirmed.
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The opinion of the court was delivered by
Beier, J.:
This sexual assault case addresses the procedure to be followed when a petition for postconviction testing of multiple items of DNA evidence has been granted.
After the district court granted Jack L. Goldsmith’s petition pursuant to K.S.A. 21-2512 for DNA testing of 35 items of evidence, the State conducted testing on only one of the items, a pair of blue sweatpants. The result of the testing was unfavorable to Goldsmith, because it showed DNA consistent with both Goldsmith and the victim, even though Goldsmith’s testimony about his activities on the day of the crime made no reference to being in the presence of the victim and the victim said she did not know him. Without granting a hearing, on unilateral request of the State, the district court dismissed the motion pursuant to K.S.A. 21-2512(f)(l). Goldsmith appealed, and a panel of our Court of Appeals reversed and remanded. We granted the State’s petition for review.
Factual and Procedural Background
In September 1998, a jury convicted Goldsmith of aggravated kidnapping, aggravated burglary, rape, and aggravated criminal sodomy. The district court imposed a sentence of 1,116 months’ imprisonment. The Kansas Court of Appeals affirmed the convictions, and this court denied Goldsmith’s petition for review. State v. Goldsmith, No. 82,065, unpublished opinion filed April 28,2000, rev. denied 269 Kan. 936 (2000).
Goldsmith filed a request for DNA testing pursuant to K.S.A. 21-2512 in 2004. And, in March 2006, the district court conducted a hearing to establish the particular evidence the State would send to the Kansas Bureau of Investigation (KBI) for testing. Eventually, the parties agreed upon 35 items, and the district court ordered the testing pursuant “to agreement of the parties.”
The State filed the KBI’s laboratory report with the district court in May 2007. The report indicated that Goldsmith’s blue sweatpants had been tested and that one sample was consistent with a mixture of DNA from both Goldsmith and the victim. In addition, the KBI attached a letter that stated it would not provide any further DNA testing in this case. The result consistent with Goldsmith and the victim meant that the testing of additional items would “not be utilizing resources wisely.”
On May 25, 2007, the district court filed an order dismissing the action pursuant to K.S.A. 21-2512, finding that the DNA testing was unfavorable to Goldsmith.
Goldsmith timely appealed to our Court of Appeals, arguing that the State breached its agreement when it failed to test all of the items agreed upon and ordered by the court. Goldsmith also argued that his due process rights had been violated, because the State stopped testing without first filing a motion and giving him notice and a right to be heard. The State argued that the district court acted properly pursuant to the clear and unambiguous Ian guage of K.S.A. 21-2512, which provides that, upon receipt of unfavorable results, the court need only dismiss and allocate costs.
The Court of Appeals’ panel ruled that the State had not fully complied with the district court’s order for testing and that it was not permitted to determine unilaterally when to stop testing the items agreed upon and ordered. In the panel’s view, the State should have filed a motion to amend the order if it wanted to stop the testing before analyzing all of the items; and the district court should have held a hearing on the motion before deciding how to proceed. Goldsmith v. State, No. 99,041, unpublished opinion filed March 6, 2009, slip op. at 12.
Analysis
The issue of whether the district court erred by dismissing Goldsmith’s petition after one item of evidence among many ordered to be tested led to an unfavorable result requires us to interpret K.S.A. 21-2512. Statutory interpretation questions are subject to unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The “fundamental rule governing the interpretation of statutes Is that the intent of the legislature governs if that intent can be ascertained.’ ” Arnett, 290 Kan. at 47 (quoting State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 [2001]). “The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” Stovall, 271 Kan. at 378. When the statute’s language is plain and unambiguous, the court is bound to apply tire legislature’s intent, and there is no need for this court to resort to any other rules of statutory construction. Arnett, 290 Kan. at 47 (citing In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 [2007], cert. denied 129 S. Ct. 36 [2008]; State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 [2004]). Only when the statute is ambiguous on its face, may the court look at the historical background of statute’s enactment, the circumstances surrounding its passage, the statute’s purposes, and its effect. Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
Goldsmith’s due process challenge to the procedure followed by the State and district court also is subject to unlimited review in this court. See State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007).
After analyzing this case under these standards of review, we hold that, rather than unilaterally stopping testing upon receipt of the unfavorable result on the blue sweatpants, the State should have filed a motion to amend the district court’s order for testing; the district court should have held an evidentiary hearing on the motion; and Goldsmith should have been present and represented by counsel at such hearing.
' The statute at issue, K.S.A. 21-2512, provides that a person in state custody for murder or rape may petition the district court for forensic DNA testing of any biological material in the State’s custody related to his or her prosecution that was either not previously tested or that should be retested because of new DNA techniques. The district court shall order DNA testing upon determination that testing may produce noncumulative, exculpatory evidence supporting a claim of wrongful conviction. The statute further provides, in pertinent part:
“(f)(1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing.
(2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).” K.S.A. 21-2512(f).
In addition, subsection (g) of the statute states: “Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.” K.S.A. 21-2512(g). We have interpreted this subsection to allow petitioners to do further testing on their own or to move for further testing by the State when, for example, testing technology changes. See State v. Denney, 283 Kan. 781, 793-95, 156 P.3d 1275 (2007) (acknowledging district court invitation to petitioner to do his own additional testing; suggesting motion should be submitted if results differ); see also Bruner v. State, 277 Kan. 603, 606, 88 P.3d 214 (2004) (new testing method requires State to preserve evidence).
Subsection (f) of the statute identifies three possible results of postconviction DNA testing: unfavorable to the petitioner, favorable to the petitioner, and inconclusive. See K.S.A. 21-2512(f); Haddock v. State, 282 Kan. 475, 495, 146 P.3d 187 (2006). It requires specific and distinct procedures for each result.
If the result of the DNA testing is unfavorable to the petitioner, the court shall dismiss the petition. K.S.A. 21-2512(f)(l)(A); see Denney, 283 Kan. at 789 (statutory intent clear; court must dismiss petition); Haddock, 282 Kan. at 496 (statute provides for certain mandatory dispositions). The plain language of the statute requires no other action in this situation, “e.g., no hearing, no presentation of witnesses, [and] no cross-examination.” See Denney, 283 Kan. at 789.
If the DNA testing result is favorable to the petitioner, the district court must order a hearing and enter an order that serves the interests of justice. K.S.A. 21-2512(f)(2); see Denney, 283 Kan. at 789 (plain language of statute requires hearing); Haddock, 282 Kan. at 496 (provisions contemplate full due process hearings; legislature granted court discretion to determine course of action that will serve interest of justice). To be “favorable,” the test result need not completely exonerate the petitioner. Haddock, 282 Kan. at 501 (district court’s demand that result be completely exonerating incorrect).
When the DNA testing result is inconclusive, the district court’s subsequent actions are discretionary: “[T]he court may order a hearing to determine whether there is a substantial question of innocence.” K.S.A. 21-2512(f)(3); see Haddock, 282 Kan. at 499 (unlike mandatory provisions of statute, provisions governing inconclusive results grant court discretion).
In Goldsmith’s case, there is no question that tire result of the test on the single item of evidence was unfavorable. The KBI found DNA consistent with both Goldsmith and the victim on the crotch of Goldsmith’s blue sweatpants. Had the district court’s order for testing been limited to the blue sweatpants, under K.S.A. 21-2515(f)(1)(A), the court would have been correct to dismiss Goldsmith’s petition with no further proceedings. But we are compelled to consider the effect of failing to test the remaining 34 items of evidence agreed upon by the parties and ordered to be tested by the court.
We first observe that, in this case, the State (through the KBI) made the determination that it should stop testing when it found the first unfavorable result. The plain language of K.S.A. 21-2512 does not place the responsibility for such a decision in the hands of the State. Rather, the statute indicates only what a court may do — i.e., the court must dismiss a petition and may assess costs if the results are unfavorable; the court may order a hearing to determine further proceedings if the results are favorable; the court may hold a hearing to determine if there is a substantial question of innocence when the results are inconclusive. K.S.A. 21-2512(f). Nothing in K.S.A. 21-2512 permits the State to take any unilateral action to limit or cease testing previously ordered by the court.
The State nevertheless contends that the one unfavorable result means that the district court did not err by dismissing the petition under K.S.A. 21-2512(f)(l)(A). But this argument ignores the fact that the testing order instructed the KBI to test 35 items of evidence, not just 1 item. A single unfavorable result was not automatically enough for the district court to dismiss the petition when 34 other items of evidence remained untested.
Our decision in Haddock is instructive. Haddock involved two separate requests for postconviction DNA testing. The first included three items of evidence that were all favorable to the petitioner. The second had at least one item that was unfavorable and two other items not considered because tire defendant had not yet made a decision whether the State should move forward with test ing of those items. The evaluation of overall favorability or unfavorability was critical. We stated: “[W]hen evidence of additional testing on the shoes and shirt are added to the mix, the court will have to make a determination as to whether the mix is favorable, unfavorable, or inconclusive.” (Emphasis added.) 282 Kan. at 503.
What was true in Haddock is also true here. The district court must ultimately consider “the mix” of evidence tested under the order when it determines whether the testing results are favorable, unfavorable, or inconclusive. Unless the order is changed, the statute demands this holistic approach.
If, in this case, the State believed the result obtained on the blue sweatpants to be so adverse to Goldsmith as to make testing of the 34 other items pointless, it was free to move for reconsideration or amendment of the order. As we observed in Koch Engineering Co. v. Faulconer, 227 Kan. 813, 830, 610 P.2d 1094 (1980), “[t]he proper manner for a party to test the validity of an order of a court is not to defy the order, but to move to have it set aside in the court which issued it or in some court having supervisoiy jurisdiction.” See also State, ex rel, v. Engler, 181 Kan. 1040, Syl. ¶ 2, 317 P.2d 432 (1957) (appropriate method for challenging validity of court order is to challenge order by moving court to set it aside). The State, or the KBI on its behalf, was not free to simply disregard the remainder of the order for testing, nor was the district court free to ignore its earlier provisions without Goldsmith’s input.
Rather, on proper motion from the State, the district court should have conducted an evidentiary hearing on the result of the DNA test on the blue sweatpants and should have permitted Goldsmith to be present with counsel. At such a hearing the parties can present their full arguments on why testing on the 34 other items should cease or continue.
In view of all of the foregoing, we affirm the decision of the Court of Appeals, reverse the decision of the district court, and remand to the district court for further proceedings consistent with this opinion.
Davis, C.J., not participating.
Michael F. Powers, District Judge, assigned. | [
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Tbe opinion of tbe court was delivered by
Klngman, O. J.:
Tbis is a motion for a mandamus to compel H. 0. Bridgman, county treasurer of Labette county, to forthwith pay several county warrants held and owned by tbe relator Nehemiah P. Elsbree. Erom tbe affidavits filed it appears that tbe county of Labette sold county bonds to provide a fund for tbe payment of certain debts of tbe county; that tbe warrants held by tbe relator are a part of that indebtedness so provided for; that tbe funds arising from tbe sale of tbe bonds have come into tbe possession of tbe treasurer, and that be still refuses to pay tbe warrants of tbe relator. Briefly, “ tbe facts show that tbe money is now in tbe bands of the treasurer, that it is due to tbe relator, and tbe treasurer refuses to pay it.” Under the- decision in The State ex rel. Meier v. McCrillus, 4 Kas., 250, tbe relator lias a plain and adequate remedy at law by a suit against tbe treasurer on bis bond, and therefore is not entitled to tbe remedy by mandamus.
Tbe counsel for tbe relator seeks to evade tbe force of tbis conclusion by an argument that may be concisely stated as follows: Tbe bonds issued by tbe county are illegal, and therefore tbe money arising from their sale did not come into tbe custody of Bridgman as treasurer so as to make bim liable therefor on bis bond. If tbis argument were conceded to be correct, it would inevitably lead to tbe conclusion that Bridgman holds tbe money as a private individual, in tbe same way as any other bailee, and not in bis official capacity. Mandamus is not a fit or appropriate remedy to enforce an ordinary bailee to execute tbe terms of tbe bailment. The bailment in such a case does not arise from any office, trust, or station. No opinion is intended to be expressed as to the validity of the bonds, or the liability of the treasurer on his bond in the premises. Such questions, unless absolutely indispensable to a decision, are more appropriately decided when the parties interested in them are before the court. It is only necessary to decide now that if Bridgman holds the money as treaswrer then the remedy of relator, according to the facts appearing in this case, by a writ on the bond of the treasurer, is plain and adequate. If Bridgman does not hold the money as treasurer then mandamus does not lie. The mandamus is refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yaíentine, J.:
This was an action upon an alleged guaranty of a promissory note. The note reads as follows-;
“$4,208.21. Leavenworth, Eeb. 8th, 1866.
Oh the first day of May, after date, I promise to pay to the order of Scott, Kerr & Co. four thousand two hundred and eight and dollars, at their office, value received. J. T. MoWhirt.” The note was indorsed as follows: “P. Fuller & Co.”
The defendants below, Perry Fuller and Alexander McDonald, who are now plaintiffs in error, were members of the firm of “ P. Fuller & Co.” The plaintiffs below, Lncien Scott and Charlotte S. Scott, (defendants in error,) are the owners of said note. The said indorsement was made after the note was delivered to Scott, Kerr & Co-
Many exceptions were taken to the rulings of the court below, and many errors are assigned in this court; but we should judge from the brief of the counsel for plaintiffs in error that all the supposed errors of the court below are now abandoned, except certain errors claimed to have been committed by the court in charging the jury. We decide the questions raised upon these instructions as follows:
Fi/rst. The indorsement of the name of a third person in blank upon the back of a promissory note is prima facie evidence of a contract of guaranty. (See cases cited in brief of counsel for defendants in error.)
Second. Such an indorsement gives to the holder of the note full authority to fill up the blank at any time, before or during the trial, with the implied contract of guaranty, unless the same is inconsistent with the understanding of the parties. (2 Kas., 497, 525; 6 Conn., 315; 17 Ill., 459, 466; 41 Ill., 411, 413; 13 Johns., 175.)
Tlwrd. It is necessary that there be a consideration to support the guaranty. An agreement to extend the time of payment of the note is a sufficient consideration to sustain» the guaranty.
Fowtli. Such an indorsement is such a contract in writing as will import a consideration; (Comp. Laws, 351, §§ 6, 7; Gen. Stat., 183, §§ 7, 8;) and if the party who made the indorsement claims that there was no consideration for the guaranty, the burden of the proof will rest upon him to show it, and he must show it by a preponderance of the evidence.
Fifth. The said indorsement is such a contract in wilting as Ta-hd under the statute of frauds. (7 Mass., 233; 4 Pick., 385, 387; 11 Mass., 436; 13 Johns., 175; 1 Hall, 336; 11 Conn., 213, 229; 2 Hill, 663; 2 Kas., 497; 2 N. Y., 226.)
/Sixth. The guarantor is not released from liability for want of presentment, demand and notice, unless he can show negligeilce fhe holder of the note, and actual loss sus-¡¡ained by himself. (2 Pars, on Notes, 137 and note b, and cases there cited.)
II. There was no evidence tending to prove that the said indorsement was not made in the firm business of P. Puller & Co.; but on the contrary, all the evidence on the ; __ t ... subject tended, to prove that it was made m such firm business. But even if there had been no evidence upon the subject, when it was admitted by Fuller, and proved against McDonald, that said firm indorsed said note, it would then be presumed that such indorsement was made in the firm business.
III. It is claimed that the court below erred in charging the jury as follows:
“ Tlie burden of proof is upon the defendant Fuller to show that there was no consideration for, or to support, the indorsement on the note.”
This instruction under the pleadings we think was correct. The plaintiffs below alleged in their petition that the said P. Fuller & Co. indorsed said note. Fuller in his answer did not deny said allegation, but substantially, if not in positive terms, admitted it. Therefore, under the pleadings, it must be held that P. Fuller & Co. indorsed said note, and presumed they indorsed it as guarantors, and upon a sufficient consideration. If Fuller claimed that the indorsement was made without a sufficient consideration, it devolved upon him to show it.
It is also claimed that the court erred iu instructing the jury as follows:
“ If the indorsement on the note was made without any consideration therefor, then the defendants are not bound thereby, and you should find a verdict in their favor. But if the indorsement was made by McDonald upon and in pursuance of an agreement between McWhirt and Scott, Kerr & Oo., that they (Scott, Kerr & Oo.) would extend the time of payment of an indebtedness, then due and existing from McWhirt to them, (Scott, Kerr & Oo.,) upon the condition that the firm of P. Fuller & Oo. would guarantee the payment of such indebtedness, and Scott, Kerr & Oo. did extend the time of payment in accordance with such agreement, then there was a sufficient consideration to support the indorsement. Or, if McWhirt, being indebted to Scott, Kerr & Co., furnished the firm of J. Í. McWhirt & Co., of which McWhirt and the defendant McDonald were members, four thousand dollars or upwards, upon the consideration or agreement that McDonald would guarantee the payment of McWhirt’s indebtedness to Scott, Kerr & Oo., and McDonald, in consideration of the money so furnished to the firm of J. T. McWhirt & Co., did indorse the note sued on, then this was a sufficient consideration to support his indorsement.”
We perceive no error in this instruction. It embodies the law upon the subject, and the evidence in the case clearly made it relevant and applicable. It says there must be a consideration for the indorsement, but that this consideration may be an agreement to"extend the time of payment of the note; and that if P. Fuller & Oo. were parties to the indorsement, it would bind them; but if instead of “P. Fuller & Oo.”it was McDonald alone who indorsed the note, the indorsement would bind him.
It is also claimed that the court erred in instructing the jury as follows:
“ The law presumes as against the defendant Fuller that the indorsement was made upon a sufficient consideration, and the burden is on him to.show the contrary; and if the testimony shows that McDonald indorsed the note, then the law also presumes as against him that his indorsement was for a sufficient consideration.”
We have already considered the principle embodied in this instruction, so far as it applies to Fuller. We shall now consider it with reference to McDonald. McDonald, who answered separately, denied in his answer that P. Fuller & Co. indorsed . said note, and hence, of course, as between the plaintiffs and McDonald, it devolved upon the plaintiffs to prove that P. Fuller & Co. made the indorsement. They held the affirmative of that issue, and the burden of proving it of course rested upon them through the entire trial. And the court below, in said instruction, says nothing to the contrary to this. The court in substance simply says that proof that McDonald indorsed the note is some evidence that there was a sufficient consideration; or rather that such indorsement is prima facie evidence of a sufficient consideration, and that after this prima facie case is made out by the plaintiffs against McDonald, it then devolves upon him to show, by a preponderance of the other evidence, that there was no consideration for the indorsement. This we think is correct. Upon the pleadings it devolves upon the plaintiffs to prove by a preponderance of the evidence that McDonald indorsed the note, and that there was a consideration for such indorsement, and the burden of proving this was upon the plaintiffs all through the trial. But after the plaintiffs proved the indorsement, and therefore prima facie proved the consideration therefor, it then devolved upon McDonald to remove this prima facie presumption in favor of a consideration by other evidence. But if the weight of the other evidence tended to prove (as in part we think it did) a sufficient consid- . eration, then of course this presumption is strengthened. If the other evidence was equally balanced, in favor of and against this presumption, then it leaves the presumption just as it was before, and the plaintiffs would still be entitled to a verdict. Hence it must take a preponderance of the other evidence in order to remove this presumption, or to entitle McDonald to recover; and therefore the burden of proof in fact (although perhaps counsel would have us call it by some’other name) rested upon McDonald to remove the presumption of consideration arising from his indorsement of said note, from the time said indorsement was proven.
It is also claimed that the court erred in instructing the jury as follows:
“ If the indorsement was made by McDonald at the time of the making of the note by McWhirt, or at any time subsequent thereto, the law presumes an engagement on the part of the defendants of the same nature as me undertaking written by the counsel during the trial on the back of the note above the indorsement; but this presumption would not be conclusive, but could be rebutted by evidence, showing an intention on the part of the defendants not to sustain the relation of guarantors to the note, but some other relation.”
The undertaking mentioned in the foregoing instruction is as follows: “For value received, we guarantee to Scott, Kerr & Oo. the payment of the within note and sum-of money therein specified, according to the tenor thereof.” And upon this same subject the court further instructed the jury as follows:
“ I have already said to you that if McDonald wrote that signature, ‘JP. Fuller c& Go.’ on the back of the note, either at the time McWhirt made the note, or after that time, the presumption of the law is that P. Fuller & Oo. were guarantors on the note; that they undertook to guarantee its payment.”
The objection to these instructions is that they declare that the simple indorsement of the name, “ P. Fuller & Oo.,” upon this note is presumptive evidence that the firm oí “ P. Fuller & Co.” were guarantors. We do not think the objection is well taken. As we have before stated, we think that said indorsement is prima facie evidence that the parties thereto are guarantors.
It is also claimed that the court erred in instructing the jury as follows:
“ As against the makers thereof the contract made by placing the signature£ P. Fuller & Oo.’ on the back of the note read in evidence, and delivering the same to Scott, Kerr & Oo., imports a consideration.”
There is nothing objectionable in this instruction. The principle involved in it we have heretofore considered.
The jury were required to make special pleadings of fact. The seventh question upon which they were to find was as follows: “ If any agreement was made between Scott, Kerr & Oo. and P. Fuller & Co., or any member of the firm of P. Fuller & Co., was that agreement in writing ?” TJpon this question tbe court instructed tbe jury as follows: “ I will instruct you “bow to answer tbat question: You will answer it by saying “ tbe only written agreement between tbe parties is tbat im- “ plied by tbe indorsement.” But by consent of counsel for all tbe parties tbe jury, instead of answering as tbe court instructed tbem, answered tbe question as follows: “Yes; tbe writing CP. F%dler <£¡ Pc.’ on tbe back of tbe note.” It is claimed tbat tbe court erred in giving tbe foregoing instruction, and tbe plaintiffs in error ask to bave tbe judgment reversed for tbat reason. We perceive no error. It may be* well enough, however, to state that another question was submitted to tbe jury to determine who indorsed said note. Tbe question was as follows: “By whom was tbe signature CP. Fuller dfc Pc.’written ?” Tbe jury answered, “By Alexander McDonald.” Tbe only object desired by putting question number seven to tbe jury was to bave a finding as to bow much of tbe contract (if any existed) was in writvng; and on tbis question there was no evidence tending to show anything different from what tbe court instructed tbe jury to find.
We bave considered all tbe questions presented to us, and we cannot say tbat tbe court below committed any error. Dpon some of tbe questions we bave doubts; upon some of tbem tbe authorities are conflicting, and able opinions may be found on both sides of tbe question. We think, however, tbat we bave decided all tbe questions in accordance with tbe weight of tbe authority. Tbe judgment of tbe court below is affirmed.
Kingman, O. J., concurring.
Brewer, D, not sitting in tbe case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by D. A. Millington & Co., to set aside an assignment of properly made by Asa Hairgrove to John H. Murphy for the benefit of Hair-grove’s creditors, on the grounds that the assignment was irregular, illegal, and made for the purpose of defrauding Hairgrove’s creditors, among which were said Millington & Co. The judgment was for the plaintiffs below; and the defendants below, Hairgrove and Murphy, bring the case to this court. They assign in their petition in error fourteen errors, but in their brief they reduce the number to six, as follows: “ lst.-The court below erred in permitting, the plaintiffs to give in evidence on the trial the declarations and statements of Asa Hairgrove, the assignor, made after the execution and delivery of the assignment to the assignee, as proof of the fraudulent intent with which the deed of assignment was made, and evidence tending to invalidate the assignment. 2d.-The court below erred in charging the jury, ‘ That an assent to the assignment means an agreement by the plaintiffs to abide by the assignment with a full knowledge of all the facts.’ 3d.-The court below erred in not allowing Rhinehart’s deposition read in evidence to be taken by the jury on their retiring to consider of their verdict. 4th.-The court below erred in refusing to submit and in not submitting to the jury the question as asked by the defendants below, to-wit: Did Murphy aecejff said assignment with the intent to hinder, delay, or defraud the creditors of Hairgrove, or either of them? 5th.-The court below erred in not granting a new trial on the grounds stated in the defendants’ motion therefor. 6th.-The court below erred in not rendering a judgment in favor of the defendants below on the findings of the jury as asked by the defendants.”
I. "We are referred to certain pages of the record as showing the first error complained of; but not one word of what Hair-grove said or declared is there proved. It is there shown that Hairgrove had money after the assignment was made, but it is shown as a fact by those who saw the money, and not by any admission or declaration of Hairgrove. This of course was competent though weak evidence. The evidence of "William Young, a witness for the plaintiffs, was objected to. It reads as follows: “Hairgrove said, these men shutting him up,” (Ms store, we suppose,) “ thought they had played it sharp, but he had money enough to buy them all. This was after the assignment.” This as evidence to prove the original case was probably not competent as against Murphy, the assignee: Bent v. McKinstry, 4 Minn., 204 to 217; Bates v. Ableman, 13 Wis., 644; Ogden v. Peters, 15 Barb., 560; Myers v. Kenzie, 26 Ill., 36. But as against Hairgrove, who was the assignor, and a party to the record, it was unquestionably competent. The theory of the plaintiffs was, that the assigment was simply a sham; that the property assigned was still in fact Hair-grove’s; that it was simply put into the hands of Murphy for the purpose of keeping it for the time-being out of the reach of Hairgrove’s creditors, but that its ultimate use and benefit was designed for Hairgrove himself. This the plaintiffs certainly had the right to prove, and as against Hairgrove to prove it by Hairgrove’s own statements and declarations. If Murphy had not been a party there could then be no question but that the evidence objected to would have been competent as against Hairgrove. While on the other hand, if Murphy alone had been the defendant the evidence would not have been competent. It follows then that the evidence should have been admitted as against Hairgrove, but excluded as against Murphy. Or rather, it should have been allowed to go to the jury, but the court should have instructed the jury to consider it only as against Hairgrove. It would also have been competent to prove Murphy’s statements and declarations as against Murphy. But Murphy’s statements and declarations would not have been competent evidence as against Hairgrove. In many cases at common law the evidence to be admissible should have affected all the plaintiffs alike, and all the defendants alike; but this was not so as a rule even in actions at common law, particularly actions of tort; and in suits in equity and in criminal actions the rule is in almost all cases directly the reverse. At common law it seems the admissions of a party to the record were in all cases received in evidence against him; (1 Greenl. Ev., §§171, 172, et seq.;) and such is probably tbe rule in equity. At least we have no hesitancy in deciding that in equity whenever the evidence offered is competent in favor of the plaintiffs and against one of two defendants, but not competent as against the other defendant, it should be received as against the defendant against whom it is competent. It will be admitted that the said evidence of "William Young was very weak even as against Hairgrove; hut it was not so wholly irrelevant that the court was bound to exclude it. The court was never asked to instruct tbe jury that it should be received as evidence against Hairgrove only; and hence we think the court committed no error in permitting it to go to the jury in the manner it did. But tbe said evidence of William Young may bave been competent in another aspect. Hairgrove himself was a witness on the part of the defendants. He testified in detail as to the amount of money he had at the time of the assignment, and also concerning various other sums of money that he was seen to have subsequent to the assignment. His whole testimony tended to show, and was evidently designed by the defendants to show, that Hairgrove did not retain any money directly or indirectly when he made the assignment. During his examination he said among other things, “ I don’t think I had five dollars in money at tbe time of the assignment.” On bis cross-examination tbe plaintiffs’ counsel asked him the following question: “In February, 1866, did you not state to William Young (at tbe same time pulling out your money,) and say, they thought they were pretty sharp, but you had lots of money, and that was not all, that you had more than all of them ?” Hairgrove answered, “I don’t think I made such a statement to William Young.” Here was an attempt to lay the foundation for an impeachment. Of course, the foundation was not broad enough; but defendants do not seem to have objected to the question asked Hair-grove, or to tbe testimony of Young, for that reason. Young’s testimony was given after that of Hairgrove, and seemingly as impeaching testimony. The trial proceeded thus: The plaintiffs introduced their evidence and then rested; the defendants then introduced their evidence, among which was Hairgrove’s testimony, and then rested; and then the plaintiffs in rebuttal introduced among other evidence the said testimony of Young. At this stage of the trial the testimony of Young could not have been received in proof of the plaintiffs’ original case, except by special permission of the court. (Comp. Laws, 169, § 277, subdiv. 3 and 4; Gen. Stat., 681, § 275, subdiv. 3 and 4.) It should have been received only as rebutting testimony, or rather as impeaching testimony; and this is probably the object for which it was offered. The defendants however instead of objecting to the evidence because it was incompetent as rebutting testimony, or incompetent as impeaching testimony, or incompetent because the proper foundation for the impeachment had not been properly laid, objected to it because “It was incompetent, irrelevant, and immaterial; that anything said or done by Hairgrove after the assignment could not affect the validity of the assignment.” That is, they seem to have objected because the evidence was incompetent to prove the original case, and such is the objection they now make to it.
II. The counsel for plaintiffs in error have not referred us to the pages of the record where the other supposed errors occur, and hence we feel under no obligation to consider them. (S\ipreme Court Eules, No. 2.) We have however carefully examined the record, although it is a very lengthy one, containing over one hundred and eighteen pages of legal cap, and think that the rulings of the court below complained of were not erroneous. The instruction complained of was as favorable to the defendants below under the circumstances of this case as they had any right to ask. The assignment was made without consulting the plaintiffs, and before they knew anything about it. If the plaintiffs ever assented to the assignment it was after it was made, without any consideration therefor, and without a full knowledge of all the facts.
III. Where all the evidence is in writing it is generally (though probably not always) the duty of the court to permit the jury to take it with them on retiring to consider of their verdict. But when it is not all in writing it rests largely in the discretion of the court whether it will permit or refuse to permit any portion of that which is in writing to be taken to the jury-room by the jury; and the supreme court will reverse the action of the district court in such cases only when it has abused its discretion. In this case the court below did not abuse its discretion.
IY. After a jury has found a verdict, returned it into court, but before it is announced, as in this case, it is hardly a proper time to ask the court to require the jury to make certain special findings. And in any case (as the law was when this case was tried) whether the court would require such special findings was purely discretionary; (Topeka v. Tuttle, 5 Kas., 312, 323; Gen. Stat., 684, § 286; Comp. Laws, 171, § 287;) and particularly so as this was an equity proceeding in which the parties were not entitled to a jury as a matter of right, and in which the court could send such issues as it chose to the jury. (Gen. Stat., 680, § 267; Comp. Laws, 168, § 275.) But it was not necessary that Murphy should have accepted the assignment with the intent to hinder, delay or defraud the creditors of Ilairgrove, or of any of them, in order to render the assignment void. This question has already been decided in this court. It was decided in the case of Kayser v. Heavenrich, 5 Kas., 324, 340, that “Neither the assignee nor the creditors are purchasers for a valuable consideration, and it is not necessary that notice of the fraud should be brought home to them to render the conveyance void.” This was decided upon the authority of the case of Flanigan v. Lampman, 12 Mich., 58, 61, and Burrill on Assignments, 438,439, and cases there cited. See also Rathbun v. Platner, 18 Barb., 272; Wilson v. Forsyth, 24 Barb., 105, 120. This rule probably applies (but we do not now so decide) only where the fraud of the assignor is proved by facts, or by the declarations of the assignor made prior to or at the time of the assignment. Wo see no sufficient reason for overruling our former decision upon this question.
No sufficient reason has been pointed out to ns why a new trial should have been granted, or why the judgment on the verdict of the jury was not correct. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case has been very ably managed in this court on the part of the plaintiffs in error. But notwithstanding the skill and ingenuity of the learned counsel who managed it, we are unable to perceive any error sufficient to reverse the judgment of the court below. It is claimed that the petition below was not sufficient because it did not state that either Ludington or Lykins were insolvent, or that the property which Seibert held as assignee of Lykins was not sufficient to pay all of Lykins’ debts. This question was not raised in the eorn-t below, and therefore it is very questionable whether it can be raised here. But suppose the question can be raised here: then, is the petition defective? Thompson’s right to have the lot applied in payment of said note is not a right that results to him originally. The right results first to Ludington, the co-surety, and through Ludington to Thompson, the creditor; and it was Ludington who first applied in this case to have said lot used in payment of said debt. Now, before Ludington can have this lot so used, must he show that he is himself insolvent? or, before this right of his is transferred to Thompson, must it be shown that Ludington is insolvent? We think not.
If it were necessary to show that Lyldns was insolvent, or that the property which Seibert held as assignee of Lykins was not sufficient to pay all of Lykins’ debts, then we think it was sufficiently shown. If such was not the case, if Lykins was not insolvent, then he had no right to assign his property to Seibert for the benefit of his creditors, and such assignment would be void being made for the purpose of hindering, delaying, and defrauding such creditors. (Comp. Laws, 568, § 2; Gen. Stat., 504, § 2; 1 Sanf. Ch., 4, 9; 3 Barb. Ch., 644, 646; 15 Barb., 56, 57, 560, 563; 18 Barb., 272, 275, 612, 614; Burt v. McKinstry, 4 Minn., 204.)
It must be remembered that in equity Shaler W. Eldridge was the principal debtor in this transaction, and that Ludington and Lykins were only sureties, though Eldridge was not a party to said note. And it must also be remembered that although this action was commenced originally as an action at law, it was afterwards on the request of Ludington converted into a suit in equity. It is a principle of equity that where the court has all the parties before it, y. -rán adjudicate upon all the rights of the parties connected with the subject-matter of the suit so far as it can, so as to avoid a multiplicity, of suits. It was proper that the court should in this suit adjudicate upon the rights of Ludington, and not compel him to first pay the debt to Thompson and then sue Lykins and Seibert for contribution. That Ludington’s right in equity to have this property applied in payment of this debt, we think is clear beyond all doubt. We coj>y the following from a note appended to the case of Deering v. Earl of Winchelsea, 1 Lead. Cas. in Eq., 162, 163, 164: “ It is a settled principle of equity that if one of several co-sureties subsequently take a security from the principal for his own indemnity it inures to the common benefit of all ^ the sureties; if therefore the principal convey prop- ' x x o x x erty by deed of trust, expressly for the benefit of one of the sureties only, the others have an equity to come upon it to the same extent that he can. Welch v. Belcher, 5 Munford, 187; McMahon v. Fawcett, 2 Rand., 514; Fagan v. Jacobs, 4 Dev. 263; Gregory v. Murrell, 2 Ire. Eq., 233, 236; Field v. Pelat, 1 McMul. Eq., 370; Hinsdell v. Murrary, 6 Vt., 136, 150; Elwood v. Deifendorf, 5 Barb., 399, 405; Rice v. Morton, 19 Mo., 263; Steele v. Mealing, 24 Ala., 285; Tyus v. De Jarnette, 26 id., 280. “ Sureties,” said Kennedy, L, “are bound to observe good faith toward each other; and when funds are placed by the principal in the hands of one surety to be apjDlied either to the payment of the debt or for the purpose of indemnifying him against any loss that may arise from the suretyship, he must be considered as holding them for the common benefit of all concerned. The giving of the funds was the act of the principal who was equally bound to indemnify all his sureties alike; and upon him, as well as to all his means for that purpose, each of them had an equal and just claim. It is unjust and. inequitable that one surety without the consent of his co-sureties should derive any exclusive benefit from the act of the principal in giving up what he might and ought to have applied for the common benefit at all.” Agnew v. Boll 4 Watts, 31, 33. Where “ one surety stipulates for a separate indemnity,” says Henderson, J., in Moore v. Moore, 4 Hawks, 358, 360, “such indemnity is reached in favor of his co-surety, upon the ground either that it was intended for the benefit of all, or that the taking it was a fraud upon the others. In such cases courts of equity convert him into a trustee, not permitting him to allege his own turpitude or selfishness as a protection, for they enter into the agreement under a belief of perfect equality, trusting apparently to the same laws of indemnity, and to the united exertions of each other to avoid harm severally; therefore for one to take a separate indemnity is a fraud upon the rest, and more especially as it lessens the ability of the principal to indemnify the others; and if taken without such secrecy, it is presumed to be designed for the benefit of all.” See also Hall v. Robinson, 8 Ire., 56. “The surety receiving securities is a trustee for his co-sureties, and is bound to such discreet and reasonable irse of them as would be required from'a trustee, but no greater.” Carpenter v. Kelly, 9 Ohio, 106. See Pool v. Williams, 8 Iredell, 286.
“ In like manner the principal creditor is in equity entitled to the full benefit of any security given by the debtor to a si:u’efy for his indemnity and for the discharge of ^he debt; and it makes no difference that such principal creditor did not act upon the credit of such security in the first instance, or even know of its existence.” Maure v. Harrison, 1 Eq. Cas. Abr., 93, pt. 5; Wright v. Morley, 11 Vesey, 12, 22; Moses v. Murgatoyd, 1 Johns. Ch., 119, 129; Phillips v. Thompson, 2 id., 418, 422; Pratt v. Adams, 7 Paige, 617, 627; Curtis v. Tyler, 9 id., 432, 435; Ten Eyck v. Holmes, 3 Sanf., 428; Roberts v. Calvin, 3 Grat., 359, 363; Toulmin v. Hamilton, 7 Ala., 362, 367; Ohio Life Ins. Co. v. Ledyard, 8 id., 866, 872; Paris v. Hulet, 26 Vt., 308; Riddle v. Bowman., 7 Foster, 236; Haven v. Foley, 19 Mo., 632; Aldrich v. Martin, 4 R. I., 520. In fact a court of equity under the title of subrogation exercises a paramount control, for purposes of justice and convenience, in resj^ect to the relation of principal and sureties. “ If property is pledged to either the creditor or a surety, though not to the person seeking to charge it, it may be reached by substitution in a court of equity, without regard to the intention of the contracting parties;” per Parker, J., in Hopewell v. Bank of Cumberland, 10 Leigh, 206, 226. See also McCollom v. Hinckley, 9 Vt., 143, 149. “This,” says Parker, J., (p. 221,) “ arises not from any notion of mutual contract between the parties, that in providing for the surety the creditor shall be equally provided for, but from a principle of natural equity, independent of contract, namely, that to prevent the surety from being first harrassed for the debt or liability, and then turning him round to seek redress from a collateral security given by the principal, a court of equity will authorize and even encourage the creditor to claim, through the medium of the su/rety, all the rights he has thus acquired, to be exercised for Ms benefit and in discharge of his obligations. This equity of the creditors rests upon the doctrine of subrogation or substitution; and therefore the creditor cannot claim the security unless the surety had a right to come upon it. Bibb v. Martin 14 S. & M., 87. Bush v. Schup, 4 Cushman, 463.” See also upon this same subject, 1 Story Eq. Jur., §§ 499 to 502; Com. Dig., Chancery 4, D. 6; Hew Bedford Savings Inst. v. Fair Haven Bank, 9 Allen, 175; Eastman v. Foster, 8 Metc., (Mass.) 19.
Now, in the light of reason and authority we are unable to see why a court of equity should postpose Ludington’s rights, and require him to set them up in another suit, when the creditor himself is willing that they be set up in this suit. And we do not think that it makes any difference whether Lykins is insolvent or not. He and his assignee hold said lot in trust for the payment of said debt.
We do not think it is necessary to decide what Thompson’s rights, independent and aside from Ludington’s rights, would be, for that question is not before us. He claims under, through, and at the request of Ludington. Therefore we do not think that it makes any difference in this suit, and as to him, whether Ludington and Lykins are insolvent or not.
The court below finds that said lot was conveyed by Deitzler to Lykins, not only to pay said note, but also to pay a debt which Deitzler owed to Lykins, and that Lykins so accepted it in payment of both debts. And upon this finding counsel for plaintiffs in error (though they made no issue of this kind by their pleadings in the court below,) refer to several authorities to show that an estate can never pass unless it be a definite and certain estate, or an aliquot part of some definite and certain estate. This proposition is admitted: and it will also be admitted that the amount of said note was not an aliquot part of the consideration or the valuation of said lot. Rut this makes no difference. It is not claimed by Ludington or Thompson that they are purchasers of said lot, or of any estate or title therein. It is not claimed that they furnished any part or portion of the purchase money. It is not claimed that they are the owners of said lot, or any part or portion thereof; and they do not seek, nor have they obtained any judgment decreeing or declaring them to be such owners. Lykins, or his assignee, is the owner of every part and portion of said lot, and all the estate therein; and all the interest that Ludington or Thompson has in it is a mere lien (which is no estate at all,) upon it for the purpose of paying said note. It is a lien similar to a mortgage lien, which in this State is no estate at all; (Chick v. Willetts, 2 Kas., 391;) or a judgment lien, or an attachment lien, or a mechanic’s lien. It is a lien upon the whole estate, but constitutes no part of the estate, and is not in amount any aliquot part of its value.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal in a case to construe the will of Sarah G. Foster after the estate had been administered and was ready for closing. Because of the importance of this case, it was set down for reargument at the November session of the court.
The three executors, who are also named as trustees in a trust created by the will, filed a motion asking that the will be construed. This motion was seconded by a motion of Miriam F. Ball — only child of the testatrix — who asked that the will be construed and also suggested that the will was invalid because it violated the rule against perpetuities. Mrs. Ball also filed a motion to transfer the within motions to the district court and this motion was allowed.
The district court after a careful hearing held that the will violated the rule against perpetuities, the rule against unlawful restraint on alienation, and the rule against unlawful accumulations.
The testatrix Sarah G. Foster had created a trust which included practically her entire estate, which is of considerable worth, and provided that Miriam F. Ball would receive an income of fourteen-twentieths (14/20) of the income for life and six-twentieths (6/20) of the income to be reinvested in the trust property or new property and that the trust should not be distributed until the time the “youngest child of the body, and not by adoption, of my daughter, Miriam F. Ball, reaches the age of twenty-three (23) years, or at the death of my said daughter, Miriam F. Ball, whichever event occurs the later, in the following manner and in the following shares, to wit:” The gift was to the children of the body of the daughter Miriam, and to any issue of predeceased children per stirpes.
The trial court held that he would simply strike out all provisions requiring that the grandchildren be twenty-three years of age and leave the provision providing that the distribution of the trust would be upon the death of Miriam.
The appellant Miriam F. Ball has appealed claiming that the will, being invalid as to the trust, cannot be made over and that the estate should descend to her as the only heir at law by intestacy.
As will appear, one of the granddaughters Marjorie McCullough Staggs was given the bank stock in the Gorham State Bank and it is agreed by the parties that this gift is entirely valid and is not challenged in this action.
The guardian ad litem attempts to show that the interest of the testatrix’s grandchildren is vested. A proposition to which we cannot agree. In the case of Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200, Mr. Justice Allen had a question of the vesting of an estate in connection with the rule against pérpetuities. At page 310, he said:
“It could be argued, however, that each grandchild living at the death of the testator would acquire a vested interest at the age of twenty-five subject to open and let in others who attain that age. (See 51 Harvard Law Rev., p. 1329, hereinafter noted.) But such interests are not vested within the meaning of ‘vested’ under the rule against perpetuities. As stated by Simes in his admirable work on Future Interest, section 499: ‘A class gift is considered as a single gift. Hence it is all good or all bad under the rule. We may therefore lay down the rule that a class gift is not regarded as vested, for the purpose of the rule against perpetuities, as long as the maximum membership of the class is not ascertained.’ The gift to the grandchildren is therefore contingent, although there was a grandchild alive at the death of the testator.” (Emphasis added.)
■ The guardian approves of the manner in which the trial court settled the controversy if the trust was, in fact, invalid as written. Lastly, and perhaps only acting as guardian ad litem, to amply represent the minor children, the guardian cross appeals as to the trial court’s position that the Sixth cause of the will, the in terrorem clause, should not be held to bar Miriam F. Ball’s interest in the estate.
It would seem pertinent to dispose of the cross appeal in short order. We adopt the rule of the Restatement of Property, section 429, which holds that a bona fide belief in the invalidity of the will and with probable cause prevents the application of an in terrorem clause as to a beneficiary under the will. As set out in the Restatement, a beneficiary who attacks a will upon rules based upon public policy is merely serving the public.
Furthermore, Mrs. Ball was not only acting in good faith but was successful in her contention. Cross appellant concedes in such a case there should be no bar.
Before turning to any other questions, we shall set out sections L and M of Paragraph Fifth of the will. It will be seen that this is the distribution section where mention is made of the grandchildren for the first and only time.
“L. The trustees shall distribute the corpus of the Trust at the following times to the following persons in the following manner, to wit:
“1. To my granddaughter, Marjorie McCullough, one-half (K) of the capital stock of The Gorham State Bank of Gorham, Kansas, in the hands of the trustees at the time the said Marjorie McCullough reaches the age of twenty-five (25) years, as her property absolutely.
“2. To my granddaughter, Marjorie McCullough, the balance of the capital stock of the Gorham State Bank of Gorham, Kansas, in the hands of the trustees at the time the said Marjorie McCullough reaches the age of thirty (30) years, as her property absolutely.
“3. Subject to The foregoing provisions for distribution, all the rest, residue and remainder of/the Trust Estate shall be distributed at the time the young est child of the body, and not by adoption, of my daughter, Miriam F. Ball, reaches the age of twenty-three (23) years, or at the death of my said daughter, Miriam F. Ball, whichever event occurs the later, in the following manner and in the following shares, to wit:
“a. To the children of the body, and not by adoption, of my said daughter, equally share and share alike.
“b. In the event any of the children of the body, and not by adoption, of my said daughter, Miriam F. Ball, die before any distribution date of said Trust, his or her share shall descend and be distributed to his or her children, and if no children, then to the surviving children of the body of my said daughter, Miriam F. Ball, equally share and share alikeTj
“M. In the event any of the trustees herein named shall predecease me or shall die before the termination of this Trust, or shall fail to qualify for their trusteeship or become disqualified to act as such trustee, I direct that his or her successor be selected from nominations made for the successor by the surviving trustees, keeping in mind to select a successor that has similar qualification to the trustee deceased or disqualified, excepting that the surviving trustees may nominate any of the beneficiaries of the Trust as successor trustee, but such selection shall not be construed as a termination of the Trust.”
There seems to be little doubt that the above provisions violate the rule against perpetuities. The “Rule Against Perpetuities” requires that property must vest within a life or lives in being and twenty-one years. See Keeler v. Lauer, 73 Kan. 388, 393, 85 Pac. 541; Gray, Perpetuities, 4th ed., sec. 201.
The mere vesting of the legal title in trustees does not satisfy the rule. See Beverlin v. First National Bank, 151 Kan. 307, 311, 98 P. 2d 200, and McEwen v. Enoch, 167 Kan. 119, 122, 204 P. 2d 736.
Moreover, where there is a possibility that vesting may occur beyond the time required in the rule then the limitation is invalid. (Beverlin v. First National Bank, supra; Gray, Perpetuities, 4th ed., sec. 214.)
Since the possibility exists that Miriam F. Ball might have another child and then die before that child reached two years of age, the rule against perpetuities is violated.
The other rules which the trial court found to be violated, namely, Illegal Restraint on Alienation and Unlawful Accumulation of Income, are in a sense akin to the Rule Against Perpetuities. All of these rules rely on the common law rule of lives in being and twenty-one years and perhaps the period of gestation as the measure of time. For authorities on unlawful restraint against alienation, see: Gray Perpetuities, 4th ed., sections 268 et seq.; Restatement of Property, 1944 Rev. section 404, et seq.; 70 C. J. S. Perpetuities, sec tion 2 (b); 41 Am. Jur. Perpetuities and Restraints on Alienation, section 85.
We now note that the Fifth section of the will provides:
“E. It is expressly ordered and directed that said trustees shall not have the power to sell any real estate situated within the State of Kansas, excepting town lots, which may be sold by the trustees without court approval or intervention if they deem it to the best advantage of the Trust Estate.”
Thus the trustees must not sell some thirty-four quarter sections of Kansas farm land during the stated period. It must then be seen that some 6,000 acres of Kansas farm land were to be held without power of alienation for more than lives in being and twenty-one years.
Paragraph Fifth D in conjunction with Paragraph Fifth I directs the trustees to invest 6/20ths of the surplus income from the trust in such manner that said income is added to and becomes a permanent part of the corpus of the trust in violation of the common law Rule Against Accumulations. See Restatement of Property, 1944 Rev. section 439 and section 441; 70 C. J. S. Perpetuities, section 32; Rogert, Trusts and Trustees, Vol. la, section 215, p. 374 et seq.
Thus, whether we view the permissible period as one governed by the Rule Against Perpetuities or by a separate Rule Against Accumulations, it is clear that a direction to accumulate for a period which may extend beyond lives in being and twenty-one years is invalid.
We believe that the trial court did not err in holding that the will as drawn violated all three common law rules.
We come now to the real question in this appeal. As noted, supra, the trust was not to be distributed under Section Fifth L. 3 until “at the time the youngest child of the body, and not by adoption of my daughter, Miriam F. Rail, reaches the age of twenty-three (23) years, or at the death of my said daughter, Miriam F. Rail, whichever event occurs the later.”
The trial court considered the intent of the testatrix to die testate and, possibly influenced by some of our cases to be noted hereinafter, simply excised the part of the above provision which provided the grandchildren must be twenty-three years old, making the trust now determinable at the death of Miriam F. Rail. Thus the will no longer violates the rule against perpetuities nor the other allied rules and the intent of the testatrix is carried out.
A majority of this court is convinced that the trial court came to the correct decision, although the reasoning might differ to some degree. The court has not overlooked the argument that the trial court simply wrote a different will for the testatrix. However, the court feels that our cases hold that an invalid provision under the rule against perpetuities may be stricken out and the valid part of the will enforced. Attention is directed to Blake-Curtis v. Blake, 149 Kan. 512, 89 P. 2d 15, where in the third paragraph of the syllabus it was said:
“Where one provision of a will is invalid because it violates the rule against perpetuities, and the testamentary scheme of the testators can be determined and carried out regardless of the void provision, that provision will be stricken out and the testamentary plan given effect.”
In Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200, the syllabus reads:
“A testator devised and bequeathed to each of his two daughters real and personal property to be held in trust until such time as each daughter should attain the age of forty years, at which time the property should be turned over to them; it was further provided that in the event of the death of either daughter without legitimate child or children of their body, the share of such daughter would go to the other living daughter, but in case of the death of either daughter leaving a legitimate child of her body, the share of such daughter should be held in trust until the period when such daughter would have attained tlie age of forty years, provided such child or children had arrived at the age of twenty-five years, if not, to be held in trust until such time as the age of twenty-five is reached. Held, the gift to the grandchildren of the testator upon attaining the age of twenty-five years violates the rule against perpetuities and is void; that if either daughter should die under the age of forty without legitimate child or children of her body, her share in the estate would go to the living daughter; that should either or both daughters attain the age of forty years the trust would terminate and the share of either or both daughters attaining such age would become indefeasibly vested.”
In McEwen v. Enoch, 167 Kan. 119, 204 P. 2d 736, it was said:
“. . . The trust having failed, what happens to the corpus of the purported trust? Clearly it was the intention of the settlor, C. M. Beachy, to give to his two grandchildren Ellen and Owen McEwen, all of his property. That is the import of the entire trust agreement. Furthermore, that intent was carried out in his will which he executed some eighteen months prior to the trust agreement, and under which the two defendants are the sole beneficiaries since their mother predeceased the testator in death.
“It is well established by decisions of this court, and by authorities generally, that where it is possible to determine the intention of the testator (or the settlor) that intention must control (Blake-Curtis v. Blake, 149 Kan. 512, 524, 89 P. 2d 15, and cases cited therein). In the instant case it seems equally clear that, the intent of C. M. Beachy, the settlor, was to make a gift of his property to his grandchildren Owen and Ellen McEwen. In his efforts to delay the time of their possession and enjoyment of the property failed because of legal difficulties, they should nevertheless become the recipients of his bounty as he obviously intended.” (p. 126.)
In the earlier case of Dreisbach v. Spring, 93 Kan. 240, 144 Pac. 195, when a portion of a will was held to violate the rule against perpetuities, it was stricken out without destroying the whole will of the testator.
Again in the Beverlin case, supra, the court dealt with how much of the will was destroyed by the rule against perpetuities. At page 312 the court said:
“2. Does the failure of the intended trust for the grandchildren destroy the prior gift to the children?
“In Gray, Perpetuities, § 247, the general rule is stated thus:
‘§ 247. (1) Effect on Prioi’ Limitations. If future interests created by any instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument. Thus, if an estate is given to A for life, remainder to his children and their heirs, but, if the children all die under twenty-five, then to B and his heirs, the limitation to B is too remote, and the children of A take an indefeasible fee simple. The cases illustrating this are innumerable. So when there is a devise on a remote condition, and no prior devise, the land descends to the heir who has an indefeasible fee.’
“The question was before this court in the recent case of Blake-Curtis v. Blake, 149 Kan. 512, 89 P. 2d 15. We there held, as stated in paragraph three of the syllabus:
’Where one provision of a will is invalid because it violates the rule against perpetuities, and the testamentary scheme of the testators can be determined and carried out regardless of the void provision, that provision will be stricken out and the testamentary plan given effect.’
“See, also, Dreisbach v. Spring, 93 Kan. 240, 144 Pac. 195.
“The general rule is that where an attempted ultimate executory interest fails in its inception because of the rule against perpetuities, the prior interest becomes indefeasible.” (Citing cases.)
We are quite well aware that under paragraph Fifth L. 3 of the will, it is provided that distribution shall take place at the time “the youngest child ... of my daughter, Miriam F. Ball, reaches the age of twenty-three . . . or at the death of my said daughter, Miriam F. Ball, whichever event occurs the later. . . .
But whatever else is true, it is also plain that the will can validly provide that distribution may be postponed until after the death of Miriam — a life in being. It comes quite readily to mind that the ideas of the testatrix can probably be carried out if the invalid pro vision as to the age o£ twenty-three years — as it relates to the grandchildren — -be stricken and the trust made to terminate at the time of the death of the daughter Miriam.
The majority of the court is of the opinion that there is ample authority in our cases and in citations made therein to hold that the trust will terminate on the death of Miriam F. Ball. Thus the court agrees with the holding of the eminent trial judge and his decision is affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal in the criminal case in which Leonard King, the appellant-defendant was convicted of keeping a room in his club where gambling was carried on all as proscribed by G. S. 1949, 21-915.
In the appeal, the abstract seems to be designed to serve this defendant and also for the appeal of Vernon King in case No. 43,271, found in 190 Kan. 825, 378 P. 2d 147, this day decided. It is difficult to separate the two appeals which were not tried together in the court below, although the state has attempted to point out the material applying to each case, and has filed a counter abstract.
We shall refer to the brief of the defendant here as the easiest place to find the objections raised in the appeal. A specification of error which is not briefed is considered to be waived. In Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, at page 531, 358 P. 2d 786, it is said:
“In defendant’s abstract are found twenty-two separate specifications of error. In defendant’s brief, only eigbt alleged errors are argued. It may be that some of the assigned errors are combined in the eight argued, but it must be noted this court has long been committed to the rule that specified errors not argued in the brief are deemed to have been waived. It is interesting to note that this rule was announced by the court as early as the case of Bailey v. Dodge, 28 Kan. 72, syl. ¶ 5, and is to be found in many of the later cases, a few of which may be cited: Tawney v. Blankenship, syl. ¶ 1, 150 Kan. 41, 90 P. 2d 1111; Sams v. Commercial Standard Ins. Co., syl. ¶ 1, 157 Kan. 278, 139 P. 2d 859; Carver v. Farmers & Bankers Broadcasting Corp., 162 Kan. 663, p. 665, 179 P. 2d 195; and Houston Lumber Co. v. Morris, 179 Kan. 564, p. 567-568, 297 P. 2d 165.”
The same rule applies to cases of criminal appeals, see State v. Owen, 161 Kan. 361, 168 P. 2d 917.
Turning to the brief, it would seem that the first question raised is the proposition that to be found guilty of running a professional gambling establishment it is necessary that the evidence show a keeper of the gambling device. It would appear clear that the game of dice which was housed in the defendant’s club was “kept” by one Johnnie Holmes. On the first night the agents visited the club, Holmes played against the agent and on the second night he deducted a dime for the house from each dollar which was put into the crap game where there was more than one playing. There was no want of a keeper from the evidence in this case.
The next matter argued was that the state wrongfully attacked the good character of the defendant. We have carefully considered the evidence in this case and we are unable to find that the good character of the defendant was wrongfully attacked. Of course, the state had the right to show defendant was guilty of a crime.
Unlawful search and seizure was the next matter raised. The appellant cites the recent case of Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. But the Mapp case differs materially from this case. Furthermore, there were no objections raised in the trial as to illegal search. And still further, most of the gambling material offered in evidence was excluded on the theory that there was no proof of where it had been since it was removed from defendant’s custody.
Evidence in the case shows that two agents of the Alcoholic Beverage Control Unit made a call on defendant’s club at about midnight and found four rooms in the club. They testified that in the second room back of the front room there existed a bar; that after buying a drink at the bar, they sat down in the front room. Around one o’clock the two agents wandered back through the bar room, through another room with tables and chairs to the fourth room where they found Johnnie Holmes and his pool table set up with dice for crap games. On the first night, one of the agents played a few times with Holmes. On the second night, the two agents arranged for a raid by police officers and came into the club at around midnight. After buying a drink, they went back for more crap shooting and were there when one of them opened the door for the raiding party.
Dealing for the moment with the question of proper search and seizure, we failed to find any unlawful action in this record. The record shows that when the police officers made the raid they came into the gaming room and found a game of craps in progress. Finding the obvious criminal conduct going on, the officers had a perfect right to seize the materials being used.
Another matter is shown in the abstract. It appears that one of the officers noted the appellant here involved had a revolver in his hip pocket. The officer took the gun from the defendant and this was shown as part of the material evidence showing defendant to be in charge of the club. No criminal charge was filed in connection with the gun. We see no error as certainly the officer had the right to disarm the defendant.
The court holds that all of the testimony and exhibits presented and admitted into evidence were rightfully admitted over any objections made.
Under the evidence the trial court could only hold the defendant guilty of the crime charged in the information. The judgment appealed from is affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
This appeal concerns an automobile collision which occurred at about 12:15 p. m. on Sunday, September 21, 1958 when plaintiff-appellant was driving a 1955 Oldsmobile east on Central Avenue in Wichita and defendant-appellee was driving a 1958 Ford from the south into the intersection of Central Avenue and Rock Road.
Central Avenue is a through street and there were stop signs on Rock Road cautioning defendant to stop before entering the intersection. Defendant testified that he had stopped for the intersec tion, when he observed a car coining at a rapid rate; that he stopped as quickly as he was able. His front end extended some two or more feet into the intersection.
Plaintiff estimated that he was driving between thirty-five and forty miles per hour. The speed limit on Central Avenue was thirty-five miles per hour. Plaintiff observed defendant as he approached the intersection; he apparently was going to stop for the stop sign; that plaintiff looked to the road to the north and saw no other car, glanced to the front again and saw defendant in the intersection or almost in it. Plaintiff tiled to stop or turn to the left but had no time; that the collision occurred and plaintiff’s car went forward to the north and finally turned over.
Plaintiff’s petition asked for damages based on injuries to the person of the plaintiff and included nothing for injury to his car. He later endeavored to amend and include damages to his car but the trial court sustained defendant’s objections to the amendment. This will be discussed later.
The case was tried to a jury which was instructed by the court and which brought in a verdict for the plaintiff in the amount of $5,000 and answered the following special questions:
“1. What was the speed of plaintiff as he approached the intersection of Rock Road and Central Avenue?
“Answer: In excess of 40 miles an hour.
“2. Where was the automobile, being driven by the defendant, when first seen by the plaintiff, C. F. Jefferson?
“Answer: Approaching the stop sign on Rock Road slowing to stop.
“3. Do you find from the evidence that plaintiff was under the influence of intoxicating liquor at the time of the accident?
“Answer: No.
“4. Was the plaintiff guilty of negligence which contributed as a direct and proximate cause of the accident and his injuries?
“Answer:' Yes.
“If so, state the acts of negligence: exceeding the speed limit.
“5. Was the defendant guilty of negligence which was a direct and proximate cause of the accident and plaintiff’s injuries?
“Answer: Yes.
“If so, state the acts of negligence: Failed to yield after stopping.”
Plaintiff moved to set aside the answer to question 4 on the ground that the negligence found was not as a matter of law the proximate cause of the accident and if this motion were not granted, plaintiff moved for a new trial.
The defendant moved for judgment on the special interrogatories notwithstanding the general verdict.
When the post-trial motions of both parties came on for hearing, the trial court overruled both of plaintiff’s motions and granted defendant judgment on the special findings notwithstanding the general verdict. Plaintiff promptly appealed to this court and urges that his motions should have been granted.
We note that the first specification of error by the plaintiff is as follows:
“1. The trial court erred in giving instruction No. 24 (which stated the ‘but for’ contributory negligence rule), because it was in direct conflict with instruction No. 25 (which correctly stated the Kansas contributory negligence rule), was an incorrect statement of the law and was misleading.”
We do find that instruction No. 24 seems to be a “but for” instruction and does not state the rule of this jurisdiction as to contributory negligence. In Townsend, Administrator v. Jones, 183 Kan. 543, at page 554, 331 P. 2d 890, it is said:
“It is argued that if the defendant had been driving his vehicle at the legal rate of speed, the decedent would have had time to cross the highway without being struck. This simply says that but for the fact that the defendant was speeding the accident would not have happened. ‘But for’ causation is not the test of liability in a negligence case. There must be more, the negligence must be the proximate cause and before a plaintiff can recover he must be free of negligence which contributed to the accident.”
And see discussion in 65 C. J. S. Negligence § 106 at p. 656, where it is said in part as follows:
“On the other hand, while that without which the injury would not have occurred is sometimes regarded as the proximate cause, strictly speaking, the two should not be confused, and the mere fact that the injury would not have occurred but for the negligence charged does not necessarily make such negligence the proximate or legal cause of the injury or a substantial factor in bringing about the injury. So, although the negligent act may have been the cause of one injury, it will not be considered the proximate cause of another injury merely because it caused or may have caused conditions which contributed to the second injury, and but for whose existence the second injury might not have happened. In order to impose liability, the negligence charged must be the causa causans, or the cause which produced the injury for which recovery is sought, and not merely the causa sine qua non.”
It must be remembered that the grave question here was whetiher plaintiff’s speed of around forty miles per hour instead of thirty-five miles per hour was the proximate cause of the accident.
Instructions No. 24 and No. 25 read as follows:
“Instruction No. 24.
“By ‘contributory negligence’ is meant the failure on the part of one who sustains injuries to use ordinary care for his own safety and by reason of which he helped to cause or bring about the injuries complained of, but for which contributory negligence at the time and place complained of the injuries would not have occurred. The burden of proving such contributory negligence is upon the person urging that claim. Contributory negligence is never presumed.
“Instruction No. 25.
“One seeking to recover damages from another upon the grounds of negligence is barred from such recovery when his own negligence contributes directly and proximately to his injury. If you find by a preponderance of the evidence that the negligence of the plaintiff was the direct and proximate cause of the collision, your verdict should be for the defendant.”
The two instructions cover much the same ground and actually are somewhat inconsistent. This inconsistency goes to the matter of defining proximate cause and under what circumstances contributory negligence is the proximate cause. We believe that instruction No. 24 is inaccurate and contrary to instruction No. 25 which seems to be the rule applied in this state.
Plaintiff also finds fault with instruction No. 14 upon the question of this matter of contributory negligence and proximate causation. Instruction No. 14 reads as follows:
“Instruction No. 14.
“Section 8-532 of tire 1957 Supplement to the General Statutes of Kansas provides, insofar as applicable:
“‘(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
‘“(b) . . . Except when a special hazard exists that requires lower speed for compliance with paragraph (a) of this section, the limits specified in this section or established as hereinafter authorized shall be maximum lawful speeds, and no person shall drive a vehicle on a highway at a speed in excess of such maximum limits.’
“The lawful, posted maximum speed limit at the location involved was 35 miles per hour.”
Here again we find no warning that such excessive speed must be the proximate cause of the accident, nor really any warning that a party would have the burden of proving, the matter of excessive speed unless it were admitted.
In view of the fault found with instruction No. 24, we find further reason for apprehension as to instruction No. 14. The instruction should be corrected as suggested.
The jury in this case cannot be drought to have understood the question of proximate cause for they found first that plaintiff was contributorially negligent and that such negligence was a proximate cause of the accident, and then gave plaintiff a judgment for $5,000.
Plaintiff argues strongly that the trial court committed error in not allowing him to amend his petition to add the cost for the damages to his automobile. We feel that the court erred in that decision. The case of Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46, appears to be almost a “bay horse” case on. the point. There is no change of cause of action in the profered amendment (Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219; Fiscus v. Kansas City Public Ser. Co., 153 Kan. 493, 112 P. 2d 83). As said in the Foster case, supra, the amendment relates back to the filing of the original petition.
We think that the question of proximate cause was a jury question, and that the instructions upon the matter were in error. We believe the case should be reversed with directions to grant a new trial. Other questions raised need not be answered since the new trial should resolve all other matters. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the state from an order of the trial court wherein appellee (petitioner) was granted a release in a habeas corpus proceeding.
On February 3, 1961, petitioner (defendant therein) was charged with compounding or concealing a misdemeanor on January 13, 1961, in violation of G. S. 1949, 21-715. On February 10, 1961, the Cloud county court found him guilty as charged and sentenced him to three months in the county jail together with fine and payment of costs. However, on that same date a bench parole was granted to him upon the terms and conditions that he was not to violate any law, he was to be home by 11:00 p. m., and he was not to associate with Raymond R. Planson. The term of the parole was for six months from the date of sentence. On June 17, 1961, four months and seven days after the date of parole, the county court revoked the parole because he had been out after 11:00 p. m., he had been in the company of Hanson, and had been convicted of a misdemeanor on June 13, 1961. He was ordered committed to the county jail to serve the original three months’ sentence. His petition for writ of habeas corpus followed.
The sole question here presented is whether the Cloud county court under G. S. 1949, 20-820, had the power and authority to set the length of time of the parole at six months when it had sentenced petitioner to serve a term of only three months. The petition for the writ was filed in the district court of Cloud county and on June 26, 1961, that court granted the issuance of the writ and discharged petitioner from imprisonment in the county jail. The pertinent part of the order of the district court reads:
“The court finds that tire County Court of Cloud County, Kansas, was without jurisdiction to .extend the term of the petitioner’s parole beyond the term of the sentence imposed.
“That the parole of the petitioner expired by operation of law on May 10, 1961, the date of the expiration of the original sentence of imprisonment.
“That the said court was without jurisdiction to order a revocation of the said parole on June 17, 1961, for violations of the conditions and restrictions contained in said parole which occurred on June 9, 1961.”
Costs were adjudged against the respondents, the state of Kansas, and the sheriff and deputy sheriff of Cloud county. They appeal from the above order and raise the question whether, as a matter of law, the district court erred in granting the writ and ordering the petitioner discharged from the custody of the sheriff.
G. S. 1949, 20-820, in substance, provides that in misdemeanor cases the county court judge may grant a parole under such conditions and restrictions as the judge shall see fit to impose and may require a bond of such parolee to abide by such conditions or restrictions. The statute further provides:
“. . . that such persons shall appear in court at such times as the court or judge thereof shall see fit, not to exceed six months, and not depart without leave of court.”
Both parties here submit there have been no cases in this state determining this question and our research has revealed none.
Petitioner contends there are other statutory provisions and cases cited thereunder with respect to other courts in this state which compel us to hold the county court cannot grant a parole for a longer period of time than the sentence imposed after the original conviction. However, G. S. 1949, 20-820, contains no such provision and we do not so interpret it. The statute is plain and unambiguous in its language and is not susceptible of more than one meaning. We cannot apply other statutes and decisions made thereunder controlling other courts to interpret 20-820 which was enacted only to control paroles to be granted by county courts and we do not think the legislature intended the statute to have the effect contended by petitioner. If such had been the legislative intention, an appropriate provision could have been incorporated into the statute, but absent such provision this court, on appellate review, is constrained to hold, as contended by the state, that the district court erred in granting the relief prayed for by the petitioner and ordering his discharge.
The petitioner is ordered to be returned to the custody of the sheriff of Cloud county to serve the three months’ sentence imposed by the county court on the misdemeanor.
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The opinion o£ the court was delivered by
Schroeder, J.:
This is an action to enjoin and restrain the use of a word in a trade name brought by a corporate plaintiff engaged in business under the trade name of “American Fence Company” against an individual doing business as the “All-American Fence Company.” The trial court entered judgment for the plaintiff and enjoined the defendant from using the word “American” in its trade name in the area of Sedgwick County,, Kansas. Appeal has been duly perfected to this court. . .
The question presented is whether on the facts in this case the trial court properly issued the injunction.
The American Fence Company of the Midwest, Inc., a corporation (plaintiff-appellee), is a foreign, corporation, incorporated under the laws of Oklahoma,’ and authorized to conduct business in Kansas, pursuant to G. S. 1949, 17-501, el seq. It has been engaged in the fence business in states other than Kansas since 1950. In July, 1957, it commenced business in Kansas as a sole proprietorship and, since June 25, 1958, has been authorized to do business in this state as a corporation, engaging in the sale and installation of domestic and industrial fences.’ It is a subsidiary of a parent corporation with offices in Phoenix, Arizona, having ten separate corporations doing business in eight different states, all being titled under varying corporate names depending on the geographical area, such as “American Fence Company of the Southwest, Inc.” or “American Fence Company of the Midwest, Inc.” etc. The distinctive part of the name being used in this and other corporations is the word “American.”
Raymond Gestes, the principal defendant and appellant, is an individual doing business as the “All-American Fence Company.” He is a resident of Oklahoma City, Oklahoma, and began operations under his trade name in that city.in 1954. He also operates under the same trade name in St. Louis, Missouri; Indianapolis, Indiana; Louisville, Kentucky;. Chicago, Illinois; and Wichita, Kansas.
Mr. Gestes entered into competition with the plaintiff in January or February, 1961, in the sale and installation of fences of all kinds in the Wichita area. His agent and branch manager in Wichita is W. E. Charles, defendant-appellant. Mr. Charles negotiated for a listing and advertising space in the classified section of the Greater Wichita telephone directory to appear in the April, 1961, edition of the directory.
This action was brought in equity against Raymond Gestes, d/b/a All-American Fence Company; W. E. Charles; and Southwestern Rell Telephone Company, Inc., a corporation, to restrain and enjoin Gestes and Charles from using the word “American” in conjunction with their fence business, and the telephone com pany from publishing any such name in their telephone directory in the city of Wichita, Kansas, and for damages for the infringement of the plaintiff’s rights and other equitable relief.
Upon joinder of issues by the pleadings, the case went to trial where the damage phase of the litigation was virtually abandoned by the parties. No cross-appeal has been taken from the failure of the trial court to award damages.
In addition to the foregoing facts the evidence established considerable confusion between the two fence companies. Telephone calls were misdirected; mail was misdirected; and on one occasion a contract was brought into the wrong office by a customer. Customers experienced considerable confusion because the word “American” was in both names. One woman testified drat a brochure used by the All-American Fence Company in advertising led her to think she was dealing with the American Fence Company. The calling card was clipped over the word “All” in the brochure so it appeared that she was dealing with the American Fence Company.
The plaintiff’s Wichita manager indicated that the name “American Fence Company” was substantially advertised for three years in newspapers, telephone directory, stationery and at plaintiff’s business establishment, and that prior to the defendants’ coming to Wichita in January, 1961, there had been no confusion with any other company in Wichita, but that subsequent to the defendants’ arrival and advertising, the plaintiff had received numerous misdirected telephone calls and had encountered confusion in calling upon customers. He testified the plaintiff had experienced a business decrease in the amount of $6,000 during the three or four months after the defendant commenced competing, based on a comparable period of the past three years. The plaintiff had decreased its number of employees during this period as a result of the loss of business. Both companies, advertised in the classified section of the telephone directory, the All-American Fence Company being listed ahead of the American Fence Company.
The plaintiff’s Wichita manager further testified that the term “American” was stressed in its advertising, and that it had for several years used the abbreviated form of its corporate title, “American Fence Company,” to its customers and the general public, which has become generally well known and accepted. On its letterhead stationery and other literature to prospective customers, the plaintiff, however, used its registered corporate designation, “American Fence Company of the Midwest, Inc.”
The defendants, Gestes and Charles, took the position in their pleadings that the term “All-American” was a separate and distinctive term as defined in Webster’s Dictionary and as understood by the public. By their evidence they attempted to show that all their advertising material, except their post card, bears a distinctive representation of a figure in a football' uniform in position to throw a pass. It appears, however, that in some of the defendants’ newspaper advertising copy the football player was omitted.
The appellants specify that the trial court erred (1) in overruling their demurrer to the plaintiff’s evidence; (2) in finding the evidence sufficient to support the judgment; and (3) in overruling the defendants’ motion for a new trial. All resolve into the ultimate question whether the trial court on the facts in this case properly issued the injunction (also specified as error).
Each case of this type necessarily depends upon its own peculiar facts. (Milling Co. v. Flour Mills Co., 89 Kan. 855, 133 Pac. 542.)
In Powell v. Valentine, 106 Kan. 645, 189 Pac. 163, it was said “that it is the duty of a subsequent trader, coming into an established trade, not to dress up his goods or market them in such a way as to cause confusion between his goods or business and that of a prior trader.” (p. 648.)
The Federal Court in Florence Mfg. Co. v. J. C. Dowd & Co., 178 Fed. 73, had a case from New York in which it was sought to prevent the use of the name “Sta-Kleen” in the sale of tooth brushes as unfair competition to a company manufacturing and selling tooth brushes under the name of “Keepclean.” The court said:
“We cannot resist the conclusion that the defendants take too narrow a view of the law as it relates to unfair competition. The law has a threefold object: First, to protect the honest trader in the business which fairly belongs to him; second, to punish the dishonest trader who is taking his competitor’s business away by unfair means; and, third, to protect the public from deception.
“It is so easy for the honest business man, who wishes to sell his goods upon their merits, to select from the entire material universe, which is before him, symbols, marks and coverings which by no possibility can cause confusion between his goods and those of competitors, that the courts look with suspicion upon one who, in dressing his goods for the market, approaches so near to his successful rival that the public may fail to distinguish between them. The law is not made for the protection of experts, but for the public — that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearances and general impressions. . . .
[Citing cases.]
“The argument in these cases is a simple one: Where the defendant has so dressed his goods that they may be mistaken for the goods of the complainant his motive in so doing is either honest or dishonest; if honest, he should stop voluntarily; and, if dishonest, he should be compelled to stop.” (pp. 75, 76.)
The considerations taken into account by a court to determine whether a trade name used in connection with a business is entitled to protection upon the ground of unfair competition are fully discussed and applied in Milling Co. v. Flour Mills Co., supra. Other Kansas cases which have dealt with this subject are Powell v. Valentine, supra; and Middlebrook v. Winterscheidt, 118 Kan. 731, 236 Pac. 825.
The decision in a case of this type is affected by the character of the names as well as by their degree of resemblance. The degree to which the similarity of names will naturally tend to deceive a reasonably intelligent and careful person is undoubtedly the vital question on which the controversy turns. That question is essentially one of law rather than of fact.
The probability of injury resulting from the use of the two names is the test to be applied by the court for the purpose of deciding whether or not the names will conflict.
Where a word or term selected for a name used in connection with a business is arbitrary or fanciful, it is more readily entitled to protection because it acquires a secondary significance in connection with the business — that is, where by long or extensive use in the business the name has become descriptive of the goods produced or handled. In such instance the user is held to have acquired what amounts to a proprietary right to it, so that he may prevent a competitor from using it.
Similarly, where long or extensive use has been given to a geographical term and it has acquired a secondary significance in connection with a business, so that it has become descriptive of the goods produced or handled, the user is entitled to protection. (See Northwestern Knitting Co. v. Garon, 112 Minn. 321, 128 N. W. 288.)
But ordinarily a geographical term, which indicates the boundaries of activity or location of the business and thus has a relation to the matter involved, is merely a descriptive word or term and does not entitle the user to protection. This was the situation in Milling Co. v. Flour Mills Co., supra, where the word “Kansas” was held merely to be a geographical descriptive word and, on the facts in the case, the user was not entitled to prescriptive rights.
The selection of descriptive words having a broad general meaning (rather than fanciful or arbitrary words) in a business name do not ordinarily acquire a secondary meaning and do not entitle the user to protection. Thus, in Milling Co. v. Flour Mills Co., supra, the word “milling” was purely descriptive of the business as was also the term “flour mills” used by a later rival in the same business. The court recognized that “The phrase ‘flour mills’ doubtless differs as much from ‘milling’ as any term that could be selected to indicate the character of the business.” (p. 857.) (Emphasis added.)
The locality in which two businesses operate is an important element in determining the rights of the parties where trade names conflict. In Powell v. Valentine, supra, it was recognized that if two newspapers, having identical names, do not reach the same territory and are not read in the same community, no loss results. Here, the two fence businesses operate in the same trade territory— Wichita, Kansas, and the surrounding area.
Other cases cited by the parties involving trade name rights and having a bearing on the doctrine of unfair competition are American Automobile Ins. Co. v. American Auto Club, 184 F. 2d 407; Hygrade Food Products Corp. v. H. D. Lee Mercantile Co., 37 F. 2d 900; Friedman v. Sealy, Incorporated, 274 F. 2d 255; Belvidere Co. v. Owen Park Plaza [1960], 362 Mich. 107, 106 N. W. 2d 380; Amer. Radio Stores, Inc., v. Amer. R. & T. Stores, Inc., 17 Del. Ch. 127, 150 A. 180; Metal Craft Co. v. Metalcraft H. Corp., 255 Mich. 642, 239 N. W. 364; and Automobile Assn. v. Automobile O. Assn., 216 Cal. 125, 13 P. 2d 707.
The appellee herein submits that it is not attempting to acquire any prescriptive rights to a purely descriptive or geographical term such as “Kansas” or “Midwest” or to the words “Fence” or “Company.” It concedes a geographical term or a name merely descriptive of the business carried on, in the absence of aggravating circumstances, cannot be exclusively appropriated as against others who can and do use the name with equal truth.
The mere use of a name which competitors have a right to use does not in and of itself constitute unfair competition. This was illustrated in Florence Mfg. Co. v. J. C. Dowd & Co., supra, heretofore quoted, where “Sta-Kleen” and “Keepclean” were held to be descriptive merely and not the subject of a valid trademark, but where the business rival printed “Sta-Kleen” in the same red letters and dressed the product in a package of the same character for sale in the same trade territory as that used by the complainant, it constitutes unfair competition. (See, also, Collegiate World Pub. Co. v. Du Pont Pub. Co., 14 F. 2d 158.)
The appellants contend the word “American” is a geographical designation, but insist the term “All-American” is a trade name of an arbitrary and fanciful character, because it is employed in connection with the representation of a football player which suggests general excellence, rather than a purely geographical connotation.
The term “of the Midwest, Inc.” in the appellee’s corporate tide has a real relation to the business involved and such name could not be protected; but the word “American” on the facts in this case has no real relation to the business involved, and is, in our opinion, an arbitrary and fanciful word which has acquired a secondary meaning in connection with the appellees’ fence business.
A distinction must be recognized between different geographical terms, according to their descriptive quality, the desirability of their use, and their connection with the subject to which they are applied. (Milling Co. v. Flour Mills Co., supra, p. 860.) Here the word “American” is indefinite when translated in terms of the appellee’s business, its location and area of activity; and its classification as a descriptive or geographical term is unwarranted. The word “American” is so broad that it is not descriptive of the business in any just sense as we view the facts in this case.
A competitor was enjoined from using the word “American” in a trade name on the facts in Shaver v. Heller & Merz Co. [8th C. C. A.], 108 Fed. 821; and from using the term “United States” or the letters “U. S.” in a name to engage in the practice of dentistry on the facts in Cady v. Schultz, 19 R. I. 193, 32 A. 915.
In the instant case the chiefly significant word in each of the trade names is “American.” The appellants’ prefix “All” in the term “All-American” is relatively insignificant. We think the similarity of names will naturally tend to deceive a reasonably intelligent and careful person. For all practical purposes the significant words are identical.
The appellants complain that the trade name used by the ap pellee in connection with its business is. different from its corporate name registered with the Secretary of State, and under which it is authorized to do business in the state of Kansas. They rely on Kansas Milling Co. v. Ryan, 152 Kan. 137, 102 P. 2d 970, and the provisions of the Kansas corporation code.
Under G. S. 1949, 17-2802, the articles of incorporation are required to set forth the corporate name of every corporation organized in the state. It must be followed by the word “Incorporated,” or by the abbreviation “Inc.” Foreign corporations are subject to the same provisions as domestic corporations (G. S. 1949, 17-505).
From the foregoing it is argued the appellee is not entitled to conduct its business under a trade name in addition to its corporate name and title; and, therefore, the appellee has no right to seek equitable relief because it has “unclean hands.” We fail to see merit in this argument.
Nowhere in the corporation code (G. S. 1949, 17-2501, et seq.), or anywhere else in our statutes, can we find any requirement that a corporation should use its entire corporate name, as registered with the Secretary of State, in its advertising or in the general conduct of its business.
It is necessary for a corporation to use its full registered name on all of its conveyances, contracts and other legal matters, just as it is required to use its seal, but not so in its advertising and contact with the general public in carrying on its business. In Kansas Milling Co. v. Ryan, supra, the court merely holds that after a corporation has been organized and its name registered as required by law, it cannot later by an action in mandamus force the Secretary of State to grant it the right to conduct its affairs under several other names totally different from its corporate name by the amendment of its articles of incorporation and have such other names also registered. Nowhere does the case hold that a corporation cannot use a contraction of its full name in an honest manner in its advertising and ordinary business transactions, outside of legal contracts, conveyances and similar matters.
In Kansas Milling Co. v. Ryan, supra, the court quoted from 6 Fletcher’s Cyclopedia Corporations (Perm. Ed.), p. 87, et seq., § 2442, to the effect that it was well established, in the absence of statutory prohibition, that a corporation may have and be known to the public by more than one name, and that, in addition to the name given it by its charter, it may acquire other names by user or reputation. After such quotation the court went on to say “The general corporation code [of Kansas] has no provision expressly prohibiting the use of trade names, and whether a corporation may do so is to be determined from the code generally.” (p. 144.)
In the foregoing case the plaintiff wanted authorization to use six entirely different names by the inclusion of such additional names in its articles of incorporation, while in the instant case the appellee is using the trade name of “American Fence Company,” which is merely a contraction of its registered corporate name, “American Fence Company of the Midwest, Inc.” This is commonly done by many corporations, a fact concerning which this court may take judicial knowledge. A few of the well-known assumed or contracted forms of corporate names are: “Bell Telephone Company,” “Sears,” “Coleman,” “G. E,” “U. S. Steel,” “R. C. A.,” “A. B. C.,” and “N. B. C.”
The evidence in this case established that the principal parties were each engaged in the sale and installation of domestic and industrial fences; that the appellee had adopted and used the trade name, “American Fence Company” long prior to the appellant; that it continued the use of such name in connection with its business for a period of years in the Wichita trade area; and that the appellants entered the Wichita trade area and began competing with the appellee in business under the trade name “All-American Fence Company” long after the appellee had established its business in this trade area.
The trial court found generally for the appellee and no request was made for specific findings of fact by the appellants. Under these circumstances a general finding made by the trial court determines every controverted question of fact in support of which evidence has been introduced and raises the presumption that all facts necessary to sustain and support the judgment have been found. (Smith v. Smith, 186 Kan. 728, 352 P. 2d 1036; Commercial Savings & Loan Ass’n v. Curts, 187 Kan. 18, 354 P. 2d 86; and Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878.)
We therefore hold that the appellee by its prior adoption of the name “American Fence Company,” and its continued use for a period of years, acquired trade name rights therein and is entitled to protection under the doctrine of unfair competition. The appellants’ use of the name “All-American Fence Company” is likely to cause confusion in the trade, deceive the public, and substantially prejudice the rights of the appellee who is dealing in similar products and services in the same trade area.
It cannot be said that the trial court erred in any of the particulars specified. Error is never presumed. The burden was on the appellants to make it affirmatively appear' that there was reversible error in the record. (Jocich v. Greyhound Cab Co., 188 Kan. 268, 362 P. 2d 27; and Folkerts v. Kansas Power & Light Co., 190 Kan. 159, 372 P. 2d 997.)
The judgment of the lower court is affirmed.
Wertz, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal in a negligence action, involving alleged defective wiring of plaintiff’s home by defendant, is from the order of the trial court refusing the proffer of certain evidence by defendant, from an erroneous instruction to the jury, from orders of the trial court overruling defendant’s objections made during the trial, from the general and special verdicts returned by the jury, and finally, from the trial court’s order overruling defendant’s motion for new trial.
While neither of the parties raises the jurisdictional question, on a record such as is here presented this court must first determine its appellate jurisdiction. The notice of appeal, as above stated, included the trial court’s order overruling defendant’s motion for new trial, but the specifications of error include only the following:
“No. 1. The trial court erred in giving instruction No. 7, permitting the jury to find for the appellee for breach of contract, for the reason that the appellee stated a cause of action on the theory of negligence only.
“No. 2. The trial court erred in overruling the objection of the appellant to a hypothetical question answered by James Andrisevic for the reason that there was no foundation for such question.
“No. 3. The trial court erred in sustaining an objection of the appellee to testimony of Fire Chief George Casey, an expert witness, concerning a defective furnace for the reason that there was ample foundation for such question.
“No. 4. The trial court erred in not permitting the introduction of the Underwriters Laboratory code in conjunction with the testimony of Mr. James Walker and Fire Chief George Casey, and for the purpose of impeachment of witnesses of the appellee.”
Nowhere in the above specifications of error does appellant specify as error the trial court’s order overruling its motion for new trial. In Clarkson v. Mangrum, 186 Kan. 105, 348 P. 2d 607, the jurisdictional question was raised and determined because while, as here, only trial errors were involved, the notice of appeal indicated it was taken from the judgment of the trial court and not from the order overruling the motion for new trial. This court, in stating that such rulings are not subject to appellate review unless they are included in the notice of appeal, further stated:
“See, also, State, ex rel., v. Miller, 177 Kan. 324, 279 P. 2d 223, which holds that errors, relating to matters occurring at the trial and for which a new trial is asked, cannot be considered on appeal unless the ruling be included in the notice of appeal and specified as error in the appellant’s abstract of the record.” (Our emphasis.) (p. 106.)
For numerous other decisions where the foregoing rule has also been considered, discussed and applied see cases cited at page 107 of the Clarkson opinion.
In view of the above authority setting out the cardinal rule strictly adhered to by this court, we must conclude we have nothing here for appellate review.
Appeal dismissed. | [
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The opinion of the court was delivered by
Jackson, J.:
In this appeal, the appellant as plaintiff in the court below brought an action for declaratory judgment and injunctive relief against the Sedgwick county board of commissioners and the county zoning administrator to enjoin defendants from requiring plaintiff to cease and desist from constructing buildings and operating a hog farm within the three-mile zoning belt of Wichita.
The lower court refused the relief prayed for by plaintiff and he has appealed to this court.
The statute which provides the authority for the three-mile zoning belt around cities in Kansas is found in G. S. 1961 Supp., 19-2927, et seq. In section 19-2929 we find the following provisions:
“For any or all of said purposes the county commissioners may divide the unincorporated territory into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act and, within such districts, they may regulate and restrict the erection, construction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations of one district may differ from those in other districts. No regulations shall apply to the use of land for agricultural purposes nor for the erections or maintenance of buildings thereon as long as such buildings are used for strictly agricultural purposes.” (Emphasis added.)
The real question then in this appeal is whether plaintiff’s hog raising and feeding operations come within the term “agriculture” and whether his proposed buildings were designed strictly for agricultural use.
For many years plaintiff owned and operated a farm just south of Wichita which must have been within the zoning belt. Highway No. 81 had cut through plaintiff’s farm and therefore he purchased the new farm of 160 acres to the north of Wichita which was near the boundary of the zoning belt but was still zoned for residential purposes. It is said that this section is given over to agricultural pursuits and that two hog feeding farms are located nearer to Wichita than is plaintiff’s quarter section.
At the trial, plaintiff testified that he was a 1918 graduate of Kansas State Agricultural College, now Kansas State University; that he had been a resident of Sedgwick county since 1912; that he was a graduate in animal husbandry and that he had raised hogs since 1918 except when he had been in the army and at school. He further testified that he had owned the two 80-acre tracts south of Wichita since 1936. He told of the scientific way of feeding and raising hogs and said he had constantly tried to improve his methods. He said also that he usually buys two groups of hogs a year, keeping each group 90 to 120 days before selling them. Thus for about six months of the year he has no hogs whatever. He said the most he has had was 2,000 hogs and that the very maximum would be 2,500. Recause of the quality of his hogs, many of them go to anti-serum manufacturers but they are fed the same as hogs for butchering and, of course, serum hogs are also slaughtered for meat.
Dr. C. E. Aubel, professor of animal husbandry at Kansas State University was the next witness on behalf of plaintiff. The witness testified definitely that animal husbandry is included within the term “agriculture.” Dr. Aubel was followed by A. G. Pickett, who has been State Livestock Sanitary Commissioner for twelve years. Mr. Pickett testified especially as to the scientific methods used in the operation of plaintiffs farm.
All of the evidence in opposition to that of plaintiff was put on by the intervening defendants, who seem to be landowners in the vicinity of plaintiff’s new farm. The burden of the testimony was that hog feeding was apt to be unsanitary and might well cause a loss of real estate values. We note that plaintiff had testified he was planning to build a twenty-five thousand dollar house opposite the only house on land adjoining plaintiff’s farm.
It should be noted that defendant’s evidence was not directly upon the point of whether plaintiff’s hog operations were included within the term “agriculture.” The zoning resolution of Sedgwick county is very careful to exclude agriculture from all prohibitions, and further the resolution defines agriculture as follows:
“Agriculture: Includes farming, dairying, pasturage, apiculture, horticulture, viticulture, animal and poultry husbandry, and the sale of such products by one engaged in agriculture as herein defined.”
It is elementary law that powers granted to municipal corporations are strictly construed, and this has been applied to the area of zoning. In Julian v. Oil Co., 112 Kan. 671, 212 Pac. 884, the first paragraph of the syllabus reads as follows:
“Express legislative authority is necessary to give cities the power to create zones or restricted residence districts within a city whereby owners of lands therein shall be prohibited from constructing business houses in which to carry on legitimate lines of business.”
See also, 8 McQuillin, Municipal Corp. sec. 25.58, p. 124.
From all that has been said, we would have difficulty in holding that plaintiff’s business is not within the general realm of agriculture. The trial court held that the business was commercial in nature rather than agricultural. It is generally true that all agricultural products be they crops or livestock are raised and kept until ready for sale. Crops are often thought to bring more by marketing them “on the hoof.”
We shall have to agree with Dr. Aubel of Kansas State that in Kansas, agriculture includes animal husbandry — the raising and feeding of livestock. We cite the following cases from other states which seem to agree with the above holding. See: Moulton v. Building Inspector of Milton, 312 Mass. 195, 43 N. E. 2d 662; Davis v. Ind. Com., 59 Utah 607, 206 Pac. 267; Rocky Mountain Dist. v. Hix, 136 Colo. 316, 316 P. 2d 1041.
Having reached the above decision, the appeal herein would appear to require a reversal of the trial court’s judgment. The defendant had no right under the statutes of this state nor the resolutions of the county to interfere with the plaintiff’s agriculural business. Plaintiff is entitled to the injunctions prayed for in his petition.
The judgment of the district court is reversed, with directions to proceed in accord with the opinion herein. It is hereby so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for the alleged negligence of defendant, Roger Kent Weatherby, in backing his car into an electric gasoline pump owned by plaintiff.
Judgment was for defendant, and plaintiff has appealed.
As the case is presented to us, the underlying question is whether the verdict is supported by the evidence. Stated another way — the question is whether the verdict is contrary to the evidence.
Highly summarized — the petition alleges:
Both plaintiff and defendant are residents of Neodesha. Plaintiff is the owner of the premises and equipment leased for purposes of a gasoline filling station. On the night of February 13, 1960, defendant backed his car into an electric gasoline pump owned by plaintiff and being used at the filling station. As a result the pump was knocked over, bent, smashed, damaged and rendered substantially valueless. Defendant was negligent in that he failed to observe the pump; failed to keep and maintain a reasonable and proper lookout, and carelessly failed to keep his car under reasonable and proper control so as to enable him to avoid colliding with the pump. As a result of defendant’s negligence plaintiff was damaged in the amount of $686.95, and recovery was sought in that amount, together with costs.
The answer is not abstracted, but we are told it consisted of a general denial and an admission of the identity of the parties and their addresses.
Because of the disposition we believe must be made of this case —the evidence contained in the record is set out in full.
From the abstract:
“Testimony of Lester M. Hoff.
“Lester M. Hoff testified that he was a resident of Neodesha and that on 13th day of February, 1960, he was employed by the City of Neodesha, in the Police Department, and that he investigated the wreck in question immediately upon being notified of same, that he noticed the pump knocked over cock-eyed and they couldn’t use it any more, and that he had a conversation with the defendant as follows:
“Direct Examination.
“Q. Did you talk with Roger Kent at the scene?
“A. Yes, sir.
“Q. What was said, if anything?
“A. He said he backed into it (the pump), wasn’t watching where he was going.
“Q. Did you make an arrest at the time?
“A. No, I didn’t.
“Q. What was the reason you did not?
“A. He said he would take care of it.
“Testimony of Roger Kent Weatherby.
“Roger Kent Weatherby testified on direct examination that he lived in Neodesha, and that he was the defendant in this action and that he was the party involved in the accident at Tom Adam’s gasoline station.
“Direct Examination.
“Q. Tell the Court and jury if you will, Mr. Weatherby, what happened that night as you remember it?
“A. As best I recall, it was about ten-thirty at night and I was going home about to run out of gasoline, so I drove into a truck stop to get some, and I pulled away from the pump too far when I drove in; I was probably ten feet from the pump, and it was cold, and my windows, back windshield, was frosted over, and when I went to back up, I tried to look out the back windshield and my back bumped.
“Cross Examination.
“Q. You are not denying that you hit the pump are you? “A. No, I am not.
“Q. And you say you backed up and you didn’t look where you were backing?
“A. I was looking out the rear-view mirror — out the rear window, it was fogged over.
“Q. What side of the pump were you when you were backing?
“A. The north side.
“Q. The north side?
“A. Yes, sir.
“Q. You were looking out your right window?
“A. The rear window.
“Q. It was frosted over, is that right?
“A. Yes.
“Q. You didn’t have any side mirror on this car?
“A. Yes there was.
“Q. Did you look in that?
“A. No I wasn’t.”
From the Counter abstract:
“Testimony ov Roger Kent Weatherby.
“Direct Examination.
“Q. (By Mr. Rogers) Was there anyone there standing outside of the station?
“A. Yes.
“Q. Did you feel he was the service station attendant?
“A. He was.
“Q. Did he say anything further at that time?
“A. On the way back to the building he said. ‘We wanted a new pump and now we got one.’
“Q. Now Mr. Weatherby, there has been some testimony put on by the plaintiff, Mr. Hoff, who was at that time on the police force and was apparently the'officer called; he testified that you told him that you would take care of it.
“A. What happened was he came down and said, T know the boy’s father’ and ‘It would be taken care of.’ I didn’t say anything. . . .”
The instructions are not abstracted.
We are told that no special questions were submitted.
The jury returned the following verdict:
“We, the jury, impaneled and sworn, do upon our oaths find for the defendant, not guilty.”
Two of the grounds of plaintiffs motion for a new trial were that the verdict was given under the influence of passion or prejudice, and that it was contrary to the evidence.
The motion was overruled, and the order thereon recites:
“The court, after hearing the argument of counsel and being fully advised in the premises, finds that the motion should be over-ruled. The court further finds that he is satisfied with the verdict rendered in this matter.”
Plaintiff contends that, even disregarding his evidence, the testimony of defendant himself establishes beyond question that he, defendant, was negligent in backing his car into the pump and therefore the verdict is clearly contrary to the evidence, and that it was error for the trial court to approve it and enter judgment thereon.
Defendant contends that by its verdict the jury resolved all questions pertaining to negligence and alleged damage in his favor; that judgment on the verdict was properly entered, and that plaintiff’s motion for a new trial was correctly overruled.
Before discussing specifically the record presented, we mention a few general rules which are so fundamental and elementary as to require no citation of authority.
Negligence is never presumed, and in a negligence action the burden is upon a plaintiff to establish by a preponderance of the evidence both negligence and the resulting damage. By its general verdict a jury is presumed to have found all issues in favor of the prevailing party, and, a finding below, supported by evidence — although contradicted by other evidence — will not be disturbed. On appeal, error below is never presumed and the burden is upon an appellant to make it affirmatively appear. This court does not weigh evidence, and its duty is to examine the record to ascertain if there is any evidence — although disputed — to support the finding below. Generally speaking, on appeal, the action of a trial court in approving a verdict is to be given great weight.
By its verdict in which it found the defendant “not guilty,” we assume the jury found defendant “not guilty” of negligence — despite the fact the evidence in the record before us establishes conclusively that defendant backed his car into the pump. He admitted he did so. If there was any evidence to the contrary it should have been included in the counter abstract. It is not contended that plaintiff did not own the pump. We are not concerned here with the matter of damages, but on the negligence feature of the case just how the
Notwithstanding the force and effect of the aforementioned general rules — including the weight to be given the fact that here the trial court approved the verdict — it is our opinion that on the record presented, and which has been quoted in full, this verdict is not supported by any evidence and is in fact directly contrary to the evidence.
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. (In re Estate of Erwin, 170 Kan. 728, syl. 1, 228 P. 2d 739.)
In A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204, it was held:
“Whenever the verdict of a jurj', or any necessary and material fact involved in the verdict, is not sustained by the evidence, or by any sufficient evidence, the supreme court will set it aside and grant a new trial, although the verdict may have been approved by the trial court.” (syl. 8.)
In Dewey v. Barnhouse, 75 Kan. 214, 88 Pac. 877 (although having to do with special findings), it was held:
“Where in a trial by a jury special findings of fact are returned with tire general verdict, and it appears from the answers to the special questions submitted that the undisputed evidence in the case was disregarded to such an extent as clearly to indicate that the case was not fairly considered, the verdict and special findings should be set aside and a new trial granted.” (syl.)
In Collins v. Morris, 97 Kan. 264, 155 Pac. 51, it was held:
“While it is not the province of this court to weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict; and in this case the court determines the verdict is contrary to the evidence and therefore the judgment is reversed.” (syl. 6.)
On the proposition that where a verdict is contrary to or not supported by the evidence, it should be set aside and a new trial granted, see also the numerous cases cited in Hatcher’s Kansas Digest, Rev. Ed., Volume 4, New Trial, §§ 22 and 24.
On the record presented this verdict is not supported by any evidence and is in fact directly contrary thereto. It was, therefore, erroneously approved by the trial court. The judgment is reversed with directions to grant a new trial.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
Mary A. Jones, plaintiff (appellee), on behalf of herself and all other stockholders of The Kansas City Embalming and Casket Company, a corporation, doing business as J. W. Jones Funeral Home, brought this action in the district court of Wyandotte county against defendants (appellants), the mentioned casket company and Eugene English, individually as president of the defendant corporation, to compel the defendants to render an accounting of all monies, funds and resources of the corporation, and for other equitable relief.
Following the filing of the action, Sally Allen, I. F. Bradley, Jr., Adolphus Ewing, Walter Groves, Virginia Jones Griffin and Foster White intervened, claiming ownership of various shares of stock and seeking to be declared stockholders, and sought to compel the disclosure of receipts and disbursements of the corporation since its organization, the profits that have been made out of the business, the amount of dividends paid, and requested full restitution of alleged misappropriated funds. The intervenors further sought to require the corporation to produce its books and records for inspection and to recover dividends to which they are entitled from the company as the alleged owners of various shares of stock. They also prayed for equitable relief.
Defendant Eugene English filed his answer alleging that he is president of the corporation and owner of certain stock which has not yet been issued by the corporation, and asked that he be declared the owner of 102 shares of common stock, and that plaintiff Mary A. Jones be required to account for monies received by her as a corporate official, and asked for other equitable relief.
The defendant corporation filed its answer asking that the trial court determine the number of shares owned by each stockholder and after such determination the stock be ordered issued to the respective holders found to be entitled thereto.
On the issues thus joined the trial court appointed a special master to take the evidence. The special master subsequently heard the evidence and made and filed findings of fact and conclusions of law.
The respective parties filed their post-hearing motions to set aside certain findings of fact and conclusions of law made by the special master, and the trial court, after hearing argument of counsel, rendered its judgment, approving and adopting findings of fact and conclusions of law as made by the special master with the exception that it found that of the 200 shares of common stock issued by the corporation Mary A. Jones was the owner of 194 shares; Eugene English, 2 shares; Sally Allen, 2 shares; and I. F. Bradley, Jr., 2 shares.
Within the time provided by law, defendant Kansas City Em baiming and Casket Company, Eugene English, its president, and the intervenors filed motions asserting certain trial errors and requesting the trial court to grant a new trial. The respective motions for a new trial are still pending in the trial court and no hearing has been had nor ruling made thereon.
With the exception of I. F. Bradley, Jr., the aforementioned intervenors and defendant Eugene English, within the time provided by law, appealed to this court only from the judgment, orders and decisions of the trial court. Mrs. Willis (Sally) Allen appealed to this court from the same judgment; however, her appeal was not perfected in the time provided by law. The defendant corporation did not appeal.
Notwithstanding appellants’ very limited notice of appeal, in their abstract they specify several grounds of error, all of which relate solely to trial errors; therefore, it becomes obvious we are confronted at the outset with the jurisdictional question whether errors alleged to have been committed by the trial court are reviewable when, as in the instant case, the motion for a new trial is still pending in the lower court and has not been ruled upon. It is a longstanding rule of this court, which should need no citations, that an appeal perfected only from the judgment, order, decision and decree of the trial court does not constitute an appeal from an order overruling a motion for a new trial, and under such circumstances this court has no jurisdiction to review trial errors in the judgment even though the order overruling the motion for a new trial has been specified as error. (American State Bank v. Holding, 189 Kan. 641, 371 P. 2d 167; Clarkson v. Mangrum, 186 Kan. 105, 348 P. 2d 607; Curtis v. Kansas Bostwick Irrigation District, 182 Kan. 301, 320 P. 2d 783; Matlock v. Matlock, 182 Kan. 631, 323 P. 2d 646; Baker v. Maguire’s, Inc., 176 Kan. 579, 272 P. 2d 739; In re Estate of Young, 169 Kan. 20, 217 P. 2d 269.)
We have repeatedly said that in order to secure review of trial errors, at least those from which no independent appeal will lie, a motion for a new trial is necessary. In the instant case we have motions for a new trial; however, since there has been no ruling on the motions, the matters raised by them are not here for review. (Carmichael v. Estate of Glenn Bailey, 163 Kan. 741, 743, 186 P. 2d 99.) Where it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Holton v. Holton, 172 Kan. 681, 243 P. 2d 222.)
It is clear that the trial court should first rule on appellants’ motions for a new trial. If sustained, the findings of fact would, of course, be wiped out along with its judgment; if overruled, the appellant would then have a formal and appealable order making alleged trial errors reviewable. From the state of the record and the admissions made by counsel in argument that motions for a new trial are pending, newly discovered evidence being among the grounds, and in view of some of the special master’s findings adopted by the court, we are unable to say that the trial court would not grant a new trial. Under such circumstances this court is of the opinion that the action should be remanded to the trial court for further proceedings, but in so directing we are in no way passing upon the merits of appellants’ motions for a new trial.
In view of what has been said the case is remanded to the trial court for further proceedings. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant was convicted by a jury of issuing two worthless checks on January 25, 1960, each check being in an amount in excess of $50 in violation of G. S. 1949, 21-554, and he was sentenced to imprisonment in the Kansas State Penitentiary. (G. S. 1961 Supp., 21-555.)
On June 12, 1961, the defendant being without counsel, the court appointed W. H. Coutts, III, a member of the Butler County Bar, to represent him. Counsel represented the defendant throughout the trial with ability and diligence, and he has perfected this appeal without cost to the defendant.
The record indicates that the defendant operated a retail produce stand on South Broadway in Wichita. The checks in question were dated January 25, 1960, and drawn upon the East Side State Bank in Wichita. They were given to one Clarence Farthing in payment for apples which were sold and delivered to the defendant at El Dorado on that date. The checks were deposited in the Citizens State Bank in El Dorado, and in due course they were presented to the East Side State Bank where payment was refused due to insufficient funds in the defendant’s account. The checks were dishonored and returned to the El Dorado bank. When advised of that fact, Farthing tried three or four times to locate the defendant in Wichita but he was told by persons there that the defendant had possibly gone to Missouri. The checks were never paid and the merchandise was never returned to Farthing.
On February 9, 1960, a warrant was issued for the defendant’s arrest, and he was arraigned on June 8, 1960. On September 21, 1960, the defendant waived his preliminary hearing and was bound over to the district court. An information was filed charging the defendant with the crimes of which he was convicted. Later, on February 27, 1961, he was arrested in Phoenix, Arizona, where he refused to voluntarily return to Kansas, and he was extradited for trial.
On the day of his appointment, counsel filed an application alleging the defendant’s right to abate the checks pursuant to G. S. 1949, 21-556. The application was heard the following day. The defendant showed by uncontradicted testimony that he had an account in the East Side State Bank 30 days next prior to January 25, 1960; that he had a balance of $8.49 on the date the checks were issued; that he had done business with Farthing for approximately five years, both on a cash basis and a checking basis; that the checks were given Farthing for payment in the ordinary course of business for produce which the defendant received from him, and that on that date he had money available to pay them and the costs of the action.
Prior to cross examining the defendant the assistant county attorney called the court’s attention to the fact that the defendant was arraigned on June 8, 1960; that his preliminary hearing was waived and he was bound over to the district court on September 21, 1960; that there were two bond forfeitures by the defendant, one on October 15, 1960, and one on November 14, 1960, and the record shows he further stated:
“Mr. Grant: If it is a plea in abatement, I am willing to take it up but T think the fact that he has forfeited bond twice, has something to do with the question of his right to abate and he has to show to this court two elements, he has to show he had an account within 30 days and that he had no intention to defraud.”
On cross-examination the defendant testified that he was given an opportunity to return to Kansas voluntarily, but he did not do so; that he was extradited from Arizona and returned to Butler County for trial, and that he knew the checks had not been paid. The court took the matter under advisement, and on June 16, 1961, entered the following order:
“I am denying the application of the defendant to abate the checks involved in the above entitled action, as provided for in G. S. 1949, sec. 21-556 by reason of the factual situation as shown to this court relating to the intent to defraud, because of Mr. Morris’ testimony relating to these checks, and the length of time that has passed before he makes his application.”
At subsequent stages by timely and repeated objections, one before trial on September 27, 1961, counsel renewed his application for abatement; also during the trial of the case, and upon the hearing of his motion for a new trial.
The sole question presented is whether the district court erred in denying the defendant’s application to abate the checks prior to trial.
The defendant principally contends that since G. S. 1949, 21-556, does not fix a time limit within which a check must be paid in order for an accused to obtain the right of abatement, a denial of such right upon the grounds given by the district court is no reason in law to deny the defendant the right to abate the action. Further, that the evidence failed to show the least hint of an intent to defraud, and the mere fact that later, after the checks were returned marked insufficient funds, the defendant was extradited to stand trial cannot, standing alone, establish an intent which, he contends, there was no other evidence to show.
Did the district court err in failing to permit the defendant to abate the action? The crux of the appeal is the application of G. S. 1949, 21-556, which reads:
“That in any case where a prosecution is begun under this act, the defendant shall have a right, upon application made for that purpose before trial, to have said action abated by showing to the court or judge that he has had an account in said bank upon which said check or draft was drawn, thirty days next prior to the time said check or draft was delivered and that said check or draft was drawn upon said bank without intent to defraud the party re ceiving the same, and if the court shall so find, said action shall be abated and the defendant shall be discharged upon paying into court the amount of such check and the costs in said case.”
The appeal is from the judgment of conviction, and while the state makes no specific point of the matter, it is intimated that because the defendant did not appeal from the order overruling his motion for a new trial, the sufficiency of the evidence to sustain the order denying the right to abate the action is not subject to appellate review. We do not agree. The right to abate a prosecution begun under the worthless-check statute (G. S. 1949, 21-554) is given the defendant “upon application made for that purpose before trial” (G. S. 1949, 21-556), and where it is denied, the sufficiency of the evidence to sustain the order denying that right may be reviewed upon appeal from the judgment of conviction. (State v. Rogers, 142 Kan. 841, 52 P. 2d 1185; State v. Brown, 144 Kan. 573, 61 P. 2d 901.)
During the trial and upon the hearing of his motion for a new trial, the defendant attempted to offer evidence to abate the action, which was refused. In view of the previous ruling of the district court on June 16,1961, denying the defendant’s application to abate the action before trial, that was not error (G. S. 1949, 21-556). While the statute makes provision for abatement under certain circumstances, that fact does not change the question whether the crime was previously committed. Hence, after an application to abate the action has been heard and denied, evidence pertaining to the ability of the defendant to do so during the trial of the criminal charge is properly excluded.
State a. Avery, 111 Kan. 588, 589, 207 Pac. 838, 23 A. L. R. 453, is the landmark case which construed and applied the statutes under which the defendant was convicted. It was there held that an intent to defraud was not an element of the offense, and was not essential to the validity of the statute. (G. S. 1949, 21-554.) Whatever the state of mind of the defendant may be technically called, he must have knowledge that he cannot meet the check when presented for payment and he must act willfully. In the opinion it was said:
". . . The worthless check must be willfully drawn, knowing at the time there are no funds on deposit to meet it. Beyond that, the legislature may, for protection of the public interest, require persons to act at their peril, and may punish the doing of a forbidden act without regard to the knowledge, intention, motive, or moral turpitude of the doer. . . .
“. . . The purpose of the statute was to discourage overdrafts and resulting bad banking (Saylors v. Bank, 99 Kan. 515, 518, 163 Pac. 454), to stop the practice of ‘check-kiting/ and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. Although the statute tends to suppress fraud committed by the worthless-check method, the evils referred to are all quite distinct from those consequent on fraud, and the statute is to be regarded as creating a new and distinct offense. . . .” (l.c. 590, 591.)
The case of Commonwealth v. McCall, 186 Ky. 301, was cited and quoted in the opinion in State v. Avery, supra, a case concededly based upon a statute requiring a fraudulent intent, and it was said:
• . The mere giving of such a check with the intent to defraud, will constitute the offense, and the intent to defraud will be present whenever money, property or other thing of value is parted with by the person to whom the check is given.’” (Emphasis supplied.)
In State v. Gillen, 151 Kan. 359, 99 P. 2d 832, the defendant there made the argument that if intent to defraud was an element of the abatement statute (G. S. 1949, 21-556), then it must be an element of the insufficient funds statute (G. S. 1949, 21-554), since, he argued, “that if intent is an element in one instance it is in another.” This court disposed of the contention by saying:
“. • . The question of whether intent was to be an element was for the legislature. We are satisfied the Avery case correctly disposes of the matter of intent as an element of the crime of which appellant was charged and convicted.” (l. c. 363.)
The purpose of the legislature in passing the abatement statute (21-556) was to give a right to any person who made an innocent mistake in issuing a check which is dishonored upon presentation by reason of insufficient funds with which to pay it, to correct his mistake and thus avoid any record of a criminal prosecution. Whatever contradiction there may be between the insufficient fund check statute (21-554) and the abatement statute (21-556), we think it apparent from the Avery and Gillen decisions that the so-called intent to defraud was construed to be present whenever money, property or other thing of value was parted with by the person to whom the check was given, and that it is incumbent upon the defendant to negate that intent by showing that he had no intention to willfully issue the check, knowing at the time he had no funds on deposit in the bank to pay it upon presentation. That showing is required to be made upon application prior to trial by showing to the court or judge that he had an account in the bank 30 days next prior to the time the check was delivered; that it was drawn without intent to defraud the party receiving it, “and if the court shall so find,” the action shall be abated upon paying into court the amount of the check and the costs in the case.
Courts may judicially notice earlier proceedings in the same case. (Ablah v. Eyman, 188 Kan. 665, 667, 365 P. 2d 181.) It is evident the district court took into consideration the fact that the defendant had forfeited appearance bonds on two occasions, and it was within the discretion of the court to consider those acts, together with the necessity of extraditing the defendant from Arizona for trial, in determining whether the showing made by him on the motion to abate was sufficient to require it to abate the action. Moreover, it was proper for the court to take into consideraion that flight to avoid prosecution was material on the question of the intent with which the act was committed. (State v. Stewart, 65 Kan. 371, 69 Pac. 335; State v. Kesner, 72 Kan. 87, 82 Pac. 720; State v. Martin, 175 Kan. 373, 265 P. 2d 297.)
It was not incumbent upon the state to prove the defendant issued the checks with intent to defraud. (State v. Avery, supra.) On the contrary, the burden of proof was upon the defendant to show his lack of intent to defraud, and he failed to sustain that burden to the satisfaction of the district court.
We cannot say the district court abused its discretion in failing to find that the defendant gave the checks without intent to defraud Farthing. Finding nothing in the record that would require us to reverse the conviction, the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to recover damages for breach of a covenant of warranty arising out of the conveyance of real estate in Taney County, Missouri, by warranty deed. The trial court overruled a demurrer to the second amended petition and appeal has been duly perfected from this order.
The primary question presented is whether the second amended petition alleges a breach of the warranty contained in the deed to defend the title against the lawful claims and demands of others.
The second amended petition, filed July 6, 1961, alleges in substance that on April 1, 1957, the plaintiffs purchased by warranty deed from Helen Vance certain described real estate in Taney County, Missouri; that she obtained title by mesne conveyances from the defendant, Bess Wilhite, and that a part of the real estate conveyed was not in fact owned by the defendant Wilhite but by Millard and Lucille Caudill.
Thereupon followed the spécific allegations of the second amended petition which are material to this litigation. These allegations are:
“4. . . . That at the time of such conveyance the defendant did not own nor did she have color of title to said real estate, which said conveyance constituted a breach of the covenants of warranty in said deed described.
“5. That the sale and conveyances by warranty deed by the defendant herein of real estate which she did not own, by mesne conveyances, to these plaintiffs constituted a breach of warranty on the part of said defendant, and resulted in damage to these plaintiffs in the following particulars, to-wit:
“(a) That the plaintiffs paid the sum of $9,000.00 for the real estate described in paragraph 2 of this petition. That a reasonable value of the portion of the land included in that conveyance which the defendant did not own is the sum of $6,000.00, and the plaintiffs have been damaged to that extent.
“(b) That in addition thereto on the 19th day of September, 1959, the plaintiffs entered into a contract for the sale of real estate including that described in paragraph 4 of this petition for the sum of $6,700.00. That a true copy of said contract is attached hereto, made a part hereof and marked plaintiffs’ Exhibit ‘D’. That upon the execution of that contract these plaintiffs discovered the adverse claim of Millard Caudill and Lucille Caudill created by the breach of covenants by the defendant herein. That extensive litigation ensued after such discovery; that the plaintiffs were forced to expend the sum of $600.00 for the court costs and attorneys fees; . . .” (Emphasis added.)
The warranty deed in question was attached and made a part of the second amended petition. The warranty provision reads:
“. . . The said Grantor covenanting that said premises are free and clear of all encumbrances, and that she will Warrant and Defend the title against the lawful claims and demands of all persons whomsoever.”
It is readily apparent from the pleading under attack this action is founded upon the covenant that the grantor will warrant and defend the title against the lawful claims and demands of all persons whomsoever. There is nothing to indicate the action is founded upon the covenant that the premises are free and clear of all encumbrances.
It may be conceded that no cause of action arises upon a covenant of warranty until after eviction, either actual or constructive. (Railway Co. v. Pratt, 73 Kan. 210, 216, 85 Pac. 141; and see Claflin v. Case, 53 Kan. 560, 36 Pac. 1062.)
The nature of the covenant of warranty was discussed in Bolinger v. Brake, 57 Kan. 663, 47 Pac. 637, in the following language:
“. . . The covenant of seizin is of the present tense, and if the cove nantor has not the title, there is a breach of the covenant as soon as it is made. It is strictly a covenant for title. The covenant of warranty is of the future tense, and binds the covenantor to defend the title when it shall be assailed, and to make good the loss, within certain limitations, which may then be sustained. It is essentially a covenant against the loss of possession, and a right of action upon it does not accrue until the covenantee is disturbed. . . .” (p. 669.)
The covenant of warranty was again discussed in Bedell v. Christy, 62 Kan. 760, 64 Pac. 629, where the court said the covenants of warranty and quiet enjoyment are mainly identical; that both of the covenants relate to the possession and assure quiet enjoyment of the estate conveyed. The court continued:
“. . . To constitute a breach, it is generally held that there must be not only a disturbance of possession, but the eviction must he under an adverse and paramount title which existed when the covenant was made. . . .” (p. 763.)
The general effect of a covenant to warrant and defend, and the conditions essential to a recovery of damages for a breach of such covenant are well summarized in 14 Am. Jr., Covenants, Conditions and Restrictions, § 69, as follows:
“The obligation in a general warranty of title is not that the covenantor is the true owner or that he is seised in fee, with right to convey, but that he will defend and protect the covenantee against the rightful claims of all persons thereafter asserted. Such covenant is prospective in nature and is broken only by an eviction under a paramount title existing at the time of the conveyance, of what in contemplation of law is equivalent to an eviction, and not until then, except in exceptional cases, does the covenantee, his heirs, or assigns have any right of action on the covenant. In other words, the conditions essential to a recovery of substantial damages for a breach of covenant or warranty of title are that there should have been an eviction of the vendee from the premises, a failure to obtain possession under his deed, a surrender of possession after a hostile assertion of a paramount title, or a purchase or extinction of such title by the vendee. The mere existence of an outstanding paramount title does not constitute a breach of such covenant or authorize the covenantee to refuse to take possession when he can do so peaceably. . . (pp. 532, 533.)
The appellees concede the foregoing to be the law in Kansas.
The appellant contends that the second amended petition, neither in substance nor effect, contains material allegations of fact to show an eviction of any kind by the appellees from the premises, nor any failure to obtain possession of the pertinent real estate by reason of the eviction by anyone else under a paramount title; nor a surrender of possession after a hostile assertion of a paramount title, nor a purchase or extinction of such title by the vendee, nor is it alleged that the appellant has ever beén given notice of an action pending for eviction by a hostile assertion of a paramount title or any request that appellant defend the title against any such assertion. The appellant therefore argues lack of any one of the foregoing material allegations is sufficient to render the pleading demurrable.
On the point presently under consideration the pleading in question was never attacked by a motion. It is, therefore, entitled to a liberal construction.
The second amended petition alleges in substance that the appellant conveyed the real estate in question by mesne conveyances to the appellees; that at the time of the conveyance the appellant did not own or have color of title to the said real estate; that on the 19th day of September, 1959, the appellees tried to sell the real estate, and in doing so discovered the adverse claim of the holders of a paramount title; and that as a result thereof litigation ensued.
It thus appears on the face of the petition, liberally construed, that the appellees are deprived of the use of the land and of the right to sell it by the hostile assertion of an adverse or paramount title which existed when the covenant was made. This, in our opinion, is sufficient to withstand an attack on demurrer.
It now becomes the burden of the appellees at the trial of the action to show by a preponderance of the evidence the breach of the covenant of warranty and the damages.
The appellant contends the alleged breach of covenant, if any, against encumbrances incurred when the covenant was made in 1947, and is barred by the five-year statute of limitations. The simple answer on this point is that the action is not designed to recover for breach of the covenant against encumbrances.
The statute of limitations begins to run against a cause of action for breach of a warranty to defend the title against the lawful claims and demands of others only from the time of actual or constructive eviction of the covenantee or his assignee. (Bolinger v. Brake, supra; and see 14 Am. Jur., Covenants, Conditions and Restrictions, § 121, p. 560.)
The original petition in this action was filed January 11, 1961. In that petition it was asserted the plaintiffs obtained a judgment against the defendant in Taney County, Missouri, for $6,750, on which $300 had been paid, leaving a balance due of $6,450. Judgment was sought for this amount. The plaintiks’ Exhibit “A” attached thereto disclosed a judgment between tb j parties, dated July 7, 1960, on a suit to determine title, sustaining an attachment and ordering a special execution on certain real estate attached which was owned by the appellant.
Ry reason of the foregoing the appellant herein asserts that the appellees by the original petition have elected the remedy of a suit on the judgment, and contends that the appellees are now barred and estopped from asserting the inconsistent facts alleged in the first and second amended petitions. On this point the appellant argues that a general demurrer searches the entire record, which includes the petition and second amended petition, and tests the effect of all proper and material allegations of fact shown on the face of those pleadings.
The doctrine of election of remedies and its application in this jurisdiction has been recently discussed and applied in Lindsay v. Keimig, 184 Kan. 89, 334 P. 2d 326. In that case our decisions were said to hold in a general way that when the law gives several means of redress or relief predicated upon conflicting theories, the election of one of them operates as a bar against subsequent adoption of others.
We fail to see how the doctrine of election of remedies has application to this appeal. Here the general demurrer challenges whether or not the facts alleged in the second amended petition state a cause of action. Under G. S. 1949, 60-706, it is required that the demurrer shall specify distinctly the grounds of objection to the petition, and unless it does so it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action. Having failed to specify the objection which the appellant now asserts, it is not here for review on an order overruling a general demurrer to the second amended petition.
The appellant’s theory on this point is that an action in the state of Missouri in rem is inconsistent with a personal action for the collection of money arising out of the same set of facts, brought in the state of Kansas.
The appellees assert in their brief that “When counsel learned that such action was only an action in rem without service upon the appellant, then the first amended petition was filed setting out the merits of the cause of action involved in the Missouri action in rem and a money judgment was prayed for against the appellant.”
For the reasons heretofore stated, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff Nova L. Alcorn and others, appellees herein, brought this action to quiet title to certain real estate. The defendant (appellant), the State Highway Commission, hereinafter referred to as the commission, appealed from the judgment rendered in plaintiffs’ favor quieting title in them.
The petition, as amended, alleged in pertinent part that plaintiffs for more than twelve years prior to the commencement of the action were the owners in fee and in possession of sixty-two acres lying north of the Atchison,' Topeka and Santa Fe Railway and west of the Missouri Pacific Railroad tracks in the southwest quarter of section 36, township 27, in Sedgwick county; that the defendant, the commission, was and became the owner of a certain portion of plaintiffs’ land by reason of a judgment entered in condemnation proceedings in the district court of 'Sedgwick county, case No. 101403, on the 30th day of August, 1938. The description of the tract condemned for highway purposes reads:
“A Tract of land, lying in the Southwest Quarter (SWfi) of Section Thirty-six (36), Township Twenty-seven (27) South, Range 1 West, the Center Line of the proposed highway being described as follows:
“Beginning at a point on the West Line 164.5 Feet North of the Southwest Corner of said Section; thence in a Northeasterly direction on a curve of 5729.65 Feet radius to the left 60 Feet on- the Left and along the Northerly Righ-of-Way Line of the Atchison, Topeka & Santa Fe Railroad on the Right, 2940.2 Feet; thence on a tangent to said curve 242.9 Feet to a point on the North Line 1933 Feet East of the Northwest Corner of said Quarter Section; the above contains, 14.69 acres, more or less.”
The petition further alleged that the dividing line between the tract of land taken by the commission in the condemnation proceedings and the remaining portion of plaintiffs’ tract of land was the east-west line of that portion of the land taken and used as highway K-42, which proceeds on a diagonal curve through plaintiffs’ tract of land from the southwest corner through the northeast of said tract of land, as shown by a plat attached to the petition and made a part thereof.
The petition also alleged that the commission asserted some interest or claim in the land of the plaintiffs, and disputed and denied the location of the dividing line, and that the commission had no right, title, claim nor interest in or to plaintiffs’ land in question by reason of the condemnation proceedings.
Plaintiffs asked that the commission set forth its claim of title and that the court determine the true dividing line; that plaintiffs’ title be quieted in all that portion of tire land lying east of the state highway K-42 and north of the Atchison, Topeka and Santa Fe Railway and west of the Missouri, Kansas and Pacific Railroad; and that plaintiffs be decreed to be the owners in title and possession of all said land.
In its answer the commission denied plaintiffs’ title and possession and alleged that by reason of the statutory condemnation proceedings the commission had acquired an interest in the name of the state to the land in question for construction, improvement, maintenance and drainage of the state highway system, and that plaintiffs’ title to the land in question was subject to the interest of the commission acquired by its exercise of eminent domain; further, that said land was acquired by the commission in the condemnation proceedings of August, 1938, and full compensation paid therefor.
Plaintiffs’ reply denied that the commission acquired any title to the triangular strip of land in question.
After joining issues, and at a pretrial conference, the parties stipulated that the sole question to be presented and decided by the trial court was one of law, the question being whether or not the description of the property taken by the commission in the condemnation proceedings in the district court of Sedgwick county in August, 1938, was sufficient to include the triangular tract of land described in the plaintiffs’ petition in which they sought to have title quieted.
After due consideration and an examination of the pleadings and the exhibits attached thereto, the plat introduced in evidence, and the condemnation proceedings in its court, the trial court entered judgment quieting title in favor of the plaintiffs to the triangular tract in question, with the exception of the east sixty feet along the hypotenuse of the triangular tract. From this judgment the commission has appealed.
The commission contends, in substance, that the judgment of the trial court is as a matter of law erroneous in that its findings and judgment are not sustained by the pleadings and the exhibit attached thereto, the plat, and the condemnation proceedings of 1938 had in the district court of Sedgwick county. Inasmuch as this court is faced with the sole question of law that confronted the trial court, and regardless of the construction and interpretation made by the trial court, we stand in the position on appellate review to reexamine those documents and determine for ourselves whether or not the trial court’s findings and judgment are sustained by the record, the meaning and effect of these, documents, and render our decision on the legal question presented. (Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039; Bauer v. Bauer, 188 Kan. 153, 360 P. 2d 852; Hollenbeck v. Lyon, 142 Kan. 352, 354, 47 P. 2d 63; Palmer v. Johnson, 132 Kan. 161, 294 Pac. 874.)
After a careful review of the pleadings, exhibits, the land description and the condemnation proceedings of August, 1938, it seems clear to us that the judgment of the trial court was erroneous. The sole question presented to that court was whether or not the description in the 1938 condemnation proceedings was sufficient to include the land in controversy. There is nothing in the record to support the trial court’s findings that the condemnation proceedings actually described a strip of land sixty feet to either side of a center line, or that plaintiffs’ title to the triangular strip of land in controversy should be quieted. The trial court’s findings and judgment were not in accord with the question presented to it. It is the opinion of this court, from the record, that the property described in the condemnation proceedings of 1938 was sufficient to include and encompass the real estate described in the plaintiffs’ petition in which they seek to a have title quieted in them.
It necessarily follows that the judgment of the trial court must be reversed and the case remanded with directions to enter judgment on the issue of law presented in accordance with the views herein expressed. | [
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The opinion o£ the court was delivered by
Robb, J.:
This is an appeal from the order of the trial court overruling defendants’ demurrer to the third cause of action contained in plaintiff’s petition, and from orders overruling defendants’ motions to strike and to quash the service of summons. The appeal from the order overruling the motion to quash the service of summons has been abandoned.
Two claimants recovered compensation awards from their employer who was insured by plaintiff under the workmen’s compensation act and as such insurer the company sought recoupment under the act for the amounts so awarded. In its third cause of action plaintiff sought to recover $908.94 as reasonable attorney fees incurred in connection with the defense of the workmen s compensation claims, and for additional reasonable attorney fees in this recoupment action in the sum of $2,500.00.
Defendants, a truck driver, an employer, and the liability insurance carrier for the employer, demurred to the third cause of action and this demurrer was overruled by the trial court. Defendants had previously moved to strike certain portions of the petition which included the third cause of action covered by the demurrer. The reasons given in the motion to strike were that the matters set out in the third cause of action were incompetent, irrelevant, immaterial, purely prejudicial, and were alleged in the petition for the sole purpose of prejudicing the jury. Defendants timely appealed from the above orders of the trial court.
Appellee based its claim for attorney fees on G. S. 1961 Supp., 44-504, which provides for recovery against some person other than the employer, the periods of time in which the employee and his employer can commence such an action, and concludes with the following sentence:
“The court shall fix attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court.” (Our emphasis.)
In applying the above provision to our present case, we think it can be interpreted only as placing the duty to pay attorney fees on the claimants and their employer and not upon the third party tort-feasor.
Appellee relies on In re Estate of Reynolds, 176 Kan. 254, 270 P. 2d 229, but examination of that case shows it was an action to construe a will and is not applicable here because the probate code (G. S. 1949, 59-1717) gives statutory authority for the allowance of attorney fees. The opinion in State, ex rel., v. Sage Stores Co., 158 Kan. 146, 145 P. 2d 830, which was a quo warranto proceeding, stated the general rule for recovery of attorney fees as follows:
“Attorney’s fees and expenses of litigation, other than ordinary 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 therefore.” (Syl.)
See, also, Murrow v. Powell, 167 Kan. 283, 205 P. 2d 1193.
Our attention is directed to 2 Larson’s Workmen’s Compensation Law, § 71.10, on third party actions, where may be found a comprehensive statement justifying the theory that the ultimate wrongdoer, if he be at fault, should pay. The section concludes with this sentence:
“So, it is elementary that if a stranger’s negligence was die cause of injury to claimant in the course of employment, the stranger should not be in any degree absolved of his normal obligation to pay the usual amount of damages for such an injury." (p. 166.)
Section 74.32 of the same text reads in parts follows:
“Usually attorneys’ fees and expenses are deducted both in priority to the employer’s lien on the employee’s recovery, and before there is any excess for the employee in the employer’s recovery. If the sum recovered by the employee is more than enough to pay attorneys’ fees and reimburse the carrier, the carrier is reimbursed in full, and is not required to share the legal expenses involved in obtaining the recovery.”
The above is analogous to the concluding provision of 44-504 and therefore does not give any assistance to appellee. Since no statutory authority has been shown for granting the attorney fees in question, we are compelled to hold the allowance of attorney fees under the circumstances of this case cannot be made. (Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 714, 366 P. 2d 219; Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 85, 367 P. 2d 44.) Therefore, the third cause of action was not proper and that part of the motion to strike should have been sustained. For the same reason, the demurrer thereto should have been sustained.
As appellants state with regard to the remaining portions of the motion to strike, this is only a tort action and the allegations of the petition attacked by the motion to strike, other than the third cause of action, were necessary to be alleged by plaintiff to raise proper issues regarding negligence and the damages suffered by claimants in the form of personal injuries for which plaintiff has been required to pay compensation. Rulings on a motion to strike rest so much in the trial court’s sound discretion they will not be reversed unless they prejudicially affect the substantial rights of the party making the motion. (2 West’s Kansas Digest, Appeal and Error, §§ 960 (2) & (3), pp. 577, 578, and 1962 Cum. Pocket Part, Appeal and Error, §§ 960 (2) and (3), pp. 60, 61; 1 Hatchers Kansas Digest, rev. ed., Appeal and Error, § 446, p. 187, § 518½, pp. 212, 213, and 1961 Cum. Supp., Appeal and Error, § 446, p. 40, § 518½, p. 50.)
Appellants having failed to make it affirmatively appear the trial court abused its discretion or that their substantial rights were prejudicially affected by its ruling on the other portions of the motion to strike, the ruling was not an abuse of judicial discretion and it did not prejudicially affect appellants’ substantial rights.
We conclude the trial court properly overruled the motion to strike those portions of the petition other than the third cause of action but improperly overruled the motion to strike and the demurrer to the third cause of action.
Affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Robb, J.:
Defendant appeals from the verdict of the jury finding him guilty of the commission of the crime of grant larceny under G. S. 1961 Supp., 21-533, from rulings of the trial court, and from the trial court’s sentence of defendant under G. S. 1949, 21-534, upon the verdict of the jury.
On April 26, 1961, defendant appeared in person and through his attorney for the hearing upon his motion for new trial. Defendant moved the court to withdraw the motion for new trial and the motion was sustained by the trial court.
The facts in the case, in brief, are that the defendant and a woman accomplice in the presence of a witness for the state, Karen J. Toon, took $60.00 from a cash register. The accomplice actually took the $60.00 from the cash register and the state’s witness directed the accomplice to return the money to the register. Upon failure of the accomplice to do so, the state’s witness reached out and grabbed the money, took it from the hands of the accomplice and put it back into the cash register.
The first question raised by the defendant on appeal is whether the above was sufficient possession to constitute commission of the crime of grand larceny. The appropriate statute, G. S. 1961 Supp., 21-533, reads:
“Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of fifty dollars ($50) or more, shall be deemed guilty of grand larceny.”
Defendant admits the money was reduced to possession by his accomplice and we know of no decision, nor does defendant cite any, where such possession is not sufficient to justify a jury in finding, as it did here, that it was possession.
Defendant’s second question is whether the trial court erred in allowing evidence in the form of a certified transcript of a previous felony conviction under G. S. 1949, 21-107a to be admitted into evidence and brought to the attention of the jury. If the record stopped there and defendant had not withdrawn his motion for a new trial, we might have had a different question but here the previous felony conviction was admitted into evidence by the trial court for the sole purpose of proving identity of the accused, to show motive, intent, scienter, lack of mistake, or his scheme or system of operation, and the trial court so instructed the jury. The instruction was a correct statement of the law and was properly given. While all of the instructions are not before us, we must conclude the above is the only purpose for which evidence of the previous felony conviction was admitted. Many similar cases ap pear in our reports but one that is particularly applicable is State v. Reuter, 126 Kan. 565, 268 Pac. 845. It follows that since only alleged trial errors are urged in this appeal and they cannot be reached because defendant withdrew his motion for new trial, there is nothing before this court for appellate review. (State v. Turner, 183 Kan. 496, syl. ¶ 1, 328 P. 2d 733; State v. Trinkle, 186 Kan. 809, 811, 352 P. 2d 937.)
Affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal by the defendant, Thomas William Crowe, from a conviction of murder in the second degree (G. S. 1949, 21-402).
On November 21, 1960, the defendant was arrested on a complaint charging him with murder in the first degree. He waived prehminary hearing in the city court of Pittsburg on November 21, 1960, and was bound over to the district court of Crawford County for trial. On the following day, November 22, 1960, the defendant was taken before the judge of the district court and the court was advised that the defendant did not have counsel or funds with which to employ counsel. Thereupon, the court appointed Perry Owsley, a regular practicing attorney of Pittsburg, and a member of the Crawford County Bar, as counsel for the defendant.
On January 3,1961, the state filed an amended information charging the defendant with murder in the second degree. Thereafter and on the same day, the defendant was formally arraigned and with his counsel concurring, he entered a plea of guilty to the charge of murder in the second degree as contained in the amended information. The court inquired of the defendant whether he knew of any legal cause why judgment and sentence should not be pronounced upon him and the defendant answered in the negative. Thereupon, the defendant was sentenced to confinement at hard labor in the Kansas State Penitentiary for an indeterminate period of time for not less than ten years nor more than life as prescribed in G. S. 1949, 21-403.
At the outset, the state contends this court does not have jurisdiction of the appeal, the point being that it was not timely filed. We do not agree. Defendant filed two instruments designated “Notice of Appeal.” One was filed with the clerk of the district court on June 26, 1961, but was not forwarded to this court until January 24, 1962. That appeal was docketed as case No. 43,014. The other instrument was filed July 10, 1961; was forwarded to this court on August 17, 1961, and was docketed as case No. 42,746. On September 29, 1962, the appeals were ordered consolidated.
The appeal filed on July 10,1961, was not timely perfected within six months from the date of conviction and sentence as prescribed by G. S. 1949, 62-1724, however, notice of the appeal filed on June 26, 1961, was served on the county attorney and proof of service was duly filed with the clerk of the district court on that same day, hence that appeal was timely perfected within the six months period and is sufficient to confer jurisdiction on this court to review alleged errors (State v. Sims, 184 Kan. 587, 337 P. 2d 704; State v. Shehi, 185 Kan. 551, 345 P. 2d 684; State v. Hanes, 187 Kan. 382, 357 P. 2d 819).
The defendant first contends his conviction should be reversed upon the ground that the city court of Pittsburg committed error “when it forced appellant to waive preliminary hearing because counsel was denied.” The contention lacks merit for two reasons: first, the record clearly shows that the defendant did not request the assistance of counsel at the preliminary hearing, and second, we have no statute or decision which requires an examining magistrate to appoint counsel for a defendant at a preliminary hearing. In State v. Badders, 141 Kan. 683, 42 P. 2d 943, Mr. Chief Justice Harvey, speaking for the court, said:
“. . . The preliminary examination in a felony case is not a trial in the sense that word ordinarily is used. (16 C. J. 316, 323.) It is purely statutory, since it was unknown at common law. (16 C. J. 314.) It is not judicial, and authority to conduct such examination may be vested in persons other than courts (16 C. J. 319), such as mayors (R. S. 62-201). . . .” (l. c. 685.)
Consequently, in the absence of a statute requiring appointment of coimse1 upon preliminary examination, a defendant’s constitutional rights are not invaded (Fry v. Hudspeth, 165 Kan. 674, 676, 197 P. 2d 945; State v. Aspinwall, 173 Kan. 699, 706, 252 P. 2d 841; In re Farris, 175 Kan. 704, 712, 267 P. 2d 190; Martin v. Edmondson, 176 Kan. 374, 376, 270 P. 2d 791).
The defendant next contends that his court-appointed counsel was “a civil attorney, not a competent criminal attorney,” and so incompetently handled his case that he was denied due process of law. As has been indicated, the defendant was originally charged with murder in the first degree. Following the appointment of counsel, the district court deferred the arraignment of the defendant until January 3, 1961. Approximately forty days elapsed between the filing of the information and the amended information and during that time counsel conferred with the defendant at least seven times and also conferred with the county attorney. While the record does not so indicate, it is evident to us that because of Mr. Owsley’s adequate and diligent representation of the defendant, the charge was reduced to murder in the second degree. Furthermore, Mr. Owsley has been a member of the Bar of this court since 1938; he served as judge of the district court of Crawford County for at least four years, and he possesses unquestioned legal ability and integrity. There is absolutely nothing in this record to sustain the charge of inadequate representation of counsel.
The defendant lastly contends the district court committed reversible error when it deprived him of “a fair hearing.” He contends that upon his arraignment and subsequent plea of guilty there were no witnesses present in court and no evidence was introduced by the state to substantiate his plea. None was required. In Curl v. Hoffman, 179 Kan. 153, 252 P. 2d 1118, it was said:
“At his trial appellant was fully advised as to his rights, waived counsel and entered his plea of guilty. Under the circumstances there was no occasion for the state to introduce evidence to prove the elements of the offense charged in the information.” (l. c. 154.)
Frankly, this appeal has no merit. It is to be regretted that it ever consumed the time and encumbered the records of this court.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action upon a guarantor’s written promise to pay the appellant for goods purchased by and delivered to a third party.
The overall question presented is whether the rental of oil well pipe by the third party from another company, but billed through the appellant, was covered by the guaranty.
The facts are rather involved and require the recital of some background information presented by the record to clarify the issue.
The Cardwell Investment Company, Inc. (appellee) is a Kansas corporation with its principal office in Wichita, Kansas. H. W. Card-well was the active head of the company in 1957.
Several years before the transaction in question took place, Floyd McPeters, a drilling contractor, bought a drilling rig from the Card-well Manufacturing Company under a conditional sales contract, upon which there was an unpaid balance yet owing to the Cardwell Investment Company. The Cardwell Investment Company is the corporate successor of the manufacturing company.
McPeters, doing business as Macs Drilling Company, obtained a contract to drill an oil well in the state of Utah near Grand Junction, Colorado, but was without operating funds. McPeters arranged to have the owners of the well send to the Cardwell Investment Company the money to be paid him from drilling the well. Card-well in turn was able to make payment of any bills which McPeters asked Cardwell to pay.
The George E. Failing Company (appellant) with its principal office at Enid, Oklahoma, manufactures portable drilling equipment and distributes oil field supplies through company-owned branch stores, one of which is at Grand Junction, Colorado. Failing’s credit experience with McPeters had been unsatisfactory, and as a result McPeters called Cardwell and asked him to make arrangements.
On or about August 1, 1957, Edward A. Johndrow, vice president of sales for the George E. Failing Company, called H. W. Cardwell in Wichita from his office in Enid, Oklahoma, and advised Cardwell that Floyd McPeters was in the George E. Failing Company store at Grand Junction, Colorado, wishing to purchase equipment and supplies for use with a Cardwell rig, and further informed Cardwell that McPeters indicated he had an arrangement with Cardwell by which Cardwell would guarantee McPeters’ obligations. There was no discussion as to what was to be included in the guaranty. The conversation lasted no more than two or three minutes.
The terms and conditions of the guaranty of McPeters’ purchases from the George E. Failing Company are found in the correspondence which followed the conversation between Cardwell and Johndrow. On August 6, 1957, Mr. Johndrow wrote Mr. Cardwell a letter in which he stated:
“This letter will confirm our telephone conversation of August 1, in which I understood you to say that your good company would be responsible for purchases made by Floyd McPeters through our company.
“It was our understanding that we should bill Mr. McPeters at 329 Belford Avenue, Grand Junction, Colorado, but we should mail the invoices to your company for payment.
“Would you please confirm that we are in agreement on this matter.”
By letter dated August 13, 1957, Mr. Cardwell replied as follows:
“We acknowledge your letter of August 6, 1957 regarding Floyd McPeters.
“This will confirm our agreement with the exception that we ask that you send all invoices to Mr. McPeters for his approval and he in turn will send them to us for payment.”
A postscript was added:
“Please mail copies of invoices to us as made for our knowledge of what is purchased.” (Emphasis added.)
On August 20, 1957, Raymond Leverich, director of finance and tax for the George E. Failing Company, wrote a reply letter to Mr. Cardwell, reading:
“During Mr. Johndrow’s absence from the office I am taking the liberty to advise you that all invoices will be handled from this office as instructed in your letter of August 13 by sending Mr. McPeters, for his approval, the original together with his file copies.
“He will approve the original and forward to you for payment.”
A postscript, added for the attention of C. Cook, store manager in Grand Junction, Colorado, and others, reads as follows:
“In Mr. Johndrow’s initial instruction the original of the invoice was to go to H. W. Cardwell for payment but upon request he is to receive a copy of the invoice while the original and extra copy will go to Floyd McPeters for his approval so that he may send the approved original to Cardwell for payment.”
Invoices from the Grand Junction yard of the George E. Failing Company to Floyd McPeters on the well in question amounted to a total of about $15,000. Invoices for purchases made were approved by McPeters and mailed to Cardwell’s office at Wichita, Kansas. The invoices were generally signed by McPeters, most of them bearing the notation “O. K.” before his signature. A few came to Card-well that McPeters had approved over the telephone in talking with Cardwell, particularly when a cash discount could be taken by prompt payment. Cardwell testified that it was McPeters’ money he was spending and he had no way to know whether the bills were correct except by McPeters’ approval. Cardwell did not pay any invoices under this arrangement without McPeter’s approval.
The controversy between Failing and Cardwell is centered around certain drill pipe rented by McPeters from Tom Ray Field Rentals, Inc. of Farmington, New Mexico, for use from August 17, 1957, to September 29, 1957. Mr. Cardwell knew McPeters had rented drill pipe, but at the time McPeters rented the pipe he had told Card-well by telephone he would not need his help in getting it. McPeters did not rent this pipe from the Failing Company.
Thereafter, on October 21, 1957, Tom Ray addressed his invoice to the Failing Company in the amount of $4,559.13 for the rental of the pipe. Cardwell did not know of this invoice. Cardwell still had, at that time, just enough money on hand belonging to McPeters to pay the amount McPeters thought would be charged for the rental of the pipe.
On November 5, 1957, Cardwell talked to Mr. Little of Tom Ray Rentals for the purpose of getting McPeters and Tom Ray together to settle the amount owing for the rental so that Cardwell might get from the owners of the well their final payment of $5,000 and conclude the transaction. Cardwell had no information that the rental had been billed to Failing at that time, or that Tom Ray was even trying to collect it through Failing. Cardwell thereafter learned of Failing’s involvement and he contacted Mr. Cook. The Failing Company was also trying to get this matter settled between Tom Ray and McPeters.
Calvin Cook, manager of the Failing store at Grand Junction, Colorado, on November 22, 1957, wrote a letter to Mr. Cardwell, stating in part:
“. . . Just to clear up the misunderstanding — I did not rent the pipe, Floyd McPeters rented it. I just allowed them to bill us for the rental since Mr. McPeters had no credit with their company. Mr. McPeters will go to Farmington shortly and see if he can get them to reduce the figure of $4,559.13. ."
The Tom Ray statement for pipe rental was reduced to the total amount of $3,962.83, and the rental period shortened by four days, as shown by its revised invoice dated January 8, 1958, and again directed to the George E. Failing Company.
On March 19,1958, R. L. Jones, credit manager of the George E. Failing Company, wrote a letter to Cardwell, stating in part:
“I understand there was some question on the rental of this pipe. Our store manager at Grand Junction, Mr. Calvin Cook, merely assured Mr. Bill Little of Tom Ray Rentals, Inc., that we would guarantee payment of the rental of the pipe and he did this based on your letter dated August 13, 1957, to our Mr. A. E. Johndrow confirming the agreement set forth in his letter to you dated August 6, 1957, that you would be responsible for any obligation that Mr. McPeters might incur on the Handcock well.” (Emphasis added.)
At about the same time Cardwell received an invoice from Failing dated March 14,1958, addressed to Mac’s Drilling Company for rental of drill pipe in the amount of $4,477.95. The bill had not been approved by McPeters, orally or in writing, and Cardwell did not know if McPeters had paid it. The amount of the invoice was ten percent greater than Tom Ray’s statement to Failing, reflecting Failing’s commission on the rental. This was the first and only in voice Cardwell received concerning the rental of the pipe, seven months after the drill pipe was procured for use. This invoice was sent to McPeters by the Fading Company at Grand Junction, Colorado, and at Seguin, Texas, and it was returned to Failing, indicating that McPeters had not received it. McPeters could not be found by the appellant until after the trial of this case.
On June 11, 1958, E. A. Johndrow wrote a letter to Cardwell in which he stated:
“As to the drillpipe, we explained to you that we were really caught between two fires: Tom Ray, the supplier, on one hand, and the contractor who ordered this and whom you sponsored, on the other. We also advised you that Tom Ray, through his attorney, informed us that unless we paid the account we were going to be sued; we expressed the feeling that this was unfair as your letter of August 13 guaranteed the McPeters purchases without reservation as to amount or type of purchase. From your reply, we were surprised to learn that you felt that this was a put-up deal between Tom Ray’s man and our man about the drillpipe . . .”
In response Cardwell wrote a letter to Mr. Johndrow on June 23, 1958, reading:
“Please refer to Mr. Cook’s letter of November 22 which states, T did not rent the pipe, Floyd McPeters rented it.’ I called Tom Ray Rental Co. trying to get them to tell us the amount of the rental in order to help Floyd McPeters, who advised us he had rented the pipe and they had charged him too much. At that time, we had just enough money on hand, belonging to Mr. McPeters, to pay the amount he thought would be charged for the rental. However, other bills came in and we paid them at the request of Mr. McPeters. Now there is no money left, not even any to pay your claimed balance of $1,184.85.”
Mr. Cardwell received all of the money that the people who owned the well paid for the drilling of it, and he expended the money as McPeters authorized him. It was gone before he paid the last bill of $1,100 with the Failing Company. He did, however, pay the remaining bill of approximately $1,100 owing to the Failing Company by reason of his guarantee to pay for the supplies that McPeters bought from that company. All of the invoices mailed to Cardwell by Failing, other than the one for pipe rental, were paid by Cardwell.
According to the testimony of Mr. Cardwell, none of McPeters’ bills paid through his office was for items rented, to his knowledge. Apparently, one or two of the numerous invoices handled by Card-well turned out to have been for drill bits obtained on a lease basis by McPeters directly from Reed Roller Rock Bit Company or Hughes Tool Company, and billed through the George E. Failing Company. These invoices, however, appear to indicate a sale of the items by the George E. Failing Company to Mac’s Drilling Company. Cardwell had no notice that the George E. Failing Company did not stock such bits.
Two invoices from the George E. Failing Company to Mac’s Drilling Company are for freight charges by Jess Edwards, Inc. and Ferguson Trucking Company, Inc. to haul drill pipe and other equipment. The pipe was not identified on the invoice as having been rented, and Cardwell did not know what pipe it was. It turned out to be the pipe which McPeters had rented from Tom Ray Field Rentals, Inc. A portion of the freight costs was paid by Cardwell directly to Jess Edwards, Inc., but Cardwell did not pay a single invoice without McPeters’ approval, either in writing or over the telephone.
Tom Ray Field Rentals, Inc. recovered a judgment on May 18, 1959, against the George E. Failing Company in the United States District Court in Texas in the amount of $3,962.83, and Failing satisfied that judgment. Failing then filed this action against Card-well. Trial was to the court on May 19, 1961, and judgment was entered for the defendant, Cardwell Investment Company, Inc. upon a general finding by the trial court in its favor on all points. Special findings were not requested.
The trial court in announcing its decision from the bench construed the agreement on the part of the appellant to “send all invoices to Mr. McPeters for his approval” as a condition precedent to payment by Cardwell, and being a condition precedent no obligation arose unless such approval was first obtained.
After post-trial motions, appeal was duly perfected to this court.
The appellant undertakes to present four questions which are stated as follows:
“1. Whether Appellee’s Request That Appellant ‘Send All Invoices to McPeters for His Approval’ Was Fulfilled When Appellant Sent Such Invoices to McPeters for His Approval.
“2. Whether McPeters Could Withhold Specific Written Approval When He Had Used the Goods and Services Without Objection.
“3. Whether Appellee, Who Talked to McPeters ‘Two or Three Times a Week’ on Various Invoices and Paid Some Invoices Without Specific Written Approval of McPeters, Could Insist on Specific Written Approval on the Invoice in Question.
“4. Whether Specific Written Approval of McPeters, After His Disappear anoe and Extended Absence, Obtained by the Appellant During the Same Term of Court As the Adverse Judgment Rendered Against It, Was Sufficient Evidence to Justify a New Trial.”
It is the appellant’s contention on the first question that its obligation to send an invoice for approval was fulfilled when the invoice was deposited in the United States mails addressed to the party receiving the goods and services. It is argued the opportunity for approval on the part of Mr. McPeters was sufficient; that to hold otherwise would thwart the real understanding of the parties, since the appellant would not have done business with McPeters, except for the agreement by the appellee to be responsible for such purchases. The appellant calls our attention to the fact that no limitation was placed upon this understanding, even as to the amount to be purchased or the time during which such purchases would take place.
There was little controversy in the evidence presented at the trial of this case, and fact questions, if any, were resolved by the trial court in making a general finding in favor of the appellee. The factual statement of the case is supported by the evidence and has been stated most favorably for the appellee.
We are therefore confronted with a question of law — the legal import of the guaranty agreement between the parties.
The questions raised by the appellant, in our opinion, seek to deal with legal points but tend to ignore the vital facts and thus fall on the periphery of the case. The Failing Company was involved with the drill pipe in only one respect — it guaranteed McPeters’ payment of the rental for which it was to receive, in effect, a commission of ten percent on the amount charged McPeters on the rental. In substance, the Failing Company seeks to obligate Cardwell for a guaranty Failing made to Tom Ray Field Rentals, Inc. on drill pipe McPeters rented from Tom Ray, admittedly on the force of Card-well’s guaranty to Failing for purchases made by McPeters through the Failing Company’s Grand Junction store.
The liability of a guarantor upon an obligation cannot be extended by implication, and he should not be held beyond the precise terms of his contract. (Kepley v. Carter, 49 Kan. 72, 30 Pac. 182; and Bank v. Bradley, 61 Kan. 615, 60 Pac. 322.) The same rule was stated in Dry Goods Co. v. Yearout, 59 Kan. 684, 54 Pac. 1062, in the following language:
"... A contract to pay the debt of another should not be expanded beyond the fair import of its terms. A guarantor, like a surety, is a favorite of the law, and he is not held unless an intention to bind himself is clearly manifested; and his liability is never to be extended beyond the precise terms of his obligation. . . .” (pp. 685, 686.)
The contract of guaranty here in question is analogous to a letter of credit, which is defined as a written instrument by.which the writer requests or authorizes a person to whom it is addressed to pay money or deliver goods to a third person, and which evidences an agreement whereby the writer assumes responsibility for the payment to the addressee of the amount of the debt. (24 Am. Jur., Guaranty, § 20, p. 888.)
The measure of liability of one who has issued a letter of credit is to be determined primarily by consideration of the terms and provisions of the letter. Thus, a person issuing a letter of credit incorporating conditions upon which liability thereon shall accrue is liable only where such conditions have been met. (24 Am. Jur., Guaranty, § 23, p. 890.) Furthermore, the liability of the guarantor depends upon conformity with the procedural terms set forth in the letter of credit. If its provisions have not been met, the letter affords no security. (24 Am. Jur., Guaranty, § 25, p. 891.) Stough v. Healy, 75 Kan. 526, 89 Pac. 898, is a case which illustrates the enforcement of a construction strictly in accordance with the terms of such an arrangement.
Even compensated guarantors are not liable when the original contract on which their undertaking was made is materially changed without their assent. A gratuitous or accommodation guarantor is discharged by any change, material or not, and even if he sustains no injury by the change, or if it be for his benefit, he has a right to stand upon the very terms of his obligation and is bound no further. The guarantor is at least entitled to notice of change and the attempt to increase his burden and his chances of loss. Magazine D. Pub. Co. v. Shade et al., Aplnts., 330 Pa. 487, 490, 199 A. 190, 117 A.L.R. 960.)
In the instant case the terms of the guaranty contained in the letters are neither ambiguous nor inconsistent. The law views with a jaundiced eye any attempt to vary by parol evidence the terms of a written contract. This is particularly true with respect to a written contract of guaranty, inasmuch as the nature of the transaction makes it subject to the statute of frauds. (G. S. 1949, 33-106.) If the language of the contract of guaranty is clear and leaves no doubt as to the parties’ intention concerning the measure of the guarantor’s liability, the guarantor cannot be held liable in excess of the limitations that the contract language imposes. The character of the credit given in a written guaranty, which is complete in itself, cannot be explained by parol evidence. (24 Am. Jur., Guaranty, § 57, p. 911; and § 121, p. 952.)
Delineating the application of the foregoing rules to all of the facts and ramifications in the instant case would be purely academic in view of one point, which determines this case and overshadows all other questions. This point relates to Failing’s delay in the submission of a copy of the invoice in question to Cardwell. By the terms of tihe contract Failing agreed to submit all invoices to Mr. McPeters for his approval, and at the same time mail copies of all invoices to Cardwell “as made” for Cardwell’s knowledge of McPeters’ purchases through Failing. The postscript to Failing’s letter dated August 20, 1957, added for the attention of C. Cook, its store manager in Grand Junction, Colorado, directed that Cardwell was “to receive a copy of the invoice while the original and extra copy will go to Floyd McPeters for his approval so that he may send the approved original to Cardwell for payment.”
The general finding of the trial court established that Cardwell had no information the drill pipe rental in question had been billed to Failing, or that Tom Ray Field Rentals, Inc. was even trying to collect it through Failing. The first and only invoice Cardwell received from Failing concerning the rental of the pipe was dated March 14, 1958, seven months after the drill pipe had been procured by McPeters for his use. This extended delay in the submission of an invoice to Cardwell by Failing was clearly not within the written terms of the guaranty contract. We hold that Failing was required under the written terms of the guaranty to make a reasonably prompt submission of all invoices by sending a copy to Card-well for his knowledge of McPeters’ purchases through Failing, if Failing sought to obligate Cardwell on the guaranty.
It may be conceded that the contract of guaranty specified no limitation as to the amount McPeters might purchase through the Failing Company or the time during which such purchases could be made, but this does not preclude a reasonably prompt submission of copies of invoices for which purchases were made through Failing.
An analogous situation is found with respect to the time for presentment of a check for payment which has been drawn upon a bank. (G. S. 1949, 52-1703.) A check must be presented for payment within a reasonable time after its issuance or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.
In view of our decision on the foregoing point it becomes immaterial to consider other points raised by the appellant.
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The opinion of the court was delivered by
Fatzer, J.:
Plaintiff commenced this action against Lester Moore to foreclose a mechanic’s and materialman’s lien on real estate in Franklin County. Issues were joined and trial was by the court which made extensive findings of fact, conclusions of law, and rendered judgment for the plaintiff for $1,457.30 plus interest, and adjudged $1,200 of that amount to be a lien upon the defendant’s dwelling.
The pleadings will not be referred to since the findings of fact best tell the story of this controversy, which are summarized as follows:
On or about November 29, 1957, the plaintiff, by its president, entered into an oral agreement with the defendant whereby the plaintiff agreed to design, furnish and install all plumbing, heating and air conditioning in connection with the construction of a new home for the defendant for a total consideration of $4,300. There were no plans and specifications involved other than a general floor plan of the proposed dwelling. As to the plaintiff’s contract, the floor plan showed only the location of plumbing fixtures. The plaintiff entered into the agreement with the knowledge that there was no general contractor to construct the dwelling; that it would be one of several independent contractors performing separate portions of the construction, and that it would be required to co-ordinate its work with the other independent contractors.
Construction of the dwelling commenced on November 29, 1957, and continued to July 6, 1958, when the dwelling was occupied by the defendant as his residence. Minor details of plumbing, heating and air conditioning work remained to be completed. Roy Rrown, Jr., the plaintiff’s principal employee and in charge of the Moore job, performed cleanup work and made minor adjustments until July 29, 1958.
On September 15, 1958, the plaintiff corporation ceased to be actively engaged in the plumbing business and Brown bought plaintiff’s stock of merchandise, and began business for himself. Brown agreed to service all jobs previously installed by the plaintiff.
During the fall and early winter of 1958, defendant contacted Brown on several occasions to make adjustments in the heating system and duct work in an attempt to improve the functioning of the blower and controls. The Coleman Company, the manufacturer of the furnace and air conditioner, sent representatives to Ottawa to assist in correcting and adjusting the heating and ventilating system. On December 17, 1958, while investigating a complaint from the defendant about drafts, Brown discovered an open air space between two joists leading to the unexcavated portion of the basement. He covered the space with a piece of tin 3 feet square for which he was later paid by the plaintiff.
In the regular course of construction, two bathtubs were installed in adjacent bathrooms and connected with hot and cold water and the drain. After installation and while they were in a good condition Brown covered them with a protective coating of eight to ten thicknesses of newspaper which were pasted to the enameled surface. When the tubs were installed, the bathrooms were not completed but were only framed in, that is, the 2x4 studdings were in place. The plaster or sheetrock was not in place and there was work to be done by the carpenters above and below the tubs.
When the protective paper was removed and the tubs cleaned in preparation for occupancy of the dwelling, blemishes or defects were discovered in both tubs. The tub in the west bathroom was found to be damaged by an indentation about the size of a fingernail, which had the appearance of being struck by a sharp instrument from the outside. There was no evidence that this blemish was caused by plaintiff’s workman. When the protective paper was removed from the tub in the east bathroom, a patch of the porcelain surface covering approximately 2x3 inches came off in one piece. The evidence established by the size and shape of the porcelain removed from the tub that the tub was either defective or it was hit by a blow on the under or cast iron side. The district court found that the evidence failed to establish that the blemish was due to a defect or that it was caused by an act of one of plaintiff’s workmen. During the course of construction the plaintiff and the defendant agreed to certain charges for extra items outside the original contract, which totaled in the sum of $257.30. The district court found that the contract for such extras was completed more than four months before the lien in question was filed and the plaintiff was not entitled to a lien for such amount.
On April 15, 1959, the plaintiff filed a mechanic’s and material-man’s lien claiming that the last work done under the construction contract was performed on December 17, 1958. Within one year of the filing of the lien statement this action was commenced.
The district court concluded as a matter of law that the plaintiff substantially performed the original contract; that the defendant had paid $3,000, and there was due and unpaid on the original contract $1,300; that the defendant was entitled to a set-off of $100 for expenses he incurred in correcting defects and in completing installation including the shower doors, and that the plaintiff was entitled to a lien on the real estate in the amount of $1,200.
In harmony with its findings of fact and conclusions of law the district court entered judgment for the plaintiff and against the defendant in the amount of “$1,200.00 which is the balance due on the original contract less a set-off in the amount of $100.00 for expenses incurred by defendant” with interest at 6 percent from December 17, 1958, and also entered judgment against the defendant in the amount of $257.30 for the extra items outside the original contract and for interest. The district court ordered that if the judgment was not paid within 40 days, the lien be foreclosed and the property sold.
The defendant contends that the finding as to substantial performance of the contract is based upon the erroneous conclusion that the plaintiff did not have the burden of proving that the damage to the bathtubs was caused by the negligence of others, or that the plaintiff was obligated to furnish bathtubs free from defects or blemishes as a part of the completed contract. It is argued that the contract was indivisible which required the plaintiff for a lump sum to design, furnish and install plumbing, heating and air conditioning in the defendant’s dwelling, and that before it can recover, it must prove that when the contract was completed and the work accepted by the defendant, the bathtubs were then free from defects or blemishes. In making the contention it is urged the mere fact that more than one contractor was involved in the construction of the dwelling did not alter plaintiff’s obligation to defendant normally incident to the general contractor-owner relationship.
The parties are agreed that had the plaintiff been the general contractor to erect the dwelling, it would be required to bear the loss occasioned by the accidental damage to the bathtubs before completion of the dwelling. But that was not the case. Hence, we think the question for decision may be stated thusly: Where there is no general contractor, as between the property owner and the contractor who has contracted to do certain parts of the work of erecting an entire structure, who must bear the loss for damage to property installed during the period of construction without fault of either party? The question is one of first impression in this jurisdiction.
The district court concluded that, and we think correctly, where the plaintiff, being one of several independent contractors employed in the building of a new home, agreed to furnish and install the bathtubs and they were installed and covered in good condition, and later after workmen other than plaintiff’s worked around, over and under the tubs they were found to be blemished, the plaintiff was not chargeable with the damage due to the blemishes which were discovered when the house was being prepared for occupancy, in the absence of proof that the blemishes were caused by the negligent acts of plaintiff’s workmen. The latter having not been established, the defendant was not entitled to judgment against plaintiff for damage to the tubs. Further, that once installation of the tubs by plaintiff was completed and the area vacated to make way for workmen of other contractors, the tubs became the property of defendant and plaintiff’s warranty as to soundness of materials ended.
The case of Carroll v. Bowersock, 100 Kan. 270, 164 Pac. 143, L. R. A., 1917 D, 1006, is not factually in point, but otherwise tends to support the conclusion announced. See, also, 9 Am. Jur., Building and Construction Contracts, § 63, pp. 45, 46; 17 C. J. S., Contracts, § 516, and Anno: 53 A. L. R. 116.
To detail the testimony of the witnesses would unnecessarily extend this opinion. The evidence has been carefully examined and it amply supports the district court’s finding that the tubs were free from defects when installed and there was no evidence that thé blemishes were caused by the plaintiff’s workmen.
It is next argued that assuming, arguendo, it is determined the plaintiff substantially performed its contract and is entitled to recover, it failed to file its lien statement within the statutory period. On this point the question is basically whether the installation of the sheet metal on December 17, 1958, by Brown and the payment by the plaintiff therefor constituted the furnishing of material and labor under the original contract, it being conceded that the lien statement was filed within four months from that date. It is urged that such material and labor were not a part of the original contract but merely was something done to fulfill implied warranties of material and workmanship, and General Air Conditioning Corp. v. Stuewe, 156 Kan. 182, 131 P. 2d 638, is relied upon.
We agree with what is said and held in the Stuewe case that the mere inspection, regulation and testing of equipment would not be sufficient to extend the time in which a mechanics lien could be filed. However, in the instant case the district court’s finding No. 9 was that “this installation was necessary for the completion of the installations specified by the original contract and improved their performance.” There was ample evidence to support the finding. (Star Lumber and Supply Co. v. Mills, 186 Kan. 204, 349 P. 2d 892.) The test as to the time when a piece of work is completed under G. S. 1949, 60-1402, in order to preserve a lien is not determined by the amount of work done, but whether the unfinished work was a part of the original contract, necessary to be done to complete the job and comply in good faith with the requirements of the contract. (Badger v. Parker, 85 Kan. 134, 116 Pac. 242; Dickey v. Guaranty Co., 107 Kan. 605, 193 Pac. 346; Sonner v. Mollohan, 112 Kan. 148, 210 Pac. 649; White Lumber Co. v. Fulton, Adm'r., 116 Kan. 694, 229 Pac. 363; Sash & Sales Co. v. Early et al., 117 Kan. 425, 232 Pac. 232; Citizens First Nat’l Bank v. Jefferson County Commrs., 126 Kan. 90, 267 Pac. 12; W. S. Dickey Clay Mfg. Co. v. Snyder, 138 Kan. 146, 23 P. 2d 592.)
We have carefully examined the record and find no error. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order and judgment denying injunctive relief.
The action was commenced on July, 1960, when the plaintiff (State) on the relation of the county attorney filed a petition against the defendant appellees in the district court of Montgomery County.
Subsequently the plaintiff filed an amended petition. Highly summarized, and identified by the paragraph numbers in which they appear, such pleading may be said to contains allegations which, so far as here pertinent, state in substance.
1. That Cecil Reed and Roy Widick are partners d/b/a Reed and Widick Feed Store in Elk City.
2. That in the operation of the partnership such persons are engaged in the business of buying and selling grain and other agricultural products and, in carrying on the business, own and operate a large capacity Howe Platform Vehicle Scale with which they measure and weigh the products they buy and sell.
3. That under G. S. 1949, 83-124a, the State Sealer o£ Kansas can promulgate and file with the Revisor of Statutes rules and regulations in regard to measuring and weighing devices, said rules and regulations to include specifications and tolerances for such devices; and that under such rules and regulations he has filed with the Revisor fixed tolerances for scales of the type in question, one of which tolerances is two pounds per 1,000 pounds of test load on weighbeams, reading-face, and unit-weight indications.
4. That on August 28, 1959, the State Sealer personally, and with other state agents, tested the defendants’ Howe scale in accord with his regulations. That as a result of the test such scale was found to be false and untrue and not conforming to the standards of accuracy prescribed by state laws and regulations and was thereupon condemned.
5. That on May 18, 1960, defendants’ Howe scale was again tested by the State Sealer, the test being conducted in accord with existing state rules and regulations; and that as a result of the test defendants’ scale was again found to be false and untrue and not conforming to the standards of accuracy prescribed by such rules and regulations.
6. That although defendants, Reed and Widick, well knew that the Howe scale, as used in their business, was not within the tolerances and specifications prescribed by the State of Kansas for such scales and weighing devices, and was false and inaccurate, said defendants continued to use the same in violation of G. S. 1949, 83-121.
In the prayer of the amended petition the plaintiff asked that the defendants be permanently restrained and enjoined from using the Howe scale in question as a measuring and weighing device and from using such scale in any manner whereby the quantity or weight of any commodity or article of merchandise is determined for the purposes (describing them) set forth in 83-121, supra.
Related in the same manner and form as the allegations of the amended petition, the answer of defendants, Reed and Widick, states in substance.
1. That they admit the allegations of paragraphs 1, 2, 3, 4 and 5 of the amended petition, except that they specifically deny the scales referred to in the petition were false and untrue and did not conform to standards of accuracy as specified by the laws and regulations of the State of Kansas.
2. That they specifically allege that the scales referred to in such pleading are not false and untrue and that such scales do and at all times pertinent to the case have given weights which are true, accurate and correct and within the tolerances fixed and set by the regulations promulgated by the State Sealer. In connection with the foregoing allegations this paragraph of the answer charges that the weights of the various commodities, as weighed by the scales owned by the defendants have been compared with weights given by other scales in the community which have been approved by the State Sealer; and, after setting forth at length the numerous tests and comparisons, claimed to have been made by the defendants and other persons, asserts that all tests and comparisons so made for purposes of establishing the accuracy of their scales, disclose the condition of their scales to be as theretofore specifically alleged by them.
3. That defendants’ scales have been in the same condition at all times alleged in the amended petition, during which time such scales have weighed very closely and within tolerance of railroad scales and other scales in the community which have been approved by the State Sealer.
4. That the defendants’ scales are true and accurate and within tolerances prescribed. That under the circumstances it would be unjust and inequitable to issue the injunction prayed for by the plaintiff.
Plaintiff demurred to the defendants’ answer on the ground it appears on the face thereof that the alleged defense as stated in paragraphs 2, 3 and 4 of such pleading does not state facts sufficient to constitute a defense to the action or any part thereof. This demurrer was overruled on November 7, 1960. Some months thereafter the case came on for trial by the court on issues joined by the pleadings.
At the close of a long and spirited trial, in which the plaintiff produced two witnesses, one being tihe State Sealer and another an employee of the State Board of Agriculture whose duties were to test heavy scales in the east half of Kansas, and the defendants produced eighteen or twenty witnesses, the trial court announced that, having examined the files, having heard the evidence, and having duly considered the matter, it found that judgment should be rendered in favor of the defendants and against the plaintiff. Thereupon it adjudged and decreed that the prayer of the plain tiff’s petition for an injunction be denied and that defendants have judgment.
Thereafter, and in due time, plaintiff filed a motion for a new trial. When this motion was overruled plaintiff, under a notice of appeal dated May 2, 1961, gave notice that it was appealing from the trial court’s judgment of March 15, 1961, whereby it was by the court adjudged that the prayer of plaintiff’s petition be denied and that judgment be rendered in favor of the defendants. Thereafter, and on May 8, 1961, plaintiff gave an amended notice of appeal stating that it was appealing from the trial court’s judgment of March 15, 1961, where it was by the court adjudged that the prayer of plaintiff’s petition asking for an injunction against the defendants be denied; and was also appealing from the order and judgment rendered by such court on April 1,1961, overruling plaintiff’s motion for a new trial.
Notwithstanding it did not appeal from the order of November 7, 1960, overruling its demurrer to the answer within two months from the date of that ruling, as authorized by G. S. 1949, 60-3309, and failed to include such ruling in either its notice of appeal or its amended notice of appeal, as permitted by G. S. 1961 Supp., 60-3314a, appellant’s first specification of error is that the trial court erred in making such ruling. The short, but all-decisive, answer to this claim of error is that it is not before us. Under repeated decisions this court has long been committed to the rule that rulings on motions or demurrers, not included in the notice of appeal are not subject to appellate review. For just a few of our numerous decisions, where the subject is considered and discussed and the rule applied, see Holmes v. Kalbach, 173 Kan. 736, 252 P. 2d 603; Daniels v. Wood Construction Co., 175 Kan. 877, 267 P. 2d 517; Baker v. Maguire’s, Inc., 176 Kan. 579, 580, 272 P. 2d 739; Nicholas v. Latham, 179 Kan. 348, 351, 295 P. 2d 631; Bortzfield v. Sutton, 180 Kan. 46, 299 P. 2d 584; Dryden v. Rogers, 181 Kan. 154, 156, 309 P. 2d 409; Schindler v. Ross, 182 Kan. 277, 282, 283, 320 P. 2d 813; Clarkson v. Mangrum, 186 Kan. 105, 348 P. 2d 607; Rudy v. Whaley, 188 Kan. 118, 120, 360 P. 2d 863; Ford v. Sewell, 188 Kan. 767, 769, 770, 366 P. 2d 285; Donaldson v. State Highway Commission, 189 Kan 483, 370 P. 2d 83; American State Bank v. Holding, 189 Kan. 641, 371 P. 2d 167.
From what has been heretofore related — particularly since the involved statute (G. S. 1949, 83-121) authorizes injunctive relief and decisions (see, e. g., State, ex rel., v. Cooper, 147 Kan. 710, 716, 717, 78 P. 2d 884, and cases there cited) dealing with somewhat similar enactments hold that that remedy may be invoiced even though other remedies are available — it appears that, under the issues presented by the pleadings on which the instant case was tried and submitted, the primary question for decision by the trial court was whether appellees were operating their Howe scales outside, in other words in violation of, the specifications and tolerances promulgated and filed by the State Sealer with the Revisor of Statutes under the provisions of G. S. 1949, 83-124a.
In connection with one of its specifications of error appellant devotes much time and space in its brief to a contention the trial court erred in considering possible alternate remedies as a basis for denial of injunctive relief, i. e., a criminal prosecution and a civil action for damages under the provisions of 83-121, supra, when the same section of the statute specifically authorized injunctive procedure as a proper remedy. In support of this contention it flatly states the appeal is here on the theory the court misconstrued the remedy. We do not believe the record warrants any such conclusion. It is true that, preliminary to the announcement of its decision, the trial court wandered somewhat far afield by pointing out the other remedies available to the appellant under the statute and indicating that in view of such remedies it had some doubt whether, under the circumstances disclosed by the evidence, it ought to grant the remedy of injunction. However, after mentioning such matters, the court stated in substance, not once but twice, that it was not going to base its decision upon that ground. Having made that announcement it went on to say “One man says the situation is true and another man says it isn’t. Personally, I don’t know whether it is or not. There is some evidence both ways, so under the circumstances the court is going to render judgment for the defendant on the petition.” Thereupon the court proceeded to render a judgment wherein, according to the journal entry of judgment which is approved by counsel for both parties, it adjudged and decreed that the prayer of plaintiff’s petition be denied and that judgment be rendered in favor of the defendants.
After careful consideration of its above mentioned statements we are convinced the trial court based its decision and judgment upon the grounds (1) that appellant had failed to establish its right to an injunction by a preponderance of the evidence, as required by law (28 Am. Jur., Injunctions, § 279, p. 792; 43 C. J. S., Injunctions, § 192, p. 892, and citing cases) and (2) that it was denying the relief prayed for in the petition because of state of the evidence adduced by the parties was such as to leave it in doubt whether an injunction should be granted — and we so hold. It follows appellant’s contentions with respect to the claim of error now under consideration lack merit and cannot be upheld.
Another specification of error is that the court erred in rendering judgment for appellees when there was no substantial competent evidence to support same, and when there was substantial competent and conclusive evidence to support appellant’s petition and cause of action. It would add nothing to our reports to detail the testimony of the witnesses to whom we have heretofore referred and we are not inclined to do so. It suffices to say we have carefully examined all evidence of record and, that after doing so, we find on the one hand substantial competent evidence on the part of appellant’s two witnesses which, if believed, would sustain its view as to the condition of the scales in question and, on the other, glean from the evidence of appellees’ numerous witnesses substantial competent evidence which, if believed, would sustain appellees’ position such scales were within the tolerances fixed by the State Sealer and, therefore, were not being operated by appellees in violation of the specifications and tolerances promulgated and filed by that official with the Revisor of Statutes. With evidence, as indicated, it becomes obvious this claim of error is not supported by the record.
Finally, with respect to its claim the trial court’s action in overruling its motion for a new trial was erroneous, appellant contends the court erred in permitting, over its objection, certain witnesses to testify as to matters which were incompetent, irrelevant, and immaterial, and certain matters which were conclusions and hearsay. For reasons to be presently stated it is impractical and would serve no useful purpose to prolong this opinion by 'detailing the evidence complained of. The abstract fails to disclose any motion to strike such evidence was made and overruled. In such a situation, under all our decisions, since the trial was by the court, even if it be assumed the objections were otherwise good, there is no presumption such evidence, if improperly admitted, was considered or entered into the trial court’s final decision of the case. Moreover, it must be remembered that the admission of incompetent evidence, irrespective of whether it was considered, does not constitute reversible error or require the granting of the motion for a new trial where — as here — there is other competent evidence to sustain the judgment. For decisions supporting the conclusions just announced see In re Estate of Walker, 160 Kan. 461, 463, 464, 163 P. 2d 359; In re Estate of Wittman, 161 Kan. 398, 402, 168 P. 2d 541; Bradbury v. Wise, 167 Kan. 737, 748, 208 P. 2d 209; Harrington v. Propulsion Engine Corp., 172 Kan. 574, 583, 241 P. 2d 733; Spencer v. Supernois, 176 Kan. 135, 140, 268 P. 2d 946; In re Estate of Johnson, 176 Kan. 339, 346, 270 P. 2d 293.
We have already spent more time on this case than the record deserves. Summing up, and keeping in mind, (1) the reasons assigned by the trial court for its decision and judgment denying injunctive relief; (2) the irrefutable rule that the trial court is the trier of fact and that its determination thereof will not be disturbed if supported by evidence; and (3) the established rule that an injunction should be denied where the evidence is such as to leave the trial court in doubt as to whether an injunction should be granted (see 43 C. J. S., Injunctions, § 192 pp. 890, 891; 28 Am. Jur., Injunctions, § 25, p. 516), we are convinced the facts of record in this case bring it squarely within the established rule of this jurisdiction (see, e. g., Borgen v. Wiglesworth, 189 Kan. 261, 369 P. 2d 360; Smith v. City of Kansas City, 167 Kan. 684, 208 P. 2d 233; Babb v. Rose, 156 Kan. 587, 134 P. 2d 655) that except in cases where a statute gives an absolute right to an injunction, its granting or refusal rests in the sound discretion of the court under the circumstances and facts in the particular case.
We have carefully examined the entire record and fail to find anything which warrants or permits a conclusion the trial court’s action in denying the injunction constituted an abuse of the discretion vested in it under our decisions. Therefore its judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court of Rush County correcting an incomplete journal entry in a criminal action. There can be no dispute regarding the controlling facts which may be briefly stated.
Defendant, Beverly K. Moses, who was represented by competent counsel, appeared before the district court of Rush County on January 13, 1958, accompanied by his attorney, and entered a plea of guilty to an information charging him with the crime of burglary in the second degree, in violation of G. S. 1955 Supp., 21-520, now G. S. 1961 Supp., 21-520. Subsequently a journal entry of judgment and sentence, approved by counsel for the defendant and the state, was prepared and filed in the office of the clerk of the district court. This journal entry contained a reference to tíre statute violated, but failed to specifically include the burglary sentencing statute (G. S. 1949, 21-523) as required by G. S. 1949, 62-1516. However, such journal entry did contain other recitals to the effect defendant was sentenced to the State Penitentiary, for commission of the offense to which he had entered a plea of guilty as charged in the information, for the period of time prescribed by law for the commission of such offense. Defendant did not appeal from the judgment and sentence imposed against him.
The fact the journal entry failed to make specific reference to G. S. 1949, 21-523, came to the attention of the County Attorney of Rush County two years after it had been filed of record. Thereupon that official filed a motion for a nunc pro tunc order correcting such instrument by supplying the missing statutory reference and gave notice to the parties, including defendant and his attorney, that such motion would be presented to, and heard by, the district court on January 9, 1961. On the date indicated, the state appearing by the County Attorney and the defendant appearing by his attorney of record, the motion was presented to the district court which, after a full and complete hearing, found that through inadvertence in the preparation of the journal entry reference to the sentencing statute was omitted and that although such journal entry was deficient in that respect it was susceptible to correction through an order nunc pro tunc. Whereupon, after making such findings, and others supporting them, the court by written order, dated January 9, 1961, sustained the state’s motion and directed that the journal entry of January 13, 1958, be amended by adding the phrase: “Sentence herein imposed under the provisions of G. S. 1949, 21-523.”
Subsequently defendant perfected the instant appeal wherein, as we view the record presented, the only question properly before us for appellate review is that the district court had no power or authority to correct the journal entry in manner and form as heretofore indicated.
This, we may add, is due in part to one of our recent decisions in a case where this appellant unsuccessfully contended that the judgment and sentence here involved was void because of the same journal entry defect he now claims was erroneously corrected by the sentencing court in the case at bar. See Moses v. Hand, 188 Kan. 317, 362 P. 2d 80, certiorari denied, 368 U. S. 863, 7 L. Ed. 2d 61, 82 S. Ct. 110, where we said and held:
“This appeal in a habeas corpus proceeding raises only one question as to a minor fault in the journal entry of the judgment in which the appellant was convicted after a plea of guilty to a charge of second degree burglary. The journal entry has long ago been corrected by an order nunc pro tunc. The order deny the application for a writ of habeas corpus is affirmed upon the authority of Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, [certiorari denied, 335 U. S. 909, 93 L. Ed. 442, 69 S. Ct. 419, rehearing denied 336 U. S. 911, 93 L. Ed. 1075, 69 S. Ct. 511]; Browning v. Hand, 184 Kan. 365, 366, 336 P. 2d 409, [certiorari denied, 361 U. S. 926, 4 L. Ed. 2d 240, 80 S. Ct. 295]; Converse v. Hand, 185 Kan. 112, p. 115-116, 340 P. 2d 874, and authorities cited. It is hereby so ordered.”
In the case from which we have just quoted we had before us, prior to the rendition of our decision, the very same order of which the appellant now complains and, in disposing of the merits of the appeal, recognized at least by inference, if not specifically, that the trial court had power and authority to correct the portion of the journal entry here in question. Under such circumstances we might be warranted in affirming the instant appeal on the authority of Moses v. Hand, supra. Even so it is neither necessary nor required that we do so.
In Converse v. Hand, 185 Kan. 112, 340 P. 2d 874, under facts and circumstances so similar they cannot be distinguished for purposes of appellate review, we disposed of the all-decisive question involved in the case at bar when we said and held:
The last ground relied upon by the petitioner is that the journal entry of judgment in his conviction proceedings was defective in that it did not set out the statutory citation of the offense of which he was convicted and sentenced as required by G. S. 1949, 62-1516. Respondent admits the alleged defect in die journal entry but denies that it is a ground for release by writ of habeas corpus. We agree with the respondent. Petitioner has not served his sentence and therefore is not entitled to his release. The sentence was not void — the journal entry was merely incomplete and subject to correction (Browning v. Hand, 184 Kan. 365, 366, 336 P. 2d 409, and cases therein cited [certiorari denied, 361 U. S. 926, 4 L. Ed. 2d 240, 80 S. Ct. 2951). Furthermore, the journal entry had been corrected, . . (pp. 115, 116.)
See, also, Wilson v. Hudspeth, 165 Kan. 666, 668, 669, 198 P. 2d 165, certiorari denied, 335 U. S. 909, 93 L. Ed. 442, 69 S. Ct. 410, rehearing denied, 336 U. S. 911, 93 L. Ed. 1075, 69 S. Ct. 511, where, with respect to omissions in a journal of the same statutory reference here involved, we said:
“. . . The journal entry of judgment in this case does not comply with the above provisions of the statute [G. S. 1961 Supp., 62-1516]. Such journal entry, being merely incomplete, does not render the judgment either void or voidable. The description of the charge is definite, the verdict of the jury is clear, and the judgment and sentence leave no doubt as to punishment inflicted. The verdict is valid. If the sentence imposed had been void, the proper procedure would be to return the defendant to the district court of Lyon county for resentence. (Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224.) We do not feel such a procedure is necessary here, as the sentence is not void, but the journal entry is merely incomplete . . .” (pp. 668, 669.)
and then went on to spell out the procedure to be followed in supplying the journal entry with the missing statutory defect. That procedure, it may be stated, is for all practical purposes the same procedure followed by the state in obtaining the order of the district court correcting the incomplete journal entry in the case at bar.
For other well-recognized decisions, dealing with the power of a court to correct its record by supplying missing details to the facts therein recited where — as here — an incomplete journal entry is susceptible of correction and the correction made by the court below is in accord with the events which took place in the original proceeding, see State v. Cole, 189 Kan. 561, 370 P. 2d 115, and the decisions there cited.
We find nothing in the record presented or in the contentions advanced by appellant which warrants or permits a conclusion the district court erred in correcting its original and incomplete journal entry of judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a criminal case wherein the appellant filed a petition for writ of error coram nobis and is a companion case to No. 43,130, this day decided. The cases were jointly tried by the court below and the writs denied. The appeal in No. 43,130 is being dismissed on the grounds of lack of jurisdiction and the jurisdiction and the rulings made in that case are controlling here.
Appeal dismissed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant is engaged in producing and refining oil and owns and operates a number of refineries located in Kansas and Oklahoma.. The appellee, claiming that he had performed services for appellant as superintendent of refineries, brought this action to recover his salary for one month. The jury returned a verdict in his favor for $175 and interest. From the judgment the company appeals.
The plaintiff alleged that he had been employed as superintendent of refineries for a period of one year from August 1, 1910, at a salary of $175 per month, under a written contract executed on behalf of the company by S. A. Darrough, its general manager; that in pursuance of the terms of the contract he had performed his duties as such superintendent and that his salary for the month ending October 21, 1910, remained due and unpaid. Attached to the petition was a copy of the contract. The answer, which was verified, admitted that Darrough was general manager of the company but denied his authority to create the office of superintendent of refineries or to fix the salary of such office or to make the contract. It set out what purported to be a copy of the by-laws of the company and certain provisions of its charter, which placed the management, control and direction of the affairs of the company, except as otherwise expressly provided, in a board of directors consisting of twenty-one members. It was alleged that no authority had been , delegated by the board to the general manager to enter into the contract set up in the petition.' As a further defense it was alleged that when the written contract was executed appellee well knew that S. A. Darrough had no power or authority under the charter and by-laws to make the contract, and that he was about to be compelled to resign the position of general manager, but that, intending to defraud the company, Darrough and appellee entered into the contract long after it purported to be executed and fraudulently dated it back to the 1st day of August, 1910. The answer further alleged that at the time the alleged contract was executed the appellee was and for some time prior thereto had been in the employ of the company at a much smaller salary; that in September, 1910, S. A. Darrough resigned and was succeeded as general manager by H. H. Tucker, jr.; and that October 14, 1910, Tucker, as general manager, directed the appellee to perform certain services for the company at Tulsa, Okla.; that the appellee refused to obey such directions or to be controlled in the. performance of his duties by the general manager, and was guilty of insubordination.; that he informed the general manager that he had’ a contract whereby he became general superintendent of refineries, and he exhibited to the general manager a copy of the contract sued upon, which was the first information the company had of the existence of the pretended contract; that Tucker as general manager at once denied the authority of the former general manager to make the contract and notified appellee that the company refused to be bound thereby; and. having discovered that the appellee was wholly unfit for the position of general superintendent of refineries and that he was not loyal to the company and was not using his best efforts in the interest of the company, he thereupon discharged appellee as an employee on account of his insubordination, incompetency and disloyalty. The answer alleged that appellee had never rendered any services to the company since that date, and tendered the sum of $70 which it admitted was due as salary to and including October 14, but at the rate of salary which- it claimed the appellee was entitled to under his employment prior to the execution of the pretended contract. The answer, which is quite voluminous, sets up a number of other matters, which the court properly took out of the case. Whether or . not the court by its rulings on the admission of evidence and by its instructions deprived the appellant of one of its defenses will be considered later. The reply was a general denial.
The claims of error are numerous, but most of them revolve about the question of the implied authority of the general manager of a corporation such as this was to enter into a contract for the employment of a general superintendent of refineries for one year and to fix his salary, We think the making of the contract in question was within the apparent scope of the authority of the general manager. It has been frequently held that the term “General Manager” or “General Superintendent” is a broad and comprehensive title, and that as to the public and those who deal with such an officer, without actual knowledge of his authority, he is the corporation itself. (A. & P. Rld. Co. v. Reisner, 18 Kan. 458, 460, “General Manager;” Pacific Rld. Co. v. Thomas, 19 Kan. 256, “General Superintendent;” A. & N. Rld. Co. v. Reecher, 24 Kan. 228, “General Manager;” Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099, “General Manager”.)
In St. L., Ft. S. & W. Rld. Co. v. Grove, 39 Kan. 731, 18 Pac. 958, it was said:
“As the general manager of a railroad company has full control of all the company’s affairs, and complete direction over its treasury, we must assume that Miller had authority to employ Grove, or direct Forbes to employ him.” (p. 735.)
In Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, it was said:
“A general agent of an insurance company can mod ify the insurance contract or waive a condition of a written policy by parol.
“A provision in an insurance policy respecting encumbrances on the property insured may be waived by the insurance company or its general agent; and this although the policy contains a printed stipulation that no agent of the company or any person other .than the president or secretary shall have authority to waive any of the terms or conditions of the policy, and all agreements by the president or secretary must be signed by either of them.” (Syl. ¶¶ 2, 3.)
“A general manager of a corporation has been defined to be a person who really has the most general control over the affairs of the corporation, and who has knowledge of all its business and property, and can act in emergencies on his own responsibility; who may be considered the principal officer.” (14 A. & E. Encycl. of L. 1002.)
(See, also, 4 Words and Phrases, p. 3073, under title “General Manager” and cases cited.)
In a recent case, Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60, 38 L. R. A., n. s., 826, it was held that the general claim agent of a railroad com.pany has not the implied authority in the settlement of a claim against the company to bind the company by a contract to give the claimant employment for life. There • is, of course, a wide distinction between the powers of the general claim agent and those of the general manager, and in the opinion it was well said:
“It is not one of the duties of a claim agent to employ men to operate the road. If the general manager, or other official to whom power of employment is intrusted, should make such a contract there would be some room to imply authority of this exceptional character, but the employing and discharging of officers, agents and employees of the company is not the purpose for which a claim agent is appointed, nor is it a duty which naturally belongs to such an agency.” (p. 575.)
The weight of authority seems to hold that as a rule the general manager of a corporation may' make a contract of employment for one year which is binding on the corporation, upon the theory that a contract for such a time is not unusual or extraordinary. It has been frequently held as the general rule that express authority must be shown to engage employees for a longer period. In Laird v. Michigan Lubricator Co., 158 Mich. 52, 116 N. W. 534, 17 L. R. A. 177, the employment was for three years, and it was held that in the absence of any evidence of custom or any holding out as possessed of authority other than the bare fact that he was secretary-treasurer and manager, no authority would be implied to contract for employment not only beyond his own term of office, but beyond the period during which the entire management of the affairs of the company might be changed by the election of a new board of directors. (See, also, Carney v. N. Y. Life Ins. Co., 162 N. Y. 453, 57 N. E. 78, and note to same case in 49 L. R. A. 471.) In Stahlberger v. New Hartford Leather Co., 92 Hun, 245, 36 N. Y. Supp. 708, it was held that a general manager may contract for the employment of a laborer for one year when he has been held out as general agent with power to employ and discharge men and the person employed has no knowledge of any restrictions upon his power. (To the same general effect see, also, Townsend v. Railway Co., post, p. 260; Peck v. Dexter S. P. & P. Co., 164 N. Y. 127, 58 N. E. 6; Moyer v. Terminal Company, 41 S. C. 300, 19 S. E. 651, 25 L. R. A. 48.)
In the case last cited it was held that notice of a bylaw providing that no officer except the board of directors shall have authority to make contracts for service for the period of a year is not chargeable to one who is employed for a year by the general manager, who has been given absolute charge of its business at the place where the contract was made.
Since the- general manager had implied authority to bind the company .by the contract most of appellant’s claims of error are easily disposed of. The petition was not subject to demurrer. The copy of the contract attached thereto purported to be executed by S. A. Darrough as general manager, and it was not necessary to allege that he was such officer. There was no abuse of discretion, nor was it error to refuse to permit appellant to cross-examine the appellee in reference to the circumstances under which the contract was executed before admitting in evidence the original. He was called merely to identify the signature of Darrough and to prove that the latter was general manager of the company. There was no apparent reason why the orderly procedure should be set aside and appellant be permitted to establish its defense by a cross-examination upon matters wholly foreign to those brought out in the direct examination.
Nor was proof required showing that authority had been delegated to the general manager by the board or executive committee before the contract was admissible, for the reason that prima, facie the general manager was authorized to bind the company by such a contract. We construe, the allegations of the petition to set up a cause of action for earnings or salary due upon a contract, and not an action for damages for the breach of the contract by unlawfully discharging the appellee; and therefore the court properly limited the inquiry as to appellee’s earnings elsewhere to the month involved.
It is next contended that it was error to refusé to permit appellant to cross-examine appellee touching his knowledge of the provisions of the charter and bylaws of the company which it is insisted limited the authority of the general manager. This claim may be considered in connection with the claim that it was error to refuse to admit in evidence on the part of the defense one of the record books of the company containing a copy of its charter and by-laws. The court held the latter inadmissible on the ground that it was incompetent and immaterial what the charter and bylaws provided respecting the authority of the general manager. The court apparently proceeded on the erroneous theory that the fact that a contract of this character was made by the general manager was conclusively binding upon the company. Such is not the law. Prima facie the general manager had such power, but as a matter of fact he may not have possessed any such authority, and the person seeking to bind the corporation by the contract may have known of the limitations upon his implied powers, in which event the corporation would not be bound by the contract. The effect of the presumption of law respecting the power of the general manager was to cast upon the corporation the burden of proving the contrary, that is, his lack of authority, and that the party seeking to bind the corporation had knowledge of the restrictions. It was entirely proper for the corporation to show by its charter and by-laws, if it could, that the power of the general manager in matters of this kind was expressly or otherwise restricted; and we are unable to discover any valid, reason for refusing to admit the books of the company which purported to contain a copy of the charter and by-laws. The book was produced by the officer who testified he had charge of the records of the company, and it was not necessary to produce the original charter. However, the objection was sustained solely upon the ground that the evidence was irrelevant and immaterial. It was proper also on cross-examination of appellee as a witness to ask if he had actual knowledge that only the board of directors or its executive committee had authority to make such a contract. -We are unable to find .that either ruling amounted to reversible error for the reason that no claim is made that appellee had actual knowledge of any restrictions upon the powers of the general manager except as appear from the charter and by-laws of the company, and for the further reason that the particular provisions of the charter and by-laws upon which appellant relies to establish the lack of power in the general manager to bind the company by such a contract do not bear out the contention. The verified answer set out a provision of the charter which in general terms declared that “the affairs of this corporation shall be managed and conducted by a Board of Directors,” following which is a declaration that the board shall be. composed of twenty-one members. This provision is common to all charters and in no manner restricts or limits the implied power of the general manager to bind the corporation by any contract entered into by him for the company in the usual scope of his authority. So much for the charter. The answer sets out a number of by-laws, among them section 20, which reads:
“The general manager shall have the control and management .of the property and business of the Company, under the direction of the Board of Directors.”
Section 21, in part, reads:
“The management, control and direction of the affairs of the corporation is vested in the Board of Directors, . . . except as especially otherwise provided by law or by these by-laws. . . . The Board of Directors shall fix and determine the compensation to be paid to each of the officers and the amount and condition of any bond any such officer shall furnish.”
It is quite obvious that none of these provisions restricts or limits the implied power of the general manager in matters within the apparent scope of his duties. The officers whose compensation is to be fixed by the board are clearly those officers named and created by the by-laws themselves, including the general officers of the corporation, the president, the six vice presidents, the secretary, the treasurer, and' the general manager. In fact, it seems obvious that if the appellee, at the time he entered into the contract in question, had held in his hand a copy of the charter and by-laws, and had examined them with a view of ascertaining what the power and authority of the general manager was in respect to a cpntract of employment to superintend- the company’s refineries for one year, he would have found nothing to cause him to question the manager’s authority in the premises. Had the contract been for more than one year, or had it contained provisions obviously against the interests of the company, a different question might arise; but the character and nature of the employment, and the length of time, were only such as a general manager, held out as possessing the usual and ordinary powers, would be expected to exercise on behalf of the company.
The court limited the issues to whether or not the contract was entered into in good faith between appellee and the general manager clothed with authority to bind the company, and whether or not, in pursuance thereof, the appellee performed the services and was wrongfully and unlawfully discharged, and to an inquiry as to what sum, if any, was due him as salary, and submitted to the jury the question of whether or not there was any fraud or collusion on the part of S. A. Darrough and the appellee, or either of them, with the knowledge or connivance of the other. A number of instructions were asked by appellant, which were refused. Most all of them were based upon the theory that the general manager, under the provisions of the charter and by-laws of the company, had no authority to make the contract, and it is not necessary to consider the alleged error in refusing to give them.It would seem, however, that the court should have instructed that, even if the jury found from the evi dence that the contract was made as the appellee claimed, and that the general manager was clothed with authority to employ the appellee for a year and to fix his salary, still the company, through its general manager, had the right to discharge him at any time for insubordination or disloyalty to the company or the refusal to use his best efforts in the company’s interests. An instruction embodying this statement of the law was requested and refused. The instruction was objectionable for the reason that it covered a lot of extraneous matters, was filled with repetitions, and, as it was offered, it can not be said to have been error to refuse it. It was sufficient, however, to challenge the court’s attention, if that were necessary, to what constituted one of the principal defenses upon which the appellant relied, and no instruction was given upon this issue. It would be a bad rule that would not work both ways in a case like this, that would bind the corporation by the contract of employment made with the general manager because he was, as to the appellee, the company itself, and at the same time would deny to the company the right to discharge the same employee for refusing to obey the will of the company expressed through the general .manager. If the latter had power to employ, he had power to discharge an unfaithful servant of the company.
For the error in failing to instruct upon this defense, and in unduly restricting the issues, the judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to redeem certain city lots which had been mortgaged by Charles W. Clark to secure the payment of $150 borrowed from Walter Morris on October 17, 1906. The instrument given as security was in form an absolute deed, but was intended as a mortgage. After this transaction Clark purchased the property at a subsequent tax sale, and the certificate then obtained was assigned to Morris as additional security. The borrowed money was to be paid in small installments at fixed times, but Clark failed to make the payments at the times stipulated. On April 9, 1909, Morris sold the lots to Philip Schott, who had no notice of the rights of Clark or that he was in fact the owner of the lots, and by this sale Morris disabled himself to reconvey the lots to Clark upon the payment of the debt. The writings evidencing the sale to Schott were not recorded, and Clark had no notice that Schott had purchased .the lots until the writings were produced at the trial of this action. Before the sale to Schott, Morris, with four men, went to the lots one morning before daylight and put up a post and single wire fence around them. Clark discovered the action of Morris before the fence was finished, and in an interview Morris informed Clark that he had concluded to take possession of the lots. Morris testified that Clark then consented that he should take .possession of the lots and that they should be regarded as his property. Oh the other hand, Clark’s testimony is that he told Morris that because of sickness in his family he had been unable to make the payments as agreed upon, and that he did not know just what his legal rights were, but whatever they were he was going to stand on them. He denied positively that he surrendered possession of the property or disclaimed ownership in them, and the fact that he tore down the fence on the same morning and continued to use the property as he had previously done tends to support his testimony. On June 22, 1910, Clark tendered to Morris the full payment of the borrowed money with the accrued interest, and demanded that he convey the property back to Clark in accordance with the agreement, but both tender and demand were refused. On the trial Morris claimed to be the owner of the lots and that Clark had voluntarily surrendered possession of them, and at the same time had disclaimed any interest in them. The trial court found in favor of Clark, holding that the deed was intended to be and was in fact a mortgage, and that as against Morris he had a right to redeem; but it was also found that Schott, who had been made a party to the action, was a bona fide purchaser of the lots, and therefore redemption could not be enforced as against him.
The first and principal ground assigned as error is that a wrong measure- of damages was applied in fixing the liability of Morris. The court decided that he was liable for the value of the lots as they were when the tender of payment was made and the reconveyance of the lots was refused, while on the other side it was contended that a cause of action arose when Morris sold the property and placed it beyond his power to re-convey, and that its value at the time of sale was the measure of recovery. In a proceeding of this kind equitable considerations govern, and the measure of damages must depend largely upon the particular circumstances of each case. It appears that the contract, of sale from Morris to Schott was not recorded and. that Clark had no knowledge of the contract or of the sale to Schott until the trial was begun. Clark had a. right to suppose that what was intended to be a mort-. gage would be treated as a mortgage by both, and that the rights of each would be finally measured by the terms of the agreement. The transfer of the land in. violation of their agreement operated as a fraud upon Clark. In some of the cases it is held that if there is no-actual fraud the grantee is required to account for the full value of the land at the time he sold it, while other authorities hold that he is only required to pay the amount actually received for the land over and above the debt secured by the land. In still others it is held that the measure of the owner’s recovery is the utmost, value of the property at the time of the trial, less the amount of the mortgage debt. (27 Cyc. 1033, and cases cited.) In Boothe v. Fiest, 80 Tex. 141, 15 S. W. 799, where the owner of land gave an absolute deed to secure a loan from the grantee and afterwards transferred the title to a bona fide purchaser, it was held that the measure of the grantor’s right to recover was the value of the land at the day of trial, less the debt secured, and interest. In Hart v. Ten Eyck, (N. Y.) 2 John. Ch. Rep. *62, Chancellor Kent ruled that where land or other property is held in trust by another who sells the same in violation of his trust he “must answer for the value, not as it existed at the time of the sale, for that would not be an indemnity, and would be too great an indulgence to fraudulent breaches of trust, but for the value of the land as it existed at the commencement of the suit, if not at the time of taking the account by the master.” (p. *117.)
In Burdick v. Seymour, 39 Iowa, 452, an instrument conveying land was defectively recorded, and the grantor, to defeat the first conveyance, deeded the property to another and thereby transferred a good title to it, and it was held that the measure of damages was the highest value of the land at any time between the purchase by the first grantee and the commencement of his action to recover damages. It was further held that the liability was not on account of the breach of warranty but because of the fraud of the grantor in making the transfer. In Elisha Gibbs v. Reuben Champion, 3 Ohio, 335, there was a sale of land, and the vendor refused to convey because the first installment of the purchase price was not paid when it was due. The vendee tendered the full amount of the purchase money when the second installment became due, but the vendor had sold the property to a third person and had disabled himself to make a conveyance to the vendee. The court held that as the vendor had treated the contract with the vendee as a continuing one and had taken no steps to relieve the vendee from liability on the contract it was still binding, and having transferred the property to an innocent purchaser he was liable in damages to the vendee and the . measure of damages- was “the difference between the purchase money, and the value of the unimproved lot, at the time the party entitled himself to a conveyance, by tendering the purchase money.” (p. 337.)
Other authorities to the same effect are: May v. Le Claire, 78 U. S. 217; Meehan v. Forrester et al., 52 N. Y. 277; Gibbs v. Meserve, 12 Ill. App. 613; Linnell v. Lyford, 72 Maine, 280; Johnson v. McMullin, 3 Wyo. 237, 21 Pac. 701, 4 L. R. A. 670.
Some of the authorities referred to in 27 Cyc. 1033 "hold that the value should be ascertained as of the time The sale of the property is made, and where there is notice of the sale and freedom from fraud such a rule might be deemed equitable. In view of the circumstances of this case the rule of the trial court that damages should be measured by the value of the lots when Clark tendered the amount of the debt and entitled himself to a reconveyance of the property appears to be equitable and well within the authorities.
Complaint is made as to the exclusion of evidence from the jury as to the surrender of possession and the disclaimer of interest in the property by Clark, but the ruling is not open to our consideration. By section 307 of the civil code a party who wishes to avail himself of a ruling excluding offered evidence as error is required to produce such evidence on the motion for a new trial, by affidavit, deposition or oral testimony of the witnesses. This was not done, and hence that ruling, whatever it may have been, can not be regarded as a ground for reversal. It might be said, however, that testimony upon this subject was received in evidence in the trial which was had before the jury was called. -At the end of that trial the court appears to have determined every question in the case except as to the amount of damages sustained by Clark, or, in other words, the value of the property when payment of the debt was tendered by Clark. In the testimony then received, including that relating to an alleged disclaimer of ownership, the court determined that Morris held no more than a mortgage lien on the property and that as against him Clark had a right of redemption. There was testimony, too, before the court at that time in regard to the value of the lots, and the court might very well have gone farther and made a final disposition of the case, deciding for itself the value of the property and the amount of recovery. However, the court impaneled a jury and received testimony on the question of value at the time of Clark’s tender, and the jury’s finding was approved by the court. There was no occasion to resubmit the questions previously determined by the court, and assuming that the testimony as to the voluntary surrender of possession and the disclaimer of interest in the lots was then admissible, the question of its rejection, as we have seen, is not preserved for review. •
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Wyatt Stanley sued the Atchison, Topeka & Santa Fe Railway Company for damages resulting from the escape of cattle from his feed lot, alleged to have been due to the defendant’s negligence. The plaintiff having died, the action was revived in the name of. his administratrix. Upon a jury trial a general verdict was returned against the defendant, but judgment was rendered in its favor upon the special findings. The plaintiff appeals.
The evidence tended to show these facts: Stanley kept a number of cattle in a feed lot one side of which was formed by the right-of-way fence. Employees of the company who were engaged in its repair removed a part of it, as well as a part of Stanley’s fence which connected with it, and as a temporary protection strung two wires across the gap. The protection was insufficient and the cattle escaped. None of them was injured upon the right of way, but a number strayed and were not recovered, and others suffered injury, in some cases fatal'.
The defendant maintains that in any view of the findings the judgment ought not to be reversed, for the reason that the petition does not state a cause of action, because the company was under no obligation to maintain the fence, except for the purpose of avoiding liability for animals killed or injured by its trains, and therefore can not be held accountable for any other kind of loss occasioned by the want of a sufficient fence. The original statute upon the subject does not in terms require a railroad right of way to be fenced. It makes the company responsible for animals killed or injured by the operation of its railway irrespective of negligence, except where the road is enclosed with a lawful fence. (Gen. Stat. 1909, §§7001, 7005.) It seems to be generally held that where a railway company is not required to fence its right of way, but does so voluntarily, it incurs no liability by reason of suffering it to become out of repair. (Davis Bros. & Burke et al., v. Le Flore, 26 Okla. 729, 110 Pac. 782; Illinois Cent. R. Co. v. Clogston, [Miss. 1911] 54 South. 75.) A statute similar to that cited has been held to impose a duty to fence. (Sullivan v. O. R. & N. Co., 19 Ore. 319, 24 Pac. 408.) We need not determine, however, what the rights of the parties would be if this were the only statute applicable. There is a later one providing in effect that an adjoining landowner may, by making a demand, require a railroad company to fence its right of way where this is neccessary to complete an enclosure. (Gen. Stat. 1909, §§ 7075-7077.) The petition alleges that the fence was originally built at the expense of the company formerly owning the road, which agreed with the landowner, who had fenced the other sides of the adjoining tract, to maintain it; and that the company operating the road has ever since maintained it, rebuilding and replacing it from time to time. This is sufficient to dispense with a demand, even if that would ever be necessary where the fence had actually been built. The later statute imposes á duty on the railroad company to maintain the fence, and it is liable for any injury of which its neglect of such duty is the proximate cause. Cases somewhat in point are: Gordon v. The Chicago, S. F. & C. Ry. Co., 44 Mo. App. 201; Parish v. Louisville & N. R. Co., 25 Ky. Law. Rep. 1524, 78 S. W. 186. Illustrations of injuries held not to be proximately caused by the failure to fence are found in 41 Cent. Dig. cc. 3247-3250, § 1427. A note in 29 L. R. A., n. s., 573, on “liability of railroad whose failure to maintain fences permits escape of live stock, which is killed or injured outside its right of way/’ collects the cases bearing on that point, which show some conflict of opinion.
The defendant urges that the purpose of the statute referred to is to promote safety in the running of trains; that in this purpose is found the only warrant for imposing upon the railroad company the obligation to fence its right of way; and that therefore the company’s liability must be limited to injuries resulting from the operation of the road, and the state has no power to make it liable for losses occasioned by the escape of animals which do not meet with any injury upon the right of way. Assuming that the right of the legislature to require a railroad company to fence its tracks is based solely upon the consideration that such fencing may be deemed necessary to diminish the danger of injury to animals from the operation of trains,, and to persons and property resulting from trains colliding with animals, it is competent as a means of enforcing such requirement to make the company liable for losses occasioned to the landowner by the escape of his cattle through a defective fence, although they pass from the right of way without injury.
The judgment in favor of the defendant was obviously based upon the theory that the special findings showed the plaintiff to have been guilty of contributory negligence in not having himself done something to secure the cattle, after acquiring knowledge of the condition in which the company’s employees had left the'fence. There were findings to the effect that the cattle escaped at about dusk; that a little after noon of the same day the plaintiff saw the fence, which was then.in such condition that the cattle could readily pass out of the lot, and took no steps to make the enclosure stronger or safer; that the employees, of the company did no work on the fence that day. Stanley testified at a former trial, and the testimony was used at this one, that his cattle had got out a week or ten days before, and he had asked the company’s agent to have the fence fixed; that at noon of the day in question he saw the fence and' thought it was not strong enough to hold a bunch of cattle, but it had stood the night before, so he left it; that new holes had been dug and >new posts laid beside them, but not set;.that he saw a car on the switch about fifty yards away and supposed material and tools were on the car; that he did nothing with the fence, but told his hands to feed the cattle in the part of the lot farthest from the gap. There was testimony that this was done. In the light of this evidence we think it was a fair question for the jury to determine whether under the facts as established by the findings referred to Stanley was guilty of contributory negligence in failing to take any further precaution. There is room for a reasonable conclusion that, while acting with ordinary-prudence, he believed that the company’s employees would shortly resume their work and would prosecute it with diligence so that the fence would be repaired before the cattle were likely to escape. It can not be said as a matter of law that he was bound to anticipate that the fence would be left in the same condition for the rest of the day.
The jury were asked: “If said Stanley observed the condition of said wires about one o’clock on the day the cattle escaped, could he by use of ordinary care have made said enclosure safer and prevented his cattle from escaping at the point where they escaped that evening?’’ They answered: “No, it would have taken extraordinary care.” Another question was: “If Wyatt Stanley observed the condition of the wires about one o’clock of the day on which said cattle escaped, what, if anything, was there to prevent him from making said enclosure safe by the exercise of ordinary care on his part, so as to prevent the escape of his cattle at said place?” The jury at first returned the answer: “We think Mr. Stanley expected the fence gang to return that afternoon to fix the fence.” Upon the request of the defendant the court required the- jury to make a different' response to this question, and their second answer read: “We don’t know.”
Ordinarily when the jury are asked whether a certain fact exists, a reply that they do not know is equivalent to a statement that the evidence does not persuade them of its existence, and amounts to a finding against the party upon whom the burden of proving it rests. (Morrow, et al., v. Comm’rs of Saline Co., 21 Kan. 484; A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343.) The defendant maintains that upon this principle the jury are to be regarded as having found thát there was nothing to prevent Stanley from making the enclosure safe by the exercise of ordinary care; in other words, that if he had exercised ordinary care he would have made the enclosure safe. We do not think this is a fair interpretation of the findings when viewed in the light of the entire record. The two questions quoted are substantially the same. Each involves two propositions, first, whether Stanley could have made the enclosure safe, and second whether to have done so would have been the exercise of only ordinary care, that is, whether ordinary care required him to do so. There was of course nothing to prevent Stanley from building a barrier himself if he so desired. The really vital part of the question is whether he was obliged to do so in order to be regarded as exercising ordinary diligence. In answer to the question first quoted the jury said that he could not have made the fence safe by the use of ordinary care—that it would have taken extraordinary care. The meaning seems to be, not that the plaintiff was physically prevented from making the enclosure safer, or would have encountered any extraordinary obstacle in doing so, but that an ordinarily careful man would not have regarded it as necessary under the circumstances. Upon the same grounds we regard the original answer to the other question as responsive. In view of the general verdict and the other findings we think it must be held to mean that Stanley expected the fence gang to return during the afternoon and fix the fence; that this belief on his part was reasonable, and in reliance upon it he was justified in taking no further steps on his own part; in other words, his belief that the fence gang would shortly return prevented the duty to exercise ordinary care from requiring him to make the enclosure safe himself. The subsequent answer of the jury, upon this being held insufficient, that they did not know, must be regarded as meaning that they did not know of anything that prevented Stanley from acting, beyond what they had already stated—his belief that the employees of the company would make action on his part unnecessary.
The defendant, in addition to its motion in the district court for a judgment in its favor on the special findings, filed a motion for a new trial. The court over-.' ruled this for the sole reason that the defendant’s mo-, tion for judgment had been sustained, finding at the same time that the general verdict was contrary to the evidence. A judgment can not be ordered upon a general verdict that has not the approval of the trial court. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 30 Pac. 108.) Therefore, the judgment for the defendant being reversed, the cause is remanded with directions that the court pass upon the motion for a new trial upon its merits. | [
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The opinion of the court was delivered by
Smith, J.:
The appellee brought this action against the city of Wichita to recover damages for personal injuries alleged to have been received by her in stepping upon a loose brick at a point where she stepped off the sidewalk to cross an intersecting street. She alleged that loose bricks and parts of bricks were scattered upon the walk and street where she was re quired to step in pursuing her journey; that such bricks and parts of bricks had been negligently left upon the street by the city, its agents and employees; that stepping upon such brick caused her to fall and caused her injuries, which she details and which she says were caused by the negligence of the city, to her damage in the sum of $5000.
The city denied generally the allegations óf the petition and alleged in answer that at the time and place charged the plaintiff was guilty of contributory negligence and that her injuries, if. any, were caused thereby.
After a somewhat protracted trial the jury returned a general verdict in favor of the plaintiff for $5000 damages, and also answered numerous special questions, involving her cause of action and defense, áll favorably to the appellee.
The appellant moved the court to set aside the verdict and grant a new trial, which motion was overruled and an appeal duly taken.
Several grounds of error were assigned in the motion for a new trial, but only one ground seems to be specifically urged in the brief of appellant, viz:
“The District Court erred in refusing to sustain defendant’s motion for a new trial on the ground that the verdict and the amount thereof are wholly unsupported by the evidence and are the result of passion and prejudice.”
It is especially urged that the amount of damages allowed is excessive. Two physicians testified that the thigh bone was broken near the hip joint and the bones had never reunited and the injury was permanent. One of the physicians testified that he had replaced the fracture and bandaged it; that he saw it every day for two months; that the effect of a hip fracture is a great deal qf pain and suffering and loss-of appetite, and a debilitated condition of the whole system; that he took care of her for two months; that she was able to move about some when he left—she was not able to walk.
In short, after a fair trial, the evidence fairly supported the findings and verdict which were approved by the court in overruling the motion for a new trial and rendering judgment thereon. It has been repeatedly held by this court that in such a case the judgment will not be reversed on the ground that the evidence is insufficient.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to enforce the payment of insurance on the life of John Dobson, the deceased husband of the appellant. Dobson had become a member , of the Triple Tie Benefit Association in 1902, holding his membership in the local council of the association at Kiowa, Kan., and for some time prior to his death on December 25, 1908, he had served as local secretary of the council. The rules and by-laws of the association provided for the prompt payment of the monthly dues and assessments, and they further provided that if such monthly dues and assessments were not paid by the last day of the month the member so failing to pay promptly should thereby be suspended. The by-laws also provided that a report should be made by the local secretary on a certain day of the month, and on failure to receive that report it should become the duty of the supreme secretary of the association to notify the officers of the association that the local council had accordingly been suspended, and on a further delay it should become the duty of the supreme secretary to publish the suspension of the council in the official organ of the association. While acting as local secretary Dobson collected money from members which he failed to promptly remit to the home office, as he was required to do, although repeated demands for payment were made upon him.. Considerable of the correspondence relating to the forwarding of the dues paid to him as local secretary by other members of the local council was offered in evidence. It was claimed that Dobson became delinquent in his dues after October 1, 1908, and that under the by-laws his certificate lapsed on the last day of that month, and in one of the letters sent to him'he was notified that he had been suspended. On the other side it was contended that if there was a default in the payment of dues it was waived by the association in the acceptance of money remitted by Dobson on November 27, 1908, and that by retaining the money it was estopped to' declare the certificate invalid. Upon all the testimony the trial court found in favor of the association, and upon this appeal the question is principally one of fact, whether Dobson was in good standing as a member when he died, of if there was a waiver of any default made by the retention of dues subsequently paid.
If the association accepted payments of delinquent dues and assessments and led the insured to believe that he was still a member and that payments would be accepted notwithstanding the delinquency it would be estopped to claim a forfeiture of membership. (Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160; Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219; Mosiman v. Benefit Association, 82 Kan. 670, 109 Pac. 413.)
The testimony tends to show that Dobson was delinquent as to dues which had accrued for the months of October and November prior to his death. The contention is that a payment of $5.25 made on December 7, 1908, was accepted by the supreme secretary and that it operated to discharge Dobson’s obligation for unpaid dues. It appears that a payment of that amount was made at the time, but the testimony tends to show that it was not remitted in payment of his dues, but to pay the dues of other members which he had collected as local secretary before that time, and which was not sent until letters of the most urgent kind had been written to him. It is also contended that an excess payment of $2.40 was made in the preceding September which the supreme secretary retained and if Dobson was credited with that amount there could be no forfeiture. There is testimony, however, that this amount was not remitted in payment of his own dues but was an excess payment made in behalf of John Piper. In settling for the dues collected by Dobson from other members it was found that he still owed $7.65, and it appears that the $2.40 excess payment for Piper was deducted from the $7.65, leaving $5.25, the amount of the money order remitted to pay the dues which Dobson had collected from others as local secretary. There was some confusion in the testimony as to the payment of dues which he received as secretary and those due from him as a member, but we find sufficient testimony to support the ruling of the court that he was delinquent in the payment of his own dues at the time of his death; and further, that there was no waiver of the delinquency by the association nor any conduct which estopped it or its officers from insisting on a forfeiture of membership for noncompliance with the by-laws. .
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The opinion of the court was delivered by
Wedell, J.:
This was an action for the cancellation of a written lease on a business property, for a restraining order and for possession of the premises. The plaintiff, owner of the property, prevailed and the defendant, lessee, appeals.
The written lease was executed for a one-year period beginning January 1, 1948, and ending December 31, 1948. It covered the ground floor of a business building located in Eureka, Kan., together with certain shelving, furniture and equipment of the owner. In it appellant conducted a business known as the Town Tavern, which consisted in the selling of legalized cereal malt beverages. The lease provided appellant would retain complete supervision of the business and keep the premises free from nuisance, gambling, bawdy and unlawful practices. The lease further provided that upon failure of appellant to faithfully and fully keep and to perform each and all of its covenants appellee could forfeit and terminate the lease in the manner indicated in the agreement.
The instant action was instituted June 22, 1948, on the ground the covenants previously mentioned had been violated and that upon notice of forfeiture and for possession of the premises appellant refused to close the business or to deliver possession of the premises.
At the time the action was commenced appellee obtained an order from the probate judge of the county restraining appellant from maintaining or conducting the business in question, “. . . until further order of this court.” No further order restraining or enjoining appellant was made. No bond had been given in connection with the restraining order of the probate court and appellant at that time made no request that one be posted. On July 7, 1948, he filed a motion to set aside the restraining order on the ground no bond had been executed but he did not then present that motion to the court.
On August 9, 1948, without having presented the foregoing motion, appellant filed a verified answer to the verified petition of appellee. The answer contained a general denial and specific denials of any breach of the terms of the lease. On the day preceding the trial, namely, October 17, 1948, appellee filed a reply in which he denied each and every allegation contained in appellant’s answer. The case was tried on October 18, 1948. On the day of the trial appellant filed a new motion to discharge the restraining order for the reason no bond had been posted. The court was then ready to try the case on its merits and overruled the motion. At the conclusion of the trial and on the same day the court found generally for the plaintiff and directed: If a motion for a new trial was not filed execution should issue; if such motion was filed execution should be stayed until October 25, 1948, provided a good and proper bond was filed in the sum of $250; that the keys to the building should be delivered to plaintiff within three days if no motion for a new trial was filed.
A motion for new trial was filed and was set for hearing on October 25. Although affidavits were filed in support of the motion, which the court examined, neither appellant nor his counsel appeared for the hearing. Upon consideration of the motion and argument in opposition thereto the motion was overruled and ap pellant was ordered to forthwith deliver the keys to the clerk of the district court.
Appellant first contends the case was not at issue on October 18, 1948, the first day of the October term of court in Greenwood county, and should not have been tried at that time by reason of the provision contained in G. S. 1935, 60-2932, as follows:
“Actions shall be triable on the issues of fact in ten days after the issues are made up.”
An examination of the petition and answer discloses the material issues joined thereby were whether appellant had breached the terms of the lease agreement which justified cancellation thereof and a restraining order. It appears the reply was really unnecessary as it actually denied only the denials contained in the answer. The answer contained no new matter which required a reply in order to join issue on the facts to be litigated. The pertinent part of G. S. 1935, 60-717 provides:
“When the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him. . . .” (Emphasis supplied.)
Furthermore, there is not the slightest indication appellant’s rights were prejudiced in any manner by reason of the lateness in filing the reply. In Southern v. Cement Co., 108 Kan. 213, 194 Pac. 637, it was held:
“A judgment will not be reversed because of the trial having been begun in less than ten days after the issues were made up, where it is clear that no actual prejudice resulted.” (Syl. If 1.)
Appellant next argues that by reason of the delay between the granting of the restraining order and the trial the restraining order became a temporary injunction and the court should have required appellee to post a bond in accordance with the provisions of G. S. 1935, 60-1110, which reads:
“No injunction, unless otherwise provided by special statute, shall operate, until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party injured the damages he may sustain if it be finally decided that the injunction ought not to have been granted.”
That the original restraint resulted only from a restraining order is conceded. That is the only order a probate court is authorized to make. (State v. Johnston, 78 Kan. 615, 97 Pac. 790.) And such an order is intended only to be operative until the district court or judge can act on the matter. (Crawford v. Firmin, 143 Kan. 794, 797, 57 P. 2d 465; G. S. 1935, 60-1103.)
Appellant cites Bowman v. Hopper, 125 Kan. 680, 265 Pac. 743, and City of Wichita v. Home Cab Co., 151 Kan. 679, 684, 101 P. 2d 219, on the proposition that in case of similar delays in obtaining a temporary injunction it has been held the restraining order may become, in effect, a temporary injunction. Assuming only for the sake of argument that such could have been its effect in the instant case, what is the practical effect of appellant’s contention now? Under the provisions of G. S. 1935, 60-1110 and 60-1114, the injunction is not operative until a bond is filed as therein provided.' Appellant did not press his original motion to set aside the restraining order and urge that a bond be posted by appellee in the event the restraining order was not set aside. This the law expressly permits him to do. (See G. S. 1935, 60-1118, 60-1108, 60-1111.) Instead appellant filed an answer joining issue on the question of appellee’s right to cancel the lease. In his answer he made no claim for damages by reason of any unlawful restraint whether by restraining order or temporary injunction. No issue was joined on the subject of damages by reason of any alleged unlawful restraint and, of course, no damages are claimed now. It follows the question whether the restraining order ripened into a temporary injunction which required a bond has become an abstract question which can in no wise affect the only issue litigated, namely, appellee’s right to ultimate possession by reason of appellant’s breach of the lease. Furthermore, if appellant’s contention that the restraining order spent its force and that no valid temporary injunction ever issued is correct, then it follows appellant was not legally restrained after the restraining order spent its force and he could have operated the business. We may also note in passing that the entire question is really moot now for the reason that the lease has entirely expired by its own terms.
Appellant further argues he requested and was entitled to have the case tried by a jury on the ground that issues of fact were joined relative to the alleged violation of the terms of the lease. Cancellation is an equitable remedy. In a suit in equity a party is not entitled to a trial by jury as a matter of right. (Tamsk v. Continental Oil Co., 158 Kan. 747, 750, 150 P. 2d 326.) This is the rule notwithstanding some facts must be litigated so long as the action is essen tially equitable in its nature. (Rogler v. Bocook, 148 Kan. 858, 84 P. 2d 893; G. S. 1935, 60-2903.)
Appellant also contends appellee’s evidence was insufficient to support the judgment in his favor. He argues the evidence did not disclose a violation of the lease. We cannot agree. It would add nothing to the value of the opinion to narrate the evidence. There was evidence: Appellant did not retain complete supervision of the business himself; he did not keep it from being a nuisance and free from unlawful practices; beer was sold on Sundays contrary to law; the place was operated after midnight, concerning which the police had admonished appellant; intoxicated persons were seen in the place; persons were seen drinking near by in the alley; they were loud; the place was only one block from a church. In view of this evidence it cannot be said the court was unwarranted in canceling the lease.
Appellant finally contends the court erred in overruling his motion for a new trial. In support of that motion appellant offered affidavits of two persons which refuted the testimony of appellee’s witness, Ray Lindamood, chief of police of Eureka, during the trial that he had seen both of those persons drinking beer in the Town Tavern on Sunday morning. This evidence adduced in support of the motion for a new trial merely created a conflict in the testimony relative to the particular point covered by the affidavits. Such a conflict did not compel the court to grant a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Arn, J.:
This is an action to quiet title to seven acres of land in section 33, township 16, range 19, and to 108 acres of land in section 4, township 17, range 19, all in Franklin county, Kansas. All parties admit that plaintiff, appellant here, is the owner of the 108-acre tract in section 4 and there is no controversy as to that land. Contiguous to the 108-acre tract, directly north of it and between it and the river, is a seven-acre tract lying just across the section line in section 33. It is this seven-acre tract that is involved in the instant appeal. Upon a trial in the district court without a jury, judgment was rendered upon defendants’ answer and cross petition quieting title of the defendants in and to this seven-acre tract of land, and from that judgment plaintiff appeals.
There is no material dispute as to the facts, and little variance in the abstracted testimony. The evidence showed the facts to be as follows: For several years the seven-acre tract in section 33 and the 108-acre tract immediately to the south had been farmed as a unit. There was no fence between the two tracts although they lay in separate adjoining sections. The river looped around the seven-acre tract and some other land in section 33, so that the seven-acre tract lay south of the river and between the river and the 108 acres admittedly owned by appellant.
Prior to the time in controversy, William McBrier had owned the 108-acre tract and the seven-acre tract as well as other adjoining land. He willed the 108-acre tract to his two sons, Amherst and Alphonse McBrier, but died intestate as to the seven-acre tract here in question. Amherst and Alphonse McBrier conveyed the 108-acre tract to the appellant on January 15, 1931, by deed which included an easement to the grantee over a strip of land thirty feet wide along the east side of the seven-acre tract and extended north from the section line to the river. The appellant has no deed to the seven-acre tract, and the appellees are heirs at law of William McBrier who died intestate as to this particular tract. Since appellant acquired the 108-acre tract in 1931, he has also had possession of the seven-acre tract, and from 1931 to 1948 he has farmed it or rented it out to farm tenants. Since 1931 appellant has been in open and notorious possession of the disputed tract. One witness, the local abstractor, testified that appellant discussed this seven-acre tract with him in March or April, 1947, and appellant told him he thought his north line was the river; that appellant also said the first information he had that his title did not include the seven acres in section 33 was when the state highway condemnation proceedings were commenced in March or April of 1947. Appellant never paid taxes on the seven-acre tract. Taxes were paid by appellees until 1938 and after that the records show they were paid by a third party who owns some other adjoining land not involved here.
The evidence before the trial court, and brought to the attention of this court, may be summed up by saying that this appellant thought his land extended to the river and included this seven-acre tract, although his deed from the McBriers in 1931 covered only the 108 acres; that appellant held this seven-acre tract openly and notoriously as his own for fifteen years without being challenged or molested by the record owners under the mistaken belief that it was his land; that not until this action was filed did appellant deny the record owners’ title.
Appellant contends that his actual possession for fifteen years constitutes adverse possession so that he should be decreed the legal owner of the seven-acre tract. Some jurisdictions hold that title by adverse possession can be acquired where the occupancy was taken and continued under a mistake as to the true property line. Appellant states in his brief that this should be the law in Kansas, regardless of the holding in Craig v. Paulk, 162 Kan. 280, 176 P. 2d 529, which he cites. In that case, this court recognized the different rule followed in some other jurisdictions, and said:
“A different view has been taken in this state. It has been held in a series of cases that title to a boundary strip cannot be established by adverse possession where the possessor occupies the boundary strip simply upon a mistaken belief that a fence or other line constitutes the true boundaiy line. In Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, the rule was stated as follows: ‘Where a fence is believed to be the true boundary and the claim of ownership is up to the fence as located, if the intent to claim title exists only on condition that the fence is on the true line the intention is not absolute, but conditional, and the possession is not adverse. (Scott v. Williams, 74 Kan. 448.) If, however, in such a case there is a clear intention to claim the land up to the fence, whether it be the correct boundary. or not, the possession will be held adverse.’ (Italics supplied; syl. If 3.)” (p.284.)
Many other decisions of this court have settled the proposition that mistaken and unintentional possession in opposition to the true title holder, continued over a long period of time through ignorance and inadvertence, will not constitute such adverse possession as will ripen into title by prescription. (Simpson v. Goering, 161 Kan. 558, 170 P. 2d 831; Steinbruck v. Babb, 148 Kan. 668, 84 P. 2d 907; Park Construction R. & S. Corp. v. Emmett, 145 Kan. 604, 66 P. 2d 379; Wiburg v. Stevenson, 134 Kan. 530, 7 P. 2d 512; Howell v. Kelly, 129 Kan. 543, 545, 283 Pac. 500; Fuller v. Stone, 116 Kan. 299, 300, 226 Pac. 778; Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195; Hinnen v. Artz, 99 Kan. 579, 163, Pac. 141; Shanks v. Williams, 93 Kan. 573, 144 Pac. 1007; Scott v. Williams, 74 Kan. 448, 451, 87 Pac. 550; Mathis v. Strunk, 73 Kan. 595, 596, 85 Pac. 590; Shanline v. Wiltsie, 70 Kan. 177, 182, 78 Pac. 436; Winn v. Abeles, 35 Kan. 85, 88, 10 Pac. 443.)
In Steinbruck v. Babb, supra, it was said:
“It will thus be observed that mistaken belief with an absolute claim of title may make the possession adverse, but that claim of title must be absolute and not conditional, and the true owner must have notice of the hostile intent. The findings in the case at bar 'contain none of these elements except possession and mistaken belief.” (p. 673.)
. In the instant case we think the trial court was compelled to make the findings there made, because adverse possession, as defined in the many Kansas cases herein cited, had not been established. The burden of proving adverse possession was upon plaintiff (appellant), who was relying upon it as the basis of his title. He was burdened with the responsibility of overcoming the presumptions against him, to wit: (a) That the possession is in subordination to the true title; and (6) where one enters into possession under a deed, it is presumed that he claims only the title given him by his deed and that his possession is restricted to the premises granted. (Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, syl. ¶ 2.)
It was also held in Finn v. Alexander, 102 Kan. 607, 171 Pac. 602, that the failure to pay taxes, while not a controlling circumstance, weakens a claim of ownership by adverse possession.
A further review of the evidence is not necessary. It has been examined and we find no cause to disturb the findings of the trial court as set forth in the journal entry of judgment. Those findings nullify the appellant’s claim of title by adverse possession for the reasons herein expressed.
Accordingly, the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This is an appeal by the state in a criminal case from an order of the trial court setting aside a plea of guilty to a felony charged fourteen days after the plea was received and sentence imposed. The record in the trial court may be summarized as follows: The appellee, J. H. Ni'chols, hereinafter referred to as defendant, was represented by Elmer C. Jackson, Jr., an experienced, competent attorney of Kansas City, of his own choice, at the preliminary examination and at all times in the district court. The preliminary examination was held August 6, 1948. Defendant was held for trial in the district court. No complaint is made of that. In due time an information was filed in the district court. This charged that on or about June 23, 1948, in Wyandotte county, and within the jurisdiction of the court, “one J. H. Nichols, with deadly and dangerous weapons, to-wit: A pocket knife and brass knuckles, a more accurate description of which cannot be given, did unlawfully, willfully, feloniously, premeditatedly, on purpose and with malice aforethought make an assault upon one J. H. Foster, with intent, him, the said J. H. Foster, unlawfully, willfully, feloniously, premeditatedly, deliberately, on purpose and with malice aforethought to kill and murder; and with said brass knuckles on the hand of him, the said J. H. Nichols, he, the said J. H. Nichols, did unlawfully, willfully, feloniously, premeditatedly, deliberately, on purpose and with malice aforethought hit at, into and against the body of him, the said J. H. Foster, thereby giving to and inflicting upon the body of said J. H. Foster, severe wounds, with the intent aforesaid contrary to the statute in such case made and provided.”
On January 14, 1949, the case was called for arraignment and plea. The information was duly read to defendant and the following proceedings were had:
The Court: “Very well, J. H. Nichols, you have heard the charge filed against you in this case, which alleges that you assaulted the named — J. H. Foster — with felonious intent, with a deadly and dangerous weapon. Now to the charge contained in this amended information, how do you plead? Guilty, or not guilty?”
The defendant: “Guilty.”
The Court: “Very well; you understand this plea, do you?”
The defendant: “Yes, sir.”
The Court: “And you did make this assault upon this man with brass knuckles and a pocket knife as charged here; you did assault and beat the man?”
The defendant: “Yes, sir.”
The Court: “All right; the court will accept the plea. Is there any reason why sentence should not now be passed upon you? Do you have any statement to make to the court, Mr. Nichols?”'
The defendant: “No, sir.”
The Court: “Does the attorney have anything to say?”
Mr. Jackson: “Not at this time, your Honor.”
The Court: “Very well; the court accepts the plea, and no reason being stated why sentence should not now be passed, it is the judgment of this court, J. H. Nichols, that you be and you are hereby ordered to be confined at hard labor in the state penitentiary at Lansing, Kansas, for a term of not less than one, nor more than ten years; and it is further the sentence and judgment of this court that you pay the costs in this case. Do you understand that sentence?”
The defendant: “Yes, sir.”
The Court: “All right. Now is there to be an application for a parole in this case?”
Mr. Jackson: “Yes, sir, your Honor.”
The Court: “Is this man on bond now?”
Mr. Jackson: “Yes, he is, your Honor.”
The Court: “Very well, he may remain at liberty on the present bond until the presentation of his application for a parole to the Parole Board later this afternoon.”
Mr. Jackson: “Very well, your Honor.”
The parole board, organized under G. S. 1947 Supp. 20-2301 to 20-2306, consisting of Hon. E. L. Fischer, Hon. Russell C. Hardy and Hon. Harvey J. Emerson, met at 2:00 o’clock p. m. January 14. Mr. Nellor, the assistant county attorney, stated that defendant had entered his plea of guilty before Judge Hardy that morning and was sentenced for the crime of felonious assault with a deadly and dangerous weapon with intent to kill; that on the day in question defendant boarded a bus of the Kansas City Public Service Company at Tenth and Minnesota, which bus was operated by Mr. Foster and was headed south on Tenth St. Defendant presented his transfer to the bus operator, who said the transfer was not satisfactory, and an argument ensued between him and defendant. Mr. Foster said to defendant: “You will have to pay a new fare or get-off the bus.” Defendant cursed the operator, called him a profane name, but he got off the bus at the next stop. The bus operator took the bus to the end of his run and as he approached Tenth and Splitlog, going north on Tenth, with passengers on the bus, defend ant boarded it and gave the operator fifty cents and got his change. Then he asked his badge number. The operator told him his badge number and then defendant cursed him again. As the bus started to move north the defendant struck the operator with the brass knuckles and proceeded to beat him with them. The bus continued to move, but went across the street and jammed up against the curb and stopped. Then defendant threatened to kill the bus operator with a drawn knife which he had in his hand, and thereafter got off of the bus and went away, and was later apprehended.
Mr. Jackson stated that “Mr. Nichols is a man of about sixty years of age, and this situation that happened is very regrettable and very unfortunate, and was, in sum and substance, as Mr. Nellor has related it”; that he talked with Mr. Foster, who stated that he could not recommend a parole, but that he would leave the matter entirely to the parole board; that in view of the age of the defendant and the fact that he has a family — a wife and four children— and a number of friends and neighbors who had known him throughout the years to be a man of good reputation, this is a situation wherein once in a man’s lifetime he lost his temper and violated the law.
By Judge Fischer: “Was he drunk at the time?”
By Mr. Jackson: “No, he was not, your Honor.”
He further stated defendant was a hod carrier, worked hard for a living, and on the particular day he had worked hard and his temper was particularly short; that he had asked defendant if he would get the signatures of some of his neighbors and acquaintances in order that the court might have an idea as to his caliber and reputation, and that the application and recommendation for parole was headed by his pastor, who was present in court; that this was done to give the board an idea of the reputation of defendant and the good name he had borne before this very unfortunate circumstance; that defendant had not particularly paid much attention to church or religious activities, but his pastor had informed the speaker that defendant had in all seriousness been converted and was a very good church member since this unfortunate circumstance.
“I appreciate that in this sort of matters, they are of a serious nature. There is nothing at all that could be twisted about to show that this man has not violated the law.”
But because of his age and family, his record as a good citizen, who had never previously been arrested, the speaker thought he was a fit subject for parole.
“There have been absolutely no promises made to this man whatsoever, but from the facts in the case as I have known them to be, and from what my client has advised me, I believe unquestionably that when he made the assault upon Mr. Foster, he did violate the law. . . . that this is a case that the court and the board could justifiably recommend the granting of a parole and that in so doing, justice would be carried out.”
Mr. Nellor: “There are some facts that I omitted before, which in substance are that when he boarded the first bus and had the argument with Mr. Foster, he asked for Mr. Foster’s badge number. Mr. Foster gave him his badge number, and thereafter, between the time Mr. Foster returned on the return trip, the defendant had boarded three buses and had asked each operator what his badge number was, and when he got this bus that was operated by Mr. Foster, the last time, he asked him his badge number, and as soon as he gave him the same number that he had originally given him, then the assault occurred. It appears to m'e as though he was wanting to make doubly sure that he didn’t make a mistake in getting the original operator of the bus that he had the original argument with. I might add that Mr. Foster is very fortunate in being alive today under the circumstances.”
Mr. Jackson: “. . . I appreciate the feelings of the County Attorney, but I wouldn’t want the matter to be any blacker than it is. The man has violated the law true — ”
Judge Fischer: “Do you deny that statement that he laid for this conductor’s car?”
Mr. Jackson: “No, no, your Honor, but I was referring to his comment about the situation that the man is fortunate that he is alive today. I appreciate this man had no right to violate the law in striking Mr. Foster. . . .”
On the same day Judge Hardy appeared in court and the following proceedings were had:
Judge Hardy: “I have been delegated to make the report of the board upon this application.
“The board is unanimous in the opinion that the parole should not be granted. This is not a case, as counsel argues, of a sudden burst of temper at the end of a hard day’s work. This is a case of a man who laid in waiting and boarded three buses looking for this particular man, and then makes an assault on him. This assault was so serious that Mr. Foster was confined to a hospital for three weeks. Had he died, it would have been a clear case of premeditated murder; and while we appreciate the fact that this man now has friends who sign a petition to keep him out of the penitentiary, nevertheless we do not think that a man who is guilty of this type of crime, made a premeditated and vicious attack with these instrumentalities upon a man who was presumably performing his duty, over the right to ride on a transfer which involved at most the payment by him of ten cents — ”
Judge Emerson: “Twelve cents, Judge.”
Judge Hardy: “ — or twelve cents, whatever it is under the new rates, is the type of crime for which the defendant should be liberated without any punishment whatever. If these laws are to mean anything, if they are to have any effect; if the business of the community is to be protected, then some penalty must be imposed upon violators, particularly where their offense is premeditated as undeniably Was the case with this defendant. Now that is the feeling of the board, and as I say, it is unanimous, and I concur in it, and the parole is denied.
“The defendant will stand committed to the custody of the sheriff of Wyandotte County, Kansas, for transfer and delivery to the warden of the state penitentiary at Lansing, Kansas, pursuant to the sentence imposed.”
Immediately thereafter defendant was placed in the custody of the sheriff to be transported to the state penitentiary at Lansing to serve the sentence entered by the court on January 14. He was not immediately taken to Lansing, but was kept in jail, awaiting transportation there. On January 17 defendant filed a “Motion to set aside a plea of guilty and to vacate judgment,” for the reasons:
“1. Counsel for the defendant, since the entering of the pleas of guilty by the defendant, has learned facts on which the defendant may predicate a defense, which if known at the time of advising this defendant would have caused him not to enter a plea of guilty.
“2. Based upon the evidence above, the law governing the case is materially changed, and there is considerable doubt as a matter of law of the sufficiency of the pleadings as it applies to the charge brought against the defendant.”
This motion was called for hearing before the court on January 22, at which time Mr. Jackson, among other things, said:
“Now it is true on a motion for a new trial, newly discovered evidence must be set out in, an affidavit. It is our contention that it is not necessary to set it up on a motion to set aside a plea because in this instance we are not asking for a new trial. The defendant is merely asking for his right to trial by jury. It is purely a matter of discretion with the court.”
There was further argument, including that by counsel for the state. The court, among other things, stated:
“I have serious doubts in my mind as to whether after this plea is entered, sentence pronounced and the man is delivered to the custody of the Sheriff for transfer to1 the State Penitentiary, whether the Court has any jurisdiction.”
There was further discussion and the court continued the hearing to January 28 and made the following order:
“It is further ordered that the proceedings and the execution of the judgment or order is stayed pending such hearing, and the man will be retained in the custody of the Sheriff of Wyandotte County, Kansas, and not transferred to the penitentiary until these matters can be determined.”
At the hearing on January 28 defendant presented the affidavit of one Laverta Angelo, who stated that he was a resident of Kansas City and was a passenger on the bus on June 23, 1948, at the time of the alleged! assault, the pertinent part of which affidavit reads:
“Affiant states that he was seated about four seats from the 'front of the bus when J. H. Nichols, this defendant, got on the bus and paid his fare; that the driver of the bus, J. H. Foster, said something to Nichols, and Nichols said something in reply to him, none of which this affiant understood; that the driver was driving the bus very slowly and was sitting slightly sideways and turned partially toward the defendant, Nichols; that the driver had an angry expression and a scowl on his face at the time he was saying something to the said J. H. Nichols; that the driver of the bus, in a violent motion, reached toward a place underneath the dashboard of the bus and grasped an object which this affiant could not identify, and immediately after that J. H. Nichols and the driver of the bus started fighting one another. This affiant further states that J. H. Nichols at no time had a knife in his hand from the time he boarded the bus until he got off the bus.”
After further discussion the court found:
“The Court, being fully advised in the premises, finds that he does have jurisdiction of the person of the defendant. The Court further finds that the defendant has been incarcerated in the Wyandotte county jail in custody of the Sheriff under sentence of the Court on the 14th day of January, 1949, to be forthwith transported to the State Penitentiary at Lansing, Kansas, and has remained in custody of the Sheriff under such sentence of said Court to and including the date of the hearing on defendant’s motion, the 28th day of January, 1949.
“The Court further finds that the motion of the defendant to withdraw his plea of guilty is within the sound discretion of the Court, and, after due and careful deliberation and consideration of the affidavit of Laverta Angelo, argument of counsel, authorities cited, said motion should be granted.
“It is therefor by the court ordered that the sentence and judgment of the Court made and entered on the 14th day of January, 1949, be and the same is this day set aside and held for naught, and the defendant be and he is hereby given permission to withdraw his plea of guilty.”
Counsel for the state objected to the ruling of the court and reserved the question for appeal to this court, and the court specifically ordered that all the questions objected to are reserved by the state, and bond was fixed for the defendant’s appearance. Notice of appeal was promptly given.
We turn now to the legal questions argued. Counsel for appellant contend that under the facts shown by the record the court had no legal authority to entertain defendant’s motion to withdraw his plea of guilty at the time it was filed, to make an order suspending the execution of the sentence, or to grant the motion and set aside the plea of guilty and the sentence imposed thereon. It may be conceded there is no statutory authority for the court’s action. The pertinent part of our statute specifically involved may be quoted or summarized as follows:
G. S. 1947 Supp. 62-1722: “In any criminal action in which defendant pleads guilty ... if defendant is not then in custody of the sheriff, he shall be taken into custody at once; and unless he announces that he desires to file a motion for a new trial, he shall be sentenced either on that date or at a fixed time within ten days.”
The defendant pleaded guilty on January 14. No announcement was made by him or his counsel that he desired to file a motion for a new trial. Under G. S. 1935, 62-1604, such a motion must be made before judgment. The court inquired whether there was any reason why sentence should not be imposed at that time, and both the defendant and his attorney answered in the negative. The sentence was imposed and defendant, who had been at liberty on bond, was taken into custody by the sheriff. No complaint is now made of any of those proceedings.
“When judgment is rendered, or sentence of imprisonment is imposed, upon a plea or verdict of' guilty, a record thereof shall be made upon the journal of the court, which record among other things shall contain a statement of the offense charged, and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute, and a statement that the defendant was duly represented by counsel, naming such counsel, or a statement that the defendant has stated in writing that he did not want counsel to represent him. . . .” (G. S. 1947 Supp. 62-1516.)
It appears that this particular record was not made. We are told the trial court did make a record in substantial conformance to this statute in his trial docket; that the formal entry to be made upon the clerk’s docket was prepared by the county attorney, but that defendant’s counsel delayed noting his approval or disapproval thereof. The statute has a laudable purpose. The court and the court officials who had any duty in connection therewith, including the attorneys, should have seen to it that it was complied with promptly. The fact that was not done, however, does not render unlawful the sheriff’s custody of defendant. (In re Christensen, 166 Kan. 671, 674, 203 P. 2d 258.) Normally, after sentence is imposed, the district court has nothing further to do with respect to the defendant. It is the duty of the sheriff to carry out the order of the court and transfer defendant to the state penitentiary. In this case, no doubt the sheriff was awaiting the copy of the journal of the court required by the section last mentioned. It is well settled by our decisions (Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586; State v. Carte, 157 Kan. 139, 138 P. 2d 429; Layman v. Hudspeth, 162 Kan. 445, 176 P. 2d 527) that defendant commenced the serving of his sentence on January 14, the day he was sentenced and taken into the custody of the sheriff. Comments of the trial court indicate that it regarded as controlling the dissenting opinion in State v. Carte, supra. Even if so, it would hardly sustain his ruling. Aside from that a dissenting opinion is not regarded as the judgment of the court.
Appellant argues that the court had no authority on January 22 to make an order staying the judgment and sentence rendered on January 14 and directing defendant to be retained in the custody of the sheriff and not transferred to the penitentiary. This point is well taken. The only authority given by statute to any court to stay the execution of a sentence in such case is that given by G. S. 1947 Supp. 6É-1724 (b), which in substance provides that if defendant makes the appropriate application the supreme court, or some justice thereof, shall order the execution of the sentence stayed.
It follows from what has been said that what was done in the district court after sentence was imposed is not authorized by any statute of this state. This does not necessarily mean that the trial court had no jurisdiction to entertain and pass upon the motion filed by defendant on January 17 asking permission to withdraw his plea of guilty. The matter is governed by general rules of law applicable to the situation as distinct from being governed by statute. The subject is treated in 22 C. J. S. 637, § 421; 16 C. J. 396, §§ 728-730; 14 Am. Jur. 960, §§ 286-288. These authorities make it clear that permission to withdraw a plea of guilty is within the sound discretion of the court and not a matter of right. An application for permission to withdraw a plea is addressed to the sound discretion of the court, and this discretion is a judicial one and must not be abused.
Many cases are cited in support of the text above mentioned; also in the annotations in 20 A. L. R. 1445; 66 A. L. R. 628, and the A. L. R. Supplemental Decisions. Cases on the point are also digested in the American Digest System, Criminal Law, Key Number 274. Searching our own cases we find the following dealing with the question:
In City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233, defendant was arrested for selling liquor in violation of a city ordinance. When called upon to plead he admitted that he had sold beer in original packages. The police judge entered a plea of guilty and adjudged defendant to pay a fine and costs. In a few minutes after the entry of such judgment defendant asked leave of court to with draw the plea, and presented an affidavit that he was much excited, there was a large crowd in the court room, he had no counsel and was not asked if he wanted one nor given an opportunity to employ counsel; that in fact he was not guilty of selling liquor in violation of the ordinance and had never admitted such violation, and asked leave to withdraw the plea of guilty. That was refused and on appeal the application was renewed and denied. This court reversed.
In State v. Calhoun, 50 Kan. 523, 32 Pac. 38, the proceeding was upon a petition for a writ of error coram nobis. Calhoun had entered a plea of guilty in 1885 and was sentenced to the penitentiary. In 1892 he filed his petition in the same case alleging that he was not guilty of the offense, but that he was forced by threats, duress and the fear of mob violence to enter a plea of guilty. The jury found in his favor. This court affirmed, holding that he was entitled to have the plea of guilty set aside and placed back in the same condition as he was before he entered the plea of guilty.
In State v. Yates, 52 Kan. 566, 35 Pac. 209, it was held:
“The rule is, that where a defendant has pleaded guilty in a criminal cause, and sentence has been passed upon him, it is within the sound discretion of the trial court to permit the plea to be withdrawn, and to allow a plea of not guilty entered. If the court abuses its discretion, error may be assigned therefor.” (ftrLfl.)
Defendant, an intelligent person who owned a drugstore, was charged with violating the prohibitory liquor law, which fixed the punishment as a fine of not less than $100 nor more than $500, or imprisonment in the county jail not less than thirty days nor more than six months. He was represented by able counsel, pleaded guilty and was sentenced to pay a fine of $300 and costs. The next day. he presented a motion to withdraw his plea of guilty upon the ground that the prosecuting attorney had led him to believe that his fine would be only $100. Upon the hearing of the motion it was shown the county attorney had made no promise of that kind, and in fact had not urged him to plead guilty. Some of defendant’s friends who talked with the county attorney advised defendant that if he pleaded guilty he would be fined only $100. The trial court refused to set aside the plea of guilty and this court affirmed. The case was followed in two cases, State v. Pyle and State v. Pottenger, 52 Kan. 569, 35 Pac. 210, and a similar ruling made.
In State v. Garrett, 78 Kan. 882, 98 Pac. 219, defendant was prosecuted under section 2, chapter 77, Laws of 1899, which made it a misdemeanor for one to set up and keep a place commonly-known as a “Bucket Shop” or “Board of Trade” (the statute, since amended, which made it a felony, is G. S. 1935, 50-122). He was arrested November 15, 1907, and appeared in court with an able attorney and had the case continued until the next term of court, February, 1908. On the first day of that term he appeared in court with his attorney and entered a plea of guilty, and at his request sentence was postponed until later in the term. On the day sentence was to be imposed he appeared with able lawyers other than the one who had previously represented him, and moved to be permitted to withdraw his plea of guilty and enter his plea of not guilty. This was denied. He filed a motion in arrest of judgment, which was denied, and he appealed. (These facts are taken from the briefs, since they are not set out in the opinion.) This court affirmed in a per curiam opinion, in which it was said:
“It has been announced so often that if a defendant in a criminal case enter a plea of guilty it is within the discretion of the court whether it will allow the plea to be withdrawn and a plea of not guilty to be entered that the proposition does not need reiteration. Here the defendant was represented by able counsel of well-known standing at the bar from the commencement of the proceeding. Several months elapsed before arraignment. No inducement was offered or pressure brought to bear upon him from any source respecting his pleading guilty. He does not claim to be deficient in understanding or that his attorneys misled him in any particular. The claimed misapprehension in his own mind of the consequence of his plea is not entitled to nearly as much consideration as the one held inconsequential in the case of The State v. Yates, 52 Kan. 566, 35 Pac. 209. The voluntary plea of guilty solemnly entered by the defendant while he was duly attended by his counsel was the highest evidence of guilt, and the court did well to weigh with caution the defendant’s affidavit, filed after the jury had been discharged for the term, stating that he had looked further into the evidence for and against him and had found that it ought to be submitted to a jury, and that he was innocent. Very clearly the district court did not abuse its discretion in refusing to allow the plea of guilty to be withdrawn.” (p. 883.)
In State v. Oberst, 127 Kan. 412, 273 Pac. 490, it was held:
“It was material error to permit a seventeen-year-old boy, without an attorney to consult with and advise him, to plead guilty'to seven charges of murder in the first degree and to impose seven life sentences of penal servitude against him thereon; and it was material error to refuse to set aside such sentences and judgment and to permit him to withdraw his plea of guilty when counsel for the youth, belatedly employed, presented a motion to that effect in his behalf.” (syl. j[ 1.)
In State v. Wassinger, 131 Kan. 316, 291 Pac. 743, several persons were arrested, charged in one complaint, with stealing cattle. A pre liminary examination was held September 6, 1929, and Bieker testified at that hearing. On September 16 he entered a plea of guilty, but no information had been filed against him and none was filed until September 20. He had no attorney when he entered his plea. On September 17 Bieker filed his motion for leave to withdraw the plea upon the grounds that he was not represented by counsel, did not fully understand the consequences of his act, that the plea was entered through fear; that in truth and in fact he was not guilty of the offense charged, and that the plea was made through coercion and influence of the county attorney. The court refused to permit him to withdraw the plea and upon an appeal this court reversed.
In State v. Beasley, 133 Kan. 438, 300 Pac. 1103, A. J. Beasley and Fred Chesnutt conceived a plan to make money by stealing zinc ore from their employer, a mining company, and hired one Campbell to haul the ore away and sell it, which he did. Eventually Campbell began to do some thieving on his own part, for which he was arrested. Beasley and Chesnutt were arrested and bound over for trial on two counts. While Campbell’s case was being tried separately Beasley and Chesnutt made an agreement with the county attorney that if he would dismiss one of the counts against them they would plead guilty to the other. That was done. Later Beasley and Chesnutt got a statement from the county attorney, who was no longer acting as such, reciting that he did not have evidence sufficient to convict on the count to which they had pleaded guilty. Upon the strength of that statement they applied to the court for permission to withdraw their plea of guilty. This was denied and defendants were sentenced to the penitentiary on their plea of guilty. Upon their appeal to this court they contended the court erred in not permitting them to withdraw their plea. This court held “that defendants’ applications for permission to withdraw their respective pleas of guilty were properly denied.”
In State v. Finney, 139 Kan. 578, 32 P. 2d 517, defendant was charged with forgery of certain bonds in thirty-one counts. He was represented by able counsel. At the conclusion of the state’s case at the trial there were conferences between counsel for defendant and the state with the court, in which counsel for defendant offered to have him plead guilty to certain of the counts and as to others dismissed, which was not acceptable, and finally to plead guilty to all of them if the sentences would run consecutively upon fifteen counts and concurrently upon the others. Something of this nature appears tentatively to have been agreed upon and the jury was discharged, with assurances that defendant would enter pleas of guilty. The matter of sentence was postponed several days. In the meantime a question arose as to whether the court had authority to make any of the sentences on any number of the counts to run concurrently with the others and expressed the view they should all run consecutively. At that point counsel for defendant asked leave to withdraw the plea of guilty. This was considered and denied. Sentences were imposed on the defendant upon each of the counts, the sentences to run consecutively. On defendant’s appeal it was held the court did not err in overruling defendant’s motion to withdraw his plea of guilty.
In State v. Bowser, 155 Kan. 723, 129 P. 2d 268, defendant had been charged with manslaughter and entered a plea of guilty, upon which the court imposed a jail sentence. This was done on the mistaken advice of counsel that such a sentence would cause the case to be regarded as a misdemeanor as distinct from a felony, the court being of the same view. An appeal was taken from the judgment. Later appellant filed a motion asking permission to withdraw the plea vacating the sentence and entered a plea of not guilty. This was a serious mistake to defendant by reason of the fact that he was a licensed undertaker and the conviction of a felony is a statutory ground for revocation of his license. It was made clear defendant would not have entered the plea of guilty had he known the offense was regarded in law as a felony irrespective of the punishment imposed. The trial court denied his motion. This court reversed and directed a new trial. See State v. Bowser, 158 Kan. 12, 145 P. 2d 135, for result of second trial.
A defendant’s plea of guilty in a criminal case is a confession of guilt of the crime charged and of every fact alleged in the charge. Legally speaking, it is the most formal and binding confession it is possible for him to make. If later the plea is set aside and there is a trial the plea may be offered in evidence against him. When the accused is represented by capable counsel and the plea is freely, fairly and intelligently made, and its consequences understood, it should not be set aside. When some or all of these facts are lacking, common justice may authorize or require the setting aside of the plea. The appropriate method of seeking to have that done is for defendant to file a motion in the same court and in the same case in which the plea was entered. The motion should set up the facts in issuable form showing or tending to show grounds upon which the plea should be set aside. Ordinarily it is required to allege that the defendant is not guilty of the crime charged. The time of the filing of the motion, whether before or after the sentence, is not controlling. Neither is the fact that defendant has appealed his case, or is serving the sentence imposed, controlling, but it should be filed with reasonable promptness, as soon as defendant or his counsel learns facts which would justify the court in setting aside the plea. It is possible, of course, that defendant may file such a motion when no such grounds exist. When the motion is filed alleging facts which would justify the court granting it, if established by competent evidence, a hearing before the court should be had thereon, at which hearing evidence may be offered in favor of or opposed to the motion. The court has jurisdiction to hear and rule upon the motion. It is not a motion for a new trial, though if granted the result is to give defendant another opportunity to have a trial, if he wants it. The motion is addressed to the sound judicial discretion of the court. This discretion should never be abused.
Counsel for appellant contend that upon the record presented the court abused its discretion in granting the motion to^ set aside the plea of guilty and the sentence based thereon. This point is well taken.
The motion to set aside the plea and sentence states no facts that would justify the court in sustaining it. It does not allege that defendant is not guilty. There is no allegation that defendant was not represented throughout by competent counsel; that he was misled, tricked, coerced, mistreated, or any unfair advantage taken of him by anyone, or that his plea of guilty was not freely, fairly and understandingly made. Upon the hearing of the motion no evidence was offered in support of any of those matters, neither was any contention made that any of those facts existed.
The only thing alleged was that since the plea defendant’s counsel had “learned facts on which the defendant may predicate a defense,” in view of which “the law governing the case is materially changed,” and there is doubt about the sufficiency of the pleading. No issuable fact was alleged with respect to any of those things. The court would have been justified in denying the motion without a hearing.
It was not a motion for a new trial — a fact which defendant’s counsel recognize. In appellee’s brief it is argued that it could be so considered under G. S. 1935, 60-3005 (perhaps intending to contend this is so because of G. S. 1935, 62-1414). This argument overlooks the fact that in State v. Appleton [1906], 73 Kan. 160, 84 Pac. 753, it was held that our statute (now G. S. 1935, 60-3005) is not applicable to set aside a conviction in a criminal case. This decision has never been reversed or modified.
Upon the second hearing of the motion defendant presented the affidavit of Laverta Angelo, the pertinent portions of which were hereinbefore quoted. Most of this is so indefinite as not to constitute a basis for any material ruling. The one factual statement in it is, “that J. H. Nichols at no time had a knife in his hand.” This is in direct conflict with the statement of the defendant at the time of his arraignment, when he answered “Yes, sir” to the question, “And you did make this assault upon this man with brass knuckles and a pocket knife as charged here; you did assault and beat the man?” No force should have been given to this part of the affidavit, and certainly it did not constitute a ground for setting aside the plea. More than that, defendant knew, not only at the time of the assault but at the time of his preliminary examination in August and at the tme he entered a plea of guilty on January 14, what the facts were with reference to that matter. There was no contention by defendant or his counsel at any time that he acted in self-defense. The only additional thing which appears to have been shown upon the hearing of the motion was that members of his family, his personal friends and his minister were sorry for him and hated to see him punished. That Constituted no grounds for allowing the motion or setting aside the plea. The result is there was no sufficient ground either alleged or shown that justified the court in making an order setting aside the plea and sentence. From this it necessarily follows that the court abused its discretion in doing so.
The judgment of the trial court should be set aside with directions to reinstate the plea and sentence of January 14, 1949, and to order that the defendant be taken into the custody of the sheriff, to be delivered to the warden at the state penitentiary to serve the sentence imposed, and that a proper entry thereof should be promptly made in the journal of the court and a copy delivered to the sheriff. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
In this proceeding the state invokes the original jurisdiction of this court in quo warranto challenging the authority of the board of regents of the state of Kansas, which exercises supervisory powers and duties over the higher educational institutions of the state by virtue of G. S. 1947 Supp. 76-108a to issue and sell bonds pursuant to chapter 435 of the Laws of 1947, in order to obtain funds for the acquisition, construction, equipment and furnishing of one or more student dormitories and facilities connected therewith upon the campus of the Kansas State College of Agriculture and Applied Science.
The state does not claim there are procedural defects in the proposed bond issue. It challenges the constitutionality of the act itself (Laws 1947, ch. 435, G. S. 1947 Supp. 76-6al3 to 76-6a25, inch) under which the state board of regents, to be hereafter referred to as the board, proposes to issue and sell dormitory bonds.
Briefly stated, this proceeding questions the constitutionality of this legislative act whereby the board is authorized to provide, among other buildings, student dormitories on campuses of the designated schools by means of a self-liquidating plan and under which it is intended the state itself shall incur no indebtedness. In order to obtain the necessary funds without obligating the state the act authorizes the board to issue and sell dormitory revenue bonds to be paid solely and only from the revenue and income of such dormitories (§§ 1, 3, 6, 7, 8), the revenue and income therefrom being irrevocably pledged to pay the reasonable cost of operating and maintaining such buildings, the principal, interest and reserve fund requirements. (§ 9.) In the discretion of the board it may also use certain sources of revenue, other than state funds, designated in the act. (§ 3.)
The resolution of the board adopted for the intended purpose, including the form of the bond, the endorsement or covenants with the bondholders, the publication notice to all persons interested, and the proof of such publication notice as required by section 13 of the act, are appended hereto for reference and made a part hereof. The state does not contend these instruments fail to conform to pertinent provisions of the act.
The state first challenges the act on the ground it contravenes sections 6 and 7, article 11 of our state constitution which prohibits the state from contracting a debt, except as therein provided. Those provisions read:
“For the purpose of defraying extraordinary expenses and making public improvements, the state may contract public debts; but such debts shall never, in the aggregate, exceed one million dollars, except as hereinafter provided. Every such debt shall be authorized by law for some purpose specified therein, and the vote of a majority of all the members elected to each house, to be taken by the yeas and nays, shall be necessary to the passage of such law; and every such law shall provide for levying an annual tax sufficient to pay the annual interest of such debt, and the principal thereof, when it shall become due; and shall specifically appropriate the proceeds of such taxes to the payment of such principal and interest; and such appropriation shall not be repealed nor the taxes postponed or diminished, until the interest and principal of such debt shall have been wholly paid.” (§ 6.)
“No debt shall be contracted by the state except as herein provided, unless the proposed law for creating such debt shall first be submitted to a direct vote of the electors of the state at some general election; and if such proposed law shall be ratified by a majority of all the votes cast at such general election, then it shall be the duty of the legislature next after such election to enact such law and create such debt, subject to all the provisions and restrictions provided in the preceding section of this article.” (§ 7.)
The first question is whether the dormitory bonds constitute an indebtedness of the state. Section 4 of the challenged act provides:
“Revenue bonds issued hereunder shall not be an indebtedness of the state of Kansas, or of the board of regents, or of the individual members of said board, and shall not constitute an indebtedness within the meaning of any constitutional or statutory limitation upon the incurring of indebtedness.” (G. S. 1947 Supp. 76-6al6.)
The resolution of the board expressly states:
“. . . such buildings can and will be self-liquidating undertakings.”
The endorsement on the bond plainly states the bond is a contract between the board and the holder thereof. The bond and the publication notice, in substance, clearly disclose the bond is not, and shall not become, an obligation of the state, the college, the board, or of its individual members; that it cannot be paid directly or indirectly from the proceeds of any tax levy but is payable solely and only from the revenue and income derived from the operation of a certain dormitory or dormitories and the facilities of the college; such income and revenue are irrevocably pledged to the payment of the principal and interest of such bonds.
In view of the act itself and the plain terms of the bond, a contract between the board and bond purchaser, we think no bondholder could logically contend the state, the college, the board, or any official member or employee of the board becomes obligated to pay the indebtedness represented by the bond. The legislature by this act, as previously indicated, prohibited the state from incurring a debt under the act. The contract between the board and the bond purchaser is in express harmony with that statutory prohibition. Such an agreement between a creditor and debtor violates no rule of constitutional law. (State, ex rel., v. Kansas City, 140 Kan. 471, 477, 37 P. 2d 18.)
In the second place, if the debt represented by the bond technically should be designated as a debt of the state, which we think it cannot, it is nevertheless not a debt prohibited by the constitution. Debts, within the contemplation of constitutional provisions, are debts to be paid by- a general property tax and not from funds to be raised in some other manner. (State, ex rel., v. State Highway Comm., 138 Kan. 913, 917-918, 28 P. 2d 770; State, ex rel., v. Kansas City, 140 Kan. 471, 476-477, 37 P. 2d 18; State, ex rel., v. Kansas City, 149 Kan. 252, 256-257, 86 P. 2d 476.) These bonds do not pledge the faith and credit of the state. They do precisely the contrary. The bondholder knows he may look only to the revenue and income from the building, or buildings, for payment. Whether he desires to make such an investment is a matter left entirely to his own discretion and judgment.
The state argues the revenue and income from the dormitories and their facilities may prove insufficient to pay the bonds and in that event a judgment against the state would be the only means of satisfying the unpaid portion of the debt. The contention erroneously assumes the validity of such a judgment, if rendered. The same contention was effectively declared to be without merit in both the first and second opinions in the case commonly known as the Kansas City municipal market case, State, ex rel., v. Kansas City, 148 Kan. 623, 625, 84 P. 2d 409; State, ex rel., v. Kansas City, 149 Kan. 252, 257-258, 86 P. 2d 476. We hold here, as we held there with respect to the liability of the city, that the instant bonds are not and cannot become a valid indebtedness of the state. Moreover, these bonds expressly provide no judgment debt arising by reason of the issuance thereof shall become a debt of the state, college, board or any individual member thereof. (Endorsement § 6.)
The state reminds us section 7 of the act (G. S. 1947 Supp., 76-6al9) provides the covenants and agreements entered into by the board for the payment of the bonds from the revenue and income of the buildings shall be binding in all respects upon the board, its official agents, employees and its successors and shall be enforceable by appropriate action in law or equity by holders of the bonds against them. Manifestly this provision was not intended to obligate the designated parties to pay the bonds but was intended to give the bondholder redress in obtaining performance of the covenants to the end that the bonds be paid in the manner agreed upon in the event'of a breach of such covenants.
We shall not unduly pursue the subject of the state’s liability on the bonds. We are satisfied no such liability attaches. Some of the numerous cases holding no debt of the state, within the meaning of the same or similar constitutional provisions, is created by revenue bonds issued and sold under similar legislative enactments are Jacobs v. Sharp, 211 Ark. 865, 202 S. W. 2d 964; Application of Board of Regents of University of Okla., 195 Okla. 641, 161 P. 2d 447; Loomis v. Keehn, 400 Ill. 337, 342, 80 N. E. 2d 368; Meagher v. Commonwealth, 305 Ky. 289, 203 S. W. 2d 35. See, also, 146 A. L. R. 328. These cited cases are presently approved only on the point no liability of the state is created under the act before us.
The state asserts, without elaboration, the act does not specifically empower the board to construct but only “to acquire” such buildings. The mere assertion is not very helpful. A careful examination of the various sections of the act convinces us the assertion is too technical.
It is true sections 2 and 3 of the act employ the words “acquire, equip and furnish” and that it would have constituted better draftsmanship to have included also the word “construct.” What was the legislative intention? It certainly would constitute a strange anomaly to say the legislature intended to authorize the board, consisting of able, practical and devoted public servants, to acquire a building site, to equip a building and to furnish a building if the legislature did not intend the board should have power to first construct the building. What could be the object of an issue and sale of bonds if the proceeds thereof could not be used to defray costs of constructing the building?
In section 8 of the act, however, the board is expressly authorized to make all contracts and to execute all instruments “deemed necessary or advisable to provide for the construction, furnishing and equipment of such building, and to provide for the manner of disbursement of the funds for such purposes.” (Our italics.) Like wise section 10, the tax exemption provision, refers to any and all buildings “erected, constructed, or acquired hereunder.” (Our italics.)
Moreover, an examination of these various provisions of the act indicates the legislature may have intended to employ the words “to furnish" as meaning “to provide” a building. It is at times used in that sense. (Webster’s New International Dictionary, 2d ed.) It will be observed that in addition to authorizing the board “to acquire” a building the act authorizes it “to furnish” a building. It also authorizes the board “to equip” the building. (See §§ 3, 6.) In any event we have no doubt the legislature intended to authorize the board to erect or construct a dormitory, or dormitory buildings, and to use the proceeds from the sale of bonds to pay the cost of acquisition, erection or construction. It is the duty of courts to interpret and make effective the legislative will when reasonably possible to do so. It is elementary that in so doing courts are required to consider not one or several isolated provisions of the act, but all pertinent portions thereof in order to bring them into workable harmony. (Rausch v. Hill, 164 Kan. 505, 190 P. 2d 357.)
The state urges the act provides for a permanent appropriation of income derived from the buildings and facilities in direct violation of article 2, section 24 of our constitution, which states:
“No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.”
In the challenged act (Laws 1947, ch. 435) we are not concerned with funds which properly belong in the state treasury. Under this act funds are neither deposited in nor withdrawn from the state treasury by means of legislative appropriation or in any other manner. The constitutional provision relied on by the state does not apply to such an act. (State, ex rel., v. State Highway Comm., 139 Kan. 391, 394-395, 32 P. 2d 493.)
It is well to note that with respect to the proceeds from the sale of bonds this law provides they shall be deposited in a bank, banks or other depository designated by the board and shall be used solely for the purpose for which the bonds were authorized. (§ 8.) A similar provision is contained in section 9 relative to all income and revenues derived from the operation of the building or buildings. In order to make doubly certain the constitutional provisions cited by the state would have no application to the instant act the legislature expressly further provided as follows:
“Nothing contained in this act shall be construed as placing in the state treasury any money collected under this act or requiring such action, and the legislature hereby declares that funds deposited hereunder shall not be subject to the provision of section 24 of article 2 of the Kansas constitution.” (§ 8.)
This brings us to the tax exemption provisions of the law, section 10, in which the legislature declared:
“That the revenue bonds issued hereunder and the income derived therefrom are and shall be exempt from all state, county and municipal taxation in the state of Kansas except inheritance taxes of the state of Kansas. Any and all sites acquired under the provisions of this act and any and all buildings erected, constructed or acquired hereunder shall not be subject to taxation by the state of Kansas or by any county, municipality or political subdivision therein.”
The state contends this section violates section 1, article 11, of our constitution, which provides:
“The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature may provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.”
We shall first consider the last part of the constitutional provision as it relates to lands and dormitories located thereon. That the land acquired and dormitories erected or constructed thereon are intended to be used exclusively for the designated state educational institutions and entirely to advance and promote their educational purpose cannot be doubted. Clearly that is the only purpose of the act. Certainly the object of the plan is neither one for private nor state profit. The evident purpose of this act was to remedy, or relieve, an acute student housing situation which had not been and, apparently in the judgment of the legislature, would not be adequately or satisfactorily met in any other way. Its manifest object was to enable students to attend such chosen institutions and to enable them to more readily acquire an education which the state, by its organic law, is duty bound to promote. Article 6, section 2, of our constitution provides:
“The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.”
Touching that constitutional provision this court, in State, ex rel., v. Kemp, 124 Kan. 716, 261 Pac. 556, declared:
“The constitution makes it mandatory upon the legislature to encourage the promotion of intellectual and moral improvement (art. 6, §2). A specific method of encouragement is prescribed — establishment of a uniform system of common schools and schools of higher grade, embracing college and -university departments. The method, is not exclusive. The legislature must do that much, but it may resort to other methods perfected in the course of social progress. The end to be subserved by state promotion of intellectual and moral improvement is better citizenship. . . .” (p. 720.) (Our italics.)
It is common knowledge that during the early history of this nation’s educational program boarding schools were common in this country. For hundreds of years dormitories and dining halls have been furnished by colleges and have been regarded as devoted to college purposes. In fact, at least in the early years of our history, the words “dormitory” and “college” were often used interchangeably. In some of them classroom work was conducted in buildings in which students slept and ate. Dormitories were exempt from taxation on the ground that necessary housing facilities were an integral part of the educational purpose. Their exemption from taxation implied a public benefit. The exemption was not intended as an act of grace on the part of the state. On the contrary the exemption was regarded as a distinct benefit to the state. The conviction was deeply grounded that sound education produces good citizenship and that the latter results in a constant increase of taxable property. These basic considerations are all chronicled in both the early and more recent decisions of the courts. A few of them are Yale University v. New Haven, 71 Conn. 316, 42 A. 87; Harvard College v. Cambridge, 175 Mass. 145, 55 N. E. 844; Chicago v. University of Chicago, 228 Ill. 605, 608, 81 N. E. 1138; Cornell University v. Thorne, 57 N. Y. S. 2d 6, 9. And this is the general modern rule with respect to exemption of dormitories constructed and maintained for student bodies under a nonprofit plan. (51 Am. Jur., Taxation, §§ 619, 622-624, incl.)
There is another principle to which we must give consideration. Even though it were concluded student dormitories are not specifically exempt from taxation under our constitutional provision pertaining to education that fact would not necessarily preclude the legislature from exempting them from taxation. Property expressly exempt from taxation by the constitution manifestly cannot be taxed. A statutory exemption, however, may be broader than the constitutional one. (Wheeler v. Weightman, 96 Kan. 50, 68, 149 Pac. 977; Gunkle v. Killingsworth, 118 Kan. 154, 156, 233 Pac. 803; Ryan v. State Tax Commission, 132 Kan. 1, 4, 294 Pac. 938; Alpha Tau Omega v. Douglas County Comm’rs, 136 Kan. 675, 18 P. 2d 573.)
In order, however, for the legislature to extend exemptions beyond those expressly designated in the constitution, they must have a public purpose and be designed to promote the public welfare. (See cases last cited.) We have heretofore directed attention to the provision of our constitution which makes it mandatory that the legislature encourage the promotion of education. It is the legislature, and not the courts, that is charged with the duty of determining what, in its judgment, will best accomplish that purpose and thus be conducive to the public welfare.
Having concluded the exemption of this property from taxation W'ould advance the public welfare the legislature was competent to make it. (Ryan v. State Tax Commission, 132 Kan. 1, 4, 294 Pac. 938.) With the wisdom of legislation touching the public interest courts have no concern. (State, ex rel., v. Kansas City, 140 Kan. 471, 477, 37 P. 2d 18; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127.) While courts may entertain different views on the subject it is not their privilege to supersede the judgment of the lawmaking body unless its judgment is entirely devoid of a rational basis. (State, ex rel., v. Sage Stores Co., 157 Kan. 404, 413, 141 P. 2d 655.)
Every presumption must be indulged in favor of the validity of legislative acts. (State, ex rel., v. Sage Stores Co., supra.) We think we would not be justified in striking down the exemption provision on the ground the legislature could have had no reasonable basis for believing the exemption would encourage and promote education and that its action thus would be conducive to the public interest and welfare. Further reference to this subject will be made briefly in treating the next contention.
We now reach the question whether the exemption of the revenue bonds from taxation violates the same constitutional provision (art. 11, § 1). Much of what already has been said on the subject of exempting a dormitory site and buildings acquired or constructed thereon and the wisdom of legislative policy with respect thereto applies with equal force to the exemption of the bonds from taxation. The bonds are the source of revenue for executing the plan the legislature chose to remedy, or relieve, the student housing problem with which these educational institutions are confronted. It is hardly necessary to suggest that exemption of the site, buildings and bonds from taxation will stimulate their ready sale and thus promote a more speedy realization of this aspect of the state’s educational program.
Although constitutional provisions of the respective states vary somewhat, the decisions and opinions of courts sustaining the constitutional validity of similar acts, enacted for various purposes, which exempt revenue bonds from taxation are helpful in principle. They are cited for such limited purpose and only as they relate to the subject of exemption of bonds from taxation. Their citation must not be construed as a ruling that this state may engage in the particular ventures therein involved. (Bates v. State Bridge Co., 109 W. Va. 186, 153 S. E. 305; Kelley v. Earle, et al., 325 Pa. 337, 356, 190 A. 140; Williams v. Samuel, et al, 332 Pa. 265, 2 A. 2d 834; Belovsky v. Redevelopment Authority, 357 Pa. 329, 343-344, 54 A. 2d 277.)
It is conceivable dormitories may be constructed on the grounds of various educational institutions and that such action may lead to the exemption of considerable property from taxation. This also presents a question of public policy with which courts cannot interfere. The only question properly before us is the constitutional validity of the law under consideration with respect to the grounds on which it is challenged.
Counsel for the state further contend that by constructing and maintaining a student dormitory the state will be engaged in works of internal improvement in contravention of article 11, section 9 of the state constitution which provides:
“The state shall never be a party in carrying on any work of internal improvement except that it may adopt, construct, reconstruct and maintain a state system of highways, but no general property tax shall ever be laid nor bonds issued by the state for such highways.”
Does a student dormitory constitute an “internal improvement” within the contemplated meaning of the constitution? We think it does not. The state, as a sovereign corporation, may construct a state house, courthouse, penitentiary or buildings for its penal, eleemosynary and state educational institutions. These, and others of like character, are public buildings, “public improvements,” and not “internal improvements.”
Our constitution expressly prohibits the state from engaging in works of internal improvement, except a system of state highways (art. 11, § 9), but section 6 of the same article just as definitely authorizes the state to contract debts for the making of “public improvements” and for the defraying of extraordinary expenses. The only limitation in section 6 is that the contracted debt shall never, in the aggregate, exceed one million dollars.
This distinction made in our constitution between “public improvements” and “internal improvements,” unlike constitutional distinctions of some other states, has been clearly recognized and emphasized in our former decisions. Some of them are State, ex rel., v. Knapp, 99 Kan. 852, 163 Pac. 181; State, ex rel., v. State Highway Comm., 138 Kan. 913, 919, 28 P. 2d 770; State, ex rel., v. Atherton, 139 Kan. 197, 208, 30 P. 2d 291. These cases clearly indicate the reasoning and purpose of the framers of our constitution in making the stated distinction. History had disclosed the distressful experiences of past governments which had bankrupted themselves by engaging in “internal improvements” of various kinds and on vast scales. History also disclosed the disastrous effects of political logrolling which often accompanied such undertakings. This the framers and adopters of our constitution sought to avoid. “Public improvements,” such as public buildings, were known to be essential and were expressly authorized. So in the Knapp case, supra, it was said:
“It needs no argument to show that public buildings are not internal improvements, for the former are repeatedly and clearly permitted, while the latter are as plainly prohibited.” (p. 854.) (Italics supplied.)
Again in the state highway commission case, supra, the court declared :
“It is clear the framers of our constitution used the term ‘public improvements’ in section 5 as meaning something entirely distinct from what was meant by ‘internal improvements’ used in section 8 [now § 9], for the one was permitted, the other prohibited. Although not as full as they might be, the debates in the constitutional convention disclosed this. The term ‘public improvements’, used in section 5, meant public buildings which the state should need in carrying on its functions, such as the state house, state penal, educational and eleemosynary institutions (Wyandotte Constitutional Convention, p. 327), while the term ‘internal improvements’, used in section 8, applied to turnpikes, canals and the like. (Wyandotte Constitutional Convention, p. 329; State v. Kelly, 71 Kan. 811, 833, 81 Pac. 450.)” (p. 919.) (Our italics.)
See, also, annotation 14 A. L. R. 1151.
Only by reason of an existing state debt equal to the limitation contained in article 11, section 6, could it properly be contended the state itself could not contract a debt to build dormitories for its state colleges and universities. Here, however, as previously shown, the state is not contracting a debt and will not be liable on the bonds.
We have already indicated student dormitories long have been and now are regarded as devoted to the educational purposes of a college. Whether they are necessary, or desirable, in the promotion of an educational program and the advancement of the public welfare are matters for legislative determination. Having determined they are necessary, or desirable, for such a purpose they become a part of the “public improvements” of the educational institutions. We think no one would seriously contend buildings such as a gymnasium, auditorium, field house, student union building or a student hospital located on the campus and used by the student body do not constitute public buildings, “public improvements,” or that they are not a recognized part of modern state educational institutions. (51 Am. Jur., Taxation, §§ 619, 622-624, inch)
The case of State, ex rel., v. Atherton, supra, cited by the state in support of its contention that student dormitories would constitute “internal improvements” is not in point. Undoubtedly numerous “internal improvements” were contemplated under the law there in question. (See § 4 of the law there involved and opinion pp. 198, 209.) Other cases cited by the state on other contentions have been examined but found not helpful under the particular act in question. We think ch. 435, Laws 1947, is not invalid on any constitutional ground raised by the state.
The writ is denied.
Harvey, C. J., dissents.
“resolution
“Whereas, The Kansas State Board of Regents determines and orders that the construction and equipment of two dormitory buildings upon the campus of the Knasas State College of Agriculture and Applied Science at Manhattan, Kansas, is necessary and desirable in order that students attending such college shall have adequate living facilities; and
“Whereas, It is estimated that each of said dormitory buildings will cost approximately Seven Hundred Thousand Dollars ($700,000) for construction, and the further sum of One Hundred Thousand Dollars ($100,000) for equipping each-said building; and
“Whereas, There are immediately available sufficient funds to pay all the cost of constructing and equipping one such dormitory building with the exception that an additional sum of One Hundred Fifty Thousand Dollars ($150,000) will be needed to use in conjunction with the funds on hand for this purpose; and
“Whereas, It appears that this Board is duly empowered to issue Revenue Bonds pursuant to Chapter 435, Laws of 1947 (76-6al3 to 76-6a25 inclusive, General Statutes for 1947), for the purpose of obtaining funds for the construction, equipment and furnishing of dormitory buildings, and is empowered to pledge income and revenue from such buildings to be constructed and the revenues from other buildings owned and operated by said State Board of Regents and the Kansas State College of Agriculture and Applied Science, and that it appears to this Board of Regents that the issuance and sale of revenue bonds in full accordance with such statute is a proper and desirable manner of financing the construction of such buildings, and such buildings can and will be self-liquidating undertakings;
“Now, therefore,
“Be it resolved:
“Section 1. That Kansas State Board of Regents shall issue and there are hereby issued Dormitory Revenue Bonds Series A in the sum of One Hundred Fifty Thousand ($150,000) Dollars. Said issue shall consist of revenue bonds and shall be numbered from 1 to 150, inclusive, and shall be in denominations of One Thousand Dollars ($1,000) each. Said Dormitory Revenue Bonds shall be dated June 1, 1949, and shall bear interest at the rate of three percent (3%) per annum, payable semiannually according to the interest coupons attached thereto. Said bonds shall be numbered and shall mature consecutively each year as follows: [Here follow the bonds by number showing total annual maturities and dates thereof from June 1, 1950, to June 1, 1959, inclusive.]
“Each of said Dormitory Revenue Bonds shall be redeemable and callable prior to maturity after three (3) years from date of issue. If called and redeemed after three years from date they shall be redeemed at par plus three percent (3%). If called and redeemed after four years from date they shall be redeemed at par plus two percent {2%), and if called and redeemed after five years from date they shall be redeemed at par plus one percent (1%), and if called and redeemed after six years from date or thereafter they shall be redeemed at par value. The Board of Regents reserves the right to call and redeem on the date of the maturity of any interest coupons any of said bonds without reference to date of maturity or serial number thereof. Such redemption shall be had by giving public notice in the Official State Paper not less than thirty (30) days prior to the date of any coupon maturity that the Board of Regents desires to redeem such Dormitory Revenue Bonds and shall specify the date of redemption, the serial number of the bonds called and the terms of the redemption. Such bonds so called shall cease to bear interest after the date fixed for the redemption thereof.
“The Dormitory Revenue Bonds issued hereunder shall be signed by the Chairman of the Kansas State Board of Regents and attested by its Secretary, and the seal of the Board affixed thereto. The coupons attached to said bonds, representing the interest maturing thereon semiannually, shall be signed by the facsimile signature of the Chairman of said Board and the facsimile signature of its Secretary. The Bonds and coupons shall be registered in the office of the State Auditor for the State of Kansas and shall be payable both as to principal and interest in the fiscal agency in the office of the State Treasurer, Topeka, Kansas, or in the office of the subfiscal agency of the State of Kansas, in the City of New York, at the election of the holder thereof.
“Sec. 2. That said Dormitory Revenue Bonds Series A when issued shall be in substantially the following form:
“Form of Bond United States of America
No. 000
SI,000 Series A SI,000
Board of Regents of the State of Kansas Dormitory Revenue Bonds The Kansas State College of Agriculture and Applied Science Manhattan, Kansas
“Know all men by these presents, That the board of Regents of the State of Kansas acknowledges itself to owe and for value received promises to pay out of the revenues herein described to the bearer, or if registered to the registered holder thereof, a sum of One Thousand Dollars ($1,000) on the first day of June, 195 — , with the interest thereon from date hereof at the rate of three percent (3%) per annum payable semiannually on presentation and surrender of the annexed interest coupons as they severally become due.
“Both principal and interest of this Dormitory Revenue Bond are hereby made payable in lawful money of the United States of America at the fiscal agency of the State of Kansas in the office of the State Treasurer in the city of Topeka, Kansas, or at the sub-fiscal agency of the State of Kansas in the city of New York in the State of New York at the option of the holder thereof.
“This Dormitory Revenue Bond is one of a series of One Hundred and Fifty (150) Dormitory Revenue Bonds, Series A, all of like date, interest rate and tenor except maturities, totalling the sum of One Hundred and Fifty Thousand Dollars ($150,000) and for whose payment, and for payment of Dormitory Revenue Bonds Series B in a total sum of Eight Hundred Thousand Dollars ($800,000) hereinafter to be issued, the revenue derived from the operation of certain dormitories, buildings and facilities of Kansas State College of Agriculture and Applied Science are irrevocably pledged.
“This Dormitory Revenue Bond is issued under the authority of and in full compliance with the Constitution and Statutes of the State of Kansas, particularly Chapter 435, Laws of 1947 (76-6al3 to 76-6a25, General Statutes Supplement of 1947), and in full accordance with the powers, duties and privileges conferred by law upon the Kansas State. Board of Regents, the Kansas State College of Agriculture and Applied Science, and in full accordance with the Constitution and Laws of the State of Kansas.
“This Dormitory Revenue Bond and the series of which it is a part and the income derived therefrom are and shall be exempted from all state, county and municipal taxation in the State of Kansas, except inheritance taxes of the state of Kansas. For the prompt payment of the principal and interest hereof the State Board of Regents for themselves and for the Kansas State College of Agriculture and Applied Science have covenanted and irrevocably pledged income and revenue arising from the operation of certain dormitory buildings and facilities owned and operated by the State Board of Regents and the Kansas State College aforesaid. This Dormitory Revenue Bond is not and shall not become an obligation of the State of Kansas or of the Kansas State College of Agriculture and Applied Science or the Kansas State Board of Regents or the individual members thereof, and cannot be paid from any general property tax levied by the state of Kansas.
“It is hereby certified and represented, That all acts, conditions and things required to be done, to exist, happen or be performed precedent to and in the issuance of this Dormitory Revenue Band, have been done, to exist, have happened and have been performed in due time, form and manner as required by law, and that the amount of this Dormitory Revenue Bond, together with all other existing indebtedness of the Kansas State Board of Regents or the Kansas State College of Agriculture and Applied Science, does not exceed any limitation prescribed by the Constitution or Statutes of the State of Kansas.
“This bond is negotiable.
“In witness whereof, The Chairman of the State Board of Regents has signed this bond for and on behalf of said Board, and it has been attested by the Secretary of said Board and the seal of said Board affixed thereto, and the interest coupons hereto annexed have been signed with the facsimile signature of the Chairman and Secretary of the Kansas State Board of Regents all as of the first day of June, 1949..
Chairman.
Attest: ................................................
Secretary.
“(seal)
[Here follows form of first coupon bond and form of certificate of the state auditor.]
. “endorsement
Number 000000
THE KANSAS STATE BOARD OF REGENTS DORMITORY REVENUE BOND
Series A
$1,000
Chapter 435, Laws, 1947 Issue of $150,000 Three Percent'
June 1, 1949
DORMITORY REVENUE BOND
Interest payable June 1 and December 1, principal due June 1, 195 — . Principal and interest payable at the office, of the Treasurer of the State of Kansas, at Topeka, Kansas, or at the subfiscal agency of the State of Kansas in the city of New York.
“Registration. Entries hereon must be made only by the treasurer of the State of Kansas, or his duly authorized representative.
Signature of
“Date of registry Reg. Ref. To whom registered registry office
“Sec. 3. The Board of Regents finds, determines and orders that there shall be issued Dormitory Revenue Bonds Series B in the total sum of Eight Hundred Thousand Dollars ($800,000) and that the issuance of Series B may be deferred by the Board until the Dormitory building constructed from the proceeds of Series A has been substantially completed, or until such time as the Board shall determine that the revenue from the dormitories, buildings and facilities pledged will be sufficient and adequate to meet maturities of Series A and Series B, Dormitory Revenue Bonds outstanding and to be issued. At the time of the issuance of Dormitory Revenue Bonds Series B, the Board of Regents shall designate by a supplemental resolution the denomination, maturity dates, interest rate and terms of call of such Dormitory Revenue Bonds Series B, and it is specifically recited that the revenues herein pledged for the payment of Series A shall be equally and irrevocably pledged for the payment of principal and interest of Series B when issued or so long as any Dormitory Revenue Bonds either, or both, of said Series A or Series B are outstanding and unpaid.
“Sec. 4. That to insure the payment of principal and interest when due the Kansas State Board of Regents and The Kansas State College of Agriculture and Applied Science hereby covenant and agree that they will pledge, and they do hereby irrevocably pledge, to make distribution of the gross revenue derived from room rent of the following-named buildings at the following rates percent for the following purposes: Van Zile Hall, Waltheim Hall, East Stadium Dormitory, West Stadium Dormitory and the new Women’s dormitory to be constructed from the proceeds of the sale of Series A Dormitory Revenue Bonds, the sum of sixty percent (60%) of such gross rental for operating cost, thirty-five percent (35%) of such gross rental toward the retirement of Dormitory Revenue Bonds and interest thereon, and five percent (5%) of the gross rental for a reserve fund.
“That from the receipts from meals and board furnished to students in the aforesaid halls and dormitories, the Board of Regents and the Kansas State College of Agriculture and Applied Science hereby covenant and agree to allocate ninety percent (90%) of the gross receipts from meals and board for operation, eight percent (8%) of such receipts for the payment of principal and interest of Dormitory Revenue Bonds and two percent (2%) thereof for a reserve fund. The State Board of Regents specifically reserves the right to discontinue the furnishing of meals and board when in the judgment of the State Board of Regents the serving of such meals will not prove profitable.
“It is recited and covenanted, That the above and foregoing halls and dormitories are permanent installations which the State Board of Regents covenants that they will maintain and operate so long as any Dormitory Revenue Bonds are outstanding and unpaid. The State Board of Regents covenants and agrees that it will use its best efforts to the end that such buildings and facilities are rented on terms that will insure the receipts therefrom will be sufficient to meet bond and interest maturities when due.
Percentage Allocation allocated for bond for and interest Percentage “Name of unit operation maturities reserve
Campus Courts............... 80% 15% 5%
West Campus Courts.......... 80% 15% 5%
College Apartments........... 60% 35% 5%
Moro Courts................. 70% 25% 5%
“It is specifically recited that whenever in the opinion of the State Board of Regents the operation of any such dormitory facilities will not prove profitable its operation may be discontinued at any time. That so long as said facilities are in operation, the Board of Regents covenants that it will use its best efforts to the end that said units are rented for a consideration that is adequate to retire the Dormitory Revenue Bonds and interest at maturity as herein provided.
“It is further covenanted and agreed, By the Kansas State Board of Regents, That all utility service, and the service of all unclassified personnel employed in the operation or use of the dormitories or facilities whose revenue is pledged for payment of these Dormitory Revenue Bonds, will be furnished by the Kansas State College of Agriculture and Applied Science without charge against the operating cost, or the gross receipts of said dormitories and facilities.
“It is further covenanted and agreed, That the Kansas State Board of Regents will maintain in full force and effect adequate insurance of such type as it determines the best protection of the bondholders and in an amount equivalent to the outstanding, unpaid Dormitory Revenue Bonds issued pursuant hereto. .
“It is further covenanted and agreed, That the Kansas State Board of Regents will fix adequate rents, charges and fees sufficient to meet operating expenses and retire the bonds upon their respective maturities and pay interest thereon when due in accordance with the allocations of gross revenue as herein specified.
“Sec. 6. The Dormitory Revenue Bonds issued hereunder shall not be an indebtedness of the State of Kansas or of the Kansas State College of Agriculture and Applied Science, or of the State Board of Regents, or of the individual members of said board, and shall not constitute an indebtedness within the meaning of any constitutional or statutory limitation upon the incurring of indebtedness by the State of Kansas or the Kansas State College of Agriculture and Applied Science, or the Kansas State Board of Regents, and shall not become a general obligation of the State of Kansas, the Kansas State College of Agriculture and Applied Science, the Kansas State Board of Regents or the individual members thereof; nor shall these Revenue Bonds, or any judgment debt arising by reason of the issuance thereof, become a debt of the-State of Kansas, the Kansas State College of Agriculture and Applied Science, the State Board of Regents or the individual members thereof; nor shall any general property tax ever be levied by the State of Kansas for the payment thereof.
“Sec. 7. The provisions of this resolution shall constitute a contract by and between the Kansas State Board of Regents and the holders of the Dormitory Revenue Bonds Series A and B, and the provisions of this resolution may be enforced in any court in accordance with the provisions of this resolution and 76-6al9, General Statutes Supplement of 1947.
“Sec. 8. The Chairman and Secretary of the Kansas State Board of Regents are hereby authorized and directed to prepare and execute Dormitory Revenue Bonds Series A in the sum of One Hundred and Fifty Thousand Dollars ($150,000), principal amount in the manner and form provided in this resolution, and shall cause the same to be registered in the office of the State Auditor of Kansas, and when duly executed and registered, to deliver said bonds to the purchaser upon payment of the purchase price therefor.
“Sec. 9. That there shall be caused to be published once in the Official State Paper of the State of Kansas a notice to all persons interested, that this Board has determined to issue Dormitory Revenue Bonds under the laws of Kansas. Said notice shall be in substantially the following form:
“To all persons interested: [Here is contained the publication notice, required by § 13 of the act, of the board’s determination to issue bonds, but included therein is contained the following additional statement.]
“You are further notified, That the Dormitory Bonds Series A and Series B are not an indebtedness of the State of Kansas, the Kansas State College of Agriculture and Applied Science, State Board of Regents or the individual members thereof, and are not payable directly or indirectly from the proceeds of any tax levy but are payable solely and only from revenue derived from the operation of certain dormitories and facilities of the Kansas State College of Agriculture and Applied Science.”
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The opinion of the court was delivered by
Wedell, J.:
This was an action to enjoin county officers from collecting taxes alleged to have been illegally levied and assessed on personal property.
Plaintiff, The Sherwood Construction Company, a corporation, appeals from the order sustaining a demurrer to its petition. The pertinent averments of the petition, in substance, were:
Plaintiff is a Kansas corporation with its principal place of business and post-office address in Wichita, Sedgwick county; that is the place where its business is done and conducted; all property and equipment owned by it when not otherwise in use is housed and kept in its shops in Sedgwick county; all contracts negotiated by it are handled and finally processed through its Wichita office where its principal business is done and conducted; one phase of its business is road construction which is carried on with heavy machinery and equipment moved into other counties within the state and frequently into other states when necessary to carry out its contracts; in the latter part of 1946 plaintiff contracted to do certain road construction work in Johnson county, Kansas, and moved its equipment and machinery (the date was not stated) into that county where it was put to use and was located on March 1, 1947.
The petition further alleges:
“Seventh: That in pursuance of the provisions of G. S. 1935, 79-304, requiring a company to list its property for purposes of taxation in the county, township, city and school district where its business is usually done, plaintiff listed all of its property for purposes of assessment and taxation for the year 1947 in Wichita, Sedgwick county, Kansas; that said personal return was duly audited by a deputy assessor of Sedgwick county, Kansas, and duly approved and filed on May 7, 1947. A true and correct photostat of said return is attached, made a part hereof and reference hereto made as though fully incorporated herein as Exhibit ‘A’.
“Eighth: That thereafter and on or about July 15, 1947, plaintiff was notified by the taxing officials of Johnson county that a personal tax return covering all property owned by plaintiff and located in that county on March 1, 1947, had been filed against plaintiff in said county and that taxes based upon their valuation would be collected; that said action on the part of said taxing officials thereby created a double assessment against said property of plaintiff and plaintiff was subsequently notified that taxes in the amount of $3,419.13 were payable. A true photostat of the return as made and filed by said taxing officials is hereto attached, made a part hereof and reference hereto made as though fully incorporated herein as Exhibit ‘B’.
' “Ninth: That the plaintiff is a ‘company’ as such term is intended and used under the provisions of G. S. 1935, 79-304, and as such is required to and did list all of its property in Wichita, Sedgwick county, Kansas, which is the place where plaintiff’s business is usually done; that the equipment belonging to plaintiff and located in Johnson county on March 1, 1947, was promptly removed therefrom when the purpose for which each item so used had been served and the same did not acquire a tax situs for purposes of taxation in said county; that said property so assessed had no degree of permanency in said county and did not become a part of the common mass of property therein and because of the provision of G. S. 1935, 79-304, requiring a company to list its property for purposes of assessment in the county, township, city and school district where its business is usually done said tax, charge and assessment imposed in Johnson county is illegal and wholly void; that the collection thereof should be enjoined and said tax ordered canceled.”
It was then alleged the levy and assessment on the property made in Johnson county were illegel. Plaintiff prayed defendants be enjoined from collecting the tax, for an order cancelling it and that plaintiff be given all proper equitable relief.
Before considering the proper tax situs of the property in question we are confronted with appellees’ contention that irrespective of its proper tax situs the demurrer was properly sustained. The contention is the petition failed to allege compliance with a condition precedent to appellant’s right to maintain this action, namely, that appellant had first exhausted its remedy before the state commission of revenue and taxation. In support of this position appellees cite G. S. 1947 Supp., 79-1702, which provides:
“If any taxpayer shall have a grievance not remediable or which has not been remedied under section 1 [79-1701] of this act such grievance may be presented to the state commission of revenue and taxation at any time prior to the first day of August of the year succeeding the year when the assessment was made and the taxes charged which are the basis of the grievance, and the said commission shall have full authority to inquire into the grounds of complaint, and if it shall be satisfied from competent evidence produced that there. is a real grievance, it may direct that the same be remedied either by canceling the tax if uncollected together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected. In all cases where the identical property owned by any taxpayer has been assessed for the current tax year in more than one county in the state, said commission is hereby given authority to determine which county is entitled to .the assessment of the property and to charge legal taxes thereon, and if the taxes have been paid in a county not entitled thereto, said commission is hereby empowered to direct the authorities of the county which has so unlawfully collected the taxes to refund the same to the taxpayer with all penalties charged thereon.” (Our italics.)
The petition did not allege appellant had paid the tax assessed in Sedgwick county but the foregoing statute, beginning with the italicized words, “In all cases . . .,” authorizes the tax commission to grant the desired relief whether the taxes have or have not been paid. It will be observed the portion of the statute beginning with the italicized words, “In all cases . . .” expressly grants to the commission authority to determine the precise problem in this case.
G. S. 1947 Supp. 79-1702a also grants power to the tax commission to correct specified errors when property has been erroneously taxed or assessed and the tax has not been paid. Here we are confronted not only with an alleged error or irregularity but with the contention the tax was illegally levied and will be illegally collected unless appellees are enjoined from so doing. (Salthouse v. McPherson County, 115 Kan. 668, 670, 224 Pac. 70.) It will be observed that while the statutes authorize the tax commission to act in the premises they do not state an aggrieved party shall, or must exhaust his remedy before the state tax commission prior to instituting an action in the courts in the case of an illegal tax.
Appellant contends the action was properly instituted pursuant to the provisions of G. S. 1935, 60-1121, which authorizes the granting of an injunction to prevent the illegal levy of any tax, charge, or assessment or the collection thereof. It, in substance, contends the right to injunctive relief from an illegal tax is a matter entirely different from the mere correction of an error or irregularity in taxation. In support of its contention that it may proceed directly in the courts to obtain relief from an illegal tax appellant cites Griffith v. Watson, 19 Kan. 23, 27; Railway Co. v. Wyandotte County, 101 Kan. 618, 168 Pac. 687; Salthouse v. McPherson, supra, p. 670-671.
Appellees argue that where a remedy is provided before an administrative tribunal the remedy must be exhausted before resort is had to the courts, citing State, ex rel., v. Capital Gas & Electric Co., 139 Kan. 870, 33 P. 2d 731; Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041; Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456; Ritchie v. Johnson, 158 Kan. 103, 144 P. 2d 925; Thompson v. Chautauqua County Comm’rs, 147 Kan. 151, 75 P. 2d 839.
The first two of the last cited cases are covered by the law pertaining to the procedure before the state corporation commission. One was a gas rate case, the other a gas proration case. The third case was one under the workmen’s compensation act which provides its own complete and exclusive procedure and remedy. The fourth was a federal rent control case likewise controlled by the specific provisions of the federal law. The fifth case clearly recog nizes that while redress before the tax commission is appropriate it is not the exclusive remedy where an alleged illegal tax is involved. (Thompson case, p. 156, citing Railway Co. v. Greenwood County, 104 Kan. 818, 821, 180 Pac. 785; Bank of Holyrood v. Kottman, 132 Kan. 593, 595, 296 Pac. 357.) See express reference to the statute here involved in the last cited case at p. 595. So, too, it was said in Atchison, T. & S. F. Rly. Co. v. Montgomery County Comms's, 121 Kan. 428, 247 Pac. 442, as follows:
“Defendant argues that plaintiff should have presented its claim to the state tax commission, as provided by R. S. 79-1702. The decision of the court below appears not to have been based upon this point; but, aside from that, the statute does not provide an exclusive remedy. (Railway Co. v. Greerswood County, 104 Kan. 818, 180 Pac. 785; Salthouse v. McPherson County, supra.)” (p. 430.)
It is also well to observe G. S. 1947 Supp. 79-1702, in substance, provides that where a taxpayer has a grievance not otherwise remediable he can have redress through the state tax commission. (Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 624, 42 P. 2d 936; Thompson v. Chautauqua County Comm'rs, supra, p. 154.) The instant grievance is expressly made remediable by the injunction statute relied upon by appellant. (G. S. 1935, 60-1121.)
Although it would be entirely appropriate and perhaps a good practice for a taxpayer to first present a grievance such as this to the commission even though he claimed the assessment and levy were actually illegal, rather than merely erroneous, nevertheless courts cannot compel the taxpayer to adopt that procedure when the legislature makes it merely a cumulative and not an exclusive remedy.
Was the demurrer to the petition properly sustained on other grounds? In view of the conclusion we have reached we do not deem it necessary to set out the lengthy pertinent statute. (G. S. 1935, 79-304.) In passing we note that statute was amended in 1947 with respect to tangible property, stationed, located or stored on a municipal airport or airfield. (G. S. 1947 Supp. 79-304.) The amendment, however, is not involved in this case.
An examination of the statute will readily disclose the provisions thereof on which appellant relies, namely, that part which provides :
“The property of banks, bankers, brokers, merchants, and of insurance or other companies (except of mutual fire insurance companies) shall be listed and taxed in the county, township, city and school district where their business is usually done, and manufactories and mines in the county, township, city and school district where the manufactories or mine is located.” (Our italics.)
, Appellant argues the words “or other companies” were intended to include every company or corporation and, therefore, the property in question could be assessed and taxed only where appellant’s “business is usually done.” The petition alleged that place to be at its principal office in Wichita, Sedgwick county. The petition further alleged appellant listed all its property for purposes of assessment and taxation for the year 1947 in Sedgwick county pursuant to the provisions of G. S. 1935, 79-304. (See petition, ¶ 7.) The petition further alleged the appellant was notified of the assessment in Johnson county on or about July 15, 1947.
On the other hand, appellees stress the fact the petition discloses the property was brought into Johnson county during the latter part of 1946, and was located there on March 1, 1947. Appellees contend the property was taxable in Johnson county by virtue of the provision in the statute that:
“All toll bridges shall be listed in the township or ward where the same are located; and if located in two wards or townships, then one-half in each of such wards or townships, and all personal property shall be listed and taxed each year in the township, school district or city in which the property was located on the first day of March, but all moneys and credits not pertaining to a business located shall be listed in the township or city in which the owner resided on the first day of March.” (Our italics.)
The parties also refer to other tax statutes which they regard as an aid to a proper interpretation of G. S. 1935, 79-304 and to cases decided under previous tax statutes, conceded not to be controlling here, but which they regard as helpful on their contentions.
In addition to portions of the petition previously noted it will be observed the petition also alleged the property was promptly removed from Johnson county when the purpose for which each item was used had been served and that the property had no degree of permanency in Johnson county and had not acquired a tax situs therein. However, neither the date on which the property was originally brought into the county during the latter part of 1946 nor the date it was removed therefrom is alleged. The petition does not disclose the extensiveness of the business transacted or to be transacted in Johnson county. While we are not now deciding the last two stated facts would be conclusive on the issue of the tax situs of the property we think they may have some bearing on that question when considered in connection with all other material facts that probably will be developed on the trial.
The statute is by no means a model of clarity. The question presented is one of public as well as of a private nature. It is of vital importance to many taxpayers and to taxing officials. In the very nature of its character and importance the question is one that should not be determined in the absence of a full disclosure of all pertinent facts. It would have been far better and a much safer practice to have joined issues by proper pleadings and to have tried the case on its merits rather than to endeavor to obtain a ruling on such an important question of law by demurrer to a petition which may not fully disclose all the material facts.
The record does not show the petition was motioned in order to obtain a fuller statement of the facts. It seems to us the allegations of the petition are sufficiently broad, considering all averments and reasonable inferences, which on demurrer must be admitted to be true, to permit appellant to make its proof. When that has been done the trial court and this court, if necessary, should be in a far better position to determine whether appellant is entitled to the relief sought.
The order sustaining the demurrer to the petition should be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
This appeal is the aftermath of an action which was partially considered and determined by this court in Jones v. Crow-ell, 164 Kan. 261, 188 P. 2d 908, and involves a controversy over the purchase and sale of a doughnut shop.
The plaintiffs base their right to relief on two causes of action, one for reformation of a written contract and the other for an accounting and the recovery of money under agreements alleged to exist between the parties for the sale of such business.
The case was first tried in the court below, as permitted by G. S. 1935, 60-2904, on the first cause of action only, disposition of all issues under the second cause of action being continued. In that phase of the proceeding the trial court sustained a demurrer to plaintiffs’ evidence on the premise it failed to show grounds for reformation of the written instrument to include an oral agreement alleged by the plaintiffs to have been made between the parties at the time of its execution. On appeal we sustained that ruling and the case went back for trial on the second cause of action.
To fully comprehend the issues here involved, although dependent upon subsequent proceedings, it is, of course, necessary that readers of this opinion understand the facts, circumstances, conditions, and the proceedings responsible for and resulting in our decision on the first appeal. All such matters, together with pertinent allegations of the first cause of action and terms and conditions of the written contract, are clearly and succinctly set forth in the opinion of Jones v. Crowell, supra, where they can be found by reference if desired for elucidatory purposes and hence need not be repeated here. However, by way of explanation it should perhaps be here stated the general theory on which plaintiffs based their right of ’recovery on both their first and second causes of action is that by virtue of the terms of an oral agreement, asserted to have been made contemporaneously with the execution of the written contract of sale, defendants are required to pay any and all increased taxes, income and otherwise, assessed against plaintiff Brewer C. Jones as a result of his sale of the doughnut business without charging such payments against the agreed purchase price even though the written agreement so entered into between the parties contained no such provision or requirement.
After our decision in the first appeal the plaintiffs made no attempt to amend their petition and proceeded to trial on issues raised by its second cause of action and pleadings filed by the defendants, presently to be mentioned. The allegations of such second cause of action, omitting certain averments no longer material pertaining to the status of a bank account and moneys on deposit in the Kansas State bank of Wichita, read as follows:
“Plaintiffs for their second cause of action against the defendants state and allege:
“That they make all the material allegations to the first cause of action a part hereof;
“That the defendants, Ernest D. Crowell and Sybil Crowell, have failed, neglected and refused to pay the sums due upon the oral agreement herein-before alleged and due under such contract as it should be reformed:
“That the defendants, Ernest D. Crowell and Sybil Crowell, have excluded the plaintiff, Brewer C. Jones, from the supervision of such business;
“That since the 1st day of July, 1945, the profits of the said Jones Donut Shop have been greater than the sums paid to this plaintiff, Brewer O. Jones; that the said Brewer C. Jones is entitled to interest upon the sums not paid to him each month; that it will be necessary for an accounting to be had to determine the exact amounts which should have been paid to this plaintiff since the 1st day of July, 1945;
“That there is due and unpaid upon such contract the sum of approximately eight thousand dollars ($8,000) of which $3,330.37 should be credited upon said fifteen thousand dollars ($15,000) and the balance paid to the said Brewer C. Jones to defray his income tax pursuant to the oral agreement hereinbefore stated.
“WHEREFORE, upon their first cause of action plaintiffs pray . . ., and upon their second cause of action plaintiffs pray . . .; that the defendants, Ernest D. Crowell and Sybil Crowell, be required to account for the total net profit of such business from the 1st of July, 1945; that they have judgment against the defendants, Ernest D. Crowell and Sybil Crowell, for such sums as may be found to be due after such accounting under the terms of the oral agreement herein alleged together with interest upon any unpaid monthly payments and that they have judgment against the defendants for costs of this action and for all other proper and equitable relief to which they may be entitled.”
By reference to the first cause of action the portion of the pleading just quoted must also be considered as containing averments to the effect that until shortly before the institution of this lawsuit defendants paid the taxes heretofore mentioned pursuant to and in the manner required by the alleged oral agreement.
Prior to trial defendants had filed an answer to plaintiffs’ second cause of action in which they (1) alleged they had niade all payments due plaintiffs by reason of the written agreement sued on and had overpaid them to the extent of $552.91; (2) denied generally all material allegations of the second cause of action; (3) specifically denied they owed plaintiffs anything under the terms of any agreement, either written or oral; (4) specially denied the allegations and averments set forth in the two paragraphs next preceding the prayer of the cause of action heretofore quoted; and (5) by reference to their answer to the first cause of action of the petition asserted the written agreement embodied all terms of the sale and denied the existence of any oral contract whatsoever. In addition they also filed a cross petition wherein they asked judgment for the amount they claimed to have overpaid the plaintiffs on the written contract.
In view of the way this case was tried and the manner in which it has been submitted for appellate review we find it far more difficult to set forth in this opinion an understandable description of the facts and proceedings on which our decision is to be based than to arrive at the decision itself. In the interest of clarity notwithstanding what has already been stated, even at the risk of becoming tedious, further reference to what took place in the court below is necessary. As gleaned from the record the essentials of the proceedings had there can be stated thus:
With issues joined as heretofore related the plaintiffs took the position there was nothing for them, to establish by proof and offered no evidence whatsoever in support of their second cause of action or on rebuttal.
The defendants then made an opening statement to which the plaintiffs demurred and moved the court to limit any recovery to the amount prayed for in the cross petition. Both demurrer and motion were overruled.
The plaintiffs then — for some reason unexplained by the record —made an opening statement in which they offered to adduce evidence in support of their first cause of action, theretofore disposed of by our decision in Jones v. Crowell, supra, relating to payment of income taxes under the oral agreement. Based on such decision the court sustained an objection to that testimony.
The defendants then offered evidence in support of their answer and cross petition. As a part of their case they offered the original contract of sale endorsed on which, together with other figures, was the notation $3,330.37 which defendant, Ernest D. Crowell, conceded on cross-examination was placed there in May, 1946, and at that time agreed upon by Mr. Jones and himself as the amount then due on the contract. He also admitted he had made no payments on such contract since such date and that in the balance so agreed upon no charge had been made by him against Mr. Jones for income taxes the defendants had paid in the latter’s behalf. However, it is to be noted that also on cross-examination the same witness, in response to a question as to why he was now claiming the defendants did not owe the plaintiffs the balance so agreed upon and was claiming approximately $552 in his cross petition as an overpayment on the contract, stated that such balance did not give credit for three thousand some dollars paid on Mr. Jones’ income taxes and did not take into account a $500 income tax estimate paid in 1946 in Mr. Jones’ name.
Other testimony appears in the record, but it will not be referred to inasmuch as we do not deem it material to a determination of the rights of the parties under the issues raised on appeal.
After defendants closed their case plaintiffs demurred to their evidence and moved the court for judgment in the sum of $3,330.37, with interest, for the reason Mr. Crowell’s testimony disclosed that such sum constituted an account stated as -between the parties.
Plaintiffs then requested permission to amend their petition to show there was an account stated more definitely and to amend their answer to the cross petition, which we pause to point out is not in the record, accordingly. This last request was granted instanter by the trial court, over defendants’ objection any such amendment would change the second cause of action from one in accounting to one for recovery on account stated and result in an entirely new and distinct cause of action, with the statement it desired to hear argument on the question of the account stated.
Subsequently plaintiffs renewed their demurrer to defendants’ evidence on their cross petition and their motion for judgment. After arguments on each the court overruled the motion for judgment, sustained the demurrer to defendants’ evidence on their cross petition and rendered judgment in favor of the defendants for costs. All parties to the action, except the Kansas State Bank of Wichita which is no longer involved in this controversy, have appealed from the judgment and intermediate adverse rulings.
As we approach consideration of the contentions advanced by the respective parties it must be remembered the well-established rule is that before this court will set aside the judgment of a trial court it must affirmatively appear there has been an error which affects the substantial rights of the parties. (Firmin v. Crawford, 140 Kan. 370, 36 P. 2d 970; Jacobs v. Hobson, 148 Kan. 107, 79 P.2d 861; Donley v. Amerada Petroleum Cory., 152 Kan. 518, 525, 106 P. 2d 652; West’s Kansas Digest, Appeal. & Error, § 901.)
In support of their position plaintiffs first contend the record establishes an account stated between the parties. We are not inclined to write a thesis on the law applicable to the subject of accounts stated. Plaintiffs failed to prove the $3,330.37 referred to in Mr. Crowell’s testimony as the amount then due on the contract was ever acquiesced in by them. Indeed they assumed an entirely inconsistent attitude by bringing- an action against the defendants on the contract for something like $5,000 more than that sum shortly after it was endorsed on the agreement. Under such conditions and circumstances, particularly wjth testimony by Mrs. Crowell, who was one of the partners in business, to the effect she was present at the time such endorsement was made and there was a controversy regarding the amount due, the trial court had a right to reject plaintiffs’ last-minute claim of account stated which was clearly an afterthought -and resulted in complete abandonment of the original theory — accounting—on which the second cause of action was based.
It is next urged that account stated or not plaintiffs are nevertheless entitled to judgment for $3,330.37. Regardless of cause the only contract established by the evidence is the written contract between the parties. No one contends it makes provision for or requires the payment of income taxes. Defendants’ evidence clearly establishes payments by them of such taxes for Mr. Jones amounting to at least as much as the amount plaintiffs now claim to be due under such contract. In an accounting between the parties to ascertain the amount due on the contract, which we pause to point out is the sole issue involved under the allegations of the second cause of action, the trial court did not err in concluding there was nothing due plaintiffs under the terms and conditions of that agreement.
We come now to errors assigned by defendants as requiring a reversal of the judgment. They first urge that the order permitting plaintiffs to amend their petition to state a cause of action for account stated is erroneous. This claim, in our opinion, would present a serious question had the court based its judgment upon such a theory. It did not do so. Thus it appears the amendment did not affect defendants’ substantial rights or result in prejudice to them. Hence allowance of the amendment constitutes no ground for reversal of the judgment.
In conclusion it should be said there may possibly be some error in the trial court’s action in sustaining the demurrer to evidence adduced in support of the cross petition as defendants contend. Be that as it may, in the face of a confusing 'and somewhat incomprehensive record which has made a decision of all questions raised by the parties unusually tedious and difficult, we are constrained to' hold it is neither clear nor palpable and for that reason should be disregarded.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Arn, J.:
This action was for a declaratory judgment to construe a written trust agreement executed November 11, 1939. The beneficiaries of the trust were the defendants, a granddaughter and grandson of the grantor. The plaintiff trustee is the father of the defendants. The trust included certain real and personal property, and the controversy involves Article I of the agreement which is as follows:
“This trust shall be known as the Cyrus M. Beachy Trust No. 1.
“Grantor agrees to and shall forthwith deposit, assign and convey to the trustee each and all the property enumerated and described in Exhibit A hereto attached and said property and any other property which may hereafter be delivered to the trustee pursuant to this agreement shall be held by the trustee and his successors in trust for the following uses and purposes:
“(a) Said trustee shall pay the net income from said trust to Owen Coe McEwen and Ellen McEwen, (grantor’s grandchildren), share and share alike, said payment to be made not less than semi-annually for the period hereinafter specified, (except that the trustee may, in his judgment and at any time, permit not to exceed fifty per cent (50%) of the net income to accumulate and be added to the corpus of the trust estate).
“(b) The comfort, support and happiness of the beneficiaries are the primary wish and concern of the grantor and said trustee is hereby authorized to utilize and devote all or any part of the corpus of the trust estate for such purpose if in his opinion it is necessary. The trustee is hereby authorized to make such payment out of the corpus of the trust estate to any beneficiary not only while such beneficiary is entitled to part of the net income, but at any time before such beneficiary may become entitled to the net income if, in the opinion of such trustee, such course is advisable or necessary.
“(c) In the event of the death of either of the beneficiaries named in paragraph (a) above before the termination of the trust hereby created and in the event such beneficiary die leaving issue him or her surviving, then such surviving issue shall take the part of deceased parent, per stirpes.
“(d) In the event of additional grandchildren such additional grandchildren shall share equally and under the same conditions as the beneficiaries mentioned in paragraph (a) above.
“(e) The trust created hereby shall be terminated when the youngest of the beneficiaries named in paragraph (a) above shall have attained the age of (40) or would have attained such age had he survived. Upon the termination of the trust estate the property shall pass absolutely to the beneficiaries named in paragraph (a) above. In the event such beneficiary or either of them dies before the date of the termination of said trust estate leaving no issue him or her surviving, then the portion which would have vested in him or her shall pass to his or her heirs under the statute of descents and distributions of the State of Kansas provided that this shall not include as heirs the surviving spouses of such deceased child. Issue of any deceased beneficiary shall take per stirpes and not per capita.” (Italics supplied.)
Article II of the agreement concerns the powers of the trustee and is of little importance to the question involved except to.note that the trustee had unrestricted judgment and discretion over the principal, and could incumber, exchange, sell or convey all or any part thereof without any liability whatsoever for mistaken judgment or business policy. The grantor released and waived any right to amend or revoke the trust agreement, and specifically provided that such grant was without reservation of any power to revest in the grantor any title to the property or to the income therefrom.
At the time of execution of the trust agreement, to wit: November 11, 1939, the ages of Ellen McEwen (Enoch) and Owen Coe McEwen, beneficiaries thereunder, were eleven years and fifteen years, respectively. Plaintiff trustee pleads the trust agreement in full as a part of his petition, and seeks a construction of said trust agreement and an order instructing him with respect to his duties as trustee. The defendants’ answer admitted the execution of the trust agreement and alleged (a) the trust was void from its inception because it violated the rule against perpetuities; and (b) the corpus of the trust passed absolutely to the defendants upon execution of the trust agreement for the reason that since the trust was void, the agreement amounted to an absolute gift, and the trustee never had any function to perform thereunder.
Trial was had to the court upon a brief stipulation of facts as follows:
“1. That Cyrus M. Beachy also known as C. M. Beachy, died on the 18th day of February, 1945, testate, a resident of Sedgwick county, Kansas, and that his will, copy of which is hereto attached, marked ‘Exhibit A’, and made a part hereof has been duly admitted to probate in Sedgwick county, Kansas.
"2. That his daughter Bernice B. McEwen, predeceased said O. M. Beachy and died on the 24th day of January, 1945, leaving surviving her, her husband, John D. McEwen and her two children, namely Owen Coe McEwen and Ellen McEwen (Enoch), all of whom are parties to this cause.
“3. All of the above facts and matters shall be taken into consideration by the court in the trial of this matter and shall constitute the evidence introduced in the trial of this case.”
By the will referred to in the foregoing stipulation, the two defendants are now the sole beneficiaries, and apparently the only purpose of injecting the will into this lawsuit was to further demonstrate the donor’s plan to ultimately give all of his property to his two grandchildren, Owen Coe McEwen and Ellen McEwen Enoch (defendants). The trust agreement was executed and the purported trust created several years prior to donor’s death and the trust property was not a part of his estate in the probate court.
The trial court found that Cyrus M. Beachy at the time of execution of the trust intended ultimately to give the property to his two grandchildren and in event the trust was invalid, it was his purpose and intent to give the property to them immediately.
The court below also concluded as matters of law that an actual controversy existed over the construction of this trust agreement; that said agreement violated the rule against perpetuities; that the gift to the defendants was accelerated by the dropping out of the prior estate and at the time of the execution of said instrument it constituted a direct gift to said grandchildren in equal shares. Thereupon it was decreed that the defendants, Owen Coe McEwen and Ellen McEwen Enoch, were the absolute owners of the property covered by the trust agreement and had been since its execution on November 11, 1939, and that the plaintiff trustee has never had, and does not now have, any duties to perform as trustee under the terms of said trust agreement.
From this judgment plaintiff trustee has appealed.
Before considering the vital questions raised by this action, we should point out that with respect to the rule against perpetuities, it is immaterial that the gifts to the two defendant grandchildren were made in trust. The first provision of the trust agreement was to immediately vest the legal title to the corpus of the trust in the trustee, who is the plaintiff here. The rule against perpetuities is the same at law and in equity and it applies equally to both legal and equitable interests so that its violation will not be tolerated when an interest or estate is created by trust any more than when it is entirely legal (See 48 C. J. 961, § 41; 48 C. J. 983, § 72, Beverlin v. First National Bank, 151 Kan. 307, 311, 98 P. 2d 200; Gray, Perpetuities, 4th ed., § 202). Therefore, it is the equitable interest with which we are here concerned.
Turning now to the specific issues involved in this controversy, we find these three questions presented:
1. At the time of the execution of the trust (Nov. 11, 1939), did the two defendants take a vested or a contingent interest?
2. Is there a possibility that vesting of the equitable estate of the two defendants may be postponed for a period longer than a life or lives in being and twenty-one years and nine months thereafter?
3. If the trust is void because it may not vest within such required period, is the gift to the two defendants accelerated by the failure of the prior estate so that it became an absolute gift to them as of November 11, 1939?
First, it must be determined whether the gifts to the two defendant beneficiaries were vested or contingent, because that will determine whether or not the rule against perpetuities has any applicability to this problem since the rule does not apply to vested interests. The distinction between vested and contingent interests is of great importance as concerns the rule against perpetuities, for a true vested interest is never obnoxious to the rule, while a contingent interest not only may be, but often is (Gray, Perpetuities, 4th ed., § 99). With that in mind, let us examine the trust provisions to determine whether the beneficiaries received only contingent estates. The provision which provides the answer is the first sentence of section (e) of Article I:
“(e) The trust created hereby shall be terminated when the youngest of the beneficiaries named in paragraph (a) above shall have attained the age of forty (40) or would have attained such age had he survived . . (Italics supplied.)
The defendant beneficiaries did not take an estate vested in possession because they had no accrued, fixed and indefeasible right to present enjoyment. An estate vests in interest when there is a present accrued, fixed and indefeasible right to enjoyment at a future time (Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 316, 211 Pac. 146). Did the above quoted portion of section (e) permit this estate to vest in interest or was there some uncertainty, some contingency, which rendered it defeasible?
Neither of the beneficiaries had an interest which they could convey or devise because the provisions of the purported trust prevailed for a period of twenty-nine years and until its termination in 1968 when the younger beneficiary, Ellen McEwen, reached the age of forty years. Neither of them may live until 1968. They or either of them' may or may not have children who would be alive at the termination date in 1968 when Ellen would have attained such age (40 years) had she survived. Under section (e) of the trust agreement the equitable interest of the beneficiaries becomes an absolute legal interest when Ellen, the youngest of the two beneficiaries, attains the age of forty years, if she lives, or if she dies, then at such time as she would have attained the age of forty years had she lived. At that time, and not until then, does their interest become indefeasible. (Beverlin v. First National Bank, supra.)
Where the instrument declares that the estate shall be “vested” at a specified time, that term will govern the validity of the gift in the absence of other terms showing an intention not to use the word in its legal sense (155 A. L. R. 730n). In the instant case we note the third sentence of section (e) of the trust agreement states that the property shall pass absolutely to the beneficiaries upon the termination of the trust estate (i. e., in 1968). The next sentence states that if either beneficiary dies before termination of the trust estate without issue surviving, then the portion which would have vested in him shall pass to his heirs at law. Prom this language of the trust agreement, it seems to have been the obvious intent of the settlor, that the trust estate would not vest in the beneficiaries or in their issue or in their heirs until the termination of the trust estate.
In Kirkpatrick v. Kirkpatrick, supra, p. 333, this court said the interests there involved were dependent upon survival of the thirty-year trust and therefore were contingent, and not vested. In the instant case there are similar interests dependent upon the survival of what is, in effect, a twenty-nine-year trust.
In 41 Am. Jur. 88, we find this statement:
“On the other hand, if there are specific and effectual directions that the trust shall continue for a specified time, and that the trust res or principal shall not be turned over to the beneficiary or beneficiaries until a certain time named, the cestui que trust cannot be considered as having a vested interest therein until the arrival of the time named, and if the time named is more remote than the period allowed by the rule, the gift is void.”
We conclude that the two defendant beneficiaries are by the terms of the purported trust given nothing more than a contingent interest, dependent upon the younger of them, Ellen McEwen, attaining the age of forty years. No estate vested in interest because of the many uncertainties which could not be determined until then — that is to say, until the year 1968 — twenty-nine years after the creation of the purported trust. The result is that the equitable estate in the two defendant beneficiaries was merely a contingent interest.
Being a contingent interest and one to which the, rule against perpetuities applies, we come to the second question as to whether the contingent estate created by the Beachy trust offends that rule.
The common-law rule as stated by Gray's Perpetuities, 4th ed., § 201, is in force in this state:
“No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest,”
and we may add thereto, “to which, under some circumstances, is added to the period of gestation.” (See Beverlin v. First National Bank, supra; Keeler v. Lauer, 73 Kan. 388, 393-394, 85 Pac. 541.)
Under the rule the interest must vest within the period, and the probabilities as to what may or may not occur are immaterial (Gray, Perpetuities, 4th ed., § 214). The law cannot speculate upon probabilities.
In the case now before us the younger of the beneficiaries, Ellen McEwen, was eleven years old when the purported trust was created in 1939 and it was to terminate twenty-nine years later when she attained the age of forty years.
Suppose then, that each beneficiary had issue born in 1946 when Ellen was age eighteen and Owen was age twenty-two, and shortly thereafter in 1946 both beneficiaries met their deaths. Thus the two beneficiaries, each with issue surviving, would have died twenty-two years before the termination of the trust as provided in section (e) of the trust agreement. Improbable though such a hypothesis may be, that possibility existed at the creation of the beneficiaries’ contingent interest. Under such circumstances the contingent interest could not vest within twenty-one years after some life in being at the time of creation of the interest.
Beginning with the Duke of Norfolk’s case (22 Eng. Rep. R. 931 [1685]), it was held that any event which was certain to happen during the life of an existing person, or any contingent condition to exist at the end of it, was not too remote. Later there was added to this the period of twenty-one years, to allow for the minority of a child of a person in esse. Still later, to accommodate the possibility of a posthumous child, the period of gestation was added (Stephens v. Stephens [1736], 25 Eng. Rep. R. 751). Then, in Nightingale v. Burrell, 15 Pick. (Mass.) 104 [1833], it was further decided that if no life or lives in being were introduced as a measure of time, the limit was the twenty-one years alone as a period in gross. The perpetuity rule is one against the creation of some new estate upon some remote event:
“The hindrance to alienation is a collateral factor, and may or may not exist. The question is only as to the vesting of the future estate, and the test in each case is whether or not that estate will necessarily vest within the period of the rule. If it may not, the contingent gift of it, and any trust to support it, are void. The principle is the same when the possibility relates to the vesting of some equitable interest in unborn persons.” (155 A. L. R. 699-700n.)
And at page 703:
“If the terms of the gift are such that the class may include persons not living at the death of the testator, and the interest of any one of them may not vest in him until he reaches an age greater than twenty-one years, the whole gift is void.”
Restatement, Trusts, § 112, page 288, gives the general rule thus:
“A trust is not created unless there is a beneficiary who is definitely ascertained at the time of. the creation of the trust or definitely ascertainable within the period of the rule against perpetuities.”
The case of Kirkpatrick v. Kirkpatrick, supra, is quite in point with the instant case upon the question as to whether the contingent .interest violated the perpetuity rule, and there we said in syllabus 2:
“A devise of real estate to trustees for thirty years, after which the contingent interests were to vest, if at all, violated the rule against perpetuities, and was void.”
Beverlin v. First National Bank, supra, has been cited by both appellant and appellee. There the testator gave one-third of his property to each of two daughters, but to be held in trust for them until they reached forty years of age. The language used was apt to give a fee simple in the land and an absolute interest in the personal property — except that subsequent divesting clauses created a contingent interest, or executory devise, which violated the rule (p. 308). In the Beverlin case it was this exception which required this court to hold that the perpetuity rule was there violated. Similarly, in the instant case the trust agreement postpones vestiture until the younger beneficiary arrives at the age of forty if she lives, or until such time as she would have reached forty years of age should she not live; and also provides that issue of a deceased beneficiary shall take the parent’s share — but not until 1968, which is the time Ellen, the younger beneficiary, would have reached the age of forty years.
It must be concluded that, the gifts to the two beneficiaries being contingent interests and the trust provisions being obnoxious to the perpetuity rule, the trust could never actually come into existence.
Now to the third question. The trust having failed, what happens to the corpus of the purported trust? Clearly it was the intention of the settlor, C. M. Beachy, to give to his two grandchildren Ellen and Owen McEwen, all of his property. That is the import of the entire trust agreement. Furthermore, that intent was carried out in his will which he executed some eighteen months prior to the trust agreement, and under which the two defendants are the sole beneficiaries since their mother predeceased the testator in death.
It is well established by decisions of this court, and by authorities generally, that where it is possible to determine the intention of the testator (or the settlor) that intention must control (Blake-Curtis v. Blake, 149 Kan. 512, 524, 89 P. 2d 15, and cases cited therein). In the instant case it seems equally clear that the intent of C. M. Beachy, the settlor, was to make a gift of his property to his grandchildren Owen and Ellen McEwen. If his efforts to delay the time of their possession and enj oyment of the property failed because of legal difficulties, they should nevertheless become the recipients of his bounty as he obviously intended.
Both appellant and appellees frankly agree that if this prior trust estate fails for being obnoxious to the rule against perpetuities, under decisions of this state as well as the great weight of authority, there is an acceleration of the gift and the estate goes to the two defendant grandchildren. This is in accord with the well-established rule in this state, and indeed were it otherwise, the intent of the settlor would be defeated. There was therefore an acceleration of the rights of the two defendant beneficiaries to the possession and enjoyment of the corpus of the purported trust. No trust having been created by the trust agreement, there was never any function for the plaintiff trustee to perform, and the defendants were entitled to immediate possession of the property. See Sherman v. Critzer. 135 Kan. 579, 11 P. 2d 993; Blake-Curtis v. Blake, supra, syl. ¶ 3; Beverlin v. First National Bank, supra, p. 313.
The two defendant grandchildren were intended to be the ultimate recipients of the purported trust estate, and the trust having been held nonexistent because it offends the perpetuity rule, the settlor’s gift to the two grandchildren was accelerated.
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from proceedings to set aside judgments. The relief prayed for was granted and the aggrieved parties appeal.
In order that the contentions presented by the appellants be understood, it is necessary that a statement be made.
Under date of April 30, 1941, one Joseph C. Koellen made his last will and testament under which he appointed John H. Wille to be executor. Under date of January 28, 1943, Koellen made a contract with Anthony H. Lampe and Blanche A. Lampe for care and maintenance. This contract is later referred to in more detail. For convenience this document is hereafter referred to as the Lampe will. On March 10, 1943, Koellen died and shortly thereafter Wille presented the will of April 30, 1941, for probate, and the Lampes presented their contract of January 28, 1943, on the theory it contained a testamentary disposition to them of all of Koellen’s property and was in legal effect his will. Wille prevailed in the probate court and in the district court on appeal. The Lampes appealed to this court, where it was held that the Lampe will was good as a will. For a more detailed statement see our opinion filed January 25,1947, and reported as In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544. Under date of March 25,1947, the district court entered judgment in accordance with our mandate and on May 13, 1947, the probate court admitted the Lampe will as the last will of Koellen.
Wille had continued to act as executor under the original appointment and at some undisclosed date prior to the admission of the Lampe will to probate had filed a final settlement, asked for his discharge and for an allowance for his attorney’s fees and such an order was made from which the Lampes appealed to the district court. On the day that appeal was to be heard in the district court Wille asked for a continuance, stating that he desired to file a petition and a motion to set aside the judgment admitting the Lampe will to probate on the ground that judgment was procured through fraud. That appeal has never been determined.
Thereafter on December 6, 1947, Wille filed his petition in the probate court to vacate and set aside the judgment of that court admitting the Lampe will to probate on the ground its admission had been procured by the fraud of Lampes. Briefly stated, for the matter is mentioned more fully later, it was alleged that Lampes offered and procured admission to probate of a spurious and forged document, and not of the contract actually made by Koellen on January 28, 1943. The Lampes filed a motion to strike the Wille petition on the ground the court was without jurisdiction, and on other grounds later incorporated in their answer, or in the alternative that the petition be made more definite and certain. This motion was denied and they filed an answer denying the commission of any fraudulent acts; alleged that the matters and things set forth in the petition had been fully adjudicated in the district court and the supreme court and were res judicata; and that Wille, by filing his final settlement and getting judgment in the probate court for his fees and allowances was estopped from further questioning any of the orders or judgments made in the cause. They further pleaded at length that if there was fraud, which they denied, the issue was before the probate and district courts in the proceedings formerly had and the court was without jurisdiction to hear the matter presently presented. The probate court certified the matters thus presented to the district court for determination. It is stated in the abstract that a similar proceeding was also commenced and filed directly in the district court, and that it and the certified proceeding were tried as one. The pleadings in the district court proceeding are not set forth in the abstract and we can only assume they were like those in the probate court.
A summary is made of the evidence. In a preliminary way it may be noted that the instrument here referred to is the Lampe will which had been admitted to probate on May 13,1947.
Guatney, whose name appears as a witness to the will, testified that he had never affixed his signature to any other instrument except the one in question. He further stated that he signed the Lampe will. He wrote a series of signatures and his attention was called to a loop on the capital "G” of his last name and that in wi'iting it his pen traveled in a clockwise direction. He was then handed other paper and directed to write his name and asked to reverse the direction of the loop and after trying that a number of times responded, “I don’t write a ‘G’ that way.”
Beatty, the other witness, testified he had signed only one instrument on January 28, 1943. The abstract does not disclose he identified his signature, although in the briefs that is so stated.
Cochran qualified as a handwriting expert, and testified he had examined admitted signatures of Guatney and Beatty; that the signatures of Guatney and Beatty on the will were traced forgeries. He also produced photographs showing the enlarged signature of Guatney from which it could be concluded that the loop on the capital “G” was made in an anticlockwise direction and not as Guatney himself wrote.
Harold Forbes testified he was an attorney practicing at Eureka and that on March 10, 1943, Anthony H. Lampe had called at his office and presented a document which contained signatures of Anthony H. Lampe, Mrs. Lampe, Joseph C. Koellen, Guatney and Beatty, and employed him. The Lampes objected to Forbes’ testimony for the reason it involved the relationship of attorney and client and was privileged. Forbes stated he did not know what his duty to the court was, if his evidence was privileged he wanted to claim privilege and if it was his duty to testify he wanted to testify. He stated that his secretary had made copies of the document submitted to him by Lampe and produced one of the copies. He stated he had not compared the copy with the original. He said that after studying the document he concluded he could not succeed for Lampe and when Lampe came in he so advised him and returned Lampe’s document to him. Two or three weeks later Lampe returned with a purported original instrument, similar to that first shown him except that it had a few additions which would take it out of the category of a contract and attempt to place it in the category of a will and he asked Lampe where he had secured the instrument which was so obviously different and Lampe told him he had had it made. Lampe wanted to hire him to present the last document, the witness declined employment, and Lampe left. The witness further testified that when he read the opinion of this court above referred to after its publication he learned that the document last shown him by Lampe had been ordered admitted to probate and that he then notified counsel for Wille and counsel for Lampes of the facts in his possession. Other details of his extended examination and cross-examination need not be detailed. Lampes’ demurrer to this evidence was overruled and they offered evidence in defense which need not be reviewed further than to note Lampe’s testimony that there never was but one will of January 23,1943, and that was the one admitted to probate. His version of his visit to Forbes’ office and what occurred between them was not credited by the trial court and will not be detailed.
As a result of the hearing the trial court, under date of August 10, 1948, made and filed long and detailed findings of fact. No good purpose is to be served by setting them out — it is sufficient to say the issues of fact were resolved favorably to Wille. The court concluded as a matter of law that it had jurisdiction by certification from the probate court and as a proceeding brought to vacate a judgment in accordance with G. S. 1935, 60-3007, and also as a petition for a new trial on the ground of newly discovered evidence in accordance with G. S. 1935, 60-3005; that the Lampe will was not the last will of Koellen, was neither executed or attested by suscribing witnesses as required by law and was never entitled to be admitted to record and to probate, and that the judgment of the district court of March 25, 1947, and the judgment of the probate court of May 13, 1947, should be vacated on account of the fraud practiced by the Lampes in obtaining those judgments, and that a journal entry of judgment in accord should be prepared and submitted to the court. On August 11, 1948, the Lampes filed their motion for a new trial and also their motion that the trial court set aside its findings of fact and conclusions of law and substitute therefor findings and conclusions requested by them. Both of these motions were denied on October 19, 1948, and on that day the Lampes served their notice of appeal to this court and the same was duly perfected.
The executor objects to any consideration of the appeal contending that, in proceedings such as were had, there is no code provision for a motion for a new trial; that therefore the motion for a new trial did not extend the time for appeal from the judgment, and the appeal having been perfected over two months after date of the judgment it was too late and this court is without jurisdiction. Without elaboration, we are of opinion that the trial of the proceeding involved trial of issues of fact and that the motion for a new trial, insofar as it challenged trial errors, was proper, and that the appeal should be considered as to such matters.
We shall first take note of contentions presented by the Lampes concerning matters not properly raised by their motion for a new trial.
If we understand the Lampes correctly, they contend that, in view of our opinion and judgment when the matter was decided here on January 25, 1947, as above detailed, any proceeding to set aside the judgments must have been commenced in this court. That contention is not good. Under G. S. 1947 Supp. 59-2213, a judgment of the probate court may be vacated as provided by G. S. 1935, 60-3016. That section makes other sections of the code of civil procedure pertaining to the vacation of judgments applicable to all courts of record of this state, and includes the probate court (G. S. 1935, 20-1101; G. S. 1947 Supp. 59-301) and a judgment of the district court may be vacated under G. S. 1935, .60-3007. Without again reviewing the pleadings in the proceedings, it may be said there is no question that the probate court in the one instance, and the district court in the other, had jurisdiction to entertain the proceedings to vacate the judgments attacked.
The Lampes complain that the trial court erred in ruling on their motion to strike the petition or in the alternative to make its allegations more definite and certain. This ruling, even if erroneous, was not a trial error, and the appeal from the judgment not having been perfected within two months from'the date of the judgment was not subject to review. (G. S. 1947 Supp. 60-3309 and 60-3314a.)
Lampes’ contentions that (1) the controversy presented was res judicata and (2) Wille by filing a final settlement had made an election of remedies and was estopped to maintain the proceedings, both present questions of law, as to which the motion for a new trial did not serve the purpose of extending time for appeal. The appeal came too late to permit a review of these contentions. Nevertheless we have examined the contentions made and hold they cannot be sustained.
We shall now consider the Lampe contention that the trial court erred in finding that the judgments should be set aside on the ground of fraud and that the witnesses’ signatures were spurious. It is contended that much of the evidence received as to the signatures of the witnesses Guatney and Beatty was before the court when the Lampe will was first admitted, and that the only new testimony was that of Forbes. Ignoring the fact that the facts testified to by Forbes were not then known to Wille, and that it was newly discovered evidence, Lampes argue that on the original hearing for probate of the Lampe will, the question of its execution and the sufficiency of proof of the signature of Guatney and Beatty was determined; that the Forbes testimony could and should have been produced at that time but that considered as new evidence, if any fraud was proved, it was intrinsic and not extrinsic, and insufficient to support the judgment. While it would seem the question was much more'one of law than of fact, the answer seems clear for either one of two reasons. First, it is clear that if Forbes’ evidencé was competent, a question later considered, it was clearly newly discovered evidence and warranted the relief granted with-? out determining whether the fraud disclosed was intrinsic or extrinsic. Second, we think the evidence disclosed extrinsic fraud. Lampe’s action in suppressing the document originally executed by Koellen and offering for probate the spurious, forged document had the effect of preventing a fair presentation of the issue, rather than a fair determination of it (Eaton v. Koontz, 138 Kan. 267, 25 P. 2d 351). And as bearing on correction of judgments for fraud perpetrated in obtaining them, see Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306.
The Lampes, under two headings, contend the trial court erred in refusing to make findings of fact and conclusions of law requested by them, in refusing to set aside the findings and conclusions made and in rendering judgment against them. No recital of evidence to support any particular finding of fact is necessary. Had the trial court believed Lampes’ version, it would undoubtedly have adopted the findings of fact requested by them. That it did not do so is not error. Our examination discloses evidence to support the findings of fact made. The conclusions of law made thereon are proper, as was the judgment rendered.
It is also contended by the Lampes that Forbes was an incompetent witness and that it was error for the trial court to admit and consider his testimony. They direct our attention to- G. S. 1935, 60-2805, which provides, in substance, that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation without the client’s consent and directing attention to State v. Buffington, 20 Kan. 599, State v. White, 19 Kan. 445, Tays v. Carr, 37 Kan. 141, 14 Pac. 456, and saying “numerous cases have established this as an inexorable rule” argue that no circumstance can arise whereby Forbes could testify without Lampes’ consent. It also contended the testimony was otherwise insufficient because Forbes personally did not make the copy of the first document given him by Mr. Lampe. Answering this last contention first it may be if that were all the testimony the contention might be good, but Forbes testified that he could remember definitely that one document was in the form of an agreement and the other was in the form of a last will and testament. And neither can his testimony of what Lampe told him be ignored. The real question is whether Forbes was a competent witness. The statute relied on by Lampes is a legislative recognition of a rule of the common law to which exceptions were and are recognized, even though some states refuse to recognize the exceptions. See annotation on “Attorney-Client privileges as affected by wrongful or criminal character of contemplated acts or course of conduct,” 125 A. L. R. 508. Although the privileged communications dealt with there were not between attorney and client, in State v. Wilcox, 90 Kan. 80, 89, 132 Pac. 982, 9 A. L. R. 1091, this court recognized an exception in cases between attorney and client where it was said that the existence of an unlawful purpose prevents the privilege from attaching. In Emerson v. Indemnity Assodation, 105 Kan. 242, 182 Pac. 647, it was held:
“Good-faith communications between, attorney and client, relating to the best method of protecting the client’s interests, are privileged; and the rule that privilege may not be urged respecting communications relating to perpetration of fraud is limited, ordinarily, to cases of actual fraud, involving moral turpitude.” (Syl. ff 5.)
In our opinion the evidence of Forbes was competent. If believed, and it was, Lampe was guilty of an actual fraud involving moral turpitude. If a person may consult an attorney and learn from the. attorney there is serious defect in some instrument of writing on which he must rely to maintain his action, and then cause another document which eliminates the defect to be forged and show it to the attorney who refuses to further represent him, and then retain other counsel to represent him, however innocently, and attempt to maintain an action on such forged instrument, he endeavors to perpetrate a fraud not only on his adversary but upon the court, and if the matter be challenged, he may not, through the device of the statute, close the mouth of one whose very suggestion of defect in the original instrument gave rise to his nefarious conduct, and thus permit himself to succeed. There was no prejudicial error in the admission of Forbes’ testimony.
The above discussion covers all matters pertaining to Lampe’s motion for a new trial. The trial court did not err in denying it.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted by the owner of a leased grocery store building located in Great Bend to recover damages for the destruction of the building and loss of its rental value.
The action was against The Kansas Power and Light Company, a corporation, for damages caused by the alleged explosion of natural gas which defendant supplied for the heating of the building. There was only one gas heater, a circulating heater of medium size, in the building and it was located in about the center of the store and against the north wall. The tenant was Eldon LeMay. Judgment was for plaintiff and the defendant appeals. It specifies as errors the overruling of its demurrer to plaintiff’s evidence, a motion for a directed verdict and its motion for a new trial.
We shall first consider the evidence adduced by appellee. The building faced the north with an alley located immediately to the east. The gas meter was located in the alley and near the northeast corner of the building. Ftom the meter the gas pipe extended into the ground, then laterally to the west and turned up on .the inside of the building forming an el-shaped pipe. On January 9, 1947, the day after the explosion, R. T. McGee, the division manager of the gas company made an inspection. Appellee called him as her witness. He testified,'in substance: The customer’s gas pipe was broken in the el of the pipe about eight or ten inches underground where the pipe riser screwed into the el; the break was partly bright and partly discolored or rusty; part of it, possibly one-half of it, could have been an old break; gas could have escaped from that break, he could not tell how old the break was; the break was ten, twelve or fifteen inches from the northeast corner of the building; he removed the broken pipe; it was his opinion the explosion occurred from natural gas; he knew of the calls that had come into appellant’s office, before the explosion, concerning gas fumes in appellee’s building.
Walter Sears, the city fire chief, testified, in substance: After the explosion he examined the portion of the el both above and below the meter on January 9, 1947; the break in the pipe below the meter, which was the customer’s portion of the pipe, was an old break; one-half or three-fourths of the pipe showed it had been broken for some time; he was not a chemist and could not tell exactly how long it had been broken; he arrived at the store about two minutes after the fire alarm was sounded; there was a small fire at the northeast corner of the building.
The tenant, LeMay, testified the wooden floor was buckled upwards ; the boards were broken out of the entire end of the building.
In support of appellant’s demurrer to plaintiff’s evidence it contends it is not liable for damages resulting from a break in pipe exclusively in the customer’s control when the evidence shows the gas company had no knowledge, or was not put upon notice, of any leaks in such line or had assumed no responsibility to inspect or repair such line. Appellant also contends liability cannot attach upon a presumption that a gas leak existed in the customer’s service line without establishing facts or circumstances that a leak existed and that appellant had knowledge thereof.
In order to consider and apply the law applicable to the instant case it is necessary to consider other phases of plaintiff’s evidence pertinent thereto.
The explosion occurred January 8, 1947. Prior thereto appellant had received three notices concerning suspicious circumstances relative to fumes or gas in the building and requests to make an inspection. The complaints were made on November 9, December 14 and December 18, 1946. The first was a telephone call by Danelda LeMay, the wife of the lessee. She notified one of appellant’s office girls they “could smell something in the store and didn’t know what it was but was afraid it might be gas and asked 'if they would send a man out to check to see what it could be.” (Our italics.) She said she would right away. Mr. McAfee came to the store; she did not talk to him; he went to the stove and was there only a few' minutes; she did not know what he did.
The second call, December 14, was made by Ruth Miller, the cashier in the grocery store. Her testimony, in substance was: She called appellant’s office and advised them there seemed to be an odor in the building; she would like to have someone come out and check it and see if there was something wrong, if it could be gas, or what it was; Orville McAfee came out again but was there only a few minutes; he went to the stove but she did not know what he did.
The third call, which was the second by Danelda LeMay, was made on December 18. Her testimony concerning that notice, in substance, was: She called and notified appellant that one of their men had been in the store a few days before but that all he did was to check the stove; she knew there was something more than that wrong; she advised them the man who had been there was Mr. McAfee; she advised that their eyes were burning, that it was especially bad and she wanted to know if they could send someone else; she was scared; they were not at all satisfied with what had been done and she was told Mr. Jones would be sent out.
Elden LeMay, the lessee, in substance, further testified: Jess Jones did come to the store on December 18; he was there a very short time; he simply said that if they would take down the stovepipe and “take out the bird’s nest out of it, we wouldn’t have any more trouble”; he and a boy working at the store took the pipe down; there was nothing in it and they replaced it as it was before; Orville McAfee had been out there for the company twice before.
On cross-examination the same witness, in substance, stated: December 18 was the last time he or anyone from the store called the gas company; Mr. Jones told him on December 18, if they would do as he directed about the stovepipe they would have no further trouble.
In connection with the stovepipe the witness on cross-examination was asked by defense counsel and answered as follows:
“Q. You did correct it didn’t you? A. Yes, sir.”
Mr. R. T. McGee, division manager of the gas company, as previously indicated, was called as a witness on behalf of the plaintiff and testified further, in substance: It was the policy of his company that when it received a call from a customer regarding a possible gas leak to make a service investigation and to have a man go out and make a survey of the premises for the leak; they' had an electrically operated device used for that purpose; when a customer reports that there is a leak or that he smells an odor of any kind around the house they go out and make a test with this machine; if the odor of gas is strong enough it can be detected by smelling; when the machine is used the valves are all cut off inside the house and the gas pressure is put onto the pipes; if the meter registers under those conditions it shows there is a leak in the premises or in the service line between the meter and the house; when a leak is detected the gas is shut off until the leak is repaired; where the pipe joints are visible in the basement they sometimes use a brush with soapsuds and paint at the connections; if there is a gas leak bubbles will indicate it; he inspected the broken pipe the day after the explosion and removed it.
McGee, when used as a defense witness, stated with respect to the use of the gas detector the company was short of some help at that particular time and did not use the gas detector on this job prior to the explosion.
Jess Jones, also a defense witness, testified, in substance: He went to the grocery store on the 18th of December in response to a request from McAfee; the latter was their boy who took care of trouble calls; it was a little after 5:00 o’clock, the boys were off work and he went alone; Mr. McAfee told him he had been out. there and he wanted him to go; McAfee said he could not understand what the trouble was and thought maybe he (Jones) could understand it; he smelled some fumes; he told the boy in the store to check the stove vent and to see there was no stoppage, or a bird’s nest, or something of that character, in the vent; that was about all he did; he took no tools along and made no tests in or about the building; he found nothing wrong with the stove; the burner looked like it was all right; he thought the burner was in adjustment but he did not touch it; the fumes smelled like burnt gas; fumes make your eyes smart; you just smell gas; natural gas does not make your eyes smart; he smelled no gas; he could not describe the combined odor of natural gas and fumes; he had no calls from then on and he never went back to this place after December 18 until the explosion; he made tests with the leak detector on this building the day after the explosion and found no leaks.
A few other details relative to both appellee’s and appellant’s evidence might be narrated but they could not alter the decision under the issues involved on appeal. The jury found all issuable facts in favor of appellee and returned a general verdict in her favor. The special findings were:
“1. Do you find that fumes were present in plaintiff’s premises prior to December 18,1946? A. Yes.
“a. If you answer the above question in the affirmative state the source of the fumes: A. From old brake in pipe and L exhibit 5 and 6.
“b. If you answer the above question in the affirmative, was the condition corrected? A. No.
“c. If you find said condition was corrected, were any fumes detected by anyone after such correction and prior to the date of the explosion? A. -
“d. If you find that the condition was not corrected, then state what plaintiff did, if anything, to cause said condition to be corrected? A. The plaintiff’s lessee’s wife and employe called the Kansas Power and Light Co. on three occasions.
“2. Did plaintiff or anyone make any complaint or give any notice to the defendant company of any fumes or leaking gas after December 18, 1946, and prior to the explosion? A. No.
“a. If you answer this question in the affirmative, state when and to whom such notice was given? A. -
“3. If you find that natural gas was leaking into plaintiff’s premises, then state:
“a. The exact location of the leak: A. Northeast corner of building.
“b. How long the leak existed prior to the explosion: A. Unknown.
“c. The notice, if any, given by plaintiff or anyone to defendant of the existence of said leak and of what said notice consisted: A. Three telephone calls that fumes existed in the building.
“4. After December 18, 1946; and up to the time of the explosion, did the plaintiff make, or cause to be made, any inspection of the gas pipes on the premises? A. No.
“5. If you find for the plaintiff, how much do you allow for: a. Damage to Building: $2,000.00. b. Loss of rent: $150.00.”
Appellant argues the court erred in overruling its motion for judgment non obstante veredicto. The contention cannot be sustained. For the purpose of testing a ruling on such a motion it is admitted all findings are supported, by the evidence. (Haney v. Canfield, 152 Kan. 597, 600, 106, P. 2d 662; Jelf v. Cottonwood Fall Gas Co., 162 Kan. 713, 178 P. 2d 992.) Under the law of the case to be stated presently the special findings are not inconsistent with the general verdict and they do not compel a verdict for appellant.
Appellant stresses especially finding No. 2 as disclosing appellee’s contributory negligence. If three notices of fumes and the asserted suspicion of gas leaks did not result in obtaining a proper inspection, were further notices required as a matter of law? We do not think so. Moreover, the lessee was advised by appellant if the stovepipe was cleaned out there would be no further trouble. Appellant is not in a good position to complain if the lessee, the occupant of the premises, believed the statement. At least that would be true in the absence of evidence of the lessee’s subsequent negligence.
Furthermore, according to the evidence of appellant’s own employee an odor of natural gas may not be detected unless it is strong. There apparently was a substantial escape of gas under the floor at the extreme northeast corner of the building at some time prior to or on January 8, 1947, without it having been detected by anyone in the building. The gas might have escaped in considerable quantity during the morning hours of January 8 when no one, was in the building to detect it. The explosion occurred between 8:30 and 9:00 a. m. Under these circumstances the question of contributory negligence of the tenant was a question of fact for the jury. And surely that would be true concerning any question of contributory negligence of appellee, the owner of the building, who had not been in the building insofar as the evidence discloses. In the light of the evidence previously narrated we think it unnecessary to dwell further on objections to other special findings.
Was appellee’s evidence sufficient to require the submission of the case to the jury? Assuming for the moment that notice of gas fumes alone from a stove would not always require full inspection of the distributor’s or the customer’s pipe, in this case appellee’s evidence did not disclose merely notices of gas fumes from the stove. The first notice disclosed the customer suspected the escape of gas. The second noticé likewise requested an inspection to see, “if it could be gas, or what it was.” (Our italics.) The third notice complained that on the first two calls appellant’s representative, McAfee, checked only the stove. The complainant stated she notified appellant she, “knew there was something more than that wrong”; that she wanted to know if someone else than McAfee could be sent out and expressly stated she “was scared.”
These notices were ample to require an inspection of appellant’s and the customer’s gas lines for the purpose of determining whether any of them contained gas leaks. In Miller v. Wichita Gas Co., 139 Kan. 729, 33 P. 2d 130, it was said:
‘“A gas company is guilty of negligence if a leak in a customer’s pipes and appliances causes injury to persons or property, provided the company has sufficient notice of such leak or leaks, and having such notice (a) negligently inspects or negligently repairs; (6) agrees and assumes to inspect and repair, and then fails to do so; (c) refuses to inspect and repair, knowing a dangerous condition exists, and with such knowledge fails to shut off its gas until the owner can have his pipes and appliances properly repaired.’ (Italics ours.)” (p. 732.)
That, as we understand it, is the accepted rule and to the same effect, is Jelf v. Cottonwood Falls Gas Co., supra, p. 718-719, and cases therein cited.
If a gas leak had been, or by proper inspection should have been, discovered in the customer’s line it would then have been the duty of appellant to shut off the gas until the customer could have re paired his own lines. (Jelf v. Cottonwood Falls Gas Co., supra, p. 719.)
It was clearly in the province of the jury to decide whether appellant failed to make a proper inspection under the circumstances and what such inspection, if made, probably would have revealed.
Under the evidence the question of the age of the break in the pipe was for the determination of the jury. Appellee’s evidence showed the explosion was of natural gas. The evidence was persuasive the explosion occurred in the corner of the building where the broken pipe was found. It was there the floor boards were buckled upwards and the entire end of the building was blown out.
After the repeated notices and requests for inspection it was not necessary that appellee prove precisely what defect caused the explosion. (Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162.) In that case it was held:
“Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury.” (Syl. ff 3.)
Appellant complains its cross-examination of the tenant, LeMay, was improperly restricted in that its counsel was not permitted to interrogate LeMay concerning his statement alleged to have been made to appellant on the day following the explosion .to the effect that no fumes had been noticed after December 18 and that no complaint had been made to appellant after that date. It appears the objection to such cross-examination was sustained on the ground it had already been admitted, in the testimony for appellee, that no complaints were made after December 18 and on the ground there was no testimony on direct examination concerning fumes after December 18. The tenant had stated he made no complaint after December 18. Our examination of the record discloses there had been no testimony on direct examination concerning fumes after December 18. Notwithstanding that fact it would appear the cross-examination may have been too closely restricted on that point.
We do not, however, believe the exclusion can be said to haveprejudicially affected the substantial rights of appellant. Unless such prejudice affirmatively appears we are not permitted to disturb the judgment. (G. S. 1935, 60-3317.) That appellant’s substantial rights probably were not prejudiced by the ruling is also indicated by the fact testified to by the witness McGee that an odor of natural gas, as distinguished from fumes, may not always be detected; it is only detected if the odor is strong enough. In other words, the fact, if it be a fact, that no fumes from the stove were noticed after December 18 would not itself prove there was no escape of natural gas and defeat a recovery where proper inspection for gas leaks had not been made after the character of the notices shown in this case.
Appellant also complains that McGee, the division manager of appellant, was permitted over appellant’s objection to testify that in his opinion the explosion resulted from natural gas. It is contended that McGee was not present at the time of the explosion, the question called for a conclusion and invaded the province of the jury. There are instances where such an objection would be entirely proper. We think this is not one of them. This witness was the division manager of appellant. The objection was not that he was unqualified to have an opinion. He could properly state his opinion based upon all the facts in his possession. Counsel might then have cross-examined him had he desired to do so, with respect to the basis, or reasons, for his opinion. Able and experienced counsel for appellant did not see fit to do that. The objection to the testimony was properly overruled.
The demurrer to appellee’s evidence and appellant’s later motion for a directed verdict were properly overruled.
The trial court instructed the jury on the subject of contributory negligence, to which instruction appellee objected. We need not discuss appellee’s objection thereto. The verdict, notwithstanding the instruction, was for appellee and she has not cross-appealed.
Appellant does not object to the instruction as an improper statement of the law on contributory negligence. It is appellant’s contention that since it had notices from the tenant of gas fumes only as late as December 18, 1946, the instruction compelled a verdict in its favor. The contention is based on the theory that failure to notify the company of fumes after December 18 convicted appellee of contributory negligence as .a matter of law. The instruction did not so state and it did not compel a verdict for appellant. Assuming contributory negligence of the tenant, if it existed, could be imputed to appellee, the owner of the building, the fact remains the instruction submitted to the jury the question of appellee’s contributory negligence. The jury did not find such negligence existed.
The judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
In this case the appellant was charged with murder in the second degree for the fatal stabbing of one Whatley and was found guilty of first-degree manslaughter. His motion for a new trial was overruled, following which this appeal was taken.
Appellant has abstracted only a brief portion of the testimony of two witnesses — the county coroner who testified for the state— and appellant himself. However, following the oral argument in this court, counsel for the state furnished us with an abstract of all evidence introduced by the state and from it we learn that the altercation in question took place at or near the Plainview Inn on the night of April 24, 1948. It appears that appellant, Whatley, and others, were engaged in some sort of argument or trouble over the attentions being paid to a young woman who was in the company of appellant. There was some evidence to the effect that she had been struck or pushed by someone other than appellant — possibly by Whatley. She let out a scream, following which appellant ran over and struck Whatley on the shoulder. The latter ran a short distance, fell, and soon afterwards died. Appellant came up with a knife in his hand, yelling, “Where is he? Where is he?”
The undersheriff testified to a conversation had with appellant the next day in which the latter said he had approached Whatley from behind. He also admitted ownership of state’s Exhibit 1 which was a bloody knife. The county coroner, a regularly-licensed physician, testified concerning his examination of the body of the deceased, the bloody clothing, and the wound in the upper right anterior chest wall which, in his opinion, had been made with a sharp cutting instrument. A deputy sheriff who was present the following day when appellant was being questioned testified that appellant told him and other officers that one Thompson and Whatley were sparring at each other with knives and that he (appellant), being afraid Thompson was going to get the worst of it, ran in behind Whatley and struck at him with a knife. This officer further testified that when they searched the car of appellant they found a bloody knife, with the blade open, in the front seat, and that appellant admitted ownership of this knife.
Several other witnesses testified for the state but for our purposes their testimony is immaterial and will not be detailed.
As heretofore stated, only a portion of the testimony of appellant is abstracted but his version of the altercation was substantially as follows:
He testified that he was first attracted to Whatley and the woman in question when Whatley cut her and shoved her down; that Whatley then started cutting at Thompson, the latter being an uncle of appellant’s, and that he (appellant) then went to the rescue of Thompson and the woman; that he and Whatley had some words and the latter turned and said to him, “I will cut your so-and-so throat too”; that he thought Whatley was going to kill Thompson and that Whatley then struck out at him (the appellant) and it was at that time he struck Whatley; that when he struck Whatley he believed that his life was in imminent danger and that what he did was done in self-defense.
The jury returned a verdict finding appellant guilty of first degree manslaughter.
Appellant’s motion for a new trial set out the usual statutory grounds but on appeal and in his brief in this court appellant relies on only two grounds of alleged error for reversal.
His first point is that the trial court erred in permitting the coroner when testifying for the prosecution to give his opinion as to the relative position of the parties to the homicide at the time the fatal wound was inflicted.
The coroner had testified at considerable length as to the wound on the shoulder of the deceased, its location, depth, the loss of blood, and as to the course of the cutting instrument by which the wound was caused, and in answer to the question he gave it as his opinion that the person who had the cutting instrument was back of Whatley, possibly just a little to the right. Appellant argues that no sufficient basis had been laid for such a question as this and that from its very nature the question and answer invaded the province of the jury. We will not labor the point but in our opinion no prejudicial error resulted from such testimony. In the first place, there was other testimony that appellant had struck Whatley from the rear. Furthermore, in the light of testimony already given by the coroner prior to this particular question and answer we think that it was proper and that appellant’s objection thereto is without merit. Counsel for appellant had the opportunity to and did cross-examine this witness on all matters concerning which he had testified on direct examination.
The other ground for reversal relied on by appellant arose as follows: While appellant was testifying in his own behalf under direct examination, Mrs. Whatley, the mother of the deceased victim, called out from the counsel table—
“Judge, can I say a word? He killed my son. He killed my son. He killed my son. He killed my son. He killed my son.” (Screaming.)
Appellant argues that the court erred in permitting Mrs. Whatley thus to testify from the audience at a time after the state had rested its case and while appellant was testifying in his own behalf and that her statements, coming in such a manner and time, had the effect of denying appellant the right to cross-examine her on such statements.
From the record furnished us by appellant it is not exactly clear as to just what transpired immediately following this emotional outburst on the part of the mother of the deceased victim but from appellant’s abstract it appears the jury was admonished and a short recess taken, following which appellant continued with his direct examination. The nature of the admonition to the jury — that is, whether it was the usual one given before a recess or separation' — -or a specific one to disregard what had just taken place — it is not shown.
That such outbursts and demonstrations often occur during the trial of homicide cases cannot be denied and they are familiar to the bench and bar of this and every other state. Here we have a case of a grief-stricken mother being emotionally overcome while the man charged with her son’s death was in the witness chair. She had previously testified for the state and appellant’s argument that such outcry amounted to “testimony” by a state’s witness with no opportunity for cross-examination is hardly tenable. In the first place, appellant could have recalled her for further cross-examination, and secondly, under the circumstances such an outcry could hardly be called “testimony.”
The real crux of this matter is whether such emotional outburst had the effect of denying appellant the fair trial to which he was entitled. There is no showing that counsel for the state were in any way to blame for the incident or that they had any previous knowledge of her intention to make such outcry. Appellant and his counsel were, of course, present in the courtroom. No special admonition to the jury was requested by appellant and neither did he move for a mistrial. The record shows that an admonition of some sort was immediately given to the jury and a recess taken. Further more, it must be borne in mind that appellant’s own testimony admitted the blow to the deceased and his only claim was that of self-defense or defense of another close to him — which the jury chose not to believe. Moreover, the specific incident was singled out and referred to in instruction No. 12, in which the jury was instructed and admonished not to consider any outburst of emotion on the part of any witness or other interested party.
In passing, we cannot refrain from saying that in the interest of ■orderly courtroom procedure and decorum and in the safeguarding ■of the rights of a defendant a trial judge, under such circumstances, would be entirely justified in having the offending party removed from the courtroom and he should then and there admonish the jury to disregard such demonstration. We realize, of course, that there are instances in which, depending upon the particular facts and circumstances, outbursts of emotion, weeping, fainting, applause, or other demonstrations could be considered so highly prejudicial to the rights of a defendant as to require the granting of a new trial but we do not think that the case before us falls within that class. A detailed discussion of the cases and authorities dealing with the question would serve no useful purpose but in general it may be said that it is within the sound discretion of the trial judge to determine the effect of such outbursts or demonstrations and in the absence of a clear showing that the jury was improperly .affected thereby to the prejudice of the defendant, the ruling of the lower court in denying a new trial will not be disturbed.
Our statute (G. S. 1935, 62-1718) provides—
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
In conclusion — during the oral argument before this court counsel for appellant called our attention to the trial court’s alleged hostile attitude and our attention was directed to a threat by the court at one stage of the trial to jail counsel for contempt if he did not sit ■down and quit arguing. Such belated ground for reversal not being included in the motion for a new trial, is not properly before us here. (State v. Smiley, 167 Kan. 261, 206 P. 2d 115.) Notwithstanding the rule, we have examined the matter. The “threat” occurred while the coroner was testifying and followed numerous objections and “voluntary observations” by counsel for appellant, many of which were dilatory, frivolous and without merit. While the threat by the court was rather sharp, yet, from the record it seems almost to have been invited and made necessary by the constant objections and arguments in support thereof. Even though the matter were properly before us, we would be compelled to hold that the rights of appellant were not prejudiced thereby.
No error requiring a reversal being shown, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action wherein the plaintiffs sought to adjudicate the title to real estate. Judgment was for defendants, dismissing the petition. The plaintiffs have appealed.
In the interest of clarity a statement as to parties will be made at the outset. The story starts with the death of Frank Wetzel about June 2, 1937. At the time of his death intestate he owned a quarter section, which was the homestead of himself and his wife, Fannie. They also owned an eighty as tenants in common. He left as his heirs his widow, Fannie, and six children. Thus Fannie inherited an undivided one-half of the quarter and each of the children an undivided one-twelfth. As to the eighty, Fannie owned twelve twenty-fourths and inherited six twenty-fourths, thus she owned eighteen twenty-fourths and each of the children one twenty-fourth. The children are Mabel Goes, Faye Blair, Maude Brooks, Harry 0. Wetzel, Glenn Wetzel and Guy Wetzel. This litigation is between Glenn, Faye, Maude and Sarah, plaintiffs, and Guy, Harry and Mabel, defendants, Harry being on one side apparently and his wife Sarah on the other. After the formal allegations, the petition set out the above facts as to the interests of the parties. It then alleged the death of Fannie, the mother, on May 4, 1945, and that shortly after the death of Frank Wetzel on June 8, 1937, Guy made an oral proposal to Harry, Mabel and Bertha and their spouses, in substance that all of the children would join in a quitclaim deed to all the real estate to their mother Fannie, conveying to her a life estate in all of it, so that she would always have a home and upon her death all of it would belong to the six children and be divided equally among them; and that later he made the same proposal to Maude and her spouse; that this proposal was accepted by all of them and Guy stated- he would prepare a quitclaim deed accordingly; that he did prepare such a deed and presented it to each of the children and it was executed and acknowledged by each of- them and their respective spouses, after Guy had again explained the agreement to them; that the deed was delivered to Fannie and recorded by her. The petition then alleged that Fannie had full knowledge of the proposal and knew that the children had agreed to give her a life estate only and that upon her death all of the 240 acres would become the property in fee simple of the children in equal shares; that she paid no consideration for the quitclaim deed and the conveyances by the children of their interest in the real estate, pursuant to the oral contract, was for her benefit, and she accepted the quitclaim deed, subject to the oral contract, and it was a binding contract upon her and upon the children, and she knew she had only a life estate in all of the real estate; that after the delivery of the quitclaim deed to Fannie and about April 14, 1938, in violation of the contract and without the consent of the other children Guy obtained from Fannie a warranty deed conveying to him the entire quarter section and an undivided three-fourths of the eighty and that after the death of Fannie, Guy claimed and was then claiming all of the real estate, by which claim the other children were denied their share, pursuant to the contract; that the death of Fannie terminated her life estate and all the children became on her death owners in equal shares of the vested remainder; that the plaintiffs were entitled to have their contract enforced by having the warranty deed to Guy canceled and Guy and his wife should be ordered to deliver deeds to the other children. A second cause of action alleged facts in addition to the first cause of action and that relying upon Guy’s promise to prepare a deed pursuant to the contract the other children signed it without examining it and it referred in no way to the life estate and did not convey the eighty and the deed should be reformed. The third cause of action alleged that if the warranty deed was not adjudged void Guy should be held to have taken the property in trust as trustee for himself and the other children and the court should decree the trust and adjudge the children to be the owners of the property in equal shares. The fourth was a petition for partition of the real estate. The fifth was for an accounting. Judgment was asked on each of the causes of action, as demanded. The petition further alleged that Harry and Mabel had refused to join the action as plaintiffs and had been made defendants.
Guy, the main defendant, filed a motion to dismiss the action on the grounds of want of jurisdiction of the district court. On the hearing of this motion exhibits of proceedings in the probate court involving this same real estate and the same parties were introduced.
This motion alleged that December 4th on his own motion Glenn Wetzel was appointed and had been acting administrator of the estate of Fannie; that the administration was not completed and the probate court was exercising original and exclusive jurisdiction of the estate and it was in the process of administration when the action in district court-was filed November 3, 1948; that January 2, 1946, Glenn, acting as administrator, went upon the real estate, inventoried it and caused it to be appraised as an asset of the estate; that January 31, 1946, Guy filed in the estate his petition asserting his ownership of the entire quarter section and an undivided eighteen twenty-fourths of the eighty; that on March 25, 1946, the probate court entered its judgment that Guy was the owner in fee simple of the quarter section and of eighteen twenty-fourths of the eighty; that from such judgment Glenn, as administrator, and Faye, Maude and Glenn had appealed to the district court and the cause was then on the civil docket of that court, undetermined.
The final paragraph of the motion alleged that the district court was without jurisdiction of the subject matter of the action until the jurisdiction over it of the probate court had ceased; that the probate court had original and exclusive jurisdiction over the subject matter until the appeal from the probate court to the district court was dismissed or terminated adversely to the appellants or until the administration of Fannie’s estate had been terminated.
On the hearing of this motion to dismiss most of the files in the probate court of the estate of Fannie Wetzel were introduced. They throw considerable light on the arguments of counsel and the holding of the trial court, so they will be noted now.
November 6, 1945, there was filed the verified petition of Glenn, alleging Fannie’s death intestate, having real property of the value of $5,000 and personal property of the probable value of $800, naming the heirs, and that administration was necessary to preserve the property; next was filed the inventory of Glenn, the administrator, including the quarter section and the undivided three-fourths interest in the eighty; next on January 1,1946, a petition by Guy.
In this petition he alleged first his relationship to Fannie; then that at all times since her death he had been the absolute owner and in possession of the quarter section and an undivided eighteen twenty-fourths of the eighty and he was the owner of an additional one twenty-fourth of the eighty but raised no issue about it at that time; that about January 2, Glenn, as administrator, went upon the premises with the appraisers and represented to them that Fannie died seized of the real estate in question and caused to be made and filed an inventory of the estate, including this real estate; that this cast a cloud upon his title to it; that the other five children claimed some interest in it; that he was entitled to an order striking from the inventory all reference to it and to an order prohibiting the administrator from asserting any jurisdiction over it; and quieting his title to it against the claims of Glenn, as administrator, or of any of the five children. An order was prayed fixing a time and place of the hearing and for an order pursuant to the allegations of the petition.
To this petition, Glenn answered denying first Guy’s ownership and alleging that if he had any interest it was in the nature of a mortgage. The answer prayed that he be put on strict proof of the allegations of his petition.
On the hearing of this action Guy appeared in person and by his attorney and Harry, Faye, Mabel and Maude were present in court.
The court found that proper notice had been given; that evidence had been introduced and that the allegations of Guy’s petition were true; that he was the owner of the fee simple title to the land in question; the other children were enjoined from interfering with his possession; all reference to the real estate was ordered stricken from the inventory and Guy’s -title was quieted against the claims of the other children; Faye, Maude and Glenn appealed from this order to the district court. The appeal was filed April 23, 1946.
After the appeals from the probate court to the district court were docketed, Faye, Maude and Glenn filed motions to require Guy to make his petition more definite and certain by setting out the muniments of title whereby he obtained title to the real estate. He complied January 31, 1947, by referring to the warranty deed from his mother to himself of April 4, 1938, and attaching a copy, to which reference has already been made in this opinion.
From then on until August 3, 1948, the record in the district court in the case that was appealed from probate court consists of amended petitions and answers, by which the two groups framed issues raising substantially identical issues that were set out in the petition in district court that has already been set out here, that'is, Glenn, the administrator, and the brothers and sisters who are on his side alleged the oral contract with their mother and all the children on account of which the quitclaim deed was given and which entitled her to a life estate only, and Guy on the other hand denied the contract and raised the defenses of the statute of limitations and the statute of frauds and the jurisdiction of the probate court.
On March 23, 1948, the motion of Guy to dismiss this action in district court was sustained and the action was dismissed because the court did not have jurisdiction. This appeal is from that order of dismissal. Soon after this motion to dismiss was sustained Guy filed his second amended reply to Faye, Maude and Glenn, wherein he attacked the jurisdiction of the probate court. As already noted, however, nothing further has been done in that cause. It stands on the docket of the district court.
The first specification of error is that the trial court erred in sustaining Guy’s motion to dismiss the action for want of jurisdiction. The questions involved are stated as the extent and limitation of the jurisdiction of probate courts over estates of decedents involving real property, extent of and limitations on the jurisdiction of district courts on appeal from probate courts and the original and exclusive jurisdiction of the district courts for reformation of deeds, specific performance, adjudging a trust, and for partition and accounting of rents and profits.
There can be no question but that the probate proceedings in the estate of Fannie Wetzel were under way when this action in district court was filed. Guy Wetzel argues the court was correct in dismissing the action because it was one of which the probate court has exclusive original jurisdiction. He cites and relies on Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, where we said:
“From the various provisions of the code it clearly appears the probate court had original and exclusive jurisdiction, not only of the personalty but also of all real property which belonged to decedent’s estate. It was exercising that jurisdiction at the time the instant action was filed. Under the law it was required to determine and describe the property and to state the proportion or part thereof to which each heir, devisee and legatee was entitled, and that decree was binding as to all of the estate of the decedent, whether specifically described in the proceedings or not.” (p. 269.)
See, also, Burns v. Drake, 157 Kan. 367, 139 P. 2d 386; Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188.
Glenn, on the other hand, first points out Guy’s statement in his first petition in probate court “That at all times since the death of petitioner’s mother he has been the sole, separate, and absolute owner of and in possession, of” the land in question and argues that this is really an admission that the position of the other children is the correct one, that is, that Fannie had a life estate in the real estate. He then points out Guy’s position that Fannie had conveyed to him all her interest in the real estate and when this was made to appear in probate court the only valid judgment the probate court could render on the petition was to strike the real estate from the inventory and appraisement as prayed for in Guy’s petition. Glenn argues that since Fannie by either theory did not have any interest in the real estate other than her life estate, which terminated with her death, the real estate constituted no part of her estate, the probate court had no jurisdiction and its judgment was void.
It may be conceded that Guy in his first petition filed in probate court alleged that he held the real estate by a warranty deed given him by his mother during her lifetime. This is somewhat inconsistent with his allegation that he had owned it since her death but we are not concerned with that here. He did come into probate court and ask the court to consider and pass on his claim to ownership. The pleadings in probate court were not as full and complete as those afterwards filed in district court but nevertheless the probate court was asked to consider and pass on the effect and validity of the quitclaim deed of the other children and his mother’s warranty deed to him.
In the same proceedings Glenn, the plaintiff in this action, had gone into probate court and asked to be appointed administrator, was appointed administrator and as administrator made the real estate with which we are concerned a part of the inventory. Thus at the outset all interested parties submitted to the jurisdiction of the probate court. Had Guy not appeared and pleaded his ownership of the real estate there can be no doubt but that the probate court would have had jurisdiction to proceed with the administration of the estate, which would have included determining the share thereof to which each heir was entitled. (See G. S. 1947 Supp. 59-2249.) The fact that Guy made his appearance in probate court and pleaded that the land was no part of Fannie’s estate did not deprive the court of jurisdiction. The fact is that Guy in his very first petition filed in the probate court, while he did not set out the warranty deed to his mother, set out facts and asked for relief which made it necessary for the probate court to pass on the effect of that deed, as well as the deed from all the children to their mother. In fact, he asked the probate court for affirmative relief in that petition. It follows that the entire matter in dispute between these parties may be adjudicated in probate court and once these proceedings were under way must be carried to a final determination, either there or on appeal to the district court. (See Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438.)
Appellants here next argue that the district court does not have on' appeal from the probate court jurisdiction to make additional parties, impress and decree a trust, reform a deed or to decide a case involving the statute of frauds, such as they argue is necessary here. The statute providing for such appeals is G. S. 1947 Supp. 59-2408. It provides as follows: ■
“Upon, the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction of the matter. The district court shall allow and may require pleadings to be filed or amended. The right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by failure to file pleadings, in the probate court; nor shall the trial in, or the issues to be considered by, the district court be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court.”
Counsel for appellants remarks that it is very difficult to distinguish between the appellate jurisdiction and the original jurisdiction conferred on district courts on appeal from the probate courts. He argues, however, that the pleadings filed here after the appeal was taken went beyond the broad powers so conferred. This point is not well taken. The answer to this argument lies in G. S. 1947 Supp. 59-301 (3), (12). That section provides, in part, as follows:
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: . . . (3) To direct and control the official acts of executors and administrators, to settle their accounts, and to order the distribution of estates . . . (12) And they shall have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.”
The determination of whether the real estate in question was a part of Fannie’s estate had to be decided before the probate court could proceed with the administration of her estate. That court did hear and determine it. An appeal was taken and in the district court, pursuant to the appeal statute, the district court proceeded to allow the filing of additional pleadings and amendments to those already filed. After all this is done, however, the district court will proceed to hear and determine the controversy as though it had been commenced in that court. The fundamental issue was not changed in any respect by the pleadings filed in district court.
Appellants next argue that the fundamental law with reference to the jurisdiction of district courts is such that the matters at issue here could only be adjudicated in district court. What has already been said here disposes of that argument.
As we have heretofore pointed out in this opinion, all of the issues may be decided in the case that has been appealed to. the district court from the probate court.
The judgment of the trial court is affirmed.
Arn, J., not sitting. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order of the district court overruling a demurrer to a petition.
The substance of all preliminary pertinent facts material to the proper determination of the issues involved as they appear from the pleading in question, which was filed in district court in August, 1948, can be stated as follows: The plaintiffs are beneficiaries of a testamentary trust set up in the will of a former deceased relative, Louisa Charvat, of which R. E. Moore and Mayme C. Moore were trustees, and since December 2, 1922, have been the owners of a beneficial interest in and to certain described real estate, the description of which is not material; title to an undivided one-third interest in such real estate vested in the named trustee, or the survivor of either of them, in trust expressly for the use and benefit of the plaintiffs who, by the terms of such trust, were entitled to a conveyance from the trustees of their interest therein prior to the death of such fiduciaries and are now entitled thereto; R. E. Moore trustee died intestate on September 1, 1943; prior to his death the trustees, for advancements claimed by them to exceed the value of plaintiffs’ interest in the real estate and to have been, made to them pursuant to the terms of the trust, procured a deed from the executor of the estate of Louisa Charvat which purported to convey them plaintiffs’ undivided interest in such land but wholly failed to do so; Mayme C. Moore the surviving trustee died testate on October 20, 1947, and on the date of her death was in possession of the land under claim of absolute ownership and title, but she had not repudiated the trust by any overt act until a few days before her death.
Following averments disclosing a factual situation as heretofore summarized the petition goes on to state:
“12. That on the 27th day of November, 1947, the defendants, John Wilson Moore and A. V. Patterson, did publish their first notice of their appointment as administrators with the will annexed of the estate of Mayme C. Moore, deceased. That on the 26th day of February, 1948, the said plaintiffs did file in the Probate Court of Ellsworth County, Kansas, in the said case No. 6729 in said court their petition for allowance of demand and for decree of distribution the prayer of the first cause of action of which reads as follows, to wit:
“ ‘Wherefore petitioners pray that this claim be allowed forthwith in full, that the trust referred to above be settled and determined, that they have and receive judgment against the above-entitled state in the sum and amount of $752.83, with interest at six per cent per annum from this date, that the court forthwith fix a time and place to hear the same and cause thereof to be given according to law, and that they have such other and further relief in the premises as may be legal, equitable and just.’^ and the prayer of the second cause of action of which reads as follows, to wit:
“ ‘Wherefore petitioners pray that the said undivided one-third interest in the above-described real estate be adjudged to be no part of decedent’s estate and be set apart to them by the decree of this court that the said court forthwith set a time and place to hear this claim, and cause notice thereof to be given according to law, and have their costs herein, and such other and further relief in the premises as may be legal, equitable and just.’ that said petition was filed within the statutory period of nonclaim against the said estate of the said Mayme C. Moore, deceased, as aforesaid.
“13. That the defendants, John Wilson Moore and A. V. Patterson as administrators with the will annexed of the estate of Mayme C. Moore, deceased, did on the 1st day of December, 1947, cause the entire fee title in and unto the real estate described in paragragh 4 above to be inventoried and appraised as a part of the said estate, including the undivided one-sixth beneficial interest of each of the plaintiffs; that the said defendants by their written defense and their amended written defense to the petition of plaintiffs as aforesaid in said Case No. 6729 in said Probate Court have denied any right, title, or interest of plaintiffs, or either or any of them, in and unto the said undivided interest in and unto said real estate held by either of them; that said acts of said defendants and each of them, as aforesaid, and the repudiation of said trust by the said decedent, Mayme C, Moore, as set out in paragraph 11, constitute a wrongful exclusion and an attempted denial and ouster of the right, title, interest and claim of plaintiffs and each of them in and unto an undivided One-sixth interest each in and unto the real estate described in paragraph 4 above.” (Emphasis supplied.)
It further appears from allegations of such pleading that the issues made by the plaintiffs’ petition for an allowance of demand. and decree of distribution and the answer made thereto by the administrators in the estate of Mayme C. Moore, deceased, were transferred by the probate court of Ellsworth county to the district court of such county where they were pending and undisposed of on the date of the institution of the instant action.
By additional allegations the petition sets forth other existing undivided interests in the real estate and then asks that plaintiffs be adjudged to be the owners in fee simple of an undivided one-sixth interest each therein, that their title thereto be quieted as against the defendants, that they have and recover possession of their undivided interests, that the defendants be ejected therefrom, and that such real estate be partitioned among the respective owners thereof or, if partition cannot be had without manifest injury, that it be sold and its proceeds be divided according to the respective rights and interest of the parties to the action.
One of the grounds of defendant administrators’ demurrer, overruled by the district court and involved in this appeal, reads:
“That it appears upon the face of said .petition that there is another action pending between the plaintiffs and these defendants upon the same state of facts, which action was by petition filed by the plaintiffs herein in the estate of Mayme C. Moore, deceased, in the probate court of Ellsworth County, Kansas, on the 26th day of February, 1948, which case has been transferred to the district court of Ellsworth County, Kansas, by virtue of the provisions of G. S. 1947 Supp. 59-2402A and is now pending in this court as Case No. 5070, and that the jurisdiction of this court to try said matter is solely by reason of statute last mentioned and by reason of the transfer of the same and said cause could not have been originally filed in this court.”
From what has been heretofore stated it appears that the appellees, who it may be noted from allegations of the petition not heretofore mentioned are legatees under the last will and testament of Mayme C. Moore but are dissatisfied with their bequests, came into the district court, seeking the relief claimed in their petition, almost a year after they had submitted to the jurisdiction of the probate court in the administration proceedings then pending in the estate of such decedent, and had there asked that tribunal (1) to settle and determine the trust on which they here base their right to reliefs; (2) to adjudge that the undivided one-third interest in the involved real estate was not part of the estate, decree it to be their property, and set it apart to them; (3) for an accounting and allowance of a demand against the estate based on rents and profits alleged to be due them, from the decedent by reason of her occupancy of the property during her lifetime; and (4) for a decree of distribution.
The general and well-established doctrine is that even in cases where there is concurrent jurisdiction the court which first acquires jurisdiction retains it to the exclusion of any other court which seeks to assume it. (See Egnatic v. Wollard, 156 Kan. 843, 847, 137 P. 2d 188, and authorities there cited.)
Another rule, about which there can no longer be any controversy, is that under the general grant of jurisdiction and authority conferred upon them by G. S. 1947 Supp. 59-301 the probate courts of this state have authority to exercise such equitable powers as may be necessary to enable them to fully hear and' determine any matters properly before them. (Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438.)
Thus it appears, since it must be conceded from the face of the record the appellees did come into the probate court and invoke its aid in settling and determining the trust, which included as an incident to its disposition the question whether the real estate claimed by them was their property or belonged to the estate, the paramount question here' involved is whether as a result of their action in so doing the probate court acquired jurisdiction to fully hear and determine the questions thus submitted. If it did, under the general rule heretofore stated, by first acquiring jurisdiction over such issues it retains that jurisdiction to the exclusion of another court of concurrent jurisdiction which may thereafter attempt to assume it.
Conceding, that at the time the trial court rendered its judgment and counsel prepared their briefs in this action, which in all fairness it should be stated was long prior to the date of the rendition of the decision presently to be mentioned, there may have been serious question as to the legal effect of invoking the jurisdiction of the probate court under the conditions and circumstances herein involved we do not believe there can now be any doubt as to its result.
In Wetzel v. Wetzel, 167 Kan. 6, 204 P. 2d 768, we held:
“An heir at law instituted proceedings in the probate court, caused himself to be appointed administrator of his mother’s estate and proceeded to make and file an inventory which included certain real estate as a part of the assets of decedent; subsequently other heirs filed pleadings in the same proceedings in the probate court in which they alleged that the real estate in question was not part of the assets of the estate but had been conveyed by decedent before her death. Held, that while the matter was being adjudicated in the probate court and on appeal by the district court, a subsequent action in the district court to adjudicate the same questions was properly dismissed.” (Syl.)
While, as is true in most cases, the prevailing factual situation in the case from which we have just quoted is somewhat different from the present one the legal questions involved are entirely similar and we can discern no sound basis for distinction in their application. Therefore we hold, in conformity with such decision, that having invoked the jurisdiction of the probate court on issues of the character heretofore described the appellees had no right thereafter to institute another action in the district court, while that tribunal had before it, by proper transfer from the probate court, a cause in which such issues were pending and undisposed of.
Appellees point out that in the instant action they seek relief additional to that asserted by them in the probate court, namely, recovery of possession, ejectment, partition and quiet title of real estate. We are not too certain. Even so the result is the same. Whether the property belongs to the estate or to appellees must be determined before such additional claims can be given consideration. Having invoked the jurisdiction of the probate court on that fundamental and over-all issue it must be first determined. Appellees cannot by-pass the probate court by broadening the scope of their claims in a subsequent action when the disposition of each and all of them depends upon the decision in the first proceeding. Besides, as is pointed out in Wetzel v. Wetzel, supra, on appeal from probate court the district court has authority, and we pause to add it has like power upon transfer of a cause from probate to the district court (G. S. 1947 Supp. 59-2402 [b]), to hear and determine the controversy as though it had been commenced there. This, as we have heretofore indicated, includes such equitable powers as may be necessary to a full determination of any matter properly before it. Included in those powers as we understand it, in view of the issues raised by the appellees in the probate court if they are ultimately upheld, is the disposition of matters pertaining to possession and partition of the involved real estate providing the parties see fit by proper pleadings to invoke that relief in district court.
For the reasons heretofore stated we are convinced, that under all the facts and circumstances disclosed by the petition the appellants’ demurrer, based upon the pendency of another action between the same parties for the same cause, should have been sustained.
The judgment is reversed with directions to sustain the demurrer. | [
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The opinion of the court was .delivered by
Thiele, J.:
Martin Ludwig Cohnstaedt, hereafter referred to as the petitioner, filed.his petition in the district court of Barton county, Kansas, to become a naturalized citizen of the United States. The prayer of his petition was denied and he perfected his appeal to this court.
In a preliminary way it is observed that under article 1, section 8, of the constitution of the5 United States, the congress shall have power to establish “an uniform Rule of Naturalization” and that it has done so, by an act which provides that a person may be naturalized as a citizen of the United States in the manner and under the conditions prescribed and not otherwise (U. S. C. Title 8, § 701 [b]) and that petitions for naturalization may be filed and shall be docketed the same day as filed, but that final action thereon shall be had only on stated days to be fixed by the rule of the court (U. S. C. Title 8, § 732 [d]). Under previous like statutes the rule of the Barton county district court fixed the first days of the June and November terms, being the first Tuesday in June and the third Tuesday in November in each year as the days for hearing petitions for naturalization and on which dates, and no others, final action would be taken on applications for citizenship.
On May 13, 1947, the petitioner filed his petition and was later examined by an official of the naturalization service, who found that petitioner should not be naturalized. Later, and on November 18, 1947, which was the day fixed by the rule, a hearing was had, at which time the government’s adverse recommendation was filed and petitioner and his witnesses testified, and petitioner was given leave to file a brief, and that was done. On February 28, 1948, which was not a rule day, the trial judge filed a written memorandum or decision that under the authority of Girouard v. United States, 328 U. S. 61, 66 S. Ct. 826, 90 L. Ed. 1084, petitioner should be admitted to citizenship upon taking the oath. On June 21, 1948, the petitioner filed his motions for judgment and on June 23, 1948, the trial court entered its order denying the petition for naturalization. Petitioner’s motion for a new trial was denied, and he filed his notice of appeal.
Petitioner makes some contention that the ruling or decision of the trial court of February 28, 1948, was a final order, and not having been appealed from became a finality, and our attention is directed to certain of our decisions, which need not be reviewed, for they are not in point here. While it is true that jurisdiction to confer citizenship through naturalization proceedings is conferred upon the state court (U. S. C. Title 8, § 701), the procedure to be followed is that fixed under that act. The Barton county district court had fixed rule days on which dates, and no others, final action would be taken on applications for citizenship. The decision of February 28, 1948, was not on such a date and cannot be given the finality which the petitioner seeks to attribute to it.
Petitioner’s principal contention, as stated by him, is that he submitted sufficient evidence to the trial court to show that he is attached to the principles of the United States constitution; that he is a person of good moral character; that he has met all of the requirements of citizenship and his petition should have been granted, and his brief is devoted to a development of that contention, our attention being directed to the evidence and to certain decisions of the supreme court of the United States. At the oral argument petitioner made it clear that he was relying upon the principles laid down in Girouard v. United States, supra, and he conceded that if his evidence did not meet the test set forth in that case the judgment of the trial court should be affirmed.
Prior to 1946 the supreme court of the United States had held that an alien who refused to bear arms would not be admitted to citizenship. See United States v. Schwimmer, 279 U. S. 644, 49 S. Ct. 448, 73 L. Ed. 889; United States v. MacIntosh, 283 U. S. 605, 51 S. Ct. 570, 75 L. Ed. 1302; and United States v. Bland, 283 U. S. 636, 51 S. Ct. 569, 75 L. Ed. 1319. In an opinion handed down in 1946, however, that court in Girouard v. United States, reconsidered the question, held that the three cases noted above did not state the correct rule of law, which in substance is that an alien who is willing to take the oath of allegiance and to serve in the army as a noncombatant, but who because of religious scruples is unwilling to bear arms in defense of this country, may be admitted to citizenship.
Petitioner contends his evidence showed him to have met the test of the last mentioned case. Assuming that his evidence is to be fully credited, it showed the following: Petitioner was born in Germany in 1917, went to England in 1934, came to the United States in 1937, attended various schools in the United States and since 1946 has been a teacher in Sterling College at Sterling, Kan. Testimony as to petitioner’s character and reputation need not be detailed. On his direct examination petitioner stated he subscribed to the principles enumerated in the constitution of the United States, and that he agreed to support and defend the constitution and laws against all enemies and to bear true faith and allegiance to the United States, and that he made such statements without mental reservations. On cross-examination, a verified statement containing questions asked by an official of the naturalization service and petitioner’s answers was introduced into the record and petitioner was examined with respect thereto. No purpose will be served by detailing this examination. Summarized, petitioner stated he believed the existence of armed services was not necessary in a Christian nation, and that he was willing to have repealed all laws providing for armed services; that he was not an ordained minister, but was a member of the Society of Friends; that he was willing to perform any duty which the government required which did not conflict with his religious beliefs, but that he could not contribute anything to be used solely and directly in furtherance of armed conflict; that he was opposed to sending arms and ammunition to our allies in the recent war; that he was not willing to work in a munitions factory in time of war and assist in manufacture of munitions for the purpose of destroying enemy forces whose aim would be to destroy the armed forces of the United States; that in event of war, if it should be permissible for civilians to remove the wounded from a battlefield he would do so, but he would not deliver ammunition to men at the front who were engaged in combat duty. Other evidence need not be noted.
We think the above makes it clear that petitioner is not willing to serve in the army as a noncombatant, and that he is not entitled to be admitted to citizenship; that the trial court did not err in so concluding, and that its judgment should be and it is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to enjoin the collection of taxes on railroad cars, mostly freight and a few refrigerator cars, leased or rented by the owner to railroad companies and to obtain an interpretation of pertinent tax statutes pursuant to the provisions of our declaratory judgment act. Defendants, the state commission of revenue and taxation, to be referred to as the commission, and the state treasurer, were parties defendant.
Before proceeding with a consideration of the instant action in the district court it is necessary, in view of certain contentions of the parties, to first consider two separate proceedings before the commission. The instant action involves taxes for the years 1943 and 1944. The first proceeding before the commission pertained to the 1943 taxes. That complaint was filed on or before June 1, 1944, by the Associated Railroad Equipment Owners, an unincorporated organization. It appears that complainant endeavored to represent twenty-seven members of an association which had leased or rented their cars to various railroads. Complainant is not a car or car line company as that term is defined in G. S. 1947 Supp. 79-906. It is a voluntary association of companies which leases cars and it operates in the nature of a car pool.
Under the provisions of G. S. 1947 Supp. 79-907 every organization, as defined in G. S. 1947 Supp. 79-906, is required to pay annually for each current year a sum in the nature of a tax of two and one-half percent upon the total gross earnings received from all sources by reason of the use or operation of their cars within this state. The tax is in lieu of all other state taxes upon the property of such organization. Pursuant to the provisions of G. S. 1947 Supp. 79-908 the railroads which used the cars of the appellants withheld from rentals to be paid to them for the year 1943 the sum of two and one-half percent of such rentals. On March 1, 1944, the railroads made and filed with the commission, as required by law, a statement showing the amount of car rentals for the year 1943 and paid that amount to the commission. Pursuant to the provisions of G. S. 1947 Supp. 79-917 such 1943 taxes were paid to the state treasurer and by him credited to the fund known as the “car company tax fund.”
The complaint was the taxes were excessive and did not represent the true and lawful tax owed by the twenty-seven respective members of the complaining association. The tax withheld from each of such members varied as to amount and aggregated $11,611.71. The complaint set forth the amount of the tax withheld from each of such members and alleged it was excessive by fifty percent and in the aggregate amount of $5,805.85.
The complaint on the 1943 tax was heard July 26, 1944. At the hearing a total refund for the various companies was sought in the sum of $7,713.52. On September 6, 1944, the commission, after a hearing, ruled the tax was not greater than the general ad valorem tax would be if the property, were taxed on that basis, and denied each claim for refund. A copy of its, order was certified to the state treasurer whose duty, after the decision of the commission, it was to transfer such taxes for the year 1943 from the car company fund to the general revenue fund of the state of Kansas. (G. S. 1947 Supp. 79-917.)
Following the foregoing procedure the next step with reference to the 1943 taxes was an action filed in the district court of Shawnee county by the same complainant, Associated Railway Equipment Owners, to enjoin the collection of the tax. The first count of that petition alleged the car company tax statute was unconstitutional; that the state treasurer, unless restrained, would transfer the 1943 tax to the general revenue fund and place it beyond the control of plaintiffs and the court. To prevent that result a restraining order was sought to be effective until final hearing. The second count alleged the action of the commission with respect to the 1943 taxes was arbitrary and capricious. The prayer was for an injunction against all defendants pending the proceedings.
On October 6, 1944, the day the action was filed in the district court, that court issued an order restraining the commission” from carrying out its order dated September 6, 1944, and enjoined Walter E. Wilson, the state treasurer, from transferring the 1943 taxes to the general fund of the state. The order made the restraint effective until further order of the court. The pleadings and evidence disclosed that such state treasurer had transferred the funds on the preceding day, October 5, 1944, to the general fund.
On November 6, 1944, defendants leveled a demurrer against the original petition filed in the district court. The demurrer, among other grounds, alleged plaintiffs had no legal capacity to sue and that several causes of action were improperly joined. The ruling on the demurrer was taken under advisement. And the proceedings remained in that condition without a ruling on the demurrer throughout the year 1944 and a portion of 1945. The disposition of that demurrer will be stated presently.
We come now to the proceedings involving the taxes for the year 1944. On March 1, 1945, the railways made and filed their annual returns with the commission for the year 1944. They paid two and one-half percent of the gross rentals to the commission. Those funds were thereafter transferred to the state treasurer and were by him credited to the car company tax fund.
On or before June 1, 1945, the same complainant, Associated Railway Equipment Owners, filed a complaint with the commission on behalf of twenty-seven member car companies. With that peti tion the complainant deposited a single fee of $25 to cover the hearings on behalf of all the twenty-seven members. The complaint alleged the total amount so collected for the year 1944 was $12,-153.77; that in each instance it was excessive by fifty percent and requested a refund of the alleged excessive tax. The commission advised counsel for complainants that in its opinion G. S. 1947 Supp. 79-911 and 79-911a required that complaints with respect to such taxes be filed by the separate parties in interest and that each complaining company was required to pay the statutory deposit for costs of the hearing in the sum of $25. In the letter the commission offered to permit amended complaints of each company to be filed as of the date of the original complaint on the 1944 taxes. The letter was ignored. The commission having received no reply to the first letter again notified counsel for complainants on June 28, 1945, that if the individual complaints were not filed by July 5, 1945, the application then pending would be dismissed. No individual complaints or deposits were filed and on July 26, 1945, the complaint with respect to the 1944 taxes was dismissed. A copy of the order of dismissal was certified to the state treasurer and he transferred the 1944 taxes from the car company tax fund to the general revenue fund of the state.
For a clearer understanding of the chronological order of the evidence it should be emphasized that when the proceeding before the commission involving the 1944 taxes was dismissed on July 26, 1945, and the 1944 taxes were transferred to the state treasurer, the original action in the district court involved only the 1943 taxes. That action was pending on defendants’ demurrer to the original petition in the district court.
We shall now return to a consideration of that action filed in the district court October 6, 1944. On June 29, 1945, the parties stipulated that whereas one of the grounds of defendants’ demurrer was that the Associated Railway Equipment Owners had no legal capacity to bring the action and, since the respective companies for whom the action was intended to be brought were all willing to join as parties plaintiff in order to eliminate the question of legal capacity to sue, the demurrer would be withdrawn and the plaintiffs given thirty days in which to file an amended petition; the withdrawal of the demurrer was without prejudice to defendants’ rights to demur to the amended petition and to raise any question of law or fact in any manner it saw fit to do so; defend ants waived no right or defense by reason of the stipulation; the amended petition should contain no claims under $50 in amount and the restraining order issued at the time the original action was filed should remain in force until further order of the court.
It should be borne in mind the action at that time pertained solely to the 1943 taxes. Thereafter and on August 7, 1945, an amended petition was filed in which eighteen separate taxpayers, car companies, joined as plaintiffs. They’also amended the petition to include the taxes for the year 1944. In the first count of the amended petition it was alleged the car company statute was unconstitutional and void. The prayer was that the original restraining order issued with respect to the 1943 taxes be extended to cover both years and that upon a hearing all taxes be repaid to plaintiffs. No restraining order was issued at any time with respect to the 1944 taxes. The second count of the amended petition was in the alternative and to the effect that if the statute was held to be valid then the court declare the action of the commission with respect to the 1943 and 1944 taxes to be arbitrary and capricious; that the court declare all action to collect the taxes was void until a fair hearing had been had to determine the proper amount of said tax for each of said companies.
Defendants demurred to the amended petition on the grounds (1) the court was without jurisdiction of the person of any of the defendants or of the subject of the action; (2) several causes of action were improperly joined; and (3) the amended petition failed to state a cause of action. The demurrer was overruled. The commission answered placing at issue the allegations of the amended petition. The state treasurer answered at the same time, June 29,
1946, alleging that all taxes for the year 1943 had been transferred to the general revenue fund of the state on October 5, 1944, which was one day prior to the institution of the original action in the district court, and no restraining order of any kind or character had ever been served upon him with respect to the 1944 taxes.
On August 22, 1947, Richard T. Fadely, state treasurer, filed a motion to dissolve the restraining order issued October 6, 1944, the date the action was originally filed in the district court. In support thereof he attached the affidavit of the assistant state treasurer showing the transfer of the 1943 taxes to the general fund on October 5, 1944, and an affidavit of the state auditor to the same effect. The motion to dissolve was heard and overruled on August 25, 1947.
The record discloses no evidence was introduced to refute the contents of the foregoing affidavits or that there were any funds in the hands of the state treasurer upon which a judgment or order of the court could operate. On behalf of the complainants, the petitioners, it was conceded in the opening statement the state treasurer had transferred the funds the day before the restraining order was served.
At the conclusion of the hearing on its merits on August 25, 1947, defendants demurred to plaintiffs’ evidence on the grounds:
“. . . that it fails to prove a cause of action in injunction and declaratory judgment against the persons bf these defendants or either of them, and for the further reason that the evidence fails to disclose that the Court has jurisdiction to render a judgment in injunction or injunctive relief or under the •declaratory judgment statute against the persons of the defendants, or either •of them.”
The demurrer was sustained.
The purpose of this action was to enjoin the assessment and collection of the taxes in question on the grounds the taxing act, G. S. 1947 Supp. 79-906 et seq., contravenes provisions of the state and federal constitutions and in the alternative, if the act be held valid, for an order directing the commission to conduct a fair hearing for the reason that its previous hearing held for the purpose of determining the value of the property was arbitrary and capricious.
Appellants further alleged the assessed value of each of their cars was excessive by fifty percent and if the act be held valid they are entitled to a recovery of that amount.
In sustaining the demurrer to appellants’ evidence and dismissing the appeal the district court upheld the order of the commission. In a memorandum• opinion the court, in substance, held: The taxing statute was constitutional; the various appellant organizations might bring a joint action for the single purpose of obtaining an adjudication concerning the constitutional validity of the act but that since the court had ruled the act was constitutional appellants could not thereafter join in an action to collect their separate alleged excessive taxes; the money collected for the 1943 taxes had been delivered to the state treasurer by the commission after it had denied that complaint and the state treasurer in turn had transferred that money from the car company tar fund to the general revenue fund, as required by law; no deposit of $25 as required by the act had been made with the commission by each of the appellants to cover costs of their separate hearings with respect to the 1944 taxes; under the estoppel provision of the law, G. S. 1947 Supp. 79-918, appellants could not be heard concerning the taxes for the year 1944; the taxes collected for that year likewise had been transferred by the state treasurer to the general revenue fund of the state, as required by law.
Although the demurrer to appellants’ amended petition contained the ground the causes of action were improperly joined, appellees’ demurrer to appellants’ evidence did not include that ground. We, therefore, prefer not to rule on that point. Nor need we presently determine whether appellants instituted the injunction suit in time to legally enjoin the transfer of the taxes for either year to the general revenue fund of the state. Those questions are secondary and can become germane only in the event it be held the tax statute is invalid or, if valid, that the commission acted arbitrarily and capriciously in determining the value of the property taxed.
We shall, therefore, turn first to the question of the constitutional validity of the act. It may be well to emphasize at the outset this is not an act under which all railroad property is taxed in this state. That property is taxed under separate statutes and in a different manner. This tax is one involving foreign car line companies which rent or lease equipment, in this case tank and refrigerator cars, to railroads which operate in or through this state. (G. S. 1947 Supp. 79-906.)
In view of the various attacks on the statutes involved it seems best to set forth pertinent provisions thereof at the outset although some of them are rather long.
G. S. 1947 Supp. 79-907 provides:
“Every organization as hereinbefore defined, shall pay annually for each calendar year a sum in the nature of a tax at two and one half pereentum upon the total gross earnings received from all sources by reason of the use or operation of such cars by such organization within this state, which shall be in lieu of all other taxes upon such property of any organiztion so paying the same: Provided, For the purpose of taxation all cars used exclusively within the state or used partially within and partially without the state, are hereby declared to have situs within the state, the value of such property for the purpose of such taxation to1 be determined as provided for in this act. The term 'gross earnings received from all sources by such organization from the use or operation of such cars within this state,’ is hereby declared and shall be construed to mean, all earnings on business beginning and ending within this state and a proportion based upon the proportion of mileage within the state, to the entire mileage over which such business is done of all earnings on interstate business passing through, into, or out of the state.” (Our emphasis.)
The pertinent portion of G. S. 1947 Supp. 79-908 requires railroads using or leasing such equipment from lessors to withhold from payment to the lessors two and one-half percent of such gross earnings during the preceding twelve months ending December 31 and to remit that amount to the commission together with a statement thereof on or before March 1 of each year.
Under the provisions of G. S. 1947 Supp. 79-911 an organization such as appellants or a railroad company affected by the act on or before June 1 in any year after the payment of the tax by the railroad company, may appear before the commission to have a hearing on and a review of any matter concerning the correctness or validity of any tax or penalty paid or required by the commission.
G. S. 1947 Supp. 79-911a reads:
“It is hereby declared to be the intention, of the legislature that the tax herein imposed be not greater than the amount of tax such organisations would pay if their cars were taxed) on an ad valorem basis, including any value inuring to such cars by reason of being a part of a going concern. No tax other than as in this act imposed shall be assessed against the property of any such organization except in cases where any such organization shall make complaint in writing to the commission on or before June 1 of the year in which the tax herein imposed is assessed, claiming that it is taxed at too great a rate hereunder. The organization filing such complaint shall at the time complaint is filed deposit with the commission the sum of $25 to cover the estimated cost of the hearing, which deposit shall be refunded by the commission if it shall be determined at such hearing that the taxes assessed against the complainant should be lowered. Upon the filing of such complaint and the making of such cost deposit, the commission shall set the complaint for hearing and shall give written notice of such hearing to the complainant at least thirty days before the date set for such hearing.” (Our emphasis.)
The same section further provides :
Upon the hearing of any such complaint the commission shall take testimony to determine whether the taxes herein imposed are greater than the general ad valorem tax for all purposes would be on the cars of such organization subject to taxation in Kansas, if taxed on an ad valorem basis. In such eases the commission shall have the power, and it shall be its duty, to lower or raise the rates herein imposed to conform to- the facts disclosed at said hearing. If the commission modify its finding as to the amount of tax due, it shall refund the excess amount paid by issuing to the claimant its voucher to the state auditor for the refund found to be due. Upon receipt of such voucher properly executed and endorsed, the state auditor shall issue his warrant to the state treasurer for the payment to the claimant out of the car company tax fund created by this act. In order to determine the amount of tax such organization would pay, said commission may value all cars of any organization as a unit and allocate to Kansas that proportion of the total value which the Kansas car mileage bears to the total car mileage of the cars of any such company during the twelve-months period ending December 31, of the preceding year and may then apply to such value, so ascertained, the average ad valorem tax rate applied to property throughout the state for that fiscal year.” (Our emphasis.)
The so-called estoppel section, G. S. 1947 Supp. 79-918 is:
“If any railroad company or organization affected by this act shall refuse or neglect to make any report required by this act, or shall refuse or neglect to permit an examination of its books, records, accounts and papers upon demand of the commission, or shall refuse or neglect to appear before the said commisison in obedience to its citation or summons, or shall fail to object to the tax imposed by this act within the time and in the manner prescribed by this act, it shall be estopped to question or impeach the action or determination of the said commission or the validity of the tax imposed hereunder.” (Our emphasis.)
With respect to the 1944 taxes appellants did not comply with the statutory procedure as requested by the commission. In any event it appears that fact should not, under circumstances previously narrated, preclude appellants from raising the question of the validity of the statutes in connection with the taxes exacted for the year 1943.
Appellants first contend the entire act is invalid for the reason it contravenes the due process clause of the fourteenth amendment to the federal constitution and article 11, section 1, of our state constitution which require a uniform and equal rate of assessment and taxation except as to property not here involved.
It is safe to say the equal protection clause of the federal constitution and state constitutional provisions pertaining to equality and uniformity of taxation are substantially similar and that, in general, what violates one will contravene the other and vice versa. (51 Am. Jur., Taxation, § 169.) At any rate no distinction is apparent with respect to any matter raised here and the two complaints will be considered together.
Appellants argue the instant act imposes a tax based solely on ownership of property and (1) operates to discriminate between owners of the same kind of property and between owners in the same attempted classification; and (2) prevents uniformity of operation and results in extra-territorial taxation.
The contentions require analysis of the act. We think it is inaccurate to say the act constitutes a tax on ownership as such. The tax is not imposed on an organization which merely owns railroad equipment, such as the tank and refrigerator cars here involved, but the tax is exacted generally on all organizations within the classification by reason of the use or operation of such equipment within this state. (G. S. 1947 Supp. 79-907.) In reality it is not a tax on the gross receipts accruing from the use and operation of the machinery. It is a tax on the property itself. The tax on the property is merely measured by a percentage of the gross earnings received from the use and operation of the property within- the state. It is actually a lieu tax placed on the property in the absence of the physical property for assessment purposes. In order, however, that the tax should be equal and uniform the legislature stated it to be its intention . . that the tax herein imposed be not greater than the amount of tax such organization would pay if their cars were taxed on an ad valorem basis, including any value inuring to such cars by reason of being a part of a going concern.” (G. S. 1947 Supp. 79-911a.)
This rolling stock does not come to rest within any particular county in the state in order that it may be assessed for taxing purposes. It passes through various counties of the state in which the railroad using the equipment operates. Absent some method of this nature for taxing such property it could not be taxed at all. The need of similar legislation has been recognized, enacted and upheld in other states with substantially the same constitutional provisions where it was subjected to the same contentions as those advanced by appellants here. Each of the contentions, previously stated, has been laid at rest in one or more of the following decisions: Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 62 L. Ed. 827, 38 S. Ct. 373; Almer Ry. Equipment Co. v. Commissioner of Taxation, 213 Minn. 62, 5 N. W. 2d 637; People v. Keith Railway Equipment Co., 70 C. A. 2d 339, 161 P. 2d 244; Pacific Express Co. v. Seibert, 142 U. S. 339, 35 L. Ed. 1035, 1039, 12 S. Ct. 250; Western Union Telegraph Co. v. Indiana, 165 U. S. 304, 41 L. Ed. 725, 727, 17 S. Ct. 345; United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. Ed. 459; 32 S. Ct. 211; Pullman Co. v. Richardson, 185 Cal. 484, 197 Pac. 346 (261 U. S. 330, 67 L. Ed. 682, 43 S. Ct. 366); Pacific Fruit Express Co. v. Oklahoma Tax Com’n, 27 F. Supp. 279.
All property within the classification of the statute is taxed equally and uniformly under the statute. This meets all constitutional requirements if the classification is a reasonable one for tax purposes. (People v. Keith Railway Equipment Co., supra.)
The presumption is in favor of the validity of a legislative classification. It is well settled that unless courts can say the legislature could have had no reasonable basis for the classification made it must be sustained. (Heisler v. Thomas Colliery Co., 260 U. S. 245, 67, L. Ed. 237, 43 S. Ct. 83; Welch v. Henry, 305 U. S. 134, 83 L. Ed. 87, 59 S. Ct. 121.) We agree with the California court that cannot be said concerning the instant classification. (People v. Keith Railway Equipment Co., supra, p. 358.)
The fact railroad property generally is not assessed, at the same rate does not render the instant act invalid. The entire property of railroads is assessed in one manner while other property may be assessed in another manner and be valid. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234, 237; People v. Keith Railway Equipment Co., supra.) There is a second difference between companies defined by the instant act and railroad companies that own their own means of transportation. The vital distinction is that railroad companies pay taxes on their roadbeds, rolling stock and other tangible property as well as generally upon their franchise. (Pacific Express Co. v. Seibert, supra.)
Appellants’ fundamental contention the tax is one based solely on ownership of property and is discriminatory cannot be sustained. The numerous cases cited in support of their fundamental theory are not applicable.
Appellants charge the act contravenes article 2, section 17, of our state constitution which provides:
“All laws of a general nature shall have a uniform operation throughout the state; and in all oases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
As already stated the act applies generally to all organizations like appellants. Its operation as to them is uniform. Its operation is as general throughout the state as the subject matter provided for in the act permits. That, we think, is sufficient. (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915.) It seems to us the peculiar use and the special method employed by appellants in the operation of their business constitutes a sufficient basis for the law.
Appellants contend the provision requiring railroads to withhold two and one-half percent of the gross earnings from their cars and to deposit such amount with the commission constitutes an invasion of powers granted to the interstate commerce commission by Title 49, § 1 (14), U. S. C. A. It has been held a similar act which is a property tax, as we have held the instant one is, rather than a tax on gross earnings, does not constitute an unconstitutional restraint or burden on interstate commerce. (Cudahy Packing Co. v. Minnesota, supra.)
It is next claimed the requirement that railroads withhold the tax from, the gross earnings of appellants is invalid. The contention is it establishes a lien in the absence of an existing liability. 'That the state may establish the tax liability for the use and operation of the cars within this state cannot be doubted. The method ■devised for collecting the tax from the nonresident appellants does not violate the due process clause of the federal constitution. (Magnolia Petroleum Co. v. Oklahoma Tax Com., 188 Okla. 85, 106 P. 2d 829.) To the same effect involving a similar question is Travis -v. Yale & Towne Mfg. Co., 252 U. S. 60, 64 L. Ed. 460, 40 S. Ct. 228.
Appellants allege the requirement in G. S. 1947 Supp. 79-911a that appellants on filing a complaint with the commission deposit :$25 to cover the estimated costs of the hearing, which shall be refunded if it be (ietermined the taxes assessed should be lowered, ■offends against article 2, sections 1, 5, and 17 of the state constitution and the fourteenth amendment of the federal constitution. All ■of those provisions except section 1 and section 5, article 2, have been set forth previously. Section 5 has no application to the question before us.
We doubt appellants can complain of the provision in question. The complaint pertains solely to the 1944 taxes, as indicated earlier in this opinion. Appellants lodged no complaint before the commission touching the taxes for that year. The Associated Railway Equipment Owners, which filed the complaint, is not an “organization” within the terms of G. S. 1947 Supp. 79-906 that can be heard in this matter. It leased no equipment to railroads. None of its funds was in controversy. It was not an interested party and had no standing before the commission in any capacity. Appellants refused to make the deposit for costs and no hearing was had with respect to the 1944 taxes.
Assuming, without deciding, the constitutional question urged can be raised by appellants it appears the legislature believed the expenses of the commission in connection with hearings of this character probably involving numerous records and accounts of nonresidents might become substantial. Indeed the expenses might far exceed the meager sum of $25. The law also provides if the taxes be lowered as a result of the hearing the deposit for costs shall be refunded. If the constitutional question raised is before us we think the legislature had the power to make such a provision pertaining to costs for the hearings here involved.
Appellants next argue the district court erred in refusing to find the commission was guilty of arbitrary and capricious action. The first alleged basis for the contention is the commission failed to find the tax was greater than it would have been had it been assessed on an ad valorem basis. Assuming for the moment, without deciding, there was an over-valuation of some of the cars, that fact in and of itself would not be sufficient to justify an injunction against the collection of the taxes, especially where it would operate to invalidate the entire tax levy, in the absence of evidence evincing fraud or an intention to discriminate against appellants. (Symns v. Graves, 65 Kan. 628, 70 Pac. 591; Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129; Great Northern Ry. Co. v. Weeks, 297 U. S. 135, 80 L. Ed. 532, 56 S. Ct. 426, and see anno. p. 546 [L. Ed.], including Kansas cases.) An assessment is not deemed to be fraudulent merely because it is excessive. (Finney County v. Bullard, supra.)
The only function of the district court was to determine whether appellants’ evidence showed the action of the commission was fraudulent, unreasonable, arbitrary, oppressive or discriminatory. Its function was not to substitute its judgment for that of the commission relative to the proper valuation of the property. (Anderson v. Hedges, 160 Kan. 665, 165 P. 2d 425; Union Pac. Rld. Co. v. State Corporation Commission, 165 Kan. 368, 194 P. 2d 939.)
Leon S. Hirsh, a witness and attorney for the Associated Railway Equipment Owners, which originally attempted to bring this action on behalf of all appellants, introduced in evidence before the commission a chart, exhibit “A,” which he had prepared. The chart embraced various factors which he contended ■ were essential to arriving at the fair valuation of the cars. The intended purpose of the chart was to show there was no relationship between the tax on gross earnings and the amount of tax as determined on an ad valorem basis. Nevertheless with respect to his own chart he admitted :
“Whenever you start valuing property two valuation engineers are always reaching different conclusions. I am presenting this as my method of valuation; your engineer might change it to a considerable degree.”
In the light of this admission w'as the commission guilty of fraud or arbitrary conduct if it did not accept his valuation as conclusive or convincing?
Let us examine another point under our statute, G. S. 1947 Supp. 79-911a. It provides the tax shall not exceed what it would be on an ad valorem basis” . . . including any value inuring to such cars by reason of being a part of a going concern.” That the going concern value is a proper factor under a statute providing therefor seems to be well established. (Pullman Co. v. Richardson, 261 U. S. 330, 67 L. Ed.. 682, 43 S. Ct. 366; Almer Ry. Equipment Co. v. Commissioner of Taxation, 213 Minn. 62, 67, 5 N. W. 2d 637.) The same witness testified the figures in his chart included “going concern” value. The chart, however, does not contain that item as one of the factors upon which he determined the valuation.
Let us consider another item. The same witness made a deduction in valuation on the basis the cars were idle part of the time. It appears the commission did not agree appellants had a right to make that deduction. We are advised of no authority to make it. If such authority exists there is no indication the commission arbitrarily refused to consider it.
Let us consider another point. The record discloses the commission was of the opinion these cars were required to be in good state of repair in order to carry necessarily heavy freight loads. The commission apparently believed the value of the older cars was greater than that indicated by the chart. The cars, of course, were not in evidence for examination. That was not the fault of the commission. The witness was, therefore, asked, “How many miles would a car run before being called in for repairs?” The answer was, “That depends on the age of the car and the mileage it is run.” The witness) however, introduced no evidence to show the cars had not been kept in proper repair and that the commission had, therefore, overvalued them. The cars obviously were kept in sufficiently good condition to be used and to produce the income which was used as a measure for determining the amount of the tax.
Another item on the chart of the witness with which the record shows the commission did not agree was a general reduction of the true value of each and every car by fifty percent. We know of no statute or rule under which the commission was compelled to accept such evidence of overvaluation. (See G. S. 1935, 79-301, requiring personal property to be listed at its true value.) We think it is unnecessary to further pursue other objections the commission may have had to the method of valuation disclosed by appellants’ chart or to further treat appellants’ contention the district court was obliged to conclude the commission acted fraudulently or arbitrarily in rejecting appellants’ evidence on valuation.
Appellants argue the commission introduced no testimony to refute their evidence and that the commission cannot make a valid determination upon facts it has not brought into the record. It is, of course, true that all administrative tribunals should deal fairly with complainants with respect to the basis of their decisions. We can conceive of cases where failure of administrative agencies to disclose material matters on which a decision is to be based may prejudice complainants. In the very nature of the instant case, however, the burden rested squarely upon complainants to show the two and one-half percent tax was excessive. The record indicates every opportunity was fairly given appellants to do so. The record also indicates testimony of appellants with which the commission did not agree.
Under the statute all the cars may be valued as a unit. (G. S. 1947 Supp. 79-911a.) The provision to so value the cars is valid. (Almer Ry. Equipment Co. v. Commissioner of Taxation, supra, p. 67; Cudahy Packing Co. v. Minnesota, supra.) That the valuation may not result in mathematical exactitude is not a constitutional defect (People v. Keith Railway Equipment Co., supra, p. 342) and does not establish bad faith on the part of the commission. In view of the record we cannot say the district court committed reversible error in refusing to find the commission acted arbitrarily or capriciously.
The judgment is affirmed.
Harvey, C. J., and Arn, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an original proceeding for a writ of habeas corpus.
The petitioner was convicted in the district court of Kansas City, Kan., of murder in the first degree of one Louis Deutch on July 7, 1938, after a verdict of guilty in the first trial had been set aside. He was sentenced to life imprisonment in the state penitentiary. From the judgment of conviction the petitioner appealed. The judgment was affirmed by this court November 10, 1939. (State v. Townsend, 150 Kan. 496, 95 P. 2d 328.) Long prior to the affirmance of the judgment petitioner on June 15, 1939, procured an affidavit of another prisoner in the penitentiary, Clarence Simpson, who was serving a fifteen-year sentence for larceny of an automobile.
The affiant, Simpson, in substance, states: He testified falsely against the petitioner in the trial of the criminal case which resulted in petitioner’s conviction; he entered into a conspiracy with certain officers of the Kansas City police department to testify falsely concerning the petitioner; the police officers and the county attorney of Wyandotte county had promised him they would recommend to the state pardon and parole board that his sentence be commuted from fifteen years to a shorter term if he would turn state’s evidence, they would file- no charges against him and they would pay him for his testimony.
The affidavit, in substance, also alleges: The last mentioned officers told one Leroy Graham if he did not testify against the petitioner in the criminal case they would make it “hot” for him; the officers made it known (to whom it is not stated) they would “get” him, the affiant, and file charges against him as an habitual criminal ; since the- detectives had not kept their promise he was making this affidavit to clear his own conscience and for the purpose of preventing unjust punishment of the petitioner.
The petitioner was represented by able and experienced counsel in the criminal case and he makes no complaint he was not properly represented at each and every stage of the proceedings. It is true as petitioner states that he was tried twice on the same charge; that the first verdict was set aside and the second verdict was approved by the trial court.
The petitioner filed a previous application for a writ in this court on the same grounds. The application, by reason of a wholly insufficient record, was denied without formal opinion on August 7, 1947. It appears a similar application for a writ was filed in the district court of the United States for the district of Kansas in case No. 1262-H. C., which was denied on November 12, 1948. The official record of that proceeding is not before us and we pass it without further comment.
Petitioner claims he is being held in confinement in violation of the sixth and fourteenth amendments to the constitution of the United States. The grounds upon which he seeks his release are: He was convicted on perjured testimony; evidence was excluded at the trial pursuant to the state’s objections; evidence beneficial to him was suppressed by the state.
Petitioner’s brief concedes he had knowledge at the trial of the criminal action of all the grounds upon which he now seeks his release except the affidavit of Clarence Simpson, which is dated June 15, 1939. The date of the affidavit discloses he had knowledge of all information therein contained long prior to the affirmance of the judgment in the criminal case by this court on November 10, 1939. (State v. Townsend, supra.) None of it was brought to the attention of this court in any manner. Habeas corpus is not a substitute for a redress of alleged trial errors which may be corrected on appeal.
Petitioner claims that police officers in Kansas City, Kansas, had some reports concerning the identity, or lack of identity, of the person, or persons, who committed the murder. If such reports existed there is no showing of an attempt by petitioner to obtain such records for the criminal trial by proper legal proceeding. Petitioner does not claim he was inadequately represented by counsel.
Moreover there is no evidence the attorneys who prosecuted the criminal action knew that the testimony of Clarence Simpson, or of any other witness who testified in the criminal case, was untrue unless the Simpson affidavit can be construed to mean that. It will be observed Simpson states the detectives, not the county attorney, failed to keep their promise. Whether Simpson is now telling the truth or was telling the truth at the trial is not exactly easy to determine. The jury and the trial court apparently believed he was truthful at the trial. In any event an affidavit of the respondent, signed by the county attorney to whom Simpson refers, convinces us the county attorney had no knowledge of the perjured testimony, if there was such, and that no testimony beneficial to petitioner was deliberately concealed in the criminal prosecution. There is no evidence that testimony beneficial to petitioner was knowingly suppressed by the officers in charge of the prosecution or that they knew any witness was testifying falsely. We have held that in the absence of a clear showing of such knowledge by the officers in charge of the prosecution a writ will not issue. (Pyle v. Amrine, 159 Kan. 458, 156 P. 2d 509.) A petition for a writ of certiorari was denied in the Pyle case. (Pyle v. Amrine, 326 U. S. 749, 90 L. Ed. 448, 66 S. Ct. 45.)
The petition for the writ is denied. | [
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The opinion of the court was delivered by
Arn, J.:
This action is a controversy between parties who were-husband and wife prior to their divorce in 1936, and who seek to determine their rights and obligations under a “separation agree ment” which they executed on May 1, 1933. This same separation agreement was considered by this court in an earlier case involving the same parties (Petty v. Petty, 147 Kan. 342, 76 P. 2d 850).
In the instant case defendant’s motion for judgment on the pleadings was sustained by order of the district court and plaintiff has appealed.
The petition alleges that plaintiff and defendant were married in January, 1924, have two children who are now aged twenty-one and twenty-two, and that the “separation agreement” entered into on May 1, 1933, and attached to the petition as Exhibit A, provided that defendant should pay to plaintiff for her support and for the maintenance and education of the two children, two-thirds of defendant’s monthly income until plaintiff remarried or until the children graduated from college, and that defendant would continue in force certain insurance policies with plaintiff as beneficiary. The petition then set forth the divorce proceedings in the district court of Saline county and the appeal therefrom which resulted in a decision by this court (Petty v. Petty, supra) upholding and approving the same “separation agreement” with which we are here concerned; and alleged that thereafter the district court of Saline county entered a judgment as follows:
“. . . And now on this 23rd day of May, 1938, counsel for the parties having failed to agree upon the form of the Journal Entry to be entered spreading said mandate and correcting said judgment, the matter is taken up by the court on its own motion, and the court being fully advised in the matter finds that the mandate of the Supreme Court of the State of Kansas in case No. 33613, wherein Ryland C. Petty was plaintiff and Lillian B. Petty was defendant, and the judgment of said court in said case should be spread upon and entered of record in this court, and that in compliance with the decision and judgment of the Supreme Court of the State of Kansas made and entered in the above entitled case, the judgment of this court heretofore of record must be amended and changed to comply with the said order and directions of the Supreme Court made on the 5th day of March, 1938.
“obdeb
“It is therefore ordered by the court that said mandate and decision of the Supreme Court is ordered spread upon the records of this court.
“It is further ordered that judgment in the above entitled case be entered as follows:
“judgment
“It is therefore considered, ordered, adjudged and decreed by the court that plaintiff be granted a divorce from defendant upon the ground of gross neglect of duty, the same to become absolute after six months from the date of rendition of judgment in this case; that defendant is awarded the custody of the two> minor children, Denoya, age 11 years, and Marcheta, age 10 years; that the separation agreement heretofore entered into by and between the parties plaintiff and defendant, a true and correct copy of which is hereto attached, marked Exhibit A, and hereby made a part hereof, be and the same is hereby approved by the court . . .” (Emphasis supplied.)
The petition alleged further that defendant has made no payments to plaintiff since May 1, 1933, except the total sum of $5,710, the last payment of $25 having been made in June, 1943; that such payments were less than two-thirds of defendant’s earnings; that defendant has, since the supreme court decision in 1938, concealed his whereabouts and residence from plaintiff until plaintiff recently discovered defendant, remarried and working in Topeka, Kan.; that demand for payments under the terms of the “separation agreement” have been made upon defendant, and when he refused to make any payment whatever, this action was instituted. The petition continued to allege that plaintiff had performed all the conditions she was obligated to perform under the separation agreement and has maintained a home for and supported the children; that a college education for the children is dependent upon specific performance of the “separation agreement” by defendant; that defendant is able to comply with the terms of said agreement, and that plaintiff has no adequate remedy at law. The prayer of the petition is for an accounting by defendant for two-thirds of his income since May 1,1933, for specific performance of the “separation agreement,” and for an order directing defendant to continue his insurance policies with plaintiff as beneficiary.
Attached to the petition as Exhibit A is the separation agreement and property settlement as follows:
“This Agreement, Made and Entered into this 1 day of May, 1933, by and between Lillian Petty, hereinafter termed wife, and Ryland C. Petty, hereinafter termed husband, both of the city of Salina, Saline County, Kansas.
“Witnesseth, That whereas, the parties hereto have developed differences which make it impossible for them to continue to live together; and,
“Whereas, it is the desire of said parties to cause a separation agreement and property settlement agreement to be drawn up;
“Now, Therefore, It is mutually agreed by and between the parties hereto that the husband will pay to the wife for the support of said wife and for the support and maintenance and education of the minor children of said parties, Denoya Petty and Marcheta Petty, two-thirds of husband’s income until the re-marriage of the wife or until the said children have been graduated from High School and College if said wife does not remarry before that time. After said children have graduated from High School and College, the wife not having re-married, the husband agrees, from that time until her remarriage, or as long as the wife shall live, if the wife never remarries, to pay to the wife one-third of his income.
“Provided, however, it is further mutually agreed that in the event of the re-marriage of the wife the husband will pay to the wife for the use of said children and for their maintenance, education and support, the sum of Thirty Dollars ($30.00) per month until said children and each of them finish High School.
“Said husband further agreed that, in the event of the re-marriage of said wife, he will pay from and beginning with the date of said re-marriage, to said wife a separate and additional sum of Seventy Dollars ($70.00), said sum so paid to be received and held in trust by said wife and to be used by her for the express and only puropse of paying the expenses of a college education for each and both of said children of said parties. Expressly Provided, However, that if said payments of $30.00 and $70.00, as aforesaid shall exceed two-thirds of husband’s income at any time during which said payments are herein agreed to be made, the total of said monthly payments shall not exceed two-thirds of husband’s current income and, in that event, the said $30.00 payments and the said $70.00 payments shall be reduced proportionately.
“It is mutually agreed further, that when said trust fund, with accrued interest, shall total the sum of Eight Thousand Dollars ($8,000.00), said payments shall cease and determine. In the event said Trust Fund shall not have attained a total sum of Eight Thousand Dollars ($8,000.00) by the time said children and each and both of them are ready to enter college, said husband agrees to pay and assumes the obligation of financing said college education for said children up to the amount of Six Thousand Dollars ($6,000), less any amount then accumulated as aforesaid in said trust fund.
“It is further mutually agreed that the wife shall have the exclusive custody and control of said children of the parties and that the husband shall have the right and privilege of seeing and visiting with said children at all reasonable times.
“Said parties agree that the wife is the owner of Willis-Knight 1931, Club Sedan Automobile and that the husband is the owner of a Whippet 1930 Sedan Automobile. Each party hereby waives any claim to or interest in the said automobile of the other and herewith each delivers to the other a duly executed Bill of Sale to said Automobile to the other belonging.
“The husband agrees that he will continue in full force and effect the insurance policies that he now owns by the payment of the premiums and all premiums as same become due and payable according to the terms and provisions of said policies, that he will not change the beneficiary therein named and that he will continue the principal sum named in each policy as payable to said wife as beneficiary precisely as prior to the execution of this writing and as if no difference had arisen between said parties.
“Said wife accepts the foregoing statements and covenants and agrees to pay on the part of the husband in full settlement of all of her property rights in and to the property of said husband and in full of all her rights and claims for support from the husband hereafter. Neither party shall have, or claim any of the property of the other or any right, title or interest in and to any of the property of the other party hereto whether now owned or hereafter acquired. This being a full, complete and permanent property settlement made by each of said parties hereto with full knowledge of all property owned and possessed by the other party hereto. In the event either party hereto shall secure a divorce from the other hereto that party shall cause this separation agreement and property settlement agreement to be presented and approved by the Court, and said wife shall have judgment therein for the payments therein agreed to be paid to her directly or to her for the use and benefit of said children. No other or further judgment for support, alimony, temporary or permanent, suit money, costs or attorney fees shall be applied for or obtained in any divorce action. The party bringing any divorce action shall pay the costs in said action resulting.
“The wife further agrees not to incur any debts or buy anything henceforth upon the credit of the husband. Said husband shall be free from any liability on account of any debts by wife contracted after the execution of said writing, precisely as if said parties had never been husband and wife. It is understood expressly by said parties that this agreement is binding upon said parties whether or not a divorce is granted to- either party hereto.
“From and after the execution of this Agreement the parties hereto will live separate and apart.
“In Witness Whereof, The parties hereto have hereunto set their hands the day and year last first above written, in duplicate.
“(Signed) Lillian Petty Wife
“(Signed) Ryland C. Petty Husband”
Defendant filed an .answer which alleged ten separately numbered defenses, and concluded with a last paragraph in the nature of a demurrer to plaintiff’s petition upon some of the same grounds of defense set forth in the answer proper.
Defendant then filed a “motion for judgment on the pleadings” which the district court sustained. It is from this ruling that plaintiff appeals.
No reply was filed, so we return now to a more detailed discussion of defendant’s answer. The first, second, third and sixth alleged defenses raise obvious issues of fact and therefore need not be considered here. The fourth and fifth defenses alleged by the answer plead respectively the statute of limitations and laches, which appellee briefs and argues as presenting questions of law. However, under the allegations of the petition that defendant had absented and concealed himself since 1938, and under plaintiff’s theory of recovery upon contract, these two defenses also involve some question of fact and need not be considered in determining the sufficiency of the pleadings. The other defenses included in the answer allege strictly legal defenses which we may consider as the questions involved in this appeal.
Seventh Defense:
Defendant alleges that the contract became merged in the judgment of the district court of Saline county and thereby lost its identity as an instrument separate and apart from the judgment; that the judgment is void; and the provisions of the contract itself called for a merger with any judgment thereafter rendered in a divorce action so that plaintiff acquiesced in the merger constituting a full and complete waiver of the contract.
Eighth Defense:
Here it is alleged that by reason of the merger alleged in the seventh defense, plaintiff is estopped to claim under the contract and to maintain this action.
Ninth Defense:
It is alleged that both children having attained their majorities, plaintiff has no capacity to maintain this action on their behalf. Tenth Defense:
Defendant contends this is an equitable action, and alleges that plaintiff has an adequate remedy at law.
The motion for judgment on the pleadings raised the four questions of law included in the answer and set forth above as defenses seven, eight, nine and ten. The one designated as “Seventh Defense” is stressed by appellant, and apparently attracted the particular attention of the trial court according to a letter by the court advising counsel that defendant’s motion for judgment on the pleadings had been sustained for the reason advanced in paragraph seven of the answer.
Counsel for appellee argue that the trial court in its order and decree of May 23, 1938, which we have quoted above, made the separation agreement a part of and merged it with the judgment. Appellee then concludes that such a “merger” having been effected, the appellant must resort to an enforcement of her Saline county judgment — which judgment as a matter of law is unenforceable and void. Authorities are cited to the effect that where there is such a “merger” of the contract with the judgment rendered thereon, the rights of the parties rest on the judgment and not on the agreement. The question immediately before us, then, is whether the trial court by its decree of May 23,1938, canceled the contract (much the same as a note is canceled and incorporated in a judgment of foreclosure) and made its terms and provisions the. judgment of the court.
Of course this court in the instant appeal is not concerned with the status of the Saline district court judgment of May 23, 1938. We must, however, look to that decree to determine the merit of appellee’s contention with respect to the so-called “merger” of the contract with the judgment. When this case was here previously (Petty v. Petty, 147 Kan. 342), the mandate of this court was:
“that the judgment of the district court be affirmed in part and reversed in part, in harmony with the views as expressed in the court’s written opinion . . .”
In that case the trial court had held this same separation agreement void, and we said that was error. Our opinion, dated March 5, 1938, concerning directions to the trial court regarding that instrument ordered nothing more than: “The court should be directed to approve it.’’ From a careful reading of the Saline district court decree 'of May 23, 1938, recited above, we take the view that it was the purpose and intent of that court to carry out the mandate and order of this court. That decree specifically recited that it was being made “in compliance with the decision and judgment of the Supreme Cowrt. . . . the judgment of this court heretofore of record must be amended and changed to comply with the said order and directions of the Supreme Court made on the 5th day of March, 1988.” Certainly, this court on March 5, 1938, did nothing more than direct the district court to approve the separation agreement. Following the foregoing recitation of its intention to comply with the supreme court mandate, the district court then attached to its decree a copy of the separation agreement, made the separation agreement a part thereof, and approved it. Did the language of the decree “a true and correct copy of which is hereto attached . . . and hereby made a part hereof” have the effect of cancelling the separation agreement as such and incorporating or “merging” it with the judgment itself? We do not think that such was the purpose or intention of the Saline district court, nor do we think the language used in the decree merits or fairly implies such a construction. The words “hereto attached” and “hereby made a part hereof” served only to identify the instrument which the court “approved.” Actually, nothing more was done than to approve the’ separation agreement — no judgment was rendered pursuant to its terms.
Appellee also directs attention to the following language of the separation agreement:
“. . . In the event either party hereto shall secure a divorce from the other hereto that party shall cause this separation agreement and property settlement agreement to be presented and approved by the Court, and said wife shall have judgment therein for the payments therein agreed to be paid to her directly or to her for the use and benefit of said children. No other or further judgment for support, alimony, Temporary or permanent, suit money, costs or attorney fees shall be applied for or obtained in any divorce action.”
and contends that by such language the parties themselves stipulated that in event of a divorce action the separation agreement must become a part of and be incorporated in the judgment to be rendered. Regardless of the construction which could be placed upon this paragraph of the instrument, the fact remains that the separation agreement was not incorporated or “merged” with the judgment which has long since become final.
There may be jurisdictions (some are cited by appellee) where incorporation of the contract in the decree by making it a part thereof places it in the status of a judgment or court order so that it can be enforced only as the judgment of the court. Such a rule does not tend to encourage the solution of marital difficulties by contract rather than by recourse to the courts. The tendency in this state has been for the courts to approve and carry out agreements of the parties where they have made a comprehensive contract which is fair and reasonable in its terms (Perkins v. Perkins, 154 Kan. 73, 114 P. 2d 804).
To adopt the rule urged by appellee, and to say the district court of Saline county canceled the separation agreement and incorporated or “merged” it into a court order of judgment by merely attaching it as an exhibit and making it a part thereof, would not be consistent with encouraging the solution of marital difficulties by the parties themselves. When it is expedient that such contracts be consolidated with or incorporated or “merged” in the judgment, as urged here by appellee, the courts must accomplish that purpose by positive and intentional language. The district court of Saline county did not do so in its order of judgment of May 23,1938.
For example, in Hullet v. Hullet, 133 Kan. 738, 3 P. 2d 470, an antenuptial contract was said to have been “merged” in the judgment. But there the contract divided real property between the parties and the decree of judgment provided:
. . and which said contract the court finds makes a fair and equitable division of property as between plaintiff and defendant; and said contract is approved and confirmed, and each of the parties hereto is ordered and adjudged full ownership and title in the property as agreed in said contract.” (1. c. 740.)
By such order the court clearly spelled out the terms of the contract in its judgment decree. The decree left the parties in the same place as would have the terms of the contract in the absence-of a decree.
Appellee relies upon Conway v. Conway, 130 Kan. 848, 288 Pac. 566, involving a separation agreement by which alimony was to be paid at the rate of $200 per month (see agreement in 133 Kan. 148, 149) until the remarriage or death of the plaintiff. The judgment of the trial court ordered defendant to pay $200 per month alimony until the remarriage or death of the plaintiff. That is to say, the very terms of the separation agreement were incorporated in and made the judgment of the trial court, but there was no approval of the agreement, nor was it mentioned in the order of judgment. Under those circumstances (quite different from the instant case) we merely held that the total sum of alimony was not definitely fixed and therefore the judgment allowing $200 per month for an indefinite period was void; that as a judgment it was void even though the parties had agreed to it because they could not confer jurisdiction by agreement. When the case came to this court a second time (Conway v. Conway, 133 Kan. 148, 298 Pac. 744) upon an action by the wife for specific performance of the contract, that relief was denied because there was then no contract. As was stated in syllabus 4: “The unenforceable provisions of the contract were, at the request of the parties, embodied in 'a decree for alimony, which became final.”
In Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437, there was a separation agreement made in contemplation of an action for divorce which action was filed the following day. In the divorce decree the trial court approved the agreement. Subsequently the plaintiff brought an action in specific performance and while the action was pending, the parties entered into stipulations and made a compromise settlement. Judgment was rendered accordingly, and thereafter the trial court modified the judgment and plaintiff appealed. We reversed the trial court because the judgment below had been rendered upon the consent (or stipulation) of the parties and provided for its own methods of modification, and therefore the trial court was without power to modify it. Later defendant again moved for a modification and the case was here again upon the same question (Hyde v. Hyde, 147 Kan. 134, 75 P. 2d 1023). We upheld the order of the trial court refusing to modify the first judgment, saying that the judgment rendered in the specific performance action, having been agreed to by stipulation, was a contract. While the Hyde cases are not identical with the instant case, the parties there were left to enforce their agreement (a contract made by stipulation) separate and apart from the original judgment. Appellee would distinguish the Hyde cases from the instant case because there the separation agreement was altered somewhat by signature and consent of the parties to a stipulation which was filed of record in the divorce action, while in the instant case there was no such alteration. It is difficult to observe a wide distinction between the Hyde cases and the one now before us. In the instant case the separation agreement was also “consented to” and “signed” by the parties, although that was done prior to the divorce action instead of by stipulation in the pending case. In both cases the agreements were approved by the court — and we might say in both cases the parties are by judgment bound by the terms of the contract.
In Cowell v. Cowell, 114 Kan. 605, 220 Pac. 211, the property settlement agreement was apparently entered into in court and embodied in the decree. It was held that the parties were, by judgment, bound by the terms of the contract. The contract there entered into was embodied in and really constituted the decree itself — but it was not a “merger” such as would require the parties to look to the judgment for relief rather than specific performance, if they had otherwise been entitled to such relief. Speaking of the property settlement stipulation in the Cowell case, we said:
“The decree of divorce granted recited the stipulation and entered judgment in accordance therewith and it was held that the decree was enforceable by the children in a suit in equity.
“That it is evidenced by. a decree of a court of record is, of course, no objection to the agreement. That the parties could have accomplished the same disposition of their property by proper instruments executed by them and recorded, no one doubts. There is no just reason why they could not accomplish the same purpose by an agreement which they caused to be entered in a decree of a court of record, in a suit to which they were parties.” (1. c. 608.)
These cases seem to be in accord with the conclusion we have already indicated above, that the separation agreement here under consideration was not incorporated or “merged” in the district court judgment of May 23, 1938, so that it lost its identity as a separate and distinct contract.
The next question for our consideration is raised by the ninth defense of the answer — that the plaintiff has no capacity to maintain this action on behalf of her children who have now reached the age of majority. It should be noted that the separation agreement provides for no payments to the children. The instrument provides only for payments to the wife, with one of the conditions as to the amount and duration of those payments being the completion of the children’s education. Such a condition seems to be a reasonable provision in this type of contract, and we know of no authority or rule*of law which sustains appellee’s contention in this respect.
It is next contended, and urged as the tenth defense in the answer, that appellant has an adequate remedy at law which will preclude her relief at the hands of a court of equity. In support of this phase of the answer it is argued that legal remedies such as attachment, garnishment, execution and proceedings in aid of execution are available — but this argument is predicated upon appellee’s theory that the separation agreement was “merged” in the district court judgment, with which we have already indicated our disagreement.
This case is before us on appeal from the trial court’s order sustaining defendant’s motion for judgment on the pleadings. We have, therefore, been primarily concerned with the sufficiency of the petition. With all of the allegations of the petition accepted as true, we cannot say it is apparent upon the face of the pleadings that defendant was "entitled to judgment as a matter of law.
In accordance with the views herein expressed, the judgment of the district court is reversed with directions to overrule the motion for judgment on the pleadings.
Wedell and Price, JJ., dissent. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries sustained by plaintiff when she was struck by an automobile driven by defendant. The trial court sustained a demurrer to plaintiff’s evidence and she has appealed.
The pertinent portions of the record may be summarized as follows: Main street in McPherson is a north-and-south street. It is paved sixty-three feet wide from curb to curb. The four hundred block is in the business section of the city, but there are some vacant lots. It is intersected at the north by Woodside street and at the south by a street on which there are three or more tracks of the Santa Fe Railway Company. Near the south end of the block on the west side of the street is the American Legion hall and about one hundred feet north of it is the Cozy Inn, managed by Mrs. Stowe. Near it is a driveway from the street to the west across the sidewalk. Almost opposite that driveway and on the east side of the street is a similar driveway from the street across the walk. The plaintiff, seventy-six years of age, was spry for her age, although she walked rather slowly; and though she wore glasses her eyesight was very good, as was also her hearing. Apparently she had lived in McPherson for many years. On Saturday evening, May 22, 1948, she went to the home of her friend, Augusta Gustafson, and visited awhile, and together they went to the greenhouse, which was on the east side of Main street, where they separated. Plaintiff started to walk across Main street at the driveway above mentioned. It was then about 8:45 p. m. A witness, who was driving north on Main street, saw her standing near the curb on the east side of the street as though she were starting to walk across the street. Shortly after that two young men, driving north on the east side of the street, saw what they first thought was a “gunny sack” lying near the center of the street. On looking more closely they saw it was a woman. They parked their car immediately and rán over to her. Plaintiff was lying on the pavement about two to four feet west of the center of the pavement, her head to the south or southeast and her feet to the north or northwest. She was waving her arms in the air and calling for help. Other people gathered about. Mrs. Stowe had come out of the cafe and someone called to her to bring a pillow and a blanket, which she did, and placed plaintiff’s head on the pillow and covered her with the blanket. In the meantime defendant had driven south a distance of seventy-five or eighty feet and stopped her car in front of the American Legion behind cars parked there. She went into the Legion building and asked Mr. Wright, the manager, to use the telephone to call an ambulance, stating that she had hit a woman in the street. Defendant was very nervous. Mr. Wright directed her to the telephone and said he would go out in the street and see what he could do. He found plaintiff lying approximately in the middle of the street. There were some folks there taking care of her. The traffic was going on both sides of her. The witness took over the directing of traffic from the south around her on the east side of the street until the police officer came. It seems that in addition to cálling an ambulance defendant called the police headquarters. Officer Kennedy was on duty and he went to see where plaintiff was hurt. She was lying on the west side of the center strip of Main street ten or twelve feet from the back end of parked cars on the west side of the street. Her body was lying with her head to the southeast, her feet to the northwest. She had a blanket spread over her and a pillow under her head. She was about one hundred and five feet south of Woodside street. Plaintiff was taken away from the scene of her injury to her home and the next morning was taken to the hospital. The evidence disclosed that she was seriously injured, but the extent of that is not now before us. The witness Kennedy was asked:
“Q. I>id you examine the ear for any marks that would indicate where any part of the ear may have brushed a pedestrian? A. I did.
“Q. Will you state to the jury just what you found? A. A spot of dirt that possibly was rubbed off by a garment or cloth of some kind on the right front fender.
“Q. The fender had been brushed to indicate that the dust might have settled on it had been rubbed oif? A. That’s right. There was no dent in it, however.”
The next morning defendant went to the police station and signed an accident report on a form provided for a report to the motor' vehicle department for a two-car accident, but since only one car was here involved defendant’s car was spoken of as Car No. 1. The pertinent part of the report reads:
“Car No. 1 going south on Main Street. Mrs. Hultberg started across street from between two parked cars. Car No. 1 did not see Mrs. Hultberg, striking her with right front fender knocking her to pavement extent of injuries not known.”
This was signed by the defendant. Officer Paul Smith, to whom the report was made, was asked and answered the following questions :
“Q. That’s the way that she told you? A. I wrote it as near word for word as she gave it.
“Q. That she never saw Mrs. Hultberg until the time she struck her? A. That’s right.”
The demurrer to the evidence was “for the reason that the same does not show a cause of action against the defendant.” The demurrer was argued to the court and sustained. A motion for a new trial was promptly filed, overruled, and a notice of appeal served and filed the same day.
Counsel for appellant contend the trial court erred in sustaining the demurrer to the evidence. The point is well taken. (See Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239; Shoup v. First Nat’l Bank, 145 Kan. 971, 975, 67 P. 2d 569, and authorities there cited.) Counsel for appellee cite one case (Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158). We think the case not in point here. There the plaintiff went out between two parked cars across the center line of the street and into the side of a truck and sustained injuries. All the evidence here is that the plaintiff walked from the east side of the street, where there were no parked cars. She was struck near the center of the street, which would tend to show that defendant was on the wrong side of the street as she drove south and struck plaintiff with her right front fender. Defendant’s statement in her report to the police that the plaintiff came out into the street between two parked cars can be nothing more than the conclusion of defendant in view of the fact that she further stated that she never saw the plaintiff, from which it clearly appears that she did not know whether she came from behind parked cars on the west side of the street or from the east side of the street where there were no parked cars.
The judgment of the trial court is reversed with directions to .grant a new trial. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to obtain a writ of prohibition. Plaintiff appeals from an order sustaining the defendant’s demurrer to his petition.
In his petition plaintiff alleged: 1. That he was a resident of Denver, Colo. 2 and 3. That defendant at all times involved was the qualified and acting probate judge of Sedgwick county, Kansas. 4. That plaintiff was the owner of real estate in Sedgwick county. 5. That on June 28, 1948, a son of plaintiff caused to be filed in the above probate court a petition alleging that plaintiff was temporarily away from Wichita, visiting another son in Denver, Colo., and that plaintiff was an incompetent person, senile, distracted and feeble-minded and in such mental condition that he was unable to look after his property and business affairs and that it was to his best interest that a guardian be appointed for his estate. 6. That upon the filing of that petition the probate judge made an order directing that notice be served upon the plaintiff by the sheriff of Denver county, Colorado, and that such service was made. 7. That on July 14, 1948, plaintiff filed a special appearance in the probate court alleging that he was a permanent resident of Denver, Colo., that he had left the state of Kansas without intention of returning and that he retained no home or domicile, in the state of Kansas. 8. That the only notice served upon plaintiff was the one referred to in 6 above. 9. That the probate court overruled his special appearance and assigned the matter for hearing in the future and if not prohibited will proceed to hear and determine the contents of the petition filed against the plaintiff. 10. That the service of notice upon plaintiff in the state of Colorado would not confer jurisdiction upon the probate court, and if the court proceeds to hear the petition such proceeding will not be due process of law. 11. That the probate court is without jurisdiction to entertain the petition and that all proceedings had in that cause and all contemplated proceedings are without right or authority in law. The prayer of the petition was for a writ prohibiting the defendant probate judge from proceeding further in the matter. Attached to and made part of the above petition are copies of the petition filed in the probate court, the order of that court setting the petition for hearing and for service of notice, and the notice given and proof of service thereof. We need not review these documents further than to note that in the petition in the probate court it was alleged that Nicolas M. Vilm was a resident of Sedgwick county, Kansas, temporarily away from Wichita and visiting his son in Denver.
The defendant in the action in the district court demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff has appealed.
Appellant, in his brief first calls attention to the fact that this court has held that a writ of prohibition is a proper remedy where a probate court attempts to proceed in a matter where it is without jurisdiction (citing Beeler v. Beezley, 126 Kan. 268, 367 Pac. 1112, and other cases), and then contends that the probate court may not proceed against an alleged incompetent on the theory that he is a resident when in fact he is a nonresident and no personal service has been had upon him within the state of Kansas: Appellant points out that while it was alleged in the petition filed in the probate court that he was a resident of Wichita, Kan., in the district court proceeding now under consideration, in his petition he alleged that he was a resident of Denver, Colo., and that defendant’s demurrer admitted that fact, and his argument is based on the premise that he is a resident of Colorado and a nonresident of Kansas. On that premise appellant argues that it is a condition precedent to the appointment of a guardian for his estate that his incompetency must be established; that such a proceeding is in personam; that service upon him must be personal and not constructive, and that personal service out of the state, such as was had here, is not sufficient.
In our opinion the appeal is not so to be determined. We are of opinion the matters in issue are controlled by the provisions of the probate code appearing as G. S. Supp. 1947, ch. 59 (hereafter referred to by chapter and section number) and by certain decisions hereafter mentioned.
The petition filed in the probate court set forth fully that Nicolas M. Vilm was a resident of Sedgwick county, Kansas, and that he owned property within that county, and thus for the purpose of the appointment of a guardian of his estate the venue was in the probate court of that county (59-2208); likewise the petition also contained the information required by 59-2257 and was sufficient to invoke the jurisdiction of the court. Under the facts disclosed by that petition the probate code required that personal service-should be made upon the ward in such manner and for such period of time as the court should direct (59-2259) and that an order setting the matter for hearing and for the giving of notice was made and that such notice was given is shown by the probate court proceedings and admitted by the petition in the district court. We pause here to note a contention is made that the use of the word “ward” indicates there had been a previous adjudication of incompetency, but whatever may be a strict definition of that word, we think the context of the statute shows it refers to one against whom a finding of incompetency is sought. It thus appears that the probate court proceeding presented the following matters for proof: Was Yilm a resident of Sedgwick county? Was he incompetent and subject to guardianship? If so, did he own property so that appointment of a guardian of his estate was necessary and proper? If on the hearing it developed that Vilm was a resident of Denver, Colo., and a nonresident of Kansas, the particular relief sought would have to be denied. That the allegations were sufficient to challenge jurisdiction of the probate court over the party charged and the subject matter involved, cannot be .denied. What judgment that court may render on a hearing of the petition and any defenses that may be interposed is not of present importance, but that by its orders already made the probate court is exercising jurisdiction is plain. It is also clear that the jurisdiction thus invoked is originally and exclusively in the probate court by reason of the provisions of the probate code (Starke v. Starke, 155 Kan. 331, syl. ¶ 1, 125 P. 2d 738). Even though it be conceded the district court had jurisdiction, under our decisions the probate court having first acquired jurisdiction is allowed to pursue it to the end and to the exclusion of the district court (see, e. g., Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945, and cases cited).
In our opinion Beeler v. Beezley, supra, relied upon by appellant as upholding his right to maintain his present action does not do so. In that case a writ of prohibition was granted because, under the statutes then in force and which we need not here examine, the information filed in the probate court disclosed that court had no jurisdiction to entertain it. In the case before us, as is pointed out above, the petition filed in the probate court disclosed it had jurisdiction.
In view of what has been said it follows that the probate court, on a sufficient petition, was exercising its original, exclusive jurisdiction, and a resort to some other court to prohibit the probate court from pursuing that jurisdiction to the end, ought not to be and will not be permitted.
The district court’s ruling on the demurrer is affirmed, and the cause is remanded with instructions to that court to dismiss the action. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order sustaining a demurrer to a petition.
The petition, after stating the plaintiff, Jessie R. Marsh, and the defendants, Henry B. Hogeboom and Lena S. Hogeboom, were all residents of Shawnee county, further alleged:
“That on or about the 17th day of December, 1945, at about 5:15 P. M. the defendant, Lena S. Hogeboom was driving a Ford Coupe owned by the said defendant, Dr. Henry B. Hogeboom, on Harland Court street in the city of Topeka; that the plaintiff was riding in said automobile; that defendant, Lena S. Hogeboom drove the said automobile as aforesaid and stopped at the foot of the driveway in front of the plaintiff’s home located at 3112 Harland Court, Topeka, Kansas; that thereupon the plaintiff opened the right-hand door of said Ford coupé and stepped out of the same onto the pavement; that at the time and place aforesaid, it had been snowing and the street and driveway in front of plaintiff’s residence was covered with snow and ice; that after plaintiff got out of said automobile and as she was standing on the street as aforesaid she placed her right hand upon the handle of the right door of said automobile and attempted to close it; that as plaintiff was closing said door which the defendant Lena S. Hogeboom knew or by the exercise of reasonable care should have known, the defendant, Lena S. Hogeboom suddenly and without warning to the plaintiff, recklessly and carelessly and negligently drove her automobile ahead, catching plaintiff’s right hand in the handle of the right door of said car, throwing the plaintiff off balance and throwing plaintiff to the ground, causing her to suffer severe bodily injuries and pain and suffering as hereinafter alleged.
“Plaintiff further alleges: That the legal, immediate and proximate cause of the bodily injuries suffered by the plaintiff was the negligence of the defendant, Lena S. Hogeboom in driving her automobile as aforesaid.”
The defendants challenged the petition by separate demurrers on the ground it did not state facts sufficient to constitute a cause of action. The demurrers were sustained and from that ruling plaintiff appeals.
Only the order sustaining the demurrer of the defendant, Lena S. Hogeboom, the driver of the car, is presented on appeal. It is agreed the sole issue raised before and decided by the district court was whether under the allegations of this particular petition the plaintiff, at the time of injury, was a guest of the defendant, Lena S. Hogeboom, within the meaning of the guest statute. (G. S. 1935, 8-122b.) We shall, therefore, refer to Lena S. Hogeboom as the appellee. Our guest statute reads:
“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 damages 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.”
Appellant contended below and argues here the guest statute is not applicable for the reason (1) the petition discloses the gratuitous undertaking which appellee, the host, had assumed was terminated and at an end at the time the alleged negligent act of the host occurred, and (2) appellant, therefore, was not obliged to allege gross and wanton negligence.
The parties agree if appellant’s contention (1) is good the order sustaining the demurrer was wrong and if that contention is not good the ruling was proper. The trial court concluded the guest relationship had not terminated at the time of the alleged negligent act; that it constituted too strict a construction of the guest statute to hold the words, “That no person who is transported,” were intended to mean, “No person who is being transported.”
This particular kind of case is one of first impression in this state under our guest statute. It seems to us the parties are in rather substantial agreement relative to the principle of law involved but, as is sometimes the case with courts, they differ in the application of the rule to the facts. The parties rely, in part, upon the same cases. The guest statutes of all states are not identical with the result that obviously some of the decisions appear in conflict while in reality some of them are not so in principle. It must, however, be conceded the decisions are not all in harmony with respect to precisely when the guest and host relationship commences or terminates. This is the turning point of the lawsuit.
We are informed by the parties that the states of Pennsylvania and Massachusetts have no guest statutes or had none at the time cases' cited from those jurisdictions were decided. Both parties, however, agree that the Massachusetts decisions in particular are of great value for the reason they deal with the fundamental principle governing the duties of a gratuitous bailee. Both parties, therefore, agree that a defendant’s, a host’s, duty depends upon whether the claimed act of the host’s negligence was an act performed in the course of carrying out the gratuitous undertaking which the host had assumed.
Appellant’s counsel, in substance, argues the petition discloses: The vehicle had stopped in front of the guest’s home; the vehicle was, therefore, no longer moving; the gratuitous transportation had ended; another and separate journey had begun when the alleged negligent act of the host occurred. In support of the contention the gratuitous undertaking had ended she relies primarily on the following cases from states with guest statutes: Moreas v. Ferry, 135 Cal. App. 202, 26 P. 2d 886; Prager v. Isreal, 15 Cal. 2d 89, 98 P. 2d 729; Harrison v. Gamatero, 52 Cal. App. 2d 178, 125 P. 2d 904; Hunter v. Baldwin, 268 Mich. 106, 255 N. W. 431; Brown v. Arnold, 303 Mich. 616, 6 N. W. 2d 914; Puckett v. Pailthorpe, 207 Iowa 613, 223 N. W. 254. She also relies on the following Pennsylvania and Massachusetts cases decided without a guest statute: Stewart, Tr., v. McGarvey (et al., Aplnt.), 348 Pa. 221, 34 A. 2d 901; Fuel v. Langelier, 299 Mass. 240, 12 N. E. 2d 735; Head v. Morton, 302 Mass. 273, 19 N. E. 2d 22; Ethier v. Audette, 307 Mass. Ill, 29 N. E. 2d 707; Bragdon v. Dinsmore, 312 Mass. 628, 45 N. E. 2d 833, 146 A. L. R. 683; Adams v. Baker, 317 Mass. 748, 59 N. E. 2d 701.
Appellee relies primarily upon the following cases in which it was held that, under the facts therein presented, the guest relationship existed and the negligent act which caused injury constituted an incident of either the commencement or the completion of the gratuitous undertaking: Ruel v. Langelier, Head v. Morton, Ethier v. Audette, Bragdon v. Dimsmore, Adams v. Baker, omnia supra (Mass.); and Langford v. Rogers, 278 Mich. 310, 270 N. W. 692.
We shall not extend this opinion with an analysis of the particular guest statutes involved in the cases cited by the parties or with a detailed recital of the facts which are set out in the various opinions. Some of the guest statutes are substantially the same or similar to ours. Others are quite dissimilar such as those which require that the injury be received by the guest while riding in the vehicle and during such ride. It should also be said the facts in certain of the cases relied upon by the parties differ materially from those alleged in the instant petition. From the opinions in those cases it is not at all clear the courts would have reached the same conclusion under the facts alleged in this petition. In some of them the guest’s connection with the vehicle was far more remote at the time of injury than in the instant case and yet it was held the negligent act of the host was nevertheless an incident of the entire gratuitous undertaking in view of the peculiar nature of the venture.
We think every case of this character must of necessity be decided upon its own peculiar facts. It must therefore not be assumed the conclusion we reach in the instant case necessarily means we are adopting similar decisions reached by some courts on materially different facts. We prefer to rest our decisions upon our own statute and the particular facts involved in each case as it may arise.
Did the negligence alleged in the instant petition constitute an incident of the gratuitous undertaking which appellee had assumed? If it constituted such incident it is clear the incident occurred in the course of carrying out the gratuitous undertaking.
Is it reasonable to assume that as a part of completing the gratuitous undertaking appellee would not be required to permit appellant to disconnect herself from the vehicle? We do not think so. Is it reasonable to assume the closing of the door after appellant alighted was no part of the completion of the undertaking? We think it is not. The alleged negligent act occurred while appellant had her hand on the door handle and was attempting to close the door. Surely a host would not naturally or normally expect a guest to get out of the car and leave the car door open.
Counsel for appellant have made a studious and forceful presentation on the proposition that the car had stopped and therefore the transportation of the guest to her home had ended. The contention warrants and has received our serious consideration. But let us see where the contention, if sustained, would lead us. True the car had stopped. But can it properly be said the mere stoppage of the car terminated the entire gratuitous undertaking? Was the driver relieved of all duty to the guest the moment the car was stopped?
Appellant was, of course, obliged to get out of the vehicle after it stopped. Supposing after the vehicle had stopped appellant arose within the car to leave while the motor was running and appellee’s foot slipped off the pedal, the car lurched and appellant was injured. Would the gratuitous undertaking have terminated while appellant remained in the car? We do not think so. Or supposing appellant was injured in the same manner after the car had stopped and while appellant had her hand on the inside door handle of the car while attempting to open the door, would we say the negligent act was not an incident which occurred in the course of the gratuitous undertaking? We do not think so. It seems to us it would be drawing too fine a distinction to say if the negligent act of the driver occurred after the car had stopped and while the guest was endeavoring to open the door from the inside, the negligence occurred in the course of the gratuitous undertaking but if the negligent act occurred while the guest was endeavoring to close the door from the outside then the negligence did not occur in the course of the gratuitous undertaking. The closing of the door was the natural, the normal act culminating the gratuitous undertaking. The alleged negligence occurred while that act was in progress.
We think the demurrer was properly sustained and the order is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action in district court to enforce a trust relating to land. The defendants filed a motion to dismiss the action for the reason the district court had no jurisdiction of the subject matter. The appeal is from an order overruling that motion.
At the outset we feel compelled to state, notwithstanding the rule orders overruling motions to dismiss are not ordinarily final orders and therefore not appealable under the civil code (G. S. 1935, 60-3302), that since everyone concerned, including court and counsel, agree it was so treated in the court below, we have decided to regard the instant motion as tantamount to a demurrer and the ruling in question as equivalent to an order overruling a demurrer to the petition on the statutory ground (G. S. 1935, 60-705 [first]) on which it is based.
The factual allegations set forth in the first cause of action of the petition, giving them the benefit of all inferences to which they are entitled when a pleading is challenged by a demurrer, can be stated in substance as follows:
The plaintiffs are children and heirs-at-law of May Wright who acquired title in fee simple to certain real estate, heavily encumbered, located in Decatur county under and by virtue of the will of her deceased husband who died in 1938. The defendant Ianth Wright Rogers is her daughter and the defendant Leo J. Rogers is the latter’s husband.
■ On or about December 1,1939, May Wright, at the suggestion and request of the defendants, executed and delivered to Leo J. Rogers a quitclaim deed to such real estate which was recorded by him on March 19, 1943. At the time the deed was executed and delivered the defendants were dealing with May Wright under conditions and circumstances amounting to a confidential relationship and she was in failing health and in such a feeble and weak state of mind and body as to be incapable of fully transacting her business affairs.
In order to induce the grantor, who was unable to farm or manage the land therein described, to execute the deed Leo represented and promised her the defendants would advance and pay taxes and other operating expenses of the land, and the installments of principal and interest falling due on indebtedness secured by mortgages thereon, such as she would be unable to pay; that if she became able to1 repay defendants f¡or the sums so advanced by them they would then reconvey the property to her, or if she died without paying such advancements they would convey the property to her heirs-at-law; that such real estate would be held in trust for Mrs. Wright’s benefit or the benefit of her heirs-at-law in the event of her death; and that in the event of its sale after her death the amount realized from the sale thereof would be delivered to her heirs-at-law after due accounting had been made to defendants for all sums advanced by them.
March 13, 1943, Leo executed and delivered a quitclaim deed to his wife conveying her the real estate deeded to him by Mrs. Wright. This deed, recorded on March 19, 1943, was executed without consideration except for such funds as Ianth may have advanced to pay on indebtedness against the land.
May Wright died October 19, 1946, intestate, a resident of Decatur county. No administration has ever been had or commenced on her estate and more than one year next preceding the commencement of the action had elapsed since the date of her death.
Since Mrs. Wright’s death the defendants have refused to reconvey the real property, the value of which is greatly in excess of the amount for which it is encumbered, to Mrs. Wright’s heirs.
Further averments of the first cause of action are to the effect: The acts of the defendants in procuring the deed from Mrs. Wright, in causing the quitclaim deed to Ianth to be executed and recorded, and in failing and refusing to convey the real estate therein described to her heirs-at-law constitutes fraud, artifice, duress and undue influence; that such deed was originally obtained from Mrs. Wright by fraud and undue influence and would not have been executed and delivered by her except, therefore, that on the date of its execution and delivery, or any other date, Mrs. Wright never designed, intended or desired to make disposition of her real property so as to make an unequal division thereof among her heirs-at-law at tfie time of her death.
The second cause of action set forth in the petition is for ejectment, the third for an accounting of rents and profits and the fourth for partition. These causes of action are all dependent upon determination of plaintiffs’ rights under their first cause of action and. for that reason there is no occasion to detail their allegations.
In the prayer of their pleading the plaintiffs ask the court, with reference to their first cause of action, to find that Mrs. Wright died intestate leaving the plaintiffs and the defendant Ianth Rogers as her sole heirs-at-law; that the defendants be decreed to hold title to the real estate as trustees for the benefit of all such decedent’s heirs-at-law; that the court direct defendants to execute proper conveyances to the real estate or that plaintiffs be found to be tenants in common thereof; and that defendants be required to account for rents and profits after taking credit for sums advanced by them.
Since the parent case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, this court has consistently held that by reason of the Kansas probate code (Laws 1939, ch. 180) and particularly what is now G. S. 1947 Supp. 59-301, the probate courts of this state have exclusive original jurisdiction over all matters incident and ancillary to the settlement and distribution of decedent estates, except where such code expressly provides otherwise. This general principle has become so well established in so many cases (See West’s Kansas Digest, “Courts,” §§ 200, 472, and Hatcher’s Kansas Digest, “Courts,” §§ 72 to 76, inch) involving varying facts and circumstances that we do not deem it necessary to review them.
Upon careful analysis of the involved pleading it is apparent the fundamental basis of the appellees’ claim, however stated, is that the quitclaim deed executed and delivered by Mrs. Wright to the appellant, Leo. J. Rogers, was nothing more than an equitable mortgage securing the payment of indebtedness of the grantor, due or to become due, by reason of advancements of money made for and on her behalf by the grantee for which he was to be repaid. That this conclusion is inescapable becomes crystal clear upon resort to ■emphasized portions of the factual statement 'heretofore related wherein appellees definitely so state and in addition allege that Mrs. Wright did not intend by the execution of such instrument to make disposition of the real estate therein described so as to make an unequal division thereof among her heirs-at-law at the time of her death. This being true the equity in the land — the land itself subject to payment of the indebtedness — was an asset of her estate. Even so, it had been deeded away without written reservation and the grantee, who was in possession, was claiming title and ownership. In such a situation administration of Mrs. Wright’s estate was necessary in order that an administrator be appointed who, in his fiduciary capacity by himself or in conjunction with the appellees who as heirs-at-law were asserting rights to real estate alleged to be a part of her estate, could proceed in the manner contemplated by G. S. 1947 Supp. 59-1401, and reduce such property to possession and bring it into the estate as an asset subject to final settlement and distribution. There can be no doubt, under provisions of the code heretofore noted and our decisions construing them, that all proceedings necessary and incident to the marshaling of the assets of an estate come within the exclusive original jurisdiction of the probate court. Hence, inasmuch as the jurisdiction status of the entire cause is completely dependent upon the first cause of action of the petition, it necessarily follows the district court had no jurisdiction of the subject of the appellees’ action and should have sustained appellants’ motion to dismiss, which was based upon that premise.
In an effort to avoid results flowing from the conclusion just announced appellees rely upon several of our cases decided prior to the enactment of the probate code, particularly on Staab v. Staab, 158 Kan. 69, 145 P. 2d 447; Staab v. Staab, 158 Kan. 77, 145 P. 2d 452; Staab v. Staab, 160 Kan. 417, 163 P. 2d 418, of more recent date, involving actions brought directly in district court to enforce a constructive trust. The cases last cited even though they postdate the code are not applicable for the reason they do not deal with the sufficiency of a pleading in district court which shows upon its face it seeks to determine title to real estate which was clearly an asset of a decedent’s estate on the date of his death. They are further distinguishable in that the events there relied on happened long prior to the enactment of the code, the rights of the parties were founded upon an alleged family settlement and the jurisdiction of the district court to pass on the validity of the asserted trust was not challenged or passed upon. Moreover, any rule that actions of the character involved in all such cases can be instituted directly in district court has been superseded by the statutory requirements effected by the probate code which require that any attempt to bring back into an estate land which has been conveyed away by a decedent in his lifetime without written reservation, and of which he was not in possession on the date of his death, must be initiated in the probate court.
Finally appellees point out that under the probate code (G. S. 1947 Supp. 59-2250) heirs are permitted to wait for more than a year after the death of their intestate decedent without administration and then have the descent to his property determined in a short form probate proceeding. Quite true. It does not follow, however, as they insist, that under this section of the statute they are authorized to litigate as among themselves their respective interests in the estate of their ancestor. Indeed we have held to the contrary. See Jardon v. Price, 163 Kan. 294, 181 P. 2d 469, which holds:
“A decree of decent under the provisions of G. S. 1945 Supp. 59-2250 does not create title but merely declares who has acquired the title of the decedent under the law of intestate succession. The function of the statute is not to determine claims or controversies affecting the distributive share which would other-wise pass under the law of intestate succession.” (Syl. It 2.)
Neither does-it follow, as appellees likewise contend, that the construction given the descent statute in the case from which we have just quoted means that there are no circumstances under which heirs of a decedent can protect their right in the property of a deceased ancestor if they have failed to have his estate administered within one year. It is true that in some of our decisions (e. g., Houdashelt v. Sweet, 163 Kan. 97, 180 P. 2d 604, and Gebers v. Marquart, 166 Kan. 604, 203 P. 2d 125), in order to uphold the purposes of the probate code and plain legislative intent in its enactment to unify administration and expedite the closing of estates, we have held that an action by heirs-at-law to set aside a deed, containing no limitations or restrictions, from a decedent to another of his heirs-at-law on grounds of fraud, where that instrument has been placed of record and the claiming heirs knew or in law were bound to know of the conveyance, is tantamount to a claim or demand to a portion of the decedent’s estate and must be filed in the probate court within the time specified in the non-claim section of the code (G. S. 1947 Supp. 59-2239). Even so, the decisions above cited, and others not mentioned but susceptible of the same construction, do not go to the extent or have the force and effect indicated by appellees. In the interest of clarity we feel impelled to point out that none of them goes so far as to hold, that where assets of an estate with or without administration and absent knowledge express or implied on the part of heirs-at-law, have been fraudulently concealed and secreted or for any other reason have escaped administration because not known to be part of the assets of an estate, there cannot be an opening up of administration proceedings in an estate that has been administered and closed or administration of an estate on which there has been no administration at all to the end that all assets thereof can be ascertained and determined. This notwithstanding there has been no administration of the involved decedent’s estate within one year after the date of his death.
The judgment of the district court is reversed with directions to dismiss the action. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a producer and seller of raw milk to enjoin the officials of the city of Kansas City, from enforcing the provisions of a milk ordinance.
A restraining order was issued at the commencement of the action. Following the ruling on motions leveled against the petition plaintiff filed his first and second amended petitions. Following the filing of an answer plaintiff submitted his motion for a temporary injunction on the law without the introduction of evidence. Defendants then moved to dissolve the restraining order and to deny a temporary injunction for the reason that in the absence of testimony plaintiff was not entitled to a temporary injunction. The court reserved its ruling on defendants’ motion. Plaintiff then moved for judgment on the pleadings on the ground defendants’ answer failed to constitute a defense and that the admissions contained therein justified the granting of judgment and a temporary injunction. The court denied plaintiff’s motion for judgment on the pleadings and offered to hear evidence in support of the temporary injunction if plaintiff desired to offer it. Counsel for the respective parties agreed plaintiff would testify he was engaged in the production of raw milk and had a milk route in Kansas City. Plaintiff declined to introduce evidence. Having denied plaintiff’s motion for judgment on the pleadings the court dissolved the restraining order, denied a temporary injunction and advised the case would stand for hearing upon its merits when the issues were completed by the filing of a reply, at which time the matter of a permanent injunction would be determined.
No reply was filed. No further evidence was introduced and plaintiff has appealed. He contends the district court erred (1) in its decisions and judgment rendered (2) in dissolving the restraining order (3) in overruling his motion for a temporary injunction and (4) in overruling his motion for judgment on the pleadings and admissions made by defendants in open court.
The answer to the first contention turns on the merits of the remaining contentions. We shall consider them in the order stated.
Does an appeal lie from alleged error No. 2? There can be no appeal except as authorized by statute. While there may be an appeal from an order that grants, refuses, vacates or modifies an injunction under the provisions of G. S. 1935, 60-3302, or from an order discharging or modifying a temporary injunction, G. S. 1935, 60-3331, there is no provision in the civil code for an appeal from an order dissolving a mere restraining order. Nor is an order dissolving a restraining order a final order from which an appeal lies. Some of the many cases determining these questions are Crawford v. Firmin, 143 Kan. 794, 57 P. 2d 465; Allen v. Glitten, 156 Kan. 550, 553, 134 P. 2d 631.
A mere restraining order is not an injunction, either temporary or permanent. (Allen v. Glitten, supra, p. 552.) Plaintiff requested the court to fix a time not exceeding ten days in which plaintiff could file a notice of appeal and to stay the proceedings under the restraining order until the appeal was disposed of, contending G. S. 1935, 60-3331, provided for such a stay. The court ruled the section was not applicable to the order dissolving a restraining order. The section applies to an appeal from an order discharging or modifying an attachment or temporary injunction and not to an order dissolving a restraining order. (Crawford v. Firmin, supra; Allen v. Glitten, supra.) It follows appellant’s second contention cannot be sustained.
What about the third contention? An order refusing to grant an injunction is appealable. (G. S. 1935, 60-3302.) For clarity of reasoning it may be well to remember the court had not refused to-grant a permanent injunction. A ruling on that question was expressly reserved until the hearing of the case on its merits. Such a hearing did not materialize for the reason already indicated, namely that appellant stood on the court’s order overruling his motion for judgment and for a temporary injunction on the pleadings and the admissions of appellees.
The issue presented here is, therefore, whether the trial court was compelled, as a matter of law, to grant a temporary injunction by reason of the pleadings and admissions of appellees. The answer requires first an examination of the pleadings. Before doing that it should be stated the petition challenged the constitutional validity of various provisions of the city’s new milk ordinance. It also challenged the validity of some provisions on other grounds. We need not presently analyze these various contentions.
Appellees insist appellant can challenge only such ordinance provisions as directly affect him and not another. It is well established that a party bringing an action in his individual capacity is not the champion of any rights except his own. (11 Am. Jur., Constitutional Law, §111, pp. 752-753; 16 C. J. S., Constitutional Law, § 76, pp. 161-162; Henneford v. Silas Mason Co., 300 U. S. 577, 81 L. Ed. 814, 57 S. Ct. 524; Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461, 89 L. Ed. 1725, 65 S. Ct. 1384; Euclid v. Ambler Realty Co., 272 U. S. 365, 395, 71 L. Ed. 303, 47 S. Ct. 114; West v. City of Wichita, 118 Kan. 265, 267, 234 Pac. 978; In re Estate of Casey, 156 Kan. 590, 599-600, 134 P. 2d 665.) We are therefore concerned only with averments of the petition which disclose appellant is affected by the ordinance.
Appellees further contend that before a private litigant may raise a question concerning the validity of an act he must show the act has been, or is about to be, applied to his injury and thus would deprive him of a constitutional right. That is true. The principle has special force where constitutional invalidity of an act is charged. Absent injury to himself a private litigant has no footing upon which to raise the question of invalidity of an act. (16 C. J. S., Constitutional Law, §76, pp. 161-162; Rosenthal v. New York, 226 U. S. 260, 270, 57 L. Ed. 212, 33 S. Ct. 27; Rindge Co. v. Los Angeles County, 262 U. S. 700, 67 L. Ed. 1186, 43 S. Ct. 689; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 66 L. Ed. 239, 42 S. Ct. 106; Boynton v. Fox West Coast Theatres Corporation, 60 E. 2d 851.)
In the Boynton case, supra, it was said:
“But the attack on the constitutionality of the statute must be real and substantial and must at least present a fairly debatable question; the right alleged to be invaded or threatened must be clear [citing cases]; and facts from which it will appear that the circumstances are exceptional and the ‘danger of irreparable loss is both great and immediate’ must be clearly and fully set forth.” (p. 854.)
With these basic principles in mind our first problem is to examine the pleadings in order to ascertain whether they admit compliance with the ordinance by appellant would result in his injury.
With few exceptions every section of each paragraph of the last petition was answered separately by appellees. In addition to specific denials in the separate paragraphs the answer contained a general denial of all allegations in the petition not theretofore admitted. The principal averments relating to appellant’s injury, if any, resulting from the contemplated enforcement of the new ordinance that require our particular attention are contained in paragraphs four and five of the last petition. Paragraph four reads:
“4. Plaintiff further states that he has complied with all legal and lawful ordinances of the City of Kansas City, Kansas, adopted prior to the adoption of Ordinance No. 35494, and the reasonable rules, laws and regulations adopted by said city, and that the milk produced and sold by him is of excellent quality, complies with all of the requirements of the state laws of the State of Kansas with reference to purity and quality; that such milk produced and sold by plaintiff is not pasteurized, but in the event the pasteurization provisions of said Ordinance No. 35494 are declared valid he will be compelled to comply therewith or cease doing business; that plaintiff has invested large sums of money in producing said milk, in the purchase of cows, construction and maintenance of daily barns and dairy milk equipment, and conducts said business in the most sanitaiy condition and in conformity with all of the laws of the State of Kansas relating to the production and sale of raw milk.”
Appellees’ answer thereto reads:
“4. Defendants for their answer to paragraph 4 of plaintiff’s second amended petition state that defendants deny the allegations contained in said paragraph 4. Defendants for further answer to paragraph 4 state that the plaintiff has been engaged in the business of producing raw milk and that the agents of the defendants have taken samples of said raw milk and tested the same and that said raw milk is of good quality and in most instances the tests complied with all the ordinances of the City of Kansas City, Kansas, regulating the production of raw milk, and the state laws regulating the production of raw milk, including the provisions of Ordinance No. 35494.” (Our italics.)
It will be observed the answer does not admit appellant has invested large sums of money in producing milk or that if the new ordinance is declared valid appellant will be compelled to cease doing business. The denial in that paragraph of the answer and the general denial contained in a subsequent portion of the answer put in issue every allegation not admitted. Moreover if the allegations in paragraph four of the petition could be construed as implying injury would result to appellant the injury stands denied.
Paragraph five of the petition alleges;
“5. Plaintiff further states that since the adoption of said ordinance he has been notified by the Director of Health and the agents and servants of the defendants, that he will not be permitted to sell raw milk within the confines of Kansas City, Kansas, and will be permitted to sell no milk of any kind or character to his large number of customers residing in said city or to the people residing in Kansas City, Kansas, regardless of its purity and its production, under the most sanitaiy conditions, and regardless of the fact that it is free from diseases of any kind or character, unless such milk is pasteurized and the production thereof is in conformity with all of the provisions of said ordinance, before being offered for sale to the inhabitants of Kansas City, Kansas, though the production and handling of said milk fully complies with all of the legal and lawful provisions of the laws of Kansas, and that if he attempts so to do, said officers and agents of the defendants will prevent him from so doing.”
The answer to that paragraph of the petition states:
"5. Defendants for their answer to paragraph ' 5 of plaintiff’s second amended petition state that defendants admit that under the provisions of Ordinance No. 35494, plaintiff will not be permitted to sell raw milk to ultimate consumers, grocery stores, drug stores or restaurants, or to sell raw milk to any person or corporation from which said raw milk might pass into the hands of ultimate consumers within the City of Kansas City, Kansas, except for the purpose of pasteurization; and if plaintiff attempts to do so, the officials and agents of the defendant City will institute criminal proceedings against the plaintiff. That said criminal proceedings will not be instituted during the time the defendants are restrained by the court in the above entitled action, and defendants do not know and have no way of knowing whether it will be necessary to .institute criminal proceedings at a later date. Defendants deny each and every other allegation not heretofore admitted contained in said paragraph 5.”
Here again the petition contains no direct averment appellant was or would be injured by enforcement of the ordinance. If, however, the allegations of that paragraph of the petition be construed as implying injury or damage would result the injury is denied.
Other averments to the effect appellant would be required to spend large sums of money in order to comply with the ordinance and would be compelled to sell and dispose of his dairy cows or sell milk at reduced prices to his injury were not admitted but were put in issue under appellees’ denial.
In view of the specific denials contained in separate paragraphs of the answer and appellees’ general denial we find no admission in the answer that enforcement of the ordinance would actually result in injury to appellant. Whether appellant could have established injury by testimony is not the question now. The sole issue is whether the pleadings admitted such injury. We think they did not. The only oral admission made by appellees on the hearing for a temporary injunction was that appellant would testify he was engaged in the production of raw milk and had a milk route in Kansas City. The admission he would so testify did not establish injury resulting from enforcement of the ordinance.
This decision, however, need not be rested on the sole ground the pleadings failed to establish injury to appellant. Assuming, however, some resulting injury had been disclosed by the pleadings, was the district court compelled to temporarily enjoin the enforcement of the ordinance? No final hearing was had on the question of a permanent injunction. The reason for that was appellant stood on his motion for judgment on the pleadings and admissions. An injunction, temporary or permanent, ordinarily may not be sought as a matter of strict right. Its granting or refusal ordinarily rests in the sound discretion of the court under all the facts and circum stances of the particular case. (Olmstead v. Koester, Treasurer, 14 Kan. 463; Railway Co. v. Shriver, 101 Kan. 257, 166 Pac. 519; Atchison, T. & S. F. Rly. Co. v. Hamilton, 130 Kan. 685, 689, 288 Pac. 560; Emporia Loan & Inv. Co. v. Dailey, 141 Kan. 845, 44 P. 2d 288; Allen W. Hinkel Dry Goods Co. v. Wichison I. Gas Co., 64 F. 2d 881.)
The court may be justified in refusing a temporary injunction until the final disposition of the case on its merits even though the preponderance of the evidence on an application favors such an order. (Olmstead v. Koester, Treasurer, supra, p. 467.) The granting or refusing of an injunction is a subject of equitable cognizance over which courts have a large discretion. (Railway Co. v. Shriver, supra, p. 258.) So in the Hinkel case, supra, it was said:
“Furthermore, an. order granting a temporary injunction pending final hearing, is within the sound discretion of the trial court, and upon appeal such an order will not be disturbed, unless contrary to some rule of equity or plainly the result of an improvident exercise of judicial discretion, [citing cases.]” (p. 884.)
At this juncture we must assume the instant milk ordinance, valid or invalid, was enacted as a public health measure. The ordinance, therefore, is a matter of public concern. From the record, as previously indicated, it appears the court concluded it would be wise to have a trial on the merits of the case in which evidence would be presented pertaining to the various provisions of the ordinance before undertaking to interfere with the enforcement of such an ordinance. That conclusion was in harmony with the decision in Emporia Loan & Inv. Co. v. Dailey, supra, where it was held:
“ . . . a preliminary injunction is not a matter of right, that the granting of such an order rests largely in the discretion of the court or judge, and that before one is granted there should be such a showing of the facts that the court or judge acts with a full understanding of the nature of the controversy and the effect of the order.” (Syl.)
There is no indication such a final hearing on the merits could not have been had promptly had appellant desired it. The court could then have acted with a full understanding of the issues, facts and circumstances. The question now, however, is not whether the court might have granted a temporary injunction but whether it committed reversible error in denying it. We think we would not be justified in concluding the district court abused sound judicial discretion in denying a temporary injunction on appellant’s motion for judgment on the pleadings and the oral admissions of appellees.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This proceeding is submitted to the court upon briefs and oral argument for the determination of certain legal questions upon facts stipulated by the parties as follows:
“It is stipulated as between the parties that, subject to the Oourt’s approval, this action be decided upon certain questions of law presented by the pleadings. As all the questions presented by the pleadings are not so submitted, the parties agree that for the purpose of decision the pleadings be considered, as containing only facts that present the questions now to be stated.
“A statement of facts, which the parties agree shall be considered with the pleadings, is as follows:
“The action is in behalf of the state, in the character of quo warranto, against Kansas Bostwick Irrigation District No. 2 and it officers, and Geo. S. Knapp, as Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture.
“A petition was filed with the defendant Knapp, in his official capacity, on July 18, 1948, under Sec. 42-701 G. S. Supp. 1947, seeking the organization, establishment and authority to incorporate the district, for the purposes, among others there recited, of cooperating with the United States as provided under the Federal Reclamation Laws and other acts of Congress relating to water conservation and flood control, in the construction of irrigation and drainage works, the purchase, extension, operation and maintenance of such works, the irrigation of irrigable lands in the district, and the assumption of obligations on the part of such district as principal or guarantor of indebtedness to the United States on account of said works.
“The petition was signed by 265 qualified landowners, owning 33,735 acres of irrigable land in the district there proposed; there being, in all, 483 qualified owners, owning 49,554 acres of irrigable land therein.
“Accompanying the petition, there was also filed an application, under Sec. 82a-709 G. S. Supp. 1947, for a permit to appropriate waters from the Republican River for irrigation of the lands of the district.
“Following notice, a hearing was had before the chief engineer on September 21, 1948, at which were presented objections of some 60 owners of land in the district. By appropriate findings and orders, the chief engineer granted the petition, fixing the boundaries of the district as set forth in the petition and approved the application for diversion and appropriation from such river, of 130,000 acre feet of water per calendar year, for such purposes, at a rate not exceeding 827 cubic feet per second.
“No app'eal was taken from the action of the chief engineer and transcript of the proceedings was filed with the Secretary of State on October 26, 1948. Articles of incorporation were issued and recorded, and thereafter the district elected its officers. It issued temporary warrants to provide funds for preliminary organization expense under 42-709 G. S. Supp. 1947.
“As is commonly known, the Republican River and its tributaries flow through a part of Colorado and Nebraska. Its main stem enters and recrosses the Nebraska-Kansas state line (the north line of Jewell County, Kansas) several times then crosses north central Kansas, a distance of some 135 miles, to its confluence with the Smoky Hill River, near Junction City, Kansas. There are many persons who have owned riparian lands below the district, for a number of years prior to 1945.
“The district lies along both banks of the Republican. It extends from the Kansas-Nebraska state line southward some 19 miles on the west side of the river, and about 12 miles on the east side. By far the greater part lies in Republic County. Its width varies; it extends up to about 10 miles west of the river, and has an average width, west of the river, of about 6.5 miles. Its width east of the river extends to a little over two miles and has an average width east of the river of about one and one-half miles.
“The proposed district ’contains some 87,850 acres, of which 49,554 acres, or about 57 percent thereof, are classed as irrigable by the Reclamation Bureau. Approximately 43 percent of the irrigable land is designated by the Bureau as Class 1, which requires little preparation for irrigation. About 49 percent thereof is designated as Class 2, which requires some preparation, because of its soil or topographic features and the remaining 7 percent is designated as Class 3, which for the same reasons requires considerable preparation, although still considered as economically feasible. Of the about 38,300 acres of non-irrigable land in the district, which constitutes about 43 percent Of the area of the district, about 1,000 acres thereof lies in the bed of the Republican River and the remainder is scattered over the district in small parcels, as along the beds of creeks and draws, along ridges and other high areas, and just inside the outer boundary or perimeter of the district, which results from following subdivisions of the original government surveys. The irrigation plan includes, however, later irrigation of much of that now classed as nonirrigable, by means not immediately available.
“The Republican River Compact, recently concluded as between Kansas, Nebraska and Colorado (Chap. 82a, Art. 5, G. S. Supp. 1947), reflects that the average annual flow of the Republican River at its lowest crossing of the Kansas-Nebraska State line, undepleted by man, is 478,900 acre feet of water. Remaining after deduction of the allocations to Nebraska and Colorado, for irrigation and other uses, is 190,300 acre feet, that is allocated to Kansas by the Compact. It is from this 190,300 acre feet of water allocated that the 130,000 acre feet is to be taken annually by the district. As hereinafter shown the planned diversion points are located so near the State line that any local surface drainage to the river, in Kansas, above the diversion, is so inconsequential that it may be now disregarded.
“The Government has constructed what is known as the Harlan dam across the Republican River, about 80 miles west of the district, in Nebraska, to impound water for flood control and other purposes, including irrigation. The plan is to divert water from the river by means of two diversion dams; one near Guide Rock, Nebraska, below the Harlan dam, to provide water by means of canals, for a part of the portion of the defendant district lying west of the river, and another district just across the state line, in Nebraska. A second diversion dam is planned in and near the north end of the defendant district, to be known as the Hardy dam, to divert water into canals serving that part of the district east of the river, and the remainder of the part west of the river. The federal government proposes to erect the dams, main canals and distribution works, if the district will contribute under a contract with the federal government over a period of years toward maintenance of the works, and to the extent it is able, toward the cost of the works, by means of special assessments and water charges collected in the district. The directors have not by resolution or otherwise, yet committed the district to the payment of any specific sum for the district’s contribution toward construction of the works, and the engineer’s estimate of cost stated in paragraph 11 of the petition are not binding on the district.
“The greater portion of the lands in the district, for which the district proposes to provide irrigation water from the river, consists of lands of persons whose property does not touch the river, and lie from a fraction of a mile to as much as nine miles from the river.
“The proposed diversion of water for irrigation by the district will result in substantially reducing and diminishing the annual flow of the river thus allocated to Kansas, below the diversion points, and thus infringe upon the rights of the owners of riparian lands lying in and downstream from the defendant district. As it is not possible to state the extent of injury, if any, to lower riparian lands, and each tract will present its own problem, as affected by subsurface waters, surface drainage below the diversion points, return flow of irrigation waters by surface and subterranean means, and other local considerations; the matter is here submitted upon the assumption that substantial injury will result. The defendants deny that any ultimate substantial injury to riparian owners will actually result, and hence such assumption, made for the purposes of this decision only, shall not be taken as a general admission of such fact, by the defendants.
“Since the approval of application for appropriation by the defendant district three other similar approvals have been granted, for 98, 80 and 120 acre feet of water annually, respectively.
“Prior to the approval of the chief engineer of the application for appropriation of water by the defendant district there were four approvals entered for water appropriation from the river by individual owners of riparian lands; two granted in 1943, without specifying the amount, one was granted in 1947 for 100 acre feet of water annually, and one in 1948 for 226 acre feet annually. All were for irrigation, and by owners of land downstream from the defendant district.
“The chief engineer has not completed gathering data, or made any orders pursuant to Sec. 82a-704 G. S. Supp. 1947, nor have any orders been entered by him under Sec. 82a-708 and 82a-715 fixing the amount of water or priority of right with respect to the two applications made in 1943.
“The federal government, through its appropriate agencies, has declined to proceed with the erection of diversion dams, canals and distribution works unless and until it is judicially determined that the district has been lawfully incorporated, and that it may lawfully divert, appropriate and so use the water covered by approval of its application for appropriation as granted by the chief engineer. Hence this action.
“Questions Submitted for Determination
“1. Are Sections 82a-701 to 82a-720 G. S. Supp. 1947 unconstitutional as a taking of pre-existing vested riparian rights of downstream owners?
“2. Are Sections 82a-701 to 82a-720 G. S. Supp. 1947 unconstitutional as providing for the diversion and delivery, upon payment of water charges, of water from the river to irrigate lands that are not riparian in character, i. e., lands that do not touch the river and are owned by persons whose land holdings are all at least several miles from the river, as against and without any acquisition of the rights of lower riparian owners?
“3. Are Sections 82a-701 to 82a-720 G. S. Supp. 1947 unconstitutional as requiring an owner of riparian lands to affirmatively apply to and obtain the approval of the chief engineer for the use of river water in order to preserve such rights; or in case of use on or within three years prior to June 28, 1945, to appeal from an order of the chief engineer, made without hearing and without notice except subsequent mailing thereof?
“4. Are Sections 82a-701 to 82a-720 G. S. Supp. 1947 unconstitutional as improperly conferring legislative or judicial powers upon the chief engineer of water resources?
“5. Are Sections 42-701 to 42-704 G. S. Supp. 1947 unconstitutional as improperly conferring legislative or judicial powers upon the chief engineer of water resources?
“6. Does the inclusion of non-irrigable lands in the district to the extent of approximately 43% of the total area thereof amount to arbitrary action and abuse of discretion on the part of the chief engineer, so as to be in contravention of constitutional provisions?
“7. Are the provisions of Section 42-709 G. S. Supp. 1947 unconstitutional as providing an improper taxation of all taxable property in the district?”
In view of the above stipulation it is not necessary to analyze the pleadings filed herein by the respective parties, but the same are hereby referred to for their specific allegations.
Before talcing up the specific questions submitted for determination by the stipulation we must take note of the fact- that the defendant, Kansas Bostwiclc Irrigation District No. 2, is but a small part of the large project of the federal government authorized by the Act of Congress of December 22, 1944 (58 Stat. 887), pursuant to which the United States is constructing the Missouri River Basin Project as set forth in House Document 475 and Senate Document 191, as revised and coordinated by Senate Document 247, all of the 78th Congress, second session. (See 43 U. S. C. A. § 371 et seq., including the above and related Acts of Congress.) Broadly speaking, and as far as here pertinent, the federal government by these acts has undertaken to put the waters of the Missouri river and its tributaries to beneficial uses by constructing dams and levees which would improve the uniform flow of water for navigation, prevent the disastrous effects of floods, provide low cost electric energy, furnish water for irrigation and for security against drouth, aid municipal water supplies, and furnish places for recreation and for the conservation of wild life. The area of the project is the entire valley of. the Missouri river and its tributaries and includes the part of the state of Kansas north of the southern drainage area into the Kansas river and its tributaries, all of the states of Nebraska, North and South Dakota, the parts of Montana and Wyoming east of the Continental Divide, and northeastern Colorado, the drainage of which is to the tributaries of the Missouri river. That Congress had authority to enact such legislation is thoroughly attested and is not questioned here. Under U. S. Const., art. 6, ¶ 2, these acts of Congress become a part of “the supreme Law of the Land and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In addition thereto the states of Colorado, Kansas and Nebraska, with the consent of Congress, have entered into what is known as the Republican river compact for the beneficial consumptive use of the waters of the Republican river. (See G. S. 1947 Supp. 82a-518, for its terms and the map showing its location.) Such a compact is binding upon the citizens of each state and on the judicial and the executive branches of the state government. (See 59 C. J. 37 and authorities there cited.) In June, 1944, this court decided the case of State, ex rel., v. Board of Agriculture, 158 Kan. 603, 149 P. 2d 604, in which it was held:
“We have no statute which authorizes the Division of Water Resources of the State Board of Agriculture or its chief engineer to regulate, allocate or distribute, or otherwise interfere with the use and consumption of underground waters, or to conduct a hearing upon the application of anyone desiring to use such waters for the allocation, distribution or regulation thereof.”
The opinion referred to many of our earlier cases pertaining to irrigation and the common-law rights of riparian owners and spoke of such rights being governed by the common law, except as they had been modified by statute. In August, 1944, the governor appointed a committee which included George S. Knapp, chief engineer of the Division of Water Resources, one of the defendants herein, as chairman, the attorney general, and other able men who had given much study to the subject. In December of that year the committee made its printed report to the governor. This included a synopsis of our statutes and decisions pertaining to waters, irrigation, and the rights of riparian owners, and expressed the view that our laws should be adjusted to present needs, from which we quote in part:
“The Committee believes that conditions, and the needs of the people in Kansas, have changed so greatly since the early adoption of the common law as applied to water use, that the time has come to modify the common law to the extent necessary to set up a system of appropriation, based on priority of right, but without depriving the common-law owner of relief by proper compensation for limitations placed on unused common-law rights.
“It believes that unused water cannot wisely be held in perpetuity for a common-law owner who may never have use for it, without resulting in underdevelopment permitting the water to flow out of the state and on toward the ocean, as an economic waste and loss of a valuable natural resource.
“It believes two things are needed, (1) to establish the right of appropriation under the rule of priority of right, and (2) to establish adequate administrative control over the appropriation of water to prevent overdevelopment of any source of supply with resulting injury to established uses.”
After further discussion the committee recommended the enactment of the statute. Governor Schoeppel, in his message to the legislature of 1945, referred to this committee and stated that it “made a report and certain recommendations that I deem wise, expedient, and necessary for consideration by this session of the Legislature.” The result was the enactment of the proposed act recommended by the committee, which became chapter 390, Laws of 1945, now G. S. 1947 Supp., chapter 82a, article 7.
We think it not out of place to note that recently in Cow Creek Valley Flood Prevention Ass’n v. City of Hutchinson, 166 Kan. 78, 88, 200 P. 2d 299, we spoke of the very considerable progress of the law with reference to flood control. In that case and in Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P. 2d 530, we approved the federal and state statutes for flood control of the Arkansas River, and in Heise v. Schulz, 167 Kan. 34, 41, 204 P. 2d 706, we took notice of the analysis of the two common-law theories of riparian rights. This made it clear that the law of riparian rights originated in this country and did not find its way into the English cases until 1851. We also take note of the fact that if the statutes here under consideration make any change in the common-law rights of riparian owners our statute (G. S. 1935, 77-109), effective since 1868 (Gen. Stat. 1868, ch. 119, § 3) authorizes the legislature to do so.
Chapter 390, Laws 1945, was entitled “An Act to conserve, protect, control and regulate the use, development, diversion and appropriation of water for beneficial and public purposes, and to prevent waste and unreasonable use of water, . . .” amending and repealing certain prior sections of our statute. Its pertinent provisions may be summarized or quoted as follows, using section numbers in the 1947 Supplement (ch. 82a, art. 7):
701 defines (a) “Person”; (6) “Chief Engineer”; (c) “‘Domestic uses’ means the use of water for household purposes, the watering of livestock, poultry, farm and domestic animals and the irrigation of gardens and lawns”; (d) “ ‘Vested right’ means the right to continue the use of water having actually been applied to any beneficial use at the time of the passage of this act or within three years prior thereto, to the extent of the existing beneficial use made thereof, and shall include the right to take and use water for beneficial purposes where a person is engaged in the construction of works for the actual application of water to a beneficial use at the time of the passage of this act, provided such works shall be completed and water is actually applied for such use within a reasonable time thereafter”; (e) defines “Appropriator,” and (/) “Appropriation.”
702. “All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein prescribed.”
703. “Subject to vested rights, all waters within the state may be appro priated for beneficial use as herein provided. Nothing in this act contained shall impair the vested right of any person except for nonuse.”
704. Authorizes and requires the chief engineer to collect data respecting the vested rights of all parties using water for beneficial purposes other than domestic, to make a record of the same in his office, and to make an order determining and establishing the rights of all persons making beneficial use of water, and to notify the water users thereof, which order may be appealed from to the district court.
705. “No person shall have the power or authority to acquire an appropriation right to water without first obtaining the approval of the chief engineer: Provided, however, That this section shall not apply to persons using water for domestic uses.”
706. “The chief engineer is hereby authorized and empowered, and it is hereby made the duty of such officer, to control, conserve, regulate and allot the water resources of the state for the benefits and beneficial uses of all of its inhabitants in accordance with the rights of priority of appropriation.”
707. “(a) Surface or ground waters of the state may be appropriated as herein provided. Such appropriation shall not constitute absolute ownership of such water, but shall remain subject to the principle of beneficial use. (b) Where appropriations of water for different purposes conflict they shall take precedence in the following order, namely: Domestic, municipal, irrigation, industrial, recreational and water power uses, (c) As between appropriators, the first in time is the first in right. The priority of the appropriation shall date from the time of the filing of the application therefor in the office of the chief engineer, (d) Appropriation in excess of the reasonable needs of the appropriators shall not be allowed.”
708. “The chief engineer shall determine the priorities of right to the use of the waters of the state, as to all persons who have since May 5,1941, and who shall hereafter make application for a permit or certificate to divert, appropriate and use water. An appeal may be taken from any decision or order of the chief engineer to the district court in the county of his official residence or in the county in which the point of diversion is located. All such appeals must be filed within thirty days after date of such decision or order.”
709. 710 and 711 provide for applications for the beneficial use of water and the procedure for handling them by the chief engineer.
712 deals with the approval or disapproval of the application and provides for remedy by injunction in certain cases.
713 to 715 are procedural provisions.
716. “If any appropriation, or the construction and operation of authorized diversion works results in an injury to any common-law claimant, such person shall be entitled to due compensation in a suitable action at law against the appropriator for damages proved for any property taken. An appropriator who has acquired a valid right under the statute may prevent, by injunction, a subsequent diversion by a common-law claimant of private rights without being required to first condemn possible private rights. An appropriator shall have right to injunction relief to protect his prior right of beneficial use as against use by an appropriator with a later priority of right.”
717. “All appropriations of water must be for some beneficial purpose. The right of the appropriator and his successors to the use of water shall terminate when he ceases for three years or more, to use it for the beneficial purposes authorized in his permit or certificate.”
718 outlines a forfeiture procedure with appeal to the district court.
719 to 722 need not be specially noted.
Shortly stated, G. S. 1947 Supp. 42-701 to 42-704 provide that the majority of the qualified owners of irrigable lands within a proposed irrigation district may petition and make application to the chief engineer of the division of water resources of the state board of agriculture for the organization, establishment and authority to incorporate an irrigation district under the provisions of the act; that such irrigation districts may form or cooperate with the United States under the federal reclamation laws, or any act of Congress which shall permit the performance by the United States of work in this state for the construction of irrigation works, including drainage works, or for the purchase, extension, operation or maintenance of construction works, or for the assumption as a principal or guarantor of indebtedness of the United States on account 'of district works. The procedure is outlined for the hearing of the petition by the chief engineer and his approval or disapproval thereof, and for an appeal from his decision to the district court of the county, where a further hearing may be had.
If the district is approved and the petitioners authorized to incorporate the same there are further provisions for the election of a board of directors and outlining their duties. In connection with that section, 42-709 authorizes the board to issue irrigation district warrants for the purpose of financing the preliminary work of the board and its engineers, attorneys, agents and employees and other necessary incidental expenses, and to agree that the ad valorem taxes first collected by the district shall be used in payment of such warrants, and authorizing the board annually to levy and collect a general tax not exceeding two mills on the dollar on all taxable property within the district for the purpose of paying the warrants and the improvements to be made.
We do not find it necessary to write a treatise on the law of waters. Neither do we find it necessary to recite and comment upon each of the many cases cited by counsel, though we have ex amined and considered them. We shall limit our decision, as nearly as possible, to the questions submitted for our decision.
We must start with the realization that all the improvements being made or contemplated for the beneficial use of the waters of the Republican river are authorized by acts of Congress and the Tri-State Compact, both of which are binding upon the state and all citizens or owners of property within the state. Hence, they are in no position to complain of the building of the Harlan dam to impound water for flood control and irrigation or other works done under such acts of Congress or by compact.
We next observe that no complaint is made of section 702, which declares: “All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein provided.” This is the heart of the statute. The rest of it treats of details and procedure. It forms the basis for a different approach 'to the solution of questions concerning water rights than we have had in some of our opinions. Heretofore we have approached the questions largely on the basis of individual interest alone. Under this declaration and other provisions of the act we now approach them upon the basis of the interest of the people of the state without losing sight of the beneficial use the individual is making or has the right to make of the water. Unused or unusable rights predicated alone upon theory become of little if any importance. Broad statements found in some of our opinions, such as “Every man through whose land a stream of water runs is entitled to the flow of that stream without diminution or alteration” (Shamlejfer v. Peerless Mill Company, 18 Kan. 24), must be disregarded or modified to harmonize with this declaration. The change is an appropriate one for the legislature to make. Individuals do not live alone in isolated areas where they, at their will, can assert all of their individual rights without regard to the effect upon others.
Considering the portions of the statute dealing with details and procedure we find nothing seriously wrong with them. We have difficulty in seeing that the owner of land in Kansas riparian to the Republican river has a vested interest in floodwaters of the river impounded in the Harlan dam, eighty miles or more from his property. If he thinks he has such rights, and they have been damaged by the impounding of the water in the dam and its use for irrigation in Nebraska and Kansas, the statute gives him a right to bring a suit for such damages. The suggestion that he has such rights as must be acquired by eminent domain is untenable. The suggestion that such an owner may be damaged by the use of such water for irrigation upon lands several miles from the river can,not be sustained. If the state is to control and regulate the waters •of the state other than for domestic use it must ascertain what other use is being made of the water by riparian owners, and the act .is not invalid because it authorizes the chief engineer to ascertain what other use is being made of the property and to require the •owner to furnish a statement of such use and to obtain the approval of the chief engineer thereto, with the right of the owner to .appeal to the district court from the determination of the chief •engineer. Neither of the provisions (G. S. 1947 Supp., ch. 82a, art. 7), nor those in G. S. 1947 Supp. 42-701 to 42-704, confer legislative power upon the chief engineer. In the formation of such an irrigation •district the fact that it includes some nonirrigable land, or land which is not presently irrigable, is not a material defect. The provision that some nonirrigable land within the district may be taxed for preliminary expenses is not invalid.
The result is that all of the questions submitted to us for determination should be and they hereby are answered in the negative. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order overruling a demurrer to the petition in an action for damages sustained by plaintiff (appellee) in an intersection collision in the city of Wichita.
Rather than attempt to summarize the allegations of the petition it will be set out in full with the exception of that portion relative to the injuries sustained by plaintiff and concerning which there is no dispute in this appeal.
“Petition.
“Comes now the plaintiff, Nancy Beecher, and for her cause of action against the defendants alleges and states:
“1. Plaintiff is a citizen and resident of the State of Minnesota and the defendants, Proctor Ritchie, Dean Ritchie and Dave Ritchie, are citizens and residents of the State of Kansas.
“2. On or about the 9th day of April, 1947, the defendants, Proctor Ritchie, Dean Ritchie and Dave Ritchie, were engaged as co-partners in the operation of a business known as Ritchie Bros. Construction Company and on said day the said partners and each of them entered into a contract with the City of Wichita, Kansas, a municipal corporation, for the paving of a certain portion of Seventeenth Street, in the City of Wichita, Kansas, lying to the east and west of Mosley Avenue in the City of Wichita, Kansas. Plaintiff does not know the exact area of paving embraced in said contract but alleges that said paving contract covered a distance on Seventeenth Street of at least one block in each direction from the intersection of Seventeenth Street and Mosley Avenue. The parts of said contract material to the cause of action herein alleged are as follows:
“ ‘Second party further agrees that at all times during the prosecution of said improvement they will maintain proper safeguards, barricades, and lights on the work and every portion thereof to insure the highest degree of safety to the traveling public, and that they will hold the City of Wichita harmless in all suits for damages brought against either of the parties to this contract on account of the negligent acts, omissions or default of the second party, their agents or servants in the prosecution of the work on said improvement. ...
“ ‘If, in the prosecution of the work, it shall be necessary to dig up, use or occupy any street and highway or public grounds of said City of Wichita the contractor shall erect and maintain strong and suitable barriers, with warning signs in accordance with the statutes of the State of Kansas, and during the nighttime, lights, such as will effectually prevent any accident or harm to life, limb or property, and shall be responsible for all accidents or damages in consequence of such digging up, use or occupancy of the street, alley, highway or public grounds, which may result therefrom, or which may result from the carelessness of such contractor or his or their agents, employees or workmen or assigns.’
“3. On the 9th day of August, 1947, the defendants were engaged in the construction of the paving and improvements on Seventeenth Street in the area above alleged pursuant to the terms of the contract referred to above.
“Either on the said 9th day of August, 1947, or a short time prior thereto, the exact date of which is not known to this plaintiff but is known to the defendants, it became necessary for the defendants to remove a certain stop sign located at the northeast corner of the intersection of Seventeenth Street and Mosley Avenue, which stop sign was erected for the purpose of protecting traffic on Mosley Avenue and was so situated as to stop vehicles approaching said intersection from the east. Thereafter and at the close of work on the said 9th day of August, 1947, the defendants dismissed their workmen for the evening without placing warning signals of any kind upon said Seventeenth Street for the purpose of warning persons lawfully in the use of said street of the fact that said street was in the process of being repaired or rebuilt. Said defendants further failed to place any barricades at any place upon said street for the purpose of preventing the use of said street by vehicular traffic while said street and improvements were under construction and failed to place lights upon the said Seventeenth Street, all as required by the terms of the contract above referred to. In addition to the failure of the defendants to place warning signals, barricades, or lights upon Seventeenth Street as above alleged the defendants and each of them permitted their workmen to leave their place of employment on the said evening of August 9, 1947, without replacing the stop sign referred to above located at the northeast comer of the intersection of Mosley Avenue and Seventeenth Street even though the defendants knew that the said Seventeenth Street would be used by vehicular traffic during the night of August 9 and morning of August 10, 1947.
“4. In carrying on their operations under said contract the defendants owed a duty to the public in general to carry on said work with specific reference to the degree of care prescribed by the contract referred to above and also owed a duty to the public in general to avoid any conduct which a reasonably prudent person might foresee would place other persons in danger of injury.
“5. At approximately 2:00 o’clock on the morning of August 10, 1947, the plaintiff was a passenger in a 1947 Pontiac automobile being driven in a westerly direction on Seventeenth Street by Glen H. Beecher. As said automobile was being so driven it approached the intersection of Seventeenth Street and Mosley Avenue and at approximately the same time a Ford pickup truck approached said intersection from the south travelling on Mosley Avenue. Said Ford pickup truck was being driven by Huerson <3-Thomas. When the said Pontiac automobile reached a point approximately 50 feet east of said intersection the said Ford pickup truck was then and there approximately 100 feet to the south of said intersection and said Ford pickup truck was approaching said intersection from the left of the driver of the Pontiac automobile in which plaintiff was a passenger. The driver of the said Pontiac automobile believing that he had the right of way at said intersection by reason of the fact that said Ford pickup truck was approaching from his left and for the further reason that the said Pontiac automobile would clearly reach the intersection a safe distance ahead of said approaching Ford pickup truck drove into said intersection at a speed of approximately 20 miles per hour intending to continue west across said intersection on Seventeenth Street. At the same approximate time the driver of the Ford pickup truck approaching said intersection from the south continued into said intersection at a speed of approximately 25 miles per hour. The driver of said Ford pickup truck upon approaching said intersection observed the approach of the said Pontiac automobile but knowing that said Mosley Avenue was a through street under the ordinances of the City of Wichita and that stop signs were required on all entrances thereto assumed that said Pontiac automobile approaching said intersection from the east would stop before entering said intersection and would yield the right of way to him pursuant to the laws of the State of Kansas pertaining to the right of way of vehicles approaching the intersection of two streets. Both drivers rightfully believing they had the right of way at said intersection and each rightfully assuming that the other would yield the right of way to him continued into said intersection and by the time that each driver in the exercise of reasonable care became aware that the other driver was not yielding the right of way it was too late to avoid the collision which inevitably followed. As a result of said collision the automobile in which plaintiff was a passenger was demolished and the plaintiff sustained severe, permanent and painful injuries as hereinafter more specifically alleged.
“6. Plaintiff alleges that the collision above described resulted proximately from the negligence of the defendants and each of them in the following particulars :
“a. In failing to erect and maintain strong and suitable barriers at the entrance to that part of Seventeenth Street under construction.
“b. In failing to warn approaching traffic that the stop sign had been removed.
“c. In failing to replace said stop sign at the close of work on the said 9th day of August, 1947, when the defendants knew or in the exercise of reasonable care should have known that said Seventeenth Street would be used by vehicular traffic the night of August 9 and the morning of August 10.
“d. In creating a dangerous condition by opening the said Seventeenth Street for traffic at a time when the defendants knew that said stop sign had not been replaced and at a time when the defendants knew or in the exercise of reasonable care should have known the said Seventeenth Street would be used by persons unfamiliar with the intersection and without knowledge that said Mosley Street was a through street and that such persons would have no opportunity to protect themselves against the asumption of the right of way by persons using Mosley Street in the belief that traffic on said Mosley Street was protected by stop signs at the intersections thereon.”
The defendants filed a motion to strike all of that part of paragraph 2 with reference to the contract with the city of Wichita and all of paragraph 4 with reference to the degree of care owed by defendants to the general public. This motion was overruled, whereupon the defendants demurred to the petition “for the reason that said petition does not state facts sufficient to constitue a cause of ación against the defendants and in favor of the plaintiff.” The demurrer was overruled and defendants appealed to this court, assigning as their specification of error the overruling of their demurrer to the petition.
In their argument defendants contend that their demurrer is good for the reason that the petition shows on its face that the alleged wrongful acts of the defendants were not the proximate cause of plaintiff’s damage and for the further reason that the contract with the city set up in the petition as a basis for the action cannot serve as the measure of defendants’ liability and their standard of duty and care to the plaintiff, and they argue that the direct and proximate cause of the collision was the action of the driver of the car in which plaintiff was a passenger in entering the intersection in violation of law. They rely on the fact that by ordinance, Mosley, the north-south street, was designated as a through street and traffic on Seventeenth streeet was required to stop and that the act of the defendants in removing the stop sign was therefore not the proximate cause of the collision. They further contend that plaintiff’s cause of action is predicated upon the provisions in the contract between defendants and the city of Wichita which attempts to impose on the defendants a higher degree of care than would otherwise be required by law in the performance of the construction work in question and thus that there is a material deviation from the ordinary standard of care imposed upon defendants in negligence cases.
In support of their argument we are cited to Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669, in which it was held that under the facts of that case the driver was obliged to stop before entering a through street even in the absence of a stop sign. We are also cited to the cases of Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78, and Swan v. Riverside Bathing Beach Co., 128 Kan. 230, 276 Pac. 796, which deal with the question of liability to a third party growing out of an alleged breach of a contract entered into by the city and a second party.
The plaintiff on the other hand argues that the petition states one cause of action — in tort — not contract; that the petition states just as good a cause of action without the allegations concerning the contract with the city and that the only purpose of pleading the contract was to bring out the facual background of the situation and to establish liability of defendants rather than of the city. They further argue that the case of Jones v. McCullough, supra, is not controlling because of the fact that, at the time of the collision in that case the statute simply authorized municipalities to regulate traffic (citing G. S. 1935, 8-122, 8-124, 13-412 and 13-2904) and that in 1937 a general traffic code was enacted applicable not only to highways but to municipal streets as well (citing G. S. 1947 Supp. 8-508, the pertinent provisions of which are as follows:
“ (a) The provisions of this act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from :...(&) Designating any highway as a through highway and requiring that all vehicles stop before entering or crossing the same or designating any intersection as a stop intersection and requiring all vehicles to stop at one or more entrances to such intersections. ...(b) No ordinance or regulation enacted under subdivisions ... (6) ... of this section shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.”
The only question presented to us is whether or not this petition states a cause of action against the defendants. We realize that in passing on this question care should be exerciséd so as not to prejudice the rights of the parties to the action in the trial of the case but a limited discussion of the questions involved is necessary for a decision.
We are not impressed with defendants’ argument that by pleading the contract with the city plaintiff is attempting to hold the defendants to any higher degree of care than would apply in ordinary negligence cases under like and similar circumstances and in our opinion the phrase “highest degree of safety” contained in the contract cannot enlarge or increase the degree of care owed by defendants under the particular facts in question. This contract could not require a degree of care higher than proper under the circumstances. This is an action based on negligence and in our opinion is pleaded as such. The measure of defendants’ duty in this case is to be determined by the law governing negligence cases and not by the provisions of the contract. Under G. S. 1935, 68-121, certain obligations are imposed upon defendants concerning their construction work and the contract with the city merely amounts to a recognition of their already-existing statutory liability. For this and other reasons we do not think that the cases of Warren v. City of Topeka and Swan v. Riverside Bathing Beach Co., supra, are applicable and in view of the enactment of G. S. 1947 Supp. 8-508, above quoted, the rule laid down in Jones v. McCullough, supra, would not be controlling under the facts of this case.
The case of Lyle v. Fiorito, 187 Wash. 537, 60 P. 2d 709, is quite similar to the case at bar and in that case a paving contractor removed a stop sign from an arterial highway in the course of paving operations. The highway was opened for .travel the latter part of August, 1934. The stop sign was replaced but fell down in a day or two and no sign was in place after some date early in September. On September 16, 1934, two vehicles collided in the intersection. The driver of the automobile on the arterial highway assumed that the driver on the intersecting highway would stop and the driver of the automobile approaching the arterial highway, seeing no stop sign, assumed that the vehicle on the arterial highway would yield .the right of way since it was approaching from his left. Actions were filed by the occupants of both vehicles against the county and its paving contractor. Finding that the county had accepted the highway after the paving and had assumed the burden of restoring the sign the jury returned a verdict in favor of the contractor. The jury also found in favor of the separate plaintiffs and against the county. On appeal the judgments were affirmed and the court said:
“. . . Manifestly, the mere designation, of a road as an arterial highway, as such action is placed of record in a state or county office, is not notice in fact to the traveling public. Warning signs have of recent years become very numerous, and are properly and necessarily relied upon to give notice of physical facts which a driver should know. . . . (p. 544.)
“The county pleaded contributory negligence in each case, and this issue was submitted to the jury under proper instructions. We are convinced that it cannot be held, as matter of law, that appellant was entitled to judgment because of contributory negligence. Appellant strenuously contends that one or other of the drivers must have been negligent, and that it should not be held responsible in both cases. The jury, however, were justified in finding that the primary negligence which caused the collision was that of the county, and that if either driver was, or both drivers were, guilty of some negligence, the same did not proximately contribute to the accident.” (p. 546.)
We are of the opinion that the petition in this case stated a cause of action against the defendants and that the demurrer thereto was properly overruled. Even if it should be assumed that plaintiff’s husband was bound to know that Mosley avenue was by ordinance an arterial street despite the absence of a stop sign required by statute the ordinance was not enacted for the benefit of persons in defendants’ position and they are not in a position to rely upon it. In 45 C. J. 971, it is said:
“It has also been, held that a defendant cannot invoke the violation of a statute or ordinance by plaintiff as a defense where such violation is occasioned by his own negligent or unlawful act.”
Other matters raised by the parties in their briefs require no comment in this opinion. All are questions which might very easily arise during the trial of this case for submission to a jury under proper instructions of the court.
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The opinion of the court was delivered by
Parker, J.:
This was an action by a minor, brought by his next friend and father, to recover damages for personal injuries sustained as the result of a fire which occurred at the farm home of his employer where he was employed as a farm hand. The case was tried by a jury which returned a general verdict in favor of the plaintiff upon which, after overruling the usual post-trial motions, the district court rendered judgment. Thereupon defendants appealed. They concede the sole issue on appellate review is whether the trial court erred in overruling their demurrer to the plaintiff’s evidence.
For present purposes, since the pleadings are not in controversy, it will suffice to relate in substance the contents of the petition. It states the defendants, Doyle and' Campbell, on all dates in question were partners doing business at Lakin, Kan., as the Service Oil Company, where they maintained storage tanks in which they kept gasoline, kerosene and other petroleum products for sale and delivered such products when sold to their farmer customers and others through the medium of a rural delivery service operated by them and their employee Guy Laney, also a defendant.
It then charges that sometime prior to September 12, 1945, the date of the occurrence of the events responsible for the institution of the action, the defendants carelessly and negligently permitted their storage tanks and pipes by which they were connected and equipped to become rusted and in a defective condition with the result gasoline and kerosene became mixed and they delivered a mixture of these products instead of kerosene as ordered, to one Henry Allen at his farm home, placing it in a barrel located on an elevated stand in a small room off the kitchen from which there was no exit except through the kitchen; that later defendants were advised of their error and after dark on the evening of September 12, at about 8:30 p. m. Laney came to the Allen home, stated that he was there to pick up the mixture which he had sold them for kerosene and, over the warning and protest of Mrs. Allen that such mixture was dangerous and should not be moved at night, proceeded to attempt to remove it at a time when there was a lighted kerosene lantern sitting on the floor of the room where it was located and an open fire burning in the bathroom near by, all of which facts were known or should have been known to such defendant in the exercise of ordinary care and caution.
It next alleges that Laney filled two five-gallon cans with the mixture from the barrel and started to leave the small room to empty their contents into the defendants’ tank wagon but that as he did so he carelessly and negligently tripped, stumbled or fell, overturned the lantern, and spilled such contents, which ran under a partition into the bathroom and into the kitchen of the home and subsequently became ignited and burst into flames.
The petition then asserts the plaintiff who was in the small room, engaged in the performance of some work of his employment, and whose only means of escape from the house was through the room in which the fire was burning and then into the kitchen was forced to come through the flames with the result he was badly burned and suffered injuries, the extent and character of which are not an issue nor the amount of damages allowed therefore challenged as excessive.
Finally such pleading charges that all injuries sustained by plaintiff as a consequence of the fire were the direct and proximate result of the careless and negligent action and conduct of the defendants while acting as therein alleged and in addition specifies ten specific acts of negligence on their part which are alleged to have contributed to and been responsible for the situation which caused the injuries sustained by him.
Mindful of the rule (See Picou v. Kansas City Public Service Co., 156 Kan. 452, 134 P. 2d 686; Roddy v. Hill Packing Co., 156 Kan. 706, 137 P. 2d 215; Ripper v. City of Canton, 166 Kan. 185, 187, 199 P. 2d 815) that in passing on a demurrer to evidence an appellate court is concerned only with evidence and inferences to be adduced therefrom which supports a cause of action and does not weigh testimony we now give consideration to arguments advanced by appellants in support of their position the appellee’s evidence wholly fails to sustain the judgment.
At the outset our attention is directed to the oil inspection law of this state (G. S. 1935, ch. 55 art. 4) and to Oil Co. v. Rankin, 68 Kan. 679, 75 Pac. 1013, construing its terms. It is urged that by reason thereof appellee was required to plead and prove the mixture of kerosene and gasoline delivered at the Allen home was not inspected as required by the provisions of such statute in order to maintain and establish any cause of action against them for negligence. This claim has little merit. Reference to the decision cited discloses it expressly states the purpose of the act is to require all oils to be tested before being put on the market. We find nothing in the decision or in the act itself which can be construed as relieving a distributor of petroleum products from the consequences of negligent action in mixing kerosene and gasoline after he has purchased such products for purposes of sale.
Appellants’ next two contentions can be considered together. They insist there was nothing in the evidence which tended to prove Doyle and Campbell negligently mixed gasoline and kerosene and sold the mixture as kerosene or that there was any testimony which would prove or tend to prove Laney was negligent in falling and spilling such mixture. We are not disposed to labor the record. It suffices to say both Mrs. Allen and Laney testified kerosene had been ordered and a mixture of gasoline and kerosene delivered instead and that the latter had been sent out to pick it up. Mrs. Allen also testified that Laney had theretofore inquired of her if the Allens had any of the mixture, stating it had become mixed somehow in the lines, and that if so both Doyle and Campbell had ordered him to pick it up. That, to say nothing of other testimony susceptible of similar inferences, was sufficient to take the question of appellants’ negligence on the first point mentioned to the jury. So far as the second is concerned it makes little difference whether Laney tripped and fell as the result of carelessness. The fact the appellants attempted to move the mixture from the Allen home after dark, under conditions and circumstances alleged in the petition which were all established by testimony, particularly over the warning and protest of Mrs. Allen, was evidence of negligence and in and of itself was sufficient to sustain a conclusion that the fire resulted therefrom.
The next claim advanced by appellants will be considered out of the order in which it is argued. They insist appellee’s evidence discloses he was guilty of contributory negligence as a, matter of law in that he attempted to extinguish the fire by tramping on it when he could have escaped without injury. There was testimony to the effect that when the fire first started there was only a small blaze noticeable and that appellee, who was then only sixteen years of age, attempted to stamp it out. Moreover, appellee testified his clothing did not catch on fire when he stamped the blaze, but as a result of the explosion. In addition it clearly appears from the record that Laney, who was closer to a position of safety, was caught in the flame following the same explosion and also severely burned. Under such conditions we have no hesitancy in holding the question of appellee’s negligence was factual, not legal, and hence properly submitted to the jury for its decision.
Our heretofore announced conclusion that standing alone appellee’s evidence with respect to the conditions and circumstances under which appellants attempted to remove the mixture was enough to take the question of responsibility for the fire and appellee’s resulting injuries to the jury might well end this lawsuit. Even so we have not overlooked the contention, strenuously urged, that the negligent mixture of gasoline with kerosene and its sale and delivery to the Allens was not the proximate cause of appellee’s injuries.
Conceding, as appellants point out, the mixture was stored in the dwelling house, there was an opening in the partition between the storeroom and the bathroom, there was an open blaze in the bath room and no one expressly warned Laney thereof, that appellee attempted to put out the fire and that such fire would not have occurred had it not been for the attempt to remove the fuel oil and Laney’s fall, it cannot be successfully urged that such matters, or any one of them, were independent and efficient intervening causes of the fire or appellee’s injuries. If the mixture had not been sold and delivered this particular fire, under all the conditions and circumstances revealed by the evidence, would not have occurred. Appellants having negligently created the situation which resulted in its occurrence cannot escape liability for the natural and probable consequences which followed.
No useful purpose would be served by taking time or space in this opinion to discuss appellants’ argument in support of their position on the point just decided. It suffices to say they are all answered and the conclusion upheld by our recent decision of Flaherty v. Reed, 167 Kan. 319, 205 P. 2d 905, which, while it deals with the sufficiency of allegations of. a pleading and entirely dissimilar facts, nevertheless reviews our decisions relating to the doctrine of proximate cause and clearly and decisively indicates that, under principles of law equally applicable to the instant case, events of the character here relied on are not to be regarded as independent and efficient intervening causes of an accident or fire which will defeat an action founded upon an original negligent act, without which injury would not have been sustained, but as a series of connected circumstances constituting the proximate or legal cause of the injuries sustained as a result of such fire or accident.
Pertinent portions of the syllabus in the case to which we have just referred read:
“The proximate or legal cause of an. injury is that cause which in natural and continuous sequence unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.
“If an intervening act was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate or legal cause of the injury, notwithstanding the intervening act.
“It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.
“There is no precise formula for marking the line between proximate and remote consequences following a negligent act, and ordinarily the question of negligence, including proximate cause, and whether an alleged intervening cause could have been foreseen or anticipated by the exercise of ordinary prudence and foresight, are for the jury.” (S'yl. HU 2, 3, 4, 5.)
After an exhaustive search of the entire record and a careful review of the many decisions cited by counsel for the respective parties, none of which are found to be at variance with the conclusions heretofore stated, we are convinced the trial court did not err in overruling the demurrer to appellees’ evidence. Since the propriety of that ruling is the sole basis for this appeal it follows the judgment must be and it is hereby affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The petition stated three causes of action. Service by publication was had on the defendants. Judgment was entered by default for the amount asked on all three causes. Subsequently successors in interest to defendants filed a motion to open up the judgment, and an answer. The trial court allowed this motion. Plaintiff has appealed.
The first cause of action, after alleging the corporate existence of, the plaintiff, alleged that the Oklahoma Royalty Corporation was organized under the laws of New York, had never qualified to do business in Kansas, and on December 15, 1936, was dissolved, as provided by law, in New York, and no longer had any legal existence; that plaintiff made diligent inquiry to ascertain its successors or assigns, but was unable to find them, and plaintiff made the unknown successors of the dissolved corporation defendants in the action; that about March 6, 1928, during the legal existence of the Oklahoma Royalty Company it acquired a one-sixteenth interest in all the oil rights under a described quarter section of land in McPherson county, had never disposed of it and the unknown successors of the dissolved corporation were still the owners of this interest; that about March 16,1934, in the City Court of Buffalo a judgment for $224.30 was entered against the Oklahoma Royalty Corporation and still remained unpaid; that after this judgment was obtained a transcript of it was filed with the clerk of the supreme court of Erie county, New York, on March 19, 1934, and still remained unpaid; that this judgment was assigned to plaintiff on December 27, 1944, and plaintiff was at the time of filing the action the owner of it and it had not been paid(and there remained due on it $372.90, for which the plaintiff prayed judgment.
For its second cause of action, the plaintiff made the allegations of the first paragraph of the first cause a part and then alleged a judgment in the supreme court of Erie county, New York, against the Oklahoma Royalty Company on September 26, 1933, in the amount of $1,291.37; that it remained unsatisfied, had been assigned to plaintiff and there was due on it $2,183.48, for which judgment was prayed.
For its third cause of action, plaintiff after its formal allegations, alleged that about March 6, 1942, it procured an oil and gas lease on a described quarter section and it was later discovered that the Oklahoma Royalty Company owned an undivided one-sixteenth interest in the oil under the land; that plaintiff was unable to find anyone connected with the company; that on account of such a situation it was impossible for the plaintiff to procure an oil and gas lease from the owners of this one-sixteenth interest; that plaintiff believed it was necessary to drill on the land, drilled four wells on the lease and discovered oil therein; that in drilling and operating these wells expenses amounting to $83,014.23 had been incurred by plaintiff; that this expenditure had enhanced the value of the lease and plaintiff was entitled to be reimbursed in the amount of one-sixteenth of the expenditure and such reimbursement should be made as proceeds are available; that one-sixteenth of the total expenses properly chargeable to the Oklahoma Royalty Company as of April 1, 1945, was $5,188.39; that Phillips Petroleum Company was holding large sums of money to be paid to the owners of the undivided one-sixteenth interest; that to allow defendants to collect this one-sixteenth without paying its share of the operating would be unjust and inequitable; that plaintiff was entitled to a judgment against defendants fixing a lien upon the one-sixteenth interest for operating expenses, and to have the amount of the proceeds from the sale of the one-sixteenth interest applied on liquidation of the one-sixteenth expense.
The prayer was for a judgment ordering that one-sixteenth of the operating costs be made a lien against the undivided one-sixteenth interest and from this undivided one-sixteenth interest defendants be required to pay plaintiff one-sixteenth of the operating expense amounting to $5,188.39 as of April 1, 1945, and one-sixteenth of all subsequently incurred expense.
Service of summons was had on the Oklahoma Royalty Company by publication. On the same day the petition was'filed an affidavit for attachment was filed and an attachment order was issued attaching the one-sixteenth interest in the oil and gas heretofore spoken of as to the first and second causes of action. On the same day a garnishment affidavit was filed against the Oklahoma Royalty Company stating that it owed plaintiff $5,188.39 and the Phillips Petroleum Company was indebted to it. On the same day an order of garnishment was issued against the Phillips Petroleum Company. This was in the third cause of action. Summons was duly issued in the g¿rnishment proceedings and on May 21, 1945, the Phillips Petroleum Company answered that it was indebted to the Oklahoma Royalty Company in the amount of $3,518.77, which it was holding in suspense. After the attachment proceedings were begun an order was issued, the sheriff executed it, attaching the one-sixteenth interest and appointing appraisers. The interest was duly inventoried and appraised at $5,000 on April 30, 1945.
June 6, 1945, the affidavit to obtain service by publication setting out all the above facts was filed. Service by publication was duly had.
On September 1, 1945, judgment for $2,556.38, the amount prayed for in causes of action 1 and 2, was entered and it was ordered that the attachment of the one-sixteenth interest was sustained and a first lien in favor of plaintiff for the amount of the intebtedness be established upon the one-sixteenth interest and the oné-sixteenth interest was ordered sold or so much of it as might be necessary to satisfy the judgment free and clear of all incumbrances except a lien upon the proceeds derived from the sale of oil and gas produced and sold from the one-sixteenth interest for the payment of one-sixteenth of the operating expenses and the proceeds of the sale be applied (1) to the payment of costs; (2) to the payment of the judgment of $2,556.38 and the remainder be paid to the clerk of the court.' It was further ordered that plaintiff have a lien on the proceeds from the sale of the one-sixteenth interest for the one- sixteenth of the drilling cost to plaintiff. It was further ordered that there was due plaintiff from defendants by reason of the development of the lease the sum of $5,415.52, the amount being one-sixteenth of the amount expended by plaintiff in developing the lease, and it was ordered that plaintiff recover from the Phillips Petroleum Company, garnishee, the sum of $3,518.77, the indebtedness that the Phillips Petroleum Company owed the Oklahoma Royalty Company, the sum to be applied on the $5,415.52 owing plaintiff; that plaintiff have a first lien upon the oil and gas produced from the one-sixteenth interest (1) for the balance remaining unpaid on the $5,412.52 and for the one-sixteenth of all expense of operating the lease subsequent to June 30, 1945; that the one-sixteenth interest was ordered sold by the sheriff and on November 5,1945, it was sold-to plaintiff for $3,335, that being the highest bid. December 4, 1945, the sale was confirmed and the equity of redemption was fixed at six months.
On December 19,1947, John W. Kuntz, Fred Davison and Harold McVean, as president and board of directors of the dissolved Oklahoma Royalty Company, filed an amended motion to open the judgment and an amended answer. A motion to strike portions of the motion and the answer and a demurrer to the answer were filed by plaintiff. The motions and demurrer were overruled and the judgment was ordered reopened and all orders made thereunder were set aside. Hence this appeal.
The specifications of error are that the court erred in overruling plaintiff’s motion to strike and its demurrer, in reopening the judgment, and setting aside all orders made thereunder, and granting defendants the right to come in and defend against plaintiff’s petition.
These specifications may all be dealt with in a consideration of the demurrer to the answer. The proceedings to open up the judgment were brought pursuant to G. S. 1935, 60-2530. This section provides, in part, as follows:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; . . .”
Stated more succinctly, a defendant who wishes to open up a judgment that was entered against him without other service than publication in a newspaper must (1) give notice to the adverse party; (2) file a full answer to the petition; (3) pay all costs, if the court requires it; and (4) make it appear by affidavit that during the pending of the action he had no actual notice of it in time to appear in court and make his defense. There is no question here but that the defendants have complied with 1, 3 and 4. The real question, however, is whether the answer filed is in the words of the statute a “full” answer. A full answer has been otherwise described as meritorious. (See Durham v. Moore, 48 Kan. 135, 29 Pac. 472.) A “meritorious” defense has been defined as “one going to the substance or essentials of the case” as alleged in the petition. (See Frizell v. Northern Trust Co., 144 Kan. 481, 61 P. 2d 1344.) It may be said a full answer is one which had it been filed in answer to the petition would have constituted, if proven, a defense to cause or causes of action alleged in.the petition. In this connection it should be pointed out here that an answer to be a full answer “need not present a defense coextensive with the entire demand, or with every demand, or with every demand of the petition but whatever defense it proposed must be complete and perfect in the sense of fully overcoming the portion of the plaintiffs claim against which it is directed.” (See Williams v. Kiowa County, 74 Kan. 693, 88 Pac. 70.) At the outset, it should be noted that we give this statute a broad interpretation so as to do justice to both sides. (See Leslie v. Gibson, 80 Kan. 504, 103 Pac. 115.)
With these rules in mind, we shall examine this answer. It will be remembered that causes of action 1 and 2 were to collect New York judgments. The third was to collect from defendants their fair share of the money expended in developing the lease.
It will be remembered the action was begun against the unknown successors, trustees and assigns of a dissolved corporation. The first paragraph of the amended answer set out the names and addresses of the last president and three members of the board of directors of the Oklahoma Royalty Company. The next paragraph referred to a statute of New York, which provides that “. . . Upon the dissolution of a corporation ... its corporate existence shall continue for the . . . collecting or distributing its assets, . . . and it may sue and be sued in its corporate name, and . . . the directors shall have full power to settle its affairs and to distribute to the persons entitled thereto the assets . . .” This motion to open up this judgment was filed and is being carried on by the named members of the board of directors.
The first ground urged by plaintiff upon which their demurrer should have been sustained is that the answer failed to show that the three directors had the legal capacity to appear and act as defendants and to have the judgment opened. This argument is not seriously urged by plaintiff here and is not good. The proceedings are being carried on in about the only way they can be, that is, by the persons who were in control of the corporation when it was dissolved. The statute was, no doubt, intended to apply to situations such as we have here.
The third paragraph of the amended answer alleged that service was had on the defendants by publication service only and reference is made to affidavits attached to the original motion showing that the parties asking to have judgment opened up had no actual notice of the pendency of the action in time to appear in court and defend. G. S. 1935, 60-2530, provides, among other things, that a judgment may be opened up only if the defendant is able to show that the service on it was by publication and that he had no> actual notice of the pendency of the action. These allegations met that requirement.
We pass then to a consideration of the allegations of the answer which purport to set up a good defense to the cause of action.
Paragraph 4 is a general denial. Ordinarily a general denial is a good defense to any cause of action. In this case, however, we must consider it in connection with the other allegations.
Paragraph 5 admitted the allegations of paragraph 5 of the first cause of action, which set up the judgment of $224.30 against the Oklahoma Royalty Company and alleged that it was entered on the 16th day of March, 1934.
Paragraph 6 admitted that a verdict was rendered against the Oklahoma Royalty Corporation on September 26, 1935, in the Supreme Court of Erie county, New York, in favor of the parties mentioned in the second cause of action. The paragraph denied, however, that any judgment entered was valid but alleged that it was void and was still an appealable order.
Paragraph 7 of the aprended answer referred to the two judgments upon which the first two causes of action were based and alleged they were dormant and of no force and effect.
Paragraph 8 alleged that if they owed plaintiff .any money they should be granted the right to pay it.
Paragraph 9 of the amended answer admitted that the Oklahoma Royalty Corporation during its existence acquired the one-sixteenth interest in question and alleged that it had never disposed of it and the answering parties were still the owners.
Paragraph 10 of the amended answer admitted plaintiff has drilled certain oil wells in which defendants have an interest without their consent and the number of wells drilled is unknown to defendants but known to plaintiff.
Paragraph 11 of the amended answer referred to the third cause of action and alleged the Oklahoma Royalty Corporation was chargeable with the one-sixteenth of the cost of drilling and operating the lease, but alleged plaintiff should be required to make an accounting of such cost and of the oil produced to which the Oklahoma Royalty Corporation was entitled, and since defendants did not know whether the accounting set out in plaintiff’s petition was correct the allegations were denied.
Paragraph 12 of the amended answer referred to the second cause of action and alleged the judgment upon which it was based was not entered on the judgment rolls of the Supreme Court of Erie county, New York, until January 17, 1945, and was so entered without any notice to defendants and the entry of the judgment was twelve years after the verdict was rendered, was fraudulent and void, and under the laws of New York was still appealable, and the entering of it twelve years after the verdict did not extend the statute of limitations and judgment was not a lien on the real property of Oklahoma Royalty Corporation.
Paragraph 13 stated that under section 203-A of the Stock Corporation Laws of New York, the only remedy for- any creditor enforcing any claims against the Oklahoma Royalty Corporation was to follow the procedure set out in section 106 of the Stock Corporation Laws of New York.
Paragraph 14 of the amended answer set out a portion of section 106 of the Stock Corporation Laws of New York. We do not find it necessary to set out those provisions here.
Paragraph 15 alleged that plaintiff did not comply with the provisions of the Laws of New York for the enforcement of judgments and the collection of claims against the Oklahoma Royalty Corporation.
Paragraph 16 alleged that the action was begun April 28, 1945, and judgment was entered September 1, 1945; that the value of the one-sixteenth interest was appraised at $5,000; that prior thereto the court had ordered that the Oklahoma Royalty Corporation owed $5,415.52 for their one-sixteenth of the drilling expense and on September 29, 1945, an order of sale was issued directing the sale of the one-sixteenth interest and on November 5, 1945, it was sold to plaintiff for $3,335 and the period of redemption was fixed at six months and the sale was approved.
Paragraph 17 of the amended answer alleged that the real value of the one-sixteenth interest was $50,000 and the appraisement was grossly inadequate and unless the judgment was opened up the moving parties would suffer irreparable injury, and at the time of the filing of the answer the plaintiff had twelve producing wells on the lease and it was producing $20,000 worth of oil each month.
Paragraph 18 of the amended answer alleged that at the time when plaintiff purchased the judgments it had drilled four wells on the lease, and to the first of May, 1945, had produced $56,000 worth of oil and one-sixteenth of such amount would be $3,518:77, which had been applied through garnishment proceedings to the claim of plaintiff for drilling costs, yet in spite thereof the one-sixteenth interest was appraised at $5,000 and sold to plaintiff for $3,335.
Paragraph 19 of the amended answer alleged that at the time it purchased the two judgments it did not advise the holders of them that it was producing oil from the property and the plaintiff fraudulently and with intent of carrying' the action to completion without knowledge of the answering defendants failed to inform the defendants of the pendency of the action.
Paragraph 20 alleged that defendants offered to pay all costs of any judgment to which they might find the plaintiff was entitled ■under the first and second causes of action.
Paragraph 21 alleged that defendants were entitled to have the judgment opened and all orders made by the court vacated and upon finding that defendants owed plaintiff anything they should be granted the right to pay same and that defendants should be fully advised as to the third cause of action and any amount found due on the third cause of action should be only a lien against one-sixteenth of the oil and gas produced from the lease.
Paragraph 22 alleged defendants had no adequate remedy at law and if the relief prayed for was not granted defendants would suffer irreparable injury.
The prayer of the answer was that the judgment be opened up; that the appraisement of the real estate, the sale, the confirmation of the sale, the period of redemption and the sheriff’s deed, be held for naught; that the defendants be afforded an opportunity to pay any sums found due plaintiff on the first and second causes of action and that they be fully apprised of any amount due for drilling on the lease, as set out in the third cause of action, and that such amount found due be decreed only as a lien against the oil and gas produced from the one-sixteenth interest belonging to the Oklahoma Royalty Corporation.
This answer must be considered as though it had been filed against the petition in the first place, that is, does it on its face state a prima facie answer to the cause of action pleaded in the petition? No motion to make this answer more definite and certain was filed. Under such circumstances it-should be liberally construed and all reasonable inferences drawn in favor of the pleader. (See Roberts v. Pendleton, 92 Kan. 847, 142 Pac. 289; also Rust v. Rutherford, 95 Kan. 152, 147 Pac. 805.) We must consider this appeal in the light of what we said in Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614. There we said:
“Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. ... In fact, a judgment upon service by publication is as between the parties in the nature of a conditional judgment, one which becomes final and absolute only at the expiration of three years, and liable in the mean time to be opened whenever the defendant brings himself within the provisions of the section.” (p. 448.)
See, also, Withers v. Miller, 140 Kan. 123, 34 P. 2d 110, where we also said:
“Our statute (R. S. 60-2530), which authorizes a party defendant in an action such as this, who was served by publication only and who had no knowledge of the pendency of the action in time- to defend, to come into the case at any time within three years after judgment against him was rendered, make the showing required and file an answer stating a defense, to have the judgment opened and to be heard on his defense, is remedial in its nature, and should be liberally construed in the furtherance of justice.” (p. 126.)
(We cited Young v. Martin, 96 Kan. 748, 153 Pac. 542;. Chambers v. Rose, 111 Kan. 22, 206 Pac. 336; Martens v. Green, 113 Kan. 142, 213 Pac. 642; and Wyandotte County Comm’rs v. Axtell, 134 Kan. 304, 5 P. 2d 1078.)
At the outset of the answer, there is a general denial of the allegations of the petition except as are later admitted. Ordinarily this would be held to state a defense unless by the subsequent admissions the defendants admitted liability or admitted facts requiring a holding of liability. So here the general denial will not be held to state an absolute defense. It must be considered, however, along with other allegations in the answer. The first two causes of action are on judgments from Buffalo, N. Y. The petition simply alleged the judgments, their assignment to plaintiff and the amount of each. The answer admits the judgments were entered but alleged that each judgment was void, dormant-and of no force and effect. It is well established that an action cannot be brought to collect a dormant judgment. (See 34 C. J. 1081; Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630; also Brown v. Akeson, 74 Kan. 301, 86 Pac. 299.) A void judgment cannot be made the basis of an action. (See 34 C. J. 1083.) Plaintiff concedes the force of these rules but argues that the allegations of defendants are nothing but conclusions and that the specific allegations in the answer on which these conclusions are based require a holding by us that the judgments are neither dormant nor void. We have already referred to the rule that in the absence of a motion to make definite and certain an answer, the same as any other pleading, should be given a liberal interpretation and all reasonable inferences drawn and presumptions made in favor of the pleader. We have said the purpose of this statute is to see justice done between the parties. (See Leslie v. Gibson, 80 Kan. 504, 103 Pac. 115; also Erving v. Windmill Co., 52 Kan. 787, 35 Pac. 800.) Our question really is whether a demurrer to this answer would have been sustained had it been filed in answer to the petition in the regular way and at the proper time.' To answer this question in the affirmative would require us to hold that the judgments pleaded were actually valid judgments and capable of immediate enforcement in New York. Certain portions of the New York statutes are pleaded in the answer, as well as the facts of the judgments to which reference has been made. The fact that the verdict upon which one judgment was based was returned in 1933 and the judgment was not entered until January, 1945, and that the other judgment was entered in the city court of Buffalo in 1934, over ten years before it was assigned to plaintiff, at least subject both these judgments to close scrutiny. What the outcome of a trial of the issues raised by the pleadings would be we are not called on to say here. Suffice it to say that the answer filed by the defendants does not on its face require a holding that the two New York assignments were valid subsisting judgments.
We pass now to a consideration of the answer to the third cause of action. Plaintiff alleged it had expended a certain amount in developing the lease in which defendants had a one-sixteenth interest and that one-sixteenth of the income from the lease had been held for defendants. Plaintiff asked that defendants be held liable for one-sixteenth of the development cost.
Defendants in their answer admitted that they should be required to pay one-sixteenth of the cost of development but asked for an accounting. They had no way of knowing whether the figures used by plaintiff in its petition were correct. They were not required to accept them as correct. Defendants did the only thing they could do under the circumstances. They admitted they owed plaintiff something but denied the correctness of the amount pleaded by plaintiff. This is what they would have done had they filed their answers in the regular way and in due time.
As to the third cause of action, it was a full answer.
We have held and 'the rule is that an answer to be a full answer need not present a defense to the entire claim of plaintiff or coextensive with the entire demand. (See Williams v. Kiowa County, 74 Kan. 693, 88 Pac. 90.) Here there can be no "doubt but that the judgment was properly opened up as to the third cause of action.
Plaintiff argues that to hold this answer good would be to deny in Kansas full faith and credit to a judgment of the state of New York in violation of section 1, article IV of the Constitution of the United States. The section does require that a judgment of a court of one state be given full faith and credit in another state, but no better than it was in the state in which it was rendered. The authorities cited and relied on by plaintiff are to that effect. What we are holding here is that the two New York judgments are subject to the same defenses in Kansas to which they would have been subject in New York. Such a holding is in harmony with the decisions of the Supreme Court of the United States, where the subject has been passed on.
Plaintiff next argues that the trial court erred in ordering the judgment reopened and in setting aside all orders made thereunder. In this connection reference is made to the attachment orders, pursuant to which the one-sixteenth interest was sold. When the judgment is opened up the entire proceedings will revert back to the state where it was the first time for the defendants to file their answer. What the outcome will be no one knows. Certainly the property should not be sold to satisfy a judgment until there is a judgment. If plaintiff sees fit to institute other attachment proceedings to preserve its interest that need not concern us here.
The judgment of the trial court is affirmed.
Thiele and Wedell, JJ., concur in the result. | [
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The opinion of the court was delivered by
Arn, J.:
Defendant was tried on a charge of forcible rape. The jury returned a verdict of guilty as charged. Defendant’s motion for a new trial was overruled and from the judgment rendered on the verdict, defendant appealed to this court, specifying as error the refusal of the trial court to give defendant’s requested instructions, and the trial court’s hostile and prejudicial attitude toward defendant during the trial.
The facts may be stated briefly as follows: The complaining witness, a Mrs. Kramer, was twenty-six years old, married, and had one child. She lived apart from her husband who had deserted her about one year before. On Saturday night, December 20, 1947, she and a girl companion were at Mike’s Place, a recreation establishment where beer and soft drinks were sold and where dancing was permitted. At this place defendant danced with the complaining witness, arranged to meet her after she had taken her girl companion home, and to then go to other “places” where they could continue dancing. They went in defendant’s car, and included besides complainant were defendant’s fellow companion DuPuis and his girl and two other men. During the evening the two men left the party, and later DuPuis took his girl home and then returned. Defendant, his companion DuPuis, and complaining witness then proceeded in the ca'r out onto a country road, which according to state’s evidence was over the objections of the complaining witness. Here, according to the state’s evidence, defendant struck, threatened and attempted to forcibly rape the complaining witness. This first attempt failed and the three persons then drove to a more lonely and desolate spot in the country where defendant attacked, beat, threatened and forcibly raped complaining witness with the help, aid and assistance of defendant’s companion DuPuis. There was some evidence that complainant was threatened with a gun which defendant had in his car. The state’s evidence showed that her clothing was torn, and her eyes, face and body blackened and bruised; that she was returned to her home about 5:30 or 6:30 a. m. the next morning, and when she was let out of defendant’s car she was admonished not to look back. A few days later de fendant was arrested. This prosecution followed and the case was tried twice, the first resulting in a mistrial. The second case resulted in defendant’s conviction of forcible rape, and this appeal followed.
Appellant’s second specification of error — that the trial court’s hostile attitude prejudiced the defendant and prevented his fair trial — was not included as one of the grounds in the motion for new trial, and not having been called to the attention of the trial court, it cannot be considered here.
The only other error complained of by appellant is the trial court’s refusal to give the instructions requested by defendant and designated as requested instructions Nos. 3, 4, 5, 6 and 7.
The gist of requested instruction No. 3 was to charge the jury that the crime of forcible rape was not committed if the complaining witness consented to the act of sexual intercourse. Of course, that is a fair statement of the law — but the instructions given by the court stated it just as forcefully as did appellant’s request. The court’s instructions accurately defined the crime with which defendant was charged; they dealt with the amount of resistance necessary to show that the woman did not consent; they stated that the act must be committed by physical force against her will or by her acquiescence through threats or violence or both; they established “force” as one of the acts constituting the crime; and they then advised the jury that every material fact necessary to constitute the crime must be proved beyond a reasonable doubt. The court’s instructions sufficiently met the request made by defendant in this respect.
Appellant’s requested instruction No. 4 would have advised the jury that the state was required to prove beyond a reasonable doubt that the crime was committed in Shawnee county, Kansas. This matter of venue was quite fully covered by the court’s instructions as follows:
“No. 3. If you find from the evidence in this case beyond a reasonable doubt that the defendant Frederick (Terry) Smiley at the time and place charged in the information forcibly ravished Marietta Kramer within the meaning of the words ‘forcibly ravished’ as hereinbefore defined then you would be justified in finding him guilty, but unless you do so find beyond a reasonable doubt you should find him not guilty.”
“No. 9. It is not necessary for the prosecution to prove the exact time alleged in the information, but it must prove that the alleged crime was committed within the County oj Shawnee and State of Kansas and within two years prior to the institution of this prosecution.” (Italics supplied.)
Appellant’s requested instruction No. 5 recited at some length the occasion of defendant’s arrest; his being taken to the police station and questioned; that officers questioned him without advising him of his right to stand mute; his sending for his attorney; that defendant was not informed of his constitutional rights; that the county attorney and sheriff proceeded to carry on conversations with other witnesses as to defendant’s whereabouts and identification and then used this evidence at the trial. The requested instruction No. 5 continues:
“The Court instructs you that under the Constitution of the State of Kansas -and the Constitution of the United States, a defendant may stand mute and refuse to talk or answer questions and that such refusal raises no presumption of guilt and no inference of guilt may be drawn therefrom and that the State is not at liberty to ignore the election of the defendant either juade by himself or his attorney, or to use any force or strategy to deprive the defendant of these constitutional rights.”
In this connection appellant claims the court’s refusal to give said instruction was error and cites State v. Seward, 163 Kan. 136, 181 P. 2d 478, in support of his contention. In that case a written confession of forgery and theft signed by defendant was received in evidence without any instruction as to the manner in which such confession should be considered by the jury. The Seward case is not in point here because in the instant case there was no confession obtained or introduced in evidence. For the same reason the instant case is not similar to State v. Barnes, 164 Kan. 424, 190 P. 2d 193. The record shows that while at the police station and sheriff’s office on the night of defendant’s arrest, the defendant denied being involved in any of the matters relating to the charge — he denied being at any of the taverns on the night of the crime — he denied knowing the complaining witness — he denied everything — and he made no admission or confession. Testimony pertaining to the denial as to his whereabouts on the night of the crime made to officers following his arrest, and inconsistent with his claim of innocence, were properly introduced as state’s evidence and required no instruction to explain them. Such statements are exculpatory rather than incriminating. (State v. Campbell, 73 Kan. 688, 85 Pac. 784; State v. Turner, 82 Kan. 787, 789,109 Pac. 654; State v. Myers, 154 Kan. 648, 653, 121 P. 2d 286; 20 Am. Jur. 269, § 284.)
The record before us also shows that defendant was not required to make any statements against his will. He testified that he knew he did not have to say anything but that he voluntarily gave false answers to questions asked him by the officers. There is no indication in the record of infringement of defendant’s personal rights. This requested instruction No. 5 concerning the events surrounding defendant’s arrest was improper and the trial court properly refused to give it.
Appellant next complains that his requested instruction No. 6 was not given by the court. The requested instruction would have charged the jury in substance that when the defendant elected to stand upon his constitutional right to remain silent, all evidence thereafter obtained concerning him should be ignored by the jury. As previously stated, the record before us does not indicate, and appellant does not contend, that he, defendant, was compelled or coerced to make any statement against his will. He was held in custody and other persons (some later became witnesses) were brought in to identify defendant who had steadfastly denied knowing or ever having seen them on the night of the crime, or having that night visited the various taverns or recreational establishments. This procedure was regular and proper and did not violate defendant’s constitutional rights. The trial court properly refused such requested instruction.
And finally, appellant urges that requested instruction No. 7 should have been given to the jury. In substance, this request would have charged the jury that the prosecution must honor and recognize the constitutional privileges and immunities of the accused, and that the prosecution may not ignore these privileges when defendant or his counsel have elected to claim them. As stated in appellant’s brief, the purpose of this request was the same as in requested instruction No. 5 which has been discussed above. There was no evidence in this case to necessitate or justify the giving of said requested instruction, and it was properly refused by the trial court.
Appellant does not specify as error the overruling of defendant’s motion for new trial* There appearing no grounds for reversal of the judgment, it is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal involves certain rulings of the lower court with reference to Tract No. 125. in condemnation proceedings brought by the State Highway Commission in a highway building and improvement project in Johnson county. Briefly summarized the facts are as follows:
On February 12, 1946, the State Highway Commission commenced condemnatioon proceedings in the district court in case No. 16,513 for the purpose of acquiring certain lote and parcels of land necessary for the construction and improvement of a highway. The .appraisers appointed by the court filed their oaths, gave the notice required by statute and on April 4, 1946, filed their report which listed, among other tracts, the following:
“125
“Isabelle S. Weiss, 15 W. 81st Street, New York City, New York; Safeway Stores, Inc., 12th & Oak, Kansas City, Missouri, subject to a mortgage in favor of the Prudential Insurance Company of America, Newark, New Jersey. [Followed by the legal description of the property in question.]”
Their award for the property included in this tract was as follows:
“APPRAISEMENT:
LAND TAKEN $1015.33
FENCE ' - $
TENANTS CROP LOSS $
Safeway Store loss of business & all , other damage $1750.00
TOTAL $2765.33”
On May 3, 1946, the State Highway Commission paid into the clerk of the district court the amount of $2,765.33 and on the same day filed its appeal from such award, said appeal being docketed as case No. 16,687.
On February 25, 1947, a journal entry was filed in the original condemnation action, the pertinent portions of which are as follows:
“Thereupon said State Highway Commission through its attorneys states-to the Court that its appeal from the award of the appraisers as pertaining to Tract No. 125 was taken primarily from the allowance of $1750.00 damages therein made; and incident to the rights of the Safeway Stores, Inc., to their leasehold interest therein; further that the owner of the fee title, Isabelle S. Weiss is desirous of obtaining payment of the $1015.33 awarded by the appraisers for land taken and that said Prudential Insurance Company of America, mortgagee, has waived its right to have any of the proceeds of the condemnation of said Tract No. 125 applied on its mortgage loan.
“It is now further stated to the Court, all parties represented agreeing thereto, that it has been orally stipulated among the parties to said appeal No. 16687 that subject to the approval of the court, the said Isabelle S. Weiss may receive payment at this time of said sum of $1015.33 for the fee to said land taken as awarded in the original appraisement in consideration of which the said Isabelle S. Weiss has and does now in open court agree to accept said sum in full and complete satisfaction of all of her claims by reason of the condemnation and taking of said tract.
“It is further stipulated and agreed among the parties as now appearing that the abandonment of that part of State Highway Commission’s appeal as pertaining to the award made for land taken shall and does in no way affect the status of said appeal in the prosecution and trial thereof as to the question of the amount of compensation or damages to which the appellee, Safeway Stores, Inc., is entitled, for their leasehold interest in said land taken, and damages incident thereto.
“It is therefore, considered, ordered and adjudged that the Clerk of this Court pay at this time to Isabelle S. Weiss the sum of $1015.33 in full of any and all claims by said property owner, as holder of said fee title.
“It is further ordered and adjudged that the status of The State Highway Commission’s appeal as to the question of the amount of compensation or damages, if any, to be awarded to Safeway Stores, Inc., remains unchanged and shall be for trial at such time as the Court may determine.”
This journal entry was approved and signed by counsel for all parties concerned.
On July 24, 1947, Safeway filed its motion praying an order of the court directing the clerk to pay over to it the award of $1,750 previously deposited by the State Highway Commission and on July 29, 1947, Safeway filed with the clerk of the district court its written demand for said amount stating among other matters that the State Highway Commission had taken actual possession of the land involved in Tract No. 125.
On August 26, 1947, the State Highway Commission filed the following motion for refund of the award:
“motion fob refund of award
“Comes now the State Highway Commission, appellant herein, and moves the Court to set aside and hold for naught, a certain award made to Safeway Stores in the amount of $1750, the same being an award for business damages, as related to tract No. 125 of the condemnation proceedings herein (Civil Action No. 16687, District Court of Johnson County, Kansas), and that such award of $1750 be ordered refunded by the Clerk of the District Court of Johnson County, Kansas, to the State Highway Commission for the reason that such award shows upon its face that no property of Safeway Stores is being taken for public highway purposes, and for the further reason that loss of business, or business damage, cannot be made the legal basis of an award under the eminent domain laws of the state of Kansas (G. S. 1935, 26-101).
On March 5, 1948, Safeway’s motion to draw down the award of $1,750 on deposit was denied and on May 27, 1948, the motion of the State Highway Commission for refund of the award was sustained.
On June 29, 1948, Safeway appealed to this court from the ruling of the lower court denying its motion to draw down the award and from the ruling sustaining the motion of the State Highway Commission to grant the refund.
At the outset we are confronted with appellee’s contention that Safeway’s appeal from the order overruling its motion to draw down the amount of the award was not taken in time and should be dismissed. The ruling on the motion in question was made March 5, 1948, and notice of appeal was not filed until June 29, 1948. We hold therefore that the appeal from the ruling on such motion, not having been taken within two months (G. S. 1947 Supp. 60-3309), should be and the same is hereby dismissed.
The sole question before us therefore is the propriety of the court’s ruling sustaining the motion of the State Highway Commission for a refund of the award made to Safeway by the appraisers in the amount of $1,750.
From the record before us we learn that there has been no abandonment of any of the property in question on the part of the State Highway Commission, that it is in possession of the same and that its appeal to the district court from the award of the appraisers has not been disposed of and is still pending.
Under the facts and circumstances as above set out, was the State Highway Commission entitled to a refund of the award made to Safeway by the appraisers?
Safeway contends that it was not and argues that the ruling of the lower court was erroneous for a number of reasons, among which are that because of the payment into court the Commission waived its right to appeal from the award of the appraisers, that it (Safeway) was entitled to draw down the amount of the award when the Commission entered upon and took possession of the property in question, that Safeway, as lessee of the property, has a property interest as contemplated by our eminent domain statutes and that the effect of the court’s action in granting the refund is to deny Safeway its day in court on issuable facts involved in the appeal from the award of the appraisers which is still pending.
Appellee commission argues that by its payment into court of the total amount of the award it did not waive its right to appeal from the award (citing authorities to the effect that before entry can be made it is required that payment of the award be made to the clerk of the court), that Safeway is not an “owner” as that term is used in our condemnation statutes, that so-called business damage is not a “taking of property” and that the ruling of the lower court on appellee’s motion for refund did not have the effect of denying Safeway its day in court on issuable facts.
It can readily be seen that the real gist of the dispute between the parties is over the question of the amount of compensation or damages, if any, due to Safeway. That fact is disclosed by the very language contained in the journal entry of February 25,1947, and in the motion for refund subsequently filed by the commission.
We have carefully examined all of the authorities cited by both parties in the appeal now before us and have no fault to find with the principles therein stated but the trouble lies with their application so far as the record before us is concerned. Here we have a case of the State Highway Commission commencing condemnation proceedings, paying the total amount of the award of the appraisers into court, appealing to the district court from such award, entry onto and taking possession of the property in question and then, without any abandonment of the property, seeking by motion in the original condemnation proceedings to have refunded to it a portion of the award when at all times its appeal from the award of the appraisers is still pending in the district court.
The statute (G. S. 1947 Supp. 26-102), under which that appeal was taken, provides that if the petitioner shall be dissatisfied with the appraisment he shall, within thirty days, file a written notice of appeal with the clerk of the district court, whereupon it is to be docketed and tried the same as other actions. The question to be determined in such appeal is the amount of compensation or damages, if any, to be awarded on account of the appropriation by the condemnor of the property in question. In any event, under the record before us, the funds paid into court should remain there pending the determination of the appeal and in our opinion the action of the commission in attempting to circumvent such appeal was improper.
From what has been said it therefore follows that the order of the lower court sustaining the commission’s motion for a refund must be and the same is hereby reversed and set aside. | [
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The opinion of the court was delivered by
Smith, J.:
This is a motion for a writ of mandamus. The action was brought in the name of the state of Kansas on the relation of the county attorney of Sedgwick county. The city commissioners and the city clerk of Wichita were defendants. The state has been represented throughout the litigation by special counsel. Ordinarily an alternative writ is issued as a matter of course since it serves about the same purpose in a mandamus action as a summons in an ordinary action. However, sometime before this motion was filed counsel for defendants had indicated to the chief justice that they would like to be heard before an alternative writ was issued. When counsel for the plaintiff learned of this they postponed the filing of the motion for a writ for some days and on May 24, 1949, after notice, all parties appeared before the court and argued the question of whether an alternative writ should issue. At that time the plaintiff also asked for an order staying all proceedings in a flood control project in Sedgwick county pending the outcome of the -litigation. We denied the stay order and since the question was a public one set the case down for reargument on the merits at the June session. In the meantime, the defendants filed an answer to plaintiff’s motion. The matter was submitted on June 9,1949.
We shall consider the question of whether the pleadings and admitted facts show an alternative writ should issue. This is one phase of litigation growing out of efforts of the city of Wichita and Sedgwick county to cooperate with the federal government, especially the War Department, in constructing a flood control project in Sedgwick county. We had certain phases of this litigation before us in Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P. 2d 530. In that case we held the state statute, under which the proceedings to construct the flood control project were instituted, did not violate either the. state or federal constitution. This present action was brought on by the passage by the city of Wichita of ordinance No. 15-270 on June 22, 1948.
The motion, after identifying the parties as the county attorney on one side and the city of Wichita and the members of the board of commissioners and the city clerk on the other, alleged that on June 22, 1948, the governing body of the city enacted ordinance No. 15-270, a copy of which was attached to the petition. The petition then alleged that a document referred to in the ordinance as “Project Report, Wichita and Valley Center Flood Control Project” provided for one plan and was referred to as the “Big Ditch Plan” and also another plan utilizing the Arkansas River Channel, and both had been declared to be engineeringly feasible by the Corps of Engineers, and the ordinance did not designate which plan was to be utilized; that on March 16, 1949, qualified electors of the city filed a petition with the clerk signed by 7,522 electors, which requested the adoption of an ordinance repealing ordinance No. 15-270; that all these petitions complied with the provisions of G. S. 1935,12-107; that the number of signatures exceeded twenty-five percent of the votes cast in the city at the general election held April 1, 1947; that upon the filing of these petitions it became the duty of the defendant commissioners to require the city clerk to certify as to their sufficiency and it became the duty of the clerk to certify as to their sufficiency; that the petition contained more than 4,133 names and it became the duty of the city commissioners to either pass ordinance No. 15-270 or to submit the question of whether it should be repealed at a special election unless a regular election intervened. The petition then alleged that the defendant commissioners misconceiving their duties had wholly disregarded the petitions, had not referred them to the city clerk and had refused to either pass the ordinance or to call an election; that the defendants acting in their representative capacities had failed to follow the mandatory provisions of G. S. 1935, 12-107, and threatened to continue to make the improvement known as the Army Engineers Flood Control Project and threatened to sell bonds of the city for the purpose of paying the costs thereof. The petition alleged that plaintiff had no plain and adequate remedy at law and that unless the writ of mandamus was issued the taxpayers of Wichita would be deprived of their property without due process of law and would be required to pay taxes on bonds issued under ordinance No. 15-270.
The petition then alleged that a regular city election had been held since the first petitions were filed and a total of 24,407 votes were cast at that election. On this account allegations were made setting out certain general legal questions that would arise if a special election were called at the present time.
The prayer of the petition was for an alternative writ of mandamus against the board of commissioners and the city clerk directing the commissioners to direct the city clerk to certify whether the petitions were sufficient and directing the city clerk to follow the order of the commissioners and issue a certificate, as required by G. S. 1935, 12-107, and if the clerk did issue his certificate of sufficiency directing the commissioners to either pass an ordinance repealing ordinance No. 15-270 or cause an election to be held or to show cause why they had not done so, or why a peremptory writ should not issue. The petition further prayed that we issue an order staying any further action under ordinance No. 15-270 in order that the matter might be held in status quo; that we declare the law as to the number of names required and that a referee be appointed to determine the facts should an issue of fact arise.
The outcome turns upon what construction is to be given ordinance No. 15-270 — hence it is set out here in full. It is, as follows:
“Ordinance No. 15-270
“An Ordinance Authorizing the Making of an Improvement Commonly Known and Referred to As the Army Engineers Flood Control Project Under and Pursuant to G. S. 1947 Supp. 19-3301 Through 19-3307.
“Be It Ordained by the Board of Commissioners of the City of Wichita, Kansas:
“Section 1. That it is a public necessity to make an improvement commonly known and referred to as Army Engineers Flood Control Project for the protection from floods of the City of Wichita, Kansas, under and pursuant to G. S. 1947 Supp. 19-3301 through 19-3307, said City of Wichita, Kansas, being located in Sedgwick County, Kansas, a county traversed and touched by the Arkansas River. That said improvement shall consist of various dikes, levees, flood ways, diversion channels, control structures, embankments, river deepening, straightening, widening, narrowing and filling, all as set out and described in general terms in a document issued by the Corps of Engineers, United States Army, entitled Definite Project Report, Wichita and Valley Center Flood Control Project, dated August, 1945.
“Section 2. That it is hereby found and determined that the improvement aforesaid is for the general benefit of the City of Wichita, Kansas, and that the cost thereof be paid by the city at large and that to pay said cost, when ascertained, bonds of said city be issued in accordance with the provisions of G. S. 1947 Supp. 19-3307.
“Section 3. That the City Manager and all subordinate employees be and they are hereby authorized and directed to prepare a preliminary estimate of the cost to the City of Wichita of such improvement and to present such preliminary estimate to this body for its approval and thereafter to proceed with all necessary action for the making of the improvement described in Section 1 hereof.
“Section 4. This ordinance shall take effect and be in force from and after its adoption and publication once in the official city paper.”
By the time the case came on to be heard finally on June 9, 1949, the defendants as we have noted filed an answer and return. They admitted the official position of the parties and the enactment of ordinance No. 15-270. They also admitted that the document entitled “Definite Project Report, Wichita-Valley Center Flood Control Project” contained alternative plans but alleged that by adoption of a resolution on August 14,1945, a copy of which was attached to the answer, the city adopted the plan of utilizing the Big SloughCowskin Floodway and contracted with the United States for construction of improvements utilizing that plan and no other. The answer admitted the filing of the petitions and that the city clerk had not certified to their sufficiency but alleged that he had not so acted because of any direction of the board of commissioners and alleged that until the petitions were certified the commissioners had neither the duty nor the authority to take any action and denied that the failure of the clerk to certify as to the sufficiency of the petitions was the result of any action of the commissioners. The answer then alleged that on August 14,1945, the city commissioners adopted two resolutions, copies of which were attached to the answer, and that in these resolutions the board announced its legislative policy declaring that the construction of flood control works for the prevention of flood hazards in the Arkansas, Little Arkansas rivers, and Chisholm creek was necessary for the public welfare of the city and it was a public necessity to sponsor the Army’s Big Slough-Cowskin Floodway Plan for the prevention, control, or mitigation of floods or flood hazards along these water courses and that in these resolutions the city commissioners agreed to — •
“(a) Provide without cost to the United States the lands, rights-of-way and easements necessary for the construction of the project.
“(b) Hold and save the United States free from all claims for damages due to the construction works.
“(c) Maintain and operate all of the works after completion in accordance with regulations prescribed by the Secretary of War.”
The answer then alleged that these resolutions were forwarded through channels to the secretary of war and on February 25, 1946, the secretary of war accepted the proposals contained in the resolutions and thereby a contract between the city of Wichita and the United States came into being. A copy of the correspondence was attached to the answer.
The answer further alleged that on April 22, 1947, the board of commissioners adopted and published a resolution readopting the resolutions of August 14, 1945. A copy of that resolution was attached to the petition. The answer then alleged that on March 22, 1948, in reliance upon the contract between the United States and the city of Wichita, the board of county commissioners of Sedgwick county by resolution agreed as to that portion of the flood control project known as the Big Slough Floodway, the board would undertake the same obligation the city had taken with reference to the other part of the project. A copy of this resolution was attached to the petition. The answer further alleged that this agreement was accepted by the United States. The answer further alleged that on March 30, 1948, the board of commissioners of the city of Wichita adopted a resolution in which the adoption of all previous resolutions was referred to and agreed that the acceptance of the assurances above stated on the part of the county by the United States should not in any manner impair or lessen the assurances made by the city of Wichita in the resolutions that had been adopted that have been referred to heretofore. The answer then alleged that this resolution was transmitted to the United States; that for the purpose of carrying out the contracts between the city of Wichita and the United States the commissioners on June 22,
1948, adopted ordinance No. 15-270 directing its employees to proceed with all the necessary action for the making of the improvement. The answer then alleged—
“Said ordinance established no legislative policy, but simply directed the carrying out of contracts long before entered into between the City and the United States, in which contracts the legislative policy of the City had long before been stated. Repeal of the ordinance would leave such contracts in force without in any way altering the City’s obligations under such contracts.”
The answer then alleged that pursuant to the contracts between the city and the United States and between Sedgwick county and the United States each have expended many thousands of dollars; condemnation proceedings were in progress; that prior to June 9, 1949, the city would have acquired the necessary land for a portion of the project; that prior to June 15, 1949, the county would have acquired the necessary lands for the entire portion of the project; that the city had been informed by the Corps of Engineers that it expected to let contracts for construction in June, 1949; that the actual construction would commence in September, 1949; that the city attorney on April 8, 1949, gave the city clerk his written opinion that ordinance No. 15-270 was not subject to the provisions of G. S. 1935, 12-107; that the clerk had no duty to perform in regard to the petitions; that copies of the opinion were furnished to counsel for plaintiff. The answer further alleged that the city clerk took no action with respect to the petitions on account of this written opinion and alleged that the ordinance was not within the provisions of G. S. 1935, 12-107, and the city clerk had no duty to perform in regard to it. The answer further alleged that if ordinance No. 15-270 was legislative in character any legislative policy therein stated would be a reassertion of the policy adopted August 14, 1945, and frequently reaffirmed thereafter; that the attempt made on March 16, 1949, to compel a referendum vote upon those resolutions was not timely and petitioners were precluded from securing such referendum by reason of their laches; that if the repeal of ordinance No. 15-270 should alter or impair the obligations of the city of Wichita under its contracts with the United States such at tempted, repeal .would be void for the reason it would impair the obligations of the contract. The resolutions pleaded in the answer are as follows:
“Exhibit ‘A’
“resolution
“A Resolution Declaring That in the Opinion of the Board of Commissioners of the City of Wichita, the Construction of Flood Control Works Under the Provisions of Chapter 391, of the Session Laws of Kansas for 1945 is Necessary for the Public Welfare.
“Be It Resolved by the Board of Commissioners of the City of Wichita, Kansas:
“Section 1. That it is hereby declared to be the opinion of the Board of Commissioners of the City of Wichita that the construction of flood control works for the prevention, control and mitigation of floods or flood hazards upon or along the Arkansas and Little Arkansas Rivers and Chisholm Creek is necessary for the public welfare of the City of Wichita, and that the Board of Commissioners of the City of Wichita hereby declare it to be a public necessity to sponsor a plan for the prevention, control or mitigation of floods or flood hazards upon or along the Arkansas and Little Arkansas Rivers and Chisholm Creek as prepared by the Corps of Engineers of the United States Army, which is more particularly described in a copy of a Resolution attached and made a part hereof.
“Section 2. This Resolution shall take effect and be in force from and after its adoption and publication once in the official City paper.
“Adopted at Wichita, Kansas, this 14th day of August, 1945.
“Phil H. Manning
“Mayor
“Attest:
“C. C. Ellis
“City Clerk
“(Seal)
“State of Kansas, Sedgwick County, City of Wichita, ss:
“I, C. C. Ellis, City Clerk of the City of Wichita, Kansas, hereby certify that the above is a true and correct copy of a resolution adopted by the Board of Commissioners of the City of Wichita, Kansas, on August 14, 1945, published in the Wichita Beacon on August 15-, 1945, and on file in this office. “Given under my hand and seal .........................................
“City Clerk
“Exhibit ‘B’
“resolution
“A Resolution Declaring That the City of Wichita, Kansas, Will Meet the Requirements of the Provisions of Chapter 391 of the Session Laws of Kansas for 1945 in the Entering Into an Undertaking with the United States of America: Contracting with the Federal Government in the Name of the City for the Keeping in Repair and Operating of Flood Control Works, and the Furnishing of Necessary Lands, Rights of Way and Easements for Such control Works.
“Whereas, the Corps of Engineers of the United States Army at the requests of interested citizens of the City of Wichita have developed various alternative plans for the construction of flood control improvements to protect the City of Wichita in Sedgwick County, Kansas, from floods upon or along the Arkansas and Little Arkansas Rivers and Chisholm Creek, and
“Whereas, these alternative plans have been presented to responsible officers of both the City of Wichita and Sedgwick County, Kansas, for their study and comment, and
“Whereas, after a full and complete discussion of the various plans, the Board of Commissioners of the City of Wichita have agreed that a plan of improvement similar to that authorized by the Flood Control Act of June 22, 1936, and selected in House Document No. 308, 74th Congress First Session, is the most desirable plan for the protection of the City of Wichita, (and as is also described by the Corps of Engineers of the United States Army for Valley Center) Kansas, and best meets the needs and desires of the said, The City of Wichita, and
“Whereas, the Board of Commissioners of the City of Wichita, Kansas, have approved the aforesaid plans, and have instructed the City Manager of the City of Wichita to notify the District Engineer, United States Engineer Office, Tulsa, Oklahoma, representing the Corps of Engineers in this area, that the City of Wichita accepts and approves the aforesaid plan for the protection of the City of Wichita, (and is also described by the Corps of Engineers of the United States Army for Valley Center), Kansas; provided that the route of the Big Slough Floodway as included in that plan be modified to also intercept and provide protection from flood waters on Cowskin Creek in addition to the area covered by the authorized City of Wichita project; and that said modification be made in the route of the proposed Little River Arkansas Floodway and the Chisholm Creek diversions as presented to the City of Wichita by letter of June 23, 1945, signed by D. P. Grosshans, Lt. Col., Corps of Engineers, Directors of Engineering Division.
“Now Therefore Be It Resolved by the Board of Commissioners of the City of Wichita, Kansas:
“Section 1: That the City of Wichita, Kansas, under authority of Chapter 391 of the Session Laws of Kansas for 1945, hereby agrees as follows:
“1. To provide without cost to the United States the lands, rights-of-way and easements necessary for the construction of the project.
“2. To hold and save the United States free from all claims for damages due to the construction works.
“3. To maintain and operate all of the works after completion in accordance with the regulations prescribed by the Secretary of War.
“Section 2: This Resolution shall take effect and be in force and after its adoption and publication once in the official city paper.”
At the outset, it may be stated the provisions of G. S. 1935, 12- 107, being the so-called initiative and referendum statute, applies only to what are designated as legislative ordinances as distinguished from administrative ones. (See State, ex rel., v. City of Kingman, 123 Kan. 207, 255 Pac. 645; State, ex rel., v. Morton, 128 Kan. 125, 276 Pac. 62; 43 C. J. 585; 37 Am. Jur. 845; 2 McQuillin Municipal Corporations 792, 122 A. L. R. Note 769.
Our inquiry turns to whether ordinance No. 15-270 is legislative or administrative. We treated such a question in State, ex rel., v. Charles, 136 Kan. 875, 18 P. 2d 149. There we quoted with approval the rule laid down in 43 C. J. 585, as follows:
“Actions which relate to subjects of a permanent or general character are considered to be legislative, while those which are temporary in operation and effect are not. Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power. Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.”
The rule is stated in Monahan v. Funk, 137 Ore. 580, 3 P. 2d 778, as follows:
“In determining whether the ordinance in question was legislative or administrative, we notice that the authorities in the books are in accord that actions which relate to subjects of a permanent or general character are considered to be legislative, while those which are temporary in operation and effect are not. Acts, which are to be deemed as acts of administration and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared, either by the legislative municipal body, or such as devolved upon it by the organic law of its existence. The form of the act is not determinative; that is, an ordinance may be legislative in character or it may be administrative.”
See, also, Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P. 2d 51.
Was the enactment of ordinance No. 15-270 necessary to carry out a legislative policy of the city already declared? A consideration of this question takes us to an examination of all the surrounding facts and circumstances, together with certain activity of Wichita, Sedgwick county, and the United States.
The story starts perhaps with the enactment of the Flood Control Act of 1936 by the National Congress — House Document No. 308, 74th Congress, First Session, 33 U. S. C. A., section 701, A through H. By this enactment the federal government embarked upon a general program of flood control throughout the nation.
The first section, in part, stated it to be the sense of congress that flood control was a proper activity of the federal government in cooperation with the states and their political subdivisions.
The second section provided that flood control investigations should be under the direction of the war department, and the supervision of the chief of engineers.
Section 3 provided, amongstmther things, that no money appropriated under authority of the act should be expended “on the construction of any project until states, political subdivisions thereof, or other responsible local agencies have given assurances satisfactory to the Secretary of War that they will (2) provide without cost to the United States all lands, easements, and rights-of-way necessary for the construction of the project, except as otherwise provided herein: (b) hold and save the United States free from damages due to the construction works; (c) maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of War.”
The fourth section provided authority for states to enter into compacts.
The fifth section provided, in part, as follows:
“Sec. 5. That pursuant to the policy outlined in sections 1 and 3, the following works of improvement, for the benefit of navigation and the control of destructive flood waters and other purposes, are hereby adopted and authorized to be prosecuted, in order of their emergency as may be designated by the President, under the direction of the Secretary of War and supervision of the Chief of Engineers in accordance with the plans in the respective reports and records hereinafter designated:”
Then followed a brief description of various projects in many of the river basins of the nation. There were about twenty-one on Kansas rivers. One of them is as follows:
“Wichita and Valley Center, on Arkansas River in Kansas and vicinity: Levees and floodway to protect people, city property, and environs; House Document Numbered 308, Seventy-four Congress, first session; estimated construction cost, $2,603,100; estimated cost of lands and damages, $1,597,100.”
This is the project with which we are concerned. It may be seen at a glance this project is merely a small portion of a general flood control plan. The list included about a thousand or more projects scattered all over the nation. For each project there was provided an estimated cost item. Clearly there had been some preliminary investigations by some federal agency before this act was passed.
It' will be noted that all these projects were authorized and directed to be prosecuted. The only limitation was that the president should designate the order'of their emergency under the direction of the secretary of war. The important thing to remember is that this, project is part of a comprehensive plan for the entire nation and the entire plan, including each project, is under the supervision of the secretary of war, also a preliminary survey and estimate of the cost had been made by the engineers corps before the act was passed.
Our examination next goes to our legislature. G. S. 1947 Supp. 19-3301 to 19-3307, was enacted as chapter 391 of the Laws of 1945, and amended in 1947. It was entitled “An Act Relating To The Construction of Flood Control Works In Certain Counties And Cities.”
The first section authorized the county commissioners in any county traversed or touched by the Arkansas river and in which the corps of engineers of the United States army should be authorized by congress to construct works for the prevention of floods, if in their opinion the construction was necessary for the public welfare “to (a) Enter into an undertaking in the name of the county to hold the United States of America free of any damage to persons or property resulting during construction or after the completion thereof, (b) to contract with the federal government in the name of the county that when said work is completed the said county will maintain, keep in repair, and operate such flood control works, and (c) to furnish all necessary lands, rights and easements, as provided in section 2 of this act.”
The second section gave the board of county commissioners of those counties where it was required by the federal government as a condition for the construction of flood control works authority to acquire such rights of way or easements as might be necessary by purchase, gift or the exercise of eminent domain.
Section 3 gave counties the power to issue bonds for this purpose without an election, the aggregate of such bonds not to be in excess of one-half of one percent of the assessed valuation of the county. It also provided that these bonds should not be included in any restriction upon the amount of bonded indebtedness of the county contained in any other law then affecting said county.
The fourth section provided that any damage or expense to which the county might be put by having complied with the undertaking to protect the United States, as provided for in the first section, might be paid for from any funds on hand or from the sale of the bonds issued under the provisions of the act.
The fifth section made a provision for maintaining and operating the flood control works after they should be constructed by an annual tax levy not to exceed one mill for that purpose.
The sixth section provided as follows:
“That for the purpose of carrying out' any of the provisions of this act, the board of county commissioners are hereby authorized to enter into agreements with the United States of America or any department or agency thereof and with any city or drainage district, or other county or body politic, as well as with any person, firm or individual whenever it shall be necessary as a condition to the construction of flood control works hereunder, and for the maintenance, repair or operation thereof.”
The seventh section provided that except as otherwise expressly provided all of the powers conferred by the preceding sections on the counties were also conferred upon any city located in such county, and it gave the governing body of the cities power to enter into undertakings in a like maner and for like purposes, as the board of county commissioners were authorized to make agreements in the name of the county and might acquire lands, rights of way, and issue general obligation bonds of the city to pay the costs thereof, but the total aggregate of such bonds should not be in excess of one and one-half percent of the total assessed valuation of the city. The section further provided that the city might issue additional general obligation bonds for such purpose not in excess of three and one-half percent of the total tangible valuation of the city, and provided that before such additional bonds might be issued the question should be submitted to the qualified electors of the city and further that the total aggregate of such bonds should not be in excess of five percent of the total assessed valuation of che city, and provided that such bonds should not be subject to any restrictions upon the total amount of bonded indebtedness of the city. The section further provided that funds received from the sale of bonds might be used to pay any loss, damage or expenditures for which the city might be liable and provided for an annual tax levy not to exceed one mill in addition to other levies for maintaining the flood control works after they should be built and made it the duty of the governing body of the city to keep such works in serviceable condition.
It is clear the above act was enacted to enable cities such as Wichita and counties such as Sedgwick to take advantage of the proposed project that was authorized in the National Flood Control Act of 1936.
As has been heretofore noted, we considered this statute in Board of County Comm’rs v. Robb, supra, and held that it did not violate any provision of either the state or federal constitutions. Under that title, we considered two applications for writs of mandamus, one by the Board of County Comm’rs of Sedgwick County v. Robb and the other is the City of Wichita v. Robb and other parties. We recognized in that opinion that actually in the construction of the flood control project in Sedgwick county, the county and city were each cooperating with the federal government and this had the effect of the municipalities cooperating with each other. At any rate, there is no contention here but that the county has assumed the responsibility of providing the right of way and other obligations provided for in the federal act for part of the flood control project while the city has made the same assurances as to the other portions of the project.
This takes us up to the activity of the city following the enactment of chapter 391 of the Laws of 1945. It will be remembered the Federal Flood Control Act provided that no money should be appropriated until certain assurances were made to the secretary of war by the political subdivisions. It also provided that these works should be carried on in cooperation with the state and its political subdivisions under the direction of the secretary of war and the supervision of the war department. Chapter 391 provided that before anything should be done the board of county commissioners and the governing body of the city should find the project to be “necessary for the public welfare.”
On August 14,1945, just about as soon as it could after Chapter 391 became effective by being published in the statute book, the city of Wichita adopted a resolution in which it found it was the opinion of the board of commissioners of the city of Wichita that the project we are considering was necessary for the public welfare and it was declared a public necessity to sponsor the plan. On the same date the city commissioners by the adoption of another resolution, which has been heretofore set out in this opinion, recited that the corps of engineers had developed alternate plans for flood control, described the one upon which they had agreed, and recited it had instructed the city manager to so- inform the corps of engineers. The resolution then provided: '
“Now Therefore, Be It Resolved by the Board of Commissioners of the City of Wichita, Kansas:
“Section 1: That the City of Wichita, Kansas, under authority of Chapter 391 of the Session Laws of Kansas for 1945, hereby agrees as follows:
“1. To provide without cost to the United States the lands, rights-of-way and easements necessary for the construction of the project.
“2. To hold and save the United States free from all claims for damages due to the construction works.
“3. To- maintain and operate all of the works after completion in accordance with regulations prescribed by the Secretary of War.
“Section 2: This Resolution shall take effect and be in force from and after its adoption and publication once in the official city paper.
“Adopted at Wichita, Kansas, this 14th day of August, 1945.
“Phil H. Manning
“Mayor
“Attest :
“C. C. Ellis
“City Clerk
“(seal)”
Such was the assurance Section 3 of the Flood Control Act of 1936 provided must be given by the municipality. With that the two resolutions were forwarded to the war department through channels. Then ensued a somewhat lengthy correspondence with the corps of engineers and various officers representing it as to some details of the project but finally on February 25, 1946, not quite a year after the project was approved by the secretary of war, that could mean nothing else but that the secretary of war was satisfied with the assurances that had been given by the city as to the three requirements provided for in the flood control act. For some reason on April 27, 1947, the board of commissioners of the city of Wichita passed a resolution reiterating these assurances.
The question is really whether by passing of the resolutions in 1945, to which attention has already been called, the city of Wichita declared a legislative policy which did not require any further legislation to carry it into effect. The plaintiffs here who are asking for the writ of mandamus argue vigorously that these resolutions could not be given that characterization because they did not arise to the dignity of a contract, that is, they argue the United States has not yet agreed to appropriate any money and the project cannot actually be carried out until the money is appropriated and made thereby available — hence the agreement on the part of the city ■stated in these resolutions was unilateral, lacked mutuality and no actual contract came into being. We cannot deal so lightly with the solemn declarations of the federal agencies, to which reference has been made. In the first place, the flood control act of 1936 is an outright declaration of congress that certain projects should be adopted and authorized to- be constructed.
The federal constitution, article I, section 7, provides:
“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Rills.”
The Rules of the House provide in section 2 of Rule XXI, as .follows:
“No appropriation shall be reported in any general appropriation bill, or be .in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works and •objects as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order, except such as being .germane to the subject matter of the bill shall retrench expenditures by the reduction of the number and salary of the officers of the United States, by the reduction of the compensation of any person paid out of the Treasury of the United States, or by the reduction of amounts of money covered by the bill: Provided, That it shall be in order further to amend such bill upon the report •of the committee of any joint commission authorized by law or the House Members of any such commission having jurisdiction of the subject matter of such amendment, which amendment being germane to the subject matter of the bill shall retrench expenditures.”
Hence it will be seen that before any money could be appropriated to construct this project it was necessary that the expenditure be authorized in another bill, such as the Flood Control Bill, separate from any appropriation bill. Furthermore, the first paragraph of Rule XVI of the Senate provides:
“1. All general appropriation bills shall be referred to the Committee on Appropriations, and no amendments shall be received t-o any general appropriation bill the effect of which will be to increase an appropriation already contained in the bill, or to add a new item of appropriation, unless it be made to carry out the provisions of some existing law, or treaty stipulation, or act, or resolution previously passed by the Senate during that session; or unless the same be moved by direction of a standing or select committee of the Senate, or proposed in pursuance of an estimate submitted in accordance with law.”
Furthermore, the city of Wichita dealt with the only agencies provided by the statute, that is, the war department and the corps of engineers. Are we to say that the approval given by the corps of engineers and the secretary of war carried no binding effect at all, and are to be given no weight by us in the consideration of this question? We do not feel that we should treat such declarations so lightly. We have four separate entities here, that is, the federal government, the state, the county, and the city. The federal government in deciding to carry on the flood control projects throughout the nation decided the political subdivisions that were to receive the benefit of the expenditure of federal funds should provide rights of way, should hold the United States free from damages, and should agree to maintain the projects after they were built. If we say the action taken by the city of Wichita in the early resolution did not bind the city to that policy, then it would be impossible for any municipality in Kansas to ever get the benefit to be had from the expenditures of federal funds in carrying on flood control projects. The practice has become too general throughout the nation for us to take that responsibility. We detect in the argument of plaintiffs here a thought that perhaps they know better how the flood problems should be dealt with in Sedgwick county than do the city and county and army engineers. That seems to be the question they would submit to the voters at this stage in the proceedings. Such an election if given the weight contended for by plaintiffs might well have the effect of halting any flood control project in Sedgwick county since it clearly appears the present project is the one and the only one that the army engineers would approve. According to the flood control act it can only be built upon their approval. Actually ordinance No. 15-270 is little more than a statement in a condensed form of the policy adopted by the city in its earlier resolutions. It should not be classified as a legislative ordinance and G. S. 1935, 12-107, does not apply to it. Should this election be held and the voters decide for its repeal, such repeal would have no bearing on the effectiveness of the earlier resolutions.
The writ will be denied. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal by the defendant company from verdicts and judgments rendered in the lower court arising out of personal injuries sustained by one of the plaintiffs and damage to the truck of the other plaintiff as the result of a collision between a city bus of defendant company and the truck in which plaintiffs were riding at a street intersection in the city of Wichita. The cases were consolidated and tried as one in the lower court and have been consolidated on appeal. The facts are substantially as follows:
On October 9, 1943, the plaintiffs, Mary Marie Rosson and Keith Rosson, residents of Seward county, Kansas, together with their daughter, started out for Garnett, Kan., in their Chevrolet pickup truck. About four o’clock that afternoon they were driving through Wichita on U. S. Highway 54 which runs on Douglas avenue. Mrs. Rosson was driving, the daughter was in the middle and Mr. Rosson was on the right. They were driving east on Douglas avenue and as they approached the intersection of Douglas and Meridian they noticed a city bus of defendant company approaching from the east. This is a peculiar and unusual intersection. Meridian is a north and south street and is 46 feet wide both north and south of Douglas. Douglas is 50 feet wide east of Meridian and 40 feet wide west of Meridian. At the intersection Douglas jogs to the south 20 feet on the north and 10 feet on the south, thus making the center line on Douglas west of Meridian considerably south of the center line on east of Meridian. They testified that when they were perhaps a third of a block west of the intersection they noticed the bus pull out from the north lane toward the middle of the street and that they naturally thought it was merely pulling over to the south so as to make the jog at the intersection in order to continue west on Douglas. According to plaintiffs the bus driver made no signal whatever for a turn. Plaintiffs continued on east into the intersection without slowing appreciably, all of the time thinking that the bus was merely edging over to the left in order to make the jog at the intersection. While in the intersection they first noticed that the bus was making a left turn to go south on Meridian, and in attempting to avoid the. bus Mrs. Rosson swerved the truck to the south in a sort of semicircular movement. According to a police officer who investigated the accident and took measurements the point, of impact between the two vehicles was two feet west of the east curb of Meridian and nine feet north of the south curb line of Douglas on the east side. After the collision the truck continued to the east and south striking the curb and throwing Mrs. Rosson out on the pavement between the truck and the bus. She was taken to a hospital suffering from injuries to her head, back and limbs. Considerable damage was done to the truck.
Defendant’s demurrer to the evidence of the plaintiffs was overruled by the court.
The evidence submitted on behalf of the defendant was substantially the same except that the bus driver testified that she gave a signal for a left turn approximately a half block east of Meridian and her estimate of the speed of the truck was considerably higher than that testified to by the plaintiffs and as subsequently found by the jury. Also according to her, plaintiffs’ truck was about half a block west when she drove the bus into the intersection. A passenger who was riding in the rear of the bus at the time of the collision testified that he saw the truck coming from the west and further that he noticed the bus driver signal for a left turn with her left hand and that the bus stopped before the impact. Another passenger on the bus testified that he saw the truck coming from the west; that the bus driver made a hand signal for the left turn and that the bus was standing still at the time the truck hit it.
Plaintiff Mary Marie Rosson brought suit for $15,000 damages by reason of pain, suffering and disability incurred as a result of her injuries. Plaintiff Keith Rosson brought suit for the sum of $1,250 on account of damages to his truck.
The jury returned a verdict in favor of the plaintiff, Mary Marie Rosson, in the amount of $8,275, and a verdict in favor of Keith Rosson in the amount of $400.
The jury, in answer to special questions, found that the speed of the bus as it commenced its turn was 12 miles per hour; that the truck of the plaintiffs was going 28 miles per hour as it crossed the intersection; that the driver of the truck did not attempt to slow up or stop at any time; that the bus was moving at the time of the collision; that the bus driver did not give a signal indicating her intention to turn; that the truck was 105 feet west of the bus at the time the bus commenced its turn; that the driver of the truck attempted to swerve around the front of the bus; that there was room for the truck to pass between the bus and the southeast corner of the intersection and that the collision was not caused by the negligence of both plaintiff and defendant.
The jury further found that plaintiffs were not guilty of any negligence which was a proximate cause , of the collision, and in answer to this question, “What if any negligence do you find as against the defendant which was a proximate cause of the collision?” stated, “Failing to give proper signal at proper time. Improper entry into the intersection, and failing to yield right of way.”
The defendant filed a motion for judgment on the answers to special questions on the ground that such answers convicted the plaintiffs of contributory negligence as a matter of law, or in the alternative that the court grant a new trial.
As to the verdict in favor of Keith Rosson for $400 for damages to his truck, the court granted a remittitur in the amount of $200 but otherwise approved the verdicts of the jury, overruled the defendant’s motions for judgment and for a new trial and entered judgment in favor of the plaintiff, Mary Marie Rosson, in the amount of $8,275, and in favor of Keith Rosson in the amount of $200, following which defendant perfected its appeal.
In its brief and argument to this court defendant stresses two points, the first being that there was no negligence on the part of the bus company that did not involve negligence of the plaintiffs, and secondly, that the verdict rendered was excessive.
This is a fact case — pure and simple — and our reports are bulging with lengthy opinions and discussions involving like and similar cases. Under facts and circumstances giving rise to the application of some uncommon principle of law we would consider it necessary to set out in detail the evidence introduced and the shades of distinction giving rise to the application of the rule involved. We do not consider it necessary to do so, however, under the facts of this case. In our opinion the evidence of the plaintiffs made out a prima facie case amply sufficient to withstand the demurrer of defendant.
There was no dispute as to many of the facts testified to by the witnesses for both sides. The jury was properly instructed with respect to all issues involved, including contributory negligence and proximate cause. It resolved those facts and issues in favor of plaintiffs and from our examination and study of the record before us we are of the opinion that each of the answers to special questions was based upon competent, substantial evidence, and that they are not inconsistent with each other or with the general verdicts. The jury absolved the plaintiffs of any negligence which was a proximate cause of the collision and further found that the collision was not caused by the concurring negligence of both drivers. Defendant argues that as a matter of law Mrs. Rosson was guilty of contributory negligence in that she did nothing toward slowing up or stopping the truck as she saw that the bus was “doing something.” Our answer to that contention is that the jury was justified in believing her theory, namely, that in the absence of a signal she supposed the bus was merely edging toward the left in order to make the jog at the intersection.
A further matter, and in our opinion one of great importance, and also undoubtedly so to the jury, is the fact that the undisputed testimony in this case is that the point of impact was two feet west of the east curb of Meridian and nine feet north of the south curb line of Douglas on the east side. It is very obvious therefore that this collision took place over in the southeast corner of this intersection and at a point where, under any stretch of the imagination, the bus did not belong even when making a left turn in this admittedly unusual type of intersection. We have examined this record in detail and all authorities cited in the briefs and conclude that so far as this phase of the case is concerned the rulings of the lower court were entirely correct.
This brings us to the question of the alleged excessive verdict rendered in favor of Mrs. Rosson. At the time of the collision she was either thrown or fell to the pavement and was temporarily “knocked out.” She was taken immediately to the hospital suffering from severe pain in her head, back, abdomen and limbs and vomited most of the next day. There were bruises on her head and various parts of her body. She was released from the hospital after three or four days. Her attending physician testified as to her condition, particularly with reference to her back injury and also to the fact that she had returned for further treatments approximately once a month for four or five months after the injury. A portion of his testimony with reference to the back injury follows.
“Q. And, doctor, from your examination of her back on the following dates, were you of the opinion that further medical treatment would help her? A. Well, I feel like this, on a back injury. After 60 or 90 days I don’t think it will help any after that unless you can definitely prove something anatomically wrong with the bony structure, after your healing is quite well completed in 60 to 90 days I think it remains that way the rest of her life.
“Q. I will ask you from your examination of Mrs. Rosson on the subsequent visits to your office, did you form any opinion as to whether or not there had been any permanent injury to her back? A. No, I did not form any opinion, I was trying to get the patients in and get them out. I probably had 25 or 30 more waiting, outside.
“Q. Well, Doctor, if it is a fact she still experiences pain (Tr. 63) in her back on occasions she was lifting and has swollen area down her back, in your opinion as a medical practitioner, would those symptoms indicate a permanent injury to her back? A. Well, I believe it would, definitely.
“Q. If they continued until as recently as two weeks ago, would you have an opinion as to whether or not the condition was permanent? A. Yes, I would say that anything continuous for 4 or 5 years would have to be permanent, that is right.”
Another physician, an orthopedist, testified concerning an examination he had made of her in the fall of 1946, three years after the injury. He found nothing particularly wrong with her in the “objective” sense of the word but stated that she still complained of pain in the lower part of her back.
From the time of their marriage in 1941 she and her husband had farmed 3,200 acres of western Kansas wheat land. Both testified as to the part she had formerly taken in such operations, the work she had been in the habit of doing and as to the fact that they were forced to move into town due to her inability to continue as in the past on account of the injuries to her back. These matters were gone into in considerable detail. This trial was had in April, 1948, at which time she was thirty-nine years of age. She testified that she still had pains in her lower back and was unable to lift objects or to perform many household and farm duties which she formerly had done.
Was this verdict in the amount of $8,275 excessive? As has been so aptly stated in many decisions of this court, an alleged excessive verdict or judgment is one of the most difficult problems with which an appellate court has to deal. Many verdicts have been reduced on the ground that they “shocked the conscience of the court.” In this case the jury resolved all disputed questions of fact with reference to the negligence of the parties in favor of the plaintiffs and we have already held that the findings of the jury in such respect were based on competent, substantial evidence. On the question of the personal injuries sustained by Mrs. Rosson, the jury had the. opportunity to hear her testify, to watch her demeanor on the witness stand and to form an opinion as to her truthfulness concerning the extent of her injuries, pain and suffering. The same applies to the testimony of the two physicians and likewise to that of Mr. Rosson concerning the suffering undergone by his wife over a period of several years and as to their changed conditions brought about by her partial incapacitation. Considerable stress is laid in appellant’s brief as to the distinction between “objective” and “subjective” symptoms with respect to her injuries and their alleged permanency but we have no doubt that the matter was thoroughly argued to the jury and a discussion of the question would serve no useful purpose in this opinion. In order to hold this verdict excessive we would have to substitute our judgment for that of the jury and the trial court and under the facts and circumstances of this case we do not' feel compelled to do so.
No objection is made as to the excessiveness of the judgment ultimately rendered in favor of plaintiff Keith Rosson for damages to his truck.
From what has been said it necessarily follows that the judgments of the lower court should be and they are hereby affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted by Hyde Park Dairies, Inc., of Wichita, engaged in the processing of milk and milk products and in the distribution and sale thereof, to determine the validity of a milk ordinance of the city of Newton.
The petition was framed primarily with the view of obtaining an adjudication under the declaratory judgment act. (G. S. 1935, 60-3127 to 60-3132, inch)
The demurrer of the city of Newton was sustained to plaintiff’s amended petition and the plaintiff appeals. Pertinent averments of the amended petition are appended to the opinion and made a part hereof. The petition had been attacked by motions to strike and to make definite and certain. One part of the first motion was sustained and another part was overruled. The second motion was sustained. The amended petition was not attacked by motion but only by demurrer on the following grounds:
“First: That the court has no jurisdiction of the subject of the action.
“Second: That the petition does not state facts sufficient to constitute a cause of action.”
The ruling does not disclose on which of such grounds the demurrer was sustained or whether it was sustained on both grounds.
The district court, of course, has original jurisdiction in declaratory judgment actions. It is expressly granted jurisdiction in such cases involving the interpretation of municipal ordinances. (G. S. 1935, 60-3127.) It has long been settled courts also have jurisdiction, under the declaratory judgment act, to determine the validity of statutes or ordinances before a party undertakes to act in apparent violation thereof. That is the purpose and intent of the remedial relief contemplated by the act. (G. S. 1935, 60-3132; City of Wichita v. Wichita Gas Co., 126 Kan. 764, 769, 271 Pac. 270.) It follows the first ground of the demurrer is not good.
Appellant next contends the second ground of the demurrer cannot be sustained for the reasons (1) the amended petition clearly shows on its face an actual controversy exists and (2) such a showing is sufficient to withstand a general demurrer in an action framed under the declaratory judgment law.
The amended petition fairly bristles with controversy and appellee does not contend otherwise. In order to understand that such a showing in a petition is sufficient when challenged by a general demurrer it is necessary to clearly understand the peculiar nature of the declaratory judgment act and how actions thereunder differ from ordinary actions. The essence of an action under that act is the existence of an actual controversy. If a petition drawn pursuant to that act discloses an actual controversy exists with respect to any subject matter within the purview of the act the petitioner has made the initial showing which entitles him to a hearing on the remedial relief sought. Such a petition is sufficient to require the defendant to move forward with an answer. It is not necessary that the petition disclose.all the facts and contentions which may ultimately become involved in the remedial relief sought under the provisions of G. S. 1935, 60-3132. Whether the petitioner ultimately shall be entitled to such relief is to ,be determined from a full disclosure of all the material facts and contentions of the respective parties. These should appear by stipulation of the parties or from matters clearly alleged in the pleadings.
In School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230, we held:
“When an action is filed for a declaratory judgment and the petition sets forth facts showing an actual controversy concerning some matter covered by the statute, R. S. 60-3127, it is the duty of the district court to overrule the demurrer to the petition and proceed with the cause in accordance with the provisions of R. S. 60-3127 to 60-3132, inclusive.” (Syl. If 1.)
To the same effect are the later cases in which the propriety of employing a demurrer to a petition in such actions was determined. (City of Cherryvale v. Wilson, 153 Kan. 505, 510, 112 P. 2d 111; Doman Hunting & Fishing Ass’n v. Doman, 159 Kan. 439, 445, 155 P. 2d 438.)
The soundness of this general rule seems obvious. While there may be cases in which no facts a defendant might plead and no contentions he might make could possibly affect the interpretation or validity of a statute or ordinance, we do not desire to so conclude in advance of an answer and hearing in this case. We are convinced it was not the intention of the declaratory judgment act to prejudge matters which might become material in determining the propriety or justice of the relief sought. This it would seem is doubly true where the constitutionality of a statute or ordinance affecting the public interest is involved.
What a defendant alleges or contends may, or may not, ultimately aid him but these matters should be fully presented in a proceeding instituted prior to a violation of legislative prohibitions for the purpose of obtaining an adjudication of the rights of the parties. That was the express purpose of the act. (City of Wichita v. Wichita Gas Co., supra, p. 769.) These things were all spelled out in detail in City of Cherryvale v. Wilson, supra. After clearly stating the contentions of the respective parties must appear from the pleadings and not from their briefs we further said:
“It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. Assuming there is an actual controversy between the parties, the petition should state the facts out of which the controversy arose, should state clearly the view or claim of plaintiff, and also state clearly the view or claim of the defendant, and the court should be asked to adjudicate the controversy. The appropriate pleading for defendant to file is an admission that the controversy arose from the facts stated by plaintiff, and that plaintiff’s contention is correctly stated; also, that defendant’s contention is correctly stated, if, of course, defendant agrees that the matters are so pleaded. If defendant thinks the facts giving rise to the controversy are not accurate or fully stated, or that the contention of the plaintiff or that the contention of the defendant is not accurately or fully stated, his answer should plead the facts and the contentions as he understands them to be. If defendant pleads the facts and the contention is contrary to that pleaded by plaintiff, plaintiff by reply should either admit those, or deny them. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy as to how the contentions of the parties arose, or as to what they are; these things should be agreed upon in the pleadings, or some other form of an action should be brought.” (p. 510.)
In concluding the amended petition was sufficient to withstand a general demurrer we have not overlooked appellee’s contention the petition contained some conclusions rather than allegations of fact. Assuming, without deciding, some of the contentions are good the facts well pleaded disclose an actual controversy existed which, as previously indicated, is sufficient.
One other point pertaining solely to the interpretation of the ordinance should be noted. The amended petition, among other things, alleges:
“That an actual controversy exists between the plaintiff and the defendant as to the validity of the ordinances above referred to as construed and applied by the defendant City in excluding the plaintiff from its legal right to deliver and sell milk products in the City of Newton, and to be issued a license and permit to do so.” (Our italics.)
From the allegations of the amended petition it would appear section 11 of the ordinance is the principal provision in controversy. The contention of appellee with respect to the proper interpretation and application thereof is contained in no pleading. Appellee’s contentions can be gleaned only from its brief and oral argument. On oral argument before this court it appeared counsel for appellee were not in full accord as to its proper interpretation. The record does not disclose what interpretation the trial court may have placed upon it. This court cannot review such interpretation without knowing what it was. Furthermore, any controversy that may exist relative to the proper interpretation of the ordinance should be laid at rest before determining controversies pertaining to its constitutional validity.
In any event the amended petition clearly discloses an actual controversy exists and the order sustaining the demurrer must be reversed. It is so ordered.
Harvey, C. J., dissents.
“Third: That the plaintiff is engaged in the processing of milk and milk products and in the distribution and sale of milk and milk products in the City of Wichita and in various cities in the trade area of the City of Wichita. That in the conduct of its business it is subject to and has complied with the statutes of the State of Kansas relating to public health and the provisions of the Food and Drug Act, the law and rules and regulations of the Board of Agriculture of the State of Kansas which deals specifically with the production, handling, and sale of milk and other dairy products, and the United States Public Health Service Milk Code.
“That in addition thereto, the plaintiff herein is subject to and has complied with all the terms and the rules and regulations of the ordinances of the City of Wichita pertaining to the handling and sale of milk and milk products. That said ordinance referred to in the City of Wichita is a standard ordinance complying with the United States Public Health Service Milk Code. That a copy of said ordinances is made a part hereof as if fully set forth herein. That said plaintiff has been fully inspected and approved under the terms of the said Wichita ordinances above referred to, and in compliance with such ordinances, the plaintiff has been approved as complying with all the terms of' the United States Public Health Service Milk Code. That said United States Public Health Service Milk Code and the ordinances of the City of Wichita are more stringent in their regulations and inspections than is ordinance No. 1184 and No. 1251 of the ordinances of the City of Newton, hereinafter referred to, except they do not contain provisions such as Section 11 of the Newton Code hereinafter set forth. ■
“Fourth: That the plaintiff made application to the defendant city for a permit to serve and sell in the city of Newton, Hyde Park pasteurized, homogenized grade A milk in paper cartons, and offered to and now stands ready to comply with each, every, and all of the provisions and ordinances of the City of Newton relating thereto, including the payment of all fees, except that it has not offered to and cannot comply with Section 11 as hereinafter set forth. That the City of Newton, Kansas, acting through its Board of Commissioners, denied said milk permit.
“Fifth: Plaintiff alleges, on information and belief, that defendant City, purported to act under and pursuant to the terms of Ordinances No. 1184 and No. 1251 of the City of Newton, which ordinances are made a part hereof, but because of length are not set forth in full herein. Plaintiff further alleges, on information and belief, that defendant City, in denying and refusing a license or permit to the plaintiff, claims to have acted pursuant to Section 11 of Ordinance No. 1184, which reads as follows:
“ ‘Section 11. Milk and Milk Products From Points Beyond the Limits of Inspection of the City of Newton, Kansas. Milk and milk products from points beyond the limits of 15 mile inspection of the City of Newton, may not be sold in the City of Newton or its police jurisdiction unless produced and pasteurized under grading provisions identical with those of this ordinance and approved by the Milk Inspector. Limits of inspection shall not exceed 15 miles beyond the city limits.’
“Sixth: That the action of the defendant City and its Board of Commissioners in denying the application of the plaintiff for a permit or license to sell and deliver milk and milk products in the City of Newton to the plaintiff was and is illegal, arbitrary, capricious and void for the following reasons:
“ (a) That the ordinance under which the defendant City claims to have acted, and particularly Section 11 thereof which is set forth above, while purporting to govern and regulate the sale of all milk and milk products within the City of Newton, is inconsistent and arbitrary in that it purports to permit the sale of milk and milk products in the City of Newton providing such milk or milk products are produced under certain standards, but by limiting inspection to a fifteen-mile radius, makes it impossible for any producer or vendor of milk beyond such radius to comply with the terms and conditions of said ordinance.
“(b) That said ordinance, and the interpretation thereof, has no reasonable or proper relation to the health or welfare of the citizens of Newton, but arbitrarily classifies producers or vendors of milk and milk products so as to grant a monopoly to producers or vendors within the fifteen-mile radius and to exclude those beyond such limits from the market in the City of Newton, thereby denying equal protection of the laws and violating the due process of law as guaranteed by the laws and constitution of the State of Kansas and of the United .States.
“(c) That Section 11 of said ordinance is inconsistent with and in conflict with the statutes and regulations of the State of Kansas relating to public health, the provisions of the Pure Food and Drug Act and the Board of Agriculture of the State of Kansas, none of which have any section whatever similar to Section 11 or in any manner restricting the production, pasteurization and inspection to any territorial limits whatever.
“Seventh: That the plaintiff has no adequate remedy at law, and cannot otherwise have its rights determined herein except by violation of the terms of said void ordinance, and criminal prosecution thereon if such prosecution should in fact be instituted by the defendant City.
“Eighth: That an actual controversy exists between the plaintiff and the defendant as to the validity of the ordinances above referred to as construed and applied by the defendant City in excluding the plaintiff from its legal right to deliver and sell milk products in the City of Newton, and to be issued a license and permit to do so.
“Wherefore, and by reason of the foregoing, plaintiff prays judgment against the defendant as follows:
“1. For an order of this Court determining and adjudicating that an actual controversy exists between the parties.
“2. For a declaratory judgment determining and adjudicating that the ordinance in itself or as interpreted and applied by the defendant as precluding the sale of milk or milk products by the plaintiff in the City of Newton, Kansas, is invalid and void.
“3. If upon determination of the legal controversy the defendant by and through its Board of Commissioners and the other representatives and agents of said City shall fail or refuse to accept and acquiesce in the judgment of this Court, that a writ of mandamus issue to said City and its officers, agents, and employees ordering and directing said defendant and its representatives to issue to the plaintiff a permit to sell milk and milk products in the City of Newton, Kansas, upon payment by the plaintiff of the lawful and regular fees therefor.
“Plaintiff further prays for its costs herein, and such other relief as is just and equitable.” | [
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Elliott, J.:
Wayne C. Larson appeals the summary judgment in favor of Continental Insurance Company (Continental), which denied Larson’s claim for underinsured motorist coverage for an accident.
We reverse.
The facts are essentially uncontroverted. Larson was involved in an auto accident with another vehicle driven by Shawn Bath, a minor. Larson was driving a vehicle owned by his employer, Missouri-Kansas-Texas Railroad Company (Katy), and was acting within the scope of his employment, Continental insured the Katy vehicle.
Katy’s agent, Mel Compton, negotiated the coverage and purchase of Katy’s insurance with a broker by telephone. The policy in question provided $1,000,000 liability coverage. Endorsement 4 listed uninsured/underinsured motorist coverage (UM) for Kansas resident insureds at $50,000. The policy also mentioned Form A1303 as an attachment. This form was Continental’s Kansas UM coverage limit rejection acknowledgement form and was used by Continental as evidence of an insured’s rejection of higher UM limits pursuant to K.S.A. 1989 Supp. 40-284. No form AÍ303 signed by a Katy representative was ever attached to the policy.
The Bath family policy had $50,000 liability limits. Continental intervened in plaintiffs personal injury suit and moved for summary judgment, claiming Katy had rejected UM coverage above $50,000. Larson also moved for summary judgment, claiming the rejection of UM coverage equal to the liability limit was insufficient under K.S.A. 1989 Supp. 40-284(c) and, thus, UM coverage of $1,000,000 was available.
The court granted Continental’s motion for summary judgment, ruling the rejection of higher UM limits was adequate.
K.S.A. 1989 Supp. 40-284(c) provides that the insured named in the policy may reject, in writing, the UM coverage mandated by 40-284(a). The purpose of UM coverage is to compensate an innocent victim who is injured by an uninsured or underinsured jlriver; the UM statute should be liberally construed to fulfill that intended purpose Stewart v. Capps, 14 Kan. App. 2d 356, 357, 789 P.2d 563 (1990).
The question presented in this case of first impression is easy to state: What kind of “writing” is required to evidence rejection of higher UM coverage by the named insured? And while every state except Michigan has an uninsured motorist statute, the statutory schemes are vastly different and in some cases are amended almost annually. As a result, we recognize cases from other jurisdictions have limited value.
Typically, the evolution of the rejection option for higher UM coverage changes from (1) insured has the right to reject, to (2) insured has the right to reject in writing, to (3) insured has the right to reject in writing and the rejection must be on a form prescribed by the state insurance commissioner. It would appear that litigation on the issue in California, Florida, and Louisiana has led to the statutory changes.
We align ourselves with the rationale of those courts which have expressed public policy goals similar to Kansas. It seems to us these courts express a rationale most consistent with statements by our Supreme Court that the UM statute is to be liberally construed. E.g., Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, Syl. ¶ 2, 549 P.2d 1354 (1976). See Widiss, Uninsured Motorist Coverage, 40 J.K.B.A. 199, 227-30 (1971). Because the rejection provisions detract from the public policy goals of protecting innocent victims, the rejection provisions are narrowly and strictly construed by these same courts. See, e.g., Patrick v. Cherokee Ins. Co., 354 Pa. Super. 427, 512 A.2d 24 (1986); Employers Cas. Co. v. Sloan, 565 S.W.2d 580, 583 (Tex. Civ. App. 1978).
Further, where the UM statute has a written rejection requirement, something less is ineffective despite clear evidence of the insured’s intent to reject the coverage. See Employers Cas. Co., 565 S.W.2d at 585.
In Patrick, the court strictly construed Pa. Stat. Ann. tit. 40, § 2000 (Purdon 1971) allowing certain common carriers to reject coverage, without reference to the insured’s intent. The plaintiff in Patrick was injured while riding in a taxicab. The cab company’s insurance policy included an unsigned endorsement entitled, “Rejection of Uninsured Motorist Coverage.” The court, in ruling the unsigned endorsement insufficient as a rejection in writing, noted: “ ‘There must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it. . . . The statutory mandate may be complied with only by including uninsured motorist coverage or by an affirmatively expressed rejection in writing by the insured.’ ” Patrick, 354 Pa. Super. at 432 (quoting Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 620, 300 A.2d 61 [1973]).
In Rankin v. West American Ins. Co., 84 Cal. App. 3d 829, 149 Cal. Rptr. 57 (1978), plaintiff was injured while driving a vehicle owned by his employer. The court found the rejection portions of the UM statute were not met and commented:
“[T]he named insured is a sophisticated business corporation, buying insurance under the guidance of its broker. . . . Nevertheless, the statute makes no exception for [these] circumstances. . . .
“It is futile for [insurer and employer] to argue their intent, or to point to provisions in the [employer’s] policy which are inconsistent with uninsured motorist coverage.” 84 Cal. App. 3d at 836. (Emphasis added.)
Another court has held that to effect a valid rejectioii of UM coverage the insured must expressly do so in writing in a single document, setting forth the specific date and particular policy. A writing, regardless of insured’s intent, of a less precise nature is ineffective. Roger v. Estate of Moulton, 513 So. 2d 1126, 1131-32 (La. 1987).
Additionally, at least one court has rejected the argument that a valid rejection of equivalent UM coverage can be found by applying for lower UM limits than liability coverage. Poots v. Motorist Ins. Cos., 38 Ohio App. 3d 48, 526 N.E.2d 71 (1986).
Our search for what the legislature intended by its rejection in writing language has proved fruitless. If we were free to roam the unfenced fields of conjecture, see St. Louis-San Francisco Rly. Co. v. State Corporation Comm., 187 Kan. 23, 27, 353 P.2d 505 (1960), we might speculate that rejection in writing by the named insured was intended to protect only the individual consumer/insured rather than sophisticated insureds like Katy. But given the lack of legislative guidance, we feel compelled to apply the philosophy of an intent to provide protection to injured victims and to liberally construe the protections of the UM statute by narrowly construing its exceptions. See Van Hoozer v. Farmers Ins. Exchange, 219 Kan. 595, Syl. ¶ 2. The language must apply equally to all those covered by the provisions of 40-284.
It has been said that hard facts make for less than good law. For example, the policy in question appears to be a renewal policy. That being the case, if a valid written rejection by the named insured were in place at the time the original policy was issued, there would be no need for a written rejection on the renewal policy. 40-284(c). Unfortunately, the record is silent as to the facts surrounding the issuance of the original policy.
Brief mention should be made of two additional arguments made by Continental. First, Continental argues plaintiff lacks standing to question whether his employer sufficiently rejected higher UM coverage in writing.
Since a rejection by a named insured binds all parties covered by the policy (K.S.A. 1989 Supp. 40-284[c]), we have no hesitancy in ruling that plaintiff, as a member of the class for whom the benefits of UM coverage were intended to apply, has standing to challenge the sufficiency of the rejection. See Pechtel v. Universal Underwriters Ins. Co., 15 Cal. App. 3d 194, 198-99, 93 Cal. Rptr. 53 (1971); Cullars v. Manatee County, 463 So. 2d 484 (Fla. App. 1985).
Finally, Continental contends 40-284 does not apply at all because the policy was not delivered or issued for delivery in this state. K.S.A. 1989 Supp. 40-284(a). The policy was apparently delivered to Katy’s corporate parent in Texas.
Suffice it to say that Continental knew that the policy was intended to cover vehicles principally garaged in Kansas because it attached a Kansas endorsement to the policy. Accordingly, Kansas has a “vital interest” in the application of its UM statute to the policy in question. See Estate of Moulton, 513 So. 2d at 1130-31.
We hold that Katy did not meet the statutory requirement for rejecting the higher UM limits in accordance with 40-284(c). The named insured did not reject in writing the higher UM limits.
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Brazil, J.:
The Kansas State Board of Nursing (the Board) appeals from the trial court’s determination that the Board lacked jurisdiction to conduct disciplinary proceedings against Judith Ann Golay because no sworn complaint had been issued against Golay. We reverse and remand.
The parties have appealed on stipulated facts pursuant to Rule 3.05 (1990 Kan. Ct. R. Annot 17), and those facts need not be repeated here at length since the sole issue before us is a question of law.
The unsworn complaint against Golay was filed with the Board by the administrator of the nursing home where Golay was employed as director of nursing services. Two investigations followed the complaint, after which Golay was notified that 16 charges had been filed against her and that a hearing date had been set. Golay filed a motion to dismiss, arguing the Board lacked jurisdiction because a sworn complaint had never been issued against her as required by K.S.A. 1990 Supp. 65-1120(b). The hearing officer assigned to the case denied the motion; subsequently, a Board investigator signed a sworn complaint against Golay. Two hearings were held; by the time they were concluded, 15 of the charges against Golay had been dropped. The Board found Golay guilty of diverting Demerol and mischarting and falsifying patient records and suspended her license until she completed a refresher course.
Golay’s petition to the Board for reconsideration was denied, and a final order was entered. Golay appealed to the district court and renewed her motion to dismiss on jurisdictional grounds because the Board began its investigation before a sworn complaint was filed. The district court ruled in Golay’s favor and reversed the Board’s decision on the jurisdiction issue, and the Board appeals.
The trial court ruled that K.S.A. 1990 Supp. 65-1120(b) requires a sworn complaint be filed before the Board can investigate nurses’ conduct. The Board argues K.S.A. 1990 Supp. 65-1120(b) merely mandates that it conduct an investigation when a sworn complaint is filed, but does not preclude the Board from instituting investigations on its own or upon receipt of an unsworn complaint. Golay argues the wording of K.S.A. 1990 Supp. 65-1120(b) is plain and the legislature’s intent is clear and no investigation of alleged offenses listed in K.S.A. 1990 Supp. 65-1120(a) can begin without the filing of a sworn complaint.
K.S.A. 1990 Supp. 65-1120(b) states in relevant part:
“Upon filing of a sworn complaint with the board charging a person with having been guilty of any of the unlawful practices specified in subsection (a), two or more members of the board shall investigate such charges, or the board may designate and authorize an employee or employees of the board to conduct such investigation. After investigation, the board may institute charges.”
The standard of statutory review is well known:
“The interpretation of a statute is a question of law and it is [an appellate court’s] function to interpret the statute to give it the intended effect. [Citation omitted.] The administrative interpretation of a statute will be given consideration and effect, but the final construction of a statute rests with the courts. [Citations omitted.]” U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 524, 802 P.2d 516 (1990).
“It is a fundamental rule of statutory construction to which all other rules are subordinate that the intent of the legislature governs when that intent can be ascertained.” NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989).
“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. 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.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
“In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to . . . the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
In essence, Golay argues K.S.A. 1990 Supp. 65-1120(b) imposes a three-step process for the Board to follow in filing formal disciplinary charges: (1) file a sworn complaint charging a violation has occurred, (2) conduct an investigation, and (3) file formal disciplinary charges. Further, Golay argues K.S.A. 1990 Supp. 65-1120(b) requires “a sworn statement to be filed with the Board when a licensee is [initially] charged with having been guilty of any unlawful practices specified in Subsection (a) of K.S.A. 65-1120.” She argues the legislature intended to protect licensed nurses from unreasonable attack and the restriction does not place any real burden on the Board since the act does not prevent board employees from filing sworn complaints when necessary. When examination is limited to just the wording of K.S.A. 1990 Supp. 65-1120(b), Golay’s arguments have appeal. Nevertheless, consideration must be given “to the entire act,” including K.S.A. 1990 Supp. 74-1106(c), which defines the powers and duties of the Board. State v. Adee, 241 Kan. at 829.
The district court, in effect, held a sworn complaint must be filed before the Board can investigate any of the unlawful practices listed in K.S.A. 1990 Supp. 65-1120(a), which states in relevant part:
“The board shall have the power to deny, revoke, limit or suspend any license or certificate of qualification ... in the event that the applicant or licensee is found after a hearing:
(1) To be guilty of fraud or deceit in practicing nursing or in procuring or attempting to procure a license to practice nursing;
(2) to have been guilty of a felony if the board determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust;
(3) to have committed an act of professional incompetency;
(4) to be habitually intemperate in the use of alcohol or addicted to the use of habit-forming drugs;
(5) to be mentally incompetent;
(6) to be guilty of unprofessional conduct;
(7) to have willfully or repeatedly violated any of the provisions of the Kansas nurse practice act or any rule and regulation adopted pursuant to that act, including K.S.A. 65-1114 and 65-1122 and amendments thereto; or
(8) to have a license to practice nursing as a registered nurse or as a practical nurse denied, revoked, limited or suspended by a licensing authority of another state, agency of the United States government, territory of the United States or country or to have other disciplinary action taken against the applicant or licensee by a licensing authority of another state, agency of the United States government, territory of the United States or country. A certified copy of the record or order of denial, suspension, limitation, revocation or other disciplinary action of the licensing authority of another state, agency of the United Stater- government, territory of the United States or country shall constitute prima facie evidence of such a fact for purposes of this paragraph (8).”
Paragraph (7) in the statute is a catch-all clause that allows denial, revocation, or limitation of licenses when applicants violate “any of the provisions of the Kansas nurse practice act.” Paragraph (8) sets out an alternative to obtaining a sworn complaint before the Board could begin an investigation of a licensee. Certainly, if the Board possessed a certified copy of the record revoking a nurse’s license from another state, and that record was prima facie evidence of a nurse’s violations warranting disciplinary action in Kansas, a sworn complaint would be superfluous.
A more important problem arises when applying the district court’s interpretation of K.S.A. 1990 Supp. 65-1120(b) in situations calling for disciplinary action under K.S.A. 1990 Supp. 65-1120(a). Consider K.S.A. 1990 Supp. 65-1120(a)(1), which allows action to be taken when a nurse has been “guilty of fraud or deceit” in obtaining a license. How would the Board learn that a licensee had used fraud or deceit in obtaining a license? Under the district court’s interpretation, the Board would first have to obtain a sworn complaint before it could investigate. Arguably, the Board could not investigate or check out applications filed by those hopeful of receiving nursing licenses without obtaining sworn complaints. Interestingly, Golay claims the Board could investigate claims on license applications under K.S.A. 1990 Supp. 65-1115 and K.S.A. 1990 Supp. 65-1116, which govern licensing of professional and practical nurses. But to what end? The district court held that a sworn complaint must be filed before any investigation that is to lead to the filing of disciplinary charges. Thus, Golay’s position seems to be that the Board could investigate claims on license applications without sworn complaints under K.S.A. 65-1115 and K.S.A. 65-1116; but, once it was determined there was some fraud, the Board would have to (1) obtain a sworn complaint and (2) conduct another investigation before any formal charges could be brought.
The problem can also be seen by considering K.S.A. 1990 Supp. 65-1120(a)(2), which allows the Board to discipline licensees who have been found guilty of a felony in certain circumstances. The Board could learn from the courts or law enforcement authorities that a nurse had been convicted of several drug-related felonies that would provide a basis for disciplinary action; yet, under the district court’s interpretation, a sworn complaint would be necessary before the Board could do anything and then it would have to conduct an investigation before filing disciplinary charges. Again, this requirement is clearly not what the legislature intended. Similar problems arise in considering the other clauses in K.S.A. 1990 Supp. 65-1120(a), especially subparagraph (7), the catch-all clause, which permits disciplinary action when licensees violate any section of the act.
These problems alone might be sufficient to rule the district court erred; nevertheless, further consideration of the act is fitting. K.S.A. 65-1123 states in part:
“When it appears to the board that any person is violating any of the provisions of this act . . . the board may in its own name bring an action in a court of competent jurisdiction for an injunction against such violation . . . and the proper courts of this state may enjoin any person, . . . from violation of this act . . . without regard to whether proceedings have been or may be instituted before the board.”
This statute does not require any complaints, whether sworn or unsworn, to be filed with the Board as conditions precedent to bringing an action for injunction. K.S.A. 65-1123 allows the Board to seek injunctions against “any person” who may be violating “any of the provisions” of the act, including K.S.A. 1990 Supp. 65-1120(a). Thus, the legislature clearly intended to allow the Board to seek, on its own motion without first obtaining sworn complaints from anyone, injunctions that could, in effect, prevent licensees from performing nursing duties. Given the conclusion that the Board may seek court-ordered remedies (injunctions) without sworn complaints, the obvious question that arises is how will the Board know that an injunction is necessary without conducting an investigation? Simply, it will not. Further, if the district court is correct that a sworn complaint must be issued before the Board can conduct a 65-1120(b) investigation, the following scenario could occur: The Board could learn by an anonymous telephone call that a nurse, who claimed he or she was licensed in Missouri on an application to obtain a Kansas nursing license, was actually never licensed in Missouri. The Board could investigate that charge and determine it was true. The Board could then seek an injunction to prohibit the nurse from practicing in Kansas based on fraud in obtaining a Kansas license. K.S.A. 65-1123. But then, before holding a hearing to determine if revoking the Kansas license is appropriate, it would have to obtain a sworn complaint against the nurse and conduct a second investigation. K.S.A. 1990 Supp. 65-1120(b).
The construction offered by Golay and the district court leads to inconsistent and illogical ends. This court has a duty to interpret the law so that the provisions are in harmony and they make sense. State v. Adee, 241 Kan. at 829. When considering the entire act, the effect of the various constructions that result when considering the effect of the district court’s ruling, and the statutory powers and duties of the Board, it is clear the results are not harmonious nor sensible. Thus, this court cannot accept the district court’s ruling nor Golay’s argument that the Board must obtain sworn complaints before it can initiate investigations of complaints or concerns about nurses’ behavior.
K.S.A. 1990 Supp. 74-1106(c) discusses the duties and powers of the Board and states in part:
“(4) The board shall examine, license' and renew licenses of duly qualified applicants and conduct hearings upon charges for limitation, suspension or revocation of a license or accreditation of professional and practical nursing and mental health technical programs and may limit, deny, suspend or revoke for proper legal cause, licenses or accreditation of professional and practical nursing and mental health technician programs, as hereinafter provided. Examination for applicants for registration shall be given at least twice each year and as many other times as deemed necessary by the board. The board shall promote improved means of nursing education and standards of nursing care through institutes, conferences and other means. ” (Emphasis added.)
The Board, like other agencies, may exercise only those powers expressly conferred or necessarily implied by statute. State ex rel. Secretary of S.R.S. v. Fomby, 11 Kan. App. 2d 138, 141, 715 P.2d 1045 (1986).
In discussing the Healing Arts Act, the Supreme Court recognized that the whole purpose of that Act is the protection of the public agáinst unprofessional, improper, unauthorized, and unqualified practice and that the Act secures services of competent and trustworthy individuals through licensures. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 453, 436 P.2d 828 (1968). So, too, it follows that the intent of the legislature in designing the Kansas Nurse Practice Act and practice acts for other licensing agencies was likewise protection of the public through license regulation. A board cannot protect when it cannot investigate. In the present case, it is necessary to infer the authority of the Board to investigate to facilitate the licensure duties of the Board.
This leaves a final question of what interpretation is correct. At this point, it is appropriate to consider the administrative interpretation of K.S.A. 1990 Supp. 65-1120(b). U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. at 524. In Kansas Ass’n of Public Employees v. Public Employee Relations Bd., 13 Kan. App. 2d 657, 659, 778 P.2d 377 (1989), this court stated:
“[Kansas Bd. of Regents v. Pittsburg State Unit. Chap. of K-NEA, 233 Kan. 801, 667 P.2d 306 (1983),] does contain some teachings which are of broad, general application: usually, the interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. The agency’s interpretation of a challenged statute may, in fact, be entitled to controlling significance in judicial proceedings. This deference is sometimes called the doctrine of operative construction. [Citation omitted.] Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review.”
As noted above, the Board argues the statute creates a mandatory duty to investigate sworn complaints against licensees but does not limit the Board’s ability to initiate investigations on its own when appropriate. When this interpretation is considered in light of the entire act and in light of the discussion above, it clearly makes sense. The Board’s interpretation also allows a harmonious reading of the various sections of the act. For these reasons, this court must give effect to the Board’s interpretation of the statute. U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. at 524.
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Brazil, J.:
Northern Assurance Company of America (Northern) appeals from the judgment of the trial court denying its petition for pro rata contribution from Farm Bureau Mutual Insurance Company, Inc., (FBM) based on the newly acquired vehicle coverage clause in policies FBM issued to Theodore and Laura Carlson. We reverse and remand with directions.
This case was tried on stipulated facts which established that on April 6 and 7, 1988, FBM insured three vehicles jointly owned by Theodore M. Carlson and his wife, Laura. FBM also insured a fourth vehicle jointly owned by Laura Carlson and her daughter, Rhonda. The Carlsons owned no other vehicles on April 6, 1988, and FBM stipulated that it insured all vehicles which the Carlsons owned on that date. Each of the four FBM policies covering these vehicles provided the named insured with the statutory minimum of liability coverage, $25,000.
On April 7, 1988, the Carlsons purchased a 1983 Pontiac, and Laura Carlson inquired of FBM whether the vehicle was automatically covered for 30 days under the newly acquired vehicle provision in the FBM policies. She was not satisfied with FBM’s response, so Theodore and Laura purchased $100,000 liability coverage on the Pontiac on the same day through Northern’s property and casualty insurer, Commercial Union Insurance Company. The record does not indicate what FBM’s response was or why Laura was unsatisfied. Northern issued a written binder evidencing the coverage which became effective at 12:01 a.m. on April 7, 1988, and later issued a policy. FBM never billed the Carlsons for any additional'premium on the Pontiac nor did the Carlsons ever pay FBM any additional premium.
The next day, April 8, 1988, Theodore was driving the Pontiac and was involved in an accident with a motorcycle which resulted in the death of the motorcyclist. Both Northern and FBM were notified of the accident, and each insurer conducted an investigation. FBM concluded that none of its policies provided any coverage for the accident, and it refused to participate in the adjustment, settlement, or defense of any claims. Northern settled all claims for $59,617.95.
After a bench trial, the court granted judgment for FBM, finding there was no coverage under its policies. The trial judge, citing Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P.2d 157 (1970), stated that the purpose of the clause was to “provide temporary coverage until some specific arrangement was made.” He concluded that the Carlsons’ act of purchasing the Northern policy constituted a specific arrangement, thus terminating coverage under the FBM policies.
This court’s scope of review is clear. Appeals from a decision of a district court based on stipulated facts and written and documentary evidence are subject to de novo review because the appellate court has the same opportunity as the district court to examine and consider the evidence. In re Estate of Moe, 11 Kan. App. 2d 244, 246, 719 P.2d 7, rev'd on other grounds 240 Kan. 242, 729 P.2d 447 (1986). This court is not bound by the trial court’s construction of the FBM policy because the contract can be construed and its legal effect determined by the appellate court. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987); Cornwell v. Jespersen, 238 Kan. 110, 116, 708 P.2d 515 (1985).
1. Coverage Under FBM’s Newly Acquired Vehicle Clauses.
Each of the FBM policies at issue in this case insures the vehicle described in the policy declarations as well as “any additional vehicle of which you [the named insured] acquire ownership or lease during the policy period if we [FBM] insure all vehicles which you own or lease. You must, however, notify us within 30 days of its acquisition and pay any additional premium required.” If the Pontiac is considered a newly acquired vehicle as defined in the FBM policies, coverage is provided for this accident.
The majority of courts interpreting the automatic insurance clause in automobile policies generally agree that coverage automatically applies to the newly acquired vehicle for accidents occurring within the designated notice period regardless of whether the insurer has received the notice at the time of loss. The giving of notice within the specified period is not a condition precedent to automatic coverage but is instead a condition subsequent to extending coverage beyond the notice period. See Consumers United Ins. Co. v. Johnson, 26 Wash. App. 795, 798, 614 P.2d 657 (1980), and cases cited therein. Likewise, the payment of any premium differential resulting from the acquisition of a new vehicle is generally not a condition precedent to coverage under such clauses. See Gorling v. Allstate Insurance Co., 125 Ga. App. 497, 500, 188 S.E.2d 128 (1972); Merchants Mutual & Co. v. Lambert, 90 N.H. 507, 510-11, 11 A.2d 361 (1940); Johnson, 26 Wash. App. at 798-800; 12 Couch on Insurance 2d § 45:196 (rev. ed. 1981) Annot., 39 A.L.R.4th 312.
The well-known general rules of construction for insurance policies provide:
“ ‘In construing an insurance policy a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished. . . .
. . . If . . . 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 or the application of rules of liberal construction; the court’s function is to enforce the contract according to its terms. . . .’ [Citation omitted.]
“ ‘When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made.’ ” Mah v. United States Fire Ins. Co., 218 Kan. 583, 586-87, 545 P.2d 366 (1976).
Northern argues that the policies at issue in this case unambiguously provided coverage for the Pontiac at the instant it was purchased, and nothing in the FBM policy language quoted above prevents the insured from obtaining other coverage. Northern asserts that the policy language must be interpreted from the viewpoint of a reasonable insured; and, under such a construction, once coverage has attached under the newly acquired vehicle clause, the insured would expect coverage to continue for at least 30 days, regardless of whether the insured purchased additional or different coverage.
FBM argues that Northern’s interpretation overlooks the most fundamental rule of contract construction, that of construing the policy to give effect to the intentions of the parties; in this case, the parties only intended FBM to provide coverage until the Carlsons purchased other coverage on the Pontiac. FBM raises three points it alleges illustrate the intent of the parties in this case: (1) The Carlsons obtained coverage for the Pontiac through Northern, which shows their intent to insure the vehicle with Northern alone; (2) since the Carlsons made no arrangements for premium payments to FBM on the Pontiac, their actions show they had no intent for FBM to insure the vehicle; and (3) Theodore Carlson notified the police officer investigating the accident that Commercial Union a/k/a/ Northern was the liability carrier for the Pontiac, which shows there was no intent for FBM to cover the vehicle.
The parties in this case obviously disagree on which rules of insurance contract construction apply and the order of the application of those rules to the policies involved. At issue is how long coverage continued under the newly acquired vehicle clauses of the FBM policies. In other words, did coverage under these clauses terminate at the instant the Carisons obtained the binder from Northern?
Insurance authorities are generally in accord that the newly acquired coverage clause is offered as a convenience to the insured, and its purpose is to broaden the coverage available under an automobile insurance policy to provide protection at the earliest possible time needed by the insured. See 6B Appleman, Insurance Law and Practice § 4293 (Buckley ed. 1979); 12 Couch on Insurance 2d § 45.184 (rev. ed. 1981). The Kansas Supreme Court recognized similar statements of the purpose of such clauses in Bramlett v. State Farm Mutual Ins. Co. and also quoted 7 Blashfield, Automobile Law and Practice § 316.3 (3d ed. 1966) as authority for the proposition that “ ‘[o]nce specific insurance is purchased and the automobile becomes described in the policy, it is no longer a “newly acquired automobile” but is a “described automobile” and the terms and provisions under the “automatic insurance” . . . clause are no longer applicable.’ ” 205 Kan. at 130.
The arguments of the parties in this case mirror those before the Kansas Supreme Court in Bramlett. State Farm Mutual Insurance Company (State Farm) insured Robert Bramlett’s two vehicles under separate policies. Bramlett’s daughter, Carol, was a named insured under her father’s policies. On December 20; 1965, Carol purchased a new vehicle and insured it under a separate State Farm policy purchased on the same day. Three months later, Carol was injured in an accident while riding as a passenger in the new vehicle and incurred medical expenses. Carol claimed reimbursement under the medical payment coverage provision in her policy, as well as both of her father’s policies. State Farm paid its policy limits under Carol’s policy, but her damages exceeded the amount of State Farm’s payment. Carol and her father then sued State Farm for the balance of her medical expenses and for attorney fees. 205 Kan. at 129.
Carol’s argument for coverage under her father’s policies was based on the newly acquired vehicle clause (also known as the automatic insurance clause) which provided:
“ ‘Newly Acquired Automobile — means an automobile, ownership of which is acquired by the named insured or his spouse, if a resident of the same household, if (1) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (2) the named insured within 30 days following such delivery date applies to the company for insurance on such newly acquired automobile. If more than one policy issued by the company could be applied to such automobile the named insured shall elect which policy shall apply. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.’ (Emphasis supplied.)” 205 Kan. at 130.
State Farm argued that no coverage was available because the purpose of the clause was to grant 30 days of interim coverage on a newly acquired vehicle, which allowed the insured a reasonable opportunity to acquire the specific coverage desired on the new vehicle; once the insured purchased such coverage, the newly acquired vehicle provision no longer applied. The Kansas Supreme Court agreed with State Farm’s interpretation of the clause. 205 Kan. at 130, 132.
In this case, unlike Bramlett, the accident occurred during the time in which any coverage provided under the newly acquired vehicle clause would have been in effect (i.e., within 30 days of the acquisition of the vehicle). Here, the accident occurred the day after the Carlsons purchased the new vehicle and notified FBM of the acquisition. In Bramlett, the accident occurred three months after the new vehicle was acquired and separately insured through State Farm under a different policy. 205 Kan. at 129.
Also, in Bramlett, the insured purchased specific coverage from State Farm, the same insurer that provided the newly acquired vehicle coverage. Arguably, the purchase of specific coverage through the same insurer supports a presumption that the insured intended to have coverage under the specific policy rather than under the newly acquired coverage clause. Furthermore, the newly acquired vehicle provision in Bramlett contained the following language: “ ‘If more than one policy issued by the company could be applied to such automobile the named insured shall elect which policy shall apply.’ ” 205 Kan. at 130 No. such anti-stacking language appears in the FBM policies.
The specific language in Bramlett that FBM relies on, and that the district court apparently construed to be “public policy,” states:
“The purpose of the ‘automatic insurance clause’ or ‘newly acquired automobile clause’ in an automobile policy is to provide insurance coverage when an owned automobile is not described in a policy. When specific insurance is purchased and a separate policy is issued on the automobile it becomes an automobile described in a new policy and it is no longer a ‘newly acquired automobile.’ At that time the terms and provisions of the ‘automatic insurance clause’ or ‘newly acquired automobile clause’ are no longer applicable to the automobile.” 205 Kan. at 132.
This language is virtually a verbatim quote of the reasoning of Cook v. Surburban Cas. Co., 54 Ill. App. 2d 190, 203 N.E.2d 748 (1964), a case which is quoted in Bramlett. 205 Kan. at 131. The problem with construing this language as “public policy” is that the rationale in Cook was based on policy definitions of an “owned automobile” and a “described automobile,” which were at issue in the Cook case. In that case, the accident vehicle was a vehicle “described in the policy” issued by Suburban Casualty and therefore could not be considered a “newly acquired automobile” within the meaning of the Suburban Casualty policy. See Cook, 54 Ill. App. 2d at 195-96. However, the instant case involves different considerations since the Pontiac at issue in no way can be considered a vehicle described in an FBM policy. Although the Pontiac was a vehicle described in a policy issued by Northern, the FBM policies do not contain any exclusion or limitation of coverage under the newly acquired vehicle clause for such a contingency.
Under the plain language of the FBM policies at issue in this case, there is coverage for the Carlsons’ Pontiac. Therefore, FBM’s arguments regarding the intent of the parties are irrelevant. As noted above, courts called on to construe insurance contracts cannot make a new contract for the parties; if the policy language is unambiguous the court must enforce the contract as made. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. at 713; Merritt v. Farmers Ins. Co., 7 Kan. App. 2d 705, 708, 647 P.2d 1355 (1982).
To adopt FBM’s construction of the policy language would be to read into the policy words which do not there appear. FBM could have easily added an additional condition under the newly acquired coverage clause stating something to the effect that “coverage under this provision terminates once coverage attaches to the newly acquired vehicle under a binder or policy issued by this or any other insurer,” but FBM did not do so. Furthermore, FBM’s suggested construction would have the effect of reading into the policies a limitation of the coverage provided under the newly acquired vehicle clauses. Many times the appellate courts of this state have said that coverage clauses in automobile insurance policies are to be liberally construed in favor of coverage; when an insurer intends to exclude, limit, or reduce the coverage available, it must use language clearly revealing its stated purpose. Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 334, 681 P.2d 15 (1984); Krug v. Millers’ Mutual Insurance Ass’n., 209 Kan. 111, Syl. ¶ 2, 495 P.2d 949 (1972); Beasley v. State Farm Mut. Auto. Ins. Co., 9 Kan. App. 2d 561, Syl. ¶ 1, 682 P.2d 689, rev. denied 236 Kan. 875 (1984); United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, Syl. ¶ 1, 584 P.2d 1264 (1978).
“[T]he test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, Syl. ¶ 7, 529 P.2d 171 (1974).” Farm Bureau Mut. Ins. Co. v. Winters, 248 Kan. 295, 300, 806 P.2d 993 (1991).
The language used in the FBM policies does not limit or terminate coverage for a newly acquired vehicle for accidents occurring during the designated notice period merely because the insured has purchased other coverage through a different insurer. The trial court’s decision must be reversed.
2. FBM’s Pro Rata Share.
Because the Pontiac was a newly acquired vehicle under the FBM policies, each of the Carlsons’ four previously owned policies would provide coverage. However, the amount of liability coverage is limited to the $25,000 limits of a single FBM policy. The pertinent policy provisions provide: “If two or more vehicle liability policies apply to the same accident, the total limits of liability under all such policies shall not exceed that of the policy with the highest limit of liability.” “If there is other applicable liability insurance on a loss covered by this Part, we will pay our proportionate share as our limits of liability bear to the total of all applicable liability limits.”
The collision sections of the policies contain the following “Other Insurance” provision: “If there is other applicable similar insurance on a loss covered by this Part, we will pay only that proportion of the loss that our limit of liability bears to the total limits of all applicable similar insurance.” The Northern policy contains virtually identical provisions.
Northern paid $54,858.50 under the liability section of its policy and $1,812.10 under the physical damage coverage. It incurred adjustment expenses of $2,947.35. The parties stipulated that the settlement and all adjustment expenses were fair and reasonable. The total applicable liability limits under the four FBM policies and the Northern policy is $200,000 ([4 X $25,000] + $100,000 = $200,000). The FBM policies provided $100,000 of this coverage, 50 percent of the total applicable policy limits. Fifty percent of the liability exposure is $27,429.25, but FBM’s liability payment is limited to its highest liability limit under any of its policies, $25,000.
The adjustment expenses were $2,947.35, and FBM’s share would be 50 percent of that amount or $1,473.67. Collision damages were $1,812.10; FBM’s share is $906.05. Thus, Northern is entitled to recover the amount of $27,379.72 from FBM.
The decision of the trial court is reversed and the case is remanded with instructions to enter judgment for Northern for $27,379.72. | [
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Hill, J.:
The State seeks our reversal of a district court’s order suppressing drug evidence after the court concluded police officers who searched a car had no specific and articulable facts on which to base their search, and thus ruled the officers could not make a search only for safety reasons. We reverse because the record reveals that the officers were engaged in a valid community caretaking function when, after receiving a telephone complaint about a car, they approached it after finding it parked on a dead-end road, at night, its lights switched off, windows fogged, and an unknown number of people inside. When the windows were rolled down and the officers smelled the odor of burnt marijuana coming from the car, they had probable cause to search the vehicle, and a reasonable search and seizure of apparent contraband followed.
Case Background
During the night of October 20,2005, J.M.E., a minor, and three other minors were parked at the end of die 2800 block of Melanie, a dead-end road in Salina. Officer Sherree York was dispatched to the area because a resident had reported that a white car was parked at the dead end of the road and was “blacked out.” At the scene, York found a white, two-door Dodge Avenger without any fights on and no people outside the car. York shined her spotlight on the car and saw several occupants inside. York indicated that at that point either the car engine started or was already running, and the reverse lights came on. Officer York then turned on her patrol car’s rear overhead fights so the Avenger would not back into her and the vehicle’s occupants would know she was there.
When Officer York approached the car, she saw that the windows were fogged over. She again shined the spotlight on the car and saw movement. The driver, J.M.E., rolled the window down, and York immediately smelled marijuana. York did not recall whether she knocked on the window or said something to J.M.E. in order to make the initial contact, but J.M.E. testified that York tapped on his window. York then asked for J.M.E.’s driver’s license and insurance while waiting for the other officers to arrive.
Officers Gary Hanus and Andrew Zeigler were dispatched to York’s assistance. York told them that the car smelled of marijuana, and both officers testified that they also smelled marijuana. The occupants of the car were separated and interviewed. Several of the occupants were attempting to eat the raw marijuana.
Officer Hanus asked J.M.E. to step out of the car and advised him of his rights. While doing this, Hanus saw something in J.M.E.’s mouth, but J.M.E. refused to tell the officer what it was. Hanus shined his fight in J.M.E.’s mouth and saw that J.M.E. was trying to swallow marijuana. J.M.E. continued to chew and attempted to swallow. Hanus, however, put his hand on J.M.E.’s neck and throat, pushed him up against the glass, and told him to spit the marijuana out. J.M.E. complied. J.M.E. was handcuffed, but before being placed in the patrol car, he consented to a search of the car. Hanus did not question J.M.E. further after the arrest. A search of the car produced marijuana residue, a red butane fighter, a pair of scissors, and a white rolled paper with one burnt end that contained marijuana residue.
J.M.E. was charged with possession of marijuana. He moved to suppress the evidence obtained by officers. The district court granted J.M.E.’s motion. The court ruled that the officers did not have specific and articulable facts on which to base their search.
The State has appealed the suppression order, arguing that the district court erred in granting J.M.E.’s suppression motion. The State contends that Officer York’s initial contact with J.M.E. was constitutional as a community caretaking function and that J.M.E. was legally detained after the officers smelled tire odor of burnt marijuana coming from the car.
Scope of Review
When reviewing a motion to suppress,
“this court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. [Citation omitted.] The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]” State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007).
This court does not reweigh evidence, determine witness credibility, or resolve conflicts of evidence. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). Moreover, this court normally gives great deference to the factual findings of the district court. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). Nonetheless, if the material facts underlying the district court’s decision are not in dispute, the question of whether to suppress is a question of law, and this court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
Substantial competent evidence possesses both relevance and substance. It furnishes a substantial basis of fact from which the issues can reasonably be resolved. Moreover, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Gray, 270 Kan. 793, 796, 18 P.3d 962 (2001).
Analysis
Constitutional principles are involved in this case. The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights guarantee “ ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.’ ” State v. Moore, 283 Kan. at 349.
Furthermore, Kansas courts have recognized four categories of police-citizen encounters: (1) arrests supported by probable cause; (2) stops made in accordance with Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which are supported by reasonable and articulable suspicion of criminal activity; (3) voluntary encounters, which are not seizures; and (4) community caretaking functions. City of Topeka v. Grabauskas, 33 Kan. App. 2d 210, 214, 99 P.3d 1125 (2004). The community caretaking or public safety encounter is an encounter that is “ Totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ Cady v. Dombroski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973).” Grabauskas, 33 Kan. App. 2d at 214-15.
In Grabauskas, the defendant was walking down the street and was initially stopped by police because they wanted to determine if she was a recently reported runaway. The officers did not believe the defendant was involved in any criminal activity, and this court held that the initial encounter was reasonable under the community caretaking function. Moreover, in State v. Reason, 263 Kan. 405, 409, 412, 951 P.2d 538 (1997), the Kansas Supreme Court determined that the case did not concern an illegal stop because the defendant was in a parked car at the time of the police encounter but ultimately categorized the encounter as voluntary.
But there are limits to the community caretaking function. Actions taken under the public safety or community caretaking exception should be scrutinized carefully to ensure that the Fourth Amendment protections are not emasculated. State v. Gonzales, 36 Kan. App. 2d 446, 455, 141 P.3d 501 (2006). Accordingly, “the scope of the detention during a public safety stop cannot exceed the justifications for the stop.” 36 Kan. App. 2d at 455.
The district court here based its decision on State v. McKeown, 249 Kan. 506, 819 P.2d 644 (1991). In McKeown, an unfamiliar car parked in a rural area was reported to police. An officer approached the area where the car had been reported and saw two cars stopped beside each other. Both cars left the location before the officer arrived. The officer then noticed that one of the cars matched the description of the reported car and proceeded to stop that car. The officer noted that the car was not involved in any criminal activity. When the officer approached the car, he smelled marijuana and saw an open beer can in the car; the defendant was arrested and searched. The court determined that stopping a moving vehicle always constitutes a seizure and officers need articulable facts to constitute reasonable suspicion of criminal activity. The court held that the officer in that case did not have reasonable suspicion of criminal activity to stop defendant because the reported car was no longer parked in the reported location. 249 Kan. at 515.
A review of some of the facts of this case is useful here. Officer York testified that J.M.E. was free to leave and could have left the area prior to her contact with him. She indicated that she did not block J.M.E. from leaving — the car could have reversed and gone around her or driven through the field. She stated that she was parked approximately 20 to 25 feet from the car. On the other hand, J.M.E. stated that the patrol car was no more than a car length away from him. Moreover, J.M.E. testified that he saw a patrol car and red lights when York pulled in behind him, and he indicated that he did not feel free to leave.
Officer York also testified that any time a suspicious car is reported, the main goal of any officer is to make sure everyone in the car is safe. She further testified that her purpose in approaching the Avenger that night was to ensure the safety of the occupants. York admitted that she did not have any reason to believe the occupants were or were not safe, other than them being parked in an area where they did not belong and having no lights on. Moreover, there were no reports of criminal activity and there were not any initial reasons to suspect criminal activity.
This encounter clearly fell under the community caretaking function. Officer York here did not stop J.M.E. because the car was already parked when York arrived. Furthermore, the car matched the description of the car reported by the resident and was still in the reported location, unlike the car in McKeown. Even though J.M.E. started the car and turned on his fights after York arrived, York turned on her overhead fights to let J.M.E. know that she was there, not to seize him. Therefore, the initial contact between J.M.E. and York was constitutional.
To justify further detention or investigation during a traffic stop, the officer must have reasonable and articulable suspicion of a crime. State v. Anderson, 281 Kan. 896, 902, 136 P.3d 406 (2006). Reasonable suspicion is less demanding than probable cause. State v. Morris, 276 Kan. 11, 24, 72 P.3d 570 (2003). It is “ * “a particularized and objective basis” for suspecting the person stopped of criminal activity.’ ” State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998) (quoting Ornelas v. United States, 517 U.S. 690, 696, 134 L. Ed. 2d 911, 116 S. Ct. 1657 [1996]). It must be more than an “inchoate and unparticularized suspicion or ‘hunch’ there must be specific reasonable inferences drawn from the facts. Terry, 392 U.S. at 27. Information used to create the reasonable suspicion must be considered under the totality of the circumstances. Morris, 276 Kan. at 24.
Officer York smelled marijuana emanating from the car when she approached it and J.M.E. rolled down the window. She testified that, after she smelled the marijuana, the occupants were no longer free to leave. Officer Hanus, who had worked on a drug task force for 3 years and had worked numerous marijuana cases, testified that he smelled the marijuana and suspected that the occupants were committing the crime of smoking marijuana.
The smell of marijuana arising from the car when its windows were rolled down provided the officers with reasonable suspicion of criminal activity and probable cause to search the car. The district court’s decision lacked substantial competent evidence and was the incorrect legal conclusion.
Reversed and remanded with directions to admit the evidence seized during the search. | [
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Malone, J.:
In 2004, Four Colonies Homes Association (Four Colonies) submitted a bylaw amendment to its members for approval, which placed renting restrictions on lot owners in Four Colonies’ subdivision. Fifty-one percent of the lot owners present at the meeting voted in favor of the bylaw amendment. When Four Colonies attempted to enforce the bylaw against James A. Kiekel and Margaret G. Kiekel, the Kiekels filed a petition for declaratory judgment with the district court, asking the court to declare the bylaw unenforceable. Four Colonies filed a counterclaim for injunctive relief, requesting the court to enjoin the Kiekels from renting their properties.
The district court denied the Kiekels’ petition, finding that the bylaw was enforceable. The Kiekels appeal, arguing (1) the district court erred in determining that Four Colonies could impose the property use restriction through a bylaw amendment, (2) the district court erred by using the wrong standard in determining that the restriction was enforceable, and (3) the district court’s factual and legal findings were not supported by substantial competent evidence. Because Four Colonies did not have the authority to impose a property use restriction through a bylaw amendment, we reverse the district court’s decision denying the Kiekels’ request for declaratory judgment.
The district court also denied Four Colonies’ request for injunctive relief. Four Colonies cross-appeals, contending the district court erred in denying injunctive relief. Because the Kiekels did not violate the original restrictive covenants by renting their properties, we affirm the district court’s decision denying Four Colonies’ request for injunctive relief.
Factual and procedural background
Four Colonies is a Kansas not-for-profit corporation comprised of the property lot owners in the Four Colonies subdivision in Lenexa, Kansas. The subdivision was created in 1971 as a “condominium-type ‘planned unit development’ ” in which individual lot owners were subject to property use restrictions pursuant to Four Colonies’ Declaration of Covenants, Conditions, and Restrictions (Declaration).
The Declaration, as well as Four Colonies’ Bylaws (Bylaws), were filed in the Johnson County Register of Deeds office. The Declaration includes a provision that allows it to be amended by an instrument signed by not less than 75% of the lot owners. As of 2005, the Declaration had never been formally amended pursuant to this provision. The Bylaws can be amended by a majority vote of lot owners at a meeting.
In 1997, Four Colonies proposed an amendment to the Bylaws that would have prevented owners from renting their property until the number of rental units in the subdivision was reduced to 10% of the lots, or 69 units. However, Four Colonies cancelled the vote on the amendment because it subsequently determined that the proposed bylaw was in conflict with the Declaration.
In October 2004, Four Colonies proposed another bylaw amendment that would impose various limitations on lot owners’ rights to rent their property, including:
“(1) a prohibition against a currently rented property being rented after any change in ownership of that property following the adoption of the By-Laws amendment; (2) a prohibition against any property not rented as of the adoption of the By-Laws amendment from being thereafter rented; (3) a requirement that all lease agreements be submitted to the Association’s Board for approval every twelve months; (4) a grant of authority to the Association to terminate any lease and evict any tenant in the event a property owner fails to comply with the requirements set forth in the By-Laws amendment; and (5) a provision that the Association be entitled to recover all costs and attorney fees in terminating any lease and evicting any tenant pursuant to the terms set forth in the By-Laws amendment.”
A special meeting was called to allow owners to vote on the bylaw amendment. Only 372 of the 681 lot owners (55%) attended the meeting. At the meeting, the bylaw amendment was approved with 191 (51.34%) lot owners voting in favor of the amendment and 181 (48.66%) voting against the amendment.
The Four Colonies subdivision consists of 681 property lots, including 37 duplexes, 1 tri-plex, 54 four-plexes, 1 five-plex, 23 sixplexes, 74 garden villas, and 171 free-standing homes. As of 2005, approximately 100 to 115 of the lots were being rented by their owners. Four Colonies proposed the 2004 bylaw amendment after receiving numerous complaints from lot owners about the conduct and behavior of tenants who rented property in the subdivision.
Many of these complaints were about tenants leasing from the Kiekels. Since 1988, the Kiekels have owned property lots in the subdivision but have never lived in the subdivision. As of 2005, the Kiekels, through revocable trusts, owned eight property lots in the subdivision, which they rented. Since 1999, the police have responded to the Kiekels’ rental properties 15 times. Additionally, Four Colonies claimed it received 19 complaints about the Kiekels’ tenants, “including parking, failing to clean up dog feces, loud and disruptive late-night parties and personal property stored or left in yards.” According to Four Colonies, the Kiekels also failed to adequately maintain and repair their rental properties.
After the 2004 bylaw amendment was approved, the Kiekels received a letter from Four Colonies asking them to provide information to Four Colonies about their tenants pursuant to the bylaw. In response, the Kiekels filed a petition for declaratory judgment with the Johnson County District Court. In their petition, the Kiekels argued the 2004 bylaw amendment was void because it conflicted with the Declaration. The Kiekels asked the court (1) to declare the bylaw amendment void; (2) to declare that the demands made by Four Colonies were unenforceable; (3) to declare that Four Colonies had no power to end rental agreements; (4) to find that Four Colonies knowingly attempted to impair property rights inconsistent with the Declaration; (5) to find Four Colonies’ actions contrary to its fiduciary duty; and (6) to award attorney fees to the Kiekels.
Four Colonies filed a counterclaim asking the district court to enjoin the Kiekels from renting their properties and to order them to sell their lots to owners who would occupy the residences. Four Colonies argued that injunctive relief was appropriate because the Kiekels were violating the Declaration’s provisions that prohibited noxious activity and the commercial use of subdivision properly.
In June 2005, a bench trial was held. After the trial, Four Colonies and the Kiekels filed a stipulated proposed findings of fact, which the district court largely adopted when it entered its judgment in August 2005. The district court denied the Kiekels’ claim for declaratory relief. The district court found that the 2004 bylaw amendment was not in conflict with the Declaration and that the amendment was reasonable and enforceable. The district court also found that the Declaration authorized the board to restrict the owners’s rental rights through a bylaw amendment. However, the district court also denied Four Colonies’ counterclaim for injunctive relief based upon the evidence presented at the hearing.
The Kiekels timely appeal the district court’s denial of their petition for declaratory judgment. Additionally, Four Colonies timely cross-appeals the district court’s denial of its claim for injunctive relief.
Petition for declaratory judgment
On appeal, the Kiekels claim the district court erred in finding that the 2004 bylaw amendment was not in conflict with the Declaration. The Kiekels contend the district court incorrectly interpreted the Declaration as giving Four Colonies the authority to restrict lot owners from renting their properties through an amendment to the Bylaws. The Kiekels maintain that any restriction on the lot owners from renting their properties can be accomplished only through an amendment to the Declaration.
The district court framed the issue in this case as whether the 2004 bylaw amendment conflicted with the Declaration. The district court determined that because the bylaw amendment did not eliminate the Kiekels’ right to rent their property, the bylaw amendment did not conflict with the Declaration. However, a more accurate statement of the issue is whether Four Colonies could impose a post-purchase property use restriction on lot owners through an amendment to the Bylaws. Before analyzing this issue, some legal background on the creation of homeowners associations would be helpful.
Creating a community association, such as Four Colonies, requires a set of documents that generally includes a declaration and bylaws.
“The first creating document in a community association is the declaration. . . . For an HOA, the document is generally referred to as the Declaration of Covenants, Conditions, and Restrictions (‘CCRs’). The declaration is a document containing the plan of development and the essentials of ownership, the method of operation, and the rights and responsibilities of the association and the owners within the association. It is a covenant running with the land, recorded in the land records, and binding on every person who becomes a property owner in the project.” Hyatt, Condominium and Homeowner Association Practice: Community Association Law § 1.06(e) (3d ed. 2000) (hereinafter Community Association Law).
Basically, the declaration is considered the enabling document or the constitution of the association. Generally, any attempt to restrict a property owner’s use of the property as authorized in the declaration is considered void and unenforceable. Community Association Law § 1.06(e); 8 Powell on Real Property § 54A.01(ll)(a) (2007).
“The second legal document essential to the community association is a set of bylaws, which set forth procedures for the internal government and operation of the association. Generally, fundamental provisions dealing with ownership and property rights are in the declaration; the bylaws typically contain governance and operational provisions, and function in the same capacity as corporate bylaws.” Community Association Law § 1.06(e).
To resolve the issue at hand, this court must interpret Four Colonies’ Declaration and Bylaws. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005).
“Another well-settled rule is that covenants and agreements restricting the free use of property are strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction. Doubt will be resolved in favor of the unrestricted use of property. [Citation omitted.]” Sporn v. Overholt, 175 Kan. 197, 199, 262 P.2d 828 (1953).
Examining Four Colonies’ Declaration and Bylaws, it appears the intent was that the Declaration would set forth owners’ fundamental ownership rights and the Bylaws would set forth enforcement and govern its procedures. This conclusion is supported by the amendment procedures included in both documents. An amendment to the Declaration requires a super-majority vote of 75% of all lot owners; whereas, an amendment to the Bylaws requires a simple-majority vote of lot owners present at a meeting. Because the Declaration defines property rights, and the Bylaws do not, it is logical that amending the Declaration would be more difficult. See 4 Thompson on Real Property § 36.06(a), pp. 240-41 (2d ed. 2004) (Absent “an amendment to the declaration, the enjoyment and use of the real property cannot be impaired or diminished.”).
In this case, the original Declaration for the subdivision includes various restrictive covenants that impose property use restrictions on owners. These restrictions include, but are not limited to, restricting owners from using their property for commercial purposes, restricting owners from installing awnings without approval, restricting owners from erecting fences without approval, and restricting owners from having more than two household pets. Despite these restrictions, the Declaration neither expressly prohibits nor expressly permits lot owners to rent their property. The Declaration does, however, include three distinct references to lot owners’ tenants. In one specific instance, the Declaration defines “resident” to include not only the owners of lots “but also the lessees and tenants of such owners.” Strictly construing the Declaration, it does not place any restrictions on owners’ rights to rent their property. See Sporn, 175 Kan. at 199.
This conclusion is borne out by the conduct of the parties in this case. Lot owners in Four Colonies have been renting their properties since the association was created in 1971. As of 2005, approximately 100 to 115 of the lots were being rented by their owners. In 1997, Four Colonies proposed an amendment to the Bylaws that would have temporarily prevented lot owners from renting their properties, but Four Colonies withdrew the amendment because it subsequently determined that the proposed bylaw was in conflict with the Declaration.
We disagree with the district court’s conclusion that the bylaw amendment did not conflict with the Declaration. The bylaw amendment essentially eliminated the right to rent property in the Four Colonies subdivision, except it contained a grandfather provision for lots that were currently being rented. More significantly, the bylaw amendment required all lease agreements to be submitted to the board of directors for approval every 12 months. The amendment further granted the board the authority to terminate any lease and evict the tenant in the event the lot owner failed to comply with the requirements set forth in the Bylaws. The bylaw amendment contained extensive property use restrictions concerning the rental of property in the Four Colonies subdivision which only could be accomplished through an amendment to the Declaration.
The Declaration, as the enabling document, could have delegated authority to the Four Colonies’ Board of Directors to impose property use restrictions through the passage of bylaws. In fact, one of the Declaration’s provisions mentioning tenants states: “Any owner may delegate, in accordance with the By-laws, his right of enjoyment to the Common Area and facilities to the members of his family, his tenants, or contract purchasers who reside on the property.” (Emphasis added.) This provision authorizes the board to pass bylaws that limit owners’ rights to delegate their use of common areas to tenants. However, the district court improperly relied on this provision when it found that the Declaration authorized the board to restrict the owners’ rental rights through a bylaw amendment.
Four Colonies draws this court’s attention to the following Bylaws provision: “These By-laws expand, interpret or specifically define certain portions of the Articles of Incorporation of the Four Colonies Homes Association and the Declaration of Covenants, Conditions and Restrictions to which it is subject.” This provision was adopted in 1989. Four Colonies relies on this provision to support its argument that it had authority to limit rental rights through a bylaw amendment. However, this reliance is misplaced. The 1989 bylaw provision contains no reference to the property owners’ rights to rent their properties. Based upon the Declaration and Bylaws filed of record, the Kiekels knew their property rights could be further restricted by an amendment to the Declaration. The Kiekels did not, however, have notice that their property rights could be further restricted by a bylaw amendment. Four Colonies cannot circumvent the intent of the Declaration, the enabling document, by subsequently amending the Bylaws.
We conclude the district court erred in finding that Four Colonies could impose rental restrictions through an amendment to the Bylaws. The Declaration could have authorized Four Colonies to restrict the owners’ rental rights had more specific language been utilized. In this case, however, it is clear that the Declaration intended any property use restrictions, including restrictions on renting, to be achieved through an amendment to the Declaration. Because Four Colonies failed to properly amend the Declaration, the bylaw amendment imposing rental restrictions is void and unenforceable. Based on this determination, it is unnecessary to address the other issues the Kiekels have raised on appeal.
We sympathize with Four Colonies’ desire to eliminate complaints about rental properties and to maintain an attractive neighborhood. It may be true that restricting rental rights would enhance the property values of all lots in the Four Colonies subdivision. However, to impose restrictions on owners’ rights to rent their properties, Four Colonies must do so through an amendment to the Declaration. We conclude the district court erred by denying the Kiekels’ petition for declaratory judgment.
Request for injunctive relief
In its cross-appeal, Four Colonies claims the district court erred in denying its counterclaim for injunctive relief. Four Colonies’ request to enjoin the Kiekels from renting their property was based upon the language of the original Declaration. On appeal, Four Colonies argues the district court erred (1) in finding that the Kiekels’ renting did not violate the Declaration’s commercial use restriction and (2) in finding that the Kiekels’ renting did not violate the Declaration’s noxious activity restriction.
To obtain injunctive relief, the movant must show:
“ ‘(1) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injuty to the movant outweighs whatever damage the proposed injunction may cause die opposing party; and (4) the injunction, if issued, would not be adverse to the public interest.’ ” Empire Mfg. Co. v. Empire Candle, Inc., 273 Kan. 72, 86, 41 P.3d 798 (2002).
However, under the first factor, a movant does not have to independently show irreparable harm to obtain injunctive relief for the breach of a restrictive covenant. Persimmon Hill First Homes Ass’n v. Lonsdale, 31 Kan. App. 2d 889, 895-96, 75 P.3d 278 (2003).
The denying of injunctive relief involves the exercise of judicial discretion. Therefore, the district court’s ruling should be reviewed by this court for abuse of discretion. General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 541, 66 P.3d 873 (2003). The party challenging the denial of injunctive relief bears the burden of proving the district court abused its discretion. State ex rel. Stovall v. Meneley, 271 Kan. 355, 380, 22 P.3d 124 (2001).
Furthermore, to determine whether the Kiekels’ rental activity violated the Declaration’s commercial use restriction and noxious activity restriction, this court must interpret the Declaration. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley, 279 Kan. at 431.
First, Four Colonies argues the Declaration’s commercial use restriction prohibited the Kiekels from renting their properties. According to the Declaration, “[n]o building or structure of any sort may ever be placed, erected or used for business, professional, trade or commercial purposes on any of the property within [Four Colonies].” The district court determined that the rental of properties by the Kiekels was a permitted use of the property and did not constitute a use of the property for business purposes.
As we previously indicated, the Declaration neither expressly prohibits nor expressly permits lot owners to rent their property. The Declaration does, however, include three distinct references to lot owners’ tenants, and in one instance the Declaration defines “resident” to include lessees and tenants on the property. It would make no sense for the Declaration to expressly refer to lessees and tenants and at the same time conclude that the rental of property violated the Declaration’s commercial use restriction.
It appears that the commercial use restriction was intended to prevent lot owners from using their property as a commercial business. Just because the Kiekels earn rental income from their prop erty, this is not the same as conducting a commercial business on the property. As long as the Kiekels’ lessees use the property as a residence, there is no violation of the Declaration’s commercial use restriction. Thus, the district court did not err in denying the request to enjoin the Kiekels from renting their property based upon a violation of the Declaration’s commercial use restriction.
Four Colonies also argues the Declaration’s noxious activity restriction prohibited the Kiekels from renting their properties. According to the Declaration, “[n]o noxious or offensive activity shall be carried on within [Four Colonies] . . ., nor shall anything ever be done which may be or become an annoyance or nuisance to the neighborhood.” Four Colonies argued to die district court that the Kiekels violated this restrictive covenant by failing to maintain their property and by failing to adequately control their tenants.
In denying injunctive relief, the district court first found that although Four Colonies had shown that tenants living in the subdivision were more likely than property owners to throw disruptive parties, have unauthorized people living with them, improperly store personal property, and fail to clean up after their pets, Four Colonies had failed to prove that the Kiekels’ tenants were more likely than other tenants to engage in these activities. The district court also found that Four Colonies had failed to prove that the maintenance problems associated with the Kiekels’ rental properties were worse than the maintenance problems associated with other properties in the subdivision.
Additionally, the district court concluded that Four Colonies could have addressed its concerns about the maintenance of the Kiekels’ properties by taking advantage of its right to restoration. According to the Bylaws, Four Colonies has a right to restore property that a lot owner has failed to maintain and to add the cost of the restoration to the owner’s annual assessment. On appeal, Four Colonies argues that its right to restoration is not an adequate remedy because “there is a significant risk to paying for these repairs up front, and then hoping to recoup these costs from unit owners.” However, the Bylaws allow Four Colonies to bring a legal action against an owner for the nonpayment of assessments. As such, Four Colonies has an action at law to address the maintenance problems associated with the Kiekels’ property.
Four Colonies was essentially asking the district court to find that renting itself was a noxious activity. The district court recognized the general principle that an injunction is an equitable remedy. See Persimmon Hill First Homes Ass’n, 31 Kan. App. 2d at 892. The district court was especially concerned about granting the expansive remedy of enjoining the Kiekels from renting their property in order to prevent specific instances of noxious activity. Because of the broad scope of injunctive relief pursued by Four Colonies, we conclude the district court did not abuse its discretion in denying Four Colonies’ claim for injunctive relief based upon a violation of the Declaration’s noxious activity restriction.
In summary, the district court did not err in denying Four Colonies’ request for injunctive relief. The Kiekels’ renting of their property did not violate the Declaration’s commercial use restriction or the noxious activity restriction. Furthermore, Four Colonies could not restrict the Kiekels from renting their property by amending the Bylaws rather than by amending the Declaration. The 2004 bylaw amendment imposing rental restrictions is void and unenforceable. Thus, the district court erred in denying the Kiekels’ petition for declaratory judgment.
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Leben, J.:
Accepting plaintiff s allegations as true, Jason Packard’s negligence caused his car to run off a highway in Topeka and into a tree some distance off the paved surface of the roadway and its shoulder area. Emergency workers arrived shortly after the accident, and traffic on the roadway began to back up. About 35 minutes after Packard’s accident, another driver, Judy Brown, failed to respond quickly enough to the traffic congestion; Brown’s car struck the plaintiff s car from behind. Plaintiff, Mary Hale, now seeks to recover from Packard and his employer for the injuries she sustained when Brown’s car hit Hale’s. But liability for negligence is not unlimited — longstanding caselaw holds that liability for negligence arises only when the consequences of an act are probable under normal human experience, not a mere possibility. Applying this rule, we agree with the district court that Packard’s negligence is not sufficiently connected to Brown’s negligent driv ing to allow Hale to recover from Packard or his employer for her injuries.
We assume the facts stated by the plaintiff are true because we must. Like the district court, on a motion to dismiss, we must accept the facts that the plaintiff has alleged; we must then determine whether those facts and any inferences reasonably drawn from them state a claim for relief under any possible legal theory. Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). The only legal theory discussed by the parties is negligence, and we find no other possible legal theoiy on these facts. Thus we examine the viability of plaintiff s claim for negligence.
Packard’s negligence, if indeed he was negligent, was most unfortunate. He felt lightheaded and considered pulling over but instead continued to drive along the highway toward his home. He soon passed out, drove off the road, and ran into a tree. The highway was 1-470 in Topeka; the accident occurred at 4:57 p.m. on a weekday. As might be expected at that time on a weekday, traffic backed up in the area once the police and an ambulance were on the scene. Judy Brown’s collision with plaintiff Hale’s car occurred at about 5:35 p.m., and Hale was injured.
A valid negligence claim requires that a plaintiff meet four elements: the existence of a duty to the plaintiff, a breach of that duty, an injuiy, and proximate cause. D.W. v. Bliss, 279 Kan. 726, 734, 112 P.3d 232 (2005). The disputed element here is proximate cause. Proximate cause requires more than mere cause in fact. A proximate cause is one that caused the injury “ ‘in natural and continuous sequence, unbroken by an efficient intervening cause, . . . the injuiy being the natural and probable consequence of the wrongful act.’ ” Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006) (quoting St. Clair v. Denney, 245 Kan. 414, 420, 781 P.2d 1043 [1989]).
Just how likely a consequence must be for it to be considered a “natural and probable consequence” of an act has been stated in a number of ways. The most frequently cited standard in Kansas holds that “[a] defendant is not responsible for all possible consequences of his or her negligence, only those consequences which are probable according to ordinaiy and usual experience.” (Em phasis added.) Aguirre v. Adams, 15 Kan. App. 2d 470, 472, 809 P.2d 8 (1991). Accord Sly v. Board of Education of Kansas City, 213 Kan. 415, 424, 516 P.2d 895 (1973); Hickert v. Wright, 182 Kan. 100, 108, 319 P.2d 152 (1957); Shideler v. Habiger, 172 Kan. 718, 722, 243 P.2d 211 (1952); Beldon v. Hooper, 115 Kan. 678, 683, 224 Pac. 34 (1924); Clark v. Powder Co., 94 Kan. 268, 273-74, 146 Pac. 320 (1915). Although this foreseeability test is stated in terms of events that are “probable,” proximate cause may sometimes be found even for events likely to occur less than half the time, especially when the defendant has created a particularly dangerous condition. See, e.g., Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, 610-12, 828 P.2d 923 (1992); Cooper v. Eberly, 211 Kan. 657, 665, 508 P.2d 943 (1973). Even so, as one court has phrased it, the consequence must occur “with reasonable probability from the negligent act of the defendant.” Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). Like many tests found in law, the rule provides a general standard, but its contours must be filled in as specific cases are considered.
A viable argument can be made in this case for the plaintiff. The starting point for that case is the general rule that proximate cause is normally a question for the juiy. Miller v. Zep Mfg. Co., 249 Kan. 34, 50, 815 P.2d 506 (1991). So in most cases the application of this liability-limiting rule will be left to the jury. It is only when the evidence is so clear that it is “susceptible of only one inference” that proximate cause is treated as a question of law for the court and is not submitted to the jury. Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999).
Further, a Kansas Supreme Court case suggests that the class of cases that should be decided as a matter of law has been narrowed in recent decades by the adoption in Kansas of comparative fault principles in 1974. Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 268-69, 43 P.3d 799 (2002). Under prior law, the existence of some fault on the part of the plaintiff, called contributory negligence, barred recovery altogether. In response, courts sometimes found that a plaintiff s fault was not the proximate cause of the injury, lessening the harshness of what was then an all-or-nothing recovery. Similarly, when multiple defendants were in volved, one’s acts might be found the sole proximate cause — or one’s negligence might be labeled “active” and the other’s “passive” — so as to avoid rules that otherwise would have required equal contribution between them. When comparative fault was adopted, the fact-finder could compare and apportion the fault of all parties and, in Kansas, the plaintiff could recover as long as his or her fault was less than 50 percent. Based on this, the court in Reynolds said that “[w]ith the adoption of comparative fault, Kansas has moved beyond the concept of proximate cause in negligence.” 273 Kan. at 269.
As we understand it, that statement did not mean that proximate cause was no longer a requirement of a negligence claim in Kansas. The court separately recognized that “[p]roximate cause is not an obsolete concept in Kansas law,” 273 Kan. at 268, and that intervening causes still would cut off liability in “extraordinary cases.” 273 Kan. at 269. And both the Supreme Court and our court have continued to cite and apply proximate cause as an element of negligence claims after Reynolds. See, e.g., Yount 282 Kan. at 624-25; D.W. 279 Kan. at 734; Williamson v. City of Hays, 275 Kan. 300, Syl. ¶ 6, 64 P.3d 365 (2003); Crowe v. True’s IGA, 32 Kan. App. 2d 602, 612-13, 85 P.3d 1261, rev. denied 278 Kan. 844 (2004); Miller v. Westport Ins. Corp., No. 95,768, unpublished opinion, filed February 16, 2007, rev. granted June 21, 2007 (review pending). But the Reynolds court was acknowledging what others have called “the logic that changing to a regime of comparative responsibility affects the scope of proximate cause.” Restatement (Third) of Torts: Liability for Physical Harm, § 34, comments, p. 682 (Proposed Final Draft No. 1, 2005).
Consistent with this potentially diminished role for proximate cause, an example provided in the latest Restatement of Torts supports plaintiff s claim. The American Law Institute approved the Restatement (Third) of Torts: Liability for Physical Harm in 2005. Under section 29 of the Third Restatement, the black-letter rule for proximate cause (a term the Restatement avoids) is that “[a]n actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Restatement (Third) of Torts § 29, p. 575 (Proposed Final Draft No. 1, 2005). The Restatement sets forth the view that the distraction arising around an accident scene is within the risks that should be anticipated by a negligent driver:
“Tortious conduct may be wrongful because of a variety of risks to a number of different classes of persons. Thus, driving a vehicle negligently poses risks to persons and property who might foreseeably be harmed in a number of ways— by a collision with another vehicle or pedestrian, by the vehicle leaving the road, by the consequences of a narrowly averted collision, by the confusion and distraction of an accident scene, or by other consequences. Some of those risks may be more prominent than others, but all are relevant in determining whether the harm is within the scope of liability of the actor’s tortious conduct.” (Emphasis added.) Restatement (Third) of Torts § 29, comment d, p. 582.
The Restatement then provides an example quite similar to the case now before us:
“[Illustration] 6. Parker’s automobile was run off a narrow, hilly road by Wilson, who was driving a semitrailer negligently. Because the accident scene involved an unusual configuration of the semitrailer and Parker’s vehicle, Deborah, who was driving by, stopped her car at the side of the road to observe the scene. While parked at the side of the road, Deborah was hit by another vehicle driven carelessly into Deborah’s car. Whether Deborah’s harm is within the scope of liability created by Wilson’s negligence in causing the accident with Parker is a question for the factfinder.” Restatement (Third) of Torts § 29, comment d, illus. 6.
Under the view of Third Restatement, then, a plaintiff injured in a follow-on accident apparently caused by the distraction of an earlier accident would be able to sue the negligent driver of the first accident and have that claim submitted to a jury.
Where to draw the fine under legal rules that lack bright-line clarity is a matter of judgment. We do not hide the existence of that judgment call here by presenting only one side of the argument. Rut though we have sketched out some viable arguments for the plaintiff, we do not find them persuasive.
The Third Restatement view may one day gain acceptance, but even its authors concede that they have staked out a basis of analysis that is different than the one actually employed by the courts today (or for the past 100 years for that matter). The Restatement reporters recognized that they have proposed a scope-of-risk analysis — rather tiran the standard foreseeability test applied in Kansas and most other states — for proximate cause. Restatement (Third) of Torts § 29, comments d and j, pp. 579-81, 594-96 & Reporters’ Notes to comments d and j, pp. 610-14, 627-29 (Proposed Final Draft No. 1, 2005). And while they suggest that these different standards are “quite compatible,” Restatement (Third) of Torts § 29, Reporters’ Note to comment d, p. 610, they do not suggest they are the same.
Significantly, no case citation is provided as a basis for the Restatement’s Illustration 6. This is not because cases involving follow-on automobile accidents are scarce — there were enough cases for a lengthy compilation limited to the proximate-cause issue in follow-on auto accidents back in 1958, and a supplement to that collection lists many cases since then. Annot., Negligence Causing Automobile Accident, or Negligence of Driver Subsequently Approaching Scene of Accident, as Proximate Cause of Injury by or to the Approaching Car or its Occupants, 58 A.L.R.2d 270 (1958 & Supp. 2003).
The annotator correctly notes that it is difficult to wrest general rules from these fact-specific cases that will universally predict the results. 58 A.L.R.2d 270 § 2. Yet the general trend in the cases cited there does not support the conclusion of Illustration 6, and the cases certainly do not support a finding of proximate cause in Hale’s case here against Packard.
Two major factors seem to provide fault lines for the cases in the annotation. First, in the cases finding proximate cause, there generally was some debris from the first accident still blocking the roadway, while there was not in the cases finding no proximate cause. Compare Morrison v. Frito-Lay, Inc., 546 F.2d 154, 163 (5th Cir. 1977) (finding that the act of parking a truck partially on the roadway could serve as proximate cause both for one car hitting the truck and a second accident in which two odrer cars collided while trying to avoid the first accident); Anderson v. C.E. Hall & Sons, Inc., 131 Conn. 232, 238, 38 A.2d 787 (1944) (finding that the first accident could be proximate cause for the second when the first accident left the vehicle crosswise on the highway); Johnson v. Sunshine Creamery Co., 200 Minn. 428, 433-34, 274 N.W. 404 (1937) (finding that the first accident, which left two vehicles blocking the highway, could be proximate cause for the second accident) with Atkinson v. Allstate Ins. Co., 361 So. 2d 32, 34 (La. App. 1978) (finding that the first accident was not cause for the second when the vehicles in the first accident were off the roadway before the second accident occurred); Natell v. Taylor-Fichter Steel Construction Co., 257 App. Div. 764, 765-66, 15 N.Y.S.2d 327 (1939) (finding that since cars in the first accident had come to rest off the traveled portion of the highway it was not proximate cause of the second accident), aff'd 283 N.Y. 737, 28 N.E.2d 966 (1940); Kukacka v. Rock, 154 Ore. 542, 545-46, 61 P.2d 297 (1936) (finding negligence of the driver whose car ended up in a ditch not proximate cause of the accident in which the passenger who went onto the roadway to wave for help was struck by another vehicle). Second, in the cases finding proximate cause, there generally was only a short time gap between the first accident and the follow-on accident, while in the cases finding no proximate cause there was a substantial time lapse between them. Compare Sawdey v. Producers’ Milk Co., 107 Cal. App. 467, 480, 290 P. 684 (1930) (finding that a 3-minute gap between accidents did not eliminate proximate-cause question); and Anderson, 131 Conn. at 238-39 (finding that a gap of 2 to 4 minutes between accidents did not ehminate proximate-cause question); and Krumvieda v. Hammond, 71 S.D. 544, 548-49, 27 N.W.2d 583 (1947) (finding that 2 minutes lapsed time between the first and second accidents did not take proximate-cause issue away from jury consideration) with Millirons v. Blue, 48 Ga. App. 483, 484-85, 173 S.E. 443 (1934) (finding that the first accident was not proximate cause of the second accident occurring 20 minutes later when the damaged vehicle was on the roadway with fights on); and Anderson v. Jones, 66 Ill. App. 2d 407, 411-12, 213 N.E.2d 627 (1966) (finding that a gap of 3 to 10 minutes between accidents was an important factor in finding no proximate-cause relationship between them). But see Johnson, 200 Minn. 428 (finding that 1-hour gap did not ehminate proximate-cause relationship when disabled vehicles continued to block the roadway at the time of the second collision). Thus the cases that are found in the annotation suggest that liability would not arise for a follow-on accident to one that did not block the roadway and that occurred quite some time earlier. And that’s our case.
The two cases most prominently relied upon by Packard and his employer are fully in line with this analysis. One of the cases involved an initial one-car accident in which the car ran off the roadway, ending up in the untravelled median. O’Connor v. Nigg, 254 Mont. 416, 417-18, 838 P.2d 422 (1992). Passers-by stopped to render assistance, and a highway patrol trooper also arrived; all of them left their vehicles off the traveled portion of the roadway. About 10 minutes after the first accident, a car traveling on the roadway rear-ended another car, even though the lane was unobstructed and the patrol car’s lights were flashing. The Montana Supreme Court held that the initial accident could not be considered a proximate cause of the second one because it was not sufficiently probable to be foreseeable. 254 Mont. at 421. The other case involved a second accident that occurred 20 to 45 minutes after the first one when an inattentive driver ran into an officer directing traffic around the first collision. Williams v. Smith, 68 N.C. App. 71, 73, 314 S.E.2d 279 (1984). The North Carolina Court of Appeals held that there was not an unbroken connection between the initial accident and the striking of the officer; it also held that the second driver’s negligence was not foreseeable in this situation. 68 N.C. App. at 73. Collectively, these cases support the conclusion of the district court in our case that follow-on accidents caused by the distraction of an initial wreck or inattention of a later driver are not sufficiently probable to support probable cause: “Rear end collisions, although a foreseeable possibility from such a slow-down of traffic, are not a likely or probable consequence at each one.’’
The district court also fairly concluded that the primary cases relied upon by plaintiff Hale were readily distinguishable. These cases generally involved disabled vehicles that remained in the road and were then directly involved in a second accident. See Flaharty v. Reed, 167 Kan. 319, 205 P.2d 905 (1949) (finding that defendant’s parked car, which obstructed a highway lane, was the proximate cause of a pedestrian’s injuries when another vehicle struck the parked car); Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962) (finding the driver’s negligence in an initial accident that left one of two vehicles in the roadway and another immediately behind it on the shoulder was the proximate cause of a second accident involving a drunk driver); and Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949) (finding a truck driver’s unexpected stop in the roadway was the proximate cause of an accident between two vehicles following the truck). These cases are consistent with those we have already discussed and thus do not suggest a different result.
One final consideration leads us to follow this existing caselaw rather than the new academic theory found in the Third Restatement. The adoption of a new theory that would subject large numbers of additional drivers to jury trials for follow-on accidents would have substantial real-world costs. Lawsuits are intrusive and expensive. Here, Packard would be subjected to interrogatories, requests for documents, and deposition. His medical records would be combed for signs that he should have anticipated blacking out while driving. And there would be no possibilities for resolution of the suit other than jury trial or settlement. Considering both these realities and existing caselaw, we believe that a plurality of the Texas Supreme Court got it right when they “decline[d] the invitation to abandon decades of case law” by adopting section 29 of the Third Restatement. Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 452 n.4 (Tex. 2006).
We do not believe that the average Kansan whose negligence caused her own car to run completely off the roadway would expect to be fiable to someone injured 35 minutes later when a third driver was distracted by the commotion. Nor should she. Such an event is not sufficiently foreseeable for liability under traditional foreseeability analysis, which is fully consistent with commonsense expectations. The judgment of tíre district court granting defendants’ motion to dismiss is therefore affirmed. | [
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Green, J.:
In these wrongful death actions, the decedents, Jonathan Dye, a medical technician, and Jennifer Hauptman, a registered nurse, were fatally injured when their air ambulance crashed near Dodge City, Kansas.
The air ambulance was returning to the Dodge City Regional Airport after delivering a patient to Wesley Medical Center in Wichita, Kansas. Jonathan’s parents, John F. Dye and Wynema M. Dye, and Jennifer’s husband, Ethan Hauptman, each brought a wrongful death action against WMC, Inc., doing business as Wesley Medical Center (Wesley). These actions were later consoli dated. Wesley moved to dismiss both lawsuits, maintaining that the petitions failed to state a causé of action against Wesley. The trial court agreed and dismissed the actions. On appeal, the plaintiffs contend that the district court prematurely dismissed their petitions. We agree.
To sustain the district court’s granting of Wesley’s motions to dismiss, this court would have to conclude that, under plaintiffs’ pleadings, the plaintiffs could not produce any evidence justifying some form of relief. Although it seems doubtful whether plaintiffs will be able to establish sustainable claims against Wesley, that is not the question. Any doubt in this regard must have ripened into certainty concerning the untenability of plaintiffs’ positions. Currently, whether plaintiffs are entitled to any relief can hardly be said to be beyond question.
As discussed later in this opinion, plaintiffs may produce a set of facts in support of one or more of their claims which would entitle them to relief. Whether any such claims exist should be left to the development of the facts through discovery rather than summarily decided on the pleadings. As a result, we determine that the plaintiffs’ petitions should not have been dismissed for failure to state a claim. Accordingly, we reverse and remand.
The action arises out of an airplane crash on February 17, 2004. The airplane was a Beech B90 operated by Ballard Aviation, Inc. (Ballard), as an air ambulance. The plane was returning to Dodge City Regional Airport after delivering a patient from Mercy Hospital of Independence, Kansas (Mercy), to Wesley in Wichita, Kansas. The crash killed the pilot and two passengers, Jennifer Hauptman and Jonathan Dye.
On February 16, 2006, John and Wynema Dye sued Wesley and Mercy in Sedgwick County District Court. The same day, Ethan Hauptman sued the same defendants in the same court. The Dyes’ petition, in relevant part, stated:
“3. [Wesley] contracts for air ambulance services with [Ballard], and has done so on a continuous and systematic basis since 2001.
“6. The accident which is the subject of this action occurred during a flight from Wichita Mid-Continent Airport (ICT), Wichita, Kansas, en route to Dodge City, Kansas (DDC), after the delivery of a patient from Mercy Hospital of Independence, Kansas to the Wesley Medical Center, Wichita, Kansas.
“7. The pilot and medical crew of EagleMed 4 had contact with the agents, employees and representatives of both Defendants prior to the accident.
“8. On February 17, 2004 at about 2:57 am. CST, a Beech B90, registered as N777KU, operated by [Ballard] as EagleMed 4, was destroyed by impact with terrain and post impact fire, approximately 7 nautical miles (nm) west of Dodge City Regional Airport (DDC), Dodge City, Kansas. The pilot and the two passengers onboard were fatally injured. One of the passengers was Plaintiffs John F. and Wynema M. Dye’s decedent and son, Jonathan Dye, a medical crew member, working while onboard the aircraft.
“15. As a direct and proximate result of the aforesaid circumstances, Jonathan Dye was caused to suffer massive blunt force trauma and died as a result of severe injuries and the post crash fire and destruction of the aircraft.
“I. NEGLIGENCE OF DEFENDANT WMC, INC. d/b/a/ WESLEY MEDICAL CENTER
“16. Plaintiffs adopt and re-allege paragraphs 1-15 with the same force and effect as if fully set forth herein.
“17. [Wesley] had a contract for exclusive vending of air ambulance services with the Dodge City, Kansas base for [Ballard]. As a result of that contract and on the basis of custom and usage, [Wesley] failed to perform adequate oversight of [Ballard] operations when it knew or should have known the following:
a. [Ballard] maintained a pilot base and pilot employee pool that utilized pilots up to the full amount of hours permitted for flight duty time for 14 CFR Part 91 and Part 135 air operations.
b. [Wesley] was aware that the dispatch procedures utilized by [Ballard] were new as of January 1, 2004 and the technology was new while the dispatch personnel were not qualified to act as dispatchers or trained to adequately use the equipment.
c. [Wesley] knew or should have known that the lack of experience, training and qualification of the [Ballard] dispatchers and [Ballard] dispatch department would result in the dispatch of aircraft with pilots who were fatigued and near the limit of their permissible legal duty time.
d. [Wesley] knew or should have known that the aircraft utilized by [Ballard], including EagleMed4, on February 17,2004, a Beech B90 registered as N777KU, did not utilize terrain avoidance system technology because their flight operations were a combination of Part 91 and Part 135 medical service operations.
e. [Wesley] knew or should have known that fatigue and pilot duty hour considerations were so severe at [Ballard] that medical personnel onboard aircraft flights were known to handle aircraft flight duties and responsibilities in order to provide relief for fatigued pilots.
f. On February 17, 2004, [Wesley’s] employees, agents and representatives witnessed the fatigue of EagleMed 4’s pilot and negligently failed to warn the pilot and his passengers of the known risks of piloting an aircraft without adequate rest in a fatigued condition, a duty assumed by the defendant as a user of air ambulance services and as a party familiar with [Ballard’s] operational standards.
“18. As a result of [Wesley’s] knowledge, contractual responsibilities and custom and usage, the defendant owed a duty to the passengers, patients and medical personnel onboard [Ballard] flights including EagleMed 4 on February 17, 2004, to exercise reasonable and thorough oversight of its business operations that related to air ambulance services and to cease air ambulance services with [Ballard] until such practices that were indicative of pilot fatigue issues were stopped.
“As a result of the defendant [Wesley’s] negligence and breach of duty, the Plaintiffs’ decedent, Jonathan Dye, was caused to suffer severe blunt force trauma injuries resulting in his death.
“WHEREFORE, as a direct and proximate cause of the crash and destruction of the flight designated EagleMed 4, a Beech B90 registered as N777KU, and by the negligent failure of oversight by the defendant, [Wesley], plaintiffs’ decedent suffered a wrongful death and Plaintiffs were caused to suffer pecuniary and non-pecuniary injuries including but not limited to: loss of income, loss of income potential, loss of society and companionship and loss of all other relationship damages consistent with the laws of the State of Kansas. Plaintiffs pray the Court enter judgment in their favor for such damages, attorneys’ fees and costs to which they may be entitled.”
The allegations in the petition filed by Hauptman were identical to those in the Dyes’ petition, except for the substitution of Ethan Hauptman as the plaintiff and Jennifer Hauptman as the decedent.
On April 3,2006, Mercy filed answers to both lawsuits. On April 26, 2006, plaintiffs and Mercy filed stipulated entries of dismissal in both cases, dismissing Mercy without prejudice.
On May 5,2006, Wesley moved to dismiss both lawsuits. As with the petitions, the motions to dismiss were substantially the same except for plaintiffs’ names. Wesley argued that plaintiffs’ allegations of negligence failed to state a claim because they failed to show that Wesley owed any duty to the decedents as employees of Ballard, an independent contractor hired by Wesley to perform air ambulance services.
On August 30, 2006, the two lawsuits were consolidated for discovery purposes. On September 25, 2006, plaintiffs filed a consolidated memorandum in opposition to the motions to dismiss. Plaintiffs argued that the decedents actually acted as employees of Wesley because of Wesley s day-to-day control of their work, but that even if decedents were independent contractors of Wesley, Wesley should still be hable for its “breach of FAA regulations.” Plaintiffs maintained that Wesley breached its “duty of care” and that it was negligent in its hiring of the independent contractor. Plaintiffs attached several exhibits to their memorandum, including the petitions, a copy of the contract between Wesley and Ballard, copies of the depositions of two Wesley employees, an Internet article from the Wichita Eagle, and an “Aviation Special Investigation Report” regarding emergency medical services aviation operations.
Wesley filed a reply supporting its motions to dismiss. On October 26, 2006, the trial court granted the motions. The journal entry, in relevant part, stated:
“In reaching its decision, the Court has reviewed the following:
“1. Motion to Dismiss of Defendant Wesley Medical Center and Memorandum in Support filed in Case No. 06 CV 0733;
“2. Motion to Dismiss of Defendant Wesley Medical Center and Memorandum in Support filed in Case No. 06 CV 0734;
“3. Plaintiffs’ Memorandum in Opposition to Defendant Wesley Medical Center’s Motion to Dismiss;
“4. Reply in Support of Motion to Dismiss of Defendant Wesley Medical Center; and
“5. Plaintiffs’ Petitions.
“The Court has also heard oral argument from the attorney for defendant Wesley Medical Center and the attorney for the plaintiffs.
“Findings and Conclusions
“The Court accepts and adopts the factual allegations contained in plaintiffs’ Petitions and views all of plaintiffs’ allegations and the inferences to be drawn therefrom in the light most favorable to plaintiffs.
“The Court adopts defendant’s arguments as set forth in Defendant’s Motion to Dismiss and Memorandum in Support and in Defendant’s Reply in Support of Motion to Dismiss as if fully set forth herein. The Court agrees with defendant that as a matter of law plaintiffs have failed to state a claim for which relief can be granted. Accordingly, the Court hereby sustains defendant’s Motions to Dismiss.”
Did Plaintiffs’ Petitions State a Claim under Any Possible Theory?
On appeal, plaintiffs offer a variety of arguments to support their contention that the district court erred in dismissing their petitions. Their arguments include that their petitions were sufficient under the notice pleading standard, that the district court “improperly decided disputed issues of fact,” that the district court “refused to weigh every doubt in Plaintiffs’ favor,” and that the district court erred “by deciding the legal sufficiency of Plaintiffs’ claims as stated in the petitions.”
Wesley responds that the dispositive issue is whether Wesley owed the decedents any duty through its contract with their employer Ballard. Wesley argues that there was no duty, even accepting plaintiffs’ allegations, and therefore the district court properly dismissed the petitions based upon this matter of law.
Turning to our standard of review, plaintiffs contend that “the lower court dismissed the petitions without reference to information outside the pleadings.” Thus, plaintiffs assert that the proper standard of review is that for a motion to dismiss for failure to state a claim.
Wesley points out that plaintiffs included “substantial evidentiary material,” including deposition transcripts and documentary evidence in opposition to the motions to dismiss, and suggests that to the extent such material was considered by the trial court, the applicable standard of review would be the standard for summary judgment.
K.S.A. 60-212(b) states: “If, on a motion [to dismiss for failure to state a claim], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . .”
Here, plaintiffs included substantial evidentiary material with their memorandum in opposition. The district court indicated that it reviewed the memorandum in opposition before making its ruling on the motion to dismiss. Nevertheless, the district court made no specific reference to the evidentiary material, and it stated in its findings and conclusions that it accepted and adopted the factual allegations from the plaintiffs’ petitions, before concluding that “as a matter of law plaintiffs have failed to state a claim for which relief can be granted.” This indicates that the evidentiary material was not considered or relied upon by the court in granting the motions to dismiss. Thus, we determine that the more appropriate standard of review here is that for a motion to dismiss for failure to state a claim.
When a motion to dismiss under K.S.A. 60-212(b)(6) contests the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of a plaintiff s petition. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). A petition should not be dismissed for failure to state a claim unless, after reviewing the petition in the light most favorable to plaintiff and with every doubt resolved in plaintiffs favor, that, under plaintiff s pleadings, the plaintiff can prove no set of facts, either under plaintiff s theory or under any other possible theory in support of plaintiffs claim, which would entitle plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. 271 Kan. at 656; see Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005).
In considering the question, the court must accept a plaintiffs description of events, along with any reasonable inferences that may be drawn therefrom. Nevertheless, the court is not required to accept conclusory allegations as to the legal effects of the events if the allegations are not supported or are contradicted by the description of events. Halley, 271 Kan. at 656.
The granting of such motions has not been favored by our courts, and skepticism is required where a motion to dismiss is made prior to the parties completing discovery. The petition is not intended to govern the entire course of the case. Rather, the ultimate decision as to the legal issues and theories on which the case will be decided is the pretrial order. 271 Kan. at 656-57.
The parties do not contest that this is a negligence and wrongful death action. To prevail on a negligence claim, plaintiffs must prove (1) an existence of a duty, (2) a breach of that duty, (3) an injury, and (4) a causal connection between the duty breached and the injury suffered. See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 266, 43 P.3d 799 (2002). The only element at issue in the motions to dismiss, and consequently the journal entry of dismissal, was the existence of a duty owed, to the decedents by Wesley. Wesley argued, and the district court concluded, that the plaintiffs’ allegations failed to show that Wesley had any duty to ward the decedents and, therefore, the petitions failed to state a claim.
Thus, the question is whether, given the allegations in plaintiffs’ petitions, there is any theory of negligence under which Wesley owed the decedents a duty. Whether a duty exists is a question of law. Reynolds, 273 Kan. at 266.
Plaintiffs suggest three possible negligence theories in their appellate brief: an apparent negligence per se theory based on “Wesley’s breach of FAA regulations”; a theory based on “Wesley’s breach of its duty of care,” which apparently refers to the negligent oversight or supervision theory set forth in the plaintiffs’ petitions; and a theory based on Wesley’s negligent hiring of an independent contractor (Ballard) under die Restatement (Second) of Torts § 411 (1964).
We begin by examining the negligent hiring theory. Wesley argues that plaintiffs did not allege a claim under Restatement § 411 in their petitions, so they cannot rely on it to avoid dismissal. This argument ignores Kansas’ notice pleading standard and this court’s responsibility to determine if the allegations in the petitions state any valid claim for relief under plaintiffs’ theories or any other possible theory. See Jones, 279 Kan. at 366; Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 234, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991).
Generally, the employer of an independent contractor is not liable for injuries caused by the negligence of an independent contractor. Restatement (Second) of Torts § 409 (1964); see Dillard v. Strecker, 255 Kan. 704, 716, 877 P.2d 371 (1994). Nevertheless, there are various exceptions to this rule, including the negligence of an employer in selecting, instructing, or supervising the contractor. Restatement (Second) of Torts § 409, comment b.; Dillard, 255 Kan. at 716.
One such exception is found in the Restatement (Second) of Torts § 411, which states:
“An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.”
This section was adopted by this court in McDonnell v. The Music Stand, Inc., 20 Kan. App. 2d 287, 293, 886 P.2d 895 (1994), rev. denied 256 Kan. 995 (1995). In McDonnell, the plaintiffs’ claims failed under this section because they did not allege physical injury. 20 Kan. App. 2d at 293-94.
Here, plaintiffs obviously alleged physical injury. The petition alleges a contractual relationship between Wesley and Ballard that could certainly qualify as an employer and independent contractor relationship. The provision of air ambulance services, as tragically demonstrated by the facts of this case, seems to be “work which will involve a risk of physical harm unless it is skillfully and carefully done.” See Restatement (Second) of Torts § 411(a).
The comments to Restatement § 411 provide several illustrations of where liability may lie for the employer of an independent contractor, including the following:
“The omnibus with which A, the owner of a hotel, conveys his guests from the railway station to the hotel is damaged in a collision. A contracts with B, the owner of a garage, to carry A’s guests in B’s bus. A knows that C, the only driver who is available for this service, has only driven a car for a few days. While driving some of A’s guests from the station, C mistakes the accelerator for the brake, which causes a collision between the bus and an automobile in which D is driving. A is subject to liability to D and to his guests in the bus for any harm cause by the unskillfulness of C.” Restatement (Second) of Torts § 411, comment b, illus. 3, p. 378.
Another illustration states:
“A, a builder, employs B, a teamster, to haul material through the streets from a nearby railway station to the place where A is building a house. A knows that B’s trucks are old and in bad condition and that B habitually employs inexperienced and inattentive drivers. C is run over by a truck carrying A’s material and driven by one of B’s employees. A is subject to liability to C if the accident is due either to the bad condition of the truck or the inexperience or inattention of the driver.” Restatement (Second) of Torts § 411, comment d, illus. 5, p. 380.
Plaintiffs’ petitions allege that Wesley was aware of certain deficiencies in the dispatch procedures, pilot assignment procedures, and airplane terrain avoidance technology utilized by Ballard that were factors in the crash of Eagle Med 4. Given the above illustrations, such knowledge could show that Wesley failed “to exercise reasonable care to employ a competent and careful contractor.” See Restatement (Second) of Torts § 411.
The final question is whether decedents were “third persons” as contemplated by Restatement § 411 such that they were owed a duty by Wesley in its employment of Ballard as an independent contractor. Plaintiffs contend that the district court erred in accepting Wesley’s argument that decedents were employees of Ballard, an independent contractor hired by Wesley, and were therefore not “third persons” under Restatement § 411. Plaintiffs assert that there is a fact issue as to decedents’ employment status.
The allegations in plaintiffs’ petitions do not clearly establish the nature of the relationships between Wesley, Ballard, and the decedents. Jonathan is identified as a “medical crew member,” and Jennifer is identified as a registered nurse; both are identified as passengers of the airplane, and the petitions state that both were working while onboard the airplane. Neither Jonathan nor Jennifer is specifically identified in plaintiffs’ pleadings as an employee of either Wesley or Ballard. Although Wesley maintains that Jonathan and Jennifer were Ballard’s employees based on plaintiffs’ response to Wesley’s motions to dismiss, we note that this alleged admission occurred under the argument section of plaintiffs’ response. Moreover, under the same section, we note that plaintiffs argued that Jonathan and Jennifer could be considered employees or independent contractors of Wesley.
The determination of the decedents’ employment status and the exact nature of the relationship between Wesley and Ballard may well determine the outcome of these lawsuits. Depending on the decedents’ employment status, there are at least three possible scenarios:
First, if decedents were employees of Ballard as an independent contractor of Wesley, then they may be precluded from recovery. Restatement § 411 itself does not clarify if “third persons” includes employees of the independent contractor, but it may be noted that none of the illustrations in the comments to Restatement § 411 include a scenario in which the third person is such an employee. See Restatement (Second) of Torts § 411.
There is Kansas case law holding that an independent contractor’s employees may not be considered third parties or persons in some negligence contexts. See Dillard, 255 Kan. at 710, 726-27 (landowner who employed independent contractor not directly liable to contractor’s employee for injury sustained as a result of a breach of a nondelegable duty imposed upon the landowner by statute or ordinance, nor vicariously liable even if work being performed is of an inherently dangerous nature). Nevertheless, whether an independent contractor’s employee qualifies as a third person for the purposes of Restatement § 411 seems to be a question of first impression in Kansas.
Other courts have generally held, usually for policy reasons, that an independent contractor’s employee is not a third person for the purposes of Restatement § 411. See Lipka v. United States, 369 F.2d 288, 292-93 (2d Cir. 1966); Castro v. Serrata, 145 F. Supp. 2d 835, 836-37 (S.D. Tex. 2001), aff'd 281 F.3d 1279 (5th Cir. 2001); Camargo v. Tjaarda Dairy, 25 Cal. 4th 1235, 1244-45, 108 Cal. Rptr. 2d 617, 25 P.3d 1096 (2001); Urena v. Capano Homes, Inc., 901 A.2d 145, 154 (Del. Super. 2006); Mentzer v. Ognibene, 408 Pa. Super. 578, 586-88, 597 A.2d 604 (1991); Chapman v. Black, 49 Wash. App. 94, 104-05, 741 P.2d 998 (1987); but see Sievers v. McClure, 746 P.2d 885, 891 (Alaska 1987); Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584, 587-88 (Ind. 1995).
Plaintiffs cite a New Mexico case imposing liability under Restatement § 411 on a hospital in a case with some factual similarities, Talbott v. Roswell Hosp. Corp., 138 N.M. 189, 118 P.3d 194 (N.M. App. 2005). Nevertheless, Talbott is not applicable here for two reasons. First, it is not clear who employed the decedent in Talbott — the opinion states only that the decedent was “participating” in a training exercise conducted by the air ambulance service. 138 N.M. at 196. Second, the issues in Talbott concern only the nature of the relationship between the hospital and the independent contractor, not the relationship between the decedent and the others, which is the key issue here. 138 N.M. at 197.
In Dillard, our Supreme Court laid out several policy reasons for its decision to limit the hability of landowners to the employees of independent contractors. 255 Kan. at 725-27. These reasons are similar to those reasons set forth by several of the courts which have addressed the same question in the context of Restatement § 411. Although our Supreme Court limited its holding in Dillard to the facts and theories presented in that case, the policy reasons given in that case seem applicable to Restatement § 411.
Second, if the decedents were employees of Wesley rather than Ballard, then they may be precluded from recovery under the Kansas Workers Compensation statutes. See Robinett v. The Haskell Co., 270 Kan. 95, 97, 12 P.3d 411 (2000) (“[U]nder K.S.A. 44-501(b), an employer is not liable in tort for any injury in which compensation is recoverable under the Kansas Workers Compensation Act.”).
Third, if the decedents were passengers not employed by Wesley or Ballard, then they may be able to recover as third persons under Restatement § 411. Because at least one of the previously discussed possible results may ultimately entitle plaintiffs to relief, plaintiffs’ petitions should not have been dismissed for failure to state a claim.
Reversed and remanded. | [
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Larson, J.:
This is an appeal by Warden David R. McKune of the Lansing Correctional Facility (LCF) from the district court’s decision granting Robert Miller’s petition pursuant to K.S.A. 60-1501.
The record reflects that on November 7, 2004, the LCF issued a disciplinary report to Miller alleging a violation of K.A.R. 44-12-301, C-l, fighting. The disciplinary report was executed under oath and sworn to by CSI C. Nance. The report stated the facts to be as follows:
“On 10/24/04, Wylie requested PC and stated that he was involved in an altercation. Wylie stated that on 10/23/04, he choked Miller out and revived him only to be chased and attacked by Miller. According to Wylie the fight was over the movie ‘South Park.’ R/O looked into inmate Wylies [sic] allegation and discovered that there was an incident that took place at channel six. R/O placed Miller in xseg. pending investigation. During the seg. review hearing Miller admitted that he and Wylie were in an altercation. Miller stated that Wylie had infact [sic] choked him out and that they wee [sic] involved in a fight. Miller claims it was over Wylie showing ‘South Park’ when he was not suppose[d] to. Miller felt that Wylie was disrespecting him because he was put in charge by the channel six supervisor to make a schedule of movies to be shown. Based on Miller’s own admittance he is being charged with fighting. This case is closed as of 11/07/04.”
On November 18, 2004, a disciplinary hearing was held before a hearing officer. The record reflects Miller waived the reporting officer’s testifying and the disciplinary report was read into the record.
Miller testified he had planned to report Wylie for showing the movie “South Park” on the institutional broadcasting station because he did not want to take the blame for showing a movie that had been censored. Miller stated Wylie attacked him from behind and placed him in a choke hold causing him to black out. Miller said he was revived by Wylie and, while he had struggled in self-defense, he never chased or attacked Wylie.
The hearing officer found that Wylie had “choked Miller out” but according to the “report I/M Miller retaliates by chasing and attacking him. I/M claims self defense. The H/O only has these facts before them. I/M Miller and Wylie were involved in a fight over a scheduling conflict. During the review hearing this was admitted to.” Miller was found guilty of violating K.A.R. 44-12-301 (fighting). The sanctions set were described as “26 D/S, 60 P/R, $20 fine, C/S op.”
The case was reviewed by the warden or his designee. Miller appealed to the Secretary of Corrections. The Secretary upheld the decision as rendered and found the “Hearing Officer s decision was based on some evidence.”
Miller then filed a petition under K.S.A. 60-1501 in the district court claiming due process was violated because K.A.R. 44-12-301 permitted an inmate to defend himself or herself, inmate Wylie did not testify, and Officer Nance did not observe the incident and wrote the report after talking to inmate Wylie.
Warden McKune moved to dismiss, contending the disciplinary report showed Miller acknowledged he had been involved in an altercation but claimed self-defense while Wylie said he had been chased and attacked by Miller. The motion relied on In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001), to show due process existed and Sammons v. Simmons, 267 Kan. 155, Syl. ¶ 3, 976 P.2d 505 (1999), to contend the relevant question in a prison disciplinary case “ ‘is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.’ ”
The warden further alleged it was not a due process violation for the guilty finding to have been entered without direct testimony from inmate Wylie. There was no indication Wylie’s testimony would have changed the result of the hearing because by his own admission, Miller was involved in an altercation and the hearing officer was not persuaded by Miller’s claim of self-defense.
Miller’s response was essentially a restatement of the allegations of his K.S.A. 60-1501 petition.
The trial court denied Warden McKune’s motion and set the matter for a hearing. At the hearing, Warden McKune relied on the evidence in the record; the court noted that the appeal of disciplinary proceedings and attached documentation was on the record to determine whether there is some evidence to support the finding of guilt. In his argument, Miller reiterated the same facts he had previously stated and argued he was not guilty of the fighting charge.
The warden argued there was conflicting evidence as to the altercation which the hearing officer resolved against Miller and rejected his self-defense claim. There is some evidence to support the charge, and that is the standard the court is to follow on review. The court asked for clarification that the officer did not testify and the alleged person Miller was fighting did not testify either, and this was confirmed by the warden’s counsel.
The court took the matter under advisement and then issued a memorandum decision in which it found there was no evidence to support the finding of the hearing officer that the petitioner had engaged in a violation of K.A.R. 44-12-301. The decision further stated that the only evidence presented at the disciplinaiy hearing was the evidence presented by the petitioner. The decision recognized that the respondent did cause the original disciplinaiy report to be read into the record but offered nothing more.
The memorandum decision referenced K.A.R. 44-13-403(1)(2)(A) in stating: “[T]he Court cannot find that the prosecution presented any case .... The hearing officer made his finding not on any evidence developed during the hearing but on the disciplinary report. The reporting officer was not shown to be present and available for cross examination.” The court held the petition for a writ of habeas corpus should be sustained.
Warden McKune appealed the trial court’s decision and argues that under the regulations and applicable law “some evidence” was presented to the hearing officer and the K.S.A. 60-1501 petition should have been denied.
Because of the discipline entered and the allegations of the petition, denial of due process is alleged. This provides jurisdiction to consider Miller s argument. The question of whether due process exists in a set of facts is a question of law upon which our review is unlimited. Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).
“The law is clear that an inmate claiming violation of his constitutional rights in a habeas proceeding carries the burden of proof. [Citations omitted.]” Anderson v. McKune, 23 Kan. App. 2d 803, 807, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997). Anderson is quoted extensively in Sammons v. Simmons, 267 Kan. at 158-59, where Justice Abbott opined:
“The applicable standard of review for determining whether an inmate has carried the burden of proof was set out in Superintendent v. Hill, 472 U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985). This standard was then adopted in Shepherd v. Davies, 14 Kan. App. 2d 333, 338, 789 P.2d 1190 (1990). The Anderson court quoted the following from the Hill case:
‘ “[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if ‘there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . .’ [Citation omitted.] Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. [Citations omitted.]” (Emphasis added.) 472 U.S. at 455-56.’ 23 Kan. App. 2d at 807-08.
“In applying the ‘some evidence’ standard, the Hill court held that ‘due process did not require evidence that “logically preclude[d] any conclusion but the one reached by the disciplinary board” 472 U.S. at 457. The Court found that “[although the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.” 472 U.S. at 457.’ Anderson, 23 Kan. App. 2d at 808.”
Our Supreme Court in Murphy, 260 Kan. at 594-95, summarized the authority for and validity of regulations necessary to maintain good order and discipline in correctional institutions. We are taught to grant deference to the administrative agency’s interpre tation of its regulations which should not be disturbed unless it is clearly erroneous or inconsistent. 260 Kan. at 595.
An examination of the regulations under which the LCF operates shows that the proceedings leading up to Miller being found guilty of fighting were regularly accomplished and provided due process.
K.A.R. 44-13-201(c)(2) states: “The investigation report maybe adopted by the charging officer both as the charge itself and as the officer’s sworn statement in lieu of testimony in any case, in accordance with the regulations.”
In this case when the sworn statement of the reporting officer was presented, it is valid and persuasive evidence just as if the officer had appeared and testified in person. The district court’s finding that Warden McKune presented “no evidence” is not correct and is directly contradicted by a full reading of all of the provisions of K.A.R. 44-13-201.
The record further reflects that Miller signed a waiver of rights dated November 18, 2004, in which it was stated: “I waive reporting officer/reporting staff member testifying (Class I Cases).” This waiver was also acknowledged by Hearing Officer Cooper.
The fact that the disciplinary report is to be considered by the hearing officer is further clarified and confirmed by the provision of K.A.R. 44-13-403(p) which states: “The hearing officer, in deciding whether or not the inmate is guilty, shall consider only the relevant testimony and report.” (Emphasis added.) It is clear that there was evidence presented to the hearing officer through the interview with inmate Wylie that Miller “chased and attacked” Wylie. The issue was not who instigated the altercation but rather whether Miller was involved in fighting under K.A.R. 44-12-301. There was clearly some evidence that he was. This evidence was properly considered.
The finding which the hearing officer is allowed to make under prison regulations is based on K.A.R. 44-13-403(j), which states: “The hearing officer shall rule on all matters of evidence. Strict rules of evidence, as used in a court of law, shall not be required, but the hearing officer shall exercise diligence to admit reliable and relevant evidence and to refuse to admit irrelevant or unreliable evidence.” Our duties in the consideration of a K.S.A. 60-1501 petition involving disciplinary proceedings in a prison is to give “broad deference to prison officials in maintaining discipline in prison settings.” Anderson, 23 Kan. App. 2d at 809. The fact we may not have reached the same conclusion as the hearing officer is not material. The crucial fact to be determined is whether there is “some evidence” upon which the decision was reached and that clearly existed under the undisputed facts shown by the record in this case.
The question of self-defense was an issue before the hearing officer. But, by the decision of guilty of fighting being reached, it is clear the existence of this defense was resolved against Miller. The prosecution was not obligated to disprove self-defense, and the hearing officer as the factfinder in a prison disciplinary proceeding resolved this issue.
The trial court is reversed, and the case is remanded with instructions to deny the K.S.A. 60-1501 petition and to reinstate Miller’s conviction of fighting in violation of K.A.R. 44-12-301. | [
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Green, J.:
The sole issue presented by this appeal is whether the trial court properly determined that J.R.A. was a chronic offender II for sentencing purposes following a probation violation. To meet the requirement of a chronic offender II under K.S.A. 38-16,129(a)(3)(B)(i), the trial court would have had to classify one of J.R.A.’s felonies as a misdemeanor. J.R.A. contends that the trial court improperly considered J.R.A’s prior felony in meeting the chronic offender II requirement. The State, however, argues that the State can meet the second prong requirement under K.S.A. 38-16,129(a)(3)(B)(i) of two prior misdemeanor adjudications with one prior misdemeanor adjudication and with one prior felony adjudication. Nevertheless, the clear statutory language of K.S.A. 38-16,129(a)(3)(B)(i) requires two prior misdemeanor adjudications. In essence, the State wants us to rewrite the plain language of the statute and add an unstated statutory requirement (one prior mis demeanor adjudication and one prior felony adjudication) to the clear text of the statute. This we cannot do. The clear text of K.S.A. 38-16,129(a)(3)(B)(i) requires two prior misdemeanor adjudications. Accordingly, we reverse and remand for resentencing.
On January 24, 2006, J.R.A. was adjudicated in Johnson County, Kansas, of consumption of liquor by a minor in Case No. 05-JV-2296 and of burglary of a motor vehicle in Case No. 05-JV-2775. As a result of these adjudications, J.R.A. was placed on a 12-month community corrections supervised probation.
On August 2, 2006, J.R.A. was adjudicated in Miami County, Kansas, of attempted residential burglary. After the Miami County adjudication, the State moved to revoke J.R.A.’s probation in his Johnson County cases. At the hearing on the motion to revoke probation, J.R.A. stipulated that he had violated the terms of his probation. The trial court revoked his probation. With regard to J.R.A.’s criminal histoiy, the trial court determined that he had three adjudications: (1) consumption of alcoholic liquor by a minor, a class C non-person misdemeanor on January 24, 2006; (2) burglary of a vehicle, a level 9 non-person felony on January 24,2006; and (3) attempted burglary, a level 9 nonperson felony, from the Miami County case on August 2, 2006. Based on those adjudications, the trial court classified J.R.A. as a “chronic offender II, escalating felon” on the juvenile matrix and sentenced him to 12 months’ custody and 12 months of aftercare.
J.R.A. objected to his placement as a “chronic offender II, escalating felon” and later moved to modify his sentence. The trial court denied the motion to modify sentence after finding that the placement on the juvenile matrix was appropriate.
Did the Trial Court Err in Classifying J.R.A. as a “Chronic Offender II, Escalating Felon” on the Juvenile Matrix?
On appeal, J.R.A. argues that his sentence is improper because the trial court improperly classified him as a “chronic offender II, escalating felon” on the juvenile matrix. Resolution of this issue requires an interpretation of the juvenile sentencing statutes. “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. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
In Kansas, we follow the plain meaning rule that states that if a statute is clear and unambiguous, the statute should be construed according to its plain and ordinary meaning:
“When a statute is plain and unambiguous, appellate courts will neither speculate as to legislative intent nor read a statute so as to add something not readily found in it. State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Legislative intent may best be determined from the plain meaning of the words used in the statute in light of all the experience available to the lawmaking body. Hulme v. Woleslagel, 208 Kan. 385, 391, 493 P.2d 541 (1972). Our construction should neither add to that which is not readily found in the statute, nor read out what, as a matter of ordinary language, is in it. See Boatright v. Kansas Racing Com’n, 251 Kan. 240, Syl. ¶ 7, 834 P.2d 368 (1992).” Endorf v. Bohlender, 26 Kan. App. 2d 855, 861-62, 995 P.2d 896 (2000).
K.S.A. 38-16,129 provides guidance for sentencing a juvenile offender under the juvenile matrix. In the present matter, the trial court relied on that statute in classifying J.R.A. as a “chronic offender II, escalating felon” on the juvenile matrix. Specifically, the trial court found that J.R.A.’s prior adjudications met the criteria set forth in K.S.A. 38-16,129(a)(3)(B)(i), which provides that a juvenile is a “chronic offender II, escalating felon” if he or she is “adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute . . . [o]ne present felony adjudication and two prior misdemeanor adjudications.” The statute also contains other definitions of “chronic offender II, escalating felon,” but each of the additional definitions requires an adjudication for a drug offense, and it is conceded by the parties that the present case does not involve drug offenses. As a result, the additional statutory definitions of “chronic offender II, escalating felon” are not at issue in this case.
At the time of sentencing in this matter, J.R.A.’s adjudication history consisted of one class C nonperson misdemeanor (present offense of consumption of an alcoholic liquor by a minor), one level 9 nonperson felony (present offense of burglary of a vehicle), and one level 9 person felony (prior offense of attempted burglary). All parties agreed that J.R.A. had only one misdemeanor adjudication and two felonies at the time of sentencing. In order to classify J.R.A. as a “chronic offender II, escalating felon,” the trial court treated J.R.A.’s prior felony adjudications as a misdemeanor adjudication.
J.R.A. argues that the trial court erred in treating one of the prior felony adjudications as a misdemeanor adjudication in order to classify him as a “chronic offender II, escalating felon.” To support Iris argument, J.R.A. notes that our legislature has specifically defined “felony” in K.S.A. 2006 Supp. 21-3105(1) and “misdemeanor” in K.S.A. 2006 Supp. 21-3105(4) and that those definitions have been incorporated into the Kansas Juvenile Justice Code by K.S.A. 2005 Supp. 38-1602(b). J.R.A. argues that the trial court ignored the plain meaning of those statutes in treating a felony adjudication as a misdemeanor adjudication in order to classify him as a “chronic offender II, escalating felon.” J.R.A. argues that he did not meet any of the specific definitions of a “chronic offender II, escalating felon” as set forth in K.S.A. 38-16,129(a)(3)(B) and, as a result, he was improperly classified by the trial court.
After the sentencing in J.R.A.’s case, K.S.A. 2005 Supp. 38-16,129 was repealed (L. 2006, ch. 169, sec. 140) and the sentencing of juvenile offenders is now addressed by K.S.A. 2006 Supp. 38-2369, which became effective on January 1, 2007. L. 2006, ch. 169, sec. 69. K.S.A. 2006 Supp. 38-2369(a)(3)(B)(i) defines a “chronic offender II, escalating felon,” in part, as an offender with “[o]ne present felony adjudication and either two prior misdemeanor adjudications or one prior person or nonperson felony adjudication.” If J.R.A. would have been sentenced under the new matrix established in K.S.A. 2006 Supp. 38-2369, then classification as a “chronic offender II, escalating felon” would clearly be appropriate under the express language of subsection (a)(3)(B)(i) because he has a present felony adjudication and a prior felony adjudication. Nevertheless, J.R.A. was not sentenced under the current juvenile matrix, but rather the prior version which does not contain the same language as the revised version.
The State argues that the recent legislative treatment of classification under the juvenile matrix is a clarification of its intent to treat individuals with tire same criminal history as J.R.A. as “chronic offender II, escalating felon.” Consequently, the State argues that the classification requirements of a “chronic offender II, escalating felon” was clarified by the enactment of K.S.A. 2006 Supp. 38-2369(a)(3)(B).
Nevertheless, the legislature’s enactment of K.S.A. 2006 Supp. 38-2369(a)(3)(B)(i) shows that it intended to differentiate between two prior misdemeanor adjudications and one prior misdemeanor adjudication and one prior felony adjudication, for which the State argues, in satisfying the second prong of K.S.A. 38-16,129 (a)(3)(B)(i). The legislature’s amendment of the second prong of K.S.A. 38-16,129(a)(3)(B)(i) by adding the phrase “or one prior person or nonperson felony adjudication” contradicts the State’s argument. The amendment shows that if the legislature had wanted to enact a statutory scheme of one misdemeanor adjudication and one felony adjudication to satisfy the second prong of K.S.A. 38-16,129(a)(3)(B)(i), it could have easily done so. Nevertheless, the legislature has declined to adopt such a statutory scheme.
In summary, we find that K.S.A. 38-16,129(a)(3)(B)(i) is plain and unambiguous. In clear language, the statute defines a “chronic offender II, escalating felon,” in part, as an offender with “[o]ne present felony adjudication and two prior misdemeanor adjudications.” K.S.A. 38-16,129(a)(3)(B)(i). The terms “felony” and “misdemeanor” have been specifically defined by the legislature, and those terms are not used interchangeably. Because K.S.A. 38-16,129(a)(3)(B)(i) is plain and unambiguous, it is not subject to statutory construction, and the court may not speculate as to the legislative intent of the statute. Under the plain and unambiguous language of K.S.A. 38-16,129(a)(3)(B)(i), J.R.A. does not meet the classification requirements of a “chronic offender II, escalating felon” because he had not been previously adjudicated of two misdemeanors. As a result, J.R.A.’s criminal history does not meet the statutory definition of a “chronic offender II, escalating felon” as set forth in K.S.A. 38-16,129(a)(3)(B)(i).
Reversed and remanded for resentencing. | [
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Buser, J.:
Zeena Moffit was convicted of conspiracy to unlawfully manufacture methamphetamine in violation of K.S.A. 21-3302(a) and K.S.A. 65-4159(a). Over the State’s objection, the district court granted Moffit a dispositional departure and she was placed on probation. The State appeals this ruling on a question reserved under K.S.A. 2006 Supp. 22-3602(b)(3).
The question reserved: Does K.S.A. 65-4l59(b), which provides that any person who engages in the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance “shall not be subject to statutory provisions for suspended sentence, community work service, or probation,” prohibit a sentencing court from granting probation to a defendant convicted of conspiracy to unlawfully manufacture methamphetamine? We hold K.S.A. 65-4159(b) does not prohibit a sentencing court from granting probation to a defendant convicted of conspiracy to unlawfully manufacture methamphetamine in violation of K.S.A. 21-3302(a) and K.S.A. 65-4159(a). Given this holding, we affirm.
Factual and Procedural Background
On Februaiy 13, 2006, based upon a plea agreement, Moffit was convicted of conspiracy to unlawfully manufacture methamphetamine. Prior to sentencing, Moffit filed a motion for dispositional and durational departures seeking probation and a reduced 24-month sentence.
At the sentencing hearing on April 3, 2006, the State agreed to Moffit’s motion for a downward durational departure sentence of 24 months. The State objected, however, to Moffit’s downward dispositional departure motion requesting probation. The district court granted Moffit both a durational and dispositional departure, sentencing her to a 24-month probation with Community Corrections, with an underlying sentence of 24 months’ incarceration.
The State filed a timely notice of appeal.
Question Reserved
At the outset, because the district court granted Moffit a dis-positional departure, the State could have appealed this sentence under K.S.A. 21-4721(a). Given the State’s decision to proceed with this appeal upon a question reserved under K.S.A. 2006 Supp. 22-3602(b)(3), however, we initially consider whether this question reserved merits appellate review. Moffit contends the question reserved by the State “is not of state wide importance and a decision on these facts would not aid in the correct and uniform administration of the criminal law in future cases.”
Kansas law addressing an appellate court’s review of a question reserved by the State is well settled: “A question reserved by the State will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the State.” State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). “It is long-established that the purpose of a State’s appeal on a question reserved is to provide an answer to a question of statewide importance that will aid in the correct and uniform administration of the criminal law in future cases. [Citation omitted.]” State v. Mathis, 281 Kan. 99, 103, 130 P.3d 14 (2006).
The question reserved by the State is one of first impression that is likely to arise in the future. Moreover, this question does not require us to analyze unique factual circumstances but may be resolved solely as a matter of statutory interpretation. Accordingly, we review this question because it is “a novel issue of statewide interest.” State v. Hodges, 241 Kan. 183, 190, 734 P.2d 1161 (1987).
Applicability ofKS.A. 65-4159(b) to Persons Convicted of Conspiracy to Unlawfully Manufacture Methamphetamine
The State contends the district court erred in granting Moffit probation upon her conspiracy to unlawfully manufacture methamphetamine conviction because “[i]t is clear according to . . . 65-4159(b) that a defendant convicted pursuant to that statute must serve the sentence imposed in the custody of the Secretary of Corrections.”
The question reserved requires our interpretation of K.S.A. 65-4159(b). “Interpretation of a sentencing statute is a question of law, and the appellate court’s standard of review is unlimited.” Abasolo v. State, 284 Kan. 299, Syl. ¶ 1, 160 P.3d 471 (2007).
Our review is predicated on long-standing rules of statutory construction:
“Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be.” State v. McCurry, 279 Kan. 118, Syl. ¶ 1, 105 P.3d 1247 (2005).
With regard to interpretation of criminal statutes:
“The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” Abasolo, 284 Kan. 299, Syl. ¶ 2.
K.S.A. 65-4159(a) provides that “[e]xcept as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” Methamphetamine is included as a controlled substance within the meaning of this statute. See K.S.A. 65-4107(d)(3); K.S.A. 65-4150(a).
The specific subsection at issue in the present case, K.S.A. 65-4159(b), mandates:
“Any person violating the provisions of this section with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance or controlled substance analog, upon conviction, is guilty of a drug severity level 1 felony and the sentence for which shall not be subject to statutory provisions for suspended sentence, community work service, or probation.” (Emphasis added.)
The plain language of K.S.A. 65-4159(b) clearly prohibits a sentencing judge from granting probation upon a defendant’s convic tion of unlawfully manufacturing or attempting to unlawfully manufacture a controlled substance.
Nowhere in the provisions of K.S.A. 65-4159, however, is found any prohibition of probation in cases wherein a defendant is convicted of conspiracy to unlawfully manufacture a controlled substance. Indeed, the crime of conspiracy is not mentioned in any of the provisions of K.S.A. 65-4159. Given the plain language of this statute, we are unable to find any indication that its provisions apply to a defendant convicted of conspiracy to unlawfully manufacture methamphetamine.
Nevertheless, the State directs us beyond the plain language of K.S.A. 65-4159(b) to the provisions of the conspiracy statute, K.S.A. 21-3302. This statute provides: “A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime.” K.S.A. 21-3302(a). Subsection (d) of21-3302 sets forth sentencing provisions for conspiracy offenses in drug cases: “Conspiracy to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.”
K.S.A. 21-3302 does not reference K.S.A. 65-4159(b), nor does it prohibit a sentencing judge from granting probation in conspiracy to unlawfully manufacture methamphetamine cases. The conspiracy statute simply dictates a 6-month reduction in the prison term prescribed on the drug-grid block for the underlying or completed crime. See State v. Hernandez, 24 Kan. App. 2d 285, 290, 944 P.2d 188, rev. denied 263 Kan. 888 (1997) (citing K.S.A. 21-3302[d] when calculating the presumptive sentence); State v. McCallum, 21 Kan. App. 2d 40, 43, 895 P.2d 1258, rev. denied 258 Kan. 861 (1995) (same). Moreover, the conspiracy statute does not set forth any other sentencing provisions applicable to drug-related conspiracy cases. In short, the plain language of K.S.A. 21-3302 does not prohibit a sentencing judge from granting probation as an authorized sentencing disposition in conspiracy to unlawfully manufacture methamphetamine cases.
The State argues that “K.S.A. . . . 65-4159 and K.S.A. 21-3302 must be read together and blended in a common sense fashion,” and based on that construction, “it is nothing but clear that im prisonment is required but that said imprisonment must be reduced by six (6) months.”
We first note our Supreme Court’s instruction, made in another context, that “[t]he only penalty provision applicable to a violation of K.S.A. 65-4159 is contained in that section.” State v. Layton, 276 Kan. 777, 782, 80 P.3d 65 (2003) (holding penalties in the Uniform Controlled Substances Act did not control over the text of K.S.A. 65-4159).
The State’s argument presumes that because K.S.A. 65-4159(a) applies to any attempt to unlawfully manufacture a controlled substance, it also applies to other anticipatory crimes, such as conspiracy to unlawfully manufacture a controlled substance.
Attempt and conspiracy, however, are separate anticipatory crimes under Article 33 of Chapter 21 of the Kansas Statutes Annotated. See K.S.A. 21-3301 and K.S.A. 21-3302. Anticipatory crimes are “[b]y their very nature, . . . complete before the other crime or crimes with which they are concerned has or have been consummated.” State v. Hill, 252 Kan. 637, 644, 847 P.2d 1267 (1993); see also State v. Mims, 264 Kan. 506, 517, 956 P.2d 1337 (1998) (“The commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.”). Conspiracy to unlawfully manufacture methamphetamine is, therefore, a separate and distinct offense from unlawfully manufacturing methamphetamine or attempting to unlawfully manufacture methamphetamine — offenses for which the granting of probation is specifically prohibited under K.S.A. 65-4159(b).
While we believe the meaning of K.S.A. 65-4159(b) is clear, one additional rule of statutory interpretation resolves any ambiguity that may arise when that statute is read in conjunction with K.S.A. 21-3302.
“The maxim expressio unius est exclusio alteráis, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. [Citations omitted.] Under this rale, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Applying this rule to the present case, the legislature specifically included the anticipatory crime of attempting to unlawfully manufacture a controlled substance in the provisions of K.S.A. 65-4159(b). This express inclusion, however, suggests the legislature specifically excluded any reference to other, unmentioned, anticipatory crimes, including conspiracy to unlawfully manufacture a controlled substance.
This same rule of statutory construction is applicable to K.S.A. 65-4159(d), which specifically disallows the 6-month reduction in sentence set forth in the attempt statute, K.S.A. 21-3301(d), when the underlying crime is an attempt to manufacture a controlled substance. K.S.A. 65-4159(d), however, does not mention the 6-month reduction in sentence provided in identical provisions of the conspiracy statute. See K.S.A. 21-3302(d). This is further indication that the legislature made a purposeful distinction between the separate crimes of attempting to unlawfully manufacture a controlled substance and conspiracy to unlawfully manufacture a controlled substance.
We conclude from a plain reading of K.S.A. 65-4159(b) that the legislature did not intend to prohibit a sentencing judge from granting probation to a defendant convicted of conspiracy to manufacture methamphetamine. Moreover, when considering K.S.A. 21-3302 and K.S.A. 65-4159(b) together, our interpretation results in a working harmony that reflects our understanding of the legislature’s intent. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Although the district court in the present case did not engage in this precise analysis, its judgment is upheld. See State v. Hoge, 276 Kan. 801, 807, 80 P.3d 52 (2003).
Affirmed. | [
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Hill, J:
We consider here a directed verdict in a case arising from the dissolution of a trademark contract that permitted the use of one corporation s trademark by another. Believing that Fleet-wood Folding Trailers, Inc. (FFT) had failed to abide by their agreement, the Coleman Co., Inc. (Coleman) successfully sued FFT for lost royalties, profits, punitive damages, and attorneys fees. FFT appeals.
The court directed a verdict on two key points. First, FFT had breached their contract by using Coleman’s trademarks outside FFT’s authorized territory. Second, FFT’s continued use of Coleman’s trademarks breached their agreement, infringed upon Coleman’s federal and state common-law trademark rights, and violated federal law by creating a false designation of origin.
Resolving all facts and inferences reasonably drawn from the evidence in favor of FFT, we find that a directed verdict was properly granted to Coleman. Accordingly, we affirm.
FACTS AND PRIOR PROCEEDINGS
FFT manufactured folding camping trailers and, with permission, placed Coleman’s trademarks on them. Their business relationship began in 1989 with their first trademark license agreement. They renewed their agreement in 1994 and 2000.
In September 2002, Coleman conducted an audit of FFT. Based on that audit, Coleman told FFT that it had not fully complied with the agreement on unreported sales and advertising minimums. Over the next 6 months after the audit, Coleman advised FFT that it continued to misuse Coleman’s trademarks. Finally, on April 11, 2003, Coleman sent written notification to FFT that FFT had breached the 2000 Trademark License Agreement.
Coleman alleged four general breaches of the agreement by FFT:
• FFT failed to submit details about five new models of trailers and obtain Coleman’s approval to use its logo on them.
• FFT continuously failed to submit parts, catalogs, brochures, and other advertising materials for Coleman’s approval as required by the contract.
• FFT failed to submit additional materials about its new Caravan trailer and continued to use inaccurate trademarks on the products.
• FFT sold trailers in Spain, Turkey, the Netherlands, Taiwan, and Norway without Coleman’s approval.
FFT replied to Coleman’s accusations. FFT thought that Coleman would support FFT’s development of new products since Coleman would receive royalties from the sales. FFT denied failing to comply with the contract’s approval procedures, stating that it had appreciated the informal relationship between the two companies that had developed over the years. FFT also contended that since it had submitted photos of the Caravan to Coleman and, in FFT’s opinion, “if you’ve seen one Caravan, you’ve seen them all,” no further information was necessary. FFT admitted it had sold trailers in five countries without Coleman’s permission, but FFT claimed it was an oversight.
In May 2003, Coleman informed FFT, in writing, that FFT had failed to remedy the breaches. Accordingly, under paragraph 12.2 of the 2000 Trademark License Agreement, Coleman ended its relationship with FFT. Coleman advised FFT that, in accordance with paragraph 12.3, FFT was required to immediately cease all use of Coleman’s licensed trademarks on all its materials and products.
In response, FFT filed a lawsuit against Coleman, seeking declaratory judgment on Coleman’s unlawful termination of the agreement and also sought a temporary restraining order against Coleman from licensing its trademarks to other recreational vehicle manufacturers. Coleman counterclaimed, alleging that FFT’s conduct constituted trademark infringement and FFT’s unauthorized use of Coleman’s trademarks entitled Coleman to punitive damages. Coleman also requested a preliminary injunction to prevent FFT from continuing to use its trademarks.
While considering both parties’ requests for preliminary injunctions, the district court ruled that, based upon the 1989 and 2000 agreements of the parties, Coleman had a right to restrict the use of its name and trademarks and FFT had failed to establish any right to continue the use of Coleman’s name and trademarks after Coleman’s termination of the agreement. The court did not grant Coleman’s injunction at that time because the request required a determination of the ultimate issues in the case.
Soon afterwards, Coleman moved for reconsideration, asserting that FFT was still using Coleman’s name and trademarks. In response, FFT argued that because the district court had yet to decide whether Coleman lawfully terminated the 2000 Trademark License Agreement, it was still authorized under that agreement to use Coleman’s trademarks. In compliance with the agreement, FFT proffered royalty payments to Coleman for the continued use of Coleman’s trademarks.
On August 18,2003, the district court granted Coleman’s motion for a temporary injunction and enjoined FFT and its affiliates from using Coleman’s trademarks. Its order stated again that FFT did not have any right to use the Coleman name and trademarks.
The case was submitted to a jury in December 2004. At the conclusion of FFT’s presentation of evidence, Coleman moved for a directed verdict on two grounds: (1) on FFT’s breach of contract claim, and (2) for FFT’s posttermination breach of contract and trademark infringement. After reviewing the undisputed facts, the district court decided that (1) FFT’s sales of trailers outside its authorized territory violated the territorial provision of the contract; (2) FFT had failed to follow Coleman’s approval process; (3) FFT’s use of Coleman’s trademarks exceeded the scope of the license; and (4) FFT had not cured its contract breaches. Accordingly, the district court granted Coleman’s motion and directed a verdict.
The court submitted all remaining questions to the jury. The jury unanimously found (1) reasonable royalties in this case were $508,137; (2) FFT’s postcontract termination conduct in using the trademark was willful or in bad faith; (3) FFT earned $4,665,735 in profits during the period of May 12 to August 20, 2003; (4) Coleman should be awarded punitive damages; and (5) FFT failed to prove that it reasonably relied on competent legal advice when it infringed on Coleman’s trademarks.
Based on the jury’s findings, Coleman moved to treble the award of profits and attorney fees, alleging that FFT’s unauthorized trademark was a “counterfeit mark” according to the Lanham (Trademark) Act, 15 U.S.C. §1051 (2000) etseq. Under that Act, Coleman asserted that the district court was required to award to Coleman three times the profits made by FFT and award Coleman its attorney fees and costs. The district court concluded that the evidence clearly showed that FFT’s conduct, combined with the jury’s findings, satisfied the Lanham Act’s definition of a counterfeit mark. Therefore, the court granted Coleman’s motion.
In its final judgment, the court made three rulings pertinent to this appeal. First, it held that Coleman did not breach the 2000 Trademark License Agreement when it terminated its relationship with FFT Second, because FFT’s continued use of Coleman’s trademarks breached the agreement, infringed upon Coleman’s trademarks, and constituted a false designation of origin in violation of federal law, the district court decided that FFT owed Coleman reasonable royalties. Third, based on the jury’s determination that FFT’s infringement of Coleman’s trademarks was willful, the district court ruled that Coleman was entitled to FFT’s profits received during the period of infringement. Furthermore, since FFT’s conduct constituted counterfeiting under the Lanham Act, the district court trebled the profits award and, in addition, awarded Coleman its attorney fees and htigation expenses. But, because of this enhanced award, the district court denied an additional award for punitive damages.
In this appeal, FFT raises five general issues. (1) Improper grant of directed verdict. In a two-fold argument, FFT contends that the question of what is a material breach of the agreement is a question of fact which should be decided by the jury and not the court; secondly, with the evidence submitted in its case, the question of whether FFT had cured any breach of the agreement is also an issue of fact for the juiy and not an issue for the court. (2) Improper jury instruction about profits. FFT argues that there was insufficient evidence to prove that it had willfully infringed upon Coleman’s trademark rights to support giving an instruction that the juiy had to award Coleman all of FFT’s profits. Also the court’s instruction erroneously told the jury it must award profits to Coleman if FFT had misused the trademarks. And, finally, the instruction should have informed the jury that the only profits it was to consider were those attributable to any unlawful use of the trademark, not all of FFT’s profits. (3) Erroneous exclusion of evidence about a covenant not to compete in original contract. Here, FFT contends that the jury awarded a windfall to Coleman because it was not told that Coleman could not have licenced its trademark with any other company in the RV industry. A covenant not to compete in the original agreement between Coleman and the parent company of FFT allowed only FFT to use the trademarks. FFT thinks the jury would have reacted differently had it known. (4) Lanham Act misinterpretation. According to FFT, the court erred when it concluded FFT had engaged in counterfeiting of Coleman’s trademarks. (5) No need for punitive damage instruction. For guidance in any future retrial of this matter, FFT argues that the Lanham Act precludes any award for punitive damages that might have been granted in this case. Therefore, FFT argues, with no possibility of a punitive damage award, there is no need for such an instruction.
ANALYSIS
We begin first with some general rules concerning directed verdicts and how we review them. From there, we deal with the issues in the order set out above. We will incorporate additional facts into this opinion, especially provisions of the contract, as needed.
In deciding a motion for directed verdict, the trial court as well as the appellate court must resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom the ruling is sought and determine whether evidence exists in which a jury could find a verdict for that party. Therefore, a directed verdict must be denied when evidence exists upon which a jury could properly find a verdict for the nonmoving party. However, where the evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions, the matter is a question of law for the trial court’s determination. Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 126-27, 815 P.2d 72 (1991).
Issue 1: Improper grant of directed verdict
While granting Coleman’s motion for directed verdict, the court found that the undisputed evidence demonstrated that (1) FFT had breached the agreement when it sold trailers outside the authorized territory and did not comply with Coleman’s approval process in its use of Coleman’s trademarks, and (2) FFT had failed to cure these errors. We examine these two findings.
Breach
FFT argues that triable issues of material fact remain regarding whether FFT’s breaches were material to the agreement. Since the agreement did not define “cure,” FFT alleges it cured the agreement when it ceased breaching the contract 30 days after receiving the written notice from Coleman. In FFT’s opinion, whether it did so cease was a question of fact for the jury.
Paragraph 12.2 of the agreement states that Coleman may terminate the agreement if all three of the following events occur: (1) FFT must fail to perform or fulfill any term or obligation of the agreement; (2) Coleman must provide “written notice” to FFT of those defaults; and (3) after receipt of written notice, such default continues for 30 days.
Several facts about this are not disputed. Larry Marsh, general manager and vice president of FFT, testified that FFT received written notification that FFT had breached the sales territory and approval process provisions in the agreement. In response, on April 17, 2003, FFT instructed its production line to stop placing videotapes disapproved by Coleman in its trailers on May 10,2003. Furthermore, on April 22, 2003, FFT admitted to Coleman that it had distributed its trailers outside the authorized territory but promised to fully comply “from this point forward.” Contrary to that assertion, on May 7, 2003, FFT shipped 16 trailers to Norway, an unauthorized territory. As a result, on May 12, 2003, Coleman terminated the 2000 Trademark License Agreement, claiming that FFT had failed to demonstrate that it had remedied the breaches that were cited in the written notice.
Fundamentally in their argument, FFT relies upon the district court’s finding that paragraph 12.2 of the agreement requires a “material” breach to occur before Coleman may terminate the agreement. FFT argues that it did not materially breach the agreement because (1) its noncompliance with the territorial provision was a technical, not material, breach and (2) the evidence proved that FFT substantially complied with Coleman’s approval process.
In contrast, Coleman challenges this ruling. Coleman argues that paragraph 12.2 does not require a breach to be material in order to trigger Coleman’s option to terminate. Nonetheless, Coleman additionally argues that FFT’s breaches were material to the agreement because those breaches threatened Coleman’s ability to control its license, which was the essential purpose of the agreement.
We think the district court was incorrect here. The court interpreted the termination provision to implicitly require FFT’s breaches to be material in order to terminate, while paragraph 12.2 does not include the word “material” in its language. But a separate paragraph of the agreement, paragraph 4.2, concerning royalties, specifies that FFT’s failure to deliver the required royalty reports and payments shall constitute a material breach.
It has been said many times, the interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). When making such a determination, we take a large view:
“An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]” Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10-11, 13 P.3d 351 (2000).
Moreover, where the language of the contract is clear and can be carried out as written, there is no room for construction or modification of the terms. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 671, 876 P.2d 1362 (1994).
Here, the language of paragraph 12.2 is clear and can be carried out as written. Paragraph 12.2 states that before Coleman has the option to terminate the contract, FFT must fail “to perform or fulfill any term or obligation” of the 2000 Trademark License Agreement. The term “any” means “one or some, regardless of sort, quantity, or number.” Webster’s II New College Dictionaiy 51 (1st ed. 1995). The parties’ inclusion of “any” suggests that the provision breached may be one or more of the provisions in the agreement, not that the provision breached must be material to the agreement. As a result, the district court erred when it modified the phrase “any term or obligation” to include “material.”
Going further, the uncontested evidence clearly demonstrates that FFT not only violated paragraph 2.2 of the agreement dealing with trade territory limits, but also paragraph 6.4 concerning Coleman’s approval of materials. FFT conceded that it sold licensed products to countries outside the defined territory (found in paragraph 1.3). Furthermore, FFT admitted that its conduct was an oversight by “not keeping Coleman abreast of the new distribution points.” Additionally, it is uncontested that FFT never requested Coleman’s consent to sell to those countries. Therefore, it is undisputed that FFT breached paragraph 2.2(i) when it failed to limit its use of Coleman’s trademarks to the territories specified in paragraph 1.3 and failed to amend the territory definition, as required under 2.2(ii), to include those additional countries.
Coleman’s approval process is located in paragraph 6.4 of the agreement. It states that FFT must obtain Coleman’s written approval by first submitting two samples of the product prior to the manufacture, sale, and distribution of its trailers or marketing materials. At issue is whether FFT failed to comply with the Coleman’s approval process for FFT’s trailers and FFT’s marketing materials.
Approval of Trailers
Regarding FFT’s trailers, Marsh testified that David Mitchell (the former head of Coleman’s licensing department) verbally ap proved the Caravan trailer. After Mitchell’s approval, Marsh stated that FFT created additional trailers that were not named Caravan, but the only difference between these trailers and the approved Caravan was the floor plan. Marsh testified that instead of numbering the models of the Caravan trailer, FFT personalized each model with a name. Therefore, Marsh believed it was unnecessaiy to obtain additional approvals since these trailers were all models of the Caravan. FFT additionally claimed that it believed providing Coleman access to visit its facility to view its trailers substituted for the requirement of shipping samples to Coleman.
On appeal, this court is required to resolve all facts and inferences reasonably drawn from the evidence in favor of FFT. Therefore, assuming that the other trailers used the same Caravan structure and that Coleman verbally approved of the Caravan trailer, a jury determination is necessary to determine if FFT complied with paragraph 6.4 for its trailers. We agree with FFT on this point, but this does not save FFT.
Approval of Marketing Materials
Coleman’s approval of FFT’s marketing materials is a different stoiy. It is clear that FFT repeatedly violated Coleman’s approval process under paragraph 6.4. In 2001, FFT requested approval for its 2002 folding trailer brochure. Specifically, FFT had created an anniversary logo, which included both Coleman’s and FFT’s trademarks. Eventually, Coleman approved FFT’s brochure but denied FFT’s request to use Coleman’s trademarks in combination with FFT’s anniversary logo. FFT’s representatives admitted that it went ahead and published the brochure with the anniversary logo that included Coleman’s trademarks.
Then, in 2002, FFT submitted two posters to Coleman that used the Coleman name improperly. Coleman advised FFT of its error and approved the posters so long as FFT made the requested changes. The record on appeal reveals that FFT did not make the requested changes and published the posters with the misuse of “Coleman.”
In March 2003, Coleman notified FFT that tire packaging for FFT’s videotapes was using an “odd” Coleman parallelogram with out the standard lantern logo and provided FFT with Coleman’s current logos. Nonetheless, FFT continued to place these improperly packaged videotapes into its trailers without updating the Coleman logo until May 10, 2003. Additionally, FFT failed to send a press release to Coleman for approval, which prompted Coleman to alert FFT of this error in January 2003.
Thus, the evidence FFT presented at trial undisputably showed that FFT failed to comply with paragraphs 2.2 and 6.4 of the agreement. There is simply no evidence on which the jury could have ruled in favor of FFT. The district court properly determined, as a matter of law, that FFT’s actions constituted breaches under paragraph 12.2 of the agreement.
Cure
We turn now to the question of whether FFT cured its contract violations. If a contract default continued for 30 days after written notice, paragraph 12.2 allows Coleman to terminate the agreement. Therefore, on appeal, the parties contest whether FFT cured its violations sufficiently to prevent Coleman from terminating the license agreement.
Paragraph 12.2 of the agreement provides:
“12.2 Other Events of Termination. This Agreement may be terminated at COLEMAN’S option upon the occurrence of any of the following events; (i) [FFT] fails to perform or fulfill any term or obligation of this Agreement in the time and manner provided, and if such default shall continue for thirty (30) days after toritten notice thereof" (Emphasis added.)
FFT disagrees with the district court’s interpretation of paragraph 12.2. FFT thinks that provision only requires FFT to stop breaching the agreement 30 days after it receives the written notice. Based on that interpretation, FFT argues that it was neither required to repair the past harm that had occurred from its breaches, nor was it required to stop breaching the agreement within that 30-day period. As a result, FFT alleges that triable issues of fact existed to warrant a jury determination on the matter. Opposing this, Coleman asks us to adopt the district court’s definition of “cure,” which is to remedy any existing breaches and return the parties to their predefault conditions within the 30-day period.
Under its interpretation of paragraph 12.2, FFT cites Anacapa Technology v. ADC Telecommunications, 241 F. Supp. 2d 1016 (D. Minn. 2002), for support that it was not required to remedy any harm that stemmed from its breaches. In Anacapa Technology, Anacapa licensed its technology to ADC in exchange for royalties. ADC also agreed to protect Anacapa’s confidential information. ADC then subcontracted die manufacturing of its licensed technology to a third party. When the third party began incorporating Anacapa’s licensed technology into its own products, Anacapa notified ADC that it had materially breached the agreement by failing to ensure that its sublicensed third party treated as confidential the Anacapa confidential information identified in the Anacapa/ADC licensing agreement.
The issue before the Anacapa Technology court was the definition of cure in a noncommercial setting. Anacapa argued that to “cure a material breach under Minnesota law, [a licensee] must stop the offending conduct and repair the harm done by the breach.” The court, however, decided that definition was in error, and held: “Instead, cure requires substantial performance or performance without a material failure.” (Emphasis added.) 241 F. Supp. 2d at 1020-21.
Using that inteipretation, the court stated that tire evidence showed that ADC undertook affirmative steps to cure its breach, such as obtaining an injunction against the third party to comply with the licensor’s restrictions, requiring the third party through severe restrictions in the settlement agreement to treat as confidential Anacapa’s confidential information, and mandating the third party to assign ADC ownership of the third party’s patent that had incorporated Anacapa’s technology. The district court also noted that ADC had implemented procedures to prevent the unauthorized disclosure of Anacapa’s confidential information by securing audit rights over the third party and control over the third party’s future development efforts. Because of ADC’s efforts, the district court held that ADC had cured its breach. 241 F. Supp. 2d at 1025.
Even if we adopted this foreign definition of “cure,” the trouble is, unlike ADC, FFT has failed to prove that it substantially performed under the agreement after it was notified of its breaches. First, FFT informed its product line to continue placing the videotapes with the disapproved packaging into its trailers until May 10, 2003, which would have been the day of termination. Second, after FFT represented to Coleman that it would “be in full compliance on [the territorial provision] from this point forward,” 2 weeks later FFT breached that provision when it shipped its trailers to Norway. FFT’s efforts simply fail to meet the level of substantial performance described in Anacapa Technology.
Furthermore, FFT misconstrues the purpose behind the 30-day remedial time period. The 30 days were not intended to give breaching parties an extended time period to commit new breaches. See 2 Farnsworth on Contracts §8.18, p. 525 (3d ed. 2004) (“Fairness ordinarily dictates that the party in breach be allowed a period of time — even if only a short one — to cure the breach if it can.”). Therefore, analyzing the facts in this case under FFT’s proposed cure definition, the undisputed evidence shows that FFT did not substantially perform the agreement once notified of its breaches. Accordingly, the district court was proper in determining, as a matter of law, that FFT failed to cure the breaches under paragraph 12.2.
Issue 2: Improper jury instruction about profits
FFT claims that the jury’s award of profits was misguided for three reasons. First, there was insufficient evidence to find that FFT’s trademark infringement was willful. Second, if the jury determined FFT’s infringement was willful, the court erroneously instructed die jury that it must award Coleman all of FFT’s profits. Third, FFT asserts that the district court should have limited Coleman’s receipt of FFT’s profits to those profits attributable to the unlawful use of Coleman’s trademarks and not all of FFT’s profits. We analyze each point.
Two jury instructions that were given without objection must be considered here. Instruction No. 11 (profits award):
“If you find that [FFT]’s infringement of Coleman’s trademark was willful (as defined in the following instructions) Coleman is entitled to any profits earned by [FFT] that are attributable to the infringement.
“Profit consists of all the gross revenue you believe that Coleman has proved that [FFT] received less all the expenses, including operating costs, overhead, and production costs, you believe [FFT] has proved that [FFT] incurred in selling those products.”
Instruction No. 12 (definition of “willful”):
“You shall determine whether [FFT]’s use of Coleman’s trademarks after May 12, 2003 was willful or bad faith. Willful or bad faith trademark infringement involves an intent to infringe or deliberate disregard of a trademark holder’s rights.
“Trademark infringement is considered ‘willful’ where a party uses the trademark knowing it is not authorized to do so and knowing its use of the trademark is an infringement of the trademark holder’s rights. ‘Bad faith’ is die continuing use of a mark knowing that it is wrongful.”
Since FFT did not object to either instruction at trial, when reviewing this matter on appeal, we apply a clearly erroneous standard. See Secretary of Kansas Dept. of Transportation v. Underwood Equipment, Inc., 273 Kan. 453, 455-56, 44 P.3d 439 (2002).
“An instruction is clearly erroneous if the reviewing court reaches a firm conviction that if the error had not occurred, there was a real possibility that the jury would have returned a different verdict. [Citation omitted.] If the instructions as a whole are substantially correct and the jury could not have been misled by them, the instructions will be approved on appeal. [Citation omitted.]” Stover v. Superior Industries Int’l, Inc., 29 Kan. App. 2d 235, 242, 29 P.3d 967, rev. denied 270 Kan. 903 (2000).
For the definition of “wilfulness,” both parties cite Western Diversified Services v. Hyundai Motor America, 427 F.3d 1269 (10th Cir. 2005), a decision issued after this jury trial was conducted. In Western, the Tenth Circuit Court of Appeals held that “in the absence of actual damages, a plaintiff must ordinarily show that the defendant intended to benefit from the goodwill or reputation of the trademark holder” in order to establish willfulness to obtain an award of profits. (Emphasis added.) 427 F.3d at 1273-74. The court noted that its standard was stricter than other circuits because the award of profits under the Lanham Act is an extraordinary remedy. The court also noted that “intent” required “something more than ‘indifference’ or a mere ‘connection.’ It is a conscious desire. [Citation omitted.]” 427 F.3d at 1274.
Prior to that decision, other courts have defined “willfulness” in this context as “ ‘conduct showing a “deliberate and intentional design to cause confusion and mistake to deceive purchasers.” ’ [Citations omitted.] ‘It involves an intent to infringe or a deliberate disregard of a mark holder’s rights.’ [Citation omitted.] Bad faith is the continuing use of a mark knowing that it is wrongful. [Citation omitted.]” First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp. 2d 1078, 1088 (D. Kan. 2000).
Instruction No. 12 repeats the same language found in First Savings Bank, only without the “deliberate and intentional design to cause confusion” clause. Therefore, because FFT did not deny that this law was accurate at the time the instruction was given, FFT’s arguments will be analyzed under the “willfulness” definition used in First Savings Bank, F.S.B. We decline to follow Western.
It appears that FFT is alleging that the district court’s omission of the “deliberate intent to cause confusion” language was erroneous and argues that had the district court provided that language to the jury, the evidence would have been insufficient to support such a finding by the jury.
To the contrary, the evidence supports a finding that FFT’s conduct showed deliberate and intentional design to cause confusion in order to deceive FFT’s dealers that were the purchasers of its trailers. First, although the July 11, 2003, order clearly stated that FFT was not entitled to continue to use Coleman’s trademarks following Coleman’s termination of the agreement, on July 17, 2003, FFT advised its dealers that the district court had not made any rulings about FFT’s rights to Coleman’s trademarks. Second, although FFT’s reply letter stated that it was prepared to produce its travel trailers under FFT’s brand, Marsh testified that FFT printed materials about the Caravan Microlite for the July and August 2003 dealer meetings that referred to the Microlite series as a Coleman product. Marsh admitted that FFT knew it did not have the right to put the Coleman brand on those trailers until it re ceived Coleman’s permission and that FFT had never received such approval.
Therefore, even if the district court had inserted the “deliberate intent to cause confusion” language into Instruction No. 12, the evidence supported the jury’s finding that FFT’s infringement of Coleman’s trademarks was willful.
FFT argues, as a matter of law, that the district court erred in instructing the jury that an award of profits automatically followed from a finding of willful trademark infringement, again citing Western Diversified Services, Inc., which was not the law at the time of the trial. The Tenth Circuit noted that “[a]n award of profits in the absence of actual damages is usually predicated on one of two theories: (1) unjust enrichment; or (2) deterrence. [Citation omitted.]” 427 F.3d at 1272. Accordingly, the court stated that a finding of willfulness is necessary to support such an award. However, even with a finding of willfulness, a court may still exercise its discretion to reduce or even ehminate a profit award in the name of fashioning an equitable remedy to meet the needs of each case. Therefore, “an award of profits involves a two-step process: (1) a finding of willfulness or bad faith; and (2) a weighing of the equities.” 427 F.3d at 1273.
FFT attempts to persuade us that the district court failed to provide that discretion to the jury in Instruction No. 1.1. But FFT fails to acknowledge the case law it cites. According to Western Diversified Services, Inc., the “ ‘weighing [of] the equities’ ” is granted to the court, not the jury, to exercise its discretion to grant equitable relief. 427 F.3d at 1273. Furthermore, FFT cites Estate of Bishop v. Equinox International Corp., 256 F.3d 1050, 1054-55 (10th Cir. 2001), cert. denied 534 U.S. 1130 (2002), which clearly states that such discretion to craft a remedy Mes with the court:
“[W]e have never stated that a plaintiff must necessarily be so compensated whenever a defendant wrongfully appropriates the plaintiffs trademarked property to make a profit. [Citation omitted.] To the contrary, we have emphasized: ‘An accounting of profits is not automatically granted upon a showing of infringement. Rather, the propriety of such relief is determined by equitable considerations. Consequently, the district court has wide discretion to fashion an appropriate remedy.’ [Citations omitted.]” (Emphasis added.)
Therefore, FFT fails to prove that the district court’s Instruction No. 11, which omitted any discretionary consideration, was in error. Besides, FFT received equitable relief as contemplated by Estate of Bishop when the court declined to impose any additional punitive damages against FFT.
Going further, we point out that Instruction No. 11 states that “[p]rofit consists of all the gross revenue you believe that Coleman has proved that Fleetwood received less all the expenses” incurred by Fleetwood in selling the products. From that instruction, FFT argues that the district court erred in failing to limit the profit award to the portion that directly resulted from its use of Coleman’s trademarks. Nevertheless, since FFT informed the district court that the instruction was accurate, it is important to note that “[a] party may not invite error and then complain of that error on appeal. [Citation omitted.]” Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003).
In this case, the facts show that FFT pointed out this information to the jury. At trial, FFT’s expert testified that FFT had an 11.8% margin loss due to the Coleman name, and thus, FFT’s expert opined that the amount of FFT’s profits attributable to Coleman’s trademarks during the time period of infringement came to $118,570. Furthermore, during closing argument, FFT singled out Instruction No. 11 to the juiy, reminding the jury that only approximately $118,000 of profit could be directly related to FFT’s use of Coleman’s trademarks.
General principles of law come into play here. “The courts find the accounting of profits remedy attractive and will accept its rough justice in competitive relationships because as between the victim and the wrongdoer, the burden is placed on the wrongdoer to prove, if it can, that some sales were not caused by the infringement.” 5 McCarthy on Trademarks and Unfair Competition § 30:59, p. 30-136 (4th ed. 2007). Furthermore, “[u]nder the federal Lanham Act, as well as the common law, it is the infringer’s burden to prove any proportion of his total profits, which may not have been due to use of the infringing mark.” 5 McCarthy on Trademarks and Unfair Competition § 30:65, p. 30-157 (4th ed. 2007). Therefore, even though FFT, the trademark infringer here, attempted to prove its proportion of total profits, it failed to meet its burden.
Since FFT has failed to show any error in the instructions or that there was a real possibility that the jury would have returned a different verdict, neither instruction was clearly erroneous.
Issue 3: Erroneous exclusion of evidence about covenant not to compete
FFT argues that the district court erred in excluding evidence about the “Negative Covenant,” claiming, “if the jury had understood that Coleman could not have used the trademark in the RV industry without FFT, and so the infringement actually caused a benefit to Coleman, that could have affected its dehberations.” FFT alleges that by not understanding this critical fact, the jury awarded Coleman a windfall.
The parties are referring to a covenant not to compete in the original 1989 Stock Purchase Agreement between Fleetwood Enterprises, Inc. (FEI) and Coleman. In July 1989, Coleman created Coleman Recreational Vehicles, Inc., a Delaware corporation (hereafter referred to as CRVI). CRVI received all assets and liabilities of Coleman’s recreational vehicle division. Then, Coleman transferred its capital stock in CRVI to Coleman Holdings, Inc. Thus, Coleman Holdings owned all of the outstanding stock of CRVI. Coleman Holdings then sold all of its capital stock in CRVI to FEI, a Delaware corporation, in December 1989. On December 7, 1989, the parties signed a contract they referred to as the 1989 Stock Purchase Agreement. After the sale, CRVI changed its name to FFT.
“[T]he admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence is abuse of discretion. [Citation omitted.] An abuse of discretion must be shown by the party attacking the evidentiary ruling, and ‘exists only when no reasonable person would take the view adopted by the district court.’ [Citation omitted.]” Garrett v. Read, 278 Kan. 662, 667, 102 P.3d 436 (2004).
After the district court severed FEI’s and FFT’s claims against Coleman, it granted Coleman’s motion in limine to exclude references to paragraph 6.12 (Negative Covenant) of the 1989 Stock Purchase Agreement (1) because the Negative Covenant was irrelevant to its lawsuit with FFT and (2) because FFT had no right to enforce the Negative Covenant since it was not a party to the 1989 Stock Purchase Agreement. The district court held that it was not going to preclude reference to the Negative Covenant prior to trial. But during the trial, the district court denied FFT’s request to refer to the Negative Covenant in its opening statement. That does not mean FFT did not present evidence on this point.
In its cross-examination of Coleman’s expert, FFT was allowed to mention the Negative Covenant’s effect on the reasonable royalty rate that Coleman’s expert proposed. In this testimony, FFT debated with the expert whether the $125 royalty rate from the Coleman/Coachmen RV contract established a fair market value since the Negative Covenant precluded a market place from existing:
“Q. [Counsel for FFT:] Mr. Wagner, you assumed that Coleman or found that Coleman could negotiate with another party for [$125] a trailer, correct?
“A. [Michael Wagner:] Correct.
“Q. And because they could do that you said that is a reasonable royalty, right?
“A. That’s what I ended up concluding. Yes.
“Q. Okay. If you — for whatever reason Coleman doesn’t have the right to go out into the market and to negotiate with someone else and they can only negotiate with [FFT] — just assume that for a moment. Okay. That’s going to change the price structure of what a reasonable royalty is under that set of circumstances, is it not?
“A. It does. Yes. I agree with that.
“Q. Mr. Wagner, don’t you know Coleman has no right to go out and license anyone else other than [FFT]? Do you know that?
“A. I do know that.
“Q. Okay. I’m asking you, if you know, that they [Coleman] are not entitled to do that. Do you know that?
“A. I understand that based on the ruling of this court that’s true.
“Q. All right. So, the premise or basis upon which that [$125] number was developed is no longer true today, is it, sir?
“A. I don’t agree with that.
“Q. They can’t go license to that person, can they?
“A. Currently they cannot. No.
“Q. And so they wouldn’t be able to go enter into some negotiation with that person today to come to some licensing agreement?
“A. I think as of today they cannot do that. Yes.” (Emphasis added.)
Christopher Pflaum, FFT’s expert, also testified that Coleman was unable to license its trademarks to any company other than FFT, by stating, “I said that [$125] is an invalid point because it doesn’t even meet the definition of market price because, in fact, the only person with whom Coleman can negotiate to put their name on recreational vehicles and receive a royalty is [FFT].”
Even though FFT was unable to present everything it wanted about the Negative Covenant to the jury in its opening statement, it is apparent that FFT was able to present information through Coleman’s expert who confirmed that Coleman could not license its trademarks to any other company besides FFT. Accordingly, under these circumstances, the district court did not abuse its discretion in denying FFT’s request to present the Negative Covenant in its opening statement.
Moreover, other than its opening statement, FFT did not further request permission from the district court to direct the jury’s attention to the existence of the Negative Covenant. With that in mind, “[a] party may not invite error and then complain of that error on appeal. [Citation omitted.]” Butler County R.W.D. No. 8, 275 Kan. at 296. Therefore, FFT’s argument on this point is unpersuasive.
Issue 4: Lanham Act misinterpretation
FFT argues that its conduct did not constitute counterfeiting under the Lanham Act. It alleges that the district court erred in its interpretation of 15 U.S.C. § 1117(b) (2000), and, therefore, the court should not have tripled Coleman’s award of damages and award Coleman attorney fees and costs.
The question of whether FFT’s posttermination use of Coleman’s trademarks constituted counterfeiting under the Lanham Act presents an issue of first impression in Kansas. The interpretation of the Lanham Act is a question of law over which appellate review is unlimited. Scholfield Auto Plaza, L.L.C. v. Carganza, Inc., 26 Kan. App. 2d 104, 105, 979 P.2d 144 (1989). Under the Lanham Act, an owner of a trademark that is registered in the Patent and Trademark Office may recover monetary remedies from any person who has violated its trademark. 15 U.S.C. § 1117 (2000). Violation of a trademark occurs when
“(1) Any person who shall, without the consent of the registrant —
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(l)(a) (2000).
When that use is a counterfeit of a mark, the Lanham Act further requires the court to treble profits or damages, whichever is greater, and award reasonable attorney fees.
“In assessing damages under subsection (a) of this section, [§ 1117,] the court shall, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together ivith a reasonable attorney’s fees, in the case of any violation of section 1114(l)(a) of this tide or section 220506 of Title 36 that consists of intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark, in connection with the sale, offering for sale, or distribution of goods or services.” (Emphasis added.) 15 U.S.C. § 1117(b). (Section 220506 of Title 36 concerns trademarks related to the Olympics.)
The Lanham Act defines a counterfeit mark to mean either
“(i) a counterfeit of a mark that is registered on the principal register in the United States Patent and Trademark Office for such goods or services sold, offered for sale, or distributed and that is in use, whether or not the person against whom relief is sought knew such mark was so registered; or
“(ii) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of this chapter are made available by reason of section 220506 of Title 36.” 15 U.S.C. § 1116(d)(1)(B) (2000).
But, the definition of a counterfeit of a mark excludes
“any mark or designation used on or in connection with goods and services of which the manufacture or producer was, at the time of the manufacture or production in question authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation.” (Emphasis added.) 15 U.S.C. § 1116(d)(1)(B).
A review of the facts is helpful here. It is undisputed that Coleman’s trademark was registered with the United States Patent and Trademark Office. Moreover, the district court determined that FFT’s continued use of Coleman’s trademark “in connection with its manufacture, distribution, and sale of recreational vehicle products after its authorization to do so ended” fell within the Lanham Act’s definition of use of a counterfeit mark. The jury unanimously determined that FFT’s posttermination use of Coleman’s registered trademark was willful. As a result the district court held that FFT’s trademark counterfeiting was intentional. FFT failed to prove that any extenuating circumstances existed. The district court then awarded Coleman three times the jury’s profit determination, together with reasonable attorney fees and litigation expenses.
We first examine the language of the statute and provide our interpretation of its meaning. Next, we consider FFT’s “dual branding” contention along with its claim of being a holdover manufacturer. Then we see if there are any extenuating circumstances that would excuse FFT’s conduct.
Our rules concerning statutory interpretation are straightforward:
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. 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. Stated another way, when 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.” (Emphasis added.) State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, Syl. ¶ 1, 76 P.3d 1000 (2003).
See also Gragg v. Rhoney, 20 Kan. App. 2d 123, 129-30, 884 P.2d 443 (1994), rev. denied 256 Kan. 994 (1995) (interpreting the Kansas statutes concerning service marks).
The language of 15 U.S.C. § 1117(b) is plain and unambiguous. The law clearly requires the district court to treble the profits award and award attorney fees if (1) the violator’s conduct meets the definition of a counterfeit mark, (2) the violator intentionally used the mark knowing it was counterfeit, and (3) the court fails to find extenuating circumstances that would justify the violator s use of that counterfeit mark.
Again, 15 U.S.C. § 1116(d)(1) describes a counterfeit of a mark as the use of a registered trademark in connection with goods sold, offered for sale, or distributed. Furthermore, to qualify as a counterfeit mark, the mark is not required to be identical as long as it is substantially indistinguishable from the genuine registered trademark. See Olson, An Analysis of the Trademark Counterfeiting Act of1984, Practising Law Institute, Patents, Copyrights, Trademarks, & Literary Property Course Handbook, 198 PLI/Pat 9, 20 (1985) (“A mark need not be absolutely identical to a registered trademark in order to qualify as ‘counterfeit,’ since such an exacting standard would malee it too easy to escape liability by introducing trivial variations.” See Joint Explanatory Statement, [by Senate and House sponsors of final draft of bill,] Cong. Rec. H12078 [October 10, 1984].”). But a counterfeit mark does not exist in situations where the goods that contain the mark were manufactured or produced at a time when the user was authorized to use the mark. 15 U.S.C. § 1116(d)(1).
Here, FFT argues that its use of Coleman’s trademark did not meet the counterfeit definition under 15 U.S.C. § 1116(d)(1)(B), claiming that its inclusion of “by Fleetwood” made its use of the Coleman’s registered mark distinguishable. By combining its own name with Coleman’s registered trademark, FFT alleges that its mark was not counterfeit within the meaning of the Lanham Act.
In response, Coleman contends that FFT failed to raise this dual branding argument to the district court. Generally, issues not raised before the district court may not be raised on appeal. Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). There are, however, several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal, despite its reliance on the wrong ground for its decision. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005).
FFT asserts that every FFT trailer included “by Fleetwood” as part of its mark. But, FFT cites only schedule A of the agreement for factual support. The record is not so clear on the point. For example, FFT provides the 2003 V% brochure of the Coleman Caravan folding trailers. In the brochure, the recreational vehicle on the front cover does not have the “by Fleetwood” addition to Coleman’s registered trademark. Furthermore, although one of the recreational vehicles within the brochure has the schedule A combined trademark, the other recreational vehicle has only “Coleman Caravan.” Also, the brochure itself uses the Coleman registered trademark without the “by Fleetwood” addition.
At trial, Marsh testified that FFT placed the Coleman parallelogram with the folding trailer logo on trailers produced after the agreement was terminated. But, Marsh was not questioned whether “by Fleetwood” was included in tire use of Coleman’s registered trademark. Therefore, without more evidence to support FFT’s argument, we cannot ascertain whether FFT’s representation is valid. Accordingly, FFT has failed to prove that its use of Coleman’s trademarks was distinguishable from Coleman’s registered mark.
FFT next alleges that its advertising materials and trailers were developed during the time it was authorized to use Coleman’s registered trademarks and therefore could never be considered as a counterfeit mark. This view is erroneous.
After Coleman terminated the agreement, Marsh testified that FFT continued to create advertising materials with Coleman’s trademarks on them. FFT had developed the Highlander trailer, which was described as a product that blurred the distinction of folding trailers and travel trailers. This type of trailer was never submitted for Coleman’s approval. Despite this, after the agreement was terminated, FFT continued to develop the Highlander product and produced 70 for sale with the Coleman brand. In the brochure FFT produced for the Highlander trailers, it advertised them as Coleman folding trailers. Furthermore, Kevin Ziance, FFT division controller, testified that (1) FFT produced approximately 3,000 folding trailers as FFT’s 2004 models after May 12, 2003, and (2) in almost all of those trailers, Coleman’s trademark would have been placed after May 12, 2003.
It is clear that the evidence demonstrates that FFT used Coleman’s registered trademarks in connection with its recreational vehicles and that this use occurred after the agreement was terminated. Therefore, FFT’s use meets the definition of a counterfeit mark under § 1116(d)(1)(B) of the Lanham Act.
FFT argues that it did not intentionally or knowingly violate Coleman’s rights to its trademarks. It contends that it believed, in good faith, it had a lawful right to continue to use the marks. But the jury unanimously found that FFT’s posttermination use of Coleman’s registered trademarks was willful or in bad faith and that FFT did not prove that it reasonably relied upon competent legal advice when deciding to engage in trademark infringement. FFT did not challenge this aspect of the jury’s verdict. We rely upon the juiy’s findings and hold that FFT intentionally used Coleman’s registered trademarks knowing that its use was counterfeit.
Although the Lanham Act does not define “extenuating circumstances,” the exception is extremely narrow. Levi Strauss & Co. v. Shilon, 121 F.3d 1309, 1314 (9th Cir. 1997); Louis Vuitton S.A. v. Lee, 875 F.2d 584, 588 (7th Cir. 1989).
“What constitutes an extenuating circumstance is determined on a case by case basis. Where the defendant is an ‘unsophisticated individual, operating on a small scale, for whom the imposition of treble damages would mean that he or she would be unable to support his or her family treble damages may be inappropriate. Joint Explanatory Statement, 130 Cong. Rec. H. 12,076 at 12,083 (Oct. 10, 1984). However, Congress has indicated that ‘it will be a rare case in which a defendant who has trafficked in goods or services using a mark that he or she knows to be counterfeit that he or she should not be assessed treble damages.’ [Citation omitted.]” Microsoft Corp. v. CMOS Technologies, Inc., 872 F. Supp. 1329, 1339 (D. N.J. 1994.)
As an extenuating circumstance, FFT alleges that its status as a “holdover licensee” means that it was not a counterfeiter. FFT relies upon U.S. Structures, Inc., v. J.P. Structures, Inc., 130 F.3d 1185, 1192 (6th Cir. 1997), and Motor City Bagels, L.L.C. v. American Bagel Co., 50 F. Supp. 2d 460, 489 (D. Md. 1999), for support.
In U. S. Structures, the franchisor signed a franchise agreement with a franchisee. For 6 years, there wrere no problems until the franchisee failed to make payments of its sales royalties. Because of that breach, the franchisor notified franchisee that it would terminate the agreement unless the franchisee made the payments within 20 days, which did not occur. The franchisor then terminated the agreement.
After the agreement was terminated, the franchisee continued to use the franchisor s trademark while the parties attempted to settle their dispute. Additionally, the franchisee did not terminate its participation in an advertising program which used the franchisor’s trademark that it had entered before the agreement was canceled. As a result, the franchisor sued franchisee for violating the Lanham Act.
The court granted summaiy judgment to the franchisor, holding that the franchisor was entitled to relief as a matter of law for trademark infringement in violation of 15 U.S.C. § 1114. Accordingly, the district court awarded damages to the franchisor, which included franchisee’s profits that were trebled, and franchisor’s attorney fees because franchisee’s infringement was “willful, deliberate, and intentional.” See 130 F.3d at 1188. Franchisee appealed.
The Sixth Circuit Court of Appeals evaluated the trebling of damages and attorney fees award separately. First, the court noted that the district court made its ruling for tripling the damage amount under both 15 U.S.C. § 1117(a) and (b). Therefore, since § 1117(a) vested the district court with discretion to increase the damages award, the Sixth Circuit held that the district court’s finding was not in error. It was, in its view, a valid exercise of discretion. 130 F.3d at 1191-92.
The court then examined the district court’s award of attorney fees under § 1117(b), the section operable here. The court cited the statutory provisions of the Lanham Act that involved the use of a counterfeit mark and, without further analysis, held the following:
“We agree with defendants that § 1117(b) does not apply where, as in this case, a holdover franchisee continues to use the franchisor’s original trademark after the franchise has been terminated. Although the use of an original trademark is without authorization, it is not the use of a counterfeit mark. Thus, the district court erred in awarding attorneys’ fees pursuant to § 1117(b).” 130 F.3d at 1192.
The court remanded the attorney fees issue to the district court to determine whether § 1117(a) warranted these fees to be awarded to the prevailing party. The court stated: “Unlike § 1117(b), which mandates an award of attorneys’ fees unless the court finds extenuating circumstances, § 1117(a) makes attorneys’ fees available only in exceptional cases and rests the decision to award them in the discretion of the district court. [Citation omitted.]” 130 F.3d at 1192.
In Motor City Bagels, terminated fast food restaurant franchisees sued the franchisor for a breach of contract claim. In response, the franchisor counterclaimed, alleging that the franchisees’ continued use of its service marks after termination of the franchise agreements constituted service mark infringement and unfair competition. The franchisees used the franchisor’s marks on their outside restaurant signs and in their register receipts.
The district court relied upon U. S. Structures for its finding and denied the franchisor’s motion for damages and attorney fees under 15 U.S.C. § 1117(b). Motor City Bagels, 50 F. Supp. 2d at 489. The court found that the franchisor presented significant evidence to sustain its trademark infringement claim. But the court was persuaded by the fact that the franchisees undertook significant measures to change the identity of their restaurants after the agreement was terminated. Furthermore, the district court pointed out that the local zoning regulations precluded the franchisees from removing their exterior signs unless they were immediately replaced with other city-approved signs and that the replacement of the cash register receipts proved to be a technological challenge which took time to reconcile. 50 F. Supp. 2d at 487.
Although the U.S. Structures court held that a holdover franchisee was not a counterfeiter under § 1117 (b), in actuality that court determined that the district court’s award for such trademark infringement was more appropriate under § 1117 (a). Therefore, even though this case’s facts are similar to U. S. Structures, we rely on the Motor City Bagels analysis that follows the U. S. Structures analysis but also pointed out that the franchisees’ conduct in changing identification with the franchisor must be taken into consideration.
In this case, FFT alleges that it made significant efforts to change its identification with Coleman. The facts, however, show that these measures occurred too late. First, FFT notified the dealers of the pending litigation over the license on July 17, 2003, but asserted that it would continue “business as usual” until the matter was resolved. FFT finally notified the dealers that it could not use Coleman’s trademarks after the district court issued the temporary injunction in August 2003. Second, although FFT requested on August 7, 2003, that the Coleman logo be removed from the Highlander trailers, up until then, FFT sold approximately 3,000 recreational vehicles branded with the Coleman name that were produced after May 12, 2003.
Therefore, unlike the situation in Motor City Bagels, FFT had the opportunity to split from Coleman but chose to take such measures in an untimely manner. Furthermore, FFT’s mere status as a holdover licensee is not an extenuating circumstance sufficient to avoid a finding of counterfeiting. We agree with the district court that there were no extenuating circumstances here that would preclude the application of 15 U.S.C. § 1117(b).
Because all the elements under § 1117(b) were met, the district court did not err in trebling the profits award, instead of awarding royalties, and did not err in awarding attorney fees to Coleman.
Issue 5: No need for punitive damage instruction
Our court has previously determined the fourfold purpose of the Lanham Act is (1) to secure to the owner of the mark the goodwill of a business use, (2) to protect the ability of consumers to distinguish among competing producers, (3) to make actionable the deceptive and misleading use of marks, and (4) to protect persons engaged in commerce against unfair competition. Scholfield Auto Plaza, L.L.C. v. Carganza, Inc., 26 Kan. App. 2d 104, Syl. ¶ 4, 979 P.2d 144 (1989).
Similarly, Kansas courts have also determined that punitive damages serve two public purposes — punishment and deterrence. Hartford Accident & Indem. Co. v. American Red Ball Transit Co., 262 Kan. 570, 574-75, 938 P.2d 1281, cert. denied 522 U.S. 951 (1997); Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1007, 894 P.2d 260 (1995) (“ ‘In Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs.’ ”).
The purposes behind the Lanham Act are similar to the purposes for punitive damages. Since the enhanced award under the Lanham Act was granted and is upheld in this appeal, it is not necessary to further punish FFT with punitive damages. Therefore, the district court was correct in declining to enter the jury’s award for punitive damages in addition to the award ordered under the Lanham Act.
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The opinion of the court was delivered by
Fatzer, J.:
This is an original proceeding in habeas corpus. Petitioner is confined in the Kansas State Penitentiary pursuant to sentences imposed by the district court of Linn County on April 13, 1961, in cases Nos. 11,723, 11,726 and 11,729, upon his plea of guilty to each of the offenses. Cases 11,723 and 11,729 charged the petitioner with the burglary of separate dwelling houses in the daytime and of grand larceny committed in connection with the burglaries. The informations did not allege the presence of a human being in either house, nor the statute under which the burglaries were charged. Case No. 11,726 charged the petitioner with grand larceny of personal property of another of the value in excess of $50.
The three cases were disposed of together. On April 3, 1961, the petitioner was present in court for arraignment, and the court, being informed by petitioner that he was not represented by counsel and had no means of employing counsel and desired that the court appoint counsel to represent him, appointed Mr. Harry C. Rlaker, a qualified, experienced, and practicing member of the Ear of Linn County to appear for and represent him. The cases were continued until April 13, 1961, to give counsel adequate time to confer with petitioner.
On April 13, 1961, petitioner appeared in court in person and with his attorney. In reply to the court’s inquiry whether he had opportunity to confer with counsel, petitioner replied in the affirmative. Thereafter petitioner was arraigned upon the charges contained in the informations and entered his plea of guilty to each offense alleged therein. The court accepted the pleas of guilty, and in cases 11,723 and 11,729 found the petitioner guilty of the crime of burglary in the second degree as defined in G. S. 1949, 21-516, and sentenced him on each of those offenses to a term of five to ten years. For conviction of each grand larceny committed in connection with the burglaries, petitioner was sentenced to a term not to exceed five years as provided by G. S. 1949, 21-524. In the grand larceny case (11,729), the petitioner was sentenced to a term of one to five years under G. S. 1959 Supp., 21-533, and G. S. 1949, 21-534. All of the sentences were ordered to run concurrently.
The petitioner contends that both sentences imposed for burglary in the second degree were excessive and void. He argues that since the informations in cases 11,723 and 11,729 alleged that the burglaries were committed in the daytime, the district court was only authorized to find him guilty of burglary in the third degree in violation of G. S. 1949, 21-521, and to sentence him to a term of not more than five years for each offense. We are not persuaded the contention is meritorious. The record discloses that three separate informations were filed in the district court alleging five separate felonies to which the petitioner, with the advice of counsel, entered pleas of guilty. The district court, having jurisdiction of the subject matter and of the petitioner, imposed five separate sentences all to be served concurrently commencing no earlier than April 13, 1961. Three of the sentences were for terms of one to five years — two for conviction of grand larceny committed in connection with the burglaries and one for conviction of grand larceny in case No. 11,726. The other two sentences were for terms of five to ten years for conviction of burglary in the second degree, and are the sentences the petitioner contends are void.
Assuming, arguendo, that we looked into the petitioner’s claim ' of illegality concerning the sentences imposed for convictions of burglary in the second degree and found them to be excessive and therefore erroneous, he would not be entitled to his release from custody because it is apparent from the face of the record that he has not served either the minimum or maximum of the three concurrent sentences for not exceeding five years, which he conceded to be regular and lawful. It has been held that where a petitioner is serving concurrent sentences, one of which is valid and unexpired at the time the petitioner seeks a writ of habeas corpus for his release from the custody, he is not entitled to discharge until the valid sentence has been served, or until he is otherwise discharged according to law. (Roberson v. Hand, 186 Kan. 781, 352 P. 2d 956.) See, also, True v. Edmondson, 179 Kan. 22, 23, 293 P. 2d 264; May v. Hoffman, 179 Kan. 149, 153, 293 P. 2d 265, and Ramsey v. Hand, 183 Kan. 307, 310, 327 P. 2d 1080.
In not deciding the petitioner’s claim that the sentences imposed for burglaries in the second degree were excessive and erroneous, we do not mean to infer that there is merit in the contention. Anything the court might say on the subject at this time would be extrajudicial. However, as tending to bear upon the point see G. S, 1949, 21-516; State v. Behee, 17 Kan. 402, 406; In re Paschal, Petitioner, 56 Kan. 123, 124, 125, 42 Pac. 373, and Loftis v. Amrine, 152 Kan. 464, 466, 105 P. 2d 890.
The petitioner next contends he was denied the effective assistance of counsel. The record refutes the contention. Following the appointment of Mr. Blaker as petitioner’s counsel, the district court postponed his arraignment for ten days to enable counsel and the petitioner to confer concerning the charges alleged against him. On April 13, 1961, the petitioner appeared in court with Mr. Blaker and in reply to the district court’s inquiry whether he had adequate opportunity to confer with counsel, he answered in the affirmative, and voluntarily entered his plea of guilty to each offense as alleged in each information. It is obvious that no substantial rights of the petitioner were violated.
We have considered all of the arguments and the authorities cited by the petitioner and find nothing that would authorize or justify the issuance of the writ prayed for. It is therefore denied. | [
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The opinion of the court was delivered by
Jackson, J.:
In this habeas corpus proceeding begun in the district court by the above inmate of the state penitentiary, the sole contention is that the appellant was denied due process of law because he was not adequately assisted by counsel appointed by the district court of Sheridan county to represent him in a prosecution for burglary in the second degree and upon a second count of grand larceny. The appellant is now serving a sentence assessed upon a plea of guilty to those crimes by the district court of Sheridan county.
Appellant’s contention seems to be based upon a supposition that the record of his conviction shows this contention to be true. In fact, the record would indicate appellant was well represented. The district court conducted a formal arraignment of the appellant; then inquired whether he had or could provide counsel for himself and appellant asked that counsel be appointed in his behalf. The court then appointed Mr. John R. Eland, a member of the bar, to represent him.
The chief complaint of appellant comes from the record where it is shown that after the appointment, the judge inquired whether Mr. Eland wished to consult with his client, the appellant,- and Mr. Eland replied that he had already consulted with him and that appellant was ready to enter a plea of guilty.
Appellant makes the rather academic observation that counsel had just been appointed and therefore could not have consulted with his client. Of course, in a small bar such as in Sheridan county there was nothing to prevent counsel from knowing that he would be appointed to represent appellant, if he had not already been advised of that fact by the court. The record would indicate that it was no surprise to appellant when the appointment was made. Furthermore, the record shows that defendant had previously confessed to the crimes charged against him and that he knowingly entered his plea of guilty thereto.
Appellant alleges that he did not know that Mr. Eland was incompetent but that the district court did have that knowledge. We would rather think that the district court was fully aware that Mr. Eland was a competent young member of the bar. Even this court is aware of that, and is also aware that Mr. Eland is now county attorney of Sheridan county, which fact may not have come to the attention of the appellant.
The record goes on to show that the appointed counsel for appellant had undoubtedly made an agreement with the county attorney to the effect that if appellant pleaded guilty to the crimes to which he had already confessed, he would not be sentenced as an habitual criminal under the provisions of G. S. 1949, 21-107a. This agreement was carried out apparently with the full knowledge of everyone including the defendant. While former convictions were not shown because of the agreement (see State v. Tague, 188 Kan. 462, syl. ¶ 2, 363 P. 2d 454), it appears that the county attorney was aware of the fact that appellant had former convictions of felonies. In fact, the transcript shows that appellant admitted “about four years” prior service as an inmate of the Lansing penitentiary when questioned by the court.
The appellant was sentenced to a maximum of ten years for burglary in the second degree (G. S. 1949, 21-523). On the second count of grand larceny, see G. S. 1959 Supp. 21-533 and G. S. 1949, 21-534, appellant was given a sentence not to exceed five years. However, in view of the fact that appellant had had prior experience, as indicated above, the county attorney recommended and the court provide that the two sentences should be served consecutively.
If appellant had been convicted of as many as two felonies previous to his sentence in Sheridan county and they had been shown to the court under the provisions of G. S. 1949, 21-107a, appellant might have received a life sentence. If only one prior conviction existed, appellant could have been given a sentence for a maximum of thirty years. Appellant should feel indebted to his counsel rather than trying to claim that he was unqualified.
Despite the fact that there would appear to be no showing of inadequacy of counsel in this case, we might observe that appellant could not really complain if he had not been given for his counsel the most brilliant lawyer in the state (Szopenske v. Hand, 188 Kan. 590, 363 P. 2d 410; Miller v. Hudspeth, 164 Kan. 688, p. 707, 192 P. 2d 147; Gibbons v. Hudspeth, 166 Kan. 2, p. 4, 199 P. 2d 173).
There is no merit in the instant appeal and the decision of the district court is affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Montgomery County, Kansas, overruling a demurrer to an amended petition.
This action was commenced by the appellee (hereafter referred to as plaintiff) in his own name on July 11, I960, by filing his petition in the district court. This was more than one year after plaintiff’s injury but within two years. Thereafter an amended petition was filed pursuant to an order of the trial court on motions leveled at the petition. It alleged that on the 7th day of August, 1958, the plaintiff was injured as a proximate result of the alleged negligence of the appellant (defendant). The amended petition recites that it was brought in the name of the plaintiff “for the benefit of Tabor Motor Company, Inc., the Universal Underwriters Insurance Company, and plaintiff, as their interests appear.” It specifically alleged:
“x.
“At the time of plaintiff’s injury as described in Paragraph V plaintiff was performing the duties of service manager and was acting in the course of his employment with the Tabor Motor Company of Chanute, Kansas. By reason of said company’s election to come within the Workmen’s Compensation Act of Kansas, and its purchase of workmen’s compensation insurance from the Universal Underwriters’ Insurance Company of Kansas City, Missouri, plaintiff was furnished medical treatment and hospitalization by plaintiff’s employer and the aforementioned insurance company in the amount of $2,320.95. Further, said insurance company has paid plaintiff weekly compensation based on temporary total disability and permanent partial disability in the total sum of $2,164.30. By reason of the payment of compensation and medical expenses, the plaintiff’s employer, Tabor Motor Company, Inc., and its insurance carrier, Universal Underwriters Insurance Company, have the right of subrogation and interest in this action in the total sum of $4,485.55. This action is brought in the name of Frank B. Jordan for the benefit of the Tabor Motor Company, Universal Underwriters Insurance Company, and Frank B. Jordan, plaintiff herein, as their interests appear under the statutory .assignment provisions of G. S. 1959 Supp., 44-504. By reason of the foregoing, plaintiff’s employer and insurance carrier have been damaged in the sum of $4,485.55.
“Wherefore, plaintiff, Tabor Motor Company, and the Universal Underwriters Insurance Company, pray for judgment against defendant in the sum of $79,485.55 and for the costs of this action.”
It is argued the amended petition discloses on its face the plaintiff has no legal capacity to sue and prosecute this action under the provisions of G. S. 1959 Supp., 44-504, and that the plaintiff is not the real party in interest.
The issue presented by this appeal has been squarely decided in Lady v. Ketchum, 186 Kan. 614, 352 P. 2d 21, and the appellant frankly concedes the burden is upon him to show why this case should not be followed. The arguments advanced have been carefully considered, but we find no reason to depart from file decision in Lady v. Ketchum, supra, for the reasons therein stated, and to which we adhere.
The judgment of the trial court is affirmed.
Price, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an award and judgment in favor of claimant in a workmen s compensation case wherein the district court, with one minor exception not here material, adopted as its own the findings and conclusions of the commissioner.
In the hearing before the commissioner it was stipulated that on March 5, 1959, claimant met with personal injury arising out of and in the course of his employment when a piece of steel became embedded in the cornea of his left eye. Written claim was served on September 8, 1960.
Phil W. Harding, safety director for claimant’s employer, testified that since claimant had no automobile he took claimant to the offices of Doctor Anderson and Doctor Rarber in Augusta immediately after the accident. Harding also testified the company did not stipulate to what particular doctor an injured employee should go and he later granted claimant permission to go to Doctor J. H. Johnson, an eye doctor in El Dorado. As safety director, Harding made out reports on all accidents and sent them into the Workmen’s Compensation Commissioner. When he took an injured workman to the doctor, the matter was then between the insurance company and the doctor. The employer assumed the insurance company would pay the doctor bills in this case as it had in all others. After Harding saw that an injured employee got to a doctor, and made out his report of the accident, his only other responsibility was to make sure the employee was released by the doctor before he came back to work. Harding then turned in his final report on the case. He had been safety director for this employer for five years.
The physician’s report of Doctor J. H. Johnson, who had been an eye, ear-, nose and throat specialist in El Dorado since 1928, was that he first treated claimant on March 6, 1959. He testified he had treated claimant again on March 7, 8, 9, 12, and 16 of that year and claimant’s visual acuity efficiency loss in his left eye was 37.625 with corrective lenses. The report did not indicate the loss without corrective lenses. The doctor’s description of the nature and extent of claimant’s injury as shown in his report was:
“A foreign body deeply buried in left cornea at 11 o’clock 1% mm from center of pupil. A lot of infection about it, only upper part of cornea from 11 to 2 is clear.” (Our emphasis.)
Doctor Johnson further testified that on March 28, 1959, claimant returned to him and complained of severe pain deep in his eye although there was no particular redness of the eye. That was the first hint Doctor Johnson had there might be any complications at all. He gave claimant phenobarbital to relieve the pain. On April 1,1959, claimant returned to him and was again given phenobarbital because he was very nervous. Doctor Johnson found no infection at that time. When claimant returned on April 24, 1959, the eyeball was jumping around and he was having trouble focusing the eye. On May 18, 1959, claimant had 20/40 vision in his injured eye but said he was working and was less nervous. Doctor Johnson again gave him phenobarbital. In June, 1959, Doctor Johnson saw claimant on the 22nd and his eyes were fairly comfortable and on July 27, 1959, he treated him for the last time. Claimant’s vision was getting worse all the time.
Doctor Johnson also testified that the infection and inflammation were not completely gone when he last saw claimant on July 27, 1959, because claimant was still told to come back, “but it was almost gone.” (Our emphasis.) During his testimony Doctor Johnson, in answer to questions concerning the exact cause of the degeneration of the macula in this claimant’s left eye made a very appropriate statement when he said, “I know what you attorneys feel, each of you would like to have me say exactly what causes this . . . exactly what causes it, and I am not smart enough to tell you.” (Our emphasis.) We should perhaps pause to note that the medical testimony in this case, as in many others, supports Doctor Johnson’s above statement because medical witnesses generally avoid statements as to exactly what has caused, or has not caused, a certain physical condition.
Over the period of time involved claimant had two “lead” men, Donald E. Huffman and Everett Bloom, who were his superiors. They both testified it was the duty of Mr. Harding, the safety director, to keep track of doctors and he had the authority to see that injured employees went to the doctor and that proper reports were made. They remembered claimant had asked them many times for permission to go to the doctor but they did not remember that the name of any particular doctor was mentioned in his requests.
Claimant testified that on August 18, 1959, Myron Hull, adjuster for his employer’s insurance carrier, in a conference in his employer’s office, asked him if he was supposed to go back to Doctor Johnson and he replied, ‘Tes.” Hull then said, “You hold off until we notify you.” Hull in his testimony admitted the conversation and the statement of claimant that claimant was supposed to return to Doctor Johnson the next Monday for what he supposed would be a final examination. Hull did not definitely remember that he told claimant to go back to Johnson because he was relying on some notes he had made of the conversation, but he had absolutely no recollection of making a statement that claimant should not go back to Doctor Johnson.
According to claimant’s own testimony, two or three weeks later he approached Huffman, seeking permission to go to the doctor and Huffman referred him to Bloom, who apparently was superior to Huffman. He was seeking permission from either Huffman or Bloom and the permission was not only to leave work, or go to the doctor after work, but he was also getting permission “for the insurance to pay the bill.” Bloom told him he could go to any doctor he wanted to and that the insurance company would take care of it.
Thereafter claimant went to Doctor Frank Cvetkovich of Augusta, who testified that toward the end of October, 1959, he treated claimant twice for inflammation of the left eye at which times claimant just told him he had the “red eye.” Then during the second week in March, 1960, claimant saw him a third time and informed him as to what had happened in regard to his eye. The doctor suggested that he be allowed to send claimant to the Wichita Clinic. He did not do any testing or treating and suggested treatment by a certified ophthalmologist. Doctor Cvetkovich was a general practitioner and had treated claimant and his family prior to this incident. Based upon a hypothetical question he was asked if he had an opinion as to whether complete loss of vision could be of traumatic origin under certain factual circumstances. He answered in die affirmative testifying:
“A. Well, then trauma could do it.
“Q. In your opinion did it do it, assuming all those facts to be true? A. Yes, because it wouldn’t be nothing else that could happen in that length of time.
“Q. Do you think, then, that this impaired vision then resulted from the trauma, in your opinion? A. Well, if that other eye has good vision and this one went bad, as supposedly it did, then I say it was traumatic in origin." (Our emphasis.)
On March 16, 1960, Doctor Cvetkovich saw claimant the last time. Approximately in October, 1960, a girl from the office of claimant’s employer, Spencer-Safford Loadcraft, Incorporated, called him in regard to a bill for the Turner account. He stated he had a bill but did not know to whom to send it because he did not know the name of the insurance company. She replied, “Send it to us,” but he had not done so. He further answered that he would do it sooner or later.
Claimant had the right to rely on statements made to him by his superiors, who were agents of his employer, as well as upon statements made by the adjuster for his employer’s insurance carrier, that he could go to any doctor of his choice and the insurance company would pay the bill. Thus we have a much stronger case on this point than was present in Johnson v. Skelly Oil Co., 180 Kan. 275, 281, 303 P. 2d 172, because here the employer’s safety director testified both he and the employer had the same understanding as to the insurance carrier paying tire bill by reason of its customary procedure after the safety director made his accident report to the commissioner and the insurance carrier. This, coupled with the call Doctor Cvetkovich received from the employer’s office informing him he was to send Iris bill to the employer, fortified the proposition that the time for serving the claim was extended by the furnishing of medical treatment to March 16, 1960.
Claimant testified he had obtained permission either from Bloom or Huffman each time he had gone to see Doctor Cvetkovich. His written claim was served on September 8, 1960, and considering the over-all record we are of the opinion the commissioner’s summary of the evidence was correct in stating:
“Written claim for compensation was received by the respondent on September 8, 1960 — 176 days after the claimant had last been treated by Dr. Cvetkovich.”
The trial court accepted and adopted the findings, conclusions, and award of the commissioner. Whenever the record supports an award allowing or denying compensation the judgment of the district court is conclusive. (Burns v. Topeka Fence Erectors, 174 Kan. 136, Syl. ¶ 5, 254 P. 2d 285.) See, also, Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 738, 347 P. 2d 235. The trial court was not required to make technical findings of fact, as contended by respondents, and the award was sufficient if supported by competent substantial evidence. (G. S. 1949, 44-523.)
Doctor W. G. Gillett of Wichita, a witness for claimant, is an eye specialist who has practiced since 1924. He had not seen claimant until after the claim had been filed. He was asked, in a hypothetical question by claimant’s counsel which fairly stated the situation as reflected by the record, if he had an opinion as to whether the loss of the sight in claimant’s left eye (then 20/200) was the result of the trauma of March, 1959. The doctor answered, “Yes, I’d have to assume it.” (Our emphasis.) Later he testified:
“Well, in the first place, the macula area of the retina in this case is destroyed and it can be destroyed by trauma and it can be caused by repeated inflammation in the eye, and the fact that he had treatment over such a long period of time without any other cause for the condition, one would naturally assume that the injury could be the cause.” (Our emphasis.)
From Doctor Gillett’s experience he obviously thought the condition could be the result of the trauma. His testimony continued:
“Q. Would you say it would be a reasonable probability? A. Well, over a long period of time like that of continued inflammation it could be a reasonable possibility . . .,”
and he further stated:
“Well, yes, it is a reasonable possibility due to trauma and the subsequent inflammation.” (Our emphasis.)
Doctor Gillett then explained how infection in the front part of the eye can cause difficulty to the macula as follows:
“Q. ... If I understand you, it is extremely unusual for infection in the front part of the eye to spread back as far and cause difficulty to the macula? A. In the macula, it is unusual.
“Q. Now in what way would the infection go back to the macula? A. Follow the middle coat of the eyeball.
“Q. Or the retina? Oh, the middle coat? A. The middle coat. The inflammatory process can follow back in the middle coat of the eye and the inflammatory condition can produce enough disease to involve the macula,
“Q. What would that disease be known as, Doctor? A. Well, the condition that he now has is known as central retinal adenopathy.
“Q. Is that a disease or just a condition? A. That is a condition.”
“Q. If I understood awhile ago, you said if this inflammation process started back along the inner layer toward the macula that it would be pretty hard to stop that infection, you just doubt if it could be done? A. Well, a fortunate thing about that remark is that you very seldom ever see an involvement of the macula from this kind of a thing. Usually the anterior segment of the eye is involved, of course—
“Q. By that, the front, in layman’s language? A. The front layer. But it isn’t a common occurrence to find a condition like this followed by all this inflammation and all this length of treatment.”
On re-direct examination, Doctor Gillett further testified:
“Q. Now by that you mean you do not generally have one of these traumas and have this long lengthy treatment, it is an unordinary situation? A. Yes, that is an unordinary circumstance, because usually the foreign bodies, whether they are one or more embedded in the cornea, when you get them out they quiet down.
“Q. It is cured. But that would agree to the fact this long period involved after the trauma, with inflammation, would lead to a reasonable — would lead you to believe that it would be reasonable to conclude it was a result of the trauma and the inflammation afterwards, the fact of this long treatment— A. That is more likely to be that than anything else.” (Our emphasis.)
Another expert medical witness, Doctor Donald A. Relihan, an ophthalmologist practicing in Wichita, who also examined claimant after the claim had been filed, testified for respondents. His opinion was there had not been an inflammatory reaction in the macula secondary to any inflammation elsewhere in the eye that resulted in loss of vision. As a result of his examination of claimant he found claimant’s right eye was completely normal and he was industrially blind for all practical purposes in the left eye, which could not be improved with lenses. He stated there could be changes in the macula as a result of injury but not from an injury of this type. He could possibly exclude certain causes but he could not be certain as to the exact cause of the injury that brought about the degeneration of the macula in claimant’s left eye.
In the case at bar claimant’s contention as to his good eyesight prior to the accident and the fact that he is now industrially blind is similar to that of claimant in Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862, where claimant relied on the fact that he was in good condition before attempting to load a 250 pound gas tank onto a Ford truck (at which time his foot slipped, the tank threw him backward, and he felt strain or soreness through his stomach and across his back) and the fact that he began to feel sick soon thereafter. The only medical testimony furnished by that claimant was “it was possible that an accident such as that described by claimant might have caused his condition.” (Our emphasis.) (p. 317.) In reversing the trial court’s judgment for claimant, this court stated:
“Taking all the evidence in this case in its most favorable light for claimant and giving claimant the benefit of all inferences to be drawn from the proven and admitted facts, the conclusion to be drawn rises but little higher than a surmise or conjecture.” (p. 318.)
However, in our case it has been established there was a foreign substance in claimant’s eye and that there was deterioration of the sight of that eye. Claimant testified that prior to his accident his left eye was as good as his right eye and there is no evidence to refute that testimony. From all the evidence it is uncontradicted that claimant’s right eye still has normal vision but he is industrially blind in his left eye. In addition, medical testimony as set out herein show's there was a reasonable possibility, and it was clearly possible (Son v. Eagle-Picher M. & S. Co., 144 Kan. 146, 149, 150, 58 P. 2d 44) there was a causal connection between the trauma and infection and the resulting blindness in claimant’s eye.
The circumstantial evidence shows that from time to time claimant requested permission to see the doctor and while his “lead” men, Bloom and Huffman, did not know the particular doctor’s name in each instance, they did grant him permission to see a doctor. Doctor Gillett testified and traced the manner in which, in his expert opinion, the infection and inflammation could follow from the front portion of the eye back through the middle layer to the macula. In Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 403, 404, 405, 147 P. 2d 705, a foreign object became lodged in tire claimant’s left eye and the same question was presented there that is presently before us, namely, whether the accident was the cause of the loss of vision. Affidavits of three doctors were given but none of the medical testimony showed any causal connection between the accident and tire resulting loss of vision. Claimant, with permission of the court, obtained an additional letter from a Doctor Nelson which stated:
“ ‘It is my opinion that a foreign body in the eye may have been the cause of the uveitis with which you were suffering when I first saw you.’ ” (p. 402.)
Claimant therein testified:
“ ‘Doctor Nelson examined me and kept close watch on it. He said I had a bad case of some kind of infection and that he wanted to watch it pretty close. I think I went every day for three weeks, then after that about two or three times a week. He said it wasn’t entirely healed up.
“ ‘Q. What did he tell you the slag had done to your eye? A. He said it had caused little scars on the eyeball, the pupil and caused me not to be able to have the vision out of that eye that I should.’ ” (p. 403.)
The doctor’s statement and the testimony of claimant, above-quoted, were held to be sufficient to establish causal connection.
It may be helpful to set out briefly a few other typical cases showing what this court has in the past considered competent substantia] evidence as a basis for the trial court’s determination in allowing an award of compensation to a claimant. In Copenhaver v. Sykes, 160 Kan. 238, 160 P. 2d 235, claimant was a pumper on the employer’s oil lease and while cranking an engine, he was kicked and thrown back about four feet against a steel box. An award was made by the trial court in favor of claimant and respondents’ contention there, as here, was there was no substantial evidence to support the trial court’s finding of disability. Five doctors saw claimant and all of them advised surgery. Tins court in the opinion stated:
“A letter from Doctor Eaton of the Mayo Clinic under date of September 13, 1943, clearly discloses that doctor suspected appellee had a protruded inter-vertebral disc. In other words that one of the cartilages between the vertebrae had slipped out of place and was pressing on the nerve roots which make up the sciatic nerve.” (p. 241.) (Our emphasis.)
Doctor Donald Hickel, a captain in the medical corps of the army of the United States, made an examination of claimant that resulted in his being classified as 4-F. His report showing claimant’s ruptured intervertebral disc was as follows:
“ ‘12. Deformities, atrophies, and other abnormalities, diseases, or defects not included above. Has history of ruptured intervertebral disc — untreated.
“ ‘13. Scars of serious injury or disease wears back corset.
“T have found this applicant abnormal under the following headings: History and sign of ruptured intervertebral disc rupture untreated except by belt.
“ ‘In my opinion, applicant is capable of performing duties involving None Physical exertion.
“ ‘Remarks: Reason: not employable untreated ruptured intervertebral disc. (Our emphasis.)” (pp. 241, 242.)
The opinion in the Copenhaver case by use of the following language very succinctly and clearly set out why the testimony there was not pure speculation and conjecture:
“In the first place there is no question here concerning the fact that appellee sustained an injury in the course of and growing out of his employment. In the second place, there is positive testimony not only by appellee but by tile doctors that appellee suffered pain ip the exact region of the back where appellee struck the steel box. There was also positive testimony by Doctor Dickson that appellee was incapacitated for work on August 6, 1942, and would remain so until his condition was corrected by an operation. There was testimony not only by appellee but by appellant, his employer, that prior to the injury appellee was strong and did heavy work. The pain now centered in his back and was continual. The pain in his back and legs was much more acute following the accident and prevented the continuance of the work he had done prior to the accident. Doctor Hickel’s examination, as reflected by a letter dated May 30, 1944, disclosed not only history but ‘. . . sign of ruptured intervertebral disc. . . .’ It is stated appellee was unemployable by reason of ‘. . . untreated ruptured intervertebral disc. . . .’ Moreover, duration of disability is not required, in this case, to be established by expert testimony. (Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 876, 73 P. 2d 1120; Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690.)” (p. 242.)
As to expert testimony, we call attention to Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106, wherein claimant’s disability was diagnosed as conversion hysteria. He had fallen from a scaffold into a window of a house on which he was working. He struck his back and ribs on the window sill from whence he fell to the ground. This case dealt principally with substantial evidence and the testimony of Doctor D. V. Conwell was set out and discussed. As to whether there was traumatic relationship between the injury and disability, the doctor was quoted as follows:
“We thought he (claimant) had a nervous condition called a conversion hysteria . . . the conversion hysteria reaction he had may well be the result of that trauma ... a conversion hysteria could well follow the trauma in an hour, a week or month or two months afterwards, if he had persistent symptoms . . .,” (p. 625.)
and this court held in favor of the claimant on the proposition there was substantial evidence on this point. See, also, McDonald v. Rader, 177 Kan. 249, 251, 252, 277 P. 2d 652.
Comparing the expert testimony in our present case with that in the foregoing cases, we are of the opinion it went even further in establishing a causal connection between the accidental injury and the loss of sight in claimant’s left eye by reason of a degenerated macula.
Only the most pertinent portions of the record have been herein discussed but considering the record in its entirety and the points particularly emphasized, we are compelled to determine, as the court did in Vera v. Swift & Co., 143 Kan. 593, 56 P. 2d 96, that the judgment for compensation should be affirmed because:
“Under the circumstances the court does not feel authorized to say there was no substantial evidence to sustain the findings of the district court. . . (p. 605.)
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of final settlement in the Estate of Martha Elizabeth Barrier, deceased.
In order that a proper understanding may be had of the issue on which our decision is based, a statement of the pertinent facts follows.
Martha Elizabeth Barrier died on July 29, 1959, and her last will and testament was admitted to probate on August 28. Karl B. Jackson was appointed and qualified as the executor and trustee un der the terms of the will. Martha’s will gave certain real estate to her nephews George E. Jackson and Karl B. Jackson; all of the other property was devised in trust with Karl B. Jackson named as trustee. The trust was for the term of the life of Mary Ellen Barrier, her incompetent daughter, and was to be held intact by the trustee until such time as the daughter’s own property became exhausted, at which time the income from the trust property and the corpus, if necessary, of Martha’s estate was to be used for the daughter’s support and maintenance. In the event the daughter’s (Mary Ellen’s) property and estate were not exhausted during her lifetime, the daughter, under the terms of the will, was to receive no inheritance from the mother. The will further provided that upon the death of the daughter all of Martha’s property was devised to various other relatives of the mother, i. e., John Henley, Lida Jackson, Karl B. Jackson, George E. Jackson, Lyman Henley, David Henley, Grace V. Vaupel, Vernice Sears, and Wilbert Henley, if living, and otherwise to their children, and if no children, to their spouses, and if no spouses, to other contingent beneficiaries.
Inasmuch as George E. Jackson and W. E. Sears, guardians of the daughter, were, individually, direct and contingent beneficiaries, respectively, under the mother’s will, and because the interest of the daughter Mary Ellen was possibly adverse to the interests of the mentioned beneficiaries under the will, David W. Kester was appointed guardian ad litem of the daughter Mary Ellen. Since the possibility existed of there being unknown legatees and devisees under Martha’s will, Kenneth P. Rockhill was appointed trustee for such persons, and also appointed guardian ad litem of the minor devisees and legatees named in the mother’s will.
On July 27, 1960, Karl B. Jackson, executor of Martha’s estate, filed his final account in the probate court and prayed for final settlement of her estate, including an order assigning the property of the estate to the various legatees and devisees according to the terms of the will.
Notice of the hearing of final setlement was given to all interested parties, including the daughter, her legal guardians, and her guardian ad litem. Thereafter a petition was filed to transfer the matter to the district court for hearing on the final settlement. Written objections to the transfer were made and filed by Wilbert J. Henley, Lyman E. Henley, Mabel W. Henley, Vernice L. Sears, John W. Henley, Fred L. Henley, Clifford Vaupel, Virginia Vaupel, and Grace V. Vaupel, devisees and beneficiaries under Martha’s will. After a hearing on the petition the matter was transferred to the district court. (G. S. 1959 Supp., 59-2402a.)
In the district court David W. Kester, guardian ad litem for the daughter Mary Ellen, filed a written defense and cross petition to the executor’s petition for final settlement in substance asserting thát certain substantial monies in the hands of the executor of Martha’s estate were erroneously paid to that estate, and, in fact, were the property of Mary Ellen, the daughter, and that the court should order the executor in his final accounting to pay such specified sums to the guardians of Mary Ellen.
Three separate hearings were had on the pleadings filed in the district court in Martha’s estate. At these hearings Karl B. Jackson, executor, devisee and beneficiary under the will, appeared in person, as did the following devisees and beneficiaries under the will: Lida Jackson, Lyman Henley, Vernice Sears, and Wilbert Henley.
From the order of the trial court denying the relief sought by the guardian ad litem of Mary Ellen, and in granting the relief prayed for by the executor of Martha’s estate in his petition for final settlement, David W. Kester, guardian ad litem of Mary Ellen Barrier, an incompetent person, and W. E. Sears, guardian of Mary Ellen Barrier, gave notice of their intention to, and did, file an appeal to this court from the trial court’s judgment.
A notice of appeal was definitely directed to and served upon Karl B. Jackson, executor of the last will and testament of Martha Elizabeth Barrier, deceased; Karl B. Jackson, trustee under the last will and testament of Martha Elizabeth Barrier, deceased; Kenneth P. Rockhill, guardian ad litem and trustee for Virginia Vaupel, Clifford Vaupel, Byron Edward Sears, Ann Elizabeth Jackson, Laura May Jackson and Roscoe G. Jackson, minor legatees and devisees, and all other contingent beneficiaries, whether now in being, or unborn, under the last will and testament of Martha Elizabeth Barrier, deceased; and George E. Jackson, one of the guardians of Mary Ellen Barrier, an incompetent person.
The record reveals that no notice of appeal was directed to or served upon Karl B. Jackson individually, nor was acknowledgment of a notice of appeal ever made by him on his attorney, although he was one of the devisees and beneficiaries under the will and had appeared and participated in the trial. Moreover, no notice of appeal was directed to or served upon Lyman E. Henley, Grace V. Vaupel, Mabel W. Henley, John W. Henley, Fred L. Henley, Virginia Vaupel, or Clifford Vaupel, all of whom were beneficiaries under Martha’s will and had filed their written objections to transferring the petition for final settlement from the probate court to the district court. Furthermore, no notice of appeal was directed to or served upon Lida Jackson, Lyman Henley, Vernice Sears, or Wilbert Henley, all of whom were also beneficiaries under Martha’s will and who appeared in person at the hearings in the district court.
On appeal here appellees first challenge the jurisdiction of this court to hear and determine the questions involved in the specifications of error and assert that the appeal should be dismissed.
G. S. 1949, 60-3806, provides: “Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, . . . A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . [Emphasis supplied.]
Questions involving the interpretation of this statute have been before this court on many occasions since the 1909 revision of the code. One of our earlier cases is that of Peoples State Bank v. Hoisington Mercantile Ass’n., 118 Kan. 61, 234 Pac. 71, in which it was stated that an adverse party under this code provision has been variously defined to be any party to the litigation, plaintiff, defendant or intervenor, to whose interest it is that the judgment of the trial court be upheld, and any party to the litigation who is interested in opposing the relief which the appellant seeks by the appeal. Where necessary parties have not been joined on appeal the appellate court acquires no jurisdiction of the cause and the appeal must be dismissed. (In re Estate of Johnson, 177 Kan. 368, 279 P. 2d 271; In re Estate of Hill, 185 Kan. 421, 423, 345 P. 2d 1011; National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447; White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041.)
In the recent case of In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004, the appeal was from an order appointing a named individual as the sole executor of the estate of a decedent. The notice of appeal was served on the attorney of record for the individual so named, but the record revealed no service of the notice on him in his fiduciary capacity. In holding where necessary parties are not joined on appeal this court acquires no jurisdiction of the cause, and that the appeal should be dismissed, it was stated:
“In construing the provisions of 60-3306, supra, heretofore quoted, this court has repeatedly held that an adverse party in a civil action on whom notice of appeal to the supreme court must be served, under its terms, is a party to the litigation, to whose interest it is that the judgment of the trial court must be upheld, and who is interested in opposing the relief sought by the appellant.” (Citing cases.) (p. 324.)
See also In re Estate of Bergner, 173 Kan. 582, 250 P. 2d 781; Shell Oil Co. v. Board of County Comm’rs, 171 Kan. 159, 162, 231 P. 2d 220.
In the instant case Karl B. Jackson was served in his capacity as executor but not in his individual capacity. He was one of the principal beneficiaries under Martha’s will. He appeared and participated in the trial and, without doubt, was an adverse and necessary party in his individual capacity to this appeal. Under the will he, as devisee and beneficiary, was entitled to an undivided one-sixth interest in Martha’s estate and was interested in seeing that the judgment of the lower court was upheld. Lida Jackson, Lyman Henley, Vernice Sears, and Wilbert Henley, all beneficiaries under Martha’s will, appeared in person at the hearing in the district court, and other beneficiaries heretofore named appeared by filing their objections in the probate court to the transfer of the case to the district court. Each of the aforenamed persons was a devisee, legatee or beneficiary under Martha’s will and was, therefore, an adverse and necessary party in his individual capacity to the appeal.
The record discloses that none of the above-mentioned devisees, legatees and beneficiaries under Martha’s will was served with a notice of appeal.
Under the facts and circumstances herein related and the decisions heretofore cited, there can, in our opinion, be no doubt that the aforementioned parties in their individual capacity were adverse parties within the meaning of the provisions of the appeal statute (60-3306, supra) as it was to their interest that the judgment of the trial court be upheld, and since they were not made a party to the instant appeal and served with notice of appeal, this court has no jurisdiction of the cause and cannot review the alleged errors of which the appellants complain. We have reiterated the rule that where a judgment is brought to this court for appellate review and it appears' that a modification or reversal of such judgment will adversely affect a litigant who has not been made a party, the rule that the appeal must be dismissed is well established. (In re Estate of Johnson, supra; In re Estate of Bergner, supra; In re Estate of Weaver, supra.)
Upon the record before us we have no. alternative other than to dismiss the appeal, and it is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
Defendant, decedent’s mother and one of her heirs at law, appeals from the judgment of the trial court remanding an appeal to that court back to the probate court with directions to appoint an administrator for decedent’s estate.
On March 28, 1959, John W. Damon, appellee here, filed in the probate court of Smith county a petition of creditor for administration of decedent’s estate wherein it was shown a collision occurred on May 9, 1958, between a vehicle driven by Damon and one driven by decedent; that decedent’s negligence was the direct and proximate cause of the collision; and that decedent died intestate on May 9, 1958.
Defendant filed her written defenses and a petition requesting plaintiff to file a cost deposit or bond. Reference is also made to the filing of certain other petitions, journal entries of judgment of both the probate and district courts, and notice of appeal, as well as to statements of what took place in certain hearings and the files of other proceedings. Included are references to hearings, no part of which have been abstracted, and exhibits that have not been reproduced in either the abstract or counter abstract. Further, the record fails to show what findings, if any, were made by the trial court upon which it based any of the orders made. Dispute even exists between the abstract and counter abstract in regard to what the record shows. Hence, the record is not complete in this court and on appellate review we are unable to determine therefrom that any of the substantial rights of Loreda Relihan, defendant below, and the appellant here, were prejudicially affected. Since we are committed to the rules that the burden is upon the appellant to make it affirmatively appeal- her substantial rights were prejudiced by the order of the trial court, and on appellate review error in the trial court is never presumed and the burden is upon the appellant to affirmatively establish that error was committed (G. S. 1949, 60-3317; Hatcher’s Kansas Digest, rev. ed., Appeal & Error, § 408; West’s Kansas Digest, Appeal & Error, § 901; Dirks v. Gates, 182 Kan. 581, 592, 322 P. 2d 750; Minear v. Engel, 184 Kan. 383, 387, 337 P. 2d 693; In re Thornton, 184 Kan. 551, 559, 337 P. 2d 1027; Jocich v. Greyhound Cab Co., 188 Kan. 268, 362 P. 2d 27; Robles v. Central Surety & Insurance Corporation, 188 Kan. 506, 511, 512, 363 P. 2d 427) we have no other alternative than to affirm the judgment of the lower court. So ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action commenced within one year after the date of the accident by Orvin W. Gilliland, plaintiff (appellee), against Kansas Soya Products Company, Inc., defendant (appellant), under the provisions of G. S. 1959 Supp., 44-504, to recover damages for personal injuries sustained by plaintiff due to the negligence of the defendant. This is a companion case to Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737, in that it arises out of the same accident, wherein Schafer was killed and plaintiff herein sustained personal injuries. The parties will hereinafter be referred to as plaintiff and defendant. Defendant interposed the defense that plaintiff’s sole remedy lay within the workmen’s compensation law (G. S. 1949, Ch. 44, Art. 5, as amended) and that plaintiff had. received an award of compensation against his employer for the same injuries for which he sought recovery in this action.
The pertinent facts are as follows: Defendant company during all times pertinent hereto was engaged in the business of storing, processing and selling soybeans and other grains, and products manufactured therefrom. Its business was conducted in a mill and elevator at Emporia. To this mill flowed railroad cars loaded with grain, which, upon arrival, were spotted upon a siding on one side of the mill building and unloaded therefrom, and motor trucks, likewise loaded, which were unloaded on the other side of the mill building.
Plaintiff at all times pertinent hereto was regularly employed as a truck driver for the Blue Stem Truck Line owned by Raymond Fowler. This truck line was duly licensed by the state at the time in question and was operating as a common carrier of freight and property. Its services were available to all who desired to avail themselves thereof. Defendant operated some trucking equipment of its own but it also availed itself of the services of public carriers such as plaintiff’s employer, Blue Stem Truck Line, Gene Kumle & Son Trucking Co., employer of John C. Schafer who was involved in the aforementioned case, and others.
Prior to January 16, 1959, the date of the accident, defendant employed Blue Stem Truck Line to transport some soybeans from Webb City, Missouri, to defendant’s mill and elevator at Emporia. The truck line was to be paid on the basis of “per truck load mile.” Plaintiff drove the truck for Blue Stem, which arrived at defendant’s plant at Emporia on the night of January 16. As far as trucks were concerned, delivery of grain to defendant’s plant was accomplished by the operator of the truck driving it upon the platform of a combination scale and hoist. Then an employee of defendant would, by means of compressed air, chock the rear wheels of the truck and then tilt the entire tractor-trailer unit by raising the front end of the platform, thus permitting the grain to flow out of the rear of the truck through a metal grill and into a hopper below the level of the ground. The metal chocks for the rear wheels were some eighteen inches high. The front end of the platform when elevated to the unloading position extended upward about eighteen feet above the ground. It was not plaintiff’s duty to unload the beans or in any way assist in that task.
When plaintiff arrived with the truckload of beans at defendant’s mill he found that another tractor-trailer unit, owned by Gene Kumle & Son Trucking Co. and driven by John C. Schafer, had preceded him and was in the process of being unloaded by defendant from tlie platform in the manner aforementioned. Because defendant’s platform was occupied and the unloading equipment was in use, plaintiff stopped his truck approximately twenty-five to twenty-eight feet to the rear of the platform awaiting his turn to drive thereon after the Kumle truck had been unloaded and had moved forward off the platform. While waiting, plaintiff stepped out of his truck, loosened the tarpaulin which covered the grain so that the same could be tested by defendant’s men, and returned to his position behind the steering wheel of his truck where he sat for some fifteen minutes, when, suddenly and without warning, the Kumle truck moved violently backwards over the chocks and down the platform from its elevated position into the front of the Blue Stem truck in which plaintiff was seated, killing the driver of the Kumle truck, Schafer, who was standing between the two trucks, and causing plaintiff to sustain serious and crippling injuries for which this action was brought.
The case was submitted to the jury, which returned a general verdict in favor of the plaintiff and at the same time returned answers to special questions submitted by the court. From an order overruling defendant’s post-trial motions, and from the judgment in plaintiff’s favor, defendant appeals.
Defendant’s principal contention in seeking to avoid responsibility for the negligent acts of its employees invokes the provisions of G. S. 1949, 44-503 (Subcontracting), which 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 hable 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. Defendant, in substance, contends that since it entered into a contract with plaintiff’s employer Blue Stem Truck Line to secure the transportation of defendant’s beans that Blue Stem was performing a part of defendant’s trade or business and plaintiff thereby became a special employee of defendant under section 44-503 (a) and therefore may not maintain this action for damages but is limited to the recovery of an award of compensation under the workmen’s compensation act.
Plaintiff relies on his right to recover damages under the provisions of G. S. 1959 Supp., 44-504. As stated in the beginning, this case involves the same accident and the same circumstances as the companion case of Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P. 2d 737, wherein the statutes and many of the cases cited in the instant appeal were there fully analyzed and discussed. So far as the status was concerned, Schafer’s in the mentioned case and Gilliland’s in the instant case were identical: Each was employed by a carrier of freight as a truck driver, plaintiff in this case by a licensed common carrier; each man was told to deliver the soybeans to defendant’s mill at Emporia; and each man was told to deliver — not to unload. Plaintiff’s employer testified that his men were not supposed to participate in the unloading. At page 598 of the Schafer opinion we held that Schafer was not a statutory employee within the contemplation of the workmen’s compensation act under section 44-503 (a) and was not a special employee of the Kansas Soya Products Company, Inc., at the time and place of the accident which caused his death.
No useful purpose would, be gained in further discussion of this matter, as we adhere to the rule laid down in Schafer v. Kansas Soya Products Co., supra, and what was said there is decisive on the question presented in the instant case. Plaintiff was not a statutory employee of the defendant within the contemplation of section 44-503 (a) of the workmen’s compensation act, and he properly brought this action to recover damages against the negligent third party under section 44-504.
It is next urged by defendant that the trial court erred in permitting plaintiff to present and prove the amount of compensation which had been paid him by his employer under the workmen’s compensation act for the injuries received, and, in substance, instructing the jury that an injured workman has a right to ask for and receive workmen’s compensation benefits from his employer and at the same time maintain an action for damages against a third party who caused his injury, and that in event of a judgment in plaintiff’s favor against such third party the amount of workmen’s compensation benefits paid and money spent for medical and hospital care for the employee would be reimbursed to the employer.
Plaintiff’s cause of action was framed as an ordinary damage action to recover in tort against the defendant for its negligence and made no reference to workmen’s compensation or subrogation rights of his employer. Defendant filed an answer injecting the workmen’s compensation issue into the case. The answer alleged that plaintiff was an employee of Fowler doing business as the Blue Stem Truck Line, a common carrier, and that Blue Stem was operating under the terms of the workmen’s compensation act (G. S. 1949, Ch. 44, Art. 5, as amended) as was indicated by an award of compensation entered by the workmen’s compensation commissioner January 28,1960, wherein plaintiff was claimant and Blue Stem was respondent, and in which claimant was awarded compensation for the same injuries referred to in the plaintiff’s amended petition. Plaintiff moved to strike this portion of the answer on the ground that it constituted no defense to plaintiff’s cause of action. Defendant successfully resisted the motion. The plaintiff replied to the new matter set forth in the answer by admitting that he was an employee of Blue Stem and that his employer paid him compensation in a specified amount, and that by reason thereof, under the laws of Kansas, Blue Stem would be reimbursed for such amount out of any recovery had by plaintiff and denied that his recovery under the workmen’s compensation act constituted a defense to the plaintiff’s cause of action. Defendant then moved to strike the mentioned portion of plaintiff’s reply. The court, after hearing the motion, stated:
“Well, the court is of the opinion that since the defendant chose to inject the fact that the plaintiff received money under the Workmen’s Compensation Act that the plaintiff has the right to show the amount received by the plaintiff under any award made by the Commissioner; and the further fact that Raymond Fowler [Blue Stem Truck Line], as employer, would be reimbursed in the event of a verdict in this case to the extent of the amount paid. Isn’t that a correct statement?”
Counsel for defendant replied in the affirmative, and the trial court then overruled defendant’s motion to strike.
Assuming it was error to inject the workmen’s compensation feature into the case (Barker v. Zeckser, 179 Kan. 596, 296 P. 2d 1085; Gorrell v. Kansas Power & Light Co., 189 Kan. 374, 369 P. 2d 342), we can only say that it was invited error on the part of the defendant. 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.) One who by his own act invites and leads the court into erroneous action cannot complain of it nor take advantage of the ruling. (Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; Smith v. Veeder Supply Co., 137 Kan. 124, 19 P. 2d 699; Brown v. Beckerdite, 174 Kan. 153, 158, 254 P. 2d 308.) For other citations see West’s Kansas Digest, Appeal and Error, § 882 (1); 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 440.
Defendant further contends that the trial court erred in the admission of certain evidence and restricting its cross-examination of one witness. Suffice it to say we have examined the record and are unable to find any error in the trial court’s rulings which would warrant a reversal of the case.
Defendant’s final contention is that the instructions given were not a fair and adequate statement of the issues and law involved in the case. From our examination of the instructions it is apparent that the trial court fairly and adequately defined the issues of the case and the law applicable thereto. We are of the opinion that the instructions given were favorable to the defendant, and it has no right to complain.
In view of what has been said, the judgment of the trial court is affirmed. | [
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Per Curiam:
This appeal from an order correcting a journal enry in a criminal proceeding raises two questions.
First, was the original and concededly incomplete journal entry susceptible of correction? Second, are the corrections made by the court below in accordance with the events which took place in the original proceeding?
The power of a court to correct its records by supplying missing details to the facts therein recited was firmly established in Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, certiorari denied, 335 U. S. 909, 93 L. ed. 442, 69 S. Ct. 410, rehearing denied, 336 U. S. 911, 93 L. ed. 1075, 69 S. Ct. 511; Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225, certiorari denied, 362 U. S. 970, 4 L. ed. 2d 901, 80 S. Ct. 956; Tafarella v. Hand, 185 Kan. 613, 616, 617, 618, 347 P. 2d 356, certiorari denied, 363 U. S. 807, 4 L. ed. 2d 1150, 80 S. Ct. 1243; Moses v. Hand, 188 Kan. 317, 362 P. 2d 80. The court below has fulfilled the standards for correction set forth in the foregoing cases.
As to the second question, there is nothing before this court which would indicate that the district court made its order of correction other than in accordance with its records of the original proceeding.
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The opinion of the court was delivered by
Price, J.:
This was an action in the nature of quo warranto brought by the state on the relation of the county attorney of Wyandotte county against the city of Kansas City and the board of education of such city to test the power of the city and board to contract for the use by the board of a tract of land dedicated to the city for public or park purposes. Injunctive relief was sought.
The state appeals from an order sustaining separate demurrers of the city and board to the petition.
The historical background of this matter appears to be quite confusing, but from the petition it appears that in 1859 a certain described tract of land known as “Huron Place” was dedicated by the owners thereof for public purposes. Included therein was a portion designated as “Seminary Place.” From and after approximately 1867 the board entered into possession and enjoyment of the tract described as Seminary Place, used the same for school purposes, said use continuing to this date. From and after 1902 the board has maintained a public library building on the Seminary Place tract and has housed its administrative offices in a portion of such building. In 1958 the board desired to construct a new library building, and in furtherance of such project proposed a bond issue to finance such program. This bond issue was approved by the voters.
The petition continues:
“10. On or about August 7, 1961, pursuant to negotiations with the defendant City of Kansas City, Kansas, it was resolved by the defendant Board of Education to contract with the said city for the use of a portion of the tract described as ‘Huron Place’, more commonly known as Huron Park, exclusive, however, of that tract described as ‘Seminary Place’, as the site for the erection of the aforesaid library building, and to contract to said city in return for such use, possession and enjoyment of that portion of said ‘Huron Place’, to allow said city to appropriate for park purposes those portions of ‘Seminary Place’ which would not under the proposed construction be used as a site for said library building. On or about September 7, 1961, by the purported authority of both the defendant Board of Education of Kansas City of the State of Kansas and the Board of City Commissioners of the defendant City of Kansas City, Kansas, the latter by resolution adopted on September 7, 1961, such a contract was entered into, and a copy of said contract is marked Exhibit B and attached and made a part hereof.
“11. In said contract, among other things, the defendant, Board of Education, agreed to erect and maintain a public library building in a portion of said ‘Huron Place’, to remove and reset the flag pole and memorial stone in another area of Huron Park, to remove and replant grass, trees, shrubbery, sidewalks, and steps in Huron Park, to construct and maintain a parking area in a portion of Seminary Place and Huron Park and on Minnesota Avenue adjacent to the proposed new library building, to allow the defendant, City of Kansas City, Kansas, to exercise exclusive control over those portions of Seminary Place not included in the portion of Huron Park described in said contract, and to use the funds obtained by said Board of Education from the sale of the aforesaid ‘Building Bonds Series of I960’ to pay for the above work.
“12. In said contract the defendant, City of Kansas City, Kansas, and the defendant Board of Education, agreed to allow the latter to occupy, alter, and control the described portion of ‘Huron Park’, so long as the Board of Education maintained a public library thereon, for the aforesaid purposes, thus violating the rights and interests of the original dedicators of that tract, the general public, and the adjacent landowners to and in the preservation of such tract for park purposes and therefore does or attempts or agrees to do acts which it is without any lawful authority to do.
“13. In obligating funds appropriated for school purposes as aforesaid to the erection, and maintenance of a public library building and adjacent grounds on land dedicated solely to park purposes as aforesaid, and entering upon, altering, and occupying, such land without lawful authority and allowing the defendant City to occupy and use for park purposes portions of Seminary Place, heretofore dedicated for school purposes, the defendant Board of Education does, or attempts or agrees to do acts which it is likewise without lawful authority to do.
“14. The aforesaid defendants, in entering into the alleged contract, purport to be acting by authority of Kansas G. S. 1949, as amended, 1959 Supp., Sec. 12-1736, in cooperating to construct and equip said library building, but this statute or any other enactment of the Kansas Legislature, does not and cannot lawfully authorize the defendants to appropriate to a use other than that intended by the donor the lands variously dedicated as aforesaid as ‘Seminary Place’ and ‘Huron Place’, or ‘Huron Park’.”
The prayer of the petition seeks to enjoin the board from occupying and using any portion of Huron Place or Huron Park, and the city from any acts or attempts to permit the board to do the same, and to enjoin the city from using for park purposes any portion of Seminary Place previously dedicated for school purposes.
The contract between the city and the board referred to as “Exhibit B,” and attached to the petition, need not be set out.
The board demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action for the following reasons:
“1. The plaintiff’s allegation that this defendant will occupy and use Huron Place without lawful authority is not one of fact but is an erroneous conclusion of law.
“2. Those portions of Seminary Place which the defendant City of Kansas City, Kansas, is licensed to occupy and use for park purposes pursuant to the alleged contract are shown to be adapted to public purposes by the defendant, Board of Education, which usage the said contract does not purport to alter to the determent of the public.”
The city demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action for the following reasons:
“1. The use of Huron Place by the defendant, Board of Education for the site of a public library building does not violate the presumed intent of the dedicators of Huron Place or the rights of the public as it will remain public grounds during all such use and will revert to the City of Kansas City if and when such usage ceases, in accordance with the contract alleged in the petition.
“2. Now and during all such usage, Huron Park or Place is and will remain devoted to park purposes within the purview of the laws of Kansas.
"3. The alleged contract and the performance thereof by the defendant, City of Kansas City, Kansas, or the defendant Board of Education, is authorized by G. S. Kans. 1949, Sec. 12-1736, as amended.”
Each of these demurrers was sustained and the state has appealed.
A controversy concerning use of the tract of land here involved was before this court in Board of Education v. Kansas City, 62 Kan. 374, 63 Pac. 600. In that case the city brought an action against the board to enjoin the erection of a school building upon what the city claimed to be ground dedicated to public park purposes — but which the board claimed to be ground dedicated to it for school purposes. The board prayed for affirmative relief quieting its title to the disputed tract. The trial court rendered judgment for plaintiff city, denied the affirmative relief sought by defendant board, and enjoined the erection of the school building. The board appealed.
In reversing the judgment and directing the trial court to refuse the injunction restraining the erection of the school building on the tract designated as Seminary Place, it was held:
“1. A tract of ground belonging to a town-site company, designated as ‘Seminary Place’ on a plat of the town site filed by such company, and on which plat is indorsed a memorandum made by the company stating that the square of ground of which ‘Seminary Place’ forms a portion has been set apart as ‘public grounds,’ will be presumed, in the absence of sufficient contrary evidence, to have been dedicated by the company to public-school purposes.
“2. In a case as above stated, the right of the public to the use of the dedicated ground for school purposes cannot be strengthened by a resolution of the council of the city in which the ground is situated authorizing its use for such purposes; nor can such city council lawfully devote to school purposes ground which had been dedicated by the original owner to other public purposes.” (syl.)
Reference is made to the opinion for a statement of the factual background of the matter, and the decision is authority for the proposition that the dedication sufficiently evidenced an irrevocable dedication of that portion of Huron Place known as Seminary Place for seminary purposes; that the dedication for seminary purposes meant for public school purposes; that a dedication to such purposes of a particular portion of such general tract was intended for the one specific public purpose, and that the donors’ grant could not rightfully be diverted to uses other than those designated by them.
In their joint brief the city and board contend:
“Therefore, the appellees urge that the execution and performance of the contract in question is well within the discretionary powers of both agencies. The dedication of ‘Huron Place’ as public ground was restricted only to the extent that a school should not be built other than on that portion dedicated as ‘Seminary Place’ and no school is sought to be built here, but a different public facility otherwise fully authorized by statute. Such use of ‘Huron Place’ is not misuse and no usurpation of authority or violation of trust is therefore involved. The appellees’ demurrers were properly sustained.”
In its brief the state counters with:
“ ‘Huron Place’ was dedicated to the City of Kansas City, Kansas, for use as a park. That City now attempts to contract for the use of a portion of that park by the Board of Education of the City of Kansas City of the State of Kansas as a site for a public library building, with space for the administrative offices of that Board. The donees [sic] of ‘Huron Place’ made other provisions for such purposes by dedicating ‘Seminary Place’ for school purposes. Therefore, use of ‘Huron Place’ for school or related purposes is a diversion that should be enjoined.”
Notwithstanding the contentions of the parties we must, for purposes of the demurrers, take the allegations of the petition as true and at their face value.
In paragraph 10 thereof, above, it is, among other things, alleged that the board intends to allow the city to appropriate for park purposes that portion of Seminary Place which would not, under the proposed construction, be used as a site for the library building. In paragraph 11 thereof, above, it is, among other things, alleged that the board has agreed to construct and maintain a parking area in a portion of Seminary Place.
Under the authority and rule of the above cited case we believe that under the dedication in question Seminary Place is to be used only for school purposes, and that land dedicated to other public purposes may not be devoted to school purposes. The petition alleges a proposed use of a portion of that tract known as Seminary Place for purposes other than school purposes. We believe, therefore, a cause of action is stated and that the demurrers were erroneously sustained. The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Jackson, J.:
The plaintiffs-appellees filed the suit in the court below for the purpose of obtaining a decree holding a certain oil and gas lease upon a quarter section of land in Kingfnan county null and void and to have expired under the special terms of the lease. After pleadings had been filed, the parties entered into a written stipulation of facts upon which the court heard the case and decided in favor of the plaintiffs allowing them the relief prayed for in the petition.
We shall set forth the stipulation of facts upon which the case was tried.
Stipulation of Facts
“In lieu of the submission of evidence the parties hereto agreed that the action should be determined upon pleadings filed herein and the following stipulation:
“This stipulation, entered into on behalf of Jeannette H. Endicott, Gilbert D. Endicott and Sarah Diane Endicott, plaintiffs, by Wm. F. Pielsticker, their attorney, and on behalf of Louis V. DeBarbieri, George E. Allen, Byron A. Cain, William J. Froelich, Walter P. Mahoney, Lee Poulsen, William J. Froelich, Jr., and the unknown spouses and assigns of said persons, and the unknown heirs, executors, administrators, devisees, legatees, trustees and creditors or any of such persons as may be deceased, defendant, by Robert G. Braden, their attorney, as follows:
‘T. Plaintiff Jeanette H. Endicott is the owner of a life estate, and plaintiffs Gilbert D. Endicott and Sarah Diane Endicott are the owners of the remainder interest in certain land described as (omitting description) except the Northwest 10 acres thereof, and attached as Exhibit ‘A’ to plaintiffs’ petition now on file herein is a photostat copy of the original oil and gas lease covering such land, dated April 1, 1958, executed by Clara B. Hanscome, a widow, as lessor, to Louis V. DeBarbieri as lessee, and the plaintiffs acquired their title to the land as devisees under the last will and testament of Clara B. Hanscome, who died on November 24, 1958.
“2. The oil and gas lease contained provisions usual and customary in like leases, and further contained, in addition to other provisions, the following typewritten provisions, to-wit:
“ ‘It is also agreed that if no well be commenced on the above described lease on or before forty-five (45) days from the final determination of the case of Clara B. Hanscome, Appellee, vs. W. J. Coppinger et al, Appellants, No. 41,065 in the Supreme Court of the State of Kansas, this lease shall become null and void, otherwise in full force and effect.
“ ‘It is further agreed that in the event the first test well on the above described lands shall be completed as a commercial producer of oil, and gas, or either of them, then additional wells shall be drilled each six months in accordance with the spacing regulations promulgated by the Conservation Division of the Corporation Commission of the State of Kansas until the lease is fully developed, and unless Lessee commences.or causes to be commenced the drilling of additional wells for oil and gas purposes on said premises within six months from and after the completion of the first test well and continues to drill wells in accordance herewith this lease shall cease and end insofar as all of the acreage covered by this lease, with the exception as to a ten acre tract in a square form .around each of such producing wells, and lessee agrees to forthwith release and surrender all of said leased premises, with the exception of said ten acre tract surrounding each well if the provisions of this paragraph be violated.’
“3. The defendants are successors in part to the interest originally acquired by Louis V. DeBarbieri, the original lessee named in the lease. Pursuant to the privileges granted in said lease, the defendants commenced a test well for oil and gas on the land described in the lease on December 16, 1958 in full compliance with the requirements to commence a well as provided in the first typewritten special provision set forth in the first subparagraph of paragraph 2 above, and completed the same as a producing gas well on December 30, 1958, and sold the first gas from such well during the month of April, 1959, all as plaintiffs allege in numbered paragraph 4 of the petition on file herein; and no test well for oil and gas has been commenced or drilled on the said lands within the six-month period after the completion of such well or at any other time. Plaintiffs made verbal demands upon the defendants for the drilling of such additional wells as were required by the written provisions of the oil and gas lease, and the defendants have wholly failed to re spond to such requests. A competent petroleum engineer, familiar with the particular area under development, if called upon as a witness in this case, and accepted by the Court as an expert witness, would testify as follows: That the above-described gas well drilled by the lessee, resulting in a gas well and continuously produced thereafter as a gas well, would constitute full development of the gas leasehold estate under standards of prudent leasehold operations.
“4. The Conservation Division of the Corporation Commission of the State of Kansas has never promulgated spacing regulations for oil or gas on the acreage described in the subject oil and gas lease.
“5. The excepted ten-acre tract in the northwest corner of this quarter section contains a producing gas well drilled prior to March 12, 1956, and was the subject of controversy in a case previously before the Supreme Court of Kansas styled Hanscome vs. Coppinger, 183 Kan. 623. The adjoining quarter section to the north, owned of record by M. M. Whitelaw, Jr., contains three oil wells, the No. 2 well situated in the northwest comer of said quarter section being completed as a producer from both the Lansing Kansas City Lime formation and the Viola Lime, both oil zones, none of said Whitelaw producers however, being on offset locations to the tract described in the basic oil and gas lease here under consideration.”
As noted above, the defendants have appealed the judgment for plaintiffs entered by the district court based upon the above stipulation of facts.
In urging the alleged error of the trial court, defendants to a large extent contend that the rules of implied covenants should have been applied by the district court as was done in the case of Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95. On the other hand, plaintiffs point out that the case at bar involved an expressed covenant and expressed contract of the parties and is controlled by the case of Hanscome v. Coppinger, 183 Kan. 623, 331 P. 2d 590, which was referred to in the provisions of the instant oil and gas lease and which involved the same lessor and much of the same land as the instant case.
We must say now that we have trouble following the reasoning of the defendants since we construe the contract between the parties as controlling the duty to drill additional wells.
Although the parties argue at length over the meaning of the special provisions attached to the lease herein, it would seem that the crux of the question must turn upon the interpretation of one phrase of the contract. In the second paragraph of the above-quoted stipulations which were attached to the lease, we find the following:
“It is further agreed that in the event the first test well on the above described lands shall be completed as a commercial producer of oil, and gas, or either of them, then additional wells shall be drilled each six months in accordance with the spacing regulations promulgated, by the Conservation Division of the Corporation Commission of the State of Kansas until the lease is fully developed . . .” (Italics supplied.)
The argument of the defendants is that the phrase “until the lease is fully developed” has nothing to do with the spacing of wells and regulations of the Corporation Commission, but may be taken to mean simply what it would mean under an implied covenant to drill.
We certainly cannot agree with such an argument; the provision of the contract is perfectly clear and gives the lessee one way in which to avoid the duty of drilling more wells. If defendants apply to the Corporation Commission and that body takes jurisdiction and it can then be shown that the lease has been fully developed under the orders of the commission, then defendants will have satisfied the contract.
All defendants offer in this regard is an agreement that the commission has never promulgated spacing regulations for the acreage concerned in this case. It is up to the defendants, as we understand the contract, to see that something is done in that regard if they wish to show full development under the regulations. Otherwise they have agreed to drill a new well each six months. This court is not in the habit of writing new contracts for the parties, if the contract entered into is clear and concise. (Hanscome v. Coppinger, supra.)
All other matters in the briefs have been fully considered, but we find no reason to extend this opinion. The order of the district court holding the within lease void except as to the ten acres around the gas well involved herein is affirmed. It is hereby so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
The present appeal is a companion case to State, ex rel., v. Showalter, this day decided, Kan. 562, 370 P. 2d 408. The two cases were filed at the same time and were proceedings brought by the county attorney of Butler county to oust from office two members of the board of county commissioners of Butler county. The proceedings were filed under G. S. 1949, 60-1609 to 60-1624.
The petition in the Blain case charged two counts or causes of action. In the first cause, it was alleged that on May 5, and May 6, 1961, and on numerous other occasions defendant had engaged in gambling and games of chance at a certain filling station in El Dorado.
In the second cause of action, the petition charged that defendant had on January 31, 1961, drunk and consumed alcoholic liquor at a certain named beer tavern in El Dorado to which the general public had access.
The prayer was that defendant be declared to have forfeited his public office and tlrat it be declared vacant.
Defendant was served with a summons in the proceeding which gave the day of July 10, 1961, as the answer day and warned that if no answer was made on or before said day, judgment would be taken as prayed for in the petition.
On July 1, 1961, the judge pro tempore notified counsel that he would be in El Dorado on the morning of July 6, 1961, to take up matters relating to the setting and hearing of these ouster cases.
On July 6, counsel for Blain, without having filed any answer in the case, argued to the court that it would be necessary to have a continuance in the case before trial and urged upon the court the necessity of obtaining witnesses. He also said that counsel was very busy with other business.
The court insisted that the cases be set for July 24, 1961, and that the Blain case would be tried first, followed by the Showalter case. But defendant Blain filed no answer and the 10th day of July was allowed to pass without an answer being filed. On July 11, 1961, the county attorney filed in this case a motion for judgment setting out the default of the defendant in failing to file an answer or otherwise plead.
On July. 12, 1961, defendant Blain filed a motion in which he prayed for permission to plead out of time, and further attached to the motion a demurrer to the petition and secondly an answer consisting of a general denial.
On July 15, 1961, the court took up the motions in tire case then on file. Defendant Blain made a strong argument for the allowance of his motion for permission to plead out of time. However, the court, after due consideration, found that the motion of the defendant to plead out of time should be overruled and the motion by the plaintiff for judgment should be sustained.
Thereafter defendant filed motions to vacate the judgment and also a motion for new trial both of which were overruled, and defendant Blain appeals to this court. It may be noted tibat as part of the proceeding on the motion for new trial, was an offer of proof that the charges in the petition were untrue.
In the brief in this court, appellant Blain has attempted to argue the case under seven separate heads or questions, but the court feels appellant is over meticulous. At the moment we see some three questions in the case, and will discuss them as we come to them.
Appellant raises the question that he, as a county commissioner, is a constitutional officer and may be removed only by impeachment. We pass the question suggested by appellee that the question was not raised in the trial court and cannot be raised here. At least, it is a question of law and not a question of fact.
It is true that county commissioners have at least been mentioned in the state constitution since statehood, and that they are now provided for in article 4, section 2.
In what may have been the first case under the ouster statute after its passage in 1911, we find this constitutional question concerning impeachment discussed. In State, ex rel., v. Martin, 87 Kan. 817, 126 Pac. 1080, which was brought by the then attorney general John S. Dawson against a sheriff — and we assume the sheriff raised something about the question of impeachment. Sheriffs are mentioned also in the state constitution. But the court held that the remedy of impeachment lay only against a state constitutional officer. The court said in part:
“The act purports to provide for the removal, upon proof of misconduct, of all state, district, county, township or city officers, excepting justices of the supreme court, district judges and members of the legislature. The constitution provides that the incumbent of a state office created by that instrument may be removed by impeachment. (Const, art. 2, § 28.) It seems probable that the legislature cannot provide for the removal of such an officer in any other manner. (Falloon v. Clark, 61 Kan. 121, 58 Pac. 990.) But assuming this portion of the act to be void, the validity of the remainder is not impaired. Considered as having relation only to those officers who are amenable to such regulation, the act is complete and unobjectionable, no part of it being dependent upon tihe provisions in relation to those who are immune. The legislature has expressed its purpose that all state, district, county, township and city officers (excepting judges of the supreme and district courts and members of the legislature) should be removable by civil action. As to a certain class of state officers this turns out to be beyond its power. Clearly the desire to have these particular officers made subject to removal was not an inducement for the legislation as to the others. The legislature could in its pleasure (save for the section of the constitution referred to) have made the act applicable to any class or classes of officers. It did not need to include the county officers in order to reach the state officers.”
The above rule seems to be the law of this state, and we might observe that we have never heard of a county officer in any state being impeached by the legislature. A reading of the cases annotated under the ouster statute will show that many county officers have been prosecuted under the statute, including commissioners, sheriffs and justices of the peace.
Appellant argues with much force that the statutory action herein involved is one which requires evidence before even a default judgment may be rendered. Rut on further study of the statute and the cases thereunder, we have come to the opposite conclusion.
There can be no question that the action provided for is a civil action and not a criminal action. What the statute creates is, of corase, a rather summary form of the action of quo warranto. It will be noted that many early cases found in the annotations under the statute were filed originally with this court under our original jurisdiction provision as cases in the nature of quo warranto.
Not only is the action one of civil nature, but proof need be only by a preponderance of evidence. See the following three cases which involved different degrees of proof: State, ex rel., v. Rayl, 110 Kan. 516, 204 Pac. 1002; Rehearing denied, 111 Kan. 571, 207 Pac. 759; State v. Hurley, 116 Kan. 395, 226 Pac. 709; and State, ex rel., v. King, 126 Kan. 683, 271 Pac. 274.
All that can be said is that the court has treated the cases in general as civil actions. What is the rule about default judgments in civil actions? Is evidence necessary? At common law if defendant did not answer, the plaintiff was entitled to a judgment by default as to the defendant being responsible to him, but he must obtain a writ of inquiry to assess the amount of damages. See the old case of Raymond v. Danbury & Norwalk R. R. Co., 43 Conn. 596, 14 Blatchford 133, 20 Fed. Cas. 332, Scott & Simpson Civil Procedure 800.
Section 60-748, G. S. 1949, is quite like the common law but more lenient. “Every material allegation of the petition not controverted by the answer . . . shall for the purposes of the action be taken as true; . . . Allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.” And see G. S. 1949, 60-3109.
Thus a default in a civil case goes even to the amount of damages as to a suit on contract. This was not true under common law. Rut there is no doubt that under our practice as under common law the defendant has suffered a judgment against him except that the exact amount of damages, if any, may have to await evidence. Defendant is foreclosed as to showing non-liability. See the Raymond case supra.
Rut there are no damages in this quo warranto case to be assessed. The plaintiff is entitled to judgment. This court in a quite similar action has so held. State, ex rel., v. Swift & Co., 127 Kan. 817, 275 Pac. 176, was a suit by the county attorney to enjoin a public nuisance in a street. The court said:
“The general rule is that where plaintiff’s petition states a cause of action and defendant’s demurrer thereto has been overruled, and defendant fails or refuses to plead further, the court is authorized to render judgment by default. (34 C. J. 167.) Our statute (R. S. 60-748) provides that the material allegations of a petition, not controverted by answer, ‘shall for the purposes of the action be taken as true,’ although the court may, with the assent of the party not in default, take evidence. (R. S. 60-3109.)
In the matter now under consideration, we see no difference between an order issued in an injunction suit and an order in a suit in the nature of quo warranto.
The final argument made is that it was an abuse of discretion upon the part of the trial court to refuse to allow the motion to plead out of time, and not to allow the answer attached to the motion as an exhibit to be filed. If the demurrer had not also been included in the exhibit, the learned trial court might have been more lenient, we would suspect. Rut the whole statute is designed to constitute a summary suit; to avoid waste of time, and the demurrer was clearly inappropriate in view of the provisions of section 60-1614. Furthermore, the learned judge pro tempore, on his first visit to El Dorado on July 6, had been met with delaying tactics in both this case and in the Showalter case. He warned counsel that the cases were set for trial on July 24. And yet, no answer was filed within proper time.
This court has always hesitated to overrule the best judgment of the trial court in such cases. In the old case of Bane v. Cox, 75 Kan. 184, 88 Pac. 1083, this court in an extreme case did find an abuse of discretion but in the opinion laid down a warning to litigants that will bear repetition. The court said:
“It is the duty of litigants to exercise great diligence both in prosecuting and in defending actions in court, and, as there are usually many cases set for hearing at each term of the district courts, the orderly dispatch of the business and the protection of other litigants from expensive delays and accumulating costs make it the duty of the court strictly to require the parties to every action to be ready for trial promptly at the time the case is set for hearing or to prove that in the exercise of due diligence they have been unable to do so. So great is the necessity for the prompt dispatch of court business that the statute authorizes courts to and they generally do impose upon the unfortunate litigant who, even through no fault of his own, is unprepared to proceed at the time set all the costs of the necessary delay. This is usually sufficient to insure the making of every reasonable effort to be ready at the time appointed, unless vexation and delay be the real object of the litigation or unless some real or fancied advantage may accrue to one party by a course of procrastination. In such cases of designed obstruction or in case of gross or reckless inaction, if the fault be on the part of the plaintiff, it may become the duty of the court to dismiss his action; if the defendant be at fault he may be penalized by proceeding with the trial notwithstanding his unreadiness.”
In view of the situation in the case at bar, the court is unable to find an abuse of discretion in this case. Other cases might be cited, see for example City of Wichita v. Houchens, 184 Kan. 297, 335 P. 2d 1117; Becker v. Roothe, 184 Kan. 830, 339 P. 2d 292; Desch v. Carnutt, 186 Kan. 238, 349 P. 2d 941, and authorities cited.
All questions raised in appellant’s brief have been fully considered, but require no further comment.
The order of the court will be to affirm the judgment appealed from and it is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is an action for damages for the alleged wrongful and illegal seizure and sale of plaintiff’s automobile. Defendants are a finance company and its president.
The appeal is from rulings on demurrers to the petition.
Highly summarized, the petition alleges:
On January 27, 1958, plaintiff became, and still is, the owner of a certain described automobile. On November 19, 1958, defendant Allmon, acting for himself and as agent for defendant company, unlawfully, maliciously and without probable cause swore to and filed a false affidavit in the city court of Pittsburg, in which he falsely stated that one Dorothy B. McWilliams owned said automobile and demanded that an execution be levied thereon to satisfy a debt owed by Dorothy to defendant company.
Pursuant to the praecipe for execution the marshal of the city court, being induced by and acting under the direction of Allmon, wrongfully and illegally seized the automobile as the property of Dorothy after she told them that plaintiff was the owner thereof, and on December 29, 1958, sold it to Alimón for the sum of $95, which was much less than it was worth.
It is further alleged that plaintiff was not indebted to defendant company; that defendants knew, or should have known, that plaintiff was, and had been, the owner of said automobile since January 27, 1958; that the market value of the automobile at the time it was wrongfully seized was $150, which amount plaintiff is entitled to recover, together with the sum of $600 for loss of its use and damages, and that by reason of the false affidavit and wanton and malicious and unlawful conduct of defendants, plaintiff’s credit and name and reputation have been damaged, and he was subjected to great humiliation and disgrace, and therefore is entitled to recover exemplary damages in the amount of $5,000.
Each of the defendants demurred to the petition on the ground it failed to allege facts sufficient to state a cause of action.
The demurrer of defendant Alimón was sustained.
The demurrer of defendant finance company was overruled and it has appealed from that ruling. Plaintiff has cross-appealed from the order sustaining defendant Allmon’s demurrer.
It will be noted that the alleged unlawful acts on the part of defendants occurred on November 19, 1958, and December 29, 1958.
This action was filed on January 7,1960.
As to both defendants the point raised on appeal concerns the applicable statute of limitations.
Insofar as defendant Alimón is concerned, the allegations of the petition as to his unlawfully, maliciously and without probable cause swearing to the false affidavit in order to cause an execution to be levied on the automobile make it clear that plaintiff is relying upon the element of malice as the basis for recovery, thus rendering the action one based upon malicious prosecution.
The statute (G. S. 1949, 60-306, Fourth) provides that an action for malicious prosecution can only be brought within one year after the cause of action shall have accrued.
In Root Grain Co. v. Livengood, 151 Kan. 706, 100 P. 2d 714, it was said:
“. . . In Jacobs v. Greening, 109 Kan. 674, 676, 202 Pac. 72, where a garnishment of funds had been wrongfully procured, it was held that the action for damages therefor was essentially one for malicious prosecution of a civil suit. Garnishment and attachment rest on the same basic principle and their wrongful procurement likewise. In Jacobs v. Greening, supra, Mr. Justice Mason said:
“ 'The petition alleged that the defendants were actuated by malice in procuring the garnishment and the restraining order, and that no probable cause therefor existed. The action was begun more than a year after the matters complained of had taken place, and, regarded as one for malicious prosecution, was therefore barred by the statute of limitation.’ ” (pp. 709, 710.)
See also Corliss v. Davidson & Case Lbr. Co., 152 Kan. 327, 103 P. 2d 781, syl. 2, pp. 332, 333.
As to defendant Alimón, the action, being in the nature of one for malicious prosecution, and being commenced more than one year following his alleged wrongful acts, was barred by the statute of limitations. His demurrer to the petition was therefore properly sustained.
With respect to defendant finance company the action appears to stand upon a different footing.
The statute (G. S. 1949, 60-306, Third) provides that an action for taking, detaining or injuring personal property can only be brought within two years after the cause of action shall have accrued.
In the early case of Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518, although an action on a sheriff’s bond arising out of a wrongful levy upon personal property, it was said:
“The wrongs charged in the plaintiff’s petition as the foundation for his present action, are a trespass upon real property, and the taking, detaining and selling of personal property. Now an action for these wrongs is barred within two years; . . .
“Under the facts of this case, the plaintiff had an action against the defendant for a trespass upon real property, which action was barred within two years. He also had an action for the taking and conversion of the personal property, which action was also barred within two years; . . .” (p. 769.)
It is clear that the alleged wrong on the part of defendant finance company was the wrongful taking, seizure and sale of plaintiff’s automobile, which brings the matter within the two-year statute of limitations last above mentioned. The action was brought within two years from the date of wrongful taking, and as to such defendant the demurrer was properly overruled.
Both of the rulings appealed from are therefore affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
These actions were to recover damages for injuries sustained by plaintiff, Judy Goldman, while ice-skating on the defendant’s rink, and by her father, Manuel Goldman, for hospital and medical expenses incurred for her care and treatment. The actions were consolidated in the district court. Trial was by a jury which returned a verdict in favor of the plaintiffs in the sums of $5,000 and $832, respectively. Defendant’s post-trial motions to vacate and set aside certain special findings, for judgment on certain special findings, and for a new trial were overruled. The defendant perfected separate appeals which were ordered consolidated. The parties have stipulated that the decision in Judy Goldman’s appeal, No. 42,727, would control appeal No. 42,728.
On January 6, 1957, the date of the accident, Judy Goldman was fifteen years of age, and a- sophomore in high school. During the school year preceding the accident she played baseball, basketball, hockey, participated in intramurals, and she swam. For three or four years prior to the accident she had roller-skated in the neighborhood and at skating rinks.
A little before noon on the date of the accident, plaintiff went to the defendant’s skating rink to ice-skate for the first time. She was accompanied by her cousin and her cousin’s fiance, Robert Mandelbaum. The skating session — a two-hour period — was in progress when they arrived. After paying the admission fee plaintiff rented a pair of ice skates. The skates, the only kind rented at the rink, were of the kind designed for figure skating, that is, with the front of each blade curled up and notched like saw teeth. Mandelbaum advised plaintiff to hold on to the handrail at first and, since she had previously roller-skated, when she felt she could control her skates, to leave the rail. Plaintiff testified that she skated close to the rail for about the first forty minutes; that when she started skating she did not notice anything on the ice, but after she had skated for about twenty minutes and had made five or six circuits around the rink she noticed several holes in the ice and candy wrappers on the ice; that there were not as many skaters when she first arrived as there were toward the middle or latter part of the session when the people started coming in a steady stream and the rink became crowded; that most of the slow skaters stayed near the outside of the rink, but the more proficient skaters stayed in the center; that on occasions fancy skaters would leave the center of the rink and go by the slow skaters real fast, racing around the rink; that she was bumped or pushed several times by the fast skaters but never lost her balance; that because of other athletic endeavors she could “keep her balance” and to her “ice-skating was no challenge,” and that about the middle of the session she skated without the aid of the handrail, noticing, however, that the ice was getting pretty rough.
Plaintiff further testified that after the rink got crowded she could not see the holes to dodge them as she could before, but she knew they were there because she had seen them; that the holes looked like someone had dug a skate into them; that there were a lot of scratch marks on the ice, and that she had skated about fifteen or twenty minutes without the use of the handrail when she fell. She described her fall as follows:
. I was skating around the rink and I was doing pretty good, too, for a beginner. I didn’t lose my balance much, and I was going around the rink, and all of a sudden my skate stopped, and it stopped on a piece of paper or a hole. I know it did. And then, before I could move or anything, somebody bumped against me and I fell there. . . .”
Plaintiff sat on the ice crying for two or three minutes before anyone came to her aid, then two skaters came to her assistance and half skated and half carried her across the greater length of the rink to a chair. Plaintiff did not actually see or know of her own knowledge which it was that caused her skate to stop but she thought it had to be “either a hole or a piece of paper,” and she answered the following questions:
“Q. . . . And you continued to skate during this 25 or 40 minute period, knowing that these things were there, did you not? A. I knew they were there, and when I was" skating the earlier part it wasn’t very crowded. After awhile it got crowded and you couldn’t — you didn’t notice them as much because you were just too excited about dodging everybody coming by, and I didn’t think it was dangerous, either. Q. Did you know there was a possibility you might catch your skate on them and fall? A. No, I didn’t, and 1 didn’t know there was any danger, or else I certainly wouldn’t have skated on. Q. You didn’t think about you might possibly catch your skate on them? A. No, I didn’t think there was any clanger. If I did, I certainly wouldn’t have skated on. I certainly didn’t want this accident to happen.”
Plaintiff testified she did not know who bumped into her except it was a fast skater who came from behind, and after bumping her, skated on, and that at no time did she observe anyone on the ice supervising or managing the skaters, or to whom she could have reported the holes and the debris.
The only evidence offered by the defendant was the medical report of an orthopedic surgeon whose conclusion was that the plaintiff had made a good recovery from surgery with no apparent residual other than the operative scar on her left knee.
As previously indicated, the jury returned verdicts for the plaintiffs, and answered special questions submitted by the court as follows:
“1. Did plaintiff Judy Goldman know and realize that there were 'holes in the ice and debris on the ice before she fell? Answer: Yes. 2. Did plaintiff Judy Goldman exercise ordinary care for her own safety? Answer: Yes. S. Did the defendant George Bennett, through his agent or employee, have constructive notice of debris on the ice or holes in it before Judy Goldman fell — that is, should 'he, with proper inspection and supervision, have known of these conditions? Answer: Yes. 4. If you find that defendant had constructive notice, then state the length of time the condition existed before Judy Goldman fell. Answer: Approx. 45 minutes to an hour. 5. What was the proximate cause of the fall of plaintiff Judy Goldman on January 6, 1957? Answer: Rough skating surfaces & debris on the ice caused her skates to stop suddenly causing her to lose her balance coupled with a collision from the rear by another skater knocking her to the ice. We feel a definite lack of supervision of the skating session. 6. Was defendant George Bennett, through his agent or employee, negligent? Answer: Yes. 7. If your answer to Question 6 is ‘yes’, then state what that negligence was. Answer: Lack of adequate & proper supervision.”
The defendant principally argues that the plaintiff assumed the risk of the injury she received by continuing to skate after she saw the holes in the ice and the debris thereon. The point is not well taken. The plaintiff was a business invitee, and had gone to the ice-skating rink to skate for the first time. She had a right to assume the defendant would provide her a reasonably safe place to skate. The defendant, as owner of the rink, was not an insurer of plaintiff’s safety against the wrongful acts of fellow patrons (Klish v. Alaskan Amusement Co., 153 lían. 93, 109 P. 2d 75; Hickey v. Fox-Ozark Theatres Corp., 156 Kan. 137, 131 P. 2d 671), but he could not without liability permit activities of fellow patrons, which were dangerous to other patrons, to continue after he knew, or by the exercise of reasonable care should have known, of such activities. (Cale v. Johnson, 177 Kan. 576, 580, 280 P. 2d 588; Little v. Butner, 186 Kan. 75, 80, 348 P. 2d 1022; Levy v. Jacobs, 228 N. Y. S. 229; Hughes v. St. Louis Natl. League Baseball Club, Inc., 359 Mo. 993, 224 S. W. 2d 989; Restatement of the Law, Torts, § 348.)
Counsel for the defendant makes an issue of the fact that plaintiff knew there were holes and paper on the ice and as the rink became crowded, it became more difficult to avoid the holes and paper, and that the jury found she knew and realized there were holes and debris on the ice before she fell. Be that as it may, there is no evidence in the record to indicate that the plaintiff knew and appreciated the danger and the risk which the defendant claims she assumed. Indeed, the evidence was that while she continued to skate during a twenty-five to forty minute period knowing of the holes in the ice and the debris thereon, she did not think it was dangerous. The doctrine of assumption of risk is not to be confused with contributory negligence. It arises through implied contract of assuming the risk of a known danger. The essence of it is venturousness; it embraces a mental state of willingness, and it denies defendant’s negligence while contributory negligence admits de fendant’s negligence but denies it is the proximate cause of the accident (Kleppe v. Prawl, 181 Kan. 590, 594, 313 P. 2d 227, 63 A. L. R. 2d 175; Taylor v. Hostetler, 186 Kan. 788, 800, 352 P. 2d 1042; Shufelberger v. Worden, 189 Kan. 379, 384, 369 P. 2d 382).
In Kleppe v. Prawl, supra, the plaintiff was standing between a truck being backed by defendant and a barn. The defendant was supposed to have backed the truck “a couple of feet” so that a chute on the rear of the truck would come close enough to the barn doorway so that hogs could be loaded onto the truck. After the defendant had backed the truck a couple of feet, plaintiff shouted for him to halt. Defendant paid no attention, but continued to back the truck and crushed plaintiff against the barn. As a defense to plaintiff’s petition and evidence, defendant maintained that the danger was inherent and obvious to plaintiff to stand between a moving truck and a bam and that plaintiff therefore assumed the risk. It was said the evidence did not show there was any inherently dangerous and perilous condition until the truck had exceeded the distance it was supposed to cover in its backing operation. And so here. While the plaintiff testified and the jury found that she knew of the holes in the ice and the debris thereon, those conditions were not in and of themselves the cause of plaintiff’s fall. Her injury was the result of a combination of circumstances. There was no evidence to show any inherently dangerous and perilous condition until the different elements combined, namely, catching her skate on a hole or piece of paper, being thrown off balance thereby, simultaneously being struck by a fast skater, all of which caused her fall and injury. Until that moment, the plaintiff’s knowledge of those conditions was one of merely noting them.
This action was pleaded and tried upon the theory that adequate and proper supervision of the skating session by the defendant would have prevented the chain of circumstances which, in their entirety, were the proximate cause of plaintiff’s fall. The jury found that the defendant was negligent in failing to provide adequate and proper supervision of the skating session, and there was substantial evidence to support the finding. Throughout the skating session professional caliber skaters were performing acrobatic and figure-skating maneuvers in a fast and reckless manner while intermingling with patrons of lesser talent near the outside of the.rink, bumping against them and knocking them to the ice, one of whom bumped the plaintiff from the rear when her skate was unnaturally stopped by either a hole or a piece of paper on the ice, and the defendant knew, or with the exercise of reasonable care should have known, that such conduct and the condition of the ice would likely produce harm and injury to other patrons (Cale v. Johnson, supra).
While one who becomes a participant at a skating session at a public ice-skating rink for hire assumes all ordinary and normal hazards incident to the sport, the law does not require him to assume the negligence of the proprietor in failing to provide adequate and proper supervision of the skating session. The doctrine of assumption of risk was not applicable under the facts and circumstances of this case, and the district court did not err in any of the particulars urged by the defendant.
The defendant next asserts that the plaintiff was guilty of contributory negligence as a matter of law, which barred her recovery. We are not persuaded. While the occasion which produced this controversy was the plaintiff’s first venture at ice-skating, the evidence was that she was an active, agile young person with considerable athletic ability; that she held onto the rail for a number of turns around the rink until she learned to control her skates; that although she saw debris and holes in the ice after several circuits of the rink and saw fast skaters going by, she had no difficulty in avoiding the debris or successfully maintaining her balance when brushed by such skaters for approximately forty minutes of the skating session; that she did not venture into the center of the rink where the fast skaters mostly stayed, but kept to the outside to avoid them, and that she had not fallen before the fall which produced her injury. All of the plaintiff’s testimony on cross-examination was to the same effect.
Whether, under the circumstances, the plaintiff exercised due care was a proper question to be submitted to the jury. Negligence implies some act of commission or omission wrongful in itself. In essence, it is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has been established. Refore the court should make such a holding, the evidence should be so clear that reasonable minds considering it, could have but one opinion, namely, that the party was negligent. (Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 49, 204 P. 2d 752.)
The issue was such that reasonable minds might differ, and the question was properly submitted to the triers of the fact. There was substantial evidence to support the finding that the plaintiff exercised ordinary care for her own safety, the effect of which was that by continuing to skate she did not run a risk known to be greater than prudently could be incurred under the circumstances, and the defendant cannot now challenge the jury’s answer.
It is next contended the district court erred in refusing the defendant’s requested instruction to the effect that a person who voluntarily pursues a course which he knows to be dangerous would be precluded from recovery. In refusing the instruction, the court said:
“The Court thinks that is covered when I say it is negligence for a business invitee to fail to look out for danger and to take precautionary steps if an ordinary prudent person would have done so under the same or similar circumstances. I think that adequately takes care of it.”
In Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649, it was held:
“It is not in every instance where one exposes himself to known danger that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence would not subject himself to it.
“Mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. Moreover, knowledge of the offending instrumentality does not constitute contributory negligence as a matter of law.” (Syl. ¶¶[ 1, 2.)
No error was committed. The same argument with respect to the doctrine of assumption of risk applies here. The element of knowledge and full appreciation of the risk involved is essential for application of the doctrine.
Before reaching the conclusions heretofore announced the authorities cited by the defendant were fully examined, but running through them are factual situations which do not permit application to the case at bar. Other points have been raised by the parties, but it is unnecessary'to discuss them. What has been said disposes of the appeal.
The judgment is affirmed.
Parker, C. J., and Price, J., dissent. | [
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by the wholly dependent widow of a deceased workman to recover compensation for his death under the provisions of the workmen’s compensation act (G. S. 1949, ch. 44, art. 5, as amended).
After making a summary of the evidence, the compensation commissioner found that
“The injury, if any, which occurred on the job must be a cough producing phenomena [phenomenon] caused by the elements of November 17, 1958. Apparently this was not disabling because the deceased returned to work the next day. The Examiner has been unable to find in any American jurisdiction that a cough or a cold is an accident as contemplated by workmen’s compensation. Of course, a hernia is compensable if it occurred on the job and arose out of the employment. Assuming that the decedent died because of the hernia operation and without malpractice — and this, the Examiner finds to be the case — the hernia would have been the accident and it occurred while the deceased was off the job while awaiting a meal. The Examiner finds that the hernia did not arise in the course of the employment of the' deceased, and, therefore, an award of compensation should be denied.” [Emphasis supplied.]
On reviewing the evidence taken by the commissioner, the trial court found
“. . . that the deceased, Clarence Shoemaker, did not sustain personal injury by accident arising out of and in the course of his employment with respondent; and that the findings of the Workmen’s Compensation Commissioner are adopted and the award of compensation denied."
Judgment was entered in favor of respondent, and claimant appeals.
Claimant has faffed to abstract any of the testimony taken before the commissioner. The abstract includes only the summary of the evidence by the commissioner, the commissioner’s findings, his denial of the award, and the journal entry of judgment of the trial court denying compensation.
It is the contention of the claimant that as a matter of law the findings of the trial court establish an unbroken chain of events showing that deceased, while in his employment, suffered unusual exposure causing a severe cough which produced a hernia necessitating operative treatment, which in turn resulted in the death of decedent.
Inasmuch as claimant has failed to submit to this court an abstract of any of the evidence, we must assume that the findings of the trial court are all supported by substantial competent evidence. The question, therefore, is, Do those findings, as a matter of law, compel an award in favor of claimant?
An examination of the findings reveals that nowhere did the trial court find that an injury occurred in respondents’ employ. The court found that the hernia was the accident and that it did not arise out of and in the course of employment. As to the finding that decedent did not suffer personal injury by accident arising out of and in the course of employment, we can only reiterate that the failure of claimant to file an abstract of the evidence presented in the proceedings which this court is asked to review makes our task impossible. The trial court did not find that there was any unusual exposure to the elements producing a cough which causally related to the hernia and ultimate death of deceased, and we are in no position to overturn the trial court’s judgment. Absent an abstract of the evidence, a challenged finding of fact made by the trial court is not open to review.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiff landowners from the judgment of the trial court in favor of defendants denying the rezoning of plaintiffs’ property located near the city intersection of Oliver avenue and Thirteenth street in Wichita from “A” residential to light commercial.
By way of preliminary background, the record discloses the Wichita-Sedgwick County Metropolitan Area Planning Commission had recommended the requested rezoning to the city commission but that commission denied the rezoning, and upon appeal by the plaintiff landowners from that ruling, the trial court likewise entered judgment denying the rezoning and held for the defendants for costs. Hence this appeal.
The stipulated and uncontradicted facts are that plaintiffs’ property had been zoned “A,” two-family dwellings, for a number of years and plaintiffs sought rezoning of their property to LC, light commercial. C. U. P. type zoning refers to the community unit plan and compares more nearly with light commercial zoning than any other type. In this case the maximum amount of property that could be made LC zoning is now C. U. P. and, as will be shown, has not yet been brought into the city but as soon as it is, it will be zoned LC. The intersection of Thirteenth street running east and west and Oliver avenue running north and south forms not only a section line intersection but is a point where two of the heaviest traveled thoroughfares in Wichita cross. There is a gasoline service station at the northwest corner and a modern shopping center is located behind the station, and in a northwesterly direction. The maximum amount of LC zoning appears to have been allowed at this comer under the city’s general policy limiting the extent of LC zoning to twenty-four acres per section which means approximately six acres on each corner or a maximum linear distance of not to exceed 600 feet in a more or less square dimension.
The northeast corner of the intersection was zoned LC and a supermarket located thereon. A large tract of land at the southeast corner of the intersection has been zoned C. U. P. At the southwest corner a sufficient amount of land (200 feet) was zoned for the construction of another service station. Later, 200 feet on the east side of Deliróse street, a north-south street one block west of Oliver avenue, was zoned LC and a carry-out sandwich business operated thereon.
The property of plaintiffs involved in this litigation covers “A” zoned property extending from the south side of Thirteenth street down the west side of Deliróse for a distance of 200 feet, then west to the east side of Pershing street (the second street west of Oliver avenue), then north 200 feet on the east side of Pershing back to Thirteenth street. The extension of Pershing street north across Thirteenth street becomes the west boundary of the aforementioned large shopping center on the northwest corner of the intersection, and it follows an extension of Deliróse street north from Thirteenth would bisect the shopping area.
Considered with and made a part of the recommendation of the planning commission was an offer of plaintiffs to have the south fifty feet of their property zoned “B” (multiple family dwellings— actually used for parking) but that is not of sufficient note to require full discussion herein.
Since October, 1955, sixty-five of sixty-six applications for change to LC zoning had been granted by the city commission upon the recommendation of the planning commission and since January, 1955, some twenty-four of twenty-five similar applications had been denied by the city commission upon recommendation of the planning commission. In addition to policies already set out herein it was contrary to the planning commission’s policy to strip zone for commercial use along major thoroughfares for the reason that it interfered and was incompatible with the purpose of major thoroughfares which is to move heavy flows of traffic.
However, as above stated, the limitation of twenty-four acres per section is definitely a policy of the planning commission. In November, 1959, that commission informally adopted the policy that when three of four comers have been zoned LC, the fourth corner should be rezoned LC if so requested. It is noted this policy was adopted just three months prior to plaintiffs’ application for rezoning. Certain maps and photographs were admitted in evidence without objection which cannot be reproduced in the opinion but they have been quite helpful to the court in its consideration of this case. From these maps and the testimony of the witnesses, it appears the city has allowed approximately seven other zoning applications all covering areas a number of miles removed from the property in question: two to the northwest of the center of the city; three to the southwest approximately east of the new Wichita airport; and two to the southeast of the middle of the city out towards McConnell Air Force Base. These areas had some similarities and some dissimilarities with our present area, as will presently be explained.
The trial court’s findings in brief were that although the city commission normally followed its section line intersection policy and the “fourth comer” policy, exceptions and variations were made thereto when circumstances and conditions justified such exceptions; that three of the four corners of the intersection of Thirteenth street and Oliver avenue were zoned and used LC and the fourth, approximately thirty-five acres in size, was zoned C. U. P. but has not yet been put to C. U. P. use; two other tracts zoned LC at the same intersection had not been put to that use at the time of the application herein; other tracts approved for LC zoning by the city commission had had one or more circumstances that were similar to the ones existing with respect to plaintiffs’ property, namely, that the tracts at the time of the requested zoning change were occupied by and adjacent to residential property, that LC developed property existed adjacent to and in the area, and finally, LC zoning had been granted in areas where a large percent of the existing LC zoned property had not been developed. In its last two findings, No. 10 and No. 11, the trial court stated:
“10. The Court further finds from the evidence that while plaintiffs application to zone their property ‘LC’ involved, in many instances, similar circumstances to those involved in applications for ‘LC’ zoning which have been approved by the City Commission in the recent past, sufficient evidence was offered by the defendants to prove that different circumstances and dissimilar factors did exist which would and did clearly justify the City Commission in denying plaintiff’s application.
“11. This court further finds that the line of separation between the functions of the City Commission and the functions of the courts with reference to zoning has been well defined. The Courts are limited to passing on the reasonableness of action taken by the City Commissions and should not declare the actions of the City Commissioners unreasonable unless clearly compelled so to do by the evidence. This court can find no basis under the evidence presented on which to find the action of the City Commission to have been unrea sonable or discriminatory.”
The trial court concluded the city commission did not act arbitrarily, capriciously, and unreasonably in its refusal to rezone plaintiffs’ property and entered judgment for defendants.
The opinion of this court is that the trial court, as shown by its findings, followed as closely as possible Barclay v. Mitchum, 186 Kan. 463, 350 P. 2d 1109, and we are unable from the over-all record, the exhibits, the stipulated facts, the pleadings and the testimony of R. E. Ray and Leland R. Edmonds to say there was no competent substantial evidence to justify the trial court in its findings No. 10 and No. 11.
Plaintiffs contend only two zoning policies are here involved; that of the section line intersection, and the “fourth corner” policy. However, the record shows other policies had been adopted and were considered by the city commission, namely, that of not permitting “strip zoning,” of not allowing more LC zoning in any area where more than one third of the property already zoned LC was not being so used, and of requiring that land zoned LC be approximately in the form of a square when the maximum amount of property so zoned was at a section line intersection. We are unable to say the city commission did not consider all these policies. It is not within the province of this court to determine under this record what the city commission considered and what it did not consider. As stated in the Barclay case, courts must he ever mindful of their limitations in matters of this kind:
“. . . the trial court capably stated the correct rule governing a situation where its only judicial duty is to consider the acts of an administrative body acting in a legislative capacity. That duty is to pass on the reasonableness thereof.” (p.466.)
From the entire record before us and by reason of all that has been stated herein we think the trial court did not err in holding the city commission did not act arbitrarily, capriciously, or unreasonably in denying the rezoning of plaintiffs’ property from A to LC.
Affirmed. | [
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The opinion of the court was delivered by
Price, J.:
Defendant appeals from a conviction of burglary in the third degree (G. S. 1949, 21-521) and larceny in connection therewith (G. S. 1949, 21-524).
At approximately 11:10 a. m., on November 10, 1959, the complaining witness in this case returned unexpectedly to her apartment in Wichita and encountered the defendant therein. He told her that he had been directed by the apartment manager to check the radiators. After a short discussion of the heating situation she left for an appointment, leaving the defendant in the apartment. Later that day she contacted the apartment manager and learned that no one had been sent to check radiators. A search of the apartment revealed that two radiator valves were missing and in addition $20 had been taken from a dresser drawer which had been rifled. The radiator valves were later found in a pile of trash at the rear of the apartment building.
Defendant had previously been a tenant of the apartment in question and had had a duplicate key to it made. At the trial he was positively identified as the man encountered by the complaining witness in her apartment on the morning in question.
As stated, he was convicted of burglary in the third degree and larceny in connection therewith.
Although defendant appears in this court pro se, the record shows that throughout the trial he was represented by competent counsel of his own choosing.
In support of his contention that his motion for a new trial was erroneously denied, defendant raises three questions.
The first is that the court erred in not granting a continuance— requested the day of the trial — because an alibi witness was in the hospital.
There are several reasons why such contention is without merit.
In the first place, defendant did not comply with the provisions of the alibi statute (G. S. 1949, 62-1341).
In the second place, it has been held many times that the matter of a continuance is largely within the discretion of the trial court, and that its ruling thereon will not be disturbed unless it appears that such discretion has been abused to the prejudice of substantial rights of a defendant. (State v. Morrow, 179 Kan. 63, 292 P. 2d 1094; State v. Smith, 173 Kan. 807, 252 P. 2d 917.)
In the third place, the evidence of the witness in question was merely cumulative of that introduced by defendant as to his whereabouts on the date in question, and, further — the record shows that the affidavit of such witness was received and read to the jury.
Under the circumstances related, the denial of a continuance was in no way prejudicial to the substantial rights of defendant, and his contention with respect thereto is without merit.
The second point raised by defendant is that there was error in the matter of his arraignment.
It appears that on the opening day of the term defendant was in court together with defendants charged in other cases, and at that time inquiry was made as to how he pleaded to the information. A plea of not guilty was entered upon the court records. During the course of the trial some question was raised as to the regularity and formality of the arraignment. The trial judge, although being of the opinion that all matters in connection therewith were regular and proper, nevertheless halted proceedings and inquired of defendant if he knew and understood what he was charged with and if he waived the reading of the information. Defendant replied in the affirmative and stated that his plea was not guilty. The trial proceeded.
Under the circumstances related we find no merit in defendant’s contention. At all times he was represented by counsel; he made no objection to going to trial, and he participated therein. Upon the question being raised he stated that he knew and understood the charges against him and waived the reading of the information. Assuming — but not conceding — some “irregularity” did exist with respect to his arraignment in the first instance, it was cured by subsequent events. On the question see State v. Cassady, 12 Kan. 550, syl. 7, and State v. Horine, 70 Kan. 256, 78 Pac. 411.
The final question raised by defendant is that his motion for a new trial was erroneously denied because of newly discovered evidence.
Throughout the trial defendant’s principal defense was that of alibi — that is, that he was working on a farm west of Mulvane on the date in question. The evidence which defendant claims was newly discovered was merely cumulative of that introduced by him at the trial, and, furthermore, was known to defendant prior to trial. Further, at the hearing on the motion for a new trial compliance with the provisions of G. S. 1949, 60-3004, was not made. That statute, although in our civil code, applies to the trial of criminal cases (G. S. 1949, 62-1414). See also State v. Vandruff, 125 Kan. 496, 264 Pac. 1060, and State v. Smith, 126 Kan. 670, syl. 1, 271 Pac. 289. Defendant’s contention as to this matter is without merit.
With respect to each of the matters urged we find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action for wrongful death arising out of an automobile collision.
The appeal is by one of the defendants — Ronald Collins — from orders denying his motions to dismiss the action and to strike a paragraph from the supplemental amended petition, and from an order overruling his separate demurrer to the supplemental amended petition.
The other defendant — Lee Pyle — is not a party to this appeal. The personal representative of the deceased will be referred to as plaintiff. Collins will be referred to as defendant.
The questions involved will be apparent as the facts are developed. Dates are important.
The death occurred on February 15, 1958.
Plaintiff’s petition was filed June 24, 1958.
On September 24, 1958, an amended petition was filed.
Defendant appealed from an order overruling his demurrer to the amended petition. On June 13, 1959, this court affirmed that ruling and held such pleading stated a cause of action (Vakas, Administratrix v. Collins, 185 Kan. 103, 340 P. 2d 99).
Later — on a date not shown — defendant, alleging that he was a minor, filed a motion to quash and set aside the purported service of summons had on him back on June 24, 1958, the date the action was filed.
On June 10, 1960, after a full hearing, the court found that on June 24, 1958, defendant was a minor seventeen years of age and that the attempted service of summons on him on that date was legally insufficient, and sustained the motion to quash and set aside.
Plaintiff did not appeal from that order.
On June 10, 1960, the date of the foregoing order, plaintiff filed a praecipe for summons—
“. . . service to be pursuant to G. S. 1949 60-408.”
On June 10, 1960, a new summons was issued, and on that date was served on each parent of defendant as his natural guardian, by residence service.
As to defendant himself, the sheriff’s return showed that he could not be found—
“. . . since he is presently in the U. S. Navy,”
and a copy was left at his usual place of residence on June 13,1960.
On June 20, 1960, plaintiff filed a motion for permission to file a supplemental amended petition—
“. . . solely for the purpose of adding an additional paragraph setting up facts supplementing the statement of the cause of action against tire Defendant, Ronald Collins.”
On July 6, 1960, the court made an order in which it found that on June 13, 1960, valid service of summons had been made on defendant in compliance with G. S. 1949, 60-408, and further ordered that Mr. Veeder — defendant’s counsel — be appointed as his guardian ad litem. In addition, plaintiff was granted leave to file a supplemental amended petition as requested.
On July 6, 1960, plaintiff filed her supplemental amended petition. Except for the addition of paragraph 9, it was in form and substance identical to the amended petition which, in Vakas, Administratrix, v. Collins, above, was held to state a cause of action.
Paragraph 9 of the supplemental amended petition — and which gives rise to the basic question in this case — reads:
“9. That the defendant Ronald Collins after the cause of action herein stated against him arose did depart from the State of Kansas on or about the 17th day of February, 1959, and has been absent from the State of Kansas, as a member of the United States Navy, at all times subsequent thereto and by reason thereof the time subsequent to February 17, 1959, is not computed for purposes of the running of the Statute of' Limitations.”
On July 26, 1960, defendant filed two motions.
One was for an order dismissing the action on the grounds that—
(1) “the files and records in the above action disclose that plaintiff cannot legally maintain this action against movant,”
and
(2) “the files and records in the above action disclose that the condition under which plaintiff might maintain the above action against this defendant has not occurred, and cannot occur.”
The other motion sought to strike paragraph 9, above, from the supplemental amended petition on the grounds that—
(1) “said paragraph is surplusage and redundant.”
(2) “the allegations of said Paragraph 9 are immaterial, and tend to create a false issue in the above action.”
and
(3) “the allegations of said Paragraph 9 are prejudicial and constitute no part of plaintiff’s alleged cause of action averred against movant.”
On September 28, 1960, the motions to dismiss the action and to strike paragraph 9 from the supplemental amended petition were denied, and defendant was granted twenty days in which to plead or answer.
On October 18, 1960, defendant filed a demurrer to the supplemental amended petition on the following grounds:
“1.
“Said supplemental amended petition fails to allege facts sufficient to state a cause of action in favor of plaintiff and against this defendant.
“2.
“That at the date, June 10, 1960, when plaintiff had a summons issued herein against this defendant, there existed no cause of action for wrongful death in favor of plaintiff and against this defendant.
“3.
“That at the date, June 13, 1960 when plaintiff endeavored to commence this action by having the summons issued herein served upon this defendant, there existed no cause of action for wrongful death in favor of plaintiff and against this defendant.
“4.
“That when plaintiff filed said supplemental amended petition herein, July 6, 1960, there existed no cause of action in favor of plaintiff and against this defendant for wrongful death as attempted to be alleged in said supplemental amended petition.
“5.
“That said supplemental amended petition and the record in this action discloses that judgment should be entered herein in favor of this demurring defendant and against plaintiff.”
On December 5,1960, the demurrer was overruled.
On December 23, 1960, defendant appealed from the orders of September 28, 1960, denying his motions to dismiss the action and to strike paragraph 9, and from the order of December 5,1960, overruling his demurrer to the supplemental amended petition.
Each of the three orders is specified as error.
At this point reference should be made to five statutes — one federal — and four of our own.
The wrongful-death statute, G. S. 1959 Supp. 60-3203, under which this action was brought, provides:
“. . . The action must be commenced within two (2) years.”
G. S. 1949, 60-301, reads:
“A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.”
G. S. 1949, 60-303, reads:
“Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.”
G. S. 1949, 60-308, in material part reads:
“An action shall be deemed commenced within the meaning of this article, . . . at the date of the summons which is served on him, ... An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by . . . service of the summons within sixty days.”
Section 525, Title 50, Appendix, USCA, being a part of what is commonly known and referred to as the Soldiers’ and Sailors’ Civil Relief Act, reads:
Ҥ 525. Statutes of Limitations as Affected by Period of Service
“The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, . . .”
Although we have concluded that plaintiff’s motion to dismiss this appeal must be sustained, it nevertheless is necessary to summarize briefly the contentions of defendant as to the merits in order to show the basis of our decision. They are:
The death, which is the basis of this action, occurred on February 15, 1958. The wrongful-death statute, above, provides that the action must be commenced within two years. The purported service of summons on June 24, 1958, on the minor defendant, was vacated and set aside on June 10,1960, as being legally insufficient to comply with G. S. 1949, 60-408. No appeal was taken from that order and it became final. The new summons was dated June 10, 1960, and was served on defendant on June 13, 1960. This action, therefore, if “commenced” at all, was, under G. S. 1949, 60-308, above, not commenced until June 10, 1960, which date was long after the expiration of two years from the date of death.
It also is contended that as the cause of action for wrongful death was unknown to the common law and is purely of statutory creation, the requirement that the action be commenced within two years from the date of death is not a statute of limitations in the ordinary sense, but rather is a condition of substantive law provided by the statute creating the cause of action, and is a condition imposed upon the exercise of the right of action granted and is not governed by statute of limitations provisions of our code of civil procedure. In support of this we are referred to Rodman v. Railway Co., 65 Kan. 645, 654, 70 Pac. 642, 59 L. R. A. 704; Bowles v. Portelance, 145 Kan. 940, 67 P. 2d 419, and to the statement referring to the wrongful-death statute appearing at page 200 in Domann v. Pence, 183 Kan. 196, 326 P. 2d 260. (See also Terrell v. Ready Mixed Concrete Co., 174 Kan. 633, 639, 640, 641, 258 P. 2d 275). Reference also is made to Bohrer v. State Highway Comm., 137 Kan. 925, 22 P. 2d 470, where it was held that general provisions relating to the statute of limitations are not applicable to a statute which creates a liability where none existed previously and which fixes the time within which an action must be brought.
Further, it is contended that the provisions of the federal act, above quoted, were enacted for the protection of a defendant service man and not for a civilian plaintiff; that if plaintiff could obtain valid service of summons on defendant, a service man, in June, 1960, he could have done so prior to the expiration of the two-year period even though defendant was in the military service, and that the federal act has application only to matters involving a statute of limitations and is inapplicable to the provision of our wrongful-death statute which, as a matter of substantive law, requires that the action be commenced within two years — all reasons and excuses to the contrary notwithstanding.
It therefore is contended that the trial court erred in denying the motion to dismiss the action and the motion to strike paragraph 9 from the supplemental amended petition, and in overruling the demurrer to that pleading.
Plaintiff insists the appeal must be dismissed, but that, if it properly is here on the merits, contends that the plain wording of the federal provision, above, "any action . . . by or against any person in military service” includes the situation here presented and applies to prevent the "period of military service” from being included in computing the time provided by law for bringing a wrongful-death action, and therefore the allegation contained in paragraph 9 of the supplemental amended petition that defendant had been in the military service at all times subsequent to February 17, 1959 (which date was one year and two days subsequent to the death), prevents the cause of action from failing on the ground it was not commenced within two years from the date of death, and therefore defendant’s motion and demurrer were properly overruled.
Concerning her motion to dismiss the appeal, plaintiff’s contention, briefly, amounts to this:
The sole issue raised by defendant’s motions to dismiss the action and to strike paragraph 9 from the supplemental amended petition, and the demurrer to that pleading, concerns the right to bring this action more than two years after the date of death. Although denominated motions to dismiss and to strike, those motions, in substance, were demurrers — and were so regarded by the parties and the trial court. They were denied on September 28, 1960. No appeal was taken until December 23, 1960, which was more than two months after the ruling (G. S. 1949, 60-3309). The demurrer amounted to nothing more than a request for a “rehearing” on the motions which had been denied, and the time for taking an appeal was not extended by the filing of a demurrer raising the same question presented by the motions.
With respect to the motion to dismiss the appeal, defendant contends :
The orders of September 28, 1960, denying the motions to dismiss the action and to strike paragraph 9 from the supplemental amended petition, standing alone, were not appealable orders. Until his démurrer to the supplemental amended petition was overruled defendant could not appeal. The demurrer was overruled on December 5, 1960, and the appeal was timely perfected on December 23,1960, from that ruling, and also from the rulings on the motions— which is permitted under G. S. 1959 Supp. 60-3314a.
We concede the elementary rule to be that ordinarily a ruling on a motion to strike is not appealable, and particularly where the motion is denied. The same is true where a motion to dismiss an action is denied. On the other hand, if the motion to strike is in reality tantamount to a demurrer the ruling thereon is appealable. (Cow Creek Valley Flood Prevention Ass'n v. City of Hutchinson, 163 Kan. 261, 263, 181 P. 2d 320.) The same would be true of a ruling on a motion to dismiss, if in fact the motion is the equivalent of a demurrer.
On December 5, 1960, the date the demurrer to the supplemental amended petition was overruled, the trial court made the following findings and order — and we quote material portions of the journal entry:
“1. That heretofore, to-wit, on the 9th day of September, 1960, the defendant, Ronald Collins, by and through Kirke C. Veeder, his guardian ad litem and attorney, presented arguments in support of two motions, to-wit: ‘Motion of Ronald Collins, Defendant to Strike from Supplemental Amended Petition’ and ‘Motion of Ronald Collins, Defendant to Dismiss Action’, and that said arguments in support of said motions attacked the legal sufficiency of the allegations of paragraph 9 of the Supplemental Petition filed herein to state facts sufficient to support a cause of action against said Defendant Collins; that a brief in support of said Motions was presented to this court by the said attorney for defendant, Ronald Collins, and the court, after hearing arguments of counsel on said date, took the same under advisement until the 28th day of September, 1960, and on said date this court overruled both of the said Motions on the grounds that the allegations contained in paragraph 9 of the Supplemental Petition of the plaintiff -filed herein do state facts, which together with the other allegations of the petition constitute the statement of a cause of action on the part of the plaintiff against said defendant, Ronald Collins;
“2. That the argument in support of the Demurrer of Ronald Collins, defendant, to plaintiff’s supplemental petition argued this date, to-wit, December 5, 1960, raised the same legal questions heretofore determined by this court on September 28, 1960. That said decision and order of this court has not been modified or changed and no appeal has been taken therefrom and said order constituted the determination of the legal sufficiency of said Supplemental Petition and the issues raised in said Motions and in the said Demurrer presented this date.
“3. That heretofore under the order of this court on September 28, 1960, this court found that 50 U. S. Code Appendix, Section 525, does apply to the allegations of the Plaintiff set out in paragraph 9 of said Supplemental Petition and does enable the said facts as set out in plaintiff’s supplemental petition to state a cause of action on behalf of the plaintiff against the said defendant, Ronald Collins.
“4. The court further finds that said Demurrer, for the reasons herein set forth, ought to be overruled.
“It Is Therefore by the Court Considered, Ordered, Adjudged and Decreed that the ‘Demurrer of Ronald Collins, Defendant, to Plaintiff's Supplemental Petition’ be and the same is hereby overruled on the grounds that the legal questions raised on said demurrer have been heretofore determined by this court in its order of September 28, 1960, and on the further ground that the said Supplemental Petition states a cause of action on behalf of the plaintiff and against the defendant, Ronald Collins.” (Our emphasis.)
From the foregoing, what occurred in the trial court is readily apparent. The sufficiency of the amended petition to state a cause of action had already been determined in the former appeal. Except for the addition of paragraph 9 the supplemental amended petition was identical to the amended petition. Although couched in different language, the basic point of the motions and the demurrer was that the action could not be maintained because it was not commenced within two years. Each of the motions and the demurrer challenged the sufficiency of the supplemental amended petition on that ground.
In Rockhill, Administrator v. Tomasic, 186 Kan. 599, 604, 605, syl. 4, 352 P. 2d 444, although factually different in that there an order to strike was sustained, a somewhat similar question was involved and it was held that the time permitted for perfecting an appeal could not be extended by the defendant merely repleading essentially the same facts, differing in form only, and raising precisely the same issue of law previously ruled upon.
In In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461, it was held:
“Where a plaintiff moves to strike separately numbered defenses from tire defendant’s answer upon the ground in effect that the defenses do not state facts sufficient to constitute a defense, and after the overruling of such motions demurs to each of the separate defenses in reality raising the same question for reexamination thereof by the court, the time for appeal dates from the order upon the motions to strike and is not extended by the filing of the demurrers.” (syl.)
and in the course of the opinion it was said that it is quite clear that the time for an appeal is not extended by asking the trial court for a reexamination of the same question of law. (p. 516.)
And so here. Looking through form to substance, it is clear that under the facts of this case the motions in question were equivalent to demurrers — and rulings thereon were therefore appealable. They were denied on September 28, 1960. The appeal was not taken until December 23, 1960, which was more than two months later. (G. S. 1949, 60-3309.) The filing of the demurrer raising precisely the same issue of law previously ruled upon did not extend the time for taking an appeal. The holding in this case is in no way to be construed as an “invitation” to litigants to appeal every time a motion to dismiss or to strike is denied, and our decision is based solely upon and confined to the peculiar and unusual facts presented by this record.
The appeal — not being taken in time — is dismissed. | [
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57,
32,
-8,
114,
-74,
-122,
52,
99,
-103,
8,
98,
99,
1,
93,
-23,
-68,
-120,
46,
-70,
-113,
-89,
62,
17,
73,
37,
-106,
-97,
108,
116,
15,
126,
-2,
84,
85,
44,
71,
-53,
-10,
-79,
111,
18,
-98,
11,
-21,
3,
18,
113,
-39,
-22,
92,
70,
81,
-101,
-59,
-110
] |
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